December 2007

13 Shopping Days to Xmas! If any of you have contacts that can get me a Nintendo Wii, please advise ASAP! (I'm pretending it's for the kids, but we all know better!)

If I can't get my girls a Wii, I was thinking about getting them another puppy. There is a cute one down at the shelter whose prior owners smoked 5 packs of lite cigarettes a day, causing second-hand emphysema. That was manageable until she become ill after eating tainted dog food laced with anti-arthritis drugs. So she had to move from her home in the Sydney Tar Ponds to the Woodlots Facility for Wayward Dogs. While there, she received TMJ implants for a dental problem. I don't have to tell you how that turned out. Things were looking better for her when she won a fast food restaurant lottery, but it turned out to be a scam. Unfortunately this only fuelled her gambling addiction, and she ended up got hooked on VLTs. A very sad case. But I hear there are some SSRI drugs that could pick up her mood once we get her home...

NATIONAL CLASS ACTION ISSUES
Société Canadienne des Postes v. Michel Lépine 2007 QCCA 1092: The Quebec Court of Appeal upheld the decision refusing to enforce an Ontario national settlement. The court agreed that the notice process was confusing. The court was also concerned by the fact that a certification hearing was already pending in Quebec when the Ontario judgment issued. Finally, the court indicated that it was "perplexed" as to why the Ontario court did not explain why it was not taking into account a letter sent to the Ontario court regarding the existence of the Quebec action.
Ledyit v. Bristol-Myers Squibb Canada Inc. (03-CV-259300CP, September 13, 2007) (Ont.S.C.): The Ontario court allowed the addition of Quebec plaintiffs to cure a "Ragoonanan problem", as there were defendants for whom there were no associated plaintiffs. The court noted that the defendant had an office in Ontario, and sold the product throughout Canada. Hence the court found it had jurisdiction to include Quebecers in the class. The defendant challenged whether there was jurisdiction to allow her to be a representative plaintiff. The court noted that the rules of jurisdiction had to be "adapted" in the context of class actions The court found that if there was jurisdiction to certify a national class, then there was no reason not to allow an extraprovincial representative plaintiff. The court also concluded that there would be personal jurisdiction over her claims. In the key passage of the endorsement, the court stated:
"I do accept Ms. Lang's submission that, even if the court has jurisdiction, considerations of comity may militate against its exercise where overlapping proceedings are pending in another jurisdiction. I agree, also, that where such proceedings are being actively pursued, it may be considered to be an abuse of process to permit persons whose claims have a real and substantial connection with the jurisdiction to be included in a class certified in Ontario. In this case, I was informed by counsel that similar claims to those in this action have been made in a proceeding in Quebec against Apotex and others. My understanding is that the proposed class is limited to those who purchased, or consumed, nefazodone in that province. I was also informed by Mr. Rochon that, if, in this case, the proposed amendments are accepted - and a national class is certified - the plaintiff's counsel in the Quebec proceeding have agreed not to proceed with claims against Apotex on behalf of putative class members who consumed Apo-Nefazodone....Co-operation among counsel in different jurisdictions to resolve multi-jurisdictional problems in class actions is to be encouraged, and agreements of the kind referred to by Mr. Rochon are not uncommon. In the circumstances, therefore, I am not prepared to find that, in view of the proceedings in Quebec, it would be an abuse of process to approve the proposed addition..."
The court held that further consideration of the Quebec plaintiff's representativeness should be deferred to the certification hearing, including the effect of differences in provincial legislation.
Yee v. Aurelian Resources Inc., 2007 ABQB 368: The Defendant applied for a stay of an Alberta class proceeding in favour of an Ontario class proceeding. The classes did not overlap and the defendant was opposing certification in both jurisdictions. If you can't guess what happened, I hereby punish you by requiring you to read chapter 16 of CLASS ACTION IN CANADA 10 times!
Not surprisingly, the application was dismissed. The court stated:
"While Aurelian opposes certification both in Alberta and Ontario, it stated that if certification were to be granted in Ontario, it would agree to expand the class to include Alberta residents. I accept counsel's assurance that it would do so. However, that does not address the wishes, concerns or interests of the Alberta residents. They may prefer to be their own class in their own province, rather than a part of a class or sub class in another jurisdiction. Even if subsequently included in the Ontario class action, Alberta residents could opt out of any class proceedings in Ontario. At this stage, when the terms of any certification order are necessarily unknown and speculative, there is no way to pre-dict or assure what would happen to Alberta residents in an Ontario class-action. In my view, whether the test is that of Rule 129 or forum non conveniens, this stay application is, at a minimum, premature and leaves Alberta residents unnecessarily unprotected. The starting point is that residents of Alberta have a right of access to Alberta courts...As there has been no certification in Ontario and no motion for certification has been filed, there is simply nothing for Alberta residents to join. A stay would mean Alberta residents would be left in the legal limbo of not being allowed to proceed in their home province, while not being part of any other proceeding. In such circumstances the words of Klebuc J. in Englund v. Pfizer Canada at paragraph 41 are appropriate: "a stay order in these circumstances would amount to an abdication of this Court's responsibility to persons within its jurisdiction.""
An opt in national class was certified in Saskatchewan in Frey v. BCE, 2007 SKQB 328, the system access fee litigation.
Alves v. My Travel Canada Holidays Inc., 2007 OJ 4237: The court agreed to allow the Merchant Law Group to discontinue this Ontario action on the basis that the plaintiffs preferred to proceed in "no costs" Saskatchewan, but awarded costs of $12,000 plus disbursements against the plaintiffs (short term pain for long term gain?).

"JUST WHEN I THOUGHT I WAS OUT, THEY PULL ME BACK IN!"
Like the Godfather, Chief Justice Winkler isn't going to get away from class actions that easily. In one of his first decisions issued after his elevation, the Chief granted certification in the VISA foreign exchange action Cassano v. TD Bank, 2007 ONTCA 781, overruling two lower court decisions.
The Court made a number of interesting comments in certifying the action.
On the necessary elements of the cause of action: "In my view, the motion judge fell into error in concluding that the damages assessment flowing from the alleged breach of contract in this case would require an individual assessment of cardholder behaviour. In arriving at this conclusion, the motion judge relied on the approach to assessing damages that applies in cases where the defendant repudiates a contract that has alternative modes of performance...I am of the view that this principle for assessing damages has no application to the case at bar because the defendant did not have alternative modes of performing the contract...The terms of the Cardholder Agreement do provide the defendant with an option of disclosing fees and amending the agreement. They do not, however, provide the defendant with an option of presenting cardholders with a hypothetical choice of asking what they would have done in the event that disclosure of certain fees had been made retroactively in accordance with the terms of the Cardholder Agreement. The motion judge fashioned such an option, and in so doing, he engaged in the tort-like approach to assessing damages... In other words, the motion judge asked what would have happened if the defendant had not breached its contractual obligations, rather than asking whether the defendant had alternative means of complying with its existing contractual obligations. Thus, I do not accept the motion judge’s conclusion that a determination of compensatory damages in this case is an unmanageable prospect because of a need to assess how individual cardholders would have behaved had they known of the allegedly undisclosed fees."
On the potential for aggregate damages: "In my view, this is a case where the common issues trial judge could find, based on a review of the evidence, that it is appropriate to conduct an aggregate assessment of monetary relief under s. 24 of the CPA, as was contemplated by this court in Markson, supra. Alternatively, even if the trial judge were to conclude that an aggregate assessment of damages is inappropriate, the nature of the claim asserted is such that the provisions of the CPA might well be utilized so as to make a class proceeding under the statute the "preferable procedure for the resolution of the class members’ claims...In my view, there is a "reasonable likelihood" that condition (c) [of the aggregate damages section] would also be satisfied. [E]stablishing the extent of TD’s liability does not require making individual inquiries of cardholders to determine what they would have done if they had known of the fees. Rather, the aggregate of TD’s liability may reasonably be expected to be capable of proof by resort to TD’s records of the amount of fee income it collected during the relevant time frame...Condition (b) remains to be considered. In Markson, Rosenberg J.A. concluded that this condition is satisfied where potential liability can be established on a class-wide basis, but entitlement to monetary relief may depend on individual assessments. In the present case, if a finding were made that there had been a breach of contract in relation to the charging of the fees, there would be no "questions of fact or law other than those relating to the assessment of monetary relief" remaining to be determined. The finding that there had been a breach of contract would make all such fees improper."
On the argument that the cost of individual assessments would overwhelm the damage claim by an individual: "[T]he only argument offered by TD ...related not to the inapplicability of s. 24(1)(b) but rather to the costs associated with determining quantum by checking individual records. ... The economic argument advanced by TD ignores the fact that the damages calculation would only be necessary if TD is found to have breached the contract with its cardholders. Therefore, the essence of TD’s argument is that the recovery phase of the litigation, subsequent to a finding of liability, will cause it to incur significant expense. It would hardly be sound policy to permit a defendant to retain a gain made from a breach of contract because the defendant estimates its costs of calculating the amount of the gain to be substantial. A principal purpose of the CPA is to facilitate recovery by plaintiffs in circumstances where otherwise meritorious claims are not economically viable to pursue. To give any effect to the economic argument advanced by TD here would be to pervert the policy underpinning the statute....So too in this case, the trial judge may find it possible to resort to ss. 24(2) and (3) of the CPA in order to fashion a remedial order that avoids potential costs and inefficiencies that might arise from an attempt to determine the quantum of damages on an individual basis. Further, the class here is more limited than in Gilbert or Markson in that it does not include all TD Visa cardholders, but only those who used their cards for foreign currency transactions. In this case, the effect of the restrictive definition of the class, combined with the common issue of breach of contract, is that if the common issues judge decides that the imposition of the allegedly undisclosed fees was a breach of contract, then the defendant’s liability will extend to each member of the plaintiff class. Even in the event that a trial judge were not prepared to rely on ss. 24(2) and (3) to fashion a remedial order in this case, I note that the combined operation of ss. 24(4), (5) and (6) of the CPA authorize the court to require that class members submit individual claims in order to give effect to an aggregate award of damages....The court thus has at its disposal mechanisms for receiving individual claims in order to give effect to an aggregate damages award in a case where the quantification of damages turns on an assessment of documentary, rather than testimonial, evidence. For these reasons, in my view, the question of whether the damages can be assessed on an aggregate basis raises an acceptable common issue."
Beyond a liberal approach to aggregate damages the Court also picked up on the simplifying power of s.25 of the Ontario Act (which the BCCA discovered 6 years ago in Nanaimo Immigrant Settlement Society v. BC): "[A]lthough much of the focus of the argument on the motion below and the appeal in this court focused on the provisions of the CPA that permit an aggregate assessment of damages, it must be noted that the certification decision does not necessarily turn on whether damages can be assessed on an aggregate basis. Indeed, assessing damages on an aggregate basis is usually the exception to the general rule in class proceedings, in that it is akin to determining the whole of the litigation through the common issues trial. While the common issues trial is obviously an essential component of a class proceeding, it is not the whole of the proceeding. The statute is a powerful procedural mechanism that permits the court to take a variety of approaches in resolving the claims of class members....Therefore, what is called for in addressing the preferable procedure requirement is to look not just at the common issues trial, but at the other procedural options for conducting the class action litigation pursuant to the CPA. In this regard, I note that s. 25 of the CPA confers broad jurisdiction on the common issues trial judge to fashion procedures to be followed where, among other things, damages cannot be assessed in the aggregate."
On making a defences a common issue: "In my view, it is generally only appropriate to include such defences as common issues when they rise to the level of making a subclass necessary under s. 5(2) of the CPA. Otherwise, setting out defences as common issues has the inherent risk of compromising the defendant’s position at the common issues trial. Common issues are not intended to supplant pleadings. Moreover, the defendant at the common issues trial will unquestionably raise the defences that are also common by way of response to the allegations contained in the common issues."

CARRIAGE BATTLES
Joel v. Menu Foods : The National Consortium (of which the writer is a member), first established that the court has jurisdiction to hear carriage prior to certification (2007 BCSC 1248), and then won carriage itself (2007 BCSC 1482) against the Merchant Law Group. The court agreed that in the context of this class action "less was more", and that the Consortium's plan to pursue the most exposed defendants first was the proper approach in terms of speed and maximizing the prospects for certification.
Whiting v. Menu Foods Operating Limited Partnership, [2007] O.J. No. 3996: The National Consortium also won carriage in Ontario. The court found that the Consortium had more experience and Ontario presence. The court also favoured the streamlined approach favoured by the Consortium. Notably, the court said that the comparison of the pleadings should be on the basis originally filed: "The disposition of the carriage motion should be based on the Powell Action as originally pleaded. Otherwise, this criterion would be without meaning as it is always open for counsel to amend their claims based on the more com-prehensive and well-researched pleadings by competing counsel that demonstrates a higher degree of preparation."
Sirois v. Menu Foods Income Fund (500-06-000396-073, Nov 9, 2007): The National Consortium won carriage in Quebec. The court found that an earlier found action by the Merchant Law Group was a nullity, having sued a trust rather than a proper legal entity. The court also found that there was some flexibility in the "first to file" rule to ensure that class members would not be prejudiced.
H.P. Management Inc. (c.o.b. Greensleeves Pub Lounge and Restaurant) v. Newfoundland and Labrador (Department of Finance), 2007 NLCA 65: This was an application for leave to appeal and an appeal by Greensleeves from an order granting carriage of a proposed tax recovery class action to Sundance. The lower court noted that Sundance had been paying the impugned tax for a longer period of time. The lower court also preferred the litigation plan prepared by Sundance. Finally, the lower court noted that Greensleeves had commenced its action 15 days before Sundance's, but found this did not result in the significant advancement of Greensleeves' action over Sundance's action.
The Court of Appeal held that the order from which Greensleeves sought to appeal was interlocutory in nature, as it did not determine or terminate Greensleeves' claim. As such, leave to appeal was required. Leave was granted, but the appeal was refused.
The Court of Appeal found that the lower the court's factual error in suggesting that Klein Lyons was willing to help Sundance as well as Greensleeves was not sufficient grounds for appeal. Greensleeves had failed to show how Klein Lyons support would be helpful or necessary.
On the relevance of Sundance having paid the tax for a longer period, the court stated: "I agree that, given the nature of the claim, the historical perspective of one of the plaintiffs would be of limited assistance. It would appear that the claim, which involves a constitutional challenge to the imposition of the tax, would be determined largely on the basis of documentary evidence and judicial authority."
As often seems to be the case, the court was reluctant to focus directly on the experience or quality of counsel (although the author submits that this is where any rational client would focus its attention): "Further, Greensleeves submitted that the Trial Division judge erred by giving no weight to the fact that the senior partner in O'Dea Earle had experience in constitutional litigation, including two constitutional law cases argued before the Supreme Court of Canada. Counsel did not submit that O'Dea Earle had particular expertise in the area of tax law as a constitutional issue. The principles relevant to direct and indirect taxation and their implications in the constitutional context do not comprise a novel, or particularly unusual, area of law. Indeed, the division of powers and related legal principles are fundamental to Canada as a federal state, with every lawyer being required to have at least some facility with and understanding of these constitutional law principles.. Green Sleeves pointed to the experience of counsel as a relevant consideration in Ricardo v. Air Transat A.T. Inc.... However, I would distinguish that case on the basis that it dealt with issues arising under the Warsaw Convention, an area involving international law where the experience and special expertise of counsel may be relevant considerations in assessing the comparative advantage of one plaintiff over another."
The Court of Appeal relied primarily on the strength of the litigation plan: "[The lower court] was impressed with the fact that Sundance Saloon's plan reflected initial forethought and prudent planning, and that Sundance Saloon had a realistic and reasonable understanding of the process and time expectations, and was concerned with the efficient expenditure of resources...This is an appropriate approach to employ in determining which of the plaintiffs should be granted carriage of the proposed class action. The Trial Division judge's assessment of the litigation plans, for the purpose of considering the relative merits of each plaintiff in order to choose the plaintiff that will carry the proposed class action, was a valid exercise of his discretion."

TMJ IMPLANT CLASS ACTIONS
Drady v. Canada (Minister of Health), [2007] O.J. No. 2812: The feds sought to bring third party proceedings against the TMJ manufacturers. There was a motion by the third parties in each of the actions to strike the third party claims on the ground that it was plain and obvious that the Crown could have no right to contribution from them. The court refused to grant this motion stating: "In view of the words of section 1 [of the Negligence Act] and the traditional terminology it employs, I believe the interpretation of the statement of claim understood by counsel for the Crown is more than reasonable. The plea that the Crown is severally liable for 100 per cent of the damages claimed - damages for virtually every conceivable form of compensable loss - fits fairly and squarely within the language of the section and says nothing to exclude rights of contribution in the event that the Crown could establish that one or more third parties also contributed to the injury and losses suffered by the plaintiff."
This finding was made notwithstanding some clever manoeuvring by Plaintiff's counsel during the hearing: "Very much to my surprise, the question of interpretation was raised yet again on the third day of the hearings when Mr. Legge's co-counsel - Mr. Baert - began his submissions on the motion to sever, or stay, the third party proceedings. Mr. Baert indicated that, if the plaintiff was unsuccessful in persuading the court that no other person contributed to the damages claimed, he supported the position of the third parties that the plaintiff's claim would then be limited to the amount for which the Crown could not obtain contribution from any third parties who might be found to have contributed to the plaintiff's loss. When I queried whether this was consistent with the position taken by his co-counsel two days earlier, Mr. Baert handed me a document signed by each of them which stated, ambiguously, that the plaintiffs claimed only for the damages that are wholly attributable to the defaults of the Crown. Notwithstanding the belated support given to the third parties by plaintiff's counsel, I continued to be inclined to dismiss the motion by the third parties on the ground that it is not plain and obvious from the statement of claim that the Crown will have no right to contribution. I am satisfied that the pleading is, at the best, ambiguous and that the Crown is entitled to have the position clarified before the proceedings go further. The protestations of counsel for the third parties that the pleading was crystal clear were not persuasive given the initial confusion about the meaning they attributed to it, and the last-minute conversion of plaintiff's counsel."
There were also motions by the third parties and by the Crown, to strike the statement of claim and, in the case of the third parties, the third party claims against them on the basis of what has been described as the "Ragoonanan principle". The court dismissed on this ground as well stating: "The substance of the plaintiff's claims is a failure to regulate. Under the FDA, and the regulations, Health Canada is to regulate devices on a case-by-case basis. Its alleged failure to regulate must be understood in this context. As in Attis, the liability of the Crown for failing to regulate can only be considered vis a vis particular devices and their manufacturers or vendors. The pleading is, therefore, defective in that it relies on alleged regulatory facts that relate only to one device - the Vitek Proplast TMJ implant - and there is, moreover, no plaintiff who claims to have received it. I am satisfied that, as stated in the Crown's notice of motion, the following ground for an order striking the statement of claim is compelling...There can only be a reasonable cause of action against the Attorney General in regulatory negligence for failure to regulate a product for which there was a factual connection between the representative plaintiff and the specific product alleged to have caused damage. The plaintiff in this case does not know what product was implanted into his TMJs and has not established any factual connection with a specific product. The Attorney General cannot defend an action brought by representative plaintiff who is unable to provide facts supporting his connection with a specific product."
There was a motion by the plaintiff to sever, or stay, the third party claims until proceedings between the plaintiff and the defendant had been disposed of. This was rendered moot by the decision on the case against the Crown below, but the court stated: "In the submission of Mr. Baert, the participation of the third parties in the action between the plaintiff and the defendant is not required and it will unduly delay and complicate the proceedings. He referred me to three cases in which judges of this court have suggested that third parties should not normally be involved in certification motions and have doubted whether they would have standing for this purpose... I am in general agreement with the views of the learned judges in those cases but see no reason why I should go further at this stage and require a separate action for contribution to be brought, or order a stay until the final disposition of the claims of the plaintiff against the defendant. The question whether these more extensive orders should be made should, I believe, most appropriately be left until any motion to certify the proceedings has been heard. If the proceeding is certified, the Crown might well seek to increase the number of potential third parties and there could be issues affecting its ability to do this. In consequence, if the question was not moot, I would be inclined to make an order staying the third party proceedings only until the final disposition of the motion to certify the proceedings, subject to any earlier order of the court. I would have granted the motion to this extent.
Finally, and most importantly for the future conduct of the action, there was a motion by the Crown to strike the statement of claim in Drady on the ground that, independently of the Ragoonanan principle, it disclosed no reasonable cause of action for negligence, breach of fiduciary duty or a violation of section 7 of the Charter: This substantive motion was granted following Attis and other recent case law. This decision is under appeal, and Kirk Baert is guaranteeing victory to anyone who will listen.
Taylor v. Canada (Minister of Health), 2007 OJ 3312: The key battleground in the certification motion in this related TMJ action involving different implants was whether Canada owed a duty of care. The court distinguished Drady, and found that it was not plain and obvious that there could be no duty, stating: "Where, however, Health Canada takes steps to implement the policy in the FDA by purporting to exercise its statutory powers, it will be acting operationally and " may be liable for the manner in which it executes or carries out the policy"
The class period was amended forward to reflect that there were no allegations of negligent operational conduct until May 1983.
An "everyone implanted" definition was approved. The court rejected the allegation that the definition was too broad stating: "In the majority of cases that are certified under the CPA - other than those where the statutory conditions for an aggregate assessment are satisfied - a determination whether each class member has suffered damages, and the quantum of damages, will not be made at a trial of common issues. The possibility that some class members will be unable to prove damages almost invariably exists. Apart from anything else, this is the inevitable consequence of the continued insistence that class criteria cannot incorporate matters that go directly to the merits of the members' claims." (at para.62)
The court rejected the suggestion that the claims were large enough to support individual actions: "Nor do I accept that the CPA is now to be confined to cases where the amounts claimed in respect of class members are small. In particular, I do not believe any such conclusion is required, or supported, by the inference that the Chief Justice was prepared to draw in Hollick (at para. 33) that, on the facts of that case, class members with substantial claims were likely to find it worthwhile to bring individual actions. The fact that, in the more than 20 years since the Vitek TMJ implants began to be imported, and distributed, in Canada, some 30 or so individual actions by members of a class consisting of 200 or more persons have been commenced does not exclude the likelihood that the goal of access to justice will be achieved to a substantial extent if this proceeding is certified."
The court confirmed that it can order a reference under s.25(1)(b) of the Act over the objection of a defendant. (para.89).
The court rejected a limitations attack on the plaintiff stating that there were allegations of continuing breaches of duty (para.98). The court also declined to impute knowledge to the Plaintiff that may have been gained by her solicitors as a result of earlier litigation against the manufacturer (para.97).
Leave to appeal the Taylor decision was denied: (December 10, 2007) (Ont.Div.Ct): The Divisional Court found that there were not conflicting decisions on the legal principles, and the Drady case was sufficiently focussed not to engage broader policy concerns.

SETTLEMENTS
Bellaire v. Daya, Dec 12, 2007 (Ont.S.C.): Court approved settlement in this "unnecessary surgery" action, subject to certain changes. The court confirmed that while the requirements for certification are the same as in the settlement context, they are "less rigorously applied". The settlement involved payments of approximately $35,000 base amount per plaintiff. The court required that the "additional compensation" award be increased by $10,000. The court noted that none of the representative plaintiffs were affected by this cap, and hence there was an appearance of a conflict of interest. The court also required that further efforts be made to locate certain class members. The court declined to make a special award in favour of the class representatives, saying that there was no extraordinary work done. The court approved a "payment into court" mechanism for children, and for awards to mentally incapable people to be paid to representatives. The court approved a contingency of 18% of the recovery, and remarked that contingencies should generally be lower in the class action context than in individual actions because (1) class actions are to be a "less costly way for plaintiffs to pursue their claims", and (2) the global amount of the settlement is generally higher in class actions. One of the reasons the 18% fee was approved was the additional risk assumed by class counsel in indemnifying the representative plaintiffs for costs. The court noted that this saved the $990,000 that would otherwise have been payable to the Class Proceedings Fund (para.81)
Currie v. McDonald's Restaurants of Canada, 2007 OJ 3622: Settlement of this action for an additional $1 million Canada-only prize was approved. The court also finally blessed an earlier settlement with the marketing firm, which had been held in reserve pending resolution of the certification question as against the remaining defendants. On fees, the court approved a fee that was essentially 25.4% of the judment+costs awards. The court ensured that there was no double recovery for the firm in relation to disbursements. The court did allow a $1000 payment to the representative plaintiff stating "It has been repeatedly emphasised in the past that representative plaintiffs will be awarded compensation for their contribution to the litigation only in exceptional circumstances. The general principle is that they share equally in the benefits recovered and are not rewarded to a greater extent than other class members. The amounts requested in this case are, however, small and I view them as constituting a token honorarium rather than as quantum meruit compensation for the considerable time and efforts Mr. Currie has devoted to advancing the claims of the class in the litigation. As such, I have no objection to their payment as proposed."
Lacroix c. Société Asbestos Ltée, 2007 QCCS 4917: Pension administration action certified and settled. A related action was discontinued: Lacroix c. Syndicat des travailleurs horaires de l'amiante CSN inc., 2007 QCCS 4870. The court held that notice to the class was not required, as the members of the class already appeared to be well informed of the status.
Rideout v. Health Labrador Corporation, 2007 NLTD 150: A settlement paying $$450.00 compensation to Uninfected Patients and $100.00 compensation to Uninfected Spouse was approved in this hepatitis scare case. Infected person were given a period in which to file an action for damages (although none were expected based on the testing to date). The court also approved a fee of $93,000 plus disbursements and taxes, which amounted to 31% of the amount the defendant was responsible to pay under the settlement.
CSL Equity Investments Ltd. v. Valois, [2007] O.J. No. 3932: The court approved the pension surplus agreement arrived at between the parties. The court approved a 4.6% contingency agreement that translated to a 1.6 multiplier at $1.7 million.
Ironworkers Ontario Pension Fund v. Research In Motion Ltd., [2007] O.J. No. 4535 (S.C.): Settlement approved of this action involving option practices. The case was technically a Rule 10 representative action rather than a class action.

JURISDICTIONAL CHALLENGE
Desjean c. Intermix Media, Inc. (C.F.), [2007] 4 R.C.F. 151: The defendant, an American company, was accused of breach of the Competition Act by attaching spyware and adware to Internet sites without informing consumers. The court found that it had no jurisdiction over the case because it n there was an insufficient connection between Canada and the defendant or the subject matter of the litigation. The defendant had no presence in Canada.

CLASS CLAIMS DISMISSED IN WHOLE OR PART
Option Consommateurs c. Banque Nationale du Canada, 2007 QCCS 4626: Mortgage prepayment case dismissed based on the cause of action requirement.
Gervais c. Association canadienne de protection médicale, 2007 QCCS 4564: This action was dismissed on the grounds that the doctor had tacitly confirmed the challenged contract.
Sander Holdings Ltd. v. Canada (Attorney General), 2007 FCA 322: The court affirmed the dismissal of this class action.
James v. BC, 2007 BCCA 547: The court upheld in part the dismissal of this negligence claim on res judicata grounds. There had been an earlier representative action that was dismissed. The court found that the BC provision in Rule 5(13) requiring leave to enforce against a non-represented party in a representative action did not interfere with estoppel, it only gave an ability for an alleged member of the group to dispute the appropriateness of enforcement. However the earlier "class" did not include non-union members, and as such the decision should not be enforced against them. That part of the claim was allowed to continue.
Kerr v. Danier Lanier, 2007 SCC 44: The Supreme Court dismissed the class' appeal on the merits. The court then moved on to costs, and found that there was no basis to invoke s.31 of the Ontario Act to relieve the plaintiff from costs, stating: "It has not been established that this is a "test case" in the conventional sense of a case selected to resolve a legal issue applicable to other pending or anticipated litigation. Nor have the appellants raised a "novel point of law". As we have seen, the heart of the case is simply a shareholder dispute over a lot of money requiring the application of well settled principles of statutory interpretation to particular legislative provisions. This is the usual fodder of commercial litigation (see generally Gariepy v. Shell Oil Co. (2002), 23 C.P.C. (5th) 393 (S.C.J.), aff’d [2004] O.J. No. 5309 (QL) (Div. Ct.), at para. 8; Moyes v. Fortune Financial Corp. (2002), 61 O.R. (3d) 770 (S.C.J.), at paras. 4-5)...."We are certainly not dealing with people on either side who are historically disadvantaged. Nor, as the Court of Appeal noted, "is it a contest characterized by significant power imbalance"...Though many Canadians are investors and the resolution of the present dispute will affect future actions for prospectus misrepresentation, the Court of Appeal rightly concluded that this is, in essence, "a commercial dispute between sophisticated commercial actors who are well resourced" ... If anything, converting an ordinary piece of commercial litigation into a class proceeding may be seen by some observers simply as an in terrorem strategy to try to force a settlement. Be that as it may, Mr. Durst was well aware that as a representative plaintiff he ran the risk of being held solely responsible for the defendants’ costs if the action failed. He gambled on his interpretation of s. 130(1) and lost....Nor do general concerns about access to justice warrant a departure from the usual cost consequences in this case. While I agree with counsel for the appellants that "[a]n award of costs that exceeds or outweighs the potential benefits of litigation raises access to justice issues" ..., it should not be assumed that class proceedings invariably engage access to justice concerns to an extent sufficient to justify withholding costs from the successful party. I agree with the observation of Nordheimer J. in Gariepy that caution must be exercised not to stereotype class proceedings. "[T]he David against Goliath scenario" he writes, "does not necessarily represent an accurate portrayal of the real conflict" (para. 6). Class actions have become a staple of shareholder litigation. The Court of Appeal took the view that this case is a piece of Bay Street litigation that was well run and well financed on both sides. Success would have reaped substantial rewards for the representative plaintiff and his counsel. He put the representative respondents to enormous expense and I see no error in principle that would justify our intervention in the discretionary costs order made against him by the Court of Appeal."
McMillan v. Canada Mortgage and Housing Corporation, 2007 BCSC 1475: Certification of this leaky condo lawsuit was dismissed on cause of action grounds.
KRP Enterprises Inc. v. Haldimand (County) [2007] O.J. No. 2967: The Amended Statement of Claim proposed a class proceeding on behalf of a Caledonia business class and a property owners class in nuisance against the defendant based upon the closure of Argyle Street by a group of protestors, not parties to the action. The court found "The plaintiffs/respondents have been unable to demonstrate or to implicate any positive duty upon Haldimand to remove the protestors and open Argyle Street"
Sutherland v. Hudson's Bay Co. [2007] O.J. No. 2979: Pension case dismissed.

CLASS CLAIMS SUCCESSFUL
Riendeau v. Brault & Martineau Inc. (October 17, 2007, 500-06-000177-028) (Que.S.C.): In this false advertising case, the court found that the class had not been properly defined in the first place in that it did not cut off the class at a certain set date. The court held that this undermined the opt out right. The better procedure was for the plaintiff could apply to amend the class periodically. The case was dismissed for the front end of the class because no evidence was proffered as to the nature of the advertising during this period. The court did find that the other advertisements did violate Quebec consumer credit disclosure laws. However, the class had failed to prove any prejudice caused by the ads, so no compensatory damages were award. The court held that exemplary damages could be paid under the relevant statute even if no compensatory damages were awarded. Damages of $2 million were awarded. The court held that awarding $100 to each of 200,000 class members would have been excessive. The distribution of this sum was left to a later hearing.
Sharbern Holding Inc. v. Vancouver Airport Centre Ltd. 2007 BCSC 1262: The defendant developed two hotels. The class investors in one hotel alleged that there were conflict disclosure issues. At the common issues trial, the court agreed that there was insufficient disclosure of the conflict of interest.
Johnson v. British Columbia, 2007 BCJ 2092: The court found that judicial review should be granted in relation to WCB's interest calculation policy.
Coll v. Syndicat des cols bleus regroupés de Montréal (SCFP 301), 2007 QCCS 4361: The class was successful in this illegal strike class action. The court ordered $25 to each class member, but encouraged the parties to agree to a cy pres distribution. A final order on distribution would be made at a later date.

CONSUMER PROTECTION ACT TRANSITION CONSIDERED
Seidel v. Telus Communications Inc., S.C., Masuhara J., Doc. 2007 BCSC 1092: The plaintiff commenced an action in January 2005 in which she made claims based on the Trade Practice Act and the Consumer Protection Act. Before a class action certification hearing, the defendant applied to strike out those claims on the basis that the TPA and the relevant sections of the CPA were repealed and replaced by the Business Practices and Consumer Protection Act. The court granted the application stating concluding that "the operation of the repeal of the TPA and of the relevant portions of the CPA and replacement by the BPCPA on July 4, 2004, that on January 25, 2005, it was not possible for the plaintiff to bring the claims that they did based on the TPA and the CPA."

AGRUPUR FALLOUT
Desgagné c. Québec (Ministre de l'éducation, du loisir et des sports), 2007 QCCS 4443: Post-certification, the Plaintiff applied to add additional representatives in this "aixelsyd" treatment class action. The court agreed that the new representative could not simply be added without review, but that the court should keep in mind that the action had already been certified. The court approved the addition of the new plaintiffs. The court did agree to move the front end of the case forward to make the case more manageable. The court dismissed the case against the school boards for whom there were no representative plaintiffs.

PENSION CASE CERTIFIED
Syndicat général des professeures et professeurs de l'Université de Montréal c. Gourdeau, 2007 QCCS 4531: The court rejected the allegation that the case raised only an arbitrable issue

APPLICATION TO STRIKE AMENDMENT DISMISSED
Aubichon v. Canada (Attorney General) 2007 SKQB 406: In this Metis school abuse class action, the proposed class sought to amend their claim to add the Province of Saskatchewan without leave. The court held that at a minimum, the rules allowed the Province to strike the amendment if it was improper. However, the court held that Saskatchewan's limitation argument was based on the wrong section of the Act, as no limitation period had expired prior to the filing of the original claim.

CHICKENS AND EGGS
Birrell v. Providence Health Care Society (c.o.b. Providence Health Care), 2007 BCCA 573 and 574: In the first decision, the court determined that leave to appeal was required from an order of a case management judge granting plaintiff's application to add two parties as plaintiffs, and which dismissed the defendant's application to have the action dismissed under B.C.'s summary trial rule. In the second decision the plaintiffs sought an order that the certification hearing be allowed to proceed notwithstanding the efforts being undertaken to seek leave. The court refused, deferring to the decision of the case management judge that had allowed the preliminary motion to proceed in advance of certification..
Quesnel v. KPMG, s.r.l., 2007 QCCS 3990: The court allowed the defendant to examine the proposed rep plaintiff in advance of certification in relation to the class definition, the acquisition of the relevant investment, and when the plaintiff realized there was an problem.
TCE CONTAMINATION CERTIFICATION UPHELD
Windsor v. CPR, 2007 ABCA 294: The Court of Appeal affirmed certification. The court did alter the class definition slightly stating: "The Appellant argues that the definition of the class is merit based because it refers to all those owners whose land is "affected" by TCE. Merit based classes are unacceptable, because they are circular: only those with valid claims are members of the class, and only members of the class have valid claims... The word "affected" arguably implies at least an element of causation, and even possibly implies a successful claim. In this case, the class can be appropriately defined without the use of this word. The appeal should therefore be al-lowed to the extent that "affected" should be removed from the class definition."
The court approved the time limited definition stating: "It was not unreasonable for the chambers judge to define the class with reference to the potential expiry of the limitation period." The court also approved the geographic boundary of the class action: "The representative plaintiffs are entitled to define the class in such a way that the litigation is manageable".
The court rejected the suggestion that the inclusion of former and current owners created a conflict stating: "Any conflict of interest between the members of the class, and any prospect that the defendant might have to pay the same damage more than once, should be eliminated because these issues will all be tried individually. This concern is not sufficiently serious to prevent certification of the action."
The court dealt with the suggestion of insufficient evidence stating: "There are some actions that are purely speculative, have no air of reality, or are doomed to fail, and they will not be certified even if the pleadings disclose a cause of action. On the other hand, if the plaintiff can show an arguable case, then there is sufficient merit for certification."

HISLOP DISTRIBUTION ISSUES ADDRESSED
Hislop v. Canada, 2007 OJ 3603: The court declined to order a monitor to manage the judgment distribution, finding that there was no evidence of misconduct on the part of the defendant. Tjhe court also declined to order that communications cease with class members. The court stated: "This Court has no jurisdiction to issue what, in effect, would be a mandamus order compelling the Minister of HRSDC act in the exercise of his legislatively mandated duties. These powers are exclusively within the jurisdiction of the Federal Court. The procedural provisions of the Class Proceedings Act, on which the class members rely, do not oust the exclusive jurisdiction of the Federal Court to adjudicate on the statutory scheme contemplated in the CPP, as amended to reflect the disposition of Charter of Rights and Freedoms issues raised and disposed of at the trial, Ontario Court of Appeal and Supreme Court of Canada"
The court did confirm the agreement in relation to communication to class counsel of payments: "HRSDC concedes that the plaintiffs' counsel, REKO, requires transparency on the payments of arrears in order to collect its fees. HRSDC is prepared, for the duration of the claims period, to provide quarterly reports detailing the status of the completed applications received from class members"
The court confirmed that interest was payable on the award.

LEAFS TO APPEAL
MBNA Canada Bank v. Stephen Markson, 2007 CanLII 50082 (S.C.C.): The application for leave to appeal filed by MBNA was dismissed by the Supreme Court of Canada. The certification order of the Court of Appeal stands.
Leave to appeal a decision removing class counsel was granted: Richard v. BC (CA035331, Nov 9, 2007)
Hurst v. Armstrong & Quaile Associates Inc. [2007] O.J. No. 3267: Leave to appeal a refusal to dismiss the claim was granted.
Ruddell v. BC Rail Ltd., [2007] S.C.C.A. No. 354: The BCCA tossed this case on the grounds that arbitration was the preferable procedure. The SCC denied leave.
Plourde v. Service_Aérien F.B.O. Inc., 2007 SCCA 400, Croteau v. Air Transat A.T. Inc., [2007] SCCA 401: Leaves denied in this effort to argue that the Quebec Court of Appeal erred in ruling that Montreal Convention does not provide for compensation for purely psychological injury sustained by passenger in airplane accident.
Toyota Canada Inc. v. Billette, [2007] S.C.CA 404: Leave denied in this effort to challenge Quebec Court of Appeal's decision that the action filed did not stray too far from the scope of the original certification decision.
Parsons v. Coast Capital Savings Credit Union, 2007 SCCA 331: Leave denied in this effort to challenge certification of a criminal interest rate action.
Roach v. Canada (Minister of State, Multiculturalism and Citizenship), [2007] O.J. No. 3897: Leave refused of decision refusing to strike out this "loyalty oath" challenge.
Merchant Retail Services Ltd. (c.o.b. Household Finance) v. Option Consommateurs, [2006] S.C.C.A. No. 491: Leave refused on merits decision in financing charge class action.
Merck & Co. inc. c. Hubert, 2007 QCCA 1310: Leave refused from decision declining to stay and transfer class action to Montreal. The court emphasized that pre-certification appeals would only be granted leave in exceptional circumstances.

HOSPITALIZATION CASE CERTIFIED
Phaneuf v. Ontario, [2007] O.J. No. 3526: Proposed class was all persons in Ontario that were detained in a detention centre or prison awaiting assessment of their mental condition. Complaint was that class was kept in jail when they should have been in a hospital. The false imprisonment aspect of the case was struck on the basis that there was a court order. The fiduciary and Charter claims were allowed to stand. The class definition was given a front end date that matched a suspension order given to a declaration issued in an earlier criminal case. It was also amended to cut off on a going forward basis to the date of the certification order, rather than being open ended.
The defendant challenged the Plaintiff's mental capacity to be a representative. The court rejected this stating: "March 2007 indicates that she is "maintaining" psychiatric stability and "continues to develop insight and for the last four months has been working with a therapist closer to her home". There is no evidence that her condition has deteriorated nor that she is not capable of instructing counsel. She is a well-educated person. I have reviewed the transcript of her cross-examination and she appears coherent and has the average knowledge of the litigation process one would expect of any ordinary citizen in the circumstances. As a general rule, parties in a litigation such as this fully rely on their counsel to provide them with the information necessary to make decisions as the litigation progresses. There is no evidence the plaintiff is less knowledgeable than the average litigant. I keep in mind the fact that the plaintiff is represented by competent and experience counsel acting with the full support of a well established law firm"

CLASS EXPANSION ORDER UPHELD
Brochu v. Société des loteries du Québec (Loto-Québec), 2007 QCCA 1392: The court uphold the expansion forward of the group, but with a slight adjustment to the end date to bring it back to the date of the lower court's decision.

AMENDMENTS GRANTED
Wiggins v. British Columbia, [2007] B.C.J. No. 2459: The court granted leave to amend the claim in this proposed school fee action.

PAY DAY LOAN CLASS ACTION UPDATE
Tracy v. Instaloans Financial Solutions Cent, 2007 BCCA 481: The court removed the Mareva injunction from the individual plaintiffs, but maintained it for the corporate defendant.

CONFIDENTIALITY ACTION DISMISSED
Cole v. Prairie Centre Credit Union Ltd., 2007 SKQB 330: The court found that this action should be dismissed as it did not disclose a cause of action. There was no general fiduciary duty owed by the bank to customers. The court found that the claim failed to plead any facts that would support a negligence claim. There was no wilful conduct alleged that would create a breach of privacy claim. There was no evidence of the existence of a class: "Here, Ms. Cole and Ms. Pike did not approach the defendant credit union and advise it that they had any concerns. Instead, Ms. Pike called her counsel and testified that she was advised to remain silent. Shortly after, the owner of the computer advised Ms. Pike that it was destroyed. As such, it is the plaintiffs' evidence that only they, their husbands, and Pike's parents have this knowledge. Only six or eight people know of this matter. No one, however, has suffered a loss."
The court found that Ms. Cole was not a suitable plaintiff: "She no longer resides in the community where the cause of action arose and her dealings with the community, by her own admission, are limited. When she first became aware of the lost computer she did not contact the defendant credit union in an attempt to ascertain what happened or to prevent a loss if there was a loss. The only step that was taken was for her to obtain legal advice. One again questions her claim to represent the best interests of all the members. She has also not undertaken any effort to contact any further members or garner support for this action. Lastly, the litigation plan is generic at best with no thought for detail."

PRODUCTS LIABLITY CASE BACK ON TRACK
Sorotski v. CNH Global N.V., 2007 SKCA 104: The Court of Appeal found that certification judge erred in finding the proposed class action did not meet the certification requirements. The class proceeding proposed by the appellant disclosed a cause of action in negligence and in relation to breach of warranty under The Farm Implements Act: "In more specific terms, several courts have indicated that, when considering whether the pleadings disclose a cause of action for purposes of certifying a class proceeding, a judge should read a statement of claim with a view to accommodating inadequacies arising due to "drafting deficiencies"."
The court found that the class definition did not require a determination of the merits: "[T]he Statement of Claim does not identify the proposed class in the way explained by the certification judge. Rather, paragraph 3 of the Claim describes the class as "Canadian purchasers of Case Quadtrac Model 9370 tractors having tracks that developed severe cracks, fraying and shredding." This description does not involve the sort of circular definition that some authorities, such as Chadha v. Bayer Inc... have described as problematic.."
The court found that the certification judge did not properly apply the common issues and preferability tests: "Mr. Sorotski argues that the certification judge erred in principle by focusing his analysis on those aspects of the claim which were not common and by over-emphasizing those issues in comparison to the issues which do affect each member of the proposed class. I agree with his submission....The judge was obviously aware of s. 9 of the Act but it is nonetheless unclear whether or how he took account of it. Section 9 specifically says that a court shall not refuse to certify a class action by reason only that damage claims will require individual assessment, the relief relates to separate contracts and/or different remedies are sought for different class members. However, the certification judge appears to have considered these aspects of Mr. Sorotski's claim, in and of themselves, as a basis for denying certification."
The respondents' cross-appeal was allowed in terms of a finding that the class's litigation plan did not satisfy the Act. The appellant was given leave to file a revised litigation plan.

AGENT ORANGE CASES
Ward v. Canada, 2007 MBCA 123: The Manitoba Court of Appeal affirmed the lower court decision accepting jurisdiction. The court found that the real and substantial connection test need not be applied if the defendant is resident in the jurisdiction, as was the case with the Federal Government. The court also found that forum non conveniens principles did not require a stay. The court noted the juridical advantages of the Manitoba Class Proceedings Act, and said that the plaintiff was entitled to pursue those benefits. The court did indicate that the Crown could renew the forum application at the certification hearing
Ring v. Canada (Attorney General), 2007 NLTD 146: The Newfoundland court has come close to certifying this proposed national opt out action. The court found that all the requirements were met, but asked for more submissions on the effect of the passage of the CPA in New Brunswick (in terms of assessing whether that was the proper forum).
The court accepted the following class definition: "all individuals who were at CFB Gagetown between 1956 and the present and who claim they were exposed to dangerous levels of dioxin or HCB while on the Base." The court stated: "The entire thrust of the Plaintiffs' Statement of Claim is that individuals were unknowingly exposed to toxic chemicals. They now seek the cost of medical testing to determine whether or not they have absorbed a dangerous dose of chemicals into their systems as a result of this exposure. They may have an uphill battle to establish entitlement to what they acknowledge may be a novel category of relief but I am not prepared at this stage to say they are not entitled to seek it as a class. The concern of the Third Parties that the first class definition may be too broad and may include individuals who have no concern about exposure may be met by adding to the first definition the words "and who claim they were exposed to dangerous levels of dioxin or HCB while on the Base." There is then a rational relationship between the stated, objective criteria of the class and the common issues. A proposed common issue seeks a determination of the minimum amount of dioxin and HCB that can cause a malignant lymphoma. All class members have a claim for the cost of testing. Each class member, whether at CFB Gagetown for one day or one year, may have the same concern about whether they are at risk of developing cancers with long latency periods and what proper precautionary steps they may take if a risk of cancer is determined early"
The court found that evidence of 18 class members diagnosed with the suspected health problems was sufficient to support certification.
The failure to name a non-resident subclass representative was not fatal, and the class was given leave to add one.
The court approved a general causation common question stating "resolution of the question of whether reception of a certain minimum dose of the chemicals may materially contribute to the risk of developing a malignant lymphoma is a substantial ingredient of each of the class members' claims, is necessary for the resolution of each class member's claim, and will move the litigation forward to a significant degree"


DEFENCE COUNSEL REMOVED FROM ACTING FOR ONE DEFENDANT
Jellema v. American Bullion Minerals Ltd., Vancouver Registry No. S066693, 2007 BCSC 1150: The defence firm Singleton Urquhart was ordered to ceasing acting for one defendant in this proposed oppression class action.

QUIZNO'S CORRECTION
There was some confusion in our last email report. There are actually two Quizno's class actions.
The case that settled is Al-Harazi v. Quizno's Canada Restaurant Corp. [2007] O.J. No. 2819. The class consisted of all persons or entities who signed franchise agreements with Quizno's between January 30, 2001 and May 26, 2006 in respect of the operation of a Quizno's submarine sandwich restaurant in Ontario, and who had not obtained a site to operate a restaurant as of the date of the execution of the settlement agreement.
2038724 Ontario Ltd. v Quizno's Canada Restaurants, 2007 OJ 2404 (S.C.J.) is the second case by franchisees for price fixing and mark-up of products.
In a related individual action Quizno's Canada Restaurant Corp. v. Kileel, 2007 OJ 3769, the court stayed a counterclaim stating: "I find on balance the unfairness and prejudice in not granting a stay of the impugned para-graphs outweighs any prejudice to the KDL Defendants. It is not in the interests of the judicial process to allow more than one proceeding to litigate the same issues arising from a common set of facts. Although the KDL Defendants say they have not been named in the Class Action, it is not unreasonable to expect, given their role in challenging Quizno's practices, that the KDL Defendants might be named if the Class Action is certified. In any event, if the Class Action is certified the KDL Defendants' claims about price fixing and unfair dealing by Quizno's will be tried."

PRICE FIXING CASE CERTIFIED
Axiom Plastics Inc. v. E.I. DuPont Canada Co. [2007] O.J. No. 3327: The court certified this action conditional on the class being narrowed to purchasers who were required by their customers to deal with the defendant. The court distinguished Chadha stating: "This case is different than Chadha, where the plaintiffs sought to rely on the passing-on of loss to indirect purchasers to establish damage. Here, the class members are direct purchasers and passing-on may be raised as a defence. Axiom does not rely on an assumption of passing-on. The possibility that the defence of passing on might prevail at trial does not mean that there cannot be some basis in fact for finding that class members suffered loss."
The court distinguished Price v. Panasonic stating: "DuPont's evidence is that it provided added value to its customers and potential customers, by, for example, assisting them with the design and testing of their products, parts and process problem solving, and part failure trouble-shooting, and that not all of its competitors did so. Its counsel appears to argue that these are tantamount to the "extras" in Price and, as in Price, this will necessitate individual determination of the "actual" and "but for" prices. The "value adds" are intangible, and some are provided to persons who are not customers. They are not comparable to those in Price."
In terms of the difficulty in calculating damages, the court stated: "I am satisfied that Ms. Sanderson's opinion provides some basis in fact that how damages, or restitutionary payments, are to be computed could, in respect of a narrowed class comprised of persons required to buy DuPont resins, constitute a common issue. With a narrowed class, it should not be difficult to establish a control group. Should the common issues judge not be satisfied that this is the case, and be of the view that the individual issues were not manageable, the proceeding could be decertified. "
The court did note that behaviour modification did not assist the Plaintiffs: "As pointed out in Chadha v. Bayer and Price, that objective can be met by the criminal sanctions provided for in the Competition Act. There was no evidence that the Competition Bureau does not pursue alleged violations."

CROCUS ACTION UPDATE
Bellan v. Curtis, 2007 MBQB 221: There were a series of preliminary motions in this action. Most notably, the Manitoba court adopted BC approach to the alleged requirement for a plaintiff with a cause of action against each defendant: "Pleadings in class actions differ from pleadings in other lawsuits in that they may assert causes of action on behalf of the class and join defendants on behalf of the class even where such causes of action extend beyond the personal claim of the proposed representative plaintiff...] As far as possible a multiplicity of proceedings should be avoided. The goal of the C.P.A. is judicial economy and access to justice. The result should be that cases are handled in the most just, expeditious and inexpensive manner possible. A requirement that there be a separate plaintiff who purchased under each of the prospectuses for the class ac-tion to proceed would not serve the purpose of judicial economy. I am satisfied that allowing a representative plaintiff to assert causes of action he does not personally have will not open the floodgates to unfocused, sector wide litigation as the court has a gatekeeper role to play at the certification stage."

AIRPORT NUISANCE DENIAL OF CERTIFICATION AFFIRMED
Citoyens pour une qualité de vie/Citizens for a Quality of Life c. Aéroports de Montréal, 2007 QCCA 1274: The majority of the court based its affirmation primarily on the vast size of the proposed class, and the complexities created as a result. The court agreed that the trial judge had the power to redefine the proposed class, but only if the judge found that redefinition was appropriate. Here the court's decision not to reformulate the group was reasonable. The court also confirmed that a defendant in Quebec is at liberty to raise additional grounds for denying certification on an appeal launched by a plaintiff.

NOTICE APPROVED IN PROPOSED SETTLEMENT
Johnson v. Bayer inc., 2007 QCCS 4176: There is a proposed settlement of this price fixing class action. Notice was approved.

MERITS APPEAL DISMISSED
Regroupement des CHSLD Christ-Roy (Centre hospitalier soins longue durée) c. Comité provincial des malades, 2007 QCCA 1068: The Court affirmed a judgment in favour of the class regarding payment of laundry expenses in long-term care facilities. The Court also found that the trial judge should have granted judgement even for those whose family did their washing.

COSTS DECISIONS
Authorson (Litigation Administrator of) v. Canada (Attorney General), 2007 ONCA 599: The court decided against making the counsel personally responsible for costs of this failed action on the merits: "We would not give effect to the Crown's request that Class Counsel be required to indemnify the Litigation Administrator and Litigation Guardian or be held personally liable for any costs assessed against them. While we found counsels' conduct in pursuing the matter following the Supreme Court's decision questionable, the trial judge accepted their arguments. In the circumstances, we are not persuaded that Class Counsels' conduct constitutes bad faith or the type of conduct which cases such as Young v. Young, ...call for as founding an order for costs against a solicitor personally."
Attis v. Canada, 2007 OJ 2990 (S.C.): The court issued its costs reasons in this unsuccessful class certification hearing. $125,000 was awarded against the representative plaintiff. Justice Winkler (as he then was) stated:
"From the factors canvassed by Rosenberg J.A., it is apparent that the "reasonable" expectations of the costs that a certification motion entails, and what a party might be expected to expend in prosecuting or defending the motion, are crucial components to consider in fixing costs. In the face of this, the plaintiffs contend that the court should limit costs on the basis that their individual claims were relatively minor in the context of the size of the potential class action. However, at the same time, they assert that their individual claims, on a go forward basis, will be foreclosed by a large adverse costs award.
The latter point has two apparent flaws. First, there has been a determination that no cause of action exists. This determination, regardless of an adverse costs award, forecloses any future individual claims. Secondly, insofar as the submission can be taken to establish that the claims made by the plaintiffs could have been feasibly pursued as individual actions, it indicates that the plaintiffs contemplated that the costs to the defendants would reflect those that would reasonably be incurred in defending a class proceeding, rather than individual actions. The simple fact is that the plaintiffs did not bring the claims as individual actions. The court must assume that the risk of an adverse costs award that is reflective of the plaintiffs' choice is a consideration that was taken into account by the plaintiffs prior to the initiation of the action as a class proceeding. Indeed, it is incumbent upon counsel to advise a potential representative plaintiff accordingly....Nonetheless the plaintiffs should not be expected to bear costs that are disproportionate in the context of the motion. As has been stated by courts repeatedly, there is a tendency on certification motions for both parties to depart from the certification test into arguments and evidence going to the merits of the action. In the circumstances of this case, costs awards in other class proceeding litigation are not useful for purposes of comparison. The duration of the case and the multitude of highly contentious case conferences and motions sets this case apart from most class action litigation.
In my view, there were strategic decisions made by both parties that increased the costs incurred prior to the certification motion. In the exercise of fixing costs, rather than assessing them, it serves no useful purpose to attempt to allocate responsibility for the added costs that adhered as a result. Canada argued that it had urged the plaintiffs to agree to argue the cause of action issue separately and in advance of the rest of the certification motion. While this is true to some extent, it ignores the reality that Canada had previously brought a Rule 21 motion on a discrete issue relating to the applicability of a settlement agreement in which the cause of action argument it was eventually successful on could also have been argued. By failing to do so at that time, it cannot rely on the argument that the plaintiffs could have avoided costs on the certification motion by agreeing to what would essentially be another "cause of action" motion. While there would obviously be merit to having an issue that might avoid unnecessary costs dealt with in isolation, both sides bear responsibility for failing to effect those efficiencies here and must, accordingly, share the consequences.
Further, there is merit to the position of the plaintiffs that there was divided success, particularly in relation to the expert expenses incurred by Canada relating to those elements of the certification test for which Canada was unsuccessful. It is implicit in this that I do not accept Canada's position that the plaintiffs would be forever unable to file a satisfactory litigation plan. That determination could not have been made on the evidence before the court and accordingly I made no such finding.
While the seriousness of the case from Canada's standpoint might justify the resources it allocated to the defence of the motion, those resources exceed what the plaintiffs ought reasonably to have expected might be incurred. In the result, a sizeable reduction to the costs claimed is in order."
People of Canada v. Envision Credit Union, [2007] B.C.J. No. 1878; 2007 BCSC 1276: The registrar determined the special costs of this failed class proceeding at $75,000 plus disbursements.
MacDougall v. Ontario Northland Transportation Commission, [2007] O.J. No. 3250: On this failed certification motion, the court awarded $135,000 against the plaintiffs. The court found that the Plaintiffs had unnecessarily run up costs by not bringing in all parties at an early stage, and not properly managing conflicts amongst the class. The court noted that the plaintiffs did not submit their own Bill of Costs against which to assess reasonableness.

PRE-CERTIFICATION DISCLOSURE DISCUSSED
Pro-Sys Consultants Ltd. v. Microsoft Corp., 2007 BCSC 1663: The Plaintiffs sought production of certain documents said to be relevant to the BC certification issues. The court declined to make such an order stating: "It appears to me that at the certification stage of a class proceeding, a party must justify the need for document disclosure. It must show that the sought-after documents would inform the certification process. I do not say the onus is a high one, that is not an issue I need address because I do not think the plaintiffs have even met a low threshold here. A request for all documents relevant to the certification issue does not advance the matter - it merely begs the question as to what is relevant. It does not address the requirement of a party to demonstrate what documents are actually required for the certification process."
In relation to certain documents filed by US plaintiffs in parallel proceedings, the court stated: "Apart from the confidentiality order in Iowa, plaintiffs' counsel here would have access to them because in the case at bar they are acting with some of the class counsel from the United States litigation. Therefore the real issue engaged in this request is not the necessity to obtain those documents from Microsoft. Rather it is the Iowa confidentiality order".

APPEAL PROCEDURES CONFIRMED
Vaughan v. New York Life Insurance Company, 2007 QCCS 4418: As part of this settlement, there were a number of appeals to be heard by the court. The court mandated certain forms and procedures to guide the hearing of appeals. The writer is co-counsel for the defendant in this action.

CERTIFICATION MATERIAL
Deraspe c. Zinc électrolytique du Canada ltée, 2007 QCCS 4637: The court denied the defendant the right to file the raft of expert material it wished to file on certification of this environmental case, save for a few documents and maps that the court thought would assist on certification.

CLASS ACTION DENIED CERTIFICATION
Breslaw c. Montréal (Ville de), 2007 QCCA 1542: The Court of Appeal confirmed the decision not to certify this decision for the same reasons as their earlier case Marcotte c. Ville de Longueuil, 2007-06-13, 2007 QCCA 866.

PRIVILEGE APPEALS DISMISSED
Association de protection des épargnants et investisseurs du Québec (APEIQ) v. Corporation Nortel Networks, 2007 QCCA 1208 and Skarstedt v. Corporation Nortel Networks, 2007 QCCA 1209: The court held that they was not any privilege attaching to the lawyer's dockets which were sought to be reviewed as part of a fee approval application. The applications were class members in American actions, and beneficiaries from a common fund from which Quebec counsel's fees would be paid.

NEW ACTIONS
No need for me to report these anymore! Just link to the new National Class Action Database for all the latest news:
http://www.cba.org/classactions/class_2007/main/index/default.aspx

http://www.branmac.com/