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Tuesday
Feb192008

February 2008

In the last three weeks, the allegedly glamorous life of a class action lawyer has left me (1) in -47 degree frigidity in Edmonton, (2) storm-stayed in a seedy airport hotel in Toronto, and (3) wandering the windy, slushy streets of Halifax on Valentines Day looking desperately for an pub that would take me in. As Willie once said "Mommas, don't let your babies grow up to be class action cowboys. Cowboys ain't easy to love and they're harder to hold. They'd rather give you a song than diamonds or gold, etc." http://www.simplyangel.com/mommasdontletyourbabies.htm

OSGOODE CONFERENCE UPCOMING
I hope you are all planning to attend Canada's best class action conference taking place on April 10-11 in Toronto. As usual, there is a great group of speakers, including top class action judges from around the country such as Chief Justice Winkler, Chief Justice Brenner, and Associate Chief Justice Prevost. I look forward to seeing you all there, particularly if you are willing to buy drinks Thursday night.
A link to the conference details and registration form is below:
http://www.osgoodepd.ca/cle/class_actions/index.html

NOVA SCOTIA READY TO JOIN THE PARTY
The Nova Scotia legislature has passed its class proceedings act, but it is awaiting proclamation. It follows the Ontario model (costs with exceptions, and no express discussion of the treatment of non-resident class members). However, there has been no Class Proceedings Fund established to date, and it is unclear whether that will occur.
See: http://www.gov.ns.ca/legislature/legc/bills/60th_2nd/3rd_read/b019.htm

CRIMINAL INTEREST RATE UPDATE
Garland v. Enridge Gas Distribution Inc., 2006 OJ 4907, appeal 2007 ONCA 13: The lower court granted final approval to a settlement which had earlier been conditionally approved. The court had declined to approve the settlement due to the presence of a provision which required approval of fees in a specific amount. The agreement was revised to allow approval without a specific amount being approved. The court then approved fees of $10,130,469 and a payment to the representative plaintiff of $25,000. The Plaintiff appealed the finding in relation to their allocation. The appeal was resolved on consent by the Plaintiff receiving $95,000 to be paid from within the approved fees of class counsel.
De Wolf v. Bell Expressvu Inc. (unreported, February 11, 2008) 05-CV-297727CP (Ont.S.C.J.): Administrative fee class action certified. The court found that there was a common issue, even though the plaintiff's argument required some consideration of context beyond the precise wording of the standard form contract, as the context was "common or typical across the members of the class".
Bartolome v. Mr. Payday Easy Loans Inc., 2008 BCSC 132: In this decision, the court:
1. Certified three payday loan actions on the usual basis.
2. Spoke about the application of the Hoffman v. Monsanto cause of action test proposed by the Sask CA stating: "I am by no means satisfied that this statement of the test is actually any different from that enunciated by our courts in Brogaard. Brogaard would, of course, be binding upon me in any event. However, assuming that Hoffmann is indeed a different test from that enunciated in Brogaard and assuming that Hoffmann applied in this case, the plaintiffs have satisfied me that the pleadings disclose "an apparently authentic or genuine cause of action on the basis of facts as pleaded and the law that applies" because, as they have argued, this case is virtually identical, if not identical, to many cases already certified by this court and the certification upheld by the Court of Appeal. This court and the Court of Appeal have already determined that the pleadings disclose an apparently authentic or genuine cause of action on the basis of the facts as pleaded and the law that applies." (Ed. Note: speaking of Hoffman, leave to appeal to the SCC was dismissed: 2007 SCCA 347)
3. Declined to amend the proposed common issues to conform with those certified in the BCCA decision in Parsons v. Coast Capital, stating that the refined Parsons issues were already implicit in the proposed issues.
4. In relation to the management of extraprovincial class members, the court stated: "To be workable and maintain the right to opt in contemplated by the CPA, in this case the order should provide that anyone wishing to opt in may contact class counsel. The plaintiff may then apply to create a subclass as contemplated by s. 6(2), and determine an appropriate representative for the subclass (who may or may not be the plaintiff)."
5. In relation to notice, the court approved a limited notice campaign by requiring only that notice "be published in one copy of the Vancouver Sun and the Province weekend newspapers, by posting notice in the defendants' stores and on their websites, and by notice on class counsel's website". The court ordered that the defendant pay for the cost of notice stating: ". It is also appropriate that the defendants bear the cost of notice in each of their actions, with the exception of notice on class counsel's website. The plaintiff has adduced evidence of his limited resources, and, as I have indicated, the defendants will benefit from notice [through opt outs] and it is appropriate that they carry part of the expense."
6. In relation to the right to refuse to do business with class members: "Communications with class members when a loan has been denied must be carefully circumscribed to ensure that a denial of the loan does not become a mechanism to coerce a class member to opt-out of the class proceeding. If the defendants deny a loan to an individual because that person is a class member, any communications about the class proceedings and why the class member has been denied a loan should be confined to a written communication in a form agreed to by the parties or approved by the court. If the class member has any questions, the defendants should be required to advise the class member that he or she is precluded by court order from engaging in any further discussion and the class member should be directed to class counsel."
7. On opting out, the court approved a two month period, and stated: "I agree that a delay before the opt-out becomes effective is appropriate. This will permit class members to obtain legal advice. The delay should not harm the defendants who are free not to do business with a customer until the opt-out becomes effective. Nor should the delay harm class members. As many of the defendants have submitted before me in payday loan proceedings, the customers are under no pressure to accept the terms offered by any one payday lender because there are many other payday loan companies available to them. To protect against any possible prejudice to a class member, I will limit the delay to 7 days, unless class counsel notifies the defendant that the opt-out becomes effective earlier."
The writer was counsel for the payday loan companies.

SETTLEMENT APPROVED IN FX CLASS ACTION
Casselman v. CIBC World Markets Inc and CIBC Investor Services Inc. (unreported, December 21, 2007) 04-CV-2352 (Ont.S.C.): A lump sum settlement was approved in this foreign exchange conversion class action. The writer was co-counsel for the class with Sutts Strosberg, Groia & Co, Teplitsky Colson, and Bruce Lemer.

INTERIM REASONS ISSUED IN PENSION CLASS ACTION
Alberta Society for Pension Reform v. Alberta, 2008 ABQB 74: The court confirmed that a proposed class action in Alberta should be started with a true plaintiff, although a non-party plaintiff can apply to be representative plaintiff thereafter. The court confirmed that any claim involving negligence in the preparation of regulations would be struck, but left it to the parties to consider whether any aspects of the claim survived, failing which the court would consider the issue further.
The writer was co-counsel for the Province of Alberta in this matter.

PRICE FIXING CLASS ACTION LEFT IN LONDON INSTEAD OF TORONTO
Nutech Brands Inc. v. Air Canada, [2007] O.J. No. 5031: Toronto loses. Not just a hockey score any more.

COSTS AWARD AGAINST COUNSEL CONFIRMED
Poulin v. Ford Motor Co. of Canada, 2007 OJ No. 4988 (S.C.): The court was asked to reconsider its endorsement awarding costs on a substantial indemnity basis against class counsel Will Barristers and their U.S. associate firm Motley Rice, and on a partial indemnity basis against the representative plaintiff. The court found that none of the special circumstances in s.31(1) of the Ontario Act existed.
In relation to Motley Rice: "Motley, Rice's role in the case at bar differs significantly from the role of U.S. co-counsel in cases such as Gariepy wherein fees payable to U.S. co-counsel were approved by the court. This case is noteworthy in terms of the role played by the lead attorney in the Motley, Rice firm, Mr. Frederick Jeckel. Of particular significance is the fact Mr. Jeckel filed the only affidavit in aid of the certification motion. No affidavit by Mr. Poulin was prepared or submitted. It was thus necessary for the defendants to move under Rule 39.03 in order to examine Mr. Poulin as proposed representative plaintiff. In sum, the position taken by Costs Counsel on behalf of Motley, Rice seeking to deny the jurisdiction of this court with respect to adverse costs consequences is inconsistent and self-contradictory with the position that would have been taken had the certification motion been successful, i.e. seeking fees in their capacity as co-counsel to Mr. Poulin. In the above circumstances, I conclude that this court does have jurisdiction to make an award of costs against Motley, Rice as a non-resident non-party"
In relation to Will Barristers, the court went further than the Holmes v. London Life decision approving indemnities, and appeared to criticize class counsel for having failed to provide such an indemnity (or at least failing to fully explain the costs consequences to the representative): "[T]he retainer agreement signed by Mr. Poulin with Will Barristers did not provide him with any indemnity respecting to costs. I there noted that this was a "significant matter in the context of the plaintiff's capacity to be a representative plaintiff for a class proceeding"."
Will Barristers did subsequently agree to provide an indemnity. However the court stated: "Counsel for Magna defendants contends that the indemnity undertaking ... "does not obviate the factual foundation on which the Certification Motion was prosecuted or change the fact that this action was brought by way of a misinformed and uninformed plaintiff"... I agree; the liability exposure of Will Barristers for costs in this matter is not altered or affected in any way by their belated indemnity undertaking to Poulin."
The court found that Rule 15.02(4) allowing special costs awards was engaged by the lack of "authority" created by the lack of informed consent from the proposed plaintiff.
The court concluded: "The fact remains that at the time of instituting the action and mounting the Certification Motion, Mr. Poulin was without an indemnity undertaking and it was accordingly, open for Will Barristers and Motley, Rice to obtain extremely large fees arising from a successful outcome without any concomitant risk of adverse costs consequences. For the above reasons, I conclude that Will Barristers is subject to a costs award in favour of the defendants arising out of the Certification Motion."

OF CHICKENS, EGGS, AND WEED
Pearson v. Canada (Minister of Justice), 2008 FC 62: The Plaintiffs commenced a proposed Class Proceeding based on Charter claims arising from certain drug enforcement measures applied against the "Assembly of the Church of the Universe". The religion holds as one of its tenets that cannabis is a sacred substance. (Ed. Note: I always have trouble with religions whose central tenets involve giving leadership or laity the right to have more sex and smoke more drugs than anyone else. Seems as little "conveeeeniennttt", as Dana Carvey used to say).
The feds applied to strike the claim. The Plaintiffs objected stating that a prothonotary did not have jurisdiction, and that the motion should be heard with certification. The court found that the prothonotary did have jurisdiction, and that the motion could proceed first. On the latter point, the court stated: "Inherent in the position of the Plaintiffs is the suggestion that preliminary motions to strike a Statement of Claim on the ground of not disclosing a reasonable cause of action are somehow not permitted and are to be dealt with only on the certification motion. This suggestion is without merit. To give life to this submission would be to emasculate the Rules as they relate to class proceedings. The Rules are in place to ensure that any proceeding initiated in the Federal Court is regulated by the same procedural principles. The primary principle behind the Rules is to secure the just, most expeditious and least expensive determination of every proceeding on its merits..."

DENTAL COLLEGE CASE (ALMOST) CERTIFIED
Matoni v. C.B.S. Interactive Multimedia Inc. (c.o.b. Canadian Business College), [2008] O.J. No. 197: The class alleged that the college had misrepresented what was required in order to become licensed as a dental hygienist following completion of their unaccredited program.
On class definition, the court required an end date to the class being "no later than the time at which notice of certification is given to ensure that notification of class members is effective".
The court found that there was an implied contract common issue (para.118), but only when carefully framed to create a class wide element as follows: "Was it a term of Class members' contracts with the corporate defendants, implied by custom or usage or as a legal incident of the particular class or kind of con-tract, that there was no undisclosed risk to class members that they would not, upon their graduation, (i) have the automatic or guaranteed right to write the Exam or, (ii) become a registered dental hygienist in the same manner and at the same time as if they had enrolled in an accredited dental hygiene program at an-other institution?"
The court found that the issue as to whether applicants were in a special relationship was a common issue, but none of the other proposed negligent misrepresentation issues were common in light of the evidence that the representations varied. Nor were there any common issues with respect to the Competition Act.
The court did find a common issue with respect to the Ontario Consumer Protection Act, particularly given that under s.18 of that Act the consumer does not have to established that the unfair practice induced her to enter the contract. (Ed Note: Quaere how the court found that the existence of an unfair practice could be common in light of the earlier evidence of individuality in the nature of the representations?)
The court also found that the personal liability of certain defendants was also a common issue.
On preferability, the court again placed heavy weight on the provisions of the Ontario Consumer Protection Act, but found that only the Consumer Protection Act claim should be certified:
"If the claims for breach of contract, negligent misrepresentation, breach of collateral warranty, breach of the Competition Act and breach of the Business Practices Act were the only claims advanced, I would conclude that certification was not the preferable procedure and dismiss the plaintiffs' motion on that basis. The individual issues overwhelm the common issues arising out of those causes of action. Such a class action would not be manageable and would not result in judicial economy. Moreover, class counsel do not commit to represent class members on a contingency basis with respect to the determination of the individual issues. Class counsel contemplates that the individual issues be determined by procedures analogous to the simplified procedures under Rule 76 of the Rules of Civil Procedure. Given the plethora of significant individual issues that class members would have to prove following a common issues trial, certification of those claims would not increase access to justice in any meaningful way. Following the common issues trial, Class members would still face what for many would be a daunting task. The plaintiffs, however, also allege breach of the Consumer Protection Act. A claim under the Consumer Protection Act, does not require proof that a claimant was induced to enter into the contract by the misrepresentation, permits a claimant to recover damages or the amount by which the consumer's payment under the contract exceeds the value that the goods or services have to the claimant, if rescission of the contract is not possible, and permits the court to disregard the requirement that a consumer give written notice within one year of entering into the consumer agreement if the consumer seeks a remedy under the legislation. It appears to be the most significant remedy available to most proposed Class members. In my view, a class proceeding is clearly the preferable procedure for resolving the claims of class members under the Consumer Protection Act."
There was a problem with the representative plaintiff however, as the proposed representatives were at the school prior to the effective date of the Consumer Protection Act claim: "In the circumstances, however, this should not result in the dismissal of this motion at this stage. As indicated earlier in these reasons, had the defendants not notified the proposed representative plaintiffs of their intention to bring an action against them for intentional interference with economic relations, the representative plaintiffs might well have included a person who entered into a contract with CBC after July 30, 2005. Accordingly, the representative plaintiffs should have a reasonable opportunity, free from interference from the defendants, to make such persons aware of this claim, and to add any such person as an additional proposed representative plaintiff."

CROCUS UPDATE
Bellan v. Curtis, 2007 MBCA 165: The applicant Manitoba Securities Commission sought a stay of a proposed class proceeding in the Court of Queen's Bench pending the hearing of an appeal of its motion to strike. The application was dismissed. The court found that although the Commission's appeal might be dispositive of the matter against it, it might not be, and it was clearly not dispositive for each and every defendant. The court fully expected the certification decision would one day be before the Court of Appeal in any event. The court found it preferable to avoid a "piecemeal process".

MERITS APPEAL BY CLASS REJECTED
Dicaire c. Chambly (Ville de), 2008 QCCA 54: The court rejected this appeal from a decision in which the court concluded the municipality did not breach the duty of care in preventing damage arising from exceptional flooding.

CLASS MEMBER EXAMINATIONS AND PRIVACY ISSUES CONSIDERED
L'En-droit de Laval c. Institut Philippe Pinel de Montréal, 2008 QCCS 21: The Defendant had previously obtained the right to examine members of the class in this class action involving hospitalization in the defendant's psychiatric facility. The Defendant then produced a series of medical files. The Plaintiff objected to this production. The court overruled this objection stating that the authorization signed allowing review of the medical records also impliedly allowed production of these records in the litigation.
Brochu c. Société des loteries du Québec (Loto-Québec), 2008 QCCS 189: The Defendant is this gambling addiction class action sought to examine an additional group of class members who had used the VLTs in later years, based on new technology and with additional warnings. The court refused the application, stating that the questions sought to be posed were not relevant to the common questions.

LIFE INSURANCE AGENT CLASS LOSES CASE ON MERITS
Latreille v. Industrielle-Alliance (L'), compagnie d'assurance sur la vie, 2007 QCCS 6495: The plaintiff sought to nullify a clause in his agent contract with the defendant. The court found that there was no basis to nullify the clause.

VARIOUS ISSUES CONSIDERED IN LIVESTOCK PRICING CASE
Toms Grain & Cattle Co. v. Arcola Livestock Sales Ltd., 2008 SKQB 21: Various issues were addressed in this decision:
1. One representative plaintiff was removed.
2. The action against one set of defendants was severed from the case against another set of defendants, but both cases were set to be tried at the same time.
3. A settlement by one defendant for $125,000 was approved, and the monies paid into court.
4. An application by the class that a bond paid into court be applied to the benefit of the class was rejected as the claims process established under that bond had not been followed.
5. Fees of $55,000 were approved. There was a hourly rate retainer agreement in place. Counsel had incurred $80,000 in time to date and sought payment of the $55,000 as an interim account.
6. The court declined to award payment to class members or to the counsel from the $125,000 settlement without further submissions as to whether other creditors had a right to claim against the monies paid into court. (Ed. Note: How was issue left open given the approval of the settlement, which presumably would/should have specified that the funds were for the class' benefit? All this should have been considered as part of the order approving the settlement.)

NEED FOR EVIDENCE ON CERTIFICATION MOTION CONSIDERED
Lee Valley Tools Ltd. v. Canada Post Corp., [2007] O.J. No. 4942: The claim was based on allegations that the defendant received increased parcel shipping charges in violation of the Weights and Measures Act. The key issue was the ability to invoke statistical or aggregate assessment tools: "More particularly, is a plaintiff required to put forward evidence on a certification motion in order to invoke sections 23 and 24 of the CPA as a means of satisfying the court that it has a manageable litigation plan and, to this extent, that it meets the requirement of section 5(1)(d) of the CPA?"
The court found that such evidence was not necessary in certifying the action stating:
"In any event, it is clear from the Court of Appeal decision [in Cassano] that it is the common issues trial judge, and not the certification judge, who must be satisfied, based on a review of the evidence, that it is appropriate to conduct an aggregate assessment of monetary relief under s. 24 of the CPA (at para. 38). The certification motion judge need only be satisfied that there is a reasonable likelihood that the conditions in s. 24(1) would be satisfied. In these two recent and binding appellate decisions, this turned on an analysis of the claim, which provided the necessary basis in fact for accepting as a common issue an aggregate assessment of damages for the determination of losses on a class-wide basis."

LEAFS TO APPEAL
Canada Post Corporation v. Michel Lépine, et al. (Que. C.A., August 10, 2007) (32299): Leave granted by SCC. Enforceability of Ontario judgment over Quebec class members.
Marcotte v. City of Longueuil, Usinage Pouliot Inc. v. Longueuil (City), [2007] S.C.C.A. No. 426, [2007] S.C.C.A. No. 427: Leave granted by SCC. Refusal of certification of illegal tax recovery action.
Birrell v. Providence Health Care Society (c.o.b. Providence Health Care), [2008] B.C.J. No. 53; 2008 BCCA 14: The court granted leave so that a full panel would hear consideration of the application of B.C.'s ultimate limitation period. The issue is whether the ultimate limitation period provided for in s. 8 of the Limitation Act begins to run in cases involving claims for negligence resulting in nervous shock when the "nervous shock" is suffered, or when the act of negligence occurred.
Consumers' Assn. of Canada v. Coca-Cola Bottling Co., [2007] S.C.C.A. No. 464: Leave denied of this decision to dismiss the recycling fee proceeding on summary judgment.
Authorson (Litigation Administrator of) v. Canada (Attorney General): [2007] S.C.C.A. No. 472: Leave denied in relation to the dismissal of this long running veterans class action.
Gauthier c. Société d'habitation du Québec, 2008 QCCA 198: Leave granted to appeal a jurisdictional finding against the proposed class.
Soldier v. Canada, 2007 MBCA 153: Case involves alleged mismanagement of annuity payments under a treaty. Decision below was based on finding that applicant was not the proper party to bring the action. Leave to appeal was granted.
Lachaine c. Caisse populaire Desjardins du Village huron, 2008 QCCA 86: Leave to appeal a stay motion resulting from a carriage decision was rejected.

CANADIAN CASE DISMISSED TO FACILITATE US SETTLEMENT
Wong v. TJX Companies, [2008] O.J. No. 398: A US action was being managed through MDL procedures in this Homesense computer privacy action. A US settlement including Canadians was granted preliminary approval. It was a term of the settlement that all extant Canadian actions be dismissed prior to final approval. The Merchant Law Group applied to discontinue their action under s.29 of the Ontario Act. The court approved the dismissal. The court noted that there were equivalent benefits being offered to US and Canadian class members, and that the notice was equally comprehensive in both jurisdictions.

JUDGMENT DISTRIBUTION ISSUES CONSIDERED IN SUCCESSFUL CLASS ACTION
Option Consommateurs v. Services aux marchands détaillants ltée (Household Finance), 2008 QCCS 99: The class asked the court to consider the list of class members provided by the defendant, the distribution protocol, the mandate of the administrator, and the notice to class members. In a subsequent judgement, the court approved class counsel's fee: 2008 QCCS 124.

CHALLENGE TO IMMIGRATION FEES CERTIFIED
Hinton v. Canada (Minister of Citizenship and Immigration) 2008 F.C. 7; Plaintiff alleged breach of the Financial Administration Act provision requiring that fees not exceed costs. The court held that even if the matter should proceed by way of judicial review, that did not prevent conversion to an action so that the matter could proceed as a class action.

MOTION FOR CERTIFICATION DISCONTINUED
Fortier v. Mattel Canada inc., 2008 QCCS 225: The court noted that the plaintiff was not represented by counsel, and allowed the discontinuance.

REPRESENTATIVE PLAINTIFF CONFLICTS
Bourgoin v. Bell Canada inc., 2007 QCCS 6087: The court denied certification on the basis that the proposed representative's brother was class counsel.
Dikranian c. Québec (Procureur général), 2008 QCCS 6: Class counsel applied for a change in their retainer arrangement in this long-running and eventually successful student loan calculation class action, specifically an increase to 30% from 20%. The court denied the application given (1) the conflict created by the fact that Dikranian was now a salaried employee of class counsel, (2) the fact that the original percentage would adequately compensate counsel.
Boulerice v. Bell Canada, 2008 QCCS 249: The court found that any conflict that may have existed as a result of one of the representatives having been in practice with class counsel was no longer operative now that the business arrangement had ended. This billing class action was certified.

COPYRIGHT CHARGE REFUND MERITS DECISION
St.-Germain v. Apple Canada inc., 2008 QCCS 217: The key issue in the case was the effect of Apple's voluntary refund program. The program had a 10% take up rate. Apple had intended to distribute the balance of the amount refunded to it by the government to the Red Cross, but had not done so as a result of the litigation. The case had been certified, but excluded those compensated under the Program.
The court rejected the suggestion that the action should be dismissed merely because of the existence of the program. The evidence did not support the view that the case was without purpose, or that it was impossible to do better for the class. The court noted that there was certain delays in the program, and that it had not received widespread publicity. The court also had to apply the law of Quebec to the merits of the case, notwithstanding Apple's good intentions. Those good intentions might avoid an award of additional damages, but no such award was sought. The court found that it was a case where it had to give judgment in favour of the class for Quebec's share of the balance of funds refunded by the government. The court found that Quebec appropriate percentage of the fund was 16%, after rounding up the number of IPods sold in Quebec by a factor to account for the fact that certain Quebecers would have purchased through national channels. The court called for more submissions on a distribution protocol.

APPLICATION TO STRIKE EXHIBITS IN CERTIFICATION AFFIDAVIT
Hicks v. Saskatchewan Crop Insurance Corp., 2008 SKQB 36: The Plaintiffs in this class action sought to file an investigator's report described as follows: "The report and the DVD which were attached as Exhibits "B" and "C" to the affidavits were prepared by Back-Track Investigations & Special Services Ltd., a company hired by the plaintiffs. The report and DVD contain commentary by an articling agrologist, reports of interviews with area farmers, and numerous other documents taken from various sources including the internet and SCIC mailings."
The court struck the exhibits stating: "Evidence going to the merits of an action is not necessary or permissible on a certification mo-tion. Most of the information contained in the report and DVD is therefore not relevant to the application before me...In my opinion, it is not appropriate for an applicant for certification to just attach as an exhibit to an affidavit a report or DVD such as the ones filed here, then ask the certification judge to consider only those portions of these exhibits which are relevant to the certification application, and suggest that the remaining portions which are irrelevant, be ignored. A respondent to the certification application is left uncertain as to what parts of these exhibits will be considered by the certification judge or whether the remaining parts will subconsciously influence the judge's ultimate decision. Convenience for plaintiffs' counsel in submitting the whole report or DVD rather than taking the time to select the parts relevant to a certification hearing cannot justify their admission. In my opinion the potential prejudicial effect outweighs the probative value."

MORTGAGE PREPAYMENT CASE DENIED CERTIFICATION ON APPEAL
McLaine v. London Life Insurance Co., [2007] O.J. No. 5035: The Divisional Court dismissed the appeal from a refusal of certification.
The court rejected the submission that the lower court decision was due less deference because the judge did not have much class action experience. The court held that all of Ontario's appointed class action judges are deserving of deference.
The court found that the lower court did not err in having regard to the corporate solicitor's conflict of interest: "We find that the Judge made no fundamental error at law, which taints her entire decision in the comments made by her respecting Farah's role in the litigation. It is a fact, which cannot be ignored, that Farah acted as the solicitor in each case against the eight different financial institutions and drafted all the Claims put forward. The Court is entitled to look at whether the litigation is driven by the class counsel or by the litigants themselves, and the Judge found it was driven by Farah." The court found expressly the following question is one that could be considered in relation to preferability "Is the litigation driven by the class counsel rather than by the class members?"
Neither did the lower court err in failing to give due regarding to earlier consent certifications on similar claims: "As has been pointed out in other matters, which have proceeded on consent in the context of a settlement, the standard in those circumstances is lower than the standard is for a contested certification."
The lower court did not err is dismissing the case based on the cause of action requirement "We agree with the Respondents that there is no express term in any of the mortgages requiring the automatic crediting of any unused partial prepayment privilege or on an early discharge payment, and there is no express term requiring any particular information be shown on a discharge statement. Further, there is nothing which determines that these two privileges in a mortgage must be read together, as the Appellants are alleging should be done."
There was no proper class: "We concur with the reasoning of the Judge and find that she was correct in her analysis that the class the Appellants are trying to create is overly inclusive as defined. Further, we disagree with the Appellants that there is similarity among the mortgagees and it is simply a matter of a percentage of prepayment interest. As has been noted, there are a variety of different mortgage provisions across the country among the various mortgagees as to when the prepayment privilege is allowed and the percentages, with variations as to how many years one formula was in place. Over the period in question proposed by the Appellants, there are multiple permutations and combinations." The court concluded there were no common issues and that a class action was not preferable on similar grounds.
The court found that the representative plaintiffs were not appropriate, because they were imbued with the knowledge of their solicitor, who knew fully the wrong he alleged was being committed yet failed to advise them.

SUBWAY ASBESTOS CASE STAYS UNCERTIFIED
DeFazio v. Ontario (Ministry of Labour) [2007] O.J. No. 5021 (Div.Ct): The Divisional Court rejected the Plaintiff's appeal. In a subsequent endorsement, the court ordered costs payable in the amount of $8600: [2008] O.J. No. 378 (Div.Ct)

APPLICATION FOR DOCUMENTS FROM PLAINTIFF
Genier v. CCI Capital Canada Ltd. [2008] O.J. No. 161: The defendants sought production of documents relating to an alleged agreement on the part of one defendant to provide evidence supporting the class. The court refused the application stating that he was not persuaded that there was any agreement. The court also found that notes taken during the interview were subject to a common interest privilege, in that both the Plaintiff and the one defendant had a joint interest in securing certification against deeper pocketed defendants. .

LEAVE DENIED TO SUE CLAIMS ADMINISTRATOR
Endean v. Canadian Red Cross Society, 2008 BCSC 78: The settlement agreement provided that leave must be sought to pursue such an action. A dissatisfied claimant was denied leave to pursue this course of action. The court stated: "With respect, the action which the Claimant wishes to pursue against the Administrator represents a second challenge to the decisions of the Administrator, the Referee, and a judge of the Ontario Superior Court of Justice."

APPLICATIONS TO STRIKE
Wareham v. Ontario (Minister of Community and Social Services), [2008] O.J. No. 16: Plaintiffs were persons who made application under the Ontario Disability Support Program. The allegation involved alleged delays in processing applications. The court struck the claim, with leave to reapply to raise s.7 of the Charter.
KRP Enterprises Inc. v. Haldimand (County) [2007] O.J. No. 5029: Case alleged that police services were not properly rendered during a Native blockade. The court refused to strike on a Rule 21 motion, holding that the claims were novel but not hopeless.

COSTS DECISION ON MOTIONS TO STRIKE
Drady v. Canada, 2008 OJ 238 (S.C.): There was a mass of summary judgment motions going multiple ways across the plaintiff, defendant and third parties. The court parsed through this morass. Prima facie, the Plaintiff was going to be on the hook for substantial costs, so the court had regard to s.31(1) of the Ontario Act. The court made a few notable comments:
"As is apparent from its terms, section 31(1) does not in any sense supplant the general discretion of the court in awarding costs. At the most, it permits special weight to be attributed to the three considerations it identifies."
"As the three factors are matters to be taken into account in the exercise of the court's discretion, there is no reason why their existence might not, in an appropriate case, justify a reduction - rather than a denial - of costs otherwise payable by an unsuccessful plaintiff"
The court found that the case did involve novel question of law relating to the liability of the Crown for regulatory negligence in respect of generic products.
"I am satisfied that I should also give weight to the fact that the action was instituted to provide access to justice to a class of disadvantaged persons. However, while not ignoring the chilling effect that large costs awards may have on access to justice under the CPA, I am not disposed to place great weight on what plaintiff's counsel described as the "vast discrepancy of financial resources between this plaintiff and the Crown and third parties". In my experience, it is almost unheard of in class proceedings in this jurisdiction for there to be no agreement, or understanding, between plaintiffs and class counsel in respect of the payment of costs if the action is unsuccessful. There is no evidence, and there has not been any suggestion, that this case is different." This is clear judicial sanction of costs indemnities, since the court is going to assume that they exist in the absence of evidence to the contrary.
A total costs award of approximately $100,000 was reduced by 2/3rds through application of the s.31 factors.

DISCLOSURE ISSUES CONSIDERED IN CERTIFIED CLASS ACTION
Condominium Plan No. 0020701 v. Investplan Properties Inc., 2007 ABQB 774: Nothing notable from a class proceedings aspect.

PARTIAL SETTLEMENT APPROVED IN SERZONE CASE
Ledyit v. Bristol Myers Squib Canada Inc., [2008] O.J. No. 119: A $7 million settlement was approved offering a range of awards from $100 to $215,000 depending on the severity of the injury (pro rated if fund exceeded). Counsel fees were approved of $1.8 million, or approximately 18%, or a multiplier slightly less than 2.
There was an interesting term dealing with the non-settling defendants. Certain of those claims had been struck, leaving the issue of payment of costs to those defendants. The matter was addressed by allowing those defendants to claim against the counsel fee: "The stipulation in the settlement agreement that the BMS defendants will pay the fees of class counsel does not detract from the fact that such fees are essentially solicitor and client costs. It is therefore, fair and reasonable, in my opinion, for any costs awarded to the non-settling defendants against the plaintiffs in respect of the dismissal of the claims against the former should be paid out of the counsel fees payable by the BMS defendants under the settlement. Class counsel have undertaken to do this."
The case is continuing against Apotex.

SETTLEMENT APPROVED IN INVESTMENT CASE
Rabinovitch c. CIBC Asset Management Inc.2007 QCCS 6086: Case involved certain unit holders of the Renaissance U.S. RSP Index Fund. A $20 million fund was established.

CONSENT CERTIFICATION AND SETTLEMENT IN HIGH EFFICIENCY FURNACE CASE
See Donnelly v. United Technologies Corp., 2008 OJ 271 (S.C.)

SUBSTITUTION ORDER AFFIRMED
Heron v. Guidant Corp. [2008] O.J. No. 48: There were two overlapping class actions involving pacemakers and defibrillators. After carriage motions were commenced, the plaintiff groups came to a resolution whereby there would be one pacemaker action and one defibrillator action. There was an adjustment of the plaintiffs in the two actions. Two new plaintiffs were added to the pacemaker action. The existing plaintiff in that action, who only had a defibrillator, was moved to the defibrillator action. The defendants appealed this decision to allow the addition of new plaintiffs on the grounds that there were limitation issues. The Divisional Court denied leave. There was no reason to doubt the correctness since the court found that there was a "common purpose" and common negligence raised in relation to be the manufacturer of the pacemaker and the defibrillators. The lower court also did not err in relying on the "product equivalence" approach to the suitability of a representative against a single defendant in the BC case Olsen v. Behr, which case was not inconsistent with the Ontario Ragoonanan line of cases requiring a plaintiff for each defendant.
PENSION SETTLEMENT APPROVED
National Trust Company (Applicant), and Robert M. Smallhorn, Stuart J. Galbraith, John D. Jamieson and Edward C. O'Brien (Respondents), [2007] O.J. No. 4943

NATIONAL CLASS ISSUES
Ring v. The Queen #2, 2007 NLTD 213: The court certified this Agent Orange class action on a national class basis.
On the issue of choice of forum and national class, the court stated:
"As of October 15, 2007, approximately 66 individuals from this province and 1,297 from outside have indicated a willingness to be included in this action....[T]he existence of a certified class action may provide a sufficient connection to justify assuming jurisdiction over non-residents. I agree with this conclusion....Should the presence of two third parties, who do not reside in the province, influence the Court’s conclusion regarding its authority to assume jurisdiction? I think not.....I have previously noted the many connections between the tortious events, the parties and New Brunswick, including the location of CFB Gagetown, the applicable New Brunswick law, the larger percentage of class members there resident, and the presence of more witnesses. On the other hand, I agree with the plaintiffs that the proposed class of plaintiffs is national in scope, the alleged negligence is that of the federal Crown, which can be sued in any province, the majority of potential class members probably do not reside in New Brunswick, and, therefore, that province is probably not the most accessible or central geographic locations. Also, many of the records regarding the CFB Gagetown incidents are stored in Ottawa, not New Brunswick. Expert witnesses will probably not be based in New Brunswick. Plaintiffs who are ill will be greatly inconvenienced by having to sue in a jurisdiction where they do not reside. On a balancing of these factors, I am satisfied this is a case where there is more than one appropriate forum"
The court looked to Newfoundland's favourable costs regime: 'As noted by Sharpe J.A. in Muscutt, I must also take into account any juridical advantage flowing to the plaintiffs from proceeding in this Court. One which has been identified by them is the more favorable costs regime in this Province. In New Brunswick there are no special costs provisions regarding representative plaintiffs such as found in our s. 37(1), which provides that costs normally may not be awarded in class actions."
The court continued "In addition to the costs advantage, another juridical advantage for the plaintiffs proceeding in this Court is that the certification hearing has been completed (except for the issue now being decided). Also, much work has been done by counsel in this jurisdiction and that would be lost if the stay continues. The strongest factor weighing in favour of proceeding in this jurisdiction is the delay which would result for the plaintiffs if they have to await a decision on certification in New Brunswick, before being able to see pleadings completed and discovery proceed....My decision may have been different had the New Brunswick Class Proceedings Act been proclaimed before I commenced the hearing on the application for certification"
IRS SETTLEMENT MANAGEMENT
Fontaine v. AG Canada, 2007 BCSC 1841: The court refused to enforce purported assignments and "directions to pay" of Common Experience Payments to lawyers and others, on the grounds that such assignments were barred by the Settlement Agreement and the Financial Administration Act. The decision has been appealed. The Court of Appeal found that leave was not required: 2008 BCCA 60. A motion to quash the appeal is also pending.

LAKE SPILL CLASS ACTION REFUSED CERTIFICATION
Cuff v CNR, 2007 ABQB 761: The court held:
1. There was no common issue in negligence because (1) interference with boating was generally a pure economic loss, and (2) the Defendant had declared that it was fully prepared to repair physical damage (Note that the court did not have regard to the series of BC cases stating that an admission outside of a certified class action was not effective to negate the existence of a common issue) 2. Rylands v. Fletcher did not apply to loss of use of a lake, and the Defendant had agreed to clean up and real property adjacent to the lake.
3. Nuisance was pled too broadly as it extended beyond persons adjacent to the lake.
The court concluded: "In addition to the fact that relatively few members of the class have at least one cause of action, it is uncontroverted that the Defendant has voluntarily assumed responsibility for cleanup of the lake and any property damaged by contact with oil. As noted, in the course of argument before me, counsel for the Defendant repeated that the Defendant remains willing to clean up any oil damaged property not yet cleaned, at its expense. Given the Defendant's position, I see no judicial economy in certifying this class action wherein there are arguably very few claims, if any, left which could be prosecuted using any of the causes of action pled in the Amended Amended Statement of Claim. As noted, the obvious difficulty which emerges is that there are virtually no common issues which would justify using the class action pro-cedure in the event that there are some claims outstanding."

AMENDMENT NEGATING SUBROGATED CLAIMS ALLOWED
Burnett Estate v. St. Jude Medical Inc. 2008 BCSC 148: The Plaintiff amended the claim in this heart valve class action in order to remove any right on the part of the Province to advance a subrogated claim. The Crown applied to set those amendments aside. The court found that it had jurisdiction to consider the motion under the Law and Equity Act or its inherent jurisdiction. The Plaintiff said that setting aside the amendments would delay a proposed settlement.
The court made some interesting comment on the nature of the solicitor-client relationship in a class proceeding:
" It appears that generally, the solicitor-client relationship prior to the certification proceeding is between the solicitor and the representative plaintiff, not the solicitor and the putative class members...I do not think it is necessary in the circumstances of this case to determine whether any duty is owed by the law firm to the Province and the nature and extent of that duty in the period prior to certification. The most significant concern, I find, is whether the amendment has prejudiced the Province."
The court agreed that losing the benefit of the limitation period provisions of the Class Proceedings Act would be prejudice, but the Defendant agreed that the running of time would be suspended in connection with the claim by the Province. The court continued:
"Given the concession on the issue of limitation, I do not think that there is really any prejudice to the Province. It was not pointed out to me that the Province was in any different position legally if it was prosecuting a claim on its own or the subrogated claim was part of the class proceeding. Although the Province would have to sue in the name of the plaintiffs, if they have a subrogated claim they appear to have that right."
The court declined to consider whether the subrogated right existed under B.C. law.

CLASS MEMBER INFORMATION DISCLOSURE
Bondy v Toshiba (December 28, 2007) 03-CV-1679 (Ont.S.C.): This class action was certified. Plaintiff's counsel sought the names and contact information for class members. The court agreed to such disclosure once the opt out period was complete.

ARABI APPEAL DISMISSED
Arabi v. TD Bank () (Ont.S.C.): The court held that the appointed class action judges in Ontario are entitled to deference whether or not they yet have actual class action experience.
NEW CLASS ACTIONS
Check out the National Class Action database: http://www.cba.org/ClassActions/class_2007/main/index/default.aspx

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