September 2008
Tuesday, September 23, 2008
Ward Branch

First, let me apologize for the delay since the last update. After spending 28 of our 30 holiday days in the rain, when I arrived back in Vancouver I needed to seize every sunny moment packing Vitamin D into the system, rather than reading class action case law! But our rainy season has set in, so I am back on the case(s).

As always, this update will be posted on our blog, along with all the back issues: http://classactionsincanada.blogspot.com/

NOVA SCOTIA ACT PROCLAIMED
See Class Proceedings Act, 2007, c. 28 http://www.canlii.org/eliisa/highlight.do?language=en&searchTitle=Search+all+CanLII+Databases&path=/ns/laws/sta/2007c.28/20080818/whole.html
It is an Ontario model, with (1) costs, and (2) no extraprovincial opt-in requirement.
Only PEI and the Territories to go!

BC SECONDARY MARKET STATUTE PASSED
On July 4, 2008, amendments to the British Columbia Securities Act, R.S.B.C. 1996, c. 418 (the Act) came into force, introducing securities secondary market civil liability, and removing the reliance requirement.

APPLICATION TO STRIKE GRANTED IN PART
C.H.S. v. Alberta, 2008 ABQB 513: The court struck the claim by parents in this class action alleging a failure by the Alberta Government to file service plans in a timely fashion after obtaining temporary guardianship orders, leaving only the claim by the children themselves. The writer is co-counsel for the Crown.

NURSING HOME ACTION CERTIFIED
Elder Advocates of Alberta Society v. Alberta, 2008 ABQB 490: This class action alleging improper conduct by the government in the setting of nursing home rates was certified. The court struck the legislative negligence and fiduciary duty claims, but the Charter and financial supervision claims were left standing. The writer is co-counsel for the Crown.

VETERANS PENSION INTEGRATION CASE CERTIFIED
Manuge v. Canada, 2008 FC 624: The court held that this pension action did not need to be commenced by way of judicial review, and that even if it did, it was susceptible to conversion to a class action. The writer is co-counsel for the Plaintiff class.

PRICE FIXING CLAIMS NOT CERTIFIED
In Pro-Sys Consultants Ltd. v. Infineon Technologies AG., 2008 BCSC 831, the Court refused to certify a proceeding as a class action on the basis that liability could not be established on a class-wide basis without individual proof of loss. In Option Consommateurs v. Infineon Technologies a.g.,, 2008 QCCS 2781, certification was rejected with the court holding that there was a conflict of interest in seeking to represent manufacturers and distributors as well as consumers in a price fixing claim.

THIRD PARTY STAY APPLICATION ADJOURNED
Lam v. University of British Columbia, 2008 BCSC 990: In this "melting sperm bank" class action, an application by the third parties to stay third party proceedings against them was adjourned for consideration at a full certification hearing. The writer is counsel for one of the third parties.

CHILD WELFARE CASE MOVES FORWARD
L.(T.) v. Alberta (Director of Child Welfare): 2008 ABQB 114: Court affirmed certification of this "failure to sue" case on behalf of certain children in care, after the Plaintiff agreed to make amendments narrowing the class, and to add the Public Trustee as a defendant. The writer is co-counsel for the Crown.

CRIMINAL INTEREST RATE UPDATE
Bodnar v. The Cash Store Inc.: add: 2008 BCSC 714, leave to appeal decision to add denied 2008 BCCA 192: The lenders were added as defendants in this brokerage model pay day loan action. In other proceedings the court addressed outstanding discovery requests and a request that examinations take place of individual class members. The court held that it was premature to examine all class members: 2008 BCSC 715. The writer is counsel for the lead defendant in this matter.
MacFarlane v. United Parcel Service Canada Ltd. 2008 BCSC 654: Court declined to hear brokerage fee/criminal interest rate case on a summary basis, due to confusion about where the parties stood on the existence of a contract.
Tracy v. Instaloans Financial Solutions Centres (B.C.) Ltd.: 2008 BCSC 669: Class claim successful in this payday loan action.
MacKinnon v. National Money Mart Co.2008 BCSC 710, leave to appeal granted 2008 BCCA 292. Court denied a renewed application for a stay based on an arbitration clause.
Smith v. National Money Mart by adding [2008] O.J. No. 2248 (S.C.J.): The court held that the SCC's decisions in Dell and Rogers did not overturn the Ontario Court of Appeal's earlier decision in Smith that an arbitration clause is not a bar to a class action.

ARE ARBITRATION CLAUSES A BAR TO CLASS ACTIONS OR NOT?
Frey v. BCE Inc.: 2008 SKQB 79: The court amended the certification order to remove individuals subject to an arbitration clause, based on the Supreme Court of Canada's decisions in Dell and Rogers.
Seidel v. Telus Communications Inc., 2008 BCSC 933: The court held that the SCC's decisions in Dell and Rogers did not overturn the BCCA's decision in MacKinnon that arbitration clause is not a bar to a class action.
On the issue of the common law effect of Dell and Rogers, this leaves BC with two cases going one way, and one Saskatchewan case going the other way.
In other arbitration news, there were two Quebec cases enforcing Dell and Rogers by sending proposed class actions to arbitration : Fortin c. Rogers Communication sans-fil inc., 2008 QCCS 3855; 9064-1622 Québec inc. c. Société Telus Communications (Telus Mobilité) 2008 QCCS 2975.

ABUSE CLASS LIMITED
Richard v. British Columbia, 2008 BCSC 254: This certified class was limited in time based on a new Court of Appeal decision overturning earlier law on the start date for Crown liability. The writer is co-counsel for the Crown.
.
CLASS COUNSEL DISPUTES WITH REPRESENTATIVE PLAINTIFFS
In Romanchuk v. Poyner Baxter LLP, 2008 BCPC 188, a stand alone small claims action was brought by a representative plaintiff against B.C. class counsel for time spent and reimbursement for moneys expended in the class action. The class action was settled in accordance with a formula for determination of individual entitlement. When this formula was applied to Mr. Romanchuk’s circumstances, he was not entitled to any benefits. Before the settlement was finalized, Mr. Romanchuk had expressed some concerns to his counsel with respect to the terms of the offer. These concerns led to a discussion between Mr. Romanchuk and the Ontario counsel prosecuting the same case. Following this discussion, Ontario counsel sent Mr. Romanchuk a letter stating that he would be compensated for his time:
"Mr. Wright wrote back to Mr. Romanchuk the same date, confirming that he had advised Messrs. Poyner and Baxter that the language for the affidavit had been settled, and advising Mr. Romanchuk that "therefore they [Poyner Baxter] have not proceeded to seek instructions from an alternative representative plaintiff." It appears from this that there had been something of a falling out between the claimant and defendant firm before the claimant’s meeting with Mr. Wright.
In his August 20 letter, Mr. Wright also stated:
"I understand that you will be compiling for me a listing of activities undertaken on behalf of the class as well as your estimates of the time expended. While I will, as discussed, require the documentation from you in order that we may satisfy both ourselves and the Court with respect to the appropriateness of any expenses or hourly rates paid, I can confirm the contents of our conversation. It is our opinion that 150 hours would be a reasonable amount of time for you to spend up to the date of the approval of the settlement. Additionally, while the future is always somewhat uncertain, an estimate of 50 hours for additional obligations and commitments would seem reasonable to me. In the only case decided on point in Canada, the hourly rate ordered was $40.00 and we are prepared to abide by the decision in that case. Therefore, upon receipt of appropriate material from you, and upon approval of the settlement and the awarding of class counsel fees, we will be prepared to compensate you as outlined above. Additionally, I would be pleased to reimburse you for actual expenses either estimated or documented where possible (in particular, for the months of July or August forward)."
Interestingly, Mr. Wright does not appear to have sent Poyner Baxter a copy of this letter, and Mr. Baxter says they were unaware of it until recently. Baxter was somewhat incredulous that it had been written, as it was his understanding that far from court approval of compensation for a representative plaintiff, the courts actually frowned upon payment to individuals for acting as plaintiffs.
Mr. Romanchuk sought to have Mr. Wright called as a witness and although he was in Ontario and had not been summonsed to court, conveniently, we were able to reach him by telephone from the court room, and he obligingly agreed to testify. He candidly stated that he did not recall having sent a copy of the letter to Poyner Baxter, and since it did not bear a "cc" notation, it seemed quite likely he did not. He said that the Ontario plaintiff was compensated out of counsel’s fees, but that the compensation of the B.C. plaintiff would have been left with Baxter to decide based upon the applicable practice in the B.C. courts. It was Wright’s view that the amounts he set out in his letter to Romanchuk represented a reasonable time expenditure on a case of this kind. He acknowledged that more recently courts did not want to review these arrangements between plaintiffs and their counsel...
Mr. Baxter in his testimony states that he was not aware of the August 1997 letter from Wright to Romanchuk until Mr. Romanchuk enclosed it in his April 2000 letter, and that he was shocked when he saw it. He states that if he had known that Romanchuk would be seeking compensation, he would have included this claim in the request for Court approval filed in November 1997. At that time it was not the practice in B.C. to include these claims, nor to compensate plaintiffs. Mr. Baxter expressed the view that the documentation provided would not have been sufficient for a court application."
While the court found that the letter was not copied to the B.C. class counsel, the Court concluded that B.C. class counsel were bound by its terms. It appears that no disclosure was made of this arrangement to the court on settlement approval. While approval of a payment to Mr. Romanchuk was not being sought in the context of the approval of the settlement, but afterwards, the Court found that this posed no difficulties as payment would come from counsel’s fees in any event. The court stated:
"It appears from the few reported cases that courts, at least in Ontario, have been willing to approve compensation to representative plaintiffs for "extraordinary contributions" as part of the process of approving counsel’s fees. Such payments come out of counsel’s fees, and it would appear to be on that basis that the courts have been involved in scrutinizing compensation to plaintiffs, i.e. to determine whether counsel’s fees reasonably included such an amount as compensation: Garland v. Enbridge Gas Distribution Inc., [2006] O.J. No. 4907 (S.C.J.); Windisman v. Toronto College Park Ltd, [1996] O.J. No. 2897 (G.D.). However, these amounts are treated as a reduction in counsel’s fees and do not increase the award: Garland, para. 40.
In this case, no court approval was sought. It appears Baxter was genuinely unaware of the claim until after the approval was obtained. However, in my view, nothing turns on that, given that the compensation if it were approved would have come out of counsel’s fees in any event. I have already found, in any event, that Baxter accepted liability for reasonable compensation."
In determining the appropriate level of compensation, the Court reviewed the other decisions on compensation for the representative plaintiff, and noted that the relevant factors included involvement from the outset, active pursuit of litigation and salutary results of the action. Taking these factors into account, the Court awarded Mr. Romanchuk the sum of $4,000.
Fantl v. Transamerica Life Canada, [2008] O.J. No. 1536 (motion to set aside a notice of change of solicitor); [2008] O.J. No. 2593 (S.C.J., Div. Ct) (leave to appeal granted): In this case, class counsel sought an order to compel the plaintiff, Mr. Fantl (a retired lawyer), to accept him and his new firm as solicitors of record and, if necessary, to replace Mr. Fantl as proposed representative plaintiff with two other individuals. Perell J. refused to accede to this order, thus allowing Mr. Fantl to sever his relationship with the then existing lead counsel on the basis that the case did not warrant interference with the representative plaintiff’s decision, as Mr. Fantl had satisfied his duty of representation by appointing adequate and competent counsel in present-counsel’s place. In reaching this decision, Perell J. held that the Court should defer to the plaintiff's choice, unless that choice is "inadequate". Further, he held that "The test of representation for the class in a class action is one of adequacy not of superiority and it is not a test of what is in the best interests of the class or proposed class." (emphasis added) See [2008] O.J. No. 1536 at paras. 107 and 108]. Shortly thereafter, Lederman J. held that Perell J.'s decision as to the test to be applied to protect the putative class, was open to "very serious debate", and the decision has significant implications for the development of class action principles generally. He therefore granted leave to appeal to the Divisional Court.": [2008] O.J. No. 2593 at para. 9.

NATIONAL CLASS ISSUES
Wuttunee v. Merck Frosst Canada Ltd., 2008 SKQB 229 (granting certification), 2008 SKCA 79 (allowing leave to appeal by party); 2008 SKCA 80 (denying leave to appeal by non-party): The court certified a near national class action. This was the first motion under Saskatchewan's ULCC "national carriage motion". Counsel for a proposed Ontario class was given notice and the right to appear. The court relied primarily on the fact that the action would move forward more quickly in Saskatchewan. Quebec was excluded on the basis that there was already a judgment authorizing a Quebec class. The court held that it should not engage in "grading" different class counsel, but rather should just confirm "competence".
The Defendant was granted leave to appeal. However, the court denied the Ontario group leave to appeal stating:
"As will be seen from a review of s. 39 of the CAA, a "party" has an automatic right of appeal from a judgment on common issues and an order pursuant to ss. 31 to 37 (see s. 39(1)). A "party" also has a right to apply for leave to appeal the certification, the refusal of certification or the decertification of an action (see s. 39(3)). But "a class or subclass member, a representative plaintiff or a defendant" has a right to apply for leave to appeal the determination or dismissal of an individual claim only (see s. 39(2)). Thus, the authority under s. 39(3) of the CAA is limited to granting leave to a "party." Is the Tiboni Group a party? They are styled as a "third party" on the judgment under appeal,[6] but no formal third party order has been made. Indeed, on my review of the file, the Tiboni Group did not apply to be named as a party. Simply naming an entity as a third party on a style of cause does not confer that status. Nor is there any section comparable to s. 5.1 of the CAA conferring a right upon a person who has received notice of an application for certification pursuant to s. 4(2)(c) to make submissions on an appeal. No other authority having been cited to me, I do not see any basis upon which to conclude otherwise than that I do not have the authority either to grant or deny leave.
I appreciate that this decision may very well create difficulties in a case where the prospective defendant in a multi-jurisdiction class action does not contest the order made under s. 6.1(1). In this case, however, Merck does contest this aspect of the Order, as well as the certification of the action as a class action for Saskatchewan residents, and leave has been granted to Merck to appeal the Order.
Given this, it may be appropriate for the Tiboni Group to apply to the panel to make submissions, perhaps as an intervenor, however I do not want to presume to anticipate what the panel may wish to entertain by way of an application, or make by way of an order. The application is dismissed."
In the author's view this latter decision is wrongly decided. The opposing group should have the ability to seek an appeal of the decision. Otherwise, there is no ability to force conflicting decisions up through the system for eventual SCC resolution if necessary. If there is any ambiguity in the statute, this should be amended.

Tiboni v. Merck Frosst Canada Ltd., [2008] O.J. No. 704 (S.C.J.) (disqualification of counsel); [2008] O.J. No. 1048 (reconsideration of disqualification); [2008] O.J. No. 2996 (S.C.J.) (certification): An Ontario court certified a near national class action relating to Vioxx even though a national class had already been certified in Saskatchewan. The court rejected an application for a stay of the Ontario proceeding pending an appeal of the Saskatchewan decision. The proposed Ontario class did exclude Saskatchewan and Quebec. Quebec certified a Vioxx class action in Pelletier c. Merck & Co. inc. 2008 QCCS 2173 (certification).
The Ontario court based its decision to certify in the face of the Saskatchewan decision on the following factors:
(1) counsel for the class in the Saskatchewan action did not respect the earlier decision granting carriage to the group advancing the Ontario group, rather than an Ontario action by counsel for the Saskatchewan class;
(2) the Saskatchewan judgment was based on a different test that did not place as much emphasis on quality of counsel;
(3) there was no basis for the Saskatchewan court to suggest that there would be more delays in Saskatchewan;
(4) the defendant was talking out of both sides of its mouth, in that its submissions on certification was that it would prefer 2000 individual trials. Hence, having 2 parallel cases on the same issue, was of little moment.
The court called for a solution to the admitted problem, but issued a critique of the proposed ULCC solution. He stated that the ULCC proposal "arguably, would give undue deference to the proceeding that is the first to be certified".
(Ed note: The ULCC proposal does no such thing. It just sets up the forum where the issue of "where is the best place" will be argued, with all parties present. FOR BETTER OR WORSE, THIS MOTION HAS TO BE HEARD SOMEWHERE AND IT SHOULD BE SOONER RATHER THAN LATER. The only way it could be said can say that the first court will be given "undue deference" is to assume the federally appointed judges hearing that first certification motion will be biased towards their own provincial jurisdiction. Even if that were a proper assumption, which it is not, the SCC should always present as a backup to correct such bias.)
The Ontario court once again approved a waiver a tort common issue.
The class included all person who were prescribed and ingested Vioxx (which included 350,000 people) even though there was evidence that only 2000 people would have cardiovascular problems. The court criticized the use of "claim to have suffered harm" limits to class definitions stating: "My skepticism is not based simply on the fact that a class criterion that leaves a person who has not opted out of a class free to decide whether he or she is a class member might not be considered to be "objective" in any of the myriad senses in which that word is used." (para.75).."It is arguably a verbal device that achieves nothing except to meet an argument that appears to be based on a misreading of Hollick." (para.77). Independently of the above comments, I note that the plaintiffs' claims for pecuniary damages, and for a disgorgement of revenues or profits, are made on behalf of all members of the class as defined." (para.80).
The court found that the possibility of an aggregate assessment of damages is to be determined by the judge at a common issues trial and, strictly, it need not be included in an order for certification. (para.94)
On preferable procedure, the court made one notable comment: "The in terrorem forecast of Merck's counsel that certification would be followed by thousands of spurious claims that would "choke out" a few possibly viable claims appears to ignore the maligned costs regime in this jurisdiction" (Note that the ability to award costs at the individual issues stage also exists in the so-called "no costs" jurisdictions.).

Hocking v. HSBC Bank, 2008 QCCA 800: The Quebec Court of Appeal affirmed the lower court decision not to enforce this national opt-out class action as certified in Ontario.
Brito v. Pfizer Canada inc., 2008 QCCS 2231: Quebec certifies its own national opt out class. The court stated that the required real and substantial connection test was met given that the defendant was headquartered in Quebec. The court noted that it was at liberty to apply local law to individual claims if necessary. The court found that the benefits of an opt-out structure (more deterrence, better economies of scale) outweighed the advantages of an opt-in structure. The court distinguished Hocking v. HSBC, on the basis that in Hocking the defendant was not resident in the jurisdiction whose order was sought to be enforced.
This trend continued with a national class being certified in the securities case Nguyen v. CP Ships Ltd., 2008 QCCS 3817. It appears that Quebec has adopted the "If you can't fight 'em, join 'em" approach!
Ledyit v. Bristol-Myers 2008 ONCA 372: Dismissing appeal from decision allowing Ontario action to continue with Quebec class representatives. The court stated:
"We agree with the reasons of the motion judge that Ontario courts have jurisdiction over this action because Apotex Inc. is resident in and carries on business in Ontario. Even if we accept the appellant's argument that the real and substantial connection test must nonetheless be applied, the factors that inform that test support the conclusion that Ontario has jurisdiction simpliciter on the record in this case. This is particularly so where the representative plaintiffs are prepared to come to the jurisdiction where the defendant resides and carries on business"
The court noted that the defendants could bring an forum non conveniens application at a later date.

Sollen v. Pfizer, [2008] O.J. No. 866 (S.C.J.): Merchant Law Group was allowed to discontinue their Ontario action, a precondition to the lifting of the stay of a parallel Saskatchewan action. The court also declined to enjoin the Saskatchewan action stating:
"In these circumstances, it is true that there is, strictly, now no decision in Saskatchewan that would grant, or deny, a stay of the Saskatchewan action on the ground of forum non conveniens. The question was, however, considered fully by Klebuc J. and his finding that there was no more convenient jurisdiction than Saskatchewan was not disturbed on the appeal. I am satisfied that considerations of comity, and the respect owed by one Canadian court to another, require his views to be given no less deference and respect than they would presumably receive if the question was raised again on another motion in the same court... I am satisfied that the codification of the principles of forum non conveniens in Saskatchewan does not depart significantly – if at all - from the common law principles that are applied in this jurisdiction. I am also satisfied that the finding of the learned judge at first instance in Saskatchewan cannot be said to have been unreasonable. It follows that this court should not enter into an inquiry whether, by an application of such principles, it would have reached the same conclusion... Mr Maidment relied on one passage in the reasons of Klebuc J. that, it was submitted, is inconsistent with the prevailing laws of Ontario. In paragraph 44, the learned judge stated:
"I reject BI Canada's submission that the Ontario CPA allows for the creation of a "national class" that binds non-Ontario residents unless they opt out of a class action certified in Ontario because the laws of Saskatchewan do not recognise legislation enabled by other jurisdictions that intentionally encroaches on the right of its residents to seek judicial recourse for losses they suffered as a consequence of a tort or other breach of the law committed within the Province."
In Mr Maidment's submission, the passage is inconsistent with the recognition of national classes in a number of decisions of this court. I disagree. In my respectful opinion, the thrust of the learned judge's comments was to deny that any jurisdiction of an Ontario court to certify national classes overrides, or limits, that of a court in Saskatchewan to exercise jurisdiction over cases that have a real and substantial connection with the Province. The possibility that a national class might be certified might, in some cases be relevant to the identification of a more convenient forum, but it does not displace the jurisdiction of the Saskatchewan court, or the principles relating to forum non conveniens, and it is a neutral factor in this case. I see no reason to infer that the learned judge intended to exclude the possibility that, even in a case with such close connections to the Province, it might, in some circumstances, be appropriate for the Saskatchewan court to order a stay.... I am of the opinion that deference must be shown to the finding at first instance in the Saskatchewan action, and that the cross-motion of Boehringer Canada should be dismissed."

If anyone can make sense of this mess, let me know!!

MERCHANT LAW GROUP GETS PAID IN INDIAN RESIDENTIAL SCHOOLS SETTLEMENT
Fontaine v. Canada, 2008 SKQB 271: Court found that Mr. Merchant's firm was now entitled to its first $25 million under the terms of the IRS settlement agreement. The verification process for possible additional amounts continues.

ABORTION RIGHTS CASE CERTIFIED UNDER OLD RULES
Jane Doe 1 v. Manitoba, 2008 MBQB 217: Plaintiffs sought a declaration that the funding regime under The Health Services Insurance Act for therapeutic abortion services violated their rights under the Charter, as well as for recovery of special, general, aggravated and punitive damages.
The government stated that the representatives were not adequate as they were not prepared to release their identity. The government rejected this concern stating:
"In L.(T.) [v. Alberta, supra] the court referred to the case of B.(B.) c. Québec (Procureur général) (1997), 1997 CanLII 10220 (QC C.A.), [1998] R.J.Q. 317 (Que. C.A.) to support the proposition that members of the class are entitled to know who will represent them. Slatter J. stated:
34 When considering a publication ban, there are special considerations that apply to a class action. When a person comes forward and purports to be a representative plaintiff, there is much to be said for the argument that the other members of the class are entitled to know who it is that purports to represent them: se B. (B.) c. Québec (Procureur general) (1997), 1997 CanLII 10220 (QC C.A.), [1998] R.J.Q. 317 (Que. C.A.). ...
The case of B.(B.) is different from the instant case. In that case, a person who had been acquitted on a charge of drunk driving was seeking leave to commence a damage action, without disclosing his identity, against the government on behalf of all persons who had been charged and acquitted.
Counsel for the Government also argued that a motion of this kind should be brought early in the proceeding and not when the case is nearly ready for trial, as this one is. In Neufeld, Hamilton J. (now J.A.) referred to Dutton (at ¶49) and referred to the need to bring this motion "before any decision is made that purports to prejudice or otherwise affect the interests of the class members" (Neufeld at ¶34). Counsel did not refer to any specific prejudice that may have been caused to class members because of the delay in bringing the motion. In the circumstances of this case, I find that no prejudice has been caused and that nothing has been done to affect the interests of the class members."
The court also rejected the test case alternative stating:
"As for the suggestion that the plaintiffs proceed with a test case, that route is not followed generally without the concurrence of all potential claimants. Branch, Class Actions in Canada, loose leaf ed. (Aurora: Canada Law Book), stated at ¶4.945:
4. Test cases
Defendants often suggest that a test case would be just as efficient. However, a true test case requires the agreement of the parties; a court lacks jurisdiction to order that a party’s rights will be decided in a case in which he or she is not a party. ...
At ¶2.110, the author also stated:
... Test cases require that the defendant and each prospective plaintiff agree to be bound by the result....
In Murphy v. BDO Dunwoody LLP, [2006] O.J. No. 2729, the court held that it had no jurisdiction to order a binding test case. In CIBC v. Deloitte and Touche, [2003] O.J. No. 2069, the Divisional Court held that, "Absent agreement by the defendants, there can be no test case which binds them." In one Manitoba case, Ranjoy Sales and Leasing Ltd. v. Winnipeg Mortgage Exchange Ltd. Estate, [1982] M.J. No. 11; reversed [1982] M.J. No. 36, arising from the collapse of Winnipeg Mortgage, a series of test cases were commenced, effectively, without the agreement of all potential claimants. Practicalities supported the initiation of the test cases.
I find that there is no overarching issue that outweighs the benefits of allowing the class action to proceed or that justifies refusal of the order for certification. In particular, I disagree with the suggestion that a test case would provide a satisfactory solution."

PARTICULARS
The importance of the originating pleadings in the Court’s consideration of common issues was highlighted in Halvorson v. British Columbia (Medical Services Commission), 2008 BCSC 1068, where the Court ordered the Plaintiff to provide particulars of his claim, explaining: "Despite the plaintiff's apparent reluctance to commit himself to specific positions at this point, he must meet some basic requirements before the defendants can be required to plead. The state of pleadings at the certification stage is important, as it is those pleadings which will inform a consideration of the common issues. The court cannot be expected to determine common issues if the plaintiff is still hoping to keep all his options open. It is not important for the present purposes whether the lawyer for the defendants really knows what the case is about because he has been involved in it for years. What is important at this stage, as I have said before, is that the issues be pleaded formally and with precision. (at para.13)"
Engler-Stringer v. Montreal, 2008 QCCS 3434: Court ordered some further particulars in this certified class action.

PACEMAKER CASE CERTIFIED
Lefrancois v. Guidant Corp (2008), 166 A.C.W.S. (3d) 432, [2008] O.J. No. 1397 (S.C.J.) (certification pending amendment to case management plan), [2008] O.J. No. 2402 (S.C.J.) (certification): Usual products liability analysis.

MERITS DETERMINATIONS
Sharbern Holdings Inc. v. Vancouver Airport Centre Ltd., 2007 BCSC 1262 (common issues trial); 2008 BCSC 245 (settle terms of order – common issue); 2008 BCSC 442 (certification of remedies issues and production of documents); 2008 BCCA 250 (strike portions of factum): The class was successful in this investment action, and the court went out to certify certain additional remedies issues.
Macaraeg v. E Care Contact Centers Ltd., 2006 BCSC 1851 (ruling on points of law), rev’d 2008 BCCA 182: the defendants argued that the Plaintiff was not entitled to enforce her statutory claim for overtime pay through a civil action. The issue was framed as a point of law, and the trial judge held that the provisions in the Employment Standards Act were implied contractual provisions that could be pursued in a civil action (in this case, a proposed class proceeding). The Court of Appeal reversed the trial judge’s decision, reasoning that as the Employment Standards Act provides a complete and effective administrative structure for granting and enforcing employee rights, such rights could not be enforced in a civil action.
Denis v. Bertrand & Frère, [2008] O.J. No. 1284 (S.C.J.): Individual damages assessed in this certified action.
Vidal v. Placement Etteloc, 2008 QCCS 2434: Class was unsuccessful against the remaining government defendants in this tax shelter class action.

LIMITATION PERIOD IN REMEDIAL TRUST PRICE FIXING CASE
Sun-Rype Products Ltd. v. Archer Daniels Midland Co., 2008 BCCA 278: The Court of Appeal affirmed an earlier decision stating that the proper limitation period was 10 years. The Court also restored the cause of action in equitable fraud, and held that postponement applied in the case of the individual (but not the corporate) plaintiff.

WCB CLASS ACTION SENT BACK
Johnson v. British Columbia (Workers’ Compensation Board), 2008 BCCA 232 (appeal of judicial review): The court overturned the judicial review granted in this certified proceeding on the basis that the matter was not before the Tribunal appealed from, and sent decision back to the court for direct consideration as to whether the court could hear the challenge directly.

QUIZNO'S CLASS ACTION REFUSED CERTIFICATION
2038724 Ontario Ltd. v. Quizno's Canada by adding [2008] O.J. No. 610 (S.C.J.) (scope of common issues pending certification hearing); 89 O.R. (3d) 252 (S.C.J.) (certification): In a preliminary motion the defendants complained about new common issues put on the table shortly before hearing. The court held that the defendants would not be prejudiced by the inclusion of certain common issues, but did hold that in relation to certain others there may have been more cross-examination done if the defendants had been aware of the plaintiff's intention.
At the certification hearing proper, the Court refused to certify this franchisee class action because individual issues overwhelmed common issues. The court stated:
"I conclude that it was not shown by the plaintiffs that damages or the impact of the alleged price maintenance, if any, suffered by the franchises can be proven in the aggregate or on a class-wide basis. This conclusion removes proposed common issue (f) as a common issue and has the effect of an avalanche that buries the proposed common issues with an absence of commonality and a proliferation of individual issues. Thus, for instance, proposed common issues (a) and (b) above (namely: (a) Have the Quiznos Defendants, or any of them, engaged in conduct contrary to s. 61(1) of the Competition Act? and (b) Have the defendants, or any of them, engaged in conduct that amounts to civil conspiracy?) depend upon showing: individual instances of price maintenance; individual instances of suffering loss in the "but for" world in order to measure the impact of losses; and individual claims of damages for the tort of conspiracy. Similarly, proposed common issues (d) and (e) are individual, not common, issues. Proposed common issues (g) and (h) have commonality but, standing alone, they would not sufficiently advance the litigation to qualify as common issues.
I wish to be clear that I am not concluding that price maintenance conspiracies or competition offences cannot yield a common issue or that actions asserting such claims are inherently unsuitable for a class proceeding. I simply conclude that a common issue has not been made out in this case, and I also conclude that even if it were possible to isolate some discrete element or elements of the causes of action as a common issue or issues that would advance the litigation, in the case at bar those common issues would be substantially overmatched by the individual issues of the members of the class. This last conclusion is material to the discussion of preferable procedure that follows."
The court refused to stay the action based solely on a "no class action" clause stating:
"As already noted above, the Quiznos Defendants rely on Z.I. Pompey Industries v. ECU-Line N.V., supra, and several other cases for authority that an exclusive jurisdiction clause in a contract should be respected and enforced by the courts, unless there is "strong cause" to override the contract. The point to note is that notwithstanding the freedom of the parties to contract as they will, this line of authority does not categorically preclude a court from overriding the parties' contract if there is strong cause to do so. Consistency favours applying the rule for exclusive jurisdiction clauses also to contracting out clauses, and having regard to the interests of the public and of the administration of justice, judicial economy, access to justice, and behaviour modification could provide strong cause to not enforce a contracting out clause.
The second line of argument requires an express or implicit finding that the contract is illegal on the grounds of public policy... Technically speaking, an agreement to preclude class proceedings but to allow individual proceedings does not oust the jurisdiction of the court but, practically speaking, it may have that same effect, because if victims of wrongdoing do not have access to justice without the procedural vehicle of a class proceeding, the court will not have an opportunity to exercise its jurisdiction. In any event, whether or not the jurisdiction of the court is ousted, a contract that precludes class proceedings interferes with the administration of justice. As already noted, such an agreement denies the administration of justice the opportunity of economies of judicial resources and it denies the public the access to justice and behavioural modification provided by class proceedings....An agreement to preclude class proceedings is not an obvious evil, and its enforcement should be determined by the balancing of public interests. An appropriate place to do that balancing is in the context of determining the preferable procedure. In the case at bar, for the purposes of deciding the stay motion, I have assumed that the criteria for certification were satisfied. In that context, the Quiznos Defendants, upon whose contractual rights the other defendants would coattail, offer nothing but their contractual right as justification for staying the litigation. In my view, this is insufficient to justify a stay, and I would not grant one.
I wish to be clear that in refusing a stay, I am not categorically striking down agreements that contract out of the Class Proceedings Act, 1992. There may be instances where contracting parties may be able by contract to shape the contours of a class proceeding in whole or in part. The case at bar, however, is not one of those cases."

TRAVEL CASE DENIED CERTIFICATION
Lavier v. MyTravel Canada Holidays Inc., [2008] O.J. No. 2753 (S.C.J.): Thee Court refused to certify a class action for plaintiffs’ allegedly suffering a virus due to negligence or failure to warn by a tour operator. In weighing the costs and benefits, the Court explained (at para. 72) that "Class proceeding may perhaps be necessary where the claims are so modest that they are not economically viable to litigate as individual claims, but the case at bar does not necessarily fall within that category of case and individual Small Claims Court or simplified procedure actions would appear to be economically viable for individual claimants, particularly for those who would not have a difficult time showing that the epidemiological conditions at the resort had become notorious because of media exposure."

APPEALS
Heward v. Eli Lilly & Co, [2008] O.J. No. 2610 (S.C.J. (Div. Ct.): Court denied appeal of this certified products liability certification. The court commented on the ongoing debate on "waiver of tort" stating:
"More importantly, the Court in Pro-Sys Consultants rejected the plaintiffs' proposed common issues relating to waiver of tort in their entirety based on that Court's legal determination that "liability to a class ... requires that the wrongful conduct actually impacted the class" (para. 149). Justice Masuhara held that proof of harm is a requisite element of liability in a claim based on waiver of tort. Moreover, he found that the plaintiffs failed to put forward a sufficient means of proving the issue of liability on a class-wide basis.
30 The approach of Justice Masuhara can be contrasted with that adopted by this Court in Serhan, supra. As stated previously, in Serhan, in dismissing the appeal of the certification judge, Epstein J. emphasized that waiver of tort is an uncertain area of law, the requisite elements of which have yet to be determined in Ontario. She took particular account of the debate surrounding whether proof of loss is necessary for liability, without adopting a definitive position. Moreover, when the defendants in Serhan similarly relied on the British Columbia Supreme Court judgment in Reid v. Ford Motor Co., [2006] B.C.J. No. 993, wherein Gerow J. expressed concern about a cause of action that eliminates the requirement to prove loss, Epstein J. stated:
I share this concern, but am of the view that it should be considered and resolved on the basis of a full record. (para. 67)
...In our view, the defendants' assertion in the proceeding before this Court mischaracterizes the embryonic nature of the waiver of tort doctrine. In certifying the pertinent common issue, above all, Cullity J. recognized the uncertain state of the law and the need for a full evidentiary record in order to make a proper determination."
The court also dealt with the present obsession with "aggregate damages" stating:
"If on a full evidentiary record, the trial judge were to find that proof of the amount of relief based in waiver of tort cannot be assessed in aggregate, a class action remains the preferable procedure. An aggregate award of damages is not a prerequisite for certification. If the other, unchallenged common issues related to the waiver of tort claim are resolved favourably, the proceeding will still have advanced the claims of the class as a whole. This is so particularly in consideration of s. 25 of the CPA which confers broad jurisdiction on the common issues trial judge to develop pro-cedures for individual participation in determining the allotment of relief. It is not just the common issues trial which is to be considered in determining whether a class action is the preferable procedure."
Harmegnies v. Toyota Canada inc., 2008 QCCA 380: Court of Appeal upheld this refusal to certify the "Access Toyota" price maintenance action. In related news, a parallel BC case was also refused certification: Steele v. Toyota Canada Inc., 2008 BCSC 1063.
Jeffrey v. London Life (unreported, April 25, 2008) 46300&47959 (Div.Ct.): Leave granted in this decision granting certification. The leave judge questioned the link between the availability of contingency fees and "access to justice". Reminds me of the Rice Krispies commercial - "What did you think access to justice was made of?". The lack of access to justice is was created by inability to pay a lawyer. Contingency fees obviate that.
Bédard v. Kellogg Canada Inc. 2008 FCA 125: Court of Appeal upheld refusal to certify misrepresentation action.
Option Consommateurs v. Novopharm Ltd., 2008 QCCA 949: Court of Appeal upheld this refusal to certify a pharmacist kick-back action.
Axiom Plastics v. Du Pont, [2008] O.J. No. 1973 (S.C.J. (Div.): Court denied leave to appeal decision certifying this price fixing case.
Hinton v. Canada (Minister of Citizenship and Immigration), 2008 FCA 215: Court agreed that judicial review could be converted to a class action before the judicial review procedure was complete.
Ducharme v. Solarium de Paris Inc, [2008] O.J. No. 1558 (S.C.J. (Div. Ct.): Court denied appeal of this failed products liability certification. The court relied exclusively on the conflict of interest point stating: "The motion judge was, therefore, quite correct in concluding that the OBC was found to have been complied with in each case where a building permit was issued. The plaintiff, in the issues as framed in her factum, seeks a contrary ruling from the court. Therein lies the conflict of interest." The court noted that there would be no conflict in a pure tort claim, but that the necessary "danger to the health and safety of the occupants" had not been pled. The court did grant leave to amend however.
Risorto v. State Farm, [2008] O.J. No. 1796 (S.C.J. (Div. Ct.): Leave granted of decision allowing plaintiff to file additional evidence on certification.
Sagharian (Litigation guardian of) v. Ontario (Minister of Education) by adding 2008 ONCA 411, [2008] O.J. No. 2009 (C.A.): Court struck remaining age discrimination claim, but gave leave to amend plead a claim based upon the duty of the Crown and the school boards to accommodate and a denial of that duty.
Peter v. Medtronic Inc,[2008] O.J. No. 1916 (S.C.J. (Div. Ct.): Court refused leave to appeal the decision to certify.
Ragoonanan Estate v. Imperial Tobacco (2008) 54 C.P.C. (6th) 167 (Div. Ct): Court dismissed appeal of order refusing to certify fire-safe cigarettes action. The court made a few comments of note:
On class definition: "In my opinion, submitting entirely fresh definitions on appeal is not appropriate. It is significantly different from what has happened in the past where a reviewing court has reworked by narrowing in scope an existing definition that was placed before the motion judge. Regardless, with respect to the first new definition I accept the respondent's submission that it, not mandating that a fire occur on upholstered furniture or on a mattress, bears no rational relationship to the proposed common issues. I also accept the respondent's submission with respect to the second new definition that it is even less connected to the proposed common issues and does not require that the cigarette manufactured by the respondent start the fire. As submitted by counsel for the respondent, under the proposed second definition "a person who purchased (the respondent's) cigarette, whose house was burned down by a damaged fuse box would be in the class, as would the smoker of the respondent's cigarettes whose house was burned by an arsonist."
On preferability: "The main submission by the appellants is that a class action is the preferable procedure as individual actions will be too expensive for most if not all of the class members. Counsel submitted that a class action "has to be the preferable procedure because it is the only procedure". In paragraph 78 of his reasons, Cullity J. concludes in part as follows: "... while proof of a breach of a duty of care would be an essential step in establishing liability, the plaintiffs have not persuaded me that, notwithstanding the existence of the disputable individual issues that would remain, such proof would sufficiently achieve the objectives of access to justice, or judicial economy. The procedure under the CPA is not appropriate, or available, in every case where there are common issues." In my opinion Cullity J. was correct in rejecting that submission on the basis that to do otherwise would mean that if an individual lawsuit would not be viable a workable class proceeding has to be considered to be a preferable procedure. Such a finding would ignore the provisions of specific requirements of s. 5(1). What permeates Cullity J.'s carefully reasoned decision on these points is his finding that the individual issues that would have to be determined in each case simply overwhelm any benefit that may be available by a determination of the 2 common issues."
The Divisional Court also refused to interfere in the decision declining to award costs to the defendants: "Cullity J. had opportunities to assess the extent to which fees and disbursements ought to be allocated to one motion or the other. While the certification motion was dismissed, his finding that the public interest was engaged is demonstrated by the enactment of legislation by Parliament that deals with the very issue in the case. He was uniquely situated to make the costs order on the certification motion taking into consideration the earlier costs disposition. I am not persuaded that there are "strong grounds" to find that he erred in exercising his discretion."

COSTS
Canadian Alliance of Pipeline Landowners' Assn. v. Enbridge Pipelines Inc. [2008] O.J. No. 1615: $150,000 awarded in favour of two defendants ($75,000 each) flowing from dismissal pre-certification.
McLaine v. London Life Insurance Co. [2008] O.J. No. 2360 (S.C.J. (Div. Ct.): In this mortgage pre-payment case the court awarded $160,000 to the defendants relating to the failed appeal of a refusal to certify. The court found that the action was not a test case, nor brought in the public interest. The court did make some general statements on the proper approach to costs:
"Our Court has said that class proceedings, "... should not be accorded any special treatment in the disposition of costs." See: Gariepy v. Shell Ore Co., [2002] O.J. No. 3495 (S.C.J.). This, however, was followed by more recent findings of the Court of Appeal in Pearson, supra, where Mr. Justice Rosenberg said that although s. 31(1) of the CPA does not replace the broad discretion given to Judges under s. 131 of the Courts of Justice Act, one must look at the factors in s. 31(1) of the CPA as well. For an extensive analysis of this issue and the case law governing this, see Ruffalo, supra, paragraphs 38 to 52 inclusive. In particular, Mr. Justice Perell, in Ruffalo, supra, cites paragraph 32 of the decision of Mr. Justice Winkler, as he then was, in Caprito v. Imperial Tobacco Ltd. (2005), 74 O.R. (3d) 728 (S.C.J.) where he finds that "special weight" must be given to the factors in s. 31(1) of the CPA. We have weighed those factors and in reaching our conclusion, have balanced this with the factors to be considered under Rule 57.01 and our discretion in s. 131 of the Courts of Justice Act."
Peter v. Medtronic Inc, [2008] O.J. No. 1700 (S.C.J.) (costs): The Plaintiff sought $328,000 in costs for this successful certification motion. The court granted $245,000 stating:
"According to the plaintiffs' costs outline, 16 lawyers, 6 students and two law clerks -- a total of 25 legal professionals from three law firms -- spent close to 1,600 hours on behalf of the plaintiffs on the certification motion. At least two senior counsel appear to have been involved in virtually all steps taken. While the hearing was argued over four days, no interlocutory steps were taken by either party, numerous case management conferences were not held prior to the certification hearing, and no cross-examinations were conducted with respect to any of the affidavits filed. The plaintiffs filed seven affidavits: an affidavit of each of the five representative plaintiffs, all based on the same template; one lawyer's affidavit; and one expert's affidavit. Medtronic filed three affidavits. The certification motion record was relatively compact. I agree that the amount sought is high. While I appreciate that plaintiffs' counsel may seek, or indeed need, to share the risk of acting on a contingency fee basis with other firms, or to expand the counsel group to resolve carriage disputes, the number of lawyers involved in this case is nonetheless excessive. Inevitably, additional time is spent in communication among counsel, and inevitably, there is duplication of effort. I have reduced the amount sought by the plaintiffs to reflect this."
W.A. v. St. Andrew's College, [2008] O.J. No. 1678 (S.C.J.): Class action dismissed as a result of plaintiff's failure to pay costs.
KRP Enterprises Inc. v. Haldimand (County), [2008] O.J. No. 3021: $20,000 awarded to Plaintiff on failed leave application.

SETTLEMENTS
Martin v. Barrett, [2008] O.J. No. 2105 (S.C.J.): Pension case. In a later decision the court found that the Law Foundation levy only applies to the amount net of counsel fees, administration fees, notice costs, disbursements, and other expenses applied prior to distribution of the settlement sum to class members: (unreported, May 12, 2009) 03-CV-244195 CP (S.C.)
Donnelly v. United Technologies, [2008] O.J. No. 2661 (S.C.J.): Furnace defects.
Nutech Brands Inc. v. Air Canada, [2008] O.J. No. 1065: Air freight price fixing. The court granted conditional certification pending a later settlement approval hearing.
799376 Ontario Inc. (c.o.b. Lonsdale Printing Services) (Trustee of) v. Cascades Fine Papers Group Inc., [2008] O.J. No. 2671 (S.C.J.): Price fixing of carbonless paper sheets.
Corless v. KPMG LLP, [2008] O.J. No. 3092 (S.C.J.): Unpaid overtime.
Antoniali v. Coquitlam (unreported, May 12, 2008) L022644 (B.C.S.C.): Illegal fee class action. See http://www.coquitlam.ca/NR/rdonlyres/024235D5-E195-4877-A445-17A36D2E65C4/79424/OrderSettlement.pdf. The court allowed a payment of $15G for the representative plaintiff allowed.
Tourlos v. Tiffany Gate Foods Corp., [2008] O.J. No. 2891 (S.C.J.): Bacterial infection action. Fees approved were $700,000, which was a multiplier just less than 1, and a projected percentage at just over 25% or less depending on the take up rate.
Lenzi c. Apple Canada inc. 2008 QCCS 2447, Waddell v. Apple Computer, Inc., [2008] O.J. No. 3071 (S.C.J.): Ipod battery. $45 store credit. Legal fees of $100,000 nationally.
Wong v. Sony Corp., [2008] O.J. No. 3096 (S.C.J.): DVD players. The court granted conditional certification pending a later settlement approval hearing.
Passaro v. Fédération Interprofessionnelle de la santé du Québec (FIQ) 2008 QCCS 910: Illegal strike.
Press reports indicate that approximately 15,000 Honda and Acura owners in Quebec have until the end of October to claim a $37.50 reimbursement from Honda Canada Inc. for defective ignition starter switches that had to be replaced following a 2002 safety recall, as part of a class action settlement.
Bayard v. Ville de St. Gabriel, 2008 QCCS 2161: Water quality class action settled.
Bergeron c. Télébec, s.e.c., add 2008 QCCS 1404: Settlement notice approved in this phone charge class action.
Bernèche c. Canada (Procureur général): 2008 QCCA 1581(leave to appeal interlocutory pleadings issue dismissed), 2008 QCCS 2248 (partial settlement approval) 2008 QCCS 2815 (particulars and motion to strike certain paragraphs): The manufacturer Ridley has settled this Mad Cow case nationally (although there is a wrinkle to iron out in Ontario). Procedural dogfights continue with the feds.
Hamel add (sub nom) Blouin c. Ste-Anne-de-Beaupré (Ville de), 2008 QCCS 3793: Environmental class action settled.

SUMMARY JUDGMENT MOTIONS
Murphy v. BDO Dunwoody LLP, [2008] O.J. No. 3065 (S.C.): The defendant sought summary judgment against the representative plaintiff alone in this certified investment class action. The court dismissed the application.

MOTIONS TO STRIKE
Arenson v. Toronto (City), [2008] O.J. No. 2875 (S.C.J.): Motion to strike frozen parking meter class action granted with leave to amend.
Hassum v. Contestoga College Institute of Technology and Advanced Learning (2008), 167 A.C.W.S. (3d) 93, [2008] O.J. No. 1141 (S.C.J.): Proposed school fee class action struck.
Leo Deluca Enterprises Inc. v. Lombard General Insurance Co. of Canada (2008), 60 C.C.L.I. (4th) 276, [2008] O.J. No. 1230 (S.C.J.) (striking claims); [2008] O.J. No. 2876 (S.C.J.) (reversed on reconsideration): Ice storm adjustment case allowed to stand after reconsideration based on Ontario Court of Appeal decision.

JURISDICTION FIGHT IN SECURITIES CLASS ACTION
McCann v. CP Ships Ltd., [2008] O.J. No. 2050 (S.C.J.): A proposed U.S. settlement did not include Canadians. Counsel in Ontario sought declaratory relief to confirm that the U.S. court did have jurisdiction over particular Canadian claims that might arguably still fall within the U.S. class definition. The court declined to grant the declaratory relief stating: "It bears noting at the outset that the plaintiff's concerns about the adequacy of the U.S. notices and the definition of the U.S. class may well be borne out in the future. However, the U.S. court has not yet issued its final judgment and, in my view, it would be wrong to presume what the U.S. judgment will be. This is particularly so because the plaintiff is at liberty to seek to raise his concerns in the U.S. as his B.C. counterpart is proposing to do. As a result, the plaintiff's motion is premature, based as it is, on a hypothetical or an assumption of what the U.S. court will rule in June."

TOBACCO CLASS ACTION CONTINUES
Conseil québécois sur le tabac et la santé c. JTI-MacDonald Corp. 2008 QCCS 2188 Summary judgment on limitations dismissed. 2008 QCCS 2481: Application to sever parts of trial refused.

ADMINISTRATOR APPROVED
Option Consommateurs v. Service aux marchands détaillants Ltée, 2008 QCCS 2394: Court approved administrator of judgment after successful class action trial.

PENSION PLAN SURPLUS CASE CERTIFIED
McGee v. London Life Insurance, [2008] O.J. No. 1760 (S.C.J.) (certification); [2008] O.J. No. 2678 (S.C.J. (Div. Ct.)) (leave to appeal refused); [2008] O.J. No. 3201 (S.C.J., (Div. Ct.)) (costs endorsement): Usual analysis.

NEED FOR FAMILY CLASS REPRESENTATIVE CONSIDERED
Voutour v. Pfizer Canada Inc., [2008] O.J. No. 3070 (S.C.J.): The Plaintiff sought to add a representative plaintiff for the family derivative claims. The original claim did refer to derivative claims, but had no plaintiff. The Defendant opposed stating that the limitation period for derivative claims had expired. The court allowed the addition of the representative noting:
"I am, moreover, by no means satisfied that, as a matter of pleading under the CPA, Mr. Voutour could not assert the derivative claims of the family class. In Boulanger, the Divisional Court unanimously endorsed the view of Nordheimer J. at first instance that the words of section 2(1) of the CPA
"... demonstrate that the legislature intended to authorize a representative plaintiff to advance claims for class members which the representative plaintiff might not have in her personal capacity".
If, as the words of para. 44 of the pleading suggest, Mr. Voutour was intending to assert the derivative claims of the family class, it is not clear to me that Mr. Zakaib's submissions on section 28 of the CPA are correct. I note that, for the purposes of the CPA, the primary class and the family class could be considered as subclasses of a composite class as their members could share any common issues relating to the fault or neglect of the defendants. The allegations made in the statement of claim with respect to such matters would constitute some of the material facts for the causes of action of members of the family subclass, as well as for those of the primary subclass. Arguably, Mr. Voutour is permitted to assert, and plead, the claims of all members of the composite class that include the family class. If that is the correct interpretation and effect of the pleading, the possibility that, for the purposes of certification a separate representative should be appointed pursuant to section 5(2) of the CPA for the family class, as a subclass of the composite class, does not appear to me to be relevant. If the above analysis is correct, the limitation period applicable to Ms. Voutour's claims as a member of the family subclass would - pursuant to section 28 of the CPA - have been suspended by the commencement of this action. This would be a complete answer to the defendants' submission that it is obvious that the limitation period has expired. However, quite independently of the above comments, I do not consider that this is a case in which the addition of Ms. Voutour as a plaintiff asserting claims on behalf of the family class should be disallowed, even if the limitation period applicable to them has expired."

SCOPE OF EXAMINATIONS
Dallaire v. Eli Lilly Canada inc., 2008 QCCS 1422: The Quebec Court allowed an examination of the medical history of the representative plaintiffs in this certified action on the basis that it would facilitate the determination of the common issue in relation to the entitlement to damages.
Huneault c. Fonds AGF inc., 2008 QCCS 3729: Pre-certification examination of plaintiffs allowed in complex "market timing" case.

SETTLEMENT ISSUES CONSIDERED
Doyer v. Dow Corning, 2008 QCCS 1721: Court refused to allow application to change claim category after the deadline.

QUEBEC ENVIRONMENTAL CASES CONSIDERED
Association des citoyens et citoyennes pour un environnement sain de Fatima inc. v. Bois et placages généraux ltée 2008 QCCS 3192: Case certified.
Deraspe v. Zinc Électrolytique du Canada ltée, 2008 QCCS 2338: Air pollution case refused certification.
Regroupement des citoyens du quartier St-Georges inc. c. Alcoa Canada Ltée, add 2008 QCCS 1384 (amendment), 2008 QCCS 1653 (particulars)

NEED FOR PROPER REPRESENTATIVE EMPHASIZED IN QUEBEC
Comtois v. Telus Mobilité 2008 QCCS 1562: Certification refused of cell phone charge case. Main ground was that the representative plaintiff had not taken the obligation seriously, and had not produced all necessary documentation.
Maclean (Forbes) (Succession de) v. Barreau du Québec, 2008 QCCS 3000: Certification refused to lack of adequate plaintiff. The representative cannot be in a position where he would have to breach a duty of confidentiality in order to advance the case.
Leblanc v. Capital d'Amérique CDPQ inc., 2008 QCCS 3188: Certification refused. Representative plaintiff was not actually controlling the litigation.

TAX REFUND CASE DENIED CERTIFICATION
Option Consommateurs v. Pétroles Irving inc., 2008 QCCA 1591: Court held that only remedy for tax refund was to apply to the Minister. While there might still be a punitive damage claim against the defendant, the court found that punitive damages alone were not sufficient to support certification.

MANAGING INDIVIDUAL ACTIONS
Fortier v. Mattel Canada Inc., 2008 QCCS 2697, leave to appeal dismissed 2008 QCCA 1339, a Quebec court held that the application for a stay of an individual action was premature in advance of certification.

CONTRACT CASES CERTIFIED IN QUEBEC
Uneault v. Société de transport de Montréal 2008 QCCS 3040: Service interruption during strike.
Lachapelle v. Bell Canada, 2008 QCCS 2396: Phone charges

APPLICATION TO EXPAND CLASS REFUSED.
Fournier v. Banque de Nouvelle Écosse, 2008 QCCS 1849: Court refused to grant application to add new plaintiff/defendant pair to this bank fee class action.

MORTGAGE CLASS ACTION BITES THE DUST
Option Consommateurs v. Fédération des caisses Desjardins du Québec, 2008 QCCS 3639: Limitation issues were main reason for refusal to certify.

COURTS ALLOW AMENDMENTS TO CLASS MOTIONS IN ADVANCE OF CERTIFICATION
Lavallée c. Astrazeneca Pharmaceuticals PLC, 2008 QCCS 2597 and Union des consommateurs (Guay) c. Pfizer Canada inc., 2008 QCCS 1263

CHICKEN AND EGGS
Campbell v. Canada (Attorney General), 2008 FC 353: Court granted defendant’s request to hear motion to strike prior to motion for certification.

CONSTITUTIONAL CASE ADJOURNED
Horner v. Saskatchewan, 2008 SKQB 273: Court found that the class action should not move forward until final disposition of an individual action pending before the Supreme Court of Canada.

JURISDICTION CONSIDERED
Warren v. ABC Wilderness Adventures Ltd., 2008 ABQB 258: A group of shareholders who live in Alberta, British Columbia, Manitoba and elsewhere sued a federally incorporated company and its directors and officers who reside in British Columbia, Massachusetts and Ontario for allegedly making misrepresentations, acting oppressively and otherwise violating their duties. Court held that case should proceed in B.C.

GOD WILLING, THE LAST DEDUCTIBLES GASP
McNaughton Automotive Limited v. Co-operators General Insurance Company, 2008 ONCA 597: The Court of Appeal considered how to deal with costs arising from its decision to overrule an earlier case aka "The Case that Launched a Thousand Lawsuits".
The court upheld the costs awards in favour of the insures. In relation to the s.31 factors, the court stated:
"Before addressing the motions judge’s assessment of the s. 31(1) factors, I note that the decision of how much weight to accord these factors is discretionary. The discretionary character of the decision is evident not only from the s. 31(1)’s reference to the court’s "discretion with respect to costs" under the Courts of Justice Act, but also from the second part of the provision: "the court may consider whether the class proceeding was a test case, raised a novel point of law or involved a matter of public interest" [emphasis added].
The plaintiffs commenced all of these actions before the court after the court’s decision in McNaughton I, on the premise that this court had decided in their favour the interpretation of statutory condition 6(7). There is no issue that McNaughton I was a test case. As for the cases at bar, however, I agree with the motions judge when he accepted the insurers’ characterization of the preliminary motions in these cases:
The defendants contend that the preliminary motions relating to jurisdiction, the limitation period, the OPCF 43 endorsement, the meaning and application of "actual cash value" and the alternative pleadings in conversion and unjust enrichment may have involved novel facts but were resolved with the application of settled law. I agree with this characterization of these issues. I accept that the interpretation of the subject statutory condition represented a novel issue involving a matter of public interest and I indicated as much in my reasons for making no order as to costs in disposing of the original application on August 14, 2000.
I see no merit in the submissions of the plaintiffs and the Law Foundation that the various motions in issue here can be collectively characterized as a test case and that these motions raise novel points of law. Apart from some motions that revisited the issue of the interpretation of statutory condition 6(7) (not the subject of this application), the issues raised by the remaining motions could fairly be described as typical of everyday civil litigation.
For similar reasons, I agree with the motions judge that the issues raised in the generic motions do not "impact anyone beyond the reach of these proceedings" and therefore do not engage the public interest in the broader sense meant by the CPA."
The court also agreed that the chambers judge properly found that substantial indemnity costs should be awarded in particular cases due to the dismissed fraudulent concealment allegation.

SUMMARY JUDGEMENT MOTIONS IN AFTER MARKET PARTS CASES
Cyr v. Royal & SunAlliance Co. of Canada [2007] O.J. No. 5411 (S.C.): The defendant based its argument in this case based on spoliation. The court rejected the motion stating: "I am of the view that summary judgment based on spoliation requires factual determination best left for the trial Judge at the trial of common issues. The issues of innocent inadvertence, failure to fulfill a duty and whether in these circumstances, namely an operating aging car, that failure to preserve when no inspection had been requested does amount to spoliation, are all matters for which evidence is appropriate."
Punit v. Wawanesa Mutual Insurance Co. [2007] O.J. No. 5412 (S.C.): Summary judgment was sought based on fact that plaintiff did not have an after-market part. Following inspection on September 7, 2006 by the Plaintiff's expert, it was determined that the part in question, which was replaced on the Plaintiff's vehicle, was an original part of the manufacturer Chrysler Canada. The court granted the motion stating:
"The Defendant Wawanesa asserts that there is and can be no genuine issue for trial as to whether the Plaintiff has a cause of action against the Defendant, since the foundation for such action - a non-OEM part - is absent. The Plaintiff claims that notwithstanding the absence of a non-OEM part in the repair of her vehicle, she may be a fit and proper representative Plaintiff on behalf of a class since by stipulating in its repair estimate that non-OEM parts may be used, the Defendant is in breach of its contract with the Plaintiff, which may entitle her to declaratory re-lief, nominal damages and punitive damages. I accept the general proposition advanced on behalf of the Plaintiff that the Plaintiff might in law be entitled to the relief sought, remedies such as nominal damages and declaratory relief.
In my view, the potential availability of these causes of action should not prevail in this context. The additional relief is clearly consequential on the essential premise of the claim. The Plaintiff claims as a representative of a class: that class being persons whose cars were repaired with non-OEM parts. In my view, it would not be appropriate to consider as a plaintiff for certification purposes one who could not meet the essential test. In this case the failure to meet the essential test is admitted. Counsel for the Plaintiff commenced the action with the expectation that the Plaintiff met the essential test, i.e., use of non-OEM parts. The Plaintiff had the means to determine with certainty whether or not the test was met. Unfortunately, this was not done. In my view, a representative plaintiff within the Class Proceedings Act should for the purpose of meeting the common issue(s) test be a person who can meet the essential issue test in the action. An individual who can only recover on the basis of lesser or consequential claims should not be a representative plaintiff for a whole class that is concerned with an essential issue for which the proposed plaintiff cannot qualify, even though that person may be able to recover damages on another basis if a class is certified."
Samuels v. Co-operators General Insurance Co. [2007] O.J. No. 5413 (S.C.): The Plaintiff did not own but rather leased his vehicle. He returned the vehicle at the conclusion of the lease period, neither he nor the leasing company knew that the vehicle had been repaired with non OEM parts, and he has led no evidence that he sustained any compensable loss whatsoever arising from their use. The court granted summary judgment stating:
"In this case, the cause of action would appear, if at all, to be that of the leasing company, not the Plaintiff. In my view the subsidiary and derivative causes of action should not be used to "bootstrap" the Plaintiff into the position of a representative Plaintiff for a class to bring forward the claim in the essential issue in which this Plaintiff will likely fail. In my view it would be a misuse of the process under the Class Proceedings Act to permit an individual to represent a class when that individual's action cannot succeed factually or in law. An individual who fails the essential issue test should not continue as a representative of a whole class when he or she can only succeed on subsidiary or derivative grounds."
Venturin v. Zurich Insurance Co. [2007] O.J. No. 5414 (S.C.): In this case the position of the Defendants was that it did not direct the use of non-OEM parts. Further, the plaintiff knew of and consented to the use of non-OEM parts. The evidence suggested that an intermediary recommended and the Plaintiff concurred that non-OEM parts be installed to avoid the vehicle being written off. The court held: "In this case, the intermediary of the friend and independent auto collision repairer at the very least interferes with a direct relationship and at most destroys that relationship. On the facts before the Court at this stage, the proposed representative plaintiff cannot establish that the Defendant mandated the use of Non-OEM parts in this Plaintiff's vehicle.

SYDNEY TAR PONDS UPDATE
MacQueen et al v. Nova Scotia: There was a decision from the bench on May 9, 2008. Justice MacAdam ruled that the Defendants were allowed to discover the Plaintiffs and experts on the certification application.

DECISION TO MOVE CLASS ACTION TO QUEBEC CITY OVERTURNED
Gauthier c. Société d'habitation du Québec, 2008 QCCA 948: Court held that determination was premature prior to certification.

(Hick) ALCOHOL PRICING CLASS ACTION DISMISSED (urp!)
Chifoi c. Société des alcools du Québec, 2008 QCCS 3871: No cause of action found.

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