April 2005

Greetings!
My associates and I have been slaving over hot computers to get out the bi-annual update to the textbook, so look for that in your mailboxes over the next couple of months. If you haven't ordered your own copy yet, visit http://www.canadalawbook.com/catalogue.cfm?DSP=Detail&ProductID=446
It is guaranteed to keep you informed on the latest class action issues (or to put your kids to sleep in record time!).
In the meantime, we set out below the breaking news from the last couple of months to tide you over.
Also, if you ever delete these email updates (how could you?!), you will be pleased to know that we have set up a "blog" at which all the historical email updates will be posted. The blog is found at:
http://classactionsincanada.blogspot.com/

CONFERENCES
Attached is a brochure for upcoming seminar on litigation against the government at which the writer will be speaking. We hope to see you there!

US CLASS ACTION NOT ENFORCED AGAINST CANADIANS (BUT IT COULD BE)
In Parsons v. McDonalds, [2005] O.J. No. 506 (C.A.), the Ontario Court of Appeal affirmed that a US class settlement did not bind Canadians due to weaknesses in the scope of the notice program. However, more importantly, the court affirmed that it is prepared to enforce US class actions that include Canadians so long as jurisdiction and due process concerns are met. For a copy of our office's paper discussing the lower court decision see: http://www.branmac.com/classactions/articles.htm

TOBACCO CLASS ACTION APPROVED IN QUEBEC
In Conseil québécois sur le tabac et la santé c. JTI-MacDonald Corp. [2005] J.Q. no 607, the Quebec court approved a class action against the tobacco companies. This is another clear example of the lower certification standard in Quebec, given that a similar class action was denied certification in Ontario.

LIGHT CIGARETTE CLASS ACTION CERTIFIED
In Knight v Imperial Tobacco, 2005 BCSC 172, the court certified a "lite cigarette" class action. Klein Lyons is counsel for the class. Their decision to restrict the claim to statutory economic claims clearly assisted in pushing the balance in favour of certification.

LONG-RUNNING CLASS ACTION SAGAS SETTLE
The fen-phen lawsuit, Wilson v. Servier Canada Inc. [2005] O.J. No. 1039 (S.C.J.), has finally settled. You can hear the weeping emanating from the Bay Street towers from here.
A settlement was also approved in the long running Hoy v. Medtronic saga on April 1. The writer was counsel for the class. Details can be found on our office's website.

INSTITUTIONAL ABUSE CASE CERTIFIED
The court certified an institutional abuse class action in W.J.R. v. British Columbia , 2005 BCSC 372, [2005] B.C.J. No. 561. The writer was counsel for the defendant Province. Details can be found on someone else's website. Wound-licking can be found occurring in our office.

CRIMINAL INTEREST RATE CASE DENIED CERTIFICATION
The B.C. Supreme Court rejected a class action filed against B.C. payday lenders over allegedly high interest rates. Madame Justice Brenda Brown ruled that the lawsuit did not meet the criteria for a class action. The lawsuit named 18 different payday loan businesses and alleged the companies violated the federal criminal code by charging annual interest rates exceeding 60 per cent. The writer acted for an array of the defendant companies (batting .500 for the month!): See MacKinnon v. Moneymart, 2005 BCSC 271.

INVESTOR CASE CERTIFIED
Roughly 200 owners of suites in an underperforming Richmond hotel were granted class-action certification in their civil case by the B.C. Supreme Court. They claim management was in a conflict-of-interest position when they allegedly shuffled guests to a competing hotel: See Sharbern Holding Inc. v. Vancouver Airport Centre Ltd. , [2005] B.C.J. No. 347

DEFENDANT ADDED TO PROPOSED CLASS ACTION
On a motion by the defendant tractor manufacturer in a proposed class alleging defects in tractor tracks, the court agreed that the track supplier was "a party of significant interest to the certification application" and ordered that the supplier be added as a defendant for the purposes of the certification: Sorotski v. CNH Global N.V., [2005] S.J. No. 174 (Q.B.)

CERTIFICATION APPEAL DISMISSED
In James v. BC, 2005 BCCA 136, the court dismissed an appeal of the order certifying this employee benefits class action.

CERTIFICATION UPHELD IN AFTER MARKET PARTS CLASS ACTION
The aftermarket parts certification order of Nordheimer J. dated November 22, 2004 was upheld as leave to appeal was denied. No reasons were given by the hearing judge, Matlow J.

INDUSTRY CLASS ACTIONS TAKE A HIT IN QUEBEC
In Bouchard v. Agropur, 2004 QJ 13863, the court refused to certify a class action alleging that milk distributed in Quebec contained less fat content that represented (this would never happen in B.C.!). The court concluded that the case should be dismissed against many of the defendants because the plaintiff had not dealt with their dairies. The court also found that the cause of action standard was not met and dismissed the case generally. So Ragoonanan now has some support in Quebec.

VITAMIN SETTLEMENT APPROVED
In Vitapharm v. F. Hoffman La Roche, 2005 OJ 1117 (S.C.J.) and 2005 OJ 1118 (S.C.J.) the court approved settlement in an array of the vitamin price-fixing cases.

POLICE CLASS ACTION CERTIFIED
In a decision rendered by Buffoni J. on Feb. 17 the court certified a class action seeking a permanent injunction and damages with respect to the management of criminal records by the police: Ostiguy v. AG Quebec.

RAGOONANAN CASE SURVIVES SUMMARY JUDGMENT ATTACK
In Ragoonanan v. Imperial Tobacco (March 9, 2005), the court declined to grant summary judgment in favour of the defendants, stating that there was sufficient evidence to meet the low threshold.

CONFIDENTIALITY OVER NAMES PROTECTED
In earlier reasons, the court ordered disclosure of the full names and last known addresses of children set out in police records on the basis they had waived their privacy rights. On receiving further argument, the court found that it was in error in concluding that a waiver had occurred, and deleted that component of the order. The writer acted as counsel for the Province: Griffith v. Winter, 2004 BCSC 1781.

SUMMARY JUDGMENT APPLICATION BY CERTIFIED CLASS DISMISSED
In Fakhri v. Wild Oats Markets Canada, Inc., 2005 BCSC 282, the Plaintiffs sought summary judgment on behalf of part of the class who actually had a contractual relationship with the defendant. The court found that there was too much overlap between contractual and negligence claims making summary determination of contractual claims inappropriate.

LONG RUNNING CLASS ACTIONS HIT THE END OF THE ROAD
The bingo license fee challenge Nanaimo Immigrant Settlement Society v. BC has died as leave to reconsider the merits decision was denied by SCC.
The plaintiffs in the two proposed class action lawsuits brought on behalf of BCI common shareholders and seeking $1 billion in damages against BCI and BCE, which were previously dismissed by the Ontario Court of Appeal, were refused leave to appeal by the Supreme Court of Canada.

RUMLEY INTERVENTION DENIED
As previously reported, the Jericho Hill class action was settled after a number of years of litigation and the court gave its approval to the settlement in April 2004. In January 2005, four individuals applied to be added to the class for the purpose of participating in the settlement. Each of those persons had received compensation under the JIPC, ranging in amount between $20,000 and $30,000. The application was dismissed. The order approving the settlement had been entered. The class action was concluded. Even if the court were to find that accepting compensation from the JICP or related matters were mere technicalities to be overcome by a general view of fairness, the court held that it was functus. In any event, those matters were not mere technicalities: See Rumley v. BC, 2005 BCSC 189.

BANKS EFFORT TO TAKE DECLARATORY PROCEEDINGS TO SCC FAILS
The motion by the banks to strike a proposed consumer rights class action in advance of certification was denied. Leave to take the issue to the SCC was also refused: Bank of Montreal, et al. v. Attorney General of Quebec, et al. (Que. C.A., September 28, 2004) (30645).

COSTS REFUSED IN FAILED CERTIFICATION HEARING
Tobacco companies sought over $1.2 million in costs against the plaintiffs and their lawyers (Sommers & Roth) as a result of the failed certification motion. They were awarded zero. The tobacco companies alleged that their defence costs were needlessly driven up by Plaintiff lawyers who were the real "powers" behind the suit. They argued that the lawyers who brought the suit must bear the brunt of the tobacco firms' defence costs. The Plaintiffs argued that awarding costs against them and their lawyers would ensure that no one would pursue the tobacco companies again in a class action. The Plaintiffs further maintained that the suit was brought by smokers with real health problems and that the suit was a matter of public interest. The Plaintiffs also argued that tobacco companies have long tended to adopt "scorched earth" legal tactics to ensure that those who sued them would run out of money.
In awarding no costs to the tobacco companies, Justice Winkler concluded that the proceeding raised novel points of law. Firstly, his Honour found that the class action was commenced when class actions were relatively new in Canada. Secondly, the court held that the claim that the tobacco companies were involved in a conspiracy was a novel legal issue. Justice Winkler also found that the class action involved a matter of public interest.
In particular, His Honour determined that the action had special significance for the community at large and beyond the members of the proposed class. The fact that the tobacco industry is heavily regulated in Canada was a major factor substantiating his finding that there was a strong public interest component in the case. Justice Winkler also stated that the case engaged a strong behaviour modification aspect, mainly due to the fact that the claim had been brought by four Plaintiffs with modest individual losses who were seeking to represent a much larger group of millions of smokers in Ontario.
Justice Winkler stated that he was entitled "to take judicial notice of the fact that the use of tobacco products is considered to constitute a serious risk to the health of the public in this province and elsewhere in Canada". His Honour also stated that "any proceeding that might have the effect of either curtailing the use of those products or visiting the health costs of their use on the defendants rather than the public at large" clearly raised issues that went beyond the interests of the class. He added that the case was "of some specific societal significance to residents in Ontario and the rest of Canada".

WEBB V. K-MART STILL ALIVE
The court denied an effort by the Hudson's Bay Company to dismiss a class-action lawsuit brought against it by 1,000 Kmart workers terminated after their company merged with the defendant in 1998. The defendant sought to have the lawsuit seeking severance pay for laid-off workers dropped because the case had not been advanced by a number of previous motions or proceedings. See [2005] O.J. No. 449 (S.C.J.)

VEHICLE CLASS ACTION DENIED CERTIFICATION
Although Quebec courts generally love class actions, there is still some hope for defendants. In Lallier v. Volkswagen, (February 8, 2005), the court refused to certify a class action alleging defects in the defendants' vehicles on the basis that there was too much variety between the models involved.

ANOTHER NOISE CASE DENIED CERTIFICATION IN QUEBEC.
Similarly, another area where Quebec courts don't seem to like class actions is in relation to noise. In Dorion v. CNR, 2005 QJ 1410 (S.C.) the court refused certification of this railway noise case.

SCOPE OF STATEMENT OF CLAIM DEBATED
In Howarth v. DPM Securities Inc., 2005 QJ 1083 (S.C.), the court reviewed the principles involved in the peculiar Quebec issue of the extent to which the statement of claim must dovetail with the earlier certification order.

EMPLOYEE BENEFITS CASE DISMISSED ON BASIS OF LACK OF JURISDICTION
In Vernon v. General Motors of Canada Ltd. [2005] O.J. No. 486 (C.A.) the court confirmed that the dispute raised by the proposed class action should be determined under the collective agreement, and not through the civil courts.

OF CHICKENS AND EGGS
In Potter v. Bank of Canada [2005] O.J. No. 772 (S.C.J.) the court was asked to rule on the appropriate timing of the certification motion and defendant’s motions for dismissal and to strike portions of the Statement of Claim. The court held as follows: "I am of the view that it would be more efficient and in the interests of justice if the Bank's motion were heard and decided first. Depending on the result, the hearing of the certification motion may be entirely avoided or the length of the certification motion may be substantially shortened."

EMPLOYEE BENEFITS CLAIM SETTLES
See Kanagaratman v. Li, 2005 OJ 771. Koskie Minsky acts for the class.

CERTIFICATION REFUSED IN EXCHANGE RATE CLASS ACTION
In Cassano v. Toronto-Dominion Bank [2005] O.J. No. 845 (S.C.J.) the court refused certification of a class action against TD challenging its right to set exchange rates. The court held that damages could not be determined on a class wide basis, and that the plaintiff had failed to show that there was a manageable way of determining damages individually. The court stated: "The principle of stare decisis is likely to be more powerful than the limitations that are attached to those of res judicata and issue estoppel if the decision on the first of the common issues was obtained in an individual proceeding commenced by any cardholder"

PENSION CASE MERITS DISMISSAL UPHELD ON APPEAL
See Assoc. provinciale des retraités d'Hydro-Québec c. Hydro-Québec, [2005] J.Q. no 1644

CLASS ACTION SETTLEMENTS ANNOUNCED
Settlement of a premium offset lawsuit has been announced by Quebec insurer La Capitale MFQ. Yves Lauzon acts for the proposed class. Interestingly, the court had already rejected an earlier class action lawsuit by the same firm using a different plaintiff.
Settlement of the class action against Air Transat in relation to the forced landing of Flight TS236 has been announced. Camp Fiorante Matthews acts for the class. The settlement is for $7.6 million.
Easyhome Ltd. announced that subject to court approval it has settled a class action lawsuit that was commenced in April, 2004 for the restitution of rent and fees charged to easyhome customers, which were alleged to have constituted interest charged in excess of the maximum rate prescribed by the Criminal Code of Canada.

NEW FILINGS
Quebec:
An array of class actions have been filed in Hull by Saskatchewan lawyer Tony Merchant including:
Pawlachuk v. BCE Inc.
Rosa v. Sunquest
Brock v. Merck Frosst
Droyer v. Sears Canada
Kruger v. Pfizer Canada
Bethel v. Lord Conrad Black and
Blanchett v. Bell Canada
A Quebec farmer hopes to secure court approval for a class-action suit against the federal government and animal feed company Ridley Inc. over mad cow disease and the U.S. ban on Canadian beef exports. Donald Berneche of St-Gabriel-de-Brandon, Que., alleges that Canadian authorities delayed in prohibiting the addition of meat and bone meal from ruminant animals in cattle feed. This, he argues, made it possible for a case of bovine spongiform encephalopathy to be found in an Alberta cow in 2003, causing the U.S. border closure against Canadian cattle and beef. The cow, born in the spring of 1997, became infected with BSE soon after being fed with Ridley's products, Berneche alleged. The case seeks certification as a class action on behalf of all affected farmers in the province.
A new action alleges DaimlerChrysler Canada Inc. failed to notify consumers of defects on certain models that resulted in "catastrophic failures" of the cars' steering systems. The suit, filed by Quebec firm Siskinds Desmeules against DaimlerChrysler Corp. and its Canadian division, alleges Chrysler was aware of a faulty steering system after "thousands" of consumer complaints across North America, but did not tell consumers of necessary repairs or issue a recall.

British Columbia:
Press reports indicate that a class action lawsuit has been commenced by Canadian Taxpayers' Federation against the Hospital Employees Union for damages caused as a result of alleged illegal strike action.
Other cases filed since our last report include:
R.N. Parton Ltd. v. Bayer Inc.: Rubber chemicals price-fixing case filed by Poyner Baxter.
Birrell v. Providence Health Care: Infected materials at BC Ear bank. Klein Lyons is counsel for the prospective class.
R.N. Parton Ltd. v. Bayer: Price fixing
Castellani v. Hoffmann La-Roche et al: Accutane class action filed by Michael Dunn.
Smith v. Vancouver City Savings: Criminal interest rates Pro-Sys Consultants v. Infineon Technologies: Dynamic random access memory Bodnar v. Community Savings: Criminal interest rates Pro-Sys Consultants v. Microsoft: Abuse of dominant position Erickson v. Nan Ya Plastics Corporation et al: Polyester staple price fixing
Class actions have been commenced in BC and Alberta by Bruce Lemer against Telus for charges for incoming calls that begin even before the phone starts ringing.

Alberta:
The firm of Stevensons Barristers announced that it has commenced a class action in the Court of Queen's Bench of Alberta against Eli Lilly & Company and Eli Lilly Canada Inc., the makers and distributors of Zyprexa, for damages claiming $900,000,000.00. This action is similar to the one which has been brought in the Ontario Superior Court on behalf of all persons in Canada who were prescribed Zyprexa and who became diabetic as a result of taking that drug. The lawyers for the plaintiff, Harvin Pitch, counsel to Stevensons Barristers, and Colin Stevenson intend to work with law firms across Canada and the United States in pursuing this claim and other similar claims against the manufacturers and distributors of Zyprexa, Eli Lilly & Company and Eli Lilly Canada Inc.

Ontario: Investors who bought hedge funds from troubled Portus Alternative Asset Management Inc. launched a $240-million class-action lawsuit against Manulife Securities International, the dealer that recommended the investment.
Class actions have been launched against Aviva Canada Inc. ("Aviva"), Lombard General Insurance Company of Canada ("Lombard") and Royal & Sun Alliance Insurance Company of Canada ("Royal"). The lawsuits allege that Aviva, Lombard and Royal wrongfully denied commercial insurance claims for perished stock and business interruption losses caused by the August 2003 Blackout.

www.branmac.com

February 2005

Greetings. Before we begin, I thought I would highlight an interesting statistical result from our last three updates.
For each update we conduct a search on the common law databases for the term "class action", and then the Quebec databases for the term "recours collectifs". For the last three rounds, there have been more class action judgments from Quebec alone than all other common law provinces combined. A working theory may be that the combination of the relaxed certification requirements in Quebec with the heavier costs awards in Ontario is creating a real jurisdictional swing in favour of "La Belle Province". We will see if the trend continues.

THE MOTHER OF ALL CLASS ACTION SEMINARS
We are continuing our preparations for the class action seminar in Vancouver on February 25. We look forward to seeing you there. Special features continue to be added, as now our luncheon address will feature both Allan Seckel (the Deputy AG for BC) and Paul Vickery (senior counsel for the Federal Department of Justice) providing their respective governments' take on class actions. Should be a great day.
I attach a brochure and the website address to sign up.
http://www.cle.bc.ca/CLE/Courses/Individual+Courses/2005/Summaries/1065105

RECONSIDERATION OF CERTIFICATION REJECTED
In Hague v. Liberty Mutual (November 22, 2004) (Ont.S.C.J.), the Court issued supplementary reasons after its decision to certify this after-market parts class action. The court found that (1) a common issue on global damages was appropriate in this case where there was a direct link between the alleged wrong and the class, unlike the case in the price fixing case Chadha v. Bayer, and (2) certification should not be reopened as a result of the disciplinary proceedings taken against one of Plaintiff's experts. The court reemphasized that expert evidence should not be weighed at the certification hearing in any event.
The court also issued reasons on costs on January 5, granting an amount of $315,000 to the successful plaintiffs.

LOG SALVAGORS CLASS ACTION DISMISSED
In Ogden v. Gulf Log Salvage Association and the Province of BC, 2005 BCJ 61 the court rejected certification. The class wanted to establish that the defendants were not paying a fair price for their logs. However, the court concluded that the appropriate price for the logs could only be determine on a sort by sort approach. The court also declined to give Relic from "The Beachcombers" any intervention rights ;)
The writer served as a consultant to the Province on this matter.

PROVINCE'S EFFORT TO ESCAPE CLASS ACTION DISMISSED
In Gagnon v. Orlando School, 2004 QJ 13809, the court rejected a request by the Province of Quebec to strike the certified class action against it on jurisdictional grounds. The case involved a school in Florida, but the class alleged that the government should not have granted student loans in respect of an institution that did not provide a proper education. The court found that the contracts with the school were subject to review by a Quebec court and that Quebec as a convenient forum.

PRE-RETAINER EMAIL GIVEN PRIVILEGE PROTECTION
In Miller v. Kia, 2004 QJ 13810, the court granted privilege protection to an email which class counsel sent to the eventual representative plaintiff asking whether he would be interested in participating in a class action. The plaintiff had posted an ad for sale of his Kia on the internet when he received the inquiry from the law firm. The court held that the privilege protection was sufficiently broad to cover the communication at this stage.

FLOOD CLASS ACTION CERTIFIED IN BLANCHETTE V. LONGUEUIL, 2004 JQ 13821
On November 8-9 ,1996, rain fell in the defendant's town flooding the Plaintiff's basement. The Plaintiff blamed the town alleging:
a)
the negligent construction of an inadequate artificial lake for the retention of water by the Town of Saint-Hubert;
b)
improper operation of the artificial lake used by the Town;
c)
inadequate storm-water sewers within the municipality;
The court certified the action.

BAYCOL CLASS ACTION CERTIFIED
In the first certification decision out of Manitoba, the court certified a national opt out class action in a products liability case: Walls v. Bayer, 2005 MJ 4. The usual product liability analysis was performed. The court did express some frustration about the lack of guidelines for the management of overlapping classes (given that there was already a Newfoundland class certified) stating: "Regrettably, there is no legislation that would take control of a class proceeding for all of Canada. I am told by counsel that there is often informal accommodation achieved between counsel for the various parties. In my view, that is something that ought certainly to be done here. A stay of this action for a period of time to permit such attempts to be concluded is something that may be considered by the parties or may be sought by the defendant."

DEDUCTIBLES LITIGATION UPDATE: COSTS
In McNaughton v. Co-operators, 2005 OJ 179, the court considered the issue of costs in relation to the battery of motions decided on certification and other matters. The court held that the "novel/test case" discretion in the CPA did not apply, since the first MacNaughton judgement had already settled the legal principles and the issues were otherwise of interest only to the particular class. The court concluded: "In my opinion, therefore, the normal rule that costs follow the event should apply on all the motions although, in fixing the costs, I will entertain further submissions from counsel on the extent, if any, the underlying goals of the CPA, should impact the quantum of costs awarded."
As to the appropriate scale, the court found: "I can see no reason why I should not award substantial indemnity costs on the motions for judgment in the actions where the claims of the proposed representative plaintiffs fell outside the one year limitation period and those plaintiffs persisted with unsubstantiated allegations of fraud, dishonesty and deceit in an effort to establish fraudulent concealment in order to extend the limitation period to include their claims. In the end, it is my opinion that the costs on all of the motions in these actions should be payable to the successful party on a partial indemnity scale except for the r. 20 motions where the defendants demonstrated there was no genuine issue for trial relating to the limitation period. In the end, it is my opinion that the costs on all of the motions in these actions should be payable to the successful party on a partial indemnity scale except for the r. 20 motions where the defendants demonstrated there was no genuine issue for trial relating to the limitation period."

WHEAT BOARD CLASS ACTION BACK ON THE RAILS
In Sander Holdings Ltd. v. Canada, 2005 FCJ 31, the proposed class appealed a decision of a motions judge who granted the respondent's motion for summary judgment on the ground that the appellants' statement of claim failed to disclose a reasonable cause of action. The proposed class were all producers who have shipped grain through the Canadian Wheat Board. They challenged the means by which transportation costs were calculated. The appeal court concluded that there was a proper issue for trial, and sent the case back for further consideration.

PENDING CLASS ACTION DID NOT PREVENT ISSUANCE OF INJUNCTION IN INDIVIDUAL LITIGATION
In Bettencourt v. Ontario, 2005 OJ 70 the court considered a motion for an interlocutory injunction involving two children with autism. They sought to compel the Ontario Government to continue funding them for Intensive Behavioural Intervention ("IBI").
On the balance of convenience test, the defendants noted that on November 15, 2004, a class action against Ontario was filed in Hartley v. Ontario, on behalf of approximately 1,200 children with autism who have been placed on a waiting list for the IEIP program but who have not received any services or funding, including children who have been discharged from the program without having received any services or funding. The court held that this was not a basis to refuse granting the injunction.

CHICKEN AND EGG UPDATE
In Ezer v. Yorkton Securities Inc., 2005 BCJ 30 the plaintiff in this proposed class action appealed from the order staying his actions. The chambers judge had found that the "exclusive jurisdiction clause" in an Account Agreement entered into between Mr. Ezer and Yorkton was enforceable and Ontario was the proper forum for the proceedings. The Plaintiff claimed, relying on MacKinnon v. National Money Mart Co., [2004] B.C.J. No. 1961, that the chambers judge should have heard the application for certification of the class proceeding before deciding the stay applications.
The court disagreed stating: "The issue in MacKinnon was whether an arbitration clause in the contract was "inoperative" in the face of a class proceeding. This Court found that there was a conflict between s. 15 of the Commercial Arbitration Act, R.S.B.C. 1996, c. 55, and s. 4 of the Class Proceedings Act. The conflict could only be resolved by determining whether the class proceeding met the requirements for certification, including determining that a class proceeding "would be the fair and preferable procedure for the fair and efficient resolution of the common issues". This could only be determined after considering the application for certification. There is no such statutory conflict in this case. The question is whether the jurisdiction in which the action may be brought is determined by the contract between the parties. If the exclusive jurisdiction clause is enforceable, Mr. Ezer cannot bring any action against Yorkton in B.C., including a class proceeding, and there is no action to be certified. The issues of whether a class proceeding is the fair and preferable procedure or there are common issues do not arise. The chambers judge clearly recognized this when he pointed out that other members of the purported class who are not subject to an exclusive jurisdiction clause may commence class action proceedings against Yorkton in B.C."
Other grounds for appeal were also dismissed.
In other poultry related news, in McKinnon v. Moneymart, 2004 BCSC 1532, a 2003 oral judgment only recently ordered, the court concluded that a Ragoonanan and arbitration motion should proceed as part of the certification application. The court stated: " Although there have been cases in British Columbia in which applications have been heard before certification, those were applications which would resolve significant issues, whether or not the action was certified: Edmonds v. Acton Supersave Gas and Dahl v. Royal Bank. However, here the applications may not resolve issues, regardless of certification" However, the certification hearing itself was bifurcated between the s.4(1)(a)/Ragoonanan motion and the balance of the requirements.
The writer is counsel for certain defendants in this action.

CLASS ACTION SETTLEMENT APPROVED AND FEES SET IN ENTRAN II HOSE CLASS ACTION
This action was certified by this court as a class proceeding for the purposes of effecting a settlement on November 17, 2003. On November 2, 2004, the plaintiffs brought motions for approval of the settlement and class counsel fees. The court approved the settlement, with reasons to follow, and reserved on the motion relating to fees pending delivery of further materials from class counsel. On November 24, 2004, class counsel filed the additional materials requested regarding the fees. Reasons for approval of the settlement and class counsel fees are now reported at Kelman v. Goodyear Tire and Rubber Co, 2005 OJ 175. The settlement was notable in that it covers both sides of the border in one omnibus settlement. The court had some concern that it was contemplated that the jurisdiction of the Ontario court would end after settlement. The court corrected this failing stating:
"The structure of the settlement suggests that the jurisdiction of this court extends only to approving the terms of the settlement, thus binding the Canadian class members, but thereafter leaving this court without any further supervisory role in the implementation or administration. I cannot accede to this proposition. There is no authority in the case law for the proposition that once an Ontario court has taken jurisdiction over a matter it may subsequently cede that jurisdiction to another court in a different forum. This should not be confused with a situation in which a stay is sought in one jurisdiction pending a resolution of a proceeding involving the same parties and same issues in another jurisdiction. In the present situation, for all intents and purposes, by way of the settlement and its approval, the parties have concluded the litigation in this jurisdiction. Therefore, any analogy to the law regarding stays of proceedings has no application. To similar effect, the Class Proceedings Act 1992, S.O. 1992, c.6, s. 26(7) states in pertinent part that "[t]he court shall supervise the execution of judgments and the distribution of awards under" the Act. Thus, where an Ontario court is involved in approving a settlement of a class proceeding, it must retain jurisdiction over the implementation of that settlement. Simply put, where the court has sanctioned a cross-border settlement of a class proceeding under the CPA, it cannot decline to exercise its continuing statutory jurisdiction over the parties and the settlement merely because the administration of the settlement is in the United States. Accordingly, the court has taken steps to assert its supervisory role over the implementation of the settlement. Further steps will be taken as necessary."
A fee of $1.8 million was approved, supported by the fact that it was only approximately 8% of the likely allocation of the settlement funds to Canadians based on the Canadian market share.

AUTHORSON SAGA CONTINUES
In Authorson v. Canada, 2004 OJ 5204, the court issued a 152 paragraph judgment on how the aggregate assessment of class damages should occur. If anyone actually gets around to reading this, let me know if there is anything interested buried in there.

JUDGMENT ISSUED IN PROPOSED CLASS ACTION
In Reid v. Canada, 2005 FC 158, the court granted summary judgment in favour of the plaintiff in a proposed class action regarding the calculation of death benefits for federal employees.

NUISANCE CLASS ACTION DENIED CERTIFICATION
In Citizens for Quality of Life v. Aeroport de Montreal, a decision of Justice André Roy, rendered on December 14, 2004, the court dismissed a proposed nuisance class action filed against Aéroports de Montréal.

RECUSAL CONSIDERATION REJECTED
The case management judge in the Woodlands class action, 2004 BCSC 1429 declined to recuse herself where the Defendants presented evidence that an affiant for the Plaintiff had previously sought legal advice from the judge prior to her elevation to the bench. The court confirmed that she had no recall of the affiant. The writer is counsel for the Defendant in this matter.

VITAMIN SETTLEMENT PROPOSED
Press reports indicate that group of 14 major international vitamin manufacturers have agreed to pay$132.2-million to end class-action lawsuits in connection with a price-fixing scheme for 10 bulk vitamins and food additives sold inCanada from 1990 to 1998. A court hearing for approval has been scheduled before an Ontario courtjudge on March 8 and 9. Similar hearings are set for April 6 in British Columbia and April 21 in Quebec.

NEW ACTIONS
ALBERTA: The court has agreed to treat a previously filed representative action as a proposed class action in Paron v. Alberta. The action raises alleged environmental problems at Wabamun Lake. The writer has been retained by the Province of Alberta.
BC:The latest criminal interest rate action has been brought against North Shore Credit Union, Community SavingsCredit Union, Chemainus Credit Union, Comox Valley Credit Union, Kootenay Savings Credit Union, Vernon and District Credit Union, Greater Vancouver Credit Union and Village Credit Union. The statement of claim alleges the credit unions charged up to $25 for overdrafts, in excess of the $5 overdraft fee permitted by the Criminal Code.Long-haul truckers have filed a class action suit over what they claim is an unfair tax deduction for meals. The Summerland legal firm of Johnston and Johnston filed the suit against the federal government in Supreme Court in Kelowna last week.

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