June 2005

Welcome back to the wonderful and wacky world of class actions. As always, if we've missed any developments, let us know.
Also, if you ever need to review any past updates, please visit our blog at:
http://classactionsincanada.blogspot.com/
FALL SEMINAR
The Canadian Institute will be putting on a great seminar on September 27 and 28 in Toronto. Details are attached below:
http://www.canadianinstitute.com/Legal/Litigating_Class_Actions.htm
We look forward to seeing you there.
COSTS AWARD ISSUED ON SUCCESSFUL CLASS ACTION TRIAL
The Ontario Superior Court of Justice has awarded a costs premium to investors who successfully brought a class action against a retail clothier for misstatements in its prospectus: Kerr v. Danier Leather, 2005 OJ 1972.
Investors in Danier Leather Inc.'s IPO sued the company after it revised its fourth quarter forecasts to be significantly lower a mere two weeks after the IPO closed. Ontario Superior Court Justice Sydney Lederman allowed the investors' class action suit under s. 130 of the Ontario Securities Act, which provides a right of action for a misrepresentation in the prospectus. The investors sought costs and interest.
Lederman J. found that the investors' complaints regarding Danier Leather's conduct during the litigation were not sufficiently serious in nature to be characterized as egregious or reprehensible to justify increased costs. However, the investors were entitled to their costs on a partial indemnity basis up to April 25, 2003, the date of their offer to settle, and on a substantial indemnity basis after. While the offer was not in identical terms to the judgment, the quantum obtained at trial was better than the equivalent under the offer.
No reduction in costs was made for failing to prove fraud since there was a basis for the investors to question the belief and honest reliance in Danier Leather's forecast as set out in the prospectus.
The investors were entitled to a premium of $1 million. The court held that there was no reason why a premium could not be applied in a class action case. Here, the investors' lawyers undertook their work at considerable financial risk, received no fees throughout the action, and were to be paid only if the class proceeding was successful. The case was the first one to deal with the statutory cause of action for prospectus misrepresentation in Canada and involved complex legal and factual issues. The investors were successful throughout and the result achieved for the class were outstanding.
The court declined to award any compensation to the representative plaintiff. He had his own substantial personal financial interest in the outcome of the case. In this regard, he was just like any other plaintiff in a non-class action who might invest considerable time and effort in the litigation but not be entitled to compensation for this effort from unsuccessful defendants.
Interestingly, the court found that Danier Leather must also pay for all reasonable legal fees, costs and expenses incurred in the administration and distribution of the proceeds to class members.
Press reports suggest that the cost award could be upwards of $4 million.
The court also considered the question of interest and held that, in the absence of evidence adduced at trial to establish a basis for compound interest, the Courts of Justice Act should apply. The investors were awarded pre-and post-judgment interest upon a simple interest basis.
ARBITRATION CLAUSE APPEAL DISMISSED
In Dell Computer Corporation v. Union des consommateurs, 2005 QJ 7011, the Quebec Court of Appeal refused an appeal by the defendant, who sought an order that the court should not take jurisdiction given the presence of an arbitration clause. The Court of Appeal did find that the arbitration could take place in Quebec, which was the plaintiff's first objection in that it referred to US arbitration rules. The second issue was the fact that certain rules were incorporated by reference into the document. A Quebec provision stated that such external documents must be made known to the consumer before they would be enforced. The court found that Dell had not put forward any evidence on this point, and hence the arbitration clause was not enforced.

PRODUCTS LIABILITY SUIT CERTIFIED IN QUEBEC
The court has certified a class action involving certain Sony DVD players: Beck v. Sony du Canada Ltee, 2005 QJ 7005. Siskinds is counsel for the class. Interestingly, in seeking to establish the existence of a common issue, the plaintiffs filed proposed class actions in other jurisdictions. The court did rely on this material in concluding that there was a problem out there. The court rejected the defendant's suggestion that this material was inadmissible. Of note to the ongoing "national class" discussion, the plaintiff sought to include Quebecers who bought their DVD elsewhere. The court concluded that Quebec law would not apply to these individuals, but did allow them to remain in the class. The court noted that they would otherwise not be covered by any class action since they were not included in the proposed Ontario class definition. The court did exclude from the definition certain DVD players which were never sold in Quebec. The court also excluded certain models for which there was no evidence that they had the problems which were the basis of the claim.

TWO PENSION PLAN CASES CERTIFIED AGAINST GOVTS
In Ontario Public Service Employees Union v. Ontario, 2005 OJ 1841, the plaintiffs raised an issue about the defendants conduct in a transfer that occurred between two pension plans. The court found that there was no proper breach of fiduciary duty, taking, or inducement to breach of contract claims plead, but that there was an arguable case of breach of contractual undertaking and negligent misrepresentation.
The court found that there were common issues, the key one being "Is the defendant liable to pay damages in respect of any losses in the value of class members' pension benefits that may have been incurred by reason of the termination of their membership in the Former Plan and their enrolment in HOOPP?". Note: One wonders if there isn't a step missing in this analysis, in that the road to "liability" would require the establishment of the breach of contract or the negligent misstatement(s)? Could those necessarily be established on a common basis? Perhaps this illustrates the danger of common issues stated too abstractly?
The court rejected the suggestion that reliance was necessarily an individual issue stating: "Defendant's counsel submitted that the question of reliance is an individual issue so that liability for negligent misrepresentation could not be found at a trial of the common issues. I do not believe that is necessarily correct. Although reliance has invariably been treated as an individual issue in class proceedings, the possibility that group reliance might, in some circumstances, be inferred from the facts was recognised by Cumming J. in Mondor v. Fisherman, [2001] O.J. No. 4620 (S.C.J.), and it would seem to be an essential part of the claim in this case. The Union was the bargaining agent of the employees, and in that capacity, it initiated - and subsequently refrained from pursuing - measures to protect the rights of the employees, as a group, in respect of the maintenance of their pension benefits. On the evidence filed, the alleged detrimental reliance of the group could only be considered to have occurred through the agency of the Union. It is my understanding that, to a large extent, it was for this reason that the Union was made a party to the proceedings and why the class is limited to employees who were members of the Union. The question whether reliance occurred can, therefore, be dealt with at a trial of the common issues."
The court also found that it may be possible to determine damages on an aggregate basis stating: "In my opinion, this evidence of normal actuarial practices followed in pension plan valuations provides a sufficient evidential basis for accepting the third of the common issues I have identified. I see no reason why the task of determining the amount required to compensate the employees should be approached differently to a case in which an employer, for example, is required to top up an underfunded pension plan. The court at trial would have to determine the appropriate actuarial assumptions to be made and, for this purpose, would, no doubt, hear expert evidence and, when the assumptions were identified, it may, on further evidence or after a reference, be able to make an aggregate determination of the amount required to fund any deficiencies. The manner in which the amount so determined would be distributed among class members, and whether the determination should be immediate or in the future - subject, perhaps, to conditions [respecting] their rights under the Former Plan - would lie within the discretion of the trial judge pursuant to section 26 of the CPA."
In Williams v. College Pension Board of Trustees, 2005 BCJ 1211, the court rejected the defendants suggestion that judicial review was preferable stating: "Where the common issues can be resolved through a judicial review proceeding that is binding on many plaintiffs, there is a very compelling argument that judicial review is preferable, particularly where the time and expense of such a proceeding is less. However, where it is uncertain whether judicial review is available or what issues might reasonably be determined on judicial review and there are claims that can not be determined on judicial review, then it appears less attractive and hence, perhaps, not preferable...the judicial review proceeding would create certain disadvantages for the plaintiffs: there would be no oral discovery as of right; there would be no discovery of documents as of right; the plaintiffs would be potentially liable for costs; and, perhaps of most importance, the issue that the plaintiffs seek to advance is not necessarily the same issue as would be advanced in the Judicial Review Procedure Act application. The last point is of some significance. Leaving aside the question of the declaration sought, the plaintiffs say that the central issue is whether there has been an actionable breach of fiduciary duty sounding in damages. In contrast, the defendants and intervenors say that central and fundamental issue is one of administrative law: did the Board act outside its jurisdiction in finding that it was not acting in breach of its fiduciary duty to the members? Not only does a judicial review proceeding not address the issue of whether there can be a claim for damages or not, there may be differences in the central questions in the different proceedings. In the proposed class proceeding the plaintiffs seek to establish a breach of fiduciary duty. In the judicial review proceeding, even if the issue of whether there was a breach of fiduciary duty can be answered, there may well be questions of deference to the Board in its assessment of that question...Upon a consideration of all of these factors I have concluded that proceeding by way of a class action, not judicial review, is the preferable procedure for the resolution of the common issues."
On the suitability of the representative, the court rejected the suggestion of conflict stating: "Although there may be the potential for conflict, I do not think that there is presently a conflict facing the representative plaintiff concerning the common issues and as such I do not see that there is a need at this stage for a subclass or separate counsel. Should it become necessary in the future because a conflict arises during settlement discussions or otherwise, the certification order can be amended at that time."

SPECIAL NEEDS CERTIFICATION BACK ON THE RAILS
In Larcade v. Ontario, 2005 OJ 1924 and A.L. v. Ontario, 2005 OJ 1994, the court overturned a refusal to certify. The appeal court found that there was an arguable case on negligence stating: " First, although evidence is admissible, and indeed required, with respect to other branches of the test for certification, it is not admissible under s. 5(1)(a) in determining whether there is an arguable cause of action. The assertion in the respondent's factum that the decision to discontinue Special Needs Agreements was a policy-driven decision made at the highest level of government is not evidence. Even if it were evidence, it would not be admissible at this stage, although it could well be a relevant consideration at trial. At this point in the proceeding, the plaintiffs have not had full discovery or production of all documents relevant to the government's decision and have not had an opportunity to examine or cross-examine all relevant witnesses on the decision-making process. There has been no determination as to the nature of the decision that was made. It is therefore not appropriate at this stage to determine whether the decision-making process was so policy laden that it cannot survive the second stage of the Anns test. That is a factual determination that can only be made at trial....The defendant points to the permissive language in s. 30 of the CFSA as negating a cause of action. The section does provide that the society or minister "may" enter into a Special Needs Agreement. However, the plaintiffs' complaint here is not with respect any particular exercise of discretion whereby, for example, the state exercised its discretion not to enter into an agreement with a particular person. Rather, the plaintiffs say that the government completely abandoned the statutorily mandated program and in effect refused to exercise its discretion at all regardless of the merits of any particular case. The plaintiffs allege that the Ministry directed that the statute should not be administered as enacted. In any event, the presence of a statutory discretion does not necessarily exclude a cause of action in negligence."
On preferable procedure, the court stated: "In my view, a class action is the preferable procedure to deal with the common issues in this proceeding. There was evidence before the court indicating the difficulties experienced by individuals who have sought to resolve these issues. While some have been able to achieve success for their own children, they have not been able to effectively deal with the overarching concerns raised in this proceeding. The families affected by the government's actions number at least in the hundreds. They are, by definition, parents who have been unable to provide for their own children's special needs. What then can be inferred about their financial ability to carry on this sophisticated litigation against the government? Furthermore, individual claims might not be large in quantum, making individual actions too expensive to justify for the damages available. Requiring separate actions for all claimants would likely prove to be an obstacle to justice for the hundreds of potential plaintiffs. Finally, it is not desirable to have hundreds of individual cases all raising common issues of law and fact. If there was a multiplicity of such proceedings, no doubt all parties would be seeking some sort of consolidation. There would also be a risk of inconsistent verdicts. Proceeding separately with these claims would also be an inefficient use of court resources. Likewise, while a test case might be an appropriate procedure where the only relief claimed is declaratory, the nature of the causes of action asserted here and the damages claimed make a test case procedure unworkable. Accordingly, I find that this aspect of the s. 5(1) test under the CPA is also met."


FORD CASE CERTIFIED ON CONSENT IN ONTARIO
A class action covering the rest of the country in relation to Ford's TFI module vehicles has been certified by consent in Ontario. Branch MacMaster and Camp Fiorante Matthews are counsel for the class in BC. Harvin Pitch leads the effort in Ontario. For more information see: http://www.classproceedings.ca/present%20cases%20ford.htm

CONSTITUTIONAL CHALLENGE TO QUEBEC RULES STRUCK DOWN
In Pharmascience v. Option Consommateurs, 2005 QCCA 437, the Quebec Court of Appeal rejected a constitutional challenge by the defendants to Quebec's "fast track" certification process. Once again, the Quebec Court of Appeal downplayed the importance of certification proper, saying the important element of a case is the merits. Certification was just meant to be a filter.

SCC DECLINES TO INTERFERE IN CLOUD CERTIFICATION
The SCC declined to hear the feds' appeal of the certification of this abuse class action. Plaintiff's counsel are undoubtedly starting their abuse class action engines: A.G. Canada, et al v. Marlene Cloud, et al. - and - The New England Company v. Marlene Cloud, et al. (30759) (Ont. C.A., December 3, 2004) "with costs".

LEAVE GRANTED IN RELATION TO CERTIFICATION COSTS ORDER
In Andersen v. St. Jude, 2005 OJ 1459, the Divisional Court granted leave to appeal a costs order in favour of the plaintiffs. The court held that the motions judge erred by not considering costs awards in similar cases. The amount of the costs award was much higher than any costs ever previously awarded for a certification motion of similar type. Although this case was unique, consideration had to be given to other cases.

HEPATITIS A CASE CERTIFIED
The class action against Loblaws in relation to a Hepatitis A outbreak was certified. Interestingly, the defendants did not oppose certification. (Is this some indication that defendants are starting to accept that contesting products liability cases in Canada is futile? Are costs awards having a deterrent effect? Stay tuned...). The defendants' motion for summary judgment was dismissed. For more details see:
http://www.koskieminsky.com/client_links/Loblaws/home.aspx

GENETICALLY MODIFIED SEED CASE CLASS CERTIFIED
In Hoffman v. Monsanto, 2005 SKQB 225, the court rejected certification of this long-running effort by organic farmers to sue seed producers for the transference of genetically modified material onto their lands. The court concluded that there was no proper cause of action in negligence because on the pleading, the case did not meet the first branch of the Anns test. The court also found that there were policy reasons why the claim for purely economic loss should not be allowed. In relation to nuisance, there was no basis to sue a manufacturer for the mere production of a good that subsequently drifts onto another's land. There was an arguable case in relation to certain statutory environmental causes of action.
The court also concluded that there was no proper class. The court put the question on this point as follows: "¶ 214 What evidence is there, then, on this application, that members of the proposed class have, in common, suffered the losses claimed?" Using that test, the court concluded: "234 It is my conclusion that, while there may be some individual farmers within the proposed class who have suffered loss due to the inability, or perceived inability, to produce canola sufficiently free from GMO contamination to be marketed as organic, there is no evidence before me to indicate that all, a majority, or even a significant minority, of the proposed class of all organic grain farmers certified by one of the six named private certifiers have suffered such a loss...242 In any case, in my respectful view, it is not possible to certify a class on the basis of a statistical likelihood that a small portion of that class may, in the future, experience certain losses. Certainly there is evidence before me that some organic fields have in fact been contaminated by GM canola, in each case blown over from a neighbouring field where GM canola was grown. However, the claim asserted in relation to volunteer GM canola on organic farmland is essentially an individual claim. There is no evidence that the problem is widespread among members of the proposed class. As to the risk of future contamination (if such could conceivably be considered a viable claim, for which there is some doubt), this would certainly vary according to farming practices, including the use of buffer zones to protect from contamination from neighbouring fields."
The court found that there were very few proper common issues stating: " 251 [I]t is clear that the class so defined includes individuals in widely different circumstances. The certification standards of private certifiers varied not only from certifier to certifier, but from one year to the next as standards in relation to GMOs evolved only gradually, over time, promulgated in each case after 1996. The same can be said of market standards put in place by the principal export markets, Europe and the United States. (I note that the plaintiffs also include Japan in this category, but they have produced no evidence as to the existence of organic export standards for the Japanese market related to GMOs and no evidence that any member of the class has lost a sale or the opportunity for a sale destined to that market.) Further, some certifiers may have been able to sell canola into the European market, at a particular time, while others were not, and the ability to sell certified canola to Europe would therefore vary among members of the proposed class and for a particular member might vary from time to time. The proposed class includes individuals who were organic grain farmers before the introduction of GM canola in Saskatchewan as well as those who became certified to grow organic grain at widely various times, some conceivably as much as nine years after the introduction of GM canola. It includes individuals who may have been certified to grow organic grain for only one year in the period specified as well as those who did so for multiple years. It includes organic grain farmers who at some time grew and marketed organic canola and those who never did so. It includes many, perhaps a large majority, who never would have grown organic canola. It includes some individuals who still today grow and market organic canola."
On preferability, the court stated: "324 However, there can be no doubt that the individual issues that would remain to be determined would involve substantial individual inquiry, for the individual claimants would first have to prove that they have suffered a loss as a result of the introduction of GM canola and would then have to establish the value of that loss. Particularly the first of these issues is not, in my view, amenable to a simple procedure, for it requires inquiry into all the circumstances under which the individual claimant has farmed over any of the years for which a claim is advanced."
The court was also concerned about the nature of the representative plaintiffs. Both of the individual proposed representative plaintiffs, Larry Hoffman and Dale Beaudoin, executed a two-part document, entitled "Legal Costs Indemnity Agreement" and "Agreement to Act as Representative Plaintiff", the contents of which the court said made it clear that neither of these individuals is instructing counsel nor assuming any responsibility for this action, but, rather, that both have assigned that right to a group called the Saskatchewan Organic Directorate Organic Agriculture Protection Fund ("SOD-OAPF"). The Saskatchewan Organic Directorate is an umbrella organization created to support the organic movement in Saskatchewan. The court stated: "There is no evidence before the Court as to the governing structure of SOD. It established a committee, the Organic Agriculture Protection Fund, to direct this lawsuit and instruct counsel. According to the evidence of Larry Hoffman, on cross-examination, the exact relationship between SOD and the OAPF committee is unclear, should there be a conflict between the committee and the umbrella organization. In effect, these proposed representatives are not directing the litigation and have relinquished control over the conduct of the action to a committee whose own powers are unclear.... The representative plaintiff under The Class Actions Act has the responsibility to prosecute the lawsuit, once certified, in the interests of the members of the class. Their duty is akin to that of a fiduciary. They must have adequate knowledge and ability to instruct counsel and they must act in the interests of the members of the class. They are answerable to the Court for the adequate performance of these obligations. These are duties that cannot, in my view, be delegated to another party who is not answerable to the Court."

INVESTMENT CASE CERTIFICATION ORDER SETTLED
The court settled the terms of this certified action in Sharbern Holding Inc. v. Vancouver Airport Centre Ltd., 2005 BCSC 681.

PAYDAY LOAN CASE CERTIFIED
A payday loan class action was certified in Alberta: Ayrton v. Payday Loans, 2005 ABQB 311.

LEAVE TO APPEAL DENIED IN BAYCOL CASE
In Pardy v. Bayer, 2005 NLCA 20, the Newfoundland Court of Appeal declined to grant the defendants' leave to appeal a decision certifying this products liability action. The court noted the routine standard for leave, and then "kicked it up a notch" for class actions stating: "[B]ecause s. 11 of the Act allows the court to "amend a certification order, decertify an action or make another order it considers appropriate …", the threshold for leave to appeal from such order, it seems to me, should be even higher."

VITAMIN SETTLEMENT APPROVED
Referring to similar actions in Ontario, the court certified the British Columbia class actions pertaining to vitamin products, approving 3 national settlement agreements and approved class counsel fees on the same basis and terms as the Ontario case: Ritchie-Smith Feeds, Inc. v. Rhône-Poulenc Canada Inc., S.C., Maczko J., Doc. 2005 BCSC 583.

CLASS ACTION JURY NOTICE STRUCK
In March 2004, the Court of Appeal certified common issues in a class proceeding in which the plaintiff claimed damages for breach of contract, negligence and negligent misrepresentation, all arising out of the defendant’s sale of investment units in two "Syndicate Mortgages". The plaintiff filed a notice requiring trial by jury pursuant to R. 39(26). The trial of the common issues was scheduled for five weeks. The defendant applied for an order that the trial be conducted without a jury. The application was allowed. The court agreed that the absence of any statutory bar to the use of juries in class actions was a significant factor to consider. For the most part however, the application fell to be decided under the traditional Rules of Court. The plaintiff's case would ultimately depend on proving the existence of a duty to exercise due diligence, whether as an implied part of the contractual duties owed by the defendant or a duty that the defendant assumed in the particular context. The extent of that legal duty was entirely a question of law. The question of whether the alleged duty arose from an implied term in the contract was largely, if not entirely, a question of law. Those were not issues that could properly be determined by a jury. The jury notice would be struck: Collette v. Cartier Partners Securities Inc., 2005 BCSC 501.
CHICKEN AND EGG UPDATE
In Lieberman v. Business Development Bank of Canada, 2005 BCSC 389, the court provided a helpful checklist of the factors that should be considered in the chicken and egg debate. The plaintiffs, former employees of the defendant, alleged that their pension plan had been improperly managed. They were pursuing certification of a class action in British Columbia, while the defendant was seeking to have the court decline jurisdiction in favour of the courts of Quebec. The issue on a preliminary motion was whether the defendant's forum non conveniens application should be heard at the same time as the certification application, as requested by the plaintiffs. The court found that the certification motion should proceed first. The authorities suggest that the timing of the hearing of jurisdictional issues in proceedings for which certification is sought under the Class Proceedings Act is a matter requiring the exercise of discretion determined by the circumstances of each case. A non-exhaustive list of the factors that will likely have to be considered in exercising that discretion will include: the cost to the parties of participation in pre-certification procedures; the strength of a defendant's jurisdictional arguments and the extent to which a preliminary application may dispose of the whole of the proceeding; the potential for delay arising from interlocutory appeals; the complexity of the evidentiary and legal issues that may arise in both the jurisdictional and certification applications; and, the interplay between the issues on both applications. Here, consideration of those factors lead to the conclusion that the defendant's jurisdictional application should be heard at the same time as the plaintiffs' certification application.
In Attis v. Canada, Mr. Justice Winkler found that a motion to strike the Third Party notice should be considered after certification: 2005 OJ 1337. The court stated: "As a matter of principle, the certification motion ought to be the first procedural matter to be heard and determined."
In Baxter v. Canada, 2005 OJ 2165, certain third parties wished to bring jurisdictional challenges or motions to strike prior to certification. Again, Mr. Justice Winkler ordered that the certification motion should proceed first. He elaborated on the proper line stating: "Admittedly, there are instances where... there can be exceptions to the rule that the certification motion ought to be the first procedural matter to be heard and determined. It may be appropriate to make an exception where the determination of a preliminary motion prior to the certification motion would clearly benefit all parties or would further the objective of judicial efficiency, such as in relation to a motion for dismissal under Rule 21 or summary judgment under Rule 20. Such motions may have the positive effect of narrowing the issues, focusing the case and moving the litigation forward. An exception may also be warranted where the preliminary motion is time sensitive or necessary to ensure that the proceeding is conducted fairly.... However, there is an important distinction between Rule 20 and 21 motions that are brought by the defendant and those that are brought by third parties. In many cases, Rule 20 and 21 motions brought by the defendant have the potential to render the certification motion unnecessary if they are determined prior to certification, thereby furthering the objective of judicial economy. Rule 20 or 21 motions brought by third parties in relation to claims against these third parties do not have the same potential to render the certification motion unnecessary. The proceeding as between the plaintiff and defendant will be unaffected and the determination as to whether the action is a certifiable class proceeding must still be made."

NATIONAL CLASS SCOPE CONSIDERED
In Punit v. Wawanesa, 2005 OJ 1928, the defendants sought to have the claims as they relate to plaintiffs resident in various provinces of Canada outside the Province of Ontario stayed and all references to non-residents deleted from the Statements of Claim. On the chicken/egg point, the court concluded that the motion should be allowed to proceed in advance of certification. On the merits of the motion, the court declined to excise the non-residents finding that there was insufficient evidence to make such a decision on the "real and substantial connection" test at this stage.

SECURITIES CLASS ACTION CERTIFIED IN QUEBEC
In Nutri-Mer Inc. v. Avantage Link inc., 2005 QJ 4711, the only requirement raised by the defendants was the suitability of the representative. This was rejected.

NOTICE OBLIGATION ADJOURNED
In Conseil quebecois sur le tabac v. JTI-MacDonald, 2005 QJ 4161, the court adjourned the usual deadline for the publication of notice to class members.

REJECTION OF CERTIFICATION AFFIRMED ON APPEAL
In Peres v. Le Procureur Generale du Quebec, 2005 QJ 5742, the Quebec Court of Appeal disagreed with the lower court's finding that the case was properly the subject of arbitration under a collective agreement. However, the court still rejected certification on the basis that the plaintiff had not established that it was too difficult to join all the class members in a mass individual action.

EDUCATIONAL CLASS ACTION CERTIFIED
In Tavares v. Institut Isacsoft inc., 2005 QJ 4712, the court approved a misrepresentation class action against an educational outfit. However, it should be noted that the defendant did not appear to put up a fight.

REQUEST TO CONVERT JUDICIAL REVIEW TO ACTION REJECTED
In Tihomirovs v. Canada, 2005 FCJ 598, the plaintiff wished to convert his judicial review application to an action so that he could apply to have the matter certified. The court agreed that the desire to proceed by way of class action was a relevant factor on such an application, and allowed the conversion.


PENSION CASES CERTIFIED
A class action was certified on behalf of all members, former members and other persons entitled to payments under the Participating Co-operatives of Ontario Trustees Pension Plan (FSCO Reg. No. 345736) (the "Plan") against the current and former trustees of the Plan, a former investment consultant and asset manager, former actuaries, former and current custodian trustees, and legal advisors of the pension fund. This action is brought under the Class Proceedings Act, 1992 on behalf of all affected individuals. Justice Winkler certified the action on February 10, 2005. For more details see: http://www.koskieminsky.com/client_links/ParticipatingCooperatives/home.aspx
The case against Hudson's Bay Co. by 2,000 current and former workers seeking to block its use of their pension funds to pay those of employees from other acquired companies was certified on May 6. For more details see:
http://www.koskieminsky.com/client_links/HBC/home.aspx

CLASS ACTION SETTLED
The settlement agreement between Option Consommateurs and easyhome Ltd. entered into on November 22, 2004 has now been approved by the Quebec Superior Court. The plaintiffs filed a class action suit alleging that the contract used by easyhome Ltd. did not conform to the requirements of the Quebec Consumer Protection Act.

APPEAL REJECTED
In Le Corre v. Canada, 2005 CAF 127, the court affirmed the lower court decision that this benefit entitlement case did not disclose a proper cause of action.

NEW ACTIONS
QUEBEC
Gilles Gareau has filed a class action alleging that Quebec's treatment of dyslexics violates both the provincial and federal charters of rights.
An employee group has filed a $5-million class-action lawsuit against Cleyn & Tinker on behalf of the company's roughly 100 managers and supervisors after a plant closure.
Other cases include:
Breslaw v. Ville de Montreal: Tax recovery Brosseau v. Canada: Zolonite Attic Insulation Brunet v. Tours Nouvelle Vision: Travel class action Pednault v. Wal-Mart: Alleged improper store closing plan due to threat of unionization
B.C.
A criminal interest rate case has been started against Whistler Cable by David Rosenberg.
A criminal interest rate class action has been commenced against several further individual pay day lenders by Paul Bennett.
Poyner Baxter have filed a case relating to Zyprexa.
Tony Merchant has filed a Bextra lawsuit against Pfizer and others.
Norske Skog v. Atofina Chemicals: Hydrogen Peroxide price fixing. Camp Fiorante Matthews are counsel for the plaintiff.
ALBERTA
A claim has been commenced by Robert Lee against the Province regarding the alleged expiry of temporary guardianship order custodial rights.
Press reports indicate that a mad cow case has been filed.
SASKATCHEWAN
Press reports indicate that a mad cow case has been filed.
MANITOBA
Press reports indicate that a father whose son died after a bar fight five years ago is suing Canada's attorney general on behalf of people who are victims of offenders on probation.
ONTARIO
Press reports indicate that a mad cow case has been filed. Cameron Pallet is on for the proposed class in Ontario.
A Bextra lawsuit has been filed against Pfizer Inc. by the law firm McPhadden, Samac, Merner and Barry.
A proposed national class action lawsuit has been launched claiming that people with Parkinson's disease developed a gambling addiction as a result of their use of the drug Mirapex. The plaintiffs are represented by the Toronto law firm of Thomson, Rogers.
The Royal Botanical Gardens and a southern Ontario caterer are accused of negligence and breach of duty in a $1-million lawsuit filed on behalf of the 150 people who suffered food poisoning after eating a Mother's Day brunch. The suit was filed in Hamilton court by law firm Scarfone Hawkins.
PRINCE EDWARD ISLAND
Press reports that a class action was filed some time ago against the P.E.I. Protestant Children's Trust alleging sexual abuse at the Mount Herbert orphanage.
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