June 2010
Monday, June 14, 2010
Branch MacMaster

The writer has recovered sufficiently from the Canucks' playoff exit to post a new entry, the sting having been eased by the Hawks' subsequent success allowing Vancouver to claim the title of "Second Best Team in Hockey".

The pain was also mellowed by the writer's old timers' team winning our club championship, leading to a now-hazy and best-forgotten evening quaffing rye out of a pale imitation of Lord Stanley's Mug.

The hockey season's resolution allows our focus to turn to our annual sojourn to Northern New Brunswick. This year's trip will be a special one, as we watch our own cottage being built adjacent to our parent's place within "The Compound". In usual Maritime fashion, construction is already two months behind schedule one month into the project. But the flip side to this casual approach is that our contractor still hasn't asked us for any money!

Feel free to pop by if you are in my neighbourhood. As always, if you: (a) are anxious for real time class action updates, follow me on Twitter at http://twitter.com/wbranch99, (b) like to luxuriate in the past, you can find back issues of the blog on our revamped website: http://www.branchmacmaster.com/class-action-blog-archive/. Note the ability to use the "Search" feature on the right hand bar to find any past entries on specific cases.

CLASS ACTIONS ON THEIR WAY TO THE SUPREME COURT OF CANADA

Two class actions are on their way to the Supreme Court of Canada.

Alberta v. Elder Advocates of Alberta Society, [2010] S.C.C.A. No. 27: Leave granted of decision certifying nursing home class action against the Province of Alberta. The writer is co-counsel for the Province.

Knight v. Imperial Tobacco Canada Ltd., [2010] S.C.C.A. No. 41: Leave granted of decision holding that feds could be brought in as a third party in the certified lite cigarettes tobacco class action.

It is expected that these appeals will focus on the scope of government liability rather than any specific class action issues.

SETTLEMENT AND FEE APPROVAL

Chocolate price fixing settlement approved in Ontario and British Columbia, notwithstanding that the settlement reserved class' right to argue that liability for breaches of the Competition Act remain joint: Osmun v. Cadbury 2010 ONSC 2643, and Main v. Cadbury, 2010 BCSC 816. The writer was co-counsel for Plaintiffs in B.C. Interim fees of 25% were approved in Ontario: 2010 ONSC 2752. Certification for settlement purposes was granted in Quebec, and a decision on settlement approval is pending: Roy c. Cadbury Adams Canada inc., 2010 QCCS 323 and 334.

Brochu c. Société des loteries du Québec (Loto-Québec), 2010 QCCS 1138: Gambling addiction case settlement approved.

Partial price fixing settlements approved in high fructose corn syrup cases: Ali Holdco Inc. v. Archer Daniels Midland Co., 2010 ONSC 3075 Sun-Rype Products Ltd. v. Archer Daniels Midland Co., 2010 BCSC 472, and in the methionine case Ford v. Degussa-Hüls A.G., 2010 ONSC 2787.

Doe v. The Scarborough Hospital, unreported (May 7, 2010) 06-CV-811846 (Ont. S.C.): Hepatitis B risk warning case. Case was previously certified on May 25, 2007. Case included 9 infected class members and 470 contact notice class members. The settlement was agreed prior to judgment coming down in Healey v. Lakeridge Hospital, infra, casting a pall on the ability to recover for merely receiving a letter. The infected individuals and their families received either $50,000, or a referee award with no cap. The notice class received $1000, from which $40 was payable to Kidney Foundation of Canada in lieu of payment to family members. A fee of 26.5% was approved (assuming all class members opted for the $50,000 set sum), which equated to a multiplier of 1.15. The final actual fee amount would be approved and established at the conclusion of all references.

Elliott v. NovaGold Resources Inc., 2010 ONSC 2683: Worldwide class certified for settlement purposes. Canadian Class was confined to individuals who traded on TSX. Case also going to be settled in US. Class members who overlapped between the two cases would have to elect which settlement applied, failing which the US case would govern. In accepting jurisdiction, the Court noted that one of defendants had head office in Ontario, approximately 25-30% of the Novagold shares were traded on TSX, and a number of press releases were disseminated in Ontario. The court carefully assessed the reasonableness of the proposed extraterritorial notice. A separate BC TSX class was also certified: Elliott v. NovaGold Resources (unreported May 6, 2010) VLC-S-S-097866 (B.C.S.C.).

Boulanger v. Johnson & Johnson Corp., 2010 ONSC 2359: Interim fee approval considered in a capped reversionary settlement. The court held that approval should be delayed stating: "My primary concern, at this stage, is to protect the class members by ensuring that there is an adequate fund available to pay their claims. It would be unacceptable to pay a very substantial fee to class counsel, only to find that there are insufficient funds remaining to pay claims in full. It is preferable to award a reasonable portion of the fee at this time, leaving some in reserve as a cushion against depletion of the settlement fund. It makes sense to defer the final fee award for other reasons. The real value of the settlement, in terms of cash in the hands of injured class members, will only be known once their claims have been quantified. If the claims process results in only a small number of eligible claimants, and modest levels of compensation, with a large reversion to the defendant, it might be inappropriate to compensate class counsel with a fee that is disproportionate to the result actually achieved. As well, the time and effort expended by class counsel in assisting class members through the claims process will be an important factor to consider in determining the overall fee. Deferral of the fee enables the court to take all these factors into account in arriving at a fair and reasonable fee. It also creates an incentive for class counsel to facilitate the expeditious completion of the claims process. For these reasons, I will make an interim fee award of $1,500,000.00 (one million five hundred thousand dollars), inclusive of taxes and disbursements" Class counsel had $2 million in time at the time of approval.

J.C. c. Bachand, 2010 QCCS 1842: Class member in residential schools case sought to bring an action against the administrator. Court held that leave was required from the settlement approval judge in order to pursue such a claim, given the terms of the settlement agreement.

Boulerice c. Bell Canada, 2010 QCCS 1918: Notice approved and settlement approval date established in this proposed late fee class action settlement.

Harrington v. Dow Corning Corp., 2010 BCSC 673: Court rejected class member's appeal of refusal of her claim. The court stated "In my view, it is not open to the court to, in effect, re-write the provisions of the Settlement Agreement with respect to the requirements for proof of claims in this fashion." (at para.15)

Bibaud c. Banque Nationale du Canada, 2010 QCCS 1727: Notice approved and settlement approval date established in proposed service fee class action settlement.

Mailhot c. Diabète Amiante inc., 2010 QCCS 1789: Settlement approved in case involving alleged reuse of needles in contaminated blood sugar testing equipment. No individual was infected. Payment of $170g made to 170 class members, plus fees of $39,000.

Abdulrahim v. Air France, 2010 ONCA 403: Appeal by non-settling defendant of partial settlement order refused. As in the chocolate case, supra, the court found that there was nothing in the proposed bar order that prevented the non-settling defendant from exercising any substantive rights in may have. The court also held that the bar against discovery was appropriate given that the litigation was already at an advanced stage with the non-settling defendant having had full rights of discovery for many years.

Richer c. Banque Nationale du Canada, 2010 QCCS 2142: Class action alleging misrepresentation of an investment as unattachable was certified, and a settlement approved.

Thibault c. St. Jude Medical Inc., 2010 QCCS 1575: Settlement approved in medical products case

Langlois c. Roy, 2010 QCCS 1610: Pension settlement approved.

Therrien c. Compagnie de volailles Maxi ltée, 2010 QCCS 1244: Nuisance class action certified, and settlement approved.

Speevak v. Canadian Imperial Bank of Commerce, 2010 ONSC 1128: Release of private information action certified, and settlement approved. The terms of the settlement were as follows: "[E]ach class member will be provided with a claim form to be submitted to CIBC. In response, CIBC will make a settlement offer to the claimant. If this offer is not accepted, the class member is entitled to have his or her claim assessed by an independent arbitrator. The right to claim for identity theft at any time in the future is preserved. CIBC will pay the costs of class counsel and the arbitration process. CIBC will also pay $100,000 to a registered charity." Fees of $42,500 were paid up to the date of mediation and partial indemnity costs thereafter. The Class Proceedings Fend would be paid 10% of any damages recovered.

Doucette v. Eastern Regional Integrated Health Authority, 2010 NLTD 29: $17.5 million settlement in relation to faulty breast cancer screening. A 33.3% contingency fee was approved.

Kidd v. Canada Life Assurance Co., 2010 ONSC 1097: Tentative settlement in place in pension action. Court issued declaration on the consents required.

Communication Méga-sat inc. c. Sharp Electronics of Canada Ltd., 2010 QCCS 322: Notice approved of proposed settlement.

Catalyst Paper Corp. v. Atofina Chemicals Inc., 2009 BCSC 1659: 15% fee approval on partial settlement in hydrogen peroxide price fixing case. Parallel case certified Ontario. Fee represented a shade over a 2X multiplier.

CERTIFICATION

Bell v. Cara Operations Ltd. (May 31, 2010) 4802/10 (Ont.S.C.): Certification consented to in relation to E.coli case at a certain fast food restaurant commenced by a certain Windsor law firm aka "Harvey's Harvey's case". The writer is counsel for one of the defendants.

Goodridge v. Pfizer Canada Inc., 2010 ONSC 1095: Gabapentin class action certified by Justice Perrel. However the proposed scope was narrowed. The court did not certify the claims relating to allegations that the Defendants wrongfully and falsely promoted Neurontin for "off-label" uses in Canada, nor claims or common issues about the Defendants being liable for generic drugs manufactured by their competitors, on the basis that there was "no basis in fact" for the former claim, and that it was "plain and obvious" that the second claim could not succeed. The court did accept that "the increased risk of experiencing suicidal behaviour allegedly caused by Neurontin is a materialized actual harm just as much as, for example, would be the increased risk of a experiencing a heart failure caused by a drug that raised or lowered one's blood pressure to dangerously high or low levels " (para.58).

On class definition, all persons who were prescribed and ingested the drug were included. The court noted the need to treat Alberta's health care claim differently, as the Alberta statute did not provide for subrogated claims. (at para.115)

The court certified standard products liability questions, but refused to certify punitive damages. The court bifurcated the waiver of tort issues.

Schroeder v. DJO Canada, Inc.,2010 SKQB 125: Pain pumps class action certified. On the cause of action test, the court concluded that Saskatchewan's version of the test was a "slightly higher threshold requirement". He summarized the Saskatchewan test as "Assuming the facts as pleaded are true, have the representative plaintiffs persuaded the Court that there exists a plausible basis for supposing the de-fendants could be liable for the claims of the class?" The court continued stating "Our Court of Appeal determined that one of the objectives of our legislation was to create a screening mechanism aimed at permitting a proposed class action to be certified only where there are "authentic" causes of action. A screening mechanism was considered to be particularly important in Saskatchewan because plaintiffs who commence proposed class actions in this jurisdiction are protected against an award of costs. Consequently, there is no disincentive to plaintiffs who commence marginal litigation in hope of inducing a settlement from a defendant who wishes to avoid exposure to the enormous costs associated with class action litigation." (at para.27).

The court approved a "claims made" limit on the class definition (para.80). A subclass of Saskatchewan residents was created in relation to local Consumer Protection Act issues. The court certified a general causation question being "Does the DonJoy Pain Control Device cause chondrolysis when placed in the synovial cavity of a knee or shoulder following surgery?", as well as the usual duty, breach, Consumer Protection Act, and punitive damages issues. On preferable procedure, the court stated "I have considered all of the other options available to the class members, including individual actions and test cases. However, given all of the circumstances, including but not limited to the complexity of the issues involved and the significant costs associated with prosecuting such a claim, I am convinced that the class action is not only preferable, but perhaps the only viable option." (at para.147)

After the court concluded that all the statutory requirements were met, the court went on to consider whether there were any residual considerations that might prevent certification, relying on Western Canada Shopping Centres. The author's view is this review was in error. The statutory requirements comprise the entire certification test, and no residual discretion exists if the requirements are met. Western Canadian was decided under the old representative rules, and hence is distinguishable. However, the court found no residual factors, making the issue moot.

The court certified on a national opt out basis..

Brown v. Canada (Attorney General), 2010 ONSC 3095: Certification sought of class of aboriginal persons allegedly "scooped" from 1965 to 1984, and placed with non-aboriginal families. The court found that "(a) with amendments to their statement of claim; (b) with revisions to the proposed class definition and proposed common issues, and (c) subject to the preparation of an adequate litigation plan, Ms. Brown and Mr. Commanda will be able to satisfy all five criteria of the test for certification". The court found that the following question could be the subject of a class proceeding: "In Ontario, between December 1, 1965 and December 31, 1984, when an aboriginal child was placed in the care of non-aboriginal foster or adoptive parents who did not raise the child in accordance with the child's aboriginal customs, traditions, and practices, did the federal Crown have and breach a fiduciary or common law duty of care to take reasonable steps to prevent the aboriginal child from losing his or her aboriginal identity?"

The court struck various other causes of action. The court found that the proper class definition was: "Aboriginal persons in Ontario between December 1, 1965 and December 31, 1984 who were placed in the care of non-aboriginal foster or adoptive parents who did not raise the children in accordance with the aboriginal person's customs, traditions, and practices."

The court rejected the Feds' test case alternative stating: "The class action that emerges removes the idiosyncratic issues associated with identification as aboriginal, causation, damages, and quantification of damages that would have made a test case meaningless unless the Federal Crown were to concede some or all of those idiosyncratic issues for the purposes of being bound by the test case...In a sense, the litigation of Ms. Brown's and Mr. Commanda's story will be the test case for deter-mining whether the Federal Crown committed a civil harm" (paras.182, 185)

Johnston v. The Sheila Morrison Schools, 2010 ONSC 3334: School abuse case certified on consent.

Class action (almost) certified in relation to conditions at Ontario institution for mentally disabled: Dolmage v. Ontario, 2010 ONSC 1726.

Coulson v. Citigroup Global Markets Canada Inc., 2010 OJ 1109: Certification was dismissed due to expiry of limitation period. On costs, the court stated that "The effect of s. 31(1) of the Class Proceedings Act, 1992, S.O. 1992 is to encourage the court to recognize that class actions tend toward being test cases, the determination of a novel point of law, or the adjudication of matters of public interest and courts, therefore, should be alert to and respond to these tendencies when making decisions about costs...[T]he presence of any of the factors mentioned in s. 31(1) of the Act does not preclude the court from exercising its discretion to award costs against an unsuccessful plaintiff." The court found that the case did raise novel issues about the operation of limitation periods. That was sufficient to lower the amount otherwise payable. The court awarded each of the group of underwriters and Deloittes $70,0000: 2010 ONSC 2553:

International class action certified against George Brown College: Ramdath v. George Brown College, 2010 ONSC 2019: Court found that there was a sufficient common factual core created by statements in the written calendar.

On the international breadth of the class, the court held:

"In this case, looked at from the perspective of both the international students and George Brown, there would be every reason for both to expect that claims arising from their relationship would be litigated in Ontario. Given that George Brown is based in Ontario, the students came to college in Ontario and lived in Ontario, and the contract was performed in Ontario, it is hard to imagine that either party would have contemplated that George Brown would be sued in China, India or any one of the other foreign jurisdictions if the relationship broke down. There is, in any event, a real and substantial connection with Ontario and there is no such connection with any other single jurisdiction. The second factor, respect for procedural rights, including adequate representation of non-resident Class Members, is an issue that must be addressed and I will deal with it under the question of the representative plaintiffs and the litigation plan. The notice aspect of procedural fairness can also be addressed in dealing with the litigation plan. I do not accept the proposition that procedural fairness in this case requires satisfying myself beyond any doubt that each member of the Class will receive actual notice of the action and of his or her right to opt out. This is not a requisite of a purely provincial or interprovincial class action and it could make effective international class actions a practical impossibility. Nor do I accept the proposition that the court should not exercise jurisdiction over non-resident class members where there is evidence that a particular foreign jurisdiction might not recognize a class action judgment either altogether (as is said to be the case in China) or in the absence of actual notice (as is said to be the case in India). The hypothetical failure of another state to observe the generally accepted principles of private international law in connection with the assumption of jurisdiction and the recognition of foreign judgments should not preclude an Ontario court from taking jurisdiction in a class action involving its residents, provided the conditions set out in Currie are met" (paras.71-72)

The court looked to the IBA Guidelines and stated "It is clear from the evidence of George Brown's experts in foreign law that there is no legal precedent, in either India or the PRC, for the recognition, or non-recognition of the class action decisions of the courts of other jurisdictions. If the Guidelines are intended, as they say they are, to state "minimum internationally accepted standards" to be followed by courts issuing judgments in class proceedings, and to be considered by courts of other jurisdictions in determining whether such judgments will be recognized, why should I assume that the courts of India, of the PRC, or of any other jurisdiction will refuse to observe those minimum standards?" (at para.84)

The court did conclude that the notice plan would be critical to engaging individuals outside Ontario. The court deferred the determination of the notice plan for a later hearing.

On class definition, the court confirmed that "the possibility that some class members will be unable to prove damages is a necessary result of the requirement that the class definition cannot be merits-based." (para.95)

On common issues, the court refused to certify aggregate or punitive damages stating " I am not at all satisfied that it is appropriate to state a common issue of aggregate assessment in this case and as it is not necessary, I do not propose to do so. It can properly be left to the trial judge. The plaintiff also puts forward the entitlement to punitive damages as a common issue. It may be appropriate to award punitive damages where the conduct of defendant is aimed at the class as a whole: Robinson v. Medtronic Inc., [2009] O.J. No. 4366 (S.C.J.) In this case, however, it will only be possible to assess the defendant's liability for punitive damages after individual assessments of damages have been made. The punitive damages claim is not appropriate as a common issue." (paras.120-121)

The court also refused to certify a question asking whether the defendant should pay the cost of administering any recovery stating "It is not necessary to have a common issue such as question 14, dealing with the administration of recovery. There is authority under s. 12 and s. 25(2) of the C.P.A. to give directions concerning the resolution of the issues remaining after the determination of common issues in favour of the class."

Finally the court declined to certify the issue of prejudgment interest stating "As individual trials will likely be required to assess damages in this case, prejudgment interest is not an appropriate common issue." (para.124)

On preferable procedure, the court found that joinder was not practicable for a class of 119 students.

The Defendant asked that individual issues be determined before any common issues. The court declined to do so stating "George Brown is really trying to turn this action into an opt-in class action by requiring each Class Member to come forward and establish his or her entitlement to claim prior to the resolution of the common issues. This proposal stands class proceedings on their head and would result in a waste of judicial and private resources if the common issues were ultimately decided against the Class. It may be the case that, in an exceptional circumstance, the court's jurisdiction under s. 12 of the C.P.A. would permit the determination of some or all individual issues before the common issues, but I have some difficulty in contemplating what those circumstances might be. I see no reason to do so in this case." (at para.150).

The court created three subclasses, but confirmed that it was not necessary to have a separate representation for the third group where there was no suggestion of a conflict. However, the court found that there should be a separate representative on behalf non-resident Class Members as ". These persons have unique interests concerning several matters, including purely administrative issues such as notice and communication, as well as substantive matters such as damages. They may have incurred substantially greater costs to attend George Brown, including higher tuition, visas, transportation and residence costs. Their voice should be separately heard in the action itself and in any discussions of settlement."

On the litigation plan, the plaintiff's counsel confirmed for the court that her firm's retainer would continue after the resolution of the common issues.

Dennis v. Ontario Lottery and Gaming Corp.2010 ONSC 1332: The Plaintiff sought to represent a primary class of approximately 10,428 individuals who signed "self-exclusion" forms provided by the Ontario Lottery and Gaming Corporation ("OLGC") between December 1, 1999 and February 10, 2005. The action was brought to recover gambling losses subsequently incurred as a result of OLGC's alleged failure to exercise its best efforts, and to take care, to exclude them from its gambling venues. The court refused certification:

"I believe that serious flaws in the plaintiffs' case for certification are exposed when consideration is given to the requirements of commonality, and that of a rational connection between the class definition and the proposed common issues. For the reasons that follow, I am satisfied that:

1. the claims advanced on behalf of the class members are predicated, and dependent, on their vulnerability;2. vulnerability is not a condition of class membership. As defined, and, in consequence, causes of action that are addressed by the proposed common issues are not confined to compulsive gamblers;3. the problem of over-inclusiveness of the class definition, and the conse-quential individualistic nature of the proposed common issues, cannot be resolved by the use of statistical evidence to characterize a percentage of the class members as pathological problem gamblers; and4. in consequence, the requirement of a class in section 5(1)(b) and of com-mon issues in section 5(1)(c) of the CPA are not satisfied and certification must be denied...

In short, if, as I believe, the degree of vulnerability of members of the primary class is relevant to such other elements of liability, it is not permissible to conclude on the basis of statistical sampling, or a five-minute labelling test, that any of the class members was a vulnerable problem gambler to any particular degree. Individual inquiries would be necessary for this purpose and this would then be an example of the situation referred to by the Chief Justice in Rumley v. British Columbia, ...where a determination of the proposed common issues would degenerate into a consideration of the claims of each of a potentially diverse group of individuals. There would have to be an inquiry into the personal circumstances, the gambling history, the extent of the addiction or compulsion to gamble of each class member at particular times, and, if the approach to causation in Calvert is accepted, his or her likely behaviour if OLGC had exercised its best efforts or exercised reasonable care. An attempt to avoid problems of class definition and commonality at the certification stage by relying on statistical evidence at trial for the purpose of narrowing the class is not in my opinion acceptable....[at para.221]

Again, the CPA does not, in my opinion, permit the commonality of issues of breach to be determined -- from studies of alcohol or drug addictions, as Dr Williams suggested, or otherwise -- on the basis that it is statistically more likely than not that any self-excluded person, or number of them, would subsequently attempt to return to OLGC's gambling facilities. Common issues are those that can be determined on a class-wide basis -- and not on the basis of expert evidence of the statistical probability of commonality. Defendants in individual actions are not subjected to liability on the basis of statistical probabilities that the material facts that constitute a cause of action exist or have occurred. The CPA, as a procedural statute, does not alter this position except for the limited purposes referred to in section 23." (at para.224)

Koubi v. Mazda Canada Inc.,2010 BCSC 650: Car lock defect case certified. Waiver of tort certified. However, the court held that whether the class was entitled to damages for loss of use and enjoyment of their vehicles on an aggregate basis pursuant to s. 29 of the CPA was not an appropriate common issue. That was because the defendants' conduct could not be considered in isolation from individual circumstances of the claimants. There was no basis in the evidence to suggest any uniformity in the extent to which individuals may have been affected. Similarly, whether punitive damages would be warranted or would serve a rational purpose, and the quantification of such punitive damages, were not amenable to resolution as common issues. The action was certified subject to the plaintiff's producing a more comprehensive litigation plan.

Morrison Estate v. Nova Scotia (Attorney General), 2010 NSSC 196: Case challenging nursing home entry policy certified. Province's only challenge to certification was whether the court had to consider whether every cause of action plead disclosed a cause of action, or whether one cause of action was sufficient. The court held that there needed only be one cause of action, but that the defendant could still bring a motion to strike any other cause of action at any time: "It is not that resorting to alternatives is necessary, only that they may help to provide substance and support to the court's conclusion. But where, as here, there is admitted to be at least one cause of action that complies with s. 7(1)(a) (in this case, breach of fiduciary duty) an analysis of the other causes of action is unnecessary and would serve no purpose. If the defendants apply to strike any or all of the other causes of action, that will be the time to analyze them and to determine their merits, having regard to the applicable law and onus on such a motion" In the author's view, the key issue would be whether all of the common issues were supported by the one cause of action approved by the court. The judgment does not review the common issues, so this is unclear. But if certain common issues related to other causes of action, then the court should have reviewed the viability of the other causes of action to this extent.

Robinson v. Saskatoon (City), 2010 SKQB 98: Taxi drivers sought certification of a class action alleging that City was improperly allowing transfers of licences to persons who did not drive taxis. The court found that there was no cause of action against the City, as it was simply an allegation of regulatory negligence. The court also found that claims against the industry defendants who actually obtained the licenses was also flawed. The court found that the class was over inclusive as the court was "without evidence that "all, a majority, or even a significant minority" of the proposed class has suffered a loss." The court rejected the proposed common issues on the basis that "The common issues suggested by the plaintiffs do not cover all of the issues flowing from their claims in negligence, unlawful interference with economic relations, and unjust enrichment. Some of the issues suggested would, in the event of certification, require some revision. Further, the suggested common issues include argument and assumptions." Finally, the court found that the litigation plan did not include the elements recommended in Sorotski v. CNG Global N.V., 2007 SKCA 104 (para.78).

Anderson v. Canada (Attorney General), 2010 NLTD 106: Residential school case certified. Most of the battle was over whether a proper cause of action existed, given that the class included Inuit allegations that arose prior to the implementation of the Indian Act in Newfoundland.

Ladouceur c. Société de transport de Montréal, 2010 QCCS 1859: A class action was certified in relation to a transit service interruption.

Carrier c. Québec (Procureure générale), 2010 QCCS 2235: Road noise class action refused certification. The court found that the claim did raise common issues, and that joinder was not practicable. However, the case fell down on the cause of action requirement. The court found that the case was based solely on a governmental policy decision as to the extent of sound barriers put on the highway.

Association des journalistes indépendants du Québec (AJIQ-CSN) c. Journal Voir, 2010 QCCS 1574: Republication copyright class action certified.

Comtois c. Telus Mobilité, 2010 QCCA 596: Refusal of certification of cell phone charge case overturned. The court noted that the contractual documents were now before the court, and that their absence had been the main reason for refusal at the first stage.

Fulawka v. Bank of Nova Scotia, 2010 ONSC 1148: Overtime class action certified. The court stated: "I have concluded that there is an evidentiary basis in this case of systemic wrongs that give rise to common issues, the resolution of which would advance the claim of every Class Member." (at para.4) The court distinguished the refusal to certify a similar claim in Fresco v. CIBC on the basis that "Lax J. found that the claim of systemic wrongdoing had no evidentiary foundation." (para.60) Leave to appeal was granted at 2010 ONSC 2645 on the ground that in fact the decisions did conflict.

KRP Enterprises Inc. v. Haldimand (County), 2010 ONSC 901: Case certified for damages, including nuisances, caused by police management of an aboriginal protest.

Banerjee v. Shire Biochem Inc., 2010 ONSC 889: Products liability case involving Parkinson's drug Permax certified on consent. National class certified that included a Quebec subclass. On the need for this subclass, the court stated "A sub-class will be created for Québec residents since the application of the law of Québec gives rise to additional common issues. Class counsel has undertaken to cooperate with plaintiff's counsel in the Québec Action to ensure that members of the Québec sub-class are able to fully participate in the pilot project, to present their claims in the French language and to obtain all necessary information in the French language." The court did not include aggravated damages as a common issue stating: "Aggravated damages are assessed on an individual basis as part of general non-pecuniary damages: see Carom v. Bre-X Minerals Ltd., above, at para. 83, and Kotai v. The Queen of the North, 2007 BCSC 1056, [2007] B.C.J. No. 1573, at paras. 40-42." A pilot project to canvass potential settlement was also approved. The Quebec stay of proceedings is reported at: Lépine c. Shire Canada inc., 2010 QCCS 207.

Holmes v. Jastek Master Builder 2004 Inc., 2009 SKQB 421: Court (almost) certified class action arising out of defendants' failure to complete a condominium project. The court found that the class should be confined by reference to a beginning and end date. The court rejected the punitive damages claim stating: "It would appear from Merck Frosst Canada Ltd. v. Wuttunee, 2009 SKCA 43, 324 Sask. R. 210, our Court of Appeal has clearly stated that punitive damages are not appropriate as a common issue." Certain causes of action were rejected and the plaintiffs were given leave to amend. Certification would be considered after those amendments were completed.

DOCUMENTS AND EVIDENCE

T.L. v. Alberta (Child, Youth and Family Enhancement Act,Director), 2010 ABQB 203: The court considered a request for better production from the Plaintiffs after certification of this litigation by children in care alleging a failure on the part of the government to sue third parties. The writer was counsel for the Province. The court granted the order in part stating: "Subject to the limited production which I will require, I am not satisfied that it is necessary for the representative Plaintiffs to produce all of the Requested Records at this stage of the proceedings. While most of the Requested Records will likely be considered to be relevant and material if this Action proceeds to the second stage to the determination of the individual issues, I accept the argument of the Plaintiffs that many of the Requested Records will not assist the Court in resolving the common issues. The records necessary for determining the common issues are primarily in the hands of the Defendants, including the child welfare records of the representative Plaintiffs. However, I will order the Plaintiffs to make further and better production of all records which are in their actual possession and which were generated by, or relate in any way to, Child Welfare or the Public Trustee and specifically refer to a particular representative Plaintiff. That type of information is relevant and material and may assist in establishing the factual matrix as to when the representative Plaintiffs came under the authority of, or a relationship developed with, the Defendants. This will provide some context to the common issues, particularly regarding the existence of a duty of care, and is consistent with Slatter J's (as he then was) comments in T.L. v. Alberta (Director of Child Welfare), 2006 ABQB 104 at para. 124."

Bodnar v. Cash Store, 2010 BCSC: Plaintiff brought application to disclose certain of defendants documents filed in BC class action to Alberta class plaintiffs. The court established for the first time that a Plaintiff must apply to court to seek leave to relieve it from the implied undertaking over such documents, even if they are filed on interim motions. However, in this case, the court found that there was little prejudice to the defendant, as the documents would eventually have to be produced in Alberta in any event. Our firm was counsel for the defendant.

Savoie c. Compagnie pétrolière Impériale ltée, 2010 QCCS 1464: Court struck certain newspaper articles relied upon by the Plaintiff in this conspiracy case.

White v. Glaxosmithkline Inc., 2010 SKQB 174: In this Paxil class action, the court allowed the plaintiff to examine two defence deponents on certification under condition of a fixed schedule. In an earlier proceeding, 2010 SKQB 108, the court allowed cross-examination of a plaintiff'. The court stated after reviewing the Saskatchewan authorities "all of the above decisions support the view that leave to cross-examine under Rule 317 is granted more readily in proposed class actions than it is in other civil proceedings." (at para.9) and "[In other cases] In those cases, cross-examination provided insight into situations where the person signing the affidavit knew very little about, or actually disagreed with, its contents."

Thorpe v. Honda Canada, Inc., 2010 SKQB 39: Defendants sought to example the reprehensive Plaintiff, and to strike out portions of two affidavits. The court allowed the application to examine stating: "After careful review, I am satisfied that the cross-examination sought will assist in the ultimate determination of the certification application. It is possible, as alleged by Honda Canada, that multiple claims of excessive tire wear against Honda Canada will inevitably raise issues that are "common" at some level. However, that is not the issue. The determination that ultimately needs to be made by the court is whether the resolution of the proposed common issue is going to move the litigation forward sufficiently so as to justify certifying the action as a class proceeding...One of the obvious concerns behind the hesitation to routinely permit cross-examination on affidavits is the fear that such a process will cause delays and take on a life of its own. However, in this case the proposed cross-examination is not expected to be lengthy and will not affect the dates already set for the certification application." (at paras. 9-10)

The court also struck out portions of the affidavit reporting on general internet complaints as to the problems at issue, including postings on class counsel's website. The court stated "Ms. Thorpe has pulled information from the internet complaints about Honda automobiles posted to various web pages by unknown and anonymous persons. As pointed out by Honda Canada, who, when and under what circumstances, these postings have been made is not apparent. Although Ms. Thorpe swears that she believes the postings to be true in the generic opening paragraph of her affidavit, she provides no basis for such belief. How can she "know", for example, that "Kim R." is telling the truth about his/her 2006 Honda Civic? While it may be true that Ms. Thorpe has no reason to believe the information is not true, she likewise has disclosed nothing in her affidavits that would tend to suggest that such information is true, accurate, reliable and/or unaltered.Likewise, the information retrieved from Ms. Thorpe's law firm's web page is similarly unreli-able. Anonymous complaint submissions received in this fashion have little or no probative value. Accordingly, I find that affidavit evidence, "on information and belief", including information taken from the internet, is potentially admissible in interlocutory applications, such as a class action certification application, and may be admitted "under special circumstances" where the "grounds for such information and belief" are adequately disclosed and the information is reliable. Here, the sub-jective basis for the reliability of the information has not been disclosed and, furthermore, there is no objective basis to believe that the various postings have any degree of reliability."

In 2010 SKQB 136, the defendants sought to cross-examine further affiants on certification and require individual vehicle inspection. The affiants were proposed class members, but not the proposed representatives. The court stated:

"it is a fair observation that courts in this jurisdiction have been quite generous in the exercise of the courts' discretion in favour of granting such requests, resulting in frequent orders permitting defendants to cross-examine the plaintiff's affiants. This could be as a result of a recognition that certification, albeit just a procedural step in a process, can have a significant impact on the parties and a willingness to err on the side of too much information, rather than not enough...However, despite the apparent trend toward granting leave to cross-examine deponents on affidavits in order to ensure an adequate evidentiary record, such requests ought not to be considered automatic or routine. Clearly, there comes a point when it is not appropriate to permit cross-examination. That point has been reached here. In this case, I have concluded that it would not be appropriate to exercise my discretion in favour of granting Honda Canada's request to cross-examine the two deponents on their affidavits. The reasons for arriving at this conclusion include the following:

* I am not satisfied that Honda Canada's desire to question the deponents is based on a real and sincere need to clarify issues relevant to the certification requirements that are raised in the filed affidavits.* The answers to any questions arising from the sought after cross-examinations would be of no assistance, or only marginal assistance, to the s. 6 inquiry.* Many of the reasons cited by Honda Canada to support the request to cross-examine the affiants focus on the merits of the deponents' claims.* Granting the request at this point (even though Ms. Thorpe bears much of the responsibility for the issue coming to a head at this late stage), would necessitate an adjournment of the scheduled date set for the certification application and thus, unduly delay the determination of the certification application."

The court declined to allow an individual examination of the affiant's vehicles on the same basis.

Fairview Donut Inc. v. TDL Group Corp., 2010 ONSC 789: Sealing order refused in relation to defendant's evidence in this franchise class action. The court stated "I am not satisfied that the risk of harm in this case is real and substantial or well-grounded in the evidence. Tim Hortons' evidence of harm is speculative, general and lacking in specifics. "

Comité des citoyens inondés de Rosemont c. Montréal (Ville de), 2010 QCCS 1879: Plaintiff brought application for documents from the defendant in a flooding class action, including those regarding any claims made to the City. The application was rejected as a fishing expedition, and as being premature..

Tetefsky v. General Motors Corp., [2010] O.J. No. 1117 (S.C.J.) and 2010 ONSC 2539 (costs): Plaintiff sought order for disclosure of certain third party information. The court refused the motion, and ordered costs of $20,000 against the Plaintiff.

Gay v. Regional Health Authority 7, 2010 NBQB 128: Defendants sought production of medical records, and to strike certain portions of affidavit and claim. The court allowed a Commission of Inquiry report to remain in the material. The court accepted that "Dr. Hutton's affidavit and the Inquiry Report are principally relevant to common issues to class definition and preferable procedure as it addresses the evidentiary basis necessary for certification of the class action as there must be some basis in fact for each of the certification requirements." The court also ordered that the defendant file their material in response to certification in advance of any cross-examination. (at para.36). The court rejected the application for medical records: "The Court's primary concern is the adequacy of the evidentiary record before it, upon which it will determine the certification issue. The certification motion is procedural and there are limits on what evidence and procedure is to take place prior to that hearing. To order the production of the medical record at this stage and allow cross-examination would only cause a lengthy and expensive hearing that would serve no purpose for the certification." The motion to strike portions of the claim was also dismissed.

Association pour la défense des droits des défunts & familles cimetière Notre-Dame-des-Neiges c. Notre-Dame-de-Montréal (Fabrique de), 2010 QCCS 2221: Application to strike certain prejudicial and scandalous aspects of motion for certification granted.

Spieser c. Canada (Procureur général), 2009 QCCS 5178: In this certified environmental class action, the court confirmed that the defendant could ask questions about the representatives current and past residences, their medical history, and lifestyle factors that might have contributed to their healh condition.

Sigouin c. Merck & Co., inc., 2009 QCCS 5145: In this certified Vioxx action, the court ordered production of plaintiff medical records, but on consent. The court refused a motion for particulars and a motion to strike certain allegations.

Conseil québécois sur le tabac et la santé c. JTI-MacDonald Corp.2009 QCCS 5157: Court declined to issue a stay of the certified tobacco class action pending a constitutional challenge to the causation assistance provisions of the Tobacco-Related Damages and Health Care Costs Recovery Act.

Smith v. Inco Ltd., [2009] O.J. No. 4820: Court rejected expert report from notice guru Todd Hilsee at class action trial. The court stated: "I find that the proposed opinion evidence is relevant to an issue in this case. As I indicated earlier, one of the issues is what the public knew regarding nickel contamination before and after September 2000. Therefore, clearly the content of the public documents, the degree of dissemination, and the readability of these documents, are all relevant to this issue....Although testing and scoring of the documents for readability may be helpful in a judge's assessment of a written document, it is not necessary. It is part of the routine day-to-day work of a judge to assess the readability of a document. Expert assistance is not necessary."

DISCONTINUANCES

B.C. church floor collapse class action abandoned. Our firm counsel for the church. See: http://bit.ly/aRUkxL <http://bit.ly/aRUkxL>

Hudson v. Austin, 2010 ONSC 2789: Court allowed discontinuance of proposed medical negligence class action (launched primarily to protect limitation periods) on the following terms:"I order that Ms. Hudson post on her class action webpage a Notice of Intent to Discontinue the proposed class action as of September 30, 2010.* I order that the Notice of Intent to Discontinue be sent to the Toronto Star (Robb Cribb, Tanya Talaga, investigative reporters); the Globe & Mail; the National Post, the Toronto Sun, Canoe, CNews, the Epoch Times, the Windsor Star, the Sault Star, the Canadian Press, CTV News, CBC News, and Global News and any other media as Ms. Hudson may be advised.* I order that the form of the Notice of Intent to Discontinue be approved by the court at a case conference and that Ms. Hudson shall prepare the first draft after consulting with the Defendants.* I order that any new actions commenced against the Defendants be case managed and that the case management order, referred to below, be amended accordingly.* I fix costs of the discontinuance at $10,000, all inclusive, for Dr. Austin and order that these costs be payable to him in the cause.* I fix costs of the discontinuance at $10,000, all inclusive, for the Defen-dants the Scarborough Hospital, Dr. Hugh Scott, Dr. Atilla Turgay, Dr. David Hodgkiss, Dr. Georgina Wilcock, Dr. John You, and Dr. Jack Stein and order that these costs be payable to them in the cause"

The court noted that notice need not be given in every case of a discontinuance. Whether notice would be given would depend on whether it was likely that any class member was relying on the stay provided for in the statute. The court deferred the discontinuance order by 4 months to allow any individual actions to be commenced. The court found that direct notice to all patients was not required, as there was no evidence that persons beyond the persons who contacted class counsel were relying on the statutory stay.

Charmley v. Toronto Hydro-Electric System Ltd., 2010 ONSC 1956: Court allowed Plaintiff in an explosion case to discontinue against defendant Toronto Hydro. The court was satisfied that the claim had no reasonable prospect for success.

Mères avec pouvoir (MAP) Montréal c. Bell Canada, 2010 QCCS 141: Class action discontinued.

APPEALS

Plourde v. Wal-Mart Canada Corp., 2009 SCC 54: Dismissal of union busting class action upheld.

JTI-MacDonald Corp. c. Conseil québécois sur le tabac et la santé, 2010 QCCA 177: Court granted tobacco companies leave to appeal decision striking certain pleadings, but declined to issue a stay of the underlying class action.

Dell v. BellExpressvu Inc., 2009 SCCA 452: Class' leave application on negative merits determination dismissed.

Ring v. Canada, 2010 NLCA 30: Court declined to provide that order dismissing class action contain a provision that order was "without prejudice to the first respondents or others to apply or reapply for certification in this or another class action".

Frey v. BCE Inc., 2010 SKCA 34: Application by six defendants in a system access fee class proceeding for leave to appeal from the certification order. Two of the defendants also sought leave to appeal from aspects of the certification order dealing with the jurisdiction of the Saskatchewan courts. The plaintiffs sought leave to appeal from aspects of the certification order limiting the plaintiff class and refusing to allow them to add entities related to one of the defendant companies as parties to the action. The plaintiffs also argued the judge erred in refusing to permit amendments to the plaintiff class brought based on changes to the Class Actions Act after the action was certified. The application by defendants allowed; application by plaintiffs allowed in part. The defendants raised important and meritorious issues with respect to the appropriateness of the one representative plaintiff who could not have had a cause of action against all the companies, the impossibility of finding common issues among a huge class of plaintiffs, and the argument that the contracts between the companies and their customers providing for the payment of system access fees, precluded a claim for unjust enrichment. The out-of-province companies had important and meritorious arguments with respect to the appropriateness of Saskatchewan as the forum to hear the case against them. The plaintiffs were granted leave to appeal from the dismissal of their application to amend their pleadings after certain changes to the Act took effect. They were not granted leave to appeal from the limitations placed on the plaintiff class to exclude those customers whose contracts contained arbitration clauses. The plaintiffs failed to provide the required material to support their application to add the additional corporate defendants.

Billette v. General Motors of Canada Ltd.leave to appeal denied 2009 QCCA 2476, leave denied [2010] S.C.C.A. No. 66: Single judge of Court of Appeal refused to grant leave from decision declining to strike industry class action based on privity issues post-certification. The court held that a different approach must apply after certification was granted (para.11). The court noted that there were certainly class members with a cause of action against each defendant.

Robinson v. Medtronic, Inc., 2010 ONSC 1987: Leave to appeal lower court's refusal to certify punitive damages granted as the lower court's "decision to refuse to certify having regard to those principles is clearly at odds with many other judgments, and brings about an unfortunate result. Although the motion judge sees no denial of access to justice resulting from his decision, it is certainly debatable that a denial of justice is an inevitable outcome. If the 6000 elderly plaintiffs who are in poor health wish to pursue a claim for punitive damages, they will be obliged, after the common issues trial, after the waiver of tort quantification, and after the trials or hearings of individual issues, to then pursue 6000 individual trials or hearings to determine their entitlement to, and to quantify punitive damages, an issue which largely focuses on alleged misconduct by the plaintiffs that is common to all defendants. In my view, there is good reason to doubt the motion judge's conclusion on this issue." The court also granted leave on the decision to bifurcate the disgorgement issues off for later determination.

Peter v. Medtronic Inc., 2010 ONSC 1984: Leave granted of decision bifurcating disgorgement issues in certified class proceeding.

Robinson v. Rochester Financial Ltd., 2010 ONSC 1899: Leave denied of decision granting certification of failed tax shelter case.

Wallace v. Canadian National Railway, 2010 SKCA 56: Plaintiff Client whose lawyer was removed from the file due to a conflict of interest was given standing to appeal that decision. Plaintiff took this step after defendant brought a motion for a declaration that the law firm did not have standing to appeal the judgment.

R. v. Brooks, 2010 SKCA 55: Leave to appeal certification decision refused of decision declining to certify Agent Orange class action. Court declined to allow proposed amendments narrowing the scope of the action midway through the oral submissions.

Wyeth v. Stanway, [2010] S.C.C.A. No. 68: Leave to appeal denied of decision refusing to dismiss class action on jurisdictional grounds.

Holmes v. United Furniture Warehouse LP, 2010 BCCA 110: Application by Plaintiff for directions as to whether leave was required to appeal from an order an application to amend the statement of claim to add a new claim. The underlying action was a class proceeding by purchasers of products from stores who were given cashable vouchers that could be redeemed three years after the purchases. The court held that leave was not required as the order was a final disposition of a substantive issue in the litigation and should not have been regarded as an interlocutory order despite the fact that not all of the rights between the parties in the litigation had been finally disposed of.

Griffin v. Dell Canada Inc., [2010] S.C.C.A. No. 75: Leave denied of decision refusing to stay case on arbitration grounds.

MacFarlane v. United Parcel Service Canada Ltd., 2010 BCCA 171: Court upheld decision refusing certification on cause of action grounds.

Pro-Sys Consultants Ltd. v. Infineon AG, [2010] S.C.C.A. No. 32: Leave denied in decision certifying price fixing action.

King v. Canada, 2010 FCA 122: Refusal to certify disability pension case based on cause of action grounds upheld.

Halvorson v. British Columbia (Medical Services Commission), 2010 BCCA 267: Case was initially refused certification, but was remitted for reconsideration by the Court of Appeal. Case then struggled to move forward to certification. Plaintiff served Notice to Mediate the certification issues. The court stated the Notice to Mediate until particulars were given and declined to remove that stay several years later. The court of of appeal allowed an appeal from that decision in part. The court stated made the following general statement of principle: "To hold plaintiffs strictly at the certification stage to their pleadings and arguments as they were initially formulated would in many cases defeat the objects of the Act - judicial economy, access to justice, and behaviour modification...contrary to the view that has been causing the case management judge such consternation, there is nothing wrong with plaintiffs reformulating their approach on appeal" (para.23). The court ordered that the Petitioners file a fresh petition setting out all material facts. The court upheld the decision deferring the proposed mediation, as the hope was that a fresh petition would help resolve the issues. The court did note that the trial judge would still have to consider whether the certification test was met in its entirety prior to certification.

Sharma v. Timminco Ltd., 2010 ONSC 2395: Leave denied of decision requiring disclosure of policies pre-certification.

Sonego v. Laboratoire Expanscience,, 2010 QCCA 1026: Appeal denied of decision refusing objections to cross-examination on affidavit pre-certification.

Savoie c. Compagnie pétrolière Impériale inc., 2010 QCCA 1089: Leave denied of striking certain media outlet reports sought to be introduced as evidence.

Option Consommateurs c. Banque Amex du Canada, 2010 QCCS 2260: Request for stay of 6 class action pending resolution of certain appeals refused.

Gauthier c. Société d'habitation du Québec, 2010 QCCA 302: Court overturned decision refusing to certify low income subsidy action on jurisdictional grounds. Court held that Superior Court did have jurisdiction over the legislative actions of the defendant.

Bouchard c. Ventes de véhicules Mitsubishi du Canada Inc., 2010 CF 56: Court overturned decision finding no jurisdiction over foreign defendants in proposed class action. Cased involves alleged conspiracy regarding the alleged restriction on importation of vehicles into Canada.

Contat c. General Motors du Canada Ltée, [2009] S.C.C.A. No. 451: Leave denied in appeal of refusal to certify financing class action.

Latreille v. Industrial Alliance Insurance Company's Life, [2009] S.C.C.A. No. 396: Leave denied of decision dismissing class action.

Knight v. Imperial Tobacco Canada Ltd., 2009 BCCA 541: Order striking third party claim against feds was set aside, but just in relation to negligence misrepresentation and negligent development of tobacco. The Trade Practice Act did not apply to Canada.

Mignacca v. Merck Frosst Canada Ltd., [2009] O.J. No. 5233 (Div.Ct): In the Ontario arm of the Vioxx litigation, the Defendants sought an extension of time to file leave to appeal from the decision denying leave to appeal certification, and, if leave was granted, leave to appeal. (Got it? Good...). The defendants also sought reconsideration based on the fact that the Sask CA had now overturned certification. The judge held that he could not consider leave to appeal from his own earlier decision. On reconsideration issue, the court declined to do so as the class definition and common issues were different in Ontario than before the Saskatchewan Court of Appeal.

Lambert v. Guidant Corp., [2009] O.J. No. 5264 (Div. Ct): Court refused leave to appeal from costs award in favour of Plaintiffs of $650,000 plus disbursements.

TRIALS

Alexander v. HMS Financial Inc. 2010 ABCA 121: Court refused appeal from court order granting substantive relief to the class. The relief appears to be in the nature of a final order granting rights to certain funds in court, so I'm counting it as a merits determination in favour of the class, even though it appears to be quite a procedural hash, and the order went primarily on consent.

Allard c. Syndicat des professionnelles de soins de Québec (SPSQ) (Syndicat professionnel des infirmières et infirmiers de Québec (SPIIQ), 2010 QCCS 1309: Union fee refund case successful on the merits.

Myette c. Commission administrative des régimes de retraite et d'assurances, 2009 QCCS 5144: Class successful in pension class action.

Kotai v. Queen of the North (The), 2009 BCSC 1604: In supplementary reasons, the court clarified that it was not ruling on the ability to claim psychological damages under the Marine Liability Act, but rather that the defendant was not arguin that point in this case.

NOTICE

Griffin v. Dell Canada Inc., 2010 ONSC 2560: Court deferred notice until after disposal of leave to appeal application. The court did indicate a willingness to reconsider the need for notice after the leave decision issues given the risk that class member might dispose of their computers.

SECURITIES CLASS ACTIONS

Ontario Court of Appeal rules that loser on a Securities Act leave motion must first appeal to Divisional Court : Silver v. Imax (May 18/10) (Ont.C.A.)

CHICKEN AND EGGS

Rhodes v. Cie Amway Canada, 2010 FC 498: Court allowed a jurisdiction application to proceed in advance of certification. The court stated: "In this case, the Defendants have convinced me that their preliminary motion challenging the jurisdiction of the Court on the basis of the arbitration agreement should be heard prior to the motion for certification of the class action. Indeed, the Plaintiffs filed their statement of claim as a proposed class action on October 23, 2009, but have not acted upon that claim since its filing. The Plaintiffs could have submitted their motion for certification as a class action, but they have chosen not to do so. Counsel for the Plaintiffs now asserts that such a motion may be submitted next June; however, there is no certainty this will indeed be done. Had a motion for certification as a class action been submitted in this case and a date set for a hearing on that motion, I may have been inclined to decide the motion to dismiss on jurisdictional grounds at the same time as the motion for certification. However, these are not the circumstances at hand, and I fail to see why the Defendants should be impeded from having their motion to strike heard by this Court when the Plaintiffs have yet to submit their motion for certification. In addition, the Defendants' motion may bring an end to the proceedings in their entirety or may result in a narrowing of the scope of the case for certification"

Cannon v. Funds for Canada Foundation, 2010 ONSC 146: Court held that a motion under rule 21.01(1)(b) (no reasonable cause of action) and rule 21.01(3)(d) (frivolous, vexatious or abuse of process), that Ms. Berlach wished to bring on behalf of the defendants Albanese, Ford, Mohammed, Raby and Wade, should be brought at the time of the certification motion and not before. I found that this procedure would promote efficiency and economy in the management of this class action and that any prejudice to these defendants could be compensated in costs, if necessary.

Fairview Donut Inc. v. TDL Group Corp., 2010 ONSC 2845: Plaintiff applied for declaration that defendants summary judgment be considered AFTER certification rather than WITH certification. The parties had previously agreed to this structure, but the Plaintiff sought to redesign the structure as they felt the summary judgment motion was expanding beyond the original intention. The court declined to make the order to defer the summary judgment stating "This is not a case in which the defendant is attempting to wear down or delay the plaintiffs by bringing procedural motions prior to certification - the defendants are anxious to see the certification motion proceed and are content to bring their motion at the same time as certification.". The court referred by the Cannon case supra stating: "In the Cannon case I permitted a rule 21 motion, affecting some of the defendants, to be brought at the same time as the certification. One of the factors that influenced my decision was that hearing the motion at the same time as certification would allow appeals from both decisions to be heard together. I noted, at para. 15 that the factors relevant to the exercise of my discretion, on a non-exhaustive basis, were:

(a) whether the motion will dispose of the entire proceeding or will substantially narrow the issues to be determined;(b) the likelihood of delays and costs associated with the motion;(c) whether the outcome of the motion will promote settlement;(d) whether the motion could give rise to interlocutory appeals and delays that would affect certification;(e) the interests of economy and judicial efficiency; and(f) generally, whether scheduling the motion in advance of certification would promote the "fair and efficient determination" of the proceeding.

For the reasons I have mentioned, most of these factors suggest that the two motions in this case should be heard at the same time. There is a real possibility that the motion could either dispose of the proceeding or narrow the issues. There is no likelihood of delays. The motions are now scheduled for the very end of November and the parties have more than six months to prepare for the motions. Any appeals can be heard together. Judicial economy and the fair and efficient determination of the proceeding will be enhanced. There is also the added factor that this decision is consistent with a pre-existing procedural agreement between the parties that was approved by the court."

Rosetim Investments Inc. v. BCE Inc., 2010 SKQB 24: In proposed securities class action, Court decided that the motions to strike and a motion to amend the claim to rely on the new fraud on the market regime should proceed prior to certification. The court distinguished the concurrent nature of the Silver v. Imax leave/certification hearing on the basis that this was only done with consent of the parties. The court stated: "The Imax case, supra, demonstrates that there is a very significant process which involves the testing of the merits of an action based on evidence filed by each party before leave will be granted. In my opinion, unless and until leave has been granted pursuant to s. 136.4 of the Act, there is no cause of action for secondary market disclosure which could be considered at the certification hearing." (at para.14) The court concluded: "with the multiple amendments sought by the plaintiffs, at least some of which require leave of the court, in the circumstances of this case it is appropriate to have the amendments determined before the certification hearing is held. Furthermore, as the validity of the pleadings will also be considered on the applications to strike brought by BCE and ROD, it is appropriate that the three motions be heard at the same time."

NATIONAL CLASS

McKenna v. Gammon Gold Inc., [2010] O.J. No. 1057 (S.C.J.): In certifying this securities case, the Ontario court did not include shareholders who had purchased their shares from underwriters or agents outside of Canada. The court stated "The acquisition of those securities in a jurisdiction outside Canada would not give rise to a reasonable expectation that the acquiror's rights would be determined by a court in Canada." (para.116) The Ontario court required separate representative for Class Member located outside Canada who purchased their shares in Canada. The court certified only the primary market claims (the secondary market claims were based on traditional negligent misrepresentation rather than the new "fraud on the market" statutory provision). The court stated:

"With deference to my colleagues who have come to a different conclusion, I accept the submission of counsel for the defendants that there is authority, binding on me, that makes proof of reliance a necessary requirement of a negligent misrepresentation claim..I conclude that the need to prove reliance as a necessary element of negligent misrepresentation, and the inability to establish reliance as a common issue, makes the common law misrepresentation claims, in both the secondary and primary markets, fundamentally unsuitable for certification.In this case, multiple misrepresentations are alleged throughout the ten month Class Period, in press releases, regulatory filings, conference calls, annual reports and a multitude of other written and oral forms." (at paras.159-160). The court noted that the plaintiff had leave to amend to plead the new statutory fraud on the market claim to restore the secondary market component of the action.

The court did certify the punitive damages claim: "The nature of the present securities class action, as opposed to the product liability action before Perell J., makes the degree of misconduct, causation, harm, and the quantification of compensatory damages determinable by the common issues judge. There is no need for individual proof of loss to enable a common issues judge to assess punitive damages."

The court also declined to exclude early sellers at this time stating: "I accept that, as a general rule and on the authority of the cases referred to by counsel for the Gam-mon Defendants, it may be appropriate to exclude "early sellers" because no damages are suffered until the misrepresentation is disclosed -- shareholders who dispose of their securities before this date cannot suffer a loss as a result of the misrepresentation...This case, as well, is an exception to the general rule. As I noted earlier, in asserting that Mr. McKenna's claim was time barred, the Gammon Defendants said that there had been partially corrective disclosure as early as May 10, when Gammon's public filing disclosed a US$10 million first quarter loss. This was slightly over three weeks after the Prospectus was issued. Representations of various kinds continued to be made for the remainder of the Class Period. It would be arbitrary at this stage to conclude that "early sellers" could not have suffered a loss as a result of the alleged misrepresentations in the Prospectus and the onus of proving this should be on the defendants at trial" (at paras.121-122)..

On a chicken and egg point, the court refused the underwriters application to hear summary judgment based on limitations prior to certification (para.36). The court noted that the Underwriters did not file statements of defences, unlike in Stone v. Wellington County Board of Education (1999), 120 O.A.C. 296, [1999] O.J. No. 1298 (C.A.); Farquar v. Liberty Mutual Insurance Co. (2004), 43 C.P.C. (5th) 361, [2004] O.J. No. 148 (S.C.J.) (at para.37). The court stated that "Where the resolution of the limitations issue depends on a factual inquiry, such as when a plaintiff knew or ought to have known of the facts constituting the action, the issue should not be resolved at certification."

ARBITRATION

Griffin v. Dell Canada Inc, 2010 ONSC 2384: Defendants sought to exclude BC, Quebec, and Saskatchewan residents from the class on the basis that arbitration clauses in those provinces would be enforced. The court declined to make the order stating "I rejected the defendant's submission to carve out these class members as at that time there were pending appeals before the Divisional Court for leave to appeal the conditional certification order and also before the Court of Appeal with respect to the initial refusal to grant a stay and the subsequent refusal to reconsider that decision. As well, the decisions in Frey and Dell SCC were before the court at the time of the certification hearing and I had found the class definition satisfactory, except with respect to Québec residents [bound by an earlier settlement]." The court also declined to order the Ian Andrews was an inappropriate representative due to lack of resources. The court noted that there was an indemnity agreement in place.

COSTS

Fantl v. Transamerica Life Canada, 2010 ONSC 3113: Plaintiff sought $100,000 in costs against Kim Orr in relation to Kim Orr's failed attempt to wrest away control of the litigation. The court described the application as "surreal" as "everybody knows that Mr. Fantl does not need $100,773.27 to be indemnified for costs for any legal expense in litigating with KO, because, in any event, he personally will incur no legal expense, and the money he seeks for his costs will actually be used to pay for the legal expenses that REO incurred in resisting KO's attempt to keep Mr. Fantl as its representative plaintiff." For other reasons, the court refused the application. The court noted that on the fee application in relation to the settlement, the court declined to include in the evaluation of the appropriate fee the work done on the carriage battle - "it strikes me as a bad idea to encourage and intensify carriage fights by the prospect that the winner will not only get the file but be paid something by his or her client for getting the file." The court found that the normal rule for carriage fights themselves should be that there are no costs paid, but that this was not an absolute rule. However in this case, there should be no order of costs given the novelty of the issues.

Singer v. Schering-Plough Canada Ltd., 2010 ONSC 1737: Plaintiff's ordered to pay $400,000 in costs on failed certification on sunscreen representations.

Durling v. Sunrise Propane Energy Group Inc., (May 21, 2010) CV-08-363271-))CP (Ont.S.C.): Court ordered that the defendant landlord and the plaintiffs were jointly and severally liable for the costs of the regulator and municipalities in relation to the motion for directions as to the landlord's right to oppose the discontinuance of the claim against these parties. The plaintiffs were deprived of their costs as they subsequently abandoned the application to discontinue. The writer is counsel for one of the defendants.

Campbell v. Canada (Attorney General), 2009 FC 30 (discontinuance) 2010 FC 279 (costs): Defendant sought costs in light of Plaintiff's decision to discontinue after the filing of a motion for certification. The court found that the defendant could have its costs in relation to the steps prior to the motion for certification, but not for the certification motion: "The language of Rule 334.39 is clear. It specifically precludes an award of costs in relation to the motion for certification...With respect to the costs incurred by the Defendants on the motion for certification, although the motion was never adjudicated for the reasons set out in my earlier decisions, at the time the motion was filed and the work was done by the parties, it was an appropriate and timely step in the proceedings. As I indicated in my earlier reasons, if there has been an abuse of process, it arises from the action filed in Saskatchewan and it is in that forum that it should be raised." The court found that "the case at bar raised a novel question about the nature of the preferable procedure criterion of the test for certification".

In relation to the earlier steps, the court granted an award of $60,000 inclusive of disbursements.

Fisher v. IG Investment Management Ltd., 2010 ONSC 2839: Costs on failed certification motion. Defendants collectively claimed $1.25 million. The court found that "the appropriate award for this case is that there should be no order as to costs. That conclusion is arrived at primarily from the argument that the case at bar is a novel case of the sort that would justify an order that each side bear their own costs for the certification motion." The court engaged in a helpful review of the principles applicable to costs in Ontario. The defendant also sought to raise the fact of the indemnity agreement: "As the last matter to address as to why a costs order might be justified, the Defendants submit that the court need not concern itself about the possible chilling effect of a costs award against the Plaintiffs because the Plaintiffs are protected by an indemnity agreement with Rochon Genova LLP who can be taken to be knowledgable about the risks and the awards of litigation...Given the basis that I am deciding this matter, strictly speaking, it is not necessary for me to comment one way or the other about the role of indemnity agreements. For what it is worth, I think they should be treated in much the same way as the involvement of the Class Proceedings Fund is treated. McNaughton Automotive Ltd. v. Co-operators General Insurance Co., [2007] O.J. No. 1453 (Div. Ct.) at para. 8; Garland v. Consumers' Gas Co. (1995), 22 O.R. (3d) 767 (Gen. Div.) at p. 772, aff'd (1996) 30 O.R. (3d) 414 (C.A.) are authority that the issues of entitlement, scale, and quantum of costs must be determined without reference to whether the Law Foundation provided support to the applicant for certification."

KRP Enterprises Inc. v. Haldimand (County), 2010 ONSC 2689: Costs of $110,000 awarded to plaintiffs on certification and Rule 21 motion.

Goldstein v. Rider, 2010 ONSC 1738: This action was a proposed class action that was settled before certifica-tion. The parties reached an agreement to discontinue the action on terms that, among other things; the Defendants would pay: (a) the putative class' wage loss claims; and (b) costs to the Plaintiffs' lawyer for the action and for administering the payment of the wage loss claims.By order dated April 28, 2009, I granted leave to discontinue the action. By motion, the Plaintiffs now seek $169,492.83 for costs. For the reasons that follow, I fix the costs at $115,436.99, all inclusive.The Defendants submit that the anticipated payment of wage claims will be no more than $300,000 and a costs award approaching $170,000 is excessive and disproportionate.I did not identify any over-lawyering, but, having reviewed the information provided in the bill of costs and in the costs submissions, in my opinion, the amounts claimed for the various descriptions of work are excessive having regard to the factors that I have identified, most particularly the factors of proportionality, reasonableness, and the expectations of the losing party. In particular, I found the claim of $34,462.50 to lift a stay and $22,650.00 for a discontinuance too rich to be fully and fairly charged to the Defendants."

Peter v. Medtronic Inc., 2010 ONSC 213: Costs of certification and bifurcation motion. Plaintiffs sought costs of $395,000. Court knocked that down to $300,000. The court also awarded $50,000 in costs to the defendant on the bifurcation motion, but payable in the cause. The court stated: "From my observation of the certification motion, there is truth in the Defendants' submission that their resistance and opposition to certification were targeted and surgical. In my opinion, it would have been within the Defendants' reasonable expectations that their exposure to costs liability would be correspondingly reduced in comparison to the exposure to costs in a certification motion where no concessions are made or the defendant unreasonably contest issues or unreasonable raise issues for contestation."2010 ONSC 1933: Security for costs application dismissed.

Healey v. Lakeridge Health Corp., 2010 ONSC 1884: Costs on plaintiff's loss on right of uninfected individuals to recover for psychiatric injuries. The court found that it was not a test case. The court noted that the Plaintiff did not disclose their own costs in relation to the hearing. The court did knock down the $380,000 request to $260,000.

Fresco v. Canadian Imperial Bank of Commerce, 2010 ONSC 1036: Costs of $250,000 awarded on failed certification. The Class Proceedings Fund was on the hook for this amount. The court found that it was not a test case, noting the fact that certification hearings were proceeding in other overtime cases notwithstanding the dismissal of certification. The court found that the case was not novel, but the court did find a public interest component. CIBC incurred almost $4 million (!) contesting certification. However, the plaintiff declined to produce their own dockets. The court awarded $525,000.

CASE MANAGEMENT

Herskovitz v. BMO Bank of Montreal, 2010 ONSC 2856: Three similar class actions against 3 banks were running in tandem. The Plaintiff applied to separate the cases and proceed first to certification against one in order to minimize their cost exposure. The court refused the application for 5 reasons:1. there was no agreement to use the first agreement as a test case, creating a risk of inconsistent results2. it was more efficient to hear all three at once3. steps have already been taken to reduce duplication4. most of the heavy lifting had already been done5. the actions were very similar.

Penney v. Bell Canada, 2010 ONSC 2801: Proposed class' phone installations were delayed as a result of a strike. The Plaintiffs argued that Bell had committed to fixed installation dates. The court refused certification stating: "In simple terms, a contract is nothing more than a mutual promise. Here, the plaintiffs say that Bell promised to install wireline service and that each customer promised to pay the $55 installation fee. Whether Bell broke its promise will depend on what Bell's service representative told the customer when the request for installation was made." The court also found that a proceeding before the CRTC was preferable stating "188 The plaintiffs say that the CRTC does not afford a preferable procedure for the resolution of the dispute because it cannot award relief on a class-wide basis, cannot give relief on a retroactive basis and cannot award general damages. I do not accept these submissions. Where the CRTC finds that the rates charged by a carrier are improper or unauthorized or that a carrier has failed to provide a service in accordance with its tariff, the CRTC can grant retroactive relief to all adversely affected customers; see, for example, Telecom Decision 2007-10, A.T. & T, Global Services Canada Co. While the CRTC may not be able to provide compensation in precisely the same form as a court, it has the capacity to order and implement compensatory relief in a manner that is fair and efficient. It is true that the CRTC cannot award punitive damages, but it has other sanctions available.The role of the CRTC is both regulatory and adjudicative. For this reason, it may analyze issues in a manner that differs from a court. To identify the difference does not mean that the analysis it undertakes or the remedies at its disposal are inferior to those granted by courts...190 Conducting the preferable procedure analysis with regard to the well-known goals of class proceedings, it seems to me that the CRTC offers the plaintiffs and affected consumers access to justice in a forum that is designed to deal with complaints such as those at issue in this action and that has specific experience in dealing with public complaints in relation to telecommunications issues. Judicial economy is promoted by deferring to the expertise of a specialized tribunal that can consider the policy implications of its decision -- a task that the court is ill-equipped to undertake. Behaviour modification is best accomplished, in my view, by deference to the tribunal charged with that very responsibility and one that can develop remedies tailored to the needs and the interests of the several parties in complex regulatory environment under its jurisdiction....In summary then, I am not satisfied that a class proceeding would be the preferable procedure for the resolution of the common issues. Bell has established that the CRTC has jurisdiction over the issues raised in this action and, while that jurisdiction may not be exclusive, this is a case in which the court should defer to that jurisdiction. While the CRTC's jurisdiction and procedures are not identical to the jurisdiction exercised by the court in a class proceeding, and the relief available is not precisely the same, I am not convinced that any substantial injustice would be done to the proposed class by deferring to the CRTC. On the other hand, I am persuaded that the certification of this action would be an unnecessary intrusion into a carefully regulated environment."

Cannon v. Funds for Canada Foundation, 2010 ONSC 1885: The court approved the dismissal of the claim against one party. The court added a new party notwithstanding that that proposed party indicated an intention to bring a jurisdictional challenge. The court also allowed a pleadings amendment.

Pickering v. Saskatchewan Government and General Employees' Union, 2010 SKQB 176: Pre certification schedule settled.

Option Consommateurs c. Banque de Montréal, 2009 QCCS 6467: Court considered (1) motion to strike for failure to submit to examination (refused), (2) motion to add a new rep plaintiff (granted). Costs were awarded against the Plaintiff however.

Option Consommateurs c. Union canadienne, 2009 QCCS 5368: In ice storm insurance class action, court clarified scope of production order issued against insurers.

MOTION TO STRIKE

Healey v. Lakeridge Health Corp., 2010 ONSC 725: Court struck uninfected class member test case claims for psychological injury in certified class action involving required TB testing.

Pearson c. Canada (Ministre de la Justice), 2008 CF 1161: Court struck challenge by Universal Church to Canada's marijuana laws on the basis that all relevant issues had been resolved in other litigation.

Stewart v. Enterprise Universal Inc., 2010 ABQB 259: Court declined to grant summary judgment in proposed class action involving removal of asbestos in a particular building. The court first considered the "chicken and egg" issue and stated: "An action taken pursuant to the CPA which has not yet been certified is better seen as a hybrid, a sui generus action, drawing on both the CPA and the Rules of Court, especially since certain parts and powers under the CPA relate to actions taken pursuant to the CPA which have yet to be certified....The CPA in Alberta is relatively recent and jurisprudence and practice is developing. No purpose is served by seeking to establish a hard and fast rule concerning the timing of various motions in the certification process." The court allowed the motion to proceed, on the following basis: "When the circumstances of this case are examined I find that it is not premature for the Defendants to bring a summary judgment application. Forcing the Defendants to wait until Mr. Stewart brings his motion to certify this claim would not be fair or efficient. The original Statement of Claim was filed on December 3, 2007, which has left the Defendants in limbo for over two years. The Defendants deserve to have some control over the litigation. Additionally, the allegations in the Statement of Claim are stigmatizing; so, forcing the Defendants to participate in a costly certification hearing is not fair, if they are able to establish at this time that they have been improperly named."

On the merits of the motion, the court found that the action could not proceed against the employer given the Workers Compensation Act bar. Although the directors were not protected by the WCA, the court found that there was not basis upon which to pierce the corporate veil.

Although the purported class also included non-employees. The court dismiss the action outright as "Allowing Mr. Stewart to represent residents against Enterprise, which is the only remaining part of the claim, does not avoid any demonstrated substantial injustice to the class."

Harris v. GlaxoSmithKline Inc., 2010 ONSC 2326: Class action alleging that defendant improperly interfered with the introduction of Paxil to the Canadian market dismissed on a motion to strike. The court found that none of the abuse of process, conspiracy, or waiver of tort claims disclosed a viable cause of action.

On abuse of process, the court concluded: "There are many policy reasons against extending the tort of abuse of process to bystanders. The existing case law recognizes that the existing tort of abuse of process should be narrowly construed...Ironically, in her pursuit for access to justice, Ms. Harris proposes an extension of a tort that could even be used to thwart access to justice in other class actions because the risks of bringing a class action, already regarded as considerable, would be increased by non-party bystanders including shareholders and consumers of goods and services who were adversely affected by an unsuccessful class action and who could sue the representative plaintiff for abuse of process."

Logan v. Dermatech, Intradermal Distribution Inc., 2010 BCSC 481: Feds successfully apply to strike third party notice by product manufacturer in Dermalive class action.

Robinson v. Medtronic, Inc., 2010 ONSC 1739: Motion to strike conspiracy claim dismissed. The court stated: "Medtronic submits that the Plaintiffs have committed a sin of commission because their new plead-ing identifies that the special damages for the conspiracy are the same as the damages pleaded for the tort of negligence. As I understood the counterargument of the Plaintiffs, they concede that in the new pleading the pleaded damages for negligence are identical to the pleaded damages for civil conspiracy, but the Plaintiffs submit that this does not make their pleading of a civil conspiracy defective. Rather, all it means is that by way of defence and at the trial the defendants might be able to argue that the Plaintiffs' claim for a civil conspiracy had merged with a successful judgment for negligence. I think the Plaintiffs' counterargument is correct." Certain paragraphs were struck.

Collins v. BCE Inc., 2010 SKQB 74: The court agreed to stay this proposed action as "it is reasonable to conclude that [this action] is intended to circumvent the limitations imposed in the [certified] Frey action and the possible reversal by the Court of Appeal of some, if not all, of the initial collateral decisions. The significant limitations are the refusal to amend the certification order from opt-in to opt-out and the enforcement of arbitration clauses". The court rejected the position that the action should be allowed to proceed because there were different plaintiffs: "This is a distinction without a difference. Because of the nature of class actions and because of the definition of the class in the Frey action, the persons named in the Collins action are included as plaintiffs in the earlier action which has been certified. In short, they are privies to the Frey action. Accordingly, the plaintiffs in the two actions are the same". (at para.12) The court justified the stay on abuse of process grounds stating "It is apparent that there is no good reason or juridical reason for the Collins action to proceed. On the other hand, there are compelling reasons why it should be set aside, at least for the present. It is necessary in order to ensure judicial economy, consistency and finality in judicial determinations, and to uphold the integrity and reputation of the legal system. As well, the parties in the Frey action must be treated fairly. To this point their expenditure in time, effort and money has been enormous. That should not be thrown away. In addition, they should not be prevented from having the Court of Appeal review what has transpired in the Frey action." (at para.16)

Vermette c. General Motors of Canada Ltd., 2010 QCCS 266: In certified paint delamination case, the defendants applied to strike aspects of the pleading. The court refused, stating that it did come sufficiently within the scope of the certification order.

Option Consommateurs c. British Airways, p.l.c., 2010 QCCS 140: Price fixing class action. Defendants said that jurisdiction should be declined prior to certification. The court rejected the motion.

Brown c. Roy, 2009 QCCS 4958: Jurisdictional challenge rejected.

NOTICE COSTS

Brunelle c. Banque Toronto Dominion, 2010 QCCS 2133: The court ordered that the defendant pay for the cost of notice. The court noted that the plaintiff has established a "good colour of right", and that imposing the obligation on the Plaintiff would create a very significant imbalance given that the value of the Plaintiff's claim was very small. The court applied the concept of proportionality as well.

DECERTIFICATION

Spieser c. Canada (Procureur général), 2010 QCCS 1440: Court refused to decertify part of an environmental class action by narrowing the class. The court declined to do so holding that there were no new facts to justify that step.

AMENDMENTS

In Pearson v. Inco, the trial judge allowed certain amendments to the common issues after the close of evidence to clarify (1) that nickel discharge ceased in 1984, and (2) that the Plaintiff was raising both public and private nuisance. (May 10, 2010).

Vermette c. General Motors du Canada, 2010 QCCS 1103: Class sought to amend certified claim to add diminution in value claim. The court allowed the amendment. The court held (rough translation): "While it is true that this amendment authorizing the Court will face a wider debate, this new component will not be extensive." Leave to appeal this decision was denied: 2010 QCCA 1020.

Barette c. Ciment St-Laurent inc., 2010 QCCS 1787, 2010 QCCA 831: An individual sought to expand the class definition to include a "missing group". The court found that the refusal was well grounded given the delay in making the application. The application was only made at the individual issues stage of the proceeding. Leave to appeal was declined.

Conseil pour la protection des malades c. CHSLD Manoir Trinite, 2010 QCCS 2130: Court granted certain amendments and disallowed others.

Engler-Stringer c. Montréal (Ville de), 2010 QCCS 1253: Motion to add constitutional question granted.

Holmes v. United Furniture Warehouse LP, 2009 BCSC 1805: Plaintiffs applied to consolidate claims and amend claim. Defendant did not oppose consolidation. The court granted leave for certain amendments but denied others on the basis that they did not disclose a cause of action.

US DEVELOPMENTS

New Class Action Attorney Registration Requirements Adopted: The Supreme Court blog www.scotusnewz.com reports that the Court has approved Rule 23.4.1, Federal Rules of Civil Procedure, which will require all attorneys wishing to represent clients in class actions in federal courts to be specially licensed as "Class Action Counsel." Licensing requirements are to include:

* successful completion of a 3-hour Class Action Bar examination,* an affidavit of good standing acknowledged by an Article III judge or existing member of the Class Action Bar,* a completed background check, to be administered by the Federal Bureau of Investigation,* 100 hours of continuing legal education (CLE) annually,* 100 hours of pro bono legal service for indigent plaintiffs and defendants in class actions.

Attorneys must apply with the Federal Circuit Court of Appeals on or before April 1, 2011. The new licensing rules become effective on April 1, 2012.

 

Ward Branch, PartnerBranch MacMaster LLP1410 - 777 Hornby StreetVancouver, B.C. V6Z 1S4P: 604.654.2966 | F: 604.684.3429www.branchmacmaster.com <http://www.branchmacmaster.com/ <http://www.branchmacmaster.com/> >

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Ward Branch, PartnerBranch MacMaster LLP1410 - 777 Hornby StreetVancouver, B.C. V6Z 1S4P: 604.654.2966 | F: 604.684.3429www.branchmacmaster.com <http://www.branchmacmaster.com/>

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