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Monday
Sep172012

September 2012

After a long hiatus, we are back at it, with our class actions blog. Our posting frequency should improve now that we've retained new bench strength with:

1. Ahmad Efran, previously of Kim Orr Barristers in Toronto, and

2. Craig Jones Q.C., previously head of Constitutional Law for the Province of B.C.

Before we dive in, an announcement that the 2013 Western Canadian Class Action Conference is set to take place in Vancouver on January 24/25, 2013. It will be a fun-filled (and educational) event. Make sure to sign up now as space is limited. Practitioners east of Winnipeg are welcome! Follow the link below to register:

http://www.cle.bc.ca/onlinestore/productdetails.aspx?cid=670

On to the case law!

CLASS ACTIONS AT TRIAL

Manuge v. Canada, 2012 FC 499: Class action brought on behalf of disabled Canadian Veterans challenging the legality of the reduction of long term disability benefits under the Service Income Security Insurance Plan (SISIP) by monthly amounts paid under the Pension Act.

The parties agreed to have the contractual aspect of their dispute resolved at this time, and proceeded with an Agreed Statement of Facts. The parties posed two questions of law to the Court for determination. The court concluded that the defendant was not contractually justified in offsetting Pension Act benefits from long term disability payments. Press reports have suggested damages are valued in the range of $600 million. The Federal Government declined to appeal the decision.

The writer was co-counsel for the class with McInnes Cooper.

Anderson v. St. Jude Medical Inc., 2012 ONSC 3660: After many years of litigation, the St. Jude Medical class action - a medical device product liability case dealing with potential health risks associated with certain mechanical prosthetic heart valves and annuloplasty rings coated with Silzone - reached the trial of common issues, where the action was dismissed by Justice Lax. Justice Lax concluded there was sufficient evidence to find that Silzone materially increased the risk of paravalvular leaks for some patients for some period of time post-implant. However, there was insufficient evidence to conclude the Silzone probably increased the risk of the other medical complications that were in issue, and the plaintiffs did not succeed in proving that Silzone had an adverse effect on tissue healing. Although Lax J. found that there was a high duty of care imposed on a medical device manufacturer, he concluded that the plaintiffs had not established that the defendants failed to exercise a reasonable degree of care in the pre-market design and testing or in the post-market surveillance of Silzone-coated products that would be expected of a reasonable and prudent prosthetic heart valve manufacturer.

Kavanaght c. Montréal (Ville), 2011 QCCS 4830: Street youth detention case was successful at trial. The arrests were held to be legal, but the subsequent detention and application of handcuffs was not. They were each held for a few hours after booking, with no excesses or abuse during the detention. Each of 78 members unjustly held were awarded $1500. The damages were lowered because the youth attended in the area with the specific intention of violating the law, which they believed was improper. Punitive damages of $1000 per person were awarded.

McGee v. London Life Insurance Co., 2011 ONSC 2897: The plaintiff initially applied to add new issues in this certified pension surplus class action. The Court granted amendments where the issues were reasonably viewed as being included within the existing issues, but denied amendments that would have required the Defendant to proffer new evidence. The Court then dismissed the action on the merits.

Spieser c. Canada (A.G.), 2012 QCCS 2801: Class action judgment rendered on the merits for a health-related claim resulting from environmental damage. Plaintiff sued the federal government on behalf of residents of Shannon, QC for allegedly spilling the solvent trichloroethylene (TCE) into the ground and contaminating the water supply. The plaintiff argued that this contamination explained the disproportionately high number of residents suffering from cancer and other illnesses in the town. She sought damages for harm and an order requiring the defendants to decontaminate the water supply.

The Court did not find that the plaintiff had proven on a balance of probabilities that the water contamination led to a higher than normal ratio of illnesses for residents, and therefore did not award damages on this basis. It also did not find it necessary to issue an order to decontaminate the water supply, noting that the defendants were already carrying out this process. However, the Court found the defendant liable for compensatory damages on the grounds that the contamination of the water supply was an abnormal nuisance to residents. Each person deprived of their water supply was awarded $1,000 per month up to $12,000 and the defendants were required to pay the plaintiff's expert fees which totaled more than $1.6 million.

SETTLEMENTS

King v. Nova Scotia: Motion for certification of immigration fee class action granted. Settlement of $25 million approved. The Court approved requested fee of 15-20% (with range depending on take up rate). The writer was counsel for the class. Of note, since approval we have been able to achieve a take up rate of 91% with a simplified 1-2 page claim form, aggressive skip searching and data mining. Of course an entitlement to up to $75,000 per claimant assisted with motivation as well.

Krajewski v. TNow Entertainment Group, Inc., 2012 ONSC 3908, D'Urzo c. Tnow Entertainment Group Inc., 2012 QCCS 3820 Ticketmaster class actions were certified on consent in Ontario, Quebec and Alberta. A proposed settlement valued at approximately $5.8 million including costs was approved. Settlement mechanism is direct payment of cheques with no claim form required. Class counsel fees of 25% approved. The writer was co-counsel for the plaintiffs.

Main v. Cadbury, 2012 BCSC 1062: Class action alleging price fixing certified for settlement purposes against another defendant. Settlement of $5.7 million and interim counsel fee of $800,000 approved. Court wished to wait to see if "most favoured nations" clause would be triggered to lower value of settlement before awarding full $1.6M fee. Writer is part of co-counsel group for class.

Rowlands v. Durham Health Region, 2012 ONSC 3948: Court approved settlement of class action involving lost memory stick. No cash paid to class members up front. Rather claims for economic loss would have to be established through a claims process. Writer was co-counsel for defendant.

Tremblay v. Shaw, 2012 FC 925: Court approved settlement of class action for alleged non-disclosure of annual interest rates on overdue accounts. No cash paid to class members up front. Rather credit were made available for movies or improved internet service. Writer was co-counsel for defendant.

Lakes v. MacDougall, 2011 BCSC 1273 and 2012 BCSC 49: The Court declined to approve settlement of sexual abuse class action with 6 month claim period in light of concerns about trade off of unlimited limitation period. The writer was counsel for the Government.

Richard v. British Columbia, 2011 BCSC 1490: The Court extended settlement deadline by 12 months in Woodlands class action. The writer was counsel for the defendant.

Ainslie v. Afexa Life Sciences Inc., 2011 ONSC 6094: The Court approved distribution of last third of class counsel's requested fee at conclusion of settlement distribution. Although the take up rate was only 23% of the eligible shares, the Court's found that this was not due to defects in the notice program.

Airia Brands Inc. v. Air Canada, 2011 ONSC 6286: Batch of further settlements approved in air cargo class action. The Court rejected an objection by the non-settling defendants that they should not have to bring a motion for discovery from the settling defendants. The Court noted the new emphasis in the rules about the proportionality of discovery.

Assoc. pour l'accès à l'avortement c. Québec (Procureur général): 2011 QCCS 6078: Supplementary fee award and distribution of balance of settlement fund to charities approved.

Baker Estate v. Sony BMG, 2011 ONSC 7105: $47 million settlement fund established in music fee royalty class action. 15% contingency fee was approved, which equated to a multiple of slightly below 3. The Court stated "[This] is the one area where the Court should free itself from the chains of the hourly rate. The result achieved for the class should generally be the most important test of the value of counsel's services." On whether the administration fees should be considered in the calculation of the benefit, the Court stated: "[That] money is necessarily spent in order to put the settlement into the hands of the class in an equitable and expedited manner. It was obtained through the efforts of counsel." The court declined to award $3000 honoraria for the representative plaintiffs stating that "I have decided that this is not one of those rare and exceptional cases that calls for payment of compensation to the class representative".

Beaudoin c. Assurances funéraires Rousseau & Frère ltée, 2011 QCCS 5115: Funeral insurance policy claim settled.

Communication Méga-Sat inc. c. LG Philips LCD Co., 2011 QCCS 6804, Fanshawe College of Applied Arts and Technology v. LG Philips LCD Co., 2011 ONSC 2484: Class action certified for settlement purposes in LCD price fixing cases.

Coopérative d'habitation Village Cloverdale c. Société canadienne d'hypothèques & de logement, 2012 QCCA 57: Court refused to change terms of long-ago settlement of a housing class action.

Cornellier c. Province canadienne de la congrégation de Ste-Croix, 2011 QCCS 6670: Sexual abuse class action settled. 20% counsel fee approved.

Chrysler Canada Inc. v. Gatens, 2010 OJ 4185: Pension benefits case was certified and settled.

Dorion c. Centre de santé & de services sociaux Richelieu-Yamaska (Hôpital Honoré-Mercier), 2012 QCCS 727: Hospital infection class action settled. 25% counsel fee approved.

General Motors of Canada Ltd. v. Abrams, 2011 ONSC 5338, Laurendeau c. General Motors du Canada ltée, 2011 CarswellQue 9819: Pension benefits case was certified and settled.

Helm v. Toronto Hydro-Electric System Ltd., 2012 ONSC 2602: Settlement of proposed Toronto Hydro interest rate class action approved. Class counsel fees in the amount of $1,458,970 (25% of total settlement amount) approved, despite the fact that it represented a significant >7X premium over what the fee would be based on time multiplied by standard hourly rates. In doing so, the Court stated: "Plaintiff's counsel are serious, responsible, committed and effective class action counsel. They are entrepreneurial. They will likely take on some cases that they will lose, with significant financial consequences. They will take on other cases where they will not be paid for years. To my mind, they should be generously compensated when they produce excellent and timely results, as they have done here." Finally, the Court disallowed a request for an honorarium of $2,500 to be paid to the representative plaintiff.

Henry v. Reebok Canada, 2012 ONSC 4449: Proposed easytone shoe class action certified. Settlement of (up to) $2.2 million approved.

Kidd v. Canada Life Assurance Co., 2011 ONSC 6324: In pension surplus case, the Court found that class member who did not like the proposed settlement should not be given status at the preliminary certification motion. The court also held that the representative plaintiff had no conflict of interest. The court found that the class member was effectively seeking carriage for a subclass very late into the process, and that she had not put forward a proper case for carriage. Court held that class members' real concerns were about the fairness of the settlement and that these could be addressed at the subsequent settlement approval hearing. The Court agreed to certify the matter for settlement purposes. The Court had some helpful commentary on when subclasses and subclass representatives were required:

"Subclasses are properly certified where there are both common issues for the class members as a whole and other issues that are common to some but not all of the class members: Caputo v. Imperial Tobacco Ltd., [2004] O.J. No. 299 (S.C.J.) at para. 45. Circumstances that necessitate defining subclasses at the certification stage include the circumstance where a subclass of the generally described class raises common issues that could be determined in the class proceeding but are not shared by other members of the class... The statute envisions that there should be a single, over-riding class, with its set of issues common to all members, some of whom might form a subclass with a distinct additional set of issues common to its members but not other members of the class as a whole: Wuttunee v. Merck Frosst Canada Ltd., supra, at para. 125.

If the differences between the situation of the representative plaintiff and the class members do not impact on the common issues, then the differences do not affect the representative plaintiff's ability to adequately and fairly represent the class and they do not create a conflict of interest..."

Laurendeau c. General Motors du Canada ltée, 2011 QCCS 5156: Pension case settled.

Option Consommateurs c. Fédération des caisses Desjardins du Québec, 2011 QCCS 4841: Cash advance class action settled. 25% counsel fee was approved. The Court held that where distribution was not being made to former customers because of complexity, it was not proper to treat that amount as undistributed funds for the purposes of the Fund's rights to funds under Rule 1033(2). The Court stated that a settlement could blend both 1033 (where individual distributions can be made) and 1034 (and individual claims are too complex). Here, distribution could be made to current customers, but could not be made to former customers.

Picard c. Québec (Procureur général), 2011 CarswellQue 14664: Case regarding native right to be exempted from fuel tax settled.

Pro-Sys Consultants Ltd. v. Infineon Technologies AG, 2012 BCSC 1136: Following settlement of this national price-fixing class action, the court approved counsel fees of $1,753,750 (30% of total recovery).

Robinson v. Rochester Financial Ltd., 2012 ONSC 911: The Court approved settlement of a flawed tax shelter scheme class action. The Court also approved 25% contingency fee which amounted to an approximately 2x multiplier. The Court refused to award fee to representative plaintiffs, stating that such awards should not be routine.

Smith v. Vancouver City Savings Credit Union, 2012 BCSC 990: Approval of a settlement of $2.5 million. Court also approved counsel fees of 30% and a contribution of $5,000 to the representative plaintiff.

St. John's Evangelical Lutheran Church of Toronto v. Steers, 2011 ONSC 6308: Case involving management and ownership of church was certified and settled.

St-Arnaud v. Facebook Inc., 2012 CarswellQue 3095: National privacy class action settled (after it had been dismissed on jurisdictional grounds, but with an appeal pending).

Union des consommateurs c. Pfizer Canada Inc., 2012 QCCS 16: Celebrex and Bextra class action settled. Notably, the consumer group representative plaintiff who signed the deal opposed it. The Court held that after signing the agreement, the representative plaintiff must be bound by its terms.

CARRIAGE

Simmonds v. Armtec Infrastructure Inc., 2012 ONSC 44: Carriage of proposed class action against Armtec Infrastructure Inc. granted to Sutts Strosberg over Siskinds. The key factors leading to the Court's decision included the nature and scope of the causes of action advanced, the theories advanced in support of those causes of action, the best interests of the class members, what is fair to the defendants (?) and what is consistent with the policy objectives of the Class Proceedings Act.

Smith v. Sino-Forest Corporation, 2012 ONSC 24: Carriage of proposed class action against Sino-Forest Corporation granted to Siskinds LLP and Koskie Minsky LLP over Kim Orr and Rochon Genova. In doing so, the Court found that the attributes of counsel, the retainer and resources, funding, alleged conflicts of interest and the correlation between the plaintiffs and the defendants were all neutral factors. The key determining factors leading to the Court's decision included the attributes of the proposed representative plaintiffs, the definitions of class membership and class period, and what the bundle of issues the Court referred to as "theory of the case, causes of action, joinder of defendants, and prospects of certification".

Of note, the Court found that one of the principal weaknesses of the claim advanced by Kim Orr Barristers, one of the law firms competing for carriage of the action, was the pleading of fraudulent misrepresentation. The Court found that a pleading of fraudulent misrepresentation action added needless complexity and costs:

"Turning to the pleading of fraudulent misrepresentation, when it is far easier to prove a claim in negligent misrepresentation or negligence, the claim for fraudulent misrepresentation seems a needless provocation that will just fuel the defendants' fervor to defend and to not settle the class action. Fraud is a very serious allegation because of the moral and not just legal turpitude of it, and the allegation of fraud also imperils insurance coverage that might be the source of a recovery for class members."

Only a few months after the release of this decision, the Ontario Securities Commission, having concluded its own investigation of Sino-Forest, issued allegations of fraud against the Company and its executives. In a statement released on May 22, 2012, the OSC stated: "OSC Staff allege that Sino-Forest and members of its overseas management engaged in numerous deceitful and dishonest courses of conduct connected with the purported purchase and sale of timber in the People's Republic of China. Staff allege that Sino-Forest provided grossly misleading disclosure to investors and that certain former executives attempted to mislead Staff's investigation."

CERTIFICATION

For those keeping scope, 23 certifications, 26 refusals, and 1 pending in contested cases. The writer's sense is that defendants are getting smarter, consenting when they cannot win, and more effectively "picking their spots".

Durling v. Sunrise Propane, 2011 ONSC 7506, 2012 ONSC 4196: Court refused to certify proposed consent certification in propane explosion case that included a mandatory registration date. Case was subsequently certified against all but landlord group on consent. Writer is counsel for one of the defendants. Certification efforts continue against landlord group.

Dominguez v. Northland Properties Corporation, 2012 BCSC 328: Foreign worker class action was certified. Writer is co-counsel for defendants.

121851 Canada inc. c. Theratechnologies inc., 2012 QCCS 699: Secondary market securities case was certified. The Court did emphasize that securities law leave requirement was higher than "colour of right" test under Quebec's certification rule Art. 1003. In a rough Google translation the court concluded, "In view of the Policy 51-201, the position advanced by [the plaintiff] suggests a reasonable possibility of success since the argument is serious and deserves careful consideration by the Tribunal. Obviously, the award may well lead to the eventual dismissal of the action, but since the factual and legal context to be the subject of legal debate reveals the presence of a serious issue to discuss and there is a reasonable chance successful, the Tribunal must allow the use."

Arenson v. Toronto (City), 2012 ONSC 3944: Certification of proposed "frozen parking machine" class action refused.

Arora v. Whirlpool Canada LP, 2012 ONSC 4642: The plaintiffs' motion to certify product liability action as a class proceeding was dismissed. The action related to a claim for pure economic losses arising out of the defendant's alleged negligence in the design of certain models of front-loading washing machines. After undertaking a detailed analysis of the law pertaining to the first element of the test for certification - the existence of a cause of action - Perell J. concluded that the plaintiffs' claim did not disclose a cause of action. He held that it was plain and obvious that the plaintiffs' contractual, statutory and common law claims could not succeed. He specifically examined the law of negligence pertaining to claims for pure economic loss relating to non-dangerous defects, and concluded that the plaintiffs' negligence claim could not succeed under the existing jurisprudence. Therefore, although the plaintiffs had satisfied the other four criteria for certification, the motion was dismissed without leave to amend the statement of claim to remedy the defects in the pleading.

Barwin v. IKO, 2012 ONSC 3969: The plaintiff's proposed class action against the defendants for negligence in design of organic roofing shingles was certified. The Court rejected the defendants' argument that the plaintiff's claim was for pure economic loss and therefore did not disclose a cause of action. The plaintiff had pled that he replaced his shingles in order to avoid water penetration into his home and the consequent possibilities of mold, mildew and fire hazard. The court noted that these were potentially significant threats to an occupant's health and safety. Accordingly, the plaintiff's claim arguably fell within the parameters of economic loss for remedying dangerous defects. Moreover, the Court held that the Supreme Court of Canada had left open the possibility of claims for repairs in non-dangerous situations. Given the lack of consistency in the jurisprudence, and the directives from the Court of Appeal to the effect that issues which are novel, complex and important should be decided on a full factual record after trial, the Court held that it was no plain and obvious that the plaintiff's negligence action could not succeed. The other criteria for certification were also met. The action was therefore certified as a class proceeding.

Brown v. Canadian Imperial Bank of Commerce, 2012 ONSC 2377: Motion for certification of CIBC overtime class action dismissed. The Court's decision rested primarily on the common issues and preferable procedure elements of the certification test. The Court took issue with the common issues proposed by the plaintiff. For instance, there was substantial variation in the duties and responsibilities of analysts and investment advisors. Some had managerial responsibilities while others did not. Therefore, the question of entitlement to overtime pay (which the plaintiff claimed could be determined by looking at the titles of the individual class member) could not be dealt with on a common basis.

Moreover, the key issue in the case - whether or not a given class member has managerial responsibilities so as to be entitled to overtime pay - was an individual issue that would require individual fact-finding concerning the circumstances of every class member and the individual application of the relevant legal principles to those circumstances. There was no workable methodology to resolve this conundrum. Therefore, a class action would not be a fair, efficient and manageable way of advancing the claims of class members and it would not promote access to justice or judicial economy. This was found to be an "insurmountable stumbling block".

Cannon v. Funds for Canada Foundation, 2012 ONSC 399: Proposed class action involving contributions made to charitable tax donation scheme was certified.

Cavanaugh v. Grenville Christian College, 2012 ONSC 2995: Motion for certification of proposed class action dismissed on the grounds that a class action was not the preferable procedure for resolving the claims of proposed class members. The Court found that the plaintiffs' approach of limiting the common issues to systematic wrongdoing passed the test for the common issues criterion but failed the test for preferable procedure. "In the circumstances of this case, the technique is a penny wise, pound foolish way to secure access to justice because it will make proof of the individual members' claims more difficult. In the case at bar, the expediency of framing the claim as systemic wrongdoing would not facilitate but will impede access to justice for the individual class members, the primary goal of the Class Proceedings Act, 1992." For instance, it appeared that many class members had no grievances to pursue and others would be better served by proving individual negligence and breach of fiduciary duty claims rather than systemic wrongdoing. Further, it was probably easier for each class member to prove his or her claim than it would be for the representative plaintiffs to prove systemic negligence or a systemic breach of fiduciary duty.

The Court concluded that this was a case where an alternative approach, such as the approach used in Hudson v. Austin, 2010 ONSC 2789 (i.e. a group of case-managed actions with the plaintiffs being represented by one team of lawyers and the defendant represented by the same lawyer of record in all of the actions) would provide access to justice, judicial economy, and behavior modification in a way that was procedurally fair. Although this was not an approach that was put forth as an alternative by the defendants, the Court nevertheless concluded that such an approach would be preferable to a class action "that would provide a common issues trial that would involve the proof of matters that ultimately will have to be proven again or will have been a waste of time to prove in the first place and individual issues trial that will provide little or no judicial economy and make access to justice more and not less difficult." Therefore, the Court held that the preferable procedure criterion had not been satisfied. Certification was hence denied, but the dismissal was suspended for six months to allow the plaintiffs to apply under s.7 of the Class Proceeding Act, 1992, to have the action continue in an altered form.

Centre de la communauté sourde du Montréal c. Institut Raymond-Dewar, 2012 CarswellQue 2896: Institutional abuse case was certified. Champagne v. Sidorsky, 2012 ABQB 522: The Court refused certification of proposed class action, noting that a class action was not the preferable procedure of dealing with the claims of the plaintiffs. Of note, the Court held that, except when the court exercises its discretion to allow representation by non-lawyers or otherwise provided for in an express exception, representative plaintiffs in class actions must be represented by counsel.

Dell'Aniello c. Vivendi Canada inc., 2012 QCCA 384: Pension case was certified.

Deraspe c. Zinc électrolytique du Canada ltée, 2012 QCCS 1043: Class action concerning cloud of toxic gas emitted from a refinery which created noxious symptoms for those exposed. Damages are estimated at up to $900 million. Plaintiffs had attempted to certify the action in 2009 but the Court then ruled that the class definition was too vague. In 2012, class was more precisely defined and certification successfully obtained.

Érablière J.P.L. Caron inc. c. Fédération des producteurs acéricoles du Québec, 2011 QCCS 6445: Certification in fee restitution class action was refused on the basis of res judicata arising from enforcement judgments. Farmer sought restitution after certain penalty clauses issued by the defendant were struck down. The court held that the plaintiff was estopped from advancing the case due to the fact that it had entered into an earlier settlement.

Fairview Donut Inc. v. TDC Group Corp., 2012 ONSC 1252: Certification and summary judgment motion heard together. The action involved claims by Tim Horton's franchisees in relation to (1) conversion from scratch-baked operation to par-baked operation; and (2) the cost of ingredients and reduced profit margins associated with new lunch menu. The plaintiffs argued that these actions breached their franchise agreements and duties of good faith (including statutory duties). Justice Strathy granted summary judgment and dismissed the certification motion, however, Justice Strathy noted that had he not dismissed the claims of the individual franchisees, he would have certified the class and asked the parties to draft common issues.

French and Karas et al v. Smith and Stephenson et al., 2012 ONSC 1150: Certification granted in proposed class action relating to mutual fund leveraging scheme.

Gaudet c. P. & B. Entreprises ltée, 2011 QCCS 5867: Environmental case was certified. However the Court found that there was insufficient support to justify the punitive damage claim. The Court also excluded individuals who only worked rather than resided in the area.

Gay v. Regional Health Authority 7, 2012 NBQB 88: Motion for certification of proposed class action against physician and hospital for negligence in testing of tissue samples dismissed. The plaintiffs failed to establish an identifiable class, define a workable and manageable common issue or establish that a class action would be the preferable procedure for proceeding within the requirements of the Class Proceedings Act.

Jin v. Canada Everich Real Estate Group Inc., 2011 ABQB 524: Real estate investment case was certified.

Lessard c. Arcand, 2012 QCCS 275: Environmental flooding case was certified against certain defendants.

Lipson v. Cassels Brock & Blackwell LLP, 2011 ONSC 6724: Certification of proposed class action against Cassels Brock LLP for negligent tax advice denied on grounds that the claim was statute-barred.

Lorrain c. Pétro-Canada, 2011 QCCS 4803: The Court rejected proposed gas tank supply measurement class action. The Court noted that in Quebec, the Court is allowed to consider evidence on the "colour of right" component of the test. Specifically, pleadings that are flatly contradicted by reliable documentary evidence can be ignored. The Court held that the test was not met in this case. The Court also found that there were no common issues, and that the representative was inappropriate.

MacDonald v. BMO Trust Company, 2012 ONSC 759: Proposed class action certified for breach of contract as a result of undisclosed and excessive foreign currency exchange charges on registered accounts.

MacMillan c. Abbott Laboratories, 2012 QCCS 1684: Certification denied for proposed class action against the manufacturer of the drug "Meridia" Plaintiff failed to show causal link between drug use and alleged cardiovascular risk.

MacQueen v. Sydney Steel Corporation, 2011 NSSC 484: Sydney Tar Ponds class environmental class action was certified. Claim was restricted to loss of use and enjoyment of property and funding of medical monitoring. Compensation for diminution of property values and personal injuries were not pursued. Class certified included property owners within certain defined radius of the Steel Works, and a residential class, being persons who lived within the same boundary for a minimum of 7 years after January 5, 1968. The court distinguished Ring and Bryson, stating: "In my view those cases are distinguishable because they lack common elements present in this case, such as pollutant source and toxicity level, and because individual personal injury was a major factor in those disputes."

The court found that it was premature to address limitation periods as part of the class definition, particularly as the plaintiffs had pleaded suspension of limitation periods based upon discoverability and equitable fraud. The court did narrow the class from the originally proposed definition. The court stated "I have considered the authorities that the defendants cite to support their "all or nothing" argument, but nevertheless conclude that if I do not accept the boundaries proposed by the plaintiffs, I can make adjustments within reasonable limits, provided that revisions I make to boundaries proposed are supported by the evidence."

Martin v. AstraZeneca Pharmaceuticals PLC, 2012 ONSC 2744: Certification denied for potential class action arising from allegedly serious health risks derived from taking the antipsychotic drug Seroquel. The plaintiff alleged "negligent design, development..testing...manufacturing...distribution, marketing and sale" of the drug.

The Court denied certification on the basis that the plaintiff had not developed a valid cause of action. It found the pleadings to be "muddled and vague" and that allegations of negligence were lacking in support. The Court emphasized that it was not sufficient to bring generalized allegations of negligence. It also found that the claims that were brought lacked the material facts necessary for their support.

The Court also refused certification for the plaintiff's two other causes of action: failure to warn and conspiracy. The "statement of claim fails to plead what warnings were given, how they were inadequate, and whether or how they could have been improved." The Court also found that the claim for conspiracy lacked clarity and did not contain the required "high degree of specificity."

Additionally, the court found that the plaintiff failed to produce an identifiable class of two or more that could be represented by the plaintiff and that the proposed common issues proposed by the plaintiff lacked the necessary commonality. The Court found that, given the lack of commonality and the complexity of the individual issues, a class action was not the preferable procedure. Finally, the representative plaintiffs were found not to be suitable.

The writer understands that the decision is currently under appeal.

Mazzonna v. DaimlerChrysler Financial Services Canada Inc./Services financiers DaimlerChrysler inc., 2012 QCCS 958: Certification was denied in privacy class action on the basis that the plaintiff had not shown any colour of right in relation to damages, as she had not met the Mustapha standard for claim for mental distress, and had no other damage. The Court found that the potential need for monitoring was too speculative.

Morin c. Bell Canada, 2011 QCCS 6166: Cancellation fee class action was certified.

Neale c. Groupe Aeroplan Inc., 2012 QCCS 902: National class action was certified in Quebec regarding the expiry of Aeroplan points.

Option Consommateurs c. Corp. Shoppers Drug Mart, 2012 QCCS 1078: Optimum Card points adjustment class action was certified for Quebec residents only.

Paris c. Lafrance, 2011 QCCS 4619: Securities class action was certified.

Pardhan v. Bank of Montreal, 2012 ONSC 2229: Certification in proposed investor fraud class action denied on the basis that the proposed representative plaintiff's health problems - resulting from a stroke shortly before the certification hearing - prevented him from advancing the interests of the class. However, the court held that, since the plaintiff had met the other requirements for certification, the fair approach would be to give the plaintiff an opportunity to resolve the representative plaintiff's health issue or alternatively propose another representative plaintiff and produce an acceptable litigation plan. The Court adjourned the certification motion for 30 days to satisfy the "suitable representative plaintiff" requirements.

Picard v. Air Canada, 2011 QCCS 5186: The Court granted certification on behalf of disabled or obese persons required to purchase extra seat. The Court stated that courts have concurrent jurisdiction over Canadian Human Rights Code (unlike the situation in Ontario and in other provinces).

Regroupement des comités logement & assoc. de locataires du Québec c. Québec (Société d'Habitation), 2011 QCCS 6115: Case regarding calculation of fees for low income housing was certified. The Court reemphasized that the default rule in Quebec is that the Defendant pays the certification notice cost.

Renaud c. Holcim Canada inc. 2012 QCCS 82: Environmental dust case was certified.

Rhodes v. Cie Amway Canada, 2011 FC 1341: Class action dismissed based on class action waiver clause. The Court held that there was no applicable legislation that clearly prohibited the waiver. Griffin did not apply as there was no evidence on claims that fell outside of the class action waiver's terms.

Sivak v. R, 2012 FC 271: Certification of a proposed class action in the Federal Court involving the processing of Roma refugee claims based upon a 2009 Report was refused. The proposed class was rejected because there was no proper representative plaintiff and because a class action was found not to be the preferable procedure. Interestingly, almost no discussion took place in relation to preferable procedure. The context of the Federal Court Rules also factored in heavily in the Court's decision.

Sorenson v. easyhome Ltd., 2012 ONSC 1946: Consent motion for the certification of proposed class action for those who purchased easyhome Ltd. shares during 30 month period in which its financial reporting documents contained misrepresentations.

St-Pierre c. Banque Royale, 2011 QCCS 5758: Lease registration fee case was certified.

Tremblay v. Ameublement Tanguay, 2011 QCCS 3078: Important decision rendered by Madame Justice Dominique Bélanger in one of the 10 class actions filed against various retailers alleging failure to disclose and explain the legal warranty, and alleging that the extended warranty has no value. The motion for authorization was dismissed. In summary, she held that the retailers up to the most recent legislative amendments had no obligation to disclose and even less of an obligation to describe the legal warranty, that the extended warranty does have value, and does not address necessarily the same matters as the statutory warranty. She further concluded that there are too many contracts involving too many customers and too many products raising too many individual issues, such that the commonality criterion was not met. Finally she held that the petitioner was not an adequate representative.

A series of similar class actions were also refused certification: Fortier c. Meubles Léon Ltée, 2011 QCCS 3069, Blondin c. Distribution Stéréo Plus Inc., 2012 QCCS 105, Filion c. Corbeil Électrique Inc., 2012 QCCS 101, Guindon c. Brick Warehouse, l.p., 2012 QCCS 100, Normandin c. Bureau en gros (Staples Canada Inc.), 2012 QCCS 104, Tahmazian c. Sears Canada Inc., 2012 QCCS 102; Roulx c. 2763923 Canada Inc. (Centre Hifi): 2012 QCCS 103.

Toure c. Brault & Martineau inc., 2011 QCCS 5343: Certification of financing fee class action was refused on the basis of the "colour of right" test.

Trudel c. Bell Canada, 2011 QCCS 6750: Case regarding change in interest rate on late bills was certified.

Waldman v. Thomson Reuters Corporation, 2012 ONSC 1138: Proposed class action regarding infringement of copyright of court documents authored by lawyers through their unauthorized publication in Carswell's "Litigator" database was certified.

Williams v. Canon Canada Inc., 2011 ONSC 6571: Proposed class action for malfunctioning Canon cameras not certified on grounds that it did not meet the "basis in fact" threshold for identifiable class, common issue or preferable procedure.

REPRESENTATIVE PROCEEDINGS

Assn. des parents de l'ecole Rose-des-Vents v. Conseil scolaire francophone de la Colombie-Britannique, 2011 BCSC 1495: The Court approved a representative (not a class) proceeding to determine French language constitutional rights. Notably, the Court declined to allow an opt out right, as it would undermine efficiency to have multiple proceedings.

Ottawa Police Assn. v. Ottawa Police Service Board, 2011 ONSC 7214: Pension misrepresentation case given certification under traditional representative Rule 12.08. The Court found that union could not be appointed representative as 12.08 states that "one or more of [the class]" may be authorized. The Court gave leave to substitute a union member as representative provided information was put forward to confirm there were no conflicts and that they could represent adequately.

APPEALS

Medvid v. Alberta (Health and Wellness), 2012 SKCA 49: Unsuccessful appeal of a decision by the Trial Court in relation to a proposed class proceeding in Saskatchewan and Alberta in relation to the re-use of medical syringes by the defendants. The conclusion of the Trial Court that Crown immunity prevented the Alberta government from falling within the jurisdiction of the Saskatchewan Court of Queen's Bench was upheld. The writer was counsel for the successful Province.

Abdula v. Canadian Solar Inc., 2012 ONCA 211: In an appeal from the decision of Taylor J., the Ontario Court of Appeal dismissed the corporate defendant's appeal and concluded that the defendant was a "responsible issuer" pursuant to s.183.1(b) of the Ontario Securities Act ("OSA"). As the defendant's shares were not publicly traded in Ontario, it was not a "reporting issuer" for the purposes of s.183.1(a) of the OSA. However, the definition of "responsible issuer" under s.138.1 of the OSA included both a "reporting issuer" and "any other issuer with a real and substantial connection to Ontario, any securities of which are publicly traded." The Court of Appeal concluded that "when the words 'publicly traded' in paragraph (b) of the definition of 'responsible issuer' are read in their entire context and in their grammatical and ordinary sense, harmoniously with the scheme of the OSA, the object of the OSA and the intention of the legislature, gleaned from the legislative history and the words chosen by the legislature, they do not mean 'publicly traded in Canada'." Since the corporate defendant was an issuer with a real and substantial connection to Ontario, and since its shares were publicly traded on the NASDAQ, it met the definition of "responsible issuer" under the OSA and was therefore subject to the statutory tort provisions of the OSA.

Adams v. Amex Bank of Canda, 2012 QCCA 1394: In this credit card foreign currency conversion rate case, the Quebec Court of Appeal upheld the judgment of the Superior Court in this successful certified action which granted certification ruled against Amex for failure to disclose to consumers the nature of certain fees it charged when it exchanged foreign funds expended on the class members' credit cards into Canadian dollars. The Court held that Amex's disclosure obligations did not frustrate the Federal government's powers under the Bank Act. Further, the trial judge did not commit a palpable and overriding error in the appreciation of the evidence and, accordingly, his conclusion that the mark-up was in essence a fee or cost for a service could not be disturbed.

However, the Court of Appeal went on to hold that the award of punitive damages was not justified in the circumstances. To begin with, the trial judge failed to take into consideration the fact that a collective recovery often comprises an important punitive aspect as compared to individual recovery. Moreover, there was no need to impose punitive damages to encourage a practice that had long been discontinued by Amex and by other banks. There was also no evidence of anti-social or reprehensible conduct by Amex requiring some form of punishment in addition to an award of restitution. And finally, an award of punitive damages in connection with a service that the class members had used for many years, that would retrospectively be free and that they had continued to use even when made aware of the commission associated with it, was not justified. As a result, the Court of Appeal varied the judgment of the trial judge and disallowed the award of punitive damages.

Allstate v. Agostino, 2011 QCCA 1817: Quebec Court of Appeal granted leave to appeal decision of lower court declining to admit certain evidence without hearing full submissions from the defendant.

Bergeron c. Tremblay, 2012 QCCA 1301: Defendant sought leave to appeal an interlocutory judgment that rejected his request to suspend his examination for discovery until the conclusion of his criminal trial on a related matter. The court rejected this application but instituted safeguards to prevent prejudice: that the content of the discovery document would not be disclosed beyond the parties and their lawyers and that the transcript would be sealed when it was submitted to the court.

Bre-X Minerals Ltd. (Trustee of) v. Felderhof, 2011 ONSC 6492: Amazingly, the Bre-X litigation continues. This was an appeal of the decision ordering trustee of Bre-X to pay future legal expenses of Felderhof. Funding was overturned on the basis that Plaintiffs had not been given a full opportunity to argue that the Okanagan test was not met. Further, the Court did not have the jurisdiction to make an order against Bre-X's assets as the Bre-X estate was controlled by the Alberta Bankruptcy court. Neither did the court have the authority to attach the funds held in trust for the class action Plaintiffs.

Curactive Organic Skin Care Ltd. v. Ontario, 2012 ONCA 81: Court of Appeal upheld dismissal of environmental case on the basis that it fell within OMB jurisdiction or did not disclose cause of action.

Dean v. Mister Transmission (International) Ltd., 2011 ONCA 670: Dismissal of franchisee class claim was upheld on appeal.

Dennis v. Ontario Lottery and Gaming Corporation, 2011 ONSC 7024: The plaintiffs' appeal of the motion judge denying certification of the "It's your fault I'm was able to keep gambling" class action dismissed. The appeal centered on the motion judge's treatment of the plaintiffs' proposed common issues and the determination that a class action was not the preferable procedure. The Divisional Court agreed with the motion judge that there was a wide range of individual issues, such as the degree of loss, representations made by the gaming authority, the duty of care owed to individual gamblers and limitation issues, which could not be dealt with on a class-wide basis. The Divisional Court therefore concluded that the motion judge did not commit an error in law justifying intervention.

In a lengthy dissenting judgment, Wilson J. held that the major issues in the case - which related to the signing of exclusion contracts by the class members - were common issues. Furthermore, as problem gamblers, the class members were a vulnerable class that needed access to justice. Further, there was a question as to whether there was a systematic breach on the part of the gaming authority. In Wilson J.'s view, any of the individual issues could be refined throughout the litigation.

Canada (Attorney General) v. Anderson, 2011 NLCA 82: The Court of Appeal granted leave to appeal from the decision of lower court certifying residential school action as a class proceeding. It held that the standard of review was correctness regarding the existence of a cause of action and palpable and overriding error regarding an identifiable class, presence of common issues, preferable procedure and an appropriate representative plaintiff. It further held that the applications judge correctly concluded that it was not plain and obvious that no cause of action was disclosed and made no palpable and overriding error in concluding some basis in fact was set out for the remaining certification criteria. The appeal itself was dismissed however.

Fischer v. IG Investment Management Ltd., 2012 ONCA 47: Appeal from decision of Divisional Court certifying "market timing" class action was dismissed. The principal issue before the Court of Appeal was whether the settlements procedure carried out under the supervision of the Ontario Securities Commission was the preferable procedure for dealing with the claims of the class members. The Court of Appeal rejected the reasoning of the trial court, as it focused on the substantive outcome of the OSC proceedings, rather than considering the regulatory nature of the OSC's jurisdiction and its remedial powers, as well as the lack of participatory rights afforded to affected investors by the OSC proceedings. "A consideration of these two particular characteristics compels the conclusion that the OSC proceedings would not fulfill the CPA goal of providing class members with access to justice in relation to their claims. Thus, the OSC proceedings cannot constitute a preferable procedure to the proposed class action for the purposes of the CPA." The decision of the Divisional Court's certifying the action was upheld.

Fontaine v. Canada (Attorney General), 2012 ONCA 471: The battle over counsel fees associated with the Indian residential schools litigation continues nearly seven years after the approval of the national settlement agreement. Merchant Group appealed from the decision of the administrative judge, who ruled that there was no right of appeal or judicial review from a fee review decision by the Chief Adjudicator which approved the independent assessment process adjudicator's decision to adjust legal fees down from 30% to 20% of the compensation award. The Court of appeal dismissed the appeal, holding that the fee review decision of the chief adjudicator was not reviewable by way of an appeal to the Superior Court, or by way of an application for judicial review to the Superior Court. Rather, the Chief Adjudicator's decision was only reviewable by an administrative judge through a Request for Direction under a Court Administration Protocol. A Request for Direction could only be brought where it was alleged that the Chief Adjudicator's decision reflected a failure to enforce the provisions of the settlement agreement and the implementation order. As Merchant Group had not established such a shortcoming on the part of the Chief Adjudicator, the appeal was dismissed.

Fresco v. Canadian Imperial Bank of Commerce, 2012 ONCA 444: This was one of three decisions rendered by the Ontario Court of Appeal in relation to the overtime class actions. The Ontario Court of Appeal allowed the appeal from the Divisional Court and certified the action as a class proceeding. It held that the motion judge had committed an error in law in her finding that it was plain and obvious that CIBC's overtime policies complied with the Canada Labor Code. Further, in conducting the common issues analysis, the motion judge had misconceived the appellant's action as being a collection of individual claims for unpaid overtime. The motion judge disregarded the appellant's evidence showing some basis in fact to support the existence of many of the proposed common issues concerning liability. Given these errors, appeal was allowed and the action was certified as a class action.

Fulawka v. Bank of Nova Scotia, 2012 ONCA 443: This was one of three decisions rendered by the Ontario Court of Appeal in relation to the overtime class actions. The court upheld certification for many of the same reasons as in Fresco, but trimmed the common issue of aggregate damages, saying it was not realistically available in this case.

Kwicksutaineuk/ Ah-Kwa-Mish First Nation v. British Columbia (Minister of Agriculture & Lands), 2012 BCCA 193: Appeal from the decision of motion judge certifying the proceeding as a class action was allowed. The action involves claims by members of First Nations communities in the Broughton Aechipelago region as a result of the depletion of wild salmon stock. The class action was certified, and the class was defined as "all aboriginal collectives who have or assert constitutionally protected aboriginal and/or treaty rights to fish wild salmon for food, social, and ceremonial purposes within the Broughton Archipelago and the rivers that drain into the Broughton Archipelago on behalf of himself and other Aboriginal collectives who have rights to fish in the Broughton Archipelago". In allowing the provincial government's appeal, Court of Appeal noted that there would be significant difficulty in determining class membership, and that the analysis of this issue was "more involved than is appropriate". Moreover, the Court held that the "aboriginal collective" referred to in the class definition was not a legal entity that had the capacity to sue:

"Here, there is no evidence that the "aboriginal collectives" who are class members are organized in a way that could confer legal status on them. Most importantly ... the identity of the groups is not ascertainable without an in-depth examination of the merits of the individual liability issues in the proposed action."

Accordingly, the Court of Appeal held that the motion judge had erred in certifying the class definition. It further held that no amendment could address the problems with the class definition. As a result, the appeal was allowed without leave to amend the class definition.

This is an important case pertaining to aboriginal rights and the ability of aboriginals to use the class proceedings statutes, and is expected to reach the Supreme Court of Canada for ultimate determination.

Koubi v. Mazda Canada Inc., 2012 BCCA 310: Appeal from certification of class action pertaining to defective door locks installed in certain Mazda vehicles allowed. Statutory breaches of the Business Practices and Consumer Protection Act and Sale of Goods Act did not provide a foundation for a claim in waiver of tort resulting in an award of restitutionary damages and disgorgement. As such, the plaintiff's pleading did not disclose a cause of action. One noteworthy aspect of this decision is that the Court of Appeal undertook a detailed analysis of the question of whether waiver of tort was an independent cause of action or whether it is "parasitic" in the sense it merely provides an alternative remedy once the plaintiff has established an actionable wrong. Having done so, the Court concluded that the state of the law on the topic was still unsettled, and refused to make a firm conclusion on this matter one way or the other. And hence, waiver of tort remains an enigma in the realm of restitutionary remedies.

Johnston v. The Sheila Morrison School, 2012 ONSC 1322: Divisional Court reversed Justice Perell, who had held that parents could be liable for the damages their children may have suffered while being abused at a private school. The central issue related to when a claim against a defendant based on several liability precludes a third party claim for contribution and indemnity. Justice Perell held that such a third party claim was not precluded. The Divisional Court disagreed, noting that the Class had agreed to seek only that portion of their damages attributable to the defendant's degree of fault, and not the portion that may be attributable to the degree of fault of their parents or guardians. The court concluded that "In circumstances where the Appellants limit their negligence claim to the damages caused solely by the Respondents, there is no right to claim contribution and indemnity".

Marcotte c. Banque de Montreal, 2012 QCCA 1396, Marcotte c. Federation des caisses DesJardins du Quebec, 2012 QCCA 1395: Partially successful appeal of the certification of a class action against banks and credit cards relating to the undisclosed currency conversion fees for credit cards. The Court dismissed the claim against five of the defendants and reduced the damages awarded against the others.

The Court also explored whether the plaintiff was required to have a direct relationship with all defendants in a multi-defendant class action. It concluded that a direct cause of action was not necessary but that two criteria had to be met. First, that there exists a class of individuals with a direct cause of action against the defendant; and second, that the representative plaintiff is able to properly represent these class members.

McCracken v. Canadian National Railway Company, 2012 ONCA 445: This was the third in the series of overtime appeals. The appeal of certification was successful in relation to this class action alleging that CNR supervisors were unlawfully deprived of overtime and holiday pay. The Motion Judge had drawn up a set of revised common issues for certification for the plaintiff. However, the Appeals Court found that even this reframed question was not able to overcome the fact that there was no true common issue to be decided.

Miller v. Merck Frosst Canada Ltd., 2012 BCCA 137: The Court of Appeal refused leave of decision declining to order pre-certification production of medical records in drug case. Court held that decision was discretionary, and that an appeal could delay certification hearing.

Option Consommateurs c. Infineon Technologies, a.g., 2011 QCCA 2116: Price fixing class action was certified on appeal. Leave has been granted for this action to proceed to the SCC.

Schroeder v. DJO Canada, Inc., 2011 SKCA 106: Appeal of an order certifying a "pain pump" class action was dismissed. In obiter, the Court raised some question as to whether Saskatchewan really has a higher standard on the cause of action requirement than the other provinces. The court stated:

"The certification judge in this case made a comment to the effect that Hoffman had adopted a "slightly higher threshold" for s. 6(1)(a) of The Class Actions Act than the threshold for Rule 173(a). Rule 173(a), of course, is the feature of The Queen's Bench Rules empowering a judge to strike a claim because it discloses no reasonable cause of action. The certification judge's comment was not the subject of argument in this Court and it was not something on which his decision turned or on which the resolution of this appeal ultimately turns. As a result, these reasons do not address this issue. However, I would not wish my failure to comment on them to be read as an implied endorsement of the view that the "threshold" under s. 6(1)(a) is necessarily "higher" or more rigorous than it is under Rule 173(a). If this point needs to be addressed, it will have to be in the context of an appeal where it is more squarely on the table."

The Court disagreed with the trial judge's finding that the Consumer Protection Act might possibly be triggered without there being a retail seller. However, the Court agreed that there was an arguable case that the hospital was a retail seller. The Court also agreed that it was arguable that there was a sale transaction under the CPA, and not just a contract for services.

Sparvier v. Lac La Ronge Indian Band, 2011 SKCA 115: Merchant Group had filed proposed class action in relation to a school outside the IRS program. The Band applied to represent the same group in an effort to get the school inside the IRS program. Merchant Group opposed because inclusion would undermine their proposed class proceeding. The court granted the representation order. An application to extend the time to appeal was granted.

Smith v. Inco, 2011 ONCA 628: The Ontario Court of Appeal overturned the trial judgment in favor of class in this environmental claim. In terms of class action issues, the Court commented adversely on treatment of limitation period issues, stating:

"A class action is a procedural vehicle. Its use does not have the effect of changing the substantive law applicable to individual actions: see Bou Malhab v. Diffusion Métromédia CMR inc., [2011] 1 S.C.R. 214, at para. 52; Hislop v. Canada (Attorney General) (2009), 95 O.R. (3d) 81, at para. 57. If, as the trial judge found in this case, the evidence does not establish that all class members were not aware of and ought not to have been aware of the material facts, then the application of the Limitations Act to the claims is an individual and not a common issue. It is an error to treat the limitation period as running from the date when a majority, even an overwhelming majority, of the class members knew or ought to have known the material facts in issue.

Other certification decisions have recognized that discoverability is often an individual issue that will require individual adjudication after the common issues are determined. Indeed, when this court certified this action, Rosenberg J.A. referred to the possibility of individual limitation defences: see Pearson v. Inco Limited (2005), 78 O.R. (3d) 641, at para. 63. On the trial judge's findings, the applicability of the Limitations Act as he characterized its applicability was not a common issue."

On costs of the trial, the Court determined that the issue should be remitted to the trial judge.

Leave to the Supreme Court of Canada from the Court of Appeal's decision was recently dismissed.

Stanway v. Wyeth Canada Inc., 2012 BCCA 260: Appeal of class certification for hormone therapy leading to increased risk of breast cancer was dismissed. Trial judge exercised broad discretion in determining that the class proceeding met the required criteria in s.4 of the Class Proceedings Act.

Sun-Rype Products Ltd v. Archer Daniels Midland Company, 2011 BCCA 187: Appeal from certification of corn syrup price fixing class action dismissed.

Turner v. York University, 2011 ONSC 6151, 2012 ONSC 4272: In the 2011 decision, Justice Horkins refused to allow the plaintiff a second chance at certification. Justice Horkins held that res judicata prevented a litigant from reopening a failed certification or commencing a fresh hearing. Mr. Turner sought to bring a class action on behalf of 50,000 York University students who were adversely impacted by a staff strike and university closure in 2008. The proposed class action sought compensation from York University for breach of contract, among other claims. Certification of the plaintiff's action failed, as Justice Cullity held that no part of section 5 of the Class Proceedings Act, 1992 was met. The plaintiff sought leave to appeal to the Divisional Court and requested that the appeal be considered on an "amended amended statement of claim", not the amended statement of claim before Justice Cullity. This request was rejected, but the Court explicitly made no determination on the ability to further amend.

The plaintiff moved before Justice Horkins to amend the flawed amended statement of claim, and if successful, directions on whether the certification motion should be reopened or a fresh motion brought. Justice Horkins denied leave to amend, and held that there is no reason why res judicata should not apply to a certification order, and that the test for res judicata had been met in this case.

In the 2012 decision the Divisional Court affirmed the 2010 decision to dismiss the class action.

Union des consommateurs c. Bell Canada, 2012 QCCA 1287: Appeal decision granting certification of class action against Bell Canada for violating the Consumer Protection Act, R.S.Q c. P-40.1 by systematically limiting the speed of its broadband internet service.

Unlu v. Air Canada, 2012 BCCA 179: Leave to appeal granted to Air Canada for proposed class action asserting that fuel charge included on airline tickets was a deceptive practice and contrary to the Business Practices and Consumer Protection Act, S.B.C. 2004 c.2. The basis for the appeal is that the BPCPA is not constitutionally applicable to Air Canada. If successful, the appeal would be dispositive of litigation, therefore it would not be appropriate to defer it until after the certification phase.

Wallace v. Canadian Pacific Railway, 2011 SKCA 108: The Court overruled conflict finding against proposed class counsel. The Court stated "McKercher did not gain, as a result of acting for CN, any confidential information which could prejudice CN if McKercher were to continue to act on the Wallace claim. However, McKercher did breach its duty of loyalty in respect of its commitment to CN respecting its CN files and also in respect of its duty of candour about taking on the Wallace claim. That said, CN falls short on the remedy for that breach. Although CN may have a basis to complain to the Law Society, McKercher should not be disqualified from acting on the Wallace claim. I would accordingly allow the appeal."

Weldon v. Teck Metals Ltd., 2012 BCCA 53: The Court determined that the chambers judge was correct in concluding that the plaintiff's application to renew his writ was not the appropriate forum for the defendants to apply to have the action struck.

Williams v. Toronto (City), 2011 ONSC 6987: The Divisional Court overturned finding that proposed class action did not meet the cause of action requirement. The case related to alleged negligence surrounding the responsibility to delivery notice of a potential rent reduction. Certification was ordered.

LIMITATION PERIODS

Ragoonanan Estate v. Imperial Tobacco Canada Ltd., 2011 ONSC 6187: Court considered whether section 28 of the Class Proceedings Act, 1992 ("CPA") continues to suspend limitation periods despite a denial of certification. In 2009, the plaintiff had exhausted his appeals from the refusal of certification. The plaintiff brought a motion to continue the proceeding as an individual action along with certain former putative class members as plaintiffs under section 7 of the CPA. The defendant argued that a denial of certification is a "dismissal of a class proceeding without an adjudication on the merits" under 28(1)(d) of the CPA, and the limitation periods for the plaintiff's' claims resumed running after the appeals from the refusal of certification were exhausted.

The court allowed the individual action to continue with Mr. Ragoonanan and the added plaintiffs. Justice Horkins found that a refusal to certify an action was not one of the triggering events specifically listed in subsection 28(1) and the limitation periods remain suspended.

This raises an interesting issue regarding the limitation periods of the putative class members who did not become plaintiffs in Mr. Ragoonanan's reconstituted action. It suggests these putative class members would continue to see the limitation periods for their claims suspended, even though there was no longer a proposed class proceeding on their behalf. The defendant raised this issue, but the court refused to decide it as "hypothetical". Her Honour found that if a putative class member comes forward and seeks to advance a claim, the court could then determine the limitation period issues for that person at that time.

Based on this analysis, a defendant cannot be complacent about an action under the CPA even if certification is denied. It puts the onus on a defendant to push the plaintiff to either continue the action under section 7 or agree to a discontinuance or dismissal of the action. With respect to the former, a defendant may seek an order that the reconstituted claim continue under a different court file number and the class proceeding be dismissed.

SECURITIES: LEAVE TO COMMENCE SECONDARY MARKET MISREPRESENTATION ACTION

Sharma v. Timminco Ltd., 2012 ONCA 107: In a monumental decision that will have significant impacts on the prosecution and defence of securities class action in Canada, the Ontario Court of Appeal held that the tolling provisions of the Ontario Class Proceedings Act, 1992, do not operate to suspend the three year limitation period applicable to the statutory cause of action for secondary market misrepresentation provided by Part XXIII.1 of the Ontario Securities Act. The plaintiffs had commenced action on May 14, 2009 alleging misrepresentations by the defendants that adversely affected the share value of Timminco Limited in the secondary market. The misrepresentations were alleged to have occurred between March 17, 2008 and November 11, 2008. The statement of claim asserted two common law causes of action - negligence and negligent misrepresentation - and a statutory cause of action under s.138.3 of the Securities Act.

By early 2011, the plaintiffs had not yet sought leave of the court to commence an action under s.138.3. Part XXIII.1 imposes a limitation period of three years from the first misrepresentation for the commencement of the action, as well as a requirement that such an action be commenced only with leave of the court. Given that the first alleged misrepresentation occurred on March 17, 2008, the plaintiffs faced a limitation issue. They therefore moved for an order declaring that the limitation period was suspended pursuant to the tolling provisions of the Class Proceedings Act, 1992. The motion judge granted the order, and the defendants appealed. The Court of appeal stated as follows:

"The suspension provision in s. 28(1) of the CPA provides that "any limitation period applicable to a cause of action asserted in a class proceeding is suspended in favour of a class member on the commencement of the class proceeding". These words must be read in their grammatical and ordinary sense, in the full context of the scheme of the CPA, its object and the intention of the legislature. [citation omitted] ... Without leave having been granted, a s. 138.3 cause of action cannot be enforced. It cannot be invoked as a legal right. Section 138.14 says as much. Thus, giving the suspension provision in s. 28(1) of the CPA its ordinary meaning, the s. 138.3 cause of action cannot be said to be asserted in the respondent's class proceeding since no leave has been granted.

The respondent argues that it is significant that s. 28(1) requires not that a cause of action be "commenced", but only that it be "asserted". However, this choice of language is entirely appropriate. A cause of action is not commenced. That is a concept applicable not to a cause of action but to the litigation in which it is asserted.

Thus, in my view as applied to the s. 138.3 cause of action, the grammatical and ordinary meaning of the s. 28(1) suspension provision is that without leave being granted the cause of action cannot be said to be asserted in a class proceeding."

The Court found that this interpretation was consistent with the purpose of the tolling provisions of the class proceeding legislation (to protect class members from the operation of limitation periods without the need to themselves pursue individual actions) and the limitation provisions of the securities legislation (to ensure that secondary market claims proceeded with dispatch). Further, the Court held that it did not agree with the plaintiff's interpretation of the legislation, as it would put a class plaintiff in a better position (in relation to the limitation period) than he would have been in had he commenced an individual action.

Accordingly, the Court of Appeal concluded that for a secondary market misrepresentation cause of action to be "asserted" in a class proceeding, so as to trigger the tolling provisions of the class proceedings legislation, leave must first be granted. Since the plaintiff had not obtained leave, the tolling provision had not been triggered. This in essence, disposed of the plaintiff's secondary market claim, as it was barred by the expiry of the limitation period.

Leave to appeal to the Supreme Court of Canada was recently dismissed.

Green v. Canadian Imperial Bank of Commerce, 2012 ONSC 3637: Application for leave and certification in proposed CIBC securities class action dismissed. The Court concluded that the plaintiffs had met the test for leave in s. 138.3 of the Ontario Securities Act and the test for certification in s. 5(1) of the Ontario Class Proceedings Act, 1992. However, relying on the Ontario Court of Appeal's seminal decision in Sharma v. Timminco (which was released during the hearing of the CIBC leave/certification application), the Court held that the plaintiffs' right to pursue the Securities Act cause of action was time-barred, as leave was not obtained prior to the expiry of the three year limitation period. With respect to the plaintiff's request for an order nunc pro tunc or pursuant to the special circumstances doctrine, the Court held, with obvious regret and sympathy for the plaintiff, that it did not have jurisdiction to revive a limitation period that had expired due to the failure to obtain leave within three years under either principle.

Ultimately, as the Securities Act claim had no possibility of success and as no other cause of action was available to the plaintiffs (the cause of action for negligent misrepresentation was properly pleaded, but was not suitable for certification because the issue of reliance could not be address on a class-wide basis), certification would serve no purpose and both motions were dismissed.

Round v. MacDonald, Dettwiler and Associates Ltd., 2011 BCSC 1416: In the first British Columbia case to examine the test for leave to commence an action under the secondary market liability provisions of the British Columbia Securities Act, the Court denied the plaintiff's leave motion, holding that there was no possibility that the intended action, as framed, could succeed at trial. The action was concerned with allegations of misrepresentation by the defendant company about a proposed sale of a key asset, and failure to make timely disclosure of material changes that related to the prospect of the sale receiving ministerial approval.

The Court dismissed the plaintiff's application for leave for two reasons. First, the material facts capable of giving rise to a cause of action were concluded before the relevant statutory provisions came into effect. There was nothing in the legislation to suggest that the Legislature intended the causes of action it created to apply either retroactively or retrospectively to completed matters. Secondly, the plaintiff's interest in the securities of the defendant was not acquired in the secondary market. She acquired her shares through her participation in an employee share purchase plan, whereby shares were distributed from the defendant's treasury to members of the plan. Accordingly, the plaintiff did not fall within the scope of "a person who acquires or disposes" of shares of an issuer in the secondary market and, as a result, she had no cause of action against the defendant.

Having come to these conclusions, the Court found it unnecessary to address the remaining arguments of the plaintiff or issue a definitive decision on the meaning of the test for granting leave. That being said, the Court made a number of concluding remarks that may be of assistance to those prosecuting or defending secondary market liability claims in British Columbia. In particular, the Court rejected the plaintiff's contention that, given that it is the very first step a plaintiff must take in a secondary market misrepresentation action, the bar for granting leave should be set lower than the test for certification. The Court referred to the relevant provisions of the legislation, and went on to note:

"Taken together, several propositions emerge from these sections. Taken together, several propositions emerge from these sections. First, the leave application involves a review of evidence. Each side is required to provide evidence of material facts upon which each intends to rely. Secondly, the analysis must involve a weighing and balancing of the evidence of each side. It is not sufficient for the court simply to rely on material filed by the plaintiff. Thirdly, the test involves an assessment of the merits of the proposed action on the evidence. The court must analyze the evidence to decide whether it is satisfied that the "reasonable possibility" test is satisfied. Fourthly, weighing and testing the evidence to determine whether there is a reasonable possibility that the action will be resolved at trial in favour of the plaintiff is different from the test involved in certification of class actions or the test for summary judgment. Given Ms. Round's argument, this last point deserves a little more analysis.

The test for certifying class actions is not a merits test. The only "merits" component of the test is that the pleadings state a cause of action. Beyond that, the focus is on whether the pleadings reveal common issues and whether it is preferable that those common issues be certified and resolved at a trial of the common issues. The court does not analyze or weigh the likelihood of success at trial or in the action generally in deciding whether to certify the action. In this case, it is clear that the court must weigh evidence in order to assess the likelihood of success at trial. That is necessarily a merits-based analysis. Accordingly, the test for granting leave is entirely distinct from and different to the test on certification. The one provides no guidance to the other. I do not agree, therefore, that the test for granting leave is necessarily a lower test than for certifying a class action.

Similarly, more is required to grant leave than to identify a triable issue. Whether there is a triable issue does not typically involve weighing and assessing, rather than identifying, evidence. The statute mandates an approach to granting leave very different from deciding whether there is a triable issue. Cases dealing with summary judgment do not, therefore, provide any real assistance in applying the leave test. Much the same can be said for other thresholds tests such as identifying the existence of a prima facie case that exist in other areas of the law.

Establishing a reasonable possibility of success at trial involves more than merely raising a triable issue or articulating a cause of action. Equally, it does not require a plaintiff to demonstrate that it is more likely than not that he or she will succeed trial. But it is clear, in my view, that the test is intended to do more than screen out clearly frivolous, scandalous or vexatious actions. An action may have some merit, and not be frivolous, scandalous or vexatious, without rising to the level of demonstrating that the plaintiff has a reasonable possibility of success."

The secondary market liability provisions of the B.C. Securities Act are still in their infancy stage, and it will be some time before the test for leave is fully developed in this province. It is likely that, as more cases are brought under the secondary market liability sections of the Act, the B.C. courts will provide further guidance on how the test should be interpreted and applied.

Silver v. Imax Corp., 2012 ONSC 4881: Defendants' motion to dismiss the claims of the plaintiffs for secondary market misrepresentation on the ground that they were barred by the three year limitation period in the Ontario Securities Act was dismissed. This motion was a result of the Ontario Court of Appeal's decision in Sharma v. Timminco, supra, in which the Court held that the tolling provision of Ontario's class proceedings legislation did not suspend the limitation period for obtaining leave to commence a secondary market misrepresentation action. Relying on Timminco, the defendants in Silver contended that as leave was granted to proceed with the statutory claims more than three years after the misrepresentations alleged in the statement of claim, the statutory claims were time barred and had to be dismissed.

The Court agreed with the defendants that Timminco's impact on securities litigation in Ontario was broad and potentially far-reaching:

"The effect of Timminco is that, no matter what the plaintiff pleads in the original Statement of Claim in relation to the statutory cause of action, the limitation period continues to run at least until leave is granted. It is not sufficient to defeat the limitation period that the claim is pleaded and that leave may be obtained at some later point. If that were the case, there would never had been any question of the operation of s. 28 of the CPA or suspending the limitation period in Timminco.

While the facts of this case are more sympathetic, Timminco did not simply turn on the fact that no motion for leave had been commenced by the plaintiffs. The decision was expressed more broadly, and leads to the inevitable conclusion that, unless the order granting leave and the amendment to the claim to assert the statutory cause of action can be given effect within the limitation period, the statutory claims in these proceedings would be statute-barred."

The Court noted that the facts of the case before it were somewhat different than in Timminco. The evidence was that the plaintiffs had moved expeditiously to advance the motion for leave, and had not only delivered their notice of motion and completed the record, but had argued the motion within three years of the alleged misrepresentations. "There was nothing more the plaintiffs could have done to comply with the limitation period. The reasons for the delay were outside the control of the plaintiffs, having to do with the complexity of the issues that were being considered by the court for the first time, and delays occasioned during the leave motion, in particular the fact that the decision was under reserve when the limitation period expired."

The Court acknowledged that the question it was essentially faced with was whether there was something that could be done now to avoid the harsh result of an intervening limitation period barring the statutory claim, where there was never any question that the statutory claim was being pursued and the plaintiffs proceeded with dispatch. It concluded that it could exercise its inherent jurisdiction to grant an order nunc pro tunc that its order granting leave be amended to provide that leave was effective as of the last day of the hearing of the leave motion. It held: "In my view, the present case fits squarely within authorities for making a nunc pro tunc order where the plaintiffs' rights have abated through no fault of their own, while a decision has been reserved by the court. If the order granting leave is effective the date of final argument, there is no question of expiry of the limitation period. The prejudice to the plaintiffs caused solely by the court's own schedule, is avoided."

Accordingly, the Court in Silver was able to use the specific facts of the case to get around the potentially harsh effect of the Timminco decision.

Zaniewicz v. Zungui Haixi Corp., 2012 ONSC 4904: Proposed securities class action alleging misconduct in trading the shares of Zungui Haixi Corporation in the Ontario securities market. Some of the defendants are residents of the People's Republic of China which only allows service through the Chinese government, a slow process. In order to begin the action within the limitation period, the plaintiff sought and was granted an order for substituted service to the defendants' last known address.

JURISDICTIONAL ISSUES

Assoc. canadienne contre l'impunité (A.C.C.I.) c. Anvil Mining Ltd., 2012 QCCA 117: Certification of proposed class action alleging mining company's responsibility for abuse by Congolese army denied based on lack of jurisdiction.

Duzan v GSK, 2011 SKQB 118: Saskatchewan Paxil action was struck for vexatious conduct. The plaintiffs were prepared to consent to a stay on conditions. The Ontario action had already been discontinued, leaving actions in Saskatchewan and B.C. The B.C. Court had been told that the B.C. case would defer to Saskatchewan.

SETTLEMENT VARIATION

Bodnar v. The Cash Store, 2011 BCCA 384: The Court held that it did have jurisdiction under the terms of this settlement agreement to appoint a new claims administrator in place of defendant where there were errors in settlement proceeding.

Boys and Girls Club of London Foundation v. Molson Coors Brewing Co., 2010 QCCS 6306: The court held that under Art. 46 of the CCP, the court did have the power to extend the deadline for filing claims. The Court agreed to do so here, noting that the individuals who had filed on time would still receive fair compensation even if the pro rata distribution was watered down somewhat.

Gray v. Great West Lifeco, 2011 MBQB 13: The Court found that it did not have jurisdiction to extend a claims deadline established in a fixed fund settlement.

Gregg v. Freightliner Ltd.,2012 BCSC 415: The Court allowed individuals to opt into a fixed fund settlement, stating: " ...the jurisprudence does not appear to endorse an absolute bar on adding individuals who have not been notified of a class action before the stipulated deadline has passed or extending the time to opt-in after a settlement agreement has been reached. There is case authority that supports the extension of a registration deadline even after a settlement of the case has been attained in appropriate circumstances. The court is cloaked with a broad discretion and is expected to use it to advance the goals and purposes of the Act: ( see generally, Harrington v. Dow Corning Corporation, 2001 BCSC 221; Guglietti v. Toronto Area Transit Operating Authority, [2000] O.J. No. 2144; Boys and Girls Club of London Foundation v. Molson Coors Brewing Company et al, [2010] Q.J. No. 14108...There was no evidence that had the complainants opted-in to the class, the Settlement Amount would have been any different. That is because the Settlement Amount was not calculated by tabulating the individual damages of the participating class members....The settlement in this case is distinguishable from a settlement in the kind of class proceeding where the quantum of the settlement is directly tied to the actual or projected number of participating class members and their individual damages...Even if the claims of the complainants were paid in full, the sum of approximately $558,000 would be left to be distributed to existing class members over and above their initial payments. There would be no need to claw back funds previously distributed...[79] In my view, the threshold that must be satisfied in order to be considered for inclusion within the Distribution Group is that notice was not mailed to the members proper address. "

THIRD PARTY FINANCING

Fehr v. Sun Life Assurance Company of Canada, 2012 ONSC 2715: The Court dismissed the plaintiff insureds' motion to have the third party financing hearing be heard without notice to the defendant insurer, to close the hearing of the motion to the public, and to seal the motion documents. The writer was counsel for proposed third party financer.

The Court noted that the defendant was "affected" by the motion for third party financing and was therefore entitled to participate in the process. Moreover, as a policy matter, the defendant's participation (including opposition or support for the third party financing agreement) would be useful, as it could raise important issues for the court to consider. The Court also opined that, in the context of a class proceeding, the terms of class counsel's retainer agreement and any associated third party funding agreement were not privileged. And in any event, if the retainer agreement and any associated third party funding agreement were privileged, then that privilege was waived when the plaintiff applied for approval of a fee arrangement that involved a contingency fee or third party funding agreement. Given these realities, the importance of protecting solicitor-client privilege did not justify a hearing without notice and the sealing of relevant documents.

The Court also held that allowing the third party financing motion to proceed in open court did not pose a serious risk to the proper administration of justice or another matter of public interest such as the protection of solicitor-client privilege. Nor was there a serious risk to access to justice. And in any event, there were reasonable means to prevent any serious risk to the administration or justice. Finally, an order restricting or qualifying the open court principle would not outweigh the deleterious effects on the rights and interests of the parties and the public. Therefore, the test for restricting the open court principle had not been satisfied.

Although it dismissed the plaintiff's motion, the Court concluded its remarks by recognizing that funding motions were new and intricate phenomena that required particular attention:

"It does not follow, however, that a funding motion should be treated in the same way as other motions. The defendant is affected, and although the defendant should be allowed to protect its own proper interests, there are aspects of a funding application that should be none of the defendant's business. For instance, while the defendant may have an interest in ensuring that an adverse costs award will actually be paid to it, it is no business of the defendant to inquire into how the Plaintiffs would propose to use the funding for the purposes of the litigation. In this regard, it may be noted that a defendant may apply to the Class Proceedings Committee for the payment of the costs award but the Defendant does not have a right to appear before the Committee and oppose the conferral of funding.

It will take some experience before the parameters of opposition to a motion for approval can be articulated, but because the defendant's interest is not open-ended, the normal rules about motions may need to be adjusted. In class proceedings, the court has the authority to make these adjustments pursuant to s. 12 of the Class Proceedings Act, 1992, which, as noted above, grants the court a discretion to make orders respecting the conduct of a class proceeding to ensure its fair and expeditious determination."

Smith v. Sino-Forest, 2012 ONSC 2937: Third party financing in securities class action against Sino-Forest granted. As with previously approved third party financing agreements, the third party financer will receive a commission of 7% of the amount of settlement or judgment, after deduction of lawyers' fees and disbursements and any administration expenses, capped at a maximum of $10 million.

CLASS PROCEEDINGS FUND

The 2010 Annual Report of Ontario's CPF is now available for review. See:

http://www.lawfoundation.on.ca/pdf/annual_reports/LFOAR2010_Book3.pdf

Of note:

1. The Committee approved 7 of 9 applications in 2010. 2. The Fund had $10 million.

COSTS

Smith v. Inco, 2012 ONSC 5094: A successful defendant's post-trial $5.3M request got knocked down to $1.7M, just over their actual disbursements of $1.5M.

Arenson v. Toronto (City), 2012 ONSC 4488: The Court awarded $70,537.79 (all inclusive) in costs to the defendant after an unsuccessful certification motion by the plaintiff. Perell J. rejected the plaintiff's proposition that the proposed class action involved a matter of public interest, noting: " I do not doubt that [the plaintiff's] proposed class action interested the public and I appreciate that it attracted some media attention. However, that a case is interesting to the public does not mean that it is public interest litigation in the requisite sense that would justify a departure from the normal rule that the successful party is entitled to costs on a partial indemnity basis."

Cannon v. Funds for Canada Foundation, 2012 ONSC 2009: The Court awarded costs of $325,000 for the successful certification motion, plus additional sums for summary judgment motions, motion for documentary production, motion to strike affidavits, disbursements and costs submissions.

Cavanaugh v. Grenville Christian College, 2012 ONSC 4786: Following an unsuccessful certification hearing, the Court awarded $150,000 in costs in favor of the defendant operators of Grenville Christian College - a junior school and a residential high school. The Court also awarded $150,000 to the Diocese of Ontario and Grenville Christian College. In doing so, the Court rejected the plaintiff's contention that this was the sort of case where no award of costs was warranted because the case was a matter of public interest: "The claim against the Grenville Defendants was a claim against a singular independent private educational institution that allegedly had adopted a perverse and reprehensible approach to education and to the treatment of students. The Plaintiffs were not litigating because they wished to advance the cause of students at residential schools; they were litigating because they wished to receive compensation for the harm they and their fellow students suffered at a particular private school operated by the Grenville Defendants. There was no viable claim against the Diocese. The public would be interested in these circumstances, and the public should always be interested in seeing that justice is done, but the case at bar was not in the public interest in the same way that the cases involving claims against the Government of Canada and the religious organizations that operated schools where our native peoples were systematically abused were in the public interest."

Martin v. AstraZeneca Pharmaceuticals PLC, 2012 ONSC 4666: A "Meaningful costs award" to successful defendant was determined to be $475,000 plus disbursements of $180,407.53. The Court stated:

AstraZeneca is entitled to a generous costs award. However, the award requested ($1.2 million) is well beyond any other costs award following a certification motion. A costs award of this size or even close to what is requested would definitely have a chilling effect on class actions. To date, the high water mark for costs on a certification motion has been reflected in a group of cases:

* Lambert - $650,000 plus disbursements

* Fresco - $525,000, inclusive of fees, disbursements and GST - Reversed on appeal on other grounds - 2012 ONCA 444 (CanLII), 2012 ONCA 444

* Toronto Community Housing - $400,000 plus disbursements of $34,673.56 and applicable tax.

I have considered the comparison between this case and Toronto Community Housing. I am the case management judge and heard the certification motion in both proceedings. Toronto Community Housing Corp. was a six day certification motion. It was a costly and lengthy certification motion. The plaintiffs had incurred substantial indemnity costs of $792,388.14. I awarded costs at the high end of the range, $400,000. In comparison, the AstraZeneca certification motion was somewhat more complicated as it involved numerous experts. Further, the way that plaintiffs' counsel approached this certification motion significantly increased the amount of work for AstraZeneca (I refer to paras. 49-56 above). Costs awards in favour of successful defendants vary. In Fresco, the costs award was high - $525,000. Other costs awards in favour of a successful defendant have tended to be lower... Based on my experience as a class action case management judge, the circumstances of this case warrant a meaningful costs award. I appreciate that the award must not be so large that it impedes access to justice. However, there must be a balance between this and holding the losing party accountable. The costs award that I am allowing strikes a fair balance.

Seed v. Ontario, 2012 ONSC 4588: Following successful certification motion, the Court awarded the plaintiff costs of $107,466 and disbursements of $4,128.26. The Court rejected the plaintiff's request that costs be awarded on a full indemnity or substantial indemnity basis.

ARBITRATION

Comtois v. Telus Mobilité (Société Telus Communications), 2012 QCCA 170: The Quebec Court of Appeal excluded corporations from class definition since they were not protected by new consumer statute protecting against the use of such clauses, and there was no other reason not to enforce the clause.

AMENDMENTS

Cecile v. Retrofoam of Canada Inc., 2011 ONSC 5332: The Court allowed the plaintiff to amend to reference National Research Council even through NRC was previously released from the litigation. No allegations of liability were being advanced, just material of liability by the remaining. Two small elements that crossed that line were excised. Writer is counsel for one of the defendants in that matter.

Dugal v. Manulife Financial Corp., 2011 ONSC 387: The plaintiff was granted leave to amend Statement of Claim in certified class proceeding. The plaintiff was required to give further particulars of the alleged misrepresentations.

Givogue v. Burke, 2011 ONSC 655: The Court allowed certain amendments but imposed costs given the inordinate delay in making the application. The Court declined to lift the implied undertaking as it related to information obtained by the plaintiffs from OFSI.

Turner v. York University, 2011 ONSC 6151: In this action arising from the York University strike, the plaintiffs applied to amend Statement of Claim after the decision refusing certification issued, but before their Divisional Court appeal. The Court refused the motion stating "First, it is plain and obvious that the proposed amended amended statement of claim will not succeed. Second, the flaws in the pleading that Cullity J. identified remain and for this reason the plaintiff seeks to reargue that which has been decided. Res judicata is a bar to this motion." The court held that the amendments still did not meet the high standard required to bring a tort claim against a university in Gauthier v. Saint-German.

THE ORDER OF MOTIONS: CHICKEN AND EGG ISSUES

Watson v. Bank of America, 2012 BCSC 146: Application for leave to bring motion to strike notice of civil claim before the plaintiff's application to certify the proceeding as a class action was dismissed. The writer was co-counsel for the plaintiff. Applying the factors set out by Justice Strathy in Cannon v. Funds for Canada Foundation, 2010 ONSC 146, the Court held that while the application, if successful could substantially narrow the issues before the court, it would not prevent the plaintiff from advancing the litigation altogether. There was also a strong possibility of delays and costs associated with this motion, given the likelihood of appeal by the unsuccessful party. Further, much if not all of the argument on the strike motion would duplicate the "cause of action" argument at the certification hearing. There was a strong argument, based on encouraging judicial efficiency and cost containment, "to resist effectively bifurcating the certification process by hiving off judicial treatment of one of the certification considerations to a pre-certification application. Therefore, the Court concluded that scheduling the defendant's motion in advance of the certification would not promote the fair and efficient determination of the proceedings.

Sydney Steel Corp. v. MacQueen, 2012 NSCA 78: Attorney General of Nova Scotia denied a stay of proceedings while appealing the class action certification order. A stay would not allow for the "just, speedy and inexpensive determination" of the proceeding.

Labourers Pension Fund v. Sino Forest, 2012 ONSC 1924: The Court ordered defendants who filed affidavits on leave to also file defences. The Court ordered leave and certification to be heard together.

DISCOVERY ISSUES

Bartram (Litigation guardian of) v. Glaxosmithkline Inc., 2011 BCSC 1174: Prior to hearing of the plaintiff's application to certify the action as a class proceeding, defendant manufacturers and marketers of Paxil applied for access to the plaintiff's medical records. The Court held that the case was not one of the exceptions where pre-certification disclosure of medical records was necessary, and that introduction of individual medical records at such an early stage would be more likely to improperly confuse the issues on the certification application with a premature consideration of the merits of an individual claim. Application was dismissed.

Benoit c. Amira Enterprises inc., 2012 QCCS 351: The Court allowed 1 hour examination outside of court of Plaintiff on certification, but only in relation to those facts that were unclear or imprecise in the motion.

Brown v. CIBC, 2012 ONSC 482: The defendants were ordered to answer certain questions in misclassification class action.

Johnston v. Sheila Morrison Schools, 2011 ONSC 6843: The Court ordered class representatives to answer certain questions on discovery about their individual claims in this systemic abuse class action. The Court found that the questions were relevant to the common issues stating "It is true that the Plaintiffs asserted claims based on breach of systemic duty of care and systemic breach of fiduciary duty, but the breaches of duty involve relationships with individuals and those relationships cannot be examined as if only what the Defendants did is relevant to the duty and the question whether the duty was breached."

SETTLEMENT ADMINISTRATION

Rowlands v. Durham Region Health, 2012 ONSC 945: The litigation administrator's accounts in the amount of $64,455 were approved by the Court. Under the terms of the certification order, the litigation administrator's fees were to be paid by the defendants, and were subject to court approval. The litigation administrator had provided an estimate of $21,500. The defendant argued that the litigation administrator' accounts were excessive and were to be reduced. The Court disagreed. It applied legal principles applicable to passing accounts of court-appointed receivers by analogy. The Court found that the hourly rate of $175 was not excessive. Further, the time to make an objection to the hourly rate was at the certification hearing. Finally, there was no reason to reduce the litigation administrator's accounts since the work done was necessary, and the work was done and done well.

REPRESENTATIVE PLAINTIFFS

Iverson v. Canada (Fisheries and Oceans), 2011 BCSC 1619: Application to substitute representative plaintiff granted. In coming to its conclusion, the Court rejected the Crown's submissions regarding the suitability of the existing and proposed representative plaintiffs, noting that a preliminary motion was not the appropriate place to make a decision as to the suitability of a representative plaintiff. This was a decision that was to be made at the certification motion.

Pardhan v. Bank of Montreal, 2012 ONSC 4681: Certification motion was adjourned to give the plaintiff an opportunity to resolve the representative plaintiff's health issue or alternatively propose another representative plaintiff and produce an acceptable litigation plan. The plaintiff put forth a more detailed litigation plan and provided expert opinion that the representative plaintiff's health issues had been resolved. The Court accepted the litigation plan and new evidence, and certified the action as a class proceeding.

SOLICITOR CLIENT RELATIONSHIP

Attis et. al. v. Canada, 2011 ONCA 675: Justice Cullity's decision to order class counsel to personally indemnify representative plaintiffs for adverse costs awards on certification, totaling over $166,000.00, was overturned by the Ontario Court of Appeal. Since the plaintiffs were impecunious and could not satisfy the cost awards, the defendant, the Federal Crown, moved against class counsel personally, pursuant to Rules 15.02(4) (absence of authorization to commence action) and 57.07(1)(c) (liability of lawyers for costs). The grounds of the motion were that any consent the representative plaintiffs gave to commence the action was not informed consent, because class counsel failed to advise, or properly advise, them of their costs exposure. Justice Cullity effectively held a mini-trial on the issue of what advice was given to the plaintiffs and found that inadequate, or no, costs advice was provided by class counsel. His Honour therefore ordered that class counsel indemnify the plaintiffs for the costs awards made against them.

The Court of Appeal found that Rule 15 had no application, because regardless of the advice provided, the plaintiffs clearly authorized the commencement of the action. Rule 57.07(1)(c) could not be employed as class counsel's conduct in the action was found to be without reproach. The Court of Appeal held that any question about the appropriateness of advice given by the solicitor is a matter between the solicitor and his/her client. The issue was better dealt with in the Attis' negligence action against class counsel, which would have engaged all the usual pre-trial mechanisms and would have dealt with the issue in the appropriate forum.

Aside from being clear that class counsel must provide sufficient advice to representative plaintiffs regarding costs exposure, the Court of Appeal confirmed that class actions are no different than regular actions in that "a defendant has no right to inquire into the legal advice given to the plaintiff by the plaintiff's lawyer". While defendants often inquire upon this issue in cross-examinations of representative plaintiffs, this case suggests that such information in not only irrelevant for certification but an improper avenue of questioning at any step in any action.

DISCONTINUANCES

Cavanaugh v. Grenville Christian College, 2012 ONSC 2398: Motion to discontinue action as against two defendants granted.

Fortin c. Procter & Gamble inc., 2011 QCCS 4804: The Court allowed discontinuance of class action.

Duong v. Stork Craft Manufacturing Inc., 2011 ONSC 5618: Leave to appeal of decision refusing to allow discontinuance of Ontario action was denied. The Court held that there was a basis to be concerned about effect of discontinuance on rights of Ontario class members.

Frank v. Farlie, Turner & Co., LLP, 2011 ONSC 7137: Application for leave to discontinue action against certain defendant without prejudice to right to seek order to add him as defendant should new evidence arise or should circumstances permit dismissed. The Court held: "In my opinion, the proffered justification for discontinuing the action is insufficient and because of the prospect that a future claim against Mr. Giordanella would be statute-barred, the discontinuance of the action as against Mr. Giordanella, who is at least a proper party to this litigation, is prejudicial to the Class Members."

Sonego v. laboratories Expanscience, 2011 QCCS 13, Albilia v. Kimberley Clark inc., 2011 QCCS 20: The Court allowed discontinuance of proposed class actions given that Health Canada had come out stating that the products did not pose a health problem.

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