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Jun192013

June 19, 2013

TOPICS PRIVACY ISSUES AND CLASS ACTIONS

Logan v. Hong, 2013 BCCA 249: Appeal from the order of the Supreme Court of British Columbia requiring physicians not party to the certified class proceeding to provide to class counsel the names, addresses and contact information of patients to whom they had administered injections of a product manufactured by the defendants. The object of the order was to facilitate notice.

The BC Court of Appeal recognized that the order trenched upon the privacy interests of patients deriving from the physician-patient relationship. While the appeal also raised issues of the transfer of costs to non-party physicians and the jurisdiction of the court to order physicians outside of the province to provide information to the plaintiff, the Court of Appeal focused its attention on the privacy aspect of the case. The Court stated as follows at paras. 11 and 12:

“Laudable as the plaintiff’s intention may be to seek redress for persons who may have a claim to compensation for deleterious consequences from this medical treatment, such generous intention does not justify, in my view, the invasion of privacy that is inherent in dipping into the physician-patient relationship to discover the names, addresses, and contact information of persons who received this treatment. Each patient is entitled to maintenance of the confidentiality implicit in his or her attendance in a physician’s examining room and protection of his or her privacy on a personal matter, absent serious concerns relating to health or safety, or express legislative provisions compelling release of the information in the public interest. In my view, the judge erred in principle by elevating the purposes of the Class Proceedings Act and the search for legal redress above the fundamental principle of confidentiality that adheres, for the benefit of the community, to the physician-patient relationship. 

Although the judge observed that the order does not require disclosure of the medical records, this does not appear to me to be a helpful distinction.  The order discloses the fact of a particular medical treatment, in addition to the address and contact information, all of which the patient may choose not to broadcast.   Further, it matters not, in my view, the nature of the medical treatment.  Here the treatment in issue is a cosmetic one, but the applicable principle protects patients in that situation just as it would were the treatment for mental health issues, sexual and procreative issues, or any of the myriad of medical issues of a more general nature.”

The Court of Appeal recognized that the special place of confidentiality in the physician-patient relationship was long standing, having been recognized in the case law and the Code of Ethics of the Canadian Medical Association. Further, while the Court acknowledged that the value of redress through the justice system was significant, it also noted that it could not be said that recovery of money trumped the rights to patients to keep private both the nature of medical services received and the contact information held by the physician. It also stated that, while the appellant’s case was enhanced by the fact that nearly 95% of the patients whose names were expected to be produced under the order would not be members of the class at all (as the class definition only included those persons who experienced complications, whereas the information sought was for all patients injected) it would have reached the same conclusion were the proportion of potential class members to non-class members reversed.

The writer was counsel for the appellant physicians.

 

APPEALS

Brown v. Canadian Imperial Bank of Commerce, 2013 ONCA 1284: Appeal dismissed from the decision of Strathy J. denying certification of the proposed CIBC overtime classification class action. Despite the narrowing of the class definition by the plaintiff to make it more amenable to certification, the Court of Appeal held that the proposed amendment exhibited the same individuality as the class definition that was rejected by the motion judge. As with the previous class definition, the new class definition did not allow the alleged misclassification for overtime pay to be determined on a common basis:

“The revised class may include fewer individuals and only two job titles, but the proposed amendment of the class does not resolve the fundamental difficulty identified by the motions judge.  The employees still included within the scope of the amended class definition continue to have different and highly individualized job duties.  In the context of overtime entitlement under the ESA there are many factors to consider in determining whether a person is performing managerial or supervisory functions.  The inquiry is much broader than simply looking at whether the person supervises or controls the work of others.  The determination of the issue for any individual must take into account the employee’s authority, autonomy, level of responsibility, degree of control over his or her hours of work and where and how that work is done.  Consideration needs to be given to whether, how and to what extent the employee is accountable to anyone else for the manner in which the work is done or the hours devoted to it.  The inquiry will be fact specific and cannot be determined by abstract definition.  Eligibility of IAS and AIAs for overtime compensation can only be determined on an individual case by case basis.  Without a determination on the key issue of eligibility at the common issues trial, the rest of the action collapses as a class proceeding.”

1250264 Ontario Inc. v. Pet Valu Canada Inc., 2013 ONCA 279: Appeal from an order made by the motion judge concerning the validity of the opt-out process in the Pet Valu franchising class action. Following certification of the action as a class proceeding, notice was disseminated and an opt-out period was set. Towards the end of the opt-out period, a group of Pet Valu franchisees who opposed the class action (“CPVF”) waged a concerted campaign to try and persuade class members to opt out of the class action. After the CPVF’s campaign began, the number of returned out-out notices increased dramatically, and by the end of the opt-out period, more than half of the class had submitted opt-out notices. 

Following the termination of the opt-out period, the representative plaintiff successfully brought a motion to set aside the opt-out notices on the basis that many franchisees decided to opt out due to misleading information and unfair pressure amounting to intimidation resulting from the CPVF’s campaign. The motion judge provided for a new opt-out period to take place after the final disposition of the action on its merits.

The Court of Appeal found that the motion judge had erred in two material respects: drawing an inference in the absence of any direct evidence and holding the CPVF to an inappropriate standard of objectivity. The Court concluded as follows:

“The information disseminated amounted to no more than opinion as to the advisability of the lawsuit from a business perspective.  It did not purport to comment on the legal merits of the action. Information relating to the action was already available through neutral court approved notices. The communications here were simply acceptable intra-class debate. Therefore, the motion judge misapplied the fully informed and voluntary test enunciated in the jurisprudence. I would allow the appeal and set aside the order invalidating the opt-out notices.”

Engler-Stringer c. Montréal (Ville), 2013 QCCA 707: Appeal from the judgment of the lower court dismissing a class action against the City of Montreal for the Montreal police department’s response to certain July 28, 2003 public demonstrations. Malicious prosecution claim should be struck, but no illegal arrest claim.

Zwaniga v. Johnvince Foods Distribution L.P., 2013 ONCA 27: Appeal from the decision of Perell J. granting the defendants’ summary judgment motion dismissed.

 

CERTIFICATION

Fantl v. Transamerica Life Canada, 2013 ONSC 2298: Motion for certification granted with respect to the Can-Am portion of the proposed Transamerica Life class proceeding (the management fee portion of the action was certified for settlement purposes back in 2009). However, the court limited the certification order to the claims for breach of an express term of the insurance contracts (causes of action for breach of implied or collateral terms of the contracts and negligent misrepresentation were not certified). Further, any claims that were statute-barred by absolute limitation periods were excluded from the scope of the action.

Leslie v. Agnico Mines, 2013 ONSC 2290: Motion for leave to commence secondary market misrepresentation action and for certification of proposed securities class action granted on consent. The court recognized that the parties had made two “compromises” that ultimately resulted in this consent motion. One was on the scope of the defined class: the definition was narrowed from global purchasers to secondary market purchasers who purchased shares in Canada (excluding Quebec). The second compromise was the plaintiffs’ agreement to delete the claims in negligence and negligent misrepresentation and focus only on the remedies under the Ontario Securities Act and the statutorily-capped damage awards, and on the claim for unjust enrichment. Plaintiffs’ counsel advised the court that the potential damage award available under the Securities Act even with the statutory caps would be more than adequate on the facts of the case. The court found that these compromises were sensible and would help expedite the proceedings for the benefit of all parties involved. 

Ivany v. Financiere Telco Inc., 2013 ONSC 6347: Proposed retirement savings investment scheme class action was certified, conditional on certain amendments to the class definition, common issues, litigation plan and notices. The defendants had also been subject to an investigation by the Ontario Securities Commission and some of them had reached settlements with the OSC. The court accepted that the OSC investigation had taken place in the criminal context and that the parties were not the same as in the OSC proceedings. However, the court also noted that the OSC was a senior and deeply experienced regulator carrying out quasi-criminal jurisdiction in the public interest. Therefore, the extent to which its findings could be re-litigated in the civil proceeding was “a serious issue to be tried, and should be a common issue in this litigation.”

Buelow v. Morrissey, 2013 ABQB 277: Motion for certification denied in proposed class action for potentially harmful effects of antipsychotic medication in elderly patient populations. The plaintiff (estate of a deceased dementia patient) alleged that the defendants had prescribed antipsychotic medication (Seroquel and Zyprexa) to elderly patients with dementia despite warnings from Health Canada that these drugs were not approved for such use and in circumstances where the drugs had no proven efficacy for treating elderly persons with dementia.

The Court found that there was “no evidence of death or injury, or even complaints about the ‘dangers and risks’, never mind cognitive impairment or potentially harmful side effects, other than as it [related] to the Deceased.” The plaintiff had failed to prove that there were two or more potential class members who had suffered injury from the prescription of antipsychotic medications, or that any other potential class members sought to advance a claim. The absence of some evidence on this point made this matter an individual, stand alone, action. As a result, the motion for certification was dismissed and the action was permitted to proceed as a stand-alone action by the estate of the deceased.

Good v. Toronto Police Services Board, 2013 ONSC 3026: Motion for certification dismissed in proposed G20 protest class action. The plaintiff’s proposed class definition (consisting of a general class definition, with six location-based subclasses, a residual subclass and a detention subclass) was found to be contrary to Ontario’s Class Proceedings Act, 1992, as it sought to certify, as one class, eight distinct groups of claims with no common link. The class definition also used unclear language and improperly excluded certain persons (such as those charged during the G20 summit). Many of the proposed common issues could not be determined on a class-wide basis.

Furthermore, the court held that it was clear given the lack of commonality that a class action would not be a fair, efficient and manageable method of advancing the claim. “The impermissible use of eight subclasses creates an unwieldy group of claims. There is no single class that shares “substantial common issues”… The common issues are subsumed by a plethora of individual issues. The result would be unmanageable litigation punctuated by numerous individual inquiries, and full trial for each class member. Instead of furthering the goal of judicial economy, a class proceeding would impede this important goal.” Moreover, behavior modification in this case did not depend on the class action. The conduct of police officers during the G20 summit was already the subject of a number of investigations and reviews, which could satisfy this underlying objective of the class action. In sum, the preferable procedure criterion was not met. 

Girard c. Vidéotron, s.e.n.c., 2013 QCCS 1488: Motion for authorization to proceed as a class action granted in Videotron billing practices lawsuit.

 

ADDING ADDITIONAL REPRESENTATIVE PLAINTIFF

T.L. v. Alberta (Child, Youth and Family Enforcement Act, Director), 2013 ABQB 272: Motion by class counsel in certified class proceeding to amend the certification order to add an additional representative plaintiff to the currently existing representative plaintiffs. The court held that it had jurisdiction to grant such an order under ss.9(4) and 13(1) of the Alberta Class Proceedings Act. It further found that the new proposed representative plaintiff was a member of the class, that she had consented to act as a representative plaintiff, and that she was capable of fairly and adequately representing the interests of the class members. She was knowledgeable of the litigation to date and had reviewed and comprehended the litigation plan and complex case plan. Finally, she had no interests in conflict with the interests of any the class members. Therefore, taking into account the evidence before the court and the desire to keep the case moving forward, the court appointed the new proposed representative plaintiff as a representative plaintiff in the class action.

The writer was counsel for the Defendant government, who took no position on the motion.

 

EVIDENCE AND DISCOVERIES

Spina v. Shoppers Drug Mart Inc., 2013 ONSC 2559: On a refusals motion ensuing from pre-certification cross-examination of the defendants’ affiants, the court found that the defendants were justified in refusing to answer the questions that were the subject of the motion on the grounds that the questions were irrelevant to the certification motion or offended the proportionality principle as it would be applicable at this juncture of the proceedings. The plaintiffs’ motion was dismissed, with costs in the cause. 

Cunning c. Fitflop Ltd., 2013 QCCS 1946: Motion by the defendant for permission to interview the applicant on specific topics and to file additional evidence in response to the applicant’s application for authorization to institute class proceeding granted.

Vermette c. General Motors du Canada ltée, 2013 QCCS 1424: This motion dealt with various objections raised during the examination for discovery of certain representatives of the defendants in a certified class action. The Court set out the general principles associated with discovery, and went on to address each objection individually. 

Comité d'environnement de Ville-Émard (CEVE) c. Stodola, 2013 QCCS 1915: The Court dealt with specific objections raised in the course of the pre-hearing examination of the applicant in a proposed class action.

Wilkinson c. Coca-Cola Ltd., 2013 QCCS 1936: Motion of the defendant to produce further evidence partially granted in proposed Vitamin Water class action. 

Oubliés du viaduc de la Montée Monette c. Consultants SM inc., 2013 QCCS 1837: Request to interview certain representatives of the applicant granted, but limited to specific topics.

 

COSTS

Amyotrophic Lateral Sclerosis Society of Essex County v. Windsor (City), 2013 ONCA 254: The issue on this appeal was whether the Ontario Divisional Court had erred in principle in refusing to awards costs in two class action appeals despite the appellants’ success on the substantive issue they appealed. The action was certified by the Ontario Superior Court of Justice but the class period was limited by the motion judge. On appeal, the Divisional Court held that the motion judge had erred in law in limiting the scope of the class. In addition to the class scope issue, the respondents had raised a number of alternative arguments concerning certification which the Divisional Court refused. Instead, the Divisional Court referred the other arguments back to the motion judge for reconsideration. With respect to the issues of costs, the Divisional Court had ordered that the costs of the appeals and the motions for leave to appeal be determined by the motion judge as part of the overall costs of the certification motions.

The Court of Appeal noted that in coming to its decision regarding costs, the Divisional Court had failed to consider the general rule that where an appeal is allowed and results in a re-hearing, the costs of the appeal should be awarded to the successful appellant and should not depend on the outcome of the re-hearing:

“[I]t is important to separate the appeal from the forthcoming certification motion. The appeal from the motion judge was a discrete procedural step; its costs should not be treated as merely a component of the costs of the certification motion. The outstanding issues to be determined on the certification motion were not determined on the appellants’ appeal to the Divisional Court. The costs of the appeal and the related motion for leave to appeal are stand-alone costs incurred by a group of litigants who want their day in court. 

The delayed recovery of costs until the outcome of the certification motion and potentially of the case itself does not promote access to justice, a goal of the CPA. […] The respondents were entitled to advance their argument concerning the limitation period on the certification motion. However, it is not generally appropriate that the appellants carry the financial burden of their successful appeal from the motion judge’s decision until the conclusion of the certification motion and potentially until the trial itself.”

The Court of Appeal held that the Divisional Court had further erred in principle in remitting the costs of the appeal to the motion judge whose error necessitated the appeal. The parties could reasonably expect the court to make an order as to costs. Further, the provisions of the Courts of Justice Act and Class Proceedings Act, 1992, and the case law, supported the proposition that the court hearing a proceeding or a step in the proceedings will fix the costs associated with the step or the proceedings.

As such, the Court of Appeal allowed the appeals and ordered that the costs of the appeal and of the motions for leave to appeal be awarded to the plaintiffs on a partial indemnity basis.

Brown v. Canada (Attorney General), 2013 ONCA 256: On motion for leave to appeal from the decision of the Divisional Court setting aside the decision of the motions judge conditionally certifying the action as a class proceeding, the Court of Appeal made no award of costs on the basis that success was divided.

 

NOTICE

Handicap-Vie-Dignité c. Résidence St-Charles-Borromée, CHSLD Centre-ville de Montréal, 2013 QCCS 1638: Form and method of providing notice to class members approved. 

Raymond c. Lomex inc., 2013 QCCS 1441: Motion for dissemination of notice of settlement approved in Lomex environmental pollution class proceeding.

 

AMENDMENTS

Leclerc c. Merck Canada inc., 2012 QCCS 7100: Request to amend application for authorization to institute class proceeding against the manufacturer of Nuvaring denied, but the plaintiff was permitted to file a further application to amend the application.

N. Turenne Brique et pierre inc. c. FTQ-Construction, 2013 QCCS 1535: Request for amended authorization granted. 

 

DISCONTINUANCE

Mewburn v. Peers, 2013 ABQB 299: An action was commenced in January 2011 against the defendants for recovery of funds invested by the plaintiff and class members. The plaintiff subsequently decided not to pursue the class proceeding, and purported to amend the action to remove reference to the Class Proceedings Act and to add numerous other plaintiffs. The court advised the plaintiff that the effect of amending the Statement of Claim to change this from a class proceeding to a regular proceeding was the discontinuing or abandoning of the class proceeding, which could only be done with the approval of the court under s.35(2) of the CPA. Counsel for the plaintiff took the position that s.35(2) of the CPA did not apply to the amendments because s.35(1) defined “proceeding” to mean a class proceeding or a proceeding that is subject of an application for certification. Further, under s.1(d) of the CPA, class proceeding meant a proceeding certified as a class proceeding. Therefore, as a matter of statutory interpretation, this proceeding was not a class proceeding within the meaning of s.35 at the time of the amendments because it was neither certified as a class proceeding, nor the subject of an application for certification. 

The court rejected this interpretation on the basis that (1) this matter was clearly intended to be a class proceeding from the very beginning up until the purported amendments, (2) this was “a proceeding that is subject of an application for certification” even though the application for certification had not been formally brought, and (3) the plaintiff’s interpretation would thwart the very concerns that recent amendments to s.35(1) (including the addition of the words “a proceeding that is subject of an application for certification”) were intended to address.

Having made this finding, the court turned to the question of whether to approve the discontinuance of the action under s.35(2). It noted that the protections in s.35(1) were intended to protect the members of the class or potential class (and not the defendants). It went on to direct that the plaintiffs give notice to the prospective class members of the intent to discontinue the class proceeding and that the discontinuance be filed not earlier than 90 days after the notice was field to ensure that any putative class members had sufficient time to commence individual action.

 

MISCELLANEOUS

Fontaine v. The Attorney General of Canada, 2013 BCSC 756: Request for Directions with respect to the question of whether certain educational institutions were “Indian Residential Schools” within the meaning of the Settlement Agreement in the residential schools class action. In each instance, the request involved circumstances where multiple institutions operated at different times at a single location. The court agreed with the government’s position that the institutions operating at the locations in question after the closure and/or relocation of the original institutions were distinct from the earlier institutions and that only the original institutions operating at these locations were Indian Residential school within the meaning of the Settlement Agreement. 

Adrian v. Canada (Minister of Health) (Claimant #09-18168), 2013 ABQB 198: Appeal from the decision of an appeals officer appointed pursuant to the terms of the Settlement Agreement in the Hepatitis C litigation. The claimant, a member of the family class, made two claims for compensation, one of which was granted and the other of which was denied by the administrator. The claimant appealed the approval as to the amount of the compensation and the denial to an appeals officer who upheld the decision of the administrator. On appeal to the Alberta Court of Queen’s Bench, the decision of the appeals officer was upheld. There was no error in the calculation of the compensation awarded to the plaintiff under the settlement agreement. Further, the denial was justified because the claimant’s father, who was the primary class member was alive at the time of the application, and compensation under the second head required that the primary class member be deceased as of the date of the primary application. 

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Reader Comments (1)

FYI, Brown v. CIBC was Div. Ct., not Court of Appeal. Your posts are great!

June 21, 2013 | Unregistered CommenterGarth Myers

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