November 2005

The times they are a changin'. I've given a few lectures recently ranking provinces by their "plaintiff friendliness" as follows:
1. Quebec (low certification bar, no evidence required, low costs, national opt out classes (maybe))
2. Manitoba (national opt out classes, no costs)
3. BC (low bar, no costs)
4. Ontario (national opt out classes)
5. Newfoundland and Saskatchewan (no costs)
6. Alberta (not one good feature, but at least they have a statute)
7. Maritimes (no statute)
I must now make an adjustment to this list. With the Ontario Court of Appeal's recent decisions adopting a liberal approach in certifying abuse and environmental class actions, and with the B.C. Court of Appeal's unexpected decision to refuse to certify a products liability case based on a lack of evidence, I hereby bump Ontario up into a tie with BC. Their certification bars have, in the author's view, now been set at the same height.
As always (1) please let the other know if there are any developments I've missed, and (2) if you want any back issues of this report, just check out our blog at
After being quizzed about the range of take up rates for settlements for the umpteenth time, we've finally decided to do something about it. My associate Luciana Brasil and Hordo & Bennett's Mark Mounteer will be writing a paper on this issue, and will be canvassing counsel and administrators to get their reports on take up rates in their various settlements. So look forward to their calls or emails! We encourage you to help out, as we all need the information that this study will yield. If you want to offer your experience or data immediately, please email
The Ontario Court of Appeal certified an environmental class action in the case of Pearson v. Inco [2005] O.J. No. 4918, after two lower court rejections of certification. This decision allows residents of Port Colborne, Ontario to proceed with property devaluation claims in a long-standing dispute. The Court reversed lower court decisions which ruled a class action could not be brought. The reversal turned primarily on the decision of the plaintiffs to abandon all claims save for allegations that a
2002 government announcement of contamination levels caused a drop in property values. The plaintiffs had filed some evidence to support this theory.
In Ernewein v. General Motors of Canada Ltd. 2005 BCCA 540, the Court of Appeal overturned certification of a proposed class action over the dangers of side saddle gas tanks. The main flaw was the lack of proper evidence that the common issues existed. The court stated: "[No] proper basis was advanced for the proposition that the location of fuel tanks outside the rails of the subject vehicles raised a question common to all the plaintiffs, the resolution of which question would significantly advance the litigation.
Rather, the only evidence is that of the defendants' expert, Mr. Sinke, to the effect that because the C/K pick-ups between 1973 and 1991 incorporated "a number of unique fuel system designs", one cannot "generalize on how such vehicles will perform in particular crashes beyond stating that all the designs are reasonably safe and meet all applicable federal safety standards."" The Plaintiffs had attached to a lawyer's affidavit a report on the issue from the US HTSA. However, the court found that this was not proper evidence.
McComber v. Glaxosmithskline, 2005 QJ 16109 and Alves v. My Travel Affiliates Inc., 2005 QJ 16108: Tony Merchant's firm had filed parallel class actions in Saskatchewan, Ontario and Quebec, all of which sought national class status. The defendants brought applications to strike in Quebec on the basis that this was an abuse of process and that Quebec was not the convenient forum.
The defendants in the Glaxosmithskline Paxil action noted that their only conduct in Quebec was selling the product. The court declined to grant the order to strike noting that there was no assurance that Ontario would certify the case, or that the Ontario court would agree to include Quebecers in the class. However, the court did stay the action pending the hearing of the Ontario certification motion. Quaere whether the Ontario court would have stood down to the Quebec court had the positions been reversed?
Interestingly, in the My Travel Affiliates class action, the court found that Quebec was not the proper jurisdiction given the lack of Quebec contacts, and granted the motion to dismiss. In this case, the evidence was that the defendants had absolutely no operations in Quebec.
In Markson v. MNBA Canada, [2005] O.J. No. 4625, the Divisional Court declined to overturn a lower court decision refusing certification of a criminal interest rate case. The court agreed that there were no proper common issues given the need to individually assess the voluntary nature and timing of each credit card cash advance in order to determine liability.
In Ragoonanan v. Imperial Tobacco Canada Ltd., [2005] O.J. No. 4697, the court refused certification of this long running effort regarding the alleged failure of the defendant to produce fire safe cigarettes. The court made some interesting comments on whether a class can be "over inclusive or under inclusive".
The court suggested that defendants have been reading the Supreme Court of Canada's passage in Hollick overly restrictively. The court stated: "I understand that passage to accept a concept of over-inclusiveness confined to cases where more narrow class definitions would be possible without arbitrarily excluding persons who share the same interest in the resolution of the common issues. I do not understand it to imply that a plaintiff cannot choose - arbitrarily or otherwise - the persons whom he, or she, wishes to represent, or that the only class proceedings permissible are those where the class contains everyone with the same interest. Rather than supporting either of the suggested rules of class definition, it seems to me that the Chief Justice was recognising that an "over-inclusive" class contemplated by the first of those rules is permitted if a more narrow definition would arbitrarily exclude persons whose claims the plaintiff wishes to enforce. A class may be over-inclusive if necessary but not necessarily over-inclusive."
Mr. Justice Cullity also discussed the tension between the rule against over-inclusiveness and the rule against merits based class definitions
stating: "The greater the attempt to avoid over-inclusiveness, the more likely it will be the definition will be unacceptably merits-based - and vice versa."
The court indicated dissatisfaction with the prior binding case law against merits-based definitions stating: "If the authorities allowed it, I would be inclined to accept merits-based criteria that would not create unfairness to a defendant in subsequent proceedings and, in cases like this and Nixon v.
Canada, leave the significance of the existence of the "merits-based"
criteria to be considered as part of the enquiry into whether resolution of the common issues would sufficiently advance the litigation".
The court rejected on proposed solution to this problem adopted by some courts in restricting the class to those who "claim to" have suffered damages. The court held that this was too uncertain and subjective.
At the end of the day, the court concluded that there was simply no class definition possible that would meet the conflicting tests imposed upon him, and rejected certification outright. An appeal is likely inevitable given the court's expression of dissatisfaction with the state of the law.
The court continued on to review the balance of the certification requirements. On the common issues, the court made an interesting finding with respect to a common issue that asked "whether it is appropriate to determine the degree of the defendant's contributory negligence on a class-wide basis in accordance with section 4 of the Negligence Act of Ontario (and similar legislation in other provinces)". The court held that this improperly required the trial court to decide whether the issue was in fact common. That task was reserved to the judge hearing the certification motion.
The court also concluded that there were too many individual issues to make a class proceeding the preferable procedure.
In the earlier decision Dumoulin v. Ontario, [2005] O.J. No. 3961, a proposed mould class action, Mr. Justice Cullity began his review of the "class overinclusiveness" problem stating: "The often-quoted statement of the Chief Justice that success for one must mean success for all referred to success on common issues and not to success in the litigation. If, however, it is clear on the evidence presented on the motion that some members of the class have no possible claims, it will, prima facie, be too broad. Even then it would not, I think, follow necessarily that it would be unacceptable if it could not be defined more narrowly without arbitrarily excluding persons with claims similar to those asserted on behalf of class members. The requirement that there must be a rational connection between the class definition and the common issues will often - but, I think, not always - be sufficient to exclude persons with no possible claims."
The court held that the plaintiffs revised definition met this requirement, being "all persons whom were, by reason of their employment, vocation or compulsion of law, remained within the court house for a cumulative period of 50 hours between the period January 1, 1995 and June 30, 2000"
The court also reviewed the "underinclusiveness" point as well stating: "I see no justification for the proposition that no class proceeding can be certified unless it includes all persons with similar claims against the defendants. I know no provision of the CPA, or policy, that would suggest that plaintiffs, in consultation with their counsel, are not entitled to choose the members of the class to be represented in the proceedings by reference, for example, to the geographical area, city or province in which the plaintiffs reside. In my view, the notion that certification must be denied because a manageable, rather than a possibly unmanageable, class has been chosen - or because an attempt has been made to exclude persons exposed to limitations defences - is similarly untenable. Persons excluded from the class will simply be unaffected by the litigation. It would I believe be an even greater distortion of the words of McLachlin C.J. in Hollick to interpret them in the manner supported by defendant's counsel. The Chief Justice's reference to an arbitrary exclusion of persons who share the same interest in the resolution of the common issues was provided to explain when a class definition would be "unnecessarily broad" - namely, when it could be defined more narrowly without resulting in such exclusion. It was, in other words, intended to indicate when a class would be unacceptably over-inclusive - and not to state a requirement that a class must not be under-inclusive. I do not believe the passage is authority that class proceedings are available only when a plaintiff is prepared to sue on behalf of all persons who have the same interest in the common issues."
The court was not satisfied with the litigation plan however, and adjourned the hearing to allow more evidence on this point.
In Endean v. CRC, 2005 BCSC 1396, Camp Fiorante Matthews requested a rate increase for their work done for the committee implementing the Hepatitis C settlement. The court refused, noting that it had to apply the law in the province as to the reasonableness of the rates (the evidence was that Ontario counsel were charging much higher rates), although some level of national consistency was desirable. The court also noted that "It is readily apparent that many of the responsibilities conferred upon the Joint Committee are similar to those assumed by a board of directors governing the affairs of a society or corporation, while others contemplate the provision of legal services as is the case, for example, in relation to the development of protocols consistent with the terms of the Settlement Agreement and the presentation of applications for consideration by the courts involved in overseeing the enforcement and administration of the Settlement Agreement. With respect, I am not persuaded that the value of the administrative services warrants fees computed by reference to the hourly rate a solicitor or counsel charges to clients in the course of a retainer to provide legal services".
In Boucher v. The Public Service Alliance of Canada, [2005] O.J. No. 4682 the court considered the appropriate costs award for a failed certification motion. The court found that there was no reason to depart from the usual rules, and awarded $23,073.21 to the successful defendants.
In Ontario Public Service Employees Union v. Ontario, [2005] O.J. No. 3588, the court awarded costs to the successful plaintiffs on a certification motion of $45,000.00 for fees plus disbursements and G.S.T. as applicable.
Some deduction was made for the fact that 5 of the 7 causes of action did not survive the "cause of action" requirement.
A proposed constitutional case against the federal government for allowing water fluorination has been struck: Millership v. Canada, 2005 FCJ 1788.
The Supreme Court of Canada has denied leave to appeal certification in relation to the Newfoundland Baycol case.
A group of Outremont residents living close to a noisy rail yard can resume their class-action suit against the companies that operate the train facility, the Quebec Court of Appeal has ruled. This decision overrules a decision held last year by the Quebec Superior Court, which deemed the residents' case unfounded. About 300 residents sued CP Rail and Genesse Rail for damages because of noise: Paquin c. Compagnie de chemin de fer Canadien Pacifique, 2005 QCCA 1109.
The Saskatchewan Court of Appeal has granted leave to appeal the decision refusing certification of farmers' proposed class action complaining about dispersion of genetically modified seeds: 2005 SKCA 105.
In Ruddell v. BC Rail, 2005 BCSC 1504, the court certified a surplus division class action. The court found that certification was preferable to arbitration stating: "A class proceeding is structured to deal efficiently with large numbers of claimants in a certain and efficient manner.
Arbitration was not designed to respond to multi-claimant proceedings and therefore would require constant procedural modification to meet the needs of the parties. A class proceeding would save class members from the running of limitation periods. Arbitration cannot provide that protection."
A class action regarding the obligation of the Federal Govt to offset shareholder loans against s.15 shareholder benefits survived summary challenge. The court did agree to set down a preliminary point of law:
Roitman v. Canada, 2005 FC 1385.
In Sander Holdings Ltd. v. Canada (Minister of Agriculture), 2005 F.C. 1402 the defendants sought to challenge certain affidavits filed by the plaintiffs on certification. The court stating that they would not be struck simply because they were on information and belief, since a certification application is interlocutory.
In Smith v. Moneymart, 2005 ACWSJ LEXIS 6772, the Ontario Court of Appeal confirmed that the arbitration clause would not prevent the plaintiff from moving for certification.
The Manitoba Court of Appeal has held that the court should not have granted summary judgment in favour of the proposed class in Jane Doe 1 v. Manitoba,
2005 MBCA 109. The Plaintiffs case involves a constitutional challenge to the abortion funding provisions in Manitoba.
The court rejected a jurisdictional challenge brought by the Provincial government in Association pour l'accès à l'avortement c. Québec (Procureur
général) [2005] J.Q. no 15550. The certified case involves an allegation that the Province should have paid for all abortions. The Province had suggested that this dispute should have been brought before the Administrative Tribunal of Quebec.
In Tihomirovs v. Canada (Minister of Citizenship and Immigration), 2005 FCA 308, the court held that the desire to seek certification of class action was a relevant consideration on a motion to convert a judicial review into action under s.18.4(2) of Federal Courts Act (Can.). The court noted that there was no ability to certify judicial review proceedings under the federal rules. The court also recommended that a conversion application occur together with the motion for certification itself. The case was remitted back to the trial court.
In Antoniali v. Coquitlam (City), [2005] B.C.J. No. 1999, the court certified a class action against the municipality alleging that there was not proper authority for certain permit fees.
Retail giant Wal-Mart succeeded in beating a class-action lawsuit filed by an employee who says he lost his livelihood when the chain closed its Saguenay store. Wal-Mart's successfully argued that the case was more appropriate for the Quebec Labour Relations Board: Pednault v. Compagnie Wal-Mart du Canada, 2005 QJ 16222.
The Quebec court stayed the proposed class action in Gauthier c. Général Motors of Canada ltée [2005 ] J.Q. No 15986 because of overlap with another filed class proceeding.
In Allard v. Syndicat professionnel des infirmières et infirmi, [2005] J.Q.
no 15662, the class action was brought to seek a refund of union dues paid during the time when the class was taking steps to become part of a new union. The case was rejected on the basis that it did not disclose a valid cause of action.
In Tardif v. Hyundai, the Quebec Court of Appeal upheld a lower court decision only allowing the class to examine one corporate representative of the defendant: Tardif c. Hyundai Motor America, [2005] J.Q. no 15573.
The plaintiffs applied to convert an action into a class proceeding.
However, the court noted that the matter had been ongoing for 5 years, including before various tribunals. The court concluded that to allow the application would merely complicate and delay the litigation even more:
Dorus v. Teck Corp., 2005 BCSC 886.
In Gray v. Ontario, [2005] O.J. No. 4221, the proposed class sought an interim injunction preventing Her Majesty the Queen in Right of the Province of Ontario and the personal defendants from transferring any residents of the RRC to any other facility without their consent, or the consent of their guardians, and an interim injunction preventing the Province from closing the RRC until all issues are finally decided in the action. The application was refused.
The court made various decisions regarding the proper nature of the pleadings in the proposed BSE class action: Sauer v. Canada, 2005 OJ 4237.
In this class proceeding by members of the Canadian Air Line Pilots Association (CALPA) who were employed by Air Ontario against all members who were Air Canada pilots, a third party claim consisted of a group of defendants who asserted that if they were liable to the class then they were entitled to be indemnified by CALPA. The trial court struck the third party action, but the Court of Appeal said that it should be considered at trial:
Berry v. Pulley, 2005 OJ 4113.
A Superior Court judge in Quebec ruled that a proposed class-action suit can go ahead seeking to force better services for dyslexic children: Desgagne v.
Commision scolaire des Grandes-Seigneuries, [2005] J.Q. no 12449.
In Billette v. Toyota, the court certified an auto lease financing charge class action against multiple defendants, notwithstanding that the named representative had only dealt with one of them.
In Option consommateurs v. Lavergne, the court certified a class action against personal lines carriers for coverage with respect to "extra living expenses" incurred during the ice storm in January 1998. Julien J.'s judgment follows the reasoning of Delorme J. in the Billette case and holds that the representative plaintiff does not have to allege a "lien de droit"
or legal relationship with all the defendants. The case was certified.
In Ludwig v. Hurti-Pac, the Divisional Court confirmed that a plaintiff must seek leave to appeal from an order certifying an action.
In Setterington v. Merck Frosst Canada Ltd., [2005] O.J. No. 3818, the court held that the application for carriage was premature. The court also noted that defendants are entitled to participate in carriage motions.
In Dahl v. Royal Bank of Canada, [2005] B.C.J. No. 1945, the court allowed summary judgment prior to certification, and then dismissed the claim. One of the rep plaintiffs was also allowed to escape without costs.
In Lewis v. Cantertrot Investments Ltd., [2005] O.J. No. 3535, the plaintiffs sought to represent class consisting of purchasers of residential condominium units. The plaintiffs claimed damages for alleged misrepresentations concerning monthly assessments and maintenance fees payable. The court found that the requirements were generally met, but required further submissions on plaintiffs' proposed procedure for resolving individual issues was required before determining the certification question.
Interestingly, the court was prepared to certify a "reasonable reliance"
question as a common issue, to wit: "Absent any other material representations, or material facts within the knowledge of a Class member, would it have been reasonable for such member to have relied on such misrepresentations in making the decision to purchase a unit?"
In Gorecki v. Canada, [2005] O.J. No. 3465, the court held that the Ontario Superior court did have jurisdiction over the interest claim in a government pension claim. However, as a result, those paragraphs alleging breach of fiduciary duty, breach of express, implied or resulting trust and unjust enrichment are struck pursuant to Rule 21.01(1)(b) of the Rules of Civil Procedure.
In Young c. Noranda inc., [2005] J.Q. no 16113, the defendant applied to cross-examine the proposed representative plaintiff. The court granted the motion.
In Option consommateurs c. Novopharm Ltd., [2005] J.Q. no 12896, the court considered a motion to amend the class motion filed at the close of the hearing of the certification motion. One of the changes was to substitute a new representative plaintiff, as it had become clear that there was a flaw with the cause of action of the proposed member. The court noted that the motion was coming very late, but allowed it noting the need to consider the interests of the absent class members. The court noted that part of the problem was that the lack of pre-certification exchange of materials means that the parties are not advised of the arguments coming from the other side, but that this was the legislator's choice.
In the certified class action Hamel v. Ste Anne de Beaupre, [ 2004 ] J.Q. No
8209 (involving allegations of copper contamination of the town water supply), the plaintiff applied to sever certain issues for earlier trial, leaving damages to a later stage. The court rejected the application, stating that cost savings alone was not sufficient to support such an order:
2005 QJ 14313.
The Quebec court rejected a class action challenging mandatory tax deductions on the basis that the case did not disclose a proper cause of action. Harvey v. Quebec, 2005 QJ 14687.
In Quebec's gambling addiction class action, following on an earlier order allowing the defendants to examine 20 class members, the court selected the members from a list provided by class counsel: Brochu v. La Societe des Loteries, 2005 QJ 12606.
In Momi v. Canada, 2005 FC 1484, the proposed class sought to challenge certain immigration fees.
In Klein v. American Medical Systems, 2005 OJ 4910, the plaintiff claimed damages arising from the surgical insertion into her/their bodies of a silicone-coated sling/mesh with "InhibiZone" device.
In both cases, the federal government applied to strike the action. In both cases, the court allowed the action to proceed.
Similarly, a motion for partial summary judgment was dismissed in the proposed class action D.L.T.E. Holdings Ltd. v. Horseshoe Resort Corp., [2005] O.J. No. 4942.
In Alberta (Director of Child Welfare) v. C.H.S., 2005 ABQB 695, the Court confirmed that a defendant in a class action is entitled to review its own files on proposed class members in order to prepare for certification, rejecting the plaintiff's argument that privacy legislation prevented such review.
The polyester price fixing case has settled in Ontario and Quebec, and is pending in BC: Fondation Campus Notre-Dame-de-Foy c. Nan Ya Plastics Corp., [2005] J.Q. no. 14531 and [2005] J.Q. no 14532.
The Behr wood stain settlement was approved in Ontario. The writer was counsel for the class. For more information see
The Ontario Maytag approval is now reported: see 2005 OJ 3810.
The approval of $3 million in counsel fees in the discontinued BCI class action is now reported at 2005 OJ 3935.
The British Columbia Supreme Court approved the settlement of a class action lawsuit for Canadian women who had faulty silicone gel breast implants.
Bristol-Myers Squibb Company, Baxter Healthcare and 3M agreed to pay Canadian women who received implants, except those who reside in Ontario and Quebec, up to $4.3 million dollars plus legal costs. The deadline for opting in or out of the settlement is December 2.
In Option Consommateurs c. Assurances générales des Caisses, [2005] J.Q. no 13243, the court approved settlement of an "original v. used parts" class action against an array of insurers.
There was a settlement approval hearing on October 28, 2005 in a chlamydia testing class action against medical technology company Becton Dickinson and Company. Hanson Wirsig Matheos is counsel for the class. Judgment was reserved.

A class action lawsuit filed by investors alleges that Biovail Corp. made a "series of false and materially misleading statements," regarding its financial position in 2003 and 2004.
Camp Fiorante Matthews and Sutts Strosberg have filed a second class action regarding the Air France crash, although press reports indicate that the two sets of counsel have come to an agreement to work the case together.
Press reports indicate that a lawyer has filed a class action suit against the Ontario government for its alleged practice of jailing mentally ill people charged with crimes until they can undergo a mental health assessment.
A class action has been launched to halt the removal of residents from the Huronia Regional Centre.
A class action lawsuit was initiated on behalf of the victims of an outbreak of legionnaires' disease at the Seven Oaks Home for the Aged in Scarborough.
The law office of Michael J. Munro commenced a class action lawsuit against Bell Canada Inc., BCE Inc., and Bell Mobility. The lawsuit concerns Bell's general representations to its customers and Bell's overall conduct during and following a service technician labour dispute in 2005. It is alleged that despite Bell's knowledge of severe and widespread installation delays, there was no warning of the expected delays on the Bell web-site, nor did Bell circulate any form of notice of installation delays to its wireline customers with their monthly accounts.
A group of Peterborough seniors have commenced a class action to recover pension money from the Participating Co-operatives of Ontario Trustee Pension Plan. Koskie Minsky acts for the proposed class.
Lawyer Paul Miller has launched another multi-million dollar suit on behalf of families of crew members aboard a British cargo jet that crashed in Canada last year.
Tony Merchant has launched a class-action lawsuit in the Federal Court of Canada on behalf of Metis and non-status native people who attended residential schools in Canada in Ontario, Saskatchewan, and Quebec.
A lawsuit has been filed in B-C Supreme Court claiming General Motors is using a faulty part in the parking brakes of several vehicles.
Poyner Baxter is trying to certify class action lawsuits against Sony and Toshiba over burn-in problems on big-screen TV sets.
Thibeault v. Cash Advantage Services: New criminal interest rate filing.
Grant v. BCTF: Class action regarding illegal strike.
Nordick v. Department of National Defence: Zolonite - Merchant is counsel for the class.
Johnston v. WCB: Challenge to WCB decision making process.
A class action has been commenced by Cantley residents living near a building materials dump that smouldered for months last spring while releasing toxic hydrogen sulphide gas into the air. The action has been commenced against the dump owners, the municipality and the Quebec government.
A former student of an elite Montreal school has filed a $15-million lawsuit alleging that Selwyn House School was negligent in allowing a teacher to sexually molest him and other boys in the 1970s and 1980s.
A class action regarding the calculation of parking charges on electronic meters has been commenced against the City of Montreal.
Nordick v. Department of National Defence: Zolonite. Merchant is counsel for the class.
Nordick v. Department of National Defence: Zolonite. Merchant is counsel for the class.
Nordick v. Department of National Defence: Zolonite. Merchant is counsel for the class.
A Halifax woman who paid more than $150,000 over three years for her husband's care and boarding in nursing homes filed a class action lawsuit against the province of Nova Scotia. It alleges the practice of charging nursing home residents for their medical care and the forcible division of a married couple's assets to pay for it, violate provincial and federal laws and the Canadian Charter of Rights and Freedoms.