Class Actions in Canada - Update
Friday, September 16, 2011
Branch MacMaster

I'm sure you thought this day would never come. Would there ever be a fresh blog update again? By way of excuse:

1. I had to survive 7 months of mat leave without my right hand woman (Welcome Back Lu!)

2. I was supervising construction (i.e. signing cheques) for our new cottage in New Brunswick, which is now complete, save for a permit violation associated with not having installed a $5000 permanent fence around a 15ftX7ftX4ft deep blow up pool. The "Beauty Pageant" to act as my counsel in this very small (my wife and I) class action against "The Gestapo at the Bathurst New Brunswick Permit Department" will begin shortly.

As always, you will get quicker shorter blasts by following us on Twitter: http://twitter.com/#!/search/wbranch99 To sign up for the longer email dissertations, just drop me a note at wbranch@branmac.com.

SCC ON CLASS ACTIONS

Elder Advocates v. Alberta, 2011 SCC 24: Court granted Alberta's appeal in part in this nursing home fee class action. Writer acted for Alberta on the appeal. Court struck the fiduciary duty, negligence and bad faith claims. Unjust enrichment and Charter claims survived. Beyond substantial commentary on the scope of crown liability, the court did make one comment of note for class action practitioners. The court stated:

"[99] Although the claims for unjust enrichment and breach of s. 15(1) of the Charter survive, Alberta nevertheless argues that the action should be decertified because a class proceeding is not the preferable procedure. Alberta submits that an individualized cost review would have to be conducted for each proposed class member, to determine whether particular charges for individual residents of specific LTCFs did not reflect the actual cost of accommodation and meals. Alberta argues that the charges will vary by time, regions, operator and resident, and — on the plaintiffs’ theory — there is no wrong done unless it can be shown that the costs of accommodation and meals for a particular resident did not reflect the actual costs of providing those services.

[100] I would reject Alberta’s argument: The common questions certified by the judge at first instance ask whether the accommodation charges, as a practice carried out on a class-wide basis, resulted in unjust enrichment. The claim as pleaded does not require an individual assessment of the nexus between specific accommodation and meal charges in order to ground any potential liability to the class. The Class Proceedings Act provides sufficient remedial flexibility — by means of the aggregate assessment of damages (ss. 30-33) — to address any potential difficulties in assessing, awarding, and distributing damages."

Withler v. Canada, 2011 SCC 12: SCC dismissed age discrimination case in this certified class action. Writer was co-counsel for the class, although Joe Arvay made our brilliant, but sadly doomed, merits arguments at the SCC. The SCC took steps to end the "Hunt for Comparator Group" game in section 15 litigation.

Sharbern Holding Inc. v. Vancouver Airport Centre Ltd., 2011 SCC 23: Court confirmed the dismissal of the class claim in this certified real estate misrepresentation action. The court commented on the applicability of costs notwithstanding that the case came from a "no costs" jurisdiction: "Section 37 of the British Columbia Class Proceedings Act establishes a no costs regime in the Trial Court and the Court of Appeal. However, that statute does not apply to this Court. The respondents are entitled to their costs in this Court."

In Bou Malhab v. Diffusion Métromédia CMR inc., 2011 SCC 9, the Supreme Court of Canada affirmed that a member of a group that has been the target of offensive comments must have sustained personal injury to ground a defamation claim. The Court held that an ordinary person would not believe that offensive comments aired over the radio damaged the reputation of each member of the group. In the absence of proof of individually sustained injuries, a class action will not provide remedy for defamation sustained by a group as a group.

CARRIAGE

Schmidt c. Depuy International Ltd., 2011 QCCS 1533: "First to file" carriage rule now hopefully finally dead in Quebec: http://bit.ly/jglngw Quebec Superior Court says that true test is the best interest of the class. The best interest was served here with a Quebec plaintiff representing Quebec residents in this hip implant case, rather than a Saskatchewan resident. Court also emphasized that the need for a carriage determination only applies where there is strict overlap.

CERTIFICATION

Wins to losses at 27:9. Is it time for defendants to be more tactical and focused about which cases to oppose and on what grounds?

Granted:

Jellema v. American Bullion Minerals Ltd., 2010 BCCA 495: Court overturns decision refusing to certify oppression class actions in BC. Lower court had said oppression actions were already representative. BCCA disagrees. Writer was counsel for the class on the appeal.

Riazi v. Vancouver School District No. 39, 2011 BCSC 407: School fee class action certified with reduced class scope. Writer was counsel for the defendant.

Rowlands v. Durham Region Health, 2011 ONSC 719: Privacy class action certified on consent save as to certain procedural issues. Writer is co-counsel for the defendant municipality.

Thorpe v. Honda Canada Inc., 2011 SKQB 72: Premature tire wear action certified. The court rejected a constitutional challenge to Saskatchewan's national opt out regime. The court stated:

"Honda Canada’s argument that multi‑jurisdictional certification is not constitutionally possible because the provincial legislation upon which such power is based is ultra vires is misconceived and based upon fundamentally flawed reasoning. This is because the judicial jurisdiction of a superior provincial court is not rooted in provincial legislation, which is governed by the territorially limited powers bestowed by s. 92 of the Constitution Act, 1867; rather, this Court derives its power from plenary authority of the courts which, unlike the authority of legislatures, is continued, not created, by the Constitution Act, 1867. relying on the overarching authority conferred upon superior courts by virtue of Section 129 of the Constitution Act, 1867.... Therefore, the “jurisdiction” to certify multi‑jurisdictional class actions does not come from the Act but from the power existing in superior courts at the time of Confederation (or in the case of Saskatchewan, at the time it became a province and formally joined Confederation).Section 6.1 of the Act did nothing to add or extend provincial powers. The power to do so already existed."

The court also rejected the jurisdictional-based argument stating:

"The difficult problem is to balance the utilitarian virtues of permitting national class actions in a federation that has different provinces exercising territorial legislative jurisdiction with the “real and substantial connection test” endorsed by the Supreme Court of Canada in Morguard Investments Ltd. v. De Savoye... There is no doubt that conceptual difficulties are encountered when applying these principles to the special features of class action proceedings. This is especially so where, as here, the legislation provides that the court can bind non‑resident class members who do not “opt out” of the proceeding. The question central to the determination is whether a real and substantial connection exists such that this Court has jurisdiction to bind non‑resident class members. The issue to be decided is especially acute where, as here, the only connecting factor between the non‑resident class members and Saskatchewan is that they have claims against the same defendants that raise the same common issues as the Saskatchewan class members over whom this Court has jurisdiction. The path to jurisdiction by way of the “real and substantial connection” factor was carefully set forth by Cumming J. in Wilson v. Servier Canada Inc., supra. In circumstances undistinguishable from the present case, the Court found that once a real and substantial connection is established through the resident representative plaintiff it is the common issues themselves which provide the necessary link to justify taking jurisdiction over non‑resident class members... This Court has unquestionable jurisdiction to adjudicate upon the issues as between the representative plaintiff and Honda Canada by virtue of the fact that the representative plaintiff resides in this province and her cause of action arose here. This accords with the principles set forth in Morguard Investments Ltd., supra, which are now substantially codified in the CJPTA. Given that this Court has jurisdiction over the litigation, this Court can as well, assume jurisdiction over the other Canadian non‑resident class members by applying the Act and the CJPTA and by relying upon the overreaching authority conferred upon superior courts by virtue of s. 129 of the Constitution Act, 1867. In other words, this Court does have jurisdiction simpliciter to certify a national class action. Other considerations, not applicable in the circumstances of this case, may come into play as to whether the Court should assume jurisdiction if there is a similar class action commenced elsewhere (s. 6(2)) or if, for some other reason the Court determines that it is more appropriate for the class action to proceed in another jurisdiction (s. 6.1). The issue of forum non conveniens or of similar conflicting class actions in other jurisdictions is not at issue in this case."

The court approved a "people who claim to have suffered damage" definition. The court stated:

"The use of “claims made” limiters has not been universally accepted. Some courts have characterized them as verging into an impermissible “merits‑based” definition. I do not share this view. If membership in a class is defined as those who make claims in respect of a particular event or alleged wrong, no determination of the merits of any particular claim is necessary prior to making a determination as to whether the claimant is a member of the class. Similarly, if a person’s claim fails, it does not eliminate the person from the class, rather it demarks the claimant as a class member whose claim has been determined through a binding process. It is not the purpose of class proceedings, or class definitions, to bind only successful claimants. All those who may bring claims in respect of a particular event or allegation should be bound if possible, subject of course to the legislated exception of those putative class members who exercise the right to opt out of the class proceeding. Another criticism of a “claims made” limiter on class description is that it does not provide the necessary certainty of identifying those who are bound by the class definition. In my view, this criticism is founded on too narrow an interpretation of both the class definition and the functions of a court supervising a class proceeding. Defining a class as those persons “who claim” includes those persons who may come forward in the future to make a claim. A defendant and, for that matter, the court, will be in a position to ascertain whether a particular person is included in the class and bound by the resolution of the common issues. In this respect, it is trite that class members need not be identified individually at the time the class is certified. Accordingly, utilizing a “claims made” in the appropriate case leaves the defendant in no different position vis à vis knowledge of the class membership than would be otherwise the case. As for the potential class members, the court can ensure that the notice adequately conveys the effect of the class definition and the fact that claims in the future may be barred as a result of the resolution of the proceeding. Although this approach is subject to the criticism that such a “claims based” definition is ambiguous in that the definition does not specify when the claim must be made, Winkler J. noted that this shortcoming could be mitigated by the court ensuring that the notice to potential class members could convey the message that claims made in the future may be barred as a result of the resolution of the proceeding."

The court rejected the preferability of Honda's in house complaints departments stating: "I am not convinced that the actions of Honda Canada, albeit laudable, are such so as to constitute a procedure preferable to a class action. It is unrealistic to expect, in these circumstances, that Honda Canada’s voluntary customer service program would provide fair and appropriate redress to aggrieved class members. What happens if Honda Canada simply refuses to reasonably deal with a legitimate complaint from a putative class member?"

578115 Ontario Inc. v. Sears Canada Inc., 2010 ONSC 4571: Franchise class action certified. The court was prepared to certify the “good faith” common issue, inter alia, stating: |Depending on the nature of the decision of the common issues judge, it may or may not be necessary to engage in further individual inquiries. For example, if the common issues judge decided that the duty of good faith and fair dealing had been met as a result of the language of the franchise agreement itself, or as a result of some other document that was provided to all franchisees, the issue could be determined without individual inquiry. If, on the other hand, the common issues judge were to find that the duty had not been met in that fashion, but that is may have been met in relation to specific franchisees (as Sears appears to suggest on this motion), then trials of appropriate individual issues could be ordered."

The court also certified damages, including punitive damages, as a common issue

A breach of contract case in connection with changes to employees’ compensation package was certified in Somerville v. Catalyst Paper Corp., 2011 BCSC 331. Plaintiff removed class members who had executed releases. The court rejected certain common issues stating "[T]o the extent that the plaintiff seeks guidance on general legal principles applicable to this case, such issues will not be certified for the trial of common issues.

Larose v. Banque Nationale du Canada, 2010 QCCS 5385: Privacy class action certified.

Martin v. Société TELUS Communications, 2010 QCCA 2376: Text messaging case certified.

Option Consommateurs v. Brick Warehouse, 2011 QCCS 569: Credit financing case certified.

Graham v. Imperial Parking Canada Corp., 2010 ONSC 4982, leave to appeal dismissed 2011 ONSC 991: Parking penalty case certified, but on extremely limited basis.

Slark (Litigation Guardian of) v. Ontario, 2010 ONSC 1726, leave to appeal denied 2010 ONSC 6131: Class action certified regarding conditions at Huronia mental health facility.

Wright v. United Parcel Service Canada Ltd., 2011 ONSC 5044: UPS border fee class action certified. Court found that rep was still appropriate notwithstanding that the defendant had paid some money back, finding that it was not clear that it was tied to the charge challenged, and there remained an ability under the relevant Act to seek the refund of the entire amount paid and not just the challenged charge. The court in Wright distinguished the claims brought in that case from two similar cases in B.C. where certification was not granted: Blackman v. Fedex Trade Networks Transport & Brokerage (Canada), Inc., 2009 BCSC 201 and MacFarlane v. United Parcel Service Canada Ltd., 2009 BCSC 740. Wright was distinguished from the two B.C. cases on the basis that there were significant differences in the B.C. and Ontario consumer protection legislation, the claims advanced in Blackman and Fedex were based on a different and narrow legal theory, and there was good reason to doubt the correctness of the B.C. decisions in light of the Supreme Court’s holding in Seidel v. Telus Communications Inc., 2011 SCC 15 that the B.C. Business Practices and Consumer Protection Act should be interpreted generously in favour of consumers.

Conseil pour la protection des malades v. CHSLD Manoir Trinité, 2011 QCCS 607: Laundry fee class action certified.

ALS Society of Essex (County) v. Windsor (City), 2011 ONSC 91, leave to appeal granted 2011 ONSC 4327: Municipal fee class action certified.

Dobbie v. Arctic Glacier Income Fund, 2011 ONSC 25: Secondary market securities cases certified. Coulson did not allow a national class however. Dobbie allowed a national class but required that the local securities acts be plead.

Toronto Community Housing Corp. v. Thyssenkrupp Elevator (Canada) Ltd. 2011 ONSC 4914: Class action certified in relation to costs incurred due to provincial recall of safety product on elevators. The court certified a damage common issue as "Is the class entitled to damages?" stating "226 In summary, there is ample evidence that the plaintiffs and class have incurred damages. Assuming liability, proving entitlement (i.e. that the class member incurred the expense) will require an individual inquiry, but this can be easily managed in the claims administration process." The court also certified the question "What is the quantum of damages?" stating "228 I have reviewed the evidence about the quantum of damages. While quantification of each damage claim will be individual, it can be easily managed through the claims administration process. Records will document what the class member paid to replace the sheave jammer. As a result, the damages can be readily identified." The court also certified the question of whether the doctrine of betterment applied. The court declined to exclude subrogated claims brought by the former Ontario New Home Warranty entity stating "270 First, I reject the defence position that Tarion must satisfy the s. 5 requirements. If this approach was followed, then every known putative class member claim would have to undergo the s. 5 analysis. 271 Tarion is not a proposed class member in this proceeding. Tarion is subrogated to all rights of recovery for certain proposed class members, and has the right to maintain an action in the name of Tarion or in the name or the claimant who was paid. The proposed class members are the condominium corporations that received payments from Tarion for the cost of the sheave jammer replacements. Therefore, the defendants' argument that Tarion cannot be a class member because it does not own and has never owned an elevator is irrelevant."

The court rejected a proposed arbitration defence on the basis that (1) the rep plaintiffs did not have arbitration agreements, (2) s.7 of the Arbitration Act did not apply as a result; (3) it would be inefficient to issue a partial stay, (4) the defendants evidence on the applicability of the arbitration agreements was incomplete.

In Trillium Motor World Inc. v. General Motors of Canada Ltd. 2011 ONSC 1300, the court certified a class action by franchisees claiming their automobile dealerships were improperly terminated in the wake of the global economic crisis in 2009. In doing so, the court noted the particular suitability of franchise claims to the class action mechanism: "[a] typical franchise relationship involves a common contract, a common ‘system’ and common treatment of franchisees by the franchisor. These attributes may give rise to common issues that can be decided without reference to the individual circumstances of the franchisee, thereby making the proceeding particularly suitable as a class action. The court must nevertheless ask whether there are indeed issues common to the claims of all class members and whether the resolution of those issues will sufficiently advance the action and avoid duplication of fact-finding and legal analysis, even though individual issues remain to be determined."

1250264 Ontario Inc. v. Pet Valu Canada Inc., 2011 ONSC 287. Franchise class action certified, limited to common issues involving volume rebates to franchisees.

Fischer v. IG Investment Management Ltd., 2011 ONSC 292: Court’s decision to deny certification in a securities case because of a prior settlement with the Ontario Securities Commission was overturned on appeal. The court noted that the class was pursuing amounts above and beyond the settlement achieved through the Ontario Securities Commission proceeding. The court stated (at para.39): "The plaintiffs had met the onus of showing some evidence that they had a claim for compensation beyond what they had already received through the OSC proceeding. Once it was established for purposes of the certification motion that the OSC process did not provide full compensation to the plaintiffs, the purpose of the OSC proceeding or the intention of OSC staff were wholly irrelevant to the inquiry before the motion judge. There was no basis upon which he could have or should have deferred to the OSC by refusing to “second-guess” the OSC decision approving the settlement. This is particularly the case since the OSC settlement specifically contemplated future civil actions flowing from the same conduct and specifically reserved the rights of individuals to pursue those claims notwithstanding the settlement." The court continued at para.49 " The motion judge further erred by applying the test for approval of a settlement in the context of a certification motion. Although the motion judge stated that he agreed with the plaintiffs that the preferable procedure test should not be converted into a settlement approval hearing, the analysis he then conducted was even more unfair to the plaintiffs than if he had actually undertaken a proper settlement approval process. In particular, he held that in considering preferable procedure and the issue of access to justice, the court should consider the criteria that it takes into account when it approves or refuses a settlement."

Blair v. Toronto Community Housing Corp. 2011 ONSC 4395: Court certifies fire damage class action in negligence and breach of contract against social housing provider despite compensation plan established by defendant.

On the suggestion that a multi-plaintiff action would work, the court stated: "TCHC submitted that given that many putative class members had actually retained Class Counsel for the purpose of advice about the Settlement Offer and for the purposes of a class proceeding, a multiple joinder of all of these clients would be the preferable procedure. I do not see how a joint retainer would be preferable procedure, and it strikes me from the defendant’s perspective it could not be preferable to a class action to advance its defence given that such a proceeding would provide no way to bind the hundreds of residents of the apartment building who did not sign retainers."

On the effect of the settlement program: "As a candidate for a preferable procedure, there were factors to commend TCHC’s Compensation Plan and to support it as a preferable procedure. First, the compensation under the Plan was being offered by an entity that, for practical purposes, is a public authority and not a for-profit enterprise protecting its bottom line. In other words, there was less concern that the defendant was attempting to secure cheap releases. Second, after the residents received legal advice, there was a very high take up rate for the Compensation Plan, which suggests that the amounts offered were fair. Third, the Compensation Plan closely resembles plans and administrative schemes that are the product of certified class actions that are settled. Fourth, the administrative scheme set out in Ms. Blair’s litigation plan is similar to the TCHC’s Compensation Plan. (If this class action settles, I will not be surprised if the settlement resembles TCHC’s Compensation Plan with adjustments for Ms. Blair’s proposal.) Fifth, it is a social good when a defendant promptly takes steps to remediate the injuries suffered by a mass harm with or without admitting that it was the wrongdoer. Initially, the fifth factor caused me the greatest concern because undervaluing voluntary compensation plans as a possible preferable procedure might send the message that a defendant should not bother promptly offering compensation since there will be no avoiding a class action. However, upon reflection, I came to the conclusion that this concern was misconceived and belied by the case at bar. It is to be recalled that the class definition respects the releases that have been obtained and that continue to be obtained. The Compensation Plan has had the effect of substantially reducing the class size, and this effect along with the ethical value of accepting responsibility when it is appropriate to do so, either as contrition or as commendable social responsibility, should be sufficient motivation for a party to make a prompt settlement offer with or without an admission of liability. TCHC’s Compensation Plan does not appear to have been motivated by a desire to avoid a class action, but, even if it was, its force was spent by the time of the certification motion. Certifying the action should not be taken as a message that defendants should not bother promptly with compensation or remediation for the harm that they may have caused."

Logan v. Dermatech, Intradermal Distribution Inc., 2011 BCSC 1097: Court granted certification for wrinkle-reducing injection action.

Gagnon v. Bell Mobilité, 2011 QCCS 187: Cell phone termination fee class action certified.

In Plaunt v. Renfrew Power Generation Inc, 2011 ONSC 4087, the plaintiffs sought the certification of a class action on behalf of property owners alleging that the defendant’s operation of a dam resulted in water encroachment on their property. The court certified a class proceeding on one common issue concerning the interpretation of the License of Occupation, leaving open the possibility that other common issues could be certified after the initial question was answered. The class was limited to current owners on the date the action was commenced and to any owners or former owners who obtained or retained an assignment of the cause of action as part of the purchase or sale of the property.

Kwicksutaineuk/Ah-Kwa-Mish First Nation v. British Columbia (Minister of Agriculture & Lands), 2010 BCSC 1699: Court certified action against the gov't for alleged treaty violations through the improper regulation of fish farms.

Biondi v. Syndicat des cols bleus regroupés de Montréal, 2010 QCCS 4073: Case certified. The court found causation could be considered collectively in connection with a union’s negligence in failing to de-ice city sidewalks. Stating that the rules of evidence are the same whether applied to individual suits or class proceedings (at para. 137), the court went on to infer from the evidence that if a member of the group fell during the class period, the cause would most likely be the lack of proper maintenance of the sidewalk.

Pollack v. Advanced Medical Optics Inc., 2011 ONSC 1966 (certification): Contact lens class action certified. Main issue was whether the action should be parked in favour of BC National opt-in class. It was the defendant who was making this suggestion. The court stated:

"I have also concluded that the action should not be stayed and that judicious case management, in a spirit of comity and collaboration with the management of the Chalmers class action, can ensure that the issues between the parties proceed to resolution in an efficient and fair manner... There is a superficial attractiveness to promoting judicial economy by “parking” this action pending the outcome of Chalmers. This is particularly the case in light of AMO’s concession that it will not re-litigate the liability findings made by the British Columbia Supreme Court. I have concluded, however, that it would not be just to stay this action, that it would not promote the fair and expeditious determination of all the issues between the parties and that judicial economy will in fact be promoted by allowing both actions to proceed, subject to judicious case management.

In coming to this conclusion, I have considered the following circumstances:

(a) The two proceedings are not identical – the classes are different. No person who is a class member in Chalmers can be a class member in this action and vice versa.

(b) Some of the common issues are different. There is, of course, no issue in this action under the British Columbia Business Practices and Consumer Protection Act and there is no issue of waiver of tort in Chalmers.

(c) The proceedings are at approximately the same early stage – both have been certified, but notice of certification has not yet been given and production and discovery have not taken place. This is not a case where the first action is so clearly advanced that the second action should be stayed. The fact that the proceedings are both in their initial stages will allow common production and discovery, thereby achieving efficiency and economy.

(d) Plaintiffs’ counsel in this action are part of a consortium of counsel who are collaborating in the prosecution of the various class actions and individual actions. AMO’s counsel in both actions is the same. This will facilitate cooperation and co-ordination between the two proceedings.

(e) Staying this proceeding will delay the resolution of claims and issues that are unique to this proceeding and will not be resolved in Chalmers...

(f) ... the simultaneous prosecution of class actions in British Columbia, [Québec] and Ontario has been very common in the past. In my experience, it is not unusual for there to be some measure of joint case management of such proceedings, with the sensible cooperation of counsel and, if appropriate, liaison between the case management judges.

(g) Allowing both actions to proceed in tandem will facilitate settlement.

There should be common production and discovery in both actions. I leave open the possibility that the parties may reach agreement on a single liability trial proceeding in one jurisdiction or the other. Failing that, the parties will be at liberty to move at a future date, after discoveries, that the trial of one action be stayed pending the resolution of the other action. It is not necessary to make the order at this time."

The court also declined to bifurcate the waiver of tort issues at this time. The court agreed to certify the punitive damages issue.

Steele v. Toyota Canada Inc., 2011 BCCA 98: Court overturned refusal to certify Toyota Access program class action.

Topacio v. Batac, 2011 ONSC 1008: Alleged Ponzi scheme class action certified. The court refused to allow certain defendants to also participate in the plaintiff class. The court allowed certification of a class action as against “corporate perpetrator” and “principal perpetrator” defendants in an alleged Ponzi scheme, while ordering individual actions to proceed as against “account manager” defendants in the same action, on the basis that no common issues could be certified against “account managers”. The court held that the “account manager” defendants would nevertheless be bound by the judgment on common issues. Topacia v. Batac, 2011 ONSC 2157: In supplementary reasons, the court clarified the parties against whom certification had issued, and how third party claims would be managed.

Refused:

Sun-Rype Products Ltd. v. Archer Daniels Midland Co., 2011 BCCA 187, and Pro-Sys Consultants Ltd. v. Microsoft Corp. 2011 BCCA 186, the British Columbia Court of Appeal set aside the certification of class actions by indirect purchasers against manufacturers allegedly involved in price-fixing. The majority held that, in these circumstances, indirect purchasers have no cause of action recognized in law. Noting that as there is no recognized defense of “passing on”, the majority found that indirect purchasers “who would seek to recover an overcharge that has been passed on are effectively claiming a loss that in law is not recognized.” In Sun-Rype, the direct purchaser aspect continues.

In Kafka v. Allstate Insurance Co. of Canada, 2011 ONSC 2305, the court refused to certify a proposed constructive dismissal class action brought in connection with defendant’s move to a new model of product distribution and agent compensation on the basis that the claim lacked the essential element of commonality.

Union des consommateurs et Raphaël v. Bell Canada, 2011 QCCS 1118: Court found that plaintiffs had not demonstrated prima facie that Bell users privacy was violated by Bell’s use of Deep Packet Inspection (“DPI”) technology. The court adopted the findings of the Privacy Commissioner that the DPI technology is used merely for internet traffic management, and not for inspection of the contents of the data (at paras. 55-64)

Tonnelier v. Québec (Procureure générale), 2010 QCCS 5111: breast cancer misdiagnosis action refused certification because the facts alleged did not have “colour of right”, as government was not responsible for the failures of hospitals.)

Union des consommateurs et Raphaël v. Bell Canada, 2011 QCCS 1118: Internet throttling class action refused certification because plaintiffs did not meet obligation to demonstrate colour of right with respect to allegations that Bell violated terms of internet service contract or plaintiffs’ privacy.

Assoc. des retraités de l’école Polytechnique v. Corp. de l’école Polytechnique, 2011 QCCS 2784. Applying the three-year prescription rule set out in Article 2925 of the Civil Code of Quebéc, the court dismissed a motion seeking authorization to institute a class action seeking to have amendments to a pension plan annulled. The court acknowledged that the plaintiff association had been aware of its right of action more than three years before the motion was filed.

K.(A.) v. Kativik School Board, 2009 QCCS 4152: In Kativik, the court refused to certify a sexual abuse case brought by former students in a small village in Nunavut. Reflecting on the need to weigh predominance in assessing the common issues requirement in the Code of Civil Procedure, Justice Cullen explained that the mere existence of any “identical, similar or related questions of law or fact” was not enough: “such questions must be sufficiently substantial compared to the outstanding individual questions that a class action would serve the ends of justice, its additional complexities and cost being offset by improved efficiency of process ” (at para. 37). While individual questions probably outnumbered common issues overall, Justice Cullen emphasized that the applicable test is “not mathematical” and “requires balancing the significance of the common issues in relation to individual ones” (at para. 38). Nevertheless the court refused to certify because, in the context of this case, it would not have been “difficult or impracticable” for the applicants to “identify alleged victims, to communicate with them and to seek their intent” (at para. 68).

Desgagné c. Québec (Ministre de l'Éducation, du Loisir & du Sport)2010 QCCS 4838: In this dyslexia class action, the court found that the civil claim was not adequately plead. The court also considered the proper end date of the class action. The court stated that in principle, a group should not include future members (para.54). The court selected the date notice issued as the appropriate end date.

Côté v. Montréal (Ville de), 2011 QCCS 440: Proposed environmental class action dismissed, as the case called for a review of Montreal's entire sewer system, which had too many variations in its management and construction.

NATIONAL CLASS ISSUES

See Thorpe and Pollack above.

Labrecque v. General Motors of Canada Ltd., 2011 QCCS 266: On application of the defendant, the Court granted suspension of certification in Quebec until similar case in Saskatchewan was decided. However, leave to appeal was granted at 2011 QCCA 617. The leave court noted that the suspension of the application for leave for such an extended period raised a novel issue.

Melley v. Toyota Canada Inc., 2011 QCCS 1229, the court declined to suspend proceedings in Quebec on the basis that, although lis pendens existed, the mere existence of similar actions in six other provinces was not an abuse of process, particularly at such an early stage in the proceedings. The decision was denied leave to appeal in 2011 QCCA 829.

Methinks the Quebec Court of Appeal better figure out where Quebec stands on this issue...

Berneche v. Ridley Inc, 2010 QCCS 6480: On consent, the Quebec court agrees to stand down their mad cow class action in favour of the Ontario case.

Duong v. Stork Craft Manufacturing Inc.2011 ONSC 2534: Court declines to order enforcement of alleged agreement by Merchant Law Group to discontinue Ontario claim out of concern that Ontario residents may lose their limitation period protection. Court found that there was an implied precondition that had not been met. The court stated: "I find that some time after November 1, 2010, the plaintiffs became aware of potential prejudice to Ontario class members because the limitation periods are a substantive issue governed by the law of Ontario. The limitation period for Ontario class members would not be suspended by commencing a class proceeding in British Columbia, as class proceeding legislation is only procedural. " The court noted the risk on limitation periods stating: "41 Stork Craft submitted that the Ontario class members would not suffer any prejudice related to limitation periods expiring if the discontinuance was approved without notice. They submitted that the limitation period was suspended from the date the class proceeding was commenced in Ontario, namely, on November 25, 2009 until the notice of discontinuance was approved, whereupon the limitation periods would start to run again. Since the notice of the recall of the cribs was given in November of 2009, only approximately a month of the limitation period would have had expired, leaving Ontario class members a further 23 months to opt into the class proceeding in British Columbia. However, in the case of Coulson v. Citigroup Global Markets Canada Inc. , 2010 ONSC 1596, Perell J. came to a contrary conclusion. He held that where a class action was discontinued or dismissed, "[...] the calculation of the running of the limitation period resumes at the time when the suspension started - not at the time when the suspension ended." The court did not purport to answer the issue, but held that the risk was sufficient to decline to enforce the agreement stating: "If the Ontario limitation period expires before the Ontario members can opt into the British Columbia class proceeding they will suffer prejudice. The defendants did not propose to waive reliance on a limitation defence in the British Columbia class proceeding for all Ontario class members...I am not prepared to grant the motion to approve the discontinuance of the Ontario class proceeding because I am satisfied that there would be substantial prejudice to all Ontario class members who would be deprived of having the limitation period suspended in Ontario, and they would potentially lose their ability to participate as an "opt-in" class member in the British Columbia class proceeding. If the representative plaintiffs wished to obtain approval to discontinue the class proceeding (which they do not) in circumstances where there would be substantial prejudice to all Ontario class members, then reasonable notice would have to be given to the Ontario class members. I also infer that it was an essential term of the settlement agreement between the parties that the Ontario class proceeding would be discontinued on the understanding that the parties would proceed to a certification hearing in British Columbia and that the Ontario class members would be able to opt into the British Columbia class proceeding if it was certified. If this discontinuance is approved with the effect that Ontario class members would be deprived of their right to opt into the British Columbia class proceeding because of the expiry of their Ontario limitation period, then this would be inconsistent and contrary to the terms of the settlement agreement."

Turon v. Abbott Laboratories Ltd., 2011 ONSC 4343: Court declines to stay Ontario Meridia class action and forces plaintiffs to move for certification. Class actions had also been commenced in BC, Que and Saskatchewan. All but the Quebec action were brought by Merchant Law Group. The plaintiff noted the difficulties in the current national class environment, but stated "That does not mean, however, that parties can commence national class actions in several different provinces and, against the wishes of the defendant, leave some of those actions in limbo while one or more other actions proceed." (para.15) The court declined to grant the stay on the following grounds: 1. A stay would only defer, not resolve, the jurisdictional challenges. 2. A party purporting to represent a class has an obligation to move forward with reasonable dispatch. Commencing an action with no intention of actively pursuing it, is an abuse of the procedure because it acts as a disincentive to the commencement of actions by others who may be prepared to advance it. 3. It is not fair to the defendant to leave the action in limbo. 4. The plaintiffs were not prepared to say that the outcome of the BC certification motion would be determinative. Counsel was only prepared to say that if the BC action was dismissed the plaintiffs will "likely not go forward in Ontario". Further, if the BC action was certified, the plaintiffs did not confirm that they would opt in to the BC action. 5. To the extent that the plaintiffs were concerned about funding, they should investigate indemnities or other sources of funding. 6. if the plaintiffs' losses are significant, they may want to consider individual actions. 7. While the action might protect against the tolling of the limitation period for Ontario class members, it is of no value to residents of other jurisdictions in Canada who may be looking to this action to protect their rights. The practice of commencing actions solely for the purpose of tolling the limitation period has been characterized as an abuse of process. If the plaintiffs failed to move forward with certification, the action would be permanently stayed subject to the right of the plaintiffs to proceed as an individual action and subject to any order court may make with respect to notice. The court noted the potential overlap with the BC action, but stated "[A]ppropriate directions can be given to avoid unnecessary duplication and to ensure that he actions proceed efficiently...There may, for example, be common production and discovery and it may also be the case that the trial of one action will be deferred pending the outcome of the other. These issues are frequently dealt with on consent."

SCHEDULING/CHICKEN AND EGG

Miller v. Merck Frosst Canada Ltd., 2011 BCSC 741. The defendants objected to the setting of a certification schedule before the plaintiff had filed notice of application and affidavits in support. The court found that Section 2(3) of the B.C. Act encourages the prompt hearing of the certification application. In setting the schedule, the court noted that defendants would have the opportunity to apply to vary the schedule if plaintiff’s material makes compliance with the schedule problematic.

A recent Ontario decision goes against the Ontario convention and suggests that defendants should plead defenses before the motion for certification is heard. In Pennyfeather v. Timminco Ltd., 2011 ONSC 4257, a proposed securities class action, Justice Perrell ordered that the plaintiff provide particulars and also ordered that all defendants to the action deliver statements of defence in advance of the certification hearing. Justice Perrell made several observations in favour of abandoning the convention of delaying the pleading of defences, chiefly that closing the pleadings before a certification hearing would resolve issues about the cause of action and could be helpful in determining whether the criteria for certification had been met. The court also observed that the determination of certification was not a pre-requisite to the pleading of defences, as certification identifies only those issues to be tried on a common basis and does not narrow or strike the remaining causes of action in the plaintiff’s statement of claim.

Haghdust v. British Columbia Lottery Corp., 2011 BCSC 772: Court allowed summary judgment motion to proceed prior to certification on the basis that the issue would be determinative of the entire action and could be resolved on the basis of targeted affidavit evidence.

Field v. GlaxoSmithKline Inc.2011 SKQB 84: Scheduling order established in proposed class action over objection of Merchant Law Group. Certification to take place about one year out.

CLASS ACTIONS AT TRIAL

Conseil pour la protection des malades c. Fédération des médecins spécialistes du Québec, 2010 QCCS 6094: Illegal strike class action arising from physician "study day" work slowdown was successful. $2.5 million in compensatory damages and $2 million ($200 per person) in punitive damages were awarded.

NOTICE

Boyer c. Agence métropolitaine de transport (AMT), 2010 QCCS 4984: Court approves notice program in late train class action. The court found that Art.1035 did not govern the debate on the payment of costs. Rather, the court held that as the defendant lost the certification motion, the costs of that motion should include the costs of paying for notice under Art. 447.

OPTING OUT

In Sauer v. Canada (Attorney General), 2010 ONSC 4399, an Ontario court recognized that the opt-out right was the foundation of its jurisdiction over class members. As such, the court granted an additional opt-out right to Quebec residents who became class members by way of an amendment to the class definition. The opt-out periods had expired in both Ontario and in the Quebec class action in which the Quebec residents had formerly been class members.

AMENDMENTS

Association des journalistes indépendants du Québec (AJIQ-CSN) c. Journal Watch (Communications Voir inc.), 2010 QCCS 4987: Court allows correction of names of defendants. The court noted that procedure should be the servant of the law.

COMMUNICATION WITH CLASS MEMBERS

Berry v. Pulley, 2011 ONSC 1378: Court declares that effort to issue offers to settle directly with class members in certified class action was inoperable.

1250264 Ontario Inc. v. Pet Valu Canada Inc, 2011 ONSC 3871: Court distinguished Berry in a case considering a request for a declaration on the effectiveness of a release of all claims in a buy-back agreement between a franchisee and franchisor. The court in distinguished Berry on the basis that Berry involved an offer of a settlement to all members of two subclasses, excluding class representatives and that the offer was to settle the claims made in the action. By contrast, the buy-back agreement would concern only a fraction of the class, and would serve to settle all commercial issues in the franchisee-franchisor relationship, including the franchisee’s entitlement to recovery in the class action (at para. 35). The court noted that there was no evidence that the buy-back offer was being made to undermine class action. On the contrary, the court found that it would be made for “legitimate business reasons that benefit both parties.” Nonetheless the court declined to issue the requested declaration on the validity of the releases primarily due to the fact that the franchisees involved did not receive notice of the motion.

COSTS

Durling v. Sunrise Energy Group Inc., 2011 ONSC 266: Costs awarded to Plaintiffs and other parties arising from subrogated insurer plaintiffs' aborted effort to avoid a stay of individual actions pending certification. The writer is counsel for one of the defendants.

Main v. Cadbury Schweppes plc, 2011 BCCA 128: Court rejected the plaintiff’s arguments that launching appeals in both Ontario and British Columbia delayed the proceedings and should result in costs, notwithstanding B.C. "no costs" rule. The author was counsel for the class.

Sharbern Holding Inc. v. Vancouver Airport Center Ltd., 2011 SCC 23: Supreme Court dismissed the appeal with costs, observing that the no costs regime in Section 37 of the British Columbia Class Proceedings Act does not apply to the Supreme Court.

Field v. GlaxoSmithKline Inc., 2011 SKQB 17: The court awarded costs against plaintiff’s counsel for failing to adhere to a litigation schedule and for intentional refusal to comply with a court direction to file an amended statement of claim.

Bear v. Merck Frosst Canada & Co, 2010 SKQB 284: The court found that the no costs rule in s. 40 did not apply to two applications brought before the certification application, but nevertheless refused to award costs.

McCracken v. Canadian National Railway, 2010 ONSC 6026: In this overtime class action, the court awarded costs to plaintiff on a successful certification motion that was intertwined with a partially successful summary judgment motion. Justice Perrell made a number of interesting comments:

"In my opinion, pretending that plaintiffs in class proceedings actually pay their lawyers or that plaintiffs are actually exposed to the risks of paying costs is unnecessary and actually gets in the way of the court using costs awards for their multifarious purposes. Practically speaking, in class actions, the influence of costs awards is visited on class counsel and on defendants but not on the plaintiffs who are only fictionally affected by costs awards...Ending the fictions will just reduce opaque arguments and opaque reasons for judgment and allow courts transparently to use costs: to pay for the expense of litigation; to facilitate access to justice; to discourage frivolous claims and defences; to discourage and to sanction inappropriate behaviour in the conduct of the lawyer-driven proceedings; and to encourage settlements." (paras.9,11)

On the appropriateness of the cost award:

"Although, technically, I granted CN's motion in part and granted Mr. McCracken's motion with qualifications, I regard Mr. McCracken and class counsel as achieving the level of success that justifies an award of costs for what, practically speaking, was a single complex motion with a multitude of issues, some of them interconnected and some of them mutually exclusive. Put somewhat differently, in the context of a class proceeding, the level of success achieved by CN does not rise to the level that should deprive class counsel of an award of costs or that would justify an offsetting award to CN." (para.21)

"Where the court certifies a class proceeding, its broad discretion with respect to costs can take into account whether class counsel's original design for the class action was overreaching or required adjustment for the action to be certifiable. The court's broad discretion with respect to costs can take into account all of the multifarious purposes of a costs award. If the court certifies the class proceeding, the court's broad discretion with respect to costs can take into account the defendant's contribution to yielding a class proceeding that is not overreaching and that is manageable and appropriate for a common issues trial and, if necessary, individual issues trials." (para.26)

Plaintiff's counsel sought $550,000 on time of $1.09M. CN had sought $400,000 in costs for itself. The court approved the $550,000 stating:

"On the understanding that the costs covered by the claim for costs for the two motions are not to be reclaimed later, the substantial discount in the counsel fee makes it easier to conclude that a counsel fee of $550,000.00 on a partial indemnity basis is fair and reasonable and within the reasonable expectations of the unsuccessful party. The fact that CN seeks $400,000 for its conceit of success on the two motions also makes it easier to conclude that this counsel fee is appropriate. Further, the fact that CN would have submitted a partial indemnity bill of costs of $1.3 million for the certification motion indicates the fairness of class counsel's claim. My own review of class counsel's bill of costs and my own understanding of the record and the proceedings up to and including the two motions also supports the conclusion that the counsel fee claimed should be awarded"

The court stated the following regarding Rule 49:

"Class counsel pointed out that it submitted two Rule 49 offers to settle the motion that were rejected by CN. However, class counsel does not seek costs based on the rule 49 regime, and it is debatable whether the costs consequences of Rule 49 would have been triggered. The involvement of the Law Foundation precludes resort to Rule 49. I have ignored the offers to settle in exercising my discretion with respect to costs"

Magill v. Expedia Canada Corp.2010 ONSC 6216: Considering costs of a motion to amend/summary judgment application, the court found that there should be no costs awarded given the mixed success and the reasonableness of having brought both motions.

Graham v. Imperial Parking Canada Corp. 2010 ONSC 6217: Justice Perrell adjourned costs determination until it was clear whether Plaintiff's were going to be able to locate a new required representative plaintiff.

Topacia v. Batac, 2001 ONSC 2155: Court ordered substantial indemnity costs on certification to Plaintiff of $90g against parties against whom the class was successful but, interestingly, made those in the cause. Partial indemnity costs were also established in the cause in relation to certain defendants against whom certification did not issue.

Perreault v. McNeil PDI Inc., 2010 QCCS 4310: Certification rejected since representative children did not actually have any of the problems it was alleged should have been the subject of better warnings.

Tremblay v. Lavoie 2010 QCCS 5945, Collectif de défense des droits de la Montérégie (CDDM) v. Centre hospitalier régional du Suroît du Centre de santé & des services sociaux du Suroît, 2011 QCCA 826: Abuse class actions certified.

Williams v. Toronto (City), 2011 ONSC 3991: Court exercised its discretion to award costs against the defendant in connection with the plaintiff’s failed motion to certify a rent-reduction class action. The court ordered the City of Toronto to pay costs on a partial indemnity basis, citing the extraordinary circumstances of the case. The court noted the City’s admission that it erred by not sending out statutory rent-reduction notices to the plaintiff tenants. The court also observed that the City’s earlier position on the viability of the plaintiff’s claims before the Landlord and Tenant Board precipitated the class action. Additionally, the court relied on the fact that, but for one issue, the class action would have been certified and that the City’s liability for failing to send notices of rent reduction engaged the public interest.

Re*Collections Inc. v. Toronto Dominion Bank, 2011 ONSC 3477, in which the court reduced the costs awarded against unsuccessful plaintiffs seeking to certify a class action concerning bank “holds” on deposited funds. In so doing, Justice Strathy reasoned that the case arguably raised novel points of law because the validity of banks’ hold policies had never before been directly challenged. In the court’s view, the more compelling reason for exercising judicial discretion on costs pursuant to s. 31 was that the case involved issues of considerable public interest and served the goals of class action legislation by providing access to justice for a vulnerable group and by focusing on behaviour modification.

Waters v. Daimlerchrysler Financial Services, Canada Inc., 2011 SKCA 53. Court overturned lower court’s award of costs against plaintiffs’ counsel where counsel filed an amended statement of claim during certification hearing without notice to opposing counsel or the court. The appeal court held that Section 40 of the Saskatchewan Class Actions Act circumscribed, but does not remove entirely, the court’s power to order costs in a class action. Notably, the court stated that had the case not been a class action, a judge would have been “entirely justified in making the costs award against the Plaintiffs based on their behaviour.”

SETTLEMENTS

Bartolome v. Nationwide Payday Advance Inc, 2010 BCSC 1433: Court approved payday loan settlement. Writer's firm was counsel for defendant.

Bartolome v. Mr. Payday Easy Loans Inc., 2010 BCSC 1434: Court approved payday loan settlement. Writer's firm was counsel for defendant.

Bodnar v. Payroll Loans Ltd., 2010 BCSC 1460: Court approved payday loan settlement. Writer was counsel for one group of defendants. 30% fee approved. $7500 approved for the representative plaintiff payable as a disbursement, rather than out of counsel's fee.

Serhan Estate v. Johnson & Johnson, 2011 ONSC 128: Manufacturer of diabetes monitoring equipment agreed to provide costs of equipment and self-monitoring costs to the Canadian Diabetes Association to administer.

Ainslie v. Afexa Life Sciences Inc., 2010 ONSC 4294: Settlement of securities class action. Court provided for 2/3 of the requested 19.4% fee to be paid immediately, with 1/3 reserved for further consideration on review of the claims experience.

West Coast Soft Wear Ltd. v. 1000128 Alberta Ltd., 2010 ONSC 6388: Insider trading/tipping class action settled for $10 million. Court approved fee of 25% of net settlement funds. Court noted that (1) counsel had given an indemnity, and (2) the case was novel.

Tardif v. Hyundai Motora America, 20011 QCCS 3589 and Miller c. Kia Canada inc. 2011 QCCS 3590: Court replaced defendants as administrators of a settled claim. Court appointed third party administrator in their stead.

Chrysler Canada Inc. v. Gatens, 2010 ONSC 5467: Employer obtaining certification for settlement purposes of a class action against its employees as a defendant class in connection with the legality of terminating post-retirement health care benefits.

Samoisette v. IBM Canada ltée, 2010 QCCS 4312, aff’d 2011 QCCA 267: Pension benefits case denied certification because representative was still active employee who had not yet suffered damage. The appropriate procedure was a declaratory.

Waterston v. Canadian Broadcasting Corp., 2010 ONSC 4319: Certified pension surplus class action settled. Court rejected objection that the case was properly the subject of a Quebec grievance procedure. The court found that the issue of jurisdiction was res judicata in light of the earlier certification decision. The objector was present at the certification hearing, and had signaled a potential desire to intervene. The court found that the delay of 3 years in challenging the certification decision based on a change in law was not properly explained. Turning to the approval of the settlement, the court stated:

"This motion for the approval of the proposed settlement is pursuant to the provisions of the C.P.A. Court approval is required in order to ensure that the best interests of the class are satisfied. These interests do not include a consideration of whether or not terms of the proposed settlement are in violation of the collective agreement between the CBC and the SCRC. This court has no jurisdiction to deal with such a dispute. Such dispute must be dealt with under their individual collective agreements. This is not a proper factor for the court to consider on this motion. I therefore make no finding in this regard."

Girard c. Fonds AGF inc.2010 QCCS 4891, Huneault c. Société de placements Franklin Templeton 2010 QCCS 4896: Cases certified cases for settlement purposes. Settlement approved at Huneault c. Fonds AGF inc., 2010 QCCS 6444

Maggisano v. Skyservice Airlines Inc.2010 ONSC 6203: "Hard landing" class action certified with prospective settlement approval hearing to follow.

Insider trading class action settled, along with 25% fee: West Coast Soft Wear Ltd v. 1000128 Alberta Ltd., 2010 ONSC 6388

Copyright class action against Rogers, Canwest and Toronto Star settles: http://bit.ly/lxPayi. Court ordered that no amount be paid to rep plaintiff given lack of evidence. Fee equating to 24% and 1.7 multiplier approved.

Ont.CA rejects non-settling defendants objection to bar order in chocolate class action settlement: Osmun v. Cadbury 2010 ONCA 841. BCCA did likewise: Main v. Cadbury, 2011 BCCA 21. Writer is co-counsel for the class. SCC denied leave.

Lavier v. MyTravel Canada Holidays Inc.2011 ONSC 1222: Bad travel case involving illness settled after certification for a reversionary fund of $2.25M plus $600,000 for fees up to approval. Fee approved at 1.2 multiplier (or 21% if full take up achieved).

Celebrex/Bextra case certified for settlement purposes: Waheed v. Pfizer Canada Inc. 2011 ONSC 5057; Union des consommateurs c. Pfizer Canada inc. 2011 QCCS 4569

Wilhelm B. Pellemans et autre c. Vincent Lacroix et autres, C.S. Montréal, 500-06-000302-055, 23 mars 2011: Norbourg class action settled.

Abdulrahim v. Air France, 2011 ONSC 512: Air cargo settlement approved. 30% contingency fee awarded.

Pichette v. Toronto Hydro, 2010 ONSC 4060: Criminal interest rate $17 million cy pres settlement approved, 28.5% fee approved. Court noted "The Court is satisfied that it is both administratively very problematic and excessively costly to attempt to ascertain the specific LPPs incurred by individual customers of the defendants such as to attempt to allocate individual payments in restitution. Therefore, it is efficacious to have a cy pres distribution as seen in the earlier disposition through settlement in the Garland and Walker cases with respect to the gas utilities." Multiplier equated to 4.42. Court stated "[31] Where the retainer agreement provides for a percentage fee, the equivalent multiplier is not generally considered a major factor. See Cassano v. Toronto Dominion Bank (2009), 79 C.P.C. (6th) 110 (Ont. S.C.J.) at paras. 59-63. Class counsel accepted their retainer on the basis of a fee calculation that would vary directly according to the degree of success that was achieved. As I stated in VitaPharm Canada Ltd. v. Hoffman-LaRoche Ltd, [2005] O.J. No. 1117 (S.C.J.) at para. 107, “Using a percentage calculation in determining class counsel fees properly places the emphasis on quality of representation, and the benefit conferred on the class”.

Robertson v. ProQuest Information & Learning Co., 2011 ONSC 2629: Copyright infringement settlement approved. 24% fee approved.

Sayers v. Shaw Cablesystems Ltd., 2011 ONSC 962: Contractor tax liability settlement approved. 30% fee approved, which was less than a 1X multiplier.

Communication Méga-sat inc. v. Sharp Electronics of Canada Ltd., 2011 QCCS 4446 (settlement); 2010 QCCS 4451 (counsel fees); 2011 QCCS 262 (notice of settlement): Partial LCD settlement approved. Counsel fee of 7.2% approved.

Deronvil v. Univers Gestion multi-voyages inc. (Canada Air Charter), 2010 QCCS 5754: 25% fee approved.

Fischer v. IG Investment Management Ltd., 2010 ONSC 7147: $10.5 million partial market timing class action settlement. Multiplier of 2.5 approved.

Henault v. Bear Lake Gold Ltd., 2010 ONSC 4474: Securities class action settled for $1.3 million, with a 25% fee.

Griffin v. Dell Canada Inc., 2011 ONSC 3292: Defective computer class action settlement approved. Structure was refund of amounts paid for repair, and a $200 cy pres payment. $1.7 million fee approved, which was multiplier of approximately 1.3. The court stated: "A fee of $2 million is undoubtedly large. It may well exceed the total compensation payable to class members under the settlement. In considering this fee, I keep in mind the following:

(a) the fee is consistent with the retainer agreement and with the expectations of the representative plaintiffs; (b) no portion of the fee falls on class members – they are entitled to compensation without deduction for fees; (c) this was a complicated class action, both procedurally and substantively – Dell was a sophisticated and tough-minded opponent and it put up an aggressive defence; (d) the result achieved for the class is reasonable; and (e) a very substantial amount of time was expended on this matter by class counsel, over a period of more than four years, without any compensation and with no assurance of compensation unless the action was successful.

Class action legislation in Ontario was prompted, in part, by a concern that consumer claims could not be economically advanced on an individual basis. The costs of individual action, against large corporations, is simply too high. Consumer class actions simply will not be undertaken by first rate lawyers, such as class counsel in this proceeding, unless they are assured of receiving fair – and I would add “generous” – compensation in appropriate cases. That compensation must take into account the risks they undertake – including the real risk of no payment at all, the risk of exposure to costs, and the cost of deferred recovery of compensation. Plaintiffs’ class action work is not for the faint-hearted. The defendants are frequently represented by large firms, with substantial hourly rates, which deploy teams of partners and associates who are able to mount an aggressive defence and no doubt endeavour to wear down plaintiffs’ counsel. Unless there are generous rewards for cases that are won, the number and quality of plaintiffs’ counsel will inevitably decline. Considering the foregoing, I approve class counsel’s fee and disbursements"

Wiggins v. Mattel Canada Inc., 2011 ONSC 2964: Lead paint settlement approved. Multiplier of 1.75 approved.

Robertson v. Thomson Corp.2011 ONSC 1184: Review of Settlement Administrator's decision.

Huneault c. Fonds AGF inc. 2010 QCCS 6444: Market timing settlement approved. $700,000 fee approved.

Travossos v. Tattoo, 2011 ONSC 2290: Tattoo parlour infectious diseases case settled. No class member had tested positive to date. Uninfected fund of 900,000 and infected fund of 200,000 created. 30% contingency applied. Uninfected would receive minimum of $125 and maximum of $250. Defendants could nuke settlement if claims exceeded the caps. If claims were under the cap, the fund would revert to Defendants. All inclusive counsel fee of $275,000 approved.

Lewis v. Cantertrot Investments Ltd., 2011 ONSC 2713: $400,000 settlement of real estate misrepresentation claim. Fee equating to 33% or 0.3 multiplier approved.

CONVERSION

Stevenson Estate v. Bank of Montreal, 2011 SKCA 51: Court dismissed appeal from decision refusing to allow conversion of individual action to class action. Court also held that leave was required to appeal such a decision. The writer was counsel for defendants in this action. The court held: "In the matter before us, it is clear the refusal to allow the proposed amendment had no effect on the rights of the appellants. Their claim in negligence which existed before the application to amend is precisely the same claim which exists after the amendment was refused. The only individuals whose rights might arguably have been affected by the refusal to amend are the potential members of the class on which behalf the appellants sought to act as a representative plaintiff. However, those individuals remain free to sue the respondents in precisely the same way as they could before the amendment was refused. Thus, their rights have not been disposed of either."

Bellefeuille v. Canadian Pacific Railway, 2011 ONSC 2648: Individual environmental contamination claim converted to class action. On the leave application, the court stated "[In] all the cases cited by the motion judge and the parties, the court assumed it had jurisdiction to convert the action to a class proceeding. The motion judge in this case considered the relevant cases and the relevant provisions of the CPA and the Rules, as well as the policies underlying the CPA. In my opinion, there is no reason to doubt the correctness of her decision." The leave court found that the trial court had properly consider the threshold for a class proceedings and whether there was any non-compensable prejudice to the defendant. The leave court also concluded that it was not improper to leave limitation issues to the certification hearing.

STAYS

Durling v. Sunrise Propane Energy Group Inc., 2011 ONSC 266: individual actions stayed pending outcome of certification hearing. Writer is counsel for one of the defendants.

Pro-Sys Consultants Ltd. v. Infineon Technologies AG 2011 BCSC 1128: Court "pauses" conduct of price-fixing action pending decision in SCC leave decisions in indirect purchaser cases.

CLASS DEFINITION

Option Consommateurs c. Banque Canadian Tire, 2010 QCCS 5118, Option Consommateurs c. Banque Amex du Canada, 2010 QCCS 5119, Option consommateurs c. Citibanque Canada, 2010 QCCS 5120, Option Consommateurs c. Banque de Montréal, 2010 QCCS 5114, Option consommateurs c. Banque Amex du Canada, 2010 QCCS 5117, Option Consommateurs c. Banque de Montréal, 2010 QCCS 5113, : Court updated class definition with a new notice, but refused to make the class definition open-ended into the future.

Dean v. Mister Transmission (International) Ltd. 2010 ONSC 6080: Motion for directions. Court of Appeal had set aside summary judgment in favour of defendants in light of new evidence. Defendants then sought to bring another summary judgment motion. The court allowed the motion to be brought under certain conditions.

Ducharme v. Solarium de Paris Inc., 2010 ONSC 5667: Court certified action previously rejected on the basis of a new class definition that no longer hinged on the legality of governmental steps in relation to the product. The definition was simply all purchasers of the product.

JURISDICTION

St-Arnaud v. Facebook inc., 2011 QCCS 1506: Court held that Facebook users were bound to the California jurisdiction selection clause in the Terms of Use, notwithstanding that they need to click on a link to see it. The court also held that the consumer contract exception allowing actions in Quebec did not apply since Facebook is free.

Assoc. canadienne contre l’impunité (A.C.C.I.) v. Anvil Mining Ltd., 2011 QCCS 1966 (dismissing defendant’s jurisdictional challenge, concluding that there were sufficient links between Anvil Mining and the Province of Quebec to found the Quebec court’s jurisdiction over the case), leave to appeal the ruling granted, 2011 QCCA 1035;

Curactive Organic Skin Care Ltd. v. Ontario, 2011 ONSC 2041 (dismissing plaintiff’s proposed action with respect to subway line expansion, holding that plaintiff’s action was an “injurious affection” claim under the exclusive jurisdiction of the Ontario Municipal Board);

Cannon v. Funds for Canada Foundation, 2010 ONSC 4517, appeal dismissed 2011 ONCA 185: real and substantial connection found between Bermuda-based defendant and Ontario due to the nature and frequency of the defendants use of trust funds in Ontario

Best (Guardian ad litem of) v. Nunatsiavut Assembly, 2011 NLCA 36: appeal court overturning the lower court’s dismissal of claims for jurisdictional reasons

Fédération des associations de familles monoparentales recomposes du Québec v. Québec (Procureur général), 2010 QCCS 5877: court found that a statutory review process to challenge the assessment of child support payments in the context of student financial assistance already existed.

Stanway v. Wyeth Canada Inc., 2009 BCCA 592: Court of Appeal upheld the lower court’s decision to refuse defendants’ challenge of the court’s jurisdiction. The basic facts set out at Sections 10(a) through (l) of the Court Jurisdiction and Proceedings Transfer Act are to be taken as proven if they are pleaded.

Fairhurst v. Anglo American PLC, 2011 BCSC 705: Relying on Stanway, court finds Section 10 presumption was not rebutted by defendants in plaintiff’s price-fixing tortious conspiracy claims

Bond v. Brookfield Asset Management Inc., 2011 ONSC 2529: Defendants were successful on their motion to stay a proposed class action on behalf of primary and secondary securities purchasers for lack of jurisdiction. The court found that no real and substantial connection to Ontario could be found given that the representative plaintiff and many of the putative class members have no personal connection to Ontario and all of the events took place in Alberta. The court also rejected the plaintiff’s main argument, that the parties and the matter are connected to Ontario through the oppression remedy provisions of the Ontario Business Corporations Act

Magill v. Expedia Canada Corp., 2010 ONSC 5247: Court exercising discretion not to enforce an exclusive jurisdiction clause to avoid a multiplicity of proceedings, possible inconsistent results, and in favour of having all the necessary parties before the court

Sears Canada Inc. v. C & S Interior Designs Ltd., 2011 ABQB 471: In an individual action, despite a real and substantial connection to Alberta, the court stayed Alberta proceedings in favour of an identical action in Ontario, finding that there was an overall advantage to having the action heard in Ontario. One of the reasons for having the matter heard in Ontario was that there was an ongoing certified. class action addressing many of the issues in the counterclaim

Union des consommateurs et Raphaël v. Bell Canada, 2011 QCCS 1118: Court found that the plaintiff had made no prima facie case to represent Bell customers in Ontario. The internet service contract in question was governed by Quebec law and the pleadings did not allege any justification for the plaintiffs to represent Bell customers in Ontario.

REPRESENTATIVE PLAINTIFF

Regroupement des citoyens contre la pollution c. Alex Couture inc. 2011 CarswellQue 8825: Court rejects replacement rep based on credibility concerns.

MOTION TO STRIKE

Magill v. Expedia Canada Corp., 2010 ONSC 5247: Court made following orders in this billing practices class action:

"• Mr. Magill's claims against Expedia.ca, which is not a legal entity, should be struck out • Expedia, Inc. may be added as a party defendant. • The definition of the class period was struck out with leave to amend to plead: (a) a class period as against Expedia Canada with a start date of June 26, 2007 and an end date as of the date of certification of the action as a class proceeding; and (b) a class period as against Expedia, Inc. with a start date of July 28, 2008 and an end date as of the date of certification of the action as a class proceeding. • The plea of negligence was struck out. • The plea of negligent misrepresentation was struck out, with leave to deliver a fresh pleading to plead a negligent misrepresentation claim against both Expedia Canada and Expedia, Inc. • The plea of claim under s. 36 of the Competition Act was struck out, with leave to deliver a fresh pleading to plead a claim under s. 36 of the Competition Act against both Expedia Canada and Expedia, Inc. • The pleas of breaches of the Consumer Protection Act, 2002 were struck out, with leave to deliver a fresh pleading to plead violations of the Act against both Expedia, Inc. and Expedia Canada."

Curative Organic Skin Care Ltd. v. Ontario, 2011 ONSC 2041: Proposed subway line expansion effects action. Defendant suggested that only OMB had jurisdiction over such an "injurious affection" claim. The court did strike the claim, holding that the defence of statutory authority existed for any common law claim.

In Dean v. Mister Transmission (International) Ltd., 2011 ONSC 553, the defendant’s fresh motion for summary judgment was granted and the certified action was dismissed, as there were no genuine issues for trial.

Union des consommateurs c. Bell Canada, 2011 QCCS 1118: Internet throttling class action refused certification. The court held that there were potential conflicts in the class between heavy and light users. The court held that the Plaintiff could not purport to represent Ontario residents since the case was based on Quebec law. also found that the colour of right aspect of the case was not met.

Logan v. Dermatech, Intradermal Distribution Inc., 2010 BCSC 481 (strike third party notice) (court finding that the claims set out in the Amended Third Party Notice disclose no reasonable claim against third party and ordering dismissal of the third party claim).

APPEALS

Taylor v. Canada, 2011 ONCA 181: Joint application for a special case on regulatory negligence in order to avoid Divisional Court appeal stage. The court granted the motion noting the benefits of fast-tracking the point stating "This action was commenced in December 1999 and pleadings have not yet closed. So much for access to justice!" (para.27).

In Brown v. Canada (Attorney General), 2010 ONSC 3095, leave to appeal certification granted 2011 ONSC 1193, the motion judge found that none of the causes of action pleaded by the plaintiffs disclosed a reasonable cause of action. However he went on to frame a new question as the “legitimate target or focus of the certifiable class action”. The defendant sought leave to appeal the certification decision on the basis that it had been left without an opportunity to argue that the pleading framed by the motion judge did not disclose a cause of action. The leave court held that the motion judge erred in granting certification, even on a conditional basis, without a proper pleading before him and without giving the defendant an opportunity to make submissions on its certifiability.

Chalmers v. AMO, 2010 BCCA 560: Certification of contact lens case upheld, as was punitive damage common issue.

Goyette v. GlaxoSmithKline inc, 2009 QCCS 3745, aff’d 2010 QCCA 2054: Paxil warning class action warning denial of certification upheld on the basis that the appearance of right was shown and there were no common issues.

Smith Estate v. National Money Mart Co., 2010 ONSC 1334, aff’d (in part) 2011 ONCA 233: Court of Appeal upheld the motion judge’s finding that arrangements entered into by class counsel with other legal and non-legal service providers ought to be treated as disbursements and that those providers are not entitled to a premium on their fees. The court observed that the Class Proceedings Act “does not contemplate contingency fee arrangements with persons other than class counsel and does not give the court the jurisdiction to allow a service provider a premium on its fees.” (at para 109). The court also rejected the submission that other lawyers retained by class counsel on a contingency basis became part of the class counsel team and that their fees should be treated as class counsel fees. The court found that there was nothing to suggest as much on the record.

Phaneuf v. Ontario, 2010 ONCA 901: Denial of certification in psychiatric detention case upheld.

McKenna v. Gammon Gold Inc., 2011 ONSC 3782: On appeal, the court returned the determination of common issues regarding the plaintiffs’ conspiracy claim to the motion judge, holding that it was not clear from the motion judge's decision whether or why secondary market purchasers were excluded from the class for purposes of the conspiracy claim. The court also found that the motion judge erred in requiring plaintiffs to deliver particulars of separate and distinct damages for the conspiracy claim at the certification stage.

FUNDING

Dugal v. Manulife Financial Corp., 2011 ONSC 1785, the Ontario Superior Court of Justice again considered whether it should exercise jurisdiction to approve a third party funding agreement under terms very similar to those in Metzler. Unlike the court in Metzler, Justice Strathy did exercise broad discretion to approve the funding agreement, reasoning that he was “entitled to put [himself] in the shoes of prospective class members and ask whether the proposed agreement is fair and reasonable.” (at para. 17). The court approved the funding agreement for, inter alia, the following reasons (at para 33): the agreement would help promote access to justice; the indemnification agreement would not take control of the litigation out of the hands of the representative plaintiff; the commission (7%) and commission cap were reasonable and fair; representative plaintiffs and a cross-section of class members accepted the agreement; the financial terms of the agreement were a fair reflection of risk and reward; and class counsel were experienced and reputable and would not be influenced by the funder in discharging their duties. The court also noted the necessity of such arrangements in class actions by observing that, “… no rational person would risk an adverse costs award of several million dollars to recover several thousand dollars or even several tens of thousand dollars.” (at para 28). The funding agreement was ultimately approved after the third party funder provided adequate security for the defendants’ costs and controls were established for the provision of information to the funder, 2011 ONSC 3147.

LIMITATIONS

Sharma v. Timminco Ltd., 2011 ONSC 2040: Section 28 of the CPA suspends limitation periods for actions under the Securities Act, including an action for which leave is required.

Dugal v. Manulife Financial Corp., 2011 ONSC 1764: On application to amend, the court found that plaintiff’s section 130 Securities Act claim was time-barred, as neither the original statement of claim, nor the first amended statement of claim contained a cause of action under section 130.

See Duong v. Stork Craft Manufacturing Inc., 2011 ONSC 2534, supra, where court declined to order enforcement of agreement to discontinue Ontario claim out of concern that Ontario residents may lose their limitation period protection.

INJUNCTIVE RELIEF

Fradenburgh v. Ontario Lottery & Gaming Corp., 2010 ONSC 5387: court recognized that while pre-certification injunctive relief may be available in extraordinary circumstances under Section 12 of Ontario’s Class Proceedings Act, it was not warranted in that case where the plaintiff was seeking an order requiring a “special” draw of numbers in the province’s lottery;

Pickering v. S.G.E.U., 2010 SKQB 361, motions judge declined to hear an application for an interim injunction to prevent the defendant union withdrawing funds from the pension plan under dispute in order to pay its legal costs. The judge concluded that as the withdrawals were identifiable and could be remediated, the circumstances did not demonstrate the “compelling reasons” necessary for the interim injunction to proceed in advance of the certification hearing.

DECERTIFICATION

In Koubi v. Mazda Canada Inc. 2011 BCSC 59, the court reconsidered an earlier decision to certify. The plaintiff sought to amend the certification order and common issues with a new statement of claim, while the defendants sought to have the action decertified. The defendants argued that the amended statement of claim contained no cause of action that could support a remedy in waiver of tort, failed to demonstrate a causal relationship between the alleged wrongdoing and benefit to the defendants, and lacked a methodology for calculating aggregate damages. The court rejected these arguments and amended the certification order to include the waiver of tort claim in the common issues to be decided at trial.

EVIDENCE

Lipson v. Cassels Brock & Blackwell LLP, 2011 ONSC 2668: Plaintiff applies to strike summons to witnesses involved in tax reduction scheme which summons were served in support of the pending certification motion. The court found that the usual approach to seeking evidence Mr. Lipson submits that this traditional law does not apply to class proceedings. I disagree. While the court has the plenary jurisdiction under s. 12 of the Class Proceedings Act, 1992 to vary the procedure from that provided for under the Rules of Civil Procedure to advance the purposes of the Class Proceedings Act, 1992 (See Peter v. Medtronic, [2008] O.J. No. 4378 (S.C.J.)), it does not follow that a special universal rule has been developed for all class actions that would be a categorical departure from the law as developed from the Canada Metal Co. v. Heap line of cases.... In the case at bar, the statement of claim and the evidence in the parties' respective certification motion records provides an evidentiary basis for concluding that all of Messrs. Messrs. Mintz and Elliott, who developed the Program, and Mr. Prenick, who introduced Mr. Lipson to it, may have evidence relevant to the certification motion, particularly the identifiable class, common issues, and preferable procedure criteria. I do not see how calling for testimony from these witnesses would be an abuse of process. Based on the traditional law, I would not quash the three summonses."

The court discussed the evidentiary burden on certification: " The point is that just because there is some basis in fact for a certification criterion, does not mean that the certification criterion is satisfied. All the certification criteria have a legal component, and a certification criterion may not be satisfied just because the plaintiff shows some factual basis for it. For present purposes, the more important point is that a defendant is entitled to advance his or her own evidence to support the defendant's own arguments about whether the certification criteria have been satisfied." (at para.26)

The court did make it clear that the examination had to be focused however, stating that "... the correct message [is] that the scope of the examination is confined to the issues of the certification motion" (at para.28)

Andersen v. St. Jude Medical Inc. 2011 ONSC 2178: Court admits law and economics expert evidence on waiver of tort issues at class action merits trial. Court held that it was social science evidence, not domestic law opinion.

Stanway v. Wyeth Canada Inc., 2010 BCSC 1497: Premplus/Premarin class action. Request by defendants for disclosure of medical records. The court summed up the applicable principles as follows:

"1. Precertification disclosure is ordered in the exceptional case where the defendant demonstrates that the record before the court for the certification hearing will be inadequate for consideration of the issues at that stage of the proceedings.

2. In considering whether an order for disclosure ought to be made the court must address the goals of judicial economy, access to justice, and behaviour modification.

3. It can be assumed that each individual's medical record will be unique. However, the medical evidence suggesting the significance of the individual factors of those who may have been prescribed and ingested the prescription drug may be necessary to furnish the evidentiary record;

and specifically in British Columbia,

4. There is no right to examine the representative plaintiff or other affiants in British Columbia; an order of the court is required.

5. In British Columbia, in accordance with the Act, the court must consider whether the claims of the class members raise common issues, whether or not those common issues predominate over issues affecting only individual members, and whether questions of fact or law common to the members of the class predominate over any questions affecting only individual members."

The court ordered disclosure stating: " I am satisfied that this is the exceptional case where precertification disclosure of medical records must be made. The individual risk factors identified in those records, and notes of the prescribing physician of the discussion he or she had with the patient concerning the benefits and risks of HRT and of Premarin and Premplus specifically, and the records of the examinations undertaken, test ordered and the results are necessary for my determination of the predominance of common issues and whether this class proceeding ought to be certified. This is particularly so when I consider whether there is a causal connection between Premplus and Premarin in combination with progestin and breast cancer, and if so, its nature and extent, as well as those issues concerning potential violations of the BPCPA or the TPA."

Bryar Law Corporation v. Samsung Electronics Co. Ltd., 2010 BCSC 1661. the court refused the plaintiff’s request that the defendant be ordered to produce documents that had been produced under protective seal in a parallel action in the United States. The court found that though the documents “might be material” to the issues in question at certification, the proper venue to make the application for production of those documents was California, where the contents of the documents were none and the interests of third parties not present at the application for production could be adequately protected.

Ben-Eli c. Toshiba of Canada Ltd., 2010 QCCS 4844: Limited examination of the rep plaintiff permitted.

Hazan v. Microsoft Canada cie, 2010 QCCS 4214: Defendant prevented from replying to references to American class action proceeding, but court also signaling that such information was not relevant and would not be relied upon. The court did allow the defendant to introduce information on correspondence with the plaintiff, and information regarding other purchases by the plaintiff.

Tremblay v. Lavoie, 2010 QCCS 4752: Court refused a request for cross-examination of the representative plaintiff but did order him to provide particulars with respect to certain allegations in the pleadings. 2011 QCCS 3024: Court ordering plaintiff to undergo medical examinations.

In Adams v. Canadian Tobacco Manufactures’ Council, 2010 SKQB 308, the court ruled an affidavit filed by an articled student working with plaintiff’s counsel inadmissible on the basis that it contained information that could not be considered purely formal and uncontroverted. The court gave plaintiff’s counsel the choice of withdrawing the affidavit or withdrawing as counsel.

Markson v. MBNA Canada Bank2011 ONSC 871: Traditional document discovery issues considered in certified class action.

SUBCLASSING

578115 Ontario Inc. v. Sears Canada Inc., 2010 ONSC 5673: Court required representative for Alberta subclass given that they received a material additional document. Court also awarded $105,000 to the Plaintiff on the costs of certification, and the defendant obtained $10,000 for its summary judgment application.

ADVANCE FUNDING

C. (L.) v. Alberta, 2011 ABQB 42 : Court makes limited advance funding order in proposed class action brought by infant against government. Writer acts for defendant government.

EVIDENCE

Pollack v. Advanced Medical Optics Inc.2011 ONSC 850: Defendants moved to strike reply affidavit on certification. Court agreed stating that the Plaintiff was splitting their case, as the reply affidavit raised the prospect of new infections caused by the impugned contact lens solution.

Arenson v. Toronto (City), 2011 ONSC 3294: pre-certification motion for production of certain documents by non-party dismissed because the information sought was not relevant to the certification motion

Schick v. Boehringer Ingelheim (Canada) Ltd., 2011 ONSC 63: Evidence from two purported experts struck in advance of certification.

Wall Estate v. GlaxoSmithKline, 2010 SKQB 351: Court held that leave ought to be granted to permit cross-examination, albeit not routinely, when the cross‑examination sought would assist in determining the outcome of a s. 6 inquiry. Court ordered production of rep plaintiff medical records on the basis that they may be relevant to certification. The court determined that jurisdiction should be considered in advance of certification, and dismissed claims against the foreign companies.

Conseil québécois sur le tabac & la santé c. JTI-MacDonald Corp. 2011 QCCS 4090: Court refuses to allow defendants to interview class members outside the absence of class counsel in this certified class proceeding, holding that solicitor client privilege applies. The court also suggested, albeit in obiter, that targeted contact by the defendant's experts would also be improper. The court also denied access to the medical records of certain class members who were going to be called at trial stating "This Court does not see how such information could be relevant or useful at trial. The classes here number in the millions in the Létourneau case and around 50,000 in the Blais file. What possible use can there be to learning specific medical facts about a few dozen class members, or even the 150 that ITL wishes to call to testify? It is simply not relevant at this stage."

Dobbie v. Arctic Glacier Income Fund, 2010 ONSC 4577: Guilty pleas in criminal proceedings by parties to the class action admissible on certification. Other evidence struck on the basis that it was contentious and improperly advanced through a solicitor's affidavit.

Knowles v. Arctic Glacier Inc, 2011 ONSC 682: Court considered scope of proper reply evidence in securities case.

Jones v. Zimmer, 2010 BCSC 1504: Court refused production of rep plaintiff medical records stating "I conclude that Zimmer has not satisfied me that the plaintiffs’ medical records are required for the certification application. Zimmer has conducted a review of the medical records of at least 3,100 patients who have had a Durom Cup implant. The medical records of these two plaintiffs will likely add nothing."

Cannon v. Funds for Canada Foundation, 2011 ONSC 2960: Court allowed affidavit to be tendered, but deferred ruling on its admissibility until after hearing argument on the certification and summary judgment motions. The affidavit was challenged on the basis that it was inappropriate case splitting, non-responsive to issues before the court and improper opinion evidence.

OPTING OUT

In Sauer v. Canada (Attorney General), 2010 ONSC 4399, an Ontario court recognized that the opt-out right was the foundation of its jurisdiction over class members. As such, the court granted an additional opt-out right to Quebec residents who became class members by way of an amendment to the class definition. The opt-out periods had expired in both Ontario and in the Quebec class action in which the Quebec residents had formerly been class members.

THIRD PARTIES

Stanway v. Wyeth Canada Inc., 2011 BCSC 108: Court declined to allow defendant to add third parties progestin manufacturers to proposed Premarin class action. The plaintiffs alleged that Premarin was dangerous when prescribed in combination with progestin. The court held as follows: "I disagree with the defendants' assertion that there has been a metamorphosis in the plaintiff's action. Despite Dr. Kirsh's opinion about the causes of breast cancer, the plaintiff has chosen to focus on the defendants to the exclusion of the progestin manufacturers, (with the exception of the defendants as a manufacturer of Premplus). That was the plaintiff's position at the outset of this litigation and continues to be the plaintiff's position. Adding the progestin manufacturers as defendants or third parties fundamentally recasts the plaintiff's claim. I am not convinced that, as the defendants assert, the plaintiff and the proposed class run the risk of having their claim dismissed if the progestin manufacturers are not included as necessary parties or third parties. I cannot conclude that the plaintiff's decision to frame the action as she has is a discredit to the proper administration of justice. Because the defendants have not met the precondition that a cause of action exists between the plaintiff and the progestin manufacturers, it is unnecessary for me to continue to consider the other issues raised including delay in making this application and whether the plaintiff can be forced to sue parties that she chose not to sue."

Rice v. Atlantic Lottery Corp. 2011 NLTD(G) 65: Court refuses Plaintiff's requests to sever off third party issues pending certification. Case involves Video Lottery Terminals. Manufacturers were brought in as third parties, and wished to participate in certification hearing. Court distinguished Attis stating: "In Attis third party advised the court that it did not intend to take any position on the certification hearing. There was no suggestion that the issues on the third party claim were the same as those in the main action. This is completely contrary to the present case. Attis was an action against the federal government with the pleadings raising only the several liability of the government arising out of a settlement agreement which resolved outstanding class actions against the government and the manufacturer of breast implants."

The court concluded: "The claim by the plaintiff against the defendant is identical to any claim the defendant would have against the third parties, who, in this case are manufacturers of the VLTs and the software used in the VLTs. The third party interest is so much involved in the intricacies of the plaintiff's claim against the defendant, it would be contrary to the principles of justice and equity to not allow the third parties standing at the certification process. Any delay to the proceeding is outweighed by the right of the third parties to have input into the certification process, avoid duplication of proceedings and potential conflicting decisions."

DISCONTINUANCES

Baxter v. Lloydminster (City), 2010 SKQB 452: Court declined to approve a discontinuance pre-certification because no notice had been provided to other potential class members, but noted that parties could still end the proceeding as they saw fit, given that the Saskatchewan Class Proceedings Act did not require court approval for a pre-certification discontinuance.

Driedger v. Ashley Furniture Industries Inc. 2010 SKQB 437: The court criticized the Saskatchewan Class Proceedings Act for not requiring court approval of settlements prior to certification. The court went on to say that the considerations applicable to approval of a settlement or discontinuance after certification were equally applicable to request to approve a pre-certification settlement.

Singer v. Schering-Plough Canada Inc., 2010 ONSC 6776: Court approved a settlement whereby the plaintiff abandoned his appeal of unsuccessful certification motions and the action be dismissed against the defendants in exchange for the defendants waiving the claim for costs awarded against the plaintiff. The court noted that it would be more concerned about the abandonment of the case had the court concluded that there was a substantial class whose interests required protection or that the continuation of the proceedings would promote the goals of class action legislation.

Ouimet c. Caisse de dépôt & placement du Québec, 2011 QCCS 1585: Court allowed dismissal or class action related to the Norbourg matter, given the global settlement of the proceedings. It was a term of the global settlement that this class action be discontinued.

PLEADINGS

Bear v. Merck Frosst Canada & Co., 2010 SKQB 284: Court held that, a statement of claim in an action commenced under the Saskatchewan Class Actions Act need not include a description of a class. In Bear, the defendants’ had brought a motion to disallow the plaintiff’s amendments to the statement of claim, which had the effect of removing a class definition from the pleadings. The author disagrees with this finding. The defendant and the proposed class should have some sense for the breadth of the proposed case at its launching.

That's all folks!!!

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