December 2004

10TH ANNIVERSARY CELEBRATION
I attach the brochure for the Friday, February 25 class action extravaganza in Vancouver. A perfect last minute stocking-stuffer for the class action lover in your firm family! Please email cbranch@cle.bc.ca if you would like to attend.
To assist in the vacation planning of our out of province subscribers, I also attach links to the Whistler Blackcomb and Air Canada sites. It looks like you can do a Toronto-Vancouver return from Thursday to Sunday for $99 each way!
http://www.whistlerblackcomb.com/
http://www.aircanada.com/en/home.html

ABUSE CLASS ACTION BACK ON THE RAILS IN ONTARIO
In an apparent reversal of the trend in Ontario to aggressively distinguish Rumley v. BC while refusing certification of abuse cases, the Ontario Court of Appeal has certified a class action alleging abuse and cultural theft at an Indian residential school. Given that clients are actually paying me to analyze the effect of the decision, let me just ask how the question "how did the defendant run the school" is an appropriate triable issue?
See MCC v. Canada, 2004 OJ 4924
DEFENDANT ALLOWED TO PRODUCE EVIDENCE FROM OTHER CLASS MEMBERS
In Richard v. British Columbia, 2004 BCSC 1541 the court ordered that the Province was entitled at the certification application to produce evidence from the files of the failed rep plaintiffs in a competing class action. The court found that the information from the other plaintiffs' files was material to certification of the action granted carriage, and that any privacy concerns were overwhelmed by the need of the court to have a full record on certification. The author is counsel for the Province in this matter.

SUMMARY TRIAL HEARD IN CERTIFIED BC ACTION
In Gregg v. Freightliner Ltd. 2004 BCSC 1574, the court considered a summary trial on a portion of the merits of this wrongful dismissal action (specifically issues relating to the termination of the "non-bargaining" employees). The court rejected a request by the defendant's to decertify the termination issue, and continued on to consider the merits. The court concluded that the notices of termination provided December 3, 2001 to the non-bargaining employees of Freightliner Ltd. were valid notice as to the date of termination.

SETTLEMENT IMPLEMENTATION CONSIDERED
In Scarola v. Shell, 2004 JQ 11820 the court agreed that class counsel could have the names of the people who made claims under the settlement without violating any privacy statutes. The court also found that the defendant had not violated the agreement in terms of its mechanism of considering claims.

CLASS ACTION MERITS DECISION UPHELD
In Quebec v. Girard, 2004 JQ 13624 the court upheld the merits decision of this certified environmental class action, except for adjusting the allocation of fault between the defendants, and specifically including children in the group entitled to recover. In an interesting side insurance issue, the court confirmed that "rats" did not come within the definition of pollutants under the defendant's policy, and that the insurer was thus responsible only for funding 50% of the cost of the defence.

SNOWMOBILE NUISANCE CASE REACHES TRIAL
In this long running saga, the court in Coalition pour la protection v. La Municipalite des Laurentides, 2004 JQ 13133 finally granted judgment in favour of the class as against the municipality. An injunction was granted against snowmobile traffic in a certain area, and damages of $1200 awarded for each winter season from 1997 to 2004.

COUNSEL DETERMINED AFTER BREAK UP OF CLASS FIRM
In Union des consommateurs v. Ford, 2004 JQ 13197, the court had to consider proper management of a class action after the break off of Gilles Gareau and Fredy Adams from Lauzon Belanger. After considering the wishes of the class rep, the role of the consumer's association, and the intervention of another firm, the court concluded that the file should be moved to Adams Gareau.

OBJECTIONS TO SCOPE OF CLASS REP DISCOVERY CONSIDERED
In Rabinovitch c. CIBC Asset Management Inc. [2004] J.Q. no 13291, the court considered an array of objections to the examinations of the class rep. The court upheld objections that related particularly to the class rep's own situation as opposed to questions relevant to the common issues. The court also upheld an objection to a question about the likely response of the plaintiff to reading an annual report, which he did not in fact read. The court did allow certain questions relating to credibility.

CHICKEN AND EGG DEBATE
In (Québec) Procureur général c. Charest, [2004] J.Q. no 13504, the court reconfirmed that jurisdictional controversies can be considered in advance of class certification in Quebec. The court in this same-sex benefit case concluded that there was no jurisdiction as the matters should first be considered by an array of administrative tribunals.

PUBLIC SECTOR CASE DISMISSED ON JURISDICTIONAL GROUNDS
In Desrosiers v. Canada, 2004 FCJ 1940, the court struck a public sector mobility discrimination case on the basis that the complaint should have been filed under the collective agreement's grievance procedure.

AUCTION CLASS ACTION CERTIFIED
In Toms Grain & Cattle Co. v. Arcola Livestock Sales Ltd., 2004 SKQB 443, the court confirmed that the auction sale class action should be certified after considering certain further argument produced by the parties, subsequent to its earlier consideration reported at 2004 SJ 519.

SUNNYBROOK CLASS ACTION CERTIFIED
In Farkas v. Sunnybrook and Women's College Hospital, 2004 OJ 5134, the court agreed to certify the case alleging improper sterilization of equipment. The court also considered whether class counsel should be entitled to the names of class member's prior to the expiry of the opt out period. The court concluded that class counsel should have the names and the opt out coupons received stating:
"[C]ounsel have, in my opinion, responsibilities to protect the interests of class members after certification. This requires that, generally, counsel should be entitled to receive whatever information is available to permit class members to be identified. They are entitled to communicate with class members during the opting-out period, subject to the responsibilities, and limitations, referred to in previous decisions such as Ward-Price v. Mariners Haven Inc., [2004] O.J. No. 2308 (S.C.J.) and Bywater v. Toronto Transit Commission (1999), 43 O.R. (3d) 307 (G.D.). These responsibilities are not to be taken lightly. Pending the expiration of the opt-out period, it is imperative that communications with class members deal fairly with considerations relevant to the exercise of the choice before them. It is also desirable that class counsel should be in a position to enable them to intervene if any communications with class members during the period by other parties are inconsistent with the objectives of the CPA and the integrity of the process. In situations where there is no statutory prerequisite of court approval, the supervisory jurisdiction of the court will normally be exercised - and dependent - on a motion by a party."

CERTIFICATION COSTS CONSIDERED IN ALBERTA
In Papaschase Indian Band v. Canada (Attorney General) [2004] A.J. No. 1439 the court considered the appropriate costs award in this failed certification effort to enforce aboriginal rights. The court appeared troubled by the relaxed approach to costs suggested by the Alberta Court of Appeal's decision in Pauli v. ACE. The court was concerned about the need for "reciprocity" between plaintiff's and defendants, harkening back to the language in the Ontario costs decisions in Gariepy and Pearson. In terms of access to justice concerns, the court stated: " The principle of "access to justice" is not meant to encourage speculative and unmeritorious litigation. Awards of costs have always been designed, in part, to discourage speculative litigation like this". The court decided that a costs award was appropriate concluding: "In my view on a proper balancing of these factors it would be inappropriate to totally deprive the Defendant of costs in this action. However, given the factors previously mentioned, it is appropriate to moderate the cost award. As previously indicated, actions of this sort might easily justify a multiple of Column 5 of Schedule C. The Defendant has however brought the matter forward for resolution in a quick and efficient manner, thereby avoiding exposing the representative Plaintiffs to the overwhelming costs of a trial. The Defendant has claimed only a modest level of costs: Column 1 of Schedule C. This moderate and measured claim for costs in my view adequately balances the various factors. I will accordingly direct that the Defendant have one set of costs to be taxed on Column 1 of Schedule C."

PRE-CERTIFICATION NOTICE CONSIDERED
In Nalliah v. Canada (Solicitor General) [2004] F.C.J. No. 2005 the court ordered that the immigrant class members be given notice of the pending class action prior to their removal from Canada. The court stated: "Here, putative class members who are removed would not retain any ties to Canadian officials. Particularly for those who have no legal counsel, it may be unreasonable to expect them to learn of the class action. The Respondents bear no blame for this; it is simply the effect of removal. In my view, these are exceptional circumstances that warrant some form of intervention. In their submissions, the Respondents stated as follows: In the alternative, if this Court finds that the possibility of the reduction of the putative class amounts to irreparable harm, and is therefore inclined to grant a "class injunction", the Court could ask the Respondents if they would be willing to provide each member of the putative class with a "potential class action information sheet" at the time of their removal from Canada. This information could contain the contact information for Mr. Waldman, reference to the CBSA website information where information on the development of the proposed class action could be posted. In such a scenario, no members of the putative class removed from Canada, would be excluded from choosing to participate in the proposed class action. Even though I am not granting the "class injunction", I believe that this suggestion has merit. Accordingly, I will direct that counsel to this motion work together to develop a protocol incorporating the elements in the above"

FIRE EVACUATION CLASS ACTION CERTIFIED IN ONTARIO
The court certified this action flowing from a fire at the defendant's premises, but narrowed the scope of the class to those who were evacuated: Ludwig v. 1099029 Ont. Ltd, 2004 OJ 4573, The court held that the arbitrary boundaries proposed by the class were not rationally related to the cause of action. The court also concluded that there were only proper common issues for the evacuated class.

GM CASE CERTIFIED IN BC
In Ernewein v. GM, 2004 BCSC 1462, the court certified a side-saddle fuel tank class action. Poyner Baxter are counsel for the class.

CRIMINAL INTEREST RATE CASE SETTLED
Hordo & Bennett have been successful in negotiating their first settlement of a criminal interest rate case. A 25% contingency fee was awarded. See MacKinnon v. Vancouver City Savings Credit Union, [2004] B.C.J. No. 2568 and the attached link:
http://www.complexlitigation.ca/Classactions/vancity.htm


GOVERNMENT PENSION CASE CERTIFIED
See Myette v. Quebec, 2004 JQ 11768. Not much of general interest.

NEW ACTIONS
BC: Poyner Baxter have filed additional Vioxx and Serzone class actions in B.C.
Klein Lyons has also filed a Vioxx class action in B.C.
Poyner Baxter has filed a class action against Hyundai alleging that they misrepresented the horsepower of their vehicles.
Harbottle & Company have filed a pension class action against Wajax Ltd.
Hordo & Bennett have filed additional pay day loan class actions against additional companies.
Poyner Baxter have filed a class action against Sony alleging a flaw in certain large screen televisions that create permanent bars on the side of the screens.
Kieran Bridge has filed a securities class action against CP Ships Ltd and others.
A class action has been filed against Nissan regarding an alleged defect in the G35's brake system. Michael Dunn is counsel for the proposed class.

www.branmac.com