Certification Bourdages c. DaimlerChrysler Canada inc., 2013 QCCS 743<http://www.canlii.org/fr/qc/qccs/doc/2013/2013qccs743/2013qccs743.html>; Thibert c. Hyundai Motor America, 2013 QCCS 744<http://www.canlii.org/fr/qc/qccs/doc/2013/2013qccs744/2013qccs744.html>; Bourgeois c. Ford du Canada ltée, 2013 QCCS 745<http://www.canlii.org/fr/qc/qccs/doc/2013/2013qccs745/2013qccs745.html>; Corbin c. Ventes de véhicules Mitsubishi du Canada inc., 2013 QCCS 746<http://www.canlii.org/fr/qc/qccs/doc/2013/2013qccs746/2013qccs746.html>; Dion c. Suzuki Canada inc., 2013 QCCS 747<http://www.canlii.org/fr/qc/qccs/doc/2013/2013qccs747/2013qccs747.html>; Pilon c. Mazda Canada inc., 2013 QCCS 748<http://www.canlii.org/fr/qc/qccs/doc/2013/2013qccs748/2013qccs748.html>: The Superior Court of Quebec granted the plaintiffs' motions for authorization to institute class proceedings against various car companies based on allegations that the companies failed to provide certain discounts, which were offered to cash purchasers of vehicles, to purchasers who opted for purchase financing, and failed to otherwise disclose the true nature of the discounts to purchasers. Blackette c. Research in Motion Ltd., 2013 QCCS 1138<http://www.canlii.org/en/qc/qccs/doc/2013/2013qccs1138/2013qccs1138.html>: Motion for authorization to institute a class action against RIM, claiming loss of service for 1.5 days during October, 2011, granted. Miller v. Merck Frosst Canada Ltd., 2013 BCSC 544<http://www.canlii.org/en/bc/bcsc/doc/2013/2013bcsc544/2013bcsc544.html>: Application for certification of action as class proceeding granted in proposed Propecia/Proscar sexual dysfunction class action. Tetrault c. Agence metropolitaine de transport, 2013 QCCS 1334<http://www.canlii.org/fr/qc/qccs/doc/2013/2013qccs1334/2013qccs1334.html>: Motion for authorization to institute a class action granted in public transportation service interruption class action. Hartt v. British Columbia (Attorney General), 2013 BCSC 264: Application for certification denied in a class action alleging that police used breathalyzer devices that were improperly programmed to issue a warning when the blood alcohol level of the person tested was below 0.5. The plaintiffs alleged that they were prohibited from driving and had their licenses revoked as a result of being tested by this improperly calibrated device. The court determined that the plaintiffs did not have a viable cause of action, had difficulties with the class definition and common issues. Ultimately, the court held that the legislature was entitled to impose driving restrictions, as the plaintiffs did not have a right to drive. O'Neill & Chiasson v. St-Isidore Asphalte Ltee, 2013 NBQB 72<http://www.canlii.org/en/nb/nbqb/doc/2013/2013nbqb72/2013nbqb72.html>: Motion by the plaintiffs for an order certifying the action as a class proceeding, and motion by the defendant to strike certain paragraphs from the various affidavits filed by the plaintiffs. The case concerned allegations by the plaintiffs that the defendant, in the running of its quarry and asphalt plant, had impeded their ability to enjoy their properties, had diminished their property values as well as occasioning damages to the plaintiffs. The plaintiffs claimed damages from the defendant for repairs to their homes, diminution in the market value of their properties, contamination of their wells, stress, fatigue, anxiety, diminishment in the quality of their family lives, as well as aggravated and punitive damages. The court granted the defendant's motion in part. It then went on to consider the plaintiffs' certification motion. It found that the plaintiffs had properly pled causes of action in nuisance and negligence, but rejected the claim for waiver of tort on the basis that there was insufficient pleadings and evidence of wrongful or blameworthy conduct on the part of the defendant. This cause of action was therefore rejected. The court found that the identifiable class and representative plaintiff elements had been met, but that the claims of the class members did not raise common issues. Relying on Hollick v. Toronto (City), which involved similar facts, the court found that the realm of commonality in this case broke down once the assessment of causation was undertaken: "Just as in Hollick, each of these plaintiffs would have experienced the impact of the defendant's operations differently depending upon the location of their homes, the proximity of the quarry, the construction of their homes and the dates during which they owned their properties." The court went on to conclude that "given the fact that the issue of causation within these actions could only be determined by the Court on an individual basis, I am unable to find that the common issues in these circumstances would predominate over issues affecting only individual members. Therefore, I find that the plaintiffs have not met the requirements of section 6(1)(c) of the Act." This is a peculiar conclusion, given the fact that the wording of s.6(1)(c) the New Brunswick Class Proceedings Act , R.S.N.B. 2011, c. 125<http://laws.gnb.ca/en/showdoc/cs/2011-c.125/ga:l_2#anchorga:l_2>, specifically states that the common issue consideration involves an assessment of whether "the claims of the class members raise a common issue, whether or not the common issue predominates over issues affecting only individual members." The learned judge essentially imported a predominance test into the certification requirement - an approach has been expressly rejected by other Canadian courts. In any event, having concluded that this element of the certification test was not met, the court went on to find that the extensive nature of the individual issues precluded a finding that a class proceeding was the preferable route for this action to follow. Accordingly, the motion for certification was dismissed. As to the issue of costs, the court found that no costs were justified in this case: "The plaintiffs' requests for certification of a class action in this matter were well founded although the criteria of the Act were not met. Litigants should be encouraged to explore class proceedings in appropriate circumstances, and when the request I reasonable and not fanciful, the fear of costs consequences on an unsuccessful motion should not prevent parties from bringing such requests before the Court." Appeals Frey v. Bell Mobility Inc., 2013 SKCA 26<http://www.canlii.org/en/sk/skca/doc/2013/2013skca26/2013skca26.html>: Following the certification of this action as a class proceeding in Saskatchewan (with the right of non-Saskatchewan residents to opt-into the class), Saskatchewan's The Class Actions Act, S.S. 2001, c. C-12.01, was amended to change the province's class action regime from opt-in to opt-out. The plaintiff applied for an order amending the certification order to convert the proceeding into a national class action. The case management judge dismissed the application on the basis that the amendments were substantive and therefore not retroactive, and that the case management judge lacked authority to grant the requested conversion. The plaintiffs wished to appeal this decision, but ran out of time in perfecting their appeal. They hence sought an extension of time within which to serve a notice of appeal. The Court of Appeal dismissed the application on the basis that there was no reasonable explanation for the delay, and that the defendants would be materially prejudiced if the time to appeal the decision was extended. Fulawka v. Bank of Nova Scotia, 2013 CarswellOnt 3152; Fresco v. Canadian Imperial Bank of Commerce; 2013 CarswellOnt 3154: Applications for leave to appeal to SCC from judgments of the Ontario Court of Appeal dismissed in two federal workers' unpaid overtime class actions. Cavanaugh v. Grenville Christian College, 2013 ONCA 139<http://www.canlii.org/en/on/onca/doc/2013/2013onca139/2013onca139.html>: This is an appeal from the decision of the Ontario Superior Court dismissing the plaintiffs' certification motion. The lower court dismissed the action against one of the defendants, Diocese, on the basis that the claim as framed did not reveal a cause of action against it. With respect to the other defendants, the lower court dismissed the plaintiffs' motion on the basis that they failed to show that the class proceeding was the preferable procedure. Instead of appealing to the Divisional Court, the parties brought a motion before the Court of Appeal, in which they submitted that the Court of Appeal had jurisdiction under s.6(1)(b) of the Courts of Justice Act, R.S.O. 1990, c. C.43, to hear the appeal from the order dismissing the claim against Diocese. The parties further submitted that the Court of Appeal should exercise its discretion under s.6(2) of the Courts of Justice Act to join the appeal against the other defendants with the appeal against Diocese. The Court of Appeal found that it did have jurisdiction to hear the appeal from the order dismissing the action against Diocese. However, it found that, assuming it had jurisdiction to hear the appeal against the remaining defendants, it would not exercise its jurisdiction under s.6(2) to do so. It therefore ordered that those appeals be transferred to the Divisional Court. The Court went on to dismiss the appeal with respect to Diocese. Kang v. Sun Life Assurance Co. of Canada, 2013 ONCA 118<http://ecarswell.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=999&FindType=Y&SerialNum=2029930628>: Appeal from the lower court's decision striking certain pleadings in the plaintiffs' amended statement of claim allowed. The Court of Appeal restored portions of the plaintiffs' claim concerning breach of the duty of good faith, breach of contract, deceit and fraud, along with the material facts relevant to these pleas. Lipson v. Cassels Brock & Blackwell LLP, 2013 ONCA 165<http://www.canlii.org/en/on/onca/doc/2013/2013onca165/2013onca165.html>: Appeal from the decision of the lower court dismissing the plaintiff's action as statute-barred, but holding that the action otherwise qualified for certification. The Court of Appeal noted that the motion judge's decision to dismiss the proposed class action as statute-barred turned on his interpretation of the Supreme Court of Canada's decision in Central Trust Co. v. Rafuse and his application of that decision to the facts of this case. The Court of Appeal held that the motion judge erred in interpreting and applying Rafuse; moreover, it held that when that decision was interpreted properly, it was apparent that the record before the motion judge did not disclose whether the plaintiff's claim was statute-barred. Nor did it support the conclusion that the limitation period applicable to the plaintiff's claim also applied to the entire class. In fact, upon reviewing the evidence, the Court held that the action was not statute-barred: "For the purposes of s. 5(1)(a) of the Class Proceedings Act (the reasonable cause of action prong of the certification test), no evidence is admissible. Unless patently ridiculous or incapable of proof, a plaintiff's pleadings must be accepted as true. On their face, Mr. Lipson's pleadings do not demonstrate that, prior to January 2008, he knew that the CCRA's challenge to his claimed tax credits would likely be successful. Accordingly, his pleadings do not demonstrate that his claim was statute-barred when he commenced his action in April 2009. Further, under ss. 5(1)(b)-(e) of the Class Proceedings Act (the remaining prongs of the certification test), a plaintiff need only show some evidence that the proposed claim satisfies each of the relevant criteria. Because the limitation issue is a defence, in the absence of evidence tending to demonstrate that the limitation period had expired, the limitation issue did not undermine Mr. Lipson's request for certification." Having found that the action was not statute-barred, the Court of Appeal allowed the appeal and certified the action as a class proceeding. Montréal (Ville de) c. Biondi, 2013 QCCA 404<http://www.canlii.org/fr/qc/qcca/doc/2013/2013qcca404/2013qcca404.html>: Appeal from the judgment of the Superior Court which rendered judgment in favor of the class, ordered the defendant union to pay $2 million in punitive damages, and found the union and the city of Montreal to be jointly liable to the class members. The appeal was granted in part in terms of the fault allocation and whether punitive damage could be assessed before individual damages had been deterimined. Sarrazin c. Québec (Procureur général), 2013 QCCA 374<http://www.canlii.org/fr/qc/qcca/doc/2013/2013qcca374/2013qcca374.html>: Following the decision of the lower court, where the court held that it did not have jurisdiction over certain causes of action advanced by the plaintiff, the plaintiff filed a notice of appeal. The defendant sought dismissal of the appeal, arguing that the right of appeal does not exist, except with leave of the Court of Appeal. The Court of Appeal held that, in general, there was no automatic right of appeal from a pre-authorization judgment. It therefore granted the defendant's motion to dismiss the appeal. A loose translation of the Court's finding (from Google Translate) is as follows: "It appears that, in general, there is no appeal from these judgments. Exceptionally, the possibility of obtaining leave to appeal has been recognized in respect of a judgment on the subject matter jurisdiction of the Superior Court or lis pendens. One could also conceive of such a possibility for a judgment ruling on the disqualification of counsel for a party or violating professional secrecy protected by s. 9 of the Quebec Charter, there are, perhaps, some other cases. The Court considers that this position, now well established, must be maintained. Judgments rendered before the judgment authorization are not subject to appeal, except in exceptional cases and by permission only." 1654776 Ontario Limited v. Stewart, 2013 ONCA 184<http://www.canlii.org/en/on/onca/doc/2013/2013onca184/2013onca184.html>: Appeal from the lower court's decision dismissing the plaintiff's application for a "Norwich order" seeking the disclosure of the identities of confidential sources for a story published in the Globe and Mail. This action is related to a proposed securities class action concerning certain fluctuations in the price of BCE shares over a 4 day period during the attempted leveraged buy-out of BCE in 2007-2008. The buy-out was approved by the Supreme Court of Canada on June 20, 008. On June 30, 2008, the Globe and Mail published a story in its business section that the buyout would likely be delayed if it proceeded at all. The story reported information supplied by certain confidential sources. The plaintiff in the class action claimed that on the trading day following the publication of the article, the price of BCE shares fell 3.3% and the market price of BCE call options fell precipitously. On July 2, 2008, the plaintiff disposed of BCE shares and call options at a loss of $35,900. On July 4, 2008, BCE issued a press release announcing that final agreement had been reached in the buyout, resulting in a rise in the price of BCE shares. Believing that the Globe's confidential sources had breached the provisions of the Ontario Securities Act, the plaintiff requested that the Globe and the article's author disclose the identities of the unnamed sources. The request was refused. This resulted in the motion under appeal. After applying both the Norwich and Wigmore tests to the facts of the case, the Court of Appeal dismissed the plaintiff's appeal. It held that the plaintiff had put forward a claim that, except for the respondents' claim of journalist-source privilege, would entitle it to disclosure. However, the apparent strength of the case for disclosure was weak. The Court held that the public interest in free expression must be weighed heavily in the balance. Upholding the privilege would not leave the plaintiff without a remedy. It could proceed against the corporate defendants involved. The public interest in promoting compliance with the disclosure regime regulated by the Securities Act could be adequately served without granting the disclosure. Martin v. Astrazeneca Pharmaceuticals PLC, 2013 ONSC 1169<http://www.canlii.org/en/on/onsc/doc/2013/2013onsc1169/2013onsc1169.html>: The plaintiffs sought appeal of the decision of the lower court denying certification of a proposed class proceeding against the manufacturer of Seroquel. They also appealed the costs decision on the motion, which awarded approximately $700,000 in favor of the defendants. The Ontario Divisional Court found no overriding errors in the lower court's decisions with respect to certification or costs. It therefore dismissed both appeals. Costs of the appeal in favor of the defendants were fixed at $30,000. Unlu v. Air Canada, 2013 BCCA 112<http://www.canlii.org/en/bc/bcca/doc/2013/2013bcca112/2013bcca112.html>: Appeal from the decision of the lower court dismissing the defendants' application for summary trial in the proposed fuel surcharge class action. The summary trial judge rejected the proposition that the plaintiffs' proposed action for breach of the BC Business Practices and Consumer Protection Act, S.B.C. 2004, c.2, was constitutionally inapplicable to the defendants by virtue of either the doctrine of paramountcy or the doctrine of inter-jurisdictional immunity. The Court of Appeal agreed with the conclusions of the summary trial judge, and dismissed the appeal. Lorrain c. Petro-Canada, 2013 QCCA 332<http://www.canlii.org/fr/qc/qcca/doc/2013/2013qcca332/2013qcca332.html>: Appeal from the lower court's decision refusing authorization of the action as a class proceeding dismissed in defective calibration gas pump action. May v Government of Saskatchewan, 2013 SKCA 11<http://www.canlii.org/en/sk/skca/doc/2013/2013skca11/2013skca11.html>: Appeal from the decision of the common issues trial judge dismissing the plaintiffs' claim with respect to breach of contract and breach of fiduciary duty dismissed. There were no palpable or overriding errors in the trial judge's conclusions justifying the appeal court's intervention. Tremblay c. Capitale (La), assureur de l'administration publique inc., 2013 QCCA 410<http://www.canlii.org/fr/qc/qcca/doc/2013/2013qcca410/2013qcca410.html>: Appeal from the decision of the lower court dismissing class action with costs. Appeal was dismissed. Fonds mutuels CI inc. c. Ravary, 2013 QCCA 341<http://www.canlii.org/fr/qc/qcca/doc/2013/2013qcca341/2013qcca341.html>: Leave to appeal granted in part with respect to the defendants' request for clarification of certain paragraphs of the plaintiff's motion for authorization. The trial proceedings were suspended until judgment on the merits of the appeal, and the timeline for appeal was set by the Court. Deraspe c. Zinc Électrolytique du Canada ltée, 2013 QCCA 571<http://www.canlii.org/fr/qc/qcca/doc/2013/2013qcca571/2013qcca571.html>: Leave to appeal from the judgment of the lower court dismissing the application for recusal of the judge. Leave was denied. Common Issues Weldon v. Teck Metals Ltd., 2013 BCSC 345<http://www.canlii.org/en/bc/bcsc/doc/2013/2013bcsc345/2013bcsc345.html>: The parties in the action (which pertains to alleged wrongful calculation of pension entitlements by the defendant) consented to certification and agreed on 23 common issues, the first two of which were submitted to the court for judgment on a special case pursuant to Rule 9-3 of the BC Supreme Court Civil Rules. The two issues concerned when the right to bring action had arisen under the Limitation Act, and if the limitation period had expired, the extent to which the plaintiffs could rely on the postponement provisions of the Act. The court found that the right to being the action arose on January 1, 1993, the date when the pension changes in question took effect. The effect of this finding was that the applicable 6 year limitation period expired on January 1, 1999, more than 10 years before the commencement of the action. However, the court concluded that the limitation period was postponed by virtue of s.6(3)(b) of the Act which applied to damage to property. The court noted that the word "property" included both tangible and intangible possessions, and that the postponement provisions applied to pure economic loss claims. As such, all common issues were potentially subject to postponement of the applicable limitation period. The court also noted that the postponement provision associated with professional negligence (s.6(3)(c)) may be applicable, although it found it unnecessary to determine the issue given its finding with respect to s.6(3)(b). The court noted that it would ultimately be for the plaintiffs and other class members, at a later stage of the proceedings, to prove the fact that would entitle them to postponement. Some of those facts could be sufficiently applicable to all class members for consideration as an additional common issue. If necessary, this issue could be dealt with through a further application. Anderson v. Canada (Attorney General), 2013 NLTD(G) 46<http://www.canlii.org/en/nl/nlsctd/doc/2013/2013canlii14093/2013canlii14093.html>: Prior to the trial of the certified common issues, the plaintiff sought a preliminary determination of questions of law pertaining to the existence of an alleged fiduciary duty and alleged duty of care owed by the defendant Attorney General of Canada to the "survivor class", being a class made up of students who attended certain residential schools for aboriginal children in Labrador. The motion was brought pursuant to Rule 38.01 of the Rules of Supreme Court of Newfoundland and Labrador, which provided that the court may, on the application of any party or on its own motion, at any time prior to a trial or hearing, determine any relevant question or issue of law or fact. The court accepted that the task at hand required it to determine the broad question of whether this was a case where carving out the stated issues for preliminary determination would cause more problems than it would solve. Ultimately, the court was concerned with the following: 1. The resolution of the duty and the extent of duty questions for the class may not resolve the questions of duty and extent of duty for the "family class", thus necessitating a further hearing on the remaining certified common liability issue; 2. determination by the court of the questions posed may not result in the most efficient application of judicial resources since the ultimate trial may be before a different judge; if the court was to find that a duty was owed to the survivor class, another judge may be required to address either the same question for the family class or the question of whether such duty was breached for either class; and 3. an appeal by either party from the determination of the preliminary questions of law posed would seriously derail the court's litigation timetable. For these reasons, the court rejected the plaintiff's request to have the questions posed determined as preliminary questions under Rule 38. Robitaille c. Mazda Canada inc., 2013 QCCS 659<http://www.canlii.org/fr/qc/qccs/doc/2013/2013qccs659/2013qccs659.html>: the Superior Court of Quebec granted the plaintiff's application to split the common issues trial in a certified class action alleging defects in certain Mazda vehicles, so that the hearing on the question of liability would be heard before the hearing on the quantification of class-wide damages. The basis for this conclusion was that the quantification of damages was complex and required expert opinion that could delay the litigation. On the other hand, the findings on liability (including the question of whether there was in fact a defect) could be determinative of the damages issues; a finding that the defendant was not at fault would essentially preclude the investigation of collective damages, and a finding that the defendant was liable could potentially promote a settlement between the parties on the issue of quantum of damages. Given that the parties were essentially ready to proceed to a hearing on the question of liability, it made practical sense to have the question of liability determined before engaging in complex and expensive investigation on the issues of damages. The plaintiff's motion was granted. Class definition Silver v. Imax Corporation, 2013 ONSC 1667<http://www.canlii.org/en/on/onsc/doc/2013/2013onsc1667/2013onsc1667.html>: Following the settlement of a parallel proceeding in the United States, the defendants sought an order to amend the global class definition in the Canadian proceeding (which includes all persons who acquired IMAX securities during the class period on the TSX or NASDAQ, irrespective of where they live) to exclude from the certified class all persons who would be bound by the US settlement. The effect of the order would be to reduce the size of the class by nearly 85%. The central issue on the motion was whether the Ontario court should recognize the settlement that was approved by the US Court and give effect to the settlement by carving out of the certified global class those persons who would be covered by the US settlement, or whether such persons should remain in the Ontario class until their claims are determined in the Ontario proceedings. Class counsel opposed the motion on the basis that (a) the defendants were attempting to re-litigate the certification motion to redefine a class that was certified as a global class, (b) the motion was in substance an attempt to convert the action into an opt-in class action which was not available in Ontario, and (c) the US settlement constituted, in effect, a settlement of the Ontario class proceeding, which under the Ontario Class Proceedings Act, 1992, required the approval of the Ontario court; class counsel argued that such approval had not been sought and if it were, it was to be denied because the US settlement was neither reasonable nor fair to the members of the Ontario class who were NASDAQ purchasers. The court found that it had jurisdiction to amend a certification order where conditions under subsection 5(1) of the Act had changed. It further found that the motion directly engaged the certification requirement under s.5(1)(d) of the Act: whether, having regard to all of the development in the US proceedings, and considering the status of the Ontario action and all other relevant circumstances, this action remained the preferable procedure for the determination of the claims of the overlapping class members who had not opted out of the US settlement. The court rejected class counsel's argument that this was an attempt to re-litigate a question already determined by the court. It noted that, at the time of certification, it was contemplated that the class definition may need to be revisited depending on what occurred in the US proceeding. The court also rejected the proposition that the result of the relief sought was to convert the action into an impermissible opt-in action. Rather, the overlapping class members were put to an election through the US notice; if they opted out, they effectively chose to remain in the Ontario class; if not, they were eligible to receive the benefit of the US settlement. The court went on to apply the factors from the Ontario Court of Appeal's decision in Currie v. McDonald's Restaurants of Canada Ltd. (2005), 74 O.R. (3d) 321 (C.A.)<http://www.canlii.org/en/on/onca/doc/2005/2005canlii3360/2005canlii3360.html>. It determined that the US Court had a "real and substantial connection" with the claims of the overlapping class members, that and that there was order and fairness in the treatment of the claims of overlapping class members in the notice they were given respecting the options available to them, in the process before the US Court, and in their representation in their proceeding resulting in court approval of the settlement. Accordingly, the decision of the US Court was to be recognized. However, the court held that the analysis did not end with the recognition of the US fairness decision. If the US settlement were demonstrated to be improvident when compared with the prospect of litigating the claims of the overlapping class members in Ontario, it could be the "preferable procedure" to refuse the order (thereby defeating the US settlement) and continue to include their claims in the Ontario action. In other words, it was necessary to determine whether, having regard to the existence of the US settlement, the Canadian global class was to be amended on the basis that participation in the Ontario action was no longer the preferable procedure for the determination of the claims of overlapping class members who did not opt out of the US settlement. The court considered whether the US settlement furthered the objectives of class proceedings, and in particular access to justice, and determined that it was the preferable procedure to remove the claims of the overlapping class from the action in favor of an order that would permit the US settlement to be concluded. Accordingly, the court granted the order sought by the defendants and amended the class definition in the Ontario proceeding such that it excluded all NASDAQ purchasers during the class period who did not deliver opt-out notice in the US class action (i.e. who did not take part in the US settlement). Preliminary Fee Agreement Approval Pilimmer v. Google, Inc., 2013 BCSC 681<http://www.canlii.org/en/bc/bcsc/doc/2013/2013bcsc681/2013bcsc681.html>: Application for preliminary approval of the plaintiff's retainer agreement with his legal counsel. There were three questions before the court: (1) should the application be heard ex-parte? (2) Is the timing of the application appropriate and, if so, what should be the scope of the court's review? and (3) Should the court issue a temporary sealing order and publication ban in respect of this application? The court noted that s.38 of the BC Class Proceedings Act expressly contemplated that an application to approve a lawyer's fee arrangement could be brought ex parte. The court interpreted the legislation's provision for ex parte fee approval applications as recognition of the fact that the defendant typically has not direct interest in the plaintiff's fee agreement with his or her lawyers. At the same time, the legislation left the court with discretion to make an order that notice of the plaintiff's application for fee approval be given to the defendant where the court was satisfied that the defendant had an interest in the fee approval hearing or could assist the court in the hearing (ex. by filling the adversarial void and presenting a point of view that was different than that of the plaintiff, or by assisting the court in commenting on the litigation risk run by the plaintiff). However, in this case, the court was satisfied that the application could be heard ex-parte. Turning to the question of timing, the court noted that it was usually the case in BC that fee approval applications in class proceedings were brought after certification and after a settlement or judgment. This allowed the court to consider all relevant factors, including the risk undertaken by counsel, the expectations of counsel, client and class, and the integrity of the legal profession. In the court's view, it was premature to approve the fee agreement on the motion, as the many factors to be considered were best argued and weighed at the conclusion of the proceeding. The court specifically found that there was little to be gained by giving preliminary approval of the fee agreement at this stage, while several arguments could be made against adopting a two-stage fee approval process. For example, such an approach would result in slicing up an issue in the litigation into smaller pieces, which would be better heard only once; it was a waste of judicial resources and therefore contrary to the goal of judicial economy; it also provided no opportunity for other class members (who had not received notice) to voice any concerns; and finally, the plaintiff's request for the interim fee approval application materials to be sealed was contrary to the open court principle. The court also noted that the two-stage process was not the best perspective from which to approach the final fee approval hearing given that the judge on the interim application would know virtually nothing about the litigation and the judge at the conclusion of the case would know much more. The two-stage fee approval process would negatively impact the dynamic and the focus of the final fee approval hearing and would impede a holistic look at all of the factors that were to be considered at the time of fee approval. The court did acknowledge that preliminary approval of fee arrangements may be sought in exceptional circumstances, such as where there was a novel and potentially controversial form of agreement of which the court had to be apprised in this supervisory role, to address and avoid the potential that the agreement could later be seen as affecting the integrity of the legal process or the proper administration of justice. While the court found that those exceptional circumstances did not generally exist in this case, it held that there was one aspect of the fee arrangement which did warrant judicial consideration at this point. That aspect concerned the plaintiff lawyers' arrangements to fee-split with US-based lawyers. After reviewing the details of the fee-splitting agreement, the applicable provisions of the Code of Professional Conduct for British Columbia and the relevant case law, the court made an interim order approving in principle the fee-splitting arrangement with the plaintiff's BC counsel of record and the US-based assisting lawyers. Finally, the court dismissed the plaintiff's motion for a sealing order, holding that any possible benefits of a confidentiality order were far outweighed by the deleterious effects such an order would have on the public interest in open court proceedings. Discovery Stanyway v. Wyeth Canada Inc., 2013 BCSC 369<http://www.canlii.org/en/bc/bcsc/doc/2013/2013bcsc369/2013bcsc369.html>: Application by the plaintiff in a certified class action for an order that a representative of the defendant answer questions that were improperly refused at the examination for discovery. The court rejected the proposition that the correct approach to the conduct of examination for discovery in a class proceeding was to limit the general broad scope principle by way of the certified class definition and common issues. It noted that such a characterization was not reflected in the case authorities or the BC Supreme Court Civil Rules. It further found that there was an important distinction between the BC Rules and the Ontario Rules of Civil Procedure, which provided for specific proportionality limitations upon the scope of discovery. In BC, the rule for proportionality was simply to conduct the proceeding in a manner that was proportionate to the amount involved in the proceeding, the importance of the issues in dispute and the complexity of the issues. Turning to the case before it, the court held that the class proceeding potentially involved a large sum of damages, important issues and complex factual and legal questions. These factors suggested that examination for discovery should not be limited in scope. However, the court also accepted that the proportionality principle was to be applied alongside the principles governing class proceedings. Ultimately, the court concluded as follows: "I find the scope of examination for discovery in the context of class proceedings shall also be defined broadly. It will not be limited by the common issues. Questions led in examination shall be subject to the evidentiary principles of materiality and relevance, the key determinant of relevance and materiality being the certified common issues." With these principles in mind, the court went on to rule on each refused question individually. Savoie c. Imperial Oil Ltd., 2013 QCCS 611<http://ecarswell.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=999&FindType=Y&SerialNum=2029930667>: The plaintiff was unable to answer many questions posed to her in discovery. The defendants successfully sought examination for discovery of two spokespeople from the Canadian Petroleum Products Institute upon whom the plaintiff intended rely upon to prove her case. Comité anti-pollution des avions - Longueuil c. Max Aviation inc., 2013 QCCS 566<http://www.canlii.org/fr/qc/qccs/doc/2013/2013qccs566/2013qccs566.html>: Motion by the defendants to interview the proposed representative plaintiffs granted in part in the Saint-Hubert Airport noise pollution proposed class action. Trillium v. Cassels Brock & Blackwell et al., 2013 ONSC 1789<http://www.canlii.org/en/on/onsc/doc/2013/2013onsc1789/2013onsc1789.html>: Motion for production of documents granted in part. Motion to Strike/Dismiss Gauthier c. United Parcel Service of Canada Ltd., 2013 QCCS 1212<http://www.canlii.org/en/qc/qccs/doc/2013/2013qccs1212/2013qccs1212.html>: The defendant in this proposed class action concerning allegedly abusive customs brokerage fees brought a motion to dismiss the action, claiming that a virtually identical action had previously been commenced and was dismissed by the same court. The court granted the defendant's motion to dismiss the action on the ground of res judicata. A comparison of the two motions of authorization revealed that authorization was sought to bring a class action seeking the same categories of damages and for the same legal reasons as in the dismissed action. The plaintiffs in the two actions had the same "juridical identity", since they purported to act on behalf of the same putative class of alleged victims of the commercial practices imputed to the defendant. It could be assumed that had the plaintiff in the dismissed action been successful in obtaining authorization to institute a class action, the plaintiff and all of the putative class actions in the present action would be captured in that class. As such, the action was dismissed. Lockyer-Kash v. Workers' Compensation Board, 2013 BCSC 467<http://www.canlii.org/en/bc/bcsc/doc/2013/2013bcsc467/2013bcsc467.html>: Defendant's application to strike the plaintiff's notice of civil claim as disclosing no reasonable claim granted. Parties Fanshawe College of Applied Arts and Technology v. Sony Optiarc Inc., 2013 ONSC 1477<http://www.canlii.org/en/on/onsc/doc/2013/2013onsc1477/2013onsc1477.html>: Motion by the plaintiff for leave to add eighteen new defendants in proposed class action for damages arising from an alleged price fixing conspiracy for optical disc drives. The court accepted the defendants' argument that the material offered by the plaintiff with respect to the additional defendants was "thin" and really did not detail what steps were taken to identify these defendants. However, the court was not comfortable refusing an amendment at this early stage of the proceedings and on the basis of a defective record. In the court's view, the fairest procedure was to permit the plaintiff to file additional material to address the shortcomings in the evidence. As such, the motion was adjourned to allow the plaintiff to conduct further investigation and produce sufficient evidence before it was permitted to add the defendants. Dupuis c. Desjardins Sécurité financière, compagnie d'assurance-vie, 2012 QCCS 6969<http://www.canlii.org/fr/qc/qccs/doc/2012/2012qccs6969/2012qccs6969.html>: Leave to amend pleadings to add a defendant and amend the class definition granted. Miscellaneous Trustees of the Millwright Regional Council of Ontario Pension Trust Fund v. Celestica Inc., 2013 ONSC 1502<http://www.canlii.org/en/on/onsc/doc/2013/2013onsc1502/2013onsc1502.html>: The defendants in this proposed securities class action brought a motion under Rule 21 of the Ontario Rules of Civil Procedure to have the plaintiffs' action dismissed. The court allowed the Rule 21 motion to be heard before the certification motion on the condition that the motion would be dispositive of the cause of action criterion of the certification test. As part of this motion, the defendant argued that it was plain and obvious that the plaintiffs' claim under Part XXIII.1 of the Ontario Securities Act was statute-barred because it was too late to obtain leave of the court to commence an action for secondary market misrepresentation. The court found that although it was clear that the limitation period had run its course, leave could be granted nunc pro tunc because of the special circumstances doctrine. The court also concluded that the plaintiffs had satisfied the cause of action criterion of the certification test. Following the motion, the defendants sought an order to add the following term to the already issued and entered order of the court: "THIS COURT ORDERS that, if the Court grants the Plaintiffs leave to proceed under section 138.8 of the Securities Act, R.S.O. 1990, c. S.5, as amended (the "OSA"), there are special circumstances justifying an order granting leave nunc pro tunc, despite the expiry of the limitation period under section 138.14 of the OSA. The court granted the defendants' motion, holding as follows: "The formal order does not reflect what was decided. I regard this as a mistake or oversight, of which I may be complicit, because I signed the Order as it was drafted by the parties. In my opinion, these circumstances are exceptional and it is in the interests of justice to correct this mistake in capturing in the formal order the provisions of the Reasons for Decision that were meant to be operational. Despite the arguments of the Plaintiffs, I do not see the situation at the case at bar as being an impermissible attempt to have the hybrid motion reconsidered or to re-open and challenge the October 15 Order....In the case at bar, the Plaintiffs did not attempt to commence their Part XXIII.1 claim before leave was granted, and rather it was the Defendants who brought a Rule 21 motion that compelled me to decide in advance of the leave motion whether the special circumstances doctrine applied. In this context, I do not think that my order that the special circumstances doctrine applies is conditional on a subsequent judicial finding. In the context of a Rule 21 motion, both parties asked me to decide the special circumstances issues, and I decided them once and for all.My finding that the special circumstances doctrine applies to the case at bar is not conditional on the outcome of the leave motion under the Ontario Securities Act. It may be that the special circumstances finding will be wasted if leave under Part XXIII.1 is not granted, and it may be that the finding will only useful if leave is granted, but I do not see how making the finding was premature. Given that the finding about the special circumstances was responsive precisely to the issue that the parties asked me to decide before the leave motion (and the balance of the certification motion) was argued, the decision cannot be said to have been made prematurely. Upon closer analysis, apart from being ironic, the Plaintiffs' submission on the Rule 59.06 (1) motion now before the court that the special circumstances order is premature or unnecessary is really a submission that a ruling in the Reasons for Decision that was mistakenly omitted from the formal order was improper and ought not ever to have been made. If that is what the Plaintiffs mean to say, then it is just another way of saying that the Plaintiffs think I erred in making any order. If so, then it is responding party and not the moving party that is challenging my order on this motion to amend.It is not for me to decide whether my special circumstances order was made in error, but I can and do decide that the special circumstances order was advertently made in my Reasons for Decision and inadvertently omitted from the October 15 Order and, accordingly, the Defendants' motion should be granted. If the Plaintiffs genuinely object to the special circumstances order on the grounds of its contingency or its prematurity, then they will have to appeal the arguably erroneous order. And, once again, it will be for an appellate court to determine whether the order was a final or an interlocutory order." Dubé c. Québec (Ville de), 2013 QCCS 1172<http://www.canlii.org/fr/qc/qccs/doc/2013/2013qccs1172/2013qccs1172.html>: The plaintiff commenced a proposed class action against the City of Quebec and the City of L'Ancienne-Lorette alleging the frequent discharge of sewage from his neighborhood's storm sewers. There were a number of other individual actions filed in the Quebec Superior Court relating to the same problem. In June 2006, the court ordered that one of the individual actions (Case No. 1) proceed first, and suspended the remaining actions pending the outcome of Case No. 1. In March 2011, the court found the city of Quebec responsible for the claims advanced in Case No. 1, but made no findings against the City of L'Ancienne-Lorette because it was merged with Quebec City. That decision was appealed. Given the delays and the number of people involved in these actions, the plaintiff requested that the motion for authorization proceed, so that the remaining proceedings could be stayed if the motion for authorization was granted. The court recognized that the Court of Appeal would be dealing with some fundamental issues that were relevant to this and the other actions. It was therefore not appropriate to allow the motion for authorization to proceed at this time. The plaintiff's motion was dismissed. Rooney v. Arcelormittal S.A., 2013 ONSC 6062<http://www.canlii.org/en/on/onsc/doc/2013/2013onsc6062/2013onsc6062.html>: Motion by the defendants to transfer the proceeding from London, Ontario to Toronto. The defendants argued that the proceeding had virtually no connection to London, all of the important events related to the action occurred in Toronto, and the overwhelming majority of defendants and prospective witnesses were in Toronto. The plaintiff, on the other hand, submitted that the action had a multi-national character, it was not Toronto centric and, as a practical matter, at most there was a de minimis increase in costs if the action were to remain in London. The court noted that the plaintiffs had the right to choose the venue of their action. The defendants bore the onus to satisfy the court that a transfer was desirable in the interests of justice, considering the enumerated factors under Rule 13.1.02(2) of the Ontario Rules of Civil Procedure. After reviewing the applicable factors, the court concluded that the action could best be described as global in nature. The plaintiffs had also described a rational and reasonable explanation for commencing the action in London. The court rejected the proposition that the action had the substantial connection to Toronto claimed by the defendants, or that a transfer of the action to Toronto would save considerable time and expense. Finally, it was not enough for the defendants to emphasize that none of the enumerated factors favored London as the venue. In the result, the court found that the defendants had failed to establish that the interests of justice required a transfer of the action to Toronto, and dismissed the motion. A second motion before the court concerned a request for an order to stay certain valuation proceedings that were before the Toronto Superior Court of Justice (Commercial List) to fix a fair value for the common shares held by certain dissenting shareholders. The court was satisfied that there was substantial overlap of issues in the valuation proceedings and the class action. There was no real benefit in having the valuation proceeding finalized while an overlapping issue remained to be dealt with in the class action. A temporary stay would not result in injustice or prejudice to the defendants. Accordingly, the valuation proceeding was stayed until the motion for certification was finally determined. Fontaine c. Canada (Procureur general), 2013 QCCS 553<http://ecarswell.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=999&FindType=Y&SerialNum=2029891202>: An adjudicator awarded damages to a former Indian Residential School student after finding that he suffered sexual abuse at the hands of the moving party, among others, during his time at the school. The moving party sought, and was denied an order to overturn this decision. The moving party alleged that his constitutional rights were violated by the adjudication process as he was not invited to give testimony or permitted to cross-examine the claimant. The court concluded that there was no violation of Charter rights and that although the moving party was not able to present his version of the facts, in return he was given immunity from prosecution.

STATISTICS

We collected some statistical information for a recent press interview that you may find of interest.

Number of Filings by Province Since January 1, 2011 as Reported to CBA Database (Obviously Ontario is still cheating in terms of ensuring that all claims are properly reported. C'mon guys, get with the program!)

British Columbia: 40

Alberta: 13

Saskatchewan: 9

Manitoba: 0

Ontario: 39

Quebec: 116

New Brunswick: 1

Nova Scotia: 8

Prince Edward Island: 0

Newfoundland: 2

Number of Certifications by Province (including consent and for settlement) Since January 1, 2011

British Columbia: 10

Alberta: 0

Saskatchewan: 2

Manitoba: 0

Ontario: 35

Quebec: Not available

New Brunswick: 0

Nova Scotia: 3

Prince Edward Island: 0

Newfoundland: 0

CERTIFICATION

Haghdust v. British Columbia Lottery Corporation, 2013 BCSC 16: The plaintiffs in two separate actions against the BC Lottery corporation applied to consolidate their actions and have the consolidated action certified as a class proceeding. The actions arose because BCLC declined to pay the plaintiffs jackpot prizes on the basis that they were participants in BCLC's voluntary self-exclusion program. The Court consolidated the actions and certified them as a class proceeding, with both plaintiffs as representative plaintiffs.

Amyotrophic Lateral Sclerosis Society of Essex (County) v. Windsor (City), 2012 ONSC 6753: Certification of class action involving the payment of bingo license fees which the plaintiff alleged were an illegal tax. The original motion for certification, approved by Justice Patterson, was consented to by the defendant but on the basis that the Limitation Act would apply, thus limiting the class definition to a two-year time period. The plaintiffs successfully appealed this decision limiting the class and the matter was remitted to Justice Patterson. Upon reconsideration, he determined that his original decision involved determining the merits of the claim, rather than a proper examination of whether the plaintiffs had met the low threshold of showing a "reasonable cause of action". Hence, the action was certified and the class definition extended beyond the prima facie restrictions of the Limitations Act.

Union des consommateurs c. Concession A25, s.e.c., 2013 QCCS 76: Amended application for authorization as class proceeding granted in the A-25 motorway bridge toll class action.

Jackson v. Canadian National Railway, 2012 ABQB 652: The plaintiff brought motion to certify a class action alleging that the defendant unjustly enriched itself by means of freight rates charged to class members. The plaintiff's motion was dismissed. The pleading failed to disclose a cause of action as the fees were sanctioned by regulation. Furthermore, individual issues vastly overwhelmed the common issues. In the alternative, the court granted the defendant's motion for summary judgment on grounds that plaintiff had no genuine issue for trial and was barred by limitations.

Matthias v. British Columbia Medical Association, 2013 BCSC 251: The plaintiff physician brought action against the BC Medical Association, the professional association which negotiated benefits on behalf of BC physicians with the government, and in turn charged physicians certain fees. The plaintiff alleged that administration fees charged to physicians who were not members of the association (i.e. who did not pay the association's membership fees) were arbitrary and excessive, and were either unlawful or otherwise unjustified. The plaintiff advanced claims for breach of trust, breach of fiduciary duty, conversion, violation of the Charter of Rights and Freedoms, and unjust enrichment.

The plaintiff brought a motion to certify the action as a class proceeding on behalf of non-member physicians who were charged fees by the association. The court found that whether the plaintiff could advance the proposed causes of action essentially depended on whether it could be said that the alleged charges were somehow unlawful or unjustified. It concluded that it was lawful for the government to choose the association as the agent through which it dealt with all doctors, including non-members.

Further, the association's value to the plaintiff and other proposed class members was not merely the cheapest imaginable administration fee for the benefits they accessed, but the unquantifiable value of the association's negotiations with the government on behalf of all doctors. The plaintiff was entitled to a voice in whether or not the association should be pursuing certain objectives, and how much doctors should contribute, if she chose to join. If she did not, then she would be obliged to pay because the government's choice to deal with doctors through the association was lawful and, in turn, the association's collection of dues from non-members was justifiable. As such, the court rejected the plaintiff's allegations that the government and the association could not bargain on her behalf. Her claims for breach of trust, breach of fiduciary duty, conversion, violations of the Charter and unjust enrichment were all doomed to fail.

As there was no viable cause of action, the plaintiff's motion for certification was dismissed.

Cloud v. MTS Allstream Inc., 2013 MBQB 16: Motion for certification of action as a class proceeding was dismissed. The plaintiff essentially claimed that a certain "platform change" by the defendant cellular phone carrier caused his phone to become "defunct". The court found serious deficiencies in the statement of claim but held that it was not plain and obvious that the pleading did not disclose a cause of action. However, the court went on to find that the remaining criteria for certification were not met. In its concluding remarks, the court made the following statement about the standard to be met on certification motions:

"[48] ... Class actions serve a valuable purpose in society. However, here there has been a lack of solid investigation from which sufficient detail might be drawn to substantiate the perpetuation of the plaintiff's case as a representative claim. I have been given the impression that the plaintiff feels that because many cases suggest that the threshold for some of the certification criteria is low and that courts easily allow amendments to pleadings to allow actions to proceed as class actions, that he is entitled almost of right to his certification. In my view, if a party wishes to engage the provisions of The Class Proceedings Act, there is a responsibility to do more than simply present a single plaintiff to the court with a number of general, sometimes confusing, and unsubstantiated factual allegations and argue that his action should be certified."

APPEALS

Brown v. Attorney General of Canada, 2013 ONCA 18: Appeal from the order of the Divisional Court setting aside the order of the motion certifying "identity genocide" class action. The proposed class action concerned allegations against the Federal government concerning a practice in Ontario between 1965 and 1984 in which welfare authorities removed Aboriginal children from their families and communities and, in accordance with court orders, placed them with non-Aboriginal families. The plaintiffs alleged that during this time period, some 16,000 Aboriginal children were removed from their families and communities and thus lost contact with their Aboriginal cultural identity including their language, culture, customs and heritage, as well as any benefits they might have as status Indians under the Indian Act.

The motion judge had noted that the plaintiffs' pleadings were deficient, but nevertheless certified the action on the condition that the plaintiffs deliver a properly pleaded fresh as amended statement of claim. The Divisional Court had overturned the motion judge's decision on the basis that the motion judge erred in conditionally certifying the class proceeding in light of the fact that the plaintiffs had not presented a viable cause of action. The Divisional Court found that the effect of the motion judge's order was to deprive the defendant of the opportunity to argue that the s.5(1) elements were not satisfied. The Divisional Court ordered that the statement of claim be struck and the plaintiffs be granted leave to amend their pleadings. It also ordered that the rehearing of the certification motion be brought before another judge.

The Court of Appeal agreed with Divisional Court's findings, noting:

[44] As this case demonstrates, identification of a cause of action is fundamental. It is impossible for the defendant to meaningfully respond to an application for certification without knowing the cause of action. The definition of the class and the identification of the common issues depend upon the nature of the cause of action. As McLachlin C.J. wrote in Hollick v. Toronto (City), 2001 SCC 68 (CanLII), 2001 SCC 68, [2001] 3 S.C.R. 158, at para. 16: "The question at the certification stage is not whether the claim is likely to succeed, but whether the suit is appropriately prosecuted as a class action". It is not possible to know whether an action can be appropriately prosecuted as a class action without identifying the fundamental issue of whether or not there is a cause of action. It is no answer that the defendant can bring a motion to decertify the action under s. 10 if the action should never have been certified in the first place.

[45] There is no question that class proceedings evolve as they work their way through the certification and case management process and that the case management judge plays an important role in guiding the evolution of the proceeding. But, certifying a class action in the absence of a statement of claim that discloses viable causes of action is not case management. Even the power to amend other aspects of the claim, such as the proposed common issues, should be exercised with caution and restraint: McCracken v. Canadian National Railway Co., 2012 ONCA 445 (CanLII), 2012 ONCA 445, 111 O.R. (3d) 745, at para. 144. The courts have recognized that there is a distinction between the cause of action requirement for certification and the other criteria set out in s. 5(1). The cause of action requirement is not dependent upon evidence but is determined on the basis of the pleadings and whether it is plain and obvious that the claim cannot succeed. Unless the allegations of fact are patently ridiculous or incapable of proof, the facts must be accepted as pleaded for the purpose of determining if there is a viable cause of action. The other criteria are evidence-based, with the courts applying a "some basis in fact" test: McCracken, at paras. 75-80. The defendant cannot respond to the evidence-based criteria in the abstract without knowing the cause of action.

[46] Once the case management judge concluded that the statement of claim did not disclose a cause of action, it was not open to him to conditionally certify the class proceeding. He could have dismissed the motion for certification, adjourned the motion for certification under s. 5(4) of the Act to give the appellants the opportunity to amend their statement of claim, or granted the Rule 21 motion and dismissed the action." The Court of Appeal also agreed with the Divisional Court that the rehearing of the certification motion should be heard by another judge, as having the motion heard before the motion judge again would "result in the case management judge sitting in review of his own decision".

Option Consommateurs c. Merck Canada Inc., 2013 QCCA 57: Appeal from the lower court's decision refusing authorization of a class action alleging side effects to an osteoporosis prevention drug. The necessary criteria to certify a class action under Article 1003 of the Code of Civil Procedure were not met. Specifically, the appeal court found that the representative plaintiff could not properly represent the class as there was no evidence she suffered from the alleged side effects, nor was there a statistically identifiable class of individuals who had taken the drug and suffered a higher than average incidence of the alleged side effects.

Kang v. Sun Life Assurance Company of Canada, 2013 ONCA 118: Appeal from the decision of the motion judge striking out numerous paragraphs of the plaintiff's Fresh As Amended Statement Of Claim. The motion judge struck out four of the plaintiffs' claims as disclosing no reasonable cause of action: the claim for breach of duty of good faith and fair dealing, the claim for breach of contract, the claim for deceit and fraud, and the claim of those class members who signed releases. Essentially, the motion judge viewed the plaintiffs' claim as a claim based on negligent or fraudulent misrepresentation in the sale of insurance policies. He found that the other claims advanced by the plaintiffs either replicated the misrepresentation claim or were not tenable in law.

On appeal, the plaintiffs contended that the motion judge took too narrow a view of their pleadings by rejecting on a Rule 21 motion their additional or alternative claims. The Court of Appeal allowed the appeal. With respect to the claim for breach of duty of good faith and fair dealing, the court found that the motion judge's reading of the pleading was too narrow. Further, the law governing the application of the duty of good faith and fair dealing to the relationship between an insurer and its insured was not settled. Nor was it plain and obvious that this claim was doomed to fail. It was therefore premature to strike this claim. Similarly, the court found that it was not plain and obvious that the breach of contract claim would fail as the terms of the contract were, at the very least, ambiguous and their interpretation was subject to debate.

As for the deceit and fraud claim, the court agreed with the plaintiffs that the motion judge had conflated the misrepresentation claim and the deceit and fraud claims. The claim of deceit and fraud based on the administration of the insurance policies was premised on a different set of allegations from the allegations underlying the claim of negligent and fraudulent misrepresentation. It concerned the defendant's ongoing conduct in administrating the policies long after the sales process during which the defendant's predecessor had made the initial misrepresentations. It did not simply repeat and replicate the plaintiffs' claim of negligent or fraudulent misrepresentation.

Further, it was not plain and obvious that the misrepresentation claim was doomed to fail. The court did agree with the motion judge's order striking the claims of class members who signed releases. Accordingly, the Court set aside the part of the order of the motion judge in which he struck out the allegations concerning breach of the duty of good faith and fair dealing, breach of contract, and deceit and fraud. Costs were awarded in favour of the plaintiffs in the amount of $20,000.

Gay v. Regional Health Authority 7, 2013 NBCA 10: Following the filing of written submissions by the appellant and the respondents, the appellant applied for leave to file "reply submissions", a document for which no explicit provision existed in the New Brunswick Rules of Court. The additional reply submissions were aimed at addressing the "important issue" of the interpretation of s.31(1)(c) of the New Brunswick Class Proceedings Act, which prescribes a condition precedent to an aggregate damages award.

The Court accepted that the proposed reply submission was a welcome addition to the material at the Court's disposal. However, it found the submissions to be deficient as they failed to touch upon the interpretive effect of the French version of s.31(1)(c). It therefore allowed the motion to file the reply submission but rescheduled the hearing of the appeal to allow for further submissions by both the appellant and the respondents on the s.31(1)(c) issue.

Rousselet et al. c. Corporation de l'Ecole Pollytechnique, 2013 QCCA 130: Appeal from the order of the Superior Court of Quebec refusing to authorize retiree pension action to proceed by way of class proceeding dismissed.

Pardhan v. Bank of Montreal, 2013 ONSC 355: Motion for leave to appeal the certification order in teeth whitening class action denied.

Jones v. Zimmer GMBH, 2013 BCCA 21: Appeal from the order of the lower court certifying hip implant class action dismissed. The appellants argued that the common issues should not have been certified by the lower court judge, that the common issues were not supported by a "basis in fact" and that the judge relied upon "irrelevant and inadmissible evidence". The Court of Appeal determined that the lower court judge was correct to rely on expert evidence along with evidence of events in the United States and Europe in coming to the conclusion that the action should be certified.

Rhodes v. Cie Amway Corp., 2013 FCA 38: The Federal Court of Appeal dismissed the appeal from the decision of the Federal Court staying the proposed class action so that the parties could resolve their dispute by arbitration pursuant to their contractual arrangement. In doing so, the Court held that a private claim for damages brought under section 36 of the Federal Competition Act was arbitrable. Court held that only where the statute in question can be interpreted or read as excluding or prohibiting arbitration will the courts refuse to give effect to valid arbitration agreements.

Union des consommateurs c. Vidéotron, s.e.n.c., 2012 QCCA 2313: The plaintiff was denied permission to appeal four interlocutory orders related to examination for discovery. The Court determined that none of the criteria for appeal under Article 29 of the Code of Civil Procedure was satisfied: The orders granted did not decide the issues in part, could be remedied by a final judgment and did not create unnecessary delays in the proceedings.

Schneider v. Royal Crown Gold Reserve Inc., 2013 SKCA 1: The defendant law firm sought leave to appeal chambers judge's decision to certify class action alleging financial loss due to negligence of defendants. In certifying the action, the chambers judge refused to grant the defendant's motion to strike the claim on the basis that it was without merit and/or that was no recognizable duty of care between a law firm and non-client. The Court of Appeal refused to grant leave to appeal.

Koubi v. Mazda Canada Inc., 2013 CarswellBC 37 (SCC): Leave to appeal to the Supreme Court of Canada denied in a class action concerning allegedly defective vehicle door locks. BC Court of Appeal had declined to certify waiver of tort allegation on basis that statutory breaches could not create foundation of the cause of action.

COMMON ISSUES TRIAL

Jeffery v. London Life Insurance et al., 2013 ONSC 347: On appeal of common issues judgment, the Court of Appeal upheld the trial judge's finding that withdrawals by the defendants from certain participating insurance policy accounts were illegal but allowed the defendant's appeal with respect to the remedy section of the lower court's judgment. The parties were ordered to attempt to agree on amounts to be returned to the participating accounts. As the parties were unable to come to an agreement, the matter was returned to the trial judge for reconsideration.

The trial judge calculated the amounts to be returned to the accounts and set the effective date of unwinding. It dismissed the plaintiffs' argument with respect to the effects of inflation. Finally, the judge held that the manner of distribution of the funds was to be agreed upon among the parties and submitted to the court for approval.

SETTLEMENT AND COUNSEL FEES

Eidoo v. Infineon Technologies AG, 2013 ONSC 853: Settlement of four Dynamic Random Access Memory device price fixing class actions was approved by the Ontario Superior Court of Justice. In doing so, the court noted that the absence of a distribution scheme raised a serious problem in determining whether approving the settlements was in the best interests of those affected by them, but found that it would not be in the best interests of the class members to reject the settlements on this basis:

"[58] In this regard, it must be recalled that the settlements are not just monetary contributions from the settling defendants. Under the settlements, the settling defendants provide cooperation in the prosecution of the litigation against the remaining defendants. Thus, in addition to removing a reasonable and fair alternative to litigation rejecting the settlements would increase the risk of the litigation as it resumes against all of the defendants."

Accordingly, notwithstanding the absence of a distribution plan, the court found that the settlements were fair, reasonable and in the best interests of the class as a whole. Class counsel sought a fee based on 30% of the value of the settlements. The court found that, at this juncture of the litigation and without class counsel having completed the work of a distribution plan, a 30% fee was not fair and reasonable. Accordingly, the court awarded class counsel a fee of 20% calculated against all five settlements achieved to date plus disbursements to date. The court deducted from this award the fee award already made in the one previously settled action.

Bratton v. Samsung Electronics Co., 2013 ONSC 939: Partial settlement in Static Random Access Memory price fixing case was approved by the Ontario Superior Court of Justice. Class counsel had incurred fees of $427,000 and disbursements of $165,000. Class counsel decided not to seek to recover fees at this time, but instead asked that the courts award them the disbursements and applicable taxes incurred to date in the prosecution of the proceedings, and to permit the remaining settlement funds to be held in trust for the benefit of the settlement class to be used for the payment of future disbursements and/or any costs awards made against the representative plaintiffs in the proceedings. The court approved the request.

Lavier v. MyTravel Canada Holidays Inc., 2013 ONCA 92: As part of the settlement of this class action, it was agreed by the parties that class counsel would be paid an initial fee of $600,000, subject to court approval, and that if at the end of the claims process, any surplus of funds remained, class counsel could apply to court for additional fees. The defendant reserved the right to oppose the payment of any additional fees. The settlement was approved and administered, with a take-up rate of 8.85%. Class counsel sought and received approval of an additional fee in the amount of $395,000.

The defendant appealed the order granting the additional counsel fees. The appeal court noted that the motion judge's decision was premised on the fact that the take-up rate was not a particularly appropriate measure of whether the requested fee was fair and reasonable, and that the benefit to the class should be valued on the basis of the total funds made available. The court disagreed with this finding, holding that in the context of the case at hand, the take-up rate had a heightened significance that was not adequately recognized by the motion judge in his analysis of the value of the settlement.

The court went on to find that the requested fees were not fair and reasonable. To begin with, if the initial counsel fee was considered to be fair and reasonable in light of the prospective value of the fund achieved, it was paradoxical to award a greater amount without some additional justification being demonstrated. Moreover, the initial counsel fee was not a base fee; rather, it already represented a multiplier of approximately 1.2 on the lawyers' time. This multiplier reflected the risk taken by class counsel in taking on the case. This risk ended with the conclusion of the settlement agreement, and was therefore part of the context in which the motion judge approved the initial counsel fee as fair and reasonable. Therefore, any risk taken by class counsel had already been recognized and rewarded.

The court noted that the total counsel fee, as a percentage of the value of the actual recovery, represented nearly three times the value of the settlement to the class. It held that the motion judge erred in his analysis of whether the premium he ultimately chose was a fair and reasonable fee in the circumstances of the case. With the approval of the additional fee, class counsel's compensation was manifestly disproportionate to the results actually achieved for the class. As such, the court allowed the appeal and set aside the additional fee of $395,000 to class counsel.

Morgan v. Lee, 2013 ONSC 859: Proposed settlement in two pension benefit class actions approved. Counsel fees of $415,000 were approved, and were to be split between the class counsel who had advanced both actions to the post-settlement stage ($340,000 representing a multiplier of 1.5), and counsel who had been appointed as a result of the filing of a notice of change of solicitor in one of the actions around the time of settlement ($75,000 with no multiplier - the court concluded that there was no basis for a multiplier because the second counsel's retainer did not begin until after the settlement had been achieved and there was therefore no risk component justifying a multiplier).

Green v. Tecumseh Products of Canada Limited, 2012 BSC 2026: Settlement of BC cooling compressor price fixing class action between the plaintiff and certain defendants was approved. In the course of the settlement approval hearing, counsel for some of the non-settling defendants advised the court that there was a matter outstanding before the Supreme Court of Canada concerning whether an indirect purchaser had a cause of action in BC. Counsel suggested that as a precautionary measure, it was appropriate to postpone the approval of the settlement because if the Supreme Court of Canada determined that an indirect purchaser did not have a cause of action, and since all class members in the present case were indirect purchasers, the entire proceeding could prove to be a nullity. The court found that there was no reason to delay approval of the proposed settlement. While it was possible that the Supreme Court of Canada decision could affect the settlement, there was no reason to require the parties to appear again.

Elliot Estate v. Joseph Brant Memorial Hospital, 2013 ONSC 124: The court approved the settlement of class action alleging that the defendant's negligence caused approximately 223 illnesses (including 91 deaths) due to the C. difficile bacteria, of which 91 died. The settlement provided for a total of $9 million to be distributed according to the severity of the class members' symptoms. Proposed counsel fees of $1.12 million were also approved.

Long v. Beiersdorf Canada Inc., 2012 QCCS 6339: Consent certification and settlement approved in a class action alleging that the defendant misrepresented that a cream it manufactured was capable of causing weight loss.

Option Consommateurs c. Infineon Technologies, a.g., 2012 QCCS 6405: The Superior Court of Quebec approved the consent certification for the purpose of price fixing settlement, subject to the approval of the British Columbia and Ontario Courts and in accordance with the Canadian Judicial Protocol for the Management of Multi-Jurisdictional Class Actions.

Union des consommateurs c. Banque Nationale du Canada, 2012 QCCS 6388: Settlement and class counsel fees approved in a class action for reimbursement of illegal bank charges.

Markus c. Reebok Canada Inc., 2013 QCCS 549: The Superior Court of Quebec approved counsel fees for Quebec counsel of $150,000 following settlement of the Reebok "toning equipment" class action.

EVIDENCE AND DISCOVERY

Charlton v. Abbott Laboratories Ltd., 2013 BCSC 21: Application by defendant drug manufacturers for the production of medical records in a pharmaceutical class action. The defendants contended that it was necessary to obtain the records to properly argue the common issues portion of the certification hearing. The court dismissed the application on the grounds that that the medical records were not necessary. The certification stage was to be focused on the procedural validity of the claims advanced by the plaintiffs, not the underlying facts.

Fontaine v. Canada (Attorney General), 2013 ONSC 684: Motion to strike out affidavits in Indian residential schools class action was granted in part. Motion for directions dismissed.

Canadian Imperial Bank of Commerce v. Deloitte & Touche, 2013 ONSC 917: The parties brought two refusals motions requiring further answers to questions asked during examinations for discovery. In considering the motion, the court enumerated 8 categorical justifications for refusals:

(1) unanswerable - the question is not capable of being answered, which is to say that the question is vague, unclear, inconsistent, unintelligible, redundant, superfluous, repetitious, overreaching, beyond the scope of the examination, speculative, unfair, oppressive, or a matter of rhetoric or argument;

(2) immaterial - the question is not material, which is to say that the question falls outside the parameters of the action and does not address a fact in issue;

(3) irrelevant - the question is not relevant, which is to say that the question does not have probative value; it does not adequately contribute to determining the truth or falsity of a material fact;

(4) untimely - the question is not relevant to the class period because it concerns events or matters outside of the class period, or more generally, it concerns events temporally unconnected to a cause of action or defence;

(5) idiosyncratic or uncommon - the question is not relevant to the common issues because it concerns an individual inquiry that was not certified for the common issues trial;

(6) answered - the question or the documents relevant to the question have already been provided by the party being examined;

(7) disproportionate - the question is disproportionate, which is to say that the question may be relevant but providing an answer offends the proportionality principle; and

(8) privileged - the answer to the question is subject to a privilege, including lawyer and client privilege, litigation privilege, or the privilege for communications in furtherance of settlement. The court went on to conduct a detailed analysis of each refusal on the applicable cross-examination, and made a finding as to whether, in each instance, the refusal fell within a justified category or whether the question had to be answered.

O'Neill v. General Motors of Canada Ltd., 2013 ONSC 924: Appeal from the order of a master requiring the defendant to produce certain corporate documents and dismissing the defendant's motion to strike certain other corporate documents from the motion record for the pending summary judgment motion by the plaintiff. The proposed class action challenged the defendant's ability to unilaterally change certain post-retirement benefits provided to executive and non-union employees during the class period. The parties reached an agreement settling the common issues and terms of the certification of the class proceeding. The ensuing certification order provided that the action was confined to a series of documents common to the class (i.e. written communications widely distributed to class members regarding their post-retirement benefits).

As part of post-certification document discovery, the plaintiff produced certain corporate records, including the defendant's 1994 and 1995 audited financial statements. The defendant argued that these corporate documents were not "common documents" within the meaning of the settlement agreement or certification order. The master held that the documents were to be produced. On appeal, the court found that the purpose of the settlement agreement was to identify a set of post-retirement benefit terms specifically designed and shared by the defendant with its employees as part of their contractual package. To include documents produced for an entirely different corporate purpose and never given to the employees as part of their benefit plan or contractual package was to ignore rather than to enforce the settlement agreement. The audited financial statements were outside the scope of admissible documents under the certification order and settlement agreement. Appeal was allowed.

Lambert (Gestion Peggy) c. Écolait ltée, 2013 QCCS 156: Prior to the motion for authorization of the action as a class proceeding, the defendant sought permission to present oral or affidavit evidence of its CEO in an effort to establish certain evidence relevant to the class action. The Court held that the proposed evidence was useful in the evaluation of the criteria for authorization. However, there was no need for oral testimony at this stage as credibility could not be assessed at the authorization stage. Therefore, the Court held that the evidence could be presented by way of an affidavit.

Nova v. Apple Inc., 2012 QCCS 6410: The defendant sought leave to obtain particulars and to conduct an out-of-court examination of the plaintiff and to file documentary evidence into the court record for the certification hearing. In response to the motion for particulars, the plaintiff amended his statement of claim to include the requested information. The plaintiff also consented to the other two motions, which were allowed by the Court pursuant to Article 1002 CCP.

Kennedy c. Colacem Canada inc., 2013 QCCS 51: The plaintiff sought to certify a class action seeking compensation and injunctive relief against nuisance created by a cement plant. In response, the defendant sought leave to examine the representative plaintiff and production of documents prior to the certification hearing. The Court dismissed the defendant's motion to interview the plaintiff, but allowed in part its motion to present certain evidence.

Conseil quebecois sur le tabac et al santé c. JTI-MacDonald Corp., 2013 QCCS 226: motion for document production under Article 2870 of the Civil Code of Quebec granted in part.

Lévesque c. Vidéotron, s.e.n.c., 2013 QCCS 426: Pre-certification motion of the defendant to interview the plaintiff dismissed. Certain admissions by the plaintiff were permitted.

COSTS

Trillium Motor World Ltd. v. General Motors of Canada Ltd., 2012 ONSC 7352: The court awarded $20,000 in costs to the plaintiff following the defendants' unsuccessful motions for production of privileged documents. The court determined that the $41,500 in partial indemnity costs requested by the plaintiff was excessive "even in the context of class action litigation where unbridled excess seems to be the norm".

MISCELANEOUS

Noella Neale c. Groupe Aeroplan inc., 2013 QCCS 261: Motion for permission to publish a simplified notice to members of the class and to approve the contents of a notice of authorization of the class action granted. In addition to publication in various newspapers and inclusion of the notice on the class counsel's website, the Court ordered that a hyperlink containing information relating to the authorization of the class action be sent out as part of the defendants' monthly newsletter.

Deraspe c. Zinc Electrolytique du Canada ltée, 2013 QCCS 548: Motion for recusal of case management judge dismissed. There was no reasonable apprehension of bias justifying recusal.

Québec (Procureur général) c. Imperial Tobacco Canada Ltd., 2013 QCCS 23: The Court refused a motion by the defendants to stay the proceedings until the conclusion of a constitutional challenge launched by the defendants. Although the court determined that the defendants raised a serious question, it did not believe they would suffer irreparable harm if the stay were not granted. It also determined that the balance of convenience, including public interest favoured continuation of the proceedings.

Ménard c. Matteo, 2013 QCCS 324: Some of the defendants in the class action asked the court for a declaration that the Autorité des marchés financiers - the body mandated by the Quebec government to regulate the province's financial markets - was a party to the proceedings or, alternatively, to add the authority as a party to the action. The authority had become involved in the proceedings to challenge the use of a certain sensitive documents in the class action. Counsel for the defendants applied for an order allowing them to interview the authority's representatives. The authority pointed to Article 16.1 of the Quebec Securities Act, which provided the authority with immunity against subpoenas. The defendants sought an order that the authority was a party to the action and could be interviewed. In effect, the defendants' motion would have the effect of circumventing Article 16.1.The court found that the authority had invoked no interest in the case and had not voluntarily intervened in the proceedings within the meaning of the Code of Civil Procedure. Further, the time had run out to add the authority as a party to the action. As such, the motion was dismissed with costs.

2012 was a fascinating year for securities class actions. From monumental decisions on leave and certification, to carriage fights and insolvency proceedings, the class action bar was treated to extensive commentary from the courts about how securities cases are to be prosecuted and defended. In our first ever Canadian Securities Class Action Update, we look back at all the cases that helped shape securities class action law in Canada over the past year.

LEAVE TO COMMENCE SECONDARY MARKET MISREPRESENTATION ACTION, AND CERTIFICATION

Sharma v. Timminco Ltd., 2012 ONCA 107: In a monumental decision that will have significant impact on the prosecution and defence of securities class actions in Canada, the Ontario Court of Appeal held that the tolling provisions of the Ontario Class Proceedings Act, 1992, do not operate to suspend the three year limitation period applicable to the statutory cause of action for secondary market misrepresentation provided by Part XXIII.1 of the Ontario Securities Act. The plaintiffs had commenced action on May 14, 2009 alleging misrepresentations by the defendants that adversely affected the share value of Timminco Limited in the secondary market. The misrepresentations were alleged to have occurred between March 17, 2008 and November 11, 2008. The statement of claim asserted two common law causes of action - negligence and negligent misrepresentation - and a statutory cause of action under s.138.3 of the Securities Act.

By early 2011, the plaintiffs had not yet sought leave of the court to commence an action under s.138.3. Part XXIII.1 imposes a limitation period of three years from the first misrepresentation for the commencement of the action, as well as a requirement that such an action be commenced only with leave of the court. Given that the first alleged misrepresentation occurred on March 17, 2008, the plaintiffs faced a limitation issue. They therefore moved for an order declaring that the limitation period was suspended pursuant to the tolling provisions of the Class Proceedings Act, 1992. Justice Perell, the case management judge in the class proceeding, granted the order, and the defendants appealed. The Court of appeal stated as follows:

"The suspension provision in s. 28(1) of the CPA provides that "any limitation period applicable to a cause of action asserted in a class proceeding is suspended in favour of a class member on the commencement of the class proceeding". These words must be read in their grammatical and ordinary sense, in the full context of the scheme of the CPA, its object and the intention of the legislature. [citation omitted] ... Without leave having been granted, a s. 138.3 cause of action cannot be enforced. It cannot be invoked as a legal right. Section 138.14 says as much. Thus, giving the suspension provision in s. 28(1) of the CPA its ordinary meaning, the s. 138.3 cause of action cannot be said to be asserted in the respondent's class proceeding since no leave has been granted.

The respondent argues that it is significant that s. 28(1) requires not that a cause of action be "commenced", but only that it be "asserted". However, this choice of language is entirely appropriate. A cause of action is not commenced. That is a concept applicable not to a cause of action but to the litigation in which it is asserted.

Thus, in my view as applied to the s. 138.3 cause of action, the grammatical and ordinary meaning of the s. 28(1) suspension provision is that without leave being granted the cause of action cannot be said to be asserted in a class proceeding."

The Court found that this interpretation was consistent with the purposes of the tolling provisions of the class proceeding legislation (to protect class members from the operation of limitation periods without the need to themselves pursue individual actions) and the limitation provisions of the securities legislation (to ensure that secondary market claims proceeded with dispatch). Further, the Court rejected the plaintiff's interpretation of the legislation, as it would put a class plaintiff in a better position (in relation to the limitation period) than he would have been in had he commenced an individual action.

Accordingly, the Court of Appeal concluded that for a secondary market misrepresentation cause of action to be "asserted" in a class proceeding, so as to trigger the tolling provisions of the class proceedings legislation, leave must first be granted. Since the plaintiff had not obtained leave, the tolling provision had not been triggered. This in essence, disposed of the plaintiff's secondary market claim, as it was barred by the expiry of the limitation period.

Leave to appeal to the Supreme Court of Canada was dismissed.

This decision has been the subject of widespread debate among the class action bar. While defence counsel view the decision as creating certainty for companies and facilitating more efficient litigation, the plaintiff’s bar has pointed out that the decision causes undue prejudice to investors and impedes the aims of the Securities Act – namely, to protect investors from fraudulent or unfair practices and to foster fairness, efficiency and confidence in capital markets. As will be seen below, Canadian courts have also struggled with applying Timminco.

Green v. Canadian Imperial Bank of Commerce, 2012 ONSC 3637: Application for leave and certification in proposed class action against CIBC dismissed. Justice Strathy concluded that the plaintiffs had met the test for leave in s. 138.3 of the Ontario Securities Act and the test for certification in s. 5(1) of the Ontario Class Proceedings Act, 1992. However, relying on the Ontario Court of Appeal's decision in Timminco (which was released during the hearing of the CIBC leave/certification application), Justice Strathy held that the plaintiffs' right to pursue the Securities Act cause of action was time-barred, as leave was not obtained prior to the expiry of the three year limitation period. With respect to the plaintiff's request for an order nunc pro tunc or pursuant to the “special circumstances” doctrine, Justice Strathy held, with obvious regret and sympathy for the plaintiff, that the court did not have jurisdiction to revive a limitation period that had expired due to the failure to obtain leave within three years under either principle.

Ultimately, as the Securities Act claim had no possibility of success and as no other cause of action was available to the plaintiffs (the cause of action for negligent misrepresentation was properly pleaded, but was not suitable for certification because the issue of reliance could not be address on a class-wide basis), certification would serve no purpose and both motions were dismissed.

Silver v. Imax Corp., 2012 ONSC 4881: Defendants' motion to dismiss the claims of the plaintiffs for secondary market misrepresentation on the ground that they were barred by the three year limitation period in the Ontario Securities Act was dismissed. This was another motion arising out of the decision of the Ontario Court of Appeal in Timminco. Relying on Timminco, the defendants in Silver contended that as leave was granted to proceed with the statutory claims more than three years after the misrepresentations alleged in the statement of claim, the statutory claims were time barred and had to be dismissed.

Justice van Rensburg agreed with the defendants that Timminco's impact on securities litigation in Ontario was broad and potentially far-reaching:

"The effect of Timminco is that, no matter what the plaintiff pleads in the original Statement of Claim in relation to the statutory cause of action, the limitation period continues to run at least until leave is granted. It is not sufficient to defeat the limitation period that the claim is pleaded and that leave may be obtained at some later point. If that were the case, there would never had been any question of the operation of s. 28 of the CPA or suspending the limitation period in Timminco.

While the facts of this case are more sympathetic, Timminco did not simply turn on the fact that no motion for leave had been commenced by the plaintiffs. The decision was expressed more broadly, and leads to the inevitable conclusion that, unless the order granting leave and the amendment to the claim to assert the statutory cause of action can be given effect within the limitation period, the statutory claims in these proceedings would be statute-barred."

Justice van Rensburg noted that the facts of the case before it were somewhat different than in Timminco. The evidence was that the plaintiffs had moved expeditiously to advance the motion for leave, and had not only delivered their notice of motion and completed the record, but had argued the motion within three years of the alleged misrepresentations. "There was nothing more the plaintiffs could have done to comply with the limitation period. The reasons for the delay were outside the control of the plaintiffs, having to do with the complexity of the issues that were being considered by the court for the first time, and delays occasioned during the leave motion, in particular the fact that the decision was under reserve when the limitation period expired."

Justice van Rensburg acknowledged that the question it was essentially faced with was whether there was something that could be done now to avoid the harsh result of an intervening limitation period barring the statutory claim, where there was never any question that the statutory claim was being pursued and the plaintiffs proceeded with dispatch. She concluded that the Court could exercise its inherent jurisdiction to grant an order nunc pro tunc that its order granting leave be amended to provide that leave was effective as of the last day of the hearing of the leave motion. Justice van Rensburg held: "In my view, the present case fits squarely within authorities for making a nunc pro tunc order where the plaintiffs' rights have abated through no fault of their own, while a decision has been reserved by the court. If the order granting leave is effective the date of final argument, there is no question of expiry of the limitation period. The prejudice to the plaintiffs caused solely by the court's own schedule, is avoided."

Accordingly, the Court in Silver was able to use the specific facts of the case to get around the potentially harsh effect of the Timminco decision.

Trustees of Millwright Regional Council of Ontario Pension Trust Fund v. Celestica Inc., 2012 ONSC 6083: This is another motion by the defendants to dismiss the claim against them on the basis that the plaintiffs failed to obtain leave within the three year limitation period stipulated s.138.14 of the Ontario Securities Act, and that the plaintiffs’ claim did not disclose a cause of action. The main question before the Court was whether it had jurisdiction to relieve against the prescribed limitation period pursuant to the doctrine of special circumstances.

Justice Perell commenced his analysis by acknowledging that he was bound by the decision of the Ontario Court of Appeal in Timminco. He also accepted the reality that the plaintiffs’ Part XXIII.1 claims were statute-barred. However, he went on to conclude that, as a matter of statutory interpretation, the limitation period associated with Part XXIII.1 claims was subject to the “special circumstances” doctrine, that the special circumstances doctrine provided a limited jurisdiction to make orders nunc pro tunc that had the effect of reviving a still-borne and statute-barred cause of action, and that the special circumstances doctrine could be applied to the circumstances of this case.

In coming to these conclusions, Justice Perell expanded the scope of application of the special circumstances doctrine, which had previously been adopted by Justice van Rensburg in Silver v. Imax:

“As I will discuss further below, I agree with Justice van Rensburg’s ultimate conclusion that the jurisdiction associated with the Latin maxim actus curiae neminem gravabit (“an act of the court shall not prejudice no man”) along with the court’s power to make orders nunc pro tunc can be used to extend the time for bringing a Part XXIII.1 claim, for which leave is required under s. 138.8 of the Ontario Securities Act. However, I do not agree with her that the special circumstances doctrine is not also available in appropriate circumstances.

In the above passage, which is obiter dictum from Imax, Justice Van Rensburg would limit the special circumstances doctrine to circumstances where a plaintiff seeks to amend his or her pleading to add a genuinely new, i.e. different, cause of action that does not require leave to be asserted. Given, as will be explained further below, the special circumstances doctrine considers whether the defendant was aware or ought to have been aware of the likelihood of the claim, the difference of the new claim is not a reason to preclude the availability of the doctrine nor is the factor that leave is required a reason to preclude the special circumstances. The leave requirement just intensifies the operation of the limitation period, and thus a leave requirement is not a reason for precluding the operation of the special circumstances doctrine, assuming it was otherwise available.

Indeed, I would argue that the presence of the factors that Justice Van Rensburg identifies as precluding the availability of the special circumstances are a fortiori factors that justify extending the doctrine if it were necessary to do so. If the special circumstances can be fairly employed in circumstances where a genuinely different cause of action is being added by amendment to the plaintiff’s pleading, then, a fortiori, it should be employed in circumstances where the defendant is confronting a claim that he or she expected to confront if leave were granted.”

Further, Justice Perell held that Justice van Rensberg’s reasoning with respect to the availability of orders nunc pro tunc was equally applicable to orders under the special circumstances doctrine:

“Thus, in Imax, having concluded that the jurisdiction to make orders nunc pro tunc was available, and having concluded earlier in her judgment […] that the case fit within authorities for making a nunc pro tunc order where the plaintiffs' rights have abated through no fault of their own, Justice van Rensburg made an order nunc pro tunc with the result that the plaintiffs’ action was not statute-barred.

Although the case was decided on the basis of the court’s nunc pro tunc jurisdiction, I think that the Imax case equally could have been decided the same way based on the special circumstances doctrine. I also think that the Imax decision supports my own analysis in the case at bar.

I conclude that the special circumstances doctrine potentially applies to the limitation period in s. 138.14 of the Ontario Securities Act.”

Gould v. Western Coal Corp., 2012 ONSC 5184: This is the first Ontario case in which the Court dismissed a plaintiff’s motion for leave to commence a secondary market misrepresentation action under Part XXIII.1 of the Securities Act on the basis of the evidence (as opposed to a Timminco-style limitation argument). The Court also dismissed the plaintiff’s motion to certify proceeding as a class action in relation to claims for oppression, conspiracy and secondary market misrepresentation.

In essence, the plaintiff in this case argued that the defendants had fabricated a financial crisis within the defendant company’s business in order to artificially depress the company’s stock price, so that they could enhance their shareholdings in the company at a fraction of what the shares were worth. The plaintiff claimed that, as part of this scheme, the defendants created false cash flow projections and made inappropriate write-downs, causing the company’s auditors to insist that a November 14, 2007 quarterly financial statement be qualified by a note that there was “substantial doubt about the ability of the Company to meet its obligations as they come due.” The plaintiff asserted that this contrived and unduly pessimistic news – which implied a real risk of insolvency – caused a loss of confidence in the company, causing investors to sell their securities and resulting in a dramatic drop in the share price. This in turn allowed the defendants to acquire or increase their interests in the company at a discounted price, thereby diluting the shareholdings of other stockholders.

The Court concluded that leave should not be granted because the plaintiff’s claim had no reasonable possibility of success at trial. The Court came to this conclusion for the following reasons:

1. The alleged misrepresentation was merely a factual statement that disclosed the requisite doubt about the company’s ability, using its own resources, to meet its obligations, but expressed management’s confidence that outside financing would be obtained;
2. The plaintiff’s expert evidence with respect to the need to disclose material uncertainties was not consistent with the plain meaning of the relevant GAAP principles and accounting standards; further, the disclosure in question did not portray an “impending insolvency” or an “unavoidable threat” of insolvency, as suggested by the plaintiff’s expert; it simply stated, in accordance with GAAP, that the statements had been prepared on a going concern basis, but that readers should be alerted to the fact that uncertainties exist concerning events or conditions that cast significant doubts upon the ability of the company to continue as a going concern;
3. The plaintiff and his expert played fast and loose with terminology and improperly equated the going concern note disclosure with the abandonment of going concern accounting;
4. The evidence of those directly involved in the preparation of the financial statements and public disclosures pointed to the conclusion that the going concern note was the product of a reasoned, thorough and careful consideration of the company’s financial circumstances, the requirements of GAAP and the company’s obligations to its shareholders and investors; the individuals involved in the preparation, review and approval of the disclosures were knowledgeable and experienced in such matters and discharged their obligations in a conscientious manner; further, there was no evidence that would support the plaintiff’s suggestion that the disclosures were made with the intent to misrepresent the company’s financial condition; and

Turning to the motion for certification and the claim in conspiracy, the Court noted that the plaintiff had failed to properly plead the elements of unlawful means conspiracy. Specifically, the pleading failed to set out the alleged agreement among the conspirators with particularity, lumped the defendants together, failed to provide full particulars of the unlawful acts committed by each defendant and gave no particulars of damages. Further, the Court concluded that there was no basis in fact for the existence of any common issues relating to the conspiracy claim.

Finally, with respect to the plaintiff’s oppression claim, the Court concluded that the oppression remedy applicable to this dispute was a creation of the British Columbia Business Corporations Act (the company was incorporated in BC). The statute conferred the remedy and described the manner in which it was to be enforced. The Court concluded that it had no jurisdiction to grant the remedy sought by the plaintiff because the statute expressly granted jurisdiction to the BC Supreme Court. It rejected the plaintiff’s position that, since the Court had territorial jurisdiction over the defendants, subject matter jurisdiction could be “bootstrapped” on. The Court simply did not have jurisdiction over the subject matter. The oppression claim was therefore struck.

As such, the plaintiff’s motions for leave and certification were both dismissed.

Zaniewicz v. Zungui Haixi Corp., 2012 ONSC 6061: The plaintiffs in this proposed securities class action sought leave under Part XXIII.1 of the Ontario Securities Act against certain defendants who had not defended the action and who were noted in default in August, 2012. The plaintiffs had entered into a standstill agreement with the remaining defendants, and it was agreed that the leave and certification motions relating to those defendants would take place at a later date.

Justice Perell granted the plaintiffs’ motion for leave, noting that the test for leave was “a relatively low threshold” on the evidence that the parties put before the court. Since the defendants in question were noted in default, they were deemed to admit the truth of all allegations of fact made in the plaintiffs’ Fresh as Amended Statement of Claim. These deemed admissions were held to be sufficient to satisfy the test for leave under the Ontario Securities Act. Accordingly, leave to proceed against these defendants under Part XXIII.1 of the Securities Act was granted.

Round v. MacDonald, Dettwiler and Associates Ltd., 2011 BCSC 1416, affirmed, 2012 BCCA 456: In the first British Columbia case to examine the test for leave to commence an action under the secondary market liability provisions of the British Columbia Securities Act, the Court denied the plaintiff's leave motion, holding that there was no possibility that the intended action, as framed, could succeed at trial. The action was concerned with allegations of misrepresentation by the defendant company about a proposed sale of a key asset, and failure to make timely disclosure of material changes that related to the prospect of the sale receiving ministerial approval.

The Court dismissed the plaintiff's application for leave for two reasons. First, the material facts capable of giving rise to a cause of action were concluded before the relevant statutory provisions came into effect. There was nothing in the legislation to suggest that the Legislature intended the causes of action it created to apply either retroactively or retrospectively to completed matters. Second, the plaintiff's interest in the securities of the defendant was not acquired in the secondary market. She acquired her shares through her participation in an employee share purchase plan, whereby shares were distributed from the defendant's treasury to members of the plan. Accordingly, the plaintiff did not fall within the scope of "a person who acquires or disposes" of shares of an issuer in the secondary market and, as a result, she had no cause of action against the defendant.

Having come to these conclusions, the Court found it unnecessary to address the remaining arguments of the plaintiff or issue a definitive decision on the meaning of the test for granting leave. That being said, the Court made a number of concluding remarks that may be of assistance to those prosecuting or defending secondary market liability claims in British Columbia. In particular, the Court rejected the plaintiff's contention that, given that it is the very first step a plaintiff must take in a secondary market misrepresentation action, the bar for granting leave should be set lower than the test for certification. The Court referred to the relevant provisions of the legislation, and went on to hold as follows:

"Taken together, several propositions emerge from these sections. Taken together, several propositions emerge from these sections. First, the leave application involves a review of evidence. Each side is required to provide evidence of material facts upon which each intends to rely. Secondly, the analysis must involve a weighing and balancing of the evidence of each side. It is not sufficient for the court simply to rely on material filed by the plaintiff. Thirdly, the test involves an assessment of the merits of the proposed action on the evidence. The court must analyze the evidence to decide whether it is satisfied that the "reasonable possibility" test is satisfied. Fourthly, weighing and testing the evidence to determine whether there is a reasonable possibility that the action will be resolved at trial in favour of the plaintiff is different from the test involved in certification of class actions or the test for summary judgment. Given Ms. Round's argument, this last point deserves a little more analysis.

The test for certifying class actions is not a merits test. The only "merits" component of the test is that the pleadings state a cause of action. Beyond that, the focus is on whether the pleadings reveal common issues and whether it is preferable that those common issues be certified and resolved at a trial of the common issues. The court does not analyze or weigh the likelihood of success at trial or in the action generally in deciding whether to certify the action. In this case, it is clear that the court must weigh evidence in order to assess the likelihood of success at trial. That is necessarily a merits-based analysis. Accordingly, the test for granting leave is entirely distinct from and different to the test on certification. The one provides no guidance to the other. I do not agree, therefore, that the test for granting leave is necessarily a lower test than for certifying a class action.

Similarly, more is required to grant leave than to identify a triable issue. Whether there is a triable issue does not typically involve weighing and assessing, rather than identifying, evidence. The statute mandates an approach to granting leave very different from deciding whether there is a triable issue. Cases dealing with summary judgment do not, therefore, provide any real assistance in applying the leave test. Much the same can be said for other thresholds tests such as identifying the existence of a prima facie case that exist in other areas of the law.

Establishing a reasonable possibility of success at trial involves more than merely raising a triable issue or articulating a cause of action. Equally, it does not require a plaintiff to demonstrate that it is more likely than not that he or she will succeed trial. But it is clear, in my view, that the test is intended to do more than screen out clearly frivolous, scandalous or vexatious actions. An action may have some merit, and not be frivolous, scandalous or vexatious, without rising to the level of demonstrating that the plaintiff has a reasonable possibility of success."

The plaintiff’s appeal to the BC Court of Appeal was dismissed. The Court of Appeal agreed with the lower court’s finding that there was no reasonable possibility of the plaintiff succeeding at trial because (1) the relevant events occurred before the statutory cause of action existed and the legislation could not apply retrospectively, and (2) the plaintiff had no cause of action, as she did not acquire or dispose of her shares on the secondary market.

One other interesting aspect of this case is that both the lower court and the Court of Appeal agreed that the no-costs regime under the BC Class Proceedings Act is not engaged before the hearing of the class action certification application. As such, the defendant was awarded its costs of the leave motion.

The secondary market liability provisions of the BC Securities Act are still in their infancy stage, and it will be some time before the test for leave is fully developed in this province. It is likely that, as more cases are brought under the secondary market liability sections of the BC Securities Act, the courts will provide further guidance on how the test should be interpreted and applied.

Drywall Acoustic Lathing and Insulation Local 675 Pension Fund (Trustees) v. SNC-Lavalin Group Inc., 2012 ONSC 5288: Unopposed motion for leave and certification in SNC-Lavalin securities class action. Leave was granted to commence an action for secondary market misrepresentation. The proceeding was certified as a class action. The plaintiffs discontinued their claims for an oppression remedy and for damages for common law negligence. This was approved by the Court, even though the claim under the Securities Act, unlike the claims for oppression and negligence, was associated with a "cap" on damages. In this regard, Justice Perell stated: "Speaking metaphorically, I agree that in the circumstances of this case, a cause of action in the hand is worth far more than two appealable causes of action in the bush. Accordingly, I grant leave to discontinue".

Sorenson v. Easyhome Ltd., 2012 ONSC 1946: Certification and leave to commence a secondary market misrepresentation action granted in proposed securities class action on consent of the parties.

121851 Canada inc. c. Theratechnologies inc., 2012 QCCS 699: Secondary market securities case was certified. The Court did emphasize that securities law leave requirement was higher than "colour of right" test under Quebec's certification rule Art. 1003. The court concluded: "In view of the Policy 51-201, the position advanced by [the plaintiff] suggests a reasonable possibility of success since the argument is serious and deserves careful consideration by the Tribunal. Obviously, the award may well lead to the eventual dismissal of the action, but since the factual and legal context to be the subject of legal debate reveals the presence of a serious issue to discuss and there is a reasonable chance successful, the Tribunal must allow the use."

Paris c. Lafrance, 2011 QCCS 4619: Securities class action was certified.

McKenna v. Gammon Gold Inc., 2012 ONSC 379: In an endorsement addressing certain residual issues arising out of the certification of the conspiracy claim in this class action, the Court clarified that early seller cannot be excluded from the class definition because, at least until such time as there are findings concerning the nature of the conspiracy and acts done in furtherance of the conspiracy, it could not be said with certainty that early sellers had suffered no damages as a result of the conspiracy. Further, the court set the class period with respect to the conspiracy claim and approved the appointment of the plaintiff as a representative on behalf of both primary and secondary market purchasers in relation to the conspiracy claim.

CARRIAGE

Smith v. Sino-Forest Corporation, 2012 ONSC 24: Carriage of proposed class action against Sino-Forest Corporation granted to Siskinds LLP and Koskie Minsky LLP over Kim Orr Barristers PC and Rochon Genova LLP. In doing so, the Court found that the attributes of counsel, the retainer and resources, funding, alleged conflicts of interest and the correlation between the plaintiffs and the defendants were all neutral factors. The key determining factors leading to the Court's decision included the attributes of the proposed representative plaintiffs, the definitions of class membership and class period, and the bundle of issues the Court referred to as "theory of the case, causes of action, joinder of defendants, and prospects of certification".

Of note, the Court found that one of the principal weaknesses of the claim advanced by Kim Orr Barristers was the pleading of fraudulent misrepresentation. The Court found that a pleading of fraudulent misrepresentation action added needless complexity and costs:

"Turning to the pleading of fraudulent misrepresentation, when it is far easier to prove a claim in negligent misrepresentation or negligence, the claim for fraudulent misrepresentation seems a needless provocation that will just fuel the defendants' fervor to defend and to not settle the class action. Fraud is a very serious allegation because of the moral and not just legal turpitude of it, and the allegation of fraud also imperils insurance coverage that might be the source of a recovery for class members."

Interestingly, only a few months after the release of this decision, the Ontario Securities Commission concluded its own investigation of Sino-Forest and issued allegations of fraud against the company and its executives. In a statement released on May 22, 2012, the OSC stated: "OSC Staff allege that Sino-Forest and members of its overseas management engaged in numerous deceitful and dishonest courses of conduct connected with the purported purchase and sale of timber in the People's Republic of China. Staff allege that Sino-Forest provided grossly misleading disclosure to investors and that certain former executives attempted to mislead Staff's investigation."

Simmonds v. Armtec Infrastructure Inc., 2012 ONSC 44: Carriage of proposed class action against Armtec Infrastructure Inc. granted to Sutts Strosberg LLP over Siskinds LLP. The key factors leading to the Court's decision included the nature and scope of the causes of action advanced, the theories advanced in support of those causes of action, the best interests of the class members, what is fair to the defendants and what is consistent with the policy objectives of the Class Proceedings Act, 1992.

Locking v. Armtec Infrastructure Inc., 2012 ONCA 774: The Ontario Court of Appeal held that it did not have jurisdiction to hear appeal from the lower Court’s carriage decision. Jurisdiction to do so rested with the Divisional Court with leave.

The Court concluded that because appeals from carriage decisions were not specifically addressed by the Class Proceedings Act, 1992, the avenue of appeal would be governed by the Courts of Justice Act. The Courts of Justice Act distinguishes interlocutory orders, which are appealed to the Divisional Court, from final orders, which are appealed to the Court of Appeal.  The Court determined that the carriage order was interlocutory as it did not impact the plaintiff’s access to the court system, just the format by which it would proceed.

Simmonds v. Armtec Infrastructure Inc., 2012 ONSC 5228: Leave to appeal granted to the Divisional Court from the decision of Ontario Superior Court of Justice granting carriage of proposed securities class action to Sutts Strosberg LLP. The Court noted that there are conflicting decisions with respect to the principles to be applied when determining carriage motions. “Some decisions suggest that competing theories are to be assessed only to weed out those that are patently weak, while others support a more rigorous review, albeit on a preliminary basis.”

Moreover, the Court found that the lower Court’s analysis and hence its decision were open to serious debate. Specifically, it could be argued that the lower Court’s analysis was internally inconsistent because “[b]readth of the proceeding was determined to be an advantage when it came to naming of defendants and the class period but a disadvantage with respect to the inclusion of “early sellers” and causes of action founded on waiver of tort and unjust enrichment”. In other words, “comprehensiveness and cohesiveness each prevailed half the time.” 

Locking v. Armtec Infrastructure Inc., 2012 ONSC 7274: The appellants sought leave to appeal to the Divisional Court on two issues: (1) whether the motion judge erred in his analysis of the theories and attributes of two competing class actions, and (2) if so, whether the motion judge erred in his disposition of the carriage motion. The Divisional Court granted leave to appeal. The appellants sought leave to appeal with respect to several other issues, but the Divisional Court refused to grant leave to appeal in respect of those issues. Even so, the appellant’s notice of appeal and factum made extensive reference to those other issues. The moving parties requested an order directing the appellant to deliver a revised notice of appeal and a fresh factum limited to the two issues properly before the Court. The requested order was granted.

Locking v. Armtec Infrastructure Inc., 2013 ONSC 331: Appeal from the decision of the lower Court granting carriage of the proposed securities class action to Sutts Strosberg LLP and staying the proposed action commenced by Siskinds LLP. The Ontario Divisional Court rejected the appellant’s argument that the motion judge erred in “parsing” the action too finely and assessing the merits of the actions, contrary to the test established in Setterington v. Merck Frosst Canada Ltd., noting:

“[25]  It is always preferable on a carriage motion to avoid any analysis of the merits of including or excluding a particular claim or defence and the strategy of counsel in doing so. However, it is apparent from reviewing the authorities that some carriage motions are incapable of being resolved by merely considering whether claims have “glaring deficiencies” or can be said to be “frivolous”. Sometimes it is necessary for the motion judge to conduct a more detailed and nuanced analysis, because there is no other way to properly distinguish between the actions and choose the proceeding that is in the best interests of the class. That does not mean that in doing so that motion judge has departed from the test established in Setterington, or the principles underlying that decision. We do not consider those cases that have undertaken such an analysis to have adopted a different test. Neither are we of the view that the motion judge in this case adopted a different test. Both the test he identified and the approach he took were fully consistent with Setterington.”

The Divisional Court went on to find that there was no legal error or misdirection as to facts by the motion judge and no basis to interfere with the exercise of his discretion.

APPEALS

Abdula v. Canadian Solar Inc., 2012 ONCA 211: This appeal concerned the question of whether a federal corporation that conducted the majority of its business in China and traded shares only on the NASDAQ could fall within the definition of "responsible issuer" under the Ontario Securities Act. The Ontario Court of Appeal dismissed the corporate defendant's appeal and concluded that the defendant was a "responsible issuer" pursuant to s.183.1(b) of the Securities Act. As the defendant's shares were not publicly traded in Ontario, it was not a "reporting issuer" for the purposes of s.183.1(a) of the Securities Act. However, the definition of "responsible issuer" under s.138.1 included both a "reporting issuer" and "any other issuer with a real and substantial connection to Ontario, any securities of which are publicly traded." The Court of Appeal concluded that "when the words 'publicly traded' in paragraph (b) of the definition of 'responsible issuer' are read in their entire context and in their grammatical and ordinary sense, harmoniously with the scheme of the OSA, the object of the OSA and the intention of the legislature, gleaned from the legislative history and the words chosen by the legislature, they do not mean 'publicly traded in Canada'." Since the corporate defendant was an issuer with a real and substantial connection to Ontario, and since its shares were publicly traded on the NASDAQ, it met the definition of "responsible issuer" under the Securities Act and was therefore subject to the statutory tort provisions of the Securities Act.

The Defendants' application for leave to appeal to the Supreme Court of Canada was dismissed.

Coulson v. Citigroup Markets Canada Inc., 2012 ONCA 108: Appeal from the decision of the motion judge holding that the plaintiff’s claim was barred by the limitation period in s.138 of the Ontario Securities Act and was not saved by the suspension of limitation periods provided in s.12 of the Class Proceedings Act, 1992. The underlying facts in the case were as follows: In November 1997, the corporate defendant made a public offering of its common shares in the United States and Canada. The prospectus contained certain alleged misrepresentations. On May 5, 1998, Joseph Menegon commenced a proposed class action against the defendants asserting claimed under s.130 of the Securities Act and common law negligent misrepresentation. The Ontario Superior Court of Justice dismissed Mr. Menegon’s action on March 6, 2002, holding that Mr. Menegon could not bring the s.130 claim as he purchased his shares in the secondary market, not from the primary distribution, and that he did not have a claim for negligent misrepresentation. Mr. Menegon’s appeal was dismissed by the Ontario Court of Appeal on January 9, 2003 and leave to appeal to the Supreme Court of Canada was dismissed on July 17, 2003. On July 8, 2003, the plaintiff commenced this action. The s.130 statutory cause of action is subject to a strict limitation period of 180 days after the plaintiff first had knowledge of the facts giving rise to the cause of action, or 3 years after the date of the transaction that gave rise to the cause of action.

Since the misrepresentations were made in November 1997 and publicized in the spring of 1998, the plaintiff’s action was clearly time-barred unless that bar was suspended by the Menegon action because of s.28 of the Class Proceedings Act, 1992. On the motion before the lower Court, the motion judge had found that the appeal in the Menegon action was about the common law cause of action and not about the s.130 statutory cause of action. Consequently, any suspension provided by s.28 ended with the decision dismissing the Menegon action and the lapse of the appeal period from it without an appeal being taken on the issue.

The Court of Appeal agreed with this analysis, and rejected the proposition that the suspension of the limitation period was continued by the appeal from dismissal:

“To summarize, it is clear that the Menegon appeal did not seek a reversal of the dismissal of the s. 130 statutory misrepresentation claim.  Thus s. 28(2) of the CPA did not continue the suspension of the limitation period provided by s. 138 of the OSA during the Menegon appeal.  It resumed running as soon as the time expired for appeal from the dismissal on March 6, 2001, of the s. 130 statutory misrepresentation claim.  The appellant’s identical claim was long out of time when his action was commenced on July 8, 2003.”

The appeal was therefore dismissed.

Dobbie v. Arctic Glacier Income Fund, 2012 ONSC 773: Leave to appeal from the decision of the motion judge granting the defendants’ motion requesting that certain portions of the Statement of Claim be struck (Rule 21 motion), granting the plaintiffs’ motion for leave to commence an action for secondary market representation and certifying the action as a class proceeding. On the Rule 21 motion, the Court denied leave with respect to the motion to strike the plaintiffs’ claims for secondary market misrepresentation claim and conspiracy, but granted leave with respect to the claims for negligent misrepresentation and negligence, as these claims raised issues relating to duty of care and reliance requiring appellate consideration.

Having reached these conclusions respecting the motion for leave to appeal the Rule 21 order, the Court was satisfied that the motion for leave to appeal the certification order was also to be granted. “The conclusions in relation to the Rule 21 order impact the certification requirement set out in s.5(1)(a), the definition of the Class, the delineation of the common issues and the question of whether the representative plaintiffs fairly and adequately represent the interests of the Class.”

Finally, the Court denied leave to appeal the motion judge’s order that the plaintiffs met the leave test under s.138.3(1) of the Securities Act, but did grant leave with respect to two individual defendants in relation to certain limited issues relating to their involvement in any alleged wrongdoing.  

Fischer v. IG Investment Management Ltd., 2012 ONCA 47: Appeal from the decision of the Divisional Court certifying "market timing" class action was dismissed. The principal issue before the Court of Appeal was whether the settlements procedure carried out under the supervision of the Ontario Securities Commission was the preferable procedure for dealing with the claims of the class members. The Court of Appeal rejected the reasoning of the trial court, as it focused on the substantive outcome of the OSC proceedings, rather than considering the regulatory nature of the OSC's jurisdiction and its remedial powers, as well as the lack of participatory rights afforded to affected investors by the OSC proceedings. "A consideration of these two particular characteristics compels the conclusion that the OSC proceedings would not fulfill the CPA goal of providing class members with access to justice in relation to their claims. Thus, the OSC proceedings cannot constitute a preferable procedure to the proposed class action for the purposes of the CPA." The decision of the Divisional Court's certifying the action was upheld. On June 28, 2012, the Supreme Court of Canada granted the defendant’s appeal from the Court of Appeal’s judgment.

Menard c. Matteo, 2012 QCCA 2027: The defendant's application for leave to appeal requesting clarification of the plaintiff's pleadings in a securities class action dismissed.

BANKRUPTCY AND INSOLVENCY

Timminco Ltd. (Re), 2012 ONSC 2515: The class action plaintiff brought a motion for an order lifting the stay of proceedings to allow him to continue his action against the defendants. The plaintiff argued that the stay could be lifted to permit the class action to proceed on the condition that any potential execution excluded the company’s assets. As a practical result, this would limit recovery in the class action to the proceeds of the D&O insurance policies, or in the event that the insurers declined coverage because of fraud, to the personal assets of those officers and directors found responsible for the fraud. The plaintiff submitted that this outcome was consistent with the judicial principle that the CCAA is not meant as a refuge insulating insurers from providing appropriate indemnification.

Counsel for the company pointed out that although the company continued to operate as a going concern, its management team was substantially reduced and lifting the stay would require the management team to spend significant amounts of their time dealing with the class action as opposed to focusing on the CCAA proceedings and the sale process.

After weighing the competing interests of, and potential prejudice to, each side, the Court dismissed the motion, holding that at this time, the primary focus had to be on the sales process and that it was important for the executive team to devote its energy to ensuring that the sales process was conducted in accordance with the prescribed timelines. A delay in the sales process could well have a negative impact on the creditors of Timminco. As such, the balance of justice favored leaving the stay or proceedings in place.

Sino-Forest Corporation (Re), 2012 ONSC 4377: The CCAA Court held that the claims brought against the insolvent company in several class action lawsuits on behalf of current and former shareholders of the company, and the indemnity claims brought by the company’s underwriters and auditors, were “equity claims” that were subject to the stay of proceedings under the CCAA.

Sino-Forest Corporation (Re), 2012 ONCA 816: Appeal dismissed from the decision of the CCAA court holding that the claims of shareholders were "equity claims" that were subject to the stay of proceedings. The Court of Appeal arrived at its decision based on "the expansive language used by Parliament, the language Parliament did not use, the avoidance of surplusage, the logic of the section, and what, from the foregoing, we conclude is the purpose of the 2009 amendments [to the CCAA]".

Sino-Forest Corporation (Re), 2012 ONSC 6275: The Ad Hoc Committee of Purchasers of Sino-Forest securities, including the representative plaintiffs in the proposed class action, applied to lift the stay of proceedings imposed under the CCAA as against Sino-Forest's auditors, underwriters and formers directors of the company in order to allow the leave and certification motions to proceed in the proposed class action. The Court denied the motion, noting as follows:

“As I stated in Timminco Limited (Re) 2012 ONSC 215 (CanLII), 2012 ONSC 215 at [17]: Courts will consider a number of factors in assessing whether it is appropriate to lift a stay, but these factors can generally be grouped under three headings: (a) the relative prejudice to parties; (b) the balance of convenience; and (c) where relevant, the merits (i.e. if the matter has little chance, there may not be sound reasons for lifting the stay). See Canwest Global Communication (Re), [2011] O.J. No. 1590 (S.C.J.).

In the circumstances of this case, I see little prejudice to the Class Action Plaintiffs if the stay were to be maintained for a short period of time which could result in clarity being brought to the proceedings. Although there is a concern that memories of key witnesses will fade with the passage of time, I have not been persuaded that maintaining the stay for a short period of time will be detrimental to the Class Action Plaintiffs on that account.

On the issue of the limitation period, clearly this is an issue that has to be kept in mind, but maintaining the stay for a short period of time would not appear to negatively impact the Class Action Plaintiffs.

On the other hand, the concerns raised by counsel on behalf of the auditors and the underwriters have persuaded me that, the balance of convenience favours these parties, and at this time, they need to focus on issues arising out of the appeal of the Equity Claims Decision as well to focus on the Plan itself.

Accordingly, it seems to me that, having taken into account the relative prejudice to the parties and the balance of convenience, it is reasonable and appropriate to maintain the stay at this time, on the basis that the issue can and should be re-evaluated shortly after the scheduled meeting of creditors to consider the Plan, but in any event, no later than December 10, 2012.

Further, although the appeal of the Equity Claims Decision and the upcoming meeting of creditors and possible sanction hearing does not have any direct impact on the three former directors, I am of the view that it is appropriate to also maintain the stay with respect to these individuals so that the Class Actions can ultimately proceed in a more organized fashion.”

Sino-Forest Corporation (Re), 2012 ONSC 7014: In the lead up to the motion to sanction the plan of compromise in the Sino-Forest insolvency proceedings, counsel for certain institutional equity funds who had suffered financial loss as a result of Sino-Forest saga (and who are not represented by class counsel in the Sino-Forest class action) asked for an adjournment of the sanctioning motion. The Court found that the funds’ motion was premature and that the issues they had raised about the propriety of the settlement terms (particularly as they pertained to certain anticipated settlements in the class action) could be addressed on the return of the motion to approve the specific settlement and releases. The motion to adjourn was denied.

Sino-Forest Corporation (Re), 2012 ONSC 7050: Plan of compromise was sanctioned by the Ontario Superior Court. Although the proposed form of the plan did not settle the class action claims, the class action plaintiffs did not oppose the plan. The plan did contain terms that would be engaged if certain conditions were met (including if the proposed class action settlement with Sino-Forest’s auditors received court approval). As part of the settlement the noteholder class action claimants will be entitled to their pro rata shares of 25% of the litigation trust interests arising out of the plan.

THIRD PARTY FINANCING

Smith v. Sino-Forest, 2012 ONSC 2937: Third party financing in securities class action against Sino-Forest granted. As with previously approved third party financing agreements, the third party financer will receive a commission of 7% of the amount of settlement or judgment, after deduction of lawyers' fees and disbursements and any administration expenses, capped at a maximum of $10 million.

SERVICE

Zaniewicz v. Zungui Haixi Corp., 2012 ONSC 4904: In this proposed securities class action alleging misconduct in trading the shares of Zungui Haixi Corporation on the TSX, the plaintiff brought a motion for an order for substituted service. Some of the defendants were residents of the People's Republic of China which only allowed service through the Chinese government - a slow and expensive process. In order to begin the action within the limitation period, the plaintiff was granted an order for substituted service to the defendants' last known address.

Gray v. SNC-Lavalin Group Inc., 2012 ONSC 3735: The plaintiffs in this proposed securities class action sought to substitutionally serve two individuals outside of Ontario. The Court recognized the 3 year limitation period for obtaining leave to commence a secondary market misrepresentation, and accepted that as a result of Sharma v. Timminco, the limitation period was not suspended by the Class Proceedings Act, 1992, and that there was a deadline for a court decision for the leave motion. Further, all other defendants had been served. The plaintiffs had also attempted to serve the two individual defendants locally, but had failed to do so. Finally, they had made attempts to serve one of the individuals in Switzerland (where he was incarcerated) in accordance with the Hague Convention.

The Court was satisfied that the criteria for substituted service had been satisfied but for the possible complication that one of the defendants was a detainee in a Hague Convention state. The Court accepted that where service is made outside Ontario in a signatory state of the Hague Convention, the service will not be effective unless it is compliant with the requirements of the Convention. It further held that an order for substituted service cannot be made when the person to be served resides in a jurisdiction that is signatory to the Hague Convention. “Service in a country that is a signatory to the Hague Convention must be done exclusively in accordance with the Hague Convention.” Ultimately, however, the Court managed to get around Hague based on the fact that the individual defendant, while detained in Switzerland, was normally a Canadian resident and so the rule from Khan Resources did not apply to him. Order for substituted service was therefore granted.

MOTION TO STRIKE

Frank v. Farlie, Turner & Co., LLC, 2011 ONSC 5519: This decision pertains to a procedural motion to strike certain claims in a securities class action. The Court struck out the claim of punitive damages against directors and officers. In their action against the directors and officers of the company, the plaintiffs had agreed to withdraw their common law claims and only pursue their statutory claims under Part XXIII.1 of the Ontario Securities Act. They also claimed $20 million in punitive damages. The Court held that Part XXIII.1 of the Securities Act did not support a claim for punitive damages and that holding otherwise would allow plaintiffs to circumvent the cap on liability under the Act:

“[…] the argument that persuades me is the officers and directors' argument that it is plain and obvious that a claim for punitive damages supported only be the predicate wrongdoing of a breach of Part XXIII.1 of the Ontario Securities Act is inconsistent with the scheme of Part XXIII.1, which carefully calibrates and achieves a balance between compensation for a director's or officer's contraventions of the Act and discouraging persons from becoming officers and directors.

I agree that allowing a claim for punitive damages would circumvent the policies of Part XXIII.1 of the Act of having caps on the quantum of purely compensatory damages and lifting those caps in exceptional circumstances.

The case at bar demonstrates how both policies of the Act would be circumvented by an award of compensatory damages. Visualize: if the court were to determine that a director contravened Part XXIII.1 of the Act, the director's liability would be capped, but that cap would be lifted if the court were persuaded that the contravention of the Act deserved the condemnation of punitive damages. If the court were to determine that a director contravened Part XXIII.1 knowingly, then the cap on compensatory damages would be lifted and then the exposure to liability of the director would be further extended beyond compensatory damages to add a claim for punitive damages, which are non-compensatory but serve a different purpose.”

The Court also struck out the claims against one defendant – an ex-director of the company – for failure to plead the constituent elements of a cause of action, without leave to amend, and stayed the action against another defendant on the ground that Ontario did not have jurisdiction simpliciter over the claim against them.

Ravary c. Fonds mutuels CI inc., 2012 QCCS 5771: The defendants brought motions seeking numerous orders relating to the plaintiff's certified securities class action, including an application to strike portions of the plaintiff's statement of claim, a request for clarification of the plaintiff's claims, a request for particulars, and an order to dismiss the action. All motions were dismissed.

MISCELLANEOUS MOTIONS

Silver v. Imax Corp., 2012 ONSC 1047: The Court granted standing to a class member – a US Merger Fund who was lead plaintiff in pending US proceedings – to participate in the motion respecting the notice campaign in the Canadian class action. On the motion respecting the notice campaign, the Court heard from the parties and the Merger Fund about the content, timing and form of notice. With respect to the timing of the motion, the Merger Fund argued that no notice should be issued until the US proceedings caught up with the Canadian proceedings, and that any notice should await the outcome of a motion to amend the class, to be issued with notice of a settlement in the US proceeding. The Court disagreed, holding that notice of certification of a class proceeding should ordinarily be given to class members as soon as practicable, and that delay in notice is inconsistent with the need to protect the procedural rights of class members, as well as the respect for their “litigation autonomy”. Given the likelihood that the US proceedings and anticipated settlement could result in significant delays, the Court ordered that notice be published promptly in the Canadian litigation.

With respect to the content of the notice, the Court held that the notice should refer to the US proceedings and provide contact information for recipients to obtain more information about such proceedings. Further, the court held that class members should specifically be advised that it is unnecessary to opt out of the Ontario proceedings in order to participate in the US proceedings.

Smith v. Sino-Forest Corp., 2012 ONSC 1924: Motion by the plaintiffs in proposed class action for orders requiring the defendants to deliver statements of defence and for the certification and leave motions to be heard together. Justice Perell ordered that, with the exception of an anticipated funding motion, there would be no other motions before the leave and certification without leave of the court, and that the leave and certification motions would be heard together.

With respect to the delivery of the statement of defence, Justice Perell acknowledged that as a general rule, it is desirable that pleadings be closed prior to the certification motion. He also noted that, with respect to actions for secondary market misrepresentation, which require leave of the court, a defendant who files an affidavit in the leave motion cannot thereafter protest that it would be unfair to require it to file a statement of defence. “Delivering an affidavit under s.138.8 is essentially the same as delivering a statement of claim or defence.”

Practically speaking, Justice Perell saw three potential types of defendants in cases requiring leave to commence an action for secondary market misrepresentation:

(a)  those defendants who delivered a s.138.8(2) affidavit under the Securities Act: these defendants must deliver a statement of defence;

(b)  those defendants against whom there are no secondary market disclosure allegations and who thus have no right or need to deliver a s.138.8(2) affidavit and who choose to deliver a statement of defence: these defendants may, if so advised, simply plead in the normal course; and

(c)  those defendants against whom there are secondary market disclosure allegations and who do not deliver a s.138.8(2) affidavit but who deliver a statement of defence: with respect to these defendants, Justice Perell noted that Rule 25.07 of the Ontario Rules of Civil Procedure, which provided the rules of pleading applicable to defences, did not accommodate s.138.8 of the Securities Act. However, relying on s.12 of the Class Proceedings Act, 1992 (which authorizes the court to make any order it consider appropriate respecting the conduct of a class proceeding to ensure its fair and expeditious determination), Justice Perell found he had jurisdiction to revise the procedure for a class proceeding to accommodate s.138.8 by “notionally adding” a new sub-rule to Rule 25.07 to the effect that, in a proposed class proceeding for which leave is also being sought to commence action under s.138.3 of the Securities Act, “in a defence, a party who does not file an affidavit pursuant to Rule 138.3(2) and who delivers a statement of defence shall decline to either admit or deny the allegations of fact referable solely to his or her liability for secondary market disclosure and not referable to any other pleaded cause of action.”

Accordingly, Justice Perell ordered that a statement of defence be delivered by any defendant that delivered an affidavit with respect to the leave motion, and that any other defendant was at liberty to deliver a statement of defence. Justice Perell noted that the delivery of a statement of defence was without prejudice to the defendant’s right to bring a Rule 21 motion or to challenge whether the plaintiff had shown a cause of action as required by s.5(1)(a) of the Class Proceedings Act, 1992.

COSTS

Frank v. Farlie, Turner & Co., LLC, 2012 ONSC 6715: The defendant sought partial indemnity costs of $43,643.20 for successful motion to strike the plaintiff's claim for punitive damages. The plaintiff submitted that no costs should be awarded as the case raised a novel point of law and was a matter of public interest. The Court ordered no costs on the grounds that it was reasonable for the plaintiff to resist the defendant's motion, and that it would have made this order regardless of which party had been successful.

Silver v. Imax Corp., 2012 ONSC 4064: This is the cost decision arising out of two underlying motions. In the first motion, the Court granted leave to a class member Merger Fund to participate in the motion for approval of the form, content and timing of the notice of certification. In the second motion, the Court dismissed the Merger Fund’s requests that the notice campaign be delayed pending further progress in the US proceedings. The Court partially granted the Merger Fund’s requests with respect to the content of the notice, although no one was entirely successful on the issue of the content of the notice.

The Court held that no costs would be awarded on the motions. It noted that, while there was no absolute bar against awarding costs against class members, in the circumstances of this case, there was no justification for awarding costs against the Merger Fund:

“In determining costs in class proceedings, courts apply the normal rules under s. 131 of the Courts of Justice Act and rule 57.  In general, costs follow the event, and the amount of costs should be proportionate to the issues and complexity of the matter determined, and consistent with the reasonable expectations of the parties.  Section 31(1) of the CPA introduces other factors for consideration, providing that 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.

The most important factor in this case is the novelty of the questions that were before the court.  The certified class is global and includes persons who are “overlapping” class members, who are included in the proposed class in proceedings pending in the United States.  In my certification decision I adverted to the fact that the litigation plan initially proposed lacked detail with respect to the form, substance and distribution of notice to non-resident class members.  The form of notice that was acceptable to the defendants and proposed for court approval before TMF became involved did not address the global nature of the class.  Ultimately, the court was invited to address the content of the notice so as to increase the likelihood that any disposition of these proceedings would be recognized in the U.S. and binding on non-resident class members.  This issue, at the notice of certification stage, had not been previously considered by an Ontario court.

While TMF was unsuccessful in its “overarching objective” to delay the notice, the plaintiffs were unsuccessful in their contention that the notice should make no reference at all to the U.S. Proceedings.

At the time the motion was brought a certification motion was pending in the U.S. Proceedings.  In the months that followed however, a proposed settlement was reached in the U.S. Proceedings.  This development led to a very real concern about potential confusion for overlapping class members, and the need to ensure that the notice in these proceedings would preserve their litigation autonomy.  In all of the circumstances, including the developments that occurred in the U.S. Proceedings, which impacted on the question of notice in this jurisdiction, it would not be appropriate to award costs in favour of any party.”

Ward Branch, Partner Branch MacMaster LLP 1410 - 777 Hornby Street Vancouver, B.C. V6Z 1S4 P: 604.654.2966 | F: 604.684.3429 Web: www.branchmacmaster.com/ward-branch<http://www.branchmacmaster.com/ward-branch> Twitter: http://twitter.com/#!/wbranch99

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Keatley Surveying Ltd. v. Teranet Inc., 2012 ONSC 7120<http://www.canlii.org/en/on/onsc/doc/2012/2012onsc7120/2012onsc7120.html>: Plaintiff's motion for certification dismissed in proposed land surveyors' copyright class action. Madam Justice Horkins found that the plaintiff had properly pleaded the elements of the cause of action for infringement of copyright - the only cause of action being advanced in the proceeding. She rejected the defendant's argument that it was plain and obvious that the cause of action would failed because copyright in the plans of survey vested in the Crown by virtue of s.12 of the Copyright Act. Specifically, she noted that the meaning of s.12 of the Copyright Act and its application to the surveyors and their plans of survey was a novel question that had not been determined by our courts, and that novel questions are law could not be decided under s.5(1)(a) of the Ontario Class Proceedings Act, 1992.

However, Justice Horkins went on to find that the other requirements of s.5(1) were not met. To begin with, there was no evidence of a class of two or more persons who "have a complaint that they wish to have determined in the class proceeding". Justice Horkins did not accept the plaintiff's evidence about the number of surveyors in Ontario, the affidavit evidence of another potential class member, evidence pointing to the involvement of the Land Surveyors Copyright Enforcement Group, or evidence from the defendant's motion materials discussing the issue of copyright in plans of survey as sufficient support for the existence of a class. She also found that the class definition was merits-based in that it required a determination of the issues of copyright ownership and consent to use of plans.

Further, Justice Horkins rejected all but one of the Plaintiff's proposed common issues and, having done so, found that a class proceeding was not a preferable procedure because there was no single common issue that would significantly advance the litigation for the class. Further, not a single class member other than the plaintiff had indicated that it wished to pursue a claim for copyright infringement against the defendant. Concerns about behavior modification did not exist because, in her Honor's view, the provision of electronic access to publicly available documents on behalf of the government pursuant to a statutory obligation was not behavior that required modifying.

Finally, Justice Horkins concluded that the requirement of s.5(1)(e) was not met as there was a potential conflict between the interests of the proposed representative plaintiff and the interests of the class, and because the proposed litigation plan was deficient. The writer was co-counsel for the plaintiff. An appeal has been launched.

Ward Branch, Partner Branch MacMaster LLP 1410 - 777 Hornby Street Vancouver, B.C. V6Z 1S4 P: 604.654.2966 | F: 604.684.3429 Web: www.branchmacmaster.com/ward-branch<http://www.branchmacmaster.com/ward-branch> Twitter: http://twitter.com/#!/wbranch99

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.

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SEMINARS

Make sure to sign up for the upcoming January 24/25 CLE Conference in Vancouver. Even if you can only come to the Friday session, you are still invited to the cocktail reception at our office on the Thursday evening, which we are hosting with Laura Bruneau's firm. We look forward to seeing you all there! To sign up click:

http://www.cle.bc.ca/onlinestore/productdetails.aspx?cid=668

CERTIFICATION

Durling v. Sunrise Propane Energy Group Inc. et al., 2012 ONSC 6570<http://www.canlii.org/en/on/onsc/doc/2012/2012onsc6570/2012onsc6570.html>: This propane explosion action was certified as a class proceeding, but not initially against the landlord. The plaintiffs were granted leave to amend the statement of claim to meet the cause of action requirement under s.5(1)(a) of the Ontario Class Proceedings Act, 1992, against the landlord. In subsequent proceedings, the case was also certified against the landlord: http://www.canlii.org/en/on/onsc/doc/2012/2012onsc6570/2012onsc6570.html .The writer is counsel for the defendant 1452049 Ontario Inc., who did not take a position on the application.

Bartram (Litigation Guardian of) v. GlaxoSmithKline Inc., 2012 BCSC 1804<http://www.canlii.org/en/bc/bcsc/doc/2012/2012bcsc1804/2012bcsc1804.html>: The Court certified a class action against the manufacturer of the drug Paxil for birth defects allegedly suffered due to use of the drug by pregnant mothers. Of interest, in rendering its decision, the Court explicitly left open the possibility of aggregate causation in mass tort class actions: [32] In an individual action, a plaintiff probably could not succeed by merely showing that the use of Paxil increased the risk of injury. In Clements v. Clements, 2012 SCC 32 (CanLII), 2012 SCC 32, the Supreme Court of Canada re-affirmed the primacy of the "but for" test in proving causation and confined the alternate "material contribution" test to cases involving multiple negligent defendants where it is not possible to prove which one caused the injury. However, dicta in Clements may leave open an argument that different considerations apply in cases involving multiple plaintiffs, such as class actions. The Court further quoted the following passage from the Supreme Court of Canada's decision in Clement: This is not to say that new situations will not raise new considerations. I leave for another day, for example, the scenario that might arise in mass toxic tort litigation with multiple plaintiffs, where it is established statistically that the defendant's acts induced an injury on some members of the group, but it is impossible to know which ones.

Lavoie c. Abbott Medical Optics Inc. (Advanced Medical Optics Inc.), 2012 QCCS 6147<http://www.canlii.org/fr/qc/qccs/doc/2012/2012qccs6147/2012qccs6147.html>: Authorization to commence class action granted in proposed action against a pharmaceutical company for an eyewash solution used by consumers which was the subject of a recall.

Perrenoud v. eHealth Ontario, 2012 ONSC 6704<http://www.canlii.org/en/on/onsc/doc/2012/2012onsc6704/2012onsc6704.html>: The Court certified class action against eHealth and allowed the plaintiffs' motion to amend their statement of claim to add a claim that their employer breached its employment contract by failing to pay Performance Awards.

Tanner c. Nissan Canada Inc., 2012 QCCS 5956<http://www.canlii.org/fr/qc/qccs/doc/2012/2012qccs5956/2012qccs5956.html>: The plaintiff's application to certify a national class (except in British Columbia) against Nissan Canada was dismissed based primarily on the colour of right requirements. The plaintiff contended that Nissan Canada committed a misrepresentation by installing faulty odometers in Nissan and Infiniti vehicles. The Court denied certification on the grounds that Canadian regulations allow for a 10% variation in odometer accuracy. Also, the plaintiff suffered no prima facie prejudice as his vehicle still functioned and he did not pay for repairs after the expiration of the vehicle's mileage-based warranty.

Amram c. Rogers Communications Inc., 2012 QCCS 4453: Motion for authorization as class action granted against Rogers Communications Inc. SENC and Rogers Communications, and denied against Fido Solutions Inc.

COMMUNICATION WITH CLASS MEMBERS

Durling v. Sunrise Propane Energy Group, 2012 ONSC 6328<http://www.canlii.org/en/on/onsc/doc/2012/2012onsc6328/2012onsc6328.html>: Motion by class counsel for an order restraining subrogated insurer Wawanesa and its counsel Forget & Associates from communicating with class members until the expiry of opt-out period granted. The writer is counsel for one of the defendants in the action. Following certification of class action and dissemination of notice, but before the opt-out deadline, Wawanesa's counsel, Mr. Forget, sent letters to class members insured by Wawanesa and informed them that Wawanesa was opting them out of the class action. Wawanesa had previously paid monies to its insureds for certain insured losses resulting from the explosion at the Sunrise propane facility that was the subject matter of the class action. Justice Horkins acknowledged the importance of the opt-out procedure in class actions, stating as follows at paragraph 38: "[38] The right to opt out of a class action is fundamental to the court's jurisdiction over unnamed class members. It is an important procedural protection afforded to unnamed class action plaintiffs. Taking appropriate steps to opt out and remove themselves from the action allows unnamed class action plaintiffs to preserve legal rights that would otherwise be determined or compromised in the class proceeding." Justice Horkins recognized that an order restricting communication is extraordinary, but noted that if the communication is inaccurate, intimidating or coercive, or is made for some other improper purpose aimed at undermining the process, the court must intervene. Further, "an order restricting communication during the opt out period should only be granted if it is necessary to prevent a real and substantial risk to the fair determination of a class proceeding, because reasonably available alternative measures will not prevent the risk." Turning to the case before her, Justice Horkins held that the insureds, and not Wawanesa, controlled the litigation until they had been fully indemnified for their insured and uninsured losses. As such, Wawanesa had no right to control the litigation by opting out class members. Moreover, Justice Horkins held that Mr. Forget ignored the obvious solicitor-client relationship between class counsel and the class members when he sent his letter directly to the class members. "The uninsured (and insured) claims of the class members are being advanced in the class action by class counsel and yet Mr. Forget kept class counsel in the dark about his communication." According to Justice Horkins, the letter violated the Law Society of Upper Canada's Rules of Professional Conduct which prohibited lawyers from communicating with a represented person. Justice Horkins also rejected Mr. Forget's reliance on the solicitor-client relationship between Mr. Forget and the insured class members to justify the misleading and inaccurate statements made in the letter. "Assuming for the moment that Mr. Forget and his firm have a solicitor and client relationship with class members who are Wawanesa insureds, this does not authorize the firm to tell the class member that the Wawanesa is opting the class member out of the class action. It is the class member who makes this decision, not Wawanesa." Further, if as Mr. Forget insisted, the insureds were his "clients", then his communication failed to honor the requirement in the Code of Professional Conduct for the lawyer to be honest and candid with clients. "The Forget letter is misleading and wrongfully directs that Wawanesa is opting the insured out of the class action." For all of the above reasons, Justice Horkins granted class counsel's request and made an order prohibiting Wawanesa and its counsel from communicating with class members unless such communication was approved by the court or consented to by counsel. Justice Horkins recognized, however, that an insurer and sometimes its counsel needed to communicate with the insured following a loss. She therefore explained that her order was not intended to interfere with acceptable fair and reasonable communication between insurers and their insured.

SETTLEMENT

Fontaine v. Canada (Attorney General), 2012 BCSC 1671<http://www.canlii.org/en/bc/bcsc/doc/2012/2012bcsc1671/2012bcsc1671.html>: The Court approved various further procedural requests by the Court Monitor relating to the conduct of a particular law firm Independent Assessment Process established pursuant to the Indian Residential Schools Settlement. In particular the law firm was held responsible for the cost of the investigation into the conduct of the firm, but the amount was to be taxed by the Registrar.

Fitzsimmons c. Cie de materiaux de construction BP Canada, 2012 QCCS 5783<http://www.canlii.org/fr/qc/qccs/doc/2012/2012qccs5783/2012qccs5783.html>: The Court approved the settlement in degrading shingles class action. Class members were given two options: the replacement of an area of their roof where at least 5% of the shingles were damaged, or a cash refund of $75 per square foot of roof. Collective class counsel fees of $2.4 million were also approved.

McSheffrey v. Ontario, 2012 ONSC 6803<http://www.canlii.org/en/on/onsc/doc/2012/2012onsc6803/2012onsc6803.html>: Settlement of two similar class actions alleging deficiency in class members' pension benefits approved. The Court approved settlement of $6,500,000.00 to be distributed evenly between class members, $750,000.00 in class counsel fees and $250,000 for administrative expenses.

Option Consommateurs c. Brick Warehouse (unreported): Superior Court of Quebec has approved a settlement in a Brick Warehouse "Buy now, Pay later" financing class action.

Option Consommateurs c. L'union Canadienne et als., (unreported, December 18, 2012): Plaintiff's counsel and counsel for 4 of 19 defendant insurance companies reached a settlement agreement for about a quarter of class members in a class action alleging damage from an ice storm. The Court approved the settlement despite the fact that the defendants who were not part of the agreement opposed the settlement. Each class member was entitled to $50.92. Counsel fees of $3,219,300.00 and disbursements of $29,833.61 were approved.

Toronto Community Housing Corp. v. Thyssenkrupp Elevator (Canada) Ltd, 2012 ONSC 6626<http://www.canlii.org/en/on/onsc/doc/2012/2012onsc6626/2012onsc6626.html>: The Court approved the settlement and class counsel fees in a certified class action alleging that the defendant company that manufactured but subsequently refused to repair faulty elevator parts. A settlement fund of $12,000.000 was to be distributed between class members on a pro rata basis. Class counsel fees of $3,495,000 were approved.

COMMON ISSUES TRIAL

Ramdath v. George Brown College, 2012 ONSC 6173<http://www.canlii.org/en/on/onsc/doc/2012/2012onsc6173/2012onsc6173.html>: The plaintiffs were successful on their common issues trial against the defendant College. The class consisted of former students of the College who had enrolled in a business management program at the College based on the College's representations that the program provided students "with the opportunity to complete three industry designations/certifications in addition to the George Brown College Certificate." Upon graduation, the plaintiffs learned that the College did not have agreements in place with the appropriate industry associations to grant the applicable designations/certifications. They commenced a class action against the College, claiming negligent misrepresentation, breach of the Ontario Consumer Protection Act, and breach of contract. Justice Belobaba found that the College was in a special relationship with the class members. Further it made certain representations to the class, which representations were untrue, inaccurate and misleading. The College was negligent in making the representations. And the students relied on the College's misrepresentations and suffered a loss. As such, the necessary elements of negligent misrepresentation had been met. Further, Justice Belobaba found that the College had breached Part III of the Consumer Protection Act. At a basic level, the College had engaged in an unfair practice by making a representation that was false or misleading. More specifically, the College had made a representation that it had approval, affiliation or connection with industry associations when this was not the case. This amounted to an unfair practice under s.14(2) of the Act. As rescission of the agreement with the College was no longer possible (because the educational program, whatever its value to the students, had been consumed and could not be returned), the remedy was monetary compensation. Pursuant to the Act, the students were entitled to recover "the amount by which the consumer's payment under the agreement exceeds the value that the goods or services have to the consumer or to recover damages, or both." Justice Belobaba rejected the claim for breach of contract. While there was a contractual relationship between the College and the class members, the complaint in question was about a pre-contractual misrepresentation in the course calendar that induced students to accept the offer of admission and enter into the main education contract with the College. The impugned representation was neither an express nor an implied term of the educational agreement with the College. In any event, the better liability platforms were negligent misrepresentation and breach of the Consumer Protection Act. Justice Belobaba noted that further evidence may still be needed to establish legal liability for negligent misrepresentation, namely evidence of individual reliance. However, legal liability had been established under the Consumer Protection Act because, under this statute, evidence of actual reliance was not required.

APPEALS

Canada (Attorney General) v. JTI-MacDonald Corp., 2012 QCCA 2017<http://www.canlii.org/en/qc/qcca/doc/2012/2012qcca2017/2012qcca2017.html>: Leave to appeal from the decision of the Superior Court substantially granting the motion of respondents to strike an expert report denied. The court held that the judge presiding at the trial of a lawsuit in a large class action was in the best position to decide evidentiary issues, and that unless there was a manifest injustice or gross error of the law, the Court of Appeal would show great deference to the decision of the judge.

Cannon v. Funds for Canada Foundation, 2012 ONSC 6101<http://www.canlii.org/en/on/onscdc/doc/2012/2012onsc6101/2012onsc6101.html>: Leave to appeal to the Divisional Court from the decision of Strathy J. certifying the action as a class action and dismissing the motions for summary judgment dismissed.

Conseil québécois sur le tabac & la santé c. JTI-Macdonald Corp., 2012 QCCA 1847<http://www.canlii.org/en/qc/qcca/doc/2012/2012qcca1847/2012qcca1847.html>, 2012 QCCA 1848<http://www.canlii.org/en/qc/qcca/doc/2012/2012qcca1848/2012qcca1848.html>: Leave to appeal from the decision of the trial judge ordering the disclosure of certain financial documents by the defendants denied.

Conseil québécois sur le tabac & la santé c. JTI-Macdonald Corp., 2012 QCCA 2034<http://www.canlii.org/fr/qc/qcca/doc/2012/2012qcca2034/2012qcca2034.html>: The Quebec Court of Appeal overturned lower court ruling which added Health Canada and Agriculture Canada as defendants in class action litigation against tobacco manufacturers. Although the Canadian government does regulate tobacco products, the Court found this to be a policy decision, thereby exempting the Crown from liability.

Couche-Tard Inc. c. Jacques, 2012 QCCA 2266<http://www.canlii.org/fr/qc/qcca/doc/2012/2012qcca2266/2012qcca2266.html>: The Quebec Court of Appeal rejected the defendants' appeal from the lower court's judgment which provided the plaintiff with access to evidence obtained via wiretap by the Competition Bureau of Canada regarding a gasoline price-fixing "cartel". The Court determined that the appellant could not rely on Article 29 of the Code of Civil Procedure to address this interlocutory decision as it does not create a situation that cannot be remedied by final judgment.

Elder Advocates of Alberta Society v. Alberta, 2012 ABCA 355<http://www.canlii.org/en/ab/abca/doc/2012/2012abca355/2012abca355.html>: The Alberta Court of Appeal denied the defendant Alberta Health Service's appeal of an order dismissing an application to amend the order certifying a class action against it in negligence and bad faith.

Fairview Donut Inc. v. The TDL Group Corp., 2012 ONCA 867<http://www.canlii.org/en/on/onca/doc/2012/2012onca867/2012onca867.html>: Ontario Court of Appeal dismissed the plaintiff's appeal from the lower court's order granting summary judgment in favor of the defendants in the Tim Hortons franchise class action.

Labonté c. Voyageur Marine Transport Ltd., 2012 QCCA 1940<http://www.canlii.org/fr/qc/qcca/doc/2012/2012qcca1940/2012qcca1940.html>: The Quebec Court of Appeal upheld lower court judgment which denied certification of the class action. The representative plaintiff argued that when a ship collided with a bridge used by class members for their regular commute, it was rendered unusable. The appellant advanced four grounds for appeal, claiming that the trial judge erred by ruling on the merits of the action, not giving benefit of the doubt to the plaintiff regarding her chance of success, concluding that the economic losses suffered by class members were not likely to be compensable and refusing to create a new category of loss in the event of a prima facie conclusion that it was not compensable. All four grounds were rejected by the Court of Appeal.

Menard c. Matteo, 2012 QCCA 2027<http://www.canlii.org/fr/qc/qcca/doc/2012/2012qcca2027/2012qcca2027.html>: The defendant's application for leave to appeal requesting clarification of the plaintiff's pleadings in a securities class action dismissed.

Parker v. Pfizer Canada Inc., 2012 ONSC 6604<http://www.canlii.org/en/on/onscdc/doc/2012/2012onsc6604/2012onsc6604.html>: The defendant's motion for leave to appeal dismissed as the defendant did not show good reason to doubt the correctness of the certification decision or raise an issue of general importance to the administration of justice.

Schneider v. Royal Crown Gold Reserve Inc., 2012 SKCA 105<http://www.canlii.org/en/sk/skca/doc/2012/2012skca105/2012skca105.html>: Leave to appeal from the decision of chambers judge certifying class action dismissed.

Sparvier v. Lac La Ronge Indian Band, 2012 SKCA 94<http://www.canlii.org/en/sk/skca/doc/2012/2012skca94/2012skca94.html>: Appeal from order of the Saskatchewan Court of Queen's Bench appointing Lac La Ronge Indian Band as the representative of the former resident of a residential school allowed. The Court of Appeal concluded that the order conflicted with the terms of the Indian Residential Schools Settlement Agreement.

Treat America Ltd. v. Leonidas, 2012 ONCA 748<http://www.canlii.org/en/on/onca/doc/2012/2012onca748/2012onca748.html>: Appeal from order of the lower court compelling Leonidas to provide oral testimony under oath as a witness was dismissed. Plaintiffs in American multi-jurisdictional class action alleging price fixing and conspiracy sought to examine a Canadian who was not a party to the action. To do so, they issued a letter of request to the Canadian Court to issue an order to compel Leonidas to testify, and the lower court issued that Order. The Court of Appeal upheld the Order, but imposed certain conditions to minimize potential prejudice to witness.

Wainberg v. Zimmer Inc., 2012 QCCA 2143<http://www.canlii.org/fr/qc/qcca/doc/2012/2012qcca2143/2012qcca2143.html>: Leave to appeal from a judgment of the Superior Court rejecting the applicant's request to suspend an application prior to the authorization of a class action dismissed.

Canadian Solar Inc. et al. v. Abdula, 2012 CarswellOnt 14887: Defendants' application for leave to appeal to the Supreme Court of Canada dismissed in this securities class action. The appeal concerned the question of whether a federal corporation that conducted the majority of its business in China and traded shares only on the NASDAQ could fall within the definition of "responsible issuer" under the Ontario Securities Act. The Ontario Court of Appeal had held that the definition of "responsible issuer" was not limited to reporting issuers in Ontario, but also included any issuer with a "real and substantial connection" to Ontario.

Kwicksutaineuk/Ah-Kwa-Mish First Nation v. British Columbia (Minister of Agriculture and Lands), 2012 CarswellBC 3565, 3566: Application for leave to appeal the decision of the British Columbia Court of Appeal allowing the appeal and dismissing the order certifying the class action against the Crown in Right of Canada and Crown in Right of British Columbia. The action concerns allegations that the presence of aquaculture fish farms in and around the Broughton Archipelago interfered with traditional wild salmon fishing rights of the aboriginal collectives in the region. The Supreme Court of Canada dismissed the application for leave to appeal.

Lacroix v. Canada Mortgage and Housing Corp, 2012 CarswellOnt 13928, 13939 (SCC): Application for leave to appeal to the Supreme Court of Canada dismissed in pension fund administration class action.

Samoisette v. IBM Canada Lteé, 2012 CarswellQue 11569, 11570 (SCC): Application for leave to appeal to the Supreme Court of Canada dismissed in pension fund administration class action.

CARRIAGE

Schmidt c. Johnson & Johnson Inc., 2012 QCCA 2132<http://www.canlii.org/fr/qc/qcca/doc/2012/2012qcca2132/2012qcca2132.html>: The Quebec Court of Appeal upheld the lower court's decision to suspend a class action filed in Quebec by the Merchant Law Group (MLG) on behalf of Canadian residents who received a hip implant in favor of a similar action filed later by the Quebec law firm, Kandestin Kluger in this much-anticipated decision on the "first to file" rule. The lower court's decision not to strictly follow the "first to file" rule was upheld on the grounds that this decision served the class' best interest as the MLG application did not seriously develop a cause of action and was likely filed as a means to bar other firms from advancing an action. In effect, the Court of Appeal's decision retains the first to file rule while granting some flexibility to the judge hearing the motion to issue a stay where appropriate to ensure that the interests of the class are adequately protected.

Locking v. Armtec Infrastructure Inc., 2012 ONCA 774<http://www.canlii.org/en/on/onca/doc/2012/2012onca774/2012onca774.html>: The Ontario Court of Appeal held that it did not have jurisdiction to hear appeal from the lower Court's carriage decision. Jurisdiction to do so rested with the Divisional Court with leave. The Court concluded that because appeals from carriage decisions were not specifically addressed by the Class Proceedings Act,1992, the avenue of appeal would be governed by the Courts of Justice Act (CJA). The CJA distinguishes interlocutory orders, which are appealed to the Divisional Court, from final orders, which are appealed to the Court of Appeal. The Court determined that the carriage order was interlocutory as it did not impact the Plaintiff's access to the court system, just the format by which it would proceed. As such, the Court granted leave to appeal to the Divisional Court.

NATIONAL CLASS ISSUES

Sifneos c. Pfizer Inc., 2012 QCCS 5772<http://www.canlii.org/fr/qc/qccs/doc/2012/2012qccs5772/2012qccs5772.html>: The Court refused the defendant's motion requesting a stay of a Quebec class proceeding against Pfizer on account of a pending lawsuit based on essentially the same facts in British Columbia. In making this application, Pfizer invoked the doctrine of lis pendens which was rejected on the grounds that the proposed British Columbia class definition contained a defined time limit whereas the proposed Quebec class did not.

St-Marseille c. Procter & Gamble Inc., 2012 QCCS 5419<http://www.canlii.org/fr/qc/qccs/doc/2012/2012qccs5419/2012qccs5419.html>: The plaintiff in Quebec filed a motion to suspend her proceeding in favor of a similar one that had begun in British Columbia. This was challenged by the respondent on the basis that it violated Quebec's "first to file" rule. The Court refused to suspend the proceeding in Quebec on the grounds that it would encourage forum shopping and that it did not meet the conditions set out in section 3137 of the Quebec Civil Code which allows a Quebec authority to stay its ruling in favor of a similar action elsewhere.

COSTS

Frank v. Farlie, Turner & Co., LLC, 2012 ONSC 6715<http://www.canlii.org/en/on/onsc/doc/2012/2012canlii73057/2012canlii73057.html>: The defendant sought partial indemnity costs of $43,643.20 for successful motion to strike the plaintiff's claim for punitive damages in a securities class action. The plaintiff submitted that no costs should be awarded as the case raised a novel point of law and was a matter of public interest. The Court ordered no costs on the grounds that it was reasonable for the plaintiff to resist the defendant's motion, and that it would have made this order regardless of which party had been successful.

McCracken v. Canadian National Railway Company, 2012 ONSC 6838<http://www.canlii.org/en/on/onsc/doc/2012/2012onsc6838/2012onsc6838.html>: The action was originally certified as a class proceeding, but the certification decision was reversed on appeal. The Court of Appeal ordered that the defendant have its costs of the certification motion to be fixed by the motion judge. The defendant sought partial indemnity costs of over $1 million dollars, all inclusive. Justice Perell awarded the defendant $475,000, noting that the case was animated by public interest concerns and involved novel points of law. Justice Perell also concluded that the costs claimed by the defendant were excessive, noting:

[74] A class proceeding should not become a means for either defendants or plaintiffs to overspend on legal expenses simply because the economies of scale of a class proceeding makes it worthwhile to enlarge the investment in the defence or prosecution of the case: 2038724 Ontario Ltd. v. Quizno's Canada Restaurant Corp., 2010 ONSC 5390 (CanLII), 2010 ONSC 5390 at para. 19. In anticipating costs, a defendant should rein in any tendency to commit more resources than are necessary to fairly test and challenge the propriety of certifying the class proceedings: Lavier v. MyTravel Canada Holidays Inc., [2008] O.J. No. 3377 at paras. 31 and 32; Singer v. Schering-Plough Canada Inc., [2010] O.J. No. 1243 (S.C.J.). ... [105] CN submits that it was reasonable for it to devote something likely approaching $3 million (if its former counsel's legal fees are included) to engage in "take no prisoners" litigation and to respond to Mr. McCracken's highly aggressive and comprehensive litigation strategy. I do not see the relevance of Mr. McCracken having a comprehensive litigation strategy but there was certainly nothing highly aggressive about it. Mr. McCracken was pursuing access to justice for 1,550 class members in accordance with the Rules of Civil Procedure and all that can be said is that his litigation, like all litigation, is inherently adversarial or aggressive. [106] CN may subjectively feel that it was reasonable to allocate millions of dollars of legal expenses when it confronting a $300 million claim. Frankly, however, I do not know how it is possible to make an objective determination of whether its subjective view of reasonableness was correct. What I do know is that it is unreasonable to expect one's opponent to pay $1 million in costs for a mandatory-procedural-interlocutory-non-dispositive motion that does not decide the merits of the case. [107] I appreciate that I originally awarded Mr. McCracken $740,650.55 for the certification motion, but upon reflection, I now think that I was too generous. But even if I was not mistaken in awarding him this large costs award, it does not follow that CN should recover the same amount. As noted above, there is some asymmetries in costs awards in class proceedings because of access to justice concerns and to further the policies of the legislation. As a result, costs awarded against unsuccessful plaintiffs in certification motions have typically been more modest than the awards against unsuccessful defendants.

McCracken v. Canadian National Railway Company, 2012 ONCA 797<http://www.canlii.org/en/on/onca/doc/2012/2012onca797/2012onca797.html>: Following the decision by the Ontario Court of Appeal overturning the motion judge's order certifying the proposed action as a class proceeding, the Court of Appeal rendered its cost decision. The Court acknowledged that the outcome of the appeal, its complexity, the principle of indemnity and the reasonable expectations of the plaintiff all militated in favour of a significant partial indemnity costs award. The Court also stated as follows at paragraph 11: [11] ... it must be recognized that class actions come at a cost to defendants. Indemnifying parties - such as class counsel or the Law Foundation - must assess the risks of an unsuccessful litigation strategy and balance them against the possible rewards: see Singer v. Schering-Plough Canada Inc., 2010 ONSC 1737 (CanLII), 2010 ONSC 1737, 87 C.P.C. (6th) 345, at para. 20. The risk of adverse cost awards must factor into the decision to fund and indemnify a proceeding. The CPA was never intended to insulate representative plaintiffs from the possible costs consequences of unsuccessful litigation: David Polowin Real Estate Ltd. v. Dominion of Canada General Insurance Co. 2008 ONCA 703 (CanLII), (2008), 93 O.R. (3d) 257 (C.A.), at para. 29. However, the Court also accepted that the proposed action involved a novel point of law and was animated by public interest concerns (affording an efficient means to obtain collective redress for employees of a federally-regulated company). In the result, the Court fixed costs of the appeal on a partial indemnity scale at $60,000, inclusive of disbursements and taxes.

Stanway v. Wyeth Canada Inc., 2012 BCCA 499<http://www.canlii.org/en/bc/bcca/doc/2012/2012bcca499/2012bcca499.html>: Following the dismissal of the appeal from a certification order in which the Court of Appeal granted costs to the successful plaintiff, the defendants sought an opportunity to address the issue of costs. The Court granted the defendants' requests, and received written costs submissions from the parties. Having reviewed the submissions, the Court of Appeal reversed its decision as to costs. The Court candidly acknowledged that it had made the disposition on costs, as it routinely did when one party prevailed on appeal, without considering s.37 of the BC Class Proceedings Act which creates a no costs regime for class proceedings in British Columbia. It found that the appeal raised genuine legal issues, that the appeal, while unsuccessful, was not improper, and that there were no exceptional circumstances justifying an award of costs against the unsuccessful party. Accordingly, the Court of Appeal set aside its earlier disposition of costs and dismissed the plaintiff's application that the disposition of costs stand.

BANKRUPTCY AND INSOLVENCY

Canada (Superintendent of Bankruptcy) v. 407 ETR Concession Co., (unreported, October 22, 2012): Chambers decision granting intervener status in an appeal by the Superintendent of Bankruptcy in a class action against 407 ETR - a toll management company that can exercise power to prevent the Registrar of Motor Vehicles from issuing vehicle registration permits to those with unpaid tolls. The Superintendent of Bankruptcy appealed a Superior Court decision stating that debts to 407 ETR were not discharged by bankruptcy. The representative plaintiffs represented a class of approximately 6,000 people who declared bankruptcy and sought damages and a declaration that they were released from their debts to 407 ETR. As the disposition of the Superintendent's appeal would directly affect the core issue in the class proceeding, the motion for intervener status was granted.

Sino-Forest Corporation (Re), 2012 ONCA 816<http://www.canlii.org/en/on/onca/doc/2012/2012onca816/2012onca816.html>: Appeal dismissed from the decision of the CCAA court holding that the claims of shareholders were "equity claims" that were subject to the stay of proceedings. The Court of Appeal arrived at its decision based on "the expansive language used by Parliament, the language Parliament did not use, the avoidance of surplusage, the logic of the section, and what, from the foregoing, we conclude is the purpose of the 2009 amendments [to the CCAA]".

Sino-Forest Corporation (Re), 2012 ONSC 6275<http://www.canlii.org/en/on/onsc/doc/2012/2012onsc6275/2012onsc6275.html>: The Ad Hoc Committee of Purchasers of Sino-Forest securities, including the representative plaintiffs in the proposed class action, applied to lift the stay of proceedings imposed under the Companies' Creditors Arrangement Act as against Sino-Forest's auditors, underwriters and formers directors of the company in order to allow the leave and certification motions to proceed in the proposed class action. The Court denied the motion, noting as follows: [16] As I stated in Timminco Limited (Re) 2012 ONSC 215 (CanLII), 2012 ONSC 215 at [17]: Courts will consider a number of factors in assessing whether it is appropriate to lift a stay, but these factors can generally be grouped under three headings: (a) the relative prejudice to parties; (b) the balance of convenience; and (c) where relevant, the merits (i.e. if the matter has little chance, there may not be sound reasons for lifting the stay). See Canwest Global Communication (Re), [2011] O.J. No. 1590 (S.C.J.). [17] In the circumstances of this case, I see little prejudice to the Class Action Plaintiffs if the stay were to be maintained for a short period of time which could result in clarity being brought to the proceedings. Although there is a concern that memories of key witnesses will fade with the passage of time, I have not been persuaded that maintaining the stay for a short period of time will be detrimental to the Class Action Plaintiffs on that account. [18] On the issue of the limitation period, clearly this is an issue that has to be kept in mind, but maintaining the stay for a short period of time would not appear to negatively impact the Class Action Plaintiffs. [19] On the other hand, the concerns raised by counsel on behalf of the auditors and the underwriters have persuaded me that, the balance of convenience favours these parties, and at this time, they need to focus on issues arising out of the appeal of the Equity Claims Decision as well to focus on the Plan itself. [20] Accordingly, it seems to me that, having taken into account the relative prejudice to the parties and the balance of convenience, it is reasonable and appropriate to maintain the stay at this time, on the basis that the issue can and should be re-evaluated shortly after the scheduled meeting of creditors to consider the Plan, but in any event, no later than December 10, 2012. [21] Further, although the appeal of the Equity Claims Decision and the upcoming meeting of creditors and possible sanction hearing does not have any direct impact on the three former directors, I am of the view that it is appropriate to also maintain the stay with respect to these individuals so that the Class Actions can ultimately proceed in a more organized fashion.

MOTIONS TO STRIKE/DISMISS/SUMMARY JUDGMENT

Collectif de defense des droits de la Monteregie (CDDM) c. Centre hospitalier regional de Suroit du Centre de santé et de services sociaux du Suroit, 2012 QCCS 6191<http://www.canlii.org/fr/qc/qccs/doc/2012/2012qccs6191/2012qccs6191.html>: Motion to strike certain allegations in amended motion to institute class proceedings and to remove certain documents from the responding certification materials dismissed.

Ladd v. Vale Canada Ltd., 2012 ONSC 6498<http://www.canlii.org/en/on/onsc/doc/2012/2012onsc6498/2012onsc6498.html>: Motion for summary judgment in class action alleging that emissions from a refinery caused damage to the health and property of area residents. The defendant sought summary judgment to strike the Plaintiff's claims in negligence and nuisance on the grounds that they were statute-barred by the Limitations Act. The plaintiff relied on the operation of s.28 of Ontario Class Proceedings Act, 1992 to argue that statute of limitations had been suspended in the past while the plaintiff was a member of a class in a similar action. The plaintiff was eventually excluded from this class on account of the fact that her land was agricultural rather than residential. However, while the plaintiff was still a member, the original class abandoned its claims except for devaluation of property. As a result, the Court determined that the plaintiff's claims for damages other than devaluation of her property were statute-barred from the removal of that claim.

Ravary c. Fonds mutuels CI inc., 2012 QCCS 5771<http://www.canlii.org/fr/qc/qccs/doc/2012/2012qccs5771/2012qccs5771.html>: The defendants brought motions seeking numerous orders relating to the plaintiff's certified securities class action, including an application to strike portions of the plaintiff's statement of claim, a request for clarification of the plaintiff's claims, a request for particulars, and an order to dismiss the action. All motions were dismissed.

Sarrazin c. Canada (Procureur général), 2012 QCCS 6072<http://www.canlii.org/fr/qc/qccs/doc/2012/2012qccs6072/2012qccs6072.html>: The plaintiff brought an action against the federal Crown on behalf of himself and others who had been "denied in a discriminatory manner, the recognition of the status of "Indian" under the Indian Act." The Crown moved to dismiss the action on the basis that the Superior Court of Quebec did not have jurisdiction over the action. The Court agreed that certain portions of the action, such as the applications for refund of income tax, sales tax on fuel and CPP contributions fell within the exclusive competence of other judicial bodies. However, the Court refused to dismiss the action altogether, noting that the motion for authorization included other allegations that could fall within the jurisdiction of the Court, and that it was premature to settle this debate on a motion to dismiss.

Sidhu v. Ontario (Attorney General), 2012 ONSC 6993<http://www.canlii.org/en/on/onsc/doc/2012/2012onsc6993/2012onsc6993.html>: Proposed class action against the Crown dismissed on the basis that the plaintiff had not properly provided notice to the Crown as required under s.7(1) of the Proceedings Against the Crown Act.

EVIDENCE AND DISCOVERY

Charland c. Hydro-Quebec, 2012 QCCS 5940<http://www.canlii.org/fr/qc/qccs/doc/2012/2012qccs5940/2012qccs5940.html>: Motion by the defendant, Hydro-Quebec, for the return of documents in a class action alleging over-billing of customers. A box of documentary evidence was stolen from Hydro-Quebec and left at the representative plaintiff's doorstep. Justice Reimnitz ruled that this evidence obtained from an anonymous source was inadmissible and must be returned to Hydro-Quebec.

Dupuis c. Canada (Procureur general), 2012 QCCS 5704<http://www.canlii.org/fr/qc/qccs/doc/2012/2012qccs5704/2012qccs5704.html>: Potential class action on behalf of those who suffered property damage as a result of the flooding of the Richelieu River. Application by the defendants to examine the representative plaintiff granted in part. Defendants permitted to examine for a maximum of three hours on a narrow set of topics.

Brigaitis v. IQT Ltd, 2012 ONSC 6584<http://www.canlii.org/en/on/onsc/doc/2012/2012onsc6584/2012onsc6584.html>: The Court denied the plaintiffs' motion for particulars of the defendants' allegations in their statement of defence in this wrongful dismissal class proceeding.

Charles c. Boiron Canada Inc., 2012 QCCS 5955<http://www.canlii.org/fr/qc/qccs/doc/2012/2012qccs5955/2012qccs5955.html>: The defendant's motion for the introduction of evidence in the context of a class action alleging misrepresentation against the manufacturer of a homeopathic flu medicine. The Court denied the defendant's motion to put into evidence the full text and packaging of the product at the center of the litigation. The defendant did not meet the necessary burden for the introduction of physical evidence.

Dieudonné c. Apple Canada Inc., 2012 QCCS (unreported, November 13, 2012): The defendant was granted leave to obtain particulars, file evidence into the court record, and conduct a preliminary examination of the Plaintiff prior to certification.

Lebrasseur c. Hoffmann-La Roche ltée, 2012 QCCS 5671<http://www.canlii.org/fr/qc/qccs/doc/2012/2012qccs5671/2012qccs5671.html>: Potential class action against maker of the drug Accutane. The defendant's motions for leave to file an expert report prior to the certification hearing, to present evidence, to obtain access to medical records and to examine the representative plaintiff were granted, although with limitations.

Lebrasseur c. Hoffmann-La Roche Ltee, 2012 QCCS 6262<http://www.canlii.org/fr/qc/qccs/doc/2012/2012qccs6262/2012qccs6262.html>: Motion by plaintiff to introduce certain evidence prior to the motion for authorization to institute a class action dismissed.

Miller v. Kaba Ilco Inc., 2012 QCCS 5852<http://www.canlii.org/en/qc/qccs/doc/2012/2012qccs5852/2012qccs5852.html>: This proposed national class action relates to a series of malfunctioning locks manufactured by the defendants. The defendants were partially successful in motion for leave to conduct a preliminary examination of the plaintiff, and unsuccessful in seeking authorization to file unidentified documentary evidence. Questions to the plaintiff were limited to specific paragraphs of the motion for certification, the plaintiff's communication with other potential class members and the plaintiff's ability to adequately represent the proposed class.

2038724 Ontario Ltd. v. Quizno's Canada Restaurant Corp., 2012 ONSC 6549<http://www.canlii.org/en/on/onsc/doc/2012/2012onsc6549/2012onsc6549.html>: Reciprocal refusal motions by plaintiff and defendant relating to questions posed in the course of discoveries in price maintenance class action. The Court granted or dismissed the orders on a case-by-case basis, depending on the content of the questions.

Trillium Motor World Ltd. v. General Motors of Canada Ltd., 2012 ONSC 5960<http://www.canlii.org/en/on/onsc/doc/2012/2012onsc5960/2012onsc5960.html>: Certified class action by dealers whose dealerships were terminated by GM Canada as a result of the financial crisis in 2009. The defendants' motion for disclosure of substance of independent legal advice given to each dealer was dismissed on grounds that it was not relevant to the determination of the common issues.

MISCELANEOUS MOTIONS

Association pour la protection automobile c. Ultramar ltée, 2012 QCCS 4889<http://www.canlii.org/fr/qc/qccs/doc/2012/2012qccs4889/2012qccs4889.html>: The Court approved notice to the class members and the plan for dissemination of notice. February 28, 2012 was set as the deadline for the publication of notice.

Coalition contre le bruit c. Shawinigan (Ville), 2012 QCCS 5574<http://www.canlii.org/fr/qc/qccs/doc/2012/2012qccs5574/2012qccs5574.html>: Motions by the plaintiff and defendant with regards to opt-out period in class action alleging noise nuisance created by water planes taking off and landing on lake. Both the plaintiff and defendant disputed the length of the opt-out period set by the Court. The plaintiff sought the minimal opt-out period of 30 days and the defendants sought the longest period of 6 months. The Court determined 90 days was appropriate.

Dupuis c. Desjardins Securite Financiere, (Unreported, December 11, 2012): Motion for leave to amend the notice of claim was granted in a class action against Desjardins Financial Security and Desjardins Asset Management.

Leclerc c. Merck Canada Inc., (unreported, November 23, 2012): Class action alleging side effects from NuvaRing birth control. The plaintiff's application to amend pleadings by substituting a new representative plaintiff rejected, but the Court allowed a January 2013 deadline to find a new representative plaintiff.

Sonego c. Danone Inc., 2012 QCCS 6176<http://www.canlii.org/fr/qc/qccs/doc/2012/2012qccs6176/2012qccs6176.html>: The Merchant Law group (MLG) filed an application to be added as intervener to a motion seeking settlement approval of a class action alleging misrepresentation of a yogurt's health benefits by its manufacturer on the grounds that plaintiff's counsel had worked for the firm as an associate, such that MLG was owed a share of the counsel fees. The Court refused the application on the basis that the dispute between MLG and its former employee was not closely connected to the matter before the Court.

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A reminder of the upcoming January 24/25 Western Canadian Class Action conference. Register below:

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Whistler and Cypress Mountain are already open for those of you on the edge!

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Note a technological improvement below, in that you can now link directly to the Canlii decision, where such a link is available.

Finally, a reminder that for further class action news, you can follow us on twitter at twitter.com/wbranch99 

CERTIFICATION

Thorburn v. British Columbia (Public Safety and Solicitor General), 2012 BCSC 1585: Vancouver Jail strip search class action dismissed. The writer was counsel for the defendants, City of Vancouver and the Vancouver Police Board. The court held that the assessment as to whether a search was proper required an individual determination.

Labrecque c. General Motors of Canada Ltd., 2012 QCCS 4746: Motion for authorization of proposed class action for defective transmissions in certain GM vehicles dismissed. The applicant failed to demonstrate a prima facie case of a class of individuals whose transmissions would have a similar defect and who would have suffered a similar injury, as required by the Quebec Civil Code.

Lee v. Georgia Properties Partnership, 2012 BCSC 1484: Certification denied in proposed real estate class action.

Leblanc v. United Parcel Service du Canada ltée, 2012 QCCS 4619: Motion for authorization denied in proposed class action for custom brokerage fees charged by UPS and FedEx.

APPEALS

Logan v. Dermatech, Intradermal Distribution Inc., 2012 BCCA 399: The British Columbia Court of appeal granted leave to appeal to the applicant physicians from an order of the lower Court requiring the physicians to disclose personal information of patients to class counsel for the purpose of implementing the notice campaign in a certified medical product class action. In doing so, the Court recognized the potential privacy concerns of the patients whose names would be given to class counsel, noting:

“From my reading of the reasons for judgment it appears that the chambers judge did not fully consider, perhaps because it was not raised squarely with him, that perhaps 95% of the patients whose information was ordered divulged would not be class members; that communications between physician and patient are presumptively privileged; that the privilege attaching to the information revealed by the patient to the doctor is the patient’s privilege to waive; and all of the patients who were not likely to be class members had no submissions made to the chambers judge on their behalf with respect to their legitimate privacy issues.  The chambers judge did not fully consider whether there were other means of notifying class members which though less effective, would not breach the rights of non class members.”

The Court of Appeal went on to conclude as follows:

“In my view the applicants have more than met the first criteria in the test I must apply.  I am of the view that the proposed appeal is of significant importance generally.  How far a court may go in making an order which affects the privacy rights of non-parties is something this court should examine, particularly if the chambers reasons in this case are to stand as a precedent for other applications in CPA proceedings. The other proposed grounds of appeal seek to examine the limits of the CPA, particularly whether it permits a court acting under its jurisdiction to make orders affecting non-parties outside the province.  In my view the applicants have made a case that all of their grounds are appropriate and have sufficient merit to pursue on an appeal to this Court.”.”

The writer was counsel for the physicians on the application for leave to appeal.

Simmonds v. Armtec Infrastructure Inc., 2012 ONSC 5228 [not yet on Canlii]: Leave to appeal granted to the Divisional Court from the decision of Ontario Superior Court of Justice granting carriage of proposed securities class action to Sutts Strosberg LLP. The court noted that there are conflicting decisions with respect to the principles to be applied when determining carriage motions. “Some decisions suggest that competing theories are to be assessed only to weed out those that are patently weak, while others support a more rigorous review, albeit on a preliminary basis.”

Moreover, the court found that the lower court’s analysis and hence its decision were open to serious debate. Specifically, it could be argued that the lower court’s analysis was internally inconsistent because “[b]readth of the proceeding was determined to be an advantage when it came to naming of defendants and the class period but a disadvantage with respect to the inclusion of “early sellers” and causes of action founded on waiver of tort and unjust enrichment”. In other words, “comprehensiveness and cohesiveness each prevailed half the time.” 

Bellan v. Fillmore Riley LLP, 2012 MBCA 84: Appeal from the decision of the motion judge refusing to certify proposal class action dismissed. He held that a representative action under Manitoba Queens Bench Rule 10.01(1)(f) would be less complicated, more efficient, quicker and cheaper. The Court of Appeal agreed with the motion judge that class actions and representation orders were intended to co-exist, and that it was possible that a particular action could be brought under either regime and in each case a procedural preferability analysis would have to be concluded. “While theClass Proceedings Act, 1992, offers advantages with respect to notification procedures and opting-out, these rules may sometimes be ‘overkill’ and Rule 10, with its more relaxed procedures, may be more appropriate.”

The Court of Appeal went on to conclude as follows:

“Not all multi-party proceedings must proceed by way of class action. There are other tools in the judicial toolbox. Such tools not only include a representation order under Rule 10, but also joinder under Rule 5 and consolidation under Rule 6, all of which deal with multi-party proceedings. Class action legislation is only engaged if it is preferable and more efficient than the alternatives. Indeed, class action legislation was passed to enhance access to justice, judicial efficiency and behaviour modification, not to prolong litigation and increase cost.”

Pellan c. Agence du Revenue du Quebec, 2012 QCCA 1632: Appeal from the decision of Superior Court of Quebec granting the defendant’s motion to dismiss the action and deny authorization to institute a class action on the basis that there was a specific procedure for challenging a tax assessment under the supervision of the Court of Quebec, such that the Superior Court had no jurisdiction to hear the action as a class proceeding. The Court of Appeal granted the appeal, set aside the lower court’s decision, denied the motion to dismiss the action, and referred the matter back to the Superior Court.

Tonnelier c. Quebec (Procureur General), 2012 QCCA 1654: Appeal from the decision of the Quebec Superior Court denying authorization to institute a class action for damages against the Attorney General of Quebec for failing to take measures to ensure proper and adequate pathological tests were carried out to diagnose breast cancer. The Quebec Court of Appeal dismissed the appeal, without costs.

Imperial Tabacco Canada Ltd. c. Conseil Quebecois Sur le Tabac et la Sante, 2012 QCCA 1641: Appeal from decision of the Superior Court of Quebec relating to the production of certain survey data allowed in part.

Conseil québécois sur le tabac & la santé c. JTI-MacDonald Corp., 2012 CarswellQue 10425:  Appeal from the decision of the lower court allowing in part the motion to obtain information about individuals who were registered with class counsel, and permission to meet with those people and access their medical records, dismissed.

Holcim Canada Inc. c. Renaud, 2012 QCCA 1626: Application for leave to appeal dismissed in proposed class action against cement company for “violation of the rules of good neighborliness”.

EXTENSION OF TIME

Richard v. British Columbia, 2012 BCSC 1464: Further extension of time to submit a written claim for compensation granted in settled class action arising out of the class members’ residency at the Woodlands Schools in New Westminster. The writer is counsel for the Defendant. 

FILED APPLICATION FOR LEAVE TO APPEAL TO SCC

Fulawka v. Bank of Nova Scotia, 2012 CarswellOnt 11956: Application for leave to appeal from the decision of the Ontario Court of Appeal filed in unpaid overtime class action.

Kwicksutaineuk/Ah-Kwa-Mish First Nation v. British Columbia (Minister of Agriculture and Lands), 2012 CarswellBC 2938: Application for leave to appeal from the decision of the B.C. Court of Appeal dismissing the proposed class action filed, but was dismissed.

Samoisette c. IBM Canada ltée, 2012 CarswellQue 4941: Application for leave to appeal from the decision of Quebec Court of Appeal authorizing class action filed.

Fresco v. CIBC, 2012 CarswellOnt 12360: Application for leave to appeal to the Supreme Court of Canada filed in CIBC overtime class action.

Koubi v. Mazda Canada Inc., 2012 CarswellBC 3086: Application for leave to appeal to the Supreme Court of Canada filed in defective vehicle door lock class action. The appeal is from the decision of the BC Court of Appeal allowing an appeal and decertifying the class action.

SECURITIES: LEAVE TO COMMENCE SECONDARY MARKET MISREPRESENTATION ACTION

Zaniewicz v. Zungui Haixi Corp., 2012 ONSC 6061: The plaintiffs in this proposed securities class action sought leave under Part XXIII.1 of the Ontario Securities Act against certain defendants who had not defended the action and who were noted in default in August, 2012. The plaintiffs had entered into a standstill agreement with the remaining defendants, and it was agreed that the leave and certification motions relating to those defendants would take place at a later date.

Justice Perell granted the plaintiffs’ motion for leave, noting that the test for leave was “a relatively low threshold” on the evidence that the parties put before the court. Since the defendants in question were noted in default, they were deemed to admit the truth of all allegations of fact made in the plaintiffs’ Fresh as Amended Statement of Claim. These deemed admissions were held to be sufficient to satisfy the test for leave under the Ontario Securities Act. Accordingly, leave to proceed against these defendants under Part XXIII.1 of the Securities Act was granted.

Trustees of Millwright Regional Council of Ontario Pension Trust Fund v. Celestica Inc., 2012 ONSC 6083: This decision concerns the defendants’ motion to dismiss the claim against them on the basis that the plaintiffs failed to obtain leave within the three year limitation period stipulated s.138.14 of the Ontario Securities Act, and that the plaintiffs’ claim did not disclose a cause of action. The main question before the court was whether it had jurisdiction to relieve against the prescribed limitation period pursuant to the doctrine of special circumstances.

Justice Perell commenced his analysis by acknowledging that he was bound by the decision of the Ontario Court of Appeal in Sharma v. Timminco, which stands for the proposition that s.28 of the Ontario Class Proceedings Act, 1992 did not suspend the limitation period for obtaining leave to commence an action for secondary market misrepresentation under Part XXIII.1 of the OntarioSecurities Act. He also accepted the reality that the plaintiffs’ Part XXIII.1 claims were statute-barred. However, he went on to conclude that, as a matter of statutory interpretation, the limitation period associated with Part XXIII.1 claims was subject to the special circumstances doctrine, that the special circumstances doctrine provided a limited jurisdiction to make orders nunc pro tunc that had the effect of reviving a still-borne and statute-barred cause of action, and that the special circumstances doctrine could be applied to the circumstances of this case.

In coming to these conclusions, Justice Perell expanded the scope of application of the special circumstances doctrine, which had previously been adopted by Justice van Rensburg in Silver v. Imax:

“As I will discuss further below, I agree with Justice Van Rensburg’s ultimate conclusion that the jurisdiction associated with the Latin maxim actus curiae neminem gravabit (“an act of the court shall not prejudice no man”) along with the court’s power to make orders nunc pro tunc can be used to extend the time for bringing a Part XXIII.1 claim, for which leave is required under s. 138.8 of the Ontario Securities Act. However, I do not agree with her that the special circumstances doctrine is not also available in appropriate circumstances.

In the above passage, which is obiter dictum from Imax, Justice Van Rensburg would limit the special circumstances doctrine to circumstances where a plaintiff seeks to amend his or her pleading to add a genuinely new, i.e. different, cause of action that does not require leave to be asserted. Given, as will be explained further below, the special circumstances doctrine considers whether the defendant was aware or ought to have been aware of the likelihood of the claim, the difference of the new claim is not a reason to preclude the availability of the doctrine nor is the factor that leave is required a reason to preclude the special circumstances. The leave requirement just intensifies the operation of the limitation period, and thus a leave requirement is not a reason for precluding the operation of the special circumstances doctrine, assuming it was otherwise available.

Indeed, I would argue that the presence of the factors that Justice Van Rensburg identifies as precluding the availability of the special circumstances are a fortiori factors that justify extending the doctrine if it were necessary to do so. If the special circumstances can be fairly employed in circumstances where a genuinely different cause of action is being added by amendment to the plaintiff’s pleading, then, a fortiori, it should be employed in circumstances where the defendant is confronting a claim that he or she expected to confront if leave were granted.”

Further, Justice Perell held that van Rensberg’s reasoning with respect to the availability of orders nunc pro tunc was equally applicable to orders under the special circumstances doctrine:

“Thus, in Imax, having concluded that the jurisdiction to make orders nunc pro tunc was available, and having concluded earlier in her judgment […] that the case fit within authorities for making a nunc pro tunc order where the plaintiffs' rights have abated through no fault of their own, Justice Van Rensburg made an order nunc pro tunc with the result that the plaintiffs’ action was not statute-barred.

Although the case was decided on the basis of the court’s nunc pro tunc jurisdiction, I think that the Imax case equally could have been decided the same way based on the special circumstances doctrine. I also think that the Imax decision supports my own analysis in the case at bar.

I conclude that the special circumstances doctrine potentially applies to the limitation period in s. 138.14 of the Ontario Securities Act.”

This decision illustrates the continued tug of war with respect to the question of how our courts should approach the prescribed limitation period for commencing secondary market misrepresentation claims in Canada. This is a fascinating and rapidly developing area of class action law. This and other recently issued decisions of the Ontario courts in various proposed securities class actions will help evolve the way securities litigation is prosecuted and defended in Canada over the coming years.

SETTLEMENTS/DISTRIBUTION

Markson v. MBNA Canada Bank, 2012 ONSC 5891 : Proposed settlement of MBNA credit card interest rate class action for $8 million approved. Counsel fees approved at 30% of total recovery.

Sigouin c. Merck & Co. Inc., 2012 QCCS 2014, 2012 QCCS 4732, 2012 QCCS 4733: Settlement of Vioxx class action approved by Quebec Court. Counsel fees of $6 million approved, subject to the right of class counsel to request additional fees once the transaction was completed and the total amount of claims was known.

Association pour la protection des automobilistes inc. c. Toyota Canada inc., 2012 QCCS 4316: The Court ordered the distribution of the remaining settlement funds between the Assistance Fund and the plaintiff association.

Claim Number 2629 c. Canada (Attorney General), 2012 QCCS 4449: More than a decade after the approval of the settlement in the Hepatitis C class action, a class member appealed to the court from the decision of the class action referee who had denied the applicant’s claim for compensation. The referee had denied the applicant’s claim on the basis that there was no evidence that the claimant received a blood transfusion during the class period. The applicant submitted that she had received a blood transfusion during the class period, but records of this transfusion no longer existed as the hospital she attended had closed down in 1997. The court noted that, under the terms of the settlement agreement, in the absence of records establishing blood transfusion, a claimant had to present two independent witnesses confirming the transfusion in order to be entitled to compensation. As the applicant had failed to present such evidence, the Court held that there was no error in the referee’s decision. The referee’s decision was hence confirmed.

THIRD PARTY FINANCING

Allen v. Direct Energy Marketing Ltd.: Third party financing by Bridgepoint Financial Services Limited Partnership Inc. approved by Alberta Court of Queen’s Bench.

DECERTIFICATION/SUSPENSION OF CLASS ACTION

911 Guy Embedded Services Inc. c. Cie de téléphone Bell du Canada, 2012 QCCS 4620: The court allowed the motion for decertification of a class action on the basis that the action was directed at the wrong defendant.

Menard v. Matteo, 2012 QCCS 4899: The court refused to suspend the class action at the request of the defendant, who had been accused in a related criminal matter pertaining to an alleged Ponzi-scheme.

Young v. Dollar Financial Group Inc., 2012 ABQB 601: Defendants’ motion to stay related representative action and class action on the basis of mediation, arbitration and no class action clauses dismissed.

MOTIONS TO DISMISS/STRIKE PLEADINGS/SUMMARY JUDGMENT

Spina v. Shoppers Drug Mart Inc., 2012 ONSC 5563: The plaintiffs brought a motion to certify a proposed class action alleging a myriad of causes of action against the corporate defendants including breach of contract, unjust enrichment, breach of fiduciary duty, breach of a common law duty of good faith, and breach of statutory duties of good faith and fair dealing. The defendants brought a Rule 21 cross-motion, alleging that some of the claims in the proposed class action did not disclose a cause of action. The defendants also opposed certification generally. Due to a number of “odd turns” in the course of the certification hearing, the Rule 21 motion and the certification motion with respect to the cause of action criterion (s.5(1)(a) of the Ontario Class Proceedings Act, 1992) went ahead, but the balance of the certification motion was adjourned to await the outcome of the Rule 21 motion and the determination of the cause of action criterion.

Justice Perell concluded that the plaintiffs satisfied the s.5(1)(a) criterion for certification with respect to the professional allowance claim, the costs recovery fees claims, the budgeting practices claim and the inventory practices claim. He further concluded that it was plain and obvious that the plaintiffs’ claim for rebates, interference with association, breach of fiduciary duty and duty of disclosure were untenable. These claims were struck from the Statement of Claim, without leave to amend. Justice Perell ordered a case conference to schedule the completion of the certification motion.

Frank v. Farlie, Turner & Co., LLC, 2012 ONSC 5519: This decision pertains to a procedural motion in a securities class action. The court struck out claim of punitive damages against directors and officers. In their action against the directors and officers of the company, the plaintiffs had agreed to withdraw their common law claims and only pursue their statutory claims under Part XXIII.1 - the secondary market misrepresentation provisions - of the Ontario Securities Act. They also claimed $20 million in punitive damages. The court held that Part XXIII.1 of the Securities Act did not support a claim for punitive damages and that holding otherwise would allow plaintiffs to circumvent the cap on liability under the Act:

“[…] the argument that persuades me is the officers and directors' argument that it is plain and obvious that a claim for punitive damages supported only be the predicate wrongdoing of a breach of Part XXIII.1 of the Ontario Securities Act is inconsistent with the scheme of Part XXIII.1, which carefully calibrates and achieves a balance between compensation for a director's or officer's contraventions of the Act and discouraging persons from becoming officers and directors.

I agree that allowing a claim for punitive damages would circumvent the policies of Part XXIII.1 of the Act of having caps on the quantum of purely compensatory damages and lifting those caps in exceptional circumstances.

The case at bar demonstrates how both policies of the Act would be circumvented by an award of compensatory damages. Visualize: if the court were to determine that a director contravened Part XXIII.1 of the Act, the director's liability would be capped, but that cap would be lifted if the court were persuaded that the contravention of the Act deserved the condemnation of punitive damages. If the court were to determine that a director contravened Part XXIII.1 knowingly, then the cap on compensatory damages would be lifted and then the exposure to liability of the director would be further extended beyond compensatory damages to add a claim for punitive damages, which are non-compensatory but serve a different purpose.”

The Court also struck out the claims against one defendant – an ex-director of the company – for failure to plead the constituent elements of a cause of action, without leave to amend, and stayed the action against another defendant on the ground that Ontario did not have jurisdiction simpliciter over the claim against them.

Krantz c. Le Precureur General du Quebec et al., 2012 QCCS 4522: Motion to dismiss granted against one defendant and denied against the others in noise pollution class action. 

Morin c. Bell Canada, 2012 QCCS 4191: Defendant’s motion to dismiss certain claims relating to the abusive nature of fees in Bell Canada cancellation fee class action dismissed.

Weldon v. Teck Metals Ltd., 2012 BCSC 1386: Application of the Defendant, Cominco Pension Fund Coordinating Society, for summary judgment in proposed pension plan class action allowed. The plaintiffs’ claim against the Society raised no genuine issue for trial. Application for summary judgment by other defendants was dismissed.

Engler-Stringer c. Montréal (Ville), 2012 QCCS 4413: Motion to dismiss proposed wrongful arrest and detention class action allowed in part, but a portion of the proposed action was allowed to go ahead.

MOTIONS FOR EXAMINATION/CROSS-EXAMINATION

Allstate du Canada, Compagnie D’Assurances c. Agostino, 2012 QCCA 678: Motion to examine respondent on specified topics granted.

Jasmin c. Societe des Alcools du Quebec, 2012 QCCS 4686: Defendant’s motion to cross-examine the proposed representative plaintiff prior to the hearing of the authorization motion granted.

OTHER MOTIONS

Asselin c. Fiducie Desjardins inc., 2012 QCCS 4461: The plaintiff applied to expand the class definition to include persons who purchased Desjardins products within an additional three month period. In response, Desjardin sought to introduce evidence challenging the expansion of the class definition. The court determined that the Quebec Rules of Civil Procedure required Desjardins to apply for leave of the court for this evidence to be heard. However, the court determined that it would neither be necessary nor useful to have Desjardins adduce any further evidence. The test to modify a class definition had a low threshold. In order to amend the class definition, the plaintiff simply had to show that the amendment was in the interests of justice and created efficiency by consolidating claims. The plaintiff met this test, and the proposed amendment was hence accepted by the court.  

Frey v. Bell Mobiility Inc., 2012 SKQB 407: The court ordered that the second amended statement of claim be served upon the defendants and filed with the court in accordance with the litigation plan.  In doing so, the Court rejected the notion that the pleadings were not relevant post-certification, or that the common issues will drive the action. Rather, the common issues must be grounded in the pleadings. “They do not become a substitute or replacement.”

Anderson v. Canada (Attorney General), 2012 NLTD(G) 147: The court refused the defendant’s motion to add four proposed defendants to five certified class actions. It held that the applicable Rules of Court required the defendant to establish either the “ought to” or “necessary” branches of the test. The defendant failed to meet either branch and accordingly, there was no discretion under the Rules to add the proposed defendants. Further, the court held that, to the extent that an independent basis to add the proposed defendants was available under the Contributory Negligence Act, doing so would cause substantial prejudice to the plaintiffs. As such, the court refused to exercise its discretion under the legislation.

Lloyd’s Brown c. Lloyd’s Underwriters, 2012 QCCS 5231: The Quebec Superior Court held that, except in a few specific cases (ex. lis pendens, jurisdiction and res judicata), preliminary objections were not eligible prior to the authorization hearing.

Conferences

A reminder about the Western Canadian Class Action Conference on Jan 24/25. The link is:

http://www.cle.bc.ca/onlinestore/productdetails.aspx?cid=670

Certification

Association Pour la Protection Automobie c. Ultamar Ltee., 2012 QCCS 4199: Application for authorization as class action granted in this gas price fixing case.

Brunelle c. La Banque Toronto Dominion, 2012 QCCS 4107, Option Consommateurs c. Banque de Montreal, 2012 QCCS 4106: Authorization granted for two proposed class action against Toronto Dominion bank and Bank of Montreal for certain penalty charges paid by consumers.

Coalition Contre le Bruit c. Shawinigan (Ville de), 2012 QCCS 4142: Application for authorization of proposed class action against city for noise pollution resulting from seaplane operations granted.

Drywall Acoustic Lathing and Insulation Local 675 Pension Fund (Trustees) v. SNC-Lavalin Group Inc., 2012 ONSC 5288: Unopposed motion for leave and certification in SNC-Lavalin securities class action. Leave was granted to commence an action for secondary market misrepresentation. The proceeding was certified as a class action. The plaintiffs discontinued their claims for an oppression remedy and for damages for common law negligence. This was approved by the Court, even though the claim under the Securities Act, unlike the claims for oppression and negligence, was associated with a "cap" on damages. In this regard, Justice Perell stated: "Speaking metaphorically, I agree that in the circumstances of this case, a cause of action in the hand is worth far more than two appealable causes of action in the bush. Accordingly, I grant leave to discontinue".

Gould v. Western Coal Corp., 2012 ONSC 5184: Application for leave to commence an action for secondary market misrepresentation was dismissed. Motion to certify proceeding as a class action was denied.

Carriage

Wainberg c. Zimmer Inc., 2012 QCCS 4276: The Quebec Superior Court relied on the "First to File" principle to grant carriage of the action to the law firm that was the first to file its claim against the defendant. In doing so, the Court held that, unlike Ontario, where a set of criteria have been developed to assess the competing actions, the starting point for a carriage analysis in Quebec was that the first plaintiff to file should have carriage of the action. "The Court's role of ombudsman for the putative class members is exercised on the basis of the proceedings filed before it and, between two motions appearing to adequately protect the best interests of the putative class members, the "First to File" rule prevails to determine which one ought to proceed and which one ought to be stayed." The court noted that the first to file approach was about to be considered by the Quebec Court of Appeal however.

Communications with Class Members

Lundy v. VIA Rail Canada Inc., 2012 ONSC 4152: Following the commencement of a proposed class action, the defendants made settlement offers to several putative class members. The plaintiffs brought a motion for disclosure of the releases signed by the putative class members, an order rescinding the settlements, and an order enjoining communications between the defendants and putative class members.

Justice Perell ordered the defendants to disclose the releases to the plaintiffs, but held that the defendants could complete the settlements for which releases had been signed and could communicate with putative class members provided that the plaintiff was given a copy of the correspondence and provided that there be no communications to the putative class members known to be clients of the lawyers of record. In doing so, Justice Perell took the opportunity to explore the developing legal territory of regulating the communications to putative class members during the period before a proposed class action is certified. He noted that communications between defendants and putative class members were problematic because these communications could interfere with a nascent lawyer and client relationship and could dismember the putative class by persuading putative class members not to participate, which could in turn discourage the representative plaintiff or class counsel from prosecuting the proposed class action. At the same time, regulating communications with putative class members was also problematic for three reasons:

"First, the legal nature of the relationship between some putative class members and the lawyer for the proposed representative plaintiff is unclear. In many proposed class actions, a putative class member will not even know that there is a proposed class action until after the certification hearing, and, practically speaking, during the pre-certification phase, the putative class member may be a distant stranger to the lawyer. Thus whether and how the traditional rules and privileges about communications between lawyer and client apply pre-certification is unclear in the context of a proposed class action and, accordingly, how to govern those communications is problematic.

Second, although the legal nature of the relationship between putative class members and the lawyer for the proposed representative plaintiff is unclear, some putative class members will have a traditional lawyer and client relationship with the lawyer for the representative plaintiff or these putative class members will have independent legal representation from other lawyers. In other words, putative class members may have diverse legal relationships with lawyers during the pre-certification phase, and, accordingly, how to govern communications in these circumstances is not clear and is problematic.

Third, the attitude of the putative class member to the proposed class action is also unclear during the pre-certification phase. Some class members may not even know about the proposed class action, and those that do know may have a range of attitudes about participating in the class action. How to regulate communications with a group of persons who might benefit from participating in the class action but who have a widely diverse attitude towards participating is not clear and hence is problematic."

After reviewing Canadian and American case law on point and setting out the overarching legal principles, Justice Perell opined that while the regulation of communications with putative class members before certification arose in circumstances of some traditional lawyer/client relationships and some sui generis lawyer and putative class member relationships, it was unnecessary to sanction all communications between a defendant and putative class members. In his Honor's view, this was one of those cases where there was nothing inappropriate about the communications that took place between the defendant and the putative class members.

1250264 Ontario Inc. v. Pet Valu Canada Inc., 2012 ONSC 4317: The Court granted the plaintiff's motion to set aside the opt-out notices received from class members on the ground that the process had been corrupted by a campaign, launched by the defendant's franchisee association, which deceived the class members and encouraged them to opt-out of the action.

Costs

Smith v. Inco Ltd., 2012 ONSC 5094: Following the Ontario Court of Appeal's decision dismissing the action against Inco on the merits, Inco applied for costs of the proceeding from the date of certification until the date of trial. Inco requested its costs on a partial indemnity basis from the date of certification until the date of Inco's offer to settle to the plaintiff, and on a substantial indemnity basis thereafter. As the plaintiff had received funding from the Class Proceeding Fund since the time of certification, Inco sought its costs from the Fund.

The Court determined that, as the successful party in the action, Inco was entitled to its costs. However, there was no basis for awarding costs on a substantial indemnity basis following the offer to settle. The Court assessed costs and disbursements in the amount of $3,532,000, but reduced the cost award by 50% (down to $1,766,000). In doing so, the Court held as follows:

"In this case, there are both private and public interest factors present. I accept that this proceeding was based on the tort claims of 7,000 private property owners for damage occasioned to their properties. Inco can correctly submit that it has been monetarily damaged by the unsuccessful claims of these private individuals, and therefore that Inco is entitled to some reparation. On the other hand, this action involved matters of public interest and was novel in many respects, as discussed earlier in this decision. It is important in our society to ensure that those who have a public interest and/or a novel claim have access to the courts for the purpose of resolving the claim. This is one of the objectives of the CPA.

Further, in any costs award the court must balance the chilling effect of a large costs award against the need to discourage frivolous and unnecessary litigation [...] The Fund is available for the purpose of facilitating access to justice for large groups of the population who may wish to pursue a class proceeding. However, the Fund is not bottomless and a costs order that would cripple the Fund should not be made as it could unduly stifle subsequent claims.

In that respect, I must also consider that Inco does not have a bottomless supply of money with which to defend claims. Inco is clearly out-of-pocket for its legal fees and for its legal disbursements. Inco should not be made to suffer the consequences of an inadequate costs order.

For these reasons, the award of costs to Inco should be reduced, but should not be eliminated. In my view a fair approach is for Inco to have 50% of the costs that would have been awarded but for the application of s.31(1) of the CPA. Therefore, the costs awarded to Inco will be 50% of $3,532,000.00, for a total award of $1,766,000.00."

1250264 Ontario Inc. v. Pet Valu Canada Inc., 2012 ONSC 5029: As noted above, the plaintiff successfully applied to set aside opt-out notices delivered by class members on the basis that the process had been corrupted by a deceptive campaign that encouraged class members to opt-out of the class. On the plaintiff's subsequent motion for costs, the Court awarded $60,000 against the defendant and the executives of the group that had launched the campaign (members of the defendant's franchisee association). The Court noted that, while the defendant was not the one that had launched the campaign, in opposing the plaintiff's motion, the Defendant was supporting the opt-out process which had been perverted. It was hence fair and reasonable that it share the burden of paying the costs.

Allen v. Aspen Group Resources Corp., 2012 ONSC 5028: Following an unsuccessful motion for summary judgment by the defendant, the Court fixed the plaintiff's costs at $100,000 all inclusive, but made the costs payable to the plaintiff in the cause as between the plaintiff and the moving party.

Settlements

Monckton v. C.B.S. Interactive Multimedia Inc., 2012 ONSC 5227: Settlement approved. Class counsel fees in the amount of $60,000 approved.

Bratton v. Samsung Electronics Co., 2012 ONSC 5231: Static Random Access Memory price-fixing class action certified for settlement. The motion was unopposed. Approval hearing to follow.

Appeals

Hoclaim Canada Inc. c. Renaud, 2012 QCCA 1625: Appeal from the decision of the lower Court refusing the applicant's motion to have the judge recuse himself dismissed.

Option Consommateurs c. Meubles Léon ltée, 2012 QCCA 1534: Leave to appeal the decision of the Superior Court of Quebec dismissed. The lower court approved a class action and, at the same time, denied a motion to dismiss a portion of the application. On appeal, the Court of Appeal held that the lower court's judgment was not appealable because it did not create a hopeless situation for the applicant if the Court did not intervene immediately. The applicant had the opportunity to argue the same points at the merits trial. A loose and rough translation of the Court's conclusion from Google Translate reads: "In my view, the proper administration of justice clearly favors the return of the parties to the Superior Court for debate on the merits as the judge allowed. The applicant does not mention the existence of disadvantages in practice, and will not lose the benefit of his right to appeal on the issue of res judicata partial, but only during an appeal on the merits."

Other Motions

Banks c Sony Canada ltee, 2012 CarswellQue 8979: Court granted defendants' motion to cross-examine the plaintiffs following a filing of an amended application for authorization.

Fraser Papers Inc., Re, 2012 ONSC 4882: A class action was filed in Quebec, and the defendant subsequently filed for CCAA protection in Ontario. An amended CCAA plan was sanctioned by the Ontario Superior Court of Justice, Commercial List. On this motion, the Court held that it had exclusive jurisdiction to decide any issues relating to the amended CCAA plan (including issues arising from the class action). Further, the Court held that the claims pleaded in the class action had been released under the CCAA Releases.

Zwaniga v. Johnvince Foods Distribution L.P., 2012 ONSC 5234: Motion for summary judgment dismissing the action against one defendant was granted.

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Before we dive in, an announcement that the 2013 Western Canadian Class Action Conference is set to take place in Vancouver on January 24/25, 2013. It will be a fun-filled (and educational) event. Make sure to sign up now as space is limited. Practitioners east of Winnipeg are welcome! Follow the link below to register:

http://www.cle.bc.ca/onlinestore/productdetails.aspx?cid=670

On to the case law!

CLASS ACTIONS AT TRIAL

Manuge v. Canada, 2012 FC 499: Class action brought on behalf of disabled Canadian Veterans challenging the legality of the reduction of long term disability benefits under the Service Income Security Insurance Plan (SISIP) by monthly amounts paid under the Pension Act.

The parties agreed to have the contractual aspect of their dispute resolved at this time, and proceeded with an Agreed Statement of Facts. The parties posed two questions of law to the Court for determination. The court concluded that the defendant was not contractually justified in offsetting Pension Act benefits from long term disability payments. Press reports have suggested damages are valued in the range of $600 million. The Federal Government declined to appeal the decision.

The writer was co-counsel for the class with McInnes Cooper.

Anderson v. St. Jude Medical Inc., 2012 ONSC 3660: After many years of litigation, the St. Jude Medical class action - a medical device product liability case dealing with potential health risks associated with certain mechanical prosthetic heart valves and annuloplasty rings coated with Silzone - reached the trial of common issues, where the action was dismissed by Justice Lax. Justice Lax concluded there was sufficient evidence to find that Silzone materially increased the risk of paravalvular leaks for some patients for some period of time post-implant. However, there was insufficient evidence to conclude the Silzone probably increased the risk of the other medical complications that were in issue, and the plaintiffs did not succeed in proving that Silzone had an adverse effect on tissue healing. Although Lax J. found that there was a high duty of care imposed on a medical device manufacturer, he concluded that the plaintiffs had not established that the defendants failed to exercise a reasonable degree of care in the pre-market design and testing or in the post-market surveillance of Silzone-coated products that would be expected of a reasonable and prudent prosthetic heart valve manufacturer.

Kavanaght c. Montréal (Ville), 2011 QCCS 4830: Street youth detention case was successful at trial. The arrests were held to be legal, but the subsequent detention and application of handcuffs was not. They were each held for a few hours after booking, with no excesses or abuse during the detention. Each of 78 members unjustly held were awarded $1500. The damages were lowered because the youth attended in the area with the specific intention of violating the law, which they believed was improper. Punitive damages of $1000 per person were awarded.

McGee v. London Life Insurance Co., 2011 ONSC 2897: The plaintiff initially applied to add new issues in this certified pension surplus class action. The Court granted amendments where the issues were reasonably viewed as being included within the existing issues, but denied amendments that would have required the Defendant to proffer new evidence. The Court then dismissed the action on the merits.

Spieser c. Canada (A.G.), 2012 QCCS 2801: Class action judgment rendered on the merits for a health-related claim resulting from environmental damage. Plaintiff sued the federal government on behalf of residents of Shannon, QC for allegedly spilling the solvent trichloroethylene (TCE) into the ground and contaminating the water supply. The plaintiff argued that this contamination explained the disproportionately high number of residents suffering from cancer and other illnesses in the town. She sought damages for harm and an order requiring the defendants to decontaminate the water supply.

The Court did not find that the plaintiff had proven on a balance of probabilities that the water contamination led to a higher than normal ratio of illnesses for residents, and therefore did not award damages on this basis. It also did not find it necessary to issue an order to decontaminate the water supply, noting that the defendants were already carrying out this process. However, the Court found the defendant liable for compensatory damages on the grounds that the contamination of the water supply was an abnormal nuisance to residents. Each person deprived of their water supply was awarded $1,000 per month up to $12,000 and the defendants were required to pay the plaintiff's expert fees which totaled more than $1.6 million.

SETTLEMENTS

King v. Nova Scotia: Motion for certification of immigration fee class action granted. Settlement of $25 million approved. The Court approved requested fee of 15-20% (with range depending on take up rate). The writer was counsel for the class. Of note, since approval we have been able to achieve a take up rate of 91% with a simplified 1-2 page claim form, aggressive skip searching and data mining. Of course an entitlement to up to $75,000 per claimant assisted with motivation as well.

Krajewski v. TNow Entertainment Group, Inc., 2012 ONSC 3908, D'Urzo c. Tnow Entertainment Group Inc., 2012 QCCS 3820 Ticketmaster class actions were certified on consent in Ontario, Quebec and Alberta. A proposed settlement valued at approximately $5.8 million including costs was approved. Settlement mechanism is direct payment of cheques with no claim form required. Class counsel fees of 25% approved. The writer was co-counsel for the plaintiffs.

Main v. Cadbury, 2012 BCSC 1062: Class action alleging price fixing certified for settlement purposes against another defendant. Settlement of $5.7 million and interim counsel fee of $800,000 approved. Court wished to wait to see if "most favoured nations" clause would be triggered to lower value of settlement before awarding full $1.6M fee. Writer is part of co-counsel group for class.

Rowlands v. Durham Health Region, 2012 ONSC 3948: Court approved settlement of class action involving lost memory stick. No cash paid to class members up front. Rather claims for economic loss would have to be established through a claims process. Writer was co-counsel for defendant.

Tremblay v. Shaw, 2012 FC 925: Court approved settlement of class action for alleged non-disclosure of annual interest rates on overdue accounts. No cash paid to class members up front. Rather credit were made available for movies or improved internet service. Writer was co-counsel for defendant.

Lakes v. MacDougall, 2011 BCSC 1273 and 2012 BCSC 49: The Court declined to approve settlement of sexual abuse class action with 6 month claim period in light of concerns about trade off of unlimited limitation period. The writer was counsel for the Government.

Richard v. British Columbia, 2011 BCSC 1490: The Court extended settlement deadline by 12 months in Woodlands class action. The writer was counsel for the defendant.

Ainslie v. Afexa Life Sciences Inc., 2011 ONSC 6094: The Court approved distribution of last third of class counsel's requested fee at conclusion of settlement distribution. Although the take up rate was only 23% of the eligible shares, the Court's found that this was not due to defects in the notice program.

Airia Brands Inc. v. Air Canada, 2011 ONSC 6286: Batch of further settlements approved in air cargo class action. The Court rejected an objection by the non-settling defendants that they should not have to bring a motion for discovery from the settling defendants. The Court noted the new emphasis in the rules about the proportionality of discovery.

Assoc. pour l'accès à l'avortement c. Québec (Procureur général): 2011 QCCS 6078: Supplementary fee award and distribution of balance of settlement fund to charities approved.

Baker Estate v. Sony BMG, 2011 ONSC 7105: $47 million settlement fund established in music fee royalty class action. 15% contingency fee was approved, which equated to a multiple of slightly below 3. The Court stated "[This] is the one area where the Court should free itself from the chains of the hourly rate. The result achieved for the class should generally be the most important test of the value of counsel's services." On whether the administration fees should be considered in the calculation of the benefit, the Court stated: "[That] money is necessarily spent in order to put the settlement into the hands of the class in an equitable and expedited manner. It was obtained through the efforts of counsel." The court declined to award $3000 honoraria for the representative plaintiffs stating that "I have decided that this is not one of those rare and exceptional cases that calls for payment of compensation to the class representative".

Beaudoin c. Assurances funéraires Rousseau & Frère ltée, 2011 QCCS 5115: Funeral insurance policy claim settled.

Communication Méga-Sat inc. c. LG Philips LCD Co., 2011 QCCS 6804, Fanshawe College of Applied Arts and Technology v. LG Philips LCD Co., 2011 ONSC 2484: Class action certified for settlement purposes in LCD price fixing cases.

Coopérative d'habitation Village Cloverdale c. Société canadienne d'hypothèques & de logement, 2012 QCCA 57: Court refused to change terms of long-ago settlement of a housing class action.

Cornellier c. Province canadienne de la congrégation de Ste-Croix, 2011 QCCS 6670: Sexual abuse class action settled. 20% counsel fee approved.

Chrysler Canada Inc. v. Gatens, 2010 OJ 4185: Pension benefits case was certified and settled.

Dorion c. Centre de santé & de services sociaux Richelieu-Yamaska (Hôpital Honoré-Mercier), 2012 QCCS 727: Hospital infection class action settled. 25% counsel fee approved.

General Motors of Canada Ltd. v. Abrams, 2011 ONSC 5338, Laurendeau c. General Motors du Canada ltée, 2011 CarswellQue 9819: Pension benefits case was certified and settled.

Helm v. Toronto Hydro-Electric System Ltd., 2012 ONSC 2602: Settlement of proposed Toronto Hydro interest rate class action approved. Class counsel fees in the amount of $1,458,970 (25% of total settlement amount) approved, despite the fact that it represented a significant >7X premium over what the fee would be based on time multiplied by standard hourly rates. In doing so, the Court stated: "Plaintiff's counsel are serious, responsible, committed and effective class action counsel. They are entrepreneurial. They will likely take on some cases that they will lose, with significant financial consequences. They will take on other cases where they will not be paid for years. To my mind, they should be generously compensated when they produce excellent and timely results, as they have done here." Finally, the Court disallowed a request for an honorarium of $2,500 to be paid to the representative plaintiff.

Henry v. Reebok Canada, 2012 ONSC 4449: Proposed easytone shoe class action certified. Settlement of (up to) $2.2 million approved.

Kidd v. Canada Life Assurance Co., 2011 ONSC 6324: In pension surplus case, the Court found that class member who did not like the proposed settlement should not be given status at the preliminary certification motion. The court also held that the representative plaintiff had no conflict of interest. The court found that the class member was effectively seeking carriage for a subclass very late into the process, and that she had not put forward a proper case for carriage. Court held that class members' real concerns were about the fairness of the settlement and that these could be addressed at the subsequent settlement approval hearing. The Court agreed to certify the matter for settlement purposes. The Court had some helpful commentary on when subclasses and subclass representatives were required:

"Subclasses are properly certified where there are both common issues for the class members as a whole and other issues that are common to some but not all of the class members: Caputo v. Imperial Tobacco Ltd., [2004] O.J. No. 299 (S.C.J.) at para. 45. Circumstances that necessitate defining subclasses at the certification stage include the circumstance where a subclass of the generally described class raises common issues that could be determined in the class proceeding but are not shared by other members of the class... The statute envisions that there should be a single, over-riding class, with its set of issues common to all members, some of whom might form a subclass with a distinct additional set of issues common to its members but not other members of the class as a whole: Wuttunee v. Merck Frosst Canada Ltd., supra, at para. 125.

If the differences between the situation of the representative plaintiff and the class members do not impact on the common issues, then the differences do not affect the representative plaintiff's ability to adequately and fairly represent the class and they do not create a conflict of interest..."

Laurendeau c. General Motors du Canada ltée, 2011 QCCS 5156: Pension case settled.

Option Consommateurs c. Fédération des caisses Desjardins du Québec, 2011 QCCS 4841: Cash advance class action settled. 25% counsel fee was approved. The Court held that where distribution was not being made to former customers because of complexity, it was not proper to treat that amount as undistributed funds for the purposes of the Fund's rights to funds under Rule 1033(2). The Court stated that a settlement could blend both 1033 (where individual distributions can be made) and 1034 (and individual claims are too complex). Here, distribution could be made to current customers, but could not be made to former customers.

Picard c. Québec (Procureur général), 2011 CarswellQue 14664: Case regarding native right to be exempted from fuel tax settled.

Pro-Sys Consultants Ltd. v. Infineon Technologies AG, 2012 BCSC 1136: Following settlement of this national price-fixing class action, the court approved counsel fees of $1,753,750 (30% of total recovery).

Robinson v. Rochester Financial Ltd., 2012 ONSC 911: The Court approved settlement of a flawed tax shelter scheme class action. The Court also approved 25% contingency fee which amounted to an approximately 2x multiplier. The Court refused to award fee to representative plaintiffs, stating that such awards should not be routine.

Smith v. Vancouver City Savings Credit Union, 2012 BCSC 990: Approval of a settlement of $2.5 million. Court also approved counsel fees of 30% and a contribution of $5,000 to the representative plaintiff.

St. John's Evangelical Lutheran Church of Toronto v. Steers, 2011 ONSC 6308: Case involving management and ownership of church was certified and settled.

St-Arnaud v. Facebook Inc., 2012 CarswellQue 3095: National privacy class action settled (after it had been dismissed on jurisdictional grounds, but with an appeal pending).

Union des consommateurs c. Pfizer Canada Inc., 2012 QCCS 16: Celebrex and Bextra class action settled. Notably, the consumer group representative plaintiff who signed the deal opposed it. The Court held that after signing the agreement, the representative plaintiff must be bound by its terms.

CARRIAGE

Simmonds v. Armtec Infrastructure Inc., 2012 ONSC 44: Carriage of proposed class action against Armtec Infrastructure Inc. granted to Sutts Strosberg over Siskinds. The key factors leading to the Court's decision included the nature and scope of the causes of action advanced, the theories advanced in support of those causes of action, the best interests of the class members, what is fair to the defendants (?) and what is consistent with the policy objectives of the Class Proceedings Act.

Smith v. Sino-Forest Corporation, 2012 ONSC 24: Carriage of proposed class action against Sino-Forest Corporation granted to Siskinds LLP and Koskie Minsky LLP over Kim Orr and Rochon Genova. In doing so, the Court found that the attributes of counsel, the retainer and resources, funding, alleged conflicts of interest and the correlation between the plaintiffs and the defendants were all neutral factors. The key determining factors leading to the Court's decision included the attributes of the proposed representative plaintiffs, the definitions of class membership and class period, and what the bundle of issues the Court referred to as "theory of the case, causes of action, joinder of defendants, and prospects of certification".

Of note, the Court found that one of the principal weaknesses of the claim advanced by Kim Orr Barristers, one of the law firms competing for carriage of the action, was the pleading of fraudulent misrepresentation. The Court found that a pleading of fraudulent misrepresentation action added needless complexity and costs:

"Turning to the pleading of fraudulent misrepresentation, when it is far easier to prove a claim in negligent misrepresentation or negligence, the claim for fraudulent misrepresentation seems a needless provocation that will just fuel the defendants' fervor to defend and to not settle the class action. Fraud is a very serious allegation because of the moral and not just legal turpitude of it, and the allegation of fraud also imperils insurance coverage that might be the source of a recovery for class members."

Only a few months after the release of this decision, the Ontario Securities Commission, having concluded its own investigation of Sino-Forest, issued allegations of fraud against the Company and its executives. In a statement released on May 22, 2012, the OSC stated: "OSC Staff allege that Sino-Forest and members of its overseas management engaged in numerous deceitful and dishonest courses of conduct connected with the purported purchase and sale of timber in the People's Republic of China. Staff allege that Sino-Forest provided grossly misleading disclosure to investors and that certain former executives attempted to mislead Staff's investigation."

CERTIFICATION

For those keeping scope, 23 certifications, 26 refusals, and 1 pending in contested cases. The writer's sense is that defendants are getting smarter, consenting when they cannot win, and more effectively "picking their spots".

Durling v. Sunrise Propane, 2011 ONSC 7506, 2012 ONSC 4196: Court refused to certify proposed consent certification in propane explosion case that included a mandatory registration date. Case was subsequently certified against all but landlord group on consent. Writer is counsel for one of the defendants. Certification efforts continue against landlord group.

Dominguez v. Northland Properties Corporation, 2012 BCSC 328: Foreign worker class action was certified. Writer is co-counsel for defendants.

121851 Canada inc. c. Theratechnologies inc., 2012 QCCS 699: Secondary market securities case was certified. The Court did emphasize that securities law leave requirement was higher than "colour of right" test under Quebec's certification rule Art. 1003. In a rough Google translation the court concluded, "In view of the Policy 51-201, the position advanced by [the plaintiff] suggests a reasonable possibility of success since the argument is serious and deserves careful consideration by the Tribunal. Obviously, the award may well lead to the eventual dismissal of the action, but since the factual and legal context to be the subject of legal debate reveals the presence of a serious issue to discuss and there is a reasonable chance successful, the Tribunal must allow the use."

Arenson v. Toronto (City), 2012 ONSC 3944: Certification of proposed "frozen parking machine" class action refused.

Arora v. Whirlpool Canada LP, 2012 ONSC 4642: The plaintiffs' motion to certify product liability action as a class proceeding was dismissed. The action related to a claim for pure economic losses arising out of the defendant's alleged negligence in the design of certain models of front-loading washing machines. After undertaking a detailed analysis of the law pertaining to the first element of the test for certification - the existence of a cause of action - Perell J. concluded that the plaintiffs' claim did not disclose a cause of action. He held that it was plain and obvious that the plaintiffs' contractual, statutory and common law claims could not succeed. He specifically examined the law of negligence pertaining to claims for pure economic loss relating to non-dangerous defects, and concluded that the plaintiffs' negligence claim could not succeed under the existing jurisprudence. Therefore, although the plaintiffs had satisfied the other four criteria for certification, the motion was dismissed without leave to amend the statement of claim to remedy the defects in the pleading.

Barwin v. IKO, 2012 ONSC 3969: The plaintiff's proposed class action against the defendants for negligence in design of organic roofing shingles was certified. The Court rejected the defendants' argument that the plaintiff's claim was for pure economic loss and therefore did not disclose a cause of action. The plaintiff had pled that he replaced his shingles in order to avoid water penetration into his home and the consequent possibilities of mold, mildew and fire hazard. The court noted that these were potentially significant threats to an occupant's health and safety. Accordingly, the plaintiff's claim arguably fell within the parameters of economic loss for remedying dangerous defects. Moreover, the Court held that the Supreme Court of Canada had left open the possibility of claims for repairs in non-dangerous situations. Given the lack of consistency in the jurisprudence, and the directives from the Court of Appeal to the effect that issues which are novel, complex and important should be decided on a full factual record after trial, the Court held that it was no plain and obvious that the plaintiff's negligence action could not succeed. The other criteria for certification were also met. The action was therefore certified as a class proceeding.

Brown v. Canadian Imperial Bank of Commerce, 2012 ONSC 2377: Motion for certification of CIBC overtime class action dismissed. The Court's decision rested primarily on the common issues and preferable procedure elements of the certification test. The Court took issue with the common issues proposed by the plaintiff. For instance, there was substantial variation in the duties and responsibilities of analysts and investment advisors. Some had managerial responsibilities while others did not. Therefore, the question of entitlement to overtime pay (which the plaintiff claimed could be determined by looking at the titles of the individual class member) could not be dealt with on a common basis.

Moreover, the key issue in the case - whether or not a given class member has managerial responsibilities so as to be entitled to overtime pay - was an individual issue that would require individual fact-finding concerning the circumstances of every class member and the individual application of the relevant legal principles to those circumstances. There was no workable methodology to resolve this conundrum. Therefore, a class action would not be a fair, efficient and manageable way of advancing the claims of class members and it would not promote access to justice or judicial economy. This was found to be an "insurmountable stumbling block".

Cannon v. Funds for Canada Foundation, 2012 ONSC 399: Proposed class action involving contributions made to charitable tax donation scheme was certified.

Cavanaugh v. Grenville Christian College, 2012 ONSC 2995: Motion for certification of proposed class action dismissed on the grounds that a class action was not the preferable procedure for resolving the claims of proposed class members. The Court found that the plaintiffs' approach of limiting the common issues to systematic wrongdoing passed the test for the common issues criterion but failed the test for preferable procedure. "In the circumstances of this case, the technique is a penny wise, pound foolish way to secure access to justice because it will make proof of the individual members' claims more difficult. In the case at bar, the expediency of framing the claim as systemic wrongdoing would not facilitate but will impede access to justice for the individual class members, the primary goal of the Class Proceedings Act, 1992." For instance, it appeared that many class members had no grievances to pursue and others would be better served by proving individual negligence and breach of fiduciary duty claims rather than systemic wrongdoing. Further, it was probably easier for each class member to prove his or her claim than it would be for the representative plaintiffs to prove systemic negligence or a systemic breach of fiduciary duty.

The Court concluded that this was a case where an alternative approach, such as the approach used in Hudson v. Austin, 2010 ONSC 2789 (i.e. a group of case-managed actions with the plaintiffs being represented by one team of lawyers and the defendant represented by the same lawyer of record in all of the actions) would provide access to justice, judicial economy, and behavior modification in a way that was procedurally fair. Although this was not an approach that was put forth as an alternative by the defendants, the Court nevertheless concluded that such an approach would be preferable to a class action "that would provide a common issues trial that would involve the proof of matters that ultimately will have to be proven again or will have been a waste of time to prove in the first place and individual issues trial that will provide little or no judicial economy and make access to justice more and not less difficult." Therefore, the Court held that the preferable procedure criterion had not been satisfied. Certification was hence denied, but the dismissal was suspended for six months to allow the plaintiffs to apply under s.7 of the Class Proceeding Act, 1992, to have the action continue in an altered form.

Centre de la communauté sourde du Montréal c. Institut Raymond-Dewar, 2012 CarswellQue 2896: Institutional abuse case was certified. Champagne v. Sidorsky, 2012 ABQB 522: The Court refused certification of proposed class action, noting that a class action was not the preferable procedure of dealing with the claims of the plaintiffs. Of note, the Court held that, except when the court exercises its discretion to allow representation by non-lawyers or otherwise provided for in an express exception, representative plaintiffs in class actions must be represented by counsel.

Dell'Aniello c. Vivendi Canada inc., 2012 QCCA 384: Pension case was certified.

Deraspe c. Zinc électrolytique du Canada ltée, 2012 QCCS 1043: Class action concerning cloud of toxic gas emitted from a refinery which created noxious symptoms for those exposed. Damages are estimated at up to $900 million. Plaintiffs had attempted to certify the action in 2009 but the Court then ruled that the class definition was too vague. In 2012, class was more precisely defined and certification successfully obtained.

Érablière J.P.L. Caron inc. c. Fédération des producteurs acéricoles du Québec, 2011 QCCS 6445: Certification in fee restitution class action was refused on the basis of res judicata arising from enforcement judgments. Farmer sought restitution after certain penalty clauses issued by the defendant were struck down. The court held that the plaintiff was estopped from advancing the case due to the fact that it had entered into an earlier settlement.

Fairview Donut Inc. v. TDC Group Corp., 2012 ONSC 1252: Certification and summary judgment motion heard together. The action involved claims by Tim Horton's franchisees in relation to (1) conversion from scratch-baked operation to par-baked operation; and (2) the cost of ingredients and reduced profit margins associated with new lunch menu. The plaintiffs argued that these actions breached their franchise agreements and duties of good faith (including statutory duties). Justice Strathy granted summary judgment and dismissed the certification motion, however, Justice Strathy noted that had he not dismissed the claims of the individual franchisees, he would have certified the class and asked the parties to draft common issues.

French and Karas et al v. Smith and Stephenson et al., 2012 ONSC 1150: Certification granted in proposed class action relating to mutual fund leveraging scheme.

Gaudet c. P. & B. Entreprises ltée, 2011 QCCS 5867: Environmental case was certified. However the Court found that there was insufficient support to justify the punitive damage claim. The Court also excluded individuals who only worked rather than resided in the area.

Gay v. Regional Health Authority 7, 2012 NBQB 88: Motion for certification of proposed class action against physician and hospital for negligence in testing of tissue samples dismissed. The plaintiffs failed to establish an identifiable class, define a workable and manageable common issue or establish that a class action would be the preferable procedure for proceeding within the requirements of the Class Proceedings Act.

Jin v. Canada Everich Real Estate Group Inc., 2011 ABQB 524: Real estate investment case was certified.

Lessard c. Arcand, 2012 QCCS 275: Environmental flooding case was certified against certain defendants.

Lipson v. Cassels Brock & Blackwell LLP, 2011 ONSC 6724: Certification of proposed class action against Cassels Brock LLP for negligent tax advice denied on grounds that the claim was statute-barred.

Lorrain c. Pétro-Canada, 2011 QCCS 4803: The Court rejected proposed gas tank supply measurement class action. The Court noted that in Quebec, the Court is allowed to consider evidence on the "colour of right" component of the test. Specifically, pleadings that are flatly contradicted by reliable documentary evidence can be ignored. The Court held that the test was not met in this case. The Court also found that there were no common issues, and that the representative was inappropriate.

MacDonald v. BMO Trust Company, 2012 ONSC 759: Proposed class action certified for breach of contract as a result of undisclosed and excessive foreign currency exchange charges on registered accounts.

MacMillan c. Abbott Laboratories, 2012 QCCS 1684: Certification denied for proposed class action against the manufacturer of the drug "Meridia" Plaintiff failed to show causal link between drug use and alleged cardiovascular risk.

MacQueen v. Sydney Steel Corporation, 2011 NSSC 484: Sydney Tar Ponds class environmental class action was certified. Claim was restricted to loss of use and enjoyment of property and funding of medical monitoring. Compensation for diminution of property values and personal injuries were not pursued. Class certified included property owners within certain defined radius of the Steel Works, and a residential class, being persons who lived within the same boundary for a minimum of 7 years after January 5, 1968. The court distinguished Ring and Bryson, stating: "In my view those cases are distinguishable because they lack common elements present in this case, such as pollutant source and toxicity level, and because individual personal injury was a major factor in those disputes."

The court found that it was premature to address limitation periods as part of the class definition, particularly as the plaintiffs had pleaded suspension of limitation periods based upon discoverability and equitable fraud. The court did narrow the class from the originally proposed definition. The court stated "I have considered the authorities that the defendants cite to support their "all or nothing" argument, but nevertheless conclude that if I do not accept the boundaries proposed by the plaintiffs, I can make adjustments within reasonable limits, provided that revisions I make to boundaries proposed are supported by the evidence."

Martin v. AstraZeneca Pharmaceuticals PLC, 2012 ONSC 2744: Certification denied for potential class action arising from allegedly serious health risks derived from taking the antipsychotic drug Seroquel. The plaintiff alleged "negligent design, development..testing...manufacturing...distribution, marketing and sale" of the drug.

The Court denied certification on the basis that the plaintiff had not developed a valid cause of action. It found the pleadings to be "muddled and vague" and that allegations of negligence were lacking in support. The Court emphasized that it was not sufficient to bring generalized allegations of negligence. It also found that the claims that were brought lacked the material facts necessary for their support.

The Court also refused certification for the plaintiff's two other causes of action: failure to warn and conspiracy. The "statement of claim fails to plead what warnings were given, how they were inadequate, and whether or how they could have been improved." The Court also found that the claim for conspiracy lacked clarity and did not contain the required "high degree of specificity."

Additionally, the court found that the plaintiff failed to produce an identifiable class of two or more that could be represented by the plaintiff and that the proposed common issues proposed by the plaintiff lacked the necessary commonality. The Court found that, given the lack of commonality and the complexity of the individual issues, a class action was not the preferable procedure. Finally, the representative plaintiffs were found not to be suitable.

The writer understands that the decision is currently under appeal.

Mazzonna v. DaimlerChrysler Financial Services Canada Inc./Services financiers DaimlerChrysler inc., 2012 QCCS 958: Certification was denied in privacy class action on the basis that the plaintiff had not shown any colour of right in relation to damages, as she had not met the Mustapha standard for claim for mental distress, and had no other damage. The Court found that the potential need for monitoring was too speculative.

Morin c. Bell Canada, 2011 QCCS 6166: Cancellation fee class action was certified.

Neale c. Groupe Aeroplan Inc., 2012 QCCS 902: National class action was certified in Quebec regarding the expiry of Aeroplan points.

Option Consommateurs c. Corp. Shoppers Drug Mart, 2012 QCCS 1078: Optimum Card points adjustment class action was certified for Quebec residents only.

Paris c. Lafrance, 2011 QCCS 4619: Securities class action was certified.

Pardhan v. Bank of Montreal, 2012 ONSC 2229: Certification in proposed investor fraud class action denied on the basis that the proposed representative plaintiff's health problems - resulting from a stroke shortly before the certification hearing - prevented him from advancing the interests of the class. However, the court held that, since the plaintiff had met the other requirements for certification, the fair approach would be to give the plaintiff an opportunity to resolve the representative plaintiff's health issue or alternatively propose another representative plaintiff and produce an acceptable litigation plan. The Court adjourned the certification motion for 30 days to satisfy the "suitable representative plaintiff" requirements.

Picard v. Air Canada, 2011 QCCS 5186: The Court granted certification on behalf of disabled or obese persons required to purchase extra seat. The Court stated that courts have concurrent jurisdiction over Canadian Human Rights Code (unlike the situation in Ontario and in other provinces).

Regroupement des comités logement & assoc. de locataires du Québec c. Québec (Société d'Habitation), 2011 QCCS 6115: Case regarding calculation of fees for low income housing was certified. The Court reemphasized that the default rule in Quebec is that the Defendant pays the certification notice cost.

Renaud c. Holcim Canada inc. 2012 QCCS 82: Environmental dust case was certified.

Rhodes v. Cie Amway Canada, 2011 FC 1341: Class action dismissed based on class action waiver clause. The Court held that there was no applicable legislation that clearly prohibited the waiver. Griffin did not apply as there was no evidence on claims that fell outside of the class action waiver's terms.

Sivak v. R, 2012 FC 271: Certification of a proposed class action in the Federal Court involving the processing of Roma refugee claims based upon a 2009 Report was refused. The proposed class was rejected because there was no proper representative plaintiff and because a class action was found not to be the preferable procedure. Interestingly, almost no discussion took place in relation to preferable procedure. The context of the Federal Court Rules also factored in heavily in the Court's decision.

Sorenson v. easyhome Ltd., 2012 ONSC 1946: Consent motion for the certification of proposed class action for those who purchased easyhome Ltd. shares during 30 month period in which its financial reporting documents contained misrepresentations.

St-Pierre c. Banque Royale, 2011 QCCS 5758: Lease registration fee case was certified.

Tremblay v. Ameublement Tanguay, 2011 QCCS 3078: Important decision rendered by Madame Justice Dominique Bélanger in one of the 10 class actions filed against various retailers alleging failure to disclose and explain the legal warranty, and alleging that the extended warranty has no value. The motion for authorization was dismissed. In summary, she held that the retailers up to the most recent legislative amendments had no obligation to disclose and even less of an obligation to describe the legal warranty, that the extended warranty does have value, and does not address necessarily the same matters as the statutory warranty. She further concluded that there are too many contracts involving too many customers and too many products raising too many individual issues, such that the commonality criterion was not met. Finally she held that the petitioner was not an adequate representative.

A series of similar class actions were also refused certification: Fortier c. Meubles Léon Ltée, 2011 QCCS 3069, Blondin c. Distribution Stéréo Plus Inc., 2012 QCCS 105, Filion c. Corbeil Électrique Inc., 2012 QCCS 101, Guindon c. Brick Warehouse, l.p., 2012 QCCS 100, Normandin c. Bureau en gros (Staples Canada Inc.), 2012 QCCS 104, Tahmazian c. Sears Canada Inc., 2012 QCCS 102; Roulx c. 2763923 Canada Inc. (Centre Hifi): 2012 QCCS 103.

Toure c. Brault & Martineau inc., 2011 QCCS 5343: Certification of financing fee class action was refused on the basis of the "colour of right" test.

Trudel c. Bell Canada, 2011 QCCS 6750: Case regarding change in interest rate on late bills was certified.

Waldman v. Thomson Reuters Corporation, 2012 ONSC 1138: Proposed class action regarding infringement of copyright of court documents authored by lawyers through their unauthorized publication in Carswell's "Litigator" database was certified.

Williams v. Canon Canada Inc., 2011 ONSC 6571: Proposed class action for malfunctioning Canon cameras not certified on grounds that it did not meet the "basis in fact" threshold for identifiable class, common issue or preferable procedure.

REPRESENTATIVE PROCEEDINGS

Assn. des parents de l'ecole Rose-des-Vents v. Conseil scolaire francophone de la Colombie-Britannique, 2011 BCSC 1495: The Court approved a representative (not a class) proceeding to determine French language constitutional rights. Notably, the Court declined to allow an opt out right, as it would undermine efficiency to have multiple proceedings.

Ottawa Police Assn. v. Ottawa Police Service Board, 2011 ONSC 7214: Pension misrepresentation case given certification under traditional representative Rule 12.08. The Court found that union could not be appointed representative as 12.08 states that "one or more of [the class]" may be authorized. The Court gave leave to substitute a union member as representative provided information was put forward to confirm there were no conflicts and that they could represent adequately.

APPEALS

Medvid v. Alberta (Health and Wellness), 2012 SKCA 49: Unsuccessful appeal of a decision by the Trial Court in relation to a proposed class proceeding in Saskatchewan and Alberta in relation to the re-use of medical syringes by the defendants. The conclusion of the Trial Court that Crown immunity prevented the Alberta government from falling within the jurisdiction of the Saskatchewan Court of Queen's Bench was upheld. The writer was counsel for the successful Province.

Abdula v. Canadian Solar Inc., 2012 ONCA 211: In an appeal from the decision of Taylor J., the Ontario Court of Appeal dismissed the corporate defendant's appeal and concluded that the defendant was a "responsible issuer" pursuant to s.183.1(b) of the Ontario Securities Act ("OSA"). As the defendant's shares were not publicly traded in Ontario, it was not a "reporting issuer" for the purposes of s.183.1(a) of the OSA. However, the definition of "responsible issuer" under s.138.1 of the OSA included both a "reporting issuer" and "any other issuer with a real and substantial connection to Ontario, any securities of which are publicly traded." The Court of Appeal concluded that "when the words 'publicly traded' in paragraph (b) of the definition of 'responsible issuer' are read in their entire context and in their grammatical and ordinary sense, harmoniously with the scheme of the OSA, the object of the OSA and the intention of the legislature, gleaned from the legislative history and the words chosen by the legislature, they do not mean 'publicly traded in Canada'." Since the corporate defendant was an issuer with a real and substantial connection to Ontario, and since its shares were publicly traded on the NASDAQ, it met the definition of "responsible issuer" under the OSA and was therefore subject to the statutory tort provisions of the OSA.

Adams v. Amex Bank of Canda, 2012 QCCA 1394: In this credit card foreign currency conversion rate case, the Quebec Court of Appeal upheld the judgment of the Superior Court in this successful certified action which granted certification ruled against Amex for failure to disclose to consumers the nature of certain fees it charged when it exchanged foreign funds expended on the class members' credit cards into Canadian dollars. The Court held that Amex's disclosure obligations did not frustrate the Federal government's powers under the Bank Act. Further, the trial judge did not commit a palpable and overriding error in the appreciation of the evidence and, accordingly, his conclusion that the mark-up was in essence a fee or cost for a service could not be disturbed.

However, the Court of Appeal went on to hold that the award of punitive damages was not justified in the circumstances. To begin with, the trial judge failed to take into consideration the fact that a collective recovery often comprises an important punitive aspect as compared to individual recovery. Moreover, there was no need to impose punitive damages to encourage a practice that had long been discontinued by Amex and by other banks. There was also no evidence of anti-social or reprehensible conduct by Amex requiring some form of punishment in addition to an award of restitution. And finally, an award of punitive damages in connection with a service that the class members had used for many years, that would retrospectively be free and that they had continued to use even when made aware of the commission associated with it, was not justified. As a result, the Court of Appeal varied the judgment of the trial judge and disallowed the award of punitive damages.

Allstate v. Agostino, 2011 QCCA 1817: Quebec Court of Appeal granted leave to appeal decision of lower court declining to admit certain evidence without hearing full submissions from the defendant.

Bergeron c. Tremblay, 2012 QCCA 1301: Defendant sought leave to appeal an interlocutory judgment that rejected his request to suspend his examination for discovery until the conclusion of his criminal trial on a related matter. The court rejected this application but instituted safeguards to prevent prejudice: that the content of the discovery document would not be disclosed beyond the parties and their lawyers and that the transcript would be sealed when it was submitted to the court.

Bre-X Minerals Ltd. (Trustee of) v. Felderhof, 2011 ONSC 6492: Amazingly, the Bre-X litigation continues. This was an appeal of the decision ordering trustee of Bre-X to pay future legal expenses of Felderhof. Funding was overturned on the basis that Plaintiffs had not been given a full opportunity to argue that the Okanagan test was not met. Further, the Court did not have the jurisdiction to make an order against Bre-X's assets as the Bre-X estate was controlled by the Alberta Bankruptcy court. Neither did the court have the authority to attach the funds held in trust for the class action Plaintiffs.

Curactive Organic Skin Care Ltd. v. Ontario, 2012 ONCA 81: Court of Appeal upheld dismissal of environmental case on the basis that it fell within OMB jurisdiction or did not disclose cause of action.

Dean v. Mister Transmission (International) Ltd., 2011 ONCA 670: Dismissal of franchisee class claim was upheld on appeal.

Dennis v. Ontario Lottery and Gaming Corporation, 2011 ONSC 7024: The plaintiffs' appeal of the motion judge denying certification of the "It's your fault I'm was able to keep gambling" class action dismissed. The appeal centered on the motion judge's treatment of the plaintiffs' proposed common issues and the determination that a class action was not the preferable procedure. The Divisional Court agreed with the motion judge that there was a wide range of individual issues, such as the degree of loss, representations made by the gaming authority, the duty of care owed to individual gamblers and limitation issues, which could not be dealt with on a class-wide basis. The Divisional Court therefore concluded that the motion judge did not commit an error in law justifying intervention.

In a lengthy dissenting judgment, Wilson J. held that the major issues in the case - which related to the signing of exclusion contracts by the class members - were common issues. Furthermore, as problem gamblers, the class members were a vulnerable class that needed access to justice. Further, there was a question as to whether there was a systematic breach on the part of the gaming authority. In Wilson J.'s view, any of the individual issues could be refined throughout the litigation.

Canada (Attorney General) v. Anderson, 2011 NLCA 82: The Court of Appeal granted leave to appeal from the decision of lower court certifying residential school action as a class proceeding. It held that the standard of review was correctness regarding the existence of a cause of action and palpable and overriding error regarding an identifiable class, presence of common issues, preferable procedure and an appropriate representative plaintiff. It further held that the applications judge correctly concluded that it was not plain and obvious that no cause of action was disclosed and made no palpable and overriding error in concluding some basis in fact was set out for the remaining certification criteria. The appeal itself was dismissed however.

Fischer v. IG Investment Management Ltd., 2012 ONCA 47: Appeal from decision of Divisional Court certifying "market timing" class action was dismissed. The principal issue before the Court of Appeal was whether the settlements procedure carried out under the supervision of the Ontario Securities Commission was the preferable procedure for dealing with the claims of the class members. The Court of Appeal rejected the reasoning of the trial court, as it focused on the substantive outcome of the OSC proceedings, rather than considering the regulatory nature of the OSC's jurisdiction and its remedial powers, as well as the lack of participatory rights afforded to affected investors by the OSC proceedings. "A consideration of these two particular characteristics compels the conclusion that the OSC proceedings would not fulfill the CPA goal of providing class members with access to justice in relation to their claims. Thus, the OSC proceedings cannot constitute a preferable procedure to the proposed class action for the purposes of the CPA." The decision of the Divisional Court's certifying the action was upheld.

Fontaine v. Canada (Attorney General), 2012 ONCA 471: The battle over counsel fees associated with the Indian residential schools litigation continues nearly seven years after the approval of the national settlement agreement. Merchant Group appealed from the decision of the administrative judge, who ruled that there was no right of appeal or judicial review from a fee review decision by the Chief Adjudicator which approved the independent assessment process adjudicator's decision to adjust legal fees down from 30% to 20% of the compensation award. The Court of appeal dismissed the appeal, holding that the fee review decision of the chief adjudicator was not reviewable by way of an appeal to the Superior Court, or by way of an application for judicial review to the Superior Court. Rather, the Chief Adjudicator's decision was only reviewable by an administrative judge through a Request for Direction under a Court Administration Protocol. A Request for Direction could only be brought where it was alleged that the Chief Adjudicator's decision reflected a failure to enforce the provisions of the settlement agreement and the implementation order. As Merchant Group had not established such a shortcoming on the part of the Chief Adjudicator, the appeal was dismissed.

Fresco v. Canadian Imperial Bank of Commerce, 2012 ONCA 444: This was one of three decisions rendered by the Ontario Court of Appeal in relation to the overtime class actions. The Ontario Court of Appeal allowed the appeal from the Divisional Court and certified the action as a class proceeding. It held that the motion judge had committed an error in law in her finding that it was plain and obvious that CIBC's overtime policies complied with the Canada Labor Code. Further, in conducting the common issues analysis, the motion judge had misconceived the appellant's action as being a collection of individual claims for unpaid overtime. The motion judge disregarded the appellant's evidence showing some basis in fact to support the existence of many of the proposed common issues concerning liability. Given these errors, appeal was allowed and the action was certified as a class action.

Fulawka v. Bank of Nova Scotia, 2012 ONCA 443: This was one of three decisions rendered by the Ontario Court of Appeal in relation to the overtime class actions. The court upheld certification for many of the same reasons as in Fresco, but trimmed the common issue of aggregate damages, saying it was not realistically available in this case.

Kwicksutaineuk/ Ah-Kwa-Mish First Nation v. British Columbia (Minister of Agriculture & Lands), 2012 BCCA 193: Appeal from the decision of motion judge certifying the proceeding as a class action was allowed. The action involves claims by members of First Nations communities in the Broughton Aechipelago region as a result of the depletion of wild salmon stock. The class action was certified, and the class was defined as "all aboriginal collectives who have or assert constitutionally protected aboriginal and/or treaty rights to fish wild salmon for food, social, and ceremonial purposes within the Broughton Archipelago and the rivers that drain into the Broughton Archipelago on behalf of himself and other Aboriginal collectives who have rights to fish in the Broughton Archipelago". In allowing the provincial government's appeal, Court of Appeal noted that there would be significant difficulty in determining class membership, and that the analysis of this issue was "more involved than is appropriate". Moreover, the Court held that the "aboriginal collective" referred to in the class definition was not a legal entity that had the capacity to sue:

"Here, there is no evidence that the "aboriginal collectives" who are class members are organized in a way that could confer legal status on them. Most importantly ... the identity of the groups is not ascertainable without an in-depth examination of the merits of the individual liability issues in the proposed action."

Accordingly, the Court of Appeal held that the motion judge had erred in certifying the class definition. It further held that no amendment could address the problems with the class definition. As a result, the appeal was allowed without leave to amend the class definition.

This is an important case pertaining to aboriginal rights and the ability of aboriginals to use the class proceedings statutes, and is expected to reach the Supreme Court of Canada for ultimate determination.

Koubi v. Mazda Canada Inc., 2012 BCCA 310: Appeal from certification of class action pertaining to defective door locks installed in certain Mazda vehicles allowed. Statutory breaches of the Business Practices and Consumer Protection Act and Sale of Goods Act did not provide a foundation for a claim in waiver of tort resulting in an award of restitutionary damages and disgorgement. As such, the plaintiff's pleading did not disclose a cause of action. One noteworthy aspect of this decision is that the Court of Appeal undertook a detailed analysis of the question of whether waiver of tort was an independent cause of action or whether it is "parasitic" in the sense it merely provides an alternative remedy once the plaintiff has established an actionable wrong. Having done so, the Court concluded that the state of the law on the topic was still unsettled, and refused to make a firm conclusion on this matter one way or the other. And hence, waiver of tort remains an enigma in the realm of restitutionary remedies.

Johnston v. The Sheila Morrison School, 2012 ONSC 1322: Divisional Court reversed Justice Perell, who had held that parents could be liable for the damages their children may have suffered while being abused at a private school. The central issue related to when a claim against a defendant based on several liability precludes a third party claim for contribution and indemnity. Justice Perell held that such a third party claim was not precluded. The Divisional Court disagreed, noting that the Class had agreed to seek only that portion of their damages attributable to the defendant's degree of fault, and not the portion that may be attributable to the degree of fault of their parents or guardians. The court concluded that "In circumstances where the Appellants limit their negligence claim to the damages caused solely by the Respondents, there is no right to claim contribution and indemnity".

Marcotte c. Banque de Montreal, 2012 QCCA 1396, Marcotte c. Federation des caisses DesJardins du Quebec, 2012 QCCA 1395: Partially successful appeal of the certification of a class action against banks and credit cards relating to the undisclosed currency conversion fees for credit cards. The Court dismissed the claim against five of the defendants and reduced the damages awarded against the others.

The Court also explored whether the plaintiff was required to have a direct relationship with all defendants in a multi-defendant class action. It concluded that a direct cause of action was not necessary but that two criteria had to be met. First, that there exists a class of individuals with a direct cause of action against the defendant; and second, that the representative plaintiff is able to properly represent these class members.

McCracken v. Canadian National Railway Company, 2012 ONCA 445: This was the third in the series of overtime appeals. The appeal of certification was successful in relation to this class action alleging that CNR supervisors were unlawfully deprived of overtime and holiday pay. The Motion Judge had drawn up a set of revised common issues for certification for the plaintiff. However, the Appeals Court found that even this reframed question was not able to overcome the fact that there was no true common issue to be decided.

Miller v. Merck Frosst Canada Ltd., 2012 BCCA 137: The Court of Appeal refused leave of decision declining to order pre-certification production of medical records in drug case. Court held that decision was discretionary, and that an appeal could delay certification hearing.

Option Consommateurs c. Infineon Technologies, a.g., 2011 QCCA 2116: Price fixing class action was certified on appeal. Leave has been granted for this action to proceed to the SCC.

Schroeder v. DJO Canada, Inc., 2011 SKCA 106: Appeal of an order certifying a "pain pump" class action was dismissed. In obiter, the Court raised some question as to whether Saskatchewan really has a higher standard on the cause of action requirement than the other provinces. The court stated:

"The certification judge in this case made a comment to the effect that Hoffman had adopted a "slightly higher threshold" for s. 6(1)(a) of The Class Actions Act than the threshold for Rule 173(a). Rule 173(a), of course, is the feature of The Queen's Bench Rules empowering a judge to strike a claim because it discloses no reasonable cause of action. The certification judge's comment was not the subject of argument in this Court and it was not something on which his decision turned or on which the resolution of this appeal ultimately turns. As a result, these reasons do not address this issue. However, I would not wish my failure to comment on them to be read as an implied endorsement of the view that the "threshold" under s. 6(1)(a) is necessarily "higher" or more rigorous than it is under Rule 173(a). If this point needs to be addressed, it will have to be in the context of an appeal where it is more squarely on the table."

The Court disagreed with the trial judge's finding that the Consumer Protection Act might possibly be triggered without there being a retail seller. However, the Court agreed that there was an arguable case that the hospital was a retail seller. The Court also agreed that it was arguable that there was a sale transaction under the CPA, and not just a contract for services.

Sparvier v. Lac La Ronge Indian Band, 2011 SKCA 115: Merchant Group had filed proposed class action in relation to a school outside the IRS program. The Band applied to represent the same group in an effort to get the school inside the IRS program. Merchant Group opposed because inclusion would undermine their proposed class proceeding. The court granted the representation order. An application to extend the time to appeal was granted.

Smith v. Inco, 2011 ONCA 628: The Ontario Court of Appeal overturned the trial judgment in favor of class in this environmental claim. In terms of class action issues, the Court commented adversely on treatment of limitation period issues, stating:

"A class action is a procedural vehicle. Its use does not have the effect of changing the substantive law applicable to individual actions: see Bou Malhab v. Diffusion Métromédia CMR inc., [2011] 1 S.C.R. 214, at para. 52; Hislop v. Canada (Attorney General) (2009), 95 O.R. (3d) 81, at para. 57. If, as the trial judge found in this case, the evidence does not establish that all class members were not aware of and ought not to have been aware of the material facts, then the application of the Limitations Act to the claims is an individual and not a common issue. It is an error to treat the limitation period as running from the date when a majority, even an overwhelming majority, of the class members knew or ought to have known the material facts in issue.

Other certification decisions have recognized that discoverability is often an individual issue that will require individual adjudication after the common issues are determined. Indeed, when this court certified this action, Rosenberg J.A. referred to the possibility of individual limitation defences: see Pearson v. Inco Limited (2005), 78 O.R. (3d) 641, at para. 63. On the trial judge's findings, the applicability of the Limitations Act as he characterized its applicability was not a common issue."

On costs of the trial, the Court determined that the issue should be remitted to the trial judge.

Leave to the Supreme Court of Canada from the Court of Appeal's decision was recently dismissed.

Stanway v. Wyeth Canada Inc., 2012 BCCA 260: Appeal of class certification for hormone therapy leading to increased risk of breast cancer was dismissed. Trial judge exercised broad discretion in determining that the class proceeding met the required criteria in s.4 of the Class Proceedings Act.

Sun-Rype Products Ltd v. Archer Daniels Midland Company, 2011 BCCA 187: Appeal from certification of corn syrup price fixing class action dismissed.

Turner v. York University, 2011 ONSC 6151, 2012 ONSC 4272: In the 2011 decision, Justice Horkins refused to allow the plaintiff a second chance at certification. Justice Horkins held that res judicata prevented a litigant from reopening a failed certification or commencing a fresh hearing. Mr. Turner sought to bring a class action on behalf of 50,000 York University students who were adversely impacted by a staff strike and university closure in 2008. The proposed class action sought compensation from York University for breach of contract, among other claims. Certification of the plaintiff's action failed, as Justice Cullity held that no part of section 5 of the Class Proceedings Act, 1992 was met. The plaintiff sought leave to appeal to the Divisional Court and requested that the appeal be considered on an "amended amended statement of claim", not the amended statement of claim before Justice Cullity. This request was rejected, but the Court explicitly made no determination on the ability to further amend.

The plaintiff moved before Justice Horkins to amend the flawed amended statement of claim, and if successful, directions on whether the certification motion should be reopened or a fresh motion brought. Justice Horkins denied leave to amend, and held that there is no reason why res judicata should not apply to a certification order, and that the test for res judicata had been met in this case.

In the 2012 decision the Divisional Court affirmed the 2010 decision to dismiss the class action.

Union des consommateurs c. Bell Canada, 2012 QCCA 1287: Appeal decision granting certification of class action against Bell Canada for violating the Consumer Protection Act, R.S.Q c. P-40.1 by systematically limiting the speed of its broadband internet service.

Unlu v. Air Canada, 2012 BCCA 179: Leave to appeal granted to Air Canada for proposed class action asserting that fuel charge included on airline tickets was a deceptive practice and contrary to the Business Practices and Consumer Protection Act, S.B.C. 2004 c.2. The basis for the appeal is that the BPCPA is not constitutionally applicable to Air Canada. If successful, the appeal would be dispositive of litigation, therefore it would not be appropriate to defer it until after the certification phase.

Wallace v. Canadian Pacific Railway, 2011 SKCA 108: The Court overruled conflict finding against proposed class counsel. The Court stated "McKercher did not gain, as a result of acting for CN, any confidential information which could prejudice CN if McKercher were to continue to act on the Wallace claim. However, McKercher did breach its duty of loyalty in respect of its commitment to CN respecting its CN files and also in respect of its duty of candour about taking on the Wallace claim. That said, CN falls short on the remedy for that breach. Although CN may have a basis to complain to the Law Society, McKercher should not be disqualified from acting on the Wallace claim. I would accordingly allow the appeal."

Weldon v. Teck Metals Ltd., 2012 BCCA 53: The Court determined that the chambers judge was correct in concluding that the plaintiff's application to renew his writ was not the appropriate forum for the defendants to apply to have the action struck.

Williams v. Toronto (City), 2011 ONSC 6987: The Divisional Court overturned finding that proposed class action did not meet the cause of action requirement. The case related to alleged negligence surrounding the responsibility to delivery notice of a potential rent reduction. Certification was ordered.

LIMITATION PERIODS

Ragoonanan Estate v. Imperial Tobacco Canada Ltd., 2011 ONSC 6187: Court considered whether section 28 of the Class Proceedings Act, 1992 ("CPA") continues to suspend limitation periods despite a denial of certification. In 2009, the plaintiff had exhausted his appeals from the refusal of certification. The plaintiff brought a motion to continue the proceeding as an individual action along with certain former putative class members as plaintiffs under section 7 of the CPA. The defendant argued that a denial of certification is a "dismissal of a class proceeding without an adjudication on the merits" under 28(1)(d) of the CPA, and the limitation periods for the plaintiff's' claims resumed running after the appeals from the refusal of certification were exhausted.

The court allowed the individual action to continue with Mr. Ragoonanan and the added plaintiffs. Justice Horkins found that a refusal to certify an action was not one of the triggering events specifically listed in subsection 28(1) and the limitation periods remain suspended.

This raises an interesting issue regarding the limitation periods of the putative class members who did not become plaintiffs in Mr. Ragoonanan's reconstituted action. It suggests these putative class members would continue to see the limitation periods for their claims suspended, even though there was no longer a proposed class proceeding on their behalf. The defendant raised this issue, but the court refused to decide it as "hypothetical". Her Honour found that if a putative class member comes forward and seeks to advance a claim, the court could then determine the limitation period issues for that person at that time.

Based on this analysis, a defendant cannot be complacent about an action under the CPA even if certification is denied. It puts the onus on a defendant to push the plaintiff to either continue the action under section 7 or agree to a discontinuance or dismissal of the action. With respect to the former, a defendant may seek an order that the reconstituted claim continue under a different court file number and the class proceeding be dismissed.

SECURITIES: LEAVE TO COMMENCE SECONDARY MARKET MISREPRESENTATION ACTION

Sharma v. Timminco Ltd., 2012 ONCA 107: In a monumental decision that will have significant impacts on the prosecution and defence of securities class action in Canada, the Ontario Court of Appeal held that the tolling provisions of the Ontario Class Proceedings Act, 1992, do not operate to suspend the three year limitation period applicable to the statutory cause of action for secondary market misrepresentation provided by Part XXIII.1 of the Ontario Securities Act. The plaintiffs had commenced action on May 14, 2009 alleging misrepresentations by the defendants that adversely affected the share value of Timminco Limited in the secondary market. The misrepresentations were alleged to have occurred between March 17, 2008 and November 11, 2008. The statement of claim asserted two common law causes of action - negligence and negligent misrepresentation - and a statutory cause of action under s.138.3 of the Securities Act.

By early 2011, the plaintiffs had not yet sought leave of the court to commence an action under s.138.3. Part XXIII.1 imposes a limitation period of three years from the first misrepresentation for the commencement of the action, as well as a requirement that such an action be commenced only with leave of the court. Given that the first alleged misrepresentation occurred on March 17, 2008, the plaintiffs faced a limitation issue. They therefore moved for an order declaring that the limitation period was suspended pursuant to the tolling provisions of the Class Proceedings Act, 1992. The motion judge granted the order, and the defendants appealed. The Court of appeal stated as follows:

"The suspension provision in s. 28(1) of the CPA provides that "any limitation period applicable to a cause of action asserted in a class proceeding is suspended in favour of a class member on the commencement of the class proceeding". These words must be read in their grammatical and ordinary sense, in the full context of the scheme of the CPA, its object and the intention of the legislature. [citation omitted] ... Without leave having been granted, a s. 138.3 cause of action cannot be enforced. It cannot be invoked as a legal right. Section 138.14 says as much. Thus, giving the suspension provision in s. 28(1) of the CPA its ordinary meaning, the s. 138.3 cause of action cannot be said to be asserted in the respondent's class proceeding since no leave has been granted.

The respondent argues that it is significant that s. 28(1) requires not that a cause of action be "commenced", but only that it be "asserted". However, this choice of language is entirely appropriate. A cause of action is not commenced. That is a concept applicable not to a cause of action but to the litigation in which it is asserted.

Thus, in my view as applied to the s. 138.3 cause of action, the grammatical and ordinary meaning of the s. 28(1) suspension provision is that without leave being granted the cause of action cannot be said to be asserted in a class proceeding."

The Court found that this interpretation was consistent with the purpose of the tolling provisions of the class proceeding legislation (to protect class members from the operation of limitation periods without the need to themselves pursue individual actions) and the limitation provisions of the securities legislation (to ensure that secondary market claims proceeded with dispatch). Further, the Court held that it did not agree with the plaintiff's interpretation of the legislation, as it would put a class plaintiff in a better position (in relation to the limitation period) than he would have been in had he commenced an individual action.

Accordingly, the Court of Appeal concluded that for a secondary market misrepresentation cause of action to be "asserted" in a class proceeding, so as to trigger the tolling provisions of the class proceedings legislation, leave must first be granted. Since the plaintiff had not obtained leave, the tolling provision had not been triggered. This in essence, disposed of the plaintiff's secondary market claim, as it was barred by the expiry of the limitation period.

Leave to appeal to the Supreme Court of Canada was recently dismissed.

Green v. Canadian Imperial Bank of Commerce, 2012 ONSC 3637: Application for leave and certification in proposed CIBC securities class action dismissed. The Court concluded that the plaintiffs had met the test for leave in s. 138.3 of the Ontario Securities Act and the test for certification in s. 5(1) of the Ontario Class Proceedings Act, 1992. However, relying on the Ontario Court of Appeal's seminal decision in Sharma v. Timminco (which was released during the hearing of the CIBC leave/certification application), the Court held that the plaintiffs' right to pursue the Securities Act cause of action was time-barred, as leave was not obtained prior to the expiry of the three year limitation period. With respect to the plaintiff's request for an order nunc pro tunc or pursuant to the special circumstances doctrine, the Court held, with obvious regret and sympathy for the plaintiff, that it did not have jurisdiction to revive a limitation period that had expired due to the failure to obtain leave within three years under either principle.

Ultimately, as the Securities Act claim had no possibility of success and as no other cause of action was available to the plaintiffs (the cause of action for negligent misrepresentation was properly pleaded, but was not suitable for certification because the issue of reliance could not be address on a class-wide basis), certification would serve no purpose and both motions were dismissed.

Round v. MacDonald, Dettwiler and Associates Ltd., 2011 BCSC 1416: In the first British Columbia case to examine the test for leave to commence an action under the secondary market liability provisions of the British Columbia Securities Act, the Court denied the plaintiff's leave motion, holding that there was no possibility that the intended action, as framed, could succeed at trial. The action was concerned with allegations of misrepresentation by the defendant company about a proposed sale of a key asset, and failure to make timely disclosure of material changes that related to the prospect of the sale receiving ministerial approval.

The Court dismissed the plaintiff's application for leave for two reasons. First, the material facts capable of giving rise to a cause of action were concluded before the relevant statutory provisions came into effect. There was nothing in the legislation to suggest that the Legislature intended the causes of action it created to apply either retroactively or retrospectively to completed matters. Secondly, the plaintiff's interest in the securities of the defendant was not acquired in the secondary market. She acquired her shares through her participation in an employee share purchase plan, whereby shares were distributed from the defendant's treasury to members of the plan. Accordingly, the plaintiff did not fall within the scope of "a person who acquires or disposes" of shares of an issuer in the secondary market and, as a result, she had no cause of action against the defendant.

Having come to these conclusions, the Court found it unnecessary to address the remaining arguments of the plaintiff or issue a definitive decision on the meaning of the test for granting leave. That being said, the Court made a number of concluding remarks that may be of assistance to those prosecuting or defending secondary market liability claims in British Columbia. In particular, the Court rejected the plaintiff's contention that, given that it is the very first step a plaintiff must take in a secondary market misrepresentation action, the bar for granting leave should be set lower than the test for certification. The Court referred to the relevant provisions of the legislation, and went on to note:

"Taken together, several propositions emerge from these sections. Taken together, several propositions emerge from these sections. First, the leave application involves a review of evidence. Each side is required to provide evidence of material facts upon which each intends to rely. Secondly, the analysis must involve a weighing and balancing of the evidence of each side. It is not sufficient for the court simply to rely on material filed by the plaintiff. Thirdly, the test involves an assessment of the merits of the proposed action on the evidence. The court must analyze the evidence to decide whether it is satisfied that the "reasonable possibility" test is satisfied. Fourthly, weighing and testing the evidence to determine whether there is a reasonable possibility that the action will be resolved at trial in favour of the plaintiff is different from the test involved in certification of class actions or the test for summary judgment. Given Ms. Round's argument, this last point deserves a little more analysis.

The test for certifying class actions is not a merits test. The only "merits" component of the test is that the pleadings state a cause of action. Beyond that, the focus is on whether the pleadings reveal common issues and whether it is preferable that those common issues be certified and resolved at a trial of the common issues. The court does not analyze or weigh the likelihood of success at trial or in the action generally in deciding whether to certify the action. In this case, it is clear that the court must weigh evidence in order to assess the likelihood of success at trial. That is necessarily a merits-based analysis. Accordingly, the test for granting leave is entirely distinct from and different to the test on certification. The one provides no guidance to the other. I do not agree, therefore, that the test for granting leave is necessarily a lower test than for certifying a class action.

Similarly, more is required to grant leave than to identify a triable issue. Whether there is a triable issue does not typically involve weighing and assessing, rather than identifying, evidence. The statute mandates an approach to granting leave very different from deciding whether there is a triable issue. Cases dealing with summary judgment do not, therefore, provide any real assistance in applying the leave test. Much the same can be said for other thresholds tests such as identifying the existence of a prima facie case that exist in other areas of the law.

Establishing a reasonable possibility of success at trial involves more than merely raising a triable issue or articulating a cause of action. Equally, it does not require a plaintiff to demonstrate that it is more likely than not that he or she will succeed trial. But it is clear, in my view, that the test is intended to do more than screen out clearly frivolous, scandalous or vexatious actions. An action may have some merit, and not be frivolous, scandalous or vexatious, without rising to the level of demonstrating that the plaintiff has a reasonable possibility of success."

The secondary market liability provisions of the B.C. Securities Act are still in their infancy stage, and it will be some time before the test for leave is fully developed in this province. It is likely that, as more cases are brought under the secondary market liability sections of the Act, the B.C. courts will provide further guidance on how the test should be interpreted and applied.

Silver v. Imax Corp., 2012 ONSC 4881: Defendants' motion to dismiss the claims of the plaintiffs for secondary market misrepresentation on the ground that they were barred by the three year limitation period in the Ontario Securities Act was dismissed. This motion was a result of the Ontario Court of Appeal's decision in Sharma v. Timminco, supra, in which the Court held that the tolling provision of Ontario's class proceedings legislation did not suspend the limitation period for obtaining leave to commence a secondary market misrepresentation action. Relying on Timminco, the defendants in Silver contended that as leave was granted to proceed with the statutory claims more than three years after the misrepresentations alleged in the statement of claim, the statutory claims were time barred and had to be dismissed.

The Court agreed with the defendants that Timminco's impact on securities litigation in Ontario was broad and potentially far-reaching:

"The effect of Timminco is that, no matter what the plaintiff pleads in the original Statement of Claim in relation to the statutory cause of action, the limitation period continues to run at least until leave is granted. It is not sufficient to defeat the limitation period that the claim is pleaded and that leave may be obtained at some later point. If that were the case, there would never had been any question of the operation of s. 28 of the CPA or suspending the limitation period in Timminco.

While the facts of this case are more sympathetic, Timminco did not simply turn on the fact that no motion for leave had been commenced by the plaintiffs. The decision was expressed more broadly, and leads to the inevitable conclusion that, unless the order granting leave and the amendment to the claim to assert the statutory cause of action can be given effect within the limitation period, the statutory claims in these proceedings would be statute-barred."

The Court noted that the facts of the case before it were somewhat different than in Timminco. The evidence was that the plaintiffs had moved expeditiously to advance the motion for leave, and had not only delivered their notice of motion and completed the record, but had argued the motion within three years of the alleged misrepresentations. "There was nothing more the plaintiffs could have done to comply with the limitation period. The reasons for the delay were outside the control of the plaintiffs, having to do with the complexity of the issues that were being considered by the court for the first time, and delays occasioned during the leave motion, in particular the fact that the decision was under reserve when the limitation period expired."

The Court acknowledged that the question it was essentially faced with was whether there was something that could be done now to avoid the harsh result of an intervening limitation period barring the statutory claim, where there was never any question that the statutory claim was being pursued and the plaintiffs proceeded with dispatch. It concluded that it could exercise its inherent jurisdiction to grant an order nunc pro tunc that its order granting leave be amended to provide that leave was effective as of the last day of the hearing of the leave motion. It held: "In my view, the present case fits squarely within authorities for making a nunc pro tunc order where the plaintiffs' rights have abated through no fault of their own, while a decision has been reserved by the court. If the order granting leave is effective the date of final argument, there is no question of expiry of the limitation period. The prejudice to the plaintiffs caused solely by the court's own schedule, is avoided."

Accordingly, the Court in Silver was able to use the specific facts of the case to get around the potentially harsh effect of the Timminco decision.

Zaniewicz v. Zungui Haixi Corp., 2012 ONSC 4904: Proposed securities class action alleging misconduct in trading the shares of Zungui Haixi Corporation in the Ontario securities market. Some of the defendants are residents of the People's Republic of China which only allows service through the Chinese government, a slow process. In order to begin the action within the limitation period, the plaintiff sought and was granted an order for substituted service to the defendants' last known address.

JURISDICTIONAL ISSUES

Assoc. canadienne contre l'impunité (A.C.C.I.) c. Anvil Mining Ltd., 2012 QCCA 117: Certification of proposed class action alleging mining company's responsibility for abuse by Congolese army denied based on lack of jurisdiction.

Duzan v GSK, 2011 SKQB 118: Saskatchewan Paxil action was struck for vexatious conduct. The plaintiffs were prepared to consent to a stay on conditions. The Ontario action had already been discontinued, leaving actions in Saskatchewan and B.C. The B.C. Court had been told that the B.C. case would defer to Saskatchewan.

SETTLEMENT VARIATION

Bodnar v. The Cash Store, 2011 BCCA 384: The Court held that it did have jurisdiction under the terms of this settlement agreement to appoint a new claims administrator in place of defendant where there were errors in settlement proceeding.

Boys and Girls Club of London Foundation v. Molson Coors Brewing Co., 2010 QCCS 6306: The court held that under Art. 46 of the CCP, the court did have the power to extend the deadline for filing claims. The Court agreed to do so here, noting that the individuals who had filed on time would still receive fair compensation even if the pro rata distribution was watered down somewhat.

Gray v. Great West Lifeco, 2011 MBQB 13: The Court found that it did not have jurisdiction to extend a claims deadline established in a fixed fund settlement.

Gregg v. Freightliner Ltd.,2012 BCSC 415: The Court allowed individuals to opt into a fixed fund settlement, stating: " ...the jurisprudence does not appear to endorse an absolute bar on adding individuals who have not been notified of a class action before the stipulated deadline has passed or extending the time to opt-in after a settlement agreement has been reached. There is case authority that supports the extension of a registration deadline even after a settlement of the case has been attained in appropriate circumstances. The court is cloaked with a broad discretion and is expected to use it to advance the goals and purposes of the Act: ( see generally, Harrington v. Dow Corning Corporation, 2001 BCSC 221; Guglietti v. Toronto Area Transit Operating Authority, [2000] O.J. No. 2144; Boys and Girls Club of London Foundation v. Molson Coors Brewing Company et al, [2010] Q.J. No. 14108...There was no evidence that had the complainants opted-in to the class, the Settlement Amount would have been any different. That is because the Settlement Amount was not calculated by tabulating the individual damages of the participating class members....The settlement in this case is distinguishable from a settlement in the kind of class proceeding where the quantum of the settlement is directly tied to the actual or projected number of participating class members and their individual damages...Even if the claims of the complainants were paid in full, the sum of approximately $558,000 would be left to be distributed to existing class members over and above their initial payments. There would be no need to claw back funds previously distributed...[79] In my view, the threshold that must be satisfied in order to be considered for inclusion within the Distribution Group is that notice was not mailed to the members proper address. "

THIRD PARTY FINANCING

Fehr v. Sun Life Assurance Company of Canada, 2012 ONSC 2715: The Court dismissed the plaintiff insureds' motion to have the third party financing hearing be heard without notice to the defendant insurer, to close the hearing of the motion to the public, and to seal the motion documents. The writer was counsel for proposed third party financer.

The Court noted that the defendant was "affected" by the motion for third party financing and was therefore entitled to participate in the process. Moreover, as a policy matter, the defendant's participation (including opposition or support for the third party financing agreement) would be useful, as it could raise important issues for the court to consider. The Court also opined that, in the context of a class proceeding, the terms of class counsel's retainer agreement and any associated third party funding agreement were not privileged. And in any event, if the retainer agreement and any associated third party funding agreement were privileged, then that privilege was waived when the plaintiff applied for approval of a fee arrangement that involved a contingency fee or third party funding agreement. Given these realities, the importance of protecting solicitor-client privilege did not justify a hearing without notice and the sealing of relevant documents.

The Court also held that allowing the third party financing motion to proceed in open court did not pose a serious risk to the proper administration of justice or another matter of public interest such as the protection of solicitor-client privilege. Nor was there a serious risk to access to justice. And in any event, there were reasonable means to prevent any serious risk to the administration or justice. Finally, an order restricting or qualifying the open court principle would not outweigh the deleterious effects on the rights and interests of the parties and the public. Therefore, the test for restricting the open court principle had not been satisfied.

Although it dismissed the plaintiff's motion, the Court concluded its remarks by recognizing that funding motions were new and intricate phenomena that required particular attention:

"It does not follow, however, that a funding motion should be treated in the same way as other motions. The defendant is affected, and although the defendant should be allowed to protect its own proper interests, there are aspects of a funding application that should be none of the defendant's business. For instance, while the defendant may have an interest in ensuring that an adverse costs award will actually be paid to it, it is no business of the defendant to inquire into how the Plaintiffs would propose to use the funding for the purposes of the litigation. In this regard, it may be noted that a defendant may apply to the Class Proceedings Committee for the payment of the costs award but the Defendant does not have a right to appear before the Committee and oppose the conferral of funding.

It will take some experience before the parameters of opposition to a motion for approval can be articulated, but because the defendant's interest is not open-ended, the normal rules about motions may need to be adjusted. In class proceedings, the court has the authority to make these adjustments pursuant to s. 12 of the Class Proceedings Act, 1992, which, as noted above, grants the court a discretion to make orders respecting the conduct of a class proceeding to ensure its fair and expeditious determination."

Smith v. Sino-Forest, 2012 ONSC 2937: Third party financing in securities class action against Sino-Forest granted. As with previously approved third party financing agreements, the third party financer will receive a commission of 7% of the amount of settlement or judgment, after deduction of lawyers' fees and disbursements and any administration expenses, capped at a maximum of $10 million.

CLASS PROCEEDINGS FUND

The 2010 Annual Report of Ontario's CPF is now available for review. See:

http://www.lawfoundation.on.ca/pdf/annual_reports/LFOAR2010_Book3.pdf

Of note:

1. The Committee approved 7 of 9 applications in 2010. 2. The Fund had $10 million.

COSTS

Smith v. Inco, 2012 ONSC 5094: A successful defendant's post-trial $5.3M request got knocked down to $1.7M, just over their actual disbursements of $1.5M.

Arenson v. Toronto (City), 2012 ONSC 4488: The Court awarded $70,537.79 (all inclusive) in costs to the defendant after an unsuccessful certification motion by the plaintiff. Perell J. rejected the plaintiff's proposition that the proposed class action involved a matter of public interest, noting: " I do not doubt that [the plaintiff's] proposed class action interested the public and I appreciate that it attracted some media attention. However, that a case is interesting to the public does not mean that it is public interest litigation in the requisite sense that would justify a departure from the normal rule that the successful party is entitled to costs on a partial indemnity basis."

Cannon v. Funds for Canada Foundation, 2012 ONSC 2009: The Court awarded costs of $325,000 for the successful certification motion, plus additional sums for summary judgment motions, motion for documentary production, motion to strike affidavits, disbursements and costs submissions.

Cavanaugh v. Grenville Christian College, 2012 ONSC 4786: Following an unsuccessful certification hearing, the Court awarded $150,000 in costs in favor of the defendant operators of Grenville Christian College - a junior school and a residential high school. The Court also awarded $150,000 to the Diocese of Ontario and Grenville Christian College. In doing so, the Court rejected the plaintiff's contention that this was the sort of case where no award of costs was warranted because the case was a matter of public interest: "The claim against the Grenville Defendants was a claim against a singular independent private educational institution that allegedly had adopted a perverse and reprehensible approach to education and to the treatment of students. The Plaintiffs were not litigating because they wished to advance the cause of students at residential schools; they were litigating because they wished to receive compensation for the harm they and their fellow students suffered at a particular private school operated by the Grenville Defendants. There was no viable claim against the Diocese. The public would be interested in these circumstances, and the public should always be interested in seeing that justice is done, but the case at bar was not in the public interest in the same way that the cases involving claims against the Government of Canada and the religious organizations that operated schools where our native peoples were systematically abused were in the public interest."

Martin v. AstraZeneca Pharmaceuticals PLC, 2012 ONSC 4666: A "Meaningful costs award" to successful defendant was determined to be $475,000 plus disbursements of $180,407.53. The Court stated:

AstraZeneca is entitled to a generous costs award. However, the award requested ($1.2 million) is well beyond any other costs award following a certification motion. A costs award of this size or even close to what is requested would definitely have a chilling effect on class actions. To date, the high water mark for costs on a certification motion has been reflected in a group of cases:

* Lambert - $650,000 plus disbursements

* Fresco - $525,000, inclusive of fees, disbursements and GST - Reversed on appeal on other grounds - 2012 ONCA 444 (CanLII), 2012 ONCA 444

* Toronto Community Housing - $400,000 plus disbursements of $34,673.56 and applicable tax.

I have considered the comparison between this case and Toronto Community Housing. I am the case management judge and heard the certification motion in both proceedings. Toronto Community Housing Corp. was a six day certification motion. It was a costly and lengthy certification motion. The plaintiffs had incurred substantial indemnity costs of $792,388.14. I awarded costs at the high end of the range, $400,000. In comparison, the AstraZeneca certification motion was somewhat more complicated as it involved numerous experts. Further, the way that plaintiffs' counsel approached this certification motion significantly increased the amount of work for AstraZeneca (I refer to paras. 49-56 above). Costs awards in favour of successful defendants vary. In Fresco, the costs award was high - $525,000. Other costs awards in favour of a successful defendant have tended to be lower... Based on my experience as a class action case management judge, the circumstances of this case warrant a meaningful costs award. I appreciate that the award must not be so large that it impedes access to justice. However, there must be a balance between this and holding the losing party accountable. The costs award that I am allowing strikes a fair balance.

Seed v. Ontario, 2012 ONSC 4588: Following successful certification motion, the Court awarded the plaintiff costs of $107,466 and disbursements of $4,128.26. The Court rejected the plaintiff's request that costs be awarded on a full indemnity or substantial indemnity basis.

ARBITRATION

Comtois v. Telus Mobilité (Société Telus Communications), 2012 QCCA 170: The Quebec Court of Appeal excluded corporations from class definition since they were not protected by new consumer statute protecting against the use of such clauses, and there was no other reason not to enforce the clause.

AMENDMENTS

Cecile v. Retrofoam of Canada Inc., 2011 ONSC 5332: The Court allowed the plaintiff to amend to reference National Research Council even through NRC was previously released from the litigation. No allegations of liability were being advanced, just material of liability by the remaining. Two small elements that crossed that line were excised. Writer is counsel for one of the defendants in that matter.

Dugal v. Manulife Financial Corp., 2011 ONSC 387: The plaintiff was granted leave to amend Statement of Claim in certified class proceeding. The plaintiff was required to give further particulars of the alleged misrepresentations.

Givogue v. Burke, 2011 ONSC 655: The Court allowed certain amendments but imposed costs given the inordinate delay in making the application. The Court declined to lift the implied undertaking as it related to information obtained by the plaintiffs from OFSI.

Turner v. York University, 2011 ONSC 6151: In this action arising from the York University strike, the plaintiffs applied to amend Statement of Claim after the decision refusing certification issued, but before their Divisional Court appeal. The Court refused the motion stating "First, it is plain and obvious that the proposed amended amended statement of claim will not succeed. Second, the flaws in the pleading that Cullity J. identified remain and for this reason the plaintiff seeks to reargue that which has been decided. Res judicata is a bar to this motion." The court held that the amendments still did not meet the high standard required to bring a tort claim against a university in Gauthier v. Saint-German.

THE ORDER OF MOTIONS: CHICKEN AND EGG ISSUES

Watson v. Bank of America, 2012 BCSC 146: Application for leave to bring motion to strike notice of civil claim before the plaintiff's application to certify the proceeding as a class action was dismissed. The writer was co-counsel for the plaintiff. Applying the factors set out by Justice Strathy in Cannon v. Funds for Canada Foundation, 2010 ONSC 146, the Court held that while the application, if successful could substantially narrow the issues before the court, it would not prevent the plaintiff from advancing the litigation altogether. There was also a strong possibility of delays and costs associated with this motion, given the likelihood of appeal by the unsuccessful party. Further, much if not all of the argument on the strike motion would duplicate the "cause of action" argument at the certification hearing. There was a strong argument, based on encouraging judicial efficiency and cost containment, "to resist effectively bifurcating the certification process by hiving off judicial treatment of one of the certification considerations to a pre-certification application. Therefore, the Court concluded that scheduling the defendant's motion in advance of the certification would not promote the fair and efficient determination of the proceedings.

Sydney Steel Corp. v. MacQueen, 2012 NSCA 78: Attorney General of Nova Scotia denied a stay of proceedings while appealing the class action certification order. A stay would not allow for the "just, speedy and inexpensive determination" of the proceeding.

Labourers Pension Fund v. Sino Forest, 2012 ONSC 1924: The Court ordered defendants who filed affidavits on leave to also file defences. The Court ordered leave and certification to be heard together.

DISCOVERY ISSUES

Bartram (Litigation guardian of) v. Glaxosmithkline Inc., 2011 BCSC 1174: Prior to hearing of the plaintiff's application to certify the action as a class proceeding, defendant manufacturers and marketers of Paxil applied for access to the plaintiff's medical records. The Court held that the case was not one of the exceptions where pre-certification disclosure of medical records was necessary, and that introduction of individual medical records at such an early stage would be more likely to improperly confuse the issues on the certification application with a premature consideration of the merits of an individual claim. Application was dismissed.

Benoit c. Amira Enterprises inc., 2012 QCCS 351: The Court allowed 1 hour examination outside of court of Plaintiff on certification, but only in relation to those facts that were unclear or imprecise in the motion.

Brown v. CIBC, 2012 ONSC 482: The defendants were ordered to answer certain questions in misclassification class action.

Johnston v. Sheila Morrison Schools, 2011 ONSC 6843: The Court ordered class representatives to answer certain questions on discovery about their individual claims in this systemic abuse class action. The Court found that the questions were relevant to the common issues stating "It is true that the Plaintiffs asserted claims based on breach of systemic duty of care and systemic breach of fiduciary duty, but the breaches of duty involve relationships with individuals and those relationships cannot be examined as if only what the Defendants did is relevant to the duty and the question whether the duty was breached."

SETTLEMENT ADMINISTRATION

Rowlands v. Durham Region Health, 2012 ONSC 945: The litigation administrator's accounts in the amount of $64,455 were approved by the Court. Under the terms of the certification order, the litigation administrator's fees were to be paid by the defendants, and were subject to court approval. The litigation administrator had provided an estimate of $21,500. The defendant argued that the litigation administrator' accounts were excessive and were to be reduced. The Court disagreed. It applied legal principles applicable to passing accounts of court-appointed receivers by analogy. The Court found that the hourly rate of $175 was not excessive. Further, the time to make an objection to the hourly rate was at the certification hearing. Finally, there was no reason to reduce the litigation administrator's accounts since the work done was necessary, and the work was done and done well.

REPRESENTATIVE PLAINTIFFS

Iverson v. Canada (Fisheries and Oceans), 2011 BCSC 1619: Application to substitute representative plaintiff granted. In coming to its conclusion, the Court rejected the Crown's submissions regarding the suitability of the existing and proposed representative plaintiffs, noting that a preliminary motion was not the appropriate place to make a decision as to the suitability of a representative plaintiff. This was a decision that was to be made at the certification motion.

Pardhan v. Bank of Montreal, 2012 ONSC 4681: Certification motion was adjourned to give the plaintiff an opportunity to resolve the representative plaintiff's health issue or alternatively propose another representative plaintiff and produce an acceptable litigation plan. The plaintiff put forth a more detailed litigation plan and provided expert opinion that the representative plaintiff's health issues had been resolved. The Court accepted the litigation plan and new evidence, and certified the action as a class proceeding.

SOLICITOR CLIENT RELATIONSHIP

Attis et. al. v. Canada, 2011 ONCA 675: Justice Cullity's decision to order class counsel to personally indemnify representative plaintiffs for adverse costs awards on certification, totaling over $166,000.00, was overturned by the Ontario Court of Appeal. Since the plaintiffs were impecunious and could not satisfy the cost awards, the defendant, the Federal Crown, moved against class counsel personally, pursuant to Rules 15.02(4) (absence of authorization to commence action) and 57.07(1)(c) (liability of lawyers for costs). The grounds of the motion were that any consent the representative plaintiffs gave to commence the action was not informed consent, because class counsel failed to advise, or properly advise, them of their costs exposure. Justice Cullity effectively held a mini-trial on the issue of what advice was given to the plaintiffs and found that inadequate, or no, costs advice was provided by class counsel. His Honour therefore ordered that class counsel indemnify the plaintiffs for the costs awards made against them.

The Court of Appeal found that Rule 15 had no application, because regardless of the advice provided, the plaintiffs clearly authorized the commencement of the action. Rule 57.07(1)(c) could not be employed as class counsel's conduct in the action was found to be without reproach. The Court of Appeal held that any question about the appropriateness of advice given by the solicitor is a matter between the solicitor and his/her client. The issue was better dealt with in the Attis' negligence action against class counsel, which would have engaged all the usual pre-trial mechanisms and would have dealt with the issue in the appropriate forum.

Aside from being clear that class counsel must provide sufficient advice to representative plaintiffs regarding costs exposure, the Court of Appeal confirmed that class actions are no different than regular actions in that "a defendant has no right to inquire into the legal advice given to the plaintiff by the plaintiff's lawyer". While defendants often inquire upon this issue in cross-examinations of representative plaintiffs, this case suggests that such information in not only irrelevant for certification but an improper avenue of questioning at any step in any action.

DISCONTINUANCES

Cavanaugh v. Grenville Christian College, 2012 ONSC 2398: Motion to discontinue action as against two defendants granted.

Fortin c. Procter & Gamble inc., 2011 QCCS 4804: The Court allowed discontinuance of class action.

Duong v. Stork Craft Manufacturing Inc., 2011 ONSC 5618: Leave to appeal of decision refusing to allow discontinuance of Ontario action was denied. The Court held that there was a basis to be concerned about effect of discontinuance on rights of Ontario class members.

Frank v. Farlie, Turner & Co., LLP, 2011 ONSC 7137: Application for leave to discontinue action against certain defendant without prejudice to right to seek order to add him as defendant should new evidence arise or should circumstances permit dismissed. The Court held: "In my opinion, the proffered justification for discontinuing the action is insufficient and because of the prospect that a future claim against Mr. Giordanella would be statute-barred, the discontinuance of the action as against Mr. Giordanella, who is at least a proper party to this litigation, is prejudicial to the Class Members."

Sonego v. laboratories Expanscience, 2011 QCCS 13, Albilia v. Kimberley Clark inc., 2011 QCCS 20: The Court allowed discontinuance of proposed class actions given that Health Canada had come out stating that the products did not pose a health problem.

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