August 2007
Sunday, August 12, 2007
Ward Branch

After 3 weeks where my main concerns were (1) when is low tide?, (2) where do jellyfish go after a storm?, (3) where is the damn flyswatter?, I must return in 3 short days to real life. To ease the transition, I start by modifying my morning practice of basking in the sun, to wallowing in the recent class action case law.
As always:
(1) let me know if I've missed anything;
(2) you can catch up on old reports on the blog at http://classactionsincanada.blogspot.com/

NEW BRUNSWICK STATUTE IN FORCE
See: http://www.canlii.org/nb/laws/sta/c-5.15/20070717/whole.html
I'll be giving a couple of lectures to the CBA-NB (September 7) and at UNB (September 10) to introduce New Brunswickers to all the fun.
This just leaves PEI and Nova Scotia without provincial statutes.

MAD COW UPDATE
Berneche v. Ridley, 2007 QCCS 2945: Quebec Superior Court Justice Richard Wagner granted authorization for a class action suit against the Federal Government.
Notably, on the class rep, the court stated: "Even if the Court notes the divergences between the professional associations to which Mr. Bernèche belongs and his own views concerning the opportunity to file a class action, this divergence of opinion alone does not prevent Mr. Bernèche from arguing that he could adequately represent the beef producers, based on the allegations of his motion."
In Ontario, the Court of Appeal affirmed the decision failing to strike the mad cow case on the pleadings: Sauer v. Canada, 2007 ONCA 454.
For the views of some of the intervenors in these cases, see the following link: http://www.eskimo.com/~nickz/bse/moo2.html

ARBITRATION CLAUSES UPHELD BY SCC
Dell Computer Corp. v. Union des consommateurs, 2007 SCC 34: The court upheld the arbitration clause in this proposed Quebec class action holding that (1) there was no "foreign element" allowing the court to avoid the operation of the clause under Article 3149 of the Civil Code, (2) the fact that it had to be accessed by a hyperlink did not make the clause an "external" clause allowing avoidance under Article 1435, and (3) the fact that it was a class action did not mean that it was a matter of "public order" allowing avoidance under Article 2369. Unfortunately, there was no discussion of the appellate authorities from Ontario and B.C. that had refused to enforce arbitration clauses under local statutes. It would have been helpful to have the SCC synthesize and rationalize the decisions, even if it were just a matter of pointing to the differences between the statutes. This is particularly so, in that one of the basis underlying the court's conclusion was that the class action did not create new rights, which was an argument relied on heavily by the unsuccessful defendants in cases like Smith v. Moneymart and MacKinnon v. Moneymart.
A parallel case was also dismissed in Rogers Wireless Inc. v. Muroff, 2007 SCC 35. This case did not involve any foreign element, but did require an assessment of whether the arbitration clause was abusive. The court held that this was an issue of mixed fact and law that should be first considered by the arbitrator.
It should be noted that the Quebec legislation (as in Ontario), has since been amended to restrict the use of arbitration in consumer situations. It will be interesting to see if defendants seek to make use of these decisions to drive more matters to arbitration.

CRIMINAL INTEREST RATE UPDATE
Markson v. MBNA Canada Bank, 2007 ONCA 334: The Court of Appeal affirmed certification of this cash advance case. The court found that a trial judge could have found that this was an appropriate case for an aggregate assessment of monetary relief under s. 24 of the Class Proceedings Act: "In my view, condition (b) [of section 24(1)] is satisfied where potential liability can be established on a class-wide basis, but entitlement to monetary relief may depend on individual assessments. Or, in the words of s. 24(1)(b), where the only questions of fact or law that remain to be determined concern assessment of monetary relief."
Accordingly, that section, together with the statistical sampling methods permitted by s. 23 of the Act, would have addressed the individual assessment concerns identified by the motion judge.
The court also found that the availability of the voluntariness defence could be considered as a common issue: "However, that defence would apply across the class. It is not apparent to me why decisions, such as the date of repayment, would give rise to a voluntariness defence in one case and not another. At least at this stage, I cannot see why it will be necessary to determine the application of the defence on an individual basis. Accordingly, in my view, the possible availability of a voluntariness defence does not stand in the way of certification. I would therefore include the following as a common issue"
The court also found that the motion judge erred in his analysis of whether a class proceeding was the preferable procedure. "This was manifestly a case where a class proceeding was not only the preferable procedure, but also the only viable procedure for remedying the alleged wrong and calling the alleged wrongdoer to account."
The court set out the following principles in relation to the preferability analysis:
"(1) The preferability inquiry should be conducted through the lens of the three principal advantages of a class proceeding: judicial economy, access to justice and behaviour modification;
(2) "Preferable" is to be construed broadly and is meant to capture the two ideas of whether the class proceeding would be a fair, efficient and manageable method of advancing the claim and whether a class proceeding would be preferable to other procedures such as joinder, test cases, consolidation and any other means of resolving the dispute; and,
(3) The preferability determination must be made by looking at the common issues in context, meaning, the importance of the common issues must be taken into account in relation to the claims as a whole."
Bodnar v. The Cash Store Inc. 2007 BCCA 366: Leave to appeal an order allowing a plaintiff to reapply to add certain defendants was dismissed. The writer is counsel for the existing lead defendant in this action.
Smith v. Vancouver City Savings Credit Union, 2007 BCSC 771: Application by defendant Credit Union for order dismissing plaintiff's claim as barred by six-year limitation period. The Plaintiff commenced proposed class action alleging overdraft charges incurred in 1996 constituted interest at criminal rate. The application was dismissed as the court held that a ten-year limitation period applied. The remedial constructive trust claimed by plaintiff in this case fell within definition of trust in B.C.'s Limitation Act.
Parsons v. Coast Capital Savings Credit Union, 2007 BCCA 247: The Court of Appeal maintained certification of this overdraft class action. However the court did amend the common issues to allow for the possibility that there may be equitable considerations barring recovery.
Smith v. National Money Mart Co. [2007] O.J. No. 2160 (Div.Ct.): Leave to appeal certification was dismissed.

CLASS COUNSEL REMOVED FROM CASE DUE TO CONFLICT
Richard v. BC, 2007 BCSC 1107: An impasse was reached in this abuse case due to conflicting instructions from two representative plaintiffs. One representative plaintiff applied to remove class counsel. Class counsel brought a motion to remove that representative plaintiff due to an alleged conflict. The court removed class counsel. After reviewing the Canadian and US authorities, the court stated:
"From the above authorities and the provisions of the Act, I extract the following principles:
(1) The representative plaintiff has the mandate to act in the best interests of the class as a whole.
(2) The representative plaintiff has a significant role to play in the proceedings after certification. He or she acts in the class' best interest by directing litigation, instructing class counsel and authorizing settlement.
(3) Class counsel has a solicitor-client relationship with class members and owes the duties and obligations that arise as a result of that relationship to the class members. Class counsel also has a duty to act in the best interests of the class as a whole.
(4) Class counsel also has a solicitor-client relationship with the representative plaintiff and owes the duties and obligations that arise as a result of that relationship to the representative plaintiff. This includes a duty of loyalty to the representative plaintiff, which includes the duty to avoid conflicting interests, the duty of commitment to the client's cause and the duty of can-dour.
(5) While class counsel has a significant role to play in the conduct of pro-ceedings, class counsel may not ignore the wishes of the class representatives in making fundamental litigation decisions and may not prosecute an action with unfettered discretion.
(6) Given the relationship between the class, class counsel and the representative plaintiff, there is a risk that conflicts may arise. Class counsel must be conscious of the conflicts that may arise between the representative plaintiff and other class members, or between his or her own interests and the interests of the class members.
(7) When conflicts arise and cannot be resolved between the class members, class counsel and the representative plaintiff, an application for directions under s. 12, or for approval of the settlement pursuant to s. 35, should be made to resolve the conflict.
(8) The ultimate responsibility to ensure that the interests of the class members are not subordinated to the interests of either the representative plaintiff or class counsel rests with the court."
The court then applied these principles to the facts of the case stating: "...I have concluded that Poyner Baxter has breached its duty of loyalty to Mr. Mcarthur and that the breach cannot be excused by the fact that it is acting as class counsel. The steps taken...above go beyond merely acting in the best interests of the class. Poyner Baxter has ignored the interests of the representative plaintiff. It has done so based on its assessment that Mr. Mcarthur was providing instructions on the basis of his own personal interests. The steps Poyner Baxter has taken since the issue came to the fore in July, 2006 have been taken to limit or eliminate Mr. Mcarthur's involvement with the class proceeding and, in particular, with the settlement discussions. These steps were taken without consultation, and were clearly contrary to his interests and the interests of some of the other class members. While I have arrived at this conclusion, I do not intend to suggest that the steps taken by Poyner Baxter were motivated by anything other than their views as to what was in the best interests of the class as a whole. Nevertheless, the actions taken amount to a clear breach of both the duty of commitment to the client's cause and of the duty of candour."
In terms of the appropriate remedy being removal, the court stated: "When conflicts arise, class counsel should bring those conflicts to the attention of the court for resolution. Here, counsel has attempted to remove Mr. Mcarthur as representative plaintiff and to remove a significant portion of the class members through amendment of the class definition. Poyner Baxter has attempted to make the fundamental litigation decisions by ignoring the wishes of the representative plaintiff. Poyner Baxter is attempting to exercise its discretion to become "in fact, the representative of the class"."
The writer is co-counsel for the Crown in this matter.

NORBURG COLLAPSE UPDATE
Pellemans c. KPMG, s.r.l./s.e.n.c.r.l., 2007 QCCS 1896: After failing to secure certification against KPMG in a broader Norburg class action, the plaintiff refiled against KPMG alone. This time, KPMG consented to certification. At a more general level, the court reaffirmed that the judge has a discretion in his consideration of each of the required elements on certification, rather than a more global discretion to certify even if one of the requirements is not met.
Vézina c. Société de fiducie Concentra, 2007 QCCS 1897: Case against trustee of Norburg funds certified.

QUIZNO'S CASE UPDATE
2038724 Ontario Ltd. v Quizno's Canada Restaurants, 2007 OJ 2404 (S.C.J.): The lower court refused to dismiss this case on pleadings motion. Leave was declined for, among other reasons, a concern about "litigation by instalments".
The case subsequently settled: See http://www.gsnh.com/quiznos/finaljudgment.pdf

FORUM CONSIDERED IN LOSS OF INFORMATION CASE
Cole v. Prairie Centre Credit Union Ltd. 2007 SKQB 184: There was a dispute about whether the case should be heard in Regina or Saskatoon. The judge chose Saskatoon. For a fascinating discussion as to whether Beechy is closer to Swift Current, or Allan is closer to Regina, you must read the decision in all its glory.

HOFFMAN APPEAL DISMISSED
Hoffman v. Monsanto, 2007 SKCA 47: The court dismissed the appeal from a decision refusing certification of this genetically modified seed dispersion class action. Interestingly, the court rejected the "plain and obvious" test under the cause of action requirement stating:
"In the case of section 6(a) of The Class Actions Act, which calls upon a representative plaintiff to satisfy a judge that the class has an apparently authentic or genuine cause of action, there is in our judgment no more effective and balanced and functionally appropriate way of setting the tenor and tone of the matter than to expect the representative plaintiff to satisfy the judge that there exists a plausible basis in principle and presumed fact for supposing the defendants could be held liable. On the whole, then, we see no tenable basis for resort to the "plain and obvious test" in relation to section 6(a) of the Saskatchewan statute. The test might be resorted to for the limited purpose of supplying the presumption the pleadings disclose a cause of action in fact, as distinct from principle, but even then it serves no useful purpose, for the section itself falls to be so construed. In short, we think the test is best left to Rule 173 [The Saskatchewan Rule of Court on striking pleadings], where it was designed to operate and where it has long operated effectively"

EVACUATION ORDER FOLLOWING DERAILMENT CASE REFUSED CERTIFICATION
Brooks v. Canadian Pacific Railway Ltd. 2007 SKQB 247: A train carrying ammonia derailed and an evacuation order issued. However, there was no evidence or pleading that any ammonia actually escaped. A class action was commenced by the Merchant firm.
The court applied the new Hoffman test to the cause of action requirement i.e. that their be an "authentic or genuine cause of action". The court found that plaintiffs must satisfy the court that there exists a plausible basis in principle and presumed fact for supposing that the defendants could be held liable.
On the negligence claim, the court stated: "Here, there is no pleading which asserts directly that any person suffered physical injury. The plain-tiffs seek, however, to characterize the claims for stress, worry, interference with psychological integrity and mental security as claims for personal injury. The courts have recognized claims for "nervous shock" as claims for personal injury. But the courts have limited the claims of nervous shock to plaintiffs who suffer symptoms of a "recognizable psychiatric illness". It must be something more than general emotional upset....It is then necessary to ask whether this is a situation in which a new duty of care should be recognized....Like the situation in Nespolon, supra, here, there are numerous policy reasons against expanding the type of damage which is included in the tort of nervous shock to stress and worry, such as is claimed in the circumstances here. Firstly, to allow stress and worry to be compensable would be to expand enormously the scope of the tort. Stress, worry or mental distress are transient and less significant types of harm than psychiatric illness or nervous shock. It is extremely difficult to assess such insignificant harm. Secondly, to expand the tort to such lengths would run the risk of indeterminate liability."
On pure economic loss: ". I am not satisfied that the mere physical closeness of the plaintiffs and defendants is sufficient to establish a close and direct relationship, making it just to impose a duty of care upon the defendants toward the plaintiffs for economic loss.... It is my conclusion that the case before me does not present a situation in which the courts would extend the categories for recovery of pure economic loss."
On the "Interference with the Sacredity of Property" claim: "[It] is not property damage, but pure economic loss. It is the loss of use and enjoyment of property. I have determined that the claim for pure economic loss is not an authentic cause of action as the previous analysis respecting economic loss has addressed."
On Rylands v. Fletcher: ". The plaintiffs have pled no facts which suggest that the anhydrous ammonia and/or the train cars escaped from the property owned or controlled by the defendants. The plaintiffs have pled no facts which suggest that the anhydrous ammonia and/or the train cars escaped in the sense of "escape" as is required by the rule in Rylands v. Fletcher." and "The law under Rylands v. Fletcher, supra, has not been extended to cover pure economic loss."
On assault: "The position taken by plaintiffs' counsel is very novel. Assault is an intentional tort. It is not a claim recognized in negligence. Even if I were to assume that there is a pleading for assault, which is very questionable, the pleadings do not assert a reasonable cause of action for assault. Assault is the in-tentional creation of the apprehension of imminent harmful or offensive contact. The conduct must intentionally arouse the apprehension of imminent harm. (Allen M. Linden, Canadian Tort Law, 7th ed (Markham, Ontario: Butterworths 2001 45 and 46). There is no pleading, nor did plaintiffs' counsel suggest, that there is anything in the facts as pled which indicate that the defendants intended that the plaintiffs would fear imminent harm."
On illegality of contract: "the real nature of the doctrine of illegality is to preclude a cause of action, not provide the foundation for on"
On the class definition, the court accepted a "claim to have suffered injury" definition stating: "The proposed definition does not require any examination into the merits of the claim. The proposed definition would enable the court to determine whether any person coming forward was or was not a class member. Although it is required that the criteria for identity as a class member be "objective" this does not mean that it cannot involve individual inquiry. They should not, however, depend upon the proof of an individual's state of mind. Here, the geographical parameters, coupled with the requirement that the person(s) were evacuated or prevented from entering or returning to the evacuated area, and that the persons are making a claim, enables the court to determine whether any person is or is not a class member."
The court accepted that there would be common issues if there was a proper cause of action.
On preferability, the court suggested that some of the claims might be preferable to resolve in a class proceeding, but not all, given their individual complexity (for example, the stress claim) (para.162-164)
The court rejected the proposed plaintiffs: "Mr. Cunningham did not reply, or ask to reply to the affidavit of Mr. Andronikos to contradict the evidence that he was not living in the evacuated area. He did not reply to the evidence which indicated that he was not evacuated from his home...The evidence indicates Mr. Cunningham does not fall within the scope of the proposed class or sub-class identified by the plaintiffs. Plaintiffs' counsel argued that Mr. Cunningham has a colourable claim as "a duty of care may be found to be owed to those on the border or outside of the evacuated area". However, the class proposed by the plaintiffs does not extend to such persons"
On the plaintiff's first proposed alternative: "Mr. Stepp has not been put forward as the first plaintiffs' choice for representative plaintiff. Nor has it been submitted that he should act together with the first choice, Mr. Cunningham. One questions his willingness to vigorously prosecute the claim in light of this... The affidavit of Glenn Stepp purports to have materials attached to it in paragraph 23, such materials being the draft Notice of Certification and draft Litigation Plan. Neither of those exhibits were attached to the affidavit and one questions whether in fact Mr. Stepp has reviewed the Notice and Plan. Further, the proposed class definition proposed by Mr. Stepp in his affidavit, is not the definition proposed by plaintiffs' counsel on the application. It seems obvious that he has had little involvement in the prosecution of the action. The other concern is with respect to the personal suitability of Mr. Stepp to act in the role of rep-resentative plaintiff. Mr. Stepp's affidavit was sworn on February 4, 2005. On April 11, 2005 Paul O'Donoghue, a claims investigator with the defendants, swore an affidavit which set out his contact with Mr. Stepp. Mr. O'Donoghue attests that Mr. Stepp came to the claims centre on August 14, 2004. Mr. O'Donoghue's observations were that Mr. Stepp was under the influence of alcohol when he attended the centre. Mr. O Donoghue deposed that Mr. Stepp admitted that he had been drinking and that when he left the claims centre Mr. Stepp said "When I leave here I am going to go and buy more beer so I can get even more drunker"."
On the second alternative: "Mr. Babychuk does not set out any personal knowledge of any other persons with claims. Mr. Babychuk indicates that he does not have the financial ability to proceed with individual litigation. He does not address how he would manage the costs of class litigation nor does he set out if some arrangements have been made by the putative class to address such costs. What is also lacking from the affidavit of Mr. Babychuk, as was lacking from the affidavit of Mr. Stepp, is any evidence that he has the knowledge, involvement or experience to properly in-struct counsel or in any way move the action forward for the benefit of the class. Mr. Babychuk was the plaintiffs' third alternative choice as representative plaintiff."

CANADA LET OUT OF SECOND HAND SMOKE CLASS ACTION
Knight v Imperial Tobacco Canada 2007 BCSC 964: The court found that there was no legal basis for the tobacco company defendant to keep Canada in this action.

LAW FIRM LET OUT OF CLASS ACTION
Kristal Inc. v. Nicholl and Akers, 2007 ABCA 162: The law firm defendant had become registered owner of the subject lands under a trust declaration in favour of other defendants. The Court of Appeal allowed an appeal by the firm, finding that there was no evidence of material non-disclosure. The partnership did what it was required to do, in selling the lands for a price approved by the investors.

SUBSTITUTING PLAINTIFFS
Birrell v. Providence Health Care Society, 2007 BCSC 668: The plaintiff's motion seeking to add the proposed new plaintiffs was granted, while the original plaintiff was, on consent, removed as a party to the action. The ultimate six-year limitation period had not expired against the hospital defendants, as the plaintiffs had only suffered nervous shock, and not physical injury. While there were no positive reasons to explain the delay in adding the proposed plaintiffs, except possibly unreasonable reliance on the existence of the plaintiff's action, there was likewise no evidence of voluntary dilatory behaviour or a deliberate and informed choice not to sue by the proposed plaintiffs. There was no evidence of prejudice to the defendants from the delay. the presumption of prejudice was weakened by the fact that the plaintiff's action was commenced as a class proceeding. Finally, the claims were exactly the same as the plaintiff's claims.

LEAVE ALLOWED OF ZYPREXA CERTIFICATION
Heward v. Eli Lilly & Co., [2007] O.J. No. 2709 (S.C.): Leave was not allowed on whether waiver or tort was a proper cause of action given that the Divisional Court in Serhan had already found that it was not plain and obvious that such a claim would not succeed. Leave was also denied on a class definition concern even though the class was not restricted to those who suffered losses: "If waiver of tort does not require proof of loss the class is certainly not overly broad."
However, the court did grant leave on whether restitution should be treated as a common issue: "But in my view it is open to serious debate whether proof of the amount to be disgorged or held in a constructive trust is a common issue.... Generally speaking, a gain is a "wrongful gain" only if it is attained through "wrongful conduct"; i.e. the wrongful conduct must cause the gain. Consequently, for the amount subject to disgorgement and constructive trust to be a common issue in this class action, the pleadings and evidence must demonstrate a way to prove on a class-wide basis that the alleged wrongful conduct (i.e "the failure to warn") caused the gain (i.e. "proceeds from Zyprexa sales")." Given that there was no evidence supporting the assumption that all class members would have refused the drug with proper disclosure, leave to appeal was granted: "While the pleadings explicitly say the primary plaintiffs would not have taken the drug if they had been informed of its alleged side-effects (see Cullity J.'s reasons at para. 47), neither the pleadings nor the evidence support the inference that all members of the class would have done the same."
Leave to appeal was also granted on preferability issue, since the weighing process of common and individual issues would be dependent on the determination of whether restitution could be a common issue.

NOTICE ISSUES CONSIDERED IN BAYCOL CASE
Walls v. Bayer Inc., 2007 MBQB 131: Application by the plaintiffs for an order to approve the form of notice of certification to be given to class members, to approve the notice program for giving notice to class members and for the defendant to pay for the costs of giving notice. The form of notice was approved subject to certain changes being made. The Defendants notice program was adopted, subject to the additional provision that notice had to be mailed to all the known class members by regular mail. (The Plaintiffs plan was rejected because it contemplated publication of a short form notice in more newspapers, but the short form that did not contain enough information to allow proper consideration of the class members' legal rights).
Plaintiffs were ordered to had to pay for the cost of giving notice. The court stated: "In Manitoba, there is no exposure to costs for unsuccessful plaintiffs. Accordingly, if the defendant is required to pay or contribute to the costs of notice and ultimately succeeds in its defence to the plaintiff's claim, there will be no basis for recovery of those costs. In this case, the notice is simply one of certification of the class action providing particulars as to the class, the nature of the action, the arrangements for payment of fees and disbursements as between plaintiffs and their counsel, that is, the economic ramifications for any claimant wishing to participate in the litigation, the provisions and ramifications for opting out or not opting out of the litigation, and the name of class counsel who may be contacted to obtain additional information. This is not a notice given in respect of a proposed settlement. Further, this is not a case where the essence of the relief sought is or is directed at behaviour modification...The general rule and starting point is that the plaintiffs should bear the costs. In an appropriate case however, the court can order otherwise whether by way of a division or sharing of the costs of notice or it can order the defendant to be wholly responsible for those costs. But in order for that to occur, it is my view that evidence must be put before the court which would support a submission that the court should exercise its discretion under section 24 of the Act as against the general rule. The evidence before me as to the anticipated costs for the plaintiffs in litigating this action is that the plaintiffs will be responsible for paying disbursements and legal fees only when and in the event an award is collected. To the extent that the representative plaintiffs are required to pay for notice or a portion .portion thereof, it will fall to class counsel to advance the disbursement as counsel has with respect to other disbursements in the case to date. In short, there is no evidence to suggest that access to justice for the individual claimants would be adversely affected by ordering that the general rule be followed."
On the national class front, the plaintiffs and defendants had agreed to a discontinuance of parallel Saskatchewan and Newfoundland cases to allow a near-national class to be pursued in Manitoba (Quebec is not included).

PRE-CERTIFICATION CROSS-EXAMINATION ALLOWED
Cole v. Prairie Centre Credit Union Ltd., 2007 SKQB 171: Application by the defendants for leave to cross-examine the plaintiffs on their affidavits filed in support of their application to certify their action as a class proceeding allowed. There is no inherent right to cross-examine on motions in Saskatchewan. But the court held that cross-examination on the affidavits was necessary to assist the court to determine whether the criteria required to certify the action as a class action were satisfied. The action involved the disclosure of confidential information.

AUTHORSON CASE KILLED BY ONTARIO COURT OF APPEAL
Authorson v. Canada, 2007 ONCA 501: The court found that the earlier judgment of the Supreme Court of Canada was final and binding and that there was no basis in fact or law for the Class to pursue its claim, or any aspect of it, once that judgment had been rendered. The court also agreed with the Crown’s submissions that properly interpreted, the relevant statute constituted a complete bar to the claim, and that the motion judge erred by applying the doctrine of equitable fraud to overcome the Crown’s limitations defence.
The judgment was hard-hitting: "Regrettably, the motion judge viewed the matter differently. Had he applied the correct principles of law to the irrefutable facts, he would, in our respectful view, have recognized the October 2003 Class motion for delivery of the judgment on its "outstanding quantum motion" as a blatant case of revisionism and dismissed it out of hand. As it is, that motion has resulted in four years of unnecessary litigation and an unfortunate drain on scarce judicial resources. "
This case has risen like a phoenix from the ashes before. We'll wait to see what the SCC does.

PRELIMINARY MERITS MOTIONS ALLOWED IN PART
Hurst v. Armstrong & Quaile Associates Inc. [2007] O.J. No. 2310 (S.C.): The defendants were mutual fund dealers who had referred clients to a portfolio and hedge fund manager, Portus, which was ordered to cease business, and was ultimately declared bankrupt. The claims in negligence, breach of fiduciary duty, breach of contract and trust were struck. However, it was not plain and obvious that the claims for knowing assistance of breach of fiduciary duty of contract could not succeed.
Sun-Rype Products Ltd. v. Archer Daniels Midland Co. 2007 BCSC 640: The defendants applied to summarily dismiss the plaintiffs' action as being statute-barred for having been brought after the six-year limitation period in the Limitation Act and beyond the two-year limitation period in the Competition Act. The court struck a paragraph from the plaintiff's reply, and dismissed the claim for postponement. The claim as a whole would not be dismissed because the plaintiffs by claiming constructive trust, might have the benefit of a 10-year limitation period. (This was a pre-certification motion with evidence, which the plaintiff consented to based on the defendants' agreement not to pursue costs).

FERRY SINKING CASE REFUSED CERTIFICATION FOR THE TIME BEING
Kotai v. Queen of the North (The), 2007 BCSC 1056: The Defendant had already admitted liability and paid virtually all property damage claims. The class was narrowed to exclude dependent claims, since such claims were not yet pleaded in the claim. The court rejected the aggravated damages common issue, since that was dependent on the individual finding of general damages. The court also rejected issues asking about the effect of the sinking on the average person, and for a categorization of injuries. The court did bless a common issue regarding the entitlement to damages for psychological injuries under the relevant statute. On preferability, the court rejected that 53 class members was too small a number to support certification. Although there had been a few other individual actions already commenced, the court found that "this is not a situation where a majority or even a significant minority of class members have commenced separate litigation"
The case fell down on the requirement for a proper representative plaintiff. The proposed plaintiff's property claim was in excess of the basic statutory limit, requiring the plaintiff to establish liability against the individual defendants and reckless conduct in order to fully recover. The court held that other class members might not have an interest in pursuing these aspects of the claim: "Accordingly, it is my view that Mrs. Kotai may not fairly represent the interests of all class members in deciding whether the limits on liability should be challenged, and she has a potential conflict with class members who may not want to pursue a claim for punitive damages or claims for aggravated damages. For this reason, there should be subclasses consisting of (a) Mr. and Mrs. Kotai and any other passengers (or their estates) who wish to challenge the limits on liability, and (b) the remaining passengers (or their estates). Mrs. Kotai can be the representative plaintiff for the former subclass, but another suitable person will have to agree to be the representative plaintiff for the latter subclass."
The court adjourned the application to allow the representative plaintiff problem to be addressed.

LEAVES (LEAFS?) TO APPEAL DENIED
Bondy v. Toshiba (Ont.Div.Ct): Computer defect case left certified. The Divisional Court reaffirmed that there is no obligation on the rep plaintiff to contact members of the proposed class to prove they exist when the facts axiomatically establish that is the case (para.23).
Bennett v. B.C., [2007] S.C.C.A. No. 100 : Employment benefits case left certified by SCC. The writer is assisting the Province of B.C. in this matter.
Option Consommateurs v. Merchant Retail Services Ltd. (c.o.b. Household Finance), [2006] S.C.C.A. No. 491: Merits award in favour of class in financing charge case left alone by SCC.
Serhan Estate v. Johnson & Johnson, [2006] S.C.C.A. No. 494: Products liability case left certified by SCC.
A.L. v. Ontario (Minister of Community and Social Services), [2007] S.C.C.A. No. 36: The SCC declined to interfere in the dismissal of certification of a special needs children's rights case.
Lachance c. Cleyn & Tinker Inc., [2007] C.S.C.R. no 90: Employment benefits case left uncertified by SCC.

ENVIRONMENTAL CASE CERTIFIED IN QUEBEC
Regroupement des citoyens du quartier St-Georges inc. c. Alcoa Canada ltée, 2007 QCCS 2691: The court certified this case, but did not certify the request for medical monitoring (holding that such was not necessary given the universal health care system). The court did not limit the case in time, holding that limitation issues should be considered at a later stage. The court did limit the class to those that had suffered damage, given that damage was an essential element of the cause of action.

MISLEADING ADVERTISING CASE NOT CERTIFIED
Bédard c. Kellogg Canada Inc. 2007 CF 516: The Plaintiff complained that Kellogg's representation that certain cereals contained 1/3 less sugar was misleading given that there were not 1/3 less calories. The court found that there was no evidence of the preferability of a class action: (1) there was no evidence to explain why at least large consumers could not or would not bring individual actions; (2) the plaintiff had not complained to the Competition Tribunal even though they admitted that behaviour modification was their prime objective, (3) there was no evidence that individual assessments could be avoided.
The court also found that the representative was inappropriate as (1) she had not done an appropriate level of research before swearing her affidavit, (2) there was no evidence of efforts to contact other misled consumers, (3) she did not understand the retainer arrangements, (4) she was not involved in the development of a case management plan, (5) there was a concern that she could not finance the notice costs.

FETAL ALCOHOL CASE STRUCK
Roberts v. Saskatchewan, 2007 SKQB 140: The plaintiffs were First Nations children who suffered from fetal alcohol syndrome. Through their litigation guardian, they alleged that the defendant Government of Saskatchewan owed a duty to them, and to other First Nations people covered by Treaty Number Six, relating to alcohol consumption by First Nations people. The case was struck. Any alcohol that had been sold to the pregnant women was sold by the Liquor and Gaming Authority, and the pleadings did not plead that the Authority had committed a tort.

BREAST IMPLANT MANUFACTURERS NOT ADDED TO FEDERAL LITIGATION
Chapman v. Canada (Minister of Health and Welfare) 2007 SKQB 151: This was an application by the Defendant Health Canada to add the major manufacturers and distributors of breast implants to an ongoing action as third parties. The court found that the plaintiffs action was focused entirely on what Health Canada knew, or ought to have known about the safety of breast implants. The court concluded that if the third party claimed was allowed to proceed for the procedural reasons requested by Health Canada, the prejudice to the plaintiffs would greatly outweigh any benefit to Health Canada.

HEP C SETTLEMENT APPROVED
The pre-86 post90 Federal settlement was approved in the 4 provinces: Adrian v. Alberta, 2007 ABQB 376 (settlement approval) 2007 ABQB 377 (fees), Desjardins v. Canada, 2007 QCCS 2797, McCarthy v. The Canadian Red Cross, [2007] O.J. No. 2314, Killough v. Canadian Red Cross, 2007 BCSC 836 (settlement), 2007 BCSC 941 (fees). The writer is counsel for the Province of Alberta in the Adrian litigation.
A few notable points:
In McCarthy, the court commented on an application to intervene by an objector: "The issue underlying the motion for leave to intervene is essentially an objection to the settlement. There is no need for such a motion in order for a class member to posit an objection to the settlement. Although the C.P.A. does not expressly provide a process for receiving objections by class members, there is now a well-established practice of combining the settlement approval motion with a fairness hearing, on notice to the class, at which objections to the settlement are routinely received and considered by the court. The statutory authority for the receipt and consideration of objections is to be found in ss. 12 and 19(1) of the C.P.A...Similarly, the C.P.A. also provides for participation by class members, if necessary, under s. 14(1)."
The court rejected the objection, which was based on the fact that secondarily infected family members were not compensated in the same manner as secondarily infected spouses. The court stated "Sexual activity is one such recognized means of transmission and certain reasonable assumptions can be made about spousal relationships in determining whom to include as class members entitled to compensation. On the other hand, siblings may be in no different position than friends, room-mates, working colleagues or others who may come into occasional or even more frequent contact with an infected person. In effect, the true arbitrary distinction would be the inclusion of a sibling class without the addition of classes comprised of similarly situated people."
The court also declined a fee request of $75,000 for the representative plaintiff: "While I have no doubt his efforts and perseverance have benefited the class through the attainment of this settlement, the statute requires that type of commitment on the part of the representative plaintiff."
In Killough, the court commented on the court consultative process: "At present, there is no authority for the commencement and settlement of a national class action. In these actions, as has been the case in relation to the ongoing administration of the 1986-1990 Hepatitis C Settlement Agreement, the judges presiding over the conduct of the separate class actions were authorized by class counsel to consult with a view to ensuring, if possible, a common result. In my judgment, the consultative process has worked effectively to the benefit of all concerned, both in relation to the earlier 1986-1990 Settlement and in relation to the current actions. As consented to by counsel, the presiding judges in British Columbia, Alberta, Ontario, and Quebec consulted with respect to the merits of the application heard by each of them, and discussed various aspects of the claims process and the administration of the settlement with which the courts will be involved in the future. Concerns were identified in relation to certain aspects of the proposal for administration, the adequacy of the administration budget, and the process by which disputes between claimants and the administrator with respect to the validity of claims would be resolved. 15 The judges asked the court-appointed monitor who serves as the liaison between the courts and class counsel, to engage in discussions with a view to overcoming the deficiencies. Revisions to the settlement agreement which resolved the concerns which had been identified were only recently finalized with the agreement of class counsel and counsel for the Attorney General of Canada."
In the fee decision in Killough, the court made certain comments about the nature of a fee approval where the fee is being paid directly by the defendant: "Section 38 is concerned with the consideration, approval, or modification of agreements between counsel and a representative member of the class regarding fees and disbursements. Counsel relies on s. 38(7) in support of the application, and not on any agreement with a representative plaintiff. In my opinion, s. 38(7) is not concerned with an agreement concluded between counsel and a defendant. It is only concerned with the available options when an agreement between counsel and client has been presented to the court for approval and approval has not be granted, or where that kind of agreement has been approved and there is a dispute regarding the computation of the amount owing in accordance with its terms. The court’s concern in relation to an agreement on fees concluded between counsel and a defendant, rather than a representative plaintiff, must be whether the agreement has diminished the fund that would otherwise be available for the benefit of the class. That is an issue for consideration on the application to approve the settlement itself. If a fee agreement between counsel and a defendant is permitted by the Act, and if there has been no collusion between the parties for the purpose of augmenting fees and reducing class benefits, the court need not be concerned with the question of whether, as between a defendant and Class Counsel, the fee agreement is fair and reasonable. Simply stated, it is not appropriate for the court to be concerned with the manner in which the Government of Canada chooses to spend taxpayers’ money, although others, such as the Auditor General, may be interested in that topic. In my opinion, there is a risk that an order of this court approving a fee negotiated between Class Counsel and the Attorney General as a defendant will be construed to confer legitimacy on the fee agreement which otherwise may be lacking.... With respect, I construe the British Columbia Act to require a different approach in the context of this settlement where, unlike the situation in Northwest and Quatell, approval of the settlement has not been made conditional on approval of fees, but an agreement has been concluded between the Attorney General and Class Counsel which endeavours to separate the question of class benefits from the question of fees. Except as it affects the reasonableness of a settlement, I do not construe the British Columbia Act to permit the court to interfere with an agreement to which a representative plaintiff is not a party when there is no linkage between the fee and the settlement, and, in the face of the statutory scheme, I cannot conclude that the court can rely on its inherent jurisdiction to do so.
The affidavit evidence on the application to approve the settlement agreement itself supported the view that the benefits available to members of the class had not been diminished by the fee agreement concluded between counsel and the Attorney General. The evidence established that the Attorney General, representing the Government of Canada, was prepared to provide benefits to the class in the amount of $962 million and no more. The affidavit evidence persuaded me that if the agreed fee to Class Counsel had been less, the fund available to the class would not have been more. Conversely, if the agreed fee had been more, the size of the fund to benefit members of the class would not have been less."
The court also commented on the requirement that class counsel provide an undertaking that they would not charge further fees in the administration of the settlement : "With respect, I see no reason why Class Counsel should be paid their full fee in whatever amount has been agreed or approved before benefits have in fact been quantified and paid to those who are members of the class. Most assuredly, Class Counsel should not expect to be paid for the settlement they have negotiated, and then paid again for correcting deficiencies in its terms or resolving problems that may be encountered in the course of administration directed at actually providing benefits to members of the class."
Notably, the court discouraged the future use of the mechanism of direct payment of fees by defendants stating: " A second issue of concern is whether a fee agreement of the kind in question between Class Counsel and a defendant which purports to be independent of the computation of benefits payable to the class violates the intent of the Act by interfering with the court’s assessment of the fairness and reasonableness of compensation to be derived by counsel in a class action. In my opinion, agreements of the kind in question should be avoided in future class actions in British Columbia. Class actions are governed by the Act. The legislation contemplates that legal fees will be considered and approved by the court in order to ensure fair and reasonable compensation for counsel. The legislation should be respected, review by the court should not be denied, and the issue of fees should be addressed in the manner stipulated by the Act, namely by review of the fee agreement between Class Counsel and the representative plaintiff. Nothing prevents parties to a class action from negotiating the amount of benefits payable to members of the class, and thereafter negotiating the amount which the defendant will contribute toward the payment of legal fees. The agreed amount, or in the absence of agreement, the amount which the defendant is prepared to pay on account of legal fees, should be added to the amount to be paid as benefits for members of the class. In the result, the defendant will pay a single sum which is the aggregate of the two components. Class Counsel should then seek approval of the fee claimed under a fee agreement with the representative plaintiff in the manner contemplated by the Act. In the event the fee claimed is approved in the amount of the top-up because it is fair and reasonable and has not diminished the benefits that would otherwise be available for members of the class, none of the defendant, the class, or Class Counsel will have been prejudiced. On the other hand, if the court concludes that the amount of the top-up is not fair and reasonable and should be increased or diminished, the members of the class will suffer the detriment of an increase, or enjoy the benefit of a decrease flowing from the court’s assessment of the fair and reasonable fee in all of the circumstances. By proceeding in the manner I have described, counsel will respect the statutory scheme and the court will be permitted to exercise its statutory jurisdiction in relation to fees, much as it would in this Province in the case of considering and approving infant settlements and fees in relation thereto"
Finally, the court stated that if it had been reviewing the fee directly, the court would not have approved the figure: " In my judgment, there is little similarity between the 1986-1990 class and the pre-1986/post-1990 class from a legal perspective. The legal effort and analysis that produced the 1986-1990 settlement was of far greater import than that which contributed to the present settlement. The current settlement benefited from the voluminous documentation and numerous protocols negotiated and produced for purposes of the 1986-1990 settlement. That documentation provided the template for the settlement in this instance. The accumulation of information relevant to the classification of injury, the probability of increased morbidity or mortality, and the quantification of appropriate financial benefits, to mention but a few of the concerns that were first addressed in the context of the 1986-1990 settlement, together with the work that has been done in relation to the administration of the 1986-1990 settlement, both before acceptance and in the course of implementation, have provided the foundation for the current settlement. In a word, the pre/post settlement agreement rode the back of the earlier agreement.
With respect, other factors do not elevate the contribution of counsel in this action to the level of contribution of counsel in relation to the earlier settlement. While time accumulated on the matter and comparative multipliers are relevant and useful, caution must be exercised when using them as benchmarks for the assessment of the reasonableness of any fee. The principal concern is that there is no means of assessing whether the accumulated time was necessary and represented a reasonable and productive use of counsel’s time. Class actions must not represent an open-ended invitation to accumulate time without regard to productivity. The accumulation of substantial time charges in relation to a legal matter does not always justify compensation at base rates or multiples thereof. Conversely, low time endeavours may justify fees that are many multiples of the book value of accumulated time... In my opinion, in all of the circumstances, a fee that was in the range of half of that agreed to by the Class Counsel and the Attorney General of Canada would have been fair and reasonable."

STATUS OF REPRESENTATIVE ACTIONS CONFIRMED
Lameman v. Canada (Attorney General), 2007 ABCA 180: The court confirmed that a representative action under the old rules is good until it is declared bad. It is not necessary to bring a motion for approval.

CITIZENSHIP LAWSUIT
Roach v. Canada (Minister of State, Multiculturalism and Citizenship), [2007] O.J. No. 1956 (S.C.): Roach commenced an application under Rule 14.05(3)(g.1) and the Class Proceedings Act 1992, S.O. 1992, c. 6 to challenge the constitutionality of that portion of the Canadian citizenship oath, that requires new citizens to swear allegiance to Her Majesty the Queen. The court refused to strike this Charter based action.
The court held that it was not abuse of process. or relitigation of the same con-stitutional challenge that was struck out by a majority of the Federal Court of Appeal in 1994:
"In my view, however, this application is not a relitigation of the same matter with the same parties and the same arguments. This is an application under the Ontario Class Proceedings Act. The application has been filed by Mr. Roach but it is being brought on behalf of himself and a similarly situated class of persons, two of whom were in court when the motion was heard. It is true that if this class proceeding is certified, Mr. Roach will be one of the class members. But he will not be the only litigant. And he may not even be the class representative. At this point, it is enough to note the following. The present application is a class proceeding. The members of the class may be in the dozens or even hundreds as this matter moves forward. The parties are different. The evidence (as is apparent from the research paper prepared by Dr. Randall White) will be different. And, given that more than fifteen years have passed since the last time this issue was litigated, the Charter arguments today will almost certainly be different, or at least more refined. ] In my view, our judicial process is not abused if a class action is brought to "relitigate" an issue more than fifteen years after a particular individual's lawsuit was dismissed, particularly where Charter rights have allegedly been violated and where the earlier proceeding was not fully litigated on the merits. The respondent refers to the decision of the Federal Court in Millership, supra. But this was a case where the litigant, Mr. Millership, tried to bring a class action in the Federal Court after fully litigating and losing virtually the same class action just two year earlier in the B.C. courts. This is not the case here.."
The court also refused to decline jurisdiction on the basis that the issue should be litigated in Federal Court stating: "The application before this court is a straightforward Charter-based constitutional challenge of a federal law. The law being challenged is a provision in the Citizenship Act that prescribes the content of the citizenship oath. Whether or not the requirement to swear allegiance to Her Majesty the Queen is constitutionally valid is not a matter with which the Federal Court of Canada (or any court) has had any significant experience or expertise."
In subsequent costs proceedings, the court awarded $3000 to the successful plaintiff: 2007 OJ 2303 (S.C.).

SEXUAL ABUSE CASE CERTIFIED
Sebastian c. English Montreal School Board (Protestant School Board of Greater Montreal), 2007 QCCS 2107: The court held that any limitation issues should be considered at a later stage, and were not grounds for dismissing certification.

VIOXX UPDATE
Grasby v. Merck Frosst Canada Ltd., 2007 MBQB 97: There were a battery of motions, primarily directed to jurisdictional issues, matters surrounding the use of counsel consortiums, and the materials relied upon by counsel.
The court ruled that:
1. The court could hear carriage prior to certification.
2. There was nothing inappropriate with the use of consortiums to advance the litigation. The court stated: "I have considered the fact that there are significant practical consequences which facilitate national cooperation in proceedings such as this. The cooperation of nineteen law firms across the country acting on behalf of plaintiffs in the putative class has clearly been acknowledged as an appropriate way to proceed...I have no difficulty in finding that the Manitoba Team, as part of or affiliated with a national team or association, can apply for carriage. There is no issue with respect to their ethics, no aversion on reasons of public policy or with respect to whether they are a legal entity. The national association of nineteen law firms across Canada, which proposes to prosecute the Vioxx matter on behalf of the Manitoba class members, has through affidavit evidence shown that the members are completely independent. Further, no one firm is in a partnership relationship with another, nor do they have any financial interest in or control over the operations of any other firm. Each is an independent body."
3. One member of the consortium could speak to an affidavit sworn by another member of the consortium: "In this case, Mr. Strosberg, a member of the steering committee of the national association, is arguing these matters on behalf of the Manitoba Team. He is, in that respect, removed from the Manitoba Team and its constituent members. That being said, it is an unfortunate practice, likely born out of necessity, to have these types of affidavits sworn by counsel or legal staff relied upon with respect to preliminary motions on class actions. They are based largely on information and belief and essentially stipulate information and material relevant to the issue as to which group might have the best personnel and plan in place to conduct these class action proceedings."
4. The Merchant firms application to strike certain aspects of the consortium affidavits was dismissed.
Hubert c. Merck & Co. Inc., 2007 QCCS 3291: The defendants asked for a stay of a proposed family member class proceeding, pending resolution of the direct user action. The court rejected this request, stating that they family members did have their own cause of action. The court also held that an application to transfer the case to Montreal was premature.

FURTHER AGROPUR FALL OUT IN QUEBEC
Imperial Tobacco Canada ltée c. Conseil québécois sur le tabac et la santé, 2007 QCCA 694, JTI-MacDonald Corp. c. Létourneau 2007 QCCA 695, Rothmans, Benson & Hedges inc. c. Létourneau, 2007 QCCA 690, Rothmans, Benson & Hedges inc. c. Conseil québécois sur le tabac et la santé, 2007 QCCA 691, JTI-MacDonald Corp. c. Conseil québécois sur le tabac et La santé, 2007 QCCA 692: The court held that the defendants' effort to appeal the certification order based on the fact that the Court of Appeal's decision in Agropur had been decided post-certification, was an attempt to undermine the rule against appealing positive certification decisions. The court suggested that the "Agropur/Ragoonanan rule" (requiring a plaintiff for each defendant), would not be as strictly applied outside the contractual arena, particularly where all defendants were alleged to have acted in concert, or were "otherwise judicially related in a manner that suggests a single resolution of the dispute would be expeditious."
Fournier c. Banque de Nouvelle-Écosse, 2007 QCCS 2647: In this registration fee class action, the plaintiff was permitted to amend its action to add a co-plaintiff to cover the cause of action requirement against one of the defendants. Efficient administration favoured a single action. There was no prejudice to the defendants.
Bell Mobilité inc. c. Boulerice, 2007 QCCA 587: The Court of Appeal rejected the defendant's attempt to appeal this decision allowing the plaintiff to add additional plaintiffs in order to address the Agropur problem.

TOBACCO CLASS ACTION UPDATE
Conseil québécois sur le tabac et la santé c. JTI-Macdonald Corp., 2007 QCCS 1869: The court considered the proper scope of examinations for discovery of certain experts.

TICKET SERVICE FEE CLASS ACTION REFUSED CERTIFICATION
Giguère c. Expocité (Réseau Billetech), 2007 QCCS 1520: The court held that there were no common questions, as each persons situation would have to be considered in order to properly consider the relevant statute regarding abusive transactions.

INDIVIDUAL ACTIONS STAYED
Caisse Populaire Desjardins du village huron c. Drouin, 2007 QCCQ 7196, Caisse Populaire Desjardins du Village Huron c. Fortin, 2007 QCCQ 6786: Given that the defendants were included in a proposed class action dealing with the same issue, the court stayed this individual proceeding.

PRE-CERTIFICATION EVIDENCE IN QUEBEC
Option consommateurs c. Infineon Technologies AG, 2007 QCCS 2205: The court held that the affidavits sought to be filed by the Defendants went more to the merits than certification.
Carpentier c. Apple Canada inc., 2007 QCCS 1883: In this Ipod Nano case, the Defendant applied to examine the rep plaintiff and to file certain material. The court allowed an examination, with careful limits on scope. It also allowed certain documentary proof relating on satisfaction of the customers and the contractual guarantee.
Brito c. Pfizer Canada inc., 2007 QCCS 2171: Defendant asked for authorization to produce evidence tending to show the quality of its product and the warnings which it had given to the health professionals. The court refused the request, as the evidence was held to go to the merits.
Deraspe c. Zinc électrolytique du Canada ltée, 2007 QCCS 2940: Application to examine rep plaintiff in proposed environmental class action dismissed. Questions concerning the steps that he undertook to establish the quantity of sulphur trioxyde released into the atmosphere and its cause and source were not relevant to certification.

FEES DETERMINED IN ABORTION CASE
Association pour l'accès à l'avortement c. Québec (Procureur général) 2007 QCCS 1796: The court approved a 25% contingency fee and $5000 for the representative plaintiff in this successful class action.

DISCONTINUANCE ALLOWED
Young c. Noranda inc., 2007 QCCS 1862: The court approved discontinuance of this class action before certification. The court found that the decision had been made after serious investigation and consideration by the plaintiff.

APPLICATIONS TO AMEND CONSIDERED
Billette c. Toyota Canada inc., 2007 QCCA 847: The Court of Appeal allowed the plaintiff's appeal from a decision which only partially granted an application to amend, and which accepted defendants complaint that the Statement of Claim extended beyond the terms of the certification motion. The court held that the plaintiff's pleading was proper.
Spieser c. Canada (Procureur général), 2007 QCCS 3311: The plaintiff sought to make certain amendments following certification, but before filing of the Statement of Claim. The court allowed the amendments, which added two necessary defendants. In a related proceeding (2007 QCCS 3313), the court rejected an application to extend the time to file a Statement of Claim.

GAS PRICE CLASS ACTION REJECTED
Option Consommateurs c. Pétroles Irving inc., 2007 QCCS 1884: Gas price class action was dismissed on the basis that there was no cause of action. The relevant statute on which the plaintiff based the complaint (which reduced taxes which the plaintiff complained was not properly passed on to consumers), did not change the principle that gas prices were set by the free market, and there was no evidence of a representation by the defendant to any other effect.

SEVERANCE APPLICATION DISMISSED
Goudreault c. Services garantie Québec inc., 2007 QCCS 2674: The defendants applied to sever the proposed class action brought against each of them. The court held that it was too early to determine the relationship of the defendants.

LEAVE DENIED OF CERTIFICATION OF PREPULSID CLASS ACTION
Boulanger v. Johnson & Johnson Corp. [2007] O.J. No. 1991 (Div.Ct.): The Divisional Court denied leave to appeal certification of this action, but added to the ongoing debate about proper class definitions stating: "It is open to serious debate whether the motions judge erred in defining the class too broadly, by including all those who consumed Prepulsid. The negligence claim requires an individual to show injury caused by the defendant's breach of the standard of care, and the vast majority of those who took Prepulsid have not experienced adverse physical effects, and therefore, the majority of class members do not have a compensable claim in negligence. While the responding party submits that there is a claim for the return of the purchase price, there is no recovery for pure economic loss in negligence except where the plaintiff effects a repair to a defective product in the interests of safety (Hughes v. Sunbeam Corporation (Canada) Ltd. (2002), 61 O.R. (3d) 433 (C.A.) at [*6] paras. 23, 26-28). Nevertheless, I am not satisfied that the moving parties have met the second part of the test in Rule 62.02(4)(b). While the decision is of great importance to the parties, in my view, there is no issue of general public importance that requires the attention of an appellate court. The certification motion is procedural and interlocutory in nature. The motions judge applied well-established principles of law to the facts of the case before her. The central issue in this motion for leave to appeal is the proper definition of the class. As Lang J. pointed out in Wilson v. Servier Canada Inc., [2000] O.J. No. 4735 (S.C.J.), denying leave to appeal a certification order, classes can be adjusted as the action develops (at para. 9)."
In a related costs decision (Boulanger v. Johnson & Johnson Corp. [2007] O.J. No. 2043 (S.C.)), the court awarded $125,000 in costs to the plaintiffs in relation to certification. The Plaintiffs had sought more than $400,000.
In a decision on notice ([2007] O.J. No. 2766 (S.C.)), the court ordered that the defendant pay the costs, but deferred issuance until the resolution of all appeals "The costs of publishing the notice of certification shall be at the corporate defendants' expense. This expense is not to be incurred until the appeals, to which I refer above, are exhausted. There shall, after the appeals are disposed of, and if they are not successful, be publication in the two proposed medical journals. There shall be notice by way of direct mail to the proposed specialist physicians, such notice to be completed after the disposition of the appeal(s) if the appeals are not successful. I have declined to burden the plaintiff with any of these costs. Were I do so, as urged by the corporate defendants, I would be undermining the objectives of the Class Proceedings Act, 1992, S.O. 1992 c. 6. The obligation to give notice to the class remains with the plaintiff but the costs of such notice are to be borne by the corporate defendants."

OTHER COSTS DECISIONS
DeFazio v. Ontario (Ministry of Labour), [2007] O.J. No. 1975 (S.C.) (Hoy J.): This was the costs disposition flowing from the dismissal of the plaintiffs' motion for certification of this asbestos exposure action. The defendants sought $270,000. The court awarded $45,000. The court stated: "I am satisfied that the certification motion can be seen as having raised a novel point of law and involving a matter of public interest. However, as noted by Winkler J. in Garland v. Consumers Gas, supra, the presence of a factor or factors in section 31(1) does not automatically justify denying costs to a successful defendant. These are not the only considerations and, in the case of the certification motion, do not, in my view, justify a complete denial of costs to the defendants....The Amended Statement of Claim contained vague allegations and few particulars. There were inconsistencies between the Amended Statement of Claim, the affidavits filed by the plaintiffs in support of their motion for certification and the plaintiffs' factum. This required more preparation by the defendants than should have been the case. The hearing of the certification motion was longer than necessary, because of this, and the manner in which the plaintiffs conducted their case. The plaintiffs sought to substantially amend their Amended Statement of Claim at the end of a three-day certification hearing, which ultimately resulted in a further court hearing. The conduct of the plaintiffs unnecessarily lengthened the duration of this proceeding and this should be reflected in the costs award."
The Ontario court continued the recent theme about the extent of effort put by defendants into certification motions stating: "As the defendants coordinated their efforts and the TTC took the "lead" on the certification motion, I was surprised by the amount of counsel hours claimed by MOL and Pinchin, and discount them by 50%." The court also discounted the fees claimed by 25% on the basis that some of the work claimed went to the merits.
The court concluded: "I noted in 2038724 Ontario Ltd. v. Quizno's Canada Restaurant Corp., ... with the exception of the significant costs awards in 2002 against unsuccessful plaintiffs by the motions judge in Gariepy v. Shell Oil Co., [...and Pearson v. Inco Ltd.,... costs awarded against unsuccessful plaintiffs in certification motions have typically been modest, relative to the actual costs incurred by the successful defendants, reflecting, I believe, the concern that cost awards not be inconsistent with the objective of access to justice."
Potter v. The Bank of Canada 2007 ONCA 442: The court held that "success was divided in this court. The appellants succeeded on one of the two major issues and the respondent succeeded on the other. As a consequence, the proper result in the court of first instance was also divided success. The motion seeking to preclude the action from proceeding as a class action should have failed. The motion seeking to strike the claim for direct distribution succeeded, as it is should have. Given that success was properly divided here and below, we conclude that neither party should pay costs to the other party pursuant to the usual "loser pays" practice. However, the appellants also claim to recover a portion of their own costs from the fund, arguing that they were acting to protect the interest of the pension plan and have been successful in being allowed to proceed with the action, save for the claim for direct distribution. We agree that this aspect of the appellants’ action warrants compensation from the fund since it does seek to advance the interest of the pension plan. Given that this aspect of the matter was only part of the litigation both here and below, it is our view that those costs should be modest. We would fix them in this court and in the court of first instance in the amount of $15,000 in total in each court, inclusive of disbursements and GST. By the same logic, the respondent was successful in protecting the fund from the direct distribution claim. It should equally be entitled to recover a portion of its own costs from the fund at first instance and in this court. Again, given that this issue was only one in the overall litigation, we would fix those costs in this court and below in the amount of $15,000 in each court, inclusive of disbursements and GST".
MacDougall v. Ontario Northland Transportation Commission, [2007] O.J. No. 2090 (Div. Ct): Certification application was dismissed in this pension case, as was the appeal to the Divisional Court. The Divisional Court considered the costs issue. The court found no special circumstances and awarded costs totalling approximately $49,000 against the plaintiffs.
Horti-Pak Inc. v. Nikko Materials U.S.A. Inc. (c.o.b. Gould Electronics), [2007] O.J. No. 1809 (Div. Ct.): On a failed motion for leave to appeal, the Horti-Pak was awarded $450 as defendant in the class action.

NATIVE TAX CLASS ACTION CERTIFIED
Picard c. Québec (Procureur général), 2007 QCCS 2122: The court agreed to certify a national class of Indians who paid the provincial tax. The court also held that it was too early to impose a time limitation on the action.

CORPORATE ENTITY DENIED ACCESS TO EXPERT REPORTS
Centre Marcel-Boivin inc. c. Société immobilière du Québec, 2007 QCCA 749: The Plaintiff wanted access to expert reports prepared in parallel class action by individuals, which case had settled. The court refused stating that the Plaintiff should tried to intervene in the class action if it felt its rights were being prejudiced, and the expert reports were confidential.

AMENDMENTS CONSIDERED IN CERTIFIED CLASS ACTIONS
Lacroix v. CMHC, 2007 OJ 1648 (S.C.): One group of plaintiffs sought to sever their claims from another group of Plaintiffs. This case had originally been certified. The court then allowed certain amendments. The court then found that the amendments rendered the case uncertifiable. The court noted the difficulties created by the bifurcated process stating: "The effect of the amendment was to convert a certified action into an uncertifiable action. This is a totally unacceptable and unfair result for the plaintiffs. As indicated this result was occasioned by the defendant's insistence that the two aspects of the motion be heard separately. Obviously neither the plaintiffs nor the court were alive to the dangers of proceeding in this fashion. As a matter of good practice, I find that it was legally incorrect to allow the amendments. The amendments should not have been allowed before the amended amended claim had properly been the subject of the class proceeding certification process. If this had been done, the plaintiffs' motion to amend would have been dismissed. "
The court unwound this error by allowing the severance of the group added by the amendments.
The remaining plaintiffs sought a further order for directions regarding proposed amendments to their claim. The court rejected this motion saying that a proper motion to certify fresh common issues should be brought.
(The court considered the costs payable in relation to the motions at [2007] O.J. No. 1649 (S.C.):
1. Severance motion. The cour found that a reasonable amount to partially indemnify the McCann plaintiffs is $ 5,000.00 all inclusive. I am fully cognizant that this results in an award lower than the $ 11,000 suggested by the defendants.
2. Directions Motion: The court stated that "As a general rule, the party obtaining the dismissal should be awarded costs. In this case however, I agree with the Lacroix plaintiffs that the estoppel issue by far consumed the greater part of the time and energy to hear the motion. The defendants conceded that the two groups of claimants would have to be split. It was easily opened to them to see that the res judicata issue was on thin ice once that split occurred. For that reason, the cost award must be substantially decreased. Keeping in mind the foregoing, I find that the defendants are entitled to a reasonable amount of costs. I fix those costs at $ 10,000 all inclusive.")
Berry v. Pulley, [2007] O.J. No. 1825 (S.C.): The plaintiff sought to amend its claim and certain common issues. The amendments were granted. The court also allowed the defendant to discover two class members other than the representative plaintiffs. The court stated: "The evidence in this case and, in particular, the interpretation to be placed on it, is likely to be very much in dispute. It is not a case where each class member entered into a discrete though similar transaction with the defendants. Numerous individuals were involved in the communications between Air Ontario's MEC and its pilots and in the meetings of the pilots and the merger representatives of the two groups. The proceeding has been certified in respect of a class represented by defendants - divided into subclasses - as well as a class represented by the plaintiffs. In these circumstances, I do not believe it is a sufficient response to the defendants' request to say that the persons already examined could have been asked to obtain information from other members of the class represented by the plaintiffs. The amount that the plaintiffs seek to recover in the proceeding is substantial and there is no suggestion that an additional examination of the two individuals would be oppressive, or would result in undue annoyance, burden or expense. In my judgment, the examination should reasonably be considered to be necessary in view of the claims and defences asserted." (at para.50)

PENSION SURPLUS CASE CERTIFIED
CSL Equity Investments Ltd. v. Valois, [2007] O.J. No. 1585 (S.C.): A defendant class proceeding was certified on consent so that the applicant could determine the right to certain surplus funds. A proposed settlement was in the offing. The court stated: "Where certification is sought on consent, in the context of the settlement, the requirements of sec-tion 5(1) are less rigorously applied than in the context of litigation." (para.5)

CHICKENS AND EGGS
Stewart v. GM (June 8, 2007): The court refused the defendants motion to examine the representative pliantiff's vehicles prior to certification. Leave was also dismissed (June 26, 2007).

PRODUCT DEFECT CASE DENIED CERTIFICATION
Ducharme v. Solarium de Paris Inc.[2007] O.J. No. 1659 (S.C.): The court found that there was a proper economic loss claims stating "The defendant submits that the damages claimed by the plaintiff are pure economic loss and that the claim does not alleged that the product poses a real and substantial danger. While it is true that the claim does not specifically state that the product is a dangerous product, it clearly states that "the models were designed by SPI with temporary support posts to be installed in the winter to support the snow loads and that these supports did not meet the OBC requirements for structural capacity or integrity". I find that this allegation is tantamount to an allegation that the solariums pose a real risk of collapsing. The allegation is certainly sufficient at the pleading stage to support a claim for pure economic loss."
The court also accepted an implied representation of code compliance claim: "The plaintiff relies on an implied representation. The plaintiff [*7] submits that the defendant, when marketing and selling its products in Ontario, whether through a franchisee or distributor was representing to Ontario consumers that its products complied with the Code. It is not plain and obvious that the plaintiff's claim will fail on the basis of such an implied representation. The statutes themselves do not expressly exclude implied representations."
The court rejected the class definition, which was essentially all purchasers after a certain date: "The plaintiff submits it is irrelevant that some class members were granted a building permit by their municipality. It is the non-compliance with the Code that is the central issue in the action. The plaintiff submits that each class member has a common interest in determining whether or not the solarium meets the requirements of the Code. If the solarium does not meet the requirements of the Code, they will represent a liability to the owner while at the same time losing their value. I conclude that the definition of the class is overly broad. The plaintiff's action really addresses the concerns of the purchasers who have installed a solarium without a permit and now face a removal order from their municipality or those who have purchased a solarium and have been refused a permit by their municipality. On the other hand, the purchasers who have applied for a permit and received confirmation from their municipality that their solarium meets the requirements of the Code do not have a claim against the defendant. In fact they would only suffer damages if they sought and obtained a declaration from this court that their solarium does not comply with the requirements of the Code. They certainly would not be inclined to seek such a declaration and as a result the class members may have conflicting interests. It is noteworthy that the claim does not specifically plead that the solariums sold [*13] and erected pose a real risk of collapsing. No expert evidence specifically addresses this issue. Mr. Sammon argues that pleading the solarium do not meet the requirements of the Code is equivalent to pleading that the solarium poses a real risk of collapsing. I find that is not necessarily so. In any event, the plaintiff should have adduced some evidence to support that allegation. Moreover, the owner of a solarium approved by his municipality would certainly not be of the opinion his solarium is at risk of collapsing."
Rather than narrow the class to persons who had to remove the solarium, the court rejected certification outright.
The court also suggested that an administrative appeal panel was the preferable procedure stating: If the plaintiff's claim were to proceed as presented, this court would necessarily have to decide whether the Town of Renfew was correct in its decision to refuse a building permit. It would appear that there is an element of discretion in municipalities in deciding whether or not a permit is required. The Building Code Act, 1992, S.S. 1992 Chapter 23 ("B.C.A.") expressly provides that each municipality enforces the Code. It establishes the Building Code Commission. The Commission has the power to review the decision of a municipality. Although that procedure is obviously not an alternative procedure to obtain damages or other relief against the defendant, it exemplifies how the Code provides for individual resolution of individual permit applications in each and every municipality across the province and provides its own appeal provisions to challenge a decision of a municipality. The Building Code Commission is in a better position to resolve common issue (a). The Commission's decision would be binding on all municipalities."
COMMON ISSUES REFORMULATED
Barbour v. UBC, 2007 BCSC 800: The application to decertify was rejected. The court stated: "UBC's submissions are not materially different from those I rejected in the certification decision. For the reasons set out in the certification decision, I remain of the view that a class proceeding is the preferred procedure for a fair resolution of the common issues. Whether the proceedings can continue as a class action, once the common issues are decided, cannot be presently determined. "
The common issues were reformulated however.
The parties also came to an interesting agreement on costs of notice: "In the first instance, UBC will fund the notice. Class Counsel have undertaken to reimburse UBC for any reasonable out of pocket costs, if so ordered by the Court, following the common issues trial and taking into account all matters the Court considers relevant."

NATIONAL CLASS WARS: STAY OF PARALLEL CLASS ACTIONS GRANTED DUE TO ABUSE OF PROCESS
Englund v. Boehringer Ingleheim, 2007 SKCA 62: The defendant appealed from a decision refusing to stay an Saskatchewan action in favour of an Ontario action commenced by the same plaintiffs and the same counsel, both on a national basis.
Prior to hearing the appeal, proposed class counsel had purported to discontinue his Ontario action. However, this was done without the court approval required by s.29 of the Ontario Act, so the court did not rely on this purported change in circumstance.
The court determined that a stay should have been awarded stating "We believe the same concerns which motivate the courts to characterize the bringing of multiple actios in a single jurisdiction as an abuse of process can also apply, in appropriate circumstances, where the multiple actions have been brought in two or more jurisdictions."..."We would not suggest that it is always or necessarily an abuse of process for a plaintiff to launch claims against the same defendant, and arising out of the same subject matter, in more than one jurisdiction. There will sometimes be entirely valid reasons for such an approach...But where, as here, there is no suggestion that multiple claims serve any legitimate interest of the plaintiffs, the complexion of things changes. In such circumstances, the courts are being used in a manner which serves no proper purpose or which is vexatious or oppressive."
The court distinguished Lamb v. Bayer Inc., 2003 SKQB 442 on the basis that that case did not involve the same plaintiffs, but only the same counsel. "While the Court is not unaware of the practical realities of class action litigation, the fundamental fact is that, of necessity , claims are brought by plaintiffs and in the name of plaintiffs. They are not brought by lawyers or in the name of lawyers. The particular problem faced the respondents in this case might have been avoided if the Ontario Action had been brought by different proposed representative plaintiffs."
The last question was which case should be stayed. The court stated "[We] observe it might be contended that nay abuse of process arising in the circumstances of this case flows from the Ontario Action rather than from the Saskatchewan Action. After all...the Saskatchewan Action was commenced first. This , however, strikes us as being an overly formalistic line of thinking."
The court held that the Saskatchewan case should be stayed, but with conditions. "There would be no rationale for it to remain in place if the respondents in fact discontinue the Ontario Action....Our point is that they must elect whether they want to proceed in Saskatchewan or in Ontario...In addition, it is appropriate the respondents be entitled to apply to the Court of Queen's Bench to have the stay lifted if a class proceeding is certified in Ontario and no provision is made for it to include Saskatchewan residents....We also recognize that...it is still possible there might be forum non conveniens questions which the parties will want resolved. Our decision in this appeal should not be taken as passing...on the existence or nature of such issues."

FAILED CANCER TEST CERTIFIED IN NF
Doucette v Eastern Health Integrated Health Authority, 2007 NLTD 138: A Newfoundland Supreme Court justice has certified a class action suit brought on by faulty tests involving hundreds of breast cancer patients.

BREAST IMPLANT CLASS ACTION REFUSED CERTIFICATION
Attis v. Canada (Minister of Health): [2007] O.J. No. 1744: The court dismissed this case against the government on cause of action grounds, holding that the regulatory regime did not create a private law duty of care. Justice Winkler did make some interesting comments regarding the "claims made" class definition debate, essentially finding "Claims made definitions if necessary, but not necessary claims made definitions".
ARBITRATION REQUIREMENT UPHELD
Ruddell v. BC Rail Ltd., 2007 BCCA 269: The court granted this appeal on the basis that the matter should have proceeded to arbitration. The court stated:
"On my review of these cases, none concerned a situation in which another statute specifically required the dispute in issue to be referred to an arbitration process. The cases outside this jurisdiction are cases which do not engage the competition between class proceedings legislation and an arbitration scheme required in governing pension legislation. The lone case from British Columbia dealing with such a competition, Bennett v. British Columbia, supra, did not address the issue at bar. Rather Bennett concerned a claim that the province had reneged on the provision of benefits to retirees, many of whom were covered by collective agreements when employed. This Court agreed with the chambers judge that it could not be said that the essential character of the dispute arose from the "interpretation, application, operation, or any alleged violation" of a provision of the collective agreement, those being the matters to which the arbitration scheme was required to apply. Bennett, therefore, does not assist in the resolution of a situation in which the subject matter of the dispute is a matter to which the arbitration scheme applies.
Further, in my view, the chambers judge did not give effect to the language of s. 62(2)(c) which provides that an arbitration decision is "final and binding on the parties and any person affected by the decision". Given that provision, a successful arbitration by even one member would bind these similarly placed. Harkening to the history of class actions recounted in Western Canadian Shopping Centres Inc., supra, it is within an arbitrator's mandate, in my view, to recognize an arbitration advanced by an individual on a point of principle, as is here the case, and fashion a response applicable to others who are in the same position. Alternatively, the solution proposed in Kanitz v. Rogers Cable Inc. (2002), 58 O.R. (3d) 299 at para. 55 (Sup. Ct. J.) is available.
The problem of multiple claimants arbitrating the same issue was addressed, albeit in a different context, in Bisaillon v. Concordia University, [2006] 1 S.C.R. 666, 2006 SCC 19. There the Supreme Court of Canada considered the dual possibilities of a class proceeding and arbitrations under collective agreements. The dispute concerned pension disputes under several agreements, raising the potentiality of several arbitration awards in the event the matter did not proceed in court as a class proceeding. The court concluded that arbitration was the appropriate route. Bisaillon dealt with the question as one of jurisdiction. That is a different approach from the one here advanced and, in my view, is an approach not open to BC Rail given the language of our Commercial Arbitration Act that contemplates the matter being withdrawn from arbitration if the arbitration agreement is void, inoperative or incapable of being performed, and given the decision in MacKinnon. Yet Bisaillon is instructive in that it adopts a position, tolerant of some procedural difficulties, in favour of arbitration as required by the legislative scheme.
For these reasons I conclude, with respect, that BC Rail has demonstrated error in principle. Factoring into the discussion of s. 4 of the Class Proceedings Act the specific statutory instruction that disputes as to surplus and contribution holidays in pension plans may be referred to arbitration and that, once referral is made, the dispute must be arbitrated, and considering the potentially broad application of an arbitration decision, the preference for class proceeding falls away.
As to the efficiency of the proceeding, it is well recognized that arbitration has some advantages. Arbitration being a flexible forum, no doubt the proceeding may be tailored to the issue of principle presented."
IRS UPDATE
The orders finally approving the settlement at a March 22, 2007 joint hearing can be found at http://www.classactionservices.ca/IRS/library.htm.

BOTTLING FEE CLASS ACTION DISMISSAL UPHELD
See Consumers' Assn. of Canada v. Coca-Cola Bottling Co., 2007 BCCA 356.

DEFENDANTS ADDED TO PROPOSED CLASS PROCEEDING
Association des consommateurs pour la qualité dans la construction c. Casgrain, 2007 QCCS 2481: Two defendants were added to this heating system class action. The court held that it was too early to delve deeply into the merits of the case against these new entities, holding that this should be considered at certification.

TRAVEL CLASS ACTIONS CONSIDERED ON APPEAL
Croteau c. Air Transat AT inc., 2007 QCCA 737: The Court reversed this refusal to certify. The court held that the lower court had misinterpreted the Montreal and Warsaw convention in finding there was no cause of action.
Plourde c. Service aérien FBO inc. (Skyservice), 2007 QCCA 739: The Court affirmed this certification decision for the reasons expressed in Croteau. The Plaintiff had complained that the psychological injury aspect of the claim was not certified. The court held that there could be no such claim in the absence of physical injury.

REFUSALS TO CERTIFY AUTO DEFECT CASES AFFIRMED
Lallier c. Volkswagen Canada inc. 2007 QCCA 920: The court stated that the class definition was circular, in that it required premature degradation of the part. While the judge has the discretion to alter the definition, the class representative is the person best placed to propose a proper definition. The Court reaffirmed the requirements of a proper class definition:
"1. La définition du groupe doit être fondée sur des critères objectifs;
2. Les critères doivent s'appuyer sur un fondement rationnel;
3. La définition du groupe ne doit être ni circulaire ni imprécise;
4. La définition du groupe ne doit pas s'appuyer sur un ou des critères qui dé-pendent de l'issue du recours collectif au fond."
A further flaw was even if the plaintiff's case did not succeed, it was still possible that other class members would have a valid action.
Del Guidice c. Honda Canada inc., 2007 QCCA 922: Refusal to certify in paint delamination case affirmed. The appeal court held that a defendant was entitled to raise arguments that the action did not meet requirements that the trial judge had found were satisfied. Allowing such arguments did not violate the rule against the defendants appealing a trial judgement.
The appeal court did not allow the plaintiff to amend the class definition on appeal to remove any reference to a particular paint colour. The court held that this was a substantial recasting of the case, and should not be allowed.
The appeal court relied primarily on the need for an appropriate representative. A representative should make a reasonable level of investigation about the case, provide a reasonable estimate of the number of class members, and indicate that he is able to direct the case. The investigation of the problem here was minimal. The court also found that the problem identified in Lallier also existed here.

APPLICATION TO STRIKE PARTS OF MOTION ALLOWED
Monnier c. Honda Canada inc., 2007 QCCS 2661: The Plaintiff's motion referred to parallel proceedings in Ontario and Texas. The defendant argued that the existence of such proceedings was not relevant to certification. The court disagreed, stating that they at least showed that other persons had the same problem.

TAX CLASS ACTION DISMISSED
Marcotte c. Longueuil (Ville de), 2007 QCCA 866, Usinage Pouliot inc. c. Longueuil (Ville de), 2007 QCCA 867: The court held that a class action was not an appropriate vehicle to resolve the validity of municipal by-laws. An individual action would accomplish the same objective.

APPLICATION FOR MORE PROVINCIAL FUNDS DISMISSED
Deraspe c. Fonds d'aide aux recours collectifs, 2007 QCCS 2496: A plaintiff sought to compel the Fonds to provide additional funding. The court declined to interfere in the administrative body's decision making. The court held that although the Fonds should not be involved or control counsel's decision making, neither was it responsible to completely fund all work required in a class action: "L'avocate de monsieur Deraspe plaide que ce n'est pas au Fonds à mener son dossier. Soit. Mais la mission du Fonds n'est pas de financer au complet tous les recours collectifs qui se présentent. Sa mission est d'aider les recours collectifs qui, sans son aide, ne pourraient être exercés ou continués " Given the specialized nature of the Fonds, the court would not interfere unless its decision was manifestly unreasonable.

DOCUMENT DISCOVERY
Pearson v. Inco, (April 30, 2007): In an endorsement, Justice Cullity ordered a further and better affidavit of documents from the defendant in this certified class action.
NEW ACTIONS
BRITISH COLUMBIA
Leslie Alexander Ellis v. Our World Network Inc. (July 16, 2007) [http://www.cba.org/ClassActions/class_2007/britishcolumbia/main/2007-07-16_worldnetwork.aspx]: Health Product
K. Rachel Ilg v. Samsung Electrics Co., Ltd. et al. (July 9, 2007) [http://www.cba.org/ClassActions/class_2007/britishcolumbia/main/2007-07-09_samsung.aspx]: Flash memory
Gabrielle Marcano and Lyle Irving Folkestad v. Merck Frosst Canada Ltd., Merck Frosst Canada & Co., Merck & Co. Inc. and Procter & Gamble Inc. (June 5, 2007) [http://www.cba.org/ClassActions/class_2007/britishcolumbia/main/2007-06-05_marckfrosst.aspx]: Fosamex
ONTARIO
Henrietta Veldman v. Famee Furlane of Hamilton (June 13, 2007)
[http://www.cba.org/ClassActions/class_2007/ontario/main/2007-06-13_famee_furlane.aspx]: Allegedly contaminated food served at the FAMEE FURLANE OF HAMILTON banquet centre on July 15, 2006.
Dara Fresco v. Canadian Imperial Bank of Commerce (June 4, 2007)
[http://www.cba.org/ClassActions/class_2007/ontario/main/2007-06-13_famee_furlane.aspx]: Overtime pay.

A class action was filed by Juroviesky and Ricci LLP agains the Bank of Nova Scotia over the inability to access funds on deposit.
Siskinds and Sutts Strosberg filed three separate class actions alleging price fixing in the flash memory, LCD screen and SRAM markets.
Siskinds LLP launched a class action against Merck Frosst Canada ("Merck") regarding its osteoporosis drug Fosamax.
QUEBEC
Micki Morton c. Gestion Ace Aviation Inc. et Société en commandite
Touram (Le 17 avril 2007)
[http://www.cba.org/ClassActions/class_2007/quebec/main/2007-04-17_aceaviation.aspx]: Jamaican holiday
Communication Méga-Sat Inc. c. Nec Corporation Et als Intimées (Le 7 juin 2007) [http://www.cba.org/ClassActions/class_2007/quebec/main/2007-06-07_neccorp.aspx]: SRAM memory
Denise Gauthier c. Société d'Habitation du Québec (Le 4 juin
2007) [http://www.cba.org/ClassActions/class_2007/quebec/main/2007-06-04_shq.aspx]: : Social Housing fees
Communication Méga-Sat Inc. c. Samsung Electronics Co. Ltd. Et als (Le 6 juin 2007) [http://www.cba.org/ClassActions/class_2007/quebec/main/2007-06-06_samsung.aspx]: Flash memory
Communication Méga-Sat Inc. c. LG Philips LCD Co., Ltd et als (Le 6 juin 2007)
[http://www.cba.org/ClassActions/class_2007/quebec/main/2007-06-06_lg.aspx]: LCD panels
Jean-Pierre Barrette c. Gobalstar Canada Satellite Co. <http://www.cba.org/ClassActions/class_2007/quebec/main/2007-04-24_gobalstar.aspx> (Le 24 avril 2007): Service Interuption
Chantal Des Côteaux c. Menu Foods (Le 10 avril 2007) [http://www.cba.org/ClassActions/class_2007/quebec/main/2007-04-10_menu.aspx <http://www.cba.org/ClassActions/class_2007/quebec/main/2007-04-10_menu.aspx> ]: Pet food
Guy Lachapelle c. Bell Canada (Le 3 avril 2007) [http://www.cba.org/ClassActions/class_2007/quebec/main/2007-04-03_bellcanada.aspx <http://www.cba.org/ClassActions/class_2007/quebec/main/2007-04-03_bellcanada.aspx> ]: Modem charges
Karine Comtois c. Telus Mobilité (Le 27 avril 2007) [http://www.cba.org/ClassActions/class_2007/quebec/main/2007-04-27_telus.aspx]: Cell Phone charges
Option Consommateurs, nom utilisé par L’Association Coopérative D’Économie Familiale du Centre de Montréal et Rachel Dubé c. Banque de Montréal (Le 19 avril 2007) [http://www.cba.org/ClassActions/class_2007/quebec/main/2007-04-19_bmo.aspx]: mortgage fees

Elisabeth Syed-Logister c. Merck Frosst Canada Limitée et Merck
& Co., Inc. (Le 31 mai 2007)
[http://www.cba.org/ClassActions/class_2007/quebec/main/2007-05-31_merckfrosst.aspx]: Fosomex
Claude Larose c. Purdue Pharma Inc, Purdue Frederick Inc., Purdue
Pharma L.P., Laboratoires Abbott, Limitee, Abbott Laboratories (Le 11 mai
2007)
[http://www.cba.org/ClassActions/class_2007/quebec/main/2005-05-11_purdue.aspx]: Oxycontin
Patrick Chevalier v. Vacances Tours Mont-Royal inc. et Club Voyages Dumoulin
(Le 5 janvier 2007)
[http://www.cba.org/ClassActions/class_2007/quebec/main/2007-01-05_VoyagesDumoulin.aspx]: Bad Jamaican holiday

Alberta
Heike Eaton, Harlan Light, Douglas Alexander and William Barrett v. HMS Financial Inc., Skyward Management Inc., Garth S. Bailey, Garth S.
Bailey Professional Corporation, 990137 Alberta Ltd.et al. (April 23 2007)
[http://www.cba.org/ClassActions/class_2007/alberta/main/2007-04-23_financial.aspx]

Federal Court
Manuge v. Canada: Disability benefits. The writer is assisting plaintiff's counsel in this action.

Ward Branch
Branch MacMaster
Barristers & Solicitors
1210 - 777 Hornby Street
Vancouver, BC V6Z 1S4
Telephone 604 654-2966
Fax 604 684-3429
Website http://www.blogger.com/www.branmac.com <http://www.branmac.com/>
Email: wbranch@branmac.com
============================================
This message is intended only for the use of the individual or entity to which it is addressed, and may contain information that is privileged, confidential and exempt from disclosure under applicable law. No waiver of privilege, confidence or otherwise is intended by virtue of communications via the internet. If the reader of this message is not the intended recipient, or the employee or agent responsible for delivering the message to the intended recipient, you are hereby notified that any dissemination, distribution or copying of this communication is strictly prohibited. If you have received this communication in error, please notify us immediately by telephone.

www.branmac.com

Article originally appeared on Branch MacMaster LLP: Barristers & Solicitors (http://www.branchmacmaster.com/).
See website for complete article licensing information.