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Feb122006

February 2006

OSGOODE NATIONAL CLASS ACTION SEMINAR
Osgoode is putting on another of their great class action conferences for April 6 and 7 of this year. For more information click the link below. I look forward to seeing you all there.
http://osgoode.yorku.ca/pdpwebsite.nsf/00580069eadebe7e85256a3f005763d1/6ead4ebbcc51158f85257108006fed36!OpenDocument&Date=2006-04-06

COURTS OUTSIDE ONTARIO REFUSE TO ACKNOWLEDGE ONTARIO'S DOMINANCE
In HSBC Bank Canada v. Hocking (Jan 27, 2006), a Quebec court dismissed a motion to enforce an Ontario judgment certifying a national class action settlement.
The Ontario court had dismissed the proposed Quebec class representative's motion to intervene. One wonders whether this refusal may have raised the ire of the Quebec court. It should be noted that under the ULCC recommendations, it would have been mandatory for the Quebec class member to be given standing on the Ontario motion. For more on the ULCC recommendations see http://www.branmac.com/go/download/ULCC_Report.pdf
The Québec Superior Court found that the Ontario court had no jurisdiction over class members residing in Québec. The Court found that HSBC was a B.C. company, so that basis for grounding jurisdiction was absent. The Court found that all of HSBC's actions relevant to the litigation, and any damages, were suffered in Quebec. The court held that it was insufficient that a substantial number of class members were Ontario residents. 46% of HSBC's loans were in BC, 26% in Ontario, and 11% in Quebec. So it appears the court may have upheld a BC national class judgment. The court distinguished Carom v. Bre-X on the basis that the defendant there was trading on the TSX. Nantais was distinguished on the basis that the defendant's marketing activity was organized out of Ontario. Currie v. McDonalds was distinguished on the basis that McDonalds was headquartered in Illinois.
The court expressed concerned about the level of notice given to Quebecers, particularly as there were no penetration statistics put forward.
The Court did not give effect to HSBC's attornment to Ontario court, stating that a defendant could not in and of itself ground jurisdiction.
Finally, the Court noted that, even if the Ontario courts had proper jurisdiction over the national class, Ontario should have declined to entertain the case for those class members residing in Québec pursuant to forum non conveniens principles.

In Englund v. Pfizer Canada Inc., [2006] S.J. No. 9, the defendant sought an order staying the proposed class action on a permanent or interim basis on the primary ground that the plaintiffs commenced a similar proceeding against it in Ontario and Ontario is the more convenient forum for adjudicating their claims. The court rejected the request. The court applied the Court Jurisdiction and Proceedings Transfer Act's list of factors. Of particular relevance from a class action standpoint, the court stated:
"BI Canada submitted that there are potentially more claimants and plaintiffs in Ontario, and therefore, it is the more convenient forum. I give this submission little weight for the number of non-resident plaintiffs is not a determinative factor recognized by the CJPTA; and if given material weight, it would undermine the rights of persons residing in smaller jurisdiction to effectively pursue their claims in their home jurisdiction. Such result would not be fair or orderly."
"Section 31(1) of the Ont. CPA vests judges with broad discretion to award costs while s. 40 of the Sask CAA limits a court to awarding costs only where a party was vexatious, frivolous or abusive, or unnecessary steps were taken, or other exceptional circumstances exist. Section 66(1) of The Consumer Protection Act, S.S. 1996, c. C-30.1 ("CPA"), provides that no costs are to be awarded against a consumer who brings an action against a manufacturer, retail seller or warrantor for breach of warranty... In my opinion, ss. 40(1) and 66(1) provide the plaintiffs in the within action with a material advantage that may not exist in Ontario"
"At this juncture, carriage of all claims against BI Canada has not been resolved, and none of the subject Ontario actions have been certified. Therefore, it would be premature to stay the Sask Action in the hope that Saskatchewan residents might be able to pursue their cause of action elsewhere. A stay order in these circumstances would amount to an abdication of this Court's responsibility to persons within its jurisdiction. That result is not prescribed by the CJPTA or intended by the Legislature. Should an Ontario court certify the Ontario Action with class provisions that protected the interests of claimants contemplated in the Sask Action, or vice versa, serious consideration then could be given regarding which action should be stayed, or whether a transfers of part of either action would be practical."
"I reject BI Canada's submission that the Ontario CPA allows for the creation of a "national class" that binds non-Ontario residents unless they opt out of a class action certified in Ontario because the laws of Saskatchewan do not recognize legislation enabled by other jurisdictions that intentionally encroaches on the right of its residents to seek judicial recourse for losses they suffered as a consequence of a tort or other breach of the law committed within the Province."
CERTIFICATION NOT GRANTED IN CHILD SERVICES CASE
The court declined to certify a proposed class action against the Province of Alberta regarding the Province's responsibility to bring litigation on behalf of children in care, although the court set out certain conditions under which the case might still be certified. The writer is co-counsel for the Province: Labonte v. Alberta, 2006 ABQB 104.
CLASS CLAIMS DISMISSED
Yes Virginia, some class actions do go to trial. And sometimes the class loses.
In Withler v. Canada, 2006 BCSC 101, an pension benefits age discrimination case was dismissed. The writer was one of the class counsel team in this case.
In Kerr v. Danier Leather (December 15, 2005), the Ontario Court of Appeal overturned an earlier decision in favour of the class in this prospectus misrepresentation case.
COSTS AWARD UPHELD
The Ontario Divisional Court upheld the $600,000 costs award in favour of the plaintiff made by Cullity J. in the St. Jude class action: Andersen v. St. Jude (Feb 6, 2006). The court commented on the fact that the defendants had not put forward their own dockets as a gauge of the reasonableness of the plaintiff's request.
CLASS ACTION STAYED
In Soderstrom v. Hoffman-La Roche Ltd., 2006 OJ 63, the court held that an earlier carriage decision barred the new proposed case from proceeding. The court held that the new case was a collateral attack on the earlier judgment and certification order of Mr. Justice Cumming in the vitamin price fixing case.
In related litigation, Ford v. F. Hoffman-Laroche Ltd., 2005 A.C.W.S.J. LEXIS 8449, the court awarded costs against the solicitors for their efforts in collaterally attacking the vitamin carriage decision over several years.
NEED FOR LEAVE CONSIDERED IN BC
In Ruddell v. BC Rail Ltd., [2005] B.C.J. No. 2844, there was an application by BC Rail for directions with respect to whether leave to appeal was required from the order dismissing its stay application and granting a class certification to Ruddell. The question raised on the application was whether the BC Rail required leave to appeal the dismissal of the stay application because it was from an interlocutory order, or, whether the dismissal of the stay application was part of and consequential to the certification order which by operation of s. 36(1) of the Class Proceedings Act did not require leave. The court held that no leave was required. The issue was whether the dismissal of the stay was a separate, stand-alone application in the nature of an interlocutory order, or whether it was an essential and integral part of the certification hearing. The court found it was the latter. Given that BC Rail's application for a stay under the Commercial Arbitration Act was required to be heard as part of the certification process and was determined as part of the preferability considerations under the Class Proceedings Act, it was properly part of the appeal from the certification order and was entitled to the benefit of s. 36(1) of the Class Proceedings Act.
LEAVE REFUSED IN SALVAGE CASE
The salvage litigation is now beyond salvage. The SCC refused the Plaintiff's request for leave of the decision dismissing the case: Robert Woods, Executor of the Estate of Wayne Robert Woods v. ING Halifax Insurance Company, [2005] S.C.C.A. No. 388
LEAVE REFUSED IN NUISANCE CASE
An application by the defendants to appeal a decision certifying a nuisance class action: McLaren v. Stratford, [2005] S.C.C.A. No. 484
SUMMARY JUDGMENT IN FAVOUR OF CLASS OVERTURNED
In Jane Doe 1 v. Manitoba, 2005 MBCA 109, the Manitoba Court of Appeal overturned a summary judgment against the government in relation to the constitutionality of the restrictions on Manitoba's abortion funding procedures.
AGGREGATE DAMAGES FOR CLASS DETERMINED IN AUTHORSON
In Authorson (Litigation guardian of) v. Canada (Attorney-General), [2005] O.J. No. 5589, the court determined the damages payable in favour of the class of veterans regarding the failure of the government to invest certain pension funds. The award was $4.6 billion. The Crown raised certain public policy arguments against granting such an large aggregate award. The court rejected these concerns stating: "The granting of an aggregate damage award would serve to crystallize the extent of the wrong done by the Government over a period of 85 years to veterans that had been rendered helpless and incompetent, on the Crown's own finding, while serving their country in its armed forces. The issue of what individuals are to receive what amounts, the issue of what in fact might go back to the Government, either because of lapse provisions or as tax on income earned, and finally if there be money left over what should be done with it on a cy pres application, are all matters for another day. I am not persuaded that there is anything in the lapsing legislation or in the law of equity which would stand in the way of an aggregate damage award in this case".
It should be noted that the initial liability assessment is on appeal to the Ontario Court of Appeal, so this story is far from over.
In separate reasons, the court ruled partially in favour a plaintiff's motion to strike certain materials filed by the defendant (2005 OJ 5581).
APPLICATION TO CONVERT TO CLASS PROCEEDING
In BDO Dunwoody v. Miller Berstein LLP, 2005 OJ 5504, the plaintiffs sought to both withdraw a discontinuance and convert the action to a class proceeding. Both motions were rejected.
LEAVE TO APPEAL REFUSED OF LOWER COURT DECISION REFUSING PERMISSION TO FILE AFFIDAVIT
See Defazio v. Ontario (Ministry of Labour) Defazio v. Ontario (Ministry of Labour), 2005 A.C.W.S.J. LEXIS 8760
POTENTIAL INDEMNITY AGREEMENT PROPERLY THE SUBJECT OF DISCOVERY
In Holmes v. London Life Insurance Co., [2005] O.J. No. 5523, the court ordered that the representative plaintiff could be examined in relation to whether their solicitor had indemnified the plaintiff for costs. The court stated: "The issues in this motion trigger the public interest and that of the legal profession now that class proceedings have become a very important part of the judicial/legal landscape. The long history reflected in the jurisprudence on the torts of champerty and maintenance stand testament to the importance of disclosure of the true nature of the relationship between a plaintiff and anyone who provides comfort or encouragement to the proceeding. This is especially so in this case where there is an outstanding carriage motion."
Of note is that it was not the defendant that was seeking this disclosure, but rather the competing plaintiff.
PROPOSED CLASS COUNSEL DISMISSED
Bellan v. Curtis, 2006 MBQB 18: A former top official of the Crocus Investment Fund successfully turfed the legal team hired by shareholders because one of their lawyers -- Paul Walsh -- used to be his own lawyer. Madam Justice Shawn Greenberg of Manitoba Court of Queen's Bench said Walsh was in a conflict of interest because he had been the lawyer for James Umlah, Crocus's former chief investment officer. That professional relationship ended just months before Walsh launched a $200-million lawsuit against Umlah on behalf of Crocus investors. Greenberg disqualified not only Walsh's law firm from acting on the lawsuit, but also lawyers with a Toronto law firm acting on the matter with Walsh.
In related Crocus news, the Manitoba Court of Appeal granted leave to appeal from a decision of the Manitoba Securities Commission. The Commission had concluded that it was not in a conflict of interest in a proceeding being brought against the directors, notwithstanding that the Commission was named as a co-defendant in the class action.
CHICKEN AND EGG
In Antonali v. Coquitlam (unreported, September 16, 2004), the court ordered that the City's summary judgment motion asking for consideration as to the validity of the challenged bylaw should not proceed in advance of certification.
AIRLINE CLASS ACTIONS CONSIDERED
Croteau v. Air Transat, 2005 QJ 18804: This travel delay class action against Air Transat was dismissed. The class sought damages for delays caused when the defendant's Airbus 310 fleet was shut down for examination following on incident in relation to one flight. The court found that the class action was barred by the Warsaw Convention.
Conversely, in Plourde v. Service aerien FBO inc., 2005 QJ 17702, a travel class action was certified which related to a problem with one specific flight. The court held that the Warsaw Convention barred the claim for psychological injury, but not the claim for the foregone holiday.
ILLEGAL STRIKE CLASS ACTION CERTIFIED
In Biondi v. Syndicat des cols bleus regroupes de Montreal, 2005 QJ 18035, the court certified a class action against a union regarding an alleged illegal strike. The action alleged that the defendant's members failed to clear and salt the streets, putting the class in danger. Interestingly, the employer City was also included as a defendant on the basis that they remained vicariously liable for the acts of its employees.
LATEST DECISION IN GAMBLING ADDICTION CLASS ACTION
In Brochu v. Societe des loteries du Quebec, 2006 QJ 438, the court stated that the 20 class member selected for examination did not have to produce their medical records. Since they were not the named plaintiff, it could not be said that they had waived their privacy rights.
LEAVE TO AMEND CERTIFICATION MOTION AND DROP CERTAIN DEFENDANTS GRANTED
See Smith v. Atofina Chemicals Inc., 2005 QJ 19327.
CROSS-EXAMINATION DISALLOWED
In Tardif v. Hyundai Motor America, 2005 QCCA 992, the applicants applied for leave to appeal a decision refusing to permit them to examine a member of board of directors of the parent automobile company located in Korea. The court found that the questions could be largely answered through documentary discovery. As such it was not clearly wrong to refuse to order the director to be examined. The application for leave was dismissed.
PIRO DISMISSED
The Québec Superior Court released its much anticipated decision in the "Piro" case (Option Consommateurs v. Novopharm (January 17, 2006, Que.S.C.). The court refused to authorize the proposed class action.
In February 2003, a newspaper article appeared reporting that certain unnamed generic pharmaceutical manufacturers would have given "illegal" rebates and other benefits to pharmacists in Québec and other provinces. Two days later, a proposed class action was instituted. The action sought damages on behalf of all Québec residents against nine manufacturers of generic medications on the grounds that the manufacturers allegedly failed to deduct the value of these rebates and other "benefits" from the prices of medications.
Madam Justice Claudine Roy held that while the legislator had lowered the bar for certification in Quebec, there must still be some minimum factual foundation to allow the Court to have sufficient information to appreciate the seriousness of the proposed class action before it can authorize it. Roy J. held that this information was lacking in this case and that there was no basis for her to find that there was any appearance of right.
The Court also rejected Option Consommateurs' claim that it was an adequate representative. The court held that Option Consommateurs had failed to allege any facts showing that it had the significant resources necessary to take a matter of this complexity and magnitude to trial.
SUPREME COURT OF CANADA GIVES JUDGMENT FOR CLASS
In Dikranian v. Québec 2005 S.C.C.D.J. LEXIS 66, the Supreme Court gave judgement in a student loan class action. In Quebec, the repayment terms for student loans are set out in the Act respecting financial assistance for students. The appellant obtained student loans between 1990 and 1996 and completed his studies in January 1998. According to the loan certificate signed by the appellant with his financial institution in 1996, the appellant had to begin repaying the principal and paying the interest on the loan upon the expiration of the exemption period. However, as a result of amendments to the Act respecting financial assistance for students that came into force in 1997 and 1998, the financial institution charged the appellant interest on his loan that, under the certificate, was supposed to have been paid by the government. The appellant was authorized to institute a class action against the government seeking reimbursement of the interest paid. The Superior Court and the majority of the Court of Appeal had dismissed the action, concluding that the 1997 and 1998 legislative amendments covered all student loans contracted before and after the amendments came into force.
Mr. Justice Bastarache for the majority stated:
"The Quebec legislature's involvement in student loans clearly makes such loans one component of a social program designed to improve access to education. However, it is impossible to disregard the fact that the legislature intended its program to be based on private contractual obligations, even though several terms of the contract were to be imposed on students. The contract of loan between the student and the financial institution, which arises out of the loan certificate issued by the Minister, creates rights and obligations as soon as the contract is entered into. This explains the need not to interfere with vested rights.
"I would therefore allow the appellant's action: (1) student borrowers with student loans that were active on July 1, 1997 have a vested right with respect to the duration of the exemption period applicable when the contracts were signed, as this right was not affected by the Amending Act, 1997; and (2) students with loans that were active on May 1, 1998 have a vested right with respect to the duration of the exemption period applicable when the contracts were signed, as this right was not affected by the Amending Act, 1998. The case is remanded to the Superior Court to determine the method for making claims, the amounts owed by Quebec and the payment procedures."
See: http://www.lexum.umontreal.ca/csc-scc/en/rec/html/2005scc073.wpd.html
AFFIDAVIT STRUCK
Punit v. Wawanesa, (January 4, 2006): The defendants in this class action applied to strike portions of the affidavit that appended material filed in a parallel US proceeding. The court helpfully restated the principles applicable to affidavit evidence on certification application.
The court struck the evidence, but seemed to open the door to the plaintiff to reintroduce the evidence if the plaintiff were clear that the intention of filing the material was simply to indicate the type of evidence that might be called at the common issues trial.
The defendants also applied to strike that portion of the claim that included non-residents. The concern was raised that the other provinces had mandatory appraisal regimes that arguably would displace the class action. The court held that this issue should be put over to the certification judge.
APPLICATION TO DISQUALIFY JUDGE REFUSED
Dempsey v. Envision Credit Union 2005 BCSC 1730: An application was made to disqualify a judge in a proposed class action due to her retainer by one of the defendants while in private practice. The judge stated "My retainer with Canada Trust was confined to trust cases, and did not involve consumer lending matters at all, and certainly did not involve the case at bar. I had no association with this file prior to my appointment to the bench. I, therefore, had no access to any information about the parties prior to my appointment. In addition, my retainer with Canada Trust ended with my appointment to the court over four years ago."
CERTIFICATION REJECTED
In Politzer v. 170498 Canada Inc. [2005] O.J. No. 5224, the court heard a certification motion in a case involving a pipe burst at an apartment complex.
The defendants denied that the court had jurisdiction to hear the claims that fell within that of the Ontario Rental Housing Tribunal and denied that the law recognized a cause of action for discrimination.
In relation to the jurisdiction issue, the court concluded: "I do not accept the submission that class proceedings are not available for claims that fall within section 193(2) of the TPA. The provision confers on the court the powers of the Tribunal but it does not subject the court to the procedures that the Tribunal must observe under the TPA and the Statutory Powers Procedure Act, R.S.O. 1990, c. S-22. In a case where the requirements for certification are satisfied, I see no reason why the procedures under the CPA that are designed to achieve its particular objectives should not be available for the purpose of exercising the powers conferred [under the TPA]." The court struck the claim for discrimination.
There was an issue with respect to the class definition, in that the TPA issued exclusive jurisdiction for claims under $10,000. The court resolved this problems as follows: "The important question is whether a class definition can be framed that will accommodate the fact that the jurisdiction of the court is, in effect, conditioned on a tenant's decision with respect to the amount to be claimed. The question is not free from difficulty but I believe that, in the particular circumstances of this case, a tolerable accommodation would be achieved if the primary class is restricted to those residents of C Wing: (a) who were not tenants within the meaning of the TPA; or (b) who were tenants and who, in the manner and within the time stipulated in a notice of certification, indicate their desire to participate in the proceeding to claim damages in excess of $ 10,000. The reference to persons who were not tenants would, for example, include spouses who were not themselves paying rent and would not be subject to the jurisdiction of the Tribunal. Although, as far as tenants are concerned, this definition of the primary class would, in effect, substitute an opting-in process for the opting-out procedure contemplated by the CPA, I believe it is justified in the special circumstances of this case where, by statute, the court's jurisdiction depends on an exercise of choice, or judgment, by each tenant. "
On preferable procedure, the main concern was the relatively small size of the class. The court found that this did not prevent certification stating: "Further evidence has since been filed to the effect that interviews were conducted with tenants of 30 of the 42 residential units occupied by tenants, other than the representative plaintiffs. Of these, 15 indicated that their claims for damages to personal property exceeded $ 10,000 and a further seven were unsure whether this was the case. In addition, 20 of the 32 tenants had unquantified claims for personal injuries or other adverse health effects and virtually all of them indicated that they had out-of-pocket expenses. This evidence is sufficient to dispel the concerns I had after the earlier part of the hearing. I accept that the size of a class can have a bearing on the question of the preferable procedure and that, where the class is small, the advantages of a class proceeding may be outweighed by the special costs - including the cost of giving notice and otherwise communicating with class members - associated with the procedure. I do not accept that this will necessarily be the case. The contrary is reflected in section 5(1)(b) that indicates that an acceptable class can be comprised of as few as two persons. The question must be looked at in the light of the particular facts of each case and I do not think it is of any more significance that certification has been denied in some cases of small classes - such as Nixon v. Canada (Attorney-General), [2002] O.J. No. 1009 (S.C.J.) (class of 35 persons maximum) - than the fact that it was granted in others such as Ward-Price v. Mariners Haven Inc, [2002] O.J. No. 4260 (S.C.J.) (class of 24 persons maximum)."
COSTS ISSUES IN MARKSON
Markson v. MBNA, 2005 OJ 5285: The Divisional Court agreed with the court below that costs should not issue in relation to the unsuccessful appeal. The motions judge found that the scope of s. 347 of the Criminal Code and the extent to which it may interfere with standard commercial practices that affect millions of Canadians was a matter of sufficient public importance to qualify as one of public interest for the purposes of s. 31(1) of the CPA.
CANADA GOES ON THE ATTACK
The Federal Justice Department went on the attack with preliminary applications to strike in several cases.
Their applications were dismissed in Klein v. American Medical Systems, 2005 A.C.W.S.J. LEXIS 7548 and Brindle v. Canada, 2005 QJ 18162 (failure to inform of eligibility for income supplement), but was partially successful in the immigration case Moni v. Canada, 2005 A.C.W.S.J. LEXIS 7494.
In Sauer v. Canada, 2006 OJ 26, Mr. Justice Winkler heard an array of summary judgment motions prior to certification. It should be noted that plaintiff's counsel consented to have these motions heard first. The court refused to strike the claim against the feed manufacturer Ridley Corp. or the federal government. However, the claim was dismissed against the corporate parent Ridley Australia, as there was no basis to pierce the corporate veil.
In Whitmore v. Canada, [2005] F.C.J. No. 2157, the court struck an the action against the federal government. The court stated: "Given the undertaking of the Defendants to issue notices of refusal (or grant) of license, forthwith, which would provide a remedy to the Plaintiffs to proceed to the appropriate Provincial Court, and, given that once such application is made, possession of the handgun would be lawful, during the pendenacy of that application there exists a more appropriate forum to deal with the matters at issue, namely, the Provincial Courts, and, given the delay of the Plaintiffs in seeking other relief, it is appropriate that this Court should not be hearing this action, rather, it should defer to the other forum."
Grant v. Canada (Attorney General), 2005 C.R.D.J. 4578: The plaintiff was a status Indian and a member of the Long Lake No. 58 First Nation. The claim related to the consequences of a relocation of the residential community from one part of the Reserve to another. It was alleged that the plaintiff and other members of the Band were exposed to unsafe levels of toxic mould and developed a variety of symptoms and illnesses. The court held that it was not plain and obvious that the Crown did not have a private duty of care to avoid foreseeable harm to the Class when implementing the decision to relocate.
CLASS CLAIM SUCCESSFUL
In Comite provincial des malades v. Regroupement des Centres, 2005 QJ 18834, the court found that long-term care facilities could not charge laundry fees to their residents, as a local statute required the facilities to provide the basic necessities of life. The court awarded $40 per month to class members based on the average charge by commercial establishments. No award was made to class members whose families did the washing themselves.
The court also refused to overturn certification on the basis that the representative plaintiff did not reside at each of the facilities. The court held that raising this issue at trial amounted to an effort to appeal the original certification decision.
APPLICATION TO DISCONTINUE AGAINST CERTAIN DEFENDANTS DISMISSED
In the privacy class action Ostiguy c. Québec (Procureur général), [2005] J.Q. no 18163, the court refused the application to discontinue against certain municipal defendants. The court held that it was not in the interests of a vast number of class members to discontinue their claim against these defendants. The court also dismissed an application to decertify the action, holding that this was an improper collateral attack on the original certification decision.
APPLICATION TO FILE EXPERT REPORT TO CONTEST CERTIFICATION GRANTED
In Dallaire v. Eli Lilly Canada Inc., 2005 QJ 18803, the defendants applied to examine certain experts who had filed reports in support of certification of this Zyprexa class action. The court allowed the application but reserved the right to rule the report inadmissible at the certification decision.
CERTIFICATION REJECTED IN INTERNET FEE INCREASE CLASS ACTION
Poulin c. Vidéotron, [2005] J.Q. no 18805: The court rejected certification of this case alleging improper notice of an internet fee increase. It is of interest to note that the court allowed testimony from two witnesses for the defendant on the motion. The court held that the plaintiff (who was acting without counsel) had failed to establish the existence of any common issues. He had made no effort to contact other class members or request a list of customers from the defendant. The defendant introduced evidence that notice was given of the increase, and the plaintiff admitted that he did not always open his mail.
APPLICATION TO CROSS EXAMINE PLAINTIFF PRIOR TO CERTIFICATION REFUSED
Lenzi v. Apple Canada, 2005 QJ 18835, is a class action alleging that the first 3 generation Ipod batteries did not last as long as represented. The defendant applied to cross-examine the proposed representative and to introduce certain documentary evidence. The court refused the application, emphasizing that the court's discretion should not be used to allow evidence on the merits, and that the court should be mindful of the legislature's interest in having one simple hearing. The court reviewed the issues sought to be examined upon (including the nature of the representations received, the use of the Ipod, and the reasons for purchasing the Ipod), and found that they related more to the merits than certification.
PENSION CLASS ACTION CERTIFIED
In Coutu v. Roy, 2006 QCCS 298, the court certified a pension class action with little comment.
FIRST CONTINGENCY FEE AGREEMENT CONSIDERED IN ALBERTA
The Alberta statute contains a quirk that mandates that the class representative seek approval for the contingency agreement prior to certification. This was first considered in Roth v. Alberta on an ex parte basis. The writer was co-counsel for the Province in this class action.
COSTS CONSIDERED IN MACDONALDS CASE
In Currie v. McDonald's Restaurants of Canada Ltd., [2005] O.J. No. 4795 the court ordered that the costs to be paid by the McDonald's defendants were $138,036. The court ordered that the costs be shared equally amongst the defendants even though one piggybacked on the submissions of the others. The court also rounded down the award due to the fact that the defendants were successful against one of the plaintiffs.
PENSION RIGHTS CASE CERTIFIED
In Bennett v. BC, 2005 BCSC 1673, the court certified a class-action lawsuit against the Campbell government by 27,000 pensioners who used to work for the B.C. civil service. They want to recover more than $90 million in health-care premiums which the government stopped paying for them three years ago. The author was retained by the Province of BC in this matter.
CARRIAGE MOTION DETERMINED IN ONTARIO VIOXX LITIGATION
Justice Warren Winkler granted a national consortium of 19 law firms from across Canada the right to act as legal counsel in the proposed Vioxx national class action suit in Ontario: Setterington v. Merck Frosst Canada Ltd., [2006] O.J. No. 376. The opposing group was Tony Merchant's firm out of Saskatchewan. The court stated that the fact that the successful consortium had named the Federal Government was not a factor in their favour stating: "The mere inclusion of a multitude of defendants is not sufficient to provide a basis for the preference of one action over another:" Similarly the Merchant's inclusion of OHIP subrogated claims did not create a conflict of interest. The court relied on the fact that (1) the consortium had greater resources, (2) had put forward evidence of having been contacted by many class members, (3) the Merchant group was in conflict as a result of having started securities litigation against the defendant that could undermine the ability of the class to recover.
CASE AGAINST SCOTIABANK BLOCKED
The Ontario court has blocked a class-action lawsuit against the Bank of Nova Scotia launched by investors who are suing the bank for defaulting on US$190-million worth of corporate bonds. The bonds were issued by the bank's former Argentine unit during that country's financial meltdown three years ago. In his ruling, Mr. Justice Maurice Cullity gave the bondholders the chance to reinstate their suit with significant changes. But he cautioned the matter might be better handled by a court in Argentina. The investors have 90 days to resubmit their suit: Yordanes v. Bank of Nova Scotia, 2006 OJ 280
APPLICATIONS TO AMEND COMMON ISSUES CONSIDERED
In Collette v. Cartier Partners Securities Inc. 2005 BCSC 1749, the court rejected proposed amendments to the common issues, and also refused a decertification application. The plaintiff had wanted to unbundle the certified duty and standard of care issues. However, the court found that the unbundling undermined the plaintiff's commitment that the only duty issue they were seeking to certify was the duty to conduct due diligence on the investments. The proposed standard of care question was also problematic. As stated by the court:
"Equally problematic is the proposed standard of care, which is no longer based on the obligation to screen out investment products that have little or no investment merit. The standard of care is now alleged to be an obligation on the part of the defendant to: (a) carry out a reasonable assessment of the investments merits and the investment risks associated with a purchase of the Multimetro units, and;
(b) based upon its assessment, reasonably determine that its clients (the class members) had a reasonable prospect of recovering their investment capital and earning some return on their investment, given the investment risk involved....Whether a client has a "reasonable prospect" of a return on an investment will depend on the particular client. I agree with the submission of the defendant that such an inquiry is inherently individualistic."
In relation to the decertification application, the defendant's hook was that it had been revealed that the investment could be purchased through a number of other sources, not just the defendants. The court rejected the application stating that this fact was known when the Court of Appeal mandated certification
In Lewis v. Cantertrot Investments Ltd. [2006] O.J. No. 199, the plaintiff applied to add certain common issues and to amend the claim in an action which had been certified subject to the provision of an adequate case management plan that established preferability. The court refused the amendment on the basis that it was not properly particularized. The court also found that the litigation plan was adequate, noting that the long list of requirements in Bellaire may not be necessary in all cases. The case was certified subject to resolving remaining issues regarding the formulation of the common issues.

SETTLEMENTS
Press reports indicate that there has been a settlement of a proposed class action against Park N' Fly. Park 'N Fly customers who were frozen out last December when car jockeys couldn't find their vehicles can plan on getting some satisfaction for Christmas - and a deal on parking. The 129 customers who have come forward to say they experienced delays in having their vehicles retrieved will receive one of two packages from Park 'N Fly: a letter of apology and a $129 coupon for car detailing or a voucher for three days of free parking.
A settlement has been reached in the Nortel class actions in the U.S. and Canada. It has not yet been approved by the courts.
Settlement was approved in the welfare benefit overpayment and underpayment class action Roth v. Alberta (December 20, 2005). The writer was co-counsel for the Province of Alberta.
A financing charge class action was settled in Billette v. Groupe Dumouline Electronique inc., 2005 QJ 18290

NEW ACTIONS
BC
McGrath v. CMHC: Leaky condo case brought by Singleton Urquhart
Two competing class actions have been brought to recover the provincial sales tax on legal fees by Poyner Baxter and Arvay Finlay.
Gove v. Pfizer: Poyner Baxter has brought this action regarding the drug Depo-Provera.
ONTARIO
Palmer v. First 4 Internet Ltd.: Class action over Sony's rootkit problem.
A class-action lawsuit has been commenced against IG Investment Management Ltd., CI Fund Management Inc., Franklin Templeton Investments Corp. and AGF Funds Inc. alleging that their traders were allowed to participate in the controversial practice of market timing.
A class-action lawsuit has been filed against FMF Capital Group Ltd., FMF Holdings, LLC, FMF Capital, LLC, certain of the Company's officers and directors, the underwriters of the Company's initial public offering, the Company's auditors and certain other named individuals. It alleges, among other things, prospectus misrepresentations, breaches of the Competition Act and negligent misrepresentation.
Mauldin v. Cassels Brock & Blackwell LLP and Willock v. Cassels Brock & Blackwell LLP are new class actions alleging that the class was induced to participate in a fraudulent investment scheme through an investment firm which allegedly instructed them to deposit their funds either into the account of Cassels Brock or directly into a bank account identified by the conspirators.
A Cambridge woman has filed a $110-million class-action lawsuit against a company she alleges is responsible for contaminating groundwater. The suit was filed against Northstar Aerospace, Inc. and Northstar Aerospace (Canada) Inc. as a result of trichloroethylene (TCE) contamination.
A class-action suit has been commend against TCI Investment Club is seeking $765 million US.
QUEBEC
Montreal law firm Orenstein & Associates has launched class-action proceedings against Labatt Brewing Co. after the beer maker pleaded guilty this past week to rigging prices at some Quebec convenience stores.
A class action has been filed against Microsoft Canada and Microsoft Corporation concerning alleged problems with the XBox 360.
Class action petitions have been filed against Selwyn House regarding sexual abuse allegations.
Plaintiffs are seeking class-action status for a lawsuit against Irving Oil alleging the company overcharged consumers near the Quebec-New Brunswick boundary and other regions. According to the claim, Irving Oil failed to pass along a lower rate of tax allowed in border regions and other designated areas to take account of competition between gas stations on both sides of the border.
A class action by allegedly duped readers of James Frey's "memoir" "A Million Little Pieces" (No, I'm not kidding).

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