July 2006
Wednesday, July 12, 2006
Ward Branch

I write this missive from our family's cottage in Bathurst, New Brunswick. The last task before "unplugging from the Borg" for three weeks!
TWO NEW ENVIRONMENTAL CASES DECIDED IN ALBERTA
Paron v. Alberta 2006 ABQB 375: Certification was rejected in this case raising an complaint with lake level and other environmental issues at Lake Wabamum. The key difficulty was created by the conflict of interest that existed amongst the class, as many residents around the lake wanted a lower lake level, whereas the class representatives and others wanted a higher level. The writer was co-counsel for the Province of Alberta in this action.
Windsor v. CNR, 2006 ABQB 348: Certification was granted in this environmental contamination case.
In other environmental class action news, leave to appeal the Pearson v. Inco decision certifying the action was denied by the Supreme Court of Canada.
CRIMINAL INTEREST RATE WARS
Bodnar v. The Cash Store, 2006 BCCA 260: The B.C. Court of Appeal affirmed certification of this criminal interest rate/pay day loan class action. The writer is counsel for the lead defendant in this case.
Joseph v. Lefaivre Investments (Ottawa) Ltd. (c.o.b. Cash Cow) [2006] O.J. No. 2364: The proposed representative plaintiff in this class action successfully moved to strike out the counterclaims of the defendants alleging abuse of process, negligence and conspiracy to injure by the rep plaintiff and proposed class counsel. The defendants had failed to plead material facts to support the claims.
WAIVER OF TORT ALIVE
In the Microsoft class action, Tysoe J. refused to strike out a claim based on waiver of tort. The court held that it was not plain and obvious that a plaintiff had to establish all elements of unjust enrichment for waiver of tort to be available: Pro-Sys Consultants Ltd. v. Microsoft Corporation, 2006 BCSC 1047.
In Serhan v. Johnson & Johnson, [2006] O.J. No. 2421, the Divisional Court (Chapnik J. dissenting) upheld certification of a class action pleading waiver of tort. The court stated: "There are several factors that make Reid distinguishable, not the least of which is that the claim is framed in negligence, unlike the case at bar where fraud and conspiracy forms the foundation of the claim...Reid, while distinguishable, does, however, contribute to the ongoing debate regarding the legal issues raised in this appeal. The debate taking place among legal writers and arguably in the jurisprudence demonstrates that there is room for difference of opinion as to the precise status of the doctrine and specifically whether it is an independent cause of action. I therefore agree with Cullity J.'s observation that the law with respect to this issue has not been authoritatively settled...Cullity J. was therefore correct in concluding that the issue of whether waiver of tort is an independent cause of action should be resolved in the context of a factual background of a more fully developed record. What remains to be considered is whether or not, if such a cause of action does exist, either of the potential remedies Cullity J. certified could be available to the plaintiffs in the circumstances of this case".
On the availability of constructive trust, the court stated: "there is considerable merit to the defendants' arguments about the problems the plaintiffs have in meeting the four requirements set out in Soulos for the remedy of a constructive trust based on wrongful conduct. The same can be said about the concerns the defendants have identified about the implications of extending this type of remedy in this type of situation. However, these arguments and concerns are not only open to debate but also engage important policy issues. It follows that they should be examined fully and resolved on the basis of a complete factual record, not in the course of a procedural motion."
On the availability of an accounting, the court stated: "Clearly, there has been a sustained debate about whether it is appropriate to award proprietary disgorgement for wrongdoing that has not involved the appropriation of property previously held by the plaintiff. This class action suit gives the courts of this province an opportunity to examine the purpose behind the remedy of disgorgement in the con-text of the CPA, legislation specifically intended to correct the behaviour of wrongdoers"
The court also upheld the common issues relating to punitive and aggregate damages.
TRAVEL CLASS ACTION TOSSED IN SASKATCHEWAN
Walton v. Mytravel Canada Holdings Inc. 2006 SKQB 231: The plaintiff applied for certification on behalf of himself and the other passengers of an international flight being Flight 361 from Punta Cana, Dominican Republic, to Regina and Saskatoon, Saskatchewan, Canada, on January 21, 2004. The flight was delayed for about an hour and a half at the Punta Cana airport as a result of several evolving mechanical difficulties referred to by the pilot as a "creeping delay" resulting in uncomfortable conditions on the airplane for the passengers. The court held that the claim was governed by the Montreal Convention. Given that there were no allegations of "bodily injury" as required by the Convention, the claim was dismissed. The court refused to allow an application to amend, as the Plaintiff had put forward evidence as to the conditions, and it was clear that the required threshold could not be met.
The court went further and held that there was no identifiable class stating: "Even in the event any of the passengers were entitled to pursue a claim, there is no properly identifiable class. As stated earlier, there are too many variables in the claims for negligence, unlawful confinement and breach of contract." With respect, it is clear that the court was "mushing" its finding on the other elements with this aspect of the certification test, as there was clearly an identifiable class. The court also found there were no common issues, and that a class action was not the preferable procedure. Again, the findings were clearly coloured by the court's view of the merits. Indeed, the only Canadian case cited on preferability was Sutherland v. CRC, an Ontario case long since confined to the dustbin of certification history, and questioned by a subsequent court required to try an individual action involving the same facts.
PLAINTIFF ORDERED TO PAY NOTICE COSTS
James v. BC (unreported, August 26, 2005): The court ordered the Plaintiff to pay the cost of notice given that there was no evidence requiring a contrary order and it appeared that the costs would be less than $10,000.
CLASS CLAIM DISMISSED ON THE MERITS
In a further motion in the same litigation the defendant's application to strike the plaintiff's action was allowed. The facts upon which the action was based were the same as the previous action brought by the class' union, the consent judgment dismissing the union's action was final, and although the parties were not the same, their privies were the same: James v. BC, 2006 BCSC 873.
ONTARIO COURT OF APPEAL CONTINUES ON LIBERAL PATH
In Hickey-Button v. Loyalist College, [2006] O.J. No. 2393, the Ontario Court of Appeal overturned lower court decisions and granted certification of an action involving the failure of the defendant school to provide an advertised fast-track program for entry into Queen's nursing program. The Court of Appeal found the following error: "The motion judge described the claims as alleging a "verbal" contract. He went on to conclude that the terms of the "verbal" contract would vary from student to student depending on the information provided to each student by Loyalist prior to the student enrolling in the nursing diploma course. The motion judge held that the merits of the negligent misrepresentation claim could also be determined only a student-by-student basis. The motion judge mischaracterized the appellants’ contract claim. The appellants maintained that the terms of the contract were to be found in the written material supplied to all students in response to their applications. The appellants did not rely on any oral or "verbal" contract. This mischaracterization of the contract claim may well have influenced the motion judge’s finding that a class action proceeding was not appropriate."
Further, "[The] motion judge was satisfied that each student would have a cause of action only if he or she could demonstrate, first an intention to participate in the "Queen’s" option upon entering Loyalist, second, that he or she would not have attended Loyalist "but for" the "Queen’s" option, and, third, that the student would have qualified for that option after two years at Loyalist. None of the three prerequisites identified by the motion judge are as a matter of law, prerequisites to a successful claim by the students in contract or negligence. If the appellants could demonstrate that a contract existed between Loyalist and the students entering the nursing program in 1997 and 1998, and that the contract included the availability of the "Queen’s" option, the students all had a claim for breach of contract if that option was not available as promised. The three factors identified by the motion judge could at the most have some impact on the damages available to individual students for the breach of the contract. The appellants have never contended that the quantification of damages raises a common issue in these proceedings."
The court also found that the Divisional Court erred in affirming the decision: "[T]hat conclusion was premised on the Divisional Court’s finding that there were no identifiable common issues. The court erred in making that finding...With respect to the contract allegation, at least the following common issues are raised:
¨ Was the relationship between Loyalist and those students who entered the nursing program in 1997 and 1998 a contractual relationship?
¨ If there was a contractual relationship, did the contract include the "Queen’s" option and, if so, what were the terms of that option?
¨ If there was a contractual relationship, and if the contract included a promise to provide the "Queen’s" option, did Loyalist breach that contract?
¨ If there was a contract and if there was a breach, do any of the general defences advanced by Loyalist (e.g. the availability of the "Athabasca University" alternative) provide a complete defence to the claims?
These common issues are central to the appellants’ contract-based claim."
OVERLAPPING CLASS AND INDIVIDUAL CLAIMS CONSIDERED
A.J.G. v. Alberta, 2006 ABQB 446: The Plaintiff filed an individual action alleging abuse and other misconduct by the Province and others. The claim overlapped with a proposed class action in which certification had not be granted, but leave to reapply had been granted. It also overlapped with another mass multi-plaintiff action filed to protect limitation periods should certification not be granted in the class action. On a stay application by the Defendant, the Court ordered that while there was nothing improper with protecting your limitation period pending certification, the filing of the additional individual action meant that the Plaintiff's participation in the multi-plaintiff action should be stayed. The court stated: "If [the proposed class action] is ever certified, the Plaintiff will presumably opt out of T.L., thereby avoiding any conflict." The court addressed other pleadings issues within the individual action as well.
MacWhirter (Binns) (Estate of) c. McGilton, 2006 QCCS 3076: The court refused to stay an individual action that overlapped with a proposed class proceeding. The court said that granting a stay would be improper given that the plaintiff had the right to opt out of the proposed class action.
DEFENDANTS CLASS ACTION CERTIFIED
Paramount Pictures (Canada) Inc. v. Dillon, 2006 OJ 2368: The Plaintiff employer sought to certify a defendants' class of retired employees in order to settle a wind up distribution of assets in a pension plan. The court required a full hearing on certification as it appeared that the initially proposed defendants class was broader than the group who were going to share in the proceeds. The parties then sought to narrow the class definition to only those who were benefiting from the distribution. The court found that there remained an issue to be considered in relation to the "Excluded Group" as follows: "The question at this preliminary stage is, I believe, whether there is a sufficient possibility that unrepresented persons may have rights that fairness and justice require that they be given an opportunity to assert and protect them. If it is beyond doubt that they have no rights, they are not necessary parties...". After receiving further submissions, the court found that no additional notice to the Excluded Group was required.
The court then proceeded to consider certification. The court held that only the narrower class definition should be certified, given that the court had already found that the "Excluded Group" had no possible claim under the cause of action requirement.
On preferability, the court considered the alterative of a representation order stating: "Apart from the troublesome question of identifying the classes of members and former members who should be represented in the proceedings, the procedure under the CPA can be eminently suited to the resolution of disputes relating to the respective rights of members and employers under pension Plans. In cases like Sutherland a representation order under Rule 10 may be preferable to certification of a separate class of defendants, or respondents, whose interests are indirect, or tangential and may - but will not necessarily - be affected by the outcome of the proceedings. However, the structured procedure under the CPA, with the special powers of the court in section 12, and the rules relating to costs, discoveries and limitations, should, I believe, ordinarily be adopted with respect to a class of defendants or re-spondents whose interests are directly in issue. I am satisfied that, in this case, it would provide the most efficient and reasonable method of achieving the legislative aims of access to justice and judicial economy."
The court distinguished the Potter v. Bank of Canada case (which held that s.37 of the CPA precluded actions where a representation order could issue) on the basis that this was a defendants' class action: "Section 37(a) is not, however, expressed to apply to cases where a representation order might be made in respect of defendants or - as here - respondents to an application. It follows, I believe, that, in a case such as this, the choice between certification and a representation order must be made after an inquiry into the preferable procedure as mandated by section 5(1)(d). Moreover, in addition to the above considerations, I note that, of the 139 members of the Sharing Group, all but 12 have been located and have retained Koskie Minsky. A representation order under Rule 10 could possibly be made with respect to the missing persons but not, it seems, with respect to the other 127 as, having retained Koskie Minsky for the purpose of the proceeding, a finding that they could not readily be served would appear to be precluded. If that is correct, the preconditions in rule 10.01(1) would not be satisfied with respect to them."
SCOPE OF EVIDENCE ON COMMON ISSUES TRIAL CONSIDERED
Collette v. Dundee Securities Corp., 2006 BCSC 820: The parties jointly sought the Court's direction on the following issue: "Having regard to the common issues which have been certified in this Class Proceeding, and having regard to the Reasons for Judgment of the British Columbia Court of Appeal in respect of the certification of this matter, is evidence of the alleged misconduct of Multimetro Mortgage Corporation in the administration of the Nanaimo Mortgage and Parksville Mortgage subsequent to the advance of all funds to the mortgagors relevant and admissible at the trial of the common issues?"
The defendant argued there may be evidence that the investors' losses were caused entirely by the tortious conduct of Multimetro after foreclosure. The court found that the evidence could NOT be called stating: "The defendant argues that this post-foreclosure conduct is relevant to the third common issue - that is, the causation issue - because it may reduce or eliminate Great Pacific's exposure for damages. I cannot agree with that argument. A fair reading of the reasons of the Court of Appeal discloses that the focus of the inquiry was whether Great Pacific owed a specific "stage one" duty of due diligence to the class members, whether the duty was breached by Great Pacific, and whether the breach of that duty caused damages to the class members. The Court of Appeal was well aware of the role of Multimetro in the Nanaimo and Parksville projects, and the fact that the class members advanced considerably more money to Multimetro than Multimetro advanced to the bor-rowers. Yet the Court of Appeal did not include quantification of the damages in the statement of the common issues, nor did it include any questions concerning the conduct of the third party Multimetro or the contributory negligence of the class members....It is not clear at this stage how any post-foreclosure misconduct of Multimetro could alter the chain of causation linking Great Pacific to the class members' losses or reduce the quantum of those losses recoverable from Great Pacific. Multimetro and Great Pacific did not work together or jointly intend the losses. As such, on the facts the Court has been asked to accept as true for purposes of this application, it appears they were concurrent tortfeasors whose independent wrongs produced one set of injuries."
ONTARIO COSTS WARS
If only our friends in Hogtown had the simplicity of a "no costs" regime....
Sutherland v. Hudson's Bay Co. Ltd., [2006] O.J. No. 2009: Counsel for the defendants sought an award of costs on the motion for partial summary judgment on the basis that they were substantially successful. Plaintiffs' counsel submitted that, for the same reason, they should receive their costs of the motion for certification. The court accepted those submissions but did not agree that anything other than a partial indemnity should be awarded. Nor did the court agree that, in either case, the costs should be made payable out of the trust funds of the pension plans to which the plaintiffs' claims relate.
In what seems to be a developing theme in Ontario, the court took a hard swing at the amount of time spent by the defendants on the summary judgment: "Although, as I indicated in the reasons for finding a lack of jurisdiction, there are some respects in which the interpretation of the VTA is not free from difficulty, the statute has been in force for approximately 47 years, its provisions should be familiar to any firm of solicitors - and certainly to one that offers its services in the area of estates and trusts - and the general nature of the jurisdiction it confers is well settled in the jurisprudence. Six members of the Defendants' litigation group docketed time for research, the preparation of motion materials and, otherwise, for the preparation and attendance at the hearing. Three of the six were solicitors of more than 10 years' standing whose time was billed to their clients at rates ranging from $ 405 an hour (rising to $ 460 an hour) for Mr. Prestage, to $ 550 an hour (rising to $ 600 an hour) for Mr. Finkelstein. Given the seniority of the lawyers involved, I do not believe the expenditure of the total of approximately 260 hours for a motion concerned exclusively with the interpretation of the VTA could possibly be justified"
The court further reduced the costs payable on this part of the motion based on the public interest provision in s.31 of the Ontario Act. The court confirmed that this section can apply to any motion in a proposed class proceeding.
The court declined to order that this cost award could be paid out of the pension fund rather than by the named plaintiffs.
On certification, the court declined to award substantial indemnity costs, holding that there was nothing unique about pension litigation that required this result.
The court also took a swing at the time spent by the plaintiffs on certification stating: "In the alternative - and on the basis of their revised bill of costs delivered in response to the Defendants' criticisms of the original submissions filed - the plaintiffs seek an award of $ 202,472.75 as their partial indemnity costs of the motion to certify the proceedings. This amount would comprise $ 139,576 for fees, $ 49,658.06 in respect of disbursements, and $ 13,238.69 as GST. Given that, as early as May 9, 2003, the Defendants indicated that they would consent to certification, I found this amount to be no less surprisingly large than that requested by the Defendants in respect of the motion for partial summary judgment. Having since received and reviewed the dockets kept by plaintiffs' counsel, I am satisfied that the fees requested are significantly in excess of those that the Defendants should reasonably be required to pay. It seems to be increasingly assumed by plaintiffs' counsel in certification [*14] cases that defendants should be required to pay the costs of a successful motion to certify the proceedings even if they have consented to the order, or have not opposed it. I do not understand why this should necessarily be the case....I do not think that, in class proceedings, one can properly ignore the fact that, when solicitors act under a contingency fee arrangement, this frees them from the significant restraints that exist when time expended is to be charged to their clients irrespective of the outcome of the litigation. Absent such restraints, the distinction between productive, and unproductive, work is easily blurred - when it is not ignored - and the indemnification principle that is at the heart of costs awards is negated. ...Over-lawyering, and an over-generous expenditure of time, are endemic in class proceedings....An additional factor that may inflate dockets is the tendency - for one reason or another - to file an over-abundance of evidence that bears principally on the merits of the proceedings."
In Gray v. Ontario, 2006 OJ 2695, the Plaintiff's sought partial indemnity costs from the Divisional Court notwithstanding that they were unsuccessful on the key position advanced on the motion regarding the authority of the government to close certain health care institutions. This was a proposed class action in which the trial court had determined in earlier proceedings should be argued as an application for judicial review. The court agreed that the plaintiffs did achieve partial success on the issue of consent for the relocation of the residents. The court granted one third of the claimed partial indemnity costs.
Larcade v. Ontario (Ministry of Community and Social Services) [2006] O.J. No. 2158: The plaintiffs successfully appealed a decision not to certify the action as a class action. The plaintiffs submitted a bill of costs of $186,293. The court held that an assessment of $60,000 was reasonable.
FORUM STAY APPLICATIONS DISMISSED
Berneche v. Canada, 2006 QJ 5326: The court refused to stand down the Quebec "mad cow" case in favour of the Ontario class action. It should be noted that there was no overlap between the class definition in the two cases, making the result (in this author's view) inevitable. Press reports indicate that the decision is being appealed.
In Lieberman v. Business Development Bank of Canada, 2006 BCCA 300, the Court of Appeal denied leave of the lower court decision declaring B.C. to be the convenient forum over Quebec. The Court of Appeal held that the chambers judge had properly relied on the following factors: (1) the defendant is a national institution which conducts business nation-wide, (2) the class proceeding would involve members from all provinces, (3) class members in Quebec were not a majority, and (4) no class members who resided in Quebec had come forward to spearhead the litigation.
CERTIFICATION ADJOURNED TO ALLOW FRESH CLAIM
In Carriere v. Bell Canada, 2006 OJ 2360, the court declined to grant certification of this "modem hi-jacking" case, but did give the plaintiff leave to deliver a fresh statement of claim within 30 days to address the issues and defects found. The court also found that the proposed class was over-inclusive in that it included people who had consented to the charges and obtained services that they did utilize. The lead representative plaintiff was found to be inappropriate because she had not attended court-ordered examinations. Also, she had failed to provide sufficient evidence to indicate that she was in the class. On preferable procedure, the court held that the defective pleading did not allow a ruling at this stage.
RAGOONANAN/NO PLAINTIFF ISSUE CONSIDERED AGAIN IN QUEBEC
In Marandola c. Fédération des caisses Desjardins du Québec, 2006 QCCS 3368 the plaintiff sought to add new defendants with whom he had no contractual dealings. The court allowed the amendments, noting that the issue could be considered further at the motion for authorization, and that at this stage it was sufficient that there was a bond alleged with members of the proposed group generally.
FOREIGN EXCHANGE CASES TO BE HEARD BY SAME JUDGE
In Marcotte c. Banque de Montréal, 2006 QCCS 2963, the court ordered that a proposed class action against the banks and a certified class action against a credit union be heard by the same judge. The banks had agreed not to oppose certification so that the cases could reach trial together.
IMMIGRATION CLASS ACTIONS CONSIDERED
Mohiuddin v. Canada, 2006 FC 664: The plaintiff immigrant in this proposed class action sought to obtain certain declarations regarding a alleged terrorist organization of which he was said to be a member. The federal government applied to strike the action. The claim was struck on the basis that (1) the key remedies should be sought by way of judicial review, (2) the defamation claim was not adequately plead.
Momi v. Canada (Minister of Citizenship and Immigration) 2006 FC 738: In this case, the court held that the application fee class action should be stayed, as they matter had to be pursued first by way of judicial review. However, the court did review the requirements for certification and signalled that the action would likely be certified if the class definition were narrowed to negate the limitation concerns.
SETTLEMENT AND CLASS FEES APPROVED
Pearson v. Boliden Ltd., 2006 BCSC 1031: Settlement of this long running securities case was approved. The settlement amount was for $1.02 million assuming opt out thresholds were not met. Class counsel sought fees at 39% as well as disbursements. This was said to equate to a multiplier slightly under 1. The court noted that the multiplier approach did not govern in B.C., and reduced the fee award to 25%, stating: "Regarding the success factor, the results achieved must be of considerable disappointment to the Plaintiff Representatives. What was originally launched as claim for in excess of $100,000,000.00 was ultimately settled for $1,000,000.00. Without necessarily importing into Canada the "presumptively reasonable rate of 30% being adjusted to special circumstances," I am satisfied that the fee available to Class Counsel should be more in keeping with awards made in decisions where the awards were in the neighbourhood of $1,000,000.00 to $3,000,000.00."
QUEBEC MOVES AWAY FROM "FIRST TO FILE" ON CARRIAGE
Cloutier c. Infineon technologies AG, 2006 QCCS 3322: The court was faced with competing class actions related to computer memory price fixing. The court held that "first to file" was not the only factor that could be considered in such situations. The court held that this was reading the Hotte case too strictly. The court held that it was proper to also consider the best interests of the proposed class. However, the court did not go on and compare the two actions, and did choose the first filed case.
DEFENDANTS APPEAL REJECTED
Roy c. Coutu, Roy v. Langlois, 2006 QCCA 825 and 826: The Quebec Court of Appeal rejected defendants attempt to appeal the lower court judgment certifying class action. The Defendants' hook to avoid Quebec's "no appeal by defendants" provision was that the judgment also separately granted the plaintiff trustee status. The Court of Appeal did not bite.
AMENDMENTS GRANTED
McColl c. Grand Prix F1 du Canada inc. 2006 QCCS 2823: Plaintiff was allowed to amend, as the changes did not amount to a new motion.
COURT OF APPEAL DISALLOWS FURTHER EXAMINATION
CIBC Asset Management Inc. c. Rabinovitch, 2006 QCCA 883: The Court of Appeal disallowed further examination of the representative plaintiff after entry of the Statement of Defence. The Court rejected the further examination as the point on which the defendant sought to examine were not relevant to the common issues, but rather were peculiar to the rep plaintiff.
CLASS ACTION AGAINST SPECIALIST PHYSICIANS CERTIFIED
Conseil pour la protection des malades c. Fédération des médecins spécialistes du Québec, 2006 QCCS 3564: The Plaintiff society brought an intended class proceeding in relation to a three day work stoppage by specialist physicians in Quebec. The defendant objected to the society's status, alleging that its interests were limited to persons permanently resident in hospitals or institutions. The court examined the objects of the society and held that they were sufficiently broad to maintain the action. However, the court did hold that the society had only authorized the pursuit of exemplary damages, and not compensatory damages. Hence the class action should also be so limited. There was an difficulty with the designated member of the society, as she had only joined several days before the hearing. However, the court held that this did not make the initial motion a nullity, but rather it was simply a procedural irregularity which had been cured.
TRAVEL CLASS ACTION TRIAL HEARD IN QUEBEC
In this merits trial of a previously certified class action, the court granted judgment for the class: Deronvil c. Univers Gestion Multi-Voyages inc. (Canada Air Charter), 2006 QCCS 3354. Class members were granted different levels on compensation depending on whether their flights were cancelled or delayed.
EMPLOYMENT CLASS ACTION REJECTED
Lachance c. Cleyn & Tinker inc. 2006 QCCS 3356: The Plaintiff sought damages for certain wage rollbacks and layoffs. The court held that there were no common questions as (1) the period of notice would depend on individual facts, (2) there had been agreements for certain payouts signed by a number of proposed class members, (3) releases had been signed in relation to certain wage rollbacks. The court distinguished Downey vs. Mitel Networks Corp, [2004] O.J. No. 5981 certifying a notice class action on the basis that (1) that case required a consideration of a uniform termination policy, and (2) all persons who signed a release had been excluded from the class. The court followed Aston c. Casino Windsor Ltd., [2005] O.J. no 2879 in refusing to certify. The court also held that the case was not well founded against the officers, directors or shareholders. The court also held that the plaintiff could not adequately represent the group because he was in the minority of those that refused to sign the release, nor could he represent the group that never received a buyout offer.
PRICE FIXING SETTLEMENTS
Fluet v. Bayer inc., 2006 QCCS 3350: The court approved a distribution protocol in this EPDM price fixing class action. The settlement had already been approved.
Union des consommateurs c. Crompton Corporation, 2006 QCCS 3355: Certification and settlement approved in this rubber manufacturing chemicals class action.
CLASS ACTION NOTICE APPROVED
See Gratton v. 2855-6512 Quebec inc, 2006 QJ 5969
CHICKEN AND EGGS: DEFENDANTS GAIN GROUND
Consumers Association of Canada v. Coca-Cola, 2006 BCSC 863: Summary judgment on the merits of this proposed deposit fee class action was granted in favour of the defendants in advance of the certification hearing.
Gauthier v. Canada (Speaker of the House of Commons), [2006] F.C.J. No. 731: This proposed class action regarding access to televised debates was dismissed as against the Honourable Peter Milliken, Speaker of the current and the last House of Commons, and Robert Walsh, Parliamentary Legal Counsel, House of Commons, on the basis that neither they personally, nor the House of Commons, as such, could be sued, and in any event, neither had any role in organizing or supervising the televised debates. The court also held that there was no cause of action against the defendant Chief Electoral Officer or the defendant broadcasters.
I WONDER IF THEY ARE APPEALING THAT?
Leave to appeal the certification decision was denied in government pension case May v. Saskatchewan, 2006 SKCA 65.
Klein v. American Medical Systems, Inc. 2006 A.C.W.S.J. LEXIS 2173: Plaintiff proposed class action against Attorney General of Canada and manufacturer and distributor in Canada of medical device used to alleviate or cure female incontinence. The Motions judge dismissed AG's application to strike. Leave was granted as there was good reason to doubt correctness of motion judge's decision as it appeared that the court had not properly applied the Anns/Cooper test.
Leave to appeal the consideration of the application to strike in the Ontario mad cow case Sauer v. Canada, 2006 A.C.W.S.J. LEXIS 2660.
The Supreme Court of Canada has agreed to hear the merits appeal by the class in the Kerr v. Danier Leather case.
Leave was denied in relation to the decision to certify a Quebec railway noise class action: Canadian Pacific Railway Company v. Gilles Paquin, et al. (Que. C.A., November 10, 2005) (31278)
PENSION CASE CERTIFIED
The Ontario Superior Court of Justice certified a class proceeding against the Canadian Broadcasting Corporation brought by a pensioner concerning the CBC Pension Plan. The Court appointed Donald Waterston as the Representative Plaintiff for the following class of persons: those people, wherever resident, together with their survivors, who were in receipt of an annuity or pension from the Canadian Broadcasting Corporation under the CBC Pension Plan (the "Plan") on December 31, 2002 and/or on December 31, 2005. Koskie Minsky acts for the class.
MORTGAGE PREPAYMENT CLASS ACTION REJECTED
Arabi v. TD Bank: [2006] O.J. No. 2072; 2006 ON.C. LEXIS 2020: Eight financial institutions were challenged in relation to their calculations of the quantum of penalties for early pre-payment of residential mortgages by their customers. The proposed representative plaintiffs were clients of Farah & Associates, an Ottawa law firm. Its principle, Farah, was a key witness in each of the actions. Farah's practice was primarily in real estate. The court held that the proposed class in each of the proposed class actions was erratically over inclusive. It included mortgage customers who had not suffered any damages as well as individuals who were not entitled to take advantage of the partial prepayment option upon discharging their mortgages. Class members could not be identified without individual examinations of each person's circumstances. The file review process required to assess those circumstances would be massive, time consuming and costly. In sum, the court held that the plaintiffs failed to establish an identifiable class. The court found that there were no common issues and a class action was not preferable, as each situation would have to be separately considered in order to decide whether an implied term should be added. The court was also very critical of Farah's efforts to locate class members, in particular suggested that he did not give them proper advice in order to generate the action.
PHONE CARE CLASS ACTION REJECTED
MacLean et al. v. Telus Corporation and Telus Communications Inc. 2006 BCSC 766: Similar to the finding in Arabi, the court held that the question of whether to imply a term into a cell phone contract did not lend itself to certification.
RAIL ACCIDENT CONSENT CERTIFICATION
See Davies v. Via Rail (unreported, August 30, 2000)
NEW ACTIONS
Alberta:
Bill Cuff has launched a multi-million dollar lawsuit against Canadian National Railway Co. that could include 500 boat owners living within 250km of Lake Wabamun in relation to last year's derailment.
Wabamun Lake resident Calvin Davey had already filed a lawsuit against CNR on behalf of those living and owning land and homes within a five-kilometre radius of Wabamun Lake's shore
An Edmonton woman has launched a class action lawsuit against Pfizer Inc. and Pfizer Canada Inc. regarding the injectable birth control drug Depo-Provera.
ONTARIO
Canadian lawyers have filed a class action lawsuit against the pharmaceutical company Bristol Myers Squibb, makers of a popular antibiotic called Tequin. The suit alleges the company was negligent in not removing the drug from the market years ago after potentially dangerous side effects became known. Siskinds acts for the proposed class.
An Ottawa man awaiting sentence for the attempted murder of his wife is launching a class action lawsuit against the Ontario government, Elections Canada and Chief Electoral Officer Jean-Pierre Kingsley because he and other prisoners were unable to vote in the 2004 federal election.
A class-action lawsuit has been launched against nearly a dozen airlines, including Air Canada, in the wake of an international investigation into price-fixing in the air cargo industry. Siskinds acts for the proposed class.
Ontario Power Generation is lead defendant in a $50-billion lawsuit filed by three people, including a former Hamilton air quality co-ordinator. The class-action suit alleges coal-plant emissions adversely affect the health of all Ontarians.
QUEBEC
Rosso v. L'Autorite des Marches Financier: Action against Quebec regulator in relation to approval of distribution of Norburg funds. Adams Gareau is counsel for the proposed class.
BRITISH COLUMBIA
Ludgwig v. Janssen-Ortho Inc.: Risperdal class action. Joe Prodor is counsel for the proposed class.
As always, let me know if there is anything I've missed. Enjoy your holidays!

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