July 2009
TWEET?
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WESTERN CANADIAN CLASS ACTION CONFERENCE
Sign up now for the Western Canadian Class Action Conference to be held in Vancouver on Friday, November 20, 2009. We have a all-star lineup of fine upstanding counsel... and Kirk Baert. As an added enticement, we'll be hosting cocktails with the Bruneau Group at our offices on Thursday night. We would be pleased to see any of our colleagues from across the country for this comprehensive program. See:
http://www.cle.bc.ca/OnlineStore/productdetails.aspx?id=1026909
COSTS
Waters v. Daimlerchrysler Financial Services, Canada Inc., 2009 SKQB 263: Court asked to consider whether plaintiffs' counsel Merchant Law Group should pay costs personally with respect to required adjournment of an application for certification. The issue arose as a result of amended pleadings filed in the midst of the application which raised new causes of action, and plead that Quebec law applied. The court awarded costs stating: "Here, plaintiffs' counsel's conduct was more than discourteous to defendants' counsel. Plaintiffs' conduct was also more than just disrespectful to opposing counsel, and to the court and its processes. Plaintiffs' counsel's conduct meets the test for awarding costs against a solicitor personally..." Costs of $2500 plus defence counsel's travel costs were awarded.
Malhab c. Métromedia CMR Montréal inc., 2009 QCCA 1280: Costs on successful appeal considered. The court disallowed a claim for class notice expenses, stating that such costs were properly part of the underlying claim.
Dean v. Mister Transmission (Intl.) Ltd., 2009 OJ 2550 (S.C.): Application for security for costs dismissed. In applying Rule 56.01, although the plaintiff could not pay the costs of the defendants, the action was not frivolous or vexatious. Under the broader range of considerations that could be considered under s.12 of the Class Proceedings Act, the court still did not find any circumstances that required a different conclusion.
Sander Holdings Ltd. v. Canada (Minister of Agriculture), 2009 FCA 199: $33g in costs awarded against failed class plaintiffs.
AMENDING PLEADINGS
In the syringe re-use class action Medvid v. Saskatchewan, 2009 SKQB 222, the court held that the Plaintiff represented by Merchant Law Group could not amend its pleadings as of right when there was a jurisdictional motion pending. The writer was counsel for the Province of Alberta.
Frey v. Bell Mobility Inc., 2009 SKQB 165: Plaintiff represented by Merchant Law Group applied to (1) add certain defendants, and (2) expand the action to a national opt out action in this certified class action. The court declined to add the defendants. The court also declined to modify the class to an opt out structure, on the basis that the change to the Saskatchewan statute was substantive and not expressly retroactive. The court stated: "Under the initial situation, a person could participate as a plaintiff only if that person positively expressed a desire to do so. Now that person is automatically included by reason of a unilateral action by the court. No longer does the person have to actively submit to the jurisdiction of the court. Rather, the person is deemed to submit unless a contrary intention is expressed. As I see it, the result is an increase in the court's jurisdiction and that is substantive in nature."
MOTIONS TO STRIKE
Nette v. Stiles, 2009 ABQB 422: In chiropractic class action, the claim against the provincial government was struck prior to certification. The writer is counsel for the co-defendant Alberta College and Association of Chiropractors.
Johnson v. British Columbia (Workers' Compensation Board, 2009 BCSC 877: Defendant asked the court to strike certified judicial review class proceeding on basis that the argument sought to be raised had not yet been advanced through the internal WCB appeal procedures. The court found that the interest of justice required that the class be allowed to make the argument at this time, given the prejudice that would otherwise accrue and the fact that the argument did not require further evidence.
Ramias v. Johnson, 2009 ABQB 386: Financial institution used by ponzi scheme artist applied to strike claim against it. Certain aspects of claim struck, but others survived. An application to add additional defendants was denied outright in light of the heavier legal burden and evidentiary requirements facing the plaintiff on such an application.
Billette c. Toyota Canada inc., 2009 QCCS 2524: Motion to strike or decertify a certified financing charge class action refused.
Desgagné c. Québec (Ministre de l'Éducation, du Loisir et du Sport), 2009 QCCS 2476: Motion to decertify dyslexia class action refused.
Kavanaght v. Montreal, 2009 QCCS 2148: Motion to decline jurisdiction for part of the class in a certified class action alleging illegal arrests denied. The defendant alleged that those that did not contest their arrests were bound by the earlier decisions finding them guilty. The court held that even this group could have a claim, and refused to amend the certification. The court also granted an extension of the time for the Plaintiff to deliver an expert report.
Best (Guardian ad litem) v. Nunatsiavut Assembly, 2009 NLTD 70: Application to strike granted. Class sought benefits allegedly denied due to wrongful refusal to admit plaintiffs into the Labrador Inuit Association. The court allowed the motion to strike to proceed first stating "Jurisdiction to hear a matter is surely sine qua non to the Court entering into any adjudicative function regarding a claim brought before it. I reject the notion that to hear an application challenging the jurisdiction of the Court to adjudicate a plaintiff's claim constitutes litigation by installment. Indeed, a defendant would be seriously remiss to fail to take such an application in the proper cir-cumstances." On the merits of the motion, the court noted that the land claims agreement provided for Federal Court judicial review of any membership decisions.
Syndicat général des professeures et professeurs de l'Université de Montréal c. Gourdeau, 2009 QCCS 1990: Motion to strike certified class action dismissed.
Hurst v. PriceWaterhouseCoopers (PWC) LLP, Canada, [2009] O.J. No. 1415 (S.C.): Proposed class action dismissed on the basis of a lack of a duty of care.
CHICKEN AND EGG DISPUTES
Medvid v. Saskatchewan (Minister of Health), 2009 SKQB 198: Court ordered that defendant's jurisdictional motion could proceed in advance of certification. The writer was counsel for Province of Alberta. The court stated: "This motion may resolve or dispose of the case against Alberta and may narrow the issues remaining at certification. If not allowed to proceed, the defendant Alberta may suffer additional costs for having to wait until certification to have the issue determined. Further, there is no motion for certification before the court; the only motion is the defendant Alberta's application to strike, based on a jurisdictional challenge."
Fournier c. Banque Scotia, 2009 QCCS 725: Court approved examinations of plaintiffs at certification hearing, but limited to certain issues.
Morrison Estate v. Nova Scotia (Attorney General), 2009 NSSC 198: The defendants sought particulars from the plaintiffs prior to the certification hearing. The court declined to make such an order stating that unless an application would dispose of the proceeding, party or parties, or an issue or issues, it is more appropriately made following a determination whether certification is granted.
Wakelam v. Johnson & Johnson, 2009 BCSC 839: Application for particulars dismissed. The court stated:
"Specifically, the defendants have elected to wait until after the certification hearing to file their statements of defence. Therefore, they do not require the information sought in order to plead, as is normally the case in applications for particulars. Furthermore, the plaintiff has filed an extensive evidentiary record in support of her motion for certification. All the information sought by the defendants can be found within that record. Particulars are therefore not required to assist the Court in determining the issues at the certification hearing." The court both distinguished and questioned the earlier B.C. decision in Hoy v. Medtronic requiring particulars prior to certification (at para.28).
In Dubé v. Nissan Canada Finance, division de Nissan Canada inc.,2008 QCCS 5696, the court allowed the defendants to examine the three representative plaintiffs in order to test their evidence to ensure adequate representation for class members.
Gay v. Regional Health Authority, 2009 NBQB 101: Motion by defendant to add an additional defendant adjourned until after certification.
Dorion v. Centre de santé et des services sociaux Richelieu--Yamaska (Hôpital Honoré Mercier), 2009 QCCS 3086: Prior to certification application in this hospital infection case, the Court allowed the defendant to (1) examine the proposed representative for 30 minutes on particular paragraphs of her affidavit, and (2) file additional material on the causation issue.
Martin c. Société Telus Communications, 2009 QCCS 3121: Defendant was allowed to present certain oral evidence on certification in order to clarify the services selected by the plaintiff, the evolution of the choices of services, and a brief review of the nature of text messaging.
Larose c. Banque Nationale du Canada, 2009 QCCS 2155: Loss of private information class action. Court allowed a limited cross-examination of the representative plaintiffs on the nature of the damages suffered.
APPEALS
Manuge v. Canada, 2009 SCCA 144: Leave granted in this case asking SCC to consider whether a judicial review application under the Federal Court Act must be brought before an action for damages. The writer is co-counsel for the class. This appeal will be proceeding in January 2010 collectively with 6 other cases raising the same issue.
Richard v. British Columbia, 2009 BCCA 185: Court confirmed that there was no liability for claims arising prior to the Crown Proceedings Act. The writer is co-counsel for Province of B.C., but was little more than a potted plant on this appeal successfully argued by Karen Horsman.
Withler v. Canada, [2009] S.C.C.A. No. 68: Leave to SCC granted of dismissal of age discrimination action on the merits. The writer is co-counsel for the class.
T.L. v. Alberta, 2009 ABCA 182: Appeal dismissed from decision granting certification of an action alleging that the Public Trustee and the Province failed to start proceedings for abused children in care. The writer is co-counsel for the Province of Alberta.
Fantl v. Transamerica Life Canada, 2009 ONCA 377: Appeal denied of decision allowing class representative to switch counsel. The court established the following test for a review of a representative's choice of counsel:
"Once the court's jurisdiction is engaged, any review by the court of a decision as to choice of counsel must be directed to three factors:
(1) Has the plaintiff chosen competent counsel?
(2) Were there any improper considerations underlying the choice made by the plain-tiff? and
(3) Is there prejudice to the class as a result of the choice?
Unless this inquiry reveals something unsatisfactory to the court, it ought not to interfere with the choice of counsel made by the plaintiff. The court is not a substitute decision maker for the plaintiff in the litigation. Accordingly, any intervention based on its supervisory jurisdiction must be limited to situations where there is cogent evidence that steps taken may have an adverse impact on the absent class members."
On the competency issue, the court stated:
"Where competence is a live issue, the court should consider under this head:
(1) The nature of the lawsuit;
(2) The complexity of the litigation;
(3) The fact that it was a class proceeding;
(4) The experience of counsel as to subject matter and class actions;
(5) The resources of counsel;
(6) The stage of the proceedings at which the review occurs; and
(7) Any other considerations the court might deem to be appropriate.
Moreover, when considering competence of counsel, the court must take into account the fact that, after certification, class counsel will be in a solicitor-client relationship with the class mem-bers, with all of the responsibilities that entails, extending until the implementation of a settlement or final disposition of any individual issues. In other words, given that the class may include a large number of people, this obligation may be significant and prolonged"
On the improper purpose test the court stated: "I would not accept that the fact of an acknowledged friendship between the plaintiff and his counsel of choice would constitute an improper purpose in and of itself. An improper purpose would be one where the plaintiff was seeking to gain a personal advantage, the hope of an advantage not shared by the class members or was motivated in some way that was inconsistent with the interests of the class" (at para.64)
On prejudice, the court stated: "It is argued that if representative plaintiffs are allowed to switch counsel at will, there will be less of an incentive for counsel to take on class actions and make an investment of time and effort that may be lost. There is no question that class proceedings are entrepreneurial in nature. However, the proposition advanced by the appellant would only be supportable if the creation of an entrepreneurial class action bar was a policy goal underpinning the CPA. This argument fails because as far as the CPA is concerned, the entrepreneurial lawyer is a means to an end, not an end in and of itself...The CPA does not, nor was it ever intended to, provide lawyers with a vested interest in the subject matter of the lawsuit entitling them to override the choices of the representative plaintiff in the litigation, including the choice of counsel. In any event, Mr. Kim's investment of time and effort in the action while at REKO will be pro-tected through the process of dissolving that firm."
The court found that original counsel's investment of time and effort while working at the dissolved firm would be protected through the process of dissolution of that firm.
Hicks v. Saskatchewan Crop Insurance Corp., [2009] S.C.C.A. No. 149: Leave dismissed of refusal to certify crop protection class action. Proposed hook for SCC was whether Sask's unique "apparently authentic or genuine" test was proper.
The Ontario Court of Appeal dismissed a series of proposed SARS class actions against the provincial government on a cause of action basis: See:
Williams v. Ontario, 2009 ONCA 378: http://www.canlii.org/en/on/onca/doc/2009/2009onca378/2009onca378.html See also:
http://www.canlii.org/en/on/onca/doc/2009/2009onca375/2009onca375.html
http://www.canlii.org/en/on/onca/doc/2009/2009onca376/2009onca376.html
http://www.canlii.org/en/on/onca/doc/2009/2009onca373/2009onca373.html
Dikranian c. Québec (Procureure générale), 2009 QCCA 1014: Appeal rejected of judgment managing claims stage of successful class action. The trial judgment is reported at 2009 QCCS 1534. The trial judgment rejected a series of requests designed to increase the take up rate, on the basis that it would disrupt the settlement implementation process, and that the steps taken to this point were reasonable.
Drady v. Canada [2008] S.C.C.A. No. 492, Attis v. Canada [2008] S.C.C.A. No. 491: Leave denied of decisions striking product approval class actions against federal government.
Nadon c. Montréal (Ville), [2009] S.C.C.A. No. 11: Leave denied of dismissal of pollen class action on its merits.
Soderstrom v. Hoffmann-La Roche Ltd., [2009] S.C.C.A. No. 71: Leave denied from dismissal of action that overlapped with a settled class action.
Alan McMillan et al. v. Canada Mortgage and Housing Corporation [2009] S.C.C.A. No. 49: Leave denied from dismissal of proposed leaky condo class action.
Vermette v. General Motors du Canada Ltée, [2008] S.C.C.A. No. 466: Leave denied of decision to refuse certification.
Arenson v. Toronto, 2009 SCCA 168: Leave denied of decision to give plaintiff right to deliver a fresh claim in a dismissed class action.
Sharbern Holding Inc. v. Vancouver Airport Centre Ltd., 2009 BCCA 224: Appeal of merits decision in favour of class allowed in investment class action.
Mignacca v. Merck Frosst Canada Ltd., 2009 ONCA 393: Court refused extension of time to file notice of motion for leave to appeal certification decision in Vioxx class action on basis that the proper appeal routes were either (1) a direct right of appeal to the Court of Appeal, or (2) to seek leave before the Divisional Court.
Coll v. Syndicat des cols bleus regroupés de Montréal, section locale 301 (SCFP), 2009 QCCA 708: Successful Illegal strike class action overturned on appeal. Court found there was no causal link between the alleged illegal strike and any interference to class members.
NATIONAL CLASS ISSUES
Association des journalistes indépendants du Québec (AJIQ-CSN) c. Cedrom-SNI inc., 2009 QCCS 2172: Electronic reproduction class action. Defendants applied for a stay based on the fact that there was already a certified Ontario action covering the same issues.
The court declined the motion noting that the proposed Quebec class was broader, including persons who had executed certain license agreements who were excluded in Ontario.
Quaere whether the Quebec court should have at least considered whether the case should have been stayed in relation to the overlapping class? Another opportunity to truly wrestle with overlapping class issues lost....
FEES
Hislop v. Canada, 2009 ONCA 354: Court found that lawyers could not apply a solicitor's lien over class member's recovery received as a result of declarations issued as a result of a certified class action, due to prohibition against a charge in the Canada Pension Plan Act. It is interesting that it was the government that was fighting the application of the charge, not class members themselves. It could be said that the government really had no "dog in the fight" at a pecuniary level. Was the government fighting the motion in order to (1) preserve the integrity of the statute, or (2) based on a tactical appreciation that the result would create access to justice problems in relation to CPP issues, by negating the ability of any class counsel to be paid?
Butler v. Honda Canada Inc., [2009] O.J. No. 2262 (S.C.): The court approved a retainer agreement that included a 25% contingency. The court also approved a fee of $650,000 as part of the settlement, on time of $450,000, to be paid directly by the defendant.
Option Consommateurs c. Service aux marchands détaillants ltée (Household Finance), 2009 QCCS 2516: Supplementary fee of $25g fee approved for work done after an initial fee approval in a settled action. Class counsel had requested $85g. The court found that the time was too high, and could have been performed at a lower level.
CERTIFICATION
Fresco v. Canadian Imperial Bank of Commerce, [2009] O.J. No. 2531 (S.C.): Unpaid overtime claim denied certification. The court provided a nice summary of the principles applicable to the issue of whether the pleadings disclose a cause of action at para.22:
"* no evidence is admissible for the purposes of determining the s. 5(1)(a) criterion: ...
* all allegations of fact pleaded, unless patently ridiculous or incapable of proof, must be accepted as proven and thus assumed to be true;
* the pleading will be struck out only if it is plain, obvious and beyond doubt that the plaintiff cannot succeed and only if the action is certain to fail because it contains a radical defect: ...
* matters of law not fully settled in the jurisprudence must be permitted to proceed: ...
* the pleading must be read generously to allow for inadequacies due to drafting frailties and the plaintiffs' lack of access to key documents and discovery information: ..."
The court made a helpful statement regarding the so-called "over-inclusiveness" concern with respect to class definitions (at para.49): "I would not give effect to its remaining criticism that the class definition is "fatally over-inclusive" and not rationally connected to the common issues because it includes members who have no claim for overtime. That the claims of some or even most class members will be unsuccessful is not a reason to reject the class definition. All class members have an interest in the resolution of the asserted common issues. The expanded class period may raise issues about manageability, but not about membership. Assuming that there are common issues and that a class proceeding is the preferable procedure to resolve these issues, their resolution would apply to everyone in the proposed class."
The case did not meet the common issues requirement. The court stated that it is not enough to allege systemic wrongdoing, there must be "some evidence" of a systemic failure (at para.60), although it is a "minimum evidentiary standard". As the court put it "Otherwise, the task for the common issues trial judge would not be to determine a common issue, but rather to identify one." In terms of the evidence that was presented in the case before it: "This evidence shows a variety of individual circumstances that give rise to unrelated bases for unpaid overtime claims that can only be resolved individually by considering the evidence of the affiant advancing the claim, the evidence of various other current and former CIBC employees who managed and/or worked with that affiant, and various records maintained on a non-centralized basis by CIBC."
The court made positive comments about the "Sunshine Girl" case Fehringer (which had fallen into disuse as a result of the general view that it did not survive Cloud v. Canada and Rumley v. BC: "In Fehringer, which was a claim against a newspaper for allegedly improper conduct committed by one of its employees, Justice Nordheimer questioned how the court could determine an issue of systemic negligence without knowing the particulars of the negligence complained of, including knowing what the conduct was, where it occurred, how it occurred, whether the defendants had knowledge of it and what steps, if any, were taken as a consequence. I acknowledge that Fehringer was decided before Cloud, which arguably lowered the threshold for class certification of actions founded on allegations of systemic wrongdoing, but I believe that the result in Fehringer would have been no different, given the individual nature of the conduct complained of. In this case, the conduct complained of has the superficial appearance of commonality, but it is my view that this proceeding would inevitably break down into individual inquiries."
The court distinguished Rumley on the basis that there was no independent systemic duty to fulfill individual contracts in a particular way. The court placed little weight on general studies that concluded that the banking industry had an unpaid overtime problem. The court rejected the proposed aggregate damages question: "For the reasons already given and those that follow, there is no reasonable likelihood that the conditions for an aggregate assessment of damages can be met in this case, and that accordingly all of Ms Fresco's proposed common issues relating to damages lack a substantial common ingredient and cannot be accepted."
The court accepted that if there were common issues, a class proceeding would be preferable: "Although CIBC offers multiple methods for employees to raise concerns about their employment situation, the reality is that there is a power imbalance in the employment relationship and employees may perceive that their employment status and advancement will be affected if they assert the rights to which they are entitled. This can be a disincentive to come forward and inhibits access to justice. This may explain why after the commencement of this action, only 31 employees came forward through the escalation process to raise concerns about unpaid overtime." (at para.97)
On representative plaintiff, the court cautioned against rejecting a plaintiff based on credibility issues excepted in the clearest of cases (para.101).
Lambert v. Guidant Corp. [2009] O.J. No. 1910 (S.C.): Certification of pacemaker case. Justice Cullity made several interesting points on evidentiary issues.
The court rejected the admissibility of an affidavit filed by the defendants on preferable procedure sworn by a lawyer stating "In my opinion, the views of legal practitioners, however eminent, on the requirements of section 5 (1) (e) - or on any of the other requirements for certification for that matter - are not admissible as evidence to be considered in arriving at a decision. That is not, of course, to suggest that Mr Morse's opinions are not of interest, or that they would be unworthy of careful consideration outside the courtroom. In this motion, however, they have no more weight, status or authority than any opinions offered by counsel in the course of the hearing."
On evidentiary issues, the court stated " While without further guidance, I would be reluctant to accept that no questions of fact that affect the statutory requirements are to be decided in accordance with a standard less onerous than the usual civil standard - for example, facts that would determine whether a proposed representative plaintiff has an interest in conflict with those of class members - I believe that, consistently with the analysis in Hollick, I must accept that the standard is less strict in connection with - at least - the requirement that there is a class of persons whose claims raise common issues....
I do not consider that it was intended, or that it would be reasonable, to require the plaintiffs to embark on the inquiries and investigations necessary to test the methodology and grounds on which the defendants' numerous and unqualified assertions of fact were based. This would be the function of discoveries that will normally be conducted after certification has been granted and the descriptions of the class and the common issues have been ascertained in preparation for a trial of common issues or, in an appropriate case, a motion for summary judgment....
The legislative history was relied on in Hollick as justifying the very weak evidential burden of "some basis in fact" that was held to apply to each of the statutory requirements for certification, other than that relating to the disclosure of a cause of action. It must, I believe, follow logically that, although a defendant would be entitled to deliver affidavit evidence in rebuttal, the standard of proof is inversely heavy. It is not enough for the defendant to establish on a balance of probabilities that facts that bear on the existence of "colourable" claims differ from those asserted by the plaintiff - the onus must be to demonstrate that there is no basis in the evidence for the latter. For this reason, the court has generally declined to choose between conflicting opinions of qualified experts on the requirement of commonality of issues, or on the existence of the claims of class members that are said to raise such issues....
The second point is, I believe, the inevitable consequence of the "some basis in fact" approach adopted in Hollick to the existence of a rational connection between the class and the common issues. As it is not necessary for the plaintiffs to establish on a balance of probabilities that each class member will have an interest in the resolution of the common issues, there must always be the possibility that the judge at trial will find that this is not the case....
As has been insisted on many prior occasions, the certification motion is essentially procedural in nature. There is, of course, nothing to prevent the defendants from making full disclosure of facts that will assist in narrowing the class, or formulating the issues. Just as obviously, the proceedings are adversarial and they cannot be compelled to do this. If, however, they choose to rely on assertions of facts peculiarly within their own knowledge, and which cannot properly and adequately be tested on the motion, they cannot, in my opinion, insist that their evidence must be accepted as conclusive. The court must decide the weight that is to be given to it in the light of all the evidence and with strict attention to, and its focus on, the claims actually advanced by the plaintiffs on behalf of the class, and the standard of proof applicable to them. (at paras.62, 64, 68, 73, 81)
2038724 Ontario Ltd. v. Quizno's Canada Restaurant Corp: Divisional Court overturned refusal to certify this franchisee class action. A few notable points:
Deference to lower court on certification does not depend on personal level of experience of the judge who issued the decision (para.27).
The court stated: "We are satisfied that the motions judge erred in principle by focusing on proof of damages and failing to consider and identify other common issues...In our view, the motions judge erred in principle in holding that proving a s.61(1) breach depends upon proof of individual instances of loss or price maintenance, in applying a "bottom up" model of proof when considering proof of loss, and in consequently finding that the question of whether the respondents had breached s.61(1) was not a common issue."
On the breach of contract claim: "The determination of the following issues on a class wide basis would significantly advance this claim and avoid duplication of legal analysis and fact finding:
• the meaning of the contract provisions;
• the existence and nature of any common law duty of fairness; and
• Whether the Quiznos respondents have breached the contract provisions in failing to provide specifications." (para.91)
On weighing evidence on a certification motion: "It is neither necessary nor desirable to engage in a weighing of this conflicting evidence on a certification motion. The plaintiffs on a certification motion will meet the test of providing some basis in fact for the issue of determination of loss to the extent that they present a proposed methodology by a qualified person whose assumptions stand up to the lay reader. Where the assumptions are debated by experts, these questions are best resolved at a common issues trial. A motions judge is entitled to review the evidentiary foundation to determine whether there is some basis in fact to find that proof of aggregate damages on a class wide basis is a common issue. While that might require some review of the evidence, the assessment should not relate to the merits of the claim or the resolution of conflicting expert reports." (para 102)
On preferable procedure: " We have found that even if loss could not be proved on class wide basis, the breach of s. 61(1) of the CPA and the breach of contract, would in our view, be common issues that would have significantly advanced the claim....Access to justice and behaviour modification are both also relevant considerations in this case. The appellants submit that they could not afford to pursue these claims individually and would otherwise be denied access to justice. Furthermore, the motions judge noted (para. 40) "that efforts by franchisees, individually or collectively, to obtain information and a useful response to their concerns about overpricing only led to a heightened concern and considerable acrimony. The Plaintiffs accuse the Quiznos Defendants of stonewalling, of thwarting the attempts to redress overcharging, and they accuse the Quiznos Defendants of aggressive, divisive, harsh and retaliatory conduct to intimidate the franchisees." The record establishes that the Quiznos respondents stopped the appellants’ experts from gathering information about alternative costs of products and took steps to counter the efforts of Denver Subs to address their concerns about over-charging. This is a relevant consideration both with respect to the goals of access to justice and behaviour modification. The fact that there exists a mechanism to enforce the Competition Act is a factor but not a complete answer to the need for behaviour modification. Finally, the declaratory relief, if successful would provide relief to class members indefinitely." (para.137, 143)
Brown v. Newfoundland and Labrador (Workplace Health, Safety and Compensation Commission), 2009 NLTD 106: WCB integration case denied certification on the basis that no cause of action was disclosed. The decision of the Commission had to be properly challenged by way of judicial review, and such an application would have been out of time.
Cyr c. Ste-Adèle (Ville de), 2009 QCCS 2827: Dead raccoon case denied certification. Class alleged water contamination and psychological injury. The court held that there was insufficient pleading of causation, and that the alleged injury was too unique to support certification. Furthermore, the allegedly affected area was sufficiently bounded that joinder was possible.
Dubé c. Nissan Canada Finance, division de Nissan Canada inc., 2009 QCCS 2308: Financing charge disclosure case certified.
MacFarlane v. United Parcel Service Canada Ltd., 2009 BCSC 740: For the same reasons espoused in Blackman v. Fedex Trade Networks Transport & Brokerage (Canada) Inc., 2009 BCSC 201, the court dismissed this certification application
Haddad v. Kaitlin Group Inc. [2008] O.J. No. 5127 (S.C.J.): The court certified an real estate misrepresentation class action.
Jadue c. Fédération des caisses populaires Desjardins, 2009 QCCS 1606: Financing charge case dismissed on cause of action grounds.
Gauthier c. Société d'habitation du Québec, 2009 QCCS 845: Low income housing fee action refused certification based on jurisdictional grounds
Payne v. Eagle Ridge Pontiac GMC Ltd. August 10, 2007) Vancouver S063594 (B.C.S.C.): Action involved alleged misrepresentation regarding issuance of "cashable vouchers" certified. Subsequently, at 2009 BCSC 530 the case proceeded on the merits by way of a special case on an agreed statement of facts. The class was successful on one misrepresentation issue, but the training negligence issue was adjourned on the basis that further evidence was required.
Martin c. Société Telus Communications, 2009 QCCS 269: The court refused to certify text message fee class action based on the cause of action requirement. The court also rejected the representative for not advancing the necessary contractual information.
Chalmers (Litigation guardian of) v. AMO Canada Co., 2009 BCSC 689: Contact lens class action certified. The court narrowed the class stating: "On this hearing, Ms. Chalmers only put evidence before the Court in relation to Subclass A (persons who contracted AK after using the Solution). For that reason, I will focus my analysis on whether there is sufficient evidence before the Court to certify that subclass. Currently, there is no basis for this Court to certify either Subclass B (persons who underwent testing for AK after using the Solution) or Subclass C (persons who had a monetary loss as a result of the recall of the Solution). However, this does not preclude the possibility of these subclasses being certified at a future date if sufficient evidence is brought before the Court on a further application."
The court allowed evidence of class size to be put forward after the certification hearing was complete stating: "The information contained in Dr. Patrick's letter should have been provided to the Court by one or both of the parties. Their failure to place that information before the Court at the time of the certification hearing should not leave the Court in the position of having to make the certification decision with incomplete information. It is a procedural decision. It should be made with the best information regarding potential class size before the Court. The Act contemplates that it may be necessary at times to adjourn the certification hearing to permit amendment of materials or pleadings and to permit the parties to adduce further evidence: s. 5(6). This provision is included in the Act to allow the Court to have the best information available to inform its certification decision...The concerns that arise with the admission of fresh evidence following a trial are clearly different from those that arise on a certification application."
The court certified a national opt-in class. The defendant had argued there was no territorial competence following introduction of the Court Jurisdiction and Proceedings Transfer Act. The court disagreed stating: "The reasoning in Harrington is applicable under the CJPTA. Section 10 does not limit the type of circumstances that may constitute a real and substantial connection. The analysis of Huddart J. is equally applicable to a consideration of the test established pursuant to ss. 3(d) and 10 of the CJPTA as it was to the common law test."
The court also decided that it should not decline to exercise its jurisdiction, making a number of comments relevant to the national class debate:
"It is readily apparent that those factors favour a certification that includes non-residents:
(a) The aggregation of claims, including non-residents, provides economies of scale that will reduce the costs for all parties. While there is some inconvenience for the non-resident class members, they will weigh that inconvenience when deciding whether to opt in.
(b) AMO has not put forward any evidence to show that the law to be applied will be a factor of any significance on either the negligence common issues or the punitive damages common issue....
(c) The inclusion of non-residents will make it possible to reduce or avoid multiplicity of proceedings.
(d) The inclusion of non-residents will reduce the possibility of conflicting decisions in different courts.
(f) Certification of national class actions promotes the fair and efficient use of resources within the Canadian legal system as a whole. It encourages co-operation between the provinces and reduces the number of individual and class proceedings involving a single product.
AMO also argues that the inclusion of non-resident claims will mean it may have to defend multiple claims from the same individual. It says that a non-resident class member may be able to make a claim in their own province similar to the BPCPA claims made by British Columbia residents in this action. This is not a serious issue. Pursuant to s. 16(2) of the Act, each non-resident class member will have to opt in to these proceedings. They will be required to commit themselves to be bound by them. That commitment will be clearly set out in the Notice of Certification and the opt-in form. Consequently, non-residents who choose to opt in will be required to refrain from pursuing any other litigation related to use of the Solution."
Horner v. Saskatchewan (Workers' Compensation Board), 2009 SKQB 270: Court had earlier found that all the requirements save preferable procedure were met, but adjourned that aspect of the case for further argument and evidence. After reconvening the motion, the court refused certification of this Charter based class action. The court held "that it is generally undesirable to pursue a class action to obtain a declaration of constitutional invalidity". (at para.9) The court also noted that the plaintiff's claims for personal relief were statute-barred leaving only the declaratory claims. The court concluded: "These remaining issues can be more efficiently, economically and quickly dealt with as a single claim rather than in a class proceeding which the balance of authority holds to be an undesirable vehicle for the determination of constitutional questions. As well, as I see it, a single proceeding would effectively achieve the same result for all members of the class."
Electronic-Rights Defence Committee ERDC c. Southam inc., 2009 QCCS 1473: A Robertson v. Thomson-like freelance writer class action certified.
PAYDAY LOAN UPDATE
Mortillaro v. Cash Money Cheque Cashing Inc., [2009] O.J. No. 2904 (S.C.): Settlement approved. Each customer could apply for a voucher for $50, and the Class Proceedings Fund would be paid $5 for each redeemed voucher. The vouchers were fully transferable. The court commented as follows:
"There is precedent in Ontario for the approval of voucher settlements: Waddell v. Apple Computer Inc. (2008), 67 C.P.C. (6th) 1 (Ont. S.C.J.); Nantais v. Easyhome Ltd., [2005] O.J. No. 5805 (S.C.J.); McCutcheon; Wong v. TJX Companies, [2008] O.J. No. 398 (S.C.J.). In appropriate cir-cumstances, voucher settlements can serve both the class and the defendant and increase the overall value of settlement. Although it is not easy to assign a cash value to a voucher settlement, in cir-cumstances where the vouchers are transferable, there is evidence of a secondary market in which the vouchers can be discounted and converted to cash and/or there is evidence of a class of repeat users, a voucher settlement can be fair and reasonable and in the best interests of the class. Voucher settlements have been found to be appropriate where the quantum of damages for each claimant is either too difficult and/or too costly to determine as in Nantais or where a cash set-tlement would compromise the defendant's ability to continue as a viable concern as in McCutcheon"
Fees were payable in the amount of $380,000. A $1000 payment was approved for the class representative.
SETTLEMENTS
Cassano v. Toronto-Dominion Bank, [2009] O.J. No. 2922 (S.C.): Visa foreign exchange rate case settled. Maximum claim was $161.5M, and was settled for $55 million. $11 million was payable to certain cardholders whose accounts were still active. $28 million was to be paid cy-pres. $11 million or 20% was approved for fees. On the approach to fees, the court commented:
"The second matter is that the fee of $11 million represents the application of a multiplier of approximately 5.5 to counsel's approved time. This might well be considered to be excessive if the retainer agreements had provided for the adoption of the "lodestar approach" reflected in section 33 of the CPA. They did not do this. While it has been said that the appropriateness of a fee calculated in the lodestar manner might be tested by comparing it with the percentage of gross recovery it represents, I would be hesitant to use the lodestar method as a firm indicator of the reasonableness of a fee determined by the application of a percentage to the amount recovered. In Martin v. Barrett, [2008] O.J. No. 2105 (S.C.J.), at paras. 38-39, I referred to criticisms of the lodestar method. One of these that has been repeatedly mentioned in other cases in this jurisdiction and elsewhere is that the application of a multiplier to a base fee may not only encourage an inefficient use of time and a padding of dockets, it may also fail to reward efficient time-management and the exercise of superior skill by class counsel."
Robertson v. Thomson Canada Ltd., [2009] O.J. No. 2650 (S.C.): Long running electronic publication copyright dispute case settled for $11 million. A fresh opt out right was provided, with an opt out trigger under which the defendant could walk away from the deal. The fee issue was reviewed carefully because counsel sought to rely on an amended retainer agreement supporting a $4 million request, rather than the original agreement that would have only supported a $2.2 million request. The court commented on the amended retainer agreements stating:
"The CPA does not in its express terms require that fee agreements be made at the inception of, or at an early stage of, the litigation. (In this respect, there is a contrast with section 39 of the Class Proceedings Act of Alberta). Amendments to contingent fee agreements have been approved in this jurisdiction even though they were made in the course of ultimately successful settlement negotiations when the contingency that would result in no fee had virtually disappeared. In consequence, in this case, while I believe a degree of judicial vigilance is required in order to be satisfied that the representative plaintiff provided her free and informed consent to the amendment - and that the formula it provides is fair and reasonable from the standpoint of the class - I do not consider that it is objectionable per se." (at para.32)
The court relied on the fact that the multiplier was 2.4, that the results were exemplary, and that the litigation had motivated behaviour modification in approving the $4M fee.
The court's approval of the settlement was provisional based on receipt of a satisfactory response to certain questions the court had about the claim procedures.
The Maple Leaf settlement was approved in Quebec: Melvin v. Les Aliments Maple Leaf Inc., 2009 QCCS 1378.
Coutu c. Télébec, s.e.c., 2009 QCCS 2403: Telephone charge case settled.
Johnson v. Bayer, 2008 QCCS 4957: The court initially declined to approve a partial price fixing settlement on the basis that it contained a bar order which the court indicated could not be granted in Quebec. In 2009 QCCS 3020 (S.C.) the court did approve the settlement after certain changes were maid.
Parsons v. Coast Capital Savings Credit Union, 2009 BCSC 330: Overdraft class action settled. A $10,000 payment to the representative plaintiff was refused. On the test for such payments, the court stated:
"1. A representative plaintiff has the responsibility under the Class Proceedings Act to fulfill his or her duties to vigorously and capably prosecute the interests of the class.
2. A representative plaintiff is not automatically entitled to compensation for fulfilling his or her statutory responsibilities.
3. If the plaintiff's services to the class are over and above the usual responsibilities under the Act, he or she may be entitled to modest compensation on a quantum meruit basis.
4. The factors that will govern the entitlement to, and the amount of, such compensation include, but are not limited to:
· significant commitment of time and energy to the litigation;
· active participation in the instructing of counsel and decisions made in the litigation;
· contribution of special expertise;
· significant contribution to communication with the class;
· some other measurable significant contribution to the outcome;
· exposure to risk of costs; and
· some other special consideration or risks in being a named plaintiff.
In this case there is no affidavit from Ms. Parson outlining her contribution, time, or participation in this litigation. Counsel's affidavit indicates that she attended an examination for discovery and was engaged from time-to-time in instructing them. I do not believe she attended the mediation. While I have no doubt that she diligently fulfilled her statutory responsibilities, there is no evidence before me that her contributions were in any way of special significance to the class in a way that would entitle her to a compensatory quantum meruit payment."
Rouleau c. Fortin, 2009 QCCA 743: Settlement approved.
Settlement with various parties in the Manitoba Crocus litigation was approved: See http://www.kleinlyons.com/class/crocus/settdocs.php
Fees were approved in the Quebec arm of the Nortel litigation: Association de protection des épargnants et investisseurs du Québec (APEIQ) c. Corporation Nortel Networks, 2009 QCCS 2407. The request for $6.7 million was knocked down to $3 million, or about a 2X multiplier. The court noted that most of the Quebec time was incurred after the announcement of the global settlement. The court held that the Quebec proceedings had no influence on the global outcome. Quebec counsel did not participate in the mediation that lead to the settlement.
Wamboldt v. Northstar Aerospace (Canada) Inc., [2009] O.J. No. 2583 (S.C.): Pollution case settled. 25% fee at $1.125M approved, which was a multiplier of about 1.25. Counsel was paid in two stages, since class was also going to be paid in two stages.
L'En-droit de Laval c. Institut Philippe Pinel de Montréal, 2009 QCCS 2193: Settlement approved in case alleging that psychiatric patients were improperly housed in criminal cells.
Paquin c. Cie de Chemin de fer Canadien Pacifique, [2009] J.Q. no 3384: Court approved use of residual settlement funds for construction of a park in this environmental class action..
Goudreault c. Service Garantie Québec, 2009 QCCS 1866: Financing class action certified and settled. 2009 QCCS 1804: Fees of $49,500 approved.
M.G. c. Association Selwyn House, [2009] Q.J. No. 3142: Sexual abuse class action settled. Parties eased court's earlier concern that class members could only opt out before reviewing the confidential claim schedules.
CLASS COUNSEL'S ROLE AFTER COMMON ISSUES TRIAL CONSIDERED
Glover v. Toronto, [2009] O.J. No. 1523 (S.C.): Court certified an infection class action applying the usual analysis. Tithe court initially raised a concern with class counsel's position on the management of class members following the common issues trial. The court stated:
"The litigation plan terminates the representation of proposed class members at the doorstep of individual assessments. As individual assessments of relatively modest claims are likely to be necessary in this class proceeding, the unexplained abandonment of class members at this crucial juncture is deeply problematic.
Under the heading, "Class Counsel Fees and Administration Expenses", the plan provides that the court will be asked to fix the amount of class counsel fees and to direct the Administrator and defendants to pay the fees "out of the monies recovered or owing" as a first charge and to fix the costs of the Administrator and the Referees and to order payment by the defendants as a second charge. It then provides: "Class counsel's retainer does not include representation of each individual Class Member or Family Class Member in pursuing their claims after the determination of the common issues. However, Class counsel will make every effort to secure representation for those Class members who request legal assistance, including the option to represent some Class Members and Family Class Members in pursuing their claims."
This provision raises a number of troubling questions. How will any class member be able to adduce general and expert evidence, including evidence about the nature of Legionnaires' disease and Pontiac fever at a hearing before the Referee without legal representation? What is the basis on which class counsel will decide whether to exercise "the option" to represent some class and family members, but not others? Is it contemplated that class counsel can choose to pursue the economically viable claims and abandon the rest? If class counsel does not exercise "the option", but is successful in securing legal representation for those class members who request it, what will be the arrangement for the sharing of fees? Is any lawyer likely to accept a retainer on behalf of a class member when class counsel fees are to be a first charge on any amount recovered or owing?
There is little doubt that if this action is certified, a solicitor-client relationship will exist be-tween counsel for the representative plaintiffs and the members of the class....
In a class proceeding, a client does not have a right to choose his or her lawyer or have a right to terminate the retainer. If a class member is dissatisfied with counsel of record, he or she may opt out of the class, but by the time this proceeding reaches the stage of individual assessments, that time will have long passed. In my opinion, class counsel cannot unilaterally choose to terminate representation, but is bound to represent those class members who wish to pursue individual claims on the same basis as the retainer agreement provides until the class member or the court directs otherwise. It seems to me that the proposed abandonment of class members following the determination of common issues is completely at odds with the fiduciary duty that a lawyer has to a client, which includes the duty of loyalty.... It is also completely at odds with the goals of class proceedings. Earlier I made reference to Chief Justice Winkler's re-marks in Cassano and I repeat them here: "the resolution of individual issues is an essential element of many class proceedings and is crucial if there is to be an advancement of the goal of access to justice". I am not satisfied that this goal can be achieved under the litigation plan that has been put forward." The court invited counsel to make further submission regarding this issue.
The court also rejected two of the proposed representatives stating: "They appear to have no appreciation that they are representing a class. Nor do they understand the nature of the plaintiffs' complaints against Toronto and Ontario. Both thought the claim was about late notice of the outbreak and that they are involved in the litigation to further their individual interests. I am not persuaded that either is a suitable representative plaintiff."
The court subsequently certified action on clarification of counsel's preparedness to act for class members. Class Counsel cured the court's concern by amending their litigation plan as follows: "Class Counsel will continue to represent the Class Members and their Family Class Members following the determination of the common issues trial and/or for the purposes of any individual claims, including individual assessments of damages."
ARBITRATION
Griffin v. Dell Canada Inc. [2009] O.J. No. 418 (S.C.J.), motion for reconsideration refused 2009 CanLII 18222 (ON S.C.): This was a motion by the plaintiff to certify an action as class proceeding and a motion by the defendant for a stay based on an arbitration clause. Case arose from the sale of allegedly defective notebook computers that were designed, manufactured and sold by the defendant. The defendant argued that a stay of proceedings should be granted pursuant to the Arbitration Act given that the terms and conditions of sale included a mandatory provision that all disputes and controversies would be resolved through arbitration. The case was certified and the defendant's motion dismissed. A class proceeding was the preferable procedure for the resolution of the common issues in the action and the requirements for certification had been met. The plaintiffs pleaded tenable causes of action in negligence, breach of contract and waiver or tort/unjust enrichment. Subject to two amendments, the class definition met the requirements for certification as the relationship between the class and the common issues was clear. Five of the eight common issue proposed by the plaintiff were appropriate for certification. Although the proposed plaintiff was a suitable representative plaintiff who had no conflict with other class members, his circumstances differentiated him from other class members and it would be prudent to add another plaintiff. The litigation plan was cursory at best and failed to satisfy the requirements of s. 5(1)(e)(ii) of the Class Proceedings Act. Given that the plaintiff had met the other requirements for certification, it was appropriate to conditionally certify the class action subject to the plaintiff providing an acceptable litigation plan. The defendant was not entitled to a stay. The motion for stay was to be considered in the context of the motion for certification. A class proceeding was the preferable procedure and a stay should not be granted. The court distinguished the Quebec cases and declined to follow the contrary case law in B.C. and Saskatchewan. The court stated: "Justice Perell and I both found it implausible that the Supreme Court of Canada purported to address the legislative choices of other provinces without any reference to this or to the submissions of the intervenors who provided the court with this law."
DISCOVERY OF CLASS MEMBERS
In Boulerice v. Bell Canada, 2008 QCCS 6096, the Court allowed discovery of additional class members, but limited the number to three, noting that the defendants should have sufficient information after those examinations to enable it to produce a defence.
AMENDMENTS
In Goyette c. Glaxosmithkline inc. 2008 QCCS 5109, the court allowed pre-certification amendments to the pleadings on the basis that the amendments were useful and the rights of the parties were not compromised.
Jacques c. Pétroles Therrien inc., 2009 QCCS 1862: Case involved alleged conspiracy to fix gas prices. The court allowed the plaintiffs to make certain amendments to add defendants, alleged parties to the conspiracy. The court also allowed amendments expanding the action, except a geographic expansion to the entire province, as that geographic expansion was not yet supported by the facts.
Mères avec pouvoir (MAP) Montréal c. Bell Canada, 2009 QCCS 1450: Plaintiff allowed to amend motion for certification, but not allowed to enter further evidence to rebut defendant's evidence.
DISCONTINUANCES
Mazzonna c. DaimlerChrysler Financial Services Canada Inc./Services financiers DaimlerChrysler inc., 2009 QCCS 1929: Court allowed Merchant Law Group to discontinue an action against one defendant.
Evoy-Larouche c. Cie d'assurance La Métropolitaine, [2009] J.Q. no 4810: Premium offset class action discontinued on the basis that few potential class members had identified themselves.
Union des consommateurs c. Zellers inc., [2009] J.Q. no 3385: Proposed class action discontinued.
ACCESS TO WITNESS
Grant v. Canada (Attorney General), [2008] O.J. No. 4470 (S.C.J.): Motion by the defendant to strike a summons to witness. At the certification hearing, the plaintiff sought to examine an expert who had been retained by the Crown prepare a study. The Crown denied the request and the plaintiff issued a summons. The motion was dismissed on the grounds that the proposed witness would have opinions and evidence relevant to the certification issue. Furthermore, she would respond to contrary evidence from a Crown witness. The defendant would be able to object to questions outside the expertise of the witness or which were irrelevant to the issues of certification.
INJUNCTION REQUEST
Robinson v. Saskatoon (City), 2009 SKQB 183: Taxicab driver class denied interlocutory injunction to (1) prevent dismissal by the defendant license holders, (2) prevent license transfers; (3) create a trust fund for fees, as well as other matters.
COUNSEL DISQUALIFICATION
Wallace v. Canadian Pacific Railway 2009 SKQB 178: Defendant sought to disqualify class counsel. Class counsel sought order to cross-examine representative plaintiff. Application to cross granted on grounds that class counsel was entitled to probe whether CPR was a professional litigant with more forgiving conflict practices.
PLAIN AND OBVIOUS NOT PLAIN AND OBVIOUS
Saskatchewan Crop Insur. Corp. v. Hicks, 2009 SKCA 12: Court reaffirms Saskatchewan's "authentic and genuine" test at paras. 11-12.
Soldier v. Canada (Attorney General), 2009 MBCA 12: In Manitoba, the courts have adopted a low threshold for the cause of action requirement, but so far the Manitoba Court of Appeal has declined to decide whether the applicable test is that adopted in Saskatchewan, or the "plain and obvious" test. see para. 44
NOTICE ISSUES
The court may order a stay of the notice requirement pending certification applications in other jurisdictions: Ring v. Canada (Attorney General), 2008 NLTD 168
Cilinger c. Centre hospitalier de Chicoutimi, 2009 QCCS 3152: Notice of proposed settlement approved in delayed cancer treatment class action.
In Option Consommateurs c. Banque de Montréal, 2008 QCCS 6432, the court found that there was no requirement for the Bank of Montreal to place the notice on its website.
Audette c. TVI Pacific inc., 2009 QCCS 2101: Court approved pre-settlement notice to class members.
LeFrancois v. Guidant Corp, 2009 OJ 2481 (S.C.) the court addressed an effort by the defendant to constrain the class definition in order to minimize the scope of individuals who would receive notice, arguably to prevent undue concern by pacemaker recipients for whom no concern was raised in the evidence. The court held that the restrictive approach to new evidence when a case has been refused certification adopted by the court in Risorto was not applicable to a case where the statute provided expressly for the amendment to the certification order. However, the court declined to issue the amendment stating:" It follows that the single point in dispute on this motion is whether there is a sufficient basis in fact for the plaintiffs' position that the defects in the three models of defibrillators were not remedied until the polyamide insulation was replaced with PEEK in December 2005. In my judgment, there is sufficient evidence to establish that this is an issue to be tried as part of the common issues relating to, among other things, the alleged breaches of Guidant's standard of care."
STAY ISSUES
Piché c. St-Pierre, 2009 QCCS 2023: Court declined to stay an individual action where the class action was stalled.
CASE MANAGEMENT
Where circumstances warrant, a party in Saskatchewan may be able to have a case management judge appointed prior to certification (which right is separate from the designation of a judge to hear the certification application under section 4(2) of its Act): RoseTim Investments Inc. v. BCE Inc., 2008 SKQB 440
Duzan v. Glaxosmithkline, Inc., 2009 SKQB 230: Saskatchewan court confirmed that under Rule 79, a plaintiff must apply for a case management judge in a proposed class proceeding within 30 days of the expiry of the time to enter a defence, unless the court orders otherwise. In this case, the Plaintiff had breached that Rule, and the appropriate remedy was for the court to designate a case management judge.
Spieser v. Canada (Procureur général), 2009 QCCS 1725: Court established pre-trial schedule in this certified environmental class action.
NORBOURG UPDATE
Pellemans c. Lacroix, 2009 QCCS 1530: Court allows amendments to claim.
2009 QCCS 2040: Court grants confidentiality orders.
2009 QCCS 2282: Defendant denied right to amend defence, on the basis that the amendments were simply trying to reargue points lost on certification.
TOBACCO UPDATE
Conseil québécois sur le tabac et la santé c. JTI-MacDonald Corp., 2009 QCCS 2096: Plaintiff requested early cut off date for defence expert reports. The court rejected the request noting that the Plaintiffs had not yet produced their final reports.
PARTICULARS
Spieser c. Canada (Procureur général), 2009 QCCS 1383: Particulars granted in certified environmental class action.
FONDS MANAGEMENT
In Association des consommateurs pour la qualité dans la construction c. Flamidor inc., 2008 QCCS 4848 the Fonds challenged fees agreed to be paid by the Defendant to the representative plaintiff organization as part of a settlement. The Court found that a contract between the parties in addition to the amount paid out to the class was permissible and did not interfere with the Fonds’ ability to receive repayment of its advances.
CLASS ACTIONS AT TRIAL
Marcotte c. Fédération des Caisses Desjardins du Québec, [2009] J.Q. no 5770 (S.C.), Adams v. Amex Bank of Canada, [2009] Q.J. No. 5769, Marcotte c. Banque de Montréal, [2009] J.Q. no 5771: Visa conversion rate class actions successful. The court rejected the constitutional defences raised by the defendant arguing that local consumer statute could not apply due to federal legislation. The court found that limitation period was stayed for all class members, even those persons who were part of an separate initial aborted class proceedings. The court also held that limitations did not run over the period where there was a failure to disclose the nature of the commissions. The court found that there was sufficient evidence to support an aggregate award for certain banks for certain periods. Certain banks were found liable for punitive damages based on their willful non-disclosure of the commissions.
THIRD PARTY ISSUES
Taylor v. Canada (Minister of Health), 2009 ONCA 487: Canada sought to bring in third party dental surgeon and hospital in jaw implant approval class action. The Court of Appeal affirmed that that the third party proceeding should be dismissed, since the class was only pursuing Health Canada for their proportionate share of the fault.
AMENDMENTS TO CERTIFICATION MOTION REFUSED
Royer-Brennan c. Apple Computer Inc., 2009 QCCS 2720: Court found that amendments were not made properly.
CHALLENGING ADMINISTRATIVE DECISION
Muzyka v. Ontario, [2009] O.J. No. 2346 (S.C.): Court struck claim by individual who claimed she was a member of the class. The court found that all of the plaintiff's remedies in this respect were contained in the settlement agreement.
EXPERT DISPUTE
Brochu c. Société des loteries du Québec (Loto-Québec), 2009 QCCS 705: Court considered scope of expertise of proposed gaming expert.
SECURITIES CLASS ACTIONS
European Minerals (unreported, May 20, 2009) (Ont.S.C.): Defendant ordered to produce insurance policy in advance of certification. The writer is counsel for the defendants.
DEFAMATION IN PLEADINGS
Speers Estate v. Reader's Digest Assn. (Canada) ULC, [2009] O.J. No. 2332 (S.C.): Quebec defendant brought libel action in Quebec in relation to Ontario pleading. In Quebec there is no absolute privilege in pleadings. The plaintiff applied to stay the Quebec action. The court concluded that:
"* An Ontario court has the in personam jurisdiction to order defendants who are properly before it to refrain from prosecuting an action in Québec; however, it would not be appropriate in the immediate case to exercise that jurisdiction.
* Dr. Speers is at liberty to ask the Québec court to decline jurisdiction or to ask the Québec court to apply the law of Ontario with respect to his defence to the defamation claim.
* If Dr. Speers asks the Québec court to decline jurisdiction, he may advise the Québec court that the Ontario court would accept jurisdiction over the defamation claim, and he may advise the Québec court that the Ontario court would permit the defendants to plead that the law of Québec applies to the defamation claim should they advance it by counterclaim."
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Branch MacMaster
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