1. I had to survive 7 months of mat leave without my right hand woman (Welcome Back Lu!)

2. I was supervising construction (i.e. signing cheques) for our new cottage in New Brunswick, which is now complete, save for a permit violation associated with not having installed a $5000 permanent fence around a 15ftX7ftX4ft deep blow up pool. The "Beauty Pageant" to act as my counsel in this very small (my wife and I) class action against "The Gestapo at the Bathurst New Brunswick Permit Department" will begin shortly.

As always, you will get quicker shorter blasts by following us on Twitter: http://twitter.com/#!/search/wbranch99 To sign up for the longer email dissertations, just drop me a note at wbranch@branmac.com.

SCC ON CLASS ACTIONS

Elder Advocates v. Alberta, 2011 SCC 24: Court granted Alberta's appeal in part in this nursing home fee class action. Writer acted for Alberta on the appeal. Court struck the fiduciary duty, negligence and bad faith claims. Unjust enrichment and Charter claims survived. Beyond substantial commentary on the scope of crown liability, the court did make one comment of note for class action practitioners. The court stated:

"[99] Although the claims for unjust enrichment and breach of s. 15(1) of the Charter survive, Alberta nevertheless argues that the action should be decertified because a class proceeding is not the preferable procedure. Alberta submits that an individualized cost review would have to be conducted for each proposed class member, to determine whether particular charges for individual residents of specific LTCFs did not reflect the actual cost of accommodation and meals. Alberta argues that the charges will vary by time, regions, operator and resident, and — on the plaintiffs’ theory — there is no wrong done unless it can be shown that the costs of accommodation and meals for a particular resident did not reflect the actual costs of providing those services.

[100] I would reject Alberta’s argument: The common questions certified by the judge at first instance ask whether the accommodation charges, as a practice carried out on a class-wide basis, resulted in unjust enrichment. The claim as pleaded does not require an individual assessment of the nexus between specific accommodation and meal charges in order to ground any potential liability to the class. The Class Proceedings Act provides sufficient remedial flexibility — by means of the aggregate assessment of damages (ss. 30-33) — to address any potential difficulties in assessing, awarding, and distributing damages."

Withler v. Canada, 2011 SCC 12: SCC dismissed age discrimination case in this certified class action. Writer was co-counsel for the class, although Joe Arvay made our brilliant, but sadly doomed, merits arguments at the SCC. The SCC took steps to end the "Hunt for Comparator Group" game in section 15 litigation.

Sharbern Holding Inc. v. Vancouver Airport Centre Ltd., 2011 SCC 23: Court confirmed the dismissal of the class claim in this certified real estate misrepresentation action. The court commented on the applicability of costs notwithstanding that the case came from a "no costs" jurisdiction: "Section 37 of the British Columbia Class Proceedings Act establishes a no costs regime in the Trial Court and the Court of Appeal. However, that statute does not apply to this Court. The respondents are entitled to their costs in this Court."

In Bou Malhab v. Diffusion Métromédia CMR inc., 2011 SCC 9, the Supreme Court of Canada affirmed that a member of a group that has been the target of offensive comments must have sustained personal injury to ground a defamation claim. The Court held that an ordinary person would not believe that offensive comments aired over the radio damaged the reputation of each member of the group. In the absence of proof of individually sustained injuries, a class action will not provide remedy for defamation sustained by a group as a group.

CARRIAGE

Schmidt c. Depuy International Ltd., 2011 QCCS 1533: "First to file" carriage rule now hopefully finally dead in Quebec: http://bit.ly/jglngw Quebec Superior Court says that true test is the best interest of the class. The best interest was served here with a Quebec plaintiff representing Quebec residents in this hip implant case, rather than a Saskatchewan resident. Court also emphasized that the need for a carriage determination only applies where there is strict overlap.

CERTIFICATION

Wins to losses at 27:9. Is it time for defendants to be more tactical and focused about which cases to oppose and on what grounds?

Granted:

Jellema v. American Bullion Minerals Ltd., 2010 BCCA 495: Court overturns decision refusing to certify oppression class actions in BC. Lower court had said oppression actions were already representative. BCCA disagrees. Writer was counsel for the class on the appeal.

Riazi v. Vancouver School District No. 39, 2011 BCSC 407: School fee class action certified with reduced class scope. Writer was counsel for the defendant.

Rowlands v. Durham Region Health, 2011 ONSC 719: Privacy class action certified on consent save as to certain procedural issues. Writer is co-counsel for the defendant municipality.

Thorpe v. Honda Canada Inc., 2011 SKQB 72: Premature tire wear action certified. The court rejected a constitutional challenge to Saskatchewan's national opt out regime. The court stated:

"Honda Canada’s argument that multi‑jurisdictional certification is not constitutionally possible because the provincial legislation upon which such power is based is ultra vires is misconceived and based upon fundamentally flawed reasoning. This is because the judicial jurisdiction of a superior provincial court is not rooted in provincial legislation, which is governed by the territorially limited powers bestowed by s. 92 of the Constitution Act, 1867; rather, this Court derives its power from plenary authority of the courts which, unlike the authority of legislatures, is continued, not created, by the Constitution Act, 1867. relying on the overarching authority conferred upon superior courts by virtue of Section 129 of the Constitution Act, 1867.... Therefore, the “jurisdiction” to certify multi‑jurisdictional class actions does not come from the Act but from the power existing in superior courts at the time of Confederation (or in the case of Saskatchewan, at the time it became a province and formally joined Confederation).Section 6.1 of the Act did nothing to add or extend provincial powers. The power to do so already existed."

The court also rejected the jurisdictional-based argument stating:

"The difficult problem is to balance the utilitarian virtues of permitting national class actions in a federation that has different provinces exercising territorial legislative jurisdiction with the “real and substantial connection test” endorsed by the Supreme Court of Canada in Morguard Investments Ltd. v. De Savoye... There is no doubt that conceptual difficulties are encountered when applying these principles to the special features of class action proceedings. This is especially so where, as here, the legislation provides that the court can bind non‑resident class members who do not “opt out” of the proceeding. The question central to the determination is whether a real and substantial connection exists such that this Court has jurisdiction to bind non‑resident class members. The issue to be decided is especially acute where, as here, the only connecting factor between the non‑resident class members and Saskatchewan is that they have claims against the same defendants that raise the same common issues as the Saskatchewan class members over whom this Court has jurisdiction. The path to jurisdiction by way of the “real and substantial connection” factor was carefully set forth by Cumming J. in Wilson v. Servier Canada Inc., supra. In circumstances undistinguishable from the present case, the Court found that once a real and substantial connection is established through the resident representative plaintiff it is the common issues themselves which provide the necessary link to justify taking jurisdiction over non‑resident class members... This Court has unquestionable jurisdiction to adjudicate upon the issues as between the representative plaintiff and Honda Canada by virtue of the fact that the representative plaintiff resides in this province and her cause of action arose here. This accords with the principles set forth in Morguard Investments Ltd., supra, which are now substantially codified in the CJPTA. Given that this Court has jurisdiction over the litigation, this Court can as well, assume jurisdiction over the other Canadian non‑resident class members by applying the Act and the CJPTA and by relying upon the overreaching authority conferred upon superior courts by virtue of s. 129 of the Constitution Act, 1867. In other words, this Court does have jurisdiction simpliciter to certify a national class action. Other considerations, not applicable in the circumstances of this case, may come into play as to whether the Court should assume jurisdiction if there is a similar class action commenced elsewhere (s. 6(2)) or if, for some other reason the Court determines that it is more appropriate for the class action to proceed in another jurisdiction (s. 6.1). The issue of forum non conveniens or of similar conflicting class actions in other jurisdictions is not at issue in this case."

The court approved a "people who claim to have suffered damage" definition. The court stated:

"The use of “claims made” limiters has not been universally accepted. Some courts have characterized them as verging into an impermissible “merits‑based” definition. I do not share this view. If membership in a class is defined as those who make claims in respect of a particular event or alleged wrong, no determination of the merits of any particular claim is necessary prior to making a determination as to whether the claimant is a member of the class. Similarly, if a person’s claim fails, it does not eliminate the person from the class, rather it demarks the claimant as a class member whose claim has been determined through a binding process. It is not the purpose of class proceedings, or class definitions, to bind only successful claimants. All those who may bring claims in respect of a particular event or allegation should be bound if possible, subject of course to the legislated exception of those putative class members who exercise the right to opt out of the class proceeding. Another criticism of a “claims made” limiter on class description is that it does not provide the necessary certainty of identifying those who are bound by the class definition. In my view, this criticism is founded on too narrow an interpretation of both the class definition and the functions of a court supervising a class proceeding. Defining a class as those persons “who claim” includes those persons who may come forward in the future to make a claim. A defendant and, for that matter, the court, will be in a position to ascertain whether a particular person is included in the class and bound by the resolution of the common issues. In this respect, it is trite that class members need not be identified individually at the time the class is certified. Accordingly, utilizing a “claims made” in the appropriate case leaves the defendant in no different position vis à vis knowledge of the class membership than would be otherwise the case. As for the potential class members, the court can ensure that the notice adequately conveys the effect of the class definition and the fact that claims in the future may be barred as a result of the resolution of the proceeding. Although this approach is subject to the criticism that such a “claims based” definition is ambiguous in that the definition does not specify when the claim must be made, Winkler J. noted that this shortcoming could be mitigated by the court ensuring that the notice to potential class members could convey the message that claims made in the future may be barred as a result of the resolution of the proceeding."

The court rejected the preferability of Honda's in house complaints departments stating: "I am not convinced that the actions of Honda Canada, albeit laudable, are such so as to constitute a procedure preferable to a class action. It is unrealistic to expect, in these circumstances, that Honda Canada’s voluntary customer service program would provide fair and appropriate redress to aggrieved class members. What happens if Honda Canada simply refuses to reasonably deal with a legitimate complaint from a putative class member?"

578115 Ontario Inc. v. Sears Canada Inc., 2010 ONSC 4571: Franchise class action certified. The court was prepared to certify the “good faith” common issue, inter alia, stating: |Depending on the nature of the decision of the common issues judge, it may or may not be necessary to engage in further individual inquiries. For example, if the common issues judge decided that the duty of good faith and fair dealing had been met as a result of the language of the franchise agreement itself, or as a result of some other document that was provided to all franchisees, the issue could be determined without individual inquiry. If, on the other hand, the common issues judge were to find that the duty had not been met in that fashion, but that is may have been met in relation to specific franchisees (as Sears appears to suggest on this motion), then trials of appropriate individual issues could be ordered."

The court also certified damages, including punitive damages, as a common issue

A breach of contract case in connection with changes to employees’ compensation package was certified in Somerville v. Catalyst Paper Corp., 2011 BCSC 331. Plaintiff removed class members who had executed releases. The court rejected certain common issues stating "[T]o the extent that the plaintiff seeks guidance on general legal principles applicable to this case, such issues will not be certified for the trial of common issues.

Larose v. Banque Nationale du Canada, 2010 QCCS 5385: Privacy class action certified.

Martin v. Société TELUS Communications, 2010 QCCA 2376: Text messaging case certified.

Option Consommateurs v. Brick Warehouse, 2011 QCCS 569: Credit financing case certified.

Graham v. Imperial Parking Canada Corp., 2010 ONSC 4982, leave to appeal dismissed 2011 ONSC 991: Parking penalty case certified, but on extremely limited basis.

Slark (Litigation Guardian of) v. Ontario, 2010 ONSC 1726, leave to appeal denied 2010 ONSC 6131: Class action certified regarding conditions at Huronia mental health facility.

Wright v. United Parcel Service Canada Ltd., 2011 ONSC 5044: UPS border fee class action certified. Court found that rep was still appropriate notwithstanding that the defendant had paid some money back, finding that it was not clear that it was tied to the charge challenged, and there remained an ability under the relevant Act to seek the refund of the entire amount paid and not just the challenged charge. The court in Wright distinguished the claims brought in that case from two similar cases in B.C. where certification was not granted: Blackman v. Fedex Trade Networks Transport & Brokerage (Canada), Inc., 2009 BCSC 201 and MacFarlane v. United Parcel Service Canada Ltd., 2009 BCSC 740. Wright was distinguished from the two B.C. cases on the basis that there were significant differences in the B.C. and Ontario consumer protection legislation, the claims advanced in Blackman and Fedex were based on a different and narrow legal theory, and there was good reason to doubt the correctness of the B.C. decisions in light of the Supreme Court’s holding in Seidel v. Telus Communications Inc., 2011 SCC 15 that the B.C. Business Practices and Consumer Protection Act should be interpreted generously in favour of consumers.

Conseil pour la protection des malades v. CHSLD Manoir Trinité, 2011 QCCS 607: Laundry fee class action certified.

ALS Society of Essex (County) v. Windsor (City), 2011 ONSC 91, leave to appeal granted 2011 ONSC 4327: Municipal fee class action certified.

Dobbie v. Arctic Glacier Income Fund, 2011 ONSC 25: Secondary market securities cases certified. Coulson did not allow a national class however. Dobbie allowed a national class but required that the local securities acts be plead.

Toronto Community Housing Corp. v. Thyssenkrupp Elevator (Canada) Ltd. 2011 ONSC 4914: Class action certified in relation to costs incurred due to provincial recall of safety product on elevators. The court certified a damage common issue as "Is the class entitled to damages?" stating "226 In summary, there is ample evidence that the plaintiffs and class have incurred damages. Assuming liability, proving entitlement (i.e. that the class member incurred the expense) will require an individual inquiry, but this can be easily managed in the claims administration process." The court also certified the question "What is the quantum of damages?" stating "228 I have reviewed the evidence about the quantum of damages. While quantification of each damage claim will be individual, it can be easily managed through the claims administration process. Records will document what the class member paid to replace the sheave jammer. As a result, the damages can be readily identified." The court also certified the question of whether the doctrine of betterment applied. The court declined to exclude subrogated claims brought by the former Ontario New Home Warranty entity stating "270 First, I reject the defence position that Tarion must satisfy the s. 5 requirements. If this approach was followed, then every known putative class member claim would have to undergo the s. 5 analysis. 271 Tarion is not a proposed class member in this proceeding. Tarion is subrogated to all rights of recovery for certain proposed class members, and has the right to maintain an action in the name of Tarion or in the name or the claimant who was paid. The proposed class members are the condominium corporations that received payments from Tarion for the cost of the sheave jammer replacements. Therefore, the defendants' argument that Tarion cannot be a class member because it does not own and has never owned an elevator is irrelevant."

The court rejected a proposed arbitration defence on the basis that (1) the rep plaintiffs did not have arbitration agreements, (2) s.7 of the Arbitration Act did not apply as a result; (3) it would be inefficient to issue a partial stay, (4) the defendants evidence on the applicability of the arbitration agreements was incomplete.

In Trillium Motor World Inc. v. General Motors of Canada Ltd. 2011 ONSC 1300, the court certified a class action by franchisees claiming their automobile dealerships were improperly terminated in the wake of the global economic crisis in 2009. In doing so, the court noted the particular suitability of franchise claims to the class action mechanism: "[a] typical franchise relationship involves a common contract, a common ‘system’ and common treatment of franchisees by the franchisor. These attributes may give rise to common issues that can be decided without reference to the individual circumstances of the franchisee, thereby making the proceeding particularly suitable as a class action. The court must nevertheless ask whether there are indeed issues common to the claims of all class members and whether the resolution of those issues will sufficiently advance the action and avoid duplication of fact-finding and legal analysis, even though individual issues remain to be determined."

1250264 Ontario Inc. v. Pet Valu Canada Inc., 2011 ONSC 287. Franchise class action certified, limited to common issues involving volume rebates to franchisees.

Fischer v. IG Investment Management Ltd., 2011 ONSC 292: Court’s decision to deny certification in a securities case because of a prior settlement with the Ontario Securities Commission was overturned on appeal. The court noted that the class was pursuing amounts above and beyond the settlement achieved through the Ontario Securities Commission proceeding. The court stated (at para.39): "The plaintiffs had met the onus of showing some evidence that they had a claim for compensation beyond what they had already received through the OSC proceeding. Once it was established for purposes of the certification motion that the OSC process did not provide full compensation to the plaintiffs, the purpose of the OSC proceeding or the intention of OSC staff were wholly irrelevant to the inquiry before the motion judge. There was no basis upon which he could have or should have deferred to the OSC by refusing to “second-guess” the OSC decision approving the settlement. This is particularly the case since the OSC settlement specifically contemplated future civil actions flowing from the same conduct and specifically reserved the rights of individuals to pursue those claims notwithstanding the settlement." The court continued at para.49 " The motion judge further erred by applying the test for approval of a settlement in the context of a certification motion. Although the motion judge stated that he agreed with the plaintiffs that the preferable procedure test should not be converted into a settlement approval hearing, the analysis he then conducted was even more unfair to the plaintiffs than if he had actually undertaken a proper settlement approval process. In particular, he held that in considering preferable procedure and the issue of access to justice, the court should consider the criteria that it takes into account when it approves or refuses a settlement."

Blair v. Toronto Community Housing Corp. 2011 ONSC 4395: Court certifies fire damage class action in negligence and breach of contract against social housing provider despite compensation plan established by defendant.

On the suggestion that a multi-plaintiff action would work, the court stated: "TCHC submitted that given that many putative class members had actually retained Class Counsel for the purpose of advice about the Settlement Offer and for the purposes of a class proceeding, a multiple joinder of all of these clients would be the preferable procedure. I do not see how a joint retainer would be preferable procedure, and it strikes me from the defendant’s perspective it could not be preferable to a class action to advance its defence given that such a proceeding would provide no way to bind the hundreds of residents of the apartment building who did not sign retainers."

On the effect of the settlement program: "As a candidate for a preferable procedure, there were factors to commend TCHC’s Compensation Plan and to support it as a preferable procedure. First, the compensation under the Plan was being offered by an entity that, for practical purposes, is a public authority and not a for-profit enterprise protecting its bottom line. In other words, there was less concern that the defendant was attempting to secure cheap releases. Second, after the residents received legal advice, there was a very high take up rate for the Compensation Plan, which suggests that the amounts offered were fair. Third, the Compensation Plan closely resembles plans and administrative schemes that are the product of certified class actions that are settled. Fourth, the administrative scheme set out in Ms. Blair’s litigation plan is similar to the TCHC’s Compensation Plan. (If this class action settles, I will not be surprised if the settlement resembles TCHC’s Compensation Plan with adjustments for Ms. Blair’s proposal.) Fifth, it is a social good when a defendant promptly takes steps to remediate the injuries suffered by a mass harm with or without admitting that it was the wrongdoer. Initially, the fifth factor caused me the greatest concern because undervaluing voluntary compensation plans as a possible preferable procedure might send the message that a defendant should not bother promptly offering compensation since there will be no avoiding a class action. However, upon reflection, I came to the conclusion that this concern was misconceived and belied by the case at bar. It is to be recalled that the class definition respects the releases that have been obtained and that continue to be obtained. The Compensation Plan has had the effect of substantially reducing the class size, and this effect along with the ethical value of accepting responsibility when it is appropriate to do so, either as contrition or as commendable social responsibility, should be sufficient motivation for a party to make a prompt settlement offer with or without an admission of liability. TCHC’s Compensation Plan does not appear to have been motivated by a desire to avoid a class action, but, even if it was, its force was spent by the time of the certification motion. Certifying the action should not be taken as a message that defendants should not bother promptly with compensation or remediation for the harm that they may have caused."

Logan v. Dermatech, Intradermal Distribution Inc., 2011 BCSC 1097: Court granted certification for wrinkle-reducing injection action.

Gagnon v. Bell Mobilité, 2011 QCCS 187: Cell phone termination fee class action certified.

In Plaunt v. Renfrew Power Generation Inc, 2011 ONSC 4087, the plaintiffs sought the certification of a class action on behalf of property owners alleging that the defendant’s operation of a dam resulted in water encroachment on their property. The court certified a class proceeding on one common issue concerning the interpretation of the License of Occupation, leaving open the possibility that other common issues could be certified after the initial question was answered. The class was limited to current owners on the date the action was commenced and to any owners or former owners who obtained or retained an assignment of the cause of action as part of the purchase or sale of the property.

Kwicksutaineuk/Ah-Kwa-Mish First Nation v. British Columbia (Minister of Agriculture & Lands), 2010 BCSC 1699: Court certified action against the gov't for alleged treaty violations through the improper regulation of fish farms.

Biondi v. Syndicat des cols bleus regroupés de Montréal, 2010 QCCS 4073: Case certified. The court found causation could be considered collectively in connection with a union’s negligence in failing to de-ice city sidewalks. Stating that the rules of evidence are the same whether applied to individual suits or class proceedings (at para. 137), the court went on to infer from the evidence that if a member of the group fell during the class period, the cause would most likely be the lack of proper maintenance of the sidewalk.

Pollack v. Advanced Medical Optics Inc., 2011 ONSC 1966 (certification): Contact lens class action certified. Main issue was whether the action should be parked in favour of BC National opt-in class. It was the defendant who was making this suggestion. The court stated:

"I have also concluded that the action should not be stayed and that judicious case management, in a spirit of comity and collaboration with the management of the Chalmers class action, can ensure that the issues between the parties proceed to resolution in an efficient and fair manner... There is a superficial attractiveness to promoting judicial economy by “parking” this action pending the outcome of Chalmers. This is particularly the case in light of AMO’s concession that it will not re-litigate the liability findings made by the British Columbia Supreme Court. I have concluded, however, that it would not be just to stay this action, that it would not promote the fair and expeditious determination of all the issues between the parties and that judicial economy will in fact be promoted by allowing both actions to proceed, subject to judicious case management.

In coming to this conclusion, I have considered the following circumstances:

(a) The two proceedings are not identical – the classes are different. No person who is a class member in Chalmers can be a class member in this action and vice versa.

(b) Some of the common issues are different. There is, of course, no issue in this action under the British Columbia Business Practices and Consumer Protection Act and there is no issue of waiver of tort in Chalmers.

(c) The proceedings are at approximately the same early stage – both have been certified, but notice of certification has not yet been given and production and discovery have not taken place. This is not a case where the first action is so clearly advanced that the second action should be stayed. The fact that the proceedings are both in their initial stages will allow common production and discovery, thereby achieving efficiency and economy.

(d) Plaintiffs’ counsel in this action are part of a consortium of counsel who are collaborating in the prosecution of the various class actions and individual actions. AMO’s counsel in both actions is the same. This will facilitate cooperation and co-ordination between the two proceedings.

(e) Staying this proceeding will delay the resolution of claims and issues that are unique to this proceeding and will not be resolved in Chalmers...

(f) ... the simultaneous prosecution of class actions in British Columbia, [Québec] and Ontario has been very common in the past. In my experience, it is not unusual for there to be some measure of joint case management of such proceedings, with the sensible cooperation of counsel and, if appropriate, liaison between the case management judges.

(g) Allowing both actions to proceed in tandem will facilitate settlement.

There should be common production and discovery in both actions. I leave open the possibility that the parties may reach agreement on a single liability trial proceeding in one jurisdiction or the other. Failing that, the parties will be at liberty to move at a future date, after discoveries, that the trial of one action be stayed pending the resolution of the other action. It is not necessary to make the order at this time."

The court also declined to bifurcate the waiver of tort issues at this time. The court agreed to certify the punitive damages issue.

Steele v. Toyota Canada Inc., 2011 BCCA 98: Court overturned refusal to certify Toyota Access program class action.

Topacio v. Batac, 2011 ONSC 1008: Alleged Ponzi scheme class action certified. The court refused to allow certain defendants to also participate in the plaintiff class. The court allowed certification of a class action as against “corporate perpetrator” and “principal perpetrator” defendants in an alleged Ponzi scheme, while ordering individual actions to proceed as against “account manager” defendants in the same action, on the basis that no common issues could be certified against “account managers”. The court held that the “account manager” defendants would nevertheless be bound by the judgment on common issues. Topacia v. Batac, 2011 ONSC 2157: In supplementary reasons, the court clarified the parties against whom certification had issued, and how third party claims would be managed.

Refused:

Sun-Rype Products Ltd. v. Archer Daniels Midland Co., 2011 BCCA 187, and Pro-Sys Consultants Ltd. v. Microsoft Corp. 2011 BCCA 186, the British Columbia Court of Appeal set aside the certification of class actions by indirect purchasers against manufacturers allegedly involved in price-fixing. The majority held that, in these circumstances, indirect purchasers have no cause of action recognized in law. Noting that as there is no recognized defense of “passing on”, the majority found that indirect purchasers “who would seek to recover an overcharge that has been passed on are effectively claiming a loss that in law is not recognized.” In Sun-Rype, the direct purchaser aspect continues.

In Kafka v. Allstate Insurance Co. of Canada, 2011 ONSC 2305, the court refused to certify a proposed constructive dismissal class action brought in connection with defendant’s move to a new model of product distribution and agent compensation on the basis that the claim lacked the essential element of commonality.

Union des consommateurs et Raphaël v. Bell Canada, 2011 QCCS 1118: Court found that plaintiffs had not demonstrated prima facie that Bell users privacy was violated by Bell’s use of Deep Packet Inspection (“DPI”) technology. The court adopted the findings of the Privacy Commissioner that the DPI technology is used merely for internet traffic management, and not for inspection of the contents of the data (at paras. 55-64)

Tonnelier v. Québec (Procureure générale), 2010 QCCS 5111: breast cancer misdiagnosis action refused certification because the facts alleged did not have “colour of right”, as government was not responsible for the failures of hospitals.)

Union des consommateurs et Raphaël v. Bell Canada, 2011 QCCS 1118: Internet throttling class action refused certification because plaintiffs did not meet obligation to demonstrate colour of right with respect to allegations that Bell violated terms of internet service contract or plaintiffs’ privacy.

Assoc. des retraités de l’école Polytechnique v. Corp. de l’école Polytechnique, 2011 QCCS 2784. Applying the three-year prescription rule set out in Article 2925 of the Civil Code of Quebéc, the court dismissed a motion seeking authorization to institute a class action seeking to have amendments to a pension plan annulled. The court acknowledged that the plaintiff association had been aware of its right of action more than three years before the motion was filed.

K.(A.) v. Kativik School Board, 2009 QCCS 4152: In Kativik, the court refused to certify a sexual abuse case brought by former students in a small village in Nunavut. Reflecting on the need to weigh predominance in assessing the common issues requirement in the Code of Civil Procedure, Justice Cullen explained that the mere existence of any “identical, similar or related questions of law or fact” was not enough: “such questions must be sufficiently substantial compared to the outstanding individual questions that a class action would serve the ends of justice, its additional complexities and cost being offset by improved efficiency of process ” (at para. 37). While individual questions probably outnumbered common issues overall, Justice Cullen emphasized that the applicable test is “not mathematical” and “requires balancing the significance of the common issues in relation to individual ones” (at para. 38). Nevertheless the court refused to certify because, in the context of this case, it would not have been “difficult or impracticable” for the applicants to “identify alleged victims, to communicate with them and to seek their intent” (at para. 68).

Desgagné c. Québec (Ministre de l'Éducation, du Loisir & du Sport)2010 QCCS 4838: In this dyslexia class action, the court found that the civil claim was not adequately plead. The court also considered the proper end date of the class action. The court stated that in principle, a group should not include future members (para.54). The court selected the date notice issued as the appropriate end date.

Côté v. Montréal (Ville de), 2011 QCCS 440: Proposed environmental class action dismissed, as the case called for a review of Montreal's entire sewer system, which had too many variations in its management and construction.

NATIONAL CLASS ISSUES

See Thorpe and Pollack above.

Labrecque v. General Motors of Canada Ltd., 2011 QCCS 266: On application of the defendant, the Court granted suspension of certification in Quebec until similar case in Saskatchewan was decided. However, leave to appeal was granted at 2011 QCCA 617. The leave court noted that the suspension of the application for leave for such an extended period raised a novel issue.

Melley v. Toyota Canada Inc., 2011 QCCS 1229, the court declined to suspend proceedings in Quebec on the basis that, although lis pendens existed, the mere existence of similar actions in six other provinces was not an abuse of process, particularly at such an early stage in the proceedings. The decision was denied leave to appeal in 2011 QCCA 829.

Methinks the Quebec Court of Appeal better figure out where Quebec stands on this issue...

Berneche v. Ridley Inc, 2010 QCCS 6480: On consent, the Quebec court agrees to stand down their mad cow class action in favour of the Ontario case.

Duong v. Stork Craft Manufacturing Inc.2011 ONSC 2534: Court declines to order enforcement of alleged agreement by Merchant Law Group to discontinue Ontario claim out of concern that Ontario residents may lose their limitation period protection. Court found that there was an implied precondition that had not been met. The court stated: "I find that some time after November 1, 2010, the plaintiffs became aware of potential prejudice to Ontario class members because the limitation periods are a substantive issue governed by the law of Ontario. The limitation period for Ontario class members would not be suspended by commencing a class proceeding in British Columbia, as class proceeding legislation is only procedural. " The court noted the risk on limitation periods stating: "41 Stork Craft submitted that the Ontario class members would not suffer any prejudice related to limitation periods expiring if the discontinuance was approved without notice. They submitted that the limitation period was suspended from the date the class proceeding was commenced in Ontario, namely, on November 25, 2009 until the notice of discontinuance was approved, whereupon the limitation periods would start to run again. Since the notice of the recall of the cribs was given in November of 2009, only approximately a month of the limitation period would have had expired, leaving Ontario class members a further 23 months to opt into the class proceeding in British Columbia. However, in the case of Coulson v. Citigroup Global Markets Canada Inc. , 2010 ONSC 1596, Perell J. came to a contrary conclusion. He held that where a class action was discontinued or dismissed, "[...] the calculation of the running of the limitation period resumes at the time when the suspension started - not at the time when the suspension ended." The court did not purport to answer the issue, but held that the risk was sufficient to decline to enforce the agreement stating: "If the Ontario limitation period expires before the Ontario members can opt into the British Columbia class proceeding they will suffer prejudice. The defendants did not propose to waive reliance on a limitation defence in the British Columbia class proceeding for all Ontario class members...I am not prepared to grant the motion to approve the discontinuance of the Ontario class proceeding because I am satisfied that there would be substantial prejudice to all Ontario class members who would be deprived of having the limitation period suspended in Ontario, and they would potentially lose their ability to participate as an "opt-in" class member in the British Columbia class proceeding. If the representative plaintiffs wished to obtain approval to discontinue the class proceeding (which they do not) in circumstances where there would be substantial prejudice to all Ontario class members, then reasonable notice would have to be given to the Ontario class members. I also infer that it was an essential term of the settlement agreement between the parties that the Ontario class proceeding would be discontinued on the understanding that the parties would proceed to a certification hearing in British Columbia and that the Ontario class members would be able to opt into the British Columbia class proceeding if it was certified. If this discontinuance is approved with the effect that Ontario class members would be deprived of their right to opt into the British Columbia class proceeding because of the expiry of their Ontario limitation period, then this would be inconsistent and contrary to the terms of the settlement agreement."

Turon v. Abbott Laboratories Ltd., 2011 ONSC 4343: Court declines to stay Ontario Meridia class action and forces plaintiffs to move for certification. Class actions had also been commenced in BC, Que and Saskatchewan. All but the Quebec action were brought by Merchant Law Group. The plaintiff noted the difficulties in the current national class environment, but stated "That does not mean, however, that parties can commence national class actions in several different provinces and, against the wishes of the defendant, leave some of those actions in limbo while one or more other actions proceed." (para.15) The court declined to grant the stay on the following grounds: 1. A stay would only defer, not resolve, the jurisdictional challenges. 2. A party purporting to represent a class has an obligation to move forward with reasonable dispatch. Commencing an action with no intention of actively pursuing it, is an abuse of the procedure because it acts as a disincentive to the commencement of actions by others who may be prepared to advance it. 3. It is not fair to the defendant to leave the action in limbo. 4. The plaintiffs were not prepared to say that the outcome of the BC certification motion would be determinative. Counsel was only prepared to say that if the BC action was dismissed the plaintiffs will "likely not go forward in Ontario". Further, if the BC action was certified, the plaintiffs did not confirm that they would opt in to the BC action. 5. To the extent that the plaintiffs were concerned about funding, they should investigate indemnities or other sources of funding. 6. if the plaintiffs' losses are significant, they may want to consider individual actions. 7. While the action might protect against the tolling of the limitation period for Ontario class members, it is of no value to residents of other jurisdictions in Canada who may be looking to this action to protect their rights. The practice of commencing actions solely for the purpose of tolling the limitation period has been characterized as an abuse of process. If the plaintiffs failed to move forward with certification, the action would be permanently stayed subject to the right of the plaintiffs to proceed as an individual action and subject to any order court may make with respect to notice. The court noted the potential overlap with the BC action, but stated "[A]ppropriate directions can be given to avoid unnecessary duplication and to ensure that he actions proceed efficiently...There may, for example, be common production and discovery and it may also be the case that the trial of one action will be deferred pending the outcome of the other. These issues are frequently dealt with on consent."

SCHEDULING/CHICKEN AND EGG

Miller v. Merck Frosst Canada Ltd., 2011 BCSC 741. The defendants objected to the setting of a certification schedule before the plaintiff had filed notice of application and affidavits in support. The court found that Section 2(3) of the B.C. Act encourages the prompt hearing of the certification application. In setting the schedule, the court noted that defendants would have the opportunity to apply to vary the schedule if plaintiff’s material makes compliance with the schedule problematic.

A recent Ontario decision goes against the Ontario convention and suggests that defendants should plead defenses before the motion for certification is heard. In Pennyfeather v. Timminco Ltd., 2011 ONSC 4257, a proposed securities class action, Justice Perrell ordered that the plaintiff provide particulars and also ordered that all defendants to the action deliver statements of defence in advance of the certification hearing. Justice Perrell made several observations in favour of abandoning the convention of delaying the pleading of defences, chiefly that closing the pleadings before a certification hearing would resolve issues about the cause of action and could be helpful in determining whether the criteria for certification had been met. The court also observed that the determination of certification was not a pre-requisite to the pleading of defences, as certification identifies only those issues to be tried on a common basis and does not narrow or strike the remaining causes of action in the plaintiff’s statement of claim.

Haghdust v. British Columbia Lottery Corp., 2011 BCSC 772: Court allowed summary judgment motion to proceed prior to certification on the basis that the issue would be determinative of the entire action and could be resolved on the basis of targeted affidavit evidence.

Field v. GlaxoSmithKline Inc.2011 SKQB 84: Scheduling order established in proposed class action over objection of Merchant Law Group. Certification to take place about one year out.

CLASS ACTIONS AT TRIAL

Conseil pour la protection des malades c. Fédération des médecins spécialistes du Québec, 2010 QCCS 6094: Illegal strike class action arising from physician "study day" work slowdown was successful. $2.5 million in compensatory damages and $2 million ($200 per person) in punitive damages were awarded.

NOTICE

Boyer c. Agence métropolitaine de transport (AMT), 2010 QCCS 4984: Court approves notice program in late train class action. The court found that Art.1035 did not govern the debate on the payment of costs. Rather, the court held that as the defendant lost the certification motion, the costs of that motion should include the costs of paying for notice under Art. 447.

OPTING OUT

In Sauer v. Canada (Attorney General), 2010 ONSC 4399, an Ontario court recognized that the opt-out right was the foundation of its jurisdiction over class members. As such, the court granted an additional opt-out right to Quebec residents who became class members by way of an amendment to the class definition. The opt-out periods had expired in both Ontario and in the Quebec class action in which the Quebec residents had formerly been class members.

AMENDMENTS

Association des journalistes indépendants du Québec (AJIQ-CSN) c. Journal Watch (Communications Voir inc.), 2010 QCCS 4987: Court allows correction of names of defendants. The court noted that procedure should be the servant of the law.

COMMUNICATION WITH CLASS MEMBERS

Berry v. Pulley, 2011 ONSC 1378: Court declares that effort to issue offers to settle directly with class members in certified class action was inoperable.

1250264 Ontario Inc. v. Pet Valu Canada Inc, 2011 ONSC 3871: Court distinguished Berry in a case considering a request for a declaration on the effectiveness of a release of all claims in a buy-back agreement between a franchisee and franchisor. The court in distinguished Berry on the basis that Berry involved an offer of a settlement to all members of two subclasses, excluding class representatives and that the offer was to settle the claims made in the action. By contrast, the buy-back agreement would concern only a fraction of the class, and would serve to settle all commercial issues in the franchisee-franchisor relationship, including the franchisee’s entitlement to recovery in the class action (at para. 35). The court noted that there was no evidence that the buy-back offer was being made to undermine class action. On the contrary, the court found that it would be made for “legitimate business reasons that benefit both parties.” Nonetheless the court declined to issue the requested declaration on the validity of the releases primarily due to the fact that the franchisees involved did not receive notice of the motion.

COSTS

Durling v. Sunrise Energy Group Inc., 2011 ONSC 266: Costs awarded to Plaintiffs and other parties arising from subrogated insurer plaintiffs' aborted effort to avoid a stay of individual actions pending certification. The writer is counsel for one of the defendants.

Main v. Cadbury Schweppes plc, 2011 BCCA 128: Court rejected the plaintiff’s arguments that launching appeals in both Ontario and British Columbia delayed the proceedings and should result in costs, notwithstanding B.C. "no costs" rule. The author was counsel for the class.

Sharbern Holding Inc. v. Vancouver Airport Center Ltd., 2011 SCC 23: Supreme Court dismissed the appeal with costs, observing that the no costs regime in Section 37 of the British Columbia Class Proceedings Act does not apply to the Supreme Court.

Field v. GlaxoSmithKline Inc., 2011 SKQB 17: The court awarded costs against plaintiff’s counsel for failing to adhere to a litigation schedule and for intentional refusal to comply with a court direction to file an amended statement of claim.

Bear v. Merck Frosst Canada & Co, 2010 SKQB 284: The court found that the no costs rule in s. 40 did not apply to two applications brought before the certification application, but nevertheless refused to award costs.

McCracken v. Canadian National Railway, 2010 ONSC 6026: In this overtime class action, the court awarded costs to plaintiff on a successful certification motion that was intertwined with a partially successful summary judgment motion. Justice Perrell made a number of interesting comments:

"In my opinion, pretending that plaintiffs in class proceedings actually pay their lawyers or that plaintiffs are actually exposed to the risks of paying costs is unnecessary and actually gets in the way of the court using costs awards for their multifarious purposes. Practically speaking, in class actions, the influence of costs awards is visited on class counsel and on defendants but not on the plaintiffs who are only fictionally affected by costs awards...Ending the fictions will just reduce opaque arguments and opaque reasons for judgment and allow courts transparently to use costs: to pay for the expense of litigation; to facilitate access to justice; to discourage frivolous claims and defences; to discourage and to sanction inappropriate behaviour in the conduct of the lawyer-driven proceedings; and to encourage settlements." (paras.9,11)

On the appropriateness of the cost award:

"Although, technically, I granted CN's motion in part and granted Mr. McCracken's motion with qualifications, I regard Mr. McCracken and class counsel as achieving the level of success that justifies an award of costs for what, practically speaking, was a single complex motion with a multitude of issues, some of them interconnected and some of them mutually exclusive. Put somewhat differently, in the context of a class proceeding, the level of success achieved by CN does not rise to the level that should deprive class counsel of an award of costs or that would justify an offsetting award to CN." (para.21)

"Where the court certifies a class proceeding, its broad discretion with respect to costs can take into account whether class counsel's original design for the class action was overreaching or required adjustment for the action to be certifiable. The court's broad discretion with respect to costs can take into account all of the multifarious purposes of a costs award. If the court certifies the class proceeding, the court's broad discretion with respect to costs can take into account the defendant's contribution to yielding a class proceeding that is not overreaching and that is manageable and appropriate for a common issues trial and, if necessary, individual issues trials." (para.26)

Plaintiff's counsel sought $550,000 on time of $1.09M. CN had sought $400,000 in costs for itself. The court approved the $550,000 stating:

"On the understanding that the costs covered by the claim for costs for the two motions are not to be reclaimed later, the substantial discount in the counsel fee makes it easier to conclude that a counsel fee of $550,000.00 on a partial indemnity basis is fair and reasonable and within the reasonable expectations of the unsuccessful party. The fact that CN seeks $400,000 for its conceit of success on the two motions also makes it easier to conclude that this counsel fee is appropriate. Further, the fact that CN would have submitted a partial indemnity bill of costs of $1.3 million for the certification motion indicates the fairness of class counsel's claim. My own review of class counsel's bill of costs and my own understanding of the record and the proceedings up to and including the two motions also supports the conclusion that the counsel fee claimed should be awarded"

The court stated the following regarding Rule 49:

"Class counsel pointed out that it submitted two Rule 49 offers to settle the motion that were rejected by CN. However, class counsel does not seek costs based on the rule 49 regime, and it is debatable whether the costs consequences of Rule 49 would have been triggered. The involvement of the Law Foundation precludes resort to Rule 49. I have ignored the offers to settle in exercising my discretion with respect to costs"

Magill v. Expedia Canada Corp.2010 ONSC 6216: Considering costs of a motion to amend/summary judgment application, the court found that there should be no costs awarded given the mixed success and the reasonableness of having brought both motions.

Graham v. Imperial Parking Canada Corp. 2010 ONSC 6217: Justice Perrell adjourned costs determination until it was clear whether Plaintiff's were going to be able to locate a new required representative plaintiff.

Topacia v. Batac, 2001 ONSC 2155: Court ordered substantial indemnity costs on certification to Plaintiff of $90g against parties against whom the class was successful but, interestingly, made those in the cause. Partial indemnity costs were also established in the cause in relation to certain defendants against whom certification did not issue.

Perreault v. McNeil PDI Inc., 2010 QCCS 4310: Certification rejected since representative children did not actually have any of the problems it was alleged should have been the subject of better warnings.

Tremblay v. Lavoie 2010 QCCS 5945, Collectif de défense des droits de la Montérégie (CDDM) v. Centre hospitalier régional du Suroît du Centre de santé & des services sociaux du Suroît, 2011 QCCA 826: Abuse class actions certified.

Williams v. Toronto (City), 2011 ONSC 3991: Court exercised its discretion to award costs against the defendant in connection with the plaintiff’s failed motion to certify a rent-reduction class action. The court ordered the City of Toronto to pay costs on a partial indemnity basis, citing the extraordinary circumstances of the case. The court noted the City’s admission that it erred by not sending out statutory rent-reduction notices to the plaintiff tenants. The court also observed that the City’s earlier position on the viability of the plaintiff’s claims before the Landlord and Tenant Board precipitated the class action. Additionally, the court relied on the fact that, but for one issue, the class action would have been certified and that the City’s liability for failing to send notices of rent reduction engaged the public interest.

Re*Collections Inc. v. Toronto Dominion Bank, 2011 ONSC 3477, in which the court reduced the costs awarded against unsuccessful plaintiffs seeking to certify a class action concerning bank “holds” on deposited funds. In so doing, Justice Strathy reasoned that the case arguably raised novel points of law because the validity of banks’ hold policies had never before been directly challenged. In the court’s view, the more compelling reason for exercising judicial discretion on costs pursuant to s. 31 was that the case involved issues of considerable public interest and served the goals of class action legislation by providing access to justice for a vulnerable group and by focusing on behaviour modification.

Waters v. Daimlerchrysler Financial Services, Canada Inc., 2011 SKCA 53. Court overturned lower court’s award of costs against plaintiffs’ counsel where counsel filed an amended statement of claim during certification hearing without notice to opposing counsel or the court. The appeal court held that Section 40 of the Saskatchewan Class Actions Act circumscribed, but does not remove entirely, the court’s power to order costs in a class action. Notably, the court stated that had the case not been a class action, a judge would have been “entirely justified in making the costs award against the Plaintiffs based on their behaviour.”

SETTLEMENTS

Bartolome v. Nationwide Payday Advance Inc, 2010 BCSC 1433: Court approved payday loan settlement. Writer's firm was counsel for defendant.

Bartolome v. Mr. Payday Easy Loans Inc., 2010 BCSC 1434: Court approved payday loan settlement. Writer's firm was counsel for defendant.

Bodnar v. Payroll Loans Ltd., 2010 BCSC 1460: Court approved payday loan settlement. Writer was counsel for one group of defendants. 30% fee approved. $7500 approved for the representative plaintiff payable as a disbursement, rather than out of counsel's fee.

Serhan Estate v. Johnson & Johnson, 2011 ONSC 128: Manufacturer of diabetes monitoring equipment agreed to provide costs of equipment and self-monitoring costs to the Canadian Diabetes Association to administer.

Ainslie v. Afexa Life Sciences Inc., 2010 ONSC 4294: Settlement of securities class action. Court provided for 2/3 of the requested 19.4% fee to be paid immediately, with 1/3 reserved for further consideration on review of the claims experience.

West Coast Soft Wear Ltd. v. 1000128 Alberta Ltd., 2010 ONSC 6388: Insider trading/tipping class action settled for $10 million. Court approved fee of 25% of net settlement funds. Court noted that (1) counsel had given an indemnity, and (2) the case was novel.

Tardif v. Hyundai Motora America, 20011 QCCS 3589 and Miller c. Kia Canada inc. 2011 QCCS 3590: Court replaced defendants as administrators of a settled claim. Court appointed third party administrator in their stead.

Chrysler Canada Inc. v. Gatens, 2010 ONSC 5467: Employer obtaining certification for settlement purposes of a class action against its employees as a defendant class in connection with the legality of terminating post-retirement health care benefits.

Samoisette v. IBM Canada ltée, 2010 QCCS 4312, aff’d 2011 QCCA 267: Pension benefits case denied certification because representative was still active employee who had not yet suffered damage. The appropriate procedure was a declaratory.

Waterston v. Canadian Broadcasting Corp., 2010 ONSC 4319: Certified pension surplus class action settled. Court rejected objection that the case was properly the subject of a Quebec grievance procedure. The court found that the issue of jurisdiction was res judicata in light of the earlier certification decision. The objector was present at the certification hearing, and had signaled a potential desire to intervene. The court found that the delay of 3 years in challenging the certification decision based on a change in law was not properly explained. Turning to the approval of the settlement, the court stated:

"This motion for the approval of the proposed settlement is pursuant to the provisions of the C.P.A. Court approval is required in order to ensure that the best interests of the class are satisfied. These interests do not include a consideration of whether or not terms of the proposed settlement are in violation of the collective agreement between the CBC and the SCRC. This court has no jurisdiction to deal with such a dispute. Such dispute must be dealt with under their individual collective agreements. This is not a proper factor for the court to consider on this motion. I therefore make no finding in this regard."

Girard c. Fonds AGF inc.2010 QCCS 4891, Huneault c. Société de placements Franklin Templeton 2010 QCCS 4896: Cases certified cases for settlement purposes. Settlement approved at Huneault c. Fonds AGF inc., 2010 QCCS 6444

Maggisano v. Skyservice Airlines Inc.2010 ONSC 6203: "Hard landing" class action certified with prospective settlement approval hearing to follow.

Insider trading class action settled, along with 25% fee: West Coast Soft Wear Ltd v. 1000128 Alberta Ltd., 2010 ONSC 6388

Copyright class action against Rogers, Canwest and Toronto Star settles: http://bit.ly/lxPayi. Court ordered that no amount be paid to rep plaintiff given lack of evidence. Fee equating to 24% and 1.7 multiplier approved.

Ont.CA rejects non-settling defendants objection to bar order in chocolate class action settlement: Osmun v. Cadbury 2010 ONCA 841. BCCA did likewise: Main v. Cadbury, 2011 BCCA 21. Writer is co-counsel for the class. SCC denied leave.

Lavier v. MyTravel Canada Holidays Inc.2011 ONSC 1222: Bad travel case involving illness settled after certification for a reversionary fund of $2.25M plus $600,000 for fees up to approval. Fee approved at 1.2 multiplier (or 21% if full take up achieved).

Celebrex/Bextra case certified for settlement purposes: Waheed v. Pfizer Canada Inc. 2011 ONSC 5057; Union des consommateurs c. Pfizer Canada inc. 2011 QCCS 4569

Wilhelm B. Pellemans et autre c. Vincent Lacroix et autres, C.S. Montréal, 500-06-000302-055, 23 mars 2011: Norbourg class action settled.

Abdulrahim v. Air France, 2011 ONSC 512: Air cargo settlement approved. 30% contingency fee awarded.

Pichette v. Toronto Hydro, 2010 ONSC 4060: Criminal interest rate $17 million cy pres settlement approved, 28.5% fee approved. Court noted "The Court is satisfied that it is both administratively very problematic and excessively costly to attempt to ascertain the specific LPPs incurred by individual customers of the defendants such as to attempt to allocate individual payments in restitution. Therefore, it is efficacious to have a cy pres distribution as seen in the earlier disposition through settlement in the Garland and Walker cases with respect to the gas utilities." Multiplier equated to 4.42. Court stated "[31] Where the retainer agreement provides for a percentage fee, the equivalent multiplier is not generally considered a major factor. See Cassano v. Toronto Dominion Bank (2009), 79 C.P.C. (6th) 110 (Ont. S.C.J.) at paras. 59-63. Class counsel accepted their retainer on the basis of a fee calculation that would vary directly according to the degree of success that was achieved. As I stated in VitaPharm Canada Ltd. v. Hoffman-LaRoche Ltd, [2005] O.J. No. 1117 (S.C.J.) at para. 107, “Using a percentage calculation in determining class counsel fees properly places the emphasis on quality of representation, and the benefit conferred on the class”.

Robertson v. ProQuest Information & Learning Co., 2011 ONSC 2629: Copyright infringement settlement approved. 24% fee approved.

Sayers v. Shaw Cablesystems Ltd., 2011 ONSC 962: Contractor tax liability settlement approved. 30% fee approved, which was less than a 1X multiplier.

Communication Méga-sat inc. v. Sharp Electronics of Canada Ltd., 2011 QCCS 4446 (settlement); 2010 QCCS 4451 (counsel fees); 2011 QCCS 262 (notice of settlement): Partial LCD settlement approved. Counsel fee of 7.2% approved.

Deronvil v. Univers Gestion multi-voyages inc. (Canada Air Charter), 2010 QCCS 5754: 25% fee approved.

Fischer v. IG Investment Management Ltd., 2010 ONSC 7147: $10.5 million partial market timing class action settlement. Multiplier of 2.5 approved.

Henault v. Bear Lake Gold Ltd., 2010 ONSC 4474: Securities class action settled for $1.3 million, with a 25% fee.

Griffin v. Dell Canada Inc., 2011 ONSC 3292: Defective computer class action settlement approved. Structure was refund of amounts paid for repair, and a $200 cy pres payment. $1.7 million fee approved, which was multiplier of approximately 1.3. The court stated: "A fee of $2 million is undoubtedly large. It may well exceed the total compensation payable to class members under the settlement. In considering this fee, I keep in mind the following:

(a) the fee is consistent with the retainer agreement and with the expectations of the representative plaintiffs; (b) no portion of the fee falls on class members – they are entitled to compensation without deduction for fees; (c) this was a complicated class action, both procedurally and substantively – Dell was a sophisticated and tough-minded opponent and it put up an aggressive defence; (d) the result achieved for the class is reasonable; and (e) a very substantial amount of time was expended on this matter by class counsel, over a period of more than four years, without any compensation and with no assurance of compensation unless the action was successful.

Class action legislation in Ontario was prompted, in part, by a concern that consumer claims could not be economically advanced on an individual basis. The costs of individual action, against large corporations, is simply too high. Consumer class actions simply will not be undertaken by first rate lawyers, such as class counsel in this proceeding, unless they are assured of receiving fair – and I would add “generous” – compensation in appropriate cases. That compensation must take into account the risks they undertake – including the real risk of no payment at all, the risk of exposure to costs, and the cost of deferred recovery of compensation. Plaintiffs’ class action work is not for the faint-hearted. The defendants are frequently represented by large firms, with substantial hourly rates, which deploy teams of partners and associates who are able to mount an aggressive defence and no doubt endeavour to wear down plaintiffs’ counsel. Unless there are generous rewards for cases that are won, the number and quality of plaintiffs’ counsel will inevitably decline. Considering the foregoing, I approve class counsel’s fee and disbursements"

Wiggins v. Mattel Canada Inc., 2011 ONSC 2964: Lead paint settlement approved. Multiplier of 1.75 approved.

Robertson v. Thomson Corp.2011 ONSC 1184: Review of Settlement Administrator's decision.

Huneault c. Fonds AGF inc. 2010 QCCS 6444: Market timing settlement approved. $700,000 fee approved.

Travossos v. Tattoo, 2011 ONSC 2290: Tattoo parlour infectious diseases case settled. No class member had tested positive to date. Uninfected fund of 900,000 and infected fund of 200,000 created. 30% contingency applied. Uninfected would receive minimum of $125 and maximum of $250. Defendants could nuke settlement if claims exceeded the caps. If claims were under the cap, the fund would revert to Defendants. All inclusive counsel fee of $275,000 approved.

Lewis v. Cantertrot Investments Ltd., 2011 ONSC 2713: $400,000 settlement of real estate misrepresentation claim. Fee equating to 33% or 0.3 multiplier approved.

CONVERSION

Stevenson Estate v. Bank of Montreal, 2011 SKCA 51: Court dismissed appeal from decision refusing to allow conversion of individual action to class action. Court also held that leave was required to appeal such a decision. The writer was counsel for defendants in this action. The court held: "In the matter before us, it is clear the refusal to allow the proposed amendment had no effect on the rights of the appellants. Their claim in negligence which existed before the application to amend is precisely the same claim which exists after the amendment was refused. The only individuals whose rights might arguably have been affected by the refusal to amend are the potential members of the class on which behalf the appellants sought to act as a representative plaintiff. However, those individuals remain free to sue the respondents in precisely the same way as they could before the amendment was refused. Thus, their rights have not been disposed of either."

Bellefeuille v. Canadian Pacific Railway, 2011 ONSC 2648: Individual environmental contamination claim converted to class action. On the leave application, the court stated "[In] all the cases cited by the motion judge and the parties, the court assumed it had jurisdiction to convert the action to a class proceeding. The motion judge in this case considered the relevant cases and the relevant provisions of the CPA and the Rules, as well as the policies underlying the CPA. In my opinion, there is no reason to doubt the correctness of her decision." The leave court found that the trial court had properly consider the threshold for a class proceedings and whether there was any non-compensable prejudice to the defendant. The leave court also concluded that it was not improper to leave limitation issues to the certification hearing.

STAYS

Durling v. Sunrise Propane Energy Group Inc., 2011 ONSC 266: individual actions stayed pending outcome of certification hearing. Writer is counsel for one of the defendants.

Pro-Sys Consultants Ltd. v. Infineon Technologies AG 2011 BCSC 1128: Court "pauses" conduct of price-fixing action pending decision in SCC leave decisions in indirect purchaser cases.

CLASS DEFINITION

Option Consommateurs c. Banque Canadian Tire, 2010 QCCS 5118, Option Consommateurs c. Banque Amex du Canada, 2010 QCCS 5119, Option consommateurs c. Citibanque Canada, 2010 QCCS 5120, Option Consommateurs c. Banque de Montréal, 2010 QCCS 5114, Option consommateurs c. Banque Amex du Canada, 2010 QCCS 5117, Option Consommateurs c. Banque de Montréal, 2010 QCCS 5113, : Court updated class definition with a new notice, but refused to make the class definition open-ended into the future.

Dean v. Mister Transmission (International) Ltd. 2010 ONSC 6080: Motion for directions. Court of Appeal had set aside summary judgment in favour of defendants in light of new evidence. Defendants then sought to bring another summary judgment motion. The court allowed the motion to be brought under certain conditions.

Ducharme v. Solarium de Paris Inc., 2010 ONSC 5667: Court certified action previously rejected on the basis of a new class definition that no longer hinged on the legality of governmental steps in relation to the product. The definition was simply all purchasers of the product.

JURISDICTION

St-Arnaud v. Facebook inc., 2011 QCCS 1506: Court held that Facebook users were bound to the California jurisdiction selection clause in the Terms of Use, notwithstanding that they need to click on a link to see it. The court also held that the consumer contract exception allowing actions in Quebec did not apply since Facebook is free.

Assoc. canadienne contre l’impunité (A.C.C.I.) v. Anvil Mining Ltd., 2011 QCCS 1966 (dismissing defendant’s jurisdictional challenge, concluding that there were sufficient links between Anvil Mining and the Province of Quebec to found the Quebec court’s jurisdiction over the case), leave to appeal the ruling granted, 2011 QCCA 1035;

Curactive Organic Skin Care Ltd. v. Ontario, 2011 ONSC 2041 (dismissing plaintiff’s proposed action with respect to subway line expansion, holding that plaintiff’s action was an “injurious affection” claim under the exclusive jurisdiction of the Ontario Municipal Board);

Cannon v. Funds for Canada Foundation, 2010 ONSC 4517, appeal dismissed 2011 ONCA 185: real and substantial connection found between Bermuda-based defendant and Ontario due to the nature and frequency of the defendants use of trust funds in Ontario

Best (Guardian ad litem of) v. Nunatsiavut Assembly, 2011 NLCA 36: appeal court overturning the lower court’s dismissal of claims for jurisdictional reasons

Fédération des associations de familles monoparentales recomposes du Québec v. Québec (Procureur général), 2010 QCCS 5877: court found that a statutory review process to challenge the assessment of child support payments in the context of student financial assistance already existed.

Stanway v. Wyeth Canada Inc., 2009 BCCA 592: Court of Appeal upheld the lower court’s decision to refuse defendants’ challenge of the court’s jurisdiction. The basic facts set out at Sections 10(a) through (l) of the Court Jurisdiction and Proceedings Transfer Act are to be taken as proven if they are pleaded.

Fairhurst v. Anglo American PLC, 2011 BCSC 705: Relying on Stanway, court finds Section 10 presumption was not rebutted by defendants in plaintiff’s price-fixing tortious conspiracy claims

Bond v. Brookfield Asset Management Inc., 2011 ONSC 2529: Defendants were successful on their motion to stay a proposed class action on behalf of primary and secondary securities purchasers for lack of jurisdiction. The court found that no real and substantial connection to Ontario could be found given that the representative plaintiff and many of the putative class members have no personal connection to Ontario and all of the events took place in Alberta. The court also rejected the plaintiff’s main argument, that the parties and the matter are connected to Ontario through the oppression remedy provisions of the Ontario Business Corporations Act

Magill v. Expedia Canada Corp., 2010 ONSC 5247: Court exercising discretion not to enforce an exclusive jurisdiction clause to avoid a multiplicity of proceedings, possible inconsistent results, and in favour of having all the necessary parties before the court

Sears Canada Inc. v. C & S Interior Designs Ltd., 2011 ABQB 471: In an individual action, despite a real and substantial connection to Alberta, the court stayed Alberta proceedings in favour of an identical action in Ontario, finding that there was an overall advantage to having the action heard in Ontario. One of the reasons for having the matter heard in Ontario was that there was an ongoing certified. class action addressing many of the issues in the counterclaim

Union des consommateurs et Raphaël v. Bell Canada, 2011 QCCS 1118: Court found that the plaintiff had made no prima facie case to represent Bell customers in Ontario. The internet service contract in question was governed by Quebec law and the pleadings did not allege any justification for the plaintiffs to represent Bell customers in Ontario.

REPRESENTATIVE PLAINTIFF

Regroupement des citoyens contre la pollution c. Alex Couture inc. 2011 CarswellQue 8825: Court rejects replacement rep based on credibility concerns.

MOTION TO STRIKE

Magill v. Expedia Canada Corp., 2010 ONSC 5247: Court made following orders in this billing practices class action:

"• Mr. Magill's claims against Expedia.ca, which is not a legal entity, should be struck out • Expedia, Inc. may be added as a party defendant. • The definition of the class period was struck out with leave to amend to plead: (a) a class period as against Expedia Canada with a start date of June 26, 2007 and an end date as of the date of certification of the action as a class proceeding; and (b) a class period as against Expedia, Inc. with a start date of July 28, 2008 and an end date as of the date of certification of the action as a class proceeding. • The plea of negligence was struck out. • The plea of negligent misrepresentation was struck out, with leave to deliver a fresh pleading to plead a negligent misrepresentation claim against both Expedia Canada and Expedia, Inc. • The plea of claim under s. 36 of the Competition Act was struck out, with leave to deliver a fresh pleading to plead a claim under s. 36 of the Competition Act against both Expedia Canada and Expedia, Inc. • The pleas of breaches of the Consumer Protection Act, 2002 were struck out, with leave to deliver a fresh pleading to plead violations of the Act against both Expedia, Inc. and Expedia Canada."

Curative Organic Skin Care Ltd. v. Ontario, 2011 ONSC 2041: Proposed subway line expansion effects action. Defendant suggested that only OMB had jurisdiction over such an "injurious affection" claim. The court did strike the claim, holding that the defence of statutory authority existed for any common law claim.

In Dean v. Mister Transmission (International) Ltd., 2011 ONSC 553, the defendant’s fresh motion for summary judgment was granted and the certified action was dismissed, as there were no genuine issues for trial.

Union des consommateurs c. Bell Canada, 2011 QCCS 1118: Internet throttling class action refused certification. The court held that there were potential conflicts in the class between heavy and light users. The court held that the Plaintiff could not purport to represent Ontario residents since the case was based on Quebec law. also found that the colour of right aspect of the case was not met.

Logan v. Dermatech, Intradermal Distribution Inc., 2010 BCSC 481 (strike third party notice) (court finding that the claims set out in the Amended Third Party Notice disclose no reasonable claim against third party and ordering dismissal of the third party claim).

APPEALS

Taylor v. Canada, 2011 ONCA 181: Joint application for a special case on regulatory negligence in order to avoid Divisional Court appeal stage. The court granted the motion noting the benefits of fast-tracking the point stating "This action was commenced in December 1999 and pleadings have not yet closed. So much for access to justice!" (para.27).

In Brown v. Canada (Attorney General), 2010 ONSC 3095, leave to appeal certification granted 2011 ONSC 1193, the motion judge found that none of the causes of action pleaded by the plaintiffs disclosed a reasonable cause of action. However he went on to frame a new question as the “legitimate target or focus of the certifiable class action”. The defendant sought leave to appeal the certification decision on the basis that it had been left without an opportunity to argue that the pleading framed by the motion judge did not disclose a cause of action. The leave court held that the motion judge erred in granting certification, even on a conditional basis, without a proper pleading before him and without giving the defendant an opportunity to make submissions on its certifiability.

Chalmers v. AMO, 2010 BCCA 560: Certification of contact lens case upheld, as was punitive damage common issue.

Goyette v. GlaxoSmithKline inc, 2009 QCCS 3745, aff’d 2010 QCCA 2054: Paxil warning class action warning denial of certification upheld on the basis that the appearance of right was shown and there were no common issues.

Smith Estate v. National Money Mart Co., 2010 ONSC 1334, aff’d (in part) 2011 ONCA 233: Court of Appeal upheld the motion judge’s finding that arrangements entered into by class counsel with other legal and non-legal service providers ought to be treated as disbursements and that those providers are not entitled to a premium on their fees. The court observed that the Class Proceedings Act “does not contemplate contingency fee arrangements with persons other than class counsel and does not give the court the jurisdiction to allow a service provider a premium on its fees.” (at para 109). The court also rejected the submission that other lawyers retained by class counsel on a contingency basis became part of the class counsel team and that their fees should be treated as class counsel fees. The court found that there was nothing to suggest as much on the record.

Phaneuf v. Ontario, 2010 ONCA 901: Denial of certification in psychiatric detention case upheld.

McKenna v. Gammon Gold Inc., 2011 ONSC 3782: On appeal, the court returned the determination of common issues regarding the plaintiffs’ conspiracy claim to the motion judge, holding that it was not clear from the motion judge's decision whether or why secondary market purchasers were excluded from the class for purposes of the conspiracy claim. The court also found that the motion judge erred in requiring plaintiffs to deliver particulars of separate and distinct damages for the conspiracy claim at the certification stage.

FUNDING

Dugal v. Manulife Financial Corp., 2011 ONSC 1785, the Ontario Superior Court of Justice again considered whether it should exercise jurisdiction to approve a third party funding agreement under terms very similar to those in Metzler. Unlike the court in Metzler, Justice Strathy did exercise broad discretion to approve the funding agreement, reasoning that he was “entitled to put [himself] in the shoes of prospective class members and ask whether the proposed agreement is fair and reasonable.” (at para. 17). The court approved the funding agreement for, inter alia, the following reasons (at para 33): the agreement would help promote access to justice; the indemnification agreement would not take control of the litigation out of the hands of the representative plaintiff; the commission (7%) and commission cap were reasonable and fair; representative plaintiffs and a cross-section of class members accepted the agreement; the financial terms of the agreement were a fair reflection of risk and reward; and class counsel were experienced and reputable and would not be influenced by the funder in discharging their duties. The court also noted the necessity of such arrangements in class actions by observing that, “… no rational person would risk an adverse costs award of several million dollars to recover several thousand dollars or even several tens of thousand dollars.” (at para 28). The funding agreement was ultimately approved after the third party funder provided adequate security for the defendants’ costs and controls were established for the provision of information to the funder, 2011 ONSC 3147.

LIMITATIONS

Sharma v. Timminco Ltd., 2011 ONSC 2040: Section 28 of the CPA suspends limitation periods for actions under the Securities Act, including an action for which leave is required.

Dugal v. Manulife Financial Corp., 2011 ONSC 1764: On application to amend, the court found that plaintiff’s section 130 Securities Act claim was time-barred, as neither the original statement of claim, nor the first amended statement of claim contained a cause of action under section 130.

See Duong v. Stork Craft Manufacturing Inc., 2011 ONSC 2534, supra, where court declined to order enforcement of agreement to discontinue Ontario claim out of concern that Ontario residents may lose their limitation period protection.

INJUNCTIVE RELIEF

Fradenburgh v. Ontario Lottery & Gaming Corp., 2010 ONSC 5387: court recognized that while pre-certification injunctive relief may be available in extraordinary circumstances under Section 12 of Ontario’s Class Proceedings Act, it was not warranted in that case where the plaintiff was seeking an order requiring a “special” draw of numbers in the province’s lottery;

Pickering v. S.G.E.U., 2010 SKQB 361, motions judge declined to hear an application for an interim injunction to prevent the defendant union withdrawing funds from the pension plan under dispute in order to pay its legal costs. The judge concluded that as the withdrawals were identifiable and could be remediated, the circumstances did not demonstrate the “compelling reasons” necessary for the interim injunction to proceed in advance of the certification hearing.

DECERTIFICATION

In Koubi v. Mazda Canada Inc. 2011 BCSC 59, the court reconsidered an earlier decision to certify. The plaintiff sought to amend the certification order and common issues with a new statement of claim, while the defendants sought to have the action decertified. The defendants argued that the amended statement of claim contained no cause of action that could support a remedy in waiver of tort, failed to demonstrate a causal relationship between the alleged wrongdoing and benefit to the defendants, and lacked a methodology for calculating aggregate damages. The court rejected these arguments and amended the certification order to include the waiver of tort claim in the common issues to be decided at trial.

EVIDENCE

Lipson v. Cassels Brock & Blackwell LLP, 2011 ONSC 2668: Plaintiff applies to strike summons to witnesses involved in tax reduction scheme which summons were served in support of the pending certification motion. The court found that the usual approach to seeking evidence Mr. Lipson submits that this traditional law does not apply to class proceedings. I disagree. While the court has the plenary jurisdiction under s. 12 of the Class Proceedings Act, 1992 to vary the procedure from that provided for under the Rules of Civil Procedure to advance the purposes of the Class Proceedings Act, 1992 (See Peter v. Medtronic, [2008] O.J. No. 4378 (S.C.J.)), it does not follow that a special universal rule has been developed for all class actions that would be a categorical departure from the law as developed from the Canada Metal Co. v. Heap line of cases.... In the case at bar, the statement of claim and the evidence in the parties' respective certification motion records provides an evidentiary basis for concluding that all of Messrs. Messrs. Mintz and Elliott, who developed the Program, and Mr. Prenick, who introduced Mr. Lipson to it, may have evidence relevant to the certification motion, particularly the identifiable class, common issues, and preferable procedure criteria. I do not see how calling for testimony from these witnesses would be an abuse of process. Based on the traditional law, I would not quash the three summonses."

The court discussed the evidentiary burden on certification: " The point is that just because there is some basis in fact for a certification criterion, does not mean that the certification criterion is satisfied. All the certification criteria have a legal component, and a certification criterion may not be satisfied just because the plaintiff shows some factual basis for it. For present purposes, the more important point is that a defendant is entitled to advance his or her own evidence to support the defendant's own arguments about whether the certification criteria have been satisfied." (at para.26)

The court did make it clear that the examination had to be focused however, stating that "... the correct message [is] that the scope of the examination is confined to the issues of the certification motion" (at para.28)

Andersen v. St. Jude Medical Inc. 2011 ONSC 2178: Court admits law and economics expert evidence on waiver of tort issues at class action merits trial. Court held that it was social science evidence, not domestic law opinion.

Stanway v. Wyeth Canada Inc., 2010 BCSC 1497: Premplus/Premarin class action. Request by defendants for disclosure of medical records. The court summed up the applicable principles as follows:

"1. Precertification disclosure is ordered in the exceptional case where the defendant demonstrates that the record before the court for the certification hearing will be inadequate for consideration of the issues at that stage of the proceedings.

2. In considering whether an order for disclosure ought to be made the court must address the goals of judicial economy, access to justice, and behaviour modification.

3. It can be assumed that each individual's medical record will be unique. However, the medical evidence suggesting the significance of the individual factors of those who may have been prescribed and ingested the prescription drug may be necessary to furnish the evidentiary record;

and specifically in British Columbia,

4. There is no right to examine the representative plaintiff or other affiants in British Columbia; an order of the court is required.

5. In British Columbia, in accordance with the Act, the court must consider whether the claims of the class members raise common issues, whether or not those common issues predominate over issues affecting only individual members, and whether questions of fact or law common to the members of the class predominate over any questions affecting only individual members."

The court ordered disclosure stating: " I am satisfied that this is the exceptional case where precertification disclosure of medical records must be made. The individual risk factors identified in those records, and notes of the prescribing physician of the discussion he or she had with the patient concerning the benefits and risks of HRT and of Premarin and Premplus specifically, and the records of the examinations undertaken, test ordered and the results are necessary for my determination of the predominance of common issues and whether this class proceeding ought to be certified. This is particularly so when I consider whether there is a causal connection between Premplus and Premarin in combination with progestin and breast cancer, and if so, its nature and extent, as well as those issues concerning potential violations of the BPCPA or the TPA."

Bryar Law Corporation v. Samsung Electronics Co. Ltd., 2010 BCSC 1661. the court refused the plaintiff’s request that the defendant be ordered to produce documents that had been produced under protective seal in a parallel action in the United States. The court found that though the documents “might be material” to the issues in question at certification, the proper venue to make the application for production of those documents was California, where the contents of the documents were none and the interests of third parties not present at the application for production could be adequately protected.

Ben-Eli c. Toshiba of Canada Ltd., 2010 QCCS 4844: Limited examination of the rep plaintiff permitted.

Hazan v. Microsoft Canada cie, 2010 QCCS 4214: Defendant prevented from replying to references to American class action proceeding, but court also signaling that such information was not relevant and would not be relied upon. The court did allow the defendant to introduce information on correspondence with the plaintiff, and information regarding other purchases by the plaintiff.

Tremblay v. Lavoie, 2010 QCCS 4752: Court refused a request for cross-examination of the representative plaintiff but did order him to provide particulars with respect to certain allegations in the pleadings. 2011 QCCS 3024: Court ordering plaintiff to undergo medical examinations.

In Adams v. Canadian Tobacco Manufactures’ Council, 2010 SKQB 308, the court ruled an affidavit filed by an articled student working with plaintiff’s counsel inadmissible on the basis that it contained information that could not be considered purely formal and uncontroverted. The court gave plaintiff’s counsel the choice of withdrawing the affidavit or withdrawing as counsel.

Markson v. MBNA Canada Bank2011 ONSC 871: Traditional document discovery issues considered in certified class action.

SUBCLASSING

578115 Ontario Inc. v. Sears Canada Inc., 2010 ONSC 5673: Court required representative for Alberta subclass given that they received a material additional document. Court also awarded $105,000 to the Plaintiff on the costs of certification, and the defendant obtained $10,000 for its summary judgment application.

ADVANCE FUNDING

C. (L.) v. Alberta, 2011 ABQB 42 : Court makes limited advance funding order in proposed class action brought by infant against government. Writer acts for defendant government.

EVIDENCE

Pollack v. Advanced Medical Optics Inc.2011 ONSC 850: Defendants moved to strike reply affidavit on certification. Court agreed stating that the Plaintiff was splitting their case, as the reply affidavit raised the prospect of new infections caused by the impugned contact lens solution.

Arenson v. Toronto (City), 2011 ONSC 3294: pre-certification motion for production of certain documents by non-party dismissed because the information sought was not relevant to the certification motion

Schick v. Boehringer Ingelheim (Canada) Ltd., 2011 ONSC 63: Evidence from two purported experts struck in advance of certification.

Wall Estate v. GlaxoSmithKline, 2010 SKQB 351: Court held that leave ought to be granted to permit cross-examination, albeit not routinely, when the cross‑examination sought would assist in determining the outcome of a s. 6 inquiry. Court ordered production of rep plaintiff medical records on the basis that they may be relevant to certification. The court determined that jurisdiction should be considered in advance of certification, and dismissed claims against the foreign companies.

Conseil québécois sur le tabac & la santé c. JTI-MacDonald Corp. 2011 QCCS 4090: Court refuses to allow defendants to interview class members outside the absence of class counsel in this certified class proceeding, holding that solicitor client privilege applies. The court also suggested, albeit in obiter, that targeted contact by the defendant's experts would also be improper. The court also denied access to the medical records of certain class members who were going to be called at trial stating "This Court does not see how such information could be relevant or useful at trial. The classes here number in the millions in the Létourneau case and around 50,000 in the Blais file. What possible use can there be to learning specific medical facts about a few dozen class members, or even the 150 that ITL wishes to call to testify? It is simply not relevant at this stage."

Dobbie v. Arctic Glacier Income Fund, 2010 ONSC 4577: Guilty pleas in criminal proceedings by parties to the class action admissible on certification. Other evidence struck on the basis that it was contentious and improperly advanced through a solicitor's affidavit.

Knowles v. Arctic Glacier Inc, 2011 ONSC 682: Court considered scope of proper reply evidence in securities case.

Jones v. Zimmer, 2010 BCSC 1504: Court refused production of rep plaintiff medical records stating "I conclude that Zimmer has not satisfied me that the plaintiffs’ medical records are required for the certification application. Zimmer has conducted a review of the medical records of at least 3,100 patients who have had a Durom Cup implant. The medical records of these two plaintiffs will likely add nothing."

Cannon v. Funds for Canada Foundation, 2011 ONSC 2960: Court allowed affidavit to be tendered, but deferred ruling on its admissibility until after hearing argument on the certification and summary judgment motions. The affidavit was challenged on the basis that it was inappropriate case splitting, non-responsive to issues before the court and improper opinion evidence.

OPTING OUT

In Sauer v. Canada (Attorney General), 2010 ONSC 4399, an Ontario court recognized that the opt-out right was the foundation of its jurisdiction over class members. As such, the court granted an additional opt-out right to Quebec residents who became class members by way of an amendment to the class definition. The opt-out periods had expired in both Ontario and in the Quebec class action in which the Quebec residents had formerly been class members.

THIRD PARTIES

Stanway v. Wyeth Canada Inc., 2011 BCSC 108: Court declined to allow defendant to add third parties progestin manufacturers to proposed Premarin class action. The plaintiffs alleged that Premarin was dangerous when prescribed in combination with progestin. The court held as follows: "I disagree with the defendants' assertion that there has been a metamorphosis in the plaintiff's action. Despite Dr. Kirsh's opinion about the causes of breast cancer, the plaintiff has chosen to focus on the defendants to the exclusion of the progestin manufacturers, (with the exception of the defendants as a manufacturer of Premplus). That was the plaintiff's position at the outset of this litigation and continues to be the plaintiff's position. Adding the progestin manufacturers as defendants or third parties fundamentally recasts the plaintiff's claim. I am not convinced that, as the defendants assert, the plaintiff and the proposed class run the risk of having their claim dismissed if the progestin manufacturers are not included as necessary parties or third parties. I cannot conclude that the plaintiff's decision to frame the action as she has is a discredit to the proper administration of justice. Because the defendants have not met the precondition that a cause of action exists between the plaintiff and the progestin manufacturers, it is unnecessary for me to continue to consider the other issues raised including delay in making this application and whether the plaintiff can be forced to sue parties that she chose not to sue."

Rice v. Atlantic Lottery Corp. 2011 NLTD(G) 65: Court refuses Plaintiff's requests to sever off third party issues pending certification. Case involves Video Lottery Terminals. Manufacturers were brought in as third parties, and wished to participate in certification hearing. Court distinguished Attis stating: "In Attis third party advised the court that it did not intend to take any position on the certification hearing. There was no suggestion that the issues on the third party claim were the same as those in the main action. This is completely contrary to the present case. Attis was an action against the federal government with the pleadings raising only the several liability of the government arising out of a settlement agreement which resolved outstanding class actions against the government and the manufacturer of breast implants."

The court concluded: "The claim by the plaintiff against the defendant is identical to any claim the defendant would have against the third parties, who, in this case are manufacturers of the VLTs and the software used in the VLTs. The third party interest is so much involved in the intricacies of the plaintiff's claim against the defendant, it would be contrary to the principles of justice and equity to not allow the third parties standing at the certification process. Any delay to the proceeding is outweighed by the right of the third parties to have input into the certification process, avoid duplication of proceedings and potential conflicting decisions."

DISCONTINUANCES

Baxter v. Lloydminster (City), 2010 SKQB 452: Court declined to approve a discontinuance pre-certification because no notice had been provided to other potential class members, but noted that parties could still end the proceeding as they saw fit, given that the Saskatchewan Class Proceedings Act did not require court approval for a pre-certification discontinuance.

Driedger v. Ashley Furniture Industries Inc. 2010 SKQB 437: The court criticized the Saskatchewan Class Proceedings Act for not requiring court approval of settlements prior to certification. The court went on to say that the considerations applicable to approval of a settlement or discontinuance after certification were equally applicable to request to approve a pre-certification settlement.

Singer v. Schering-Plough Canada Inc., 2010 ONSC 6776: Court approved a settlement whereby the plaintiff abandoned his appeal of unsuccessful certification motions and the action be dismissed against the defendants in exchange for the defendants waiving the claim for costs awarded against the plaintiff. The court noted that it would be more concerned about the abandonment of the case had the court concluded that there was a substantial class whose interests required protection or that the continuation of the proceedings would promote the goals of class action legislation.

Ouimet c. Caisse de dépôt & placement du Québec, 2011 QCCS 1585: Court allowed dismissal or class action related to the Norbourg matter, given the global settlement of the proceedings. It was a term of the global settlement that this class action be discontinued.

PLEADINGS

Bear v. Merck Frosst Canada & Co., 2010 SKQB 284: Court held that, a statement of claim in an action commenced under the Saskatchewan Class Actions Act need not include a description of a class. In Bear, the defendants’ had brought a motion to disallow the plaintiff’s amendments to the statement of claim, which had the effect of removing a class definition from the pleadings. The author disagrees with this finding. The defendant and the proposed class should have some sense for the breadth of the proposed case at its launching.

That's all folks!!!

I thought you might enjoy this excerpt from Alberta Justice's Litigation Bulletin, courtesy of Alan Meikle Q.C.:

"Embarrassing moment for our out of town consultant, Ward Branch. Ensconced in an unfamiliar hotel in an unfamiliar neighbourhood in West Edmonton, Ward went out on foot in search of supper. Seeing a KFC outlet, he went in to check it out. While standing in line he overheard what he thought was a statement that they were out of a certain cut of chicken, and so as not to waste time and be disappointed, he leaned out of line and asked the young female employee, "Is it true that you have no breasts?" Raucous laughter erupted amongst the waiting customers and our consultant slunk out the door and ended up eating at Macdonald's."

COSTS

Attis v. Ontario (Minister of Health), 2010 ONSC 4508: Court ordered plaintiffs' lawyer to pay costs of failed action personally stating "Mr Legge and his firm have not discharged the burden of showing that they had adequately apprised the plaintiffs of their potential liability for costs awarded to the defendant in the event that the motion for certification, and the appeals therefrom, were unsuccessful. Independently of the burden of proof, I am of the opinion, and find, that the balance of probabilities is that the plaintiffs did not receive sufficient disclosure of these material facts to enable them to make a free, full and informed decision on whether to act as representative plaintiffs in the proposed action. In consequence, and in accordance with the principles I have referred to earlier in these reasons, I am satisfied that Mr Legge and his firm should be responsible for the costs awarded by Winkler R.S.J., by the Court of Appeal and the Supreme Court of Canada, together with the interest accrued to the date of payment and applicable taxes."

The court did commented, but did not rule, on the question of whether class counsel had been correct in his view that giving an indemnity himself was champerty and maintenance. The court stated: "The question whether indemnities provided by class counsel constitute officious meddling in a client's litigation - or, on the other hand, are to be considered as a perfectly legitimate quid pro quo for the prospect of a counsel fee significantly in excess of a quantum meruit - under a procedure designed to enhance access to justice - has not yet to my knowledge been squarely confronted in any reported decision. When that occurs, the effect of sections 28.1(12)(c), (d) and (e) of the Solicitors Act, and section 3.3 (ii) of O. Reg. 195/04, will no doubt need to be considered. So, too, will the important decision of MacKenzie J. in Poulin v. Ford Motor Co. Of Canada, [2007] O.J. No. 4988 (S.C.J.) in which the failure of class counsel to provide an indemnity was considered to be at least a relevant factor in deciding whether to award costs against counsel personally." (at para.101)

Cecile v. Retrofoam of Canada Inc., 2001 ONSC 4541: Court ordered federal government to pay costs of $10,000 to the parties who successfully opposed effort to have federal government's summary judgment motion heard prior to certification. The writer was counsel for one of the successful parties.

CERTIFICATION

Alberta Municipal Retired Police Officers' Mutual Benefit Society v. Alberta 2010 ABQB 458: Pension case denied certification. Court held that case turned on representations to individual pensioners. The court also rejected the suggestion that the Society was an appropriate representative. The court noted that the Society was only created in order to bring the lawsuit. Further there was no reason why the individually named plaintiffs could not be the representatives. The writer was counsel for the Province.

Graham v. Imperial Parking Canada Corp., 2010 ONSC 4982: Parking violation fee class action conditionally certified, but proposed scope was dramatically reduced. Only a misrepresentation claim by owners who paid the fee and who did not park their own cars was certified. The class definition was also constrained to reflect the applicable limitation period. The court declined to certify a punitive damages issue. The court found that the reps were not appropriate since neither of them were owners who did not park their own cars. The Plaintiff had leave to add a proper representative. The court did not apply the defendant's proposed holistic approach stating: "Having regard to the outcome of this motion, this is not the case to discuss the gatekeeping role played by the five certification criteria and whether those criteria should be augmented by a holistic approach that would measure whether it was a "good" class action that should be certified or a "bad" class action that would not serve the purposes of the class proceedings legislation and should not be certified. I simply say that I have not applied a holistic approach. Rather, I have attempted to measure the proposed class action against the various statutorily mandated criteria and I have come to a conclusion that there is an action worthy of certification as a class proceeding albeit a narrower action than proposed by the Plaintiffs." (at para.205-206)

Boyer c. Agence métropolitaine de transport (AMT, )2010 QCCS 4079: Train delay class action certified. The court was not prepared to conclude at this early stage that the published train schedule was not a term of the contract with passengers.

Charland c. Hydro-Québec, 2010 QCCS 3731: Interest rate calculation class action certified. Only the cause of action aspect of the test was contested.

Brown c. Roy, 2010 QCCS 3657: Investment class action certified, save against four defendants for whom the cause of action test was not met. Against one defendant, the court held that the case failed because the representative had no legal claim against that defendant, relying on Bouchard v. Agropur. The court interpreted Bouchard as "establishing the necessity for a cause of action of the representative against each defendant" [translation] (para.184)

McCracken v. Canadian National Railway Co., 2010 ONSC 4520: Certification sought of action alleging unlawful classification of certain employees as managers, thus depriving them of overtime and holiday pay. Defendant brought a parallel Rule 21 motion. The court did certify the case, but struck certain causes of action. Justice Perrell summarized his decision as follows:

"The discussion of the issues will lead to the following main conclusions or orders:

* The Superior Court has subject matter jurisdiction to decide Mr. McCracken's claims for overtime and holiday wages.* The provisions of the Code about overtime and holiday wages are terms of the contracts of employment of the first line supervisors by force of statute.* Mr. McCracken's proposed causes of action for negligence and breach of a duty of good faith should be struck from his statement of claim. The pleadings of the material facts in support of these causes of action should be struck from the pleadings except to the extent that these material facts are pleaded in support of the remaining causes of action.* Mr. McCracken's claim for failure to pay holiday pay should be dismissed.* With qualifications or conditions, Mr. McCracken has satisfied all five criteria for certification of his action as a class proceeding.* One of the qualifications or conditions is that Mr. McCracken's claims for breach of an express or implied contract term should be stayed, but the claims for unjust enrichment and for breach of a contract term implied by force of statute may proceed.* A consequence of the certification and Rule 21 motions is that several common issues will have been determined.* The main common issue and the focus of the common issues trial will be the question: "In accordance with the meaning under s. 167(2) of the Code, of 'employees who are managers or superintendents or exercise manage-ment functions' what are the minimum requirements to be a managerial employee at CN?"

578115 Ontario Inc. v. Sears Canada Inc., 2010 ONSC 4571: Certification of franchise class action. The court was prepared to certify a "good faith" common issue, inter alia stating: "Depending on the nature of the decision of the common issues judge, it may or may not be necessary to engage in further individual inquiries. For example, if the common issues judge decided that the duty of good faith and fair dealing had been met as a result of the language of the franchise agreement itself, or as a result of some other document that was provided to all franchisees, the issue could be determined without individual inquiry. If, on the other hand, the common issues judge were to find that the duty had not been met in that fashion, but that it may have been met in relation to specific franchisees (as Sears appears to suggest on this motion), then trials of appropriate individual issues could be ordered." (para. 48)

The court also certified damages common issues stating "The same is true of common issues, 2(b), 4(c), 7(c) and 8(d), which asks how damages are to be assessed. While individual assessments may be required, the determination of a common method of assessment will advance the claim of every class member."The court also certified a punitive damage issue.

On the representative plaintiff, the court stated that "I respectfully adopt the observation of Lax J. in Fresco v. Canadian Imperial Bank of Commerce (2009), above, at para. 101, that because the evidence on a certification is not directed to the merits of the plaintiff's claim, the plaintiff's credibility should not be assessed on certification except in the clearest of cases. That said, where the court is satisfied that the representative plaintiff is a manifestly unreliable witness, he or she will likely be an unsuitable representative" (at para.74)

On a limitations challenge to the representative plaintiff, the court stated: "It is not obvious on the face of the pleading that the plaintiff's claim is time-barred...There is no evidentiary basis, at this time, on which I could conclude that McKee's claim is time-barred. If the defendants wish to bring a motion for summary judgment, based on the expiry of the limitation period, they may do so after certification." (at para.79)

On the alleged failure to show a loss necessary to complete the cause of action, the court stated: "This has been identified as a common issue and there is no obligation on McKee's at this stage of the proceeding to establish that it suffered a loss." (at para.81)

Although the litigation plan was very thin on the manner in which the individual issues would be managed, the court stated "It is possible to envisage a scenario in which all these questions can be answered and Sears' liability to class determined without the need to make individual inquiries. It is also possible to envisage scenarios where individual inquires may be required concerning disclosure of rebates or the assessment of damages and potential limitations issues. I am satisfied that this proceeding will work as a class action without requiring the plaintiff to demonstrate, at this time, a specific procedure for the resolution of those individual issues." (at para.92)

Mayotte v. Ontario, 2010 ONSC 3765: Certification granted to private independent contractors providing driver's licence and vehicle registration services to the province who claimed under-compensation. The court declined to limit the class definition based on limitations concerns stating: "where the resolution of the limitations issue depends on a factual inquiry such as an inquiry about when the plaintiff knew or ought to have known the facts constituting the action, the limitations issue should not be resolved on the motion for certification" (para.64)

On representative plaintiff, the court stated: "During his cross-examination, Mr. Mayotte was asked some questions about his understanding of the contracts, of the prevalence of the use of the various contracts, of Ministry policies and procedures, and the interrelationship of the operation of the private issuers with Ontario's policies and procedures in providing services to the public. He was also asked questions about the circumstances and positions of the proposed class members and about when he became aware that Ontario was being unfair to the private issuers. Once again, he did not do well in his answers, but, once again, I do not see why his poor performance on these largely factual matters should disqualify him as a representative plaintiff. The common issues trial is largely about what Ontario knew and did about compensating the private issuers. The evidence for the certification motion, and it may be anticipated the evidence for the common issues trial, will not be much about Mr. Mayotte's individual experience but rather it will focus on the collective circumstances of the private issuers and how Ontario treated them collectively. Mr. Mayotte does not have to show tat he is the best fact witness in order to qualify as a representative plaintiff. "

Robitaille c. Mazda Canada inc. 2010 QCCS 2630: Motor vehicle products liability case certified.

Fournier c. Banque Scotia, 2010 QCCS 120: Consumer class action refused certification based on cause of action aspect of the test.

Therrien c. Compagnie de volailles Maxi ltée, 2010 QCCS 1244: Environmental class action certified.

Dell'Aniello c. Vivendi Canada inc. 2010 QCCS 3416: Certification refused in the context of a dispute involving a change of benefits following change in ownership. The court did signal that it would have been prepared to certify a national class given that one of the head offices was in Quebec.

CLASS ACTIONS AT TRIAL

Pearson v. Inco, 2010 ONSC 3790: The Ontario Superior Court of Justice awarded C$36-million to the class from Inco Limited for having contaminated lands with airborne metals The court estimated that the class was comprised of the owners of approximately 7,000 residential properties. The judge found that because there was no intentional intrusion onto the class members' property, the trespass claim should be dismissed. However, the deposit of nickel onto class members' property did fall within the strict liability requirements of a claim in Rylands v. Fletcher and also in private nuisance as a consequence of material physical damage. The judge found that the overwhelming majority of the class members did not know, and ought not to have known, of the material facts until approximately February 15, 2000. Therefore, the cause of action was not barred by the limitation period. The court found that there had been a drop in property values in Port Colborne starting in the year 2000. The trial judge calculated the loss of the value of the properties to average C$4,514 per property. The court held that Inco's conduct in the case did not justify an award of punitive damages.

May v. Saskatchewan, 2010 SKQB 310: On the merits of this certified pension case, the court rejected the class claims. The court found that there was no implied contractual term under which the class was promised CPI indexing or improved health benefits. Nor was it a case warranting a finding of fiduciary duty, as the government was simply following the applicable legislation.

In Payne v. Eagle Ridge Pontiac GMC Ltd., 2009 BCSC 530: The class sought damages for negligent misrepresentation by the motor vehicle vendor. The court concluded that the defendant did not meet the requisite standard of care and was negligent with respect to a misrepresentation in a newspaper advertisement, which suggested that the defendant was providing a cash back incentive: . However, the court left for individual determination (a) the extent to which members of the class relied upon the defendant's representation, and whether their reliance was reasonable; and (b) whether such reliance was to their detriment in that it resulted in damages to them. In a subsequent hearing, the court considered the appropriate measure of damages, 2010 BCSC 1085. The court concluded that, if the plaintiff and the other class members established reliance and loss, they would be entitled to be restored to the position they would have been in if the misrepresentation had not been made, as opposed to in the position they would have been if the misrepresentation had been true (at para. 16). As the cash rebate which was the subject of the misrepresentation was provided free of charge to the class, their damages were therefore limited to their out-of-pocket losses, and would require the class members to establish the difference, if any, between the price paid for their vehicles, and their market value at the date of purchase.

INSURANCE ISSUES

We've been running into limits issues recently in our class cases. Perhaps you have too. To that end, we attach a link to a paper we wrote a couple of years ago on insurance issues in class actions that we hope may be helpful:

http://tinyurl.com/2ek2cw2 <http://tinyurl.com/2ek2cw2>

Cecile v. Retrofoam of Canada, 2010 ONSC X: The court denied the right of an insurer to pull off the defence of a defendant where (1) the insurer failed to produce a copy of its policy although this was required pursuant to a court order, and (2) the court determined that on the available record there was a duty to defend. The writer is counsel for one of the other defendants.

NOTICE

Myette c. Québec (Commission administrative des régimes de retraite & d'assurances), 2010 CarswellQue 9301: Court dispensed with newspaper publication where the entire class was known and the parties could communicate directly with each class member.

EVIDENCE ON CERTIFICATION

Hazan c. Microsoft Canada cie, 2010 QCCS 4214: Microsoft allowed to file a brief and certain evidence in defence of Xbox class action.

Berkovits v. Canon Canada Inc., 2010 ONSC 3952: Court refused motion to strike affidavit prior to the certification hearing, where the court observed: "[14] . . . it is preferable to decide the admissibility of the evidence in the context of all the other evidence, and with due consideration for the issues that are before the court on the certification motion." The court noted that the novelty of the use of the proffered internet evidence would likely result in appeals, thereby delaying the certification hearing.

Adams v. Canadian Tobacco Manufacturers Council, 2010 SKQB 308: Affidavit filed by articled student at Merchant Law Group struck as improper, and contrary to Law Society rules. The information was not purely formal or uncontroverted.

Rainville c. Montréal (Ville de), 2010 QCCS 2690: Court allowed defendant to file affidavit from engineer in proposed flooding class action. The court confirmed that expert evidence can be proffered on certification in appropriate cases, although the proposed affidavit was not an expert report.

THIRD PARTIES

In L. (T.) v. Alberta (Director of Child Welfare) FN 2010 ABQB 262, the court declined to appoint representative third parties prior to the common issues trial where (a) their addition would "unnecessarily protract the proceedings without adding any significant value to the determination of the common issues which have been certified", (b) the liability of the third parties was inherently individualistic, and (c) none of the proposed representatives appeared nor were likely to defend the interest of the proposed third party class. However, the defendant was given the ability to reapply to add the third parties at the individual issues stage. The court also managed any residual limitation concern by stating that "it is reasonable to observe that the Defendants' claims for contribution could only really arise at the individual issues stage of the litigation." The writer is counsel for the Province in this action.

CHICKEN AND EGGS

Cecile v. Retrofoam of Canada Inc., 2010 ONSC 3457: Court ordered that feds must wait until certification in order to bring their motion to strike. Court noted that action would not end if motion successful, as there were other defendants. Court was also concerned with complicating appeal routes. The writer is counsel for one of the defendants and opposed the feds request.

Bellefontaine v. Purdue Frederick Inc., 2010 NSCA 58: In proposed Oxycontin class action, court upheld pre-certification decision dismissing claims of ex juris representative plaintiffs who had not pleaded a real and substantial connection to Nova Scotia. The court held that the appropriateness of a national opt out class could still be considered at the certification motion using the Nova Scotia resident as representative plaintiff.

Best v. Nunatsiavut Government, [2010] 2 C.N.L.R. 1: Application by government to strike on jurisdictional grounds prior to certification. The court allowed the motion to proceed and did strike it.

Sharrock v. Moneyflow Capital Corp., 2010 BCSC 1219: Court ordered that summary judgment application should proceed after certification as (a) set off defence plead was not "clear cut", (b) the proposed defence dealt only with the claims of the one plaintiff, not the class as a whole.

Fairview Donut Inc. v. TDL Group Corp, 2010 ONSC 2845: Court ordered that a summary judgment motion could be heard at the same time as certification given that the motion could dispose of the entire action.

Schneider v. Royal Crown Gold Reserve Inc., 2010 SKQB 382: Court ruled that motion to strike on "frivolous and vexatious" basis should be heard along with certification, as whether there was a proper cause of action was part of the certification test. Laing CJ reflected that he should not have allowed a preliminary motion in Holland v. Sask, given the delays created by that process.

LIMITATIONS

Coulson v. Citigroup Global Markets Canada Inc., 2010 ONSC 1596: Proposed class action dismissed based on limitations. The court commented on how the limitation period should reactivate on dismissal of a class proceeding. The court suggested in obiter that the s.28 suspension would not guard against expiry of an ultimate limitation period. The court stated: "The stricter interpretation of s.28 is that when the limitation period resumes, the calculation of the running of the limitation period resumes at the time when the suspension started - not at the time when the suspension ended. This way of calculating respects or honours ultimate limitation periods and has the effect that limitation periods running from the date of discovery would recommence with some days to run but an ultimate limitation period would be calculated in its normal way with the result that there might not be any days left. Under this methodology, s.28 of the Class Proceedings Act, 1992 has the effect of providing a moratorium stopping the expiry of the limitation period - a window of opportunity to start, if necessary, an individual action or another proposed class proceeding. But once the moratorium is lifted, the effect of s.28 is at an end insofar as an ultimate limitation period is concerned." (This analysis was obiter, as the Plaintiffs were out of time even if the ultimate limitation period was only restarted by the decision refusing certification.) The court did suggest that this effect could be avoided in the appropriate cases however by (1) allowing the substitution of a new plaintiff, (2) staying the operation of the order, (3) appealing the order, or (4) an application by another member to intervene in order to allow an appeal.The court also noted that the extension could be further extended by filing an appeal, but the appeal had to relate to the causes of action raised in the subsequent action. In this case, the appeal was limited in scope, and did not include the claims being advanced in the new litigation. Hence the limitation period had expired.

The court also confirmed that any suspension would apply through a leave to appeal to the SCC, but again only if it the leave application raised the relevant issued (which it did not in this case).

The court went on to consider certification assuming its conclusion was wrong on limitations. The court confirmed that early sellers should be excluded in this securities case. The court also confirmed that the class could only include Ontario residents since the claim only plead the Ontario Securities Act. The court would otherwise have certified the case.

CASE MANAGEMENT OF CERTIFIED ACTIONS

Abdulrahin v. Air France, 2010 ONSC 5173: Court ordered that a legal issue that could avoid the need for a common issues trial be tried in advance of common issues trial.

Robinson v. Rochester Financial Ltd., 2010 ONSC 5116: In this certified class action, the court issued orders:1. appointing a receiver for the defendants;2. invalidating certain opt outs that appeared to have been solicited by someone with a relationship to the defendants;3. Awarding costs in relation to a series of motions.

DISCOVERIES

Sebastian c. English Montreal School Board, 2010 QCCS 3835: In a certified sexual abuse case, court declined to order that rep plaintiff's relatives be examined, but did allow examination of 3 other class members.

Dubé c. Nissan Canada Finance, division de Nissan Canada inc., 2010 QCCS 2653: Court allowed discovery of 5 class members who were referenced in the certification material. Court refused to order that plaintiffs produce a list of class members who had contacted Plaintiff's counsel office, as the court found that defendant should have a better list of all parties with whom they contracted.

Spieser c. Canada (Procureur général), 2010 QCCS 3244: Scope of discovery considered.

PRICE FIXING

Irving Paper Ltd. v. Atofina Chemicals Inc.2010 ONSC 2705: Leave to appeal certification decision denied. The court did find that the public importance requirement was met. Notably, the court stated "I am inclined to the view of the moving parties that the statistical evidence provisions in s. 23 and the aggregate damages provisions in s. 24 cannot be utilized to demonstrate that class-wide injury can be proven as a common issue, nor can those provisions allow a plaintiff to avoid proof of class-wide injury. The Divisional Court in 2038724 Ontario Ltd. v. Quizno's-Canada Restaurant Corp. (2008), 89 O.R. (3d) 252 (S.C.J.) at para. 118 referenced Chadha and stated that "Section 24 of the CPA is procedural in nature, and cannot aid in proving an element of liability." However, the court concluded that the Plaintiff had overcome the restrictions in Chadha stating "Unlike the expert opinion in Chadha, Dr. Beyer analyzed the market and, relying on economic theory, industry reports, pricing information and other empirical evidence, concluded that the alleged conspiracy would have had a common impact on all direct purchaser members of the proposed class. Dr. Beyer also considered whether any of the overcharge would have been passed through to indirect purchasers, concluding that, in at least two major applications of hydrogen peroxide, it would have impacted indirect purchasers. Dr. Beyer did not assume pass through, as did the expert in Chadha, but rather analyzed this issue based on the available evidence and concluded that the extent to which any overcharge was passed through could be determined using a regression analysis."

On the question of evidence, the court stated: "I disagree with the moving parties' submission that Chadha requires a certification judge to evaluate the evidence respecting a methodology and make findings as to whether or not the methodology accords with sound principles of economic science." (at para.61)

The court concluded: "As I previously set out, courts have clearly stated that Chadha remains good law and evidence must be presented on a certification motion to demonstrate that class-wide loss will be provable, whereas the certification judge suggested that Markson and Cassano overtook Chadha and interpreted the phrase "potential liability" in Markson in a different way. Nevertheless, I do not doubt the correctness of her certification order. Evidence was before her on the certification motion and she considered it as well as the defendants' expert evidence challenging it."

In Sun-Rype Products Ltd. v. Archer Daniels Midland Co., 2010 BCSC 922, the court certified a price-fixing case. The court found that it was not plain and obvious that indirect purchasers had no cause of action. On class definition, the court found that "it may be difficult or even impossible for some indirect purchaser class members to self-identify", the court concluded that this should not affect the ability of the plaintiffs to calculate the amount of wrongful gains of the defendants (at para. 81).Given the "unique facts" before the court, such as the widespread use of HFCS in products widely purchased by consumers over such length of time that a large number of BC residents may be said to have purchased them, and the fact that only a small amount of the cost of the final product was made up of the cost of the HFSC, the court concluded that less stringent class definition requirements were warranted. On the battle of the experts, the court stated "[The defendants] often refer to a requirement that the plaintiffs show a "credible and plausible basis" for class-wide harm. This is an incorrect statement of the test. The jurisprudence is clear that what is required is a "credible and plausible methodology" for showing class-wide harm and pass-through. If the methodology takes as inputs certain facts or data (such as, for example, the relevant market) then the court is not in a position at the certification stage to weigh conflicting expert opinion establishing these facts or data.". (at para.163)

The court was also prepared to certify limitations common issues stating: "For the indirect purchasers it is still an open question as to whether there exist certain facts or circumstances such that postponement is a common finding for them, or in the alternative, whether the class can be split into sub-classes, each with their own common limitation circumstances. At this point, I am not prepared to say that the limitations question is not a common or collective issue. The defendants' submission that the bulk of the class (the indirect purchasers) has no cause of action irrespective of how the other common issues are determined cannot stand in my view " (at para.182)

The court rejected that there was a conflict of interest between direct and indirect purchasers at this stage stating "The only parties at this time that have an interest in having the direct and indirect purchasers in a conflict of interest are the defendants....At a later stage, the direct and indirect purchasers may be in a conflict when the time comes to divide the money (if a court determines it is to be paid), but that time is not now. Both "prisoners" at this point simply wish to help each other "escape"."

On the representative plaintiff, the court stated: "While recruitment by counsel is not necessarily fatal, it is a factor to be considered in determining whether the plaintiff has the necessary interest, independence and incentive to fulfill his or her duties to the class. It is also a factor to be considered in assessing whether there is indeed an underlying class with an actual grievance, as opposed to an issue "identified by the industry of counsel" (at para.199).

In rejecting the defendants' "air of reality" submission flowing out of the fact that there was no complaint from a major industry segment, the court stated: " Firstly, evidence of complaints of other class members, while adjudged to be necessary for an air of reality to have existed in both Hollick and Samos, is not an appropriate general test for all class actions. The air of reality test must have a relation to the causes of action pleaded. For example, if the cause of action is nuisance, as it was in Hollick, or economic intimidation and misrepresentation, as it was in Samos, then the air of reality test may very well be complaints from putative class members. However, this is not a claim in nuisance. The conspiracy in this case is alleged to have been secret. Thus it is not surprising that there is no evidence of complaints having been made. It seems to me from an overview of the jurisprudence in the area of price-fixing class actions that involve indirect purchasers, that the required "air of reality" for these special types of class action certifications consists of a credible and plausible methodology for establishing pass-through of losses to the indirect purchasers, a credible and plausible methodology for calculating the defendants' alleged wrongful gains, and pleaded facts which, if later judged to be true, would establish the defendants' wrongful conduct and would provide sufficient data such that these methodologies would work. I have found all of these to be present in this case. I note that this is not the only requirement for certification, the requirements of the CPA must still be met." (paras.209-210)

STAYS

Sun-Rype Products Ltd. v. Archer Daniels Midland Co., 2010 BCSC 1210: The court had to consider the timing of notice of a settlement made with certain defendants pending appeals of the settlement and certification. One of the non-settling defendants argued that notice should await disposition of the appeals. The court disagreed, noting that there was no likelihood of irreparable harm to the non-settling defendants arising from the distribution of the notice. Interestingly, the defendants' argument at certification that the data available to make claims was aging worked against the defendants at this stage, as the court noted the class would be well served with prompt notice.

SETTLEMENTS

Richard v. British Columbia, 2010 BCSC 773: Court approved settlement of abuse class action. The writer was co-counsel for the defendant. The court approved a $10,000 payment to the representative plaintiff to compensate him for "the extraordinary efforts made on behalf of the class" (at p.48). The court appointed supernumerary judges to be the claims adjudicators.

Main v. Cadbury Schweppes plc, 2010 BCSC 1302, Roy c. Cadbury Adams Canada inc.2010 QCCS 4453: Fees approved in BC and Quebec arms of chocolate settlement. Writer is co-counsel for the class in B.C.

Parsons v. Coast Capital Savings Credit Union, 2010 BCCA 311: The issue of whether any additional payments should be made to representative plaintiffs in connection with settlement of class actions was considered. An award of $10,000 was sought on behalf of the representative plaintiff, but not allowed on settlement approval. On appeal, Madam Justice Saunders reviewed the jurisprudence, which she found pitted two principles against one another: the restitutionary principle that service on behalf of others is compensable and the principle eschewing potential conflict of interest situations. She concluded that it was not necessary for the representative plaintiff to provide services of "special significance beyond the usual responsibilities of the Act' in order to justify a separate award for the representative plaintiff, and, that a "modest award" could be made where the representative plaintiff has fulfilled his or her duties, including attendance for examination for discoveries and providing instructions (at para. 20). In support of this conclusion, Madam Justice Saunders pointed to the "exposure to costs assumed by the representative plaintiff in commencing the action", which she also acknowledged was "mitigated upon certification" as B.C. is a "no costs" regime. Madam Justice Saunders approved a payment of $3,500 to the representative plaintiff on the basis that (a) $5,000 was the highest award made to a representative plaintiff in B.C. thus far and (b) there was no affidavit evidence before the Court from the plaintiff showing the amount of time she spent acting as representative plaintiff.

In MacKinnon v. National Money Mart Co., 2010 BSCS 1008, class counsel submitted affidavits from each of the two representative plaintiffs in support of requests for additional payments to each of them. The affidavits provided detailed information as to the involvement of each of them in the litigation, and their personal concerns with respect to exposure to costs. A supporting affidavit from class counsel indicating that the representative plaintiffs helped shape the settlement agreement "in a significant way", coupled with the fact that the litigation "was the vanguard of the class action payday loan litigation and was pursued vigorously for over seven years" (at para. 59) persuaded the Court to award $7,500 to each of the representative plaintiffs.

Fischer v. IG Investment Management Ltd., 2010 ONSC 5132: Market timing class action settlement approved even though earlier motion for certification had been rejected. The court stated "Where certification is sought for the purposes of settlement, all the criteriafor certification must still be met. However, compliance with the certification criteria is not as strictly required because of the different circumstances associated with settlements...In the context of the proposed settlement, I am satisfied that the preferable procedure criterion of s. 5 (1)(d) of the Act has now been satisfied. The existence of settlement changes the nature of the preferable procedure analysis" (at para.10)

Stieber v. Joseph Élie ltée, 2009 QCCS 2498: Case alleging short changing on oil deliveries settled. Court noted that cheques to active customers would be sent directly without the need to make a claim. Contingency fee of 20% approved, 12.5% of which was coming straight from defendant.

Zopf v. Burger, 2010 ONSC 30000: Settlement of investment class action that was essentially a follow on to the earlier certification in Zopf v. Soberman Tessis Inc., [2009] O.J. No. 1104 (Ont. S.C.J.). A new action was filed against different parties with assets. A fee of 16.7% (a 2.5X multiplier) equivalent to $1.75M was approved.

Ontario Hospital Assn. v. Summers, 2010 ONSC 4497: Defendant's class proceeding certified and settled allowing for distribution of proceeds of Mutual Life demutualization.

Kotai v. "Queen of the North" (The), 2010 BCSC 1180: Ferry sinking class action settled for payment of $354,600 to the class members. Class counsel sought disbursements from this fund of $153g, and fees of $60g.

McLaren v. LG Electronics Canada Inc., 2010 ONSC 4710 and 2010 ONSC 5090: Case settled on the basis of the provision of an extended warranty on all impugned refrigerators. Class members were not required to release property damage claims. Legal fees of $250,000 all inclusive were approved.

Toronto District School Board v. Field, 2010 ONSC 3865. Pension surplus case certified. Multiplier of 2 approved.

Chrysler retiree benefits class action settled: http://bit.ly/dxwZmx <http://bit.ly/dxwZmx>

Bibaud c. Banque Nationale du Canada 2010 QCCS 2857: Service fee class action settled

Boulerice c. Bell Canada 2010 QCCS 2922: Late fee class action settled.

Garceau c. Télébec, s.e.c. 2010 QCCS 2824: Internet service interruption class action settled.

Dallaire c. Eli Lilly Canada inc. 2010 QCCS 2760: Zyprexa class action settled

COMMUNICATION WITH CLASS MEMBERS

White v. IKO Industries Ltd., 2010 ONSC 3920: Defendant was communicating with class members in an effort to settle claims in the face of a pending class action. The Defendant agreed that it should provide notice of the class action, but there was a dispute about timing and content.

On timing the court stated: "The most objective and practical time to provide communication about class proceedings is when an individual has submitted the warranty claim, along with the required documentation and is at the stage of deciding whether to accept or reject settlement of the claim. That said, I think there is merit to class counsel's concern that in the face of a dangling cheque, many homeowners may not stop to consider the significance of the class action. In my view that concern can be addressed by a proviso in the notice that IKO cannot complete any exchange of the settlement amount and the release until at least seven (7) days have passed after the claimant has received the notice. This allows the recipient reasonable time to obtain legal advice and/or inquire about the class action before the settlement can be finalized."

The court also addressed certain content issues stating: "A fair compromise is to state that claimants who accept the offer "may" give up their right to participate in the class action....A reasonable compromise will advise the claimant s/he may obtain legal advice or obtain information from class counsel, provided the notice includes a toll free line for service in English or French."

RES JUDICATA

In Ouimet c. Québec (Caisse de dépôt & placement) 2010 QCCA 1222, the Quebec Court of Appeal confirmed that the fact that the proposed class were all part of another class action against other parties did not prevent a class action against a different defendant, particularly where the class was smaller than the class certified in the first case.

INJUNCTIVE RELIEF PRE-CERTIFICATION

Fradenburgh v. Ontario Lottery & Gaming Corp., 2010 ONSC 5387: Ontario lottery class action denied injunction to force new draws pre-trial: http://bit.ly/cdO8R6 <http://bit.ly/cdO8R6> . The court stated: "There are a number of legal reasons, described below, why the plaintiff's motion will be dismissed, but over-riding these there is a very simple reason - it is just not a fair and workable solution. The obvious and sad truth is that once people check their lottery tickets they throw away their losing tickets. The evidence suggests that somewhere around 95% of ticket holders will have thrown away their tickets by now, some three months after the draw. Two of the three number combinations on the tickets are "quick-picks" (i.e., random computer-generated numbers), so it is highly unlikely that people will remember all of their numbers. Under the plaintiff's proposal, only 5% of ticket holders will still have their tickets and 95% either will not know their ticket numbers, or cannot prove their numbers, or both. Anyone can see that a "draw" conducted on this basis would be unfair." The court continued: "The plaintiff seeks immediate class-wide relief in an action that has not yet been certified as a class action. Although it is conceivable that a court could grant an injunction or mandatory order in a proposed class action prior to certification, pursuant to s. 12 of the Class Proceedings Act, 1992, S.O. 1992, c. 6 ("C.P.A."), it would be extraordinary and unprecedented relief."

ARBITRATION

Lachapelle Pontiac Buick GMC ltee c. General Motors du Canada ltee 2010 QCCS 1126: Quebec court refused to give effect to an arbitration clause as it found that arbitral tribunals did not have the power to grant the requested injunctive relief.

Rhodes v. Compagnie Amway Canada, 2010 FC 724: The Federal Court refused to stay an action despite the existence of a class action waiver clause on the basis that any controversy concerning the unenforceability or inapplicability of the limited class action waiver was to be decided by the courts. Further, the court stated that it could depart from the rule of systematic referral to arbitration if there was challenge to the arbitrator's jurisdiction based solely on a question of law.

MOTIONS TO STRIKE

Logan v. Demartech, 2010 BCSC 481: The Third Party Health Canada brought an application to strike and dismiss the Amended Third Party Notice filed by the defendants. The reasons for judgment indicate that "there has not yet been a certification application", so it appears that no issue was taken by the Plaintiff as to whether or not the application was properly brought before certification. The Plaintiff claimed for damages arising from the use of an injectable product which was alleged had serious side effects. Although the Plaintiff did not advance any direct claims against Health Canada, the Plaintiff alleged she would not have agreed to being injected with the product had the product not been available in Canada as a licensed medical device. In their Third Party Notice, the defendants argued that, by licensing the product, Health Canada represented it met the safety requirements set out in the food and Drugs Act ("FDA") and the Medical Devices Regulations (the "Regulations"). The Third Party argued it did not owe a duty of care to the plaintiff in exercising regulatory and licensing powers pursuant to the FDA and the regulations thereunder. The Court agreed, and noted that, in the absence of liability to the plaintiff, a declaration to the extent to which Health Canada contributed to the plaintiff's loss would be of no practical utility because the remaining defendants would be jointly and severally liable for the whole of the plaintiff's loss (at para. 24). The application was dismissed with liberty to apply with respect to costs.

Harris v. GlaxoSmithKline Inc., 2010 ONSC 2326: Application to strike claim relating to alleged illegal delay of entry of generic drugs to market granted.

Mackie v. Toronto (City), 2010 ONSC 3801: Application to strike claim based on failure to repair rental units. Main claim fell as it was within jurisdiction of an administrative tribunal. Court found that new s.46.1 of the Human Rights Act did not allow the discrimination claim to proceed, as the new right to bring a civil claim could only be corollary to another claim. It did not create jurisdiction in the superior courts for a pure discrimination claim.

Pellan c. Québec (Sous-ministre du Revenu) 2010 QCCS 3404: Tax class action struck on basis that Superior Court did not have jurisdiction.

Association pour la défense des droits des défunts & familles cimetière Notre-Dame-des-Neiges c. Notre-Dame-de-Montréal (Fabrique de) 2010 QCCS 2221: Court allowed applications to strike certain allegations in certification motion materials where they were be prejudicial.

APPEALS

Fresco v. CIBC, 2010 ONSC 4734 The Divisional Court upheld the decision refusing certification of this overtime class action. The court held that the legality of the Bank's overtime policy did not yield a useful common issue, since the true issue was simply whether there was in fact overtime that was unpaid. The court found that there was insufficient evidence to support a systemic practice of not paying overtime. The court distinguished Fulawka (another certified overtime case) on the basis that the class was narrower and the court in that case did find the minimum evidentiary standard of a systemic practice was met. There was also evidence in Fulawka that the plaintiff has not been paid for overtime because of the overarching written policy requiring pre-approval. In Fresco, the plaintiff was not even aware of the policy. Further, the CIBC policy allowed post-overtime approval. A common issue as to record-keeping practices failed as (1) there was no evidence of a systemic failing, and (2) the issue would not materially advance the overtime claim. The proposed contractual issue also failed, as it appeared that there was little dispute about the terms; rather the issue is whether the terms were respected. There was no common issue on aggregate damages, as it was clear that damages would have to be considered on a case by case basis. The court also upheld the $525,000 costs order.

In 2038724 Ontario Ltd. v Quizno's Canada Restaurant Corp, 2010 ONCA 466, the Ontario Court of Appeal affirmed a conditional certification of an action on behalf of all Canadian Quizno's franchisees claiming the defendants charged them exorbitant prices for food and other supplies for use in their restaurants. The motions judge had determined the Statement of Claim disclosed causes of action for breach of the Competition Act, R.S.C. 1985, c. C-34, breach of contract, and civil conspiracy, and that the plaintiffs fulfilled the requirements of s. 5(1)(b) of the Class Proceedings Act [footnote S.O. 1992, c. 6] by showing the existence of an identifiable class. Nonetheless, the motion judge refused certification finding that the plaintiffs failed to show that their damages, if any, could be proven in the aggregate on a class wide basis and that this effectively removed any utility in proceeding with determination of other common issues on a class basis. In affirming the Divisional Court's order, the Court of Appeal held that "[38] . . . the majority correctly concluded that the focus of the motion judge's reasons was on the issue of damages, which he found overwhelmed the remaining proposed common issues. While he referred to the other issues in passing, there was effectively no independent analysis of those issues by the motion judge, which constitutes the kind of error that attracts the intervention of an appellate court." The Court of Appeal observed that s. 61(1) of the Competition Act prohibits price maintenance. The Court explained that "[43] . . . for the franchisees to succeed in their Competition Act claim, s. 61(1) must operate in combination with s. 36(1) of the Act, which requires proof of loss or damage. That said, it does not detract from the conclusion that a breach of s. 61 is itself an appropriate common issue, which advances the litigation." Citing Cassano v. The Toronto Dominion Bank [footnote: (2007), 87 O.R. (3d) 401 (C.A.)] the Court found that the issue of whether damages can be aggregated "[56] . . . is an issue to be decided by the common issues trial judge [pursuant to ss. 23 and 24 of the Class Proceedings Act]." The Court added that "[59] . . . s. 25 of the Class Proceedings Act provides a procedural code for the determination of individual issues as an adjunct to a class proceeding. It is clear that the intent of the act is to accommodate both common issues and individual issues that may arise in a class proceeding."

Option Consommateurs v. British Airways, p.l.c., 2010 QCCA 1134: Leave to appeal decision declining to strike price fixing case on jurisdictional grounds prior to certification rejected.

Barbour v. University of British Columbia, S.C.C., McLachlin C.J., Abella & Cromwell JJ., Doc. 33642, June 24, 2010: Plaintiffs' application for leave to appeal to Supreme Court of Canada dismissed, with costs.

Vermette c. General Motors of Canada Ltd.,2010 QCCA 1021: Appeal of refusal to strike parts of certified claim dismissed.

Buffalo v. Samson Cree Nation, 2010 FCA 165: Court upheld denial of certification

Menon v. Regional Health Authority 7, 2010 CarswellNB 328 (C.A.): Court denied leave to appeal an interlocutory evidentiary motion, holding that the applicant must wait until to see whether the matter is certified before appealing to prevent delay of the certification motion by a series of interlocutory appeals

ADMINISTRATION

Fontaine v. Canada, 2010 BCSC 1208: Court found that in assessing the reasonableness of the fees payable by IAP claimants under the Indian Residential Schools settlement, adjudicators could consider the hours incurred by the lawyers on individual claims prior to the earlier 2005 cut off used for payment of class counsel fees, as well as the fact that the lawyers had already been paid for that time.

AMENDMENTS

Langevin c. Bouchard 2010 QCCS 3417: Court approves certain amendments, but did not allow the individual plaintiff to be replaced by a public interest group because certain of the remedies sought were only available to natural persons.

Barrette c. Ciment St-Laurent inc. 2010 QCCA 831: Court refused request to expand class post-merits judgment.

Picard c. Air Canada, 2010 QCCS 2940: Addition of additional representative plaintiffs allowed.

Addition of new defendants allowed: Ouelett c. Hitachi Ltd. 2010 QCCS 261 and Jacques c. Imperial Oil Ltd. 2010 QCCS 2612. In Jacques, the court held that it only needed to examine the issue of cause of action in relation to the new defendants, since the other requirements were already established in the initial certification.

MISC

SSQ, société d'assurance-vie inc. c. Caron 2010 QCCS 3379: Confidentiality request over material filed by Defendant in opposition to certification rejected.

Rodriguez c. Microsoft Corp. 2010 QCCS 2906: Case dismissed because of failure to have a lawyer representing the class.

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Ward Branch, PartnerBranch MacMaster LLP1410 - 777 Hornby StreetVancouver, B.C. V6Z 1S4P: 604.654.2966 | F: 604.684.3429www.branchmacmaster.com

The pain was also mellowed by the writer's old timers' team winning our club championship, leading to a now-hazy and best-forgotten evening quaffing rye out of a pale imitation of Lord Stanley's Mug.

The hockey season's resolution allows our focus to turn to our annual sojourn to Northern New Brunswick. This year's trip will be a special one, as we watch our own cottage being built adjacent to our parent's place within "The Compound". In usual Maritime fashion, construction is already two months behind schedule one month into the project. But the flip side to this casual approach is that our contractor still hasn't asked us for any money!

Feel free to pop by if you are in my neighbourhood. As always, if you: (a) are anxious for real time class action updates, follow me on Twitter at http://twitter.com/wbranch99, (b) like to luxuriate in the past, you can find back issues of the blog on our revamped website: http://www.branchmacmaster.com/class-action-blog-archive/. Note the ability to use the "Search" feature on the right hand bar to find any past entries on specific cases.

CLASS ACTIONS ON THEIR WAY TO THE SUPREME COURT OF CANADA

Two class actions are on their way to the Supreme Court of Canada.

Alberta v. Elder Advocates of Alberta Society, [2010] S.C.C.A. No. 27: Leave granted of decision certifying nursing home class action against the Province of Alberta. The writer is co-counsel for the Province.

Knight v. Imperial Tobacco Canada Ltd., [2010] S.C.C.A. No. 41: Leave granted of decision holding that feds could be brought in as a third party in the certified lite cigarettes tobacco class action.

It is expected that these appeals will focus on the scope of government liability rather than any specific class action issues.

SETTLEMENT AND FEE APPROVAL

Chocolate price fixing settlement approved in Ontario and British Columbia, notwithstanding that the settlement reserved class' right to argue that liability for breaches of the Competition Act remain joint: Osmun v. Cadbury 2010 ONSC 2643, and Main v. Cadbury, 2010 BCSC 816. The writer was co-counsel for Plaintiffs in B.C. Interim fees of 25% were approved in Ontario: 2010 ONSC 2752. Certification for settlement purposes was granted in Quebec, and a decision on settlement approval is pending: Roy c. Cadbury Adams Canada inc., 2010 QCCS 323 and 334.

Brochu c. Société des loteries du Québec (Loto-Québec), 2010 QCCS 1138: Gambling addiction case settlement approved.

Partial price fixing settlements approved in high fructose corn syrup cases: Ali Holdco Inc. v. Archer Daniels Midland Co., 2010 ONSC 3075 Sun-Rype Products Ltd. v. Archer Daniels Midland Co., 2010 BCSC 472, and in the methionine case Ford v. Degussa-Hüls A.G., 2010 ONSC 2787.

Doe v. The Scarborough Hospital, unreported (May 7, 2010) 06-CV-811846 (Ont. S.C.): Hepatitis B risk warning case. Case was previously certified on May 25, 2007. Case included 9 infected class members and 470 contact notice class members. The settlement was agreed prior to judgment coming down in Healey v. Lakeridge Hospital, infra, casting a pall on the ability to recover for merely receiving a letter. The infected individuals and their families received either $50,000, or a referee award with no cap. The notice class received $1000, from which $40 was payable to Kidney Foundation of Canada in lieu of payment to family members. A fee of 26.5% was approved (assuming all class members opted for the $50,000 set sum), which equated to a multiplier of 1.15. The final actual fee amount would be approved and established at the conclusion of all references.

Elliott v. NovaGold Resources Inc., 2010 ONSC 2683: Worldwide class certified for settlement purposes. Canadian Class was confined to individuals who traded on TSX. Case also going to be settled in US. Class members who overlapped between the two cases would have to elect which settlement applied, failing which the US case would govern. In accepting jurisdiction, the Court noted that one of defendants had head office in Ontario, approximately 25-30% of the Novagold shares were traded on TSX, and a number of press releases were disseminated in Ontario. The court carefully assessed the reasonableness of the proposed extraterritorial notice. A separate BC TSX class was also certified: Elliott v. NovaGold Resources (unreported May 6, 2010) VLC-S-S-097866 (B.C.S.C.).

Boulanger v. Johnson & Johnson Corp., 2010 ONSC 2359: Interim fee approval considered in a capped reversionary settlement. The court held that approval should be delayed stating: "My primary concern, at this stage, is to protect the class members by ensuring that there is an adequate fund available to pay their claims. It would be unacceptable to pay a very substantial fee to class counsel, only to find that there are insufficient funds remaining to pay claims in full. It is preferable to award a reasonable portion of the fee at this time, leaving some in reserve as a cushion against depletion of the settlement fund. It makes sense to defer the final fee award for other reasons. The real value of the settlement, in terms of cash in the hands of injured class members, will only be known once their claims have been quantified. If the claims process results in only a small number of eligible claimants, and modest levels of compensation, with a large reversion to the defendant, it might be inappropriate to compensate class counsel with a fee that is disproportionate to the result actually achieved. As well, the time and effort expended by class counsel in assisting class members through the claims process will be an important factor to consider in determining the overall fee. Deferral of the fee enables the court to take all these factors into account in arriving at a fair and reasonable fee. It also creates an incentive for class counsel to facilitate the expeditious completion of the claims process. For these reasons, I will make an interim fee award of $1,500,000.00 (one million five hundred thousand dollars), inclusive of taxes and disbursements" Class counsel had $2 million in time at the time of approval.

J.C. c. Bachand, 2010 QCCS 1842: Class member in residential schools case sought to bring an action against the administrator. Court held that leave was required from the settlement approval judge in order to pursue such a claim, given the terms of the settlement agreement.

Boulerice c. Bell Canada, 2010 QCCS 1918: Notice approved and settlement approval date established in this proposed late fee class action settlement.

Harrington v. Dow Corning Corp., 2010 BCSC 673: Court rejected class member's appeal of refusal of her claim. The court stated "In my view, it is not open to the court to, in effect, re-write the provisions of the Settlement Agreement with respect to the requirements for proof of claims in this fashion." (at para.15)

Bibaud c. Banque Nationale du Canada, 2010 QCCS 1727: Notice approved and settlement approval date established in proposed service fee class action settlement.

Mailhot c. Diabète Amiante inc., 2010 QCCS 1789: Settlement approved in case involving alleged reuse of needles in contaminated blood sugar testing equipment. No individual was infected. Payment of $170g made to 170 class members, plus fees of $39,000.

Abdulrahim v. Air France, 2010 ONCA 403: Appeal by non-settling defendant of partial settlement order refused. As in the chocolate case, supra, the court found that there was nothing in the proposed bar order that prevented the non-settling defendant from exercising any substantive rights in may have. The court also held that the bar against discovery was appropriate given that the litigation was already at an advanced stage with the non-settling defendant having had full rights of discovery for many years.

Richer c. Banque Nationale du Canada, 2010 QCCS 2142: Class action alleging misrepresentation of an investment as unattachable was certified, and a settlement approved.

Thibault c. St. Jude Medical Inc., 2010 QCCS 1575: Settlement approved in medical products case

Langlois c. Roy, 2010 QCCS 1610: Pension settlement approved.

Therrien c. Compagnie de volailles Maxi ltée, 2010 QCCS 1244: Nuisance class action certified, and settlement approved.

Speevak v. Canadian Imperial Bank of Commerce, 2010 ONSC 1128: Release of private information action certified, and settlement approved. The terms of the settlement were as follows: "[E]ach class member will be provided with a claim form to be submitted to CIBC. In response, CIBC will make a settlement offer to the claimant. If this offer is not accepted, the class member is entitled to have his or her claim assessed by an independent arbitrator. The right to claim for identity theft at any time in the future is preserved. CIBC will pay the costs of class counsel and the arbitration process. CIBC will also pay $100,000 to a registered charity." Fees of $42,500 were paid up to the date of mediation and partial indemnity costs thereafter. The Class Proceedings Fend would be paid 10% of any damages recovered.

Doucette v. Eastern Regional Integrated Health Authority, 2010 NLTD 29: $17.5 million settlement in relation to faulty breast cancer screening. A 33.3% contingency fee was approved.

Kidd v. Canada Life Assurance Co., 2010 ONSC 1097: Tentative settlement in place in pension action. Court issued declaration on the consents required.

Communication Méga-sat inc. c. Sharp Electronics of Canada Ltd., 2010 QCCS 322: Notice approved of proposed settlement.

Catalyst Paper Corp. v. Atofina Chemicals Inc., 2009 BCSC 1659: 15% fee approval on partial settlement in hydrogen peroxide price fixing case. Parallel case certified Ontario. Fee represented a shade over a 2X multiplier.

CERTIFICATION

Bell v. Cara Operations Ltd. (May 31, 2010) 4802/10 (Ont.S.C.): Certification consented to in relation to E.coli case at a certain fast food restaurant commenced by a certain Windsor law firm aka "Harvey's Harvey's case". The writer is counsel for one of the defendants.

Goodridge v. Pfizer Canada Inc., 2010 ONSC 1095: Gabapentin class action certified by Justice Perrel. However the proposed scope was narrowed. The court did not certify the claims relating to allegations that the Defendants wrongfully and falsely promoted Neurontin for "off-label" uses in Canada, nor claims or common issues about the Defendants being liable for generic drugs manufactured by their competitors, on the basis that there was "no basis in fact" for the former claim, and that it was "plain and obvious" that the second claim could not succeed. The court did accept that "the increased risk of experiencing suicidal behaviour allegedly caused by Neurontin is a materialized actual harm just as much as, for example, would be the increased risk of a experiencing a heart failure caused by a drug that raised or lowered one's blood pressure to dangerously high or low levels " (para.58).

On class definition, all persons who were prescribed and ingested the drug were included. The court noted the need to treat Alberta's health care claim differently, as the Alberta statute did not provide for subrogated claims. (at para.115)

The court certified standard products liability questions, but refused to certify punitive damages. The court bifurcated the waiver of tort issues.

Schroeder v. DJO Canada, Inc.,2010 SKQB 125: Pain pumps class action certified. On the cause of action test, the court concluded that Saskatchewan's version of the test was a "slightly higher threshold requirement". He summarized the Saskatchewan test as "Assuming the facts as pleaded are true, have the representative plaintiffs persuaded the Court that there exists a plausible basis for supposing the de-fendants could be liable for the claims of the class?" The court continued stating "Our Court of Appeal determined that one of the objectives of our legislation was to create a screening mechanism aimed at permitting a proposed class action to be certified only where there are "authentic" causes of action. A screening mechanism was considered to be particularly important in Saskatchewan because plaintiffs who commence proposed class actions in this jurisdiction are protected against an award of costs. Consequently, there is no disincentive to plaintiffs who commence marginal litigation in hope of inducing a settlement from a defendant who wishes to avoid exposure to the enormous costs associated with class action litigation." (at para.27).

The court approved a "claims made" limit on the class definition (para.80). A subclass of Saskatchewan residents was created in relation to local Consumer Protection Act issues. The court certified a general causation question being "Does the DonJoy Pain Control Device cause chondrolysis when placed in the synovial cavity of a knee or shoulder following surgery?", as well as the usual duty, breach, Consumer Protection Act, and punitive damages issues. On preferable procedure, the court stated "I have considered all of the other options available to the class members, including individual actions and test cases. However, given all of the circumstances, including but not limited to the complexity of the issues involved and the significant costs associated with prosecuting such a claim, I am convinced that the class action is not only preferable, but perhaps the only viable option." (at para.147)

After the court concluded that all the statutory requirements were met, the court went on to consider whether there were any residual considerations that might prevent certification, relying on Western Canada Shopping Centres. The author's view is this review was in error. The statutory requirements comprise the entire certification test, and no residual discretion exists if the requirements are met. Western Canadian was decided under the old representative rules, and hence is distinguishable. However, the court found no residual factors, making the issue moot.

The court certified on a national opt out basis..

Brown v. Canada (Attorney General), 2010 ONSC 3095: Certification sought of class of aboriginal persons allegedly "scooped" from 1965 to 1984, and placed with non-aboriginal families. The court found that "(a) with amendments to their statement of claim; (b) with revisions to the proposed class definition and proposed common issues, and (c) subject to the preparation of an adequate litigation plan, Ms. Brown and Mr. Commanda will be able to satisfy all five criteria of the test for certification". The court found that the following question could be the subject of a class proceeding: "In Ontario, between December 1, 1965 and December 31, 1984, when an aboriginal child was placed in the care of non-aboriginal foster or adoptive parents who did not raise the child in accordance with the child's aboriginal customs, traditions, and practices, did the federal Crown have and breach a fiduciary or common law duty of care to take reasonable steps to prevent the aboriginal child from losing his or her aboriginal identity?"

The court struck various other causes of action. The court found that the proper class definition was: "Aboriginal persons in Ontario between December 1, 1965 and December 31, 1984 who were placed in the care of non-aboriginal foster or adoptive parents who did not raise the children in accordance with the aboriginal person's customs, traditions, and practices."

The court rejected the Feds' test case alternative stating: "The class action that emerges removes the idiosyncratic issues associated with identification as aboriginal, causation, damages, and quantification of damages that would have made a test case meaningless unless the Federal Crown were to concede some or all of those idiosyncratic issues for the purposes of being bound by the test case...In a sense, the litigation of Ms. Brown's and Mr. Commanda's story will be the test case for deter-mining whether the Federal Crown committed a civil harm" (paras.182, 185)

Johnston v. The Sheila Morrison Schools, 2010 ONSC 3334: School abuse case certified on consent.

Class action (almost) certified in relation to conditions at Ontario institution for mentally disabled: Dolmage v. Ontario, 2010 ONSC 1726.

Coulson v. Citigroup Global Markets Canada Inc., 2010 OJ 1109: Certification was dismissed due to expiry of limitation period. On costs, the court stated that "The effect of s. 31(1) of the Class Proceedings Act, 1992, S.O. 1992 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...[T]he presence of any of the factors mentioned in s. 31(1) of the Act does not preclude the court from exercising its discretion to award costs against an unsuccessful plaintiff." The court found that the case did raise novel issues about the operation of limitation periods. That was sufficient to lower the amount otherwise payable. The court awarded each of the group of underwriters and Deloittes $70,0000: 2010 ONSC 2553:

International class action certified against George Brown College: Ramdath v. George Brown College, 2010 ONSC 2019: Court found that there was a sufficient common factual core created by statements in the written calendar.

On the international breadth of the class, the court held:

"In this case, looked at from the perspective of both the international students and George Brown, there would be every reason for both to expect that claims arising from their relationship would be litigated in Ontario. Given that George Brown is based in Ontario, the students came to college in Ontario and lived in Ontario, and the contract was performed in Ontario, it is hard to imagine that either party would have contemplated that George Brown would be sued in China, India or any one of the other foreign jurisdictions if the relationship broke down. There is, in any event, a real and substantial connection with Ontario and there is no such connection with any other single jurisdiction. The second factor, respect for procedural rights, including adequate representation of non-resident Class Members, is an issue that must be addressed and I will deal with it under the question of the representative plaintiffs and the litigation plan. The notice aspect of procedural fairness can also be addressed in dealing with the litigation plan. I do not accept the proposition that procedural fairness in this case requires satisfying myself beyond any doubt that each member of the Class will receive actual notice of the action and of his or her right to opt out. This is not a requisite of a purely provincial or interprovincial class action and it could make effective international class actions a practical impossibility. Nor do I accept the proposition that the court should not exercise jurisdiction over non-resident class members where there is evidence that a particular foreign jurisdiction might not recognize a class action judgment either altogether (as is said to be the case in China) or in the absence of actual notice (as is said to be the case in India). The hypothetical failure of another state to observe the generally accepted principles of private international law in connection with the assumption of jurisdiction and the recognition of foreign judgments should not preclude an Ontario court from taking jurisdiction in a class action involving its residents, provided the conditions set out in Currie are met" (paras.71-72)

The court looked to the IBA Guidelines and stated "It is clear from the evidence of George Brown's experts in foreign law that there is no legal precedent, in either India or the PRC, for the recognition, or non-recognition of the class action decisions of the courts of other jurisdictions. If the Guidelines are intended, as they say they are, to state "minimum internationally accepted standards" to be followed by courts issuing judgments in class proceedings, and to be considered by courts of other jurisdictions in determining whether such judgments will be recognized, why should I assume that the courts of India, of the PRC, or of any other jurisdiction will refuse to observe those minimum standards?" (at para.84)

The court did conclude that the notice plan would be critical to engaging individuals outside Ontario. The court deferred the determination of the notice plan for a later hearing.

On class definition, the court confirmed that "the possibility that some class members will be unable to prove damages is a necessary result of the requirement that the class definition cannot be merits-based." (para.95)

On common issues, the court refused to certify aggregate or punitive damages stating " I am not at all satisfied that it is appropriate to state a common issue of aggregate assessment in this case and as it is not necessary, I do not propose to do so. It can properly be left to the trial judge. The plaintiff also puts forward the entitlement to punitive damages as a common issue. It may be appropriate to award punitive damages where the conduct of defendant is aimed at the class as a whole: Robinson v. Medtronic Inc., [2009] O.J. No. 4366 (S.C.J.) In this case, however, it will only be possible to assess the defendant's liability for punitive damages after individual assessments of damages have been made. The punitive damages claim is not appropriate as a common issue." (paras.120-121)

The court also refused to certify a question asking whether the defendant should pay the cost of administering any recovery stating "It is not necessary to have a common issue such as question 14, dealing with the administration of recovery. There is authority under s. 12 and s. 25(2) of the C.P.A. to give directions concerning the resolution of the issues remaining after the determination of common issues in favour of the class."

Finally the court declined to certify the issue of prejudgment interest stating "As individual trials will likely be required to assess damages in this case, prejudgment interest is not an appropriate common issue." (para.124)

On preferable procedure, the court found that joinder was not practicable for a class of 119 students.

The Defendant asked that individual issues be determined before any common issues. The court declined to do so stating "George Brown is really trying to turn this action into an opt-in class action by requiring each Class Member to come forward and establish his or her entitlement to claim prior to the resolution of the common issues. This proposal stands class proceedings on their head and would result in a waste of judicial and private resources if the common issues were ultimately decided against the Class. It may be the case that, in an exceptional circumstance, the court's jurisdiction under s. 12 of the C.P.A. would permit the determination of some or all individual issues before the common issues, but I have some difficulty in contemplating what those circumstances might be. I see no reason to do so in this case." (at para.150).

The court created three subclasses, but confirmed that it was not necessary to have a separate representation for the third group where there was no suggestion of a conflict. However, the court found that there should be a separate representative on behalf non-resident Class Members as ". These persons have unique interests concerning several matters, including purely administrative issues such as notice and communication, as well as substantive matters such as damages. They may have incurred substantially greater costs to attend George Brown, including higher tuition, visas, transportation and residence costs. Their voice should be separately heard in the action itself and in any discussions of settlement."

On the litigation plan, the plaintiff's counsel confirmed for the court that her firm's retainer would continue after the resolution of the common issues.

Dennis v. Ontario Lottery and Gaming Corp.2010 ONSC 1332: The Plaintiff sought to represent a primary class of approximately 10,428 individuals who signed "self-exclusion" forms provided by the Ontario Lottery and Gaming Corporation ("OLGC") between December 1, 1999 and February 10, 2005. The action was brought to recover gambling losses subsequently incurred as a result of OLGC's alleged failure to exercise its best efforts, and to take care, to exclude them from its gambling venues. The court refused certification:

"I believe that serious flaws in the plaintiffs' case for certification are exposed when consideration is given to the requirements of commonality, and that of a rational connection between the class definition and the proposed common issues. For the reasons that follow, I am satisfied that:

1. the claims advanced on behalf of the class members are predicated, and dependent, on their vulnerability;2. vulnerability is not a condition of class membership. As defined, and, in consequence, causes of action that are addressed by the proposed common issues are not confined to compulsive gamblers;3. the problem of over-inclusiveness of the class definition, and the conse-quential individualistic nature of the proposed common issues, cannot be resolved by the use of statistical evidence to characterize a percentage of the class members as pathological problem gamblers; and4. in consequence, the requirement of a class in section 5(1)(b) and of com-mon issues in section 5(1)(c) of the CPA are not satisfied and certification must be denied...

In short, if, as I believe, the degree of vulnerability of members of the primary class is relevant to such other elements of liability, it is not permissible to conclude on the basis of statistical sampling, or a five-minute labelling test, that any of the class members was a vulnerable problem gambler to any particular degree. Individual inquiries would be necessary for this purpose and this would then be an example of the situation referred to by the Chief Justice in Rumley v. British Columbia, ...where a determination of the proposed common issues would degenerate into a consideration of the claims of each of a potentially diverse group of individuals. There would have to be an inquiry into the personal circumstances, the gambling history, the extent of the addiction or compulsion to gamble of each class member at particular times, and, if the approach to causation in Calvert is accepted, his or her likely behaviour if OLGC had exercised its best efforts or exercised reasonable care. An attempt to avoid problems of class definition and commonality at the certification stage by relying on statistical evidence at trial for the purpose of narrowing the class is not in my opinion acceptable....[at para.221]

Again, the CPA does not, in my opinion, permit the commonality of issues of breach to be determined -- from studies of alcohol or drug addictions, as Dr Williams suggested, or otherwise -- on the basis that it is statistically more likely than not that any self-excluded person, or number of them, would subsequently attempt to return to OLGC's gambling facilities. Common issues are those that can be determined on a class-wide basis -- and not on the basis of expert evidence of the statistical probability of commonality. Defendants in individual actions are not subjected to liability on the basis of statistical probabilities that the material facts that constitute a cause of action exist or have occurred. The CPA, as a procedural statute, does not alter this position except for the limited purposes referred to in section 23." (at para.224)

Koubi v. Mazda Canada Inc.,2010 BCSC 650: Car lock defect case certified. Waiver of tort certified. However, the court held that whether the class was entitled to damages for loss of use and enjoyment of their vehicles on an aggregate basis pursuant to s. 29 of the CPA was not an appropriate common issue. That was because the defendants' conduct could not be considered in isolation from individual circumstances of the claimants. There was no basis in the evidence to suggest any uniformity in the extent to which individuals may have been affected. Similarly, whether punitive damages would be warranted or would serve a rational purpose, and the quantification of such punitive damages, were not amenable to resolution as common issues. The action was certified subject to the plaintiff's producing a more comprehensive litigation plan.

Morrison Estate v. Nova Scotia (Attorney General), 2010 NSSC 196: Case challenging nursing home entry policy certified. Province's only challenge to certification was whether the court had to consider whether every cause of action plead disclosed a cause of action, or whether one cause of action was sufficient. The court held that there needed only be one cause of action, but that the defendant could still bring a motion to strike any other cause of action at any time: "It is not that resorting to alternatives is necessary, only that they may help to provide substance and support to the court's conclusion. But where, as here, there is admitted to be at least one cause of action that complies with s. 7(1)(a) (in this case, breach of fiduciary duty) an analysis of the other causes of action is unnecessary and would serve no purpose. If the defendants apply to strike any or all of the other causes of action, that will be the time to analyze them and to determine their merits, having regard to the applicable law and onus on such a motion" In the author's view, the key issue would be whether all of the common issues were supported by the one cause of action approved by the court. The judgment does not review the common issues, so this is unclear. But if certain common issues related to other causes of action, then the court should have reviewed the viability of the other causes of action to this extent.

Robinson v. Saskatoon (City), 2010 SKQB 98: Taxi drivers sought certification of a class action alleging that City was improperly allowing transfers of licences to persons who did not drive taxis. The court found that there was no cause of action against the City, as it was simply an allegation of regulatory negligence. The court also found that claims against the industry defendants who actually obtained the licenses was also flawed. The court found that the class was over inclusive as the court was "without evidence that "all, a majority, or even a significant minority" of the proposed class has suffered a loss." The court rejected the proposed common issues on the basis that "The common issues suggested by the plaintiffs do not cover all of the issues flowing from their claims in negligence, unlawful interference with economic relations, and unjust enrichment. Some of the issues suggested would, in the event of certification, require some revision. Further, the suggested common issues include argument and assumptions." Finally, the court found that the litigation plan did not include the elements recommended in Sorotski v. CNG Global N.V., 2007 SKCA 104 (para.78).

Anderson v. Canada (Attorney General), 2010 NLTD 106: Residential school case certified. Most of the battle was over whether a proper cause of action existed, given that the class included Inuit allegations that arose prior to the implementation of the Indian Act in Newfoundland.

Ladouceur c. Société de transport de Montréal, 2010 QCCS 1859: A class action was certified in relation to a transit service interruption.

Carrier c. Québec (Procureure générale), 2010 QCCS 2235: Road noise class action refused certification. The court found that the claim did raise common issues, and that joinder was not practicable. However, the case fell down on the cause of action requirement. The court found that the case was based solely on a governmental policy decision as to the extent of sound barriers put on the highway.

Association des journalistes indépendants du Québec (AJIQ-CSN) c. Journal Voir, 2010 QCCS 1574: Republication copyright class action certified.

Comtois c. Telus Mobilité, 2010 QCCA 596: Refusal of certification of cell phone charge case overturned. The court noted that the contractual documents were now before the court, and that their absence had been the main reason for refusal at the first stage.

Fulawka v. Bank of Nova Scotia, 2010 ONSC 1148: Overtime class action certified. The court stated: "I have concluded that there is an evidentiary basis in this case of systemic wrongs that give rise to common issues, the resolution of which would advance the claim of every Class Member." (at para.4) The court distinguished the refusal to certify a similar claim in Fresco v. CIBC on the basis that "Lax J. found that the claim of systemic wrongdoing had no evidentiary foundation." (para.60) Leave to appeal was granted at 2010 ONSC 2645 on the ground that in fact the decisions did conflict.

KRP Enterprises Inc. v. Haldimand (County), 2010 ONSC 901: Case certified for damages, including nuisances, caused by police management of an aboriginal protest.

Banerjee v. Shire Biochem Inc., 2010 ONSC 889: Products liability case involving Parkinson's drug Permax certified on consent. National class certified that included a Quebec subclass. On the need for this subclass, the court stated "A sub-class will be created for Québec residents since the application of the law of Québec gives rise to additional common issues. Class counsel has undertaken to cooperate with plaintiff's counsel in the Québec Action to ensure that members of the Québec sub-class are able to fully participate in the pilot project, to present their claims in the French language and to obtain all necessary information in the French language." The court did not include aggravated damages as a common issue stating: "Aggravated damages are assessed on an individual basis as part of general non-pecuniary damages: see Carom v. Bre-X Minerals Ltd., above, at para. 83, and Kotai v. The Queen of the North, 2007 BCSC 1056, [2007] B.C.J. No. 1573, at paras. 40-42." A pilot project to canvass potential settlement was also approved. The Quebec stay of proceedings is reported at: Lépine c. Shire Canada inc., 2010 QCCS 207.

Holmes v. Jastek Master Builder 2004 Inc., 2009 SKQB 421: Court (almost) certified class action arising out of defendants' failure to complete a condominium project. The court found that the class should be confined by reference to a beginning and end date. The court rejected the punitive damages claim stating: "It would appear from Merck Frosst Canada Ltd. v. Wuttunee, 2009 SKCA 43, 324 Sask. R. 210, our Court of Appeal has clearly stated that punitive damages are not appropriate as a common issue." Certain causes of action were rejected and the plaintiffs were given leave to amend. Certification would be considered after those amendments were completed.

DOCUMENTS AND EVIDENCE

T.L. v. Alberta (Child, Youth and Family Enhancement Act,Director), 2010 ABQB 203: The court considered a request for better production from the Plaintiffs after certification of this litigation by children in care alleging a failure on the part of the government to sue third parties. The writer was counsel for the Province. The court granted the order in part stating: "Subject to the limited production which I will require, I am not satisfied that it is necessary for the representative Plaintiffs to produce all of the Requested Records at this stage of the proceedings. While most of the Requested Records will likely be considered to be relevant and material if this Action proceeds to the second stage to the determination of the individual issues, I accept the argument of the Plaintiffs that many of the Requested Records will not assist the Court in resolving the common issues. The records necessary for determining the common issues are primarily in the hands of the Defendants, including the child welfare records of the representative Plaintiffs. However, I will order the Plaintiffs to make further and better production of all records which are in their actual possession and which were generated by, or relate in any way to, Child Welfare or the Public Trustee and specifically refer to a particular representative Plaintiff. That type of information is relevant and material and may assist in establishing the factual matrix as to when the representative Plaintiffs came under the authority of, or a relationship developed with, the Defendants. This will provide some context to the common issues, particularly regarding the existence of a duty of care, and is consistent with Slatter J's (as he then was) comments in T.L. v. Alberta (Director of Child Welfare), 2006 ABQB 104 at para. 124."

Bodnar v. Cash Store, 2010 BCSC: Plaintiff brought application to disclose certain of defendants documents filed in BC class action to Alberta class plaintiffs. The court established for the first time that a Plaintiff must apply to court to seek leave to relieve it from the implied undertaking over such documents, even if they are filed on interim motions. However, in this case, the court found that there was little prejudice to the defendant, as the documents would eventually have to be produced in Alberta in any event. Our firm was counsel for the defendant.

Savoie c. Compagnie pétrolière Impériale ltée, 2010 QCCS 1464: Court struck certain newspaper articles relied upon by the Plaintiff in this conspiracy case.

White v. Glaxosmithkline Inc., 2010 SKQB 174: In this Paxil class action, the court allowed the plaintiff to examine two defence deponents on certification under condition of a fixed schedule. In an earlier proceeding, 2010 SKQB 108, the court allowed cross-examination of a plaintiff'. The court stated after reviewing the Saskatchewan authorities "all of the above decisions support the view that leave to cross-examine under Rule 317 is granted more readily in proposed class actions than it is in other civil proceedings." (at para.9) and "[In other cases] In those cases, cross-examination provided insight into situations where the person signing the affidavit knew very little about, or actually disagreed with, its contents."

Thorpe v. Honda Canada, Inc., 2010 SKQB 39: Defendants sought to example the reprehensive Plaintiff, and to strike out portions of two affidavits. The court allowed the application to examine stating: "After careful review, I am satisfied that the cross-examination sought will assist in the ultimate determination of the certification application. It is possible, as alleged by Honda Canada, that multiple claims of excessive tire wear against Honda Canada will inevitably raise issues that are "common" at some level. However, that is not the issue. The determination that ultimately needs to be made by the court is whether the resolution of the proposed common issue is going to move the litigation forward sufficiently so as to justify certifying the action as a class proceeding...One of the obvious concerns behind the hesitation to routinely permit cross-examination on affidavits is the fear that such a process will cause delays and take on a life of its own. However, in this case the proposed cross-examination is not expected to be lengthy and will not affect the dates already set for the certification application." (at paras. 9-10)

The court also struck out portions of the affidavit reporting on general internet complaints as to the problems at issue, including postings on class counsel's website. The court stated "Ms. Thorpe has pulled information from the internet complaints about Honda automobiles posted to various web pages by unknown and anonymous persons. As pointed out by Honda Canada, who, when and under what circumstances, these postings have been made is not apparent. Although Ms. Thorpe swears that she believes the postings to be true in the generic opening paragraph of her affidavit, she provides no basis for such belief. How can she "know", for example, that "Kim R." is telling the truth about his/her 2006 Honda Civic? While it may be true that Ms. Thorpe has no reason to believe the information is not true, she likewise has disclosed nothing in her affidavits that would tend to suggest that such information is true, accurate, reliable and/or unaltered.Likewise, the information retrieved from Ms. Thorpe's law firm's web page is similarly unreli-able. Anonymous complaint submissions received in this fashion have little or no probative value. Accordingly, I find that affidavit evidence, "on information and belief", including information taken from the internet, is potentially admissible in interlocutory applications, such as a class action certification application, and may be admitted "under special circumstances" where the "grounds for such information and belief" are adequately disclosed and the information is reliable. Here, the sub-jective basis for the reliability of the information has not been disclosed and, furthermore, there is no objective basis to believe that the various postings have any degree of reliability."

In 2010 SKQB 136, the defendants sought to cross-examine further affiants on certification and require individual vehicle inspection. The affiants were proposed class members, but not the proposed representatives. The court stated:

"it is a fair observation that courts in this jurisdiction have been quite generous in the exercise of the courts' discretion in favour of granting such requests, resulting in frequent orders permitting defendants to cross-examine the plaintiff's affiants. This could be as a result of a recognition that certification, albeit just a procedural step in a process, can have a significant impact on the parties and a willingness to err on the side of too much information, rather than not enough...However, despite the apparent trend toward granting leave to cross-examine deponents on affidavits in order to ensure an adequate evidentiary record, such requests ought not to be considered automatic or routine. Clearly, there comes a point when it is not appropriate to permit cross-examination. That point has been reached here. In this case, I have concluded that it would not be appropriate to exercise my discretion in favour of granting Honda Canada's request to cross-examine the two deponents on their affidavits. The reasons for arriving at this conclusion include the following:

* I am not satisfied that Honda Canada's desire to question the deponents is based on a real and sincere need to clarify issues relevant to the certification requirements that are raised in the filed affidavits.* The answers to any questions arising from the sought after cross-examinations would be of no assistance, or only marginal assistance, to the s. 6 inquiry.* Many of the reasons cited by Honda Canada to support the request to cross-examine the affiants focus on the merits of the deponents' claims.* Granting the request at this point (even though Ms. Thorpe bears much of the responsibility for the issue coming to a head at this late stage), would necessitate an adjournment of the scheduled date set for the certification application and thus, unduly delay the determination of the certification application."

The court declined to allow an individual examination of the affiant's vehicles on the same basis.

Fairview Donut Inc. v. TDL Group Corp., 2010 ONSC 789: Sealing order refused in relation to defendant's evidence in this franchise class action. The court stated "I am not satisfied that the risk of harm in this case is real and substantial or well-grounded in the evidence. Tim Hortons' evidence of harm is speculative, general and lacking in specifics. "

Comité des citoyens inondés de Rosemont c. Montréal (Ville de), 2010 QCCS 1879: Plaintiff brought application for documents from the defendant in a flooding class action, including those regarding any claims made to the City. The application was rejected as a fishing expedition, and as being premature..

Tetefsky v. General Motors Corp., [2010] O.J. No. 1117 (S.C.J.) and 2010 ONSC 2539 (costs): Plaintiff sought order for disclosure of certain third party information. The court refused the motion, and ordered costs of $20,000 against the Plaintiff.

Gay v. Regional Health Authority 7, 2010 NBQB 128: Defendants sought production of medical records, and to strike certain portions of affidavit and claim. The court allowed a Commission of Inquiry report to remain in the material. The court accepted that "Dr. Hutton's affidavit and the Inquiry Report are principally relevant to common issues to class definition and preferable procedure as it addresses the evidentiary basis necessary for certification of the class action as there must be some basis in fact for each of the certification requirements." The court also ordered that the defendant file their material in response to certification in advance of any cross-examination. (at para.36). The court rejected the application for medical records: "The Court's primary concern is the adequacy of the evidentiary record before it, upon which it will determine the certification issue. The certification motion is procedural and there are limits on what evidence and procedure is to take place prior to that hearing. To order the production of the medical record at this stage and allow cross-examination would only cause a lengthy and expensive hearing that would serve no purpose for the certification." The motion to strike portions of the claim was also dismissed.

Association pour la défense des droits des défunts & familles cimetière Notre-Dame-des-Neiges c. Notre-Dame-de-Montréal (Fabrique de), 2010 QCCS 2221: Application to strike certain prejudicial and scandalous aspects of motion for certification granted.

Spieser c. Canada (Procureur général), 2009 QCCS 5178: In this certified environmental class action, the court confirmed that the defendant could ask questions about the representatives current and past residences, their medical history, and lifestyle factors that might have contributed to their healh condition.

Sigouin c. Merck & Co., inc., 2009 QCCS 5145: In this certified Vioxx action, the court ordered production of plaintiff medical records, but on consent. The court refused a motion for particulars and a motion to strike certain allegations.

Conseil québécois sur le tabac et la santé c. JTI-MacDonald Corp.2009 QCCS 5157: Court declined to issue a stay of the certified tobacco class action pending a constitutional challenge to the causation assistance provisions of the Tobacco-Related Damages and Health Care Costs Recovery Act.

Smith v. Inco Ltd., [2009] O.J. No. 4820: Court rejected expert report from notice guru Todd Hilsee at class action trial. The court stated: "I find that the proposed opinion evidence is relevant to an issue in this case. As I indicated earlier, one of the issues is what the public knew regarding nickel contamination before and after September 2000. Therefore, clearly the content of the public documents, the degree of dissemination, and the readability of these documents, are all relevant to this issue....Although testing and scoring of the documents for readability may be helpful in a judge's assessment of a written document, it is not necessary. It is part of the routine day-to-day work of a judge to assess the readability of a document. Expert assistance is not necessary."

DISCONTINUANCES

B.C. church floor collapse class action abandoned. Our firm counsel for the church. See: http://bit.ly/aRUkxL <http://bit.ly/aRUkxL>

Hudson v. Austin, 2010 ONSC 2789: Court allowed discontinuance of proposed medical negligence class action (launched primarily to protect limitation periods) on the following terms:"I order that Ms. Hudson post on her class action webpage a Notice of Intent to Discontinue the proposed class action as of September 30, 2010.* I order that the Notice of Intent to Discontinue be sent to the Toronto Star (Robb Cribb, Tanya Talaga, investigative reporters); the Globe & Mail; the National Post, the Toronto Sun, Canoe, CNews, the Epoch Times, the Windsor Star, the Sault Star, the Canadian Press, CTV News, CBC News, and Global News and any other media as Ms. Hudson may be advised.* I order that the form of the Notice of Intent to Discontinue be approved by the court at a case conference and that Ms. Hudson shall prepare the first draft after consulting with the Defendants.* I order that any new actions commenced against the Defendants be case managed and that the case management order, referred to below, be amended accordingly.* I fix costs of the discontinuance at $10,000, all inclusive, for Dr. Austin and order that these costs be payable to him in the cause.* I fix costs of the discontinuance at $10,000, all inclusive, for the Defen-dants the Scarborough Hospital, Dr. Hugh Scott, Dr. Atilla Turgay, Dr. David Hodgkiss, Dr. Georgina Wilcock, Dr. John You, and Dr. Jack Stein and order that these costs be payable to them in the cause"

The court noted that notice need not be given in every case of a discontinuance. Whether notice would be given would depend on whether it was likely that any class member was relying on the stay provided for in the statute. The court deferred the discontinuance order by 4 months to allow any individual actions to be commenced. The court found that direct notice to all patients was not required, as there was no evidence that persons beyond the persons who contacted class counsel were relying on the statutory stay.

Charmley v. Toronto Hydro-Electric System Ltd., 2010 ONSC 1956: Court allowed Plaintiff in an explosion case to discontinue against defendant Toronto Hydro. The court was satisfied that the claim had no reasonable prospect for success.

Mères avec pouvoir (MAP) Montréal c. Bell Canada, 2010 QCCS 141: Class action discontinued.

APPEALS

Plourde v. Wal-Mart Canada Corp., 2009 SCC 54: Dismissal of union busting class action upheld.

JTI-MacDonald Corp. c. Conseil québécois sur le tabac et la santé, 2010 QCCA 177: Court granted tobacco companies leave to appeal decision striking certain pleadings, but declined to issue a stay of the underlying class action.

Dell v. BellExpressvu Inc., 2009 SCCA 452: Class' leave application on negative merits determination dismissed.

Ring v. Canada, 2010 NLCA 30: Court declined to provide that order dismissing class action contain a provision that order was "without prejudice to the first respondents or others to apply or reapply for certification in this or another class action".

Frey v. BCE Inc., 2010 SKCA 34: Application by six defendants in a system access fee class proceeding for leave to appeal from the certification order. Two of the defendants also sought leave to appeal from aspects of the certification order dealing with the jurisdiction of the Saskatchewan courts. The plaintiffs sought leave to appeal from aspects of the certification order limiting the plaintiff class and refusing to allow them to add entities related to one of the defendant companies as parties to the action. The plaintiffs also argued the judge erred in refusing to permit amendments to the plaintiff class brought based on changes to the Class Actions Act after the action was certified. The application by defendants allowed; application by plaintiffs allowed in part. The defendants raised important and meritorious issues with respect to the appropriateness of the one representative plaintiff who could not have had a cause of action against all the companies, the impossibility of finding common issues among a huge class of plaintiffs, and the argument that the contracts between the companies and their customers providing for the payment of system access fees, precluded a claim for unjust enrichment. The out-of-province companies had important and meritorious arguments with respect to the appropriateness of Saskatchewan as the forum to hear the case against them. The plaintiffs were granted leave to appeal from the dismissal of their application to amend their pleadings after certain changes to the Act took effect. They were not granted leave to appeal from the limitations placed on the plaintiff class to exclude those customers whose contracts contained arbitration clauses. The plaintiffs failed to provide the required material to support their application to add the additional corporate defendants.

Billette v. General Motors of Canada Ltd.leave to appeal denied 2009 QCCA 2476, leave denied [2010] S.C.C.A. No. 66: Single judge of Court of Appeal refused to grant leave from decision declining to strike industry class action based on privity issues post-certification. The court held that a different approach must apply after certification was granted (para.11). The court noted that there were certainly class members with a cause of action against each defendant.

Robinson v. Medtronic, Inc., 2010 ONSC 1987: Leave to appeal lower court's refusal to certify punitive damages granted as the lower court's "decision to refuse to certify having regard to those principles is clearly at odds with many other judgments, and brings about an unfortunate result. Although the motion judge sees no denial of access to justice resulting from his decision, it is certainly debatable that a denial of justice is an inevitable outcome. If the 6000 elderly plaintiffs who are in poor health wish to pursue a claim for punitive damages, they will be obliged, after the common issues trial, after the waiver of tort quantification, and after the trials or hearings of individual issues, to then pursue 6000 individual trials or hearings to determine their entitlement to, and to quantify punitive damages, an issue which largely focuses on alleged misconduct by the plaintiffs that is common to all defendants. In my view, there is good reason to doubt the motion judge's conclusion on this issue." The court also granted leave on the decision to bifurcate the disgorgement issues off for later determination.

Peter v. Medtronic Inc., 2010 ONSC 1984: Leave granted of decision bifurcating disgorgement issues in certified class proceeding.

Robinson v. Rochester Financial Ltd., 2010 ONSC 1899: Leave denied of decision granting certification of failed tax shelter case.

Wallace v. Canadian National Railway, 2010 SKCA 56: Plaintiff Client whose lawyer was removed from the file due to a conflict of interest was given standing to appeal that decision. Plaintiff took this step after defendant brought a motion for a declaration that the law firm did not have standing to appeal the judgment.

R. v. Brooks, 2010 SKCA 55: Leave to appeal certification decision refused of decision declining to certify Agent Orange class action. Court declined to allow proposed amendments narrowing the scope of the action midway through the oral submissions.

Wyeth v. Stanway, [2010] S.C.C.A. No. 68: Leave to appeal denied of decision refusing to dismiss class action on jurisdictional grounds.

Holmes v. United Furniture Warehouse LP, 2010 BCCA 110: Application by Plaintiff for directions as to whether leave was required to appeal from an order an application to amend the statement of claim to add a new claim. The underlying action was a class proceeding by purchasers of products from stores who were given cashable vouchers that could be redeemed three years after the purchases. The court held that leave was not required as the order was a final disposition of a substantive issue in the litigation and should not have been regarded as an interlocutory order despite the fact that not all of the rights between the parties in the litigation had been finally disposed of.

Griffin v. Dell Canada Inc., [2010] S.C.C.A. No. 75: Leave denied of decision refusing to stay case on arbitration grounds.

MacFarlane v. United Parcel Service Canada Ltd., 2010 BCCA 171: Court upheld decision refusing certification on cause of action grounds.

Pro-Sys Consultants Ltd. v. Infineon AG, [2010] S.C.C.A. No. 32: Leave denied in decision certifying price fixing action.

King v. Canada, 2010 FCA 122: Refusal to certify disability pension case based on cause of action grounds upheld.

Halvorson v. British Columbia (Medical Services Commission), 2010 BCCA 267: Case was initially refused certification, but was remitted for reconsideration by the Court of Appeal. Case then struggled to move forward to certification. Plaintiff served Notice to Mediate the certification issues. The court stated the Notice to Mediate until particulars were given and declined to remove that stay several years later. The court of of appeal allowed an appeal from that decision in part. The court stated made the following general statement of principle: "To hold plaintiffs strictly at the certification stage to their pleadings and arguments as they were initially formulated would in many cases defeat the objects of the Act - judicial economy, access to justice, and behaviour modification...contrary to the view that has been causing the case management judge such consternation, there is nothing wrong with plaintiffs reformulating their approach on appeal" (para.23). The court ordered that the Petitioners file a fresh petition setting out all material facts. The court upheld the decision deferring the proposed mediation, as the hope was that a fresh petition would help resolve the issues. The court did note that the trial judge would still have to consider whether the certification test was met in its entirety prior to certification.

Sharma v. Timminco Ltd., 2010 ONSC 2395: Leave denied of decision requiring disclosure of policies pre-certification.

Sonego v. Laboratoire Expanscience,, 2010 QCCA 1026: Appeal denied of decision refusing objections to cross-examination on affidavit pre-certification.

Savoie c. Compagnie pétrolière Impériale inc., 2010 QCCA 1089: Leave denied of striking certain media outlet reports sought to be introduced as evidence.

Option Consommateurs c. Banque Amex du Canada, 2010 QCCS 2260: Request for stay of 6 class action pending resolution of certain appeals refused.

Gauthier c. Société d'habitation du Québec, 2010 QCCA 302: Court overturned decision refusing to certify low income subsidy action on jurisdictional grounds. Court held that Superior Court did have jurisdiction over the legislative actions of the defendant.

Bouchard c. Ventes de véhicules Mitsubishi du Canada Inc., 2010 CF 56: Court overturned decision finding no jurisdiction over foreign defendants in proposed class action. Cased involves alleged conspiracy regarding the alleged restriction on importation of vehicles into Canada.

Contat c. General Motors du Canada Ltée, [2009] S.C.C.A. No. 451: Leave denied in appeal of refusal to certify financing class action.

Latreille v. Industrial Alliance Insurance Company's Life, [2009] S.C.C.A. No. 396: Leave denied of decision dismissing class action.

Knight v. Imperial Tobacco Canada Ltd., 2009 BCCA 541: Order striking third party claim against feds was set aside, but just in relation to negligence misrepresentation and negligent development of tobacco. The Trade Practice Act did not apply to Canada.

Mignacca v. Merck Frosst Canada Ltd., [2009] O.J. No. 5233 (Div.Ct): In the Ontario arm of the Vioxx litigation, the Defendants sought an extension of time to file leave to appeal from the decision denying leave to appeal certification, and, if leave was granted, leave to appeal. (Got it? Good...). The defendants also sought reconsideration based on the fact that the Sask CA had now overturned certification. The judge held that he could not consider leave to appeal from his own earlier decision. On reconsideration issue, the court declined to do so as the class definition and common issues were different in Ontario than before the Saskatchewan Court of Appeal.

Lambert v. Guidant Corp., [2009] O.J. No. 5264 (Div. Ct): Court refused leave to appeal from costs award in favour of Plaintiffs of $650,000 plus disbursements.

TRIALS

Alexander v. HMS Financial Inc. 2010 ABCA 121: Court refused appeal from court order granting substantive relief to the class. The relief appears to be in the nature of a final order granting rights to certain funds in court, so I'm counting it as a merits determination in favour of the class, even though it appears to be quite a procedural hash, and the order went primarily on consent.

Allard c. Syndicat des professionnelles de soins de Québec (SPSQ) (Syndicat professionnel des infirmières et infirmiers de Québec (SPIIQ), 2010 QCCS 1309: Union fee refund case successful on the merits.

Myette c. Commission administrative des régimes de retraite et d'assurances, 2009 QCCS 5144: Class successful in pension class action.

Kotai v. Queen of the North (The), 2009 BCSC 1604: In supplementary reasons, the court clarified that it was not ruling on the ability to claim psychological damages under the Marine Liability Act, but rather that the defendant was not arguin that point in this case.

NOTICE

Griffin v. Dell Canada Inc., 2010 ONSC 2560: Court deferred notice until after disposal of leave to appeal application. The court did indicate a willingness to reconsider the need for notice after the leave decision issues given the risk that class member might dispose of their computers.

SECURITIES CLASS ACTIONS

Ontario Court of Appeal rules that loser on a Securities Act leave motion must first appeal to Divisional Court : Silver v. Imax (May 18/10) (Ont.C.A.)

CHICKEN AND EGGS

Rhodes v. Cie Amway Canada, 2010 FC 498: Court allowed a jurisdiction application to proceed in advance of certification. The court stated: "In this case, the Defendants have convinced me that their preliminary motion challenging the jurisdiction of the Court on the basis of the arbitration agreement should be heard prior to the motion for certification of the class action. Indeed, the Plaintiffs filed their statement of claim as a proposed class action on October 23, 2009, but have not acted upon that claim since its filing. The Plaintiffs could have submitted their motion for certification as a class action, but they have chosen not to do so. Counsel for the Plaintiffs now asserts that such a motion may be submitted next June; however, there is no certainty this will indeed be done. Had a motion for certification as a class action been submitted in this case and a date set for a hearing on that motion, I may have been inclined to decide the motion to dismiss on jurisdictional grounds at the same time as the motion for certification. However, these are not the circumstances at hand, and I fail to see why the Defendants should be impeded from having their motion to strike heard by this Court when the Plaintiffs have yet to submit their motion for certification. In addition, the Defendants' motion may bring an end to the proceedings in their entirety or may result in a narrowing of the scope of the case for certification"

Cannon v. Funds for Canada Foundation, 2010 ONSC 146: Court held that a motion under rule 21.01(1)(b) (no reasonable cause of action) and rule 21.01(3)(d) (frivolous, vexatious or abuse of process), that Ms. Berlach wished to bring on behalf of the defendants Albanese, Ford, Mohammed, Raby and Wade, should be brought at the time of the certification motion and not before. I found that this procedure would promote efficiency and economy in the management of this class action and that any prejudice to these defendants could be compensated in costs, if necessary.

Fairview Donut Inc. v. TDL Group Corp., 2010 ONSC 2845: Plaintiff applied for declaration that defendants summary judgment be considered AFTER certification rather than WITH certification. The parties had previously agreed to this structure, but the Plaintiff sought to redesign the structure as they felt the summary judgment motion was expanding beyond the original intention. The court declined to make the order to defer the summary judgment stating "This is not a case in which the defendant is attempting to wear down or delay the plaintiffs by bringing procedural motions prior to certification - the defendants are anxious to see the certification motion proceed and are content to bring their motion at the same time as certification.". The court referred by the Cannon case supra stating: "In the Cannon case I permitted a rule 21 motion, affecting some of the defendants, to be brought at the same time as the certification. One of the factors that influenced my decision was that hearing the motion at the same time as certification would allow appeals from both decisions to be heard together. I noted, at para. 15 that the factors relevant to the exercise of my discretion, on a non-exhaustive basis, were:

(a) whether the motion will dispose of the entire proceeding or will substantially narrow the issues to be determined;(b) the likelihood of delays and costs associated with the motion;(c) whether the outcome of the motion will promote settlement;(d) whether the motion could give rise to interlocutory appeals and delays that would affect certification;(e) the interests of economy and judicial efficiency; and(f) generally, whether scheduling the motion in advance of certification would promote the "fair and efficient determination" of the proceeding.

For the reasons I have mentioned, most of these factors suggest that the two motions in this case should be heard at the same time. There is a real possibility that the motion could either dispose of the proceeding or narrow the issues. There is no likelihood of delays. The motions are now scheduled for the very end of November and the parties have more than six months to prepare for the motions. Any appeals can be heard together. Judicial economy and the fair and efficient determination of the proceeding will be enhanced. There is also the added factor that this decision is consistent with a pre-existing procedural agreement between the parties that was approved by the court."

Rosetim Investments Inc. v. BCE Inc., 2010 SKQB 24: In proposed securities class action, Court decided that the motions to strike and a motion to amend the claim to rely on the new fraud on the market regime should proceed prior to certification. The court distinguished the concurrent nature of the Silver v. Imax leave/certification hearing on the basis that this was only done with consent of the parties. The court stated: "The Imax case, supra, demonstrates that there is a very significant process which involves the testing of the merits of an action based on evidence filed by each party before leave will be granted. In my opinion, unless and until leave has been granted pursuant to s. 136.4 of the Act, there is no cause of action for secondary market disclosure which could be considered at the certification hearing." (at para.14) The court concluded: "with the multiple amendments sought by the plaintiffs, at least some of which require leave of the court, in the circumstances of this case it is appropriate to have the amendments determined before the certification hearing is held. Furthermore, as the validity of the pleadings will also be considered on the applications to strike brought by BCE and ROD, it is appropriate that the three motions be heard at the same time."

NATIONAL CLASS

McKenna v. Gammon Gold Inc., [2010] O.J. No. 1057 (S.C.J.): In certifying this securities case, the Ontario court did not include shareholders who had purchased their shares from underwriters or agents outside of Canada. The court stated "The acquisition of those securities in a jurisdiction outside Canada would not give rise to a reasonable expectation that the acquiror's rights would be determined by a court in Canada." (para.116) The Ontario court required separate representative for Class Member located outside Canada who purchased their shares in Canada. The court certified only the primary market claims (the secondary market claims were based on traditional negligent misrepresentation rather than the new "fraud on the market" statutory provision). The court stated:

"With deference to my colleagues who have come to a different conclusion, I accept the submission of counsel for the defendants that there is authority, binding on me, that makes proof of reliance a necessary requirement of a negligent misrepresentation claim..I conclude that the need to prove reliance as a necessary element of negligent misrepresentation, and the inability to establish reliance as a common issue, makes the common law misrepresentation claims, in both the secondary and primary markets, fundamentally unsuitable for certification.In this case, multiple misrepresentations are alleged throughout the ten month Class Period, in press releases, regulatory filings, conference calls, annual reports and a multitude of other written and oral forms." (at paras.159-160). The court noted that the plaintiff had leave to amend to plead the new statutory fraud on the market claim to restore the secondary market component of the action.

The court did certify the punitive damages claim: "The nature of the present securities class action, as opposed to the product liability action before Perell J., makes the degree of misconduct, causation, harm, and the quantification of compensatory damages determinable by the common issues judge. There is no need for individual proof of loss to enable a common issues judge to assess punitive damages."

The court also declined to exclude early sellers at this time stating: "I accept that, as a general rule and on the authority of the cases referred to by counsel for the Gam-mon Defendants, it may be appropriate to exclude "early sellers" because no damages are suffered until the misrepresentation is disclosed -- shareholders who dispose of their securities before this date cannot suffer a loss as a result of the misrepresentation...This case, as well, is an exception to the general rule. As I noted earlier, in asserting that Mr. McKenna's claim was time barred, the Gammon Defendants said that there had been partially corrective disclosure as early as May 10, when Gammon's public filing disclosed a US$10 million first quarter loss. This was slightly over three weeks after the Prospectus was issued. Representations of various kinds continued to be made for the remainder of the Class Period. It would be arbitrary at this stage to conclude that "early sellers" could not have suffered a loss as a result of the alleged misrepresentations in the Prospectus and the onus of proving this should be on the defendants at trial" (at paras.121-122)..

On a chicken and egg point, the court refused the underwriters application to hear summary judgment based on limitations prior to certification (para.36). The court noted that the Underwriters did not file statements of defences, unlike in Stone v. Wellington County Board of Education (1999), 120 O.A.C. 296, [1999] O.J. No. 1298 (C.A.); Farquar v. Liberty Mutual Insurance Co. (2004), 43 C.P.C. (5th) 361, [2004] O.J. No. 148 (S.C.J.) (at para.37). The court stated that "Where the resolution of the limitations issue depends on a factual inquiry, such as when a plaintiff knew or ought to have known of the facts constituting the action, the issue should not be resolved at certification."

ARBITRATION

Griffin v. Dell Canada Inc, 2010 ONSC 2384: Defendants sought to exclude BC, Quebec, and Saskatchewan residents from the class on the basis that arbitration clauses in those provinces would be enforced. The court declined to make the order stating "I rejected the defendant's submission to carve out these class members as at that time there were pending appeals before the Divisional Court for leave to appeal the conditional certification order and also before the Court of Appeal with respect to the initial refusal to grant a stay and the subsequent refusal to reconsider that decision. As well, the decisions in Frey and Dell SCC were before the court at the time of the certification hearing and I had found the class definition satisfactory, except with respect to Québec residents [bound by an earlier settlement]." The court also declined to order the Ian Andrews was an inappropriate representative due to lack of resources. The court noted that there was an indemnity agreement in place.

COSTS

Fantl v. Transamerica Life Canada, 2010 ONSC 3113: Plaintiff sought $100,000 in costs against Kim Orr in relation to Kim Orr's failed attempt to wrest away control of the litigation. The court described the application as "surreal" as "everybody knows that Mr. Fantl does not need $100,773.27 to be indemnified for costs for any legal expense in litigating with KO, because, in any event, he personally will incur no legal expense, and the money he seeks for his costs will actually be used to pay for the legal expenses that REO incurred in resisting KO's attempt to keep Mr. Fantl as its representative plaintiff." For other reasons, the court refused the application. The court noted that on the fee application in relation to the settlement, the court declined to include in the evaluation of the appropriate fee the work done on the carriage battle - "it strikes me as a bad idea to encourage and intensify carriage fights by the prospect that the winner will not only get the file but be paid something by his or her client for getting the file." The court found that the normal rule for carriage fights themselves should be that there are no costs paid, but that this was not an absolute rule. However in this case, there should be no order of costs given the novelty of the issues.

Singer v. Schering-Plough Canada Ltd., 2010 ONSC 1737: Plaintiff's ordered to pay $400,000 in costs on failed certification on sunscreen representations.

Durling v. Sunrise Propane Energy Group Inc., (May 21, 2010) CV-08-363271-))CP (Ont.S.C.): Court ordered that the defendant landlord and the plaintiffs were jointly and severally liable for the costs of the regulator and municipalities in relation to the motion for directions as to the landlord's right to oppose the discontinuance of the claim against these parties. The plaintiffs were deprived of their costs as they subsequently abandoned the application to discontinue. The writer is counsel for one of the defendants.

Campbell v. Canada (Attorney General), 2009 FC 30 (discontinuance) 2010 FC 279 (costs): Defendant sought costs in light of Plaintiff's decision to discontinue after the filing of a motion for certification. The court found that the defendant could have its costs in relation to the steps prior to the motion for certification, but not for the certification motion: "The language of Rule 334.39 is clear. It specifically precludes an award of costs in relation to the motion for certification...With respect to the costs incurred by the Defendants on the motion for certification, although the motion was never adjudicated for the reasons set out in my earlier decisions, at the time the motion was filed and the work was done by the parties, it was an appropriate and timely step in the proceedings. As I indicated in my earlier reasons, if there has been an abuse of process, it arises from the action filed in Saskatchewan and it is in that forum that it should be raised." The court found that "the case at bar raised a novel question about the nature of the preferable procedure criterion of the test for certification".

In relation to the earlier steps, the court granted an award of $60,000 inclusive of disbursements.

Fisher v. IG Investment Management Ltd., 2010 ONSC 2839: Costs on failed certification motion. Defendants collectively claimed $1.25 million. The court found that "the appropriate award for this case is that there should be no order as to costs. That conclusion is arrived at primarily from the argument that the case at bar is a novel case of the sort that would justify an order that each side bear their own costs for the certification motion." The court engaged in a helpful review of the principles applicable to costs in Ontario. The defendant also sought to raise the fact of the indemnity agreement: "As the last matter to address as to why a costs order might be justified, the Defendants submit that the court need not concern itself about the possible chilling effect of a costs award against the Plaintiffs because the Plaintiffs are protected by an indemnity agreement with Rochon Genova LLP who can be taken to be knowledgable about the risks and the awards of litigation...Given the basis that I am deciding this matter, strictly speaking, it is not necessary for me to comment one way or the other about the role of indemnity agreements. For what it is worth, I think they should be treated in much the same way as the involvement of the Class Proceedings Fund is treated. McNaughton Automotive Ltd. v. Co-operators General Insurance Co., [2007] O.J. No. 1453 (Div. Ct.) at para. 8; Garland v. Consumers' Gas Co. (1995), 22 O.R. (3d) 767 (Gen. Div.) at p. 772, aff'd (1996) 30 O.R. (3d) 414 (C.A.) are authority that the issues of entitlement, scale, and quantum of costs must be determined without reference to whether the Law Foundation provided support to the applicant for certification."

KRP Enterprises Inc. v. Haldimand (County), 2010 ONSC 2689: Costs of $110,000 awarded to plaintiffs on certification and Rule 21 motion.

Goldstein v. Rider, 2010 ONSC 1738: This action was a proposed class action that was settled before certifica-tion. The parties reached an agreement to discontinue the action on terms that, among other things; the Defendants would pay: (a) the putative class' wage loss claims; and (b) costs to the Plaintiffs' lawyer for the action and for administering the payment of the wage loss claims.By order dated April 28, 2009, I granted leave to discontinue the action. By motion, the Plaintiffs now seek $169,492.83 for costs. For the reasons that follow, I fix the costs at $115,436.99, all inclusive.The Defendants submit that the anticipated payment of wage claims will be no more than $300,000 and a costs award approaching $170,000 is excessive and disproportionate.I did not identify any over-lawyering, but, having reviewed the information provided in the bill of costs and in the costs submissions, in my opinion, the amounts claimed for the various descriptions of work are excessive having regard to the factors that I have identified, most particularly the factors of proportionality, reasonableness, and the expectations of the losing party. In particular, I found the claim of $34,462.50 to lift a stay and $22,650.00 for a discontinuance too rich to be fully and fairly charged to the Defendants."

Peter v. Medtronic Inc., 2010 ONSC 213: Costs of certification and bifurcation motion. Plaintiffs sought costs of $395,000. Court knocked that down to $300,000. The court also awarded $50,000 in costs to the defendant on the bifurcation motion, but payable in the cause. The court stated: "From my observation of the certification motion, there is truth in the Defendants' submission that their resistance and opposition to certification were targeted and surgical. In my opinion, it would have been within the Defendants' reasonable expectations that their exposure to costs liability would be correspondingly reduced in comparison to the exposure to costs in a certification motion where no concessions are made or the defendant unreasonably contest issues or unreasonable raise issues for contestation."2010 ONSC 1933: Security for costs application dismissed.

Healey v. Lakeridge Health Corp., 2010 ONSC 1884: Costs on plaintiff's loss on right of uninfected individuals to recover for psychiatric injuries. The court found that it was not a test case. The court noted that the Plaintiff did not disclose their own costs in relation to the hearing. The court did knock down the $380,000 request to $260,000.

Fresco v. Canadian Imperial Bank of Commerce, 2010 ONSC 1036: Costs of $250,000 awarded on failed certification. The Class Proceedings Fund was on the hook for this amount. The court found that it was not a test case, noting the fact that certification hearings were proceeding in other overtime cases notwithstanding the dismissal of certification. The court found that the case was not novel, but the court did find a public interest component. CIBC incurred almost $4 million (!) contesting certification. However, the plaintiff declined to produce their own dockets. The court awarded $525,000.

CASE MANAGEMENT

Herskovitz v. BMO Bank of Montreal, 2010 ONSC 2856: Three similar class actions against 3 banks were running in tandem. The Plaintiff applied to separate the cases and proceed first to certification against one in order to minimize their cost exposure. The court refused the application for 5 reasons:1. there was no agreement to use the first agreement as a test case, creating a risk of inconsistent results2. it was more efficient to hear all three at once3. steps have already been taken to reduce duplication4. most of the heavy lifting had already been done5. the actions were very similar.

Penney v. Bell Canada, 2010 ONSC 2801: Proposed class' phone installations were delayed as a result of a strike. The Plaintiffs argued that Bell had committed to fixed installation dates. The court refused certification stating: "In simple terms, a contract is nothing more than a mutual promise. Here, the plaintiffs say that Bell promised to install wireline service and that each customer promised to pay the $55 installation fee. Whether Bell broke its promise will depend on what Bell's service representative told the customer when the request for installation was made." The court also found that a proceeding before the CRTC was preferable stating "188 The plaintiffs say that the CRTC does not afford a preferable procedure for the resolution of the dispute because it cannot award relief on a class-wide basis, cannot give relief on a retroactive basis and cannot award general damages. I do not accept these submissions. Where the CRTC finds that the rates charged by a carrier are improper or unauthorized or that a carrier has failed to provide a service in accordance with its tariff, the CRTC can grant retroactive relief to all adversely affected customers; see, for example, Telecom Decision 2007-10, A.T. & T, Global Services Canada Co. While the CRTC may not be able to provide compensation in precisely the same form as a court, it has the capacity to order and implement compensatory relief in a manner that is fair and efficient. It is true that the CRTC cannot award punitive damages, but it has other sanctions available.The role of the CRTC is both regulatory and adjudicative. For this reason, it may analyze issues in a manner that differs from a court. To identify the difference does not mean that the analysis it undertakes or the remedies at its disposal are inferior to those granted by courts...190 Conducting the preferable procedure analysis with regard to the well-known goals of class proceedings, it seems to me that the CRTC offers the plaintiffs and affected consumers access to justice in a forum that is designed to deal with complaints such as those at issue in this action and that has specific experience in dealing with public complaints in relation to telecommunications issues. Judicial economy is promoted by deferring to the expertise of a specialized tribunal that can consider the policy implications of its decision -- a task that the court is ill-equipped to undertake. Behaviour modification is best accomplished, in my view, by deference to the tribunal charged with that very responsibility and one that can develop remedies tailored to the needs and the interests of the several parties in complex regulatory environment under its jurisdiction....In summary then, I am not satisfied that a class proceeding would be the preferable procedure for the resolution of the common issues. Bell has established that the CRTC has jurisdiction over the issues raised in this action and, while that jurisdiction may not be exclusive, this is a case in which the court should defer to that jurisdiction. While the CRTC's jurisdiction and procedures are not identical to the jurisdiction exercised by the court in a class proceeding, and the relief available is not precisely the same, I am not convinced that any substantial injustice would be done to the proposed class by deferring to the CRTC. On the other hand, I am persuaded that the certification of this action would be an unnecessary intrusion into a carefully regulated environment."

Cannon v. Funds for Canada Foundation, 2010 ONSC 1885: The court approved the dismissal of the claim against one party. The court added a new party notwithstanding that that proposed party indicated an intention to bring a jurisdictional challenge. The court also allowed a pleadings amendment.

Pickering v. Saskatchewan Government and General Employees' Union, 2010 SKQB 176: Pre certification schedule settled.

Option Consommateurs c. Banque de Montréal, 2009 QCCS 6467: Court considered (1) motion to strike for failure to submit to examination (refused), (2) motion to add a new rep plaintiff (granted). Costs were awarded against the Plaintiff however.

Option Consommateurs c. Union canadienne, 2009 QCCS 5368: In ice storm insurance class action, court clarified scope of production order issued against insurers.

MOTION TO STRIKE

Healey v. Lakeridge Health Corp., 2010 ONSC 725: Court struck uninfected class member test case claims for psychological injury in certified class action involving required TB testing.

Pearson c. Canada (Ministre de la Justice), 2008 CF 1161: Court struck challenge by Universal Church to Canada's marijuana laws on the basis that all relevant issues had been resolved in other litigation.

Stewart v. Enterprise Universal Inc., 2010 ABQB 259: Court declined to grant summary judgment in proposed class action involving removal of asbestos in a particular building. The court first considered the "chicken and egg" issue and stated: "An action taken pursuant to the CPA which has not yet been certified is better seen as a hybrid, a sui generus action, drawing on both the CPA and the Rules of Court, especially since certain parts and powers under the CPA relate to actions taken pursuant to the CPA which have yet to be certified....The CPA in Alberta is relatively recent and jurisprudence and practice is developing. No purpose is served by seeking to establish a hard and fast rule concerning the timing of various motions in the certification process." The court allowed the motion to proceed, on the following basis: "When the circumstances of this case are examined I find that it is not premature for the Defendants to bring a summary judgment application. Forcing the Defendants to wait until Mr. Stewart brings his motion to certify this claim would not be fair or efficient. The original Statement of Claim was filed on December 3, 2007, which has left the Defendants in limbo for over two years. The Defendants deserve to have some control over the litigation. Additionally, the allegations in the Statement of Claim are stigmatizing; so, forcing the Defendants to participate in a costly certification hearing is not fair, if they are able to establish at this time that they have been improperly named."

On the merits of the motion, the court found that the action could not proceed against the employer given the Workers Compensation Act bar. Although the directors were not protected by the WCA, the court found that there was not basis upon which to pierce the corporate veil.

Although the purported class also included non-employees. The court dismiss the action outright as "Allowing Mr. Stewart to represent residents against Enterprise, which is the only remaining part of the claim, does not avoid any demonstrated substantial injustice to the class."

Harris v. GlaxoSmithKline Inc., 2010 ONSC 2326: Class action alleging that defendant improperly interfered with the introduction of Paxil to the Canadian market dismissed on a motion to strike. The court found that none of the abuse of process, conspiracy, or waiver of tort claims disclosed a viable cause of action.

On abuse of process, the court concluded: "There are many policy reasons against extending the tort of abuse of process to bystanders. The existing case law recognizes that the existing tort of abuse of process should be narrowly construed...Ironically, in her pursuit for access to justice, Ms. Harris proposes an extension of a tort that could even be used to thwart access to justice in other class actions because the risks of bringing a class action, already regarded as considerable, would be increased by non-party bystanders including shareholders and consumers of goods and services who were adversely affected by an unsuccessful class action and who could sue the representative plaintiff for abuse of process."

Logan v. Dermatech, Intradermal Distribution Inc., 2010 BCSC 481: Feds successfully apply to strike third party notice by product manufacturer in Dermalive class action.

Robinson v. Medtronic, Inc., 2010 ONSC 1739: Motion to strike conspiracy claim dismissed. The court stated: "Medtronic submits that the Plaintiffs have committed a sin of commission because their new plead-ing identifies that the special damages for the conspiracy are the same as the damages pleaded for the tort of negligence. As I understood the counterargument of the Plaintiffs, they concede that in the new pleading the pleaded damages for negligence are identical to the pleaded damages for civil conspiracy, but the Plaintiffs submit that this does not make their pleading of a civil conspiracy defective. Rather, all it means is that by way of defence and at the trial the defendants might be able to argue that the Plaintiffs' claim for a civil conspiracy had merged with a successful judgment for negligence. I think the Plaintiffs' counterargument is correct." Certain paragraphs were struck.

Collins v. BCE Inc., 2010 SKQB 74: The court agreed to stay this proposed action as "it is reasonable to conclude that [this action] is intended to circumvent the limitations imposed in the [certified] Frey action and the possible reversal by the Court of Appeal of some, if not all, of the initial collateral decisions. The significant limitations are the refusal to amend the certification order from opt-in to opt-out and the enforcement of arbitration clauses". The court rejected the position that the action should be allowed to proceed because there were different plaintiffs: "This is a distinction without a difference. Because of the nature of class actions and because of the definition of the class in the Frey action, the persons named in the Collins action are included as plaintiffs in the earlier action which has been certified. In short, they are privies to the Frey action. Accordingly, the plaintiffs in the two actions are the same". (at para.12) The court justified the stay on abuse of process grounds stating "It is apparent that there is no good reason or juridical reason for the Collins action to proceed. On the other hand, there are compelling reasons why it should be set aside, at least for the present. It is necessary in order to ensure judicial economy, consistency and finality in judicial determinations, and to uphold the integrity and reputation of the legal system. As well, the parties in the Frey action must be treated fairly. To this point their expenditure in time, effort and money has been enormous. That should not be thrown away. In addition, they should not be prevented from having the Court of Appeal review what has transpired in the Frey action." (at para.16)

Vermette c. General Motors of Canada Ltd., 2010 QCCS 266: In certified paint delamination case, the defendants applied to strike aspects of the pleading. The court refused, stating that it did come sufficiently within the scope of the certification order.

Option Consommateurs c. British Airways, p.l.c., 2010 QCCS 140: Price fixing class action. Defendants said that jurisdiction should be declined prior to certification. The court rejected the motion.

Brown c. Roy, 2009 QCCS 4958: Jurisdictional challenge rejected.

NOTICE COSTS

Brunelle c. Banque Toronto Dominion, 2010 QCCS 2133: The court ordered that the defendant pay for the cost of notice. The court noted that the plaintiff has established a "good colour of right", and that imposing the obligation on the Plaintiff would create a very significant imbalance given that the value of the Plaintiff's claim was very small. The court applied the concept of proportionality as well.

DECERTIFICATION

Spieser c. Canada (Procureur général), 2010 QCCS 1440: Court refused to decertify part of an environmental class action by narrowing the class. The court declined to do so holding that there were no new facts to justify that step.

AMENDMENTS

In Pearson v. Inco, the trial judge allowed certain amendments to the common issues after the close of evidence to clarify (1) that nickel discharge ceased in 1984, and (2) that the Plaintiff was raising both public and private nuisance. (May 10, 2010).

Vermette c. General Motors du Canada, 2010 QCCS 1103: Class sought to amend certified claim to add diminution in value claim. The court allowed the amendment. The court held (rough translation): "While it is true that this amendment authorizing the Court will face a wider debate, this new component will not be extensive." Leave to appeal this decision was denied: 2010 QCCA 1020.

Barette c. Ciment St-Laurent inc., 2010 QCCS 1787, 2010 QCCA 831: An individual sought to expand the class definition to include a "missing group". The court found that the refusal was well grounded given the delay in making the application. The application was only made at the individual issues stage of the proceeding. Leave to appeal was declined.

Conseil pour la protection des malades c. CHSLD Manoir Trinite, 2010 QCCS 2130: Court granted certain amendments and disallowed others.

Engler-Stringer c. Montréal (Ville de), 2010 QCCS 1253: Motion to add constitutional question granted.

Holmes v. United Furniture Warehouse LP, 2009 BCSC 1805: Plaintiffs applied to consolidate claims and amend claim. Defendant did not oppose consolidation. The court granted leave for certain amendments but denied others on the basis that they did not disclose a cause of action.

US DEVELOPMENTS

New Class Action Attorney Registration Requirements Adopted: The Supreme Court blog www.scotusnewz.com reports that the Court has approved Rule 23.4.1, Federal Rules of Civil Procedure, which will require all attorneys wishing to represent clients in class actions in federal courts to be specially licensed as "Class Action Counsel." Licensing requirements are to include:

* successful completion of a 3-hour Class Action Bar examination,* an affidavit of good standing acknowledged by an Article III judge or existing member of the Class Action Bar,* a completed background check, to be administered by the Federal Bureau of Investigation,* 100 hours of continuing legal education (CLE) annually,* 100 hours of pro bono legal service for indigent plaintiffs and defendants in class actions.

Attorneys must apply with the Federal Circuit Court of Appeals on or before April 1, 2011. The new licensing rules become effective on April 1, 2012.

Ward Branch, PartnerBranch MacMaster LLP1410 - 777 Hornby StreetVancouver, B.C. V6Z 1S4P: 604.654.2966 | F: 604.684.3429www.branchmacmaster.com <http://www.branchmacmaster.com/ <http://www.branchmacmaster.com/> >

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Ward Branch, PartnerBranch MacMaster LLP1410 - 777 Hornby StreetVancouver, B.C. V6Z 1S4P: 604.654.2966 | F: 604.684.3429www.branchmacmaster.com <http://www.branchmacmaster.com/>

This message is intended only for the use of the individual or entity to which it is addressed, and may contain information that is privileged, confidential and exempt from disclosure under applicable law. No waiver of privilege, confidence or otherwise is intended by virtue of communications via the internet. If the reader of this message is not the intended recipient, or the employee or agent responsible for delivering the message to the intended recipient, you are hereby notified that any dissemination, distribution or copying of this communication is strictly prohibited. If you have received this communication in error, please notify us immediately by telephone.

CERTIFICATION

Nette v. Stiles, 2010 ABQB 14: Court refused to certify proposed chiropractic class action on all grounds. The writer was counsel for defendant College of Chiropractors. In particular, the court found that the College did not owe a private law duty of care to chiropractic patients. The court distinguished Finney and Sauer as follows: "Finney is not authority for the proposition that the Supreme Court of Canada abandoned the Cooper-Anns test in determining duties of care. ..Sauer v. Canada (Attorney General), 2007 ONCA 454 was a case arising from mad cow disease infecting Canadian cattle herds. The Ontario Court of Appeal refused to strike out a claim against the Federal Crown respecting its regulation of cattle feed. At para. 62, the Court observed that in making public representations to Canadian farmers about the quality of cattle feed, the Federal Government may have created a duty of care to farmers in an operational sense contrasted to duties of care owed to the public at large. Thus it was not plain and obvious that the claim should be struck out. In this case, the AASOC does not plead that there was any relationship between the Plaintiffs and ACAC, nor is it pled that the Plaintiffs made any complaint to ACAC about Dr. Stiles. Moreover, it is not pled that the Plaintiffs had any form of communication with ACAC. The factual situation in this case, accordingly, is not analogous to the situations in Finney or Sauer, and on a generous reading of the pleadings, there is no duty of care which could be owed by ACAC to the Plaintiffs arising from any course of dealings as none ever existed." (at paras 34-38)

Gary Jackson Holdings Ltd. v. Eden, 2009 BCSC 1582 (pre-certification preservation order); 2010 BCSC 273: Certification dismissed of developer trust fund case. The writer's firm was counsel for the Defendant Eden, although Brad Dixon of BLG on for the co-defendant deserves all the credit for the result. The court found that the case failed at the preferable procedure level given the primacy of the individual defences of knowledge and consent, acquiescence, ratification and estoppel. The court also stated "In determining the question of whether other means of resolving the claims are less practical or less efficient, as stated s. 4(2)(d) of the Act, it is worth noting that there are only 15 or 16 potential members of the proposed class. I am not persuaded that there will be savings to the proposed class members from certification of the proceedings under the Act that cannot be realized if those individuals are simply joined as co-plaintiffs in this action."

Collectif de défense des droits de la Montérégie (CDDM) c. Centre hospitalier régional du Suroît du Centre de santé et des services sociaux du Suroît, [2009] J.Q. no 16938 (S.C.): Case involving use of restraints and other abusive conduct at a mental institution refused certification. The court found that there were no common issues, and no serious appearance of a cause of action. The court held that the action really called for a "commission of inquiry". Another example of Quebec's turn away from their love affair with class actions, since these types of cases have been certified in the common law provinces.

Alves v. First Choice Canada Inc., 2010 SKQB 104: Bad travel class action refused certification.

Singer v. Schering-Plough Canada Inc., [2010] O.J. No. 113 (S.C.J.): Certification refused in a proposed class action against sunscreen manufacturers for false advertising and labeling. In refusing certification, the court determined that the plaintiff had failed to make his case on many fronts, including failing to plead a proper cause of action, not identifying common issues capable of certification, not providing evidence of an identifiable class, and failing to show the class action would be the preferable procedure.

Certification was granted in the price fixing case Pro-Sys Consultants Ltd. v. Infineon Technologies AGFN, 2009 BCCA 503.

Certification was granted in a negligence and breach of fiduciary duty case grounded in a private law duty of care brought on behalf of a class of status Indians against the Crown related to harm from exposure to toxic mould in reserve housing: Grant v. Canada (Attorney General), [2009] O.J. No. 5232 (S.C.J.)

Acreman v. Memorial University of Newfoundland, 2010 NLTD 4: Employment benefits case certified.

Robinson v. Rochester Financial Ltd., [2010] O.J. No. 187 (S.C.J.): An allegedly flawed tax shelter claim was certified. The court certified a punitive damages issue (contrary to the recent finding in Robinson v. Medtronic Inc., [2009] O.J. No. 4366) by confirming that the issue would only be considered after the level of individual damages was established. The author agrees with this approach. The court held that appeals to the Tax Court were not a preferable procedure as "This raises concerns about staying this action in favour of a lengthy and uncertain outcome in another forum that has not yet begun and that Banyan Tree has told donors will be litigated all the way to the Supreme Court of Canada and "will take years to clear the courts.""

Holland v. Saskatchewan, 2010 SKQB 32: Case certified involving proposed class of commercial game farmers who allegedly have suffered economic loss as a result of the conduct of the defendant in administering the Saskatchewan Cervid Chronic Wasting Disease ("CWD") Surveillance and Certification Program. The court rejected a common issue asking whether class members suffered damages, holding that this must await individual hearings. The court did order that the potential for aggregate damages could be certified as a common issues as there was "more than a possibility" that such an award could be made.

Jellema v. American Bullion Minerals Ltd., 2009 BCSC 1605: Oppression claim refused certification on the basis that s.227 of the B.C.'s Business Corporations Act permits a representative action, and that hence s.41 of the CPA prevented a class proceeding. The court distinguished the contrary approach established in Stern v. Imasco 1 BLR (3d) 198 (Ont.S.C.J.) stating that "Section 241 of the CBCA does not explicitly or by implication provide that a shareholder may allege oppression or prejudice in relation to the complainant and other shareholders, or seek relief on their behalf....Section 227(2) of the BCA, on the other hand, explicitly authorizes a shareholder to apply to a court for relief on the ground that the affairs of the company have been conducted, or the powers of directors are being or have been exercised, in a manner that is oppressive "to one or more of the shareholders, including the applicant", or on the ground that some act of the company has been done or is threatened that is unfairly prejudicial "to one or more of the shareholders, including the applicant". But for this problem, the claim would have been certified.

Jacques c. Petro-Canada, 2009 QCCS 5603: Gas price fixing case certified. The court did cleave the class into 4 distinct local markets. The court noted that this claim involved direct purchasers. (para.101) The court distinguished Harmenigies v. Toyota on the basis that the product here was homogenous. The court found that was not essential to demonstrate an individual loss, but the demonstration of a collective loss by a credible method for determination of damages is acceptable (para.135). The court found that a contractual relationship with each defendant was not necessary in this case, as there was a "legal relationship" with the alleged conspirators. (para.263)

Spurr v. Canada,, 2009 SKQB 478: Proposed class action for alleged exposure to chemical compounds on certain military bases in Alberta and Ontario was rejected. The Charter claim was struck due to a lack of specificity as to what legislation was being challenged. On class definition the court stated "The plaintiffs have not identified any objective criteria that applies to the word "testing", and the result is a subjective definition that will not be objectively determined prior to the outcome of the litigation. Persons receiving notice will not know what is meant by the word and whether or not they have a claim. Persons could quite reasonably say, "I wasn't tested; I was trained". In this opt-out jurisdiction, persons will not know whether they should opt out, which persons may wish to do, for among other reasons, they are presently receiving a pension pursuant to s. 21(1) of the Pension Act and do not wish to jeopardize it. There is also an issue of whether the class definition offered is one class or multiple classes, but this issue is better dealt with under s. 6(1)(c) on whether the claims of the class members raise common issues. The plaintiffs have failed to satisfy the requirement there is an identifiable class that does not depend for its criteria for membership on the outcome of the litigation, and as a result, the proposed class has the potential to be unreasonably over-inclusive" (paras.50-52)

On common issues the court stated "With respect to the common legal issues put forward, for the legal issues to be common there must be some common factual issues. The only common factual issue put forward is whether the plaintiffs were exposed to substances, which the defendant admits they were. This most general factual issue will not advance the litigation, or assist in determining whether liability will attach to the defendant in any of the varied circumstances that are alleged."

On preferable procedure: "[T]here are no common issues which advance this litigation, and the individual issues that would be present in any event are formidable. These include the matters of medical causation and assessment of personal injury damages, limitation periods, and the jurisdictional limitations set out in the Pension Act, supra, and the Crown Liability Act, supra."

On representative plaintiff: "I have earlier listed excerpts from the cross-examination of Mr. Heidt, which examination establishes he does not meet the criteria for a personal representative set out in s. 6(1)(e)(i). His ex-amination indicates he has no knowledge of the litigation process, nor does he appear to have much, if any, interest in being a representative plaintiff. He was quite clear he is more interested in pursuing his personal claim. There is nothing in the material that suggests that he would fairly and adequately represent the interests of the class. With respect to the criteria set out in s. 6(1)(e)(ii), which requires the representative plaintiff to produce a plan for the class action that sets out a workable method for advancing the action, no plan was produced. Counsel for the plaintiffs took the position that such a plan can be worked out following certification before the person designated as the management judge. No good reason was offered why the requirement that the representative plaintiff should produce a plan as required by s. 6(1)(e)(ii) of the Act, and is a requirement in Rule 82(2)(e) of The Queen's Bench Rules, should not be complied with."

Brooks v. Canada, 2009 SKQB 509: Gagetown Agent Orange case denied certification. The court relied heavily on the denial of certification in the New Brunswick case Bryson v. Canada, 2009 NBQB 204. The court admitted an opinion from a "expert" on limited grounds: "For this stated limited purpose, and for these principled based reasons, I am prepared to admit Dr. Sears' affidavit, not as an expert opinion, but rather to identify some of the information that "is out there" to assist the plaintiff in its future attempts to convince the court that the class and its membership as well as the common issues proposed has some arguable foundation in science and medicine." The court accepted there was a cause of action, except for the medical monitoring claim, following the conclusion in Bryson. The court found that the claim for monitoring was an improper claim for pure economic loss.

The court found that the proposed class was not appropriate stating: "when one carefully examines the proposed class definition, it is not even proscribed by any qualification that the individuals have come into contact with "Toxic Area(s)" or that they have suffered or experienced adverse health effects or desire the relief outlined in subparagraph (d) of the certification application. The approach taken by Barry J., the certifying judge in the Ring, supra, Newfoundland action, was to narrow the already much narrower proposed class definition (persons suffering from lymphoma) from "all individuals who were at CFB Gagetown between 1956 and the present" by adding the words "and who claim they were exposed to dangerous levels of dioxin or HCB while on the Base""

The court found no common issues: "Questions (i), (iii) and (iv) would simply go to establishing whether or not the chemicals whose use at CFB Gagetown over the 50 years the plaintiff complains of were used and when, where and in what quantities. It might also answer the question of whether or not these circumstances created "toxic areas" that presented unusual or unreasonable danger "of causing adverse health effects in humans". These issues, as framed, are so general that their determination would provide little or no help to advance the claims of the proposed class members." (at paras 156-7).

The case failed on preferable procedure was well. Notably the court commented on behaviour modification in terms that surely warm a Justice lawyers' heart: "178 Insofar as the goal of behaviour modification is concerned, it is noteworthy that the defendant in this case is the Government of Canada. As is evidenced by the defendants' support for and payment of the fact-finding project, the defendant must be given credit for its sincere determination to ensure that any and all persons coming into contact with CFB Gagetown have a safe environ-ment. As the materials evidence, representatives of the defendant have participated in public meetings and supported numerous investigations and inquiries in respect of the concerns that have been raised not only affecting the members of the proposed class but indeed, all members of the public in New Brunswick in the vicinity of or visiting CFB Gagetown. I have concluded that the objective of behaviour modification is not a compelling argument in this case".

On the rep plaintiff, there was an interesting comment on the interaction with the Newfoundland litigation: "He was, and is, a plaintiff in the Ring action (supra), in Newfoundland but has undertaken that if the Saskatchewan action is certified as applied for, he will opt out of that action in favour of pursuing the Saskatchewan certification and claim. I am persuaded that he would fairly and adequately represent the interests of the class proposed nor does he have, on the common issue, an or any interest that is presently identifiable that is in conflict with the interests of the other proposed class members" (at para.183). However, the court found that no proper plan had been submitted by Brooks or the other proposed plaintiffs.

The court commented on the multijurisdictional elements of the case: "The application for certification of the Bryson, action (supra) in New Brunswick has been dismissed. If I am found to be wrong with respect to my treatment of the Brooks application for certification as a class action, the possibility of avoiding the risk of irreconcilable judgments only ex-ists with respect to the Ring, supra, action in Newfoundland. Counsel for the plaintiff, Brooks, is also counsel for the plaintiff, Ring, in that action. Indications are that if the Saskatchewan action were to be certified as applied for, the Saskatchewan action would be proceeded with either solely or in a coordinated fashion with the Newfoundland action. It is also noteworthy to observe that the Newfoundland action involves a claim by persons suffering a specific condition although presumably issues of contamination and causation and the determination upon those issues would, or could be, equally applicable to the claims in both actions. Judicial comity may well additionally contribute to avoiding the risk of conflicting judgments or conclusions. For much the same reasons, and considering the same factors, judicial economy may well be advanced by litigating, in priority, one or the other of the actions. That alone, in my view, would not prefer the Newfoundland action over that proposed for Saskatchewan. It is noteworthy that the defendant and third parties propose that it would be New Brunswick that would be the preferable venue for the trial of any class action based upon the claims and damages alleged in this action. Since that certification has been rejected, and subject to any appeal and the results of it, that option is no longer available." (at 201-202) "...with the advanced nature of air transportation, technology available for information transfer and otherwise modern reproduction and electronic discovery, the court is satisfied that the issues in this case could as conveniently and appropriately be tried in Saskatchewan as anywhere else in Canada. On the whole, the court would be satisfied that Saskatchewan is an appropriate jurisdiction for the trial of this class action as a multi-jurisdictional one representing any and all persons except those subject to the exceptions stated in the application for certification or having opted out as provided for by the Act. (See also the discussion of the Manitoba trial and Appeal Court in Ward, supra). Accordingly, I would conclude that there is no preference to be given to any of the class actions commenced in any of the other provinces in Canada over this Brooks action in Saskatchewan. Had I certified this class action, which I have not, I would have done so as a multi-jurisdictional one." (at paras.205-207). The court declined to rule on the constitutionality of the Saskatchewan regime.

Ring v. Canada, 2010 NLCA 20: Newfoundland Court overturns the only favourable Agent Orange certification, again relying in large measure on the reasoning in the New Brunswick Bryson decision. .

Gautam (c.o.b. Cambie General Store) v. Canada Line Rapid Transit Inc., 2010 BCSC 163: Nuisance class action regarding construction of rapid transit line certified. Unlike some of the other nuisance claims that have been rejected, the court found "The defendants do not plead that the effect of construction varied from place to place in Cambie Village. Indeed, there is little in the record on this application to suggest that the impact of construction on access to the properties and businesses in Cambie Village differed markedly from location to location along Cambie Street." Further, the court found that the plaintiffs had proposed a reasonable mechanism to address the individual aspects of the nuisance determination stating: "The plan proposes that in the event the court determines that there was substantial interference with access, the question of whether the impact was unreasonable as regards any owner or business will be determined with the assistance of an assessor in the manner contemplated by s. 27 of the CPA. The defendants argue that assessment of the impact is at the core of the action. They say that the assessment will depend on the type of business, the effect of location on sales, the nature of the customer base, the manner in which customers made their way to the business, the sensitivity of the clientele, the effect of other market forces on business performance, and the efforts made by the business to adjust to construction in order to mitigate losses. With respect, this statement of requirements overlooks the fact that the principal evidence of loss will be a reduction in revenue during construction. The assessor's concern will be to quantify the loss and to consider whether any loss was attributed to factors other than construction. Upon receipt of the assessor's report, the court may determine whether the amount of the loss sustained by any member of the class because of construction rather than some other cause was unreasonable in the circumstances." The court also certified the entitlement to waiver of tort remedy as a common issue. The court rejected a competing multi-plaintiff action as a preferable procedure stating: "In my opinion, a multi-party action is less practical or less efficient than a class proceeding in so far as the owners and merchants in Cambie Village are concerned. Each plaintiff in the multi-party action will be obliged to adduce evidence peculiar to that plaintiff because the owners and merchants are separated in location and few, if any, own or operate from adjacent properties. The evidence will be more complex and voluminous as a result than will be the case with the class proceeding which asserts a claim on behalf of all in the Cambie Village area."

F.L. c. Astrazeneca Pharmaceuticals, p.l.c., [2010] J.Q. no 1012: A proposed Seroquel drug class action was denied certification on the basis that the causation issues were dominant. The court also found that the Sale of Goods Act like claims should be dismissed as the strict liability regime thereunder did not fit well with the idea that drug manufacturers can only be expected to exercise reasonable diligence in identifying possible adverse reactions. The court found that there was no real allegation of improper warnings.

Smith v. Vancouver City Savings Credit Union , 2010 BCSC 120: Overdraft class action certified.

King v. Canada, 2009 FC 796: Pension case denied certification on the basis that there was no cause of action.

Brunelle c. Banque Toronto Dominion, [2009] J.Q. no 11102 (S.C.): Mortgage pre-payment case certified. The court also confirmed that the limitation period was suspended while an earlier motion for class certification was pending, up to the date it was discontinued.

D'Amour c. Bell Mobilité inc., [2010] J.Q. no 416: a proposed class action involving fixed term wireless contracts was rejected on the basis that there were gaps in the individual representative's cause of action.

Fournier c. Banque Scotia, [2010] J.Q. no 258: Financing charge class action dismissed based on cause of action requirement.

Beaver c. Capitale (La), assureur de l'administration publique inc., [2009] J.Q. no 16937 (S.C.): Class action certified where an insurance company adjusted the period during which premiums were waived.

Gordon c. Société Radio-Canada, [2009] J.Q. no 9666 (S.C.), a proposed class action involving allegations of comments that violated human rights was denied certification on the basis that measuring the effect of those communications would depend on the reaction of each individual, and that the proposed group was too diffuse to support a group libel claim.

Contat c. General Motors du Canada ltée, [2009] Q.J. No. 9155: Appeal of certification dismissal denied. Plaintiff did not have a strong enough cause of action.

THIRD PARTY FUNDING

Metzler v. Gildan (December 2, 2009) (Ont.S.C.J.): Court refused motion for reconsideration. Leave has been granted of original decision declining to approve proposed third party funding arrangement.

PAYDAY LOAN UPDATE

Bodnar v. The Cash Store Inc., 2010 BCSC 145. Settlement approved. The writer was counsel for the defendant.

Smith Estate v. National Money Mart Co. 2010 ONSC 1334: Settlement was approved of this class action. Of note 1. The value of the cash and credits was approximately $62.6M ($30.3M in cash and $32.3M in credits)2. The potential claim was said to be $150 million.3. Therefore the recovery in cash and credits would appear to be about 42% of the total claim 4. Moneymart was making an annual profit of $58 million, supporting a higher percentage. 5. Moneymart granted complete forgiveness to all customers. Plaintiff's counsel argued that that had an additional value of the book value of $56.3 million. While the court did not accept this, it did agree that it had some value (para.101)7. Any unused credits did not revert to Moneymart. Rather, there will be a future court order requiring a future reduction in fees to account for the unused credits. 8. The approved fee was $14.5 million. Class counsel had sought $27.5M.

Casavant v. Cash Money Cheque Cashing Inc., 2010 BCSC 148: Settlement approved.

Wournell v. 1152919 Alberta Ltd. and others, 2010 BCSC 145: Settlement approved. The writer was counsel for the defendant.

SECURITIES DEVELOPMENTS

Pysnyj v. Orsu Metals (March 4, 2010) (settlement approval): Settlement approved of secondary market case. Writer was counsel for defendants.

Silver v. Imax Corp., [2009] O.J. No. 5573: Certification granted in first secondary market case. Justice van Rensburg granted the plaintiffs leave to commence their claim, finding that they had met the statutory threshold to establish that they are bringing the action in good faith and that there is a "reasonable possibility of success at trial." Justice van Rensburg held that the good faith branch of the test requires plaintiffs to "establish that they are bringing their action in the honest belief that they have an arguable claim." In setting out a test that only a rare plaintiff will fail, she rejected the more robust good faith requirement that applies to derivative actions. She interpreted the "reasonable possibility of success" branch of the test as a relatively low threshold, holding that a reasonable possibility is more than a "mere" or de minimis possibility, and the conclusion that a reasonable possibility exists must be based on a reasoned consideration of the evidence, bearing in mind the limitations of motion procedure. Justice van Rensburg held that to defeat a motion for leave, a defendant must satisfy the court that the evidence will "preclude the possibility of success at trial." Only two external directors met this test. The court found that that the defendants could not rely on the business judgment rule as part of their reasonable investigation defence, because the business judgment rule has been held not to apply to disclosure obligations under securities laws. The court concluded that reliance on experts cannot be used as a defence where the misrepresentation does not originate with the expert or where the expert's opinion is based on misleading information that has been provided to it by the corporation. Consequently, she held that the defendants could not rely on the audit opinion of Imax's auditors.

The court certified the plaintiffs' statutory and common law claims for negligent and fraudulent misrepresentation. The court essentially accepted the efficient market argument, to the effect that reliance could be established by the act of purchasing the corporation's securities.

Although only approximately 10 to 15 per cent of the proposed class members were Canadian residents, Justice van Rensburg certified a global class, finding that there was a real and substantial connection to Ontario in light of the fact that Imax was an Ontario corporation trading on the TSX.

Sharma v. Timminco Ltd. 2010, ONSC 790: Court ordered production of insurance policies prior to certification.

Fischer v. IG Investment Management Ltd., 2010 ONSC 296: Market timing case not certified, as OSC settlement was preferable procedure.

Metzler Investment GMBH v. Gildan Activewear Inc., [2009] O.J. No. 5695 (S.C.): Application to strike unjust enrichment claim refused. Application to strike portions of affidavit refused.

Allen v. Aspen Group Resources Corporation, [2009] O.J. No. 5213 (S.C.J.): Court certified a securities class action in connection with alleged misrepresentations in the take-over bid circular. The court held that the class will include holders of securities tendered pursuant to the bid who were not resident in Ontario (the outside Ontario group). The circular contained a choice of law clause which provided that Ontario law applied, including the statutory code contained in Part XX of Securities Act. The court stated:

"In this case, permitting out of province shareholders to sue under the Securities Act, the court is not making an impermissible choice of law in conflict with constitutional principles. The parties themselves have made the choice of law and the court is entitled to respect that choice. Simply put, this Court has jurisdiction over the claims of these out-of-province shareholders because they have contractually attorned to its jurisdiction. Moreover, those out-of-province shareholders have, through a choice of law clause, agreed to the application of Ontario law to their claims. As such, there is no issue of extraterritoriality, either with regard to the Court's jurisdiction or with regard to the application of Ontario securities legislation to out-of-province shareholders."

JURISDICTION

Medvid v. Saskatchewan, 2010 SKQB 22: The court found that the principles of crown and sovereign immunity prevented the Plaintiff from suing the Province of Alberta in the courts of Saskatchewan. The writer was counsel for the Province of Alberta.

Stanway v. Wyeth Pharmaceuticals Inc., 2009 BCCA 592: The plaintiff claimed to have contracted breast cancer from a particular estrogen-based drug. She sued the six defendants in negligence, and under British Columbia's consumer protection legislation, saying they were individually and jointly responsible for the manufacturing, testing, marketing, labelling, distribution, promotion and sale of the drugs to consumers in British Columbia and elsewhere in Canada, and that they failed to warn her about the dangers of taking the drugs. Of the six defendants, one, "Wyeth", was a publicly-traded pharmaceutical company based in Delaware. Two others were also U.S.-based corporations, both wholly owned subsidiaries of Wyeth. The other defendants were two Canadian corporations and a general partnership comprised of those two. The three U.S. defendants applied for a dismissal order on the ground that the British Columbia court lacked territorial competence over them. The court held that there was jurisdiction. The CJPTA eclipses the former common law approach to jurisdiction simpliciter. The presumption of a real and substantial connection set out in s. 10 of the Act applies when basic facts, set out in s. 10(a) through (l), are pleaded. The tort of negligent manufacture will be taken to have occurred in the place where the damage was suffered regardless of where the wrongful conduct elements of the tort took place if the wrongdoer knew or ought to have known the defective product would be used in the place where the damage took place. As well, a failure to warn British Columbia consumers of a hazardous product is a tort committed in British Columbia, regardless of where the omission took place, if the defendant knew or ought to have known the product would be used in British Columbia. As to whether the U.S. defendants rebutted the presumption of real and substantial connections, the plea that the U.S. defendants were parties to torts committed in British Columbia presumptively established direct and significant connections between British Columbia and the facts on which the proceeding against the U.S. defendants was based. It was not necessary for the plaintiff to support those allegations with evidence except to the extent their truth was challenged by the evidence of the U.S. defendants.

DECERTIFICATION

Smith v. Inco Ltd. [2009] O.J. No. 5439 (S.C.): Defendant wished to apply to decertify at the end of the plaintiff's presentation of the evidence in midst of common issues trial. The Defendant had already brought a failed application to decertify 8 months prior to trial. The court declined to consider the motion until all of the evidence was presented. The court stated: "In my view the Hollick and Pearson decisions stand for the proposition that there is a low threshold to be met by the class representative on a certification motion because the action is usually in an early stage at the time of the certification motion, prior to examinations and prior to full documentary disclosure. However, as the action matures and evidence is revealed a party may ask the court to reopen the certification issue and more closely scrutinize the case as it relates to the criteria in s. 5 of the CPA....In my view most of the factors before me in this case favour a deferral of the hearing of any decertification motion until all of the evidence has been received by this court....[E]ven though the Supreme Court of Canada described the CPA as a "procedural tool", where a motion to decertify is brought at a later stage in a proceeding the court must logically consider more than merely the procedural aspects of the case. The court must also consider the evidence that has been revealed to date and the merits of the positions taken by all parties to the action. If a court were not permitted to consider the merits of the case as at the date of the decertification motion, then there would be no purpose in reconsidering the certification issue after examinations for discovery and full documentary disclosure. Therefore, I find that the court on a decertification motion must review all of the evidence as it has been revealed to that point in the proceeding."

The court drew parallels to a non-suit motion: "In Ontario a practice has developed as to the preferred manner of handling non-suit motions. The Ontario Court of Appeal commented on this practice in the case of Prudential Securities Credit Corp. [Indexed as: FL Receivables Trust 2002-A (Administrator of) v. Cobrand Foods Ltd.,] 85 O.R. (3d) 561. At paras. 13 and 14 of that decision the Court wrote: "Still, I question whether in this province a non-suit motion in a civil non-jury trial has much value. In Ontario, when a defendant moves for a non-suit, the defendant must elect whether to call evidence ... If the defendant elects to call evidence, the judge reserves on the motion until the end of the case. If the defendant elects to call no evidence ... then the judge rules on the motion immediately after it has been made. A non-suit motion adds to the time and expense of a trial. And because of the election requirement, it has little practical value ..." In my view the same comments can be made about decertification motions brought by a defendant at trial after the completion of the plaintiff's case. If the court must fully scrutinize the plaintiff's evidence to determine whether the criteria for certification have been proved, why not simply reveal all of the evidence and permit the court to make a final determination of all of the issues? In its final decision the court may still decide to decertify, or amend the certification, or amend the class. To embark on this exercise twice would not meet the objective of judicial economy. Still further, I accept that there may be an unfair tactical advantage to Inco if I were to hear and decide the decertification motion before Inco was called upon to present its case. That is, if I heard and decided the decertification motion, Inco would have the advantage of hearing or reading my views of the plaintiffs' evidence before Inco presented its case. Therefore, Inco could tailor its case to the expressed views of the trial judge. This point favours a deferral of the decertification motion. Also, I must keep in mind the objective of access to justice. Inco submits that even if the proceeding was decertified, access to justice would not be denied as any individual with a claim against Inco could still proceed with his/her claim. I do not accept Inco's submission on this point. Given the economies of a case such as this, in my view a decertification decision would effectively end all claims. No one individual could continue this claim on his/her own....I would like to note that the exercise of judicial discretion must be done on a case-by-case basis. It might be that in some other case a distinct procedural or technical issue may exist that should be dealt with by way of a decertification motion prior to the defendant being put to an election to call evidence. However, in my view that is not the case before me."

SETTLEMENTS

Martin v. Lahey, 2009 NSSC 331: Antigonish abuse class action settled. The writer was co-counsel for the defendant.

Boulanger v. Johnson & Johnson Corp.[2009] O.J. No. 4497 (S.C.): Prepulsid settlement approved. $8.75 million fund established including administration costs and fees. Administration costs were estimated at $750,000. Excess reverts to defendants. Structure paralled U.S. settlement. Final decision on fees was reserved until the take up rate was known. The settlement was approved concurrently in Quebec (Demers c. Johnson & Johnson Corporation, [2009] J.Q. no 12600), and other actions were being discontinued. Crawfords was appointed as administrator. Class counsel undertook to guide, advise and, where appropriate, formally represent class members through the process of finalizing the settlement, ensuring that the notice program is implemented and, thereafter throughout the course of the administration of the settlement. Court noted that US settlement only have 25 eligible claims with 75% of claims processed. Class counsel conceded that the did "not expect the take-up rate to be high". The manner of compensating public health insurers was still to be negotiated.

Burnett v. St. Jude, 2009 BCSC 1651: St. Jude heart valve settlement approved in B.C. over objectors' concerns with compensation for psychological injury.

Schweyer Estate v. Laidlaw Carriers Inc., [2009] O.J. No. 5399 (S.C.): Misrepresentation case settled. Case involved representations about value of an early retirement package. Settled for $750,000 following discoveries. Fee at 21% approved, which was less than time incurred.

Abdulrahim v. Air France, [2009] O.J. No. 5550 (S.C.J.): Partial settlement approved in price fixing case.

Option Consommateurs c. Banque de Montréal 2009 QCCS 4438 and 2009 QCCS 4485: Settlement approved. Goudreault c. Service Garantie Quebec inc., [2009] J.Q. no 13779: Financing class action settlement approved.

Cilinger c. Centre hospitalier de Chicoutimi, 2009 QCCS 4445: Delayed breast cancer treatment settlement approved.

Lamothe c. Canada (Procureur general), [2010] J.Q. no 257: Purported class member whose claim had been denied by the claims administrator in the tainted blood class action appealed to the Quebec Superior Court to reverse that denial. The Court noted that while it was sympathetic, the refusal ought to stand for a failure to have adduced evidence supporting the blood transfusion during the relevant period.

ARBITRATION

Griffin v. Dell Canada Inc., 2010 ONCA 29: In this case, the court refused to push a proposed class action into arbitration.

The first issue was a timing issue in relation to the new consumer Protection Act provision preventing arbitration clauses in consumer transactions. The court held that the arbitration right should only be considered at the time of the damage:

"In the case at bar, until the computers failed, there was no claim but rather "an ongoing legal situation" that only came to an end when the claims of the purchasers arose upon the failure of the computers. As "the facts triggering the application of the arbitration clause" did not occur until after July 31, 2005, it follows from Dell that the CPA applies and governs those claims.

I do not agree with Dell's submission that these passages from Deschamps J.'s judgment should be read as being subject to its "vested rights" argument. At para. 10, Deschamps J. specifically refers to Dell's argument that it "had a vested right to the arbitration procedure provided for in the contract with [the purchaser]" and from the balance of her judgment one can only conclude that her analysis of the "vested rights" submission is subsumed in her discussion of the application of the legislation that I have set out above.

I conclude accordingly that the CPA applies to exclude the application of Dell's arbitration clause to all "consumer" claims where the alleged defect of malfunction occurred after July 31, 2005, and that as the motion judge found that the unusual certification requirements are satisfied, those claims may proceed by way of class action.

The court also refused to stay the non consumer claims stating:

" The Arbitration Act, s. 7(5) confers a discretion to grant a partial stay where an action involves some claims that are subject to an arbitration and some claims that are not:

(5) The court may stay the proceeding with respect to the matters dealt with in the arbitration agreement and allow it to continue with respect to other matters if it finds that,

(a) the agreement deals with only some of the matters in respect of which the proceeding was commenced; and

(b) it is reasonable to separate the matters dealt with in the agreement from the other matters.

In my view, it would not be reasonable to separate the consumer from the non-consumer claims. We should, therefore, refuse a partial stay and allow all the claims to proceed under the umbrella of the class proceeding....It is important to note in this regard that Dell's arbitration clause not only requires all claims to be arbitrated, but also provides that "[t]he arbitration will be limited solely to the dispute or controversy between Customer and Dell", thereby precluding the possibility of a class arbitration. I would have found Dell's position much more persuasive had Dell been prepared to submit to an arbitration that would allow for the efficient adjudication of the claims on a group or class basis. However, in oral argument, Dell's counsel confirmed that his client would insist upon the enforcement of this provision and resist any attempt before an arbitrator to join together the claims of a group or class of consumers. In my view, this provides further evidence, if further evidence is required, that Dell does not genuinely seek to have the claims advanced against it determined by way of arbitration. Dell is simply seeking to exploit the inefficiency of arbitrating individual claims. As that inefficiency can be avoided if all the claims proceed by way of the class proceeding, I conclude that a granting a partial stay would not be reasonable."

On the broader issue, the court stated:

"[It] is not necessary for me to decide whether, apart from the CPA, Dell would have applied in Ontario. As the CPA will apply to all consumer claims arising after July 31, 2005, consideration of the application of Dell in Ontario has been rendered largely academic. To the extent that the application of Dell does remain a live issue, we are likely to receive further guidance from Supreme Court of Canada when it decides the appeal in Telus."

CLASS ACTIONS AT TRIAL

Lieberman v. Business Development Bank of Canada, S.C.. 2009 BCSC 1312: Plaintiff's successful in part at common issues trial.

PLEADINGS

Option consommateurs c. Banque de Montréal, 2009 QCCS 5595: Defendant applied to strike aspects of pleadings, on the basis that they alleged that they went beyond the scope of the certification order. The court agreed to strike the duty to warn and extra-contractual claims, on the basis that such claims were not certified.

In Conseil québécois sur le tabac et la santé c. JTI-MacDonald Corp., 2009 QCCS 5862, the plaintiff brought an application to strike certain of the defence allegations on the basis that, if left undisturbed, these would import a measure of complexity and delay to the proceedings that was unwarranted. The defendants' allegations spoke to the government's regulation during the 1950s, 60s and 70s as well as its knowledge of risks and dangers of smoking. The Court found that the analysis ought to be informed by the allegations made by the Class. The Court addressed each of the allegations involving the government and allowed the application in part. Leave to appeal this decision has been granted [2010] J.Q. no 699.

EVIDENCE

Fanshawe College of Applied Arts and Technology v. LG Philips LCD Co., [2009] O.J. No. 5002 (S.C.): Defendants sought to apply to strike affidavit filed by lawyer and expert report in price fixing case. The court noted the varying case law:

"Examples of cases that support the position that a motion to strike an affidavit should best be left to the judge hearing the certification motion are:

1) Hague v. Liberty Mutual Insurance Co., [2001] O.J. No. 6069 (S.C.J.);2) Andersen v. St. Jude Medical Inc., [2003] O.J. No. 3556 (S.C.J.); and3) 2038724 Ontario Ltd. v. Quizno's Canada Restaurant Corp., [2007] O.J. No. 1136 (S.C.J.).Examples of cases which have held a contrary view are:1) Edwards v. Law Society, [1995] O.J. No. 2900 (Ont. Gen. Div.);2) Chopik v. Mitsubishi Paper Mills Ltd., [2002] O.J. No. 2780 (S.C.J.);3) Punit v. Wawanesa Mutual Insurance Co., [2006] O.J. No. 3685 (S.C.J.);4) Pro-Sys Consultants Ltd. v. Microsoft Corp., [2008] B.C.J. No. 1778 (B.C.S.C.); and5) Metzler Investments GMBH v. Gildan Activewear Inc., [2009] O.J. No. 3394 (S.C.J.).

I prefer the position advanced by the defendants that I should not defer this motion to the certification stage. In my view, it will assist both sides that I rule at this preliminary stage on the admissibility of a substantial body of evidence."

The court stated: "Recognizing that certification orders do not settle substantive rights, but are procedural in nature, courts have regularly accepted affidavits sworn on information and belief on certification applications: Hoffman v. Monsanto Canada Inc., [2003] S.J. No. 259 (Q.B.) at para. 52."

On the admissibility of hearsay the court noted: "Brian Lee is currently incarcerated in the United States. For that reason, he is out of this jurisdiction and unable to testify. That situation, I find, meets the "necessity" criterion. On the question of the "reliability" of the Chunghwa Documents, I have regard to the following:

(a) There is an "inherent circumstantial guarantee of accuracy" in business re-cords: R. v. Martin, [1997] S.C.J. No. 172 (C.A.) at para. 42.(b) They were initialed contemporaneously by senior level Chunghwa executives who attended the meetings;(c) Chunghwa and two of the Chunghwa executives who participated in the meetings have been charged in the United States for their respective roles in the alleged conspiracy and have been sanctioned with fines and/or imprisonment. These Chunghwa Documents are clearly statements against in-terest. Thus, there is little incentive, if any, on the part of Brian Lee to have falsified any of these documents.I find that the Chunghwa Documents are admissible under the principled approach to hearsay exceptions."

The documents were also admitted as business records.

Carrier c. Québec, [2009] J.Q. no 14270 (S.C.) Court allowed a motion by defendants for pre-certification examinations, however, the court declined to allow the submission of three affidavits on the basis that these would go to the merits of the case.

Larose c. Banque Nationale du Canada, [2010] J.Q. no 73 involved a proposed class action for the loss of personal information that had been stored on the Defendant's computers. The Defendant's application to produce an affidavit was allowed in part.

Bruce Estate v. Toderovich, 2010 ABQB 21: Intervenor Health Quality Council of Alberta sought to strike filing of a report produced on the implicated sterilization procedures. The court found that the relevant statute did prevent admission of the report into evidence.

MOTIONS TO DISMISS

Cannon v. Funds for Canada Foundation, [2009] O.J. No. 4986 (S.C.): Plaintiffs agreed to dismiss against certain defendants in tax shelter scheme in return for cooperation. The court granted the motion stating: "The dismissal of the action against some of the defendants, in return for their cooperation, will eliminate the need for a costly and time-consuming jurisdictional challenge and will reduce the scope of the litigation and enhance its efficient and cost-effective progress. I am satisfied that the claims against the corporate defendants being released from the action are marginal at best and that there are serious jurisdictional issues pertaining to those defendants. I am also satisfied that the claims against the individual defendants being released are somewhat remote and in any event there is good reason to believe that those claims would result in paper judgments, at best. The cooperation of those individual defendants, by consenting to examination under oath, is a reasonable compromise in exchange for their release from the action."

CHICKEN AND EGGS

Thorpe v. Honda Canada, Inc., 2009 SKQB 488: Court found that challenge to national class provisions of Saskatchewan's statute should await certification. The court stated: "Firstly, it is a well recognized rule that, generally speaking, except where there are compelling reasons that dictate otherwise, such as time sensitivity, the certification motion should be the first motion heard on a class action. See Alves v. MyTravel Canada Holidays Inc., 2009 SKQB 77, [2009] S.J. No. 113 (QL); Attis v. Canada (Minister of Health) (2005), 75 O.R. (3d) 302 (Ont. S.C.J.). Secondly, it is more appropriate to rule on the constitutional issue after all the evidence pertaining to the certification motion is before the Court, rather than to make a ruling without factual underpinnings. Thirdly, should the certification application be denied on the merits, the Court may wish to exercise the option of not ruling on the constitutional issue because it would not be necessary to do so.". An application to investigate vehicle prior to certification granted

Adams v. Canadian Tobacco Manufacturers' Council, 2009 SKQB 387: The Court held that plaintiff's counsel could not apply for appointment of a case management judge until proof of service of all named defendants had been filed. The application must be by way of a formal ex parte application supported by an affidavit.

The court also declined to allow the defendant to examine the Plaintiff's vehicle for certification purposes stating: "The request made by Honda Canada is merit-based, and any inspection of the vehicle would not provide any probative evidence respecting the live issues on the upcoming certification application." However, the court did allow for inspection and preservation order in order to protect the defendant's position on the merits stating "If this was an ordinary individual claim and not a class action, an inspection of this nature would, perhaps, be routinely granted. I see no reason why, in these circumstances, that the fact that the action may be converted to a class action is of any consequence. Accordingly, I conclude that Honda Canada is entitled to an order that provides for the inspection and preservation of the plaintiff's Civic, and I am accordingly prepared to exercise my discretion in favour of granting such an order."

Alves v. MyTravel Canada Holidays, Inc. (c.o.b. as Sunquest), 2009 SKQB 232: application to examine several proposed extra-provincial class members prior to certification to establish existence of release denied

McKenna v. Gammon Gold Inc., [2009] O.J. No. 5151 (S.C.J.): Court rejected the defendant's application to have summary judgment motion heard at the same time as certification.

Martin v. Astrazeneca Pharmaceuticals PLC, [2009] O.J. No. 3847 (S.C.J.): Motion to schedule summary judgment motion prior to certification dismissed), aff'd [2009] O.J. No. 5265 (S.C.J.)

Kwicksutaineuk / Ah-Kwa-Mish First Nation v. British Columbia (Minister of Agriculture and Lands), 2009 BCSC 1593: Court did not allow motion to strike in advance of certification, on the basis that the grounds for the motion to strike overlapped with the certification requirements.

Holland v. Saskatchewan (Agriculture, Food and Rural Revitalization, Minister in Charge) 2009 SKQB 334: An application to add third party prior to certification was denied as defendant had not filed statement of defence. The defendant was order to wait until after certification hearing. The court also stated: "For a court to order that a third party may participate in a certification application, it is suggested there should be a rationale offered for such participation which goes beyond adding one more party in opposition to the plaintiff's application to satisfy the criteria set out in s. 6. No such rationale was offered in this matter."

APPEALS

Phaneuf v. Ontario, [2009] O.J. No. 5618 (Div.Ct): Certification overturned certification of detention class action. The court confirmed that the question of whether a claim discloses a cause of action is a question of law and no deference is owed to the motion judge (para.21). The court found that there was too many individual factors in relation to the reasons why placement in a bed may have been delayed to support certification.

Union des consommateurs c. Bell Canada by adding 2010 QCCA 351: Appeal of denial of certification refused.

Williams v. Ontario, [2009] S.C.C.A. No. 298: Leave to appeal dismissed in case dismissing proposed SARS class action Sharbern Holding Inc. v. Vancouver Airport Centre Ltd., [2009] S.C.C.A. No. 317: Leave to appeal granted in decision dismissing certified class claim on the merits.

Malhab c. Diffusion Métromédia CMR Inc., [2008] S.C.C.A. No. 518: Leave to appeal granted in decision dismissing taxi cab driver libel case.

Seidel v. Telus Communications Inc, [2009] S.C.C.A. No. 191: Leave granted in decision dismissing class action on basis of arbitration clause.

Roach v. Canada (Attorney General), [2009] O.J. No. 5286 (Div. Ct): Appeal dismissed of decision dismissing proposed class action challenging oath of allegiance.

Court affirms decision not to certify light cigarettes class action in Newfoundland: Sparkes v. Imperial Tobacco, 2010 NLCA 21

Barbour v. University of British Columbia, 2010 BCCA 63: Court overturns trial finding in favour of class as a result in interceding provincial legislation legalizing the behaviour. :Riendeau v. Brault & Martineau Inc., [2010] J.Q. no 1448 (C.A.): Quebec Court of Appeal upholds judgment in a class action involving the illegal publicity of consumer credit and violations under the Consumer Protection Act.

Pagé v. Bell Mobility Inc., 2009 QCCS 377 aff'd 2010 QCCA 31: Refusal to certify cell phone charge class action upheld.

COSTS AND FEES

Fantl v. Transamerica Life Canada, [2009] O.J. No. 5003 (S.C.): Costs of standing and fee approval motions considered. Both parties seeking more than $100,000 for these motions. Justice Perrell effectively poxed both their houses, held that there was divided success, and made no order as to costs.

2038724 Ontario Ltd. v. Quizno's Canada Restaurant Corp., [2009] O.J. No. 4977 (S.C.): Court declined to award costs against defendants on failed application to strike stating: "[T]he circumstances of the immediate case are convoluted by a remarkable and unusual procedural history that has already seen several controversies about the adequacy of the pleadings and their role as a factor in the test for certification. These particular circumstances made the motion to strike reasonable."

Coalition pour la protection de l'environnement du parc linéaire "Petit Train du Nord" c. Laurentides (Municipalité régionale de comté des), [2009] J.Q. no 13352 (S.C.): Court approved 25% fee on successful merits case.

Nadon c. Montréal (Ville de), 2009 QCCA 2372: Court overruled registrar's decision on aspects of costs decision in this dismissed pollen nuisance class action.

INTERVENTION

Susan Heyes Inc. (c.o.b. Hazel & Co.) v. Vancouver (City), 2009 BCCA 611: Plaintiff's in proposed class action sought to intervene in appeal of successful individual action. The application was dismissed. The court stated:

"...Mr. Bennett argues that the outcome of the appeal will directly affect the ability of his clients to pursue their actions in that a question of law that is common to their claims and Ms. Heyes' claim will be decided and questions of fact involving the conduct of the appellants will be decided. However, I do not see that that raises a direct interest in the sense that there must be a direct interest for purposes of intervention. The order made by Mr. Justice Pitfield was a judgment for damages in a specific amount in favour of Ms. Heyes. The appeal will result in either an order affirming that order or setting it aside. Those orders would not directly affect Mr. Gautam or anybody he proposes to represent. The reasons for making an order either affirming or setting aside Mr. Justice Pitfield's order will certainly have a bearing on the case that Mr. Gautam wishes to bring forward in the sense that the appeal may decide a legal issue that has the potential, on the basis of stare decisis, to block their action and bring it to an end. But that is different than a direct interest - that is an indirect interest. In my view, the applicants have not brought themselves within the first test."

AMENDMENTS

Andersen v. St. Jude Medical, Inc., 2010 ONSC 77: Plaintiff applied to amend to plead waiver of tort and add that as a common issue, but agreed to defer the trial of that issue. The trial was scheduled to commence on January 11, 2010. The court granted to application stating "...the waiver of tort claim, like the negligence claim, is entirely focused on the defendants' conduct and alleged wrongdoing. All of the material facts giving rise to waiver of tort have been pleaded with respect to the negligence claim and there has been full discovery on this. What is being proposed is an alternative theory of liability based upon the same factual matrix."

The Defendants sought to bifurcate the punitive damages issue. The court agreed to bifurcate part of the issue by rewording it as follows:

"10(a) Does the defendants' conduct merit an award of punitive damages? (b) Should an award of punitive damages be made against the defendants? If so, in what amount? Common issue 10(a) will focus on conduct and presumptive entitlement. If this question is answered in the affirmative, the court will subsequently address common issue 10(b), but only after the conclusion of all proceedings by individual class members, the quantification of compensatory damages, and the quantification of waiver of tort damages, if any."

Hinton c. Canada (Ministre de la Citoyenneté et de l'Immigration), 2008 CF 1343: Court declined to amend

Brochu c. Société des loteries du Québec (Loto-Québec), [2009] J.Q. no 15187, the Quebec Superior Court found that it was not improper for the Court to inquire about the applicability of consumer protection legislation, resulting in the amendment of claims by the class in this lottery class action.

DISCOVERY

Tracy (Representative ad litem of) v. Instaloans Financial Solution Centres (B.C.) Ltd., 2009 BCSC 1699: Court held that plaintiffs entitled to further discovery following common issues trial in their favour on unjust enrichment claims, in order to assist them in tracing the funds.

Martin v. Astrazeneca PLC, [2009] O.J. No. 5265: Appeal dismissed of decision refusing to allow summary judgment motion to proceeding before certification.

Pellemans c. Lacroix, 2009 QCCS 5674: Motion to strike expert reports dismissed in ongoing Norbourg collapse saga.

NATIONAL CLASS ISSUES

Lépine c. Shire Canada inc., [2010] J.Q. no 417 stayed a motion for certification in Quebec was stayed due to a similar class action in Ontario on consent of the parties.

In Reader's Digest Magazines Ltd. c. Speers, 2010 QCCS 49, however, the Quebec Superior Court refused to stay a Quebec action until an Ontario certification case was resolved. The court noted that it was not clear when the Ontario case would conclude, and that the actions were somewhat different.

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You can still register for Friday's November 20's Western Class Action Conference at:

http://www.cle.bc.ca/OnlineStore/productdetails.aspx?id=1826909

If you can't make it to Vancouver, you can also participate online.

I look forward to seeing you all there.

CLASS ACTIONS ON TRIAL

Kirk Baert et al are banging away at the Pearson v. Inco environmental class action trial. In unrelated news, profits at Welland, Ontario watering holes have spiked sharply.

Kotai v. Queen of the North (Ship), 2009 BCSC 1405: Resolution of common issues in ferry sinking class action. Several of the common issues were resolved as a result of an agreement on liability, and resolution of the property damage claims. The parties conducted a number of mini-trials to assist in the resolution of psychological injuries.

FEES

Fantl v. Transamerica Life Canada [2009] O.J. No. 4324 (S.C.): Justice Perrell approved a fee of $6.6 million plus disbursements and taxes, on claimed time of about $3.25 million

The Defendant had agreed to pay the fees fixed by the court or agreed by the parties. (It was said that this agreement was necessary in order to put class members on the same footing as policyholders outside the class who were receiving the same benefits without reduction for legal fees). The Plaintiff agreed not to seek to enforce any contingency fee arrangement previously agreed with the Plaintiff.

The court confirmed that the Defendant had standing because it was "affected", as a result of the agreement to pay fees directly (para.67).

The court rejected Class Counsel's argument that the earlier contingency fee agreement established the reasonable fee stating: "REO repeatedly makes a submission to the effect that since Mr. Fantl has agreed both in his retainer agreements and also by his approval to REO's motion to a 30% percentage contingency fee and since Transamerica has agreed to pay Mr. Fantl's legal fees, that is the end of the discussion, and the court must approve the 30% contingency fee. Once again, that submission is overcome by the court's obligation under s. 32 to determine what is a fair and reasonable counsel fee." (para.73)

The court noted the problem that class members no longer cared about the fee, and hence virtually anything was fair and reasonable from their perspective. However. "Fortunately, identifying the analytical problem, also suggests a means to solve it. The solution is to measure fairness and reasonableness from more perspectives. What the case at bar requires is to measure fairness and reasonableness of the counsel fee against what is fair and reasonable to all of the class, Class Counsel, the defendant, and the public interest. "

On the public interest, the court stated: "It is in the public interest and a good thing to encourage defendants to pay the fair and reasonable legal costs of the persons that they are alleged to have injured, and in the context of class proceedings, paying fair and reasonable legal costs includes paying a premium for the risk that Class Counsel accepted in bringing the matter forward and for assisting and not obstructing the fair resolution of the litigation.I also include the public interest because it is in the public's interest to encourage the economic use of not just judicial resources (which is a well known policy factor of the Class Proceedings Act, 1992) but to encourage the economic use of legal resources. Too much litigation already is a battle over legal fees, and in the case at bar, it would have been a waste of resources to obstruct a resolution of the Class Member's claims because Class Counsel would wish to push the matter to trial in order to obtain their share of the prize based on a contingency fee."

In assessing the base fee, the court removed the amounts expended to the carriage fight, taking the base fee down to $2.4 million: "This expenditure is part of what may justify the contingency fee or the multiplier of a base fee, but it is not reasonable to charge a client for what it costs the lawyer to safeguard a retainer from a competitor. These costs are a risk that the lawyer assumes when he or she takes on the retainer. Viewed in the context of the public's interest, it strikes me as a bad idea to encourage and intensify carriage fights by the prospect that the winner will not only get the file but be paid something by his or her client for getting the file."

The court found that a 2.75 multiplier was appropriate. The court declined to accept the defendant's argument that there should be a step down of the multiplier once settlement was in the offing stating: "[I]t is arguable that despite any lower risk, the settlement work was the more valuable contribution to all concerned, including the public interest and Transamerica itself. Moreover...the settlement path has its own set of risks, and indeed settlement negotiations may be a guise for a war of attrition that depletes the resources of Class Counsel. I am not suggesting that these circumstances existed in the case at bar, but I see no justification for applying differential multipliers, and although it think it low, a 2.5 multiplier applied to the adjusted base fee is within range of producing a fair and reasonable counsel fee."

The court also supported the fee on the basis that it was about 16% of the value of the settlement.

CALL TO SUPPORT CHARITY

Toronto class action Justice Maurice Cullity's secretary Amana Karim is retiring, and is now headed to India to work at a school for girls of leper parents. She is hoping to raise $3600 to support that effort.

You can donate online at:http://www.canadahelps.org/CharityProfilePage.aspx?CharityID=s79973 <http://www.canadahelps.org/CharityProfilePage.aspx?CharityID=s79973>

CARRIAGE

Sharma v. Timminco Limited, 2009 CanLII 58974 (ON S.C.): Court awarded carriage to Kim Orr over Siskinds in a securities case.

The court stated the test as follows: "The primary consideration on a class action carriage motion is arriving at a solution that is in the best interests of all class members, is fair to the defendants, and consistent with the policy objectives of the Class Proceedings Act, 1992... In determining who should be appointed as lawyer of record in a class action, the court may consider, among other things: (1) the nature and scope of the causes of action advanced; (2) the theories advanced by counsel as being supportive of the claims advanced; (3) the state of each class action, including preparation; (4) the number, size and extent of involvement of the proposed representative plaintiffs; (5) the relative priority of commencing the class action; (6) the resources and experience of counsel; and (7) the presence of any conflicts of interest."

The Court continued: "I foreshadow the discussion and analysis below to say that for the case at bar, I do not find particularly helpful factors numbered 3, 4, 5, 6, and 7. I also do not find helpful for the case at bar, a comparison between the retainer agreements and what I will later refer to as the "beauty pageant" factors of a carriage motion, where the rival law firms describe their current talents and past accomplishments. I regard the involvement of Milberg LLP as a sterile or neutral factor. This carriage motion turns on factors 1 and 2."

The court noted that both firms had commenced their investigations before they had a client, but did not comment adversely on that fact: "Next, given that both actions are very much the invention or discovery of the law firms, the number, size, and extent of involvement of the proposed representative plaintiffs (whom each firm enlisted after the idea of a class proceeding was developed) is not a meaningful factor."

On the two key factors the court stated: "The Siskind statement of claim starts the class period earlier and extends its longer. The Siskind theory seems to favour comprehensiveness over cohesiveness....There are challenges with the front end of the extension of the class period, but the challenges are perhaps more profound in the extension of the class period to include purchasers of shares after Timminco made public announcements to correct the alleged misrepresentations. This extension of class membership differentiates class members between those who purchased their shares without any corrective information and those who purchased shares after Timminco had made public announcements withdrawing its mis-statements and this, in turn, creates difficult factual issues about the efficacy of the corrective announcement or announcements, which may further divide the class, and about the legal interpretation of certain sections of Part XXIII.1 of the Ontario Securities Act. Notwithstanding Siskinds' arguments to the contrary, I do not see these extensions as being helpful to the case to be made for the class members who purchased shares before corrective announcements were made."

The court commented on the role of Milberg law firm in supporting Kim Orr: "It would be grounds for disqualification of an Ontario law firm seeking carriage of an Ontario class action proceeding if the Ontario firm entered into an arrangement where an American law firm, or any foreign law firm for that matter, assumed de jure or de facto the role of the lawyer of record for the representative plaintiff, unless the foreign law firm obtained permission to practice law in Ontario..I do not understand Milberg LLP's proposed involvement as usurping the role of Kim Orr....In my opinion, it would be grounds to disqualify an Ontario firm seeking carriage if it purported to partner with an American law firm so that the American firm had a proprietary interest in the Ontario law suit, because this would take the foreign firm's involvement into the territory of champerty and maintenance and impermissible fee splitting, but I do not understand this to be the case at bar....

The court held that payment for Milberg's services could be carved out of any future verdict or settlement. "There is nothing inherently wrong with...obtaining services from foreign law firms so long as there is no interference with or usurpation of the lawyer and client relationship,".

Further, the court stated: "Unkindly, Siskinds draws attention to a serious stain on the reputation of Milberg LLP," but "Milberg LLP does not bear the mark of Cain." The court noted that the two Milberg lawyers involved in the filing "were not parties to any wrongdoing and...thus no more needs to be said about this aspect of the matter."

Soderstrom v. Hoffman-La Roche Ltd., [2009] O.J. No. 4136 (Div. Ct.): Court granted motion to quash an appeal from a judgment preventing Perry Borden from continuing to pursue litigation in which carriage had already been decided against his firm.

CHICKEN AND EGGS

Durling v. Sunrise Propane Energy Group Inc., CV-08-363271-00CP (Ont.S.C.): In endorsements dated October 27, 2990 and November 5, 2009 respectively, Mr. Justice Cullity court found that:

1. One defendants' proposed summary judgment motion on evidence should not proceed in advance of certification;

2. The same defendant did not have standing on the facts to intervene of a proposed motion to discontinue against certain defendants.

The writer is counsel for one of the defendants in this matter.

SETTLEMENTS

Martin v. Roman Catholic Diocese of Antigonish, 2009 NSSC 331: Settlement of priest abuse class action approved. Writer was co-counsel for defendant.

Cilinger c. Centre hospitalier de Chicoutimi, 2009 QCCS 4445: A $5.4 million province-wide settlement was approved regarding wait times for breast cancer radiotherapy treatment in Quebec. The settlement grants compensation to patients diagnosed with breast cancer whom, between October 13, 1997 and March 26, 2009, after undergoing conservative surgery without chemotherapy, waited more than 12 weeks from the date of their referral in radio-oncology at the following Quebec hospitals. Court also approved a 20% contingency fee, which was just over a 1X multiplier.

Option Consommateurs c. Banque Royale du Canada, 2009 QCCS 4485: Settlement approved in relation to claim involving computer system crash.

Dupuis-Déri c. Montréal (Ville de), 2009 QCCS 4477: Illegal arrest class action was discontinued.

Goudreault c. Service garantie Québec inc., 2009 QCCS 4439: Notice of settlement approved.

BIFURCATION

Peter v. Medtronic, Inc., [2009] O.J. No. 4364 (S.C.): The defendants sought to defer the trial of the common issues relating to the quantification of the amount of the waiver of tort claim. The court agreed on the basis that "a disproportionate amount of the forensic energies of the parties and the court's resources would have to be expended " to resolve that issue. The court also found that the overall timeframe of the proceeding would not be unduly lengthened. The court also held: "I agree that the possibility of wasted expense in carrying out one's disclosure and production obligations is not sufficient to constitute prejudice, but I disagree that Medtronic's concerns about protecting its valuable confidential information are addressed. The deemed undertaking and an in-terim confidentially order offer no protection unless the trial is in camera, which is a rare occurrence and hard to imagine being ordered in a class action context."

On the concern about litigation by installments, the court stated: "In arriving at my opinion that Medtronic's request for divided discovery and a severance of issues at trial should be granted, I have not ignored the advice from former Chief Justice McMurtry in Garland v. Consumers' Gas Co., which advice was adopted by the Supreme Court of Canada that litigation by installments should be avoided. However, neither the Chief Justice nor the Supreme Court of Canada went so far as to preclude litigation by installments. Had they done so, then the result would have been to preclude summary judgment motions or motions under Rule 21 or rule 5.05, noted above, and many other rules from being brought in class proceedings."

CERTIFICATION

Robinson v. Medtronic, Inc., [2009] O.J. No. 4366 (S.C.): Application for certification of a defective lead class action granted in part and conditionally. The court (Perrell J.) found that the conspiracy claim was not adequately plead in relation to the special damage requirement, but leave was granted to correct that deficiency.

The court found that the Plaintiff could assert a claim on behalf of the Province of Alberta even though it was not technically a subrogated claim under that province's statute: "Provided that the Representative Plaintiff has his or her own cause of action, the Representative Plaintiff can assert a cause of action against a defendant on behalf of other class members that he or she does not assert personally, provided that the causes of action all share a common issue of law or of fact." (at para.80). A separate class was created for the health insurers to accommodate the fact that the claims were not all pure subrogation claims.

The court found that the Plaintiff could advance a family claim for persons outside the province even where the individual had not died: "The question of whether an individual member of the Family Law Class qualities for a claim pursuant to the Family Law Act and related provincial and territorial legislation is an individual issue to be determined after a common issues trial. The current pleading is adequate to advance the claims of the members of the Family Law Class." (at para.76).

On the inclusion of all implant recipients in the class, the court stated: "All of the proposed class members have defibrillators that are the subject matter of a product recall with respect to a life-saving medical device and in my view in the circumstances of this case, there is a basis in fact for the proposed class definitions. Whether or not Implant Class Members meet the threshold of Mustapha v. Culligan of Canada Ltd., [2008] 2 S.C.R. 114 is a matter for trial....The simple point is that all persons implanted with allegedly defective Leads ought to be bound by the outcome of the class action unless they exercise their right to opt-out." (at paras.139-142)

On common issues, the most controversial point was the commonality of the waiver of tort questions. The court accepted them stating: "...whatever the combination of wrongdoing (with the exception of the combination that yields no liability), the issue will be whether or not the victim of the wrongdoing can elect disgorgement instead of the remedy provided by the common-law or statute. If wrongdoing is proven, then the availability of disgorgement is a common issue of law for all the victims of the wrongdoing." (at para.160) The court did agree to bifurcate the waiver of tort issues until after the other common issues however.

Notably, the court declined to certify the punitive damages question stating: "...the entitlement to and the quantification of punitive damages may be a common issue in some cases. However, it is my opinion that the case at bar is not one of those cases because in the case at bar the entitlement and quantification of punitive damages requires a quantification of the compensatory damages and an appreciation of the extent of the harm caused by the defendant's misconduct, if proven...In order to rationally determine whether punitive damages should be awarded and to determine the quantum of them, the court needs to know the quantum of compensation that will be awarded." (at paras.167, 171). [ED'S NOTE: Perrell J is correct that Whiten does express the amount of compensatory damages as a consideration in whether punitives SHOULD be issued, rather than only being relevant to the AMOUNT that should be issued. However, queare whether what perhaps could and should be certified as a common issue is the element of the test for punitive damages as to whether there was "high-handed, malicious, arbitrary or highly reprehensible misconduct that departs to a marked degree from ordinary standards of decent behaviour" Justice Perrell's effort to distinguish the earlier cases that accepted punitive damage common issues was arguably strained, particularly the suggestion that Rumley was different because causation and damages remained to be determined after the common issues trial in Robinson. They were equally left to the individual issues stage in Rumley.]

The court commented on the need for greater commitment from Class Counsel to assist class members with individual hearings: "Class Members require, at least, the assurances that they will have the representation of Class Counsel and a willingness to provide services pursuant to a contingency fee agreement." (para.209) The Plaintiffs were given leave to amend the plan.

Gordon c. Société Radio-Canada, 2009 QCCS 4149: Proposed group libel type case denied certification. The court noted that proof of effect would depend on the reaction of each individual. The court also held that, in context, the words were not defamatory. Finally, the court held that the group was too diffuse to support the libel case.

Pagé v. Bell Mobility Inc., 2009 QCCS 377: Class action regarding charges for equipment upgrade where the amount was not disclosed or given in writing. The court commented on the Quebec cause of action test stating:

"As to the effect of proper evidence, it is important to mention that... The court must take the allegations of fact contained in the motion as proven. However, if these facts are contradicted during the presentation by the respondent through proper evidence permitted by the court and consented to by counsel for the petitioner, the court may assess its credibility... In sum, the conditions for bringing the action must be analyzed on the basis of the allegations contained in the motion, the exhibits appended to it, and the grounds of objection raised. In this context, however, it is not appropriate to carry out an in-depth assessment of the motion's chances of success."

The court also talked about the need to establish the existence of a group: "In this regard, the Court is required to engage in more than mere assumptions. The petitioner must adduce evidence of the existence of a group,14 for example, by public knowledge of the event in question. At the authorization stage, however, the Court may not require that the petitioner has conducted a thorough inquiry into the manner of providing the names of potential members. A reasonable inquiry must have been conducted, however, and an estimate of the number of persons involved must be supplied."

The court discussed the nature of the common issues requirement: "These terms are sufficiently broad to provide the definition of a group for the purposes of a class action, even if the actual situation of each member or of the member subgroups may point to some degree of diversity or individuality, notably in the circumstances surrounding the liability and the fault or in the quantum claimed by each of the members"

The court found that there was no evidence of a group with common issues, rather the evidence showed that this was an isolated case.

Brunelle c. Banque Toronto Dominion, 2009 QCCS 4605: Mortgage pre-payment class action certified.

Savoie v. Imperial Oil Ltd., 2008 QCCS 6634: Price increase class action certified. Plaintiff alleged that defendant acted in concert to prematurely raise their prices at the pump in order to pass on to consumers the entire amount of a duty that the Quebec government planned to charge them. The court found that the existence of an agreement was a proper common issue, as was the issue of exemplary damages. The court stated:

"At the trial on the merits, it will be up to the petitioner to prove that the lessening of competition was undue, a submission that must be considered in terms of the respondents' position in the market and the injurious nature of their behaviour.20 The Court is of the opinion that the facts alleged and the evidence initially adduced in support of the motion demonstrate the market power of the respondents, which is quite extensive, so that it is not unlikely to think that any agreement, if there is one, could be undue." (at para.44)

The court confirmed that it had also considered the rule of proportionality set out in art. 4.2 CCP.

COMMUNICATION WITH CLASS MEMBERS

405341 Ontario Ltd. v. Midas Canada Ltd. [2009] O.J. No. 4354 (S.C.): Justice Cullity agreed that franchisees have a statutory right to bring a class action under section 4 of the Arthur Wishart Act (Franchise Disclosure), 2000, S.O. 2000, c. 3 and hence attempts by franchisors to interfere with or prohibit franchisees from exercising that right are unlawful and constitute an offence under the statute.

AMENDMENTS

Stevenson Estate v. Bank of Montreal, 2009 SKQB 371: Plaintiff sought to amend to add class allegations in a slip and fall case.The court considered the need for a prima facie case on such an application stating:

"...I draw my answer to the issue at hand - whether on the amendment application the plaintiffs must present a prima facie meritorious claim in relation to only the cause of action or also in relation to the prospect of the action being certified as a class action. I conclude that to require the plaintiffs to present a prima facie meritorious proof of entitlement to certification is not appropriate. Doing so would place a barrier in the way of an application for certification that was not intended by the legislature."

However, the court went on to consider the second issue of whether the amendment was "just and equitable". The court found that it was not stating:

"First, the amendment itself, even without certification, will lead to some delay and complication. The delay and complication, and the prospect of inequity, is not restricted to a period beginning with certification.... The plaintiffs want to make a new beginning, eight years after commencement of the action and seven years after that new beginning was available...Allowing the amendment to plead The Class Actions Act would unduly delay and complicate the trial, and it would be inequitable to the defendants."

Hence the application to amend to add class claims was rejected.

Cilinger c. Centre hospitalier de Chicoutimi, 2009 QCCS 4438: Request to amend class definition in cancer treatment class action. An end date was established for class membership.

2038724 Ontario Ltd. v. Quizno's Canada Restaurant Corp., [2009] O.J. No. 4376 (S.C.): Plaintiff class sought to amend claim in a certified class action that was under appeal. The defendants objected that certain amendments were designed to avoid the certification process. On procedure to amend in a class action, the court commented:

"Applying only the Rules of Civil Procedure, technically speaking, a plaintiff could proceed unilaterally to amend the statement of claim, because the defendant will not have delivered a statement of defence but, practically speaking, the defendant will be on the record and have delivered a plethora of pleading-like material in the run-up to the certification motion. Thus, the custom of seeking the defendant's consent or giving the defendant advance notice of the amendments makes sense. Following the unwritten ritual would have made even more sense in the case at bar where the emotional temperature of the litigation has been hot. It is unfortunate that the manner in which the Plaintiffs have made their amendments has added to the acrimony, but from the court's perspective it would not be productive to formalize all the customs and rituals of practice and procedure in class actions, which continue to develop and change...

[The] Quiznos Defendants submitted that proposed amendments to a statement of claim in a certified class action had to be treated differently from amendments in a normal action. He suggested that the leave of the court to amend should always be sought and that the court should scrutinize the proposed amendments having regard to their effect on the class proceedings. I agree with this sub-mission. Amendments to a pleading in a class action are significant not only to a party's claim or defence, which is their chief role, but they also may affect the certification criteria of class definition, common issues, and preferable procedure...

[A] key factor in determining whether to allow an amendment to a pleading in a class action are whether the amendment: (a) just contains a further allegation that does not fundamentally change the nature of the action or (b) fundamentally changes the nature of the action and would require reconsideration of all the matters considered on the first application."

The court struck the conspiracy claim with leave to amend for failure to plead special damages. The court allowed the amendment to plead the common law duty of good faith on the basis that it was not a fundamental change to the common issues.

COSTS

De Wolf v. Bell ExpressVu Inc., 2009 ONCA 765: Defendants sought costs on successful appeal striking the action. The case was funded by Class Proceedings Fund. The court found that no special factors applied, and awarded costs of $55,000 for the appeal and $125,000 of the action.

APPEALS

Richard v. British Columbia, [2009] S.C.C.A. No. 274: Leave denied from a decision foreclosing pre-Crown Proceedings Act claims. The writer is co-counsel for the Province in this matter.

Merck Frosst Canada Ltd and Merck & Co. Inc. v. Gerald Wuttunee et al , 2008 SCCA 512: Leave denied from Saskatchewan judgment refusing certification was dismissed.

Merck Frosst v. Mignacca, 2009 SCCA 261: Leave denied from Ontario judgment declining to stay the Saskatchewan proceedings was dismissed.

Hislop v. Canada (Attorney General), [2009] S.C.C.A. No. 264: Application for leave to appeal the Ontario judgment declining to allow class counsel to attach pension benefits in order to be paid was dismissed.

Lefrancois v. Guidant Corp., [2009] O.J. No. 4129 (Div.Ct.): Leave denied from refusal to narrow class definition to certain models.

Seidel v. Telus Communications Inc. (B.C.) [2009] S.C.C.A. No. 191: Leave granted in a decision finding that the defendant could rely on an arbitration clause to avoid class certification.

Sorbara v. Canada, [2009] S.C.C.A. No. 299: Leaved denied from decision finding that GST case could not proceed in Ontario superior court.

Lambert v. Guidant Corp., [2009] O.J. No. 4464 (Div Ct.): Leave denied from decision certifying products liability case. An interesting aside from the court: "In my opinion what was really driving this motion for leave was counsel's concern that courts dealing with certification applications have interpreted s. 5(1) of the CPA so as to make any meaningful opposition to certification virtually impossible. I am aware that amongst the members of the class action bar, counsel's view is not unique. If I am correct I observe that any perceived imperfections in the certification process must be resolved by the Legislature. The judges must work with the legislation that presently exists."

SETTLEMENT ADMINISTRATION ISSUES

Association d'aide aux victimes des prothèses de la hanche/Hip Implant Victim's Aid Association c. Centerpulse Orthopedics Inc. (Sulzer Orthopedics Inc.) (Zimmer Holdins Inc.), 2009 QCCS 4618: Court allowed the late claim of a class member because the defendant had failed to provide the late claimant's address for the purpose of giving notice.

EVIDENTIARY ISSUES

Pearson v. Inco Ltd. : As this class action moves through trial, there have been an number of evidentiary rulings:(October 20, 2009) 12023/01 (Ont.S.C.): Court allows late delivery of report from Todd Hillsee on communication issues regarding knowledge of high levels of nickel.(October 22, 2009) 12023/01 (Ont.S.C.): Introduction of updated calculations by expert witness on change in values prima facie allowed, but defendant given right to do discovery and to ask for admissibility to be reconsidered on the basis of the discovery evidence.(October 26, 2009) 12023/01 (Ont.S.C.): Court allows testimony by expert on base year that should be used for calculations.

Jeffery v. London Life Insurance Co. [2009] O.J. No. 4343 (S.C.): Canada sought to strike summons issued to certain gov't officials. Canada was not a party to the class action. The court struck 1 of the 3 summonses.

Brochu c. Loto-Québec, 2009 QCCS 4676: Court considered variety of admissibility issues in gambling addiction class action.

INTEREST CALCULATION

Toyota Canada inc. c. Association pour la protection des automobilistes inc., 2009 QCCA 2008: Court allowed appeal on proper determination of judgment interest.

TWEET!

Follow me on Twitter at

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The registration link is below:

http://www.cle.bc.ca/OnlineStore/productdetails.aspx?id=1826909

The program is certainly broad enough to be of utility to lawyers across the country. For those of you who cannot make it to Vancouver, the conference can be attended over the web (including with video if your server is strong enough).

The conference includes a free cocktail party the evening beforehand, sponsored by Branch MacMaster and the Bruneau Group. We'll email drinks out to web attendees, and/or you can watch us imbibe via webcam.

OTHER CONFERENCES

The Québec Bar Continuing Education Service conference on class actions which will be held on October 29-30 at the InterContinental Hotel , Montréal. The program can be found at : http://www.barreau.qc.ca/formation/activite.jsp?Langue=en&noActiv=1178&namePage=activite.jsp

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SUPREME COURT OF CANADA CONSIDERS CLASS ACTIONS

Marcotte v. Longueuil (City), 2009 SCC 43, Breslaw v. Montreal (City), 2009 SCC 44: Court held that a class action was not necessary in order to strike a taxation by-law in a 5:4 split decision. The court held that a class action was not necessary to stop the limitation period, since the limitation for the declarations sought had not yet started to run. The court also found that there was a problem in that individual class members would not be able to exercise their right to opt out. The majority made the following comment on proportionality requirement contained in Art.4.2 CCP:

"[The] effect of the principle of proportionality is to cast serious doubts on the appropriateness of bringing class actions to achieve the purposes being pursued in the appellants' proceedings. The class action has a significant social and legal role, as the courts have often confirmed. Nevertheless, I consider the Quebec Court of Appeal's consistent line of authority, according to which a request for a declaration that a municipal by-law is null cannot be made by means of a class action, to be sound in that it reminds us that the class action must be used properly, which does not seem to me to be the case in the two appeals before this Court."

The dissent found that invoking proportionality to reject the action was improper (para.74), particularity since Quebec's class proceeding statute did not have a preferability requirement (which the dissent suggested had certain parallels).

As with the judgments from the SCC on arbitration provisions in Dell and Rogers, there was enough of a Civil law veneer to these decisions that there is likely to be some debate in the common law provinces as to their applicability. Once again, the majority declined to refer to the mass of common law case law on constitutional class actions in order to provide guidance to the rest of the country.

PRICE FIXING CASE CERTIFIED

Irving Paper Ltd. v. Atofina Chemicals Inc., [2009] O.J. No. 4021 (S.C.): After a number of losses and limited decisions, a clear win for the proponents of price-fixing class actions. On class definition, the court stated:

"In my view, it is no response to the plaintiffs' proposed class definition that because it is so large, it is unsuitable. If that were so, defendants engaged in "bad behaviour" affecting large numbers of the population could do so with relative impunity, knowing that class proceedings were not available and individuals affected would be most unlikely to bring an individual action." (para.105).

The court suggested that the earlier decision in Chadha refusing certification of a price fixing decision has essentially been overtaken by the Ontario Court of Appeal's decisions in Markson and Cassano:

"I am of the view that Markson and Cassano signal a different approach to be taken to certification whether it be in breach of contract or other types of cases. Justice Rosenberg spoke of the need to establish "potential liability" before resort to the aggregation provisions could be had. That being so, it seems to me that the plaintiffs here need only prove potential liability -- in other words, that the defendants acted unlawfully. This would trigger the aggregate assessment provisions. Further, Markson establishes that not every class member need have suffered a loss and so it is not necessary to show damages on a class-wide basis."

In relation to the potential complexities created by the pass-on defence, the court noted recent criticisms of this defence outside the price-fixing area, and stated: "As I have already noted, these decisions were not ones involving allegations of a price-fixing conspiracy. However, it seems to me that the plaintiffs should be given an opportunity to advance their arguments at trial on the basis of a full evidentiary record." (at para.150)

On preferable procedure, the court concluded: "In my view, a class proceeding is the preferable procedure in this case. The defendants have not identified an alternate procedure. It seems to be their position that no litigation is preferable to a class proceeding. That argument has been already rejected in Markson." (at para.153)

NATIONAL CLASS ISSUES

In Chalmers (Litigation guardian of) v. AMO Canada Co., 2009 BCSC 689, the Defendants expressly challenged the jurisdiction of the BC Supreme Court to hear non-residents' claims. The Court rejected the Defendants' submissions, noting that pursuant to the Court Jurisdiction and Proceedings Transfer Act, it had jurisdiction on the basis that (a) one of the Defendants was extra-provincially registered in BC and therefore "ordinarily resident in British Columbia", and (b) there was a real and substantial connection between British Columbia and the facts on which the proceeding against the Defendants was based. The Court then proceeded to the second stage of the jurisdictional analysis, and concluded that it should not decline to exercise its territorial competence on the basis that (a) the aggregation of claims provides economies of scale; (b) the Defendants had not put forward any evidence to show significant variation as between the laws of the provinces on either the negligence or punitive damage common issues; (c) the inclusion of non-residents allows for the reduction or avoidance of multiplicity of proceedings; (d) the inclusion of non-residents reduces the possibility of conflicting decisions in different courts; and (e) certification of national class actions promotes the fair and efficient use of resources within the Canadian legal system as a whole. [Editors note: Hear, hear!].

Mignacca et al. v. Merck Frosst Canada Ltd. (2009), 95 O.R. (3d) 269 (Div. Ct.): This February 2009 decision snuck under the author's radar. In this Ontario Vioxx action, the Divisional court held that the refusal to stand down in favour of the certified Ontario action was not improper. (Note: This decision issued prior to the Saskatchewan Court of Appeal's decision dismissing certification)

On whether there was a constitutional imperative to respect the earlier Saskatchewan certification decision, the court stated: "We disagree with Merck's submission that the case law dictates that the first multi-jurisdictional certification order made in Canada is a trigger point, crystallizing carriage of the class action with the effect of "shutting down all class actions across Canada". A rule of swiftest to the finish line taking all encourages tactics that may well be contrary to the interests of justice. Such an interpretation of the principles of constitutional respect for judgments and comity in the case law may result in an arbitrary, unfair order...In this case, the Saskatchewan Amending Certification Order is under appeal and hence is stayed pending the appeal. Therefore, the respondents may argue that the Ontario certification order is the first final certification order in Canada. This argument has no more merit than the argument advanced by Merck. Such a rigid technical approach encourages unfair tactics and undermines the integrity of the justice system....When the "full faith and credit" constitutional principle and the principle of comity are considered in light of their underlying objectives in the context of potentially competing multi-jurisdictional class actions, I conclude that it is clear that Cullity J. was not constitutionally bound to stay the Ontario Action, and that he had jurisdiction to make the decision to refuse to grant the stay."

On the effect of the even earlier Ontario carriage order rejecting Saskatchewan plaintiff's counsel: "As outlined, the principle of comity is that courts must consider and respect decisions in other juris-dictions, and should not undermine prior decisions. We conclude that the principle of comity applied both to Klebuc C.J. when he considered the Merchant Group's request to amend the existing certification order in light of the Carriage Decision, and to Cullity J. when he considered the issue of the request for a stay of proceedings. As counsel for the Consortium suggest, comity in the facts of this case is a two way street...Although Klebuc C.J. briefly mentioned the existence of the Carriage Decision, it does not appear that the principles of comity in the unique facts of this case were adequately respected...Winkler R.S.J. did not merely make a finding that the Consortium was better qualified to represent a national class of plaintiffs. He found that it would be inappropriate for the Merchant Group to represent a national class of plaintiffs. He also chose the current Ontario Action in preference over the Wuttanee #1 national class action."

On comity, the court stated: "We conclude that Cullity J. in this delicate situation gave full faith and credit to the Saskatchewan decision, to the extent it did not undermine the Carriage Decision and the findings of fact in that decision as to the best interests of the litigants in Ontario and elsewhere."

On the abuse of process associated with having two cases doing the same thing: "Merck argues that it is the first defendant in Canada to be subject to simultaneous competing multi-jurisdictional class actions certified in two different provinces involving the same plaintiff class and substantially the same claims, thereby creating chaos, [page284] confusion, uncertainty and the possibility of inconsistent verdicts, contrary to the interests of judicial economy. We conclude that Merck identifies a problem, but exaggerates the consequences of two par-allel proceedings. Potential plaintiffs would receive notices with respect to two actions. A mechanism would be found for plaintiffs to chose between the two outstanding actions and proceed within the action of their choice. [Editor's note: Huh? These are both opt out statutes. There is no need to choose at this stage of the proceeding.] Apparently some 7,000 potential plaintiffs have already contacted counsel in the Consortium. As Cullity J. observed, the presence of two overlapping multi-jurisdictional class proceedings is unfortunate, but the problems are solvable with co-operation, communication and direction from the courts." [Editor's note: Group hug between two sets of counsel and two courts that have been sniping for years. Sounds like a great plan!]"

The boomerang problem: "We note that Merck's argument of prejudice to the defendants flatly contradicts the position it has taken in these and all other proceedings. Merck's assertion of "chaos" and prejudice caused by two similar multi-jurisdictional class actions appears somewhat hollow given Merck's express preference for individual actions, or 13 provincial class actions across the country."

On forum shopping: "I conclude that a greater abuse would be to allow and encourage forum shopping, and to require the Ontario plaintiffs to be required to pursue their actions in Saskatchewan, with the Merchant Group as their representatives." [Editors note: Isn't forum shopping also a two-way street?]

Summary: Bad facts, bad law.

CLASS ACTIONS AT TRIAL

Tracy v. Instaloans Financial Solutions Centres (B.C.) Ltd., 2009 BCSC 1036: Court found constructive trust in payday loan case.

Lieberman v. Business Development Bank of Canada, 2009 BCSC 1312: Pension surplus case decided in favour of the class.

Bennett v. BC, 2009 BCSC 1358: Retirement benefits class action dismissed.

Dean v. Mister Transmission (Intl) Ltd., 2009 OJ 3445 (S.C.): Class claim by franchisees dismissed on summary judgment.

THIRD PARTY FUNDING

Meltzer Investment GMBH v. Gildan Activewar Inc. 2009 CanLII 41540 (ON S.C.): Court found that proposed third party financing agreement was not contrary to public policy (para.62), and was not per se champertous. However, the precise terms of the arrangement before the court did not allow approval. The court stated:

"[It] is intended that CFI's commission will be in all practical terms a first charge, after legal and administrative expenses, on the monies recovered for the Class Members if this proceeding is certified. It seems to me that is why the plaintiff, as required by CFI, is seeking the court's approval of this Agreement, which requires an assessment of the fairness and reasonableness of a compensation payable to CFI. That assessment cannot now be undertaken. It is not enough to compare the proposed commission to the 10 per cent levy paid to the Class Proceedings Fund. Here, as in McIntyre, the compensation to be paid to CFI is completely related to the amount of money that is ultimately recovered. It has no relationship to the amount of money paid by CFI, the period of time during which those monies are outstanding, the degree of risk assumed by CFI or the extent of its exposure to costs. There is no cap on the amount of compensation payable to CFI. It is impossible to conclude that this Agreement will not amount to "over compensation" to the extent that it is unreasonable and unfair to those who will bear its expense. For the forgoing reasons, in these circumstances, this court cannot now declare that the Indemnification Agreement does not engage maintenance or champerty."

SETTLEMENTS

Fantl v. Transamerica Life Canada, 2009 CanLII 42306 (ON S.C.): Court certified and settled fund expense case.

Bishay v. Maple Leaf Foods Inc., 2009 SKQB 326: Maple Leaf settlement approval reasons issued in Saskatchewan arm of the case. The writer was co-counsel in the national action.

Sutherland v. Hudson's Bay Co., [2009] O.J. No. 3472 (S.C.): Pension surplus case settlement case. The court noted that receipt of 11% of the claim damages was reasonable in light of the fact that the plaintiffs had already lost on all major issues at trial. The $1.5M fee was (a) 17.6% of the settlement, and (b) less than the time recorded on the file, and on that basis was approved.

Marcantonio v. TVI Pacific Inc., [2009] O.J. No. 3409 (S.C.): Securities class action settlement for $2.1 million approved. Court made the following helpful summary statement: "Numerous cases hold that where certification is sought for the purposes of settlement, the certification requirements must be met, but are not applied as stringently." (at para.6). The court noted that the amount was between $3-4.4M of counsel's view of assessed losses. Class counsel fees of 25% were approved. The court commented on the benefit of the percentage approach stating: "The method of determining fees set out in s. 33 of the CPA - the 'lodestar' method - has been the subject of judicial and academic criticism. Justice Cullity recently commented on its deficiencies in Martin v. Barrett, [2008] O.J. No. 2105 at paras. 38-39 (S.C.J.) (QL); see also, Endean v. Canadian Red Cross Society, [2000] B.C.J. No. 1254 at paras. 15-16, 19 (S.C.) (QL); Benjamin Alarie, "Rethinking the Approval of Class Counsel's Fees in Ontario Class Actions" (2007) 4(1) Canadian Class Action Review 15 at 37-38. A multiplier can reward lawyers who accumulate unnecessary time and punish those who are able to do things effectively in less time. I do not have to grapple with these difficulties in this case as the retainer agreement does not provide that fees are to be calculated by applying a multiplier and none is requested. Nonetheless, based on time included in the evidence on the motion, and based on consideration of only the monetary benefits obtained for the class, by the time the litigation is con-cluded and interest accrues on the settlement amount, counsel estimate the multiplier will be ap-proximately 2.5. This settlement was achieved at an early stage, but if a multiplier were to be applied, I consider a multiplier in this range to be acceptable having regard to the risks assumed and the results obtained for class members in the circumstances of this case."

CERTIFICATION

Kulula v. Kativik School Board 2009 QCCS 4152: Sexual abuse case refused certification. Interestingly, the court commented on the use of common law cases:

"The Court is mindful that precedents decided under legislative schemes that differ from the Code of Civil Procedure cannot be relied upon indiscriminately"

The court also reflected on the need to weigh predominance while assessing in Quebec's common issues requirement stating:

"The precedents mentioned above stand for the principle that art.1003(a) CCP requires more than the mere existence of any 'identical, similar or related questions of law or fact'. Such questions must be sufficiently substantial compared to the outstanding individual questions that a class action would serve the ends of justice, its additional complexities and cost being offset by improved efficiency of process. Here, individual questions probably outnumber common ones overall. But the applicable test is not mathematical. It requires balancing the significance of the common issues in relation to individual ones and ascertaining whether the duplications avoided through a class action justify its additional complexities and cost."

The court found that there were proper common issues.

The court stated that the class definition should be those who "claim to have been the victims" rather than just victims, as the latter definition depended on the outcome of every individual claim.

In terms of whether 1003(c) was met, the court stated: "Fulfilling the condition expressed in art. 1003(c) CCP does not require demonstrating that a class action is the best procedural vehicle available to the group, only that "the composition of the group makes the application of article 59 or 67 difficult or impracticable'" The court held that this requirement was not met as their were only 2 known class members. The court stated "In the context of this case, it should have been possible for the Applicants to identify Mr. Garceau's alleged victims, to communicate with them and to seek their intent...Given that the alleged sexual abuse was allegedly committed by only one individual and that it allegedly occurred during a limited period of time (less than fourteen months) in a village of a few hundred inhabitants in total, the actual number of Student Class Members is likely to be relatively small. In the fact of modern telecommunication systems and the probability that the number of Student Class Members is relatively small, providing the court with practical reasons explaining the Applicants' difficulty to avail themselves of either art.59 or art. 67 CCPP is all the more necessary."

On the adequacy of the representative, the court stated "[The] mental impairment of a group of victims is not, in and of itself, a bar to the institution of a class action....However...[simply] put, there is nothing in the Motion that would suggest that these Applicants are now in a position to represent the members adequately despite the ongoing and severe impairment from which they allegedly suffer.".

Gunther v. Canada (Minister of Citizenship and Immigration), 2009 FC 875, Krena v. Canada (Minister of Citizenship and Immigration), 2009 FC 874: Immigration fee cases denied certification, primarily on grounds that representative plaintiffs did not have standing.

Brahmana v. LUC Education (B.C.) Inc. (c.o.b. Lansbridge University) 2009 BCSC 986: Court certified a contract class action against an education facility that shut down in the midst of the class' academic program.

The court made an interesting comment on the plaintiff's "shortcut" litigation plan: "The defendant takes issue with part of the plan drafted by plaintiff's counsel. Section 10 of the plaintiff's case plan proposes that individual issues be addressed by affidavit and that "standard proof of loss claims forms be developed and approved by the court". The defendants say that document disclosure and viva voce evidence is the fair method of proceeding. I agree with the defendants. The Act requires a workable plan before the class can be certified. The plaintiff's proposed plan is amended by requiring the individual issues to be proved in the normal way. With that amendment, the plaintiff's case plan is workable"

The court also commented on a need for an extraprovincial subclass: "[A]s submitted by the defendant in the course of oral argument, due to the potentially high number of international students included in the identifiable class, it is necessary to introduce a sub-class into the plaintiff's proposed definition. Section 6(2) of the Class Proceedings Act requires a sub-class for non-residents with its own representative."

Association pour la défense des droits des défunts & familles cimetière Notre-Dame-des-Neiges c. Caghassi, 2009 QCCS 3832: Funeral services class action certified. Plots allegedly were not properly maintained during a labour lockout.

Durand c. Dermatech, 2009 QCCS 3874: Pharmaceutical class action refused certification. The court considered the inclusion of a "claims made" definition, and found that it was not fatal (at para.46). The court also round that the requirement for a reaction to the drug was sufficiently objective. However, the Plaintiff failed to put forward enough evidence to meet the "serious appearance of right" question. The court also found that the Plaintiff had not put forward sufficient information to demonstrate that joinder was impractical. The court also found that the representative was not appropriate as she relied completely on the advice of counsel.

Goyette c. GlaxoSmithKline inc., 2009 QCCS 3745: Paxil class action refused certification. The court held that hearsay evidence could be received on a certification application (para.8).

The court found that the scope of the duty to warn was a proper common issue.

The court rejected a punitive damages common issue stating:

"The present case must be distinguished from the case of Quebec (Public Curator) v. Syndicat national des employés de l'hôpital St-Ferdinand.28 This was a class action in which exemplary dam-ages were awarded to patients who suffered prejudice in the form of temporary discomfort due to illegal labour action by unionized employees of a hospital for mentally-challenged persons. In that case, there was a claim for moral damages to be collected as a class based on the allegation that all patients would have suffered equally the temporary discomfort. As confirmed by the Supreme Court of Canada, moral damages were awarded for $1,750.00 for each of the patients and the class of pa-tients received - collectively, as exemplary damages - the amount of $200,000.00. Contrary to that case, the members of the potential class in this case will individually have to prove their physical and psychological damages, any economic damages and any moral damages on the basis of individual hearings. It is only once these amounts have been decided individually that the Court could then consider what, if any, amount should be awarded for exemplary damages on the basis of the criteria under art. 1621, C.C.Q.29 Accordingly, the question of exemplary damages is not "similar, identical or connected" to all members of the group. Rather it is a question to be decided for each individual Paxil user."

The court rejected certification on the grounds that each case would have to be established individually: "Firstly, there are 8 different C.P.S. years involved from 2000 to 2008. Accordingly, there would be different sub-classes depending on changes in the relevant wording in each of the years. Secondly, this is not a case where a defective product is being produced which creates a definite number of difficulties in the user. In this case, civil liability must be determined by assessing the specific risks disclosed for each individual patient which risks vary depending on multiple factors:

a) whether the adverse effects occur during the use of the product and lead to discontinuation;b) whether adverse effects follow discontinuation;c) whether the user was advised prior to use, by either their physician or pharmacist, of whether they may experience dependency or withdrawal symptoms;d) whether the symptoms suffered were described in the C.P.S.;e) whether the symptoms were not described in the C.P.S. but are proved to be directly related to the use of Paxil; orf) to the extent that the symptoms arose following discontinuation, whether such symptoms were "mild and transient" and were described in the C.P.S."

The court also found that the case did not appear to justify the conclusions sought as: "While she vaguely asserts that the C.P.S. did not give adequate notice of Paxil's risks, the symptoms listed specifically in the Amended Motion for Authorization do appear in the C.P.S." (at para.97) and "Unlike the Dallaire case, Ms. Goyette has chosen not to file any medical expertise to directly link her symptoms with the discontinuation of Paxil, choosing rather to rely on circumstantial evidence - of the proximity of the symptoms to the reduction in dosage and the complete discontinuation - as being sufficient to demonstrate this causal link." (para.99)

The court also rejected the representative on the following grounds:

"a) based on the previous analysis, Ms. Goyette cannot represent a class since she herself does not have a cause of action;b) Ms. Goyette has shown a singular lack of interest in that: i- she has never sought to speak with any of the other members of the group, none of whom she knows; ii- she has never sought to communicate with any of the individuals alleged to have signed up at her attorneys' website...; andc) she can provide no explanation as to why these legal proceedings which started on May 2, 2002 remained dormant for more than 5 years."( at para.116)

The court found that the Plaintiff could not represent a national class since she "does not allege that Paxil sold in Canada is manufactured in Quebec, distributed from Quebec or even that the product monographs are printed in Quebec" and hence there was no required "real and substantial connection". (at paras.120-123).

Nadolny v. Peel (Region), [2009] O.J. No. 4006 (S.C.): Case refused certification in relation to increase in premiums payable by employees who received early retirement. Court found that the fact that there were only 48 to 79 class members did not weigh against certification (at para.27). However, the court declined to certify stating:

"Here there is specific evidence of a number of documents as well as verbal communications which may be found to have comprised the contract between the Region and individual proposed class members and which varied between them. Thus, it may well be found on a common issues trial, in part at the instigation of the plaintiff based on allegations of implied terms, that the Plaintiff's claims are not based solely on the written documentation that flowed from the Region to the early retirees as they considered whether to take early retirement, as they were in Ormrod, but rather on all of the representations made by the Region. Were such a finding to be made, then it seems probable that all of the representations made by the Region to all of the retirees would necessarily be central to a consideration of liability as defined by the common issues." (at para.62)

The court accepted that the question of whether there was a duty to advise could be a common issue: "However, while it may establish the existence of a class wide duty to the retirees, it is of questionable value as a common issue that can advance the litigation on its own, and the question is meaningless except in conjunction with a determination on the follow up proposed class issue whether the Region did provide that advice to the retirees as a class." (at para.81)

The court found that it was not an appropriate case for aggregate assessment of damages stating: "Just as causation was required to be proven individually in that case, here the implied contractual terms alleged to form a part of the contract and to have been breached, the representations alleged to have been made by the Region, and the reliance allegedly placed on those representations by individual class members, can only be proven individually having regard to each retiree's communications and course of dealings with the Region. Only then will the liability have been established that could form the foundation for an award of damages - and the amount of damages properly payable at that time by the Region to compensate each retiree for its liability to each of them will also be idiosyncratic and flow directly from the particular circumstances and course of dealings that occurred between the Region and the retiree." (at para.100)

The court found that there was no class as: "the current class definition remains overly broad, potentially encompassing many who do not have a claim, including those who understood before retirement that their premiums were subject to change. It also remains overly broad because it continues to define a class based on an assumption that the circumstances of all of the retirees are the same when they are demonstrably not, and because it continues to be focused towards a number of alleged common issues that I have found are not." (at para.123)

On preferability, the court relied on the individuality noted above, as well as the fact that no one aside from the plaintiff had expressed an interest in becoming part of the class. (at para.130).

Bryson v. Canada (Attorney General), 2009 NBQB 204: Agent Orange class action refused certification. The court declined to accept a "who claim to" restriction on the class definition stating: "In my respectful view, the addition of the qualifying words "who claim to" does not, rectify the underlying problem with the overly broad definition of class members, in the sense that many members of the proposed class would likely have no claim for actual damages against the defendant and in those instances there would be no rational relationship or connection between those individuals and the common issues asserted in the action. In effect, the proposed class includes anyone who was within 10 kilometers of the base during the approximate 53 year period since 1956, and claims to have suffered injury or risk of injury from the application of the chemicals. The proposed definition does not require any actual exposure to the chemicals as a condition of class membership. It is axiomatic that without exposure in some manner there can be no damage and no claim for damages or personal injury."

The Plaintiff rejected the causation common issue stating: "[T]he problem with the plaintiffs' proposed common issues dealing with risk and general causation on a common issues basis for the class as a whole is that the methodology inherent in such an inquiry, considering the number of chemicals involved, the number of diseases alleged, the potential size of the proposed class, the length of the class period and the multitude of variations in exposure, would necessitate a determination of potentially hundreds or thousands of separate inquiries to answer the proposed general causation issue and each of these very individual inquiries may in fact be "common" to only a small number of class members or perhaps to none of them at all."

On preferability, the court placed little reliance on the federal compensation programs since (1) the class was broader than those eligible for these programs, and (2) the class was seeking broader relief than allowed under these programs. However, the court found that "the trial of the proposed common issues would quite likely either become overwhelmed or bogged down by the individual issues contained within them; or their resolution, even if possible to resolve in a common issues trial, would do little to advance the resolution of the individual issues which would still be largely left to be dealt with in the individual proceedings." (at para.91)

Élément c. Philips Avent, 2009 QCCS 3370: Bisphenol A certification applications rejected. Court held that there facts alleged did not seem to support the conclusions. The court stated that fear based on hypothetical and unproven concerns was not compensable under Quebec law. The court also found that inadequate efforts had been made to locate true class members.

Lafontaine c. Vidéotron ltée, 2009 QCCS 3189: Service interruption class action certified.

COSTS

2038724 Ontario Ltd. v. Quizno's Canada Restaurant Corp. [2009] O.J. No. 3127 (S.C.): Quizno's sought to stay costs award to Plaintiff's pending consideration of a reconsideration motion by the Court of Appeal. The court declined to make the order given that the reconsideration motion involved a failure to present an appeal in a timely manner so there was technically no appeal against which a stay could issue.

2038724 Ontario Ltd. v. Quizno's Canada Restaurant Corp., [2009] O.J. No. 3095 (Div.Ct): Plaintiff successful getting case certified on appeal. Court awarded costs of $85g on request of $113g. The court stated:

"It is not unusual, as Cullity J. noted in Sutherland v. Hudson's Bay [2006] O.J. No. 2009, that the claim reveals an "over-generous" expenditure of time by counsel which has become endemic in class proceedings. Although the issues were complex and the result important, they were no more complex or more important than in Cloud v. Canada (Attorney General) [2005] O.J. No. 733, which was argued in 2004. On that appeal, the court found that a claim for $120,000 was excessive and they ordered costs of $60,000 inclusive of disbursements and G.S.T."

2038724 Ontario Ltd. v. Quizno's Canada Restaurant Corp., [2009] O.J. No. 3948 (S.C.): Heading further down the costs rabbit hole, the court awarded the Plaintiffs $5250 in relation to a motion seeking a stay of an earlier costs award. Coming up next, a motion to consider costs of the costs of the costs motion! In further Quizno's news, the Court of appeal declined to extend the time for the defendant to appeal decision declining to give stay: 2038724 Ontario Ltd. v. Quizno's Canada Restaurant Corp., 2009 ONCA 656.

Speers (Trustee of) v. Reader's Digest Assn. (Canada) ULC, [2009] O.J. No. 3106 (.S.C.): Plaintiff lost motion to stay Quebec defamation action. The court awarded $45g in costs rather than the $59g requested given the novelty y of the issues.

Dean v. Mister Transmission (International) Ltd., [2009] O.J. No. 3830 (S.C.): Plaintiff lost summary judgment motion post-certification. Defendant sought $200g in costs including the $125 they had to pay as costs on certification. The court stated: " I reject the defendants' submission that they should be awarded costs of the certification motion, when the plaintiff has already been awarded costs of that motion. While it was otherwise at one time, it is now commonplace for costs to be awarded for each interlocutory proceeding as it occurs." The court did not find that any of the s.31 factors existed, but did acknowledge the need to recognize access to justice concerns. The court awarded $45g, which was reduced by an earlier unpaid costs award in their favour.

Berry v. Pully, [2009] O.J. No. 3845 (S.C.): Costs in favour of plaintiff on various discovery motions set at $45g. One of the discovery judgments is reported at [2009] O.J. No. 3200.

Malhab c. Métromedia CMR Montréal inc., 2009 QCCA 1555: Court of Appeal ordered that the class notice costs incurred following a successful certification appeal by a plaintiff should be addressed by the lower court, and were not properly claimed as disbursements in relation to the appeal.

Comité provincial des malades c. Regroupement des CHSLD Christ-Roi, 2009 QCCS 3755: Plaintiffs application for special fee flowing from successful class resolution granted under 1050.1 CPC.

McNaughton Automotive Ltd. v. Co-operators General Insurance Co.2009 ONCA 598: Costs considered in relation to failed leave to appeal from costs order. Insurers awarded costs of $140,000.

THIRD PARTIES

Holland v. Saskatchewan (Agriculture, Food and Rural Revitalization, Minister in Charge), 2009 SKQB 334: Defendant Province sought to join third party Canadian Food Inspection Agency in a proposed elk disease prevention class action. The motion was dismissed because a Statement of Defence had not yet been filed. Further:

"As has been commented on in a number of decisions, it is simply not obvious why a third party or a proposed third party should be allowed to participate in such a motion. ... The criteria set out in s. 6(1) of the Act all relate to matters between the plaintiff and the defendant: whether there is a cause of action; whether there is an identifiable class; whether the claims of the class members raise common issues; and whether the class action would be the preferable procedure for the resolution of the common issues. For a court to order that a third party may participate in a certification application, it is suggested there should be a rationale offered for such participation which goes beyond adding one more party in opposition to the plaintiff's application to satisfy the criteria set out in s. 6. No such rationale was offered in this matter."

CONFLICT OF INTEREST

Wallace v. Canadian Pacific Railway, [2009] S.J. No. 549 (Q.B.): A defendant sought to remove plaintiff counsel based on conflict of interest. The court issued the order noting that:1. CN was a client when the firm decided to launch the class action;2. This decision understandably led to a sense of betrayal which damaged the solicitor-client relationship such that the firm's ability to represent CN effectively was substantially and irrevocably impaired; and3. The Professional Litigant exception did not apply.4. Disqualification was the appropriate remedy. Notably, the court stated: "I also do not accept the position of the McKercher Firm that disqualification would effectively prevent the plaintiff from representation because it and two other larger law firms in Saskatchewan would be in conflict and that those three firms are the only ones capable of prosecuting such a claim. First, there is no evidence to that effect; second, in the new age of lawyer mobility, plaintiff's counsel need not necessarily be from Saskatchewan."

APPLICATIONS TO STRIKE

Merchant Law Group v. Canada (Revenue Agency), 2009 FC 755: The court struck this GST action finding that:(a) there was no evidence of misfeasance in public office;(b) there can be no common law claims for misapplication of the GST statute;(c) the Tax Court of Canada has exclusive jurisdiction over such claims.

King v. Canada (Ministre des Ressources humaines et du Développement social) 2009 CAF 105: Preliminary question of law found in Crown's favour on appeal in proposed class action seeking interest on successful social benefit appeals.

Campos v. Sun Life Assurance Co. of Canada, [2009] O.J. No. 3408 (S.C.): Court found that LTD benefit complaint should be addressed through labour arbitration.

SCHEDULING ISSUES

Duzan v. Glaxosmithkline, Inc.2009 SKQB 336: Court asked to set certification schedule in Paxil class action. Some interesting comments:

"In the Romano action, the Ontario Superior Court of Justice made a scheduling order on October 25, 2009 based on an agreement between counsel. That order called for the certification application to be heard during the week of January 12, 2009 and required the plaintiffs' Certification Motion Record to be served by May 30, 2008. The Certification Motion Record was not served by that date and Merchant Law Group then discontinued the Romano action on the basis that this action would move forward expeditiously in Saskatchewan. That has not happened....[Mr. Merchant] he repeatedly declined to have any meaningful input into a schedule, taking the position that he would prefer to "park" this action for the time being. His position was that the plaintiffs should decide whether and when they would proceed and that his office had better things to do than to deal with this claim at this time. Finally, he asked what the court would do about it if the plaintiffs did not follow a prescribed litigation schedule. I am satisfied that it is necessary and appropriate to establish a schedule leading to certification."

White v. Glaxosmithkline, Inc., 2009 SKQB 337: Court establishes pre-certification schedule stating "The defendants are entitled to have this proposed class action prosecuted expeditiously in order to remove the cloud of litigation hanging over their product."

Hall v. General Motors of Canada Ltd., 2009 SKQB 312: Court establishes pre-certification schedule.

Adams v. Canadian Tobacco Manufacturers' Council, 2009 SKQB 387: Court held that Plaintiff's counsel could not apply for appointment of a case management judgment until proof of service of all named defendants has been filed. The application must be by way of formal ex parte application supported by an affidavit.

EXAMINATIONS

Alves v. MyTravel Canada Holidays, Inc. (c.o.b. as Sunquest), 2009 SKQB 232: Defendant sought to examine several extraprovincial proposed class members prior to certification to establish that there was a release in place with these members. The court declined to make such an order stating:

"In my view, neither Rule 289 nor s. 7(1) of The Class Actions Act, read separately or together, allow the requested examination at this stage. Even if they did, this kind of an order is a discretionary one and I would, in any event, decline to order the examinations on the basis that they are unnecessary. If Red Seal wants to put evidence before me on the certification regarding set-tlement, Red Seal can file an affidavit if they wish. At this stage, I will not allow Red Seal to conduct what amounts to an examination for discovery on a non party about a possible defence because it cannot get an admission from the plaintiff on that issue"

CLASS DEFINITION ISSUES

Gallagher v. Aurelian Resources Inc., [2009] O.J. No. 3109 (S.C.): Case was certified on consent March 3, 2008. Motion brought to confirm whether 2 individuals were in the class or not. The court determined that they were. The court made an interesting comment about the approach to such issues: "Interpreting the class definition is not simply a matter of applying contract interpretation principles, and to the calculus of interpreting the class definition must be added the purposes and policies of the Class Proceedings Act, 1992....Their inclusion is consistent with the principles of access to justice, judicial economy, and behaviour modification...If Mr. Miller's and Advantage Equipment's legal position is different from other class members - which remains to be determined - this can be raised as a matter of defence by Aurelian to the common issues, and if their legal status is different a subclass could be established to differentiate their situation from other class members. If subsequent to certification, differences among class members become material, they can be dealt with either through sub-classes or as individual issues:"

JUDGE DISQUALIFICATION

Gautam (c.o.b. Cambie General Store) v. Canada Line Rapid Transit Inc., 2009 BCSC 1013: Defendants applied to disqualify the case management judge on the basis that the same court had already ruled against the defendants in an individual action regarding the same issues. The court rejected the application stating: "The finding was specific to the plaintiff in that action. Nothing in the reasons suggests that the finding of fact in respect of Heyes will apply to any other merchant operating on Cambie Street be-tween 2nd and 37th Avenues. For any trier of fact, the factual determination will turn on the evidence adduced in respect of the plaintiff or plaintiffs in any other action."

JURISDICTION

Stanway v. Wyeth Canada Inc., S.C., Gropper J., Doc. 2008 BCSC 847:: Court found jurisdiction on the CJPTA against US companies in products liability suit.

Bouchard c. Ventes de Véhicules Mitsubishi du Canada Inc., 2009 CF 852: Federal Court held that it had no jurisdiction over the foreign defendants. The court also deferred the filing of defence by the Canadian defendant.

APPEALS

Ring v. Canada, 2009 NLCA 45: Leave denied from decision refusing to allow evidence filed in class action in Newfoundland to be used in another jurisdiction.

Instaloans Financial Solution Centres (B.C.) Ltd. v. Tracy (Representative ad litem of), [2009] S.C.C.A. No. 194: Leave denied of decision in favour of class on merits.

Law Foundation of Ontario v. Sun Life Assurance Company of Canada, [2009] S.C.C.A. No. 226: Leave denied in this case (otherwise known as Ruffallo) seeking court's input on whether costs were properly payable by the Fund.

De Wolf v. Bell ExpressVu Inc., 2009 ONCA 644: Appeal allowed from decision that certain administrative fees constitution a criminal rate of interest.

Tiboni v. Merck Frosst Canada Ltd., [2009] O.J. No. 3731 (Div.Ct): Court declined to overturn finding that Allan Rock was in conflict of interest in this drug case given his role as former Minister of Health.

Contat v. General Motors du Canada ltée, 2009 QCCA 1699: Appeal from decision refusing certification dismissed. Plaintiff knew of the availability of the rebate of approximately $1,000 for cash purchases. He nonetheless executed the conditional sales contract on the basis of financing. In such circumstances, he did not appear to have a valid claim for damages. Because Plaintiff personally had no claim , he was not in a position to adequately represent the group. The proposed group was also overinclusive as it was not appropriate to include those who paid cash as they suffered no prejudice. In considering the class defn, the court did comment that "In certain circumstances, a Motions judge may redefine the group proposed by the applicant by changing its scope". However, the court did not err in declining to redefine the group in this case.

Seidel v. Telus Communications Inc., 2009 BCCA 383: Court found that it could award costs of the appeal, since the motion occurred prior to certification, and was not properly characterized as public interest litigation.

Griffin v. Dell Canada Inc., [2009] O.J. No. 3438 (S.C.): Leave denied from decision certifying computer defect case.

Coll c. Syndicat des cols bleus regroupés de Montréal (SCFP, section locale 301) [2009] S.C.C.A. No. 237: Leave denied of dismissal of class action on the merits.

Latreille v. Industrielle-Alliance (L'), compagnie d'assurance sur la vie, 2009 QCCA 1575: Dismissal of class claim affirmed on the merits.

Alberta (Director of Child Welfare) v. C.H.S., 2009 ABCA 271: Application for fresh evidence dismissed.

Barbour v. University of British Columbia, 2009 BCCA 334: Stay ordered of trial judgment pending appeal of parking fee case. Funds collected would be held in trust.

Gourdeau c. Syndicat général des professeures et professeurs de l'Université de Montréal, 2009 QCCA 1483: Leave to appeal refusal to strike refused.

CHICKENS AND EGGS

Martin v. Astrazeneca Pharmaceuticals PLC, [2009] O.J. No. 3847 (S.C.): Summary judgment v. certification. Justice Cullity ordered that the summary motion should not proceed first stating:

"In this motion the defendants seek to have the issues of specific causation affecting the claims of the plaintiffs dealt with prior to certification on a motion under Rule 20...In cases where it is not readily apparent from the material before the court that the plaintiff has no claim, the correct approach to a discretionary determination of the order in which motions should be heard was addressed by Winkler J. (as he then was) in the following passages in Attis v. Canada (Minister of Health) (2005), 75 O.R. (3d) 302 (S.C.J.) and Baxter v. Canada Attorney General, [2005] O.J. No. 2165 (S.C.J.)...I believe it must now be taken as settled in this jurisdiction, that the first step in a proceeding commenced under the CPA will normally be to determine whether it can properly be conducted as a class proceeding -- a question that turns on whether the requirements for certification in section 5 of the Act are satisfied. The rule is not inflexible and the court has a discretion to permit other prelimi-nary motions where this may serve the goal of litigation efficiency by eliminating or reducing ex-penditures of resources and time, or otherwise advance the objectives of the CPA. Neither the existence of the general rule nor the discretion of the court was in dispute on the motion....Although in clear cases like Stone and Punit it may be appropriate for the court to intervene before certification, success for the class is not generally conditioned on the validity of a plaintiff's claims....Motions for summary judgment were specifically identified in Attis and Baxter as examples of those that in appropriate cases might be permitted in an exercise of the court's discretion. Defendants' counsel cited numerous cases in which the motions have been permitted. In many of them the question of priority was not considered and there is nothing in the court's reasons to suggest that any objection was taken by the responding parties. These cases, and those in which the question was raised and the court's discretion exercised in favour of the moving parties, most commonly raised discrete issues of law that potentially affected the claims of all class members and, although not strictly binding on anyone other than the plaintiffs, were likely to have had the practical effect of leading to an abandonment of the claims of the other class members, an early settlement or a nar-rowing of the issues to be tried. ...Other factors that may be relevant to an exercise of the discretion are the likely delays and expense to be incurred in documentary productions and examinations of affiants -- relative to those of a certification motion -- in cases like this where questions of fact will be in issue and expert evidence may determine whether summary judgment will be granted. By way of contrast -- and not-withstanding the relevance of the same principles under section 5(1)(a) of the CPA and rule 21.01(1)(b) -- motions to strike under that rule are made without evidence and may more frequently be allowed to proceed first in order to achieve a possible saving of time and expense in preparing to address the other requirements for certification....19 In the proposed motion for summary judgment the defendants would attack only the factual merits of the plaintiffs' claims. For this purpose they would rely on expert evidence that neither of the principal plaintiffs could establish specific causation. The decision would not bind other class members and would not necessarily decide anything of relevance to the issues of specific causation on which their claims will depend and which will be decided only if certification is granted and the common issues are decided in favour of the class. There is nothing in the evidence before me to suggest that this is one of the cases referred to in Baxter in which summary judgment would benefit all parties....After the defendants informed plaintiffs' counsel of their intention to move for summary judgment -- but before the motion record was served -- the latter indicated that their clients intended to amend the statement of claim to add another plaintiff. They also informed me that there are several other individuals who are potential substitutes. In consequence, there would be no guarantee that summary judgment against the plaintiffs would end the litigation on behalf of the other class members and nothing to prevent successive motions for summary judgment as new plaintiffs are proposed..... Counsel would not preclude the possibility that there might be a series of summary judgment motions if, and as, prospective new plaintiffs were identified. Unless the defendants were prepared to do this, the motion for summary judgment in respect of the present plaintiffs could accomplish nothing of significance for the resolution of the claims of the class. Neither judicial economy nor the interests of an expeditious proceeding would be advanced and it could not be said that the mo-tion, or motions, would have the "positive effect of narrowing issues, focusing the case and moving the litigation forward"...If the individual issues of fact affecting the validity of the plaintiffs' claims are left to be de-termined at the end of the litigation with those affecting the claims of the other class members -- as I believe they should -- it will be necessary to resolve them only if the proceeding has been certified and the common issues decided in favour of the class. In these circumstances, an application of the general rule that certification motions have priority would, in my opinion, be in the interests of judicial economy, more efficient, more consistent with the structure of the CPA, and more conducive to an achievement of its goal of access to justice in that a successful defence to the plaintiffs' claims would not prevent other class members from recovering damages in the proceeding...This is not a case like Stone in which, at the time the propriety of the motion was considered, it was clearly apparent that the plaintiff had no valid claim."

EVIDENCE

Martin v. Barrett, [2009] O.J. No. 3947 (S.C.): Plaintiffs moved to strike affidavit filed by defendants on summary judgment. Certain paragraphs struck.

Metzler Investment GMBH v. Gildan Activewear Inc., [2009] O.J. No. 3394 (S.C.): Defendant applied to strike private investigator affidavit purporting to give anonymous information from former employees. The court struck the affidavit stating: "I agree with the defendants that r. 39.01(4) must be complied with and as set out below, Ms. Schulman's affidavit is not compliant. The information outlined in Ms. Schulman's affidavit is highly contentious, another reason why these are not appropriate circumstances for there to be relief from compliance with r. 4.02." The court also noted: "In my view, it is clear that the five informants conveyed their information to Ms. Schulman without any expectation of privacy. I agree with the defendants that they either did not seek any confidentiality or spoke with exact knowledge that no confidentiality was promised."

Schroeder v. DJO Canada Inc., 2009 SKQB 169: Products liability class action. Defendant applied to cross-examine affiants on certification motion, and to require medical record production. The court granted the motion to cross-examine stating: "I am convinced that the cross-examinations sought will assist in the ultimate determination of the certification application that it is therefore appropriate to exercise my discretion in favour of granting the requested relief. Although determining issues such as the adequacy of the representative plaintiffs may be relatively simple, the question of whether common issues exist and predominate over other issues and whether the class action procedure is the preferable procedure may require a more extensive record. Permitting the requested cross-examinations will ensure that an adequate evidentiary record is before the Court. Accordingly, the defendants' request to cross-examine the plaintiff affiants is granted".

The court also ordered the production of medical records stating: "It follows that it would be similarly appropriate to afford the defendants the same right, on the same basis, respecting medical and hospital records. In other words, to ensure a comprehensive record, the defendants ought to be entitled to obtain, in advance of the cross-examination on the affidavits, any material, x-rays or documents that have a bearing on the certification application." (at para.58)

The Court also declined to order the addition of manufacturer as defendant on motion of the other defendants. The manufacturer consented to being added. The court refused to add them, stating that the proper route was for them to be added as third parties. The court stated: "Given the nature of class action proceedings and the general deference that ought to be afforded to plaintiffs in drafting their claims as they see fit, it would be contrary to the spirit and intent of the legislation to "force" the plaintiff to sue a party that they chose not to pursue." The court distinguished the earlier decision in Sorotski v. CNH Global N.V., 2005 SKQB 89 stating: "It is also noteworthy that Sorotski, decided on February 16, 2005, was rendered at a time when the class action proceeding was a relatively new process in this Province."

Ménard c. Québec (Sous-ministre du Revenu), 2009 QCCS 3391: Defendant applied to examine the representative plaintiff. The court found that the examination was not necessary to assist certification.

Pearson v. Inco Ltd., [2009] O.J. No. 3034 (S.C.): Motion to compel answers from exam of Plaintiff's experts considered.

FEES

Lawrence v. Atlas Cold Storage Holdings Inc., 2009 ONCA 690: Appeal asking for increase in $6.3 million fee to the $12 million requested was rejected. The court did confirm that class counsel ave standing to appeal a fee order. The court stated: "the approved fee represents nearly twice the full docketed fee. I agree with the motion judge's observation that a fee in this range would be more than adequate incentive to solicitors to take on and prosecute an action of this nature." (at para.32) The court awarded costs of $10,000 to the objector respondents payable by class counsel.

Power c. Bristol-Myers Squibb Company, 2009 QCCS 4070: Motion to approve supplementary fees of $108,022.04 approved.

AMENDMENTS

Lorrain c. Pétro-Canada, 2008 QCCS 6839: Plaintiff sought to amend pleadings prior to certification. Motion granted in part.

Option Consommateurs c. Merck Frosst Canada ltée, 2009 QCCS 3794: Application to amend motion for certification granted.

Perreault c. McNeil PDI inc., 2009 QCCS 3245: Court granted requested amendments to expand the case to further drugs, saying that the ability of the rep to represent drugs he and his family did not take should be considered at certification. The court also refused an application to intervene by competing counsel whose action would be stayed if this particular action were broadened.

Spieser c. Canada (Procureur général), 2009 QCCS 4042: In this certified environmental class action, the class definition was amended. The court disallowed amendments adding new contamination products as that would be a fundamental change to the basis for certification. The court also adjusted some of the common issues at the defendant's request.

DEFENDANT CLASS ACTIONS

Sunnybrook Health Sciences Centre v. Lorenz, [2009] O.J. No. 3268 (S.C.): Employer sought declaration of a right to take a surplus from a pension plan. Court found that the required process under the CPA had not yet been met, and adjourned the motion stating: "[If] the deficiencies I have identified are remedied, and the class definition clarified, the application may be amenable to certification. The deficiencies are, however, important. In particular, I do not accept that the CPA provides a method of binding absent persons under the guise of approving a fictitious settlement. If rights are not genuinely in dispute, there will be nothing to compromise or settle." (at para.32)

NATIVE BAND REPRESENTATIVE STATUS

Ross River Dena Council v. Canada (Attorney General), [2009] 3 C.N.L.R. 348 (S.C.): Court found that band could sue in its own name rather than requiring an individual band member to serve as a representative plaintiff.

NORBOURG UPDATE

Ouimet c. Caisse de dépôt et placement du Québec, [2009] J.Q. no 7464 (S.C.): Court struck action on basis that it covered the same ground as main Pellemens action.

Pellemans c. Lacroix, 2009 QCCS 3357: Discovery issues considered.

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Costs

Waters v. Daimlerchrysler Financial Services, Canada Inc., 2009 SKQB 263: Court asked to consider whether plaintiffs' counsel Merchant Law Group should pay costs personally with respect to required adjournment of an application for certification. The issue arose as a result of amended pleadings filed in the midst of the application which raised new causes of action, and plead that Quebec law applied. The court awarded costs stating:

"Here, plaintiffs' counsel's conduct was more than discourteous to defendants' counsel. Plaintiffs' conduct was also more than just disrespectful to opposing counsel, and to the court and its processes. Plaintiffs' counsel's conduct meets the test for awarding costs against a solicitor personally..."

Malhab c. Métromedia CMR Montréal inc., 2009 QCCA 1280: Costs on successful appeal considered. The court disallowed a claim for class notice expenses, stating that such costs were properly part of the underlying claim.

Dean v. Mister Transmission (Intl.) Ltd., 2009 OJ 2550 (S.C.): Application for security for costs dismissed. In applying Rule 56.01, although the plaintiff could not pay the costs of the defendants, the action was not frivolous or vexatious. Under the broader range of considerations that could be considered under s.12 of the Class Proceedings Act, the court still did not find any circumstances that required a different conclusion.

Sander Holdings Ltd. v. Canada (Minister of Agriculture), 2009 FCA 199: $33g in costs awarded against failed class plaintiffs.

Amending Pleadings

In the syringe re-use class action Medvid v. Saskatchewan, 2009 SKQB 222, the court held that the Plaintiff represented by Merchant Law Group could not amend its pleadings as of right when there was a jurisdictional motion pending. The writer was counsel for the Province of Alberta.

Frey v. Bell Mobility Inc., 2009 SKQB 165: Plaintiff represented by Merchant Law Group applied to (1) add certain defendants, and (2) expand the action to a national opt out action in this certified class action. The court declined to add the defendants. The court also declined to modify the class to an opt out structure, on the basis that the change to the Saskatchewan statute was substantive and not expressly retroactive. The court stated:

"Under the initial situation, a person could participate as a plaintiff only if that person positively expressed a desire to do so. Now that person is automatically included by reason of a unilateral action by the court. No longer does the person have to actively submit to the jurisdiction of the court. Rather, the person is deemed to submit unless a contrary intention is expressed. As I see it, the result is an increase in the court's jurisdiction and that is substantive in nature."

Motions to Strike

Nette v. Stiles, 2009 ABQB 422: In chiropractic class action, the claim against the provincial government was struck prior to certification. The writer is counsel for the co-defendant Alberta College and Association of Chiropractors.

Johnson v. British Columbia (Workers' Compensation Board, 2009 BCSC 877: Defendant asked the court to strike certified judicial review class proceeding on basis that the argument sought to be raised had not yet been advanced through the internal WCB appeal procedures. The court found that the interest of justice required that the class be allowed to make the argument at this time, given the prejudice that would otherwise accrue and the fact that the argument did not require further evidence.

Ramias v. Johnson, 2009 ABQB 386: Financial institution used by ponzi scheme artist applied to strike claim against it. Certain aspects of claim struck, but others survived. An application to add additional defendants was denied outright in light of the heavier legal burden and evidentiary requirements facing the plaintiff on such an application.

Billette c. Toyota Canada inc., 2009 QCCS 2524: Motion to strike or decertify a certified financing charge class action refused.

Desgagné c. Québec (Ministre de l'Éducation, du Loisir et du Sport), 2009 QCCS 2476: Motion to decertify dyslexia class action refused.

Kavanaght v. Montreal, 2009 QCCS 2148: Motion to decline jurisdiction for part of the class in a certified class action alleging illegal arrests denied. The defendant alleged that those that did not contest their arrests were bound by the earlier decisions finding them guilty. The court held that even this group could have a claim, and refused to amend the certification. The court also granted an extension of the time for the Plaintiff to deliver an expert report.

Best (Guardian ad litem) v. Nunatsiavut Assembly, 2009 NLTD 70: Application to strike granted. Class sought benefits allegedly denied due to wrongful refusal to admit plaintiffs into the Labrador Inuit Association. The court allowed the motion to strike to proceed first stating:

"Jurisdiction to hear a matter is surely sine qua non to the Court entering into any adjudicative function regarding a claim brought before it. I reject the notion that to hear an application challenging the jurisdiction of the Court to adjudicate a plaintiff's claim constitutes litigation by installment. Indeed, a defendant would be seriously remiss to fail to take such an application in the proper cir-cumstances."

Syndicat général des professeures et professeurs de l'Université de Montréal c. Gourdeau, 2009 QCCS 1990: Motion to strike certified class action dismissed.

Hurst v. PriceWaterhouseCoopers (PWC) LLP, Canada, [2009] O.J. No. 1415 (S.C.): Proposed class action dismissed on the basis of a lack of a duty of care.

Chicken and Egg Disputes

Medvid v. Saskatchewan (Minister of Health), 2009 SKQB 198: Court ordered that defendant's jurisdictional motion could proceed in advance of certification. The writer was counsel for Province of Alberta. The court stated:

"This motion may resolve or dispose of the case against Alberta and may narrow the issues remaining at certification. If not allowed to proceed, the defendant Alberta may suffer additional costs for having to wait until certification to have the issue determined. Further, there is no motion for certification before the court; the only motion is the defendant Alberta's application to strike, based on a jurisdictional challenge."

Fournier c. Banque Scotia, 2009 QCCS 725: Court approved examinations of plaintiffs at certification hearing, but limited to certain issues.

Morrison Estate v. Nova Scotia (Attorney General), 2009 NSSC 198: The defendants sought particulars from the plaintiffs prior to the certification hearing. The court declined to make such an order stating that unless an application would dispose of the proceeding, party or parties, or an issue or issues, it is more appropriately made following a determination whether certification is granted.

Wakelam v. Johnson & Johnson, 2009 BCSC 839: Application for particulars dismissed. The court stated:

"Specifically, the defendants have elected to wait until after the certification hearing to file their statements of defence. Therefore, they do not require the information sought in order to plead, as is normally the case in applications for particulars. Furthermore, the plaintiff has filed an extensive evidentiary record in support of her motion for certification. All the information sought by the defendants can be found within that record. Particulars are therefore not required to assist the Court in determining the issues at the certification hearing."

In Dubé v. Nissan Canada Finance, division de Nissan Canada inc.,2008 QCCS 5696, the court allowed the defendants to examine the three representative plaintiffs in order to test their evidence to ensure adequate representation for class members.

Gay v. Regional Health Authority, 2009 NBQB 101: Motion by defendant to add an additional defendant adjourned until after certification.

Dorion v. Centre de santé et des services sociaux Richelieu--Yamaska (Hôpital Honoré Mercier), 2009 QCCS 3086: Prior to certification application in this hospital infection case, the Court allowed the defendant to (1) examine the proposed representative for 30 minutes on particular paragraphs of her affidavit, and (2) file additional material on the causation issue.

Martin c. Société Telus Communications, 2009 QCCS 3121: Defendant was allowed to present certain oral evidence on certification in order to clarify the services selected by the plaintiff, the evolution of the choices of services, and a brief review of the nature of text messaging.

Larose c. Banque Nationale du Canada, 2009 QCCS 2155: Loss of private information class action. Court allowed a limited cross-examination of the representative plaintiffs on the nature of the damages suffered.

Appeals

Manuge v. Canada, 2009 SCCA 144: Leave granted in this case asking SCC to consider whether a judicial review application under the Federal Court Act must be brought before an action for damages. The writer is co-counsel for the class. This appeal will be proceeding in January 2010 collectively with 6 other cases raising the same issue.

Richard v. British Columbia, 2009 BCCA 185: Court confirmed that there was no liability for claims arising prior to the Crown Proceedings Act. The writer is co-counsel for Province of B.C., but was little more than a potted plant on this appeal successfully argued by Karen Horsman.

Withler v. Canada, [2009] S.C.C.A. No. 68: Leave to SCC granted of dismissal of age discrimination action on the merits. The writer is co-counsel for the class.

T.L. v. Alberta, 2009 ABCA 182: Appeal dismissed from decision granting certification of an action alleging that the Public Trustee and the Province failed to start proceedings for abused children in care. The writer is co-counsel for the Province of Alberta.

Fantl v. Transamerica Life Canada, 2009 ONCA 377: Appeal denied of decision allowing class representative to switch counsel. The court established the following test for a review of a representative's choice of counsel:

"Once the court's jurisdiction is engaged, any review by the court of a decision as to choice of counsel must be directed to three factors:
(1) Has the plaintiff chosen competent counsel?
(2) Were there any improper considerations underlying the choice made by the plain-tiff? and
(3) Is there prejudice to the class as a result of the choice?
Unless this inquiry reveals something unsatisfactory to the court, it ought not to interfere with the choice of counsel made by the plaintiff. The court is not a substitute decision maker for the plaintiff in the litigation. Accordingly, any intervention based on its supervisory jurisdiction must be limited to situations where there is cogent evidence that steps taken may have an adverse impact on the absent class members."

"Where competence is a live issue, the court should consider under this head:
(1) The nature of the lawsuit;
(2) The complexity of the litigation;
(3) The fact that it was a class proceeding;
(4) The experience of counsel as to subject matter and class actions;
(5) The resources of counsel;
(6) The stage of the proceedings at which the review occurs; and
(7) Any other considerations the court might deem to be appropriate.
Moreover, when considering competence of counsel, the court must take into account the fact that, after certification, class counsel will be in a solicitor-client relationship with the class members, with all of the responsibilities that entails, extending until the implementation of a settlement or final disposition of any individual issues. In other words, given that the class may include a large number of people, this obligation may be significant and prolonged"

"I would not accept that the fact of an acknowledged friendship between the plaintiff and his counsel of choice would constitute an improper purpose in and of itself. An improper purpose would be one where the plaintiff was seeking to gain a personal advantage, the hope of an advantage not shared by the class members or was motivated in some way that was inconsistent with the interests of the class" (at para.64)

"It is argued that if representative plaintiffs are allowed to switch counsel at will, there will be less of an incentive for counsel to take on class actions and make an investment of time and effort that may be lost. There is no question that class proceedings are entrepreneurial in nature. However, the proposition advanced by the appellant would only be supportable if the creation of an entrepreneurial class action bar was a policy goal underpinning the CPA. This argument fails because as far as the CPA is concerned, the entrepreneurial lawyer is a means to an end, not an end in and of itself...The CPA does not, nor was it ever intended to, provide lawyers with a vested interest in the subject matter of the lawsuit entitling them to override the choices of the representative plaintiff in the litigation, including the choice of counsel. In any event, Mr. Kim's investment of time and effort in the action while at REKO will be pro-tected through the process of dissolving that firm."

Hicks v. Saskatchewan Crop Insurance Corp., [2009] S.C.C.A. No. 149: Leave dismissed of refusal to certify crop protection class action. Proposed hook for SCC was whether Sask's unique "apparently authentic or genuine" test was proper.

The Ontario Court of Appeal dismissed a series of proposed SARS class actions against the provincial government on a cause of action basis: See:
Williams v. Ontario, 2009 ONCA 378: http://www.canlii.org/en/on/onca/doc/2009/2009onca378/2009onca378.html See also:
http://www.canlii.org/en/on/onca/doc/2009/2009onca375/2009onca375.html
http://www.canlii.org/en/on/onca/doc/2009/2009onca376/2009onca376.html
http://www.canlii.org/en/on/onca/doc/2009/2009onca373/2009onca373.html

Dikranian c. Québec (Procureure générale), 2009 QCCA 1014: Appeal rejected of judgment managing claims stage of successful class action. The trial judgment is reported at 2009 QCCS 1534. The trial judgment rejected a series of requests designed to increase the take up rate, on the basis that it would disrupt the settlement implementation process, and that the steps taken to this point were reasonable.

Drady v. Canada [2008] S.C.C.A. No. 492, Attis v. Canada [2008] S.C.C.A. No. 491: Leave denied of decisions striking product approval class actions against federal government.

Nadon c. Montréal (Ville), [2009] S.C.C.A. No. 11: Leave denied of dismissal of pollen class action on its merits.

Soderstrom v. Hoffmann-La Roche Ltd., [2009] S.C.C.A. No. 71: Leave denied from dismissal of action that overlapped with a settled class action.

Alan McMillan et al. v. Canada Mortgage and Housing Corporation [2009] S.C.C.A. No. 49: Leave denied from dismissal of proposed leaky condo class action.

Vermette v. General Motors du Canada Ltée, [2008] S.C.C.A. No. 466: Leave denied of decision to refuse certification.

Arenson v. Toronto, 2009 SCCA 168: Leave denied of decision to give plaintiff right to deliver a fresh claim in a dismissed class action.

Sharbern Holding Inc. v. Vancouver Airport Centre Ltd., 2009 BCCA 224: Appeal of merits decision in favour of class allowed in investment class action.

Mignacca v. Merck Frosst Canada Ltd., 2009 ONCA 393: Court refused extension of time to file notice of motion for leave to appeal certification decision in Vioxx class action on basis that the proper appeal routes were either (1) a direct right of appeal to the Court of Appeal, or (2) to seek leave before the Divisional Court.

Coll v. Syndicat des cols bleus regroupés de Montréal, section locale 301 (SCFP), 2009 QCCA 708: Successful Illegal strike class action overturned on appeal. Court found there was no causal link between the alleged illegal strike and any interference to class members.

National Class Issues

Association des journalistes indépendants du Québec (AJIQ-CSN) c. Cedrom-SNI inc., 2009 QCCS 2172: Electronic reproduction class action. Defendants applied for a stay based on the fact that there was already a certified Ontario action covering the same issues.

The court declined the motion noting that the proposed Quebec class was broader, including persons who had executed certain license agreements who were excluded in Ontario.

Quaere whether the Quebec court should have at least considered whether the case should have been stayed in relation to the overlapping class? Another opportunity to truly wrestle with overlapping class issues lost....

Fees

Hislop v. Canada, 2009 ONCA 354: Court found that lawyers could not apply a solicitor's lien over class member's recovery received as a result of declarations issued as a result of a certified class action, due to prohibition against a charge in the Canada Pension Plan Act. It is interesting that it was the government that was fighting the application of the charge, not class members themselves. It could be said that the government really had no "dog in the fight" at a pecuniary level. Was the government fighting the motion in order to (1) preserve the integrity of the statute, or (2) based on a tactical appreciation that the result would create access to justice problems in relation to CPP issues, by negating the ability of any class counsel to be paid?

Butler v. Honda Canada Inc., [2009] O.J. No. 2262 (S.C.): The court approved a retainer agreement that included a 25% contingency. The court also approved a fee of $650,000 as part of the settlement, on time of $450,000, to be paid directly by the defendant.

Option Consommateurs c. Service aux marchands détaillants ltée (Household Finance), 2009 QCCS 2516: Supplementary fee of $25g fee approved for work done after an initial fee approval in a settled action. Class counsel had requested $85g. The court found that the time was too high, and could have been performed at a lower level.

Certification

Fresco v. Canadian Imperial Bank of Commerce, [2009] O.J. No. 2531 (S.C.): Unpaid overtime claim denied certification. The court provided a nice summary of the principles applicable to the issue of whether the pleadings disclose a cause of action at para.22:

"* no evidence is admissible for the purposes of determining the s. 5(1)(a) criterion: ...
* all allegations of fact pleaded, unless patently ridiculous or incapable of proof, must be accepted as proven and thus assumed to be true;
* the pleading will be struck out only if it is plain, obvious and beyond doubt that the plaintiff cannot succeed and only if the action is certain to fail because it contains a radical defect: ...
* matters of law not fully settled in the jurisprudence must be permitted to proceed: ...
* the pleading must be read generously to allow for inadequacies due to drafting frailties and the plaintiffs' lack of access to key documents and discovery information: ..."

"I would not give effect to its remaining criticism that the class definition is "fatally over-inclusive" and not rationally connected to the common issues because it includes members who have no claim for overtime. That the claims of some or even most class members will be unsuccessful is not a reason to reject the class definition. All class members have an interest in the resolution of the asserted common issues. The expanded class period may raise issues about manageability, but not about membership. Assuming that there are common issues and that a class proceeding is the preferable procedure to resolve these issues, their resolution would apply to everyone in the proposed class."

"This evidence shows a variety of individual circumstances that give rise to unrelated bases for unpaid overtime claims that can only be resolved individually by considering the evidence of the affiant advancing the claim, the evidence of various other current and former CIBC employees who managed and/or worked with that affiant, and various records maintained on a non-centralized basis by CIBC."

The court made positive comments about the "Sunshine Girl" case Fehringer (which had fallen into disuse as a result of the general view that it did not survive Cloud v. Canada and Rumley v. BC:

"In Fehringer, which was a claim against a newspaper for allegedly improper conduct committed by one of its employees, Justice Nordheimer questioned how the court could determine an issue of systemic negligence without knowing the particulars of the negligence complained of, including knowing what the conduct was, where it occurred, how it occurred, whether the defendants had knowledge of it and what steps, if any, were taken as a consequence. I acknowledge that Fehringer was decided before Cloud, which arguably lowered the threshold for class certification of actions founded on allegations of systemic wrongdoing, but I believe that the result in Fehringer would have been no different, given the individual nature of the conduct complained of. In this case, the conduct complained of has the superficial appearance of commonality, but it is my view that this proceeding would inevitably break down into individual inquiries."

"For the reasons already given and those that follow, there is no reasonable likelihood that the conditions for an aggregate assessment of damages can be met in this case, and that accordingly all of Ms Fresco's proposed common issues relating to damages lack a substantial common ingredient and cannot be accepted."

"Although CIBC offers multiple methods for employees to raise concerns about their employment situation, the reality is that there is a power imbalance in the employment relationship and employees may perceive that their employment status and advancement will be affected if they assert the rights to which they are entitled. This can be a disincentive to come forward and inhibits access to justice. This may explain why after the commencement of this action, only 31 employees came forward through the escalation process to raise concerns about unpaid overtime." (at para.97)

Lambert v. Guidant Corp. [2009] O.J. No. 1910 (S.C.): Certification of pacemaker case. Justice Cullity made several interesting points on evidentiary issues.

The court rejected the admissibility of an affidavit filed by the defendants on preferable procedure sworn by a lawyer stating:

"In my opinion, the views of legal practitioners, however eminent, on the requirements of section 5 (1) (e) - or on any of the other requirements for certification for that matter - are not admissible as evidence to be considered in arriving at a decision. That is not, of course, to suggest that Mr Morse's opinions are not of interest, or that they would be unworthy of careful consideration outside the courtroom. In this motion, however, they have no more weight, status or authority than any opinions offered by counsel in the course of the hearing."

"While without further guidance, I would be reluctant to accept that no questions of fact that affect the statutory requirements are to be decided in accordance with a standard less onerous than the usual civil standard - for example, facts that would determine whether a proposed representative plaintiff has an interest in conflict with those of class members - I believe that, consistently with the analysis in Hollick, I must accept that the standard is less strict in connection with - at least - the requirement that there is a class of persons whose claims raise common issues....
I do not consider that it was intended, or that it would be reasonable, to require the plaintiffs to embark on the inquiries and investigations necessary to test the methodology and grounds on which the defendants' numerous and unqualified assertions of fact were based. This would be the function of discoveries that will normally be conducted after certification has been granted and the descriptions of the class and the common issues have been ascertained in preparation for a trial of common issues or, in an appropriate case, a motion for summary judgment....
The legislative history was relied on in Hollick as justifying the very weak evidential burden of "some basis in fact" that was held to apply to each of the statutory requirements for certification, other than that relating to the disclosure of a cause of action. It must, I believe, follow logically that, although a defendant would be entitled to deliver affidavit evidence in rebuttal, the standard of proof is inversely heavy. It is not enough for the defendant to establish on a balance of probabilities that facts that bear on the existence of "colourable" claims differ from those asserted by the plaintiff - the onus must be to demonstrate that there is no basis in the evidence for the latter. For this reason, the court has generally declined to choose between conflicting opinions of qualified experts on the requirement of commonality of issues, or on the existence of the claims of class members that are said to raise such issues....
The second point is, I believe, the inevitable consequence of the "some basis in fact" approach adopted in Hollick to the existence of a rational connection between the class and the common issues. As it is not necessary for the plaintiffs to establish on a balance of probabilities that each class member will have an interest in the resolution of the common issues, there must always be the possibility that the judge at trial will find that this is not the case....
As has been insisted on many prior occasions, the certification motion is essentially procedural in nature. There is, of course, nothing to prevent the defendants from making full disclosure of facts that will assist in narrowing the class, or formulating the issues. Just as obviously, the proceedings are adversarial and they cannot be compelled to do this. If, however, they choose to rely on assertions of facts peculiarly within their own knowledge, and which cannot properly and adequately be tested on the motion, they cannot, in my opinion, insist that their evidence must be accepted as conclusive. The court must decide the weight that is to be given to it in the light of all the evidence and with strict attention to, and its focus on, the claims actually advanced by the plaintiffs on behalf of the class, and the standard of proof applicable to them." (at paras.62, 64, 68, 73, 81)

2038724 Ontario Ltd. v. Quizno's Canada Restaurant Corp: Divisional Court overturned refusal to certify this franchisee class action. A few notable points:
Deference to lower court on certification does not depend on personal level of experience of the judge who issued the decision (para.27).
The court stated:

"We are satisfied that the motions judge erred in principle by focusing on proof of damages and failing to consider and identify other common issues...In our view, the motions judge erred in principle in holding that proving a s.61(1) breach depends upon proof of individual instances of loss or price maintenance, in applying a "bottom up" model of proof when considering proof of loss, and in consequently finding that the question of whether the respondents had breached s.61(1) was not a common issue."

"The determination of the following issues on a class wide basis would significantly advance this claim and avoid duplication of legal analysis and fact finding:
• the meaning of the contract provisions;
• the existence and nature of any common law duty of fairness; and
• Whether the Quiznos respondents have breached the contract provisions in failing to provide specifications." (para.91)

"It is neither necessary nor desirable to engage in a weighing of this conflicting evidence on a certification motion. The plaintiffs on a certification motion will meet the test of providing some basis in fact for the issue of determination of loss to the extent that they present a proposed methodology by a qualified person whose assumptions stand up to the lay reader. Where the assumptions are debated by experts, these questions are best resolved at a common issues trial. A motions judge is entitled to review the evidentiary foundation to determine whether there is some basis in fact to find that proof of aggregate damages on a class wide basis is a common issue. While that might require some review of the evidence, the assessment should not relate to the merits of the claim or the resolution of conflicting expert reports." (para 102)

"We have found that even if loss could not be proved on class wide basis, the breach of s. 61(1) of the CPA and the breach of contract, would in our view, be common issues that would have significantly advanced the claim....Access to justice and behaviour modification are both also relevant considerations in this case. The appellants submit that they could not afford to pursue these claims individually and would otherwise be denied access to justice. Furthermore, the motions judge noted (para. 40) "that efforts by franchisees, individually or collectively, to obtain information and a useful response to their concerns about overpricing only led to a heightened concern and considerable acrimony. The Plaintiffs accuse the Quiznos Defendants of stonewalling, of thwarting the attempts to redress overcharging, and they accuse the Quiznos Defendants of aggressive, divisive, harsh and retaliatory conduct to intimidate the franchisees." The record establishes that the Quiznos respondents stopped the appellants’ experts from gathering information about alternative costs of products and took steps to counter the efforts of Denver Subs to address their concerns about over-charging. This is a relevant consideration both with respect to the goals of access to justice and behaviour modification. The fact that there exists a mechanism to enforce the Competition Act is a factor but not a complete answer to the need for behaviour modification. Finally, the declaratory relief, if successful would provide relief to class members indefinitely." (para.137, 143)

Brown v. Newfoundland and Labrador (Workplace Health, Safety and Compensation Commission), 2009 NLTD 106: WCB integration case denied certification on the basis that no cause of action was disclosed. The decision of the Commission had to be properly challenged by way of judicial review, and such an application would have been out of time.

Cyr c. Ste-Adèle (Ville de), 2009 QCCS 2827: Dead raccoon case denied certification. Class alleged water contamination and psychological injury. The court held that there was insufficient pleading of causation, and that the alleged injury was too unique to support certification. Furthermore, the allegedly affected area was sufficiently bounded that joinder was possible.

Dubé c. Nissan Canada Finance, division de Nissan Canada inc., 2009 QCCS 2308: Financing charge disclosure case certified.

MacFarlane v. United Parcel Service Canada Ltd., 2009 BCSC 740: For the same reasons espoused in Blackman v. Fedex Trade Networks Transport & Brokerage (Canada) Inc., 2009 BCSC 201, the court dismissed this certification application

Haddad v. Kaitlin Group Inc. [2008] O.J. No. 5127 (S.C.J.): The court certified an real estate misrepresentation class action.

Jadue c. Fédération des caisses populaires Desjardins, 2009 QCCS 1606: Financing charge case dismissed on cause of action grounds.

Gauthier c. Société d'habitation du Québec, 2009 QCCS 845: Low income housing fee action refused certification based on jurisdictional grounds.

Payne v. Eagle Ridge Pontiac GMC Ltd. August 10, 2007) Vancouver S063594 (B.C.S.C.): Action involved alleged misrepresentation regarding issuance of "cashable vouchers" certified. Subsequently, at 2009 BCSC 530 the case proceeded on the merits by way of a special case on an agreed statement of facts. The class was successful on one misrepresentation issue, but the training negligence issue was adjourned on the basis that further evidence was required.

Martin c. Société Telus Communications, 2009 QCCS 269: The court refused to certify text message fee class action based on the cause of action requirement. The court also rejected the representative for not advancing the necessary contractual information.

Chalmers (Litigation guardian of) v. AMO Canada Co., 2009 BCSC 689: Contact lens class action certified. The court narrowed the class stating:

"On this hearing, Ms. Chalmers only put evidence before the Court in relation to Subclass A (persons who contracted AK after using the Solution). For that reason, I will focus my analysis on whether there is sufficient evidence before the Court to certify that subclass. Currently, there is no basis for this Court to certify either Subclass B (persons who underwent testing for AK after using the Solution) or Subclass C (persons who had a monetary loss as a result of the recall of the Solution). However, this does not preclude the possibility of these subclasses being certified at a future date if sufficient evidence is brought before the Court on a further application."

"The information contained in Dr. Patrick's letter should have been provided to the Court by one or both of the parties. Their failure to place that information before the Court at the time of the certification hearing should not leave the Court in the position of having to make the certification decision with incomplete information. It is a procedural decision. It should be made with the best information regarding potential class size before the Court. The Act contemplates that it may be necessary at times to adjourn the certification hearing to permit amendment of materials or pleadings and to permit the parties to adduce further evidence: s. 5(6). This provision is included in the Act to allow the Court to have the best information available to inform its certification decision...The concerns that arise with the admission of fresh evidence following a trial are clearly different from those that arise on a certification application."

"The reasoning in Harrington is applicable under the CJPTA. Section 10 does not limit the type of circumstances that may constitute a real and substantial connection. The analysis of Huddart J. is equally applicable to a consideration of the test established pursuant to ss. 3(d) and 10 of the CJPTA as it was to the common law test."

"It is readily apparent that those factors favour a certification that includes non-residents:
(a) The aggregation of claims, including non-residents, provides economies of scale that will reduce the costs for all parties. While there is some inconvenience for the non-resident class members, they will weigh that inconvenience when deciding whether to opt in.
(b) AMO has not put forward any evidence to show that the law to be applied will be a factor of any significance on either the negligence common issues or the punitive damages common issue....
(c) The inclusion of non-residents will make it possible to reduce or avoid multiplicity of proceedings.
(d) The inclusion of non-residents will reduce the possibility of conflicting decisions in different courts.
(f) Certification of national class actions promotes the fair and efficient use of resources within the Canadian legal system as a whole. It encourages co-operation between the provinces and reduces the number of individual and class proceedings involving a single product.
AMO also argues that the inclusion of non-resident claims will mean it may have to defend multiple claims from the same individual. It says that a non-resident class member may be able to make a claim in their own province similar to the BPCPA claims made by British Columbia residents in this action. This is not a serious issue. Pursuant to s. 16(2) of the Act, each non-resident class member will have to opt in to these proceedings. They will be required to commit themselves to be bound by them. That commitment will be clearly set out in the Notice of Certification and the opt-in form. Consequently, non-residents who choose to opt in will be required to refrain from pursuing any other litigation related to use of the Solution."

Horner v. Saskatchewan (Workers' Compensation Board), 2009 SKQB 270: Court had earlier found that all the requirements save preferable procedure were met, but adjourned that aspect of the case for further argument and evidence. After reconvening the motion, the court refused certification of this Charter based class action. The court held "that it is generally undesirable to pursue a class action to obtain a declaration of constitutional invalidity". (at para.9) The court also noted that the plaintiff's claims for personal relief were statute-barred leaving only the declaratory claims. The court concluded: "These remaining issues can be more efficiently, economically and quickly dealt with as a single claim rather than in a class proceeding which the balance of authority holds to be an undesirable vehicle for the determination of constitutional questions. As well, as I see it, a single proceeding would effectively achieve the same result for all members of the class."

Electronic-Rights Defence Committee ERDC c. Southam inc., 2009 QCCS 1473: A Robertson v. Thomson-like freelance writer class action certified.

Payday Loan Update

Mortillaro v. Cash Money Cheque Cashing Inc., [2009] O.J. No. 2904 (S.C.): Settlement approved. Each customer could apply for a voucher for $50, and the Class Proceedings Fund would be paid $5 for each redeemed voucher. The vouchers were fully transferable. The court commented as follows:

"There is precedent in Ontario for the approval of voucher settlements: Waddell v. Apple Computer Inc. (2008), 67 C.P.C. (6th) 1 (Ont. S.C.J.); Nantais v. Easyhome Ltd., [2005] O.J. No. 5805 (S.C.J.); McCutcheon; Wong v. TJX Companies, [2008] O.J. No. 398 (S.C.J.). In appropriate cir-cumstances, voucher settlements can serve both the class and the defendant and increase the overall value of settlement. Although it is not easy to assign a cash value to a voucher settlement, in circumstances where the vouchers are transferable, there is evidence of a secondary market in which the vouchers can be discounted and converted to cash and/or there is evidence of a class of repeat users, a voucher settlement can be fair and reasonable and in the best interests of the class. Voucher settlements have been found to be appropriate where the quantum of damages for each claimant is either too difficult and/or too costly to determine as in Nantais or where a cash settlement would compromise the defendant's ability to continue as a viable concern as in McCutcheon"

Settlements

Cassano v. Toronto-Dominion Bank, [2009] O.J. No. 2922 (S.C.): Visa foreign exchange rate case settled. Maximum claim was $161.5M, and was settled for $55 million. $11 million was payable to certain cardholders whose accounts were still active. $28 million was to be paid cy-pres. $11 million or 20% was approved for fees. On the approach to fees, the court commented:

"The second matter is that the fee of $11 million represents the application of a multiplier of approximately 5.5 to counsel's approved time. This might well be considered to be excessive if the retainer agreements had provided for the adoption of the "lodestar approach" reflected in section 33 of the CPA. They did not do this. While it has been said that the appropriateness of a fee calculated in the lodestar manner might be tested by comparing it with the percentage of gross recovery it represents, I would be hesitant to use the lodestar method as a firm indicator of the reasonableness of a fee determined by the application of a percentage to the amount recovered. In Martin v. Barrett, [2008] O.J. No. 2105 (S.C.J.), at paras. 38-39, I referred to criticisms of the lodestar method. One of these that has been repeatedly mentioned in other cases in this jurisdiction and elsewhere is that the application of a multiplier to a base fee may not only encourage an inefficient use of time and a padding of dockets, it may also fail to reward efficient time-management and the exercise of superior skill by class counsel."

Robertson v. Thomson Canada Ltd., [2009] O.J. No. 2650 (S.C.): Long running electronic publication copyright dispute case settled for $11 million. A fresh opt out right was provided, with an opt out trigger under which the defendant could walk away from the deal. The fee issue was reviewed carefully because counsel sought to rely on an amended retainer agreement supporting a $4 million request, rather than the original agreement that would have only supported a $2.2 million request. The court commented on the amended retainer agreements stating:

"The CPA does not in its express terms require that fee agreements be made at the inception of, or at an early stage of, the litigation. (In this respect, there is a contrast with section 39 of the Class Proceedings Act of Alberta). Amendments to contingent fee agreements have been approved in this jurisdiction even though they were made in the course of ultimately successful settlement negotiations when the contingency that would result in no fee had virtually disappeared. In consequence, in this case, while I believe a degree of judicial vigilance is required in order to be satisfied that the representative plaintiff provided her free and informed consent to the amendment - and that the formula it provides is fair and reasonable from the standpoint of the class - I do not consider that it is objectionable per se." (at para.32)

The court's approval of the settlement was provisional based on receipt of a satisfactory response to certain questions the court had about the claim procedures.

The Maple Leaf settlement was approved in Quebec: Melvin v. Les Aliments Maple Leaf Inc., 2009 QCCS 1378.

Coutu c. Télébec, s.e.c., 2009 QCCS 2403: Telephone charge case settled.

Johnson v. Bayer, 2008 QCCS 4957: The court initially declined to approve a partial price fixing settlement on the basis that it contained a bar order which the court indicated could not be granted in Quebec. In 2009 QCCS 3020 (S.C.) the court did approve the settlement after certain changes were made.

Parsons v. Coast Capital Savings Credit Union, 2009 BCSC 330: Overdraft class action settled. A $10,000 payment to the representative plaintiff was refused. On the test for such payments, the court stated:

"1. A representative plaintiff has the responsibility under the Class Proceedings Act to fulfill his or her duties to vigorously and capably prosecute the interests of the class.
2. A representative plaintiff is not automatically entitled to compensation for fulfilling his or her statutory responsibilities.
3. If the plaintiff's services to the class are over and above the usual responsibilities under the Act, he or she may be entitled to modest compensation on a quantum meruit basis.
4. The factors that will govern the entitlement to, and the amount of, such compensation include, but are not limited to:
· significant commitment of time and energy to the litigation;
· active participation in the instructing of counsel and decisions made in the litigation;
· contribution of special expertise;
· significant contribution to communication with the class;
· some other measurable significant contribution to the outcome;
· exposure to risk of costs; and
· some other special consideration or risks in being a named plaintiff.
In this case there is no affidavit from Ms. Parson outlining her contribution, time, or participation in this litigation. Counsel's affidavit indicates that she attended an examination for discovery and was engaged from time-to-time in instructing them. I do not believe she attended the mediation. While I have no doubt that she diligently fulfilled her statutory responsibilities, there is no evidence before me that her contributions were in any way of special significance to the class in a way that would entitle her to a compensatory quantum meruit payment."

Rouleau c. Fortin, 2009 QCCA 743: Settlement approved.

Settlement with various parties in the Manitoba Crocus litigation was approved: See http://www.kleinlyons.com/class/crocus/settdocs.php

Fees were approved in the Quebec arm of the Nortel litigation: Association de protection des épargnants et investisseurs du Québec (APEIQ) c. Corporation Nortel Networks, 2009 QCCS 2407. The request for $6.7 million was knocked down to $3 million, or about a 2X multiplier. The court noted that most of the Quebec time was incurred after the announcement of the global settlement. The court held that the Quebec proceedings had no influence on the global outcome. Quebec counsel did not participate in the mediation that lead to the settlement.

Wamboldt v. Northstar Aerospace (Canada) Inc., [2009] O.J. No. 2583 (S.C.): Pollution case settled. 25% fee at $1.125M approved, which was a multiplier of about 1.25. Counsel was paid in two stages, since class was also going to be paid in two stages.

L'En-droit de Laval c. Institut Philippe Pinel de Montréal, 2009 QCCS 2193: Settlement approved in case alleging that psychiatric patients were improperly housed in criminal cells.

Paquin c. Cie de Chemin de fer Canadien Pacifique, [2009] J.Q. no 3384: Court approved use of residual settlement funds for construction of a park in this environmental class action..

Goudreault c. Service Garantie Québec, 2009 QCCS 1866: Financing class action certified and settled. 2009 QCCS 1804: Fees of $49,500 approved.

M.G. c. Association Selwyn House, [2009] Q.J. No. 3142: Sexual abuse class action settled. Parties eased court's earlier concern that class members could only opt out before reviewing the confidential claim schedules.

Class Counsel's Role After Common Issues Trial Considered

Glover v. Toronto, [2009] O.J. No. 1523 (S.C.): Court certified an infection class action applying the usual analysis. Tithe court initially raised a concern with class counsel's position on the management of class members following the common issues trial. The court stated:

"The litigation plan terminates the representation of proposed class members at the doorstep of individual assessments. As individual assessments of relatively modest claims are likely to be necessary in this class proceeding, the unexplained abandonment of class members at this crucial juncture is deeply problematic.

Under the heading, "Class Counsel Fees and Administration Expenses", the plan provides that the court will be asked to fix the amount of class counsel fees and to direct the Administrator and defendants to pay the fees "out of the monies recovered or owing" as a first charge and to fix the costs of the Administrator and the Referees and to order payment by the defendants as a second charge. It then provides: "Class counsel's retainer does not include representation of each individual Class Member or Family Class Member in pursuing their claims after the determination of the common issues. However, Class counsel will make every effort to secure representation for those Class members who request legal assistance, including the option to represent some Class Members and Family Class Members in pursuing their claims."

This provision raises a number of troubling questions. How will any class member be able to adduce general and expert evidence, including evidence about the nature of Legionnaires' disease and Pontiac fever at a hearing before the Referee without legal representation? What is the basis on which class counsel will decide whether to exercise "the option" to represent some class and family members, but not others? Is it contemplated that class counsel can choose to pursue the economically viable claims and abandon the rest? If class counsel does not exercise "the option", but is successful in securing legal representation for those class members who request it, what will be the arrangement for the sharing of fees? Is any lawyer likely to accept a retainer on behalf of a class member when class counsel fees are to be a first charge on any amount recovered or owing?

There is little doubt that if this action is certified, a solicitor-client relationship will exist between counsel for the representative plaintiffs and the members of the class....

In a class proceeding, a client does not have a right to choose his or her lawyer or have a right to terminate the retainer. If a class member is dissatisfied with counsel of record, he or she may opt out of the class, but by the time this proceeding reaches the stage of individual assessments, that time will have long passed. In my opinion, class counsel cannot unilaterally choose to terminate representation, but is bound to represent those class members who wish to pursue individual claims on the same basis as the retainer agreement provides until the class member or the court directs otherwise. It seems to me that the proposed abandonment of class members following the determination of common issues is completely at odds with the fiduciary duty that a lawyer has to a client, which includes the duty of loyalty.... It is also completely at odds with the goals of class proceedings. Earlier I made reference to Chief Justice Winkler's re-marks in Cassano and I repeat them here: "the resolution of individual issues is an essential element of many class proceedings and is crucial if there is to be an advancement of the goal of access to justice". I am not satisfied that this goal can be achieved under the litigation plan that has been put forward." The court invited counsel to make further submission regarding this issue.

The court also rejected two of the proposed representatives stating:

"They appear to have no appreciation that they are representing a class. Nor do they understand the nature of the plaintiffs' complaints against Toronto and Ontario. Both thought the claim was about late notice of the outbreak and that they are involved in the litigation to further their individual interests. I am not persuaded that either is a suitable representative plaintiff."

The court subsequently certified action on clarification of counsel's preparedness to act for class members. Class Counsel cured the court's concern by amending their litigation plan as follows: "Class Counsel will continue to represent the Class Members and their Family Class Members following the determination of the common issues trial and/or for the purposes of any individual claims, including individual assessments of damages."

Arbitration

Griffin v. Dell Canada Inc. [2009] O.J. No. 418 (S.C.J.), motion for reconsideration refused 2009 CanLII 18222 (ON S.C.): This was a motion by the plaintiff to certify an action as class proceeding and a motion by the defendant for a stay based on an arbitration clause. Case arose from the sale of allegedly defective notebook computers that were designed, manufactured and sold by the defendant. The defendant argued that a stay of proceedings should be granted pursuant to the Arbitration Act given that the terms and conditions of sale included a mandatory provision that all disputes and controversies would be resolved through arbitration. The case was certified and the defendant's motion dismissed. A class proceeding was the preferable procedure for the resolution of the common issues in the action and the requirements for certification had been met. The plaintiffs pleaded tenable causes of action in negligence, breach of contract and waiver or tort/unjust enrichment. Subject to two amendments, the class definition met the requirements for certification as the relationship between the class and the common issues was clear. Five of the eight common issue proposed by the plaintiff were appropriate for certification. Although the proposed plaintiff was a suitable representative plaintiff who had no conflict with other class members, his circumstances differentiated him from other class members and it would be prudent to add another plaintiff. The litigation plan was cursory at best and failed to satisfy the requirements of s. 5(1)(e)(ii) of the Class Proceedings Act. Given that the plaintiff had met the other requirements for certification, it was appropriate to conditionally certify the class action subject to the plaintiff providing an acceptable litigation plan. The defendant was not entitled to a stay. The motion for stay was to be considered in the context of the motion for certification. A class proceeding was the preferable procedure and a stay should not be granted. The court distinguished the Quebec cases and declined to follow the contrary case law in B.C. and Saskatchewan. The court stated:

"Justice Perell and I both found it implausible that the Supreme Court of Canada purported to address the legislative choices of other provinces without any reference to this or to the submissions of the intervenors who provided the court with this law."

Discovery of Class Members

In Boulerice v. Bell Canada, 2008 QCCS 6096, the Court allowed discovery of additional class members, but limited the number to three, noting that the defendants should have sufficient information after those examinations to enable it to produce a defence.

Amendments

In Goyette c. Glaxosmithkline inc. 2008 QCCS 5109, the court allowed pre-certification amendments to the pleadings on the basis that the amendments were useful and the rights of the parties were not compromised.

Jacques c. Pétroles Therrien inc., 2009 QCCS 1862: Case involved alleged conspiracy to fix gas prices. The court allowed the plaintiffs to make certain amendments to add defendants, alleged parties to the conspiracy. The court also allowed amendments expanding the action, except a geographic expansion to the entire province, as that geographic expansion was not yet supported by the facts.

Mères avec pouvoir (MAP) Montréal c. Bell Canada, 2009 QCCS 1450: Plaintiff allowed to amend motion for certification, but not allowed to enter further evidence to rebut defendant's evidence.

Discontinuances

Mazzonna c. DaimlerChrysler Financial Services Canada Inc./Services financiers DaimlerChrysler inc., 2009 QCCS 1929: Court allowed Merchant Law Group to discontinue an action against one defendant.

Evoy-Larouche c. Cie d'assurance La Métropolitaine, [2009] J.Q. no 4810: Premium offset class action discontinued on the basis that few potential class members had identified themselves.

Union des consommateurs c. Zellers inc., [2009] J.Q. no 3385: Proposed class action discontinued.

Access to Witness

Grant v. Canada (Attorney General), [2008] O.J. No. 4470 (S.C.J.): Motion by the defendant to strike a summons to witness. At the certification hearing, the plaintiff sought to examine an expert who had been retained by the Crown prepare a study. The Crown denied the request and the plaintiff issued a summons. The motion was dismissed on the grounds that the proposed witness would have opinions and evidence relevant to the certification issue. Furthermore, she would respond to contrary evidence from a Crown witness. The defendant would be able to object to questions outside the expertise of the witness or which were irrelevant to the issues of certification.

Injunction Request

Robinson v. Saskatoon (City), 2009 SKQB 183: Taxicab driver class denied interlocutory injunction to (1) prevent dismissal by the defendant license holders, (2) prevent license transfers; (3) create a trust fund for fees, as well as other matters.

Counsel Disqualification

Wallace v. Canadian Pacific Railway 2009 SKQB 178: Defendant sought to disqualify class counsel. Class counsel sought order to cross-examine representative plaintiff. Application to cross granted on grounds that class counsel was entitled to probe whether CPR was a professional litigant with more forgiving conflict practices.

Plain and Obvious Not Plain and Obvious

Saskatchewan Crop Insur. Corp. v. Hicks, 2009 SKCA 12: Court reaffirms Saskatchewan's "authentic and genuine" test at paras. 11-12.

Soldier v. Canada (Attorney General), 2009 MBCA 12: In Manitoba, the courts have adopted a low threshold for the cause of action requirement, but so far the Manitoba Court of Appeal has declined to decide whether the applicable test is that adopted in Saskatchewan, or the "plain and obvious" test. see para. 44

Notice Issues

The court may order a stay of the notice requirement pending certification applications in other jurisdictions: Ring v. Canada (Attorney General), 2008 NLTD 168

Cilinger c. Centre hospitalier de Chicoutimi, 2009 QCCS 3152: Notice of proposed settlement approved in delayed cancer treatment class action.

In Option Consommateurs c. Banque de Montréal, 2008 QCCS 6432, the court found that there was no requirement for the Bank of Montreal to place the notice on its website.

Audette c. TVI Pacific inc., 2009 QCCS 2101: Court approved pre-settlement notice to class members.

LeFrancois v. Guidant Corp, 2009 OJ 2481 (S.C.) the court addressed an effort by the defendant to constrain the class definition in order to minimize the scope of individuals who would receive notice, arguably to prevent undue concern by pacemaker recipients for whom no concern was raised in the evidence. The court held that the restrictive approach to new evidence when a case has been refused certification adopted by the court in Risorto was not applicable to a case where the statute provided expressly for the amendment to the certification order. However, the court declined to issue the amendment stating:

"It follows that the single point in dispute on this motion is whether there is a sufficient basis in fact for the plaintiffs' position that the defects in the three models of defibrillators were not remedied until the polyamide insulation was replaced with PEEK in December 2005. In my judgment, there is sufficient evidence to establish that this is an issue to be tried as part of the common issues relating to, among other things, the alleged breaches of Guidant's standard of care."

Stay Issues

Piché c. St-Pierre, 2009 QCCS 2023: Court declined to stay an individual action where the class action was stalled.

Case Management

Where circumstances warrant, a party in Saskatchewan may be able to have a case management judge appointed prior to certification (which right is separate from the designation of a judge to hear the certification application under section 4(2) of its Act): RoseTim Investments Inc. v. BCE Inc., 2008 SKQB 440

Duzan v. Glaxosmithkline, Inc., 2009 SKQB 230: Saskatchewan court confirmed that under Rule 79, a plaintiff must apply for a case management judge in a proposed class proceeding within 30 days of the expiry of the time to enter a defence, unless the court orders otherwise. In this case, the Plaintiff had breached that Rule, and the appropriate remedy was for the court to designate a case management judge.

Spieser v. Canada (Procureur général), 2009 QCCS 1725: Court established pre-trial schedule in this certified environmental class action.

Norbourg Update

Pellemans c. Lacroix, 2009 QCCS 1530: Court allows amendments to claim.

2009 QCCS 2040: Court grants confidentiality orders.

2009 QCCS 2282: Defendant denied right to amend defence, on the basis that the amendments were simply trying to reargue points lost on certification.

Tobacco Update

Conseil québécois sur le tabac et la santé c. JTI-MacDonald Corp., 2009 QCCS 2096: Plaintiff requested early cut off date for defence expert reports. The court rejected the request noting that the Plaintiffs had not yet produced their final reports.

Particulars

Spieser c. Canada (Procureur général), 2009 QCCS 1383: Particulars granted in certified environmental class action.

Fonds Management

In Association des consommateurs pour la qualité dans la construction c. Flamidor inc., 2008 QCCS 4848 the Fonds challenged fees agreed to be paid by the Defendant to the representative plaintiff organization as part of a settlement. The Court found that a contract between the parties in addition to the amount paid out to the class was permissible and did not interfere with the Fonds’ ability to receive repayment of its advances.

Class Actions at Trial

Marcotte c. Fédération des Caisses Desjardins du Québec, [2009] J.Q. no 5770 (S.C.), Adams v. Amex Bank of Canada, [2009] Q.J. No. 5769, Marcotte c. Banque de Montréal, [2009] J.Q. no 5771: Visa conversion rate class actions successful. The court rejected the constitutional defences raised by the defendant arguing that local consumer statute could not apply due to federal legislation. The court found that limitation period was stayed for all class members, even those persons who were part of an separate initial aborted class proceedings. The court also held that limitations did not run over the period where there was a failure to disclose the nature of the commissions. The court found that there was sufficient evidence to support an aggregate award for certain banks for certain periods. Certain banks were found liable for punitive damages based on their willful non-disclosure of the commissions.

Third Party Issues

Taylor v. Canada (Minister of Health), 2009 ONCA 487: Canada sought to bring in third party dental surgeon and hospital in jaw implant approval class action. The Court of Appeal affirmed that that the third party proceeding should be dismissed, since the class was only pursuing Health Canada for their proportionate share of the fault.

Amendments to Certification Motion Refused

Royer-Brennan c. Apple Computer Inc., 2009 QCCS 2720: Court found that amendments were not made properly.

Challenging Administrative Decision

Muzyka v. Ontario, [2009] O.J. No. 2346 (S.C.): Court struck claim by individual who claimed she was a member of the class. The court found that all of the plaintiff's remedies in this respect were contained in the settlement agreement.

Expert Dispute

Brochu c. Société des loteries du Québec (Loto-Québec), 2009 QCCS 705: Court considered scope of expertise of proposed gaming expert.

Securities Class Actions

European Minerals (unreported, May 20, 2009) (Ont.S.C.): Defendant ordered to produce insurance policy in advance of certification. The writer is counsel for the defendants.

Defamation in Pleadings

Speers Estate v. Reader's Digest Assn. (Canada) ULC, [2009] O.J. No. 2332 (S.C.): Quebec defendant brought libel action in Quebec in relation to Ontario pleading. In Quebec there is no absolute privilege in pleadings. The plaintiff applied to stay the Quebec action. The court concluded that:

"*An Ontario court has the in personam jurisdiction to order defendants who are properly before it to refrain from prosecuting an action in Québec; however, it would not be appropriate in the immediate case to exercise that jurisdiction.* Dr. Speers is at liberty to ask the Québec court to decline jurisdiction or to ask the Québec court to apply the law of Ontario with respect to his defence to the defamation claim.
* If Dr. Speers asks the Québec court to decline jurisdiction, he may advise the Québec court that the Ontario court would accept jurisdiction over the defamation claim, and he may advise the Québec court that the Ontario court would permit the defendants to plead that the law of Québec applies to the defamation claim should they advance it by counterclaim."

UPCOMING EVENTS
For long-range planners, we are going to hold the Western Canadian Class Action Conference in Vancouver on Friday, November 20 (for those of you who prefer Vancouver's sea and mountains to Toronto's.....what is it that Toronto has going for it again??). Registration details will follow in subsequent updates.
NHL Playoffs start April 16. Go Canucks/Habs Go. Flames Suck. Leafs and Oil are beneath contempt.

NATIONAL CLASS ISSUES
Lepine v. Canada Post, 2009 SCC 16: The Supreme Court determined that an Ontario settlement should not be enforced in Quebec. The grounds for the decision were quite narrow:
1. No proper notice: The court held that it is important that notice procedures be designed so as to make it likely that the information will reach the intended recipients. The wording of the notice must take account the context in which it will be published and, in particular, the situation of the recipients. Compliance with these requirements constitutes an expression of the necessary comity between courts and a condition for preserving it within the Canadian legal space. In the instant case, the clarity of the notice was particularly important given that parallel class proceedings had been commenced in Quebec and in Ontario. The court found that the Ontario notice was likely to confuse its intended recipients, as it did not properly explain the impact of the judgment certifying the class proceeding on Quebec members of the national class established by the Ontario Superior Court of Justice. It could have led those who read it in Quebec to conclude that it simply did not concern them.
2. The presence of a filed (but not certified) proposed Quebec class proceeding. The Quebec courts were precluded from recognizing the Ontario judgment on the basis of lis pendens pursuant to art. 3155, para. 4 C.C.Q. The court held that a class action exists as of its filing date for the purposes of this article. The application for authorization to institute a class action is a form of judicial proceeding between parties for the purpose of determining whether a class action will in fact take place. In the instant case, the three identities were present at the stage of this application. The basic facts in support of both proceedings were the same for Quebec residents, the object was the same and the legal identity of the parties was established. There is no discretion to refuse enforcement under the relevant article if there is an extant Quebec motion.
The court did find an error in the Quebec C.A.'s analysis of jurisdiction and forum non conveniens. The Quebec court does not have to consider how the court of another province or of a foreign country SHOULD have exercised its jurisdiction or, in particular, how it might have exercised a discretion to decline jurisdiction over the case or suspend its intervention. Enforcement by the Quebec court depends on whether the foreign court HAD jurisdiction, not on how that jurisdiction was exercised, apart from the exceptions provided for in the Civil Code. On the facts, the court concluded that the Ontario court had properly assumed jurisdiction given that the defendant's head office was in Ontario. However, the two problems noted above precluded enforcement.
We draw the following conclusion from these findings: Quebec courts should respect a national class in proper circumstances i.e. where the original court had jurisdiction, where proper notice is given, and where there is no Quebec motion filed prior to the common law action. While this is "good news" in terms of the appropriateness of national classes, we do have a concern that this only heightens the incentive for a "race to the courthouse" , as it is now essential to get on file in a common law province with a proposed national class before there is a filing in Quebec, in order to have any chance of securing Quebec recognition of a future common law judgment.
The court declined to provide any broader guidance on the management of overlapping class proceedings stating:
"As can be seen in this appeal, the creation of national classes also raises the issue of relations between equal but different superior courts in a federal system in which civil procedure and the ad-ministration of justice are under provincial jurisdiction. This case shows that the decisions made may sometimes cause friction between courts in different provinces. This of course often involves problems with communications or contacts between the courts and between the lawyers involved in such proceedings. However, the provincial legislatures should pay more attention to the framework for national class actions and the problems they present. More effective methods for managing jurisdictional disputes should be established in the spirit of mutual comity that is required between the courts of different provinces in the Canadian legal space. It is not this Court's role to define the necessary solutions. However, it is important to note the problems that sometimes seem to arise in conducting such actions."
This throws the mess back into the hands of the courts and the legislatures. There was much talk at the Osgoode conference of how to move forward in this respect. More to come!

Wuttennee v. Merck Frosst, 2009 SKCA 43: The Saskatchewan Court of Appeal solved the competing national class problem in the Vioxx litigation by deciding that the Saskatchewan case should never have been certified in the first place, on traditional certification grounds.
On class definition, the court found that the court erred in over-complicating the issue through subclasses that had imbedded merits characteristics: "...the induced subclasses, defined as those "who by unfair marketing practices used by Merck, were induced to purchase Vioxx from a Canadian pharmacy rather than a cheaper NSAID and thereby suffered a financial loss", set criteria for class membership that depend on the outcome of the litigation of common issues, in this case relating to Merck’s conduct in marketing Vioxx, necessary for determination of whether it committed unfair marketing practices, as well as the outcome of the litigation of individual issues, whether the individual was "induced" by such conduct to purchase Vioxx rather than a cheaper drug and thereby suffered a financial loss. This definition is therefore objectionably circular even on the more liberal view of Cullity J., discussed above."
The court carried on to suggest that there was a fundamental flaw in the action that prevented certification generally: "In my view, much of this difficulty arises from two choices made by the respondents in fashioning this action: (1) the choice to combine in one action a number of diverse and not necessarily related claims; and (2) the choice to define those claims vaguely so as not to confine the plaintiffs to particular factual allegations. In relation to the diversity of claims, it seems clear, at least, that the claim for damages for personal injury in relation to gastrointestinal injuries or conditions is completely unrelated to the claim that Vioxx increased the risk for certain adverse cardiovascular events and, indeed, would have a distinct factual basis...In the result, however, these difficulties combine to make it difficult, if not impossible, for this Court to determine with any certainty whether the defects in the definitions of the subclasses that I have found above could be resolved by amending the class definition..."
The same problems were found to play into the common issues requirement: "[A]ll of the difficulties identified above recur in this context. In short, the diversity of claims sought to be asserted, combined with the lack of clarity of what facts are alleged in relation to each, present insurmountable challenges, in my view, to the identification of issues which are common to all claims and therefore to all members of the class."
The court held that the suitability of the case for a punitive damage claim could not stand on its own as a common issue (para.159).
On preferability, the court held: "While Klebuc C.J. relied upon the fact that class proceedings in other pharmaceutical cases had been found to be the preferable procedure, in my respectful view, he failed to consider this essential difference between the claims advanced in those cases and the myriad of claims sought to be advanced in this action. It is my view that this action vastly over-reaches what is reasonably manageable in a class action in a fair and efficient way."
Mignacca v. Merck Frosst Canada Ltd. (Nov 17, 2008) (Div Ct. ): In this Ontario Vioxx action, leave was granted on the refusal to grant a stay of the Ontario proceeding in favour of the Sask, but leave was not granted on the pure certification issues. This appeal is now presumably rendered moot if the decision above stands.
Sollen v. Pfizer, 2008 ONCA 803: The court refused an appeal by the defendant from a decision allowing discontinuance of an Ontario action so that the Plaintiff could pursue the claim in Saskatchewan. The court stated: "While we recognize that there are important issues surrounding national class proceedings commenced in multiple jurisdictions, the facts of this case do not provide the appropriate foundation for a consideration of those issues."
Ali Holdco Inc. v. Archer Daniels Midland Co., [2008] O.J. No. 4657: The Plaintiffs sought to set aside a Registrar's dismissal order, and an order that the Ontario action be set in abeyance for a year on the basis that the parallel B.C. action was proceeding first. The court granted the application.
Campbell v. Canada (Attorney General), 2009 FC 30: The Plaintiffs applied to discontinue the class proceeding so that the matter could be pursued in a new Saskatchewan claim. The court confirmed that in Federal Court, approval must be sought to discontinue (para.8). The Defendant argued that their interests should be taken into account in considering whether to grant the order. The court disagreed stating: "Having reviewed the extensive jurisprudence referred to by the parties, I have been unable to find any support for the Defendants' assertion that the Court must also be satisfied that they will not be prejudiced by the discontinuance." The Defendant also relied on abuse of process arguments. The court rejected these stating: "I accept that the multiplicity of actions commenced by the Plaintiffs, in particular, the recent action commenced in Saskatchewan may amount to an abuse of process." However, the court found that those issues should be raised in Saskatchewan given that the Saskatchewan action was commenced after the Federal Court proceeding. The order to discontinue was granted so long as notice was given (necessary due to the publicity that occurred on filing).

SETTLEMENTS
Bilodeau v. Maple Leaf (March 9, 2009) (Ont.S.C.): Court approved a $25 million guaranteed settlement and $3 million fee. The writer was co-counsel for the class (along with a cast of dozens). The court declined to approve a request by Merchant Law Group for pre-approval of an additional fee, and for payment of a disbursement to outside counsel hired by Merchant Law Group and Rochon Genova for the purposes of contesting carriage. Parallel approval was granted in Saskatchewan and pending in Quebec.
Geoghides v. Scotia Capital (January 23, 2009) (Ont.S.C.): Settlement of $3.4 million approved in foreign exchange case against securities broker. The writer was co-counsel for the class. Fees of 25% were approved.
Stewart v. General Motors of Canada Ltd. [2008] O.J. No. 4426 (S.C.): Court approved a defective automobile part process settlement. The writer was co-counsel for the class in B.C. The court commented on certain objections:
"A notable feature of the objections is the almost entire absence of any recognition that a settlement is essentially a compromise and that there would be risks, great delays and considerable expense in continuing with the litigation. There was also, I think, a pervasive failure to understand that the court has no power to amend the terms of the settlement, so that its refusal to give approval would mean that the litigation would continue unless and until it became possible to reach further agreement."
Fees were approved in part, with some interesting commentary:
"The first concern is that I do not see on what basis I can, or should, properly approve fees of counsel in the other proceedings. There is no evidence that they worked as a team in the prosecution of this action, or that their work on the other cases benefited the class in this action or, indeed, the members of the putative classes in such cases. The only persons who would benefit would be the lawyers in those proceedings who would, in effect, be bought off. The suggestion that the court should approve payment to the other lawyers of part of the amount the defendants are to provide to settle the proceeding could only give further encouragement to the commencement of multiple class actions in the future.
At the same time, there is, I believe, validity in the submission of plaintiffs' counsel in this proceeding that, by reaching agreements with respect to the other actions, they have conferred a benefit on the class in this proceeding. The benefit consists of avoiding delay and expense that otherwise might well be incurred because of the unresolved problems with multiple multi-jurisdictional class actions in Canada - problems exemplified by the Voutour and Tiboni proceedings. This benefit, in my view, may legitimately be taken into account in determining the appropriate quantum of the fee to be awarded to counsel in this case without purporting to approve the fees of counsel in the other cases, and without being concerned with - or interfering with - any binding agreements that the parties have made with such counsel...
In my opinion, the concerns I have expressed about approving the fees of the other lawyers do not detract significantly from the reasonableness of the total amount that the defendants agreed to pay. The amount of $2,520,000 represents a multiplier of approximately 2.6 times the docketed time of plaintiffs' counsel in the proceedings in Ontario and Quebec after the negotiated reduction of approximately 25 per cent is made in calculating an acceptable base fee. If the success achieved by the efforts of plaintiffs' counsel was to be determined without reference to the total amount that the defendants will actually have to pay - an amount that will depend on the number of claimants and the categorisation of their claims - and, if recognition is to be given to counsel's success in avoiding multi-jurisdictional disputes, a multiplier of 2.6 would, I believe, be on the low side. I am, however, not satisfied that, in this case, I can appropriately disregard the possibility that, when all claims have been dealt with, the lawyers and not the class members may turn out to be by far the principal beneficiaries of the settlement. The defendants have not agreed to contribute a minimum amount for the benefit of the class members, and there is no assurance that the net recovery for them will not be significantly less than the amount of the fees. It is, of course, equally possible that the fees will represent an acceptable percentage of the gross recovery, in which the expenses of administration to be borne by the defendants must be included. On the evidence in the record, it would be sheer speculation on my part to draw one inference rather than the other...The problem arises not just because, until the claims period has expired, it will be uncertain how many of the class members will make valid claims - and in which of the three categories those claims will fall....It has been recognised in other cases, that, for the purpose of fee approval, it is legitimate to look at the actual recovery achieved for the benefit of the class. This is consistent with the requirement that the court should look at the degree of success as well as the degree of risk...In similar circumstances, it has been recognised that it may be appropriate to defer final agreement of fees until the amounts recovered for the benefit of the class have been ascertained...In this case the amounts payable to individual class members are relatively small and over 25,000 successful applications at an average payment of $100 will be required for the payments to even equal the fees requested. Even after giving significant weight to the other factors that are relevant to a fee determination - as I am satisfied I must in this case - there is such uncertainty on the question of the total recovery, that I am not prepared at this stage to approve the payment of $2,520,000 ... There will be an order that $1.5 million of the amount to be held in escrow...may be paid to class counsel ....The balance - less any amount ordered by the Superior Court of Quebec to be paid to counsel in the Quebec proceeding - is to continue to be held in escrow until further order of the court."
A parallel approval issued in Quebec: Tsuk v. General Motors Du Canada Limitee (October 30, 2008) 500-06-000353-066 (Que.S.C.)
McCutcheon v. Cash Store, [2008] O.J. No. 5241: Settlement of payday loan class action covering all provinces but B.C. and Alberta was approved. A flat fee of $500,000 all inclusive was approved based on a minimum payment of $1.5 million plus administration costs. The court also approved a payment of $10,000 to the representative plaintiff based on the evidence filed of actual work done and the exposure to costs that was assumed, and the fact that the request was made by class counsel without request from the plaintiff himself. The court concluded: "I will, however, reiterate what I have said in other cases that, as a general rule, all benefits and payments to be made by defendants should be treated as a single package when considering the fairness and reasonableness of a settlement from the viewpoint of a class. This, I believe, should be accepted whether or not there are expressed to be separate agreements for fees to be paid directly by defendants rather than out of a settlement amount otherwise earmarked for the benefit of the class. As in other parts of the law, substance must prevail over form." The writer is counsel for the defendant in B.C.
Lawrence v. Atlas Cold Storage (February 12, 2009) 04-CV-263289CP (Ont.S.C.): Securities class action settlement for $40 million gross approved. Fee request of $12 million knocked down to $6.3 million based on concerns about overlawyering (resulting in a 25% reduction to the base time), and in order to put multiplier in the appropriate range (2.6).
Bernett v. St. Jude, 2009 BCSC 82: Settlement rejected due to failure to provide for compensation for possible psychological injuries.
Meretsky v. BNS (January 23, 2009) (Ont.S.C.): Settlement of FX class action paralleling Cassano v. TD. Fees of 20% were approved. For more information see http://www.visaclassaction.com/
Walker v. Union Gas Ltd., [2009] O.J. No. 536: Criminal interest rate case settled for $9.2 million, or 8.8% of the late penalty payments (as compared to 19.3% in the earlier Enbridge settlement). The court stated: "The lower proposed settlement percentage in the Union class proceeding is justified because there are a number of issues relating to liability and the quantum of damages which arguably distinguish this class proceeding from the Enbridge class action." (at para.26). The court approved a distribution of $5.4M to the Winter Warm Program, $3.1M to class counsel, $600g to the Class Proceedings Fund, and $140g for notice. The fee was a multiplier of approximately 2.19. The representative plaintiff was paid $5000 from the fees otherwise payable to Class Counsel fees for 70 hours work. The court approved the cy pres distribution stating: "The Court is satisfied that it is both administratively difficult and prohibitively costly to attempt to determine the late payment penalties incurred by individual customers of Union and allocate individual payments in restitution. It is efficacious and efficient to have a cy pres distribution as seen in the Enbridge settlement."
Wong v. Sony Corp., [2009] O.J. No. 22 (S.C.): Settlement approved of DVD defect class action. Fees of $110,000 were approved, which were less than the time invested in the case.
Slabodkin v. Sandals Resorts International (2000) Ltd., [2008] O.J. No. 5323 (S.C.): Settlement of disrupted vacation class action. Compensation was 5 nights at an all inclusive resort, but not airfare. The court noted that there were substantial risks on all levels of the case. Fees of $50,000 were approved, which was said to be in excess of recorded time.
McColl v. Whitehall-Robins Inc. Canada (c.o.b. Wyeth Consumer Healthcare) [2008] O.J. No. 5311 (S.C.): Settlement of PPA class action approved. The only known personal injury class member was paid an undisclosed amount and $200,000 was paid cy-pres. Fees of $100,000 were approved, which was a 0.5 "multiplier".
Butler v. Honda Canada Inc. [2008] O.J. No. 5390 (S.C.) and (March 25, 2009) 52333CP (S.C.): Settlement of odometer case approved, subject to approvals in BC and Quebec, which are pending. Fees of $650,000 proposed.
Nutech Brands Inc.v. Air Canada, [2009] O.J. No. 709 (S.C.): Court approved partial settlement of this price fixing class action. The settlement fund net of fees was to be held in trust until further settlements or awards are achieved and a distribution protocol is approved by the court. The Canadian settlement was on par with a U.S. settlement. The settling defendant also agreed to assist in relation to the ongoing prosecution of the action. The court noted: "It is appropriate to consider non-monetary benefits in the assessment of the reasonableness of a settlement agreement..." In a subsequent decision at [2009] O.J. No. 710 (S.C.), the court approved a 25% contingency fee, which was approximately a 1.46 multiplier. A parallel approval issued in B.C. in McKay v. Air Canada, 2009 BCSC 392
Stasny v. Southwestern Resources Corp (November 3, 2008) CV-07-CV009525-0000 (Ont.S.C.J.): Securities class action settlement. Parallel cases were approved in B.C. (Martin v. Southwestern Resources Corp. January 14, 2009, S075049, B.C.S.C.) and Quebec (Vézina c. Southwestern Resources Corp., 2008 QCCS 5907). The courts approved a 24.79% contingency fee.
Smith v. Labatt Brewing Co., [2009] O.J. No. 117 (S.C.): Retirement benefits claim settled. Settlement restored approximately 25-50% of the expense that would have been incurred under the proposed amendment to the plan. A flat fee of $400,000 inclusive of disbursements and taxes was approved versus actual time of $261,000.
Manulife Securities International Ltd. v. Société Générale, [2009] O.J. No. 77 (S.C.): Investment class action settled.
Dhillon v. Hamilton (City), [2008] O.J. No. 5303 (S.C.): Pension case settled. The case had previously been certified in 2006. Counsel fees and disbursements of $540,000 were approved. No premium was sought.
799376 Ontario Inc. (c.o.b. Lonsdale Printing Services) (Trustee of) v. Cascades Fine Papers Group Inc., [2008] O.J. No. 5280 (S.C.): Price fixing case settled. Court approved a 25%/2.88 multiplier fee. Court noted that there was no reversion, so there was no need to consider whether fees should be based on amount actually distributed.
Djemai c. Institut Aviron inc., 2008 QCCS 6022 and 2009 QCCS 1075: "Defective education" case settled.
Carpentier c. Apple Canada, 2008 QCCS 4537: Ipod nano screen scratch class action settled for up to $345,000 in credits (depending on take up) and $40,000 in legal fees. The court held that this structure was not a collective recovery allowing the Fonds to take a percentage under 1031 C.P.C. Nor was in a monetary payment or damages entitling the Fonds to claim under 1028 CPC.
Rouleau c. Fortin, 2009 QCCA 452: Settlement notice regarding agreement with certain defendants approved. Cross appeal by other parties arguing limitations dismissed.
Doyer c. Dow Corning Corporation, 2008 QCCS 5746: Interim distribution of 64% of claims from settlement fund approved.
Ostiguy c. Québec (Procureur général, 2008 QCCS 5853: Court approved fee request of $10,000 in settled class action, rather than the $100,000 requested.

CERTIFICATION DECISIONS
Sperm bank storage case refused certification: Lam v. University of British Columbia, 2009 BCSC 196: The writer was counsel for the fridge repairman. The court noted that the claim would turn in large measure on whether the class could overcome a contractual waiver, which was an individual issue. The decision is under appeal.
Franchise case granted certification: Landsbridge Auto Corp. v. Midas Canada Inc., [2009] O.J. No. 1279 (S.C.) The court struck certain causes of action but allowed others to remain, including unjust enrichment. The court made an interesting comment on class definition:
"Generally, I do not see why, as a condition for certification, plaintiffs should be compelled to include every person who shares in the common issues. It is, for example, accepted that geographic limitations are permissible and I see no reason why other limitations should be rejected. In any event, I believe it was not unreasonable for the plaintiffs in this case to limit the class they wish to represent to those persons who will have a continuing interest in the franchise relationship and in the respective rights and responsibilities of Midas and the Franchisees." (para.70)
Allegiance case refused certification: Roach v. Canada (Attorney General), [2009] O.J. No. 737 (S.C.): The court held that there was no proper claim for damages and hence an individual declaration for constitutional invalidity would be the preferable procedure. Interestingly, on class definition, the court would have allowed a representative who was counsel at the class counsel firm. The court stated: "As a general rule, it is not appropriate to appoint as a class representative a member, or associate, of a law firm that would act as class counsel... However, there is not here the usual potential conflict of interest and appearance of impropriety arising from the possibility that decisions he might make in the proceeding would be influenced by his firm's interest in earning substantial legal fees. Mr Roach has been the moving force behind the proceeding in his personal capacity, and his involvement in the case and the earlier proceeding - together with his legal knowledge and experience and his strong commitment to enforcing the rights of the class members under the Charter - make him eminently qualified to perform the responsibilities of a representative plaintiff. In the circumstances of this case, I do not consider that it would be necessary or desirable for this purpose to saddle him with the expense of retaining other lawyers."
Denial of psychiatric services case certified: Labelle c. Agence de développement de réseaux locaux de services de santé et de services sociaux - Région de Montréal, 2009 QCCS 204
Repair Estimate charge case certified: Dean v. Mister Transmission (International) Ltd., [2008] O.J. No. 4372 (S.C.): The proposed class argued that the defendant was not allowed to charge for an estimate if the repair work itself is performed. The court stated:
Para 31: "With respect to the first asserted cause of action, the request for declarations, it is clear, in my view, that the declarations, standing alone, are of no particular benefit to the plaintiff or the class. They are of benefit only if they are a springboard to the claim for damages or, to characterize it in another way, to a refund of the money paid in contravention of the statutory provisions."
Para 93 " It should be noted that the criterion prescribed by s. 5(1)(d) itself speaks of a class proceeding being the preferable procedure "for the resolution of the common issues". Normally, in my view, once the Court has found that an issue is properly a common issue, it would be unusual that a class proceeding would not be the preferable method of resolving it."
On alternate procedure: Paras. 96-98: "The defendants argue that a class action is not the preferable procedure because there is a dispute resolution mechanism created by the Consumer Protection Act, 2002. I disagree.... Both the Motor Vehicle Repair Act and the Consumer Protection Act, 2002 provide for a right of action in court. Neither statute precludes the use of the procedural mechanism of a class proceeding where circumstances warrant. The defendants argue that the Consumer Protection Act, 2002 provides for consumer complaints to be investigated by the Minister of Consumer and Business Services, and that such complaints may be determined by the Licence Appeal Tribunal, pursuant to s. 109 of the Act. I am not convinced that that process, even if available for claims of this sort, which I doubt, provides an adequate mechanism for the resolution of these claims that is superior to a class action."
Illegal school fees action not certified: Wiggins v. British Columbia, 2009 BCSC 121: The case was struck down based on the cause of action requirement. The court stated at para.34:
"With respect, nothing in the governing statute itself, the School Act, supports that plaintiff's assertion that the Province has a statutory duty to monitor and control the compliance of boards of education with law and policy regarding the charging of school fees. As the defendant submits, the purpose of the School Act is to establish a structure for the provision of educational services by independent boards. The statute clearly envisions boards of education as independent, elected bodies that operate with considerable autonomy. As such, the imposition of liability on the Province for the failure to control or monitor the schools or boards is contrary to the scheme of the School Act."
Alleged service interruption of cable services certified: Wilkins v. Rogers Communications Inc. [2008] O.J. No. 4381 (S.C.)
Immigration case refused certification: Patel c. Québec (Procureur général) (Ministère de l'Immigration et des Communautés culturelles), 2009 QCCS 601. Action was brought on behalf of all persons who applied for immigration to Canada under the Quebec skilled worker program and whose applications were rejected without being informed of their right to apply for an administrative review of such rejection. There was a nice (English) statement of Quebec's cause of action test: "Even though Patel need not go so far as to show a probability that her conclusions are well-founded as regards the alleged facts, it is a well-accepted principle that Patel must allege facts in a sufficiently precise manner so as to enable the Court to ascertain if the rights Patel is claiming have any chance of being recognized on the merits" (at para.41). The court found that there was no appearance of right given (1) the delay in making the claim, (2) the information that was provided to the representative plaintiff, and (3) the weakness of the contractual and discrimination claims.
The court also rejected certification based on the fact that there was insufficient commonality: "...[The] Court finds that even though the questions in law are possibly identical for all members of the potential class, they are contingent on the determination of an individualized set of facts that require separate analysis for each class member."
On the suitability of the representative, the court rejected the proposed individual noting that (a) all investigation had been done by the law firm, (b) no effort was made to contact even a small number of class members, (3) the immigration consultant retained by the Plaintiff was controlling everything, (4) the plaintiff had refused the opportunity for an administrative review, and (5) the plaintiff did not show that she was able to finance the proceedings, particular the cost of notice.
Pension case certified: Caponi v. Canada Life Assurance Co., [2009] O.J. No. 114 (S.C.). The court declined to certify the aggregate assessment question based on the evidence before it that consideration of individual circumstances may be required. However, the court stated "...it would be for the judge at the trial of the common issues to choose between the differing views of the methodology to be employed, and the information required, in calculating damages and, for this purpose, also to decide whether the conditions for an aggregate assessment are satisfied. Accordingly, the exclusion of issue (e) from the common issues would not in any way restrict the powers of the court at trial." On preferable procedure, the fact that the representative plaintiff had a claim for $780,000 did not prevent certification as "The important question, however, is whether access to justice will be provided for the Class and the fact, or the possibility, that the Plaintiff could afford to litigate the issues is not decisive." The suggestion that the case could proceed as a test case was "beside the point in the absence of any agreement by the Defendants to treat such a proceeding as a test case that would bind them vis a vis the remaining Class members." (at para.50). The court declined to mandate a separate subclass representative as "I see no justification for an inference that Mr Caponi would have any consequential conflict of interest, or otherwise be an unsuitable representative for such a subclass. He is a former long-standing employee of the Company with a substantial interest in the preceding and is a member of the Canada Life Canadian Pension Plan Members' Rights Group - a voluntary association established to promote awareness, and to provide information, relating to the rights of plan members."
Native membership rights case refused certification: Buffalo v. Samson Cree Nation, 2008 FC 1308: Court held that common issues were not adequately stated. On preferable procedure, the court held that litigation could be better resolved individually where proposed class members benefits would all have to be individually considered, and all had different releases. The court also noted the importance of individually assessing discoverability. Finally, the court noted that individual claims could be in the range of $200,000, giving class members a potential interest in individually controlling separate actions. On the adequacy of the representative, the court noted the failure to produce a litigation plan. The court declined to order any costs against the representative plaintiff.
Product defect case refused certification: Chartrand v. General Motors Corp., 2008 BCSC 1781: Notably the proposed representative "... became involved in this case because she was contacted by the proposed class counsel. Counsel had previously acted for her with respect to motor vehicle accidents. Her evidence is that counsel telephoned her in September 2005, and told her that her truck, which she purchased after one of the accidents, and which is one of the proposed class vehicles, might have a problem with a parking brake. Counsel asked her if she was interested in having her truck investigated. She agreed, and went to his office." After the inspection, counsel paid for the inspection and repair.
The court found there was no class stating: "It is not enough to point to a group of people in British Columbia who are owners of specific vehicles with automatic transmissions. There must be some evidence that two or more people have a complaint that GM manufactured a dangerously defective product that caused them a loss and/or that GM was unjustly enriched at their expense...[The class test] requirement has been viewed as an air of reality test, testing the reality of the linkage between the plaintiff's claim and the proposed class...There is ...no evidence of anyone wanting to participate in the class proceeding; Ms. Chartrand herself was recruited to participate."
On the adequacy of the representative "In assessing whether Ms. Chartrand is an appropriate representative plaintiff, the Court may look to her motivation and the competence of her counsel...98 She is entitled to look to counsel to know the law, the procedures, and to devise the strategy whereby a remedy will be obtained: Frey v. BCE Inc., 2007 SKQB 328, 312 Sask. R. 4 at para. 7. She does not have to demonstrate an extensive understanding of the litigation process itself.
99 What is needed is a genuine plaintiff with a real role to play and not a placeholder plaintiff for the entrepreneurial interests of lawyers who have so much at stake...I, however, am not satisfied that she has been actively participating in the decisions relating to the litigation to date. Nor am I satisfied that she would actively participate in the future by directing the litigation and instructing class counsel. The role for which she was recruited is a passive one. In that sense she is not in a position to vigorously and capably prosecute the interests of the class...This conclusion is reinforced by the contents of the retainer agreement. That agreement makes no reference to her participation in decision making. Her retainer agreement is quite different in this respect from the one found in Fantl, ...which says that the client "retains the right to make all critical decision regarding the conduct of the matter"
On the recruitment: "There is no specific legislative provision or legal principle which prohibits recruitment. Nevertheless, recruitment is a factor to consider in deciding whether a proposed representative plaintiff can fairly and adequately represent the class."
On the role of U.S. Counsel: "Concerns also arise when American counsel are involved in proposed Canadian class pro-ceedings. The nature of the involvement is relevant. Lawyers from other jurisdiction may be able to act as consultants. It is a different matter if they are in some way underwriting the litigation and obtaining a potential benefit from it. A representative plaintiff must have competent counsel in order to fairly and adequately represent the interests of the class. The court, as part of its role in a class proceeding, supervises class counsel to ensure that counsel is acting in the interests of the class. The court is not in a position to supervise the actions of or participation of counsel from another jurisdiction."
In summary: "...she is not a suitable representative plaintiff because: she was recruited to play a particular role by counsel which did not involve active participation in decision making, at a time when she had no complaint against GM; she has no real interest in the outcome of the litigation because she was given a financial incentive to become involved; and her counsel has a partnership with U.S. lawyers, the nature of which is undisclosed, which may not be in her best interests or in the best interests of the class"
Light cigarettes action refused certification: Sparkes v. Imperial Tobacco Canada Ltd., 2008 NLTD 207: The court found that the fact that the Director of Trade Practices could bring an action in a representative capacity did not bar a class proceeding under s.41 of the Newfoundland Act: "The Plaintiff's action cannot be taken in a representative capacity under the TPA unless undertaken by the Director in his regulatory role under section 15 or following a written request by a consumer under section 16. There is no mechanism under section 15 to bind all members of the class, although the court may grant relief for the benefit of the class. The hallmark of a representative action is that it be binding on all persons represented or else there is little point in pursuing such an action."'
The case fell down on the cause of action requirement however. In relation to the alleged Trade Practices case, the plaintiff had failed to plead the requisite damages: "The TPA creates a single cause of action by a consumer under section 14(1) which may lead to various remedies under section 14(2). But in that action, the plaintiff must allege that he suffered damages as a result of an unfair trade practice committed by "the" supplier, i.e., the defendant with whom he entered into a consumer transaction. The TPA also allows for a Director's action in section 15 by which the Director of Trade Practices may commence an action against "a" supplier who has, in his opinion, "engaged" in an unfair trade practice. The Director may seek the remedies available under section 14. There are no issues of a consumer transaction, individual reliance, damages or privity of contract. In my view, the Plaintiff is attempting to pursue a Director's action under the guise of an individual action which is not permissible under the legislation."
The court also held that an alternate cause of action was flawed as it was, in essence, seeking to establish a nominate tort of breach of statute. The court went on to find that there was no identifiable class given the lack of a proposed connection to the alleged misrepresentations. On common issues, they were either not common (because of the need to establish reliance), were not supported by adequate evidence (in relation to aggregate and punitive damages), or related to defences that had not yet been raised.
Subdivision marketing case certified: Haddad v. Kaitlin Group Ltd., [2008] O.J. No. 5127 (S.C.): The court did not certify waiver of tort against a parent company because there was no allegation of wrongdoing against the parent, only a claim seeking to pierce the corporate veil. The court also confined the class to direct purchasers. The court confined the misrepresentation common issues to the specific issue regarding the golf course that was at the core of the pleading. The court deferred the issue about whether issues regarding possible defences should be certified until after a Statement of Defence was filed. The court found that certification was preferable even though the court acknowledged that issues as to reliance would remain. The court required that a second representative plaintiff be added given that the representative plaintiff's situation was "somewhat unique".
ZoPf v. Soberman Tessis Inc., [2009] O.J. No. 1104 (S.C.): Class action over allegedly misrepresented debentures certified. The application was unopposed save for a wrinkle created by a potential competing class action. The court deferred any carriage fight as follows: "Lerners LLP represents a group of class members, and I was advised that if a co-counsel arrangement was not achieved, a member of this group might commence a rival class action and bring a carriage motion. The certification of Mr. ZoPf's action as a class proceeding is made without prejudice to the rights of these class members to commence another action and to seek carriage."
Certification granted on appeal in paint delamination case: Vermette c. General Motors du Canada ltée, 2008 QCCA 1793. The majority held that the trial judge's decision on the extent of individuality was based on facts not in evidence, particularly given that the court had declined GM's request to submit an expert report. The court noted that there was a core common issue: "En l'espèce, la démonstration de la présence d'un vice caché de conception ou de fabrication à l'égard des véhicules visés par le recours collectif profitera indubitablement à l'ensemble des membres du groupe."
Ponzi case certified: Eaton v. HMS Financial Inc., 2008 ABQB 631: There were certain conditions imposed, in particular that any Representative Plaintiff surrender any commissions to the Plaintiff class prior to the certification order to avoid a conflict of interest. The court also noted that any commissions would have to be deducted from each class members award. Certain causes of action were struck. A few points of note from the decision follow.
On class definition: "I find that "having suffered a loss" is not merits-based because having invested and suffered a loss only gets one into the class and it does not determine recovery collectively or individually. In other words, to be a merits-based class it would have to be something to the effect of, "those who have suffered losses that were the product of fraud by the Defendants or their agents", which is not the case." (para.53).
On the need for a rep plaintiff for each defendant: "I believe that, in face of less than a complete document record at this point in the proceedings, and with Carlson not providing (or yet required to produce) any evidence, there would be a substantial injustice to the class if there was a need for a specific representative Plaintiff with a personal cause of action against Carlson at this point in the litigation...Moreover, I find that the evidence is sufficient at this stage in this unique case, before document disclosure, to make it apparent that one or more of the class members, albeit not specifically identified on the record at this time, has an action against Carlson, and that is sufficient. This is not a case, as in my decision in Alberta Society for Pension Reform, where the proposed representative plaintiff could never have a cause of action against any of the defendants. In any event, subject to other decisions I have made herein on the proposed Representative Plaintiffs, I find that they are, at this time, suitable for this purpose." (at para.67)
On the potential multiplicity of representations: "While to some extent yet to be determined there may be individual circumstances, I find that a class proceeding is appropriate where the allegation is of relatively few primary misrepresentations by Defendants, not a "myriad" of misrepresentations." (at para.133)
Risorto v. State Farm Mutual Automobile Insurance Co.,[2009] O.J. No. 820 (Div.Ct.): Court overturned decision by trial court to allow plaintiff to file fresh affidavits and take second shot at certification. The court held that the same test for new evidence should apply as in regular proceedings:
"Parties involved in this sort of litigation understand well the significance of an order granting or refusing certification. Both parties will usually devote substantial amounts of time and resources on the motion. Typically, the magnitude of costs requested, and often awarded, vastly exceeds anything awarded on an ordinary interlocutory motion. Indeed, it is difficult to conceive of an interlocutory proceeding in which the parties would better understand the need to put their best foot forward. In my view, the interests in preventing litigation by installments; requiring parties to put their best foot forward; and finality; are just as compelling in certification proceedings as they are in any other proceedings...In my view, neither s. 5(4) nor s. 12 of the Act compel a different approach. Section 5(4), on its face, permits the Court to "adjourn" the motion for certification to permit the parties to amend their materials or pleadings or to permit further evidence. That is not what occurred here. In this case, the motions judge had dismissed the motion. He was compelled to reopen the motion, and then adjourn it. While the Court retains its discretion to permit the calling of further evidence once the motion for certification has been disposed of but before a formal order has been taken out, the exercise of such discretion is not governed by s. 5(4). Section 12 of the Act allows the Court to "make any order it considers appropriate respecting the conduct of a class proceeding to ensure its fair and expeditious determination". While this provision is an express recognition of the broad flexibility conferred on certification judges, it cannot be construed, in my view, so as to override the long-standing and well-understood principles that apply once the Court has rendered its judgment and it is sought to reopen the proceedings and tender new evidence...For these reasons, in my view, the motions judge erred in the test that he applied for the reception of new evidence, namely, that there is an arguable case that the new evidence might justify certification. In my view, the test that he should have applied was the two-pronged test set out in Sa-gaz, namely, whether the new evidence would probably have changed the result, and whether it could not have been discovered by the exercise of due diligence"

ARBITRATION AND CRIMINAL INTEREST UPDATE
MacKinnon v. National Money Mart Co, 2009 BCCA 103: The BCCA was asked to uphold the arbitration clause on reapplication by the Defendant following the SCC's decisions in Rogers and Dell. The court found that the law regarding commercial arbitration in British Columbia was not so different from Quebec law as to warrant a departure from the Supreme Court's findings with respect to the availability of arbitration to resolve class actions. However, the court found that issue estoppel applied to preclude Money Mart from applying to stay the proceedings in favour of arbitration. There were no special circumstances warranting the court's intervention to allow Money Mart to benefit from the changed law. The court also found that there was no error in failing to determine the constitutionality of s.347 of the Criminal Code at the certification hearing.
In Seidel v. TELUS Communications Inc., 2009 BCCA 104, the court reaffirmed its position on arbitration clauses, but to greater effect as issue estoppel did not apply. On the issue estoppel point, the court stated:
"Section 15(1) of the Commercial Arbitration Act specifically deals with the timing of stay applications. It provides that the application may be made by a party to legal proceedings "before or after entering an appearance and before delivery of any pleadings or taking any other step in the proceedings". TELUS has not delivered a statement of defence, and the provision of the list of defences did not constitute a step in the proceeding. TELUS did apply to strike out certain of Ms. Seidel’s claims but such an application is not a step in the proceedings...It must be remembered that when Ms. Seidel commenced her action, MacKinnon (2004) was binding authority in this province, and it held that an application for a stay under s. 15 prior to the certification application of an intended class proceeding was premature. TELUS delivered its stay application promptly after the issuance of Dell and Rogers cast doubt on the correctness of McKinnon (2004). TELUS cannot be faulted for its failure to make an earlier application when such an application was bound to fail pursuant to MacKinnon (2004)." Although there was a dispute about whether the 2003 arbitration clause applied to claims prior to that date, the court held that this should be determined by the arbitrator, not the court.
Smith v. Moneymart, 2008 ONCA 746: Court refused to allow Moneymart to revisit the issue as to whether arbitration clauses trump the class action, based on issue estoppel. Leave to appeal was subsequently dismissed: [2008] S.C.C.A. No. 535.
Smith Estate v. National Money Mart Co. [2008] O.J. No. 3497: Costs on application to dismiss. The Defendants moved for a stay of the action and the Plaintiffs moved for a partial summary judgment. See Smith Estate v. National Money Mart Co., [2008] O.J. No. 2248 (S.C.J.). The court dismissed both motions. On costs, the court concluded "...it is my view that costs in the cause is indeed the appropriate order for the summary judgment motion. I do not think, however, that a similar order should be made for the motion for a stay. For the motion for a stay, it is my opinion, that the Defendants should pay the Plaintiffs their costs forthwith.
Smith v. Moneymart, [2008] O.J. No. 4474: The purpose of this hearing was to determine the quantum of those costs. The court assessed: (a) the Plaintiffs' costs of the stay motion at $289,059.23; (b) the Plaintiffs' costs of the summary judgment motion at $398,981.55; (c) the Defendants' costs of the summary judgment motion at $184,773.20; (d) the costs of fixing costs at $5,000.00 in the cause.
Bodnar v. Cash Store, 2008 BCCA 432: The appeal of certification by lenders added to the class action was denied. The writer is counsel for the lead defendant, who took no position on the appeal.
Casavant v. Cash Money Cheque Cashing Inc., 2008 BCSC 1556: Court refused to allow defendant to probe plaintiff's medical records to test adequacy. Court also declined to order that the records of transactions with other lenders be disclosed since the Plaintiff already admitted that she had engaged in transactions with other companies.
DeWolf v. Bell ExpressVu Inc., [2008] O.J. No. 4769 (Div.Ct): The defendant Bell brought a motion for leave to appeal the Order of Perell J. dated September 15, 2008, in which he dismissed the defendants' motion for summary judgment. The issue was whether an administration fee charged by the defendants to its customers constituted "interest" as defined in s. 347 of the Criminal Code. Bell had already appealed the order granting the plaintiff summary judgment as of right. The Plaintiff did not oppose leave and it was granted.

TIMING OF DEFENCES
Alberta Municipal Retired Police Officers' Mutual Benefit Society v. Alberta, 2009 ABQB 44: The court considered whether the defendants should be required to file a defence prior to certification. The court decided that this was unnecessary. The court distinguished the contrary finding Murray v. Alberta, 2007 ABQB 231 on the basis that (1) the court in Murray made a specific finding that there were reasons why the Statement of Defence would be helpful, and (2) defences would likely have to be altered following certification in the present case. The writer was counsel for Alberta.

EXTRAPROVINCIAL PLAINTIFF AND NOTICE ISSUES CONSIDERED
T.L. v. Alberta, 2009 ABQB 96: The court held that:
1. The Plaintiffs had not done enough work to show that a resident plaintiff needed to be appointed as the non-resident class representative;
2. The Notice should refer to the possibility that third party proceeding might be brought;
3. The Notice should refer to the proposed contingency fee; and
4. The Notice need not refer to the possibility for an adverse cost award at the individual hearing, as that could be addressed at a later stage after the common issues trial. The writer was counsel for the defendant.
Bodnar v. The Cash Store, 2009 BCSC 74: As in T.L., the court found that the initial notice need not refer to the possibility of an adverse costs award at an individual hearing. The writer is counsel for the defendant, but I can blame this decision on Luciana, since I was out of town.

PROCEDURAL ISSUES IN SECONDARY MARKET LEAVE APPLICATIONS CONSIDERED
Ainslie v. CV Technologies: The lower court ruled that the OSA does not require each defendant to file an affidavit in response to the plaintiff's motion for leave to bring an secondary market securities class action: [2008] O.J. No. 4891, correction [2008] O.J. No. 4927. At [2009] O.J. No. 730 (Ont.Div.Ct), the Divisional Court granted leave to appeal given that there was a difference of views between Justice Lax's decision and comments (albeit in obiter) by the court in Silver v. Imax Corp., [2008] O.J. No. 1844 (leave to appeal denied, [2008] O.J. No. 2751 (Sup.Ct.Jus.). In Silver, the court suggested that there was a duty to profer evidence in considering refusals on an examination.

COSTS
Ruffolo v. Sun Life Assurance Co. (April 3, 2009 Ont. C.A.): Lower court awarded Sun Life $215,000 in costs against the severely disabled plaintiffs on failed certification application. On appeal the plaintiffs characterized the award as "one of the highest costs awards in the history of the Act against an unsuccessful plaintiff" and "grossly excessive in the circumstances." On appeal, the court held the lower court properly exercised its discretion.
Roman Catholic Bishop of the Diocese of Calgary v. Canada (Attorney General) 2009 ABQB 29: A diocese that did not participate in the national IRS settlement sought costs from Canada. While the court acknowledged the general costs principles, the court declined to exercise its discretion to award costs stating: "The principle stated that simplistically, however, does not address a matter as complex as this. A policy objective of costs is to discourage unnecessary litigation and to encourage settlement. On a policy level, there is merit to Canada's argument that this Applicant is a significant beneficiary of this global settlement:" Further, the court found that the Diocese was bound by the order in the class action settlement dismissing all related claims on a without costs basis.
McGee v. London Life Insurance Co. [2008] O.J. No. 5312 (S.C.): Costs of a successful one day certification motion pegged at $50,000. The Plaintiffs had requested $130,000. The court noted: "I do not dispute that certification in any class action is a watershed moment and that significant resources are normally devoted to achieving and defeating this. For this reason, costs awards can be high relative to other motions." However, the court noted:
1. the focus of the argument was quite narrow.
2. some of the time incurred would have been in relation to research on the merits;
3. there appeared to be substantial duplication of effort;
4. the defendants claimed that their partial indemnity costs would only have been $68,713 (although the court noted that there were some questions about the accuracy of these dockets. The court did encourage defence counsel to continue to provide such information on these types of motions);
5. the costs award in Markle v. Toronto was only $30,000, and in Pearson v. Inco the Court of Appeal awarded only $50,000 for leave and a 2 day appeal.
Matoni v. C.B.S. Interactive Multimedia Inc. (c.o.b. Canadian Business College), [2008] O.J. No. 4910 (S.C.): Court set costs on motion for certification that was successful on a narrower basis than requested on a second attempt. The court found that as a portion of the claim had been certified, the plaintiffs were entitled to costs. The court also found that the defendants delayed and complicated matters, and inappropriately threatened to pursue costs against counsel personally. The court awarded $75,000 as opposed to the $230,000 requested.
Hagos v. ING Insurance Co. of Canada, [2009] O.J. No. 931 (S.C.): The court considered costs in relation to two aborted motions relating to the appointment of two prior representative plaintiffs. It was now proposed that there be a third representative plaintiff. The court awarded $75,000 as interim costs, and stated it would consider what further costs should be awarded after consideration of the motion to add the third plaintiff.

SUBSTITUTION OF REPRESENTATIVE PLAINTIFFS AND ACCESS TO CLASS MEMBER LIST DISALLOWED
CHS v. Alberta, 2008 ABQB 620: The court refused substitution request on the basis that the proposed reps were either not proper class members or, in the case of a public interest advocate, that insufficient steps were taken to secure parental approval for the appointment as next friend. The court also found that proposed class counsel was not entitled to a list of class members in advance of certification stating "Although a solicitor-client relationship would arise upon certification, and the appointed representative plaintiff may request documents with proper notice and disclosure of the intent to seek such information after the opt-out period has expired, counsel for the Plaintiffs is nowhere near to achieving such status at this time." The writer is co-counsel for the defendant government.

CHICKENS AND EGGS
In Nette v. Stiles, 2009 ABQB 153, the court refused the Plaintiff's motion asking that the cause of action aspect of the certification test as against the Defendant Chiropractic College be heard prior to the balance of the certification elements. The Court noted that (1) the motion would not be dispositive as certain defendants were not contesting the existence of the cause of action, (2) bifurcation could result in multiple appeals, and (3) there was no indication that bifurcation would result in any material cost savings. The writer was counsel for the Defendant College.
In Anderson v. Canada, 2008 NLTD 166, the court found that certification should proceed in advance of defence motions for particulars and to add additional parties. The court stated "It seems therefore that to engage in procedures that tend to defeat the efficiencies of class proceedings is to be discouraged unless the court is satisfied that such procedures will advance the fair and expeditious determination of the class action". The court noted that a number of class members were elderly, and that the request for particulars was extensive. The court found that the Statement of Claim was sufficiently stated to allow the Defendant to meet the case for certification. In relation to additional parties, the court found that this would inevitably delay the certification motion. The court did state in obiter that if the preliminary application has the potential to dispose of the litigation or more efficiently address the objectives of the Act, then it should be heard prior to the certification hearing. The court did award costs without comment, apparently adopting the view that even in a no costs jurisdiction, the protection was only engaged at and after the certification hearing.
Merchant Law Group v. Canada (Revenue Agency), 2008 FC 1371: The court ordered that the jurisdiction motion to strike should proceed prior to the certification motion.
Brooks v. Canada, [2009] S.J. No. 81 (S.C.):: The court set the scheduling of various motions. The application to examine on affidavits was scheduled prior to the certification application. A constitutional challenge was set down concurrent with the certification hearing.
Mazzonna c. Daimlerchrysler Financial Services Canada Inc./Services financiers Daimlerchrysler inc. 2008 QCCS 5084: In proposed privacy class action arising from data loss, the defendants applied for right to examine representative plaintiff and adduce affidavit evidence. The court granted the motion on the basis that the allegations in the certification motion were rather sketchy, and hence the court could be enlightened by further information. The court did refuse to allow one proposed affidavit.
Bouchard c. Ventes de véhicules Mitsubishi du Canada inc., 2008 QCCS 6033: Jurisdiction motion heard prior to motion for certification. Court granted the motion noting that there was no pleading of any acts having been committed in Quebec in furtherance of the alleged conspiracy. There was nothing more than economic damage suffered in Quebec, which is not sufficient to ground jurisdiction. The foreign defendants were not party to any contract.
Piercey Estate v. Atlantic Lottery Corp., 2008 NLTD 202: The court allowed a summary judgment type motion to proceed in advance of certification as it had the potential to end the matter. The issue was whether the Atlantic Lottery Corporation was subject to the local Trade Practices Act. The case involved video lottery terminals. The court held that ALC was not bound to the legislation, as it was a Crown agent.

APPLICATION FOR EXAMINATION ALLOWED
Pellemans v. Lacroix, 2009 QCCS 135: The court allow an examination of a trust company employee in this ongoing Norbourg saga. In an earlier decision, the court rejected a counsel disqualification request: 2008 QCCS 5857.

INTERVENTION REFUSED
Fairview Donut Inc. and Brule Foods Ltd., Plaintiffs, v. The TDL Group Corp. and Tim Hortons Inc., [2008] O.J. No. 4720 (S.C.): This was a proposed class proceeding on behalf of franchisees The moving parties were twenty Tim Hortons' franchisees who have come together as the Executive Committee for the Concerned Franchisees Group (the "CFG") to oppose certification of the class action. The court held. "It seems plain to me that adding CFG as an intervener will only serve to delay the determination of the issues and may serve to take the proceeding off into a tangent...CFG claims to be able to offer the court the "unique perspective of franchisees", but has not shown how this will assist the court in determining whether the plaintiffs can satisfy the requirements for certification under section 5(1) of the CPA. It has not identified any evidence or argument that would differentiate its position from the position of the defendant. Finally, it seems clear that CFG shares at least some of the plaintiffs' concerns that are raised as issues in the litigation, but simply disagrees with the mechanism the plaintiffs have chosen for resolving these issues. CFG would prefer to negotiate rather than litigate. The opt out provision in the CPA is the proper mechanism to address these concerns."

MOTIONS TO STRIKE
Mirshahi v. Suleman, [2008] O.J. No. 4954 (S.C.): Parts of Statement of Claim struck in this failed investment action.
Sorbara v. Canada (Attorney General), [2008] O.J. No. 4739: The court held that this tax class action could only be brought in Tax Court:
"Having reviewed the Kingstreet Investments Ltd. judgment and the other cases referred to by both parties, and for the reasons that follow, it is my opinion that the Sorbaras' action should be dismissed. As I will explain in detail below, it is plain and obvious that the Sorbaras' action has a jurisdictional impediment because the Tax Court has the exclusive jurisdiction to determine whether the services provided by the portfolio managers are an exempt supply under s. 123 (1) of the Excise Tax Act. That element of their action is not a constitutional law matter but an administrative law matter of interpreting the Excise Tax Act. The Tax Court has exclusive original jurisdiction to decide that matter, and the Ontario Superior Court's undoubted jurisdiction in regards to unconstitutional legislation is not yet engaged.... In my opinion, the Sorbaras do not have an answer to the Federal Crown's jurisdictional argument and at the present juncture, the presence or absence of class action machinery in the Tax Court is not a basis for the Superior Court to take jurisdiction that has exclusively been conferred on the Tax Court."
In a subsequent ruling at [2009] O.J. No. 657 (S.C.), the court issued an $11,000 costs order against the rep plaintiff. The court did agree that s.31 applies even prior to certification. The court held that: "the effect of s. 31(1) is to encourage the court to recognize that class actions tend toward being test cases, the determination of novel points of law, or the adjudication of matters of public interest and courts therefore should be alert to and respond to these tendencies. In other words, the court should be more willing to find that a proposed class action is a test case, the determination of a novel point of law, or the adjudication of matters of public interest."
The court continued: "It can be said that virtually every class action has some aspects or attributes based upon which it becomes arguable that the proposed class proceeding is in the public interest. For example, by their very nature, in virtually every class action, the representative plaintiff will have little to gain as an individual and thus it becomes arguable that he or she is litigating altruistically and thus in the interest of others; namely a sector of the public. Similarly, virtually every class action will be important to developing the law or will affect the societal interests of some sector of the public and thus it becomes arguable that the action is in the public interest. The problem is that sometimes these arguments have gravitas and sometimes they do not.
In the context of the case at bar, put simply, applying the s. 31 arguments to the circumstances of an action about the interpretation of an exemption to a taxing statute, I am not persuaded by the Sorbaras' argument that they should pay no costs for the dismissed action"
Wareham v. Ontario (Minister of Community and Social Services), 2008 ONCA 771: The court held that the dismissal of this action should be upheld stating: "I am in substantial agreement with the analysis of the motion judge and his order striking the entire statement of claim. However, I would not restrict leave to amend the s. 7 claim to a breach based exclusively on the failure to give reasons for the denial of benefit claims. I would grant leave to amend permitting the appellants to advance a claim for a declaration of a s. 7 Charter breach based on the Province's failure to provide a process for the determination of benefit entitlement that complies with the Charter requirements of procedural fairness."
Pearson v. Canada (Minister of Justice), 2008 FC 1161, appeal dismissed 2008 FC 1367: Motion to strike claim for discrimination against practitioners of the Assembly of the Church of the Universe of Canada granted and upheld.
Cavanaugh v. Grenville Christian College, [2009] O.J. No. 875 (S.C.): Application to strike abuse class action dismissed. Problematic aspects of the claim were dismissed.
Blackman v. Fedex Trade Networks Transport & Brokerage (Canada), Inc., 2009 BCSC 201: Court heard a summary trial under Rule 18A on consent prior to certification. The court held that the custom brokerage fees were properly charged. Notably, the court found that: " I agree with the defendants' contention that the removal of the "failure to disclose" portion of the definition of deceptive practice [in the new BPCPA replacing the prior Trade Practice Act] does foreclose the plaintiff from seeking redress under the BPCPA for a complaint that he was deceived by a failure to disclose..."

STAY GRANTED
Fedex Ground Package System v. Au, 2008 BCSC 1800: The Plaintiff sought to avoid the application of the Commercial Arbitration Act by stating he intended to apply to make his action a class proceeding. However, he had not noted that intention on his claim, and there was no direct evidence of the intention. The court granted the stay application.

ACCESS TO WITNESSES
Grant v. Canada (Attorney General), [2008] O.J. No. 4470: For the purpose of a pending motion to certify this proceeding, plaintiff's counsel requested permission to speak to an employee of Health Canada, Dr. Hari M. Vijay. When permission was refused by the defendant, a summons to witness was served on Dr. Vijay. The Attorney General moved to strike the summons. The court allowed the application stating: "Having delivered the affidavit of Dr. Gots, I do not believe the Attorney-General can now properly object to the plaintiff's desire to examine Dr. Vijay in order to test, or rebut, the opinions he has expressed and, generally, to obtain her evidence on the requirements for certification. In my opinion a sufficient evidentiary basis has been provided for a conclusion that she will be in a position to provide some such relevant evidence."

ENVIRONMENTAL CLASS ACTION JUDGMENT AT SCC
Barrette v. St. Lawrence Cement Inc. v, 2008 SCC 64: The court rejected the defendant's appeal on liability, and granted the plaintiff's appeal seeking nuisance type strict liability.
On the limitation period for damages, the court held that damage relating to events subsequent to the judgment authorizing the class action were not subject to prescription. The application for authorization to institute a class action suspended prescription until the judgment granting the motion was no longer susceptible of appeal (art. 2908 C.C.Q.), and the filing of the action then interrupted prescription (art. 2892 C.C.Q.). According to art. 2896 C.C.Q., such an interruption continues until judgment and has effect in respect of any right arising from the "same source". These words must be interpreted liberally. Here, the source of the continuing damage suffered remained the same: activities of the defendant that caused excessive neighbourhood annoyances. Since those activities continued until 1997, it would make no sense, in addition to being impractical, to ask the representative plaintiffs to repeat their motion every three years for each annoyance suffered.
In terms of damages, given the trial judge's discretion and the difficulty of assessing environmental problems and annoyances, the trial judge's use of average amounts in different zones as a method in determining the quantum of damages was reasonable and appropriate in the circumstances. The Defendant had not shown that its liability increased as a result, and there is no indication that the amount awarded was based on a wholly erroneous estimate of the injury. The trial court's conclusions on the assessment of damages were restored. The court stated:
"The provisions of the Code of Civil Procedure on individual claims do not suggest that the trial judge may not decide the amount to be awarded in respect of an individual injury (see arts. 1037 to 1040 C.C.P.). Moreover, a judge who opts for collective recovery does so "if the evidence produced enables the establishment with sufficient accuracy of the total amount of the claims of the members; [the judge] then determines the amount owed by the debtor even if the identity of each of the members or the exact amount of their claims is not established" (art. 1031 C.C.P.). This suggests that the total amount is based on an assessment of the sum of the members' individual injuries. Finally, the trial judge has considerable discretion in making this assessment in the context of a class action...Thus, a trial judge who, as in the case at bar, decides to proceed by way of individual claims is not precluded from determining the amount to be awarded in respect of an individual injury. This approach also simplifies the individual claims procedure, since it will then be possible to limit what must be proved at that stage. The question that remains is whether it was appropriate for Dutil J. to use average amounts to determine the compensation in this case. It must be recognized that the annoyances suffered by victims of environmental injury are difficult to assess... Given the trial judge's discretion and the difficulty of assessing environmental problems and annoyances, we consider Dutil J.'s use of average amounts to have been reasonable and appropriate in the circumstances. Moreover, SLC has not shown that its liability increased as a result. There is no indication that the amount awarded by Dutil J. was based on a wholly erroneous estimate of the injury."
Notably, the court distinguished Hollick and arguably provided a road map for future common law environmental class actions stating:
"It is true that in Hollick v. Toronto (City), [2001] 3 S.C.R. 158, 2001 SCC 68, this Court expressed the opinion that the class action was not the preferable means of resolving the claims of the class members. However, in that case, the Divisional Court had noted that "[e]ven if one considers only the 150 persons who made complaints - those complaints relate to different dates and different locations spread out over seven years and 16 square miles" (para. 32). In the instant case, the representatives provided detailed evidence of the injury they had suffered. Dutil J. considered all that evidence and was able to infer from it that the members in each zone had suffered similar injuries. Her analysis contains no error warranting this Court's intervention."

YES VIRGINIA, CLASS ACTIONS DO GO TO TRIAL
Saraïlis c. Voyage Héritage J. & A. inc., 2008 QCCA 2439: Dismissal of travel class action upheld.
Barbour v. The University of British Columbia, 2009 BCSC 425: Parking class action successful on common issues.
Association pour la protection des automobilistes inc. c. Toyota Canada inc., 2009 QCCS 1009: Trial court asked to consider certain quantification issues arising from successful judgment on the merits. This included the interest calculation and special costs.
Kotai v. Queen of the North, 2008 BCSC 1398: Court refused order that liability in a series of individual actions be heard together with upcoming trial in certified class action. The court found that there were no common issues remaining across the individual actions and the class action. The court also held that the individual quantum trials should not be bogged down with the CPA quantum considerations.

DISCONTINUANCE REQUEST ALLOWED
Zushman v. United Parcel Services Canada Ltd., [2009] O.J. No. 1252 (S.C.): The Merchant Law Group sought to discontinue an Ontario proceeding. There was a competing Ontario action on the same issues that the court was advised would be proceeding instead. The court allowed the motion stating: "I see no reasons why the decision of experienced counsel to proceed only with the Wright proceeding should be questioned in the interest of the class"
The court did hit the plaintiff with costs however stating: "Given the practice of starting multiple class actions in which counsel compete for carriage, I believe it is important to emphasize that orders for costs can be made to compensate defendant's counsel for their work and time expended in cases that have subsequently been discontinued or stayed." Costs of $12,500 were awarded.

PRE-TRIAL PROCEDURES CONSIDERED
Jeffery v. London Life Insurance Co. [2008] O.J. No. 5395 (S.C.): Plaintiff had set matter down for trial, but then sought early exchange of expert reports. Defendant said that leave was required. The court found that:
"I am of the view that pursuant to s. 12 of the Class Proceedings Act, parties may bring motions before the court at any stage of the proceeding respecting the conduct of the proceeding to ensure its fair and expeditious determination. As a result the party who set the common issue trial down for trial ought to be able to bring a motion such as this one. To decide otherwise could deny parties access to the court to fulfill the functions contemplated by s. 12 of the Class Proceedings Act. Further, in my view, an order granting the type of relief sought by the plaintiffs on these motions would be an appropriate order pursuant to s. 12 of the Class Proceedings Act. A conclusion to the contrary would thwart the purpose for which s. 12 was enacted, that is to ensure a fair and expeditions determination of a class proceeding."
However, the court found that it would not be just to impose early disclosure, as the defendants could not meet the deadline. The trial was adjourned and a later date set for delivery of reports.

SECURITY FOR COSTS
Peter v. Medtronic Inc. [2008] O.J. No. 4378: The defendant sought an order that the Plaintiff post $257,000.00 in security for costs. The court confirmed that it has the discretion under s.12 to order security for costs even where Rule 56's requirements are not met.
"As I discussed in Fantl v. Transamerica Life Canada,...the Legislature intended that class proceedings have a genuine plaintiff. This is important, amongst other reasons, because it allows the purposes of a two-way costs regime to be achievable, in whole or in part, in a class proceeding. Colloquially, a two-way costs regime means that the Legislature intended that both parties have some "skin in the game" and an incentive to make responsible decisions about how the class action is litigated. "
On the need for costs:
"In their view of the role of costs and or an order for security for costs, the Defendants focus their attention on the alleged circumvention of their reasonable expectation of recovering costs if they are successful in defending the action. The regimentation of costs in litigation, however, has more purposes than partially (or in a few cases, substantially) indemnifying the successful party for the expense of successfully prosecuting or successfully defending a proceeding. Costs awards are multifunctional. Modern costs rules are designed to further five purposes in the administration of justice: (1) to discourage frivolous claims and defences; (2) to discourage and sanction inappropriate behaviour by litigants in their conduct of the proceedings; (3) to facilitate access to justice, including access for impecunious litigants; (4) to indemnify successful litigants for the costs of litigation, although not necessarily completely; and (5) to encourage settlements....The Defendants' argument that security for costs is needed in the immediate case to protect the Defendants' reasonable expectation of being indemnified would have more heft to it if the indemnification principle were the main purpose of the costs regime, but, as I have just noted, costs serve purposes beyond indemnifying successful parties....Apart from the alleged misrepresentation to the court, another matter I will discuss further below is that there is no reason to impose costs as a sanction for inappropriate behaviour. I again foreshadow to say that in this case this factor is insufficient to ground an order for security for costs. ...And there is little reason to order costs or security for costs to encourage a settlement. Further, I am not prepared to find that the Representative Plaintiffs were selected in order to thwart the Defendants' reasonable expectation of recovering costs, and it appears to me that they rather have exposed themselves and made a serious commitment to the class action...Moreover, what should not be lost sight of is that while the Representative Plaintiffs may not have enough to satisfy the Defendants, they have risked everything they do have. This is significant because it means that while the indemnification purpose of a costs award may not be fully achievable, the other purposes for costs are achievable. In other words, the Representative Plaintiffs do have "skin in the game" and are exposed to the regimentation of costs. If they lose, they risk everything they have, which is at least as great, if not greater a risk, than confronted by the Defendants....In any event, it is my opinion that it is not appropriate in the circumstances of the immediate case to order security for costs mainly to protect the Defendants' reasonable expectation of recovering its costs. The general principle remains that both plaintiffs and defendants are not required to secure their potential liability for costs, and the risk of a judgment proof litigant is a fact of life in litigation.... In so far as the request for security for costs is made because the Representative Plaintiffs have not applied to the Class Proceedings Fund, this is a matter in which the Defendants would normally have no say or direct entitlement...[A] a defendant's reasonable expectation of being indemnified for costs does not extend to an entitlement or expectation that the plaintiff will apply for funding from the Class Proceedings Fund and the expectation cannot be the basis for ordering security for costs, although the presence of funding would be relevant to resisting the motion.
In a subsequent decision the court awarded the Plaintiff $21,000 for costs of this motion: [2008] O.J. No. 5055 (S.C.)

SCHEDULING ISSUES IN AGENT ORANGE LITIGATION
Brooks v. Canada (Attorney General), 2008 SKQB 433: The court set timetable for certification hearing.

FIDUCIARY CLAIM SURVIVES IN NURSING HOME CASE
Morrison Estate v. Nova Scotia, 2008 NSSC 281: The Provinces effort to strike the fiduciary duty claim in this action challenging a change in regime for private payment of nursing home fees was dismissed. The court stated that the following regulation was sufficient to at least raise an arguable case that a specific fiduciary duty was owed to class members rather than just a general duty to the public: " [R]egulation 28B.. reads: The per diem rate for a nursing home and a home for the aged shall be determined by the Minister of Health having regard to the best interests of the resident."

APPLICATION TO SUBMIT EVIDENCE GRANTED
Mères avec pouvoir (MAP) Montréal c. Bell Canada, 2008 QCCS 5447: The court granted the defendant's application to call oral evidence at the certification hearing of this internet bundling class action. The court found that the proposed testimony would assist in evaluating the certification criteria.

APPEALS
Richard v. B.C. 2008 BCSC 1275: The trial court required production of all class member files held by the defendant in this abuse class action. The trial court held that the files were potentially relevant to the systemic abuse common issue, and that class counsel had implied authority to review class member files. Leave to appeal was granted, 2008 BCCA 549, but the appeal itself was dismissed: 2009 BCCA 77. The writer is co-counsel for the defendant.
Manuge v. Canada, 2009 FCA 29: The Court of Appeal held that this Charter action should have been commenced by way of application for judicial review rather than by action. Leave was granted to reconstitute the proceeding as an application. The writer is co-counsel for the class.
Withler v. Canada, 2008 BCCA 539: Court upheld dismissal of age discrimination class action, with one dissent. Leave to appeal to SCC is being sought. The writer is co-counsel for the class.
Fantl v. Transamerica [2008] O.J. No. 4928 (Div.Ct): Appeal denied of decision allowing class representative to choose new counsel on break up of prior firm.
Popovic v. Montreal, 2008 QCCA 2371: Court affirmed lower court decision dismissing a certified case on cause of action grounds prior to certification. The judgment is of interest to class action practitioners in Québec in that the Court of Appeal confirms for the first time that a certified class action can be struck before trial on the grounds that the proceedings fail to disclose a cause of action. Ever since a judgment of the Superior Court in the Dikranian case in 2000, conventional wisdom had held that, once certified, a class action could not be struck for failure to disclose a cause of action. As the argument went, the cause of action is already analyzed at certification under Art. 1003 (b) of the Code of Civil Procedure, which requires the judge to decide whether "the facts alleged seem to justify the conclusions sought" (the "appearance of right" criterion). Bringing a pre-trial motion for failure to disclose a cause of action after certification was thus seen as a "disguised appeal" from the certification judgment and, as such, an indirect violation of the prohibition against appeals from judgments certifying class actions. The Court of Appeal explicitly rejects this argument and notes that the analysis performed under Art. 1003 (b) CCP is different and more superficial than the analysis required under Art. 165 (4) CCP governing pre-trial motions, which provides that the action should be dismissed if "the suit is unfounded in law, even if the facts alleged are true." Thanks to Marie Auden of BLG for her assistance in interpreting the fine points of the decision.
Poulin v. Ford Motor Co. of Canada, [2008] O.J. No. 4153 (Div.Ct): Refusal to certify upheld. There was an interesting point on the suggestion that the trial judge should have ordered subclasses: "The Appellant did not raise the issue of subclasses with the motion judge. The Appellant had maintained the position up to and including the hearing of the motion for certification that a single class was sufficient and presented no evidence in support of the creation or identification of sub-classes. As a result, the Respondents' witnesses were never given the opportunity to give evidence on the suitability or identity of such subclasses. Also, the Appellant has not proposed or identified the persons who could act as representative plaintiffs in respect of such subclasses and has put for-ward no evidence as to the suitability of such persons as representative plaintiffs. There is no merit in the Appellant's submission that the motion judge erred in law because he failed to take the initiative, in the absence of any appropriate evidentiary base, to create multiple subclasses" (at paras.37-38)
The court did find an error in the refusal to recognize a damages common issue in relation to the satisfaction of the Winnipeg Condo standard, but this was not sufficient to support certification.
The court found that the Transport Canada alternative proposed by the trial judge was proper given that (1) class member just had a pure economic loss claim at this point, and (2) Transport Canada could order a recall.
In terms of the probing of the counsel relationship, the Divisional Court stated: "The fact that Will Barristers was required to obtain approval from Motley Rice (who was funding the disbursements for the action) for any disbursements over $2,500 was quite properly, as the motion judge found, a significant concern in the context of the Mr. Poulin's capacity to be a rep-resentative for a class proceeding."
Davis v. Canada, 2008 NLCA 49: Court dismissed refusal to certify class action by aboriginal group. The court emphasized the required deference (para.23). In terms of the preferred test case alternative, the court stated: " I do not accept the Claimants’ suggestion that a test case would not result in the application of relevant determinations of law to other individuals. As noted by the applications judge, I would expect that the governments would consider that they are bound by any judicial determinations applicable to similar claimants." (at para.45). The court also confirmed that the court's reliance on the availability of unconditional funding was proper (para.47). The court declined to place much weight on the protection against limitations provided by the CAA stating: "The purpose of the Class Actions Act is not to shield claimants from the operation of the law where the circumstances do not otherwise establish a class action as the preferable procedure." (at para.49).
Dubuc c. Bell Mobitlité inc. 2008 QCCA 1962: Court upheld this refusal to certify a cell phone charge class action based on the failure on the part of the rep plaintiff to present the contractual terms on which the alleged cause of action was based. A similar result was achieved in Option Consommateurs c. Bell Mobilité, 2008 QCCA 2201. In the latter decision the court held that it was inappropriate to consider a proposed amendment to the class definition at the appellate stage (Kirk Baert has cancelled his plans to move to Montreal).
Nadon c. Montréal (Ville de), 2008 QCCA 2221: Dismissal of this pollen/allergy class action was upheld. The court emphasized that the legal tests on the merits are not modified in a class action. The court agreed with the trial judge's conclusion that causation had not been established. In earlier proceedings the court rejected an application to file a new report: 2008 QCCA 2214.
Diffusion Métromédia CMR inc. c. Bou Malhab, 2008 QCCA 1938: "Are you talkin' about me? Are you talkin' about me?" Appeal of partial certification of taxi cab driver libel case. The court held that the case was not properly certified as there was no basis to conclude that the individual reputation and personal dignity of each of the drivers belonging the to the targeted groups had been sullied.
Halvorson v. British Columbia (Medical Services Commission), 2008 BCCA 501: Application by Plaintiff for leave to appeal from an interlocutory order requiring him to provide particulars of his class action claim. Leave was granted. There were issues as to whether or not particulars should be provided prior to the determination of the common issues. The procedural issues were significant to the claim, which had been stalled for five years, and were significant to the practice of class actions in order to avoid similar quagmires in the future.
McMillan v. Canada Mortgage and Housing Corp., 2008 BCCA 543: Court dismissed appeal of the pleadings dismissal of this leaky condo class action.
Soldier v. Canada (Attorney General), 2009 MBCA 12: Appeal by proposed plaintiffs from dismissal of applications for certification of two actions as class proceedings. The plaintiffs sought damages from the Crown for past annuities allegedly due to them under two treaties. The court found that the standard of review of the cause of action issue was correctness, whereas the balance of the test was discretionary and therefore entitled to significantly more deference (para.24). The Court of Appeal found that the certification judge did not err in principle or commit palpable and overriding error when she considered standing as part of the question as to whether the plaintiffs had a cause of action. On the cause of action point, the court held that: "the judge erred when she held that the plaintiffs had no standing because entitlement to the annuity under Treaties No. 1 and 2 is a collective right for which an individual may not sue. Quite simply, the law in this area is not sufficiently clear to conclude that it is beyond doubt that the action could not succeed at trial." This error also caused the judge to err in relation to the common issues requirement as well. However, the court found that certification was not the preferable procedure, as the matter should have proceeded by way of representative action. The court found that the representative plaintiffs were inappropriate because they were advancing the case on too narrow a basis, relying solely on the wording of the treaty: "In the court's view, given the complexity of treaty interpretation and the need for evidence related to the intention and understanding of the treaty signatories as well as the circumstances surrounding the signing of the treaties, such evidence was required." (at para.94). "While strategy and tactics may change as litigation progresses, representative plaintiffs purporting to advance litigation on behalf of approximately 40,000 individuals entitled to treaty annuity payments must, at a minimum, demonstrate an understanding of the jurisprudence on treaty interpretation." (at para.98).
MacQueen v. Canada (Attorney General), 2008 NSCA 117: Court upheld orders requiring plaintiffs and two representative plaintiffs to attend for cross-examination on their affidavits.
Attis v. Canada (Minister of Health), 2008 ONCA 660, Drady v. Canada (Minister of Health), 2008 ONCA 659: In both breast implant cases the court found that there was no duty of care on the part of the government in relation to the approval of the relevant products.

LEAFS TO APPEAL
Lefrancois v. Guidant Corp. [2009] O.J. No. 36, Tiboni) v. Merck Frosst Canada Ltd. (November 24, 2008), Toronto 503-08 (Ont. S.C.J.): Leaves denied from decisions certifying products liability actions. In Guidant, the court specifically denied to give leave on the issue as to whether the cause of action test should conform with the refinements made by the Sask. C.A. in Hoffman v. Monsanto Canada Inc.. The court in Guidant also found that there was nothing improper about the trial judge's conclusion that references could be ordered to resolve issues of causation, given that the Ontario Rules in relation to references were stated to be controlled by the operation of any statute (including s.25 of the Ontario CPA). The court noted that references were part of the case management plans in Mignacca v. Merck Frost Canada Ltd. [2008] O.J. No. 2996, leave to appeal denied November 24, 2008 and Peter v. Medtronic [2007] O.J. No. 4828, leave to appeal denied [2008] O.J. No. 1916.
Tiboni v. Merck Frosst Canada Ltd., [2009] O.J. No. 80 (S.C.): Leave granted of decision disqualifying Alan Rock from acting in product liability action given his prior role as Minister of Health.
Sun-Rype Products Ltd v. Archer Daniels Midland Co., [2008] S.C.C.A. No. 416: Leave denied from decision of BCCA that 10 year limitation period applied to constructive trust claim.
Casavant v. Cash Money Cheque Cashing Inc., 2009 BCCA 58: Leave to appeal denied from a decision (2008 BCSC 1556) refusing disclosure of representative plaintiffs' health records in a pay day loan class action. The court stated that there was no merit in the position that the defendants were entitled to conduct an in-depth medical inquiry in order to test the suitability of a representative plaintiff. The court noted "The only Canadian case to which I was referred, is Phaneuf v. Ontario (2007), 285 D.L.R. (4th) 727 (Ont. S.C.J.). In that case, it was held that Ms. Phaneuf was not disentitled to act as a representative plaintiff by reason of her mental illness: paras. 78 - 81. Leave to appeal that judgment has been granted, but on other issues: (2008), 291 D.L.R. (4th) 515 (Ont. Div. Ct.)."
Nguyen v. CP Ships, [2008] S.C.C.A. No. 473: Leave denied of decision to certify national opt out securities case in Quebec.
Berneche v. Canada, 2008 SCCA 443: Leave dismissed from order granting particulars and striking part of the claim in the Quebec branch of the "mad cow" case.
Harmengies v. Toyota: [2008] S.C.C.A. No. 173: Leave dismissed from decision refusing to certify action.
Option Consommateurs c. Novopharm Ltd.[2008] S.C.C.A. No. 346: Leave dismissed
Sagharian (Litigation Guardian) v. Canada (Minister of Education), [2008] S.C.C.A. No. 350: Leave dismissed from decision striking claim.

CLASS MEMBER CAN'T USE CLASS ACTION FOR PERSONAL APPLICATION PRIOR TO CERTIFICATION
Monaco v. Coquitlam (City), 2009 BCSC 248: Court refused application by non-party potential class member for certain relief in advance of certification.

DECERTIFICATION MOTION REJECTED
Pearson v. Inco [2009] O.J. No. 780 (S.C.): Court rejected application to decertify this long-running environmental contamination case. The court clarified the test for decertification stating "The moving party has, in my opinion, the burden of showing that the earlier decision would not have been made in the light of new evidence - including evidence of facts that have subsequently occurred. Subsequent facts - consisting, for example, of development that occur as the proceeding moves towards trial - may demonstrate that, contrary to the original finding, it is not manageable as a class action."
The application was based on a letter from Plaintiff's counsel indicating that he intended to rely on disclosures regarding contamination made prior to the September 2000 date that served as the trigger for the class approved by the court.
The court found that this did not undermine certification as the court was not "prepared to infer that it was necessarily assumed that there were no disclosures prior to September 20, 2000, or that such disclosures would not have had any negative impact on property values."
Further, the court relied on commitment made by Plaintiff's counsel that "it was not part of the plaintiff's case to assert that the earlier disclosures had a negative impact on property values".

SCOPE OF CERTIFICATION EVIDENCE CONSIDERED
Pro-Sys Consultants Ltd. v. Microsoft Corp., [2008] B.C.J. No. 1778: This was a motion brought by Microsoft seeking to prevent the plaintiffs from relying on a number of affidavits - primarily those of experts - in an upcoming certification hearing. The principal arguments made by Microsoft were:
(a) the affidavits are not proper reply evidence. Therefore the plaintiffs have split their case;
(b) the affidavits exhibit and refer to opinions of experts given in similar litigation in the U.S. That evidence is inadmissible because the authors of the opinions have not filed affidavits in this action; and
(c) portions of the affidavits are in the nature of either argument or judicial pronouncements.
The court held: "It is true that a certification is motion is to be heard as soon as possible and as efficiently and fairly as possible. Sometimes balancing those ends will entail the Court entertaining and deciding pre-certification motions and sometimes not. I do not think that it can be said that a motion dealing with the admissibility of a substantial body of evidence to which a party would want to respond is necessarily premature. The ruling on such a motion may in fact assist in the efficiency and fairness of the certification process by reducing the volume of inadmissible material at the certification hearing" The court went on to review the particular evidence, allowing some and rejecting others. On the application to cross examine the Plaintiff's experts "Suffice it to say that the courts have permitted cross-examination where there is a conflict in evidence on a point which is germane to certification. Whether to allow the cross-examination in those circumstances is discretionary and depends on the factors of each case. Such factors include the importance of the issue, whether the cross-examination will unduly delay the certification application and whether the cross-examination is likely to elucidate the relevant issue(s)."

CONFLICT OF INTEREST ALLEGATION DISMISSED
McKenna v. Gammon Gold Inc., [2009] O.J. No. 39: This decision addressed whether a law firm should be disqualified when it prosecutes an action against a subsidiary of its client for whom it has acted in unrelated matters. The defendants included the underwriting syndicate for the public share offering of the defendant Gammon Gold Inc. Two of the underwriter defendants complained that at the time the action was commenced, Siskinds was concurrently retained by the Bank of Montreal and Toronto Dominion Bank to act for them in consumer debt enforcement proceedings and some personal bankruptcy matters. The court held that there was no conflict of interest stating; "The underwriters and the banks are separate and sophisticated business and legal entities that are individually governed and autonomous. The banks had no reasonable expectation that their subsidiaries would be treated as clients."

DISCOVERY ISSUES
Pearson v. Inco Ltd., [2008] O.J. No. 3589 (S.C.): Court considered privilege issues on XFD.
Durling v. Sunrise Propane Energy Group Inc., [2008] O.J. No. 5031 (S.C.): This proposed class action arose out of an explosion and fire at defendant's facility in Toronto, which resulted in an evacuation order. There was an application for documents in the hands of the police and other agencies was made prior to certification. The court granted the order. The court did not rely on the fact that the case was a class action stating: "Although there is a broad discretion to make any order it deems appropriate, "the discretion conferred by s. 12 of the CPA is intended to supplement the Rules by accommodating the special nature of class proceedings. However, s. 12 is not designed to circumvent the normative Rules." "It would take extraordinary circumstances to allow pre-discovery discovery because of the nature of class proceedings". The court found that the plaintiffs did not require the information in order to plead. Nor was the information required for certification.
However, invoking the usual rules in relation to discovery, the court was satisfied that "...the delay in getting to the discovery stage of this class proceeding and in obtaining documents which depict the condition of the site following the explosion and fire constitutes extraordinary circumstances. In my view this is an appropriate case for early non-party production, but such productions should be as narrow as possible..."
Ring v. Canada (Attorney General), 2009 NLTD 39: Court confirmed that implied undertaking rule existed in Newfoundland. Plaintiff's counsel sought to use material obtained in this certified action in Newfoundland in a parallel Saskatchewan litigation. The court stated: "A bald statement that it is appropriate to allow the use of such material in allegedly parallel actions across the country is not convincing, particularly where the Saskatchewan Class Actions Act, ...provides that discovery in that jurisdiction is to occur after certification and the action has not yet been certified and the Saskatchewan court has ruled that the two actions are in fact dissimilar in many important respects."
Conseil québécois sur le tabac et la santé c. JTI-Macdonald Corp. 2009 QCCS 830: Court declined to order examinations of class members that did not go to the common issues.
Berry v. Pulley, [2009] O.J. No. 463 (S.C.): The court gave direction on certain refusals in this long running dispute about the rights of pilots on the merger of Air Canada and Canadian Airlines. There was also an earlier production motion at [2008] O.J. No. 4109 (S.C.-Master).

APPLICATION TO DISQUALIFY JUDGE REFUSED
Johnson v. British Columbia (Workers' Compensation Board), 2008 BCSC 1386: This certified judicial review procedure was sent back to the trial judge to consider the remaining issues. The defendant applied to disqualify the court. The cout refused stating: "WCB argued that, because I came to the conclusions I did in the Certification Decision and the Judicial Review Decision, there is a reasonable apprehension that I will be biased in considering the Procedural Issues, which involve consideration of the court's discretion. The flaw in this argument arises from the fact that my conclusions in the Certification Decision and the Judicial Review Decision are binding on every judge of this court unless overruled by the Court of Appeal. In considering whether a judge could come to a decision without the benefit of analysis by WCAT, every judge of this court must consider that in fact I did so in the Judicial Re-view Decision."

ABILITY TO EXTEND CLAIM PERIOD IN CLASS ACTION SETTLEMENTS RECOGNIZED
Canadian Red Cross Society (Re) [2008] O.J. No. 4114 (S.C.): In this CCAA proceeding there was an application to consider the jurisdiction to allow late claims. The court made reference to the existence of such a power in class proceedings stating: "In considering whether the court has jurisdiction to legitimise late and irregular applications, there are number of special features of the HIV Trust that distinguish it from trusts of a more traditional kind, and even the more closely analogous provisions of settlements of class proceedings un-der which - because of the inevitable imperfection of notice-dissemination programs - late-filed claims have been allowed from time to time."

FOSS V. HARBOTTLE AND CLASS ACTIONS
Everest Canadian Properties Ltd. v. Mallmann, 2008 BCCA 276: Appeal by Everest from a summary judgment dismissing its action against CIBC, a Canadian bank that provided advice to the trustees of the Del Cano real estate investment trust. Everest was a group of investors in the trust. Everest made an unsuccessful takeover bid which was thwarted by the trustees, who later sold the trust in a transaction which provided shareholders with a better return than they would have received had Everest's bid been successful. Everest's allegations against the trustees and CIBC involved a claim they breached their duty of care to the shareholders of the trust by failing to disclose other letters of intent and expressions of interest when the trustees recommended the shareholders approve the offer to purchase the trust that ultimately succeeded. The judge applied the rule in Foss v. Harbottle, striking the claim against CIBC as derivative and capable of being asserted by the trust itself. The appeal was dismissed. The losses and damages Everest complained of arose only as a consequence of Everest being a shareholder of the trust. The true substance of the claim was damage to the trust only. Everest failed to show it had a cause of action against CIBC that the other shareholders of the trust did not. Everest had no independent relationship with CIBC and did not suffer an independent loss in respect of wrongs allegedly done to the trust. Everest could not engineer around the rule in Foss v. Harbottle by framing its action as a class proceeding.

APPLICATION TO EXTEND TIME GRANTED
Hinton v. Canada (Minister of Citizenship and Immigration), [2008] F.C.J. No. 1252: Application to extend time for judicial review to add additional regns granted.

APPLICATIONS TO AMEND
Fortin c. Playtex ltée, 2008 QCCS 5580: Application to add new representative was not opposed and was allowed.
Holmes v. Jastek Master Builder 2004 Inc., 2008 SKQB 367, leave to appeal denied 2008 SKCA 159: Plaintiffs applied to amend to plead breach of fiduciary duty and breach of trust. The Plaintiff was allowed to plead the former, but not the latter.
Hinton v. Canada (Minister of Citizenship and Immigration), 2008 FC 1343: Long-running immigration fee case. This was application to expand the class to include those under further regulations. The application was granted.

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As always, this update will be posted on our blog, along with all the back issues: http://classactionsincanada.blogspot.com/

NOVA SCOTIA ACT PROCLAIMED
See Class Proceedings Act, 2007, c. 28 http://www.canlii.org/eliisa/highlight.do?language=en&searchTitle=Search+all+CanLII+Databases&path=/ns/laws/sta/2007c.28/20080818/whole.html
It is an Ontario model, with (1) costs, and (2) no extraprovincial opt-in requirement.
Only PEI and the Territories to go!

BC SECONDARY MARKET STATUTE PASSED
On July 4, 2008, amendments to the British Columbia Securities Act, R.S.B.C. 1996, c. 418 (the Act) came into force, introducing securities secondary market civil liability, and removing the reliance requirement.

APPLICATION TO STRIKE GRANTED IN PART
C.H.S. v. Alberta, 2008 ABQB 513: The court struck the claim by parents in this class action alleging a failure by the Alberta Government to file service plans in a timely fashion after obtaining temporary guardianship orders, leaving only the claim by the children themselves. The writer is co-counsel for the Crown.

NURSING HOME ACTION CERTIFIED
Elder Advocates of Alberta Society v. Alberta, 2008 ABQB 490: This class action alleging improper conduct by the government in the setting of nursing home rates was certified. The court struck the legislative negligence and fiduciary duty claims, but the Charter and financial supervision claims were left standing. The writer is co-counsel for the Crown.

VETERANS PENSION INTEGRATION CASE CERTIFIED
Manuge v. Canada, 2008 FC 624: The court held that this pension action did not need to be commenced by way of judicial review, and that even if it did, it was susceptible to conversion to a class action. The writer is co-counsel for the Plaintiff class.

PRICE FIXING CLAIMS NOT CERTIFIED
In Pro-Sys Consultants Ltd. v. Infineon Technologies AG., 2008 BCSC 831, the Court refused to certify a proceeding as a class action on the basis that liability could not be established on a class-wide basis without individual proof of loss. In Option Consommateurs v. Infineon Technologies a.g.,, 2008 QCCS 2781, certification was rejected with the court holding that there was a conflict of interest in seeking to represent manufacturers and distributors as well as consumers in a price fixing claim.

THIRD PARTY STAY APPLICATION ADJOURNED
Lam v. University of British Columbia, 2008 BCSC 990: In this "melting sperm bank" class action, an application by the third parties to stay third party proceedings against them was adjourned for consideration at a full certification hearing. The writer is counsel for one of the third parties.

CHILD WELFARE CASE MOVES FORWARD
L.(T.) v. Alberta (Director of Child Welfare): 2008 ABQB 114: Court affirmed certification of this "failure to sue" case on behalf of certain children in care, after the Plaintiff agreed to make amendments narrowing the class, and to add the Public Trustee as a defendant. The writer is co-counsel for the Crown.

CRIMINAL INTEREST RATE UPDATE
Bodnar v. The Cash Store Inc.: add: 2008 BCSC 714, leave to appeal decision to add denied 2008 BCCA 192: The lenders were added as defendants in this brokerage model pay day loan action. In other proceedings the court addressed outstanding discovery requests and a request that examinations take place of individual class members. The court held that it was premature to examine all class members: 2008 BCSC 715. The writer is counsel for the lead defendant in this matter.
MacFarlane v. United Parcel Service Canada Ltd. 2008 BCSC 654: Court declined to hear brokerage fee/criminal interest rate case on a summary basis, due to confusion about where the parties stood on the existence of a contract.
Tracy v. Instaloans Financial Solutions Centres (B.C.) Ltd.: 2008 BCSC 669: Class claim successful in this payday loan action.
MacKinnon v. National Money Mart Co.2008 BCSC 710, leave to appeal granted 2008 BCCA 292. Court denied a renewed application for a stay based on an arbitration clause.
Smith v. National Money Mart by adding [2008] O.J. No. 2248 (S.C.J.): The court held that the SCC's decisions in Dell and Rogers did not overturn the Ontario Court of Appeal's earlier decision in Smith that an arbitration clause is not a bar to a class action.

ARE ARBITRATION CLAUSES A BAR TO CLASS ACTIONS OR NOT?
Frey v. BCE Inc.: 2008 SKQB 79: The court amended the certification order to remove individuals subject to an arbitration clause, based on the Supreme Court of Canada's decisions in Dell and Rogers.
Seidel v. Telus Communications Inc., 2008 BCSC 933: The court held that the SCC's decisions in Dell and Rogers did not overturn the BCCA's decision in MacKinnon that arbitration clause is not a bar to a class action.
On the issue of the common law effect of Dell and Rogers, this leaves BC with two cases going one way, and one Saskatchewan case going the other way.
In other arbitration news, there were two Quebec cases enforcing Dell and Rogers by sending proposed class actions to arbitration : Fortin c. Rogers Communication sans-fil inc., 2008 QCCS 3855; 9064-1622 Québec inc. c. Société Telus Communications (Telus Mobilité) 2008 QCCS 2975.

ABUSE CLASS LIMITED
Richard v. British Columbia, 2008 BCSC 254: This certified class was limited in time based on a new Court of Appeal decision overturning earlier law on the start date for Crown liability. The writer is co-counsel for the Crown.
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CLASS COUNSEL DISPUTES WITH REPRESENTATIVE PLAINTIFFS
In Romanchuk v. Poyner Baxter LLP, 2008 BCPC 188, a stand alone small claims action was brought by a representative plaintiff against B.C. class counsel for time spent and reimbursement for moneys expended in the class action. The class action was settled in accordance with a formula for determination of individual entitlement. When this formula was applied to Mr. Romanchuk’s circumstances, he was not entitled to any benefits. Before the settlement was finalized, Mr. Romanchuk had expressed some concerns to his counsel with respect to the terms of the offer. These concerns led to a discussion between Mr. Romanchuk and the Ontario counsel prosecuting the same case. Following this discussion, Ontario counsel sent Mr. Romanchuk a letter stating that he would be compensated for his time:
"Mr. Wright wrote back to Mr. Romanchuk the same date, confirming that he had advised Messrs. Poyner and Baxter that the language for the affidavit had been settled, and advising Mr. Romanchuk that "therefore they [Poyner Baxter] have not proceeded to seek instructions from an alternative representative plaintiff." It appears from this that there had been something of a falling out between the claimant and defendant firm before the claimant’s meeting with Mr. Wright.
In his August 20 letter, Mr. Wright also stated:
"I understand that you will be compiling for me a listing of activities undertaken on behalf of the class as well as your estimates of the time expended. While I will, as discussed, require the documentation from you in order that we may satisfy both ourselves and the Court with respect to the appropriateness of any expenses or hourly rates paid, I can confirm the contents of our conversation. It is our opinion that 150 hours would be a reasonable amount of time for you to spend up to the date of the approval of the settlement. Additionally, while the future is always somewhat uncertain, an estimate of 50 hours for additional obligations and commitments would seem reasonable to me. In the only case decided on point in Canada, the hourly rate ordered was $40.00 and we are prepared to abide by the decision in that case. Therefore, upon receipt of appropriate material from you, and upon approval of the settlement and the awarding of class counsel fees, we will be prepared to compensate you as outlined above. Additionally, I would be pleased to reimburse you for actual expenses either estimated or documented where possible (in particular, for the months of July or August forward)."
Interestingly, Mr. Wright does not appear to have sent Poyner Baxter a copy of this letter, and Mr. Baxter says they were unaware of it until recently. Baxter was somewhat incredulous that it had been written, as it was his understanding that far from court approval of compensation for a representative plaintiff, the courts actually frowned upon payment to individuals for acting as plaintiffs.
Mr. Romanchuk sought to have Mr. Wright called as a witness and although he was in Ontario and had not been summonsed to court, conveniently, we were able to reach him by telephone from the court room, and he obligingly agreed to testify. He candidly stated that he did not recall having sent a copy of the letter to Poyner Baxter, and since it did not bear a "cc" notation, it seemed quite likely he did not. He said that the Ontario plaintiff was compensated out of counsel’s fees, but that the compensation of the B.C. plaintiff would have been left with Baxter to decide based upon the applicable practice in the B.C. courts. It was Wright’s view that the amounts he set out in his letter to Romanchuk represented a reasonable time expenditure on a case of this kind. He acknowledged that more recently courts did not want to review these arrangements between plaintiffs and their counsel...
Mr. Baxter in his testimony states that he was not aware of the August 1997 letter from Wright to Romanchuk until Mr. Romanchuk enclosed it in his April 2000 letter, and that he was shocked when he saw it. He states that if he had known that Romanchuk would be seeking compensation, he would have included this claim in the request for Court approval filed in November 1997. At that time it was not the practice in B.C. to include these claims, nor to compensate plaintiffs. Mr. Baxter expressed the view that the documentation provided would not have been sufficient for a court application."
While the court found that the letter was not copied to the B.C. class counsel, the Court concluded that B.C. class counsel were bound by its terms. It appears that no disclosure was made of this arrangement to the court on settlement approval. While approval of a payment to Mr. Romanchuk was not being sought in the context of the approval of the settlement, but afterwards, the Court found that this posed no difficulties as payment would come from counsel’s fees in any event. The court stated:
"It appears from the few reported cases that courts, at least in Ontario, have been willing to approve compensation to representative plaintiffs for "extraordinary contributions" as part of the process of approving counsel’s fees. Such payments come out of counsel’s fees, and it would appear to be on that basis that the courts have been involved in scrutinizing compensation to plaintiffs, i.e. to determine whether counsel’s fees reasonably included such an amount as compensation: Garland v. Enbridge Gas Distribution Inc., [2006] O.J. No. 4907 (S.C.J.); Windisman v. Toronto College Park Ltd, [1996] O.J. No. 2897 (G.D.). However, these amounts are treated as a reduction in counsel’s fees and do not increase the award: Garland, para. 40.
In this case, no court approval was sought. It appears Baxter was genuinely unaware of the claim until after the approval was obtained. However, in my view, nothing turns on that, given that the compensation if it were approved would have come out of counsel’s fees in any event. I have already found, in any event, that Baxter accepted liability for reasonable compensation."
In determining the appropriate level of compensation, the Court reviewed the other decisions on compensation for the representative plaintiff, and noted that the relevant factors included involvement from the outset, active pursuit of litigation and salutary results of the action. Taking these factors into account, the Court awarded Mr. Romanchuk the sum of $4,000.
Fantl v. Transamerica Life Canada, [2008] O.J. No. 1536 (motion to set aside a notice of change of solicitor); [2008] O.J. No. 2593 (S.C.J., Div. Ct) (leave to appeal granted): In this case, class counsel sought an order to compel the plaintiff, Mr. Fantl (a retired lawyer), to accept him and his new firm as solicitors of record and, if necessary, to replace Mr. Fantl as proposed representative plaintiff with two other individuals. Perell J. refused to accede to this order, thus allowing Mr. Fantl to sever his relationship with the then existing lead counsel on the basis that the case did not warrant interference with the representative plaintiff’s decision, as Mr. Fantl had satisfied his duty of representation by appointing adequate and competent counsel in present-counsel’s place. In reaching this decision, Perell J. held that the Court should defer to the plaintiff's choice, unless that choice is "inadequate". Further, he held that "The test of representation for the class in a class action is one of adequacy not of superiority and it is not a test of what is in the best interests of the class or proposed class." (emphasis added) See [2008] O.J. No. 1536 at paras. 107 and 108]. Shortly thereafter, Lederman J. held that Perell J.'s decision as to the test to be applied to protect the putative class, was open to "very serious debate", and the decision has significant implications for the development of class action principles generally. He therefore granted leave to appeal to the Divisional Court.": [2008] O.J. No. 2593 at para. 9.

NATIONAL CLASS ISSUES
Wuttunee v. Merck Frosst Canada Ltd., 2008 SKQB 229 (granting certification), 2008 SKCA 79 (allowing leave to appeal by party); 2008 SKCA 80 (denying leave to appeal by non-party): The court certified a near national class action. This was the first motion under Saskatchewan's ULCC "national carriage motion". Counsel for a proposed Ontario class was given notice and the right to appear. The court relied primarily on the fact that the action would move forward more quickly in Saskatchewan. Quebec was excluded on the basis that there was already a judgment authorizing a Quebec class. The court held that it should not engage in "grading" different class counsel, but rather should just confirm "competence".
The Defendant was granted leave to appeal. However, the court denied the Ontario group leave to appeal stating:
"As will be seen from a review of s. 39 of the CAA, a "party" has an automatic right of appeal from a judgment on common issues and an order pursuant to ss. 31 to 37 (see s. 39(1)). A "party" also has a right to apply for leave to appeal the certification, the refusal of certification or the decertification of an action (see s. 39(3)). But "a class or subclass member, a representative plaintiff or a defendant" has a right to apply for leave to appeal the determination or dismissal of an individual claim only (see s. 39(2)). Thus, the authority under s. 39(3) of the CAA is limited to granting leave to a "party." Is the Tiboni Group a party? They are styled as a "third party" on the judgment under appeal,[6] but no formal third party order has been made. Indeed, on my review of the file, the Tiboni Group did not apply to be named as a party. Simply naming an entity as a third party on a style of cause does not confer that status. Nor is there any section comparable to s. 5.1 of the CAA conferring a right upon a person who has received notice of an application for certification pursuant to s. 4(2)(c) to make submissions on an appeal. No other authority having been cited to me, I do not see any basis upon which to conclude otherwise than that I do not have the authority either to grant or deny leave.
I appreciate that this decision may very well create difficulties in a case where the prospective defendant in a multi-jurisdiction class action does not contest the order made under s. 6.1(1). In this case, however, Merck does contest this aspect of the Order, as well as the certification of the action as a class action for Saskatchewan residents, and leave has been granted to Merck to appeal the Order.
Given this, it may be appropriate for the Tiboni Group to apply to the panel to make submissions, perhaps as an intervenor, however I do not want to presume to anticipate what the panel may wish to entertain by way of an application, or make by way of an order. The application is dismissed."
In the author's view this latter decision is wrongly decided. The opposing group should have the ability to seek an appeal of the decision. Otherwise, there is no ability to force conflicting decisions up through the system for eventual SCC resolution if necessary. If there is any ambiguity in the statute, this should be amended.

Tiboni v. Merck Frosst Canada Ltd., [2008] O.J. No. 704 (S.C.J.) (disqualification of counsel); [2008] O.J. No. 1048 (reconsideration of disqualification); [2008] O.J. No. 2996 (S.C.J.) (certification): An Ontario court certified a near national class action relating to Vioxx even though a national class had already been certified in Saskatchewan. The court rejected an application for a stay of the Ontario proceeding pending an appeal of the Saskatchewan decision. The proposed Ontario class did exclude Saskatchewan and Quebec. Quebec certified a Vioxx class action in Pelletier c. Merck & Co. inc. 2008 QCCS 2173 (certification).
The Ontario court based its decision to certify in the face of the Saskatchewan decision on the following factors:
(1) counsel for the class in the Saskatchewan action did not respect the earlier decision granting carriage to the group advancing the Ontario group, rather than an Ontario action by counsel for the Saskatchewan class;
(2) the Saskatchewan judgment was based on a different test that did not place as much emphasis on quality of counsel;
(3) there was no basis for the Saskatchewan court to suggest that there would be more delays in Saskatchewan;
(4) the defendant was talking out of both sides of its mouth, in that its submissions on certification was that it would prefer 2000 individual trials. Hence, having 2 parallel cases on the same issue, was of little moment.
The court called for a solution to the admitted problem, but issued a critique of the proposed ULCC solution. He stated that the ULCC proposal "arguably, would give undue deference to the proceeding that is the first to be certified".
(Ed note: The ULCC proposal does no such thing. It just sets up the forum where the issue of "where is the best place" will be argued, with all parties present. FOR BETTER OR WORSE, THIS MOTION HAS TO BE HEARD SOMEWHERE AND IT SHOULD BE SOONER RATHER THAN LATER. The only way it could be said can say that the first court will be given "undue deference" is to assume the federally appointed judges hearing that first certification motion will be biased towards their own provincial jurisdiction. Even if that were a proper assumption, which it is not, the SCC should always present as a backup to correct such bias.)
The Ontario court once again approved a waiver a tort common issue.
The class included all person who were prescribed and ingested Vioxx (which included 350,000 people) even though there was evidence that only 2000 people would have cardiovascular problems. The court criticized the use of "claim to have suffered harm" limits to class definitions stating: "My skepticism is not based simply on the fact that a class criterion that leaves a person who has not opted out of a class free to decide whether he or she is a class member might not be considered to be "objective" in any of the myriad senses in which that word is used." (para.75).."It is arguably a verbal device that achieves nothing except to meet an argument that appears to be based on a misreading of Hollick." (para.77). Independently of the above comments, I note that the plaintiffs' claims for pecuniary damages, and for a disgorgement of revenues or profits, are made on behalf of all members of the class as defined." (para.80).
The court found that the possibility of an aggregate assessment of damages is to be determined by the judge at a common issues trial and, strictly, it need not be included in an order for certification. (para.94)
On preferable procedure, the court made one notable comment: "The in terrorem forecast of Merck's counsel that certification would be followed by thousands of spurious claims that would "choke out" a few possibly viable claims appears to ignore the maligned costs regime in this jurisdiction" (Note that the ability to award costs at the individual issues stage also exists in the so-called "no costs" jurisdictions.).

Hocking v. HSBC Bank, 2008 QCCA 800: The Quebec Court of Appeal affirmed the lower court decision not to enforce this national opt-out class action as certified in Ontario.
Brito v. Pfizer Canada inc., 2008 QCCS 2231: Quebec certifies its own national opt out class. The court stated that the required real and substantial connection test was met given that the defendant was headquartered in Quebec. The court noted that it was at liberty to apply local law to individual claims if necessary. The court found that the benefits of an opt-out structure (more deterrence, better economies of scale) outweighed the advantages of an opt-in structure. The court distinguished Hocking v. HSBC, on the basis that in Hocking the defendant was not resident in the jurisdiction whose order was sought to be enforced.
This trend continued with a national class being certified in the securities case Nguyen v. CP Ships Ltd., 2008 QCCS 3817. It appears that Quebec has adopted the "If you can't fight 'em, join 'em" approach!
Ledyit v. Bristol-Myers 2008 ONCA 372: Dismissing appeal from decision allowing Ontario action to continue with Quebec class representatives. The court stated:
"We agree with the reasons of the motion judge that Ontario courts have jurisdiction over this action because Apotex Inc. is resident in and carries on business in Ontario. Even if we accept the appellant's argument that the real and substantial connection test must nonetheless be applied, the factors that inform that test support the conclusion that Ontario has jurisdiction simpliciter on the record in this case. This is particularly so where the representative plaintiffs are prepared to come to the jurisdiction where the defendant resides and carries on business"
The court noted that the defendants could bring an forum non conveniens application at a later date.

Sollen v. Pfizer, [2008] O.J. No. 866 (S.C.J.): Merchant Law Group was allowed to discontinue their Ontario action, a precondition to the lifting of the stay of a parallel Saskatchewan action. The court also declined to enjoin the Saskatchewan action stating:
"In these circumstances, it is true that there is, strictly, now no decision in Saskatchewan that would grant, or deny, a stay of the Saskatchewan action on the ground of forum non conveniens. The question was, however, considered fully by Klebuc J. and his finding that there was no more convenient jurisdiction than Saskatchewan was not disturbed on the appeal. I am satisfied that considerations of comity, and the respect owed by one Canadian court to another, require his views to be given no less deference and respect than they would presumably receive if the question was raised again on another motion in the same court... 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... 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 recognise 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.... I am of the opinion that deference must be shown to the finding at first instance in the Saskatchewan action, and that the cross-motion of Boehringer Canada should be dismissed."

If anyone can make sense of this mess, let me know!!

MERCHANT LAW GROUP GETS PAID IN INDIAN RESIDENTIAL SCHOOLS SETTLEMENT
Fontaine v. Canada, 2008 SKQB 271: Court found that Mr. Merchant's firm was now entitled to its first $25 million under the terms of the IRS settlement agreement. The verification process for possible additional amounts continues.

ABORTION RIGHTS CASE CERTIFIED UNDER OLD RULES
Jane Doe 1 v. Manitoba, 2008 MBQB 217: Plaintiffs sought a declaration that the funding regime under The Health Services Insurance Act for therapeutic abortion services violated their rights under the Charter, as well as for recovery of special, general, aggravated and punitive damages.
The government stated that the representatives were not adequate as they were not prepared to release their identity. The government rejected this concern stating:
"In L.(T.) [v. Alberta, supra] the court referred to the case of B.(B.) c. Québec (Procureur général) (1997), 1997 CanLII 10220 (QC C.A.), [1998] R.J.Q. 317 (Que. C.A.) to support the proposition that members of the class are entitled to know who will represent them. Slatter J. stated:
34 When considering a publication ban, there are special considerations that apply to a class action. When a person comes forward and purports to be a representative plaintiff, there is much to be said for the argument that the other members of the class are entitled to know who it is that purports to represent them: se B. (B.) c. Québec (Procureur general) (1997), 1997 CanLII 10220 (QC C.A.), [1998] R.J.Q. 317 (Que. C.A.). ...
The case of B.(B.) is different from the instant case. In that case, a person who had been acquitted on a charge of drunk driving was seeking leave to commence a damage action, without disclosing his identity, against the government on behalf of all persons who had been charged and acquitted.
Counsel for the Government also argued that a motion of this kind should be brought early in the proceeding and not when the case is nearly ready for trial, as this one is. In Neufeld, Hamilton J. (now J.A.) referred to Dutton (at ¶49) and referred to the need to bring this motion "before any decision is made that purports to prejudice or otherwise affect the interests of the class members" (Neufeld at ¶34). Counsel did not refer to any specific prejudice that may have been caused to class members because of the delay in bringing the motion. In the circumstances of this case, I find that no prejudice has been caused and that nothing has been done to affect the interests of the class members."
The court also rejected the test case alternative stating:
"As for the suggestion that the plaintiffs proceed with a test case, that route is not followed generally without the concurrence of all potential claimants. Branch, Class Actions in Canada, loose leaf ed. (Aurora: Canada Law Book), stated at ¶4.945:
4. Test cases
Defendants often suggest that a test case would be just as efficient. However, a true test case requires the agreement of the parties; a court lacks jurisdiction to order that a party’s rights will be decided in a case in which he or she is not a party. ...
At ¶2.110, the author also stated:
... Test cases require that the defendant and each prospective plaintiff agree to be bound by the result....
In Murphy v. BDO Dunwoody LLP, [2006] O.J. No. 2729, the court held that it had no jurisdiction to order a binding test case. In CIBC v. Deloitte and Touche, [2003] O.J. No. 2069, the Divisional Court held that, "Absent agreement by the defendants, there can be no test case which binds them." In one Manitoba case, Ranjoy Sales and Leasing Ltd. v. Winnipeg Mortgage Exchange Ltd. Estate, [1982] M.J. No. 11; reversed [1982] M.J. No. 36, arising from the collapse of Winnipeg Mortgage, a series of test cases were commenced, effectively, without the agreement of all potential claimants. Practicalities supported the initiation of the test cases.
I find that there is no overarching issue that outweighs the benefits of allowing the class action to proceed or that justifies refusal of the order for certification. In particular, I disagree with the suggestion that a test case would provide a satisfactory solution."

PARTICULARS
The importance of the originating pleadings in the Court’s consideration of common issues was highlighted in Halvorson v. British Columbia (Medical Services Commission), 2008 BCSC 1068, where the Court ordered the Plaintiff to provide particulars of his claim, explaining: "Despite the plaintiff's apparent reluctance to commit himself to specific positions at this point, he must meet some basic requirements before the defendants can be required to plead. The state of pleadings at the certification stage is important, as it is those pleadings which will inform a consideration of the common issues. The court cannot be expected to determine common issues if the plaintiff is still hoping to keep all his options open. It is not important for the present purposes whether the lawyer for the defendants really knows what the case is about because he has been involved in it for years. What is important at this stage, as I have said before, is that the issues be pleaded formally and with precision. (at para.13)"
Engler-Stringer v. Montreal, 2008 QCCS 3434: Court ordered some further particulars in this certified class action.

PACEMAKER CASE CERTIFIED
Lefrancois v. Guidant Corp (2008), 166 A.C.W.S. (3d) 432, [2008] O.J. No. 1397 (S.C.J.) (certification pending amendment to case management plan), [2008] O.J. No. 2402 (S.C.J.) (certification): Usual products liability analysis.

MERITS DETERMINATIONS
Sharbern Holdings Inc. v. Vancouver Airport Centre Ltd., 2007 BCSC 1262 (common issues trial); 2008 BCSC 245 (settle terms of order – common issue); 2008 BCSC 442 (certification of remedies issues and production of documents); 2008 BCCA 250 (strike portions of factum): The class was successful in this investment action, and the court went out to certify certain additional remedies issues.
Macaraeg v. E Care Contact Centers Ltd., 2006 BCSC 1851 (ruling on points of law), rev’d 2008 BCCA 182: the defendants argued that the Plaintiff was not entitled to enforce her statutory claim for overtime pay through a civil action. The issue was framed as a point of law, and the trial judge held that the provisions in the Employment Standards Act were implied contractual provisions that could be pursued in a civil action (in this case, a proposed class proceeding). The Court of Appeal reversed the trial judge’s decision, reasoning that as the Employment Standards Act provides a complete and effective administrative structure for granting and enforcing employee rights, such rights could not be enforced in a civil action.
Denis v. Bertrand & Frère, [2008] O.J. No. 1284 (S.C.J.): Individual damages assessed in this certified action.
Vidal v. Placement Etteloc, 2008 QCCS 2434: Class was unsuccessful against the remaining government defendants in this tax shelter class action.

LIMITATION PERIOD IN REMEDIAL TRUST PRICE FIXING CASE
Sun-Rype Products Ltd. v. Archer Daniels Midland Co., 2008 BCCA 278: The Court of Appeal affirmed an earlier decision stating that the proper limitation period was 10 years. The Court also restored the cause of action in equitable fraud, and held that postponement applied in the case of the individual (but not the corporate) plaintiff.

WCB CLASS ACTION SENT BACK
Johnson v. British Columbia (Workers’ Compensation Board), 2008 BCCA 232 (appeal of judicial review): The court overturned the judicial review granted in this certified proceeding on the basis that the matter was not before the Tribunal appealed from, and sent decision back to the court for direct consideration as to whether the court could hear the challenge directly.

QUIZNO'S CLASS ACTION REFUSED CERTIFICATION
2038724 Ontario Ltd. v. Quizno's Canada by adding [2008] O.J. No. 610 (S.C.J.) (scope of common issues pending certification hearing); 89 O.R. (3d) 252 (S.C.J.) (certification): In a preliminary motion the defendants complained about new common issues put on the table shortly before hearing. The court held that the defendants would not be prejudiced by the inclusion of certain common issues, but did hold that in relation to certain others there may have been more cross-examination done if the defendants had been aware of the plaintiff's intention.
At the certification hearing proper, the Court refused to certify this franchisee class action because individual issues overwhelmed common issues. The court stated:
"I conclude that it was not shown by the plaintiffs that damages or the impact of the alleged price maintenance, if any, suffered by the franchises can be proven in the aggregate or on a class-wide basis. This conclusion removes proposed common issue (f) as a common issue and has the effect of an avalanche that buries the proposed common issues with an absence of commonality and a proliferation of individual issues. Thus, for instance, proposed common issues (a) and (b) above (namely: (a) Have the Quiznos Defendants, or any of them, engaged in conduct contrary to s. 61(1) of the Competition Act? and (b) Have the defendants, or any of them, engaged in conduct that amounts to civil conspiracy?) depend upon showing: individual instances of price maintenance; individual instances of suffering loss in the "but for" world in order to measure the impact of losses; and individual claims of damages for the tort of conspiracy. Similarly, proposed common issues (d) and (e) are individual, not common, issues. Proposed common issues (g) and (h) have commonality but, standing alone, they would not sufficiently advance the litigation to qualify as common issues.
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 refused to stay the action based solely on a "no class action" clause stating:
"As already noted above, the Quiznos Defendants rely on Z.I. Pompey Industries v. ECU-Line N.V., supra, and several other cases for authority that an exclusive jurisdiction clause in a contract should be respected and enforced by the courts, unless there is "strong cause" to override the contract. The point to note is that notwithstanding the freedom of the parties to contract as they will, this line of authority does not categorically preclude a court from overriding the parties' contract if there is strong cause to do so. Consistency favours applying the rule for exclusive jurisdiction clauses also to contracting out clauses, and having regard to the interests of the public and of the administration of justice, judicial economy, access to justice, and behaviour modification could provide strong cause to not enforce a contracting out clause.
The second line of argument requires an express or implicit finding that the contract is illegal on the grounds of public policy... Technically speaking, an agreement to preclude class proceedings but to allow individual proceedings does not oust the jurisdiction of the court but, practically speaking, it may have that same effect, because if victims of wrongdoing do not have access to justice without the procedural vehicle of a class proceeding, the court will not have an opportunity to exercise its jurisdiction. In any event, whether or not the jurisdiction of the court is ousted, a contract that precludes class proceedings interferes with the administration of justice. As already noted, such an agreement denies the administration of justice the opportunity of economies of judicial resources and it denies the public the access to justice and behavioural modification provided by class proceedings....An agreement to preclude class proceedings is not an obvious evil, and its enforcement should be determined by the balancing of public interests. An appropriate place to do that balancing is in the context of determining the preferable procedure. In the case at bar, for the purposes of deciding the stay motion, I have assumed that the criteria for certification were satisfied. In that context, the Quiznos Defendants, upon whose contractual rights the other defendants would coattail, offer nothing but their contractual right as justification for staying the litigation. In my view, this is insufficient to justify a stay, and I would not grant one.
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."

TRAVEL CASE DENIED CERTIFICATION
Lavier v. MyTravel Canada Holidays Inc., [2008] O.J. No. 2753 (S.C.J.): Thee Court refused to certify a class action for plaintiffs’ allegedly suffering a virus due to negligence or failure to warn by a tour operator. In weighing the costs and benefits, the Court explained (at para. 72) that "Class proceeding may perhaps be necessary where the claims are so modest that they are not economically viable to litigate as individual claims, but the case at bar does not necessarily fall within that category of case and individual Small Claims Court or simplified procedure actions would appear to be economically viable for individual claimants, particularly for those who would not have a difficult time showing that the epidemiological conditions at the resort had become notorious because of media exposure."

APPEALS
Heward v. Eli Lilly & Co, [2008] O.J. No. 2610 (S.C.J. (Div. Ct.): Court denied appeal of this certified products liability certification. The court commented on the ongoing debate on "waiver of tort" stating:
"More importantly, the Court in Pro-Sys Consultants rejected the plaintiffs' proposed common issues relating to waiver of tort in their entirety based on that Court's legal determination that "liability to a class ... requires that the wrongful conduct actually impacted the class" (para. 149). Justice Masuhara held that proof of harm is a requisite element of liability in a claim based on waiver of tort. Moreover, he found that the plaintiffs failed to put forward a sufficient means of proving the issue of liability on a class-wide basis.
30 The approach of Justice Masuhara can be contrasted with that adopted by this Court in Serhan, supra. As stated previously, in Serhan, in dismissing the appeal of the certification judge, Epstein J. emphasized that waiver of tort is an uncertain area of law, the requisite elements of which have yet to be determined in Ontario. She took particular account of the debate surrounding whether proof of loss is necessary for liability, without adopting a definitive position. Moreover, when the defendants in Serhan similarly relied on the British Columbia Supreme Court judgment in Reid v. Ford Motor Co., [2006] B.C.J. No. 993, wherein Gerow J. expressed concern about a cause of action that eliminates the requirement to prove loss, Epstein J. stated:
I share this concern, but am of the view that it should be considered and resolved on the basis of a full record. (para. 67)
...In our view, the defendants' assertion in the proceeding before this Court mischaracterizes the embryonic nature of the waiver of tort doctrine. In certifying the pertinent common issue, above all, Cullity J. recognized the uncertain state of the law and the need for a full evidentiary record in order to make a proper determination."
The court also dealt with the present obsession with "aggregate damages" stating:
"If on a full evidentiary record, the trial judge were to find that proof of the amount of relief based in waiver of tort cannot be assessed in aggregate, a class action remains the preferable procedure. An aggregate award of damages is not a prerequisite for certification. If the other, unchallenged common issues related to the waiver of tort claim are resolved favourably, the proceeding will still have advanced the claims of the class as a whole. This is so particularly in consideration of s. 25 of the CPA which confers broad jurisdiction on the common issues trial judge to develop pro-cedures for individual participation in determining the allotment of relief. It is not just the common issues trial which is to be considered in determining whether a class action is the preferable procedure."
Harmegnies v. Toyota Canada inc., 2008 QCCA 380: Court of Appeal upheld this refusal to certify the "Access Toyota" price maintenance action. In related news, a parallel BC case was also refused certification: Steele v. Toyota Canada Inc., 2008 BCSC 1063.
Jeffrey v. London Life (unreported, April 25, 2008) 46300&47959 (Div.Ct.): Leave granted in this decision granting certification. The leave judge questioned the link between the availability of contingency fees and "access to justice". Reminds me of the Rice Krispies commercial - "What did you think access to justice was made of?". The lack of access to justice is was created by inability to pay a lawyer. Contingency fees obviate that.
Bédard v. Kellogg Canada Inc. 2008 FCA 125: Court of Appeal upheld refusal to certify misrepresentation action.
Option Consommateurs v. Novopharm Ltd., 2008 QCCA 949: Court of Appeal upheld this refusal to certify a pharmacist kick-back action.
Axiom Plastics v. Du Pont, [2008] O.J. No. 1973 (S.C.J. (Div.): Court denied leave to appeal decision certifying this price fixing case.
Hinton v. Canada (Minister of Citizenship and Immigration), 2008 FCA 215: Court agreed that judicial review could be converted to a class action before the judicial review procedure was complete.
Ducharme v. Solarium de Paris Inc, [2008] O.J. No. 1558 (S.C.J. (Div. Ct.): Court denied appeal of this failed products liability certification. The court relied exclusively on the conflict of interest point stating: "The motion judge was, therefore, quite correct in concluding that the OBC was found to have been complied with in each case where a building permit was issued. The plaintiff, in the issues as framed in her factum, seeks a contrary ruling from the court. Therein lies the conflict of interest." The court noted that there would be no conflict in a pure tort claim, but that the necessary "danger to the health and safety of the occupants" had not been pled. The court did grant leave to amend however.
Risorto v. State Farm, [2008] O.J. No. 1796 (S.C.J. (Div. Ct.): Leave granted of decision allowing plaintiff to file additional evidence on certification.
Sagharian (Litigation guardian of) v. Ontario (Minister of Education) by adding 2008 ONCA 411, [2008] O.J. No. 2009 (C.A.): Court struck remaining age discrimination claim, but gave leave to amend plead a claim based upon the duty of the Crown and the school boards to accommodate and a denial of that duty.
Peter v. Medtronic Inc,[2008] O.J. No. 1916 (S.C.J. (Div. Ct.): Court refused leave to appeal the decision to certify.
Ragoonanan Estate v. Imperial Tobacco (2008) 54 C.P.C. (6th) 167 (Div. Ct): Court dismissed appeal of order refusing to certify fire-safe cigarettes action. The court made a few comments of note:
On class definition: "In my opinion, submitting entirely fresh definitions on appeal is not appropriate. It is significantly different from what has happened in the past where a reviewing court has reworked by narrowing in scope an existing definition that was placed before the motion judge. Regardless, with respect to the first new definition I accept the respondent's submission that it, not mandating that a fire occur on upholstered furniture or on a mattress, bears no rational relationship to the proposed common issues. I also accept the respondent's submission with respect to the second new definition that it is even less connected to the proposed common issues and does not require that the cigarette manufactured by the respondent start the fire. As submitted by counsel for the respondent, under the proposed second definition "a person who purchased (the respondent's) cigarette, whose house was burned down by a damaged fuse box would be in the class, as would the smoker of the respondent's cigarettes whose house was burned by an arsonist."
On preferability: "The main submission by the appellants is that a class action is the preferable procedure as individual actions will be too expensive for most if not all of the class members. Counsel submitted that a class action "has to be the preferable procedure because it is the only procedure". In paragraph 78 of his reasons, Cullity J. concludes in part as follows: "... while proof of a breach of a duty of care would be an essential step in establishing liability, the plaintiffs have not persuaded me that, notwithstanding the existence of the disputable individual issues that would remain, such proof would sufficiently achieve the objectives of access to justice, or judicial economy. The procedure under the CPA is not appropriate, or available, in every case where there are common issues." In my opinion Cullity J. was correct in rejecting that submission on the basis that to do otherwise would mean that if an individual lawsuit would not be viable a workable class proceeding has to be considered to be a preferable procedure. Such a finding would ignore the provisions of specific requirements of s. 5(1). What permeates Cullity J.'s carefully reasoned decision on these points is his finding that the individual issues that would have to be determined in each case simply overwhelm any benefit that may be available by a determination of the 2 common issues."
The Divisional Court also refused to interfere in the decision declining to award costs to the defendants: "Cullity J. had opportunities to assess the extent to which fees and disbursements ought to be allocated to one motion or the other. While the certification motion was dismissed, his finding that the public interest was engaged is demonstrated by the enactment of legislation by Parliament that deals with the very issue in the case. He was uniquely situated to make the costs order on the certification motion taking into consideration the earlier costs disposition. I am not persuaded that there are "strong grounds" to find that he erred in exercising his discretion."

COSTS
Canadian Alliance of Pipeline Landowners' Assn. v. Enbridge Pipelines Inc. [2008] O.J. No. 1615: $150,000 awarded in favour of two defendants ($75,000 each) flowing from dismissal pre-certification.
McLaine v. London Life Insurance Co. [2008] O.J. No. 2360 (S.C.J. (Div. Ct.): In this mortgage pre-payment case the court awarded $160,000 to the defendants relating to the failed appeal of a refusal to certify. The court found that the action was not a test case, nor brought in the public interest. The court did make some general statements on the proper approach to costs:
"Our Court has said that class proceedings, "... should not be accorded any special treatment in the disposition of costs." See: Gariepy v. Shell Ore Co., [2002] O.J. No. 3495 (S.C.J.). This, however, was followed by more recent findings of the Court of Appeal in Pearson, supra, where Mr. Justice Rosenberg said that although s. 31(1) of the CPA does not replace the broad discretion given to Judges under s. 131 of the Courts of Justice Act, one must look at the factors in s. 31(1) of the CPA as well. For an extensive analysis of this issue and the case law governing this, see Ruffalo, supra, paragraphs 38 to 52 inclusive. In particular, Mr. Justice Perell, in Ruffalo, supra, cites paragraph 32 of the decision of Mr. Justice Winkler, as he then was, in Caprito v. Imperial Tobacco Ltd. (2005), 74 O.R. (3d) 728 (S.C.J.) where he finds that "special weight" must be given to the factors in s. 31(1) of the CPA. We have weighed those factors and in reaching our conclusion, have balanced this with the factors to be considered under Rule 57.01 and our discretion in s. 131 of the Courts of Justice Act."
Peter v. Medtronic Inc, [2008] O.J. No. 1700 (S.C.J.) (costs): The Plaintiff sought $328,000 in costs for this successful certification motion. The court granted $245,000 stating:
"According to the plaintiffs' costs outline, 16 lawyers, 6 students and two law clerks -- a total of 25 legal professionals from three law firms -- spent close to 1,600 hours on behalf of the plaintiffs on the certification motion. At least two senior counsel appear to have been involved in virtually all steps taken. While the hearing was argued over four days, no interlocutory steps were taken by either party, numerous case management conferences were not held prior to the certification hearing, and no cross-examinations were conducted with respect to any of the affidavits filed. The plaintiffs filed seven affidavits: an affidavit of each of the five representative plaintiffs, all based on the same template; one lawyer's affidavit; and one expert's affidavit. Medtronic filed three affidavits. The certification motion record was relatively compact. I agree that the amount sought is high. While I appreciate that plaintiffs' counsel may seek, or indeed need, to share the risk of acting on a contingency fee basis with other firms, or to expand the counsel group to resolve carriage disputes, the number of lawyers involved in this case is nonetheless excessive. Inevitably, additional time is spent in communication among counsel, and inevitably, there is duplication of effort. I have reduced the amount sought by the plaintiffs to reflect this."
W.A. v. St. Andrew's College, [2008] O.J. No. 1678 (S.C.J.): Class action dismissed as a result of plaintiff's failure to pay costs.
KRP Enterprises Inc. v. Haldimand (County), [2008] O.J. No. 3021: $20,000 awarded to Plaintiff on failed leave application.

SETTLEMENTS
Martin v. Barrett, [2008] O.J. No. 2105 (S.C.J.): Pension case. In a later decision the court found that the Law Foundation levy only applies to the amount net of counsel fees, administration fees, notice costs, disbursements, and other expenses applied prior to distribution of the settlement sum to class members: (unreported, May 12, 2009) 03-CV-244195 CP (S.C.)
Donnelly v. United Technologies, [2008] O.J. No. 2661 (S.C.J.): Furnace defects.
Nutech Brands Inc. v. Air Canada, [2008] O.J. No. 1065: Air freight price fixing. The court granted conditional certification pending a later settlement approval hearing.
799376 Ontario Inc. (c.o.b. Lonsdale Printing Services) (Trustee of) v. Cascades Fine Papers Group Inc., [2008] O.J. No. 2671 (S.C.J.): Price fixing of carbonless paper sheets.
Corless v. KPMG LLP, [2008] O.J. No. 3092 (S.C.J.): Unpaid overtime.
Antoniali v. Coquitlam (unreported, May 12, 2008) L022644 (B.C.S.C.): Illegal fee class action. See http://www.coquitlam.ca/NR/rdonlyres/024235D5-E195-4877-A445-17A36D2E65C4/79424/OrderSettlement.pdf. The court allowed a payment of $15G for the representative plaintiff allowed.
Tourlos v. Tiffany Gate Foods Corp., [2008] O.J. No. 2891 (S.C.J.): Bacterial infection action. Fees approved were $700,000, which was a multiplier just less than 1, and a projected percentage at just over 25% or less depending on the take up rate.
Lenzi c. Apple Canada inc. 2008 QCCS 2447, Waddell v. Apple Computer, Inc., [2008] O.J. No. 3071 (S.C.J.): Ipod battery. $45 store credit. Legal fees of $100,000 nationally.
Wong v. Sony Corp., [2008] O.J. No. 3096 (S.C.J.): DVD players. The court granted conditional certification pending a later settlement approval hearing.
Passaro v. Fédération Interprofessionnelle de la santé du Québec (FIQ) 2008 QCCS 910: Illegal strike.
Press reports indicate that approximately 15,000 Honda and Acura owners in Quebec have until the end of October to claim a $37.50 reimbursement from Honda Canada Inc. for defective ignition starter switches that had to be replaced following a 2002 safety recall, as part of a class action settlement.
Bayard v. Ville de St. Gabriel, 2008 QCCS 2161: Water quality class action settled.
Bergeron c. Télébec, s.e.c., add 2008 QCCS 1404: Settlement notice approved in this phone charge class action.
Bernèche c. Canada (Procureur général): 2008 QCCA 1581(leave to appeal interlocutory pleadings issue dismissed), 2008 QCCS 2248 (partial settlement approval) 2008 QCCS 2815 (particulars and motion to strike certain paragraphs): The manufacturer Ridley has settled this Mad Cow case nationally (although there is a wrinkle to iron out in Ontario). Procedural dogfights continue with the feds.
Hamel add (sub nom) Blouin c. Ste-Anne-de-Beaupré (Ville de), 2008 QCCS 3793: Environmental class action settled.

SUMMARY JUDGMENT MOTIONS
Murphy v. BDO Dunwoody LLP, [2008] O.J. No. 3065 (S.C.): The defendant sought summary judgment against the representative plaintiff alone in this certified investment class action. The court dismissed the application.

MOTIONS TO STRIKE
Arenson v. Toronto (City), [2008] O.J. No. 2875 (S.C.J.): Motion to strike frozen parking meter class action granted with leave to amend.
Hassum v. Contestoga College Institute of Technology and Advanced Learning (2008), 167 A.C.W.S. (3d) 93, [2008] O.J. No. 1141 (S.C.J.): Proposed school fee class action struck.
Leo Deluca Enterprises Inc. v. Lombard General Insurance Co. of Canada (2008), 60 C.C.L.I. (4th) 276, [2008] O.J. No. 1230 (S.C.J.) (striking claims); [2008] O.J. No. 2876 (S.C.J.) (reversed on reconsideration): Ice storm adjustment case allowed to stand after reconsideration based on Ontario Court of Appeal decision.

JURISDICTION FIGHT IN SECURITIES CLASS ACTION
McCann v. CP Ships Ltd., [2008] O.J. No. 2050 (S.C.J.): A proposed U.S. settlement did not include Canadians. Counsel in Ontario sought declaratory relief to confirm that the U.S. court did have jurisdiction over particular Canadian claims that might arguably still fall within the U.S. class definition. The court declined to grant the declaratory relief stating: "It bears noting at the outset that the plaintiff's concerns about the adequacy of the U.S. notices and the definition of the U.S. class may well be borne out in the future. However, the U.S. court has not yet issued its final judgment and, in my view, it would be wrong to presume what the U.S. judgment will be. This is particularly so because the plaintiff is at liberty to seek to raise his concerns in the U.S. as his B.C. counterpart is proposing to do. As a result, the plaintiff's motion is premature, based as it is, on a hypothetical or an assumption of what the U.S. court will rule in June."

TOBACCO CLASS ACTION CONTINUES
Conseil québécois sur le tabac et la santé c. JTI-MacDonald Corp. 2008 QCCS 2188 Summary judgment on limitations dismissed. 2008 QCCS 2481: Application to sever parts of trial refused.

ADMINISTRATOR APPROVED
Option Consommateurs v. Service aux marchands détaillants Ltée, 2008 QCCS 2394: Court approved administrator of judgment after successful class action trial.

PENSION PLAN SURPLUS CASE CERTIFIED
McGee v. London Life Insurance, [2008] O.J. No. 1760 (S.C.J.) (certification); [2008] O.J. No. 2678 (S.C.J. (Div. Ct.)) (leave to appeal refused); [2008] O.J. No. 3201 (S.C.J., (Div. Ct.)) (costs endorsement): Usual analysis.

NEED FOR FAMILY CLASS REPRESENTATIVE CONSIDERED
Voutour v. Pfizer Canada Inc., [2008] O.J. No. 3070 (S.C.J.): The Plaintiff sought to add a representative plaintiff for the family derivative claims. The original claim did refer to derivative claims, but had no plaintiff. The Defendant opposed stating that the limitation period for derivative claims had expired. The court allowed the addition of the representative noting:
"I am, moreover, by no means satisfied that, as a matter of pleading under the CPA, Mr. Voutour could not assert the derivative claims of the family class. In Boulanger, the Divisional Court unanimously endorsed the view of Nordheimer J. at first instance that the words of section 2(1) of the CPA
"... demonstrate that the legislature intended to authorize a representative plaintiff to advance claims for class members which the representative plaintiff might not have in her personal capacity".
If, as the words of para. 44 of the pleading suggest, Mr. Voutour was intending to assert the derivative claims of the family class, it is not clear to me that Mr. Zakaib's submissions on section 28 of the CPA are correct. I note that, for the purposes of the CPA, the primary class and the family class could be considered as subclasses of a composite class as their members could share any common issues relating to the fault or neglect of the defendants. The allegations made in the statement of claim with respect to such matters would constitute some of the material facts for the causes of action of members of the family subclass, as well as for those of the primary subclass. Arguably, Mr. Voutour is permitted to assert, and plead, the claims of all members of the composite class that include the family class. If that is the correct interpretation and effect of the pleading, the possibility that, for the purposes of certification a separate representative should be appointed pursuant to section 5(2) of the CPA for the family class, as a subclass of the composite class, does not appear to me to be relevant. If the above analysis is correct, the limitation period applicable to Ms. Voutour's claims as a member of the family subclass would - pursuant to section 28 of the CPA - have been suspended by the commencement of this action. This would be a complete answer to the defendants' submission that it is obvious that the limitation period has expired. However, quite independently of the above comments, I do not consider that this is a case in which the addition of Ms. Voutour as a plaintiff asserting claims on behalf of the family class should be disallowed, even if the limitation period applicable to them has expired."

SCOPE OF EXAMINATIONS
Dallaire v. Eli Lilly Canada inc., 2008 QCCS 1422: The Quebec Court allowed an examination of the medical history of the representative plaintiffs in this certified action on the basis that it would facilitate the determination of the common issue in relation to the entitlement to damages.
Huneault c. Fonds AGF inc., 2008 QCCS 3729: Pre-certification examination of plaintiffs allowed in complex "market timing" case.

SETTLEMENT ISSUES CONSIDERED
Doyer v. Dow Corning, 2008 QCCS 1721: Court refused to allow application to change claim category after the deadline.

QUEBEC ENVIRONMENTAL CASES CONSIDERED
Association des citoyens et citoyennes pour un environnement sain de Fatima inc. v. Bois et placages généraux ltée 2008 QCCS 3192: Case certified.
Deraspe v. Zinc Électrolytique du Canada ltée, 2008 QCCS 2338: Air pollution case refused certification.
Regroupement des citoyens du quartier St-Georges inc. c. Alcoa Canada Ltée, add 2008 QCCS 1384 (amendment), 2008 QCCS 1653 (particulars)

NEED FOR PROPER REPRESENTATIVE EMPHASIZED IN QUEBEC
Comtois v. Telus Mobilité 2008 QCCS 1562: Certification refused of cell phone charge case. Main ground was that the representative plaintiff had not taken the obligation seriously, and had not produced all necessary documentation.
Maclean (Forbes) (Succession de) v. Barreau du Québec, 2008 QCCS 3000: Certification refused to lack of adequate plaintiff. The representative cannot be in a position where he would have to breach a duty of confidentiality in order to advance the case.
Leblanc v. Capital d'Amérique CDPQ inc., 2008 QCCS 3188: Certification refused. Representative plaintiff was not actually controlling the litigation.

TAX REFUND CASE DENIED CERTIFICATION
Option Consommateurs v. Pétroles Irving inc., 2008 QCCA 1591: Court held that only remedy for tax refund was to apply to the Minister. While there might still be a punitive damage claim against the defendant, the court found that punitive damages alone were not sufficient to support certification.

MANAGING INDIVIDUAL ACTIONS
Fortier v. Mattel Canada Inc., 2008 QCCS 2697, leave to appeal dismissed 2008 QCCA 1339, a Quebec court held that the application for a stay of an individual action was premature in advance of certification.

CONTRACT CASES CERTIFIED IN QUEBEC
Uneault v. Société de transport de Montréal 2008 QCCS 3040: Service interruption during strike.
Lachapelle v. Bell Canada, 2008 QCCS 2396: Phone charges

APPLICATION TO EXPAND CLASS REFUSED.
Fournier v. Banque de Nouvelle Écosse, 2008 QCCS 1849: Court refused to grant application to add new plaintiff/defendant pair to this bank fee class action.

MORTGAGE CLASS ACTION BITES THE DUST
Option Consommateurs v. Fédération des caisses Desjardins du Québec, 2008 QCCS 3639: Limitation issues were main reason for refusal to certify.

COURTS ALLOW AMENDMENTS TO CLASS MOTIONS IN ADVANCE OF CERTIFICATION
Lavallée c. Astrazeneca Pharmaceuticals PLC, 2008 QCCS 2597 and Union des consommateurs (Guay) c. Pfizer Canada inc., 2008 QCCS 1263

CHICKEN AND EGGS
Campbell v. Canada (Attorney General), 2008 FC 353: Court granted defendant’s request to hear motion to strike prior to motion for certification.

CONSTITUTIONAL CASE ADJOURNED
Horner v. Saskatchewan, 2008 SKQB 273: Court found that the class action should not move forward until final disposition of an individual action pending before the Supreme Court of Canada.

JURISDICTION CONSIDERED
Warren v. ABC Wilderness Adventures Ltd., 2008 ABQB 258: A group of shareholders who live in Alberta, British Columbia, Manitoba and elsewhere sued a federally incorporated company and its directors and officers who reside in British Columbia, Massachusetts and Ontario for allegedly making misrepresentations, acting oppressively and otherwise violating their duties. Court held that case should proceed in B.C.

GOD WILLING, THE LAST DEDUCTIBLES GASP
McNaughton Automotive Limited v. Co-operators General Insurance Company, 2008 ONCA 597: The Court of Appeal considered how to deal with costs arising from its decision to overrule an earlier case aka "The Case that Launched a Thousand Lawsuits".
The court upheld the costs awards in favour of the insures. In relation to the s.31 factors, the court stated:
"Before addressing the motions judge’s assessment of the s. 31(1) factors, I note that the decision of how much weight to accord these factors is discretionary. The discretionary character of the decision is evident not only from the s. 31(1)’s reference to the court’s "discretion with respect to costs" under the Courts of Justice Act, but also from the second part of the provision: "the court may consider whether the class proceeding was a test case, raised a novel point of law or involved a matter of public interest" [emphasis added].
The plaintiffs commenced all of these actions before the court after the court’s decision in McNaughton I, on the premise that this court had decided in their favour the interpretation of statutory condition 6(7). There is no issue that McNaughton I was a test case. As for the cases at bar, however, I agree with the motions judge when he accepted the insurers’ characterization of the preliminary motions in these cases:
The defendants contend that the preliminary motions relating to jurisdiction, the limitation period, the OPCF 43 endorsement, the meaning and application of "actual cash value" and the alternative pleadings in conversion and unjust enrichment may have involved novel facts but were resolved with the application of settled law. I agree with this characterization of these issues. I accept that the interpretation of the subject statutory condition represented a novel issue involving a matter of public interest and I indicated as much in my reasons for making no order as to costs in disposing of the original application on August 14, 2000.
I see no merit in the submissions of the plaintiffs and the Law Foundation that the various motions in issue here can be collectively characterized as a test case and that these motions raise novel points of law. Apart from some motions that revisited the issue of the interpretation of statutory condition 6(7) (not the subject of this application), the issues raised by the remaining motions could fairly be described as typical of everyday civil litigation.
For similar reasons, I agree with the motions judge that the issues raised in the generic motions do not "impact anyone beyond the reach of these proceedings" and therefore do not engage the public interest in the broader sense meant by the CPA."
The court also agreed that the chambers judge properly found that substantial indemnity costs should be awarded in particular cases due to the dismissed fraudulent concealment allegation.

SUMMARY JUDGEMENT MOTIONS IN AFTER MARKET PARTS CASES
Cyr v. Royal & SunAlliance Co. of Canada [2007] O.J. No. 5411 (S.C.): The defendant based its argument in this case based on spoliation. The court rejected the motion stating: "I am of the view that summary judgment based on spoliation requires factual determination best left for the trial Judge at the trial of common issues. The issues of innocent inadvertence, failure to fulfill a duty and whether in these circumstances, namely an operating aging car, that failure to preserve when no inspection had been requested does amount to spoliation, are all matters for which evidence is appropriate."
Punit v. Wawanesa Mutual Insurance Co. [2007] O.J. No. 5412 (S.C.): Summary judgment was sought based on fact that plaintiff did not have an after-market part. Following inspection on September 7, 2006 by the Plaintiff's expert, it was determined that the part in question, which was replaced on the Plaintiff's vehicle, was an original part of the manufacturer Chrysler Canada. The court granted the motion stating:
"The Defendant Wawanesa asserts that there is and can be no genuine issue for trial as to whether the Plaintiff has a cause of action against the Defendant, since the foundation for such action - a non-OEM part - is absent. The Plaintiff claims that notwithstanding the absence of a non-OEM part in the repair of her vehicle, she may be a fit and proper representative Plaintiff on behalf of a class since by stipulating in its repair estimate that non-OEM parts may be used, the Defendant is in breach of its contract with the Plaintiff, which may entitle her to declaratory re-lief, nominal damages and punitive damages. I accept the general proposition advanced on behalf of the Plaintiff that the Plaintiff might in law be entitled to the relief sought, remedies such as nominal damages and declaratory relief.
In my view, the potential availability of these causes of action should not prevail in this context. The additional relief is clearly consequential on the essential premise of the claim. The Plaintiff claims as a representative of a class: that class being persons whose cars were repaired with non-OEM parts. In my view, it would not be appropriate to consider as a plaintiff for certification purposes one who could not meet the essential test. In this case the failure to meet the essential test is admitted. Counsel for the Plaintiff commenced the action with the expectation that the Plaintiff met the essential test, i.e., use of non-OEM parts. The Plaintiff had the means to determine with certainty whether or not the test was met. Unfortunately, this was not done. In my view, a representative plaintiff within the Class Proceedings Act should for the purpose of meeting the common issue(s) test be a person who can meet the essential issue test in the action. An individual who can only recover on the basis of lesser or consequential claims should not be a representative plaintiff for a whole class that is concerned with an essential issue for which the proposed plaintiff cannot qualify, even though that person may be able to recover damages on another basis if a class is certified."
Samuels v. Co-operators General Insurance Co. [2007] O.J. No. 5413 (S.C.): The Plaintiff did not own but rather leased his vehicle. He returned the vehicle at the conclusion of the lease period, neither he nor the leasing company knew that the vehicle had been repaired with non OEM parts, and he has led no evidence that he sustained any compensable loss whatsoever arising from their use. The court granted summary judgment stating:
"In this case, the cause of action would appear, if at all, to be that of the leasing company, not the Plaintiff. In my view the subsidiary and derivative causes of action should not be used to "bootstrap" the Plaintiff into the position of a representative Plaintiff for a class to bring forward the claim in the essential issue in which this Plaintiff will likely fail. In my view it would be a misuse of the process under the Class Proceedings Act to permit an individual to represent a class when that individual's action cannot succeed factually or in law. An individual who fails the essential issue test should not continue as a representative of a whole class when he or she can only succeed on subsidiary or derivative grounds."
Venturin v. Zurich Insurance Co. [2007] O.J. No. 5414 (S.C.): In this case the position of the Defendants was that it did not direct the use of non-OEM parts. Further, the plaintiff knew of and consented to the use of non-OEM parts. The evidence suggested that an intermediary recommended and the Plaintiff concurred that non-OEM parts be installed to avoid the vehicle being written off. The court held: "In this case, the intermediary of the friend and independent auto collision repairer at the very least interferes with a direct relationship and at most destroys that relationship. On the facts before the Court at this stage, the proposed representative plaintiff cannot establish that the Defendant mandated the use of Non-OEM parts in this Plaintiff's vehicle.

SYDNEY TAR PONDS UPDATE
MacQueen et al v. Nova Scotia: There was a decision from the bench on May 9, 2008. Justice MacAdam ruled that the Defendants were allowed to discover the Plaintiffs and experts on the certification application.

DECISION TO MOVE CLASS ACTION TO QUEBEC CITY OVERTURNED
Gauthier c. Société d'habitation du Québec, 2008 QCCA 948: Court held that determination was premature prior to certification.

(Hick) ALCOHOL PRICING CLASS ACTION DISMISSED (urp!)
Chifoi c. Société des alcools du Québec, 2008 QCCS 3871: No cause of action found.

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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