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Jan062013

January 6, 2013

I hope you all had a wonderful holiday season. Now get the heck back to work! (This goes for my associates in particular.)

You will note that we now have embedded links for all available cases. Also, a reminder that if you want more up-to-date reporting on key developments, you can follow us on Twitter at http://twitter.com/wbranch99

SEMINARS

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

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

CERTIFICATION

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

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

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

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

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

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

COMMUNICATION WITH CLASS MEMBERS

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

SETTLEMENT

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

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

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

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

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

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

COMMON ISSUES TRIAL

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

APPEALS

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

CARRIAGE

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

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

NATIONAL CLASS ISSUES

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

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

COSTS

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

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

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

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

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

BANKRUPTCY AND INSOLVENCY

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

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

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

MOTIONS TO STRIKE/DISMISS/SUMMARY JUDGMENT

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

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

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

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

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

EVIDENCE AND DISCOVERY

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

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

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

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

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

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

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

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

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

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

MISCELANEOUS MOTIONS

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

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

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

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

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

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

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