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Friday
May092008

May 2008

It was great to see so many of you at this year's Osgoode conference. Hopefully you found it educational/entertaining, even with Kirk Baert on the panels. We look forward to receiving your feedback for next year.

I write this travelling back from Montreal after presenting at their annual CBA Class Action conference. While at this excellent conference, I learned that a Quebec Bar Committee comprised of both plaintiff and defence counsel has proposed amendments that will (a) give defendants back the right to appeal certification with leave, (b) allow greater latitude for interrogatories of the plaintiff in advance of certification. I also learned it is impossible to stay within your spousally-imposed Weightwatchers point allocation while wining and dining with Quebec class action counsel like Bob Charbonneau! Damn you chocolate torte!!

As always you can find past issues of this blog at http://classactionsincanada.blogspot.com/

SASK IMPLEMENTS ULCC RECOMMENDATIONS
Saskatchewan has passed the ULCC recommendations for management of national classes: (a) converting their statute to a national opt out format, and (b) setting up the mechanism for a "national carriage motion" whereby counsel with overlapping cases in other jurisdictions are invited to Saskatchewan to make submissions on the proper scope and jurisdiction of the local action. See amending statute at http://www.qp.gov.sk.ca/documents/english/Chapters/2007/Chap-21.pdf
One province down, 9 to go!

PRE-1974 CASES DISMISSED IN CERTIFIED CLASS ACTION
Richard v. BC, 2008 BCSC 254: The court agreed that the ultimate limitation period applied to negate the claims of any class members present at a psychiatric facility prior to 1974. The writer is co-counsel for the Defendant.

CERTIFICATION GRANTED IN CHILD WELFARE CASE
T.L. v. Alberta (Director of Child Welfare), 2008 ABQB 114: The court found that the reconsideration conditions established in an earlier decision refusing certification of this "failure to sue" action were now met. The writer is co-counsel for the defendant government.

CROSS-EXAMINATION PRIOR TO CERTIFICATION DISALLOWED
BC continues it strong stand against allowing cross-examination of the representative plaintiff prior to certification with Kenny v. Industrial Alliance, (April 18, 2008) Vancouver S065060 (S.C.). The writer is counsel for the Defendant.

VIOXX CLASS ACTION CERTIFIED IN SASKATCHEWAN
Wuttunee v. Merck Frosst Canada Ltd., 2008 SKQB 78: The court agreed to certify the action on its second attempt.
The court addressed the effect of a U.S. settlement on certification: "Merck acknowledged the existence of the settlement agreement and submitted that it is not evidence of liability on its part in Canada because Canada's substantive and procedural laws are different than those involved in the settlement agreement. I accept these submissions. Nonetheless, the agreement remains of relevance in two respects: (1) the plaintiffs' litigation plan indicates that they intend to rely on many of the same experts, and records and dispositions involved in the actions referred to in the settlement agreement; and (2) the commitment of $ 4,850,000,000 to settle claims of persons who ingested Vioxx and suffered a heart attack is indicative of a causal relationship between Vioxx and several forms of cardiovascular injury."
The court approved an array of purchaser, ingester, and "induced to purchase" subclasses stating: "I remain of the view that the introduction of subclasses as part of the class definition at an early date is appropriate in the absence of any material prejudice to persons potentially interested in the action. In the within action, the proposed subclasses will assist persons in determining whether they qualify as a member of the class and will assist the Court in more readily identifying the relationship between the common issues, the class and its subclasses, and the underlying causes of action than otherwise would be possible if a global all-inclusive class definition were employed similar to the one used in Wilson".
On class definition, the court allowed the use of the "thereby suffered financial loss". And "who therefore may be entitled to damages equal to the purchase price paid for Vioxx" based on the fact that a similar definition was approved in Rumley.
The court required an end date linked to the date of the certification order (para.67).
The court narrowed the class definition to exclude persons resident outside Canada.
The court approved a general causation common question following Heward, Wilson, Rumley, Wheadon, Cloud and Sorotski.
An issue asking about Merck's knowledge was approved, notwithstanding that such knowledge may have changed over time (para.93).
The court did not approve a waiver of tort common issue as it was not properly plead (para.109).
On preferability, the court was not concerned about the inclusion of out of province claims stating: "[I]f a substantial number of non-resident class members who live in Ontario "opt in", it would be open to Merck, or the plaintiffs, or the Court, to apply the laws of Ontario to such persons, or to arrange for specific aspects of their claims to be dealt with by the courts of Ontario. This procedure has been successfully employed in other product liability cases."
In terms of interaction with the ongoing US case: "Merck specifically objected to the representative plaintiffs' intention to have the proposed class action parallel comparable proceedings against Merck underway in the United States, the nature of which is fully set out in the Workable Method. At this juncture, I see no difficulty in the plaintiffs' approach in the absence of any evidence of the human body being materially different north of the 49th Parallel or the Canadian formulation of Vioxx being different than the one sold in the United States. Merck in the future could press to have this action moved at a different pace."
SETTLEMENTS
Adrian v. Alberta (unreported, March 10,2008) Action 990319153 (Alta.Q.B.): Approval was given to this settlement of a hepatitis C class action against the Province. The writer is co-counsel for the Province.
Vaughan v. New York Life, (unreported, 500-06-000114-005, December 18, 2007) (Que.S.C.): The court heard a series of appeals from the decisions of the administrator under a class settlement agreement. The writer is co-counsel for the Defendants.
Nutech Brands Inc. v. Air Canada, [2008] O.J. No. 1065 (S.C.) In this air cargo price fixing case, the court approved a conditional certification, with consideration of the settlement to follow. Only one set of defendants was settling, so the order was made without prejudice to the rights of the remaining parties to contest certification. The court noted the benefits of the conditional certification structure to facilitate coordination with a U.S. settlement (In the U.S., there is usually a "preliminary certification and settlement approval", with a final approval following thereafter). The court approved certification of a national class. The court also approved a term requiring that class members opt out of the action generally, rather than in relation to the particular settling defendant. The court found that "Allowing class members to pick and choose which defendants they will opt in or opt out against presents a number of difficulties, including the potential for delay, confusion and abuse."
Canadian Commercial Workers Industry Pension Plan (unreported, 965/06, July 11, 2008) (Ont.S.C.): The court approved this securities class action settlement, after earlier providing conditional certification. A 3.14 multiplier was approved for class counsel fees.
Hocking v. HSBC (unreported, April 30, 2008, 500-09-016435-067) (Que.C.A.): The Quebec Court of Appeal affirmed the lower court decision refusing to enforce an Ontario national class settlement. The court questioned the appropriateness and constitutionality of national class actions generally, but ultimately based its finding on the basis that there (1) was insufficient notice, and (2) the Ontario court had not conducted a proper assessment of the real and substantial connection between Quebec class members and Ontario.
Passaro c. Fédération Interprofessionnelle de la santé du Québec (FIQ), 2008 QCCS 910: The settlement of this illegal strike class action was approved.
Bergeron c. Télébec, s.e.c., 2008 QCCS 1404: Court approved notice of proposed settlement of this modem charge class action.

ROCK ROCKED, BUT STROSBERG SURVIVES
Tiboni v. Merck Frosst Canada Ltd., [2008] O.J. No. 704: Motion by the defendants for an order disqualifying class counsel as a result of counsel Allan Rock's role as Ministry of Health at the time of the approvals. The motion was allowed in part. Mr. Rock was disqualified from any further participation or involvement in the proceeding. Sutts Strosberg was required to put in place measures that would effectively insulate Mr. Rock from further participation.
The court stated: "I incline to the view that the onus of demonstrating that the former "client" - here, Health Canada - objects to Mr Rock's present retainer should be on Merck as the moving party. Unless it can satisfy the onus, the grounds for the motion are, arguably, deficient and it smacks of an officious attempt to obtain a tactical advantage. Whether or not the above is correct, I am of the opinion that this is not a case where a reasonable and informed person would have an apprehension that, in his capacity of Minister in charge of Health Canada, Mr Rock may have received confidential information relevant to the issues in this proceeding."
However, the court continued to consider the more general problem arising from Mr. Rock's public office "The conclusion I have reached with respect to Mr Rock's possession of confidential information does not exclude the possibility of a more general ground for disqualification that, regardless of the existence of such information, arises from his former status as a holder of a public office...[Rule 6.05(5)] prohibits a lawyer from acting for a client in matters for which the lawyer had a substantial responsibility while holding public office....as I was informed that officials of Health Canada will probably be called as witnesses by the defendants, it would, in my opinion, be invidious, and inconsistent with the public interest reflected in rule 6.05(5), for a former Minister to be able to challenge the evidence of such persons, and to cross-examine them with respect to matters that occurred in the department while he was in charge of its affairs and responsible to Parliament for its conduct...Although the Rules of Professional Conduct do not, per se, have the status of rules of law, it has been recognized that, in appropriate cases, they may be regarded as reflecting a public policy that should be insisted upon, and enforced, by the court. In my judgment, this is such a case."
The court did find that it was not too late to create a "Chinese Wall": "Given my rejection of the defendants' reliance on confidential information that is said to have been possessed by Mr Rock, the other factors that I believe should be considered to disqualify him from participation in the proceedings do not extend to Sutts Strosberg and the Associated counsel. They are essentially factors that arise from, and are exclusively referable to, his status as a Minister of the Crown in charge of a governmental department. I do not accept that his participation to date has been anything but de minimis and that it is now too late to set up an insulating screen."

THE RUNAWAY CLIENT
Fantl v. Transamerica Life Canada, [2008] O.J. No. 1536: After dissolution of class counsel's firm, the representative plaintiff asked that the file be transferred to one of the two successor firms. The lawyer who had been lead counsel on the case refused to deliver a notice of change of solicitor and brought an application to substitute a new class representative.
The court refused the request, and blessed the representative plaintiff's choice of counsel.
The court acknowledged that a class action is not like a regular action: "The context of a class proceeding is significant because it is not an ordinary individual action until certification is granted; rather, it is a special type of action from the outset that may be certified into a class proceeding or converted into a regular individual proceeding. (para.46)...As I will discuss in more detail below, unlike an ordinary action, in a class proceeding, all of the representative plaintiff, class counsel, and the Court have responsibilities to these absent class members (para.51)"
However, the court found that the traditional rules of the solicitor-client relationship should be the starting point and that they should only be altered if "there is some reason arising from the particular needs of the Class Proceedings Act". (para.69). Further, "The solicitor of record is not a co-plaintiff or the de facto plaintiff. The case law has recognized that the lawyer's financial interest in the class action does not and should not make the lawyer a party." (para.71)
The court clarified the relationship with the class pre-certification stating that "pre-certification, there is no solicitor and client relationship between the lawyer for the proposed representative plaintiff and the lawyer acting for the representative plaintiff...Although, there may not be a solicitor and client relationship between a proposed class member and the lawyer of the representative plaintiff before certification, there is a potential solicitor and client relationship, and the needs of the Class Proceedings Act, 1992 require that there be a sui generis relationship between lawyer and potential class members or at least some responsibilities imposed on the lawyer acting for the representative plaintiff that are owed to the potential class members."
The court found that it had the jurisdiction to control its proceedings even in advance of certification (para.58). To this end, the court found that the lawyer had standing the bring the motion before the court. The court stated:
"More to the point of the case at bar is Nordheimer, J.'s concern that pre-certification, the integrity of the class proceeding should not be undermined. Thus, Mr. Fantl cannot make the simple argument that before certification the rights associated with his position as a plaintiff are unfettered by the Court's jurisdiction. There is a sui generis relationship between the solicitor of record and the proposed class members, and the Court has the jurisdiction to protect the interests of the proposed class members. In the context of the case at bar, this concern about the interests of the proposed class means that Mr. Kim, who along with his former associates at REKO apparently has been working for some time for the benefit of the owners of Transamerica policies, at least, has the standing to ask the Court to address the issue of who will represent the class if and when the action is certified."
The court continued: "[T]he Court has the jurisdiction to govern and change who is a representative plaintiff and who is the solicitor of record and ... the Court should exercise that jurisdiction carefully and having regard to the interests of the representative plaintiff and the class members."
The court declined to treat the motion as a simple issue of carriage requiring it to pick the best counsel: "While the carriage motion jurisprudence should not be ignored for the wisdom it contains, in my opinion, it would be a mistake to treat the motion now before the Court as a carriage motion. To do so would have the deleterious effect of encouraging competition for the carriage of class proceedings based simply on what is alleged to be in the interests or the best interests of the class."
Coming to the facts before him, the matter was actually resolved quite simply on the basis that there was no reason to overrule the representative plaintiff's choice: "The reasons amount to no more than concluding that Mr. Fantl is a genuine plaintiff and while in the context of a class proceeding the Court has the jurisdiction to overrule a plaintiff's choice of lawyer, the Court should defer to the plaintiff's choice, unless it is demonstrated that the choice is inadequate; that is, the Court should only intervene if the plaintiff's choice would deny the proposed class or the class in a certified class action the relationships and the representation to which it is entitled in a class action"
On a side note, the court continued the trend of recognizing that class counsel may indemnify a class representative (para.52).

BLACKOUT CLASS ACTION BLACKED OUT
Leo Deluca Enterprises Inc. v. Lombard General Insurance Co. of Canada, [2008] O.J. No. 1230: This proposed class action challenging the interpretation of first party insurance provisions in relation to claims arising out of AN electrical outage in Ontario was dismissed prior to certification.

JURISDICTION AND ARBITRATION
Frey v. BCE Inc., 2008 SKQB 79: The court was asked to consider whether Saskatchewan was the appropriate forum. The court found that it had already considered this issue in the context of its preferability analysis. The application was rejected.
The court did reconsider its decision in relation to the effect of the arbitration clauses in light of Dell. The court held that it was bound by this decision, and excluded class members who had an arbitration clause.

ACCESS TOYOTA PROGRAM CHALLENGE DISMISSED
Harmegnies v. Toyota Canada Inc., 2008 QJ 1446 (C.A.): The court upheld the decision refusing certification of this case.
The court de-emphasized the relevance in Quebec of common law authorities stating: "Certes, ces sources sont précieuses puisqu'elles permettent de voir comment des juridictions différentes trouvent des solutions souvent analogues à des problèmes communs. Elles constituent un bon exercice de droit comparé. Il convient cependant d'être circonspect. Si les lois canadiennes (et même parfois américaines) ressemblent à la législation québécoise, elles ne sont pas pour autant identiques. Il peut donc être dangereux d'extrapoler simplement et de rendre applicable au Québec la jurisprudence de l'Ontario ou de la Colombie-Britannique. Je n'en prends, et simplement à titre d'illustration, qu'un seul exemple. L'article 1003 C.p.c. prévoit quatre conditions bien identifiées. Notre jurisprudence a donc tranché que si le juge concluait que celles-ci étaient remplies, il devait, en principe, autoriser la requête. Or, dans d'autres juridictions, même si ces quatre conditions ou leur équivalent sont satisfaites, le tribunal conserve un pouvoir discrétionnaire général et peut ainsi refuser d'accorder la requête au motif qu'un autre recours serait plus approprié dans les circonstances..Cette divergence avec d'autres juridictions montre donc que les précédents étrangers doivent être examinés avec prudence. Ils ne constituent que des ratione scriptae et ne s'imposent donc que par la seule autorité de la raison." (Editors note: I don't think the Que CA has this right. In the class action jurisdictions there is no residual right to refuse certification if the conditions are met).
The court set out 4 fundamental principles: "Le premier est que les textes du Code de procédure civile sur ce type de recours doivent recevoir une interprétation large et généreuse. Le second est que l'on ne doit pas considérer le recours collectif comme un remède exceptionnel, mais comme un remède ordinaire qui vise à favoriser une meilleure justice sociale. Le troisième est qu'il est indispensable de bien distinguer la qualité de la preuve qui doit être faite aux deux étapes du processus. Lorsqu'il s'agit de la requête en autorisation d'exercer le recours, le fardeau du requérant en est simplement un de simple démonstration et non de preuve par prépondérance. En outre, les faits allégués doivent être tenus pour avérés. Le quatrième, enfin, est qu'il n'est pas nécessaire que toutes les questions soulevées soient communes au groupe; il suffit qu'un certain nombre d'entre elles le soit. Cependant, le tribunal doit exiger une apparence sérieuse de droit à la lumière des faits allégués."
The court approved the finding that there was no colour of right stating that the Petitioner was unable to establish damage: paras.43-45
On the trouble with the common issues, the court highlighted the need to establish what would have happened with a greater right of negotiation: See para. 51
The court came close to affirming a statement very close to a preferability test stating: "Il est, en effet, essentiel de démontrer le caractère collectif du dommage subi et le recours collectif n'est pas approprié lorsqu'il donnerait naissance, lors de l'audition au fond, à une multitude de petits procès et qu'un aspect important de la contestation engagée ne se prête pas à une détermination collective en raison d'une multiplication de facteurs subjectifs. Dans le présent cas, le juge saisi du fond aurait dû se livrer à un examen détaillé d'une multitude de facteurs individuels et prendre en considération une série de circonstances variées avant de pouvoir, soit déterminer si l'un des membres a subi un préjudice et, le cas échéant, quelle est l'étendue de celui-ci." (para.54)

NATIONAL CLASS ISSUES: MERCHANT FIRM ALLOWED TO DISCONTINUE ONTARIO ACTION
Sollen v. Pfizer Canada Inc. [2008] O.J. 866 (S.C.): The Plaintiff was allowed to discontinue his Ontario action in favour of a Saskatchewan action. The defendant's request for an anti-suit injunction was refused. The court stated:
"I believe it is implicit in that statement, and in later parts of the learned judge’s reasons, that, if the decision of the foreign court was made on a basis that generally conforms to the principles of forum non conveniens recognized in this jurisdiction – and if the decision on the question cannot be considered to have been unreasonable - this court should not issue an injunction on the ground that Ontario was a more convenient forum....I am satisfied that the codification of the principles of forum non conveniens in Saskatchewan does not depart significantly – if at all - from the common law principles that are applied in this jurisdiction. I am also satisfied that the finding of the learned judge at first instance in Saskatchewan cannot be said to have been unreasonable. It follows that this court should not enter into an inquiry whether, by an application of such principles, it would have reached the same conclusion.
In applying the principles of forum non conveniens to class actions - and particularly to those with a national class - a number of the factors that may have considerable relevance in other actions will be less helpful. There may, as here, be multiple plaintiffs, as well as class members, resident in different jurisdictions; the acts of the plaintiffs, and the class members - and also to an extent the conduct of the defendants - from which harm allegedly resulted may have occurred in these different jurisdictions; and the laws of each of them may have to be applied. In addition, in this case, while Boehringer Canada, and one of the Pfizer defendants, have their head offices in Ontario, the other Boehringer defendant and the other Pfizer defendants are resident elsewhere. The Attorney-General has offices and legal staff in Saskatchewan and in Ontario. There are likely to be out-of- province witnesses whichever forum is chosen.
The above aspects of class proceedings reduce the likelihood that one of the different jurisdictions will be clearly more appropriate than others, and will make it more difficult for a defendant to obtain a stay of a proceeding in any of the jurisdictions. The result is that - on the assumption that national classes are permitted - there are likely to be many cases of identical or overlapping class actions in more than one jurisdiction in which no stay would be justified by an application of the principles of forum non-conveniens, whether codified as in Saskatchewan, or under the common law.
Factors on which Klebuc J. placed particular reliance included the residence of four of the named plaintiffs in Saskatchewan, the serious difficulty and inconvenience they would suffer if the litigation proceeded in Ontario, and legal advantages that they would have under the laws of Saskatchewan - including the no-costs regime in force there.... Mr Maidment relied on one passage in the reasons of Klebuc J. that, it was submitted, is inconsistent with the prevailing laws of Ontario. In paragraph 44, the learned judge stated:
'I reject BI Canada's submission that the Ontario CPA allows for the creation of a "national class" that binds non-Ontario residents unless they opt out of a class action certified in Ontario because the laws of Saskatchewan do not recognize legislation enabled by other jurisdictions that intentionally encroaches on the right of its residents to seek judicial recourse for losses they suffered as a consequence of a tort or other breach of the law committed within the Province.'
In Mr Maidment's submission, the passage is inconsistent with the recognition of national classes in a number of decisions of this court. I disagree. In my respectful opinion, the thrust of the learned judge's comments was to deny that any jurisdiction of an Ontario court to certify national classes overrides, or limits, that of a court in Saskatchewan to exercise jurisdiction over cases that have a real and substantial connection with the Province. The possibility that a national class might be certified might, in some cases be relevant to the identification of a more convenient forum, but it does not displace the jurisdiction of the Saskatchewan court, or the principles relating to forum non conveniens, and it is a neutral factor in this case. I see no reason to infer that the learned judge intended to exclude the possibility that, even in a case with such close connections to the Province, it might, in some circumstances, be appropriate for the Saskatchewan court to order a stay."
In terms of the motion to discontinue, the court stated: "Consistently with the finding of Klebuc J., counsel have decided, in the exercise of their professional judgment, that it is in the interests of the class for the litigation to proceed in Saskatchewan rather than Ontario. In this connection, they appear to have been influenced by a growing recognition that the litigation risks are significantly greater than those estimated by class counsel at the outset. In these circumstances, the fact that, unlike Ontario, Saskatchewan is a "no costs" jurisdiction has been influential."
The court also spoke to the issue of limitation periods, and appeared to accept that the Saskatchewan proceeding could "stop the clock" for Ontarians: "Although the limitation period in Ontario will recommence, there was no evidence - and there was no suggestion - that it will not continue to be suspended in the Saskatchewan action whether or not that proceeding is ultimately certified. The existence of the other actions in Ontario may also insulate the class members who ingested Celebrex or Bextra."
The court dealt with the difference in opt out and opt in regimes as follows: "Some possible prejudice to the putative class in the Ontario action might be thought to arise from the fact that Ontario is an opt-out jurisdiction and Saskatchewan has been an opt-in jurisdiction as far as non-residents are concerned. If I am entitled to assume that no notice plan can be 100 per cent effective, it follows that some non-residents of Saskatchewan who would be in the class in the Ontario action will be excluded from the class in the Saskatchewan action. This, however, cuts both ways in that not all the persons who would not be reached by a notice of certification in Ontario might wish to be included in the class and bound by a decision of this court."
The writer understands that there were already competing class actions on file in Ontario. Counsel in those Ontario actions should have been given notice of this motion and given an opportunity to make their case on whether Ontario was a more appropriate forum. The failure to do so just leaves the real issue of the competing classes for another day.

DISCOVERY ISSUES CONSIDERED IN CERTIFIED CLASS ACTION
Andersen v. St. Jude Medical Inc. [2007] O.J. No. 5383 (S.C.): The court addressed a number of discovery issues in this certified class action. The court remarked on how the Ontario procedural regime applied to the discovery obligations notwithstanding that it was a national action: "While the potential reach of discovery is similar in each of the jurisdictions, there are significantly different procedural rules and wide differences in discovery practice as a result. Notwithstanding that there are class members in other jurisdictions, this action commenced and certified in Ontario is governed by Ontario procedural law."
The court addressed the scope of discovery on common issues availability from class members: "Q. 278 ask[s] what knowledge information or belief the plaintiff class has about the notification of class members about the recall or about the follow up, monitoring or treatment recommended for class members by their physicians. Both I and Cullity J. dealt with this point previously. The plaintiffs are not required to go out and survey individual class members at this time but to the extent they have this information it is to be disclosed. At this stage what is relevant to the common issues is general or statistical knowledge as opposed to the individual circumstance of each individual class member. The need for monitoring is one of the common issues and to the extent the plaintiffs know what recommendations are being made above and beyond what might be normal for recipients of mechanical heart valves that will be relevant."
In Andersen v. St. Jude Medical Inc.,[2008] O.J. No. 430, the court considered terms surrounding access to and production of an AVERT database held at the non-party University of Pittsburgh.

CHICKEN AND EGGS
Campbell v. Canada (Attorney General), 2008 F.C. 353: There was a dispute as to whether a motion to strike should proceed in advance of certification. The court allowed the motion to strike to proceed first. The court stated:
"[16] In general, Canadian courts have consistently concluded that having regard to the purpose and objectives of class proceedings and the requirement that a certification motion must be brought very early in the proceeding, the certification motion should take precedence over other preliminary motions....[23] It is evident from the jurisprudence that although, in principle, a certification motion ought to take precedence over other preliminary motions, in the end, the order of the proceedings will be determined on the basis of the circumstances of the particular case....[24] In the present case, in their preliminary motion, the Defendants allege that the Plaintiffs' claims are barred pursuant to sections 8 and 9 of the Crown Liability and Proceedings Act, ...that those claims for breaches of Charter rights alleging breaches before the Charter came into force do not disclose a reasonable cause of action; and that the remaining claims for Charter breaches do not disclose a reasonable cause of action. The Defendants also seek to have the claim of one of the Plaintiffs stayed pursuant to section 111 of the Pension Act...on the basis of the allegation that he has not applied for a pension for any of the alleged injuries or losses he has sustained and to have the claims of the other Plaintiffs stayed pursuant to the same provision for those alleged injuries or losses for which they are not already in receipt of a pension. [25] It is evident from the grounds on which the Defendants' motion is based that it may resolve, narrow or give greater definition to the nature and the scope of the case for certification. This potential saving of time and resources for both the parties and the Court displaces the general principle that the certification motion should take precedence."

US CLASS SETTLEMENT NOT ENFORCED IN SASKATCHEWAN AGAINST INSURER
CE Design Ltd. v. Saskatchewan Mutual Insurance Co., 2008 SKQB 12: In Illinois, a Saskatchewan company fired off thousands of unwanted faxes. Its insurer denied coverage. An Illinois court awarded $5 million in damages against the company as part of a settlement. It was a condition of the settlement that the judgment only be enforced against the insurer. The insurer was subject to a default order in the U.S. The class wished to register that judgment in Saskatchewan. The motion for default had not been served on the insurer. The court held that this was fatal to the application for enforcement.

LEAFS TO APPEAL
Birrell v. Providence Health Care Society, 2008 BCCA 14: Leave granted to allow consideration of the ultimate limitation period's applicability to nervous shock claims.
Arabi v. TD Bank (unreported, May 2, 2008) M35907 (Ont.C.A.): Leave denied of this refusal to certify a prepayment mortgage class action.
Assoc. de Protection des Épargnants et Investisseurs du Québec v. Nortel Networks Corporation, [2007] S.C.C.A. No. 551: Leave denied in this effort by class counsel to avoid production of their dockets in support of their fee approval application.
Hester v. Canada, [2008] O.J. No. 634 (Div.Ct): Leave denied of order striking out aspects of claim and staying action until final determination by Tax Court of merits issues.
MacDougall v. Ontario Northland Transportation Commission, [2007] S.C.C.A. No. 491: Leave denied of this refusal to certify a pension plan case.
Sander Holdings Ltd. v. Canada (Minister of Agriculture of Canada), [2007] S.C.C.A. No. 608: Leave denied of this refusal to strike a farm stabilization payment class action.
Cassano v. Toronto-Dominion Bank, [2008] S.C.C.A. No. 15: Leave denied of this positive certification decision.
Phaneuf v. Ontario, 2008 OJ 908 (Div Ct): Leave granted of positive certification decision. The claims arose out of the plaintiff's detention in custody at a detention centre while awaiting the availability of a suitable bed at a psychiatric hospital. The court found that there was a reasons to doubt the decision finding a cause of action: The court also expressed doubt on the preferability finding stating: "This analysis regarding the paucity of common issues because of the multiplicity of individual issues also applies to cast doubt on the correctness of the motion judge's determination regarding the fourth branch of the test for certification having been met."
Breslaw v. Montreal, 2007 SCCA 611: Leave granted in this companion case to earlier cases refusing to certify tax refund class actions.
Sorotski v. Goodyear Tire & Rubber Co., [2007] S.C.C.A. No. 590: Leave to appeal this decision certifying a products liability action was dismissed.

APPEALS
Bédard v. Kellogg Canada Inc., 2008 CAF 125: Court affirmed the dismissal of this sugar level misrepresentation class action. Justice Tony T. Tiger concluded that the lower court decision was just GGGGREEEAAATTT!
Canadian Alliance of Pipeline Landowners' Assn. v. Enbridge Pipelines Inc., 2008 ONCA 227: Summary judgment in favour of defendant pre-certification upheld. The motion judge had held that s. 75 of the National Energy Board Act providing for statutory compensation did not create a civil cause of action for compensation.
Lameman (on behalf of all descendents of the Papaschase Indian Band No. 136) v. Canada [2008] S.C.J. No. 14: The court found that this native rights action should be struck on the basis that all possible limitations periods have expired, inter alia.
Ducharme v. Solarium de Paris Inc., [2008] O.J. No. 1558 (Div.Ct.): The court dismissed this appeal from a decision refusing certification of a product defect action. The court accepted there was a conflict problem created by the fact that the rep wanted to establish that the product was not compliant with the Building Code, when evidence showed that almost all class members had had the product approved as Building Code compliant. Although this conflict did not exist with regard to the tort claim, the plaintiff had failed to plead the "dangerous defect" sufficient to engage the Winnipeg Condominium test. The court stated that its dismissal was without prejudice to the plaintiff's right to re-apply for certification based on an amended pleading.

DEFIBRILLATOR CASES CERTIFIED
Le Francois v. Guidant Corp, 2008 OJ 1397: On cause of action, the court held that it was not entitled to adopt the tighter Hoffman v. Monsanto case based on controlling Ontario Authority in Hollick and Cloud. However, the court did say that "a persuasive case might be made that the test is too lenient and that reliance on it by plaintiffs' counsel can result in unfairness to defendants". The court also held that there is "no onus of proof" in relation to section 5(1)(a), and that it is purely a question of law that is either met or not met. "To speak of an onus of persuading a court on a question of law means simply that the party will lose on the question, and perhaps, in the proceeding, unless its counsel's arguments are accepted."
The issue of medical monitoring was certified.
On class definition: "[The Defendant's] submissions would appear to require plaintiffs to provide evidence relating to the number of class members who suffered damages as a result of the defendants' alleged misconduct...they assert that, in the absence of cogent and persuasive evidence that all or a majority of the class members suffered damages, the court may conclude that there is no class in existence. I am not aware of any decision in this jurisdiction that sets the bar that high".
The court rejected the submission that class should be confined to Ontario - "a sufficiently real and substantial connection to the claims of non-resident class members was established by their commonality of interest with those who are resident in Ontario and whose causes of action had a real and substantial connection to this province...Guidant Canada Corporation is incorporated under the laws of Ontario, and has its head office here...[The] need for the court to apply the laws of other Canadian jurisdictions is hardly uncommon." The court held that proper notice would address the concern that the Ontario action might not come to the notice of persons outside the province.
The court rejected the suggestion that there were no common issues because of the inclusion of 13 models. The court did not require subclasses at this stage.
On preferability: "The fact that individual actions have been commenced in the United States is not significant. The question is not whether individual actions are possible - but whether a class proceeding is preferable to individual actions by each of the approximately 2000 members of the putative class".
On the case management plan, the court was somewhat critical of the proposal which proposed resolution of certain issues by an administrator stating: "[The] defendants cannot be deprived of their rights to challenge any claims for compensatory damages. They must, therefore, be entitled to participate in the procedure for resolving them". The court did find that issues regarding alleged need for class members to specifically elect waiver of tort did not have to be dealt with in the litigation plan.
On conflict, the court found no conflict flowing from the fact that some may choose waiver of tort while others might not (para.106). This could be managed by the creation of subclasses at a later date if necessary.
Peter v. Medtronic, [2007] O.J. 4828 (S.C.J.): Similar case certified, although conspiracy claim was struck unless the plaintiff could provide further particulars.

CERTIFICATION OF WEATHER STATION CASE
Hicks v. Saskatchewan Crop Insurance Corp., 2008 SKQB 102: The plaintiffs were enrolled in a program offered known as the 2005 Annual Crop Weather Based Insurance Program ("WBIP"). It was alleged that a weather station failed to properly read frost levels during a particular period, thereby lowering the entitlement to insurance.
The court adopted both the writer's statement of the cause of action test at paras.4.70-4.90 of our text, and the Hoffman test, suggesting that there is no conflict between the two. The court found that there was no cause of action against certain defendants, but that there was a case against the insurer itself. The court found that a class action was preferable even though there were only approximately 40 members of the class.

APPLICATION TO SERVE EX JURIS
Wheeler v. 1000128 Alberta Ltd., 2008 ABQB 70: Application granted in this proposed insider trading securities class action.

PARTICULARS REFUSED
Glover v. Toronto (City), [2008] O.J. No. 604 (S.C.): The court declined to order particulars in this case as the defendant was not arguing that they were required to enter a defence. The court followed Stewart v. General Motors Canada Ltd., [2007] O.J. No. 2319 and Stone Paradise Inc. v. Bayer Inc., [2005] O.J. No. 5657, distinguished Blatt Holdings Ltd. v. Traders Insurance Co., [2001] O.J. No. 949 (S.C.J.) and declined to follow Hoy v. Metronic, [2000] B.C.J. No. 2862 (B.C.S.C.). The court did require particulars on one limited point based on the general principle that where allegations are so general or bald that the need for particulars is patently obvious, an affidavit regarding the need for particulars is not necessary.
Palsetia v. Suleman, [2008] O.J. No. 638: Court generally refused motion for particulars, but relying on usual case law rather than any class action principles.

COSTS DECISIONS
Canadian Alliance of Pipeline Landowners' Assn. v. Enbridge Pipelines Inc., [2008] O.J. No. 1615: The court considered costs in this failed certification effort. The Defendants sought $200,000 each and were awarded $75,000 each.
Sutherland v. HBC, [2008] O.J. 602: Plaintiffs lost this certified action on the merits. The defendant sought costs of $886,000. The court did not find divided success based on the acceptance that certain proposed issues were common. The court noted that the time entries of the defendants were only 20% higher than the plaintiffs, and that there were administrative reasons explaining the difference. The court found that the claim for punitive damages supported the defendant's cost claim.
Applying the CPA factors, the court accepted that the legal issues were novel and that the case involved the public interest. The court found that considerations of access to justice should be considered as an element of the public interest factor rather than a separate element.
The Defendant sought to undermine the access to justice factor by pointing out that the case could have been pursued through administrative channels, in which case there would have been no costs barring misconduct. However, the court noted that the plaintiffs would still have needed to fund their own counsel. Only certification as a class action would give them certification or access to the Fund. The court also found that it was relevant that the defendant did not raise their alterative route at the time of the certification motion. The court awarded $300g in costs in light of the presence of the two CPA factors. Without the application of the CPA factors, the court would have awarded $650,000. Disbursements were fixed at $51,000. Happily for the Ontario Class Proceedings Fund, the court did agree that the cost award would be paid out of the pension fund. The court declined to pay any costs to the losing plaintiffs out of the pension fund. The court declined to require the plaintiff to reimburse the plan for costs incurred in paying for lawyers for certain related plans, who were added on the motion of the defendant.
Ruffolo v. Sun Life Assurance Company of Canada, [2008] O.J. 599 (S.C.): This claim was commenced as a class action, but morphed into an asymmetric test case of sorts (where only the defendant was bound by an adverse result rather than the class). The defendant was successful. The court awarded the successful defendant costs of $215,000. As there was funding, this amount will be paid from the Class Proceedings Fund. The defendant's legal fees were in excess of $800,000 for a case involving a 5.5 day trial, and were more than double the disclosed plaintiff's fees. The court stated that "The issues of entitlement, scale and quantum of costs must be determined without reference to whether the Law Foundation provided support to the application for certification...Where the Law Foundation is liable to pay costs to the defendant, the possible adverse effect on the viability of the fund is not a ground to deny costs to the defendant but rather is a matter for the Law Foundation to consider when it determines whether to provide funding to the plaintiff".
The court agreed to apply the s.31 factors notwithstanding the nature of the case as "(1) Sun Life is seeking costs from the Fund, (2) the consent process did not involve a court order necessary to remove an action from governance under the Act, (3) a class proceeding is not an individual action until certification is granted; rather it is a special type of action from the outset, as noted by the need to seek court approval to discontinue the class action aspects and convert back to an individual action."
In applying the factors the court found that "The effect of s.31(1) then is to encourage the court to recognize that class actions tend toward being test cases, the determination of a novel point of law, or the adjudication of matters of public interest and courts therefore should be alert to and respond to these tendencies when making decisions about costs...The effect of s.31(1) is catalytic but not determinative of the exercise of the court's discretion. If I am correct in this analysis, another way of describing the effect of s.31(1) of the Class Proceedings Act is that for proceedings under the Class Proceedings Act, 1992, particularly for proceedings that have been certified (which in and of itself is a measure that the proceeding is designed to satisfy the goals of access to justice, judicial economy and behaviour modification), the court should be more willing to find that the case is a test case, the determination of a novel point of law, or the adjudication of matters of public interest and award costs accordingly."
The court agreed that the case was technically a test case, but gave no weight to that factor, as a matter of fairness: "It is apparent that Sun Life did not advertendly waive its claim for costs, and it undoubtedly expected to pay costs if it were the unsuccessful party".
The court did accept that the case raised novel points of law, but not to the extend that the defendant should be completely deprived of its costs.
On public interest, the court gave some examples stating "A case that raises issues of broad public importance or which is directed towards improving the situation of persons or groups who are historically disadvantaged in our society including cases about the rights, privileges, obligations or welfare of the public at large may involve matters of public interest...A case concerning a regulated industry tests to raise matters that have a strong public interests component...A matter of public interest can extend to but is not confined to matters that advance the goals of the Class Proceedings Act, 1992; namely, access to justice, judicial economy, and behaviour modification....
In conclusion the court stated: "In exercising my discretion with respect to costs I took these factors into account and attempted to make an award that would not discourage class proceedings or get in the way of the access to justice policies of the class proceedings legislation."

COSTS IMMUNITY REQUEST REJECTED
In W.A. v. St. Andrew’s College [2008] O.J. No. 352 (S.C.J.), the motion for certification had not been heard, but it was anticipated that the defendant would take the position on the certification motion that the original representative was not an adequate representative. The plaintiffs brought a motion to add or substitute a new representative on the condition that the new rep would be immune from liability for costs. The plaintiffs submitted that the order sought was novel only as to timing and that there was ample precedent for relieving representative plaintiffs of liability for costs in class proceedings after the fact. They also submitted that the case raised access to justice considerations as there were no other known class members who were willing and/or suitable representative plaintiffs.
In considering this issue, the Court held that:
"It cannot be assumed that class proceedings invariably engage access to justice concerns sufficient to justify withholding costs from the successful party: Kerr v. Danier Leather, [2007] S.C.J. No. 44 at para. 69. Neither can it be assumed that access to justice is the paramount consideration in awarding costs: Little Sisters Book and Art Emporium v. Canada (Commissioner of Customs and Revenue), [2007] S.C.J. No. 2 at para. 35, citing, British Columbia (Minister of Forests) v. Okanagan Indian Band, [2003] 3 S.C.R. 371. Moreover, litigants raising public interest issues will not always avoid adverse costs awards at the conclusion of their trials and it is rarer still that they could benefit from advance costs awards: ...Costs awards can be used as a powerful tool for ensuring that the justice system functions fairly and efficiently. They can promote settlement, encourage efficiency in the conduct of litigation, and sanction improper conduct. Danier, Okanagan and Little Sisters, all very recent decisions of the Supreme Court of Canada, send a strong collective message that it is the exceptional case that will warrant preferential treatment with respect to costs and that the general rule that costs follow the cause has not been displaced in litigation, even in issues of public importance. It follows that there must be very compelling reasons to immunize a litigant in advance from an adverse costs award."
The Court stated that the application could not properly be considered at this point. If the action was certified, it would be the common issues judge who would determine an appropriate costs award. The court concluded that to immunize a plaintiff at this stage from an adverse costs award would fetter the discretion provided to the common issues trial judge. The court stated:
"It is trite to observe that risk is one of the features of litigation. Parties in litigation regularly face risks and while there is no doubt that costs can be a deterrent to litigation in some cases and a complete barrier in others, the costs regime exists, at least in part, to address this. So does the Class Proceedings Fund. To accede to the plaintiffs' argument that advance costs immunity should be ordered in any case that can be brought within s. 31(1), would not only distort the balance the Legislature has sought to achieve under the CPA and the Law Society Amendment Act (Class Proceedings Funding), ...but also effectively remove the discretion the court has under section 31(1) to award costs to either party or to make no order as to costs. This is not the way the Legislature conceived that class proceedings litigation would be conducted."

INTEREST AND FEE PAYMENT CONSIDERED IN HISLOP
Hislop v. Canada (Attorney General), [2008] O.J. No. 793: This same-sex pension benefits case succeeded on the merits. In this ruling, the court determined the pre- and post-judgment interest rate to be paid on these funds, and whether class counsel were entitled to a statutory first charge on 50% of the prejudgment arrears.
In relation to the interest calculation, the court had to determine where the cause of action arose in the national class action. The court held: "I have concluded that given the nature of the suit as a national class action , the cause of action arose in more than one province within the meaning of s. 31(2) and s. 31.1(2)....The courts do not hear Charter challenges in a factual vacuum. Charter claims begin and end with a particular incidence of unconstitutional treatment, even where a legislative enactment is at stake. In my view, the cause of action arose when the individual claimants applied for CPP survivor's pensions and were denied...I conclude, therefore, that the appropriate interest regime is that of the CLPA rather than those of the individual provinces. It falls to me to determine the rates of pre and post judgment interest that are reasonable in the circumstances. In doing so, I am guided by the statutory rates that are in place in the various provinces and the criteria for departing from those rates...Prejudgment interest is fixed at 5% per annum. Postjudgment interest will be fixed at 8%. I have chosen these rates with the objective of responding to the many difficult issues that the class members have faced."
On the fee issue, the court declined to make the award of a first charge given the charging protection under the Act: "The class members' monetary recovery was curtailed in the appellate decisions. According to PCG's affidavit, counsel have incurred $ 5,317,352.15 in fees before any multiplier is applied. Class counsel estimates that the ultimate shortfall in fees will exceed $15,000,000."
The court continued: "The awards will generate money in the hands of the recipients. In my view, the result is a "monetary award" for the purposes of s. 32(3) of the CPA....In light of my interpretation of the nature of the remedy, the award is a "benefit" within the meaning of the CPP and s. 65 of the CPP precludes the requested charge. The class members are now entitled to CPP benefits. Section 65 uses the broadest possible language to indicate that such benefits may not be encumbered in any way, voluntarily or otherwise. In this situation of legislative conflict, the AG has persuaded me that s. 32(3) of the CPA cannot prevail over s. 65 of the CPP....Because of the operation of s. 65 of the CPP, there shall be no first charge on the prejudgment arrears."

SCOPE OF DISCOVERY CONSIDERED IN CERTIFIED CLASS ACTION
Lewis v. Cantertrot Investments, [2008] O.J. No. 871: Nothing of note.

APPLICATION TO ADD A NEW REP PLAINTIFF REFUSED
Holmes v. Jastek Master Builder 2004 Inc., 2007 SKQB 415: The court confirmed that in Saskatchewan, before an action has been certified as a class action it remains an action under The Queen's Bench Act. As such the Rules allowed the plaintiff to discontinue an action without the consent of the Court. The court also noted the benefits of national harmony: "Where there is not substantive distinctions between the provincial class legislation, the courts in all provinces should endeavour to be consistent in the application of the principles and procedures by which the actions are heard."
In terms of adding a new plaintiff, the court found: "If one were to take an overly restrictive view of [the addition of a new party rule], an argument can be made that the change in a representative plaintiff does not come under this rule. There is no suggestion that the new proposed representative plaintiff ought to have been joined as a party or whose presence as a party is necessary to enable the Court to adjudicate effectively and completely on the issues in the action. This is not a case of misjoinder or non-joinder of a representative plaintiff. Looking at Rule 165, a narrow view would suggest that the change of the representative plaintiff is not necessary to determine the real questions in issue between the parties.
There are two representative plaintiffs who have indicated their willingness to continue on with the court action. The material does not suggest that the real questions in issue cannot be put before the Court with these people as representative plaintiffs as opposed to the proposed individual, Gina Smith...The Logan decision is acknowledged by both counsel as the leading authority in Canada regarding the replacement of a representative plaintiff. ...The Logan criteria is found in this passage: '7 The court must be cautious in permitting representative plaintiffs to withdraw once they have commenced a class proceeding. The decision to begin a class action should not be taken lightly. There must be a cogent reason for seeking to withdraw and this can only be done with court approval. A court must scrutinize a motion for withdrawal carefully. Considerations such as whether the class proceeding has been commenced for an improper purpose, whether there is a viable replacement so that putative class members will not be prejudiced, the question of prejudice to the defendant, whether the proposed replacement is prepared to accept the exposure to costs consequences and other pertinent facts will all bear on the ultimate decision as to whether to grant the motion for withdrawal, especially in circum-stances where the representative plaintiff's stated intention is to carry on with an individual action. This is worrisome where there is a concern that the purpose for withdrawal is so that the plaintiff can set-tle his or her own individual claim'". ...
There were 3 reasons offered by the plaintiff for the proposed addition:
"(a) Media attention -- the plaintiffs deposed to significant media attention that was visited upon them after the launching of the action. They felt uncomfortable with this attention and at least part of the media relations were handled by Gina Smith who did so very competently, whereas they were uncomfortable speaking to the media.
(b) One representative plaintiff instead of two may simplify the proceedings and prevent delay.
(c) The class members in discussion with their legal counsel decided that it was in the best interests of the class that Gina Smith be put forward as a more appropriate proposed representative."
The court rejected all three reasons and refused the application.
The court rejected the first media reason stating: "The fact there is media attention is a non-starter in my opinion."
The court rejected the simplification reason stating: "I have difficulty in accepting this notion. There is no evidence that having two plaintiffs would result in increased costs or delay, especially given that this proposed class action involves alleged breaches of contract arising from the cancellation of sales of personal residences. The current representative plaintiffs were joint purchasers of a single unit. The documentation in respect of both of them will be identical, and the response by the defendant will be the same for both. I see no credence in that reason. "
The court rejected the tactical reason stating: "There is no further explanation as to why she would be more appropriate than the current plaintiffs. The suggestion of plaintiffs' counsel is that to reveal the reason why would require release of confidential solicitor/client discussions regarding the file. That very well may be, but in an application seeking the permission of the Court, there has to be some logical basis upon which the Court's discretion can be exercised. It would appear that the discussions between counsel and the class relate to tactical matters in the prosecution of the case. They do not have to reveal their tactics but tactical consideration is not by definition a substantive reason, and without a substantive reason for replacing the current plain-tiffs, I am not prepared to do so"

PLAINTIFFS ALLOWED SECOND KICK AT THE CERTIFICATION CAT
Risorto v. State Farm (February 27, 2008) unreported 00-CV-188583CP (Ont.S.C.): The court initially refused certification for lack of evidence. The order had not yet been entered. The Plaintiff's brought a motion under Ontario CPA s.5(4) and asking for leave to file a new expert and representative plaintiff affidavits and proceed to a new certification motion. The motion was granted. The court commented on the fluidity of the certification process stating: "Where, however, there is an arguable case that the new evidence might justify certification, I believe it should be admitted and the question of certification reopened."

QUIZNO'S CERTIFICATION REFUSED
2038724 Ontario Ltd.. v. Quizno's Canada Restaurant Corporation, [2008] O.J. 833 (Ont.S.C.): This case alleged that the franchisees were overcharged for the products and merchandise used in their restaurants.
The defendant had asked for a stay of proceedings based on agreement to contract out of class proceedings legislation and an exclusive jurisdiction provision. The court refused stating that: "as a general principle, an agreement to contract out of class proceedings legislation should be read down so that it is just a strong factor in determining whether a class proceeding is the preferable procedure for the resolution of the common issues. This means that contracting out clauses are neither categorically enforceable nor categorically unenforceable and their enforcement will be determined in the context of a certification motion....I wish to be clear that in refusing a stay, I am not categorically striking down agreements that contract out of the Class Proceedings Act, 1992. There may be instances where contracting parties may be able by contract to shape the contours of a class proceeding in whole or in part. The case at bar, however, is not one of those cases."
On the ability of a with prejudice offer to serve as a viable preferable procedure: "...I have also not ignored the "with prejudice" settlement offer made by the GFS-Defendants that was designed to get them out of the litigation by offering a new distribution arrangement. However, in my opinion, this offer was so subject to contingencies, including legal hurdles involving the Quiznos Defendants, that however generous and sincere was the GFS-Defendants’ offer, it did not offer a realistic or feasible alternative to the Plaintiffs and they cannot be faulted for not taking up on it."
In relation to the provision of particulars, the court ordered the representative plaintiff to provide them in the context of its ongoing individual action, but "If I had certified this action as a class proceeding, I would not have asked for particulars of special damages beyond the Representative Plaintiffs. That level of particularity is a matter for the individual assessments of loss after the common issues have been determined."
The court confirmed a need to provide for an end date for the class definition.
The case fell down on the need for common issues: "[T]his is a very serious problem for the certification of the franchisees’ action as a class proceeding - assuming that they all have been wronged by their franchisor, their suffering is individual and damages are a constituent element of the franchisee’s central claims. From a cause of action point of view, each franchisor must prove both as a matter of liability and also as a matter of quantum their own damages. As to liability, damages must be proven as constituent element of each franchisee’s claim under s. 36 of the Competition Act. Damages are a constituent element of each franchisee’s claim for the tort of conspiracy...I agree with the criticisms of the Defendants that: (a) Dr. Baziliauskas has not shown that a comparator group of franchisees or a comparator franchisor can be identified; (b) he has not explained how it could be determined that a comparator group of franchisees was paying for product free of price maintenance by its franchisor; and (c) with respect to the before and after methodology, he has not shown that there was or that it could be determined that there was a time before price maintenance began. In my opinion, these omissions make his three methodologies conceptually unsound and not feasible to measure a class-wide impact of price maintenance."
The court did say: " I wish to be clear that I am not concluding that price maintenance conspiracies or competition offences cannot yield a common issue or that actions asserting such claims are inherently unsuitable for a class proceeding. I simply conclude that a common issue has not been made out in this case, and I also conclude that even if it were possible to isolate some discrete element or elements of the causes of action as a common issue or issues that would advance the litigation, in the case at bar those common issues would be substantially overmatched by the individual issues of the members of the class. This last conclusion is material to the discussion of preferable procedure that follows." The court also concluded that the dominance of individual issues prevented a finding of preferable procedure.
On representative plaintiff, there was an interesting discussion about the ability to pay costs: "[T]he representative plaintiff’s ability to pay costs to an opponent should be determined in the context of a motion for security for costs and not as an aspect of the certification motion."
On litigation plan: "[T]he proposed litigation plan requires adjustment because the Plaintiffs have understated the complexities of the litigation and the time required to address them."
LIFE INSURANCE CASE CERTIFIED
Jeffrey v. London Life, [2008] O.J. 837 (S.C.): Plaintiffs challenged the legality of certain transactions relating to Par Accounts under the Insurance Companies Act. The traditional analysis was applied to support certification. One notable feature was the express recognition that "access to justice" means, in practical terms, the ability to entice a lawyer to take the case on contingency. (para.129).

IRS UPDATE
Fontaine v. Canada, 2008 SKQB 133: The court was asked to sort out aspects of the ongoing fee dispute between the Merchant Law Group and the feds. This motion related to accounts rendered for work after the agreement in principle was agreed upon. The court found that these accounts were to be considered within the construct, principles and agreements governing the class action. The court ordered that an assessment take place. The court also issued directions regarding the assessment, primarily requiring further detail from the Merchant Law Group.

TRIAL OF CERTAIN COMMON ISSUES
Denis v. Bertrand & Frère Construction Co. [2008] O.J. No. 1284: The court considered a number of test case damage questions in this certified defective concrete class action.

RES JUDICATA EFFECT OF CLASS SETTLEMENT CONSIDERED
Soderstrom v. Hoffman-La Roche Ltd., [2008] O.J. No. 1405 (S.C.): The defendants sought to strike this vitamin price fixing action on the basis of an earlier class settlement. The court granted the order and ordered that counsel pay substantial indemnity costs of $80,000 personally. Plaintiff's counsel was also enjoined from bring any other actions against the defendants without leave of the court.

APPLICATION TO CERTIFY FURTHER COMMON ISSUES
Sharbern Holding Inc. v. Vancouver Airport Centre Ltd., 2008 BCSC 442: The class had been generally successful in the first common issues trial on liability. They now applied to certify additional issues in relation to damages. The court certified a number of additional issues stating:
"I accept the submission of Sharbern that in the context of this class proceeding, the court must ask first, whether there is a common remedy that may be available to the entire class; and second, to the extent that a common remedy is not available, whether there are efficient processes that can be put in place for the fair resolution of the individual claims of the class members."

EVIDENTIARY ISSUES
Irving Paper Ltd. v. Atofina Chemicals Inc., [2008] O.J. No. 1427 (S.C.): The defendants sought to strike the plaintiff's expert affidavit in this price fixing case on the basis that he improperly relied upon protected information. The court refused the application noting that the alleged information was confidential, not privileged, and did not bear o the defendants' litigation planning or strategy.

SUMMARY JUDGEMENT IN PROPOSED COLLEGED FEE ACTION
Hassum v. Contestoga College Institute of Technology and Advanced Learning, [2008] O.J. No. 1141 (S.C.): This was a summary judgment motion in a case alleging illegal fee class action. The case was struck.

MOTIONS TO STRIKE PARTS OF CLAIM
Taylor v. Canada (Attorney General), [2008] O.J. No. 1299 (S.C.): The court held that the feds took too long to apply to strike portions of the claim. Notably, the court stated:
"The fact that the CPA contemplates that certification motions will normally be the first procedural step, and be disposed of before motions for summary judgment that involve the merits of the proceeding, does not mean that objections to irregularities in the plaintiff's pleading can properly be deferred pending certification. Because of the similarity of the issues under rule 21.01(1)(b) and those under section 5(1)(a) of the CPA, motions to strike for failure to disclose a cause of action are often postponed to be heard at the same time as - or, in effect, as part of - a certification motion, but, obviously, no later."
Regroupement des citoyens du quartier St-Georges inc. c. Alcoa Canada Ltée, 2008 QCCS 1384: Court dismissed motion to strike parts of this environmental claim.

ROAMING CHARGE CASE REFUSED CERTIFICATION
Comtois c. Telus Mobilité, 2008 QCCS 1562: The court found that although there might be a cause of action, the poor state of the file and the materials presented did not allow that conclusion to be reached. The court also found that the representative was inappropriate in that she had not taken her obligations seriously. She did not take steps to produce the written contract, the claims, class and remedies were imprecise, and insufficient steps were taken to determine whether there were too many members to allow joinder.
In an earlier decision, the court allowed the defendant to put forward testimony of one of its employees. The court found that such testimony would assist in considering the existence of a cause of action and/or any common issues: 2008 QCCS 598.

APPLICIATION TO AMEND MOTION TO CERTIFY
Union des consommateurs (Guay) c. Pfizer Canada inc., 2008 QCCS 1263: The court allowed the amendments to refine the class definition in this Celebrex class action.

APPLICATION TO EXAMINE PLAINTIFFS IN ZYPREXA CLASS ACTION REFUSED
Dallaire c. Eli Lilly Canada inc. 2008 QCCS 1422: The court allowed an examination of the medical history as it would facilitate the determination of the common issue in relation to the entitlement to damages.

STAYS OF INDIVIDUAL ACTIONS IN FAVOUR OF CLASS ACTIONS
Vignola c. Flamidor inc. 2008 QCCQ 2486, Lebreux c. Flamidor inc., [2008] J.Q. no 2930, Maltais c. Flamidor inc., 2008 QCCQ 2487, Desrosiers c. Flamidor inc., [2008] J.Q. no 2931, Pomerleau c. Flamidor inc.,2008 QCCQ 2484, Proulx c. Flamidor inc., 2008 QCCQ 2556, Chamberland c. Flamidor inc., 2008 QCCQ 2458 Karres c. Flamidor inc., 2008 QCCQ 2485, Caisse populaire Desjardins du Village huron c. Garon, 2008 QCCQ 1397, : The court stayed these provincial court actions given that there was a proposed class action covering the same issues.
In Caisse populaire Desjardins du Village huron c. Sabourin, 2008 QCCQ 780 however, the court refused a stay on the basis that the class action had not yet been certified. The court declined to comment on the correctness of the decisions above, but it did note that many of them were not contested.
The Quebec Court of Appeal was asked to look at this issue in Caisse populaire Desjardins du Village huron c. Lavoie, 2008 QCCA 390. Leave was granted of a lower court decision refusing to grant a stay in favour of a class action. So presumably there will be some clarification of the test for a stay in Quebec shortly.

NEW CASES
Check out the database at: http://www.cba.org/ClassActions/Class_2008/main/index/default.aspx
One new action not yet posted there is Williams v. The B.C. Conference of the Mennonite Brethren Churches, involving the collapse of a church floor during a Christian Rock concert. Branch MacMaster have been appointed to defend the Church in that action.

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