May 10, 2013

For reasons that will become obvious after reviewing the first reported case, I am pleased to provide you with the latest report on class action developments over the past month. Settlements Manuge v. Canada, 2013 FC 341<>: After more than 6 years of hard-fought litigation, the settlement of the Canadian Veterans' SISIP LTD benefits class action was approved by the Federal Court. The value of the financial settlement is estimated at more than $887 million, which includes the net present value of additional monies payable in the future to disabled class members. The financial effect of the settlement is also extended by the federal government through the removal of similar offsets of Pension Act benefits from a number of other federal financial support programs. The central component of the proposed settlement is the full recovery by approximately 7,500 class members of all amounts unlawfully deducted from their SISIP LTD income. The agreed retroactive recovery of benefits dates back to June 1, 1976, the date the Pension Act offset began. In addition, the parties were able to negotiate reasonable rates for pre and post-judgment interest totaling $80 million at the time the settlement was negotiated. Tax mitigation provisions were also put in place to minimize the income tax burden associated with the payment of the benefits to class members. A $10 million bursary fund was also established for the class members and their families. Finally, the parties negotiated a streamlined process for administering the payment of the refunds and for resolving future claim disagreements. In approving the settlement agreement, the Court noted: "I have no hesitation in approving the proposed settlement of this action. It is a generous, complete and thoughtful resolution of the issues that were raised in the litigation and it will provide substantial financial assistance to thousands of disabled CF veterans and their families. The terms of settlement are also the product of extensive negotiations between the parties. It would not serve the interests of the vast majority of class members - many of who are suffering financially - to send the parties back into further discussions to address the concerns of a handful of those who oppose the arrangement. It is also a settlement that is supported by the vast majority of class members who took the opportunity to make their views known to the Court. In short, it represents a fair and reasonable compromise that is in the best interests of the class as a whole and it is, accordingly, approved. I would be remiss if I failed to recognize legal counsel, Mr. Manuge and the Government of Canada for the generosity of spirit and compromise that so obviously motivated their negotiations and which led to the resolution of the long-standing grievance that was at the heart of this case. Without the tenacity of Mr. Manuge, the essential goodwill of the parties and the hard work of all legal counsel involved, this settlement would not have been possible." With respect to legal fees, class counsel requested fees representing 7.5% of the gross value of the settlement. This was a reduction from the 30% contingency fee agreement between counsel and the plaintiff. After a detailed review of the relevant factors, the court concluded as follows: "Having regard to all of the considerations outlined above, I will approve legal fees in an amount equal to 8% of the retroactive refunds payable to class beneficiaries (including the cancellation of debts owing by class members to Manulife Financial). This figure is approximately 4% of the total value of the settlement [or approximately $35 million]. In addition I will approve the deduction of an amount equal to 0.079% of refunds payable to class beneficiaries (including the cancellation of debts by class members to Manulife Financial) as an indemnity for out-of-pocket expenses... I am satisfied that the above recovery of legal costs is in keeping with the fees approved in the comparable cases. More importantly it represents a sufficient incentive to counsel to take on high-risk class litigation without, at the same time, unduly impacting on the much-needed recoveries of disabled CF veterans.." Finally, the court awarded an honorarium of $50,000 to Mr. Manuge, the representative plaintiff who has been the voice of the class throughout the litigation. This is the highest approved award to a rep plaintiff in Canadian history. The writer had the privilege of acting as class counsel along with the lead firm McInnes Cooper's Peter Driscoll and Dan Wallace. Dominguez v. Northland Properties Corporation, 2013 BCSC 468<>: Settlement approved in foreign worker class action. The settlement consisted of a process to determine underpayments, overtime and unpaid airfare, a $300,000 settlement fund for the purpose of paying agency fee claims, and a $40,000 charitable donation. Honorarium of $2,500 to the representative plaintiff and class counsel fees of $425,000 were also approved. The writer was co-counsel for the defendant. Labourers' Pension Fund of Central and Eastern Canada v. Sino-Forest Corporation, 2013 ONSC 1078<>: The Ad Hoc Committee of purchasers of Sino-Forest's securities, including the representative plaintiffs in the class action, brought a motion for approval of a proposed $117 million settlement and release of claims against E&Y. Certain institutional investors (the "objectors"), who held approximately 1.6% of the company's share and constituted approximately 0.24% of the company's beneficial shareholders, opposed the no-opt-out and full third party release features of the settlement. They also opposed the motion for a representation order sought by the plaintiffs, and moved instead for the appointment of the objectors to represent the interests of all objectors to the settlement. The court accepted that the E&Y release was appropriate in the context of the settlement and that it was fair and reasonable based on the "nexus test" established in ATB Financial v. Metcalf and Mansfield Alternative Investments II Corp., 2008 ONCA 587<>. It also accepted that the settlement itself was fair and reasonable, provided substantial benefits to relevant stakeholders, and was consistent with the spirit of the CCAA. The court specifically rejected the objectors' arguments questioning the validity of the settlement and release and favoring the provisions of the Class Proceedings Act, 1992 over the CCAA process: "The relevant consideration is whether a proposed settlement and third-party release sufficiently benefits all stakeholders to justify court approval. I reject the position that the $117 million settlement payment is not essential, or even related, to the restructuring; it represents, at this point in time, the only real monetary consideration available to stakeholders. The potential to vary the Ernst & Young Settlement and Ernst & Young Release to accommodate opt-outs is futile, as the court is being asked to approve the Ernst & Young Settlement and Ernst & Young Release as proposed. I do not accept that the class action settlement should be approved solely under the CPA. The reality facing the parties is that SFC is insolvent; it is under CCAA protection, and stakeholder claims are to be considered in the context of the CCAA regime. The Objectors' claim against Ernst & Young cannot be considered in isolation from the CCAA proceedings. The claims against Ernst & Young are interrelated with claims as against SFC, as is made clear in the Equity Claims Decision and Claims Procedure Order. Even if one assumes that the opt-out argument of the Objectors can be sustained, and opt-out rights fully provided, to what does that lead? The Objectors are left with a claim against Ernst & Young, which it then has to put forward in the CCAA proceedings. Without taking into account any argument that the claim against Ernst & Young may be affected by the claims bar date, the claim is still capable of being addressed under the Claims Procedure Order. In this way, it is again subject to the CCAA fairness and reasonable test as set out in ATB Financial, supra. Moreover, CCAA proceedings take into account a class of creditors or stakeholders who possess the same legal interests. In this respect, the Objectors have the same legal interests as the Ontario Plaintiffs. Ultimately, this requires consideration of the totality of the class. In this case, it is clear that the parties supporting the Ernst & Young Settlement are vastly superior to the Objectors, both in number and dollar value. Although the right to opt-out of a class action is a fundamental element of procedural fairness in the Ontario class action regime, this argument cannot be taken in isolation. It must be considered in the context of the CCAA. The Objectors are, in fact, part of the group that will benefit from the Ernst & Young Settlement as they specifically seek to reserve their rights to "opt-in" and share in the spoils." Finally, the court rejected the objectors' proposition that they had the right to conditionally opt-out of the settlement. There was no basis for this proposition under the legislation or in the jurisprudence. In the result, the court granted the motion and approved the E&Y settlement and release. Kidd v. The Canada Life Assurance Company, 2013 ONSC 1868<>: A settlement in this pension surplus class action had been approved earlier by the court. In structuring the settlement, counsel had made certain assumptions and predictions about interest rates and the proportion of class members who would choose to take pension benefit annuities as opposed to the accumulated value of their pension benefits. As the parties set about to implement the approved settlement agreement, they discovered that, due to the decline in interest rates and the high proportion of class members who chose pension benefit annuities over cashing out their benefits, the funds available for distribution to one of the sub-classes (known as the integration class) were significantly less than anticipated and were diminishing dramatically and quickly. The parties therefore negotiated an amended settlement and moved for approval of the amended settlement. Unfortunately, by that time the approved settlement and the amended settlement simply presented two poor alternatives. Before the court, counsel essentially argued that under the original settlement, the integration class would receive a terribly disappointing monetary award, but under the amended settlement, they would receive a terribly disappointing monetary award with a shot at a second distribution of surplus recalculated once interest rates rebounded. They argued that this shot at a second distribution made the amended settlement fair, reasonable and in the best interests of the class members. A large number of integration class members filed a petition with the court opposing the amended settlement. After a detailed and reasoned analysis of the two "unpleasant and distressing alternatives", the Court concluded as follows: "The double bind for the court, however, is that approving the unfair Amended Settlement is monetarily better than the alternative of not approving the Amended Settlement. Approving the unfair Amended Settlement also avoids renewed litigation and the collateral damage to the current employees of Canada Life and the Pelican, Indago, and Adason Groups, who are indifferent to the unfair Amended Settlement and who just want to have this litigation at an end and certainly not resumed. The court cannot make a fair settlement for the parties, and for the reasons that follow, my conclusion is that the Amended Settlement is not fair. The disappointment and anger of the objectors and the reasons for their objection are reasonable, and, I agree with them that the Amended Settlement is unfair. In my opinion, the Amended Settlement is all of substantively, procedurally, circumstantially, and institutionally unfair. Therefore, I shall not approve it. Approving an unfair settlement would be contrary to both the letter and the spirit of the Class Proceedings Act, 1992. It also would be inconsistent with the court's responsibilities when asked to review a settlement under the Act. I cannot in judicial good conscience put the court's endorsement to the Amended Settlement. Accordingly, I dismiss the motion." Deloitte & Touche Inc. v. Felderhof, 2013 ONSC 1438<>: Motion by the plaintiffs for an order dividing the approximate $5.2 million being held by the trustee in bankruptcy for Bre-X among the class members of the Canadian and US class actions. The $5.2 million came from a fund from a partial settlement of the class action made with one of the other defendants in the class action. Counsel for the plaintiffs in the Canadian action entered into negotiations with counsel for the plaintiffs in the US action with respect to the division of these funds. They ultimately reached an agreement, subject to approval by the Canadian and US courts, to pay the US class 33% of the settlement proceeds. The Canadian class would be paid 67%. The US court approved the proposed division of funds. Before the Canadian court, counsel for the Canadian plaintiffs argued that he was mistaken in agreeing to the 67:33 % split and that the allocation ought to have been 80:20 % because the agreement reached with the settling defendant was founded on the assumption that the losses were 80% by the Canadian class and 20% by the US class. This assumption was based on information about the total shares in the possession of shareholders in Canada and the US respectively. Counsel for the Canadian plaintiffs submitted that he forgot about this information when he agreed to the 67:33 % split. The court rejected the Canadian plaintiff's counsel's argument, noting that in the absence of a comprehensive damages study, it could not be said that the allocation of trading losses between Canadian and American class members would be the same ratio as the number of shares held by Canadian class members was to the number of shares held by American class members. Further, there was no evidence to support the idea that class counsel made a mistake in coming to the agreement. The court concluded that a 67:30 % split seemed reasonable and fair, and there was no reason to part from the US court's conclusion to approve that allocation. Accordingly, order was granted approving the allocation of the fund at a 67:33 % ratio. Pro-Sys Consultants Ltd. v. Infineon Technologies AG, 2013 BCSC 316<>: Settlement with four defendants totaling $23.3 million approved in DRAM class action. Class counsel sought interim legal fees of $7 million and disbursement of $134,000. The key problem with the fee request was that there was no present plan for distribution of the funds to class members. The court queried why class counsel should be entitled to collect their fees and disbursement out of the settlement amount in the absence of a plan for distribution to class member. It also noted that the class comprised of disparate interests. There was likely a need to obtain separate counsel to represent the various interests of the class. It was also possible that an expert would be required to assist in determining how the funds were to be allocated to various class members. This exercise was time-consuming and costly. Ultimately, the court concluded that the lack of a distribution to class members at this time impacted the issue of an interim legal fee. Since there was an "alignment of interest" between class counsel and the class members, the court adopted the same approach as Justice Perell in the Ontario Action, Eidoo v. Infineon Technologies AG, 2013 ONSC 853<>, which set as fair and reasonable a 20% interim fee of $4.18 million inclusive of taxes plus disbursements. Option Consommateurs c. Infineon Technologies, a.g., 2013 QCCS 1191<>: Settlement with four defendants approved in the Quebec DRAM class action. As per similar decisions made in the Ontario and British Columbia settlements, the court awarded interim class counsel fees calculated at 20% of the settlement amounts recovered pending the ultimate distribution of the settlement funds. The court noted that lawyers must show solidarity with the members they represent. It would not be fair and reasonable to allow full payment of counsel fees (which were claimed at 30% of the total settlement) while class members received nothing and could be waiting for a long time before they did receive anything. Johnston v. The Shelia Morrison Schools, 2013 ONSC 1528<>: The Court approved the $4 million settlement of the action, counsel fees of $1 million, and honorarium of $5,000 for each plaintiff. Morin c. Bell Canada, 2013 QCCS 587: <> The court ordered publication of notice and settlement agreement in class action concerning deactivation fees and early termination fees. It also ordered publication of the settlement agreement and fixed a date for the settlement approval hearing. Fontaine v Canada (Attorney General), 2013 SKCA 22<>: As most of you know, the administration of the Indian Residential Schools litigation continues to proceed across Canada. In order to monitor the counsel fees associated with the administration of the settlement in Saskatchewan, a Verification Agreement was entered into between Canada and Merchant Law Group ("MLG") respecting verification of MLG's fees and disbursements. A dispute arose with respect to approximately $20 million in legal fees, disbursements and interest which MLG was claiming and which Canada sought verification of. On December 11, 2012, the administrative judge appointed under the Court Administration Protocol granted an order requiring MLG to arrange for the re-creation of certain redacted electronic billing records from the live data in MLG's billing program. MLG sought leave to appeal the administrative judge's decision. The Court of Appeal denied leave to appeal. It noted that the order appealed from was simply a discretionary order designed to move the verification process along and ensure the process met its overall objective of determining if the amount of MLG's fees were reasonable and equitable. This was precisely what the administrative judge was required to do. The administrative judge made no errors, and there were no issues of importance requiring the attention of the Court of Appeal. This was simply not a matter of sufficient importance to the proceedings before the Court, or to the field of practice or the state of law, or to the administration of justice generally to warrant a determination by the court. An appeal would merely delay and add to the costs of the proceedings. Leave was hence denied. Lavoie c. Régie de l'assurance maladie du Québec, 2013 QCCS 866<>: Motion for authorization to institute a class action granted for settlement purposes. Counsel fees of $350,000 approved.

Certification Bourdages c. DaimlerChrysler Canada inc., 2013 QCCS 743<>; Thibert c. Hyundai Motor America, 2013 QCCS 744<>; Bourgeois c. Ford du Canada ltée, 2013 QCCS 745<>; Corbin c. Ventes de véhicules Mitsubishi du Canada inc., 2013 QCCS 746<>; Dion c. Suzuki Canada inc., 2013 QCCS 747<>; Pilon c. Mazda Canada inc., 2013 QCCS 748<>: 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<>: 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<>: 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<>: 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<>: 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<>, 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<>: 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<>: 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<>: 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<>: 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<>: 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<>: 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<>: 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<>: 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<>: 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<>: 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<>: 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<>: 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<>: 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<>: 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<>: 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<>: 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<>: 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<>: 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.)<>. 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<>: 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<>: 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<>: 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<>: 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<>: Motion for production of documents granted in part. Motion to Strike/Dismiss Gauthier c. United Parcel Service of Canada Ltd., 2013 QCCS 1212<>: 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<>: 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<>: 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<>: 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<>: 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<>: 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<>: 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<>: 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.