September 2005
Tuesday, September 6, 2005
Ward Branch

I hope you all had a great summer. We certainly did. The only downside was arriving home to discover that 3 weeks of mail was missing. After haranguing the Canada Post clerk for their gross incompetence, and shrieking at the poor man when he meekly tried to suggest it might have been stolen, we now have to eat crow. Some kind lady out in Surrey (at least an hour from our home in North Vancouver) discovered a bucket of mail by the creekside behind her house, which is often frequented by crack addicts and dealers (the creekside, not the bucket, or the house). Does anyone know where you can pick up a "Sorry for calling you an incompetent buck-passing crown corp. technocrat" card?

SARS CASE (BARELY) WITHSTANDS ATTACK
The effort to strike out the SARS case against the government was granted in part: Williams v. Canada, 2005 OJ 3508. The case was dismissed against the feds and the City of Toronto, but survives in part against the Province: Williams v. Canada, 2005 OJ 3508.

SETTLEMENTS
Siskids has announced a proposed settlement of a class action against Hyundai for underrpresenting horsepower on a range of vehicles. The class covers all provinces save Quebec. More details can be found at http://www.blogger.com/www.classaction.ca
The Capers stores hep-A testing settlement has been approved: Fahrki v. Alfalfa's Canada Inc., 2005 BCSC 1123
A settlement has been reached in a class action involving E.C. Drury students who contracted E. coli poisoning the night of their high school graduation two years ago. And you thought your grad was miserable! For more information see http://www.trilliumclassaction.com/
A Quebec settlement has been reached involving class actions over the use of the diet drugs, Ponderal and Redux. The settlement provides for settlement funds of $8,333,333 for the payment of benefits, health insurer costs and legal fees, with an additional amount of up to $5,000,000 being made available should the initial fund be insufficient. The Ponderal class is represented by Montreal lawyers Mtre. Hélène Guay and Mtre. Janick Perreault, and the Redux class is represented by the Montreal law firms Unterberg Labelle Lebeau and Sylvestre Fafard Painchaud.
Bell Canada International Inc. ("BCI") and BCE Inc. ("BCE") announced that an agreement has been reached and approved for the dismissal of a class action seeking damages of $250 million commenced by former holders of BCI's $250 million 6.75% convertible unsecured subordinated debentures against BCI, BCE and certain current and former Directors of BCI. Press reports suggest that the only funds paid were $3 million in legal fees to the proposed class counsel. The court gave its approval nonetheless. I'm sure one D___ K_______ is wondering why he suffered so much grief in his case a few years ago.
You will recall that we reported last month on the Ontario approval of this front end loaded washer case. Parallel settlements have now been approved in BC and Quebec.

LIMO DRIVERS NOT GIVEN INJUNCTIVE RELIEF
Airport Limousine Drivers Association and the Airport Taxicab Association sought to enjoin the Greater Toronto Airport Authority from completing its Request for Proposal process and issuing new limousine licenses at the Toronto Pearson International Airport ("Pearson") until the completion of a trial in this proposed class action. The court found that the test for injunctive release was not met: Airport Limousine Drivers Assn. v. Greater Toronto Airports Authority, [2005] O.J. No. 3509.

PAY DAY LOAN CASE CERTIFIED
The B.C. Supreme court certified a criminal interest rate class action in Bodnar v. The Cash Store, 2005 BCSC 1228. The writer was counsel for one of the defendants, so we'll leave any analysis for the appeal factum.

LEAVE REFUSED IN BAYCOL CASE
The Manitoba Court of Appeal refused leave of an order certifying a Baycol class proceeding. This is quite interesting given that the class action case law in Manitoba is still embryonic: Walls v. Bayer Inc., 2005 MBCA 93.

KMART CLASS ACTION STAYS ALIVE
In Webb v. 3584747 Canada Inc., [2005] O.J. No. 3306 the Divisional Court denied leave of a decision declining to decertify this long running wrongful dismissal class action.

EMPLOYEE BENEFIT CASE CERTIFIED
In Sutherland v. Hudson's Bay Co., 74 O.R. (3d) 608, the court certified a case regarding the right of an employer to use surpluses to cover contributions. The court did strike the trust variation aspect of the claim. The court did not order the certification of a defendant class of certain beneficiary groups who might be affected by the outcome of the class action, but rather simply appointed a representative counsel under the traditional rules of court to maintain a "watching brief"

SCC LEAVE DISMISSED IN PROPOSED PENSION CLASS ACTION EXPANSION
The Applicants' action for various breaches in respect of surplus pension funds was certified as a national class action, by consent. After substantial amendments to the statement of claim, the Applicants moved to amend the certification order. The judge dismissed the motion, finding that the Applicants had failed to show that the class as defined was rationally related to the proposed common issues on partial termination, that real and present conflicts irresolvable by the creation of sub-classes existed between class members, and that the action as presented would be totally unmanageable due to the many different groups, the obvious conflicts between the sub-classes, and the two distinct theories for relief. The Divisional Court dismissed the Applicants' appeal and the Court of Appeal denied leave to appeal. Now, so has the SCC: Nicole Lacroix et al. v. Canada Mortgage and Housing! g Corporation et al. (Ont., C.A., February 11, 2005) (30866) "with costs"

TERMS OF SETTLEMENT ORDER SETTLED
The form of settlement order was considered in Murray v. Halde. -- No need for declaration that settlement fair and reasonable -Order approving settlement agreement and order dismissing proceeding must be included -- Declaration that fees of class counsel in stipulated amount were approved must be included.

NEW CLASS ACTIONS
ONTARIO
A $75-million class-action lawsuit has been filed accusing Air France, the Greater Toronto Airports Authority and Nav Canada of negligence in the landing accident of an Airbus A340 commercial jet. Paul Miller acts for the proposed class.
Another Vioxx class action has also been filed by Will Barristers: Morin & Miller.
BC
Tracy v. Instaloans Financial Solutions Centres Ltd.: Payday loans.
Garret v. Guidant Corporation and Vogt v. Medtronic Inc.: Difibrallators. Joe Murphy is counsel.
QUEBEC
Norbourg v. Quebec Action Gestifs Inc.: Mutual fund Management. Lauzon Belanger is counsel.
ALBERTA
The Elder Advocates of Alberta, acting as a representative group for 13,243 nursing home residents, has filed a class action alleging that the provincial government misrepresented the effect accommodation rate increases set in 2003 would have on residents' quality of life.

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Article originally appeared on Branch MacMaster LLP: Barristers & Solicitors (http://www.branchmacmaster.com/).
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