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Mar152013

March 15, 2013

One more posting before I head off for 2 weeks in Maui. I will miss you all horribly!

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.