September 2006
Monday, September 4, 2006
Ward Branch

I hope you all had a great summer. We sure did, although we finally had to face the effects of global warning. Jellyfish swarmed our beach as never before. I read later that this is most likely linked to global warming. Because the water is warmer, the jellyfish have come north. Now that, Ms. Morissette, is truly ironic.
Back to the grind! Here is your "Back to School Edition" of the class action update.
UPCOMING CONFERENCES
The Conference on Class actions of the Quebec Bar will be held this year on October 26-27 at the InterContinental Hotel in Montreal. For more information see http://www.barreau.qc.ca/formation/.

COSTS DECISIONS IN BC
Consumers’ Association of Canada et al v. Coca-Cola Bottling Company et al, 2006 BCSC 1233: The court had previously dismissed this case on a summary trial basis prior to certification. The court was then asked to consider costs. The court awarded costs to the defendants stating: "A court may in future be asked to determine whether s. 37(1) commences operation at the moment the plaintiff files a certification application, or not until the certification hearing commences, as Edmonds implies. Such an interesting question of policy and statutory interpretation aside, however, I conclude that the practice in B.C. is to apply the usual costs rules to pre-certification motions and I have been provided with no cogent reason for departing from it....After much consideration of the various factors, I conclude that the public interest elements of this case do not weigh in favour of a "no costs" award."
People of Canada v. Envision Credit Union, 2006 BCJ 1988: The court dismissed this case at the pleadings stage. The defendants sought special costs. The court did award special costs stating: "The premeditation of the attempts by Messrs. Dempsey, Darmantchev, Luinenburg, and Liong to frustrate the hearing of the Applicants' applications is illustrated in part by an internet posting made by Mr. Dempsey in November 2005. Although this posting was made in respect of a Law Society petition against Mr. Dempsey, the tactics mentioned are similar to those that took place before me. The tactics, which are described as "John's tested ways to shut down a court proceeding", suggest nonsensical repeated questioning to the court and counsel concerning their authority to appear and preside. The conduct which caused the February 27, 2006, hearing to unravel was the insistence of Pavel Darmantchev on asking the court many times "are you a public servant?" The Respondents insisted on calling on me by my first name. In unison the Respondents and their supporters in the gallery began to chant "are you a public servant?". That conduct was a deliberate orchestrated series of events intended to frustrate the court's process, delay the progress of the action, and prevent the Applicants from advancing their motions to dismiss the claims."

PRODUCT LIABILITY CASE CERTIFIED IN QUEBEC, BUT NOT IN BC
Dallaire v. Eli Lilly Canada Inc., 2006 QCCS 4233: Zyprexa case certified. The class was limited to Quebec residents, but was not limited in time.
Benning v. Volkswagen Canada Inc., 2006 BCSC 1292: The Plaintiff alleged that there was a defect in the locking system of the Jetta and other Volkswagen and Audi motor vehicles with the equivalent locking system design. The court found that the class was too broad stating " I agree with the defendant that the class description is overly broad. It includes claims by proposed class members for recovery where there has not been any break-in of their vehicle. It also raises the issue of the type of forcible attack which proposed class members may have sustained. The type of attack as demonstrated by the evidence requires that the proposed class members, if they have had a break-in of their vehicle, have had a break-in of the type which the plaintiff experienced. The plaintiff's claim is based on a particular "defect," the VW lock. The class definition includes those who may have suffered a break-in, but not with the type of attack which the plaintiff experienced. I find that the plaintiff has not established a sufficiently narrow class."
The court found there was no common issue stating: "The plaintiff's claim is premised on whether the locking system is defective. The SGA analysis is whether the locking system is reasonably fit for its purpose. In order to demonstrate that, there must be evidence to show that the members of the proposed class have experienced an attack on their vehicle similar to that made upon the plaintiff's vehicle. The defendants' evidence shows that the success or failure of such an attack varies with duration and intensity. There are many methods which third parties may employ to break into a vehicle including many methods of attack on a locking system. I agree with the defendants that there is no evidence from which I can conclude that the nature of the attack on the plaintiff's vehicle bears any similarity to that of any other class member. The results of the analysis cannot be extrapolated." The court also found that a class action was not the preferable procedure given the dominance of individual issues.

TAX CLASS ACTION DISMISSED
Roitman v. Canada, 2006 FCA 266: A proposed "misfeasance in public office" class action regarding the obligation of the Federal Govt to offset shareholder loans against s.15 shareholder benefits was dismissed on appeal. The court held that the damages were sought on the basis of an invalid reassessment made on the basis of a wrong interpretation of the law. Given that it was the very legality or correctness in law of the notice of reassessment which was at issue, the matter was clearly within the exclusive jurisdiction of the Tax Court of Canada. The Federal Court did not acquire jurisdiction in matters of income tax assessments simply because the taxpayer had failed in due course to avail himself of the tools given to him by the Income Tax Act.

APPEAL OF STAY MOTION DISMISSED
Ridley inc. v. Berneche, 2006 QCCA 984: The Quebec Court of Appeal struck down the defendants' appeal of the jurisdictional stay refusal in this "mad cow" class action. The court held that the appeal did not fall within the limited scope for appeal of decisions preliminary to certification. Further, it was not obvious that the Quebec court should stand down simply because Ontario law may apply. It also wasn't obvious that Ontario was a more appropriate forum than Quebec.

FEE APPROVED IN QUEBEC DIET PILL LITIGATION
Hotte v. Servier Canada inc., 2006 QCCS 4007: The court approved a fee of $2 million plus taxes and disbursements. The court determined that the defendants did have standing to make submissions in light of the wording of the settlement agreement. The court held that 31% on the base amount would be too high. The court applied a 1.14 times multiplier. The court also allowed class counsel to treat the fee payable to Ontario and US counsel as a disbursement of $400,000.

APPLICATION TO PRODUCE EVIDENCE ON CERTIFICATION REJECTED
Harmegnies v. Toyota Canada, 2006 QCCS 3968: Toyota had already tried once to get the court to allow it to produce evidence. The court held that the issue was res judicata.

ABORTION COSTS CASE SUCCESSFUL
Association pour l'acces a l'avortement v. Quebec, 2006 QJ 8654: In this certified class action, the court found that abortion services at private clinics should have been covered by the provincial insurance program, and ordered reimbursement of any amounts paid. The court stated "The State cannot plead immunity since it cannot make political or administrative decisions which do not respect the laws that it adopted; immunity does make it possible for the State to circumvent its own laws..." (translated). The claim for punitive damages was rejected.

FAILURE TO ADVISE OF RIGHT TO GOVERNMENT SUPPLEMENT REFUSED CERTIFICATION
Brindle v. Canada, 2006 QCCS 3981: The court held that the case did not disclose of cause of action. Nothing in the statute required the government to embark upon an advertising campaign regarding entitlement, or to advise individual claimants.

APPLICATION FOR STAY REJECTED
Syndicat general des professeures et professeurs de l'Universite de Montreal v. Goudeau, 2006 QCCS 4070: The court refused to stay this action in favour of an American proceeding. The American case was not moving quickly, the court found no conflict in allowing both cases to continue, the American case did not seek class action status, and the American case relied on different facts.
The court also rejected an application to cross-examine the proposed class representative.

APPLICATION TO EXAMINE REP PLAINTIFF ALLOWED
Royer-Brennan v. Apple Computer Inc., 2006 QCCS 4689 the court allowed the examination of the proposed plaintiff at the certification hearing. The claims were broad and knowledge was relevant, making examination appropriate. The court refused to allow the defendant to produce certain documents, stating that they were not relevant to certification.
PRICE FIXING SETTLEMENT APPROVED
La Cie McCormick Canada Co. v. Stone Container Corp, 2006 OJ 3321: A multiplier of 1.4 was awarded on the legal fees, representing about 25% of the award.

LEAVE DISMISSED IN CASSANO
Cassano v. TD Bank, 2006 OJ 2930: Leave to appeal the refusal of certification in this foreign exchange disclosure case was dismissed.

DEDUCTIBLES CASE NOT DEAD YET
McNaughton Automotive Ltd. v. Co-operators General Insurance Co., 2006 A.C.W.S.J. LEXIS 3832: With the exception of the noted action against Co-operators, all of the various salvage actions will be dismissed, once the remaining cost issues have been resolved. However, Co-operators is in a unique situation because judgment was issued in favour of the plaintiff initially. The case against Co-operators was then certified (prior to the law being re-evaluated by the Ontario Court of Appeal).
Justice Winkler has granted leave to appeal this decision, which raises unique "issue estoppel" considerations. In particular:
- The plaintiff argues that considerations of issue estoppel and res judicata dictate that Co-operators is bound for all purposes by the substantive ruling in "McNaughton 1". The plaintiff accordingly argues that Co-operators can not question the existence of a cause of action as a basis for trying to appeal Justice Haines first instance ruling certifying the Co-operators action;
- The defendant Co-operators argues that, because the action had not yet been certified, issue estoppel applies only vis-à-vis Co-operators and the named representative plaintiff.
Thanks to Ian Leach for guiding me through the residual rat's nest.
DAHL DISMISSAL UPHELD
Dahl v. Royal Bank of Canada, [2006] B.C.J. No. 1791: The dismissal of this interest rate timing case was affirmed by the B.C. Court of Appeal.

COSTS ON DISCONTINUANCE
Jongazma v. Primont Homes (Heritage Hollow) Inc. [2006] O.J. No. 2665: Plaintiff discontinued class action but also had an individual action ongoing. The court rejected the public interest pitch on costs flowing from the discontinuance stating: "[T]he plaintiff has failed to demonstrate that the allegations in the class action, which pertained to alleged intentional delays by the builder in order to take advantage of an improving real estate market, are of sufficient significance to create a public interest in the proceeding. Rather, I think such actions are very fact specific and, therefore, of limited public interest." The court awarded $24,000 in costs to the defendant, after cleaving out certain costs attributable to the ongoing individual action.

LEAVES DENIED
Sorotski v. CNH Global N.V. 2006 SKCA 77: Application by Plaintiff for leave to appeal a certification judge's decision to deny certification of a products liability case granted.
Rogers Wireless Inc. v. Frederick I. Muroff (Que. C.A., March 29, 2006)(31383): SCC dismissed leave of this proposed roaming charge class action. The Court of Appeal had agreed to send the case back to the Superior Court to decide if the arbitration clause was abusive.

CONSUMER ACTION REFUSED CERTIFICATION IN QUEBEC.
Ata v.9118-8169 Quebec Inc, 2006 QCCS 3777: The case was tossed on the basis that it did not disclose a cause of action. This case is attracting attention in Quebec because it is the first judgment to deal squarely with issues under the Consumer Protection Act which is the basis of many Quebec class actions. The court considered the presumption of reliance under Section 253 and the availability of punitive damages under Section 272. The case involved the alleged non-disclosure of an initial evaluation fee in the advertising of a fitness club. The plaintiff was advised of the challenged fee at the time she signed the contract. The court held that the section did not create a strict liability provision, and that the plaintiff had to at least show that the contract was entered into based on a "material error" flowing from the advertising misrepresentation. The plaintiff must suffer some prejudice in order to rely on the provision.
Here, there was evidence that she would have signed the contract even with full disclosure in the initial advertisement. The court stated: "If, once aware of the higher price, the consumer decides not to make the purchase, he might in principle have a claim for the expenses arising from the wasted trip to the merchant’s premises, but these would in almost all imaginable circumstances be either too trivial to litigate, or too few and too varying to be appropriate objects of a class action." Further: "Ms. Ata’s testimony that the extra cost made no difference to her aside, the determining factor is that there is no indication that the respondent franchisees charged more than an advertised or announced price. Consumers who read Énergie Cardio ads were clearly informed they would be charged more than just the monthly fee at the time of sale. They would also have to pay initial charges and sales taxes. The ads did not constitute a complete offer to contract, acceptance of which would result in an enforceable promise to contract on the terms expressed in it. (art. 1388 CCQ) nor did they hold out anything that if denied would constitute a prejudice giving rise to statutory relief under the Consumer Protection Act".
The court also held that the plaintiff could not advance a punitive damage claim in the absence of a proper claim for compensatory damages.

THE GRAVITATIONAL PULL OF THE CENTRE OF THE UNIVERSE CONTINUES
Gould v. BMO Nesbitt Burns Inc., 2006 OJ 2707: This securities class action was moved to Toronto from London, primarily on the basis that most of the key events in the underlying action occurred in that city. Centre of the Universe or Black Hole? Discuss...

ANOTHER NEGLIGENT MISREPRESENTATION CASE CERTIFED IN ONTARIO
Murphy v. BDO Dunwoody LLP, [2006] O.J. No. 2729: In this investment case, the court certified the following common issues:
(1) Whether the defendants' breached the appropriate professional standard of care in the preparation of Financial Projections for Olympia Canada dated April 7th, 2000 and, by so doing, misrepresented the financial circumstances of Olympia Canada; and
(2) Whether the defendants had knowledge that the Financial Projections prepared for Olympia Canada dated April 7th, 2000 were to be used to attract investment capital.
The court stated "I have added the reference to a misrepresentation in proposed common issue #1 as the only breaches of professional standards that would be relevant to the class members claims would be those that gave rise to a misrepresentation of Olympia's financial circumstances. The question whether such a misrepresentation had been made by implication, or otherwise, would, I believe, be determined objectively by reference to the meaning that the projections would, or could, convey to a reasonable person. If that is correct, it could be decided on a class-wide basis."
On preferability the court stated: "Although a decision on the common issues would not be sufficient to establish the existence of a duty of care, or its breach, they are principal issues that are in dispute between the parties. While reliance - and its reasonableness would remain to be determined and might be contested in respect of each class member, a resolution of the common issues in favour of the defendants should terminate the proceedings; and one in favour of the class would place the members well down the road towards the destination they would hope to reach."
The court dismissed the test case alternative stating: "The only alternative methods of resolving the claims of the class members that were suggested by Mr. Thomson were a test case or individual proceedings. Without the agreement of the parties, the court has no jurisdiction under the CPA, or otherwise, to require the parties to litigate any of the issues in a test case that would bind other members of the class. No such agreement has been made and Mr. Thomson stopped short of providing an undertaking that his clients would be willing to enter into one. Given the defendants' insistence of the individualistic nature of some of the issues, there is no reason to believe that an agreement for a test case that would resolve more than the common issues could realistically be negotiated."
The court rejected the concern that the claims were generally quite large ($50,000-400,000): "Nor do I consider certification to be a privilege to be withheld from all but the indigent and others who could not afford to bring individual actions."

PENSION CASE CERTIFIED
Dhillon v. Hamilton (City), [2006] O.J. No. 2664: The defendants did not oppose certification.

SYSTEM ACCESS FEE CLASS ACTION CERTIFICATION DENIED CERTIFICATION (SO FAR)
Frey v. BCE et al, 2006 SKQB 2005: The class action relates to system access fees charged by defendant telephone carriers. The writer acts for several carriers in B.C. and Alberta. On this certification application, the court:
(1) struck all causes of action save for unjust enrichment;
(2) found that there were common issues;
(3) found that certification of a national class action was the preferable procedure;
(3) found that the representative plaintiffs were not appropriate, as there was insufficient evidence to suggest that they appreciated or would be able to fulfill the role.
The court did not dismiss the application outright, giving the plaintiff leave to reapply with further evidence.
In related judgments:
(1) the court refused to dismiss the case against Alliant and other maritime carriers on the basis that there was no jurisdiction: 2006 SKQB 330. The court held that there was a real and substantial connection with the jurisdiction stating:
"The cause of action which I have upheld in the certification application is that of unjust enrichment. The conduct alleged to constitute that tort is common to all the defendants, including those who have brought this action. While the conduct as pleaded cannot be said to constitute a conspiracy, it is marked by commonality and one part of it did occur in Saskatchewan. At the same time the plaintiffs constitute a national class. Each has an identical claim, albeit against a variety of defendants. The Saskatchewan legislation (s. 8(2)) authorizes non-residents to participate in a class action brought in this jurisdiction. There also is authority for the proposition that there need not be a representative plaintiff with a claim against each defendant. Thus, plaintiffs can be from across Canada and their claims can be from across Canada. The question then is whether the defendants can be brought from across Canada. My answer is in the affirmative. In my opinion, there is a real and substantial connection between Saskatchewan and the facts upon which this action is based. It is true that not all the facts are based in Saskatchewan, but those which are here are the same as those elsewhere and there is a certain linkage. These circumstances bring it within s. 4(e) of The Court Jurisdiction and Proceedings Act, supra.There is no question but that a resident or non-resident of this province can bring an action here against any defendant, no matter where resident, if the claim arose here. See Moran v. Pyle National (Canada) Ltd., [1975] 1 S.C.R. 393. The question then is whether the non-resident enjoys the same privilege if that person's claim did not originate here. Section 8(2) of The Class Actions Act, S.S., c. C-12.01, suggests an affirmative answer."
The court also refused to dismiss the case based on a exclusive jurisdiction clause given that not all class members were party to it: "It has been decided that an exclusive jurisdiction clause does not prevent a person who is not party to it from commencing a class action. ... In this case before me, it appears clear that there are people who have obtained wireless services from the named defendants, but who are not bound by an exclusive jurisdiction clause. To release the named defendants from this action would not be fair to those people."
(2) the court refused to dismiss the case against proposed non-resident class members, and refused to enforce an arbitration clause. The court did strike the claim against two misnamed parties. 2006 SKQB 331. On the non-resident issue, the court stated: "It seems clear that the legislation contemplates persons participating in the action who are not resident in Saskatchewan. Were it otherwise, there would be no reason to speak of non-resident subclasses. It is also worthy of mention that there are decisions which hold that there need not be any connection between the representative plaintiff and all defendants. A connection to one defendant will suffice...Accordingly, I hold that the action was properly commenced and it cannot be set aside as to certain defendants because there is no Saskatchewan resident claiming against them. There are members of the proposed class claiming against them."
The arbitration issue was adjourned, given that its determination (based on the Ontario and B.C. case law) hinged on the preferability of the class proceeding.
The court also made certain comment on the "chicken and egg" issue, stating: "On the hearing of the several motions it was suggested that decisions be rendered in advance of the certification hearing. The main rationale was that it would avoid cost for those parties entitled to be removed from the action. With some hesitation I declined the suggestion. I am now convinced that I adopted the correct approach in waiting with respect to the application for a stay. The delay enabled me to address that subject in the context of what would be the preferable procedure. I believe it is now settled that an application for a stay based on an exclusive arbitration clause should await the certification hearing... It also was advantageous to deal with the application to strike the claim against the two defendants. That involved a consideration of whether there was a reasonable cause of action which was a relevant question in the certification application."

CRIMINAL INJURIIES CLASS ACTION DISMISSED
Glover v. British Columbia (Workers' Compensation Board) [2006] B.C.J. No. 1599: The proposed class were victims of crime awarded benefits under the Criminal Injury Compensation Act. The allegation was that their claims should have been but were not properly adjudicated in accordance with the policies contained in the Rehabilitation Services and Claims Manual used by the Workers Compensation Board for claims by injured workers. The plaintiffs sought a declaration that the decisions of the respondent in relation to them were null and void, and for relief in the nature of certiorari to quash them, and mandamus requiring the respondent to assess their claims in accordance with the Criminal Injury Compensation Act, the Workers Compensation Act, and the respondent's published policy, and that the respondent conduct appropriate medical examinations. The court rejected certification.
The proposed class and subclass definitions did not meet the requirement that they be objectively determinable independent of the outcome of the litigation. Furthermore, one of the proposed representative plaintiffs did not meet the definition of the class, as it was the defendant's finding that he had not suffered a permanent partial or total disability. The disagreement was not capable of determination without reference to the merits of the action, and it would be equally impossible to determine objectively, and without reference to the merits of their claim, whether or not other potential class members came within the class definition. The claims of any additional class members would likely be complex and financially nuanced, and this weighed against certification, as even if common issues were resolved, it would not result in the resolution of any of the individual claims. As such a class proceeding would not be the preferable procedure for the fair and efficient resolution of the common issues. The court stated:
"Here, the obvious alternative to certifying a class proceeding is to have the individual applications of the present two petitioners heard and determined. The Judicial Review Procedure Act provides for the summary disposition of proceedings. A hearing of their cases could determine whether the respondent was, as they assert, required to follow the policy that it had adopted in respect of workers compensation claims. If it were determined that the respondent acted without jurisdiction in failing to apply its written policy, then any declaration made by the court to that effect could be relied upon by other similarly placed claimants."

INDIAN RESIDICATION SCHOOLS SETTLEMENT
Sparvier v. Canada (Attorney General) [2006] S.J. No. 441: The notice of motion for approval of this settlement is set for September in Saskatchewan. In advance of that hearing, the defendant Canada applied by notice of motion for an order permitting it to have further and better access to the files of Merchant Law Group relating to work done for class members. Filed in support of that application are affidavits sworn by The Honourable Frank Iacobucci, Q.C., the Federal Representative who led negotiations with interested parties which resulted in a Settlement Agreement, and by Edward Nagel, a chartered accountant with Deloitte & Touche LLP. The application was scheduled to be heard on July 4, 2006. The Merchant Law Group applied for an order striking out most of the affidavit of Mr. Iacobucci and significant portions of the affidavit of Mr. Nagel.
As part of the settlement, Canada and Merchant Law Group signed a Merchant Fees Verification Agreement ("MFVA") which provides for payment of fees to Merchant Law Group upon completion of a verification process.
Merchant's primary complaint was that the affidavits were on information and belief in an application seeking a final order. The court rejected any concern in this respect stating:
"I do not accept the proposition that Canada has applied for a final order for three reasons. First, I am not persuaded that Merchant Law Group is not a party to this litigation: an application for approval of its fees pursuant to s. 41 of The Class Actions Act, S.S. 2001, c. C-12.01, will follow certification of this action as a class action; and approval of its fees has specifically been made part of the motion for approval of the Settlement Agreement. Second, the fundamental dispute between Merchant Law Group and Canada relates to the fees to be paid to the former by the latter. The order requested by Canada giving it access to further information will not finally determine that dispute. Third, the application by Canada does not seek access to any information that might be protected by solicitor-client privilege. On the contrary, Canada applies for an order requiring Merchant Law Group to comply with its verification obligations in a manner that would provide appropriate protection for solicitor-client privilege. Having concluded that Canada's application is an interlocutory motion for the purpose of Rule 319, it follows that affidavits sworn on information and belief, with the grounds thereof stated, may be admitted under special circumstances. The affidavits of Mr. Iacobucci and Mr. Nagel contain considerable information that-to use the terminology of Rule 319-they are able to "prove" of their own knowledge. To the extent that the affidavits contain statements based on information and belief, the grounds of the belief are generally identified or are apparent from the context in which they are made. Finally, the circumstances justify the use of most of the information contained in the affidavits: where the deponents do not have personal knowledge of the matters stated, they are in the best position to provide the evidence in a coherent and efficient fashion."
The court did agree to excise certain parts of the affidavits on other grounds, including a sentence that stated: "My colleagues and I were approached on various occasions throughout the negotiations by other plaintiffs' counsel raising concerns about the client recruitment efforts of MLG and describing instances in which MLG was purporting to act for former students who were in fact represented by other lawyers."
The court rejected the objection that the affidavits violated the parol evidence rule stating: "The information contained in Mr. Iacobucci's affidavit relating to the discussions and representations appear to explain and supplement, rather than contradict, the written agreement. Specifically, it clarifies what it was that required "verification" pursuant to both the MFVA and the Settlement Agreement. In any event, if in due course any of the statements are found to be irrelevant or in conflict with either agreement, they can be ignored rather than struck from the affidavit."
In further proceedings (Sparvier v. Canada, 2006 SJ 506), Canada sought an order that Deloitte and Touch have access to time records and other material. Canada accepted that some of its material was privileged, but argued that any privilege was waived by Merchant. The court held that it had not been waived by each client.
The court rejected held that the motion was premature stating: "If the orders sought by Canada are viewed as requiring specific performance of an agreement, the court could not make them without first assuming that the agreement is valid, enforceable and free from ambiguity. It would also be necessary to assume that MLG has not met its obligations under the agreement. Those are the very questions that will be central to the pending application to approve or establish the fees and disbursements payable to MLG. If the application is viewed as one seeking pre-trial discovery from MLG, it is important to note that this proposed class action has not been certified, and that the Settlement Agreement and the Merchant Fee Verification Agreement have not bee approved. Again, a litigation base for discovery must be established and contested issues of validity, enforceability, and interpretation must be dealt with before discovery obligations can be clarified."
The court also relied on Rule 86 of the Queen's Bench Rules which state:
"86(1) An application for approval of an agreement respecting fees and disbursements must be brought after:
(a) judgment on the common issues; or
(b) approval of a settlement, discontinuance or abandonment of the class action.
(2) The application pursuant to subrule (1);
(a) shall be made to the judge who presided over the trial of the common issues, or who approved the settlement, discontinuance or abandonment, as the case may be, and
(b) shall be made on such notice to class members as is required by the court.
(3) Where, on an application pursuant to subrule (1), the court determines that the agreement ought not to be followed, the court may amend the terms of the agreement."
The court stated: "Pursuant to Rule 86, an application for approval of an agreement respecting fees and disbursements must be brought after approval of a settlement. That is so because only then is the court in a position to consider relevant factors which may include, in addition to the overall fairness of the fee agreement, the competing positions of the parties in the law suit, the risks and probable costs of trial, and whether the proposed settlement is fair, reasonable and in the best interests of those affected by it. The sequence in which issues are to be addressed has been prescribed by Rule 86 and the court should not alter the process. Again, this application is premature."

PAY DAY LOAN UPDATE
Bodnar v. Payroll Loans Ltd., 2006 BCSC 1132: This BC case was certified. The writer is counsel for one group the defendants.
Tracy v. Instaloans Financial Solutions Centres (BC) Ltd., 2006 BCSC 1018: Another payday loan case was certified. The court also granted a Mareva injunction and ordered production of a financial disclosure affidavit. Leave to appeal was granted: 2006 BCCA 373. A request for a stay of the Mareva injunction was dismissed, but the court ordered that the affidavit be filed under seal until the appeal was decided.
MacKinnon v. Moneymart: The Court of Appeal dismissed an application for leave to appeal the trial judge's decision varying her initial certification dismissal order by converting it into an adjournment.
Kilroy v. AOK Payday Loans, 2006 BCSC 1213: First merits decision in a certified pay day loan case was issued in favour of the plaintiffs. The court found that s.347 was intended to deal with small loan companies and not just loan sharks (para.40). She found no need to consider individual circumstances in deciding whether the "over 60%" amounts should be repaid (paras.44-46). She found that the contracts themselves violate the consumer protection statute (para.67). The issue of the appropriate relief was deferred, in particular whether the case justified imposition of a constructive trust or damages on top of any restitutionary award.

AMENDMENTS TO CLAIM REJECTED
CHS v. Alberta, 2006 ABQB 528. The court rejected certain proposed amendments to the claim. The writer is co-counsel for the defendant Province.

ALBERTA ON RAGOONANAN
Gillespie v Gessert, 2006 AWLD 2029: Certification was rejected in this Alberta investment case on the basis that there was no cause of action disclosed against all defendants. The proposed representative plaintiff had not had dealings with all of the defendants. The Court held that s.2(4) of the Alberta Act (allowing appointment of non-plaintiffs as representatives) did not cure this fundamental deficiency. The court stated that plaintiffs with causes of action against all defendants should have been named in the proceeding.
INTERVENTION APPLICATION REJECTED
Deronvil v. Univers Gestion Multi-Voyages Inc., 2005 ACWSJ LEXIS 10038: Applicant company sought leave to intervene in class action to recover amounts paid to charter travel company when flights were cancelled causing damages. The Plaintiffs were individual ticket purchasers. The applicant was sales representative and wholesaler for charter travel company, which re-paid losses to its customers and sought to recover same on subrogated basis. The class action had reached trial stage and evidence was completed. The court held that the applicable provision of Civil Code of Lower Canada (Que.) did not permit corporate entity to be member of group in class action and in any event, the issues between applicant and present plaintiff group were not identical.
CHICKEN AND EGGS
Al-Hazari v. Quizno's Restaurants (unreported, June 22, 2006): Court ordered that summary judgment motion proceed with certification. Good analysis of the policy considerations by Cullity J.

PLAINTIFF'S ABILITY TO BEAR COSTS
MacKinnon v. Ontario Municipal Employees Retirement Board: 2006 A.C.W.S.J. LEXIS 3072. The court ordered that the representative plaintiffs provide court with evidence of ability to meet costs award In subsequent proceedings, the court concluded that an indemnity from CUPE in favour of representative plaintiff with respect to costs of action was sufficient to meet that order.

NEW FILINGS
British Columbia:
A class action challenging certain life insurance premiums has been filed against Industrial Alliance Pacific. Camp Fiorante Matthews acts for the proposed class, and the writer has been appointed to act for the Defendant.
Federal Court:
A B.C. aboriginal woman has launched a class-action lawsuit against the Correctional Service of Canada over the classification of aboriginal women serving time in federal jails.
Ontario:
Palaire Roland has commenced a class action on behalf of the proposed class against BMO Nesbitt Burns in relation to certain foreign exchange charges.
A class action has been filed in relation to losses and disruptions created by a native blockade in the County of Haldimand. John Findlay acts for the proposed class.
New Brunswick:
New Brunswick firm Barry Spalding filed a proposed Agent Orange suit.

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