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Sunday, July 26, 2009

July 2009

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Sign up now for the Western Canadian Class Action Conference to be held in Vancouver on Friday, November 20, 2009. We have a all-star lineup of fine upstanding counsel... and Kirk Baert. As an added enticement, we'll be hosting cocktails with the Bruneau Group at our offices on Thursday night. We would be pleased to see any of our colleagues from across the country for this comprehensive program. See:
Waters v. Daimlerchrysler Financial Services, Canada Inc., 2009 SKQB 263: Court asked to consider whether plaintiffs' counsel Merchant Law Group should pay costs personally with respect to required adjournment of an application for certification. The issue arose as a result of amended pleadings filed in the midst of the application which raised new causes of action, and plead that Quebec law applied. The court awarded costs stating: "Here, plaintiffs' counsel's conduct was more than discourteous to defendants' counsel. Plaintiffs' conduct was also more than just disrespectful to opposing counsel, and to the court and its processes. Plaintiffs' counsel's conduct meets the test for awarding costs against a solicitor personally..." Costs of $2500 plus defence counsel's travel costs were awarded.
Malhab c. Métromedia CMR Montréal inc., 2009 QCCA 1280: Costs on successful appeal considered. The court disallowed a claim for class notice expenses, stating that such costs were properly part of the underlying claim.
Dean v. Mister Transmission (Intl.) Ltd., 2009 OJ 2550 (S.C.): Application for security for costs dismissed. In applying Rule 56.01, although the plaintiff could not pay the costs of the defendants, the action was not frivolous or vexatious. Under the broader range of considerations that could be considered under s.12 of the Class Proceedings Act, the court still did not find any circumstances that required a different conclusion.
Sander Holdings Ltd. v. Canada (Minister of Agriculture), 2009 FCA 199: $33g in costs awarded against failed class plaintiffs.
In the syringe re-use class action Medvid v. Saskatchewan, 2009 SKQB 222, the court held that the Plaintiff represented by Merchant Law Group could not amend its pleadings as of right when there was a jurisdictional motion pending. The writer was counsel for the Province of Alberta.
Frey v. Bell Mobility Inc., 2009 SKQB 165: Plaintiff represented by Merchant Law Group applied to (1) add certain defendants, and (2) expand the action to a national opt out action in this certified class action. The court declined to add the defendants. The court also declined to modify the class to an opt out structure, on the basis that the change to the Saskatchewan statute was substantive and not expressly retroactive. The court stated: "Under the initial situation, a person could participate as a plaintiff only if that person positively expressed a desire to do so. Now that person is automatically included by reason of a unilateral action by the court. No longer does the person have to actively submit to the jurisdiction of the court. Rather, the person is deemed to submit unless a contrary intention is expressed. As I see it, the result is an increase in the court's jurisdiction and that is substantive in nature."
Nette v. Stiles, 2009 ABQB 422: In chiropractic class action, the claim against the provincial government was struck prior to certification. The writer is counsel for the co-defendant Alberta College and Association of Chiropractors.
Johnson v. British Columbia (Workers' Compensation Board, 2009 BCSC 877: Defendant asked the court to strike certified judicial review class proceeding on basis that the argument sought to be raised had not yet been advanced through the internal WCB appeal procedures. The court found that the interest of justice required that the class be allowed to make the argument at this time, given the prejudice that would otherwise accrue and the fact that the argument did not require further evidence.
Ramias v. Johnson, 2009 ABQB 386: Financial institution used by ponzi scheme artist applied to strike claim against it. Certain aspects of claim struck, but others survived. An application to add additional defendants was denied outright in light of the heavier legal burden and evidentiary requirements facing the plaintiff on such an application.
Billette c. Toyota Canada inc., 2009 QCCS 2524: Motion to strike or decertify a certified financing charge class action refused.
Desgagné c. Québec (Ministre de l'Éducation, du Loisir et du Sport), 2009 QCCS 2476: Motion to decertify dyslexia class action refused.
Kavanaght v. Montreal, 2009 QCCS 2148: Motion to decline jurisdiction for part of the class in a certified class action alleging illegal arrests denied. The defendant alleged that those that did not contest their arrests were bound by the earlier decisions finding them guilty. The court held that even this group could have a claim, and refused to amend the certification. The court also granted an extension of the time for the Plaintiff to deliver an expert report.
Best (Guardian ad litem) v. Nunatsiavut Assembly, 2009 NLTD 70: Application to strike granted. Class sought benefits allegedly denied due to wrongful refusal to admit plaintiffs into the Labrador Inuit Association. The court allowed the motion to strike to proceed first stating "Jurisdiction to hear a matter is surely sine qua non to the Court entering into any adjudicative function regarding a claim brought before it. I reject the notion that to hear an application challenging the jurisdiction of the Court to adjudicate a plaintiff's claim constitutes litigation by installment. Indeed, a defendant would be seriously remiss to fail to take such an application in the proper cir-cumstances." On the merits of the motion, the court noted that the land claims agreement provided for Federal Court judicial review of any membership decisions.
Syndicat général des professeures et professeurs de l'Université de Montréal c. Gourdeau, 2009 QCCS 1990: Motion to strike certified class action dismissed.
Hurst v. PriceWaterhouseCoopers (PWC) LLP, Canada, [2009] O.J. No. 1415 (S.C.): Proposed class action dismissed on the basis of a lack of a duty of care.
Medvid v. Saskatchewan (Minister of Health), 2009 SKQB 198: Court ordered that defendant's jurisdictional motion could proceed in advance of certification. The writer was counsel for Province of Alberta. The court stated: "This motion may resolve or dispose of the case against Alberta and may narrow the issues remaining at certification. If not allowed to proceed, the defendant Alberta may suffer additional costs for having to wait until certification to have the issue determined. Further, there is no motion for certification before the court; the only motion is the defendant Alberta's application to strike, based on a jurisdictional challenge."
Fournier c. Banque Scotia, 2009 QCCS 725: Court approved examinations of plaintiffs at certification hearing, but limited to certain issues.
Morrison Estate v. Nova Scotia (Attorney General), 2009 NSSC 198: The defendants sought particulars from the plaintiffs prior to the certification hearing. The court declined to make such an order stating that unless an application would dispose of the proceeding, party or parties, or an issue or issues, it is more appropriately made following a determination whether certification is granted.
Wakelam v. Johnson & Johnson, 2009 BCSC 839: Application for particulars dismissed. The court stated:
"Specifically, the defendants have elected to wait until after the certification hearing to file their statements of defence. Therefore, they do not require the information sought in order to plead, as is normally the case in applications for particulars. Furthermore, the plaintiff has filed an extensive evidentiary record in support of her motion for certification. All the information sought by the defendants can be found within that record. Particulars are therefore not required to assist the Court in determining the issues at the certification hearing." The court both distinguished and questioned the earlier B.C. decision in Hoy v. Medtronic requiring particulars prior to certification (at para.28).
In Dubé v. Nissan Canada Finance, division de Nissan Canada inc.,2008 QCCS 5696, the court allowed the defendants to examine the three representative plaintiffs in order to test their evidence to ensure adequate representation for class members.
Gay v. Regional Health Authority, 2009 NBQB 101: Motion by defendant to add an additional defendant adjourned until after certification.
Dorion v. Centre de santé et des services sociaux Richelieu--Yamaska (Hôpital Honoré Mercier), 2009 QCCS 3086: Prior to certification application in this hospital infection case, the Court allowed the defendant to (1) examine the proposed representative for 30 minutes on particular paragraphs of her affidavit, and (2) file additional material on the causation issue.
Martin c. Société Telus Communications, 2009 QCCS 3121: Defendant was allowed to present certain oral evidence on certification in order to clarify the services selected by the plaintiff, the evolution of the choices of services, and a brief review of the nature of text messaging.
Larose c. Banque Nationale du Canada, 2009 QCCS 2155: Loss of private information class action. Court allowed a limited cross-examination of the representative plaintiffs on the nature of the damages suffered.
Manuge v. Canada, 2009 SCCA 144: Leave granted in this case asking SCC to consider whether a judicial review application under the Federal Court Act must be brought before an action for damages. The writer is co-counsel for the class. This appeal will be proceeding in January 2010 collectively with 6 other cases raising the same issue.
Richard v. British Columbia, 2009 BCCA 185: Court confirmed that there was no liability for claims arising prior to the Crown Proceedings Act. The writer is co-counsel for Province of B.C., but was little more than a potted plant on this appeal successfully argued by Karen Horsman.
Withler v. Canada, [2009] S.C.C.A. No. 68: Leave to SCC granted of dismissal of age discrimination action on the merits. The writer is co-counsel for the class.
T.L. v. Alberta, 2009 ABCA 182: Appeal dismissed from decision granting certification of an action alleging that the Public Trustee and the Province failed to start proceedings for abused children in care. The writer is co-counsel for the Province of Alberta.
Fantl v. Transamerica Life Canada, 2009 ONCA 377: Appeal denied of decision allowing class representative to switch counsel. The court established the following test for a review of a representative's choice of counsel:
"Once the court's jurisdiction is engaged, any review by the court of a decision as to choice of counsel must be directed to three factors:
(1) Has the plaintiff chosen competent counsel?
(2) Were there any improper considerations underlying the choice made by the plain-tiff? and
(3) Is there prejudice to the class as a result of the choice?
Unless this inquiry reveals something unsatisfactory to the court, it ought not to interfere with the choice of counsel made by the plaintiff. The court is not a substitute decision maker for the plaintiff in the litigation. Accordingly, any intervention based on its supervisory jurisdiction must be limited to situations where there is cogent evidence that steps taken may have an adverse impact on the absent class members."
On the competency issue, the court stated:
"Where competence is a live issue, the court should consider under this head:
(1) The nature of the lawsuit;
(2) The complexity of the litigation;
(3) The fact that it was a class proceeding;
(4) The experience of counsel as to subject matter and class actions;
(5) The resources of counsel;
(6) The stage of the proceedings at which the review occurs; and
(7) Any other considerations the court might deem to be appropriate.
Moreover, when considering competence of counsel, the court must take into account the fact that, after certification, class counsel will be in a solicitor-client relationship with the class mem-bers, with all of the responsibilities that entails, extending until the implementation of a settlement or final disposition of any individual issues. In other words, given that the class may include a large number of people, this obligation may be significant and prolonged"
On the improper purpose test the court stated: "I would not accept that the fact of an acknowledged friendship between the plaintiff and his counsel of choice would constitute an improper purpose in and of itself. An improper purpose would be one where the plaintiff was seeking to gain a personal advantage, the hope of an advantage not shared by the class members or was motivated in some way that was inconsistent with the interests of the class" (at para.64)
On prejudice, the court stated: "It is argued that if representative plaintiffs are allowed to switch counsel at will, there will be less of an incentive for counsel to take on class actions and make an investment of time and effort that may be lost. There is no question that class proceedings are entrepreneurial in nature. However, the proposition advanced by the appellant would only be supportable if the creation of an entrepreneurial class action bar was a policy goal underpinning the CPA. This argument fails because as far as the CPA is concerned, the entrepreneurial lawyer is a means to an end, not an end in and of itself...The CPA does not, nor was it ever intended to, provide lawyers with a vested interest in the subject matter of the lawsuit entitling them to override the choices of the representative plaintiff in the litigation, including the choice of counsel. In any event, Mr. Kim's investment of time and effort in the action while at REKO will be pro-tected through the process of dissolving that firm."
The court found that original counsel's investment of time and effort while working at the dissolved firm would be protected through the process of dissolution of that firm.
Hicks v. Saskatchewan Crop Insurance Corp., [2009] S.C.C.A. No. 149: Leave dismissed of refusal to certify crop protection class action. Proposed hook for SCC was whether Sask's unique "apparently authentic or genuine" test was proper.
The Ontario Court of Appeal dismissed a series of proposed SARS class actions against the provincial government on a cause of action basis: See:
Williams v. Ontario, 2009 ONCA 378: See also:
Dikranian c. Québec (Procureure générale), 2009 QCCA 1014: Appeal rejected of judgment managing claims stage of successful class action. The trial judgment is reported at 2009 QCCS 1534. The trial judgment rejected a series of requests designed to increase the take up rate, on the basis that it would disrupt the settlement implementation process, and that the steps taken to this point were reasonable.
Drady v. Canada [2008] S.C.C.A. No. 492, Attis v. Canada [2008] S.C.C.A. No. 491: Leave denied of decisions striking product approval class actions against federal government.
Nadon c. Montréal (Ville), [2009] S.C.C.A. No. 11: Leave denied of dismissal of pollen class action on its merits.
Soderstrom v. Hoffmann-La Roche Ltd., [2009] S.C.C.A. No. 71: Leave denied from dismissal of action that overlapped with a settled class action.
Alan McMillan et al. v. Canada Mortgage and Housing Corporation [2009] S.C.C.A. No. 49: Leave denied from dismissal of proposed leaky condo class action.
Vermette v. General Motors du Canada Ltée, [2008] S.C.C.A. No. 466: Leave denied of decision to refuse certification.
Arenson v. Toronto, 2009 SCCA 168: Leave denied of decision to give plaintiff right to deliver a fresh claim in a dismissed class action.
Sharbern Holding Inc. v. Vancouver Airport Centre Ltd., 2009 BCCA 224: Appeal of merits decision in favour of class allowed in investment class action.
Mignacca v. Merck Frosst Canada Ltd., 2009 ONCA 393: Court refused extension of time to file notice of motion for leave to appeal certification decision in Vioxx class action on basis that the proper appeal routes were either (1) a direct right of appeal to the Court of Appeal, or (2) to seek leave before the Divisional Court.
Coll v. Syndicat des cols bleus regroupés de Montréal, section locale 301 (SCFP), 2009 QCCA 708: Successful Illegal strike class action overturned on appeal. Court found there was no causal link between the alleged illegal strike and any interference to class members.
Association des journalistes indépendants du Québec (AJIQ-CSN) c. Cedrom-SNI inc., 2009 QCCS 2172: Electronic reproduction class action. Defendants applied for a stay based on the fact that there was already a certified Ontario action covering the same issues.
The court declined the motion noting that the proposed Quebec class was broader, including persons who had executed certain license agreements who were excluded in Ontario.
Quaere whether the Quebec court should have at least considered whether the case should have been stayed in relation to the overlapping class? Another opportunity to truly wrestle with overlapping class issues lost....
Hislop v. Canada, 2009 ONCA 354: Court found that lawyers could not apply a solicitor's lien over class member's recovery received as a result of declarations issued as a result of a certified class action, due to prohibition against a charge in the Canada Pension Plan Act. It is interesting that it was the government that was fighting the application of the charge, not class members themselves. It could be said that the government really had no "dog in the fight" at a pecuniary level. Was the government fighting the motion in order to (1) preserve the integrity of the statute, or (2) based on a tactical appreciation that the result would create access to justice problems in relation to CPP issues, by negating the ability of any class counsel to be paid?
Butler v. Honda Canada Inc., [2009] O.J. No. 2262 (S.C.): The court approved a retainer agreement that included a 25% contingency. The court also approved a fee of $650,000 as part of the settlement, on time of $450,000, to be paid directly by the defendant.
Option Consommateurs c. Service aux marchands détaillants ltée (Household Finance), 2009 QCCS 2516: Supplementary fee of $25g fee approved for work done after an initial fee approval in a settled action. Class counsel had requested $85g. The court found that the time was too high, and could have been performed at a lower level.
Fresco v. Canadian Imperial Bank of Commerce, [2009] O.J. No. 2531 (S.C.): Unpaid overtime claim denied certification. The court provided a nice summary of the principles applicable to the issue of whether the pleadings disclose a cause of action at para.22:
"* no evidence is admissible for the purposes of determining the s. 5(1)(a) criterion: ...
* all allegations of fact pleaded, unless patently ridiculous or incapable of proof, must be accepted as proven and thus assumed to be true;
* the pleading will be struck out only if it is plain, obvious and beyond doubt that the plaintiff cannot succeed and only if the action is certain to fail because it contains a radical defect: ...
* matters of law not fully settled in the jurisprudence must be permitted to proceed: ...
* the pleading must be read generously to allow for inadequacies due to drafting frailties and the plaintiffs' lack of access to key documents and discovery information: ..."
The court made a helpful statement regarding the so-called "over-inclusiveness" concern with respect to class definitions (at para.49): "I would not give effect to its remaining criticism that the class definition is "fatally over-inclusive" and not rationally connected to the common issues because it includes members who have no claim for overtime. That the claims of some or even most class members will be unsuccessful is not a reason to reject the class definition. All class members have an interest in the resolution of the asserted common issues. The expanded class period may raise issues about manageability, but not about membership. Assuming that there are common issues and that a class proceeding is the preferable procedure to resolve these issues, their resolution would apply to everyone in the proposed class."
The case did not meet the common issues requirement. The court stated that it is not enough to allege systemic wrongdoing, there must be "some evidence" of a systemic failure (at para.60), although it is a "minimum evidentiary standard". As the court put it "Otherwise, the task for the common issues trial judge would not be to determine a common issue, but rather to identify one." In terms of the evidence that was presented in the case before it: "This evidence shows a variety of individual circumstances that give rise to unrelated bases for unpaid overtime claims that can only be resolved individually by considering the evidence of the affiant advancing the claim, the evidence of various other current and former CIBC employees who managed and/or worked with that affiant, and various records maintained on a non-centralized basis by CIBC."
The court made positive comments about the "Sunshine Girl" case Fehringer (which had fallen into disuse as a result of the general view that it did not survive Cloud v. Canada and Rumley v. BC: "In Fehringer, which was a claim against a newspaper for allegedly improper conduct committed by one of its employees, Justice Nordheimer questioned how the court could determine an issue of systemic negligence without knowing the particulars of the negligence complained of, including knowing what the conduct was, where it occurred, how it occurred, whether the defendants had knowledge of it and what steps, if any, were taken as a consequence. I acknowledge that Fehringer was decided before Cloud, which arguably lowered the threshold for class certification of actions founded on allegations of systemic wrongdoing, but I believe that the result in Fehringer would have been no different, given the individual nature of the conduct complained of. In this case, the conduct complained of has the superficial appearance of commonality, but it is my view that this proceeding would inevitably break down into individual inquiries."
The court distinguished Rumley on the basis that there was no independent systemic duty to fulfill individual contracts in a particular way. The court placed little weight on general studies that concluded that the banking industry had an unpaid overtime problem. The court rejected the proposed aggregate damages question: "For the reasons already given and those that follow, there is no reasonable likelihood that the conditions for an aggregate assessment of damages can be met in this case, and that accordingly all of Ms Fresco's proposed common issues relating to damages lack a substantial common ingredient and cannot be accepted."
The court accepted that if there were common issues, a class proceeding would be preferable: "Although CIBC offers multiple methods for employees to raise concerns about their employment situation, the reality is that there is a power imbalance in the employment relationship and employees may perceive that their employment status and advancement will be affected if they assert the rights to which they are entitled. This can be a disincentive to come forward and inhibits access to justice. This may explain why after the commencement of this action, only 31 employees came forward through the escalation process to raise concerns about unpaid overtime." (at para.97)
On representative plaintiff, the court cautioned against rejecting a plaintiff based on credibility issues excepted in the clearest of cases (para.101).
Lambert v. Guidant Corp. [2009] O.J. No. 1910 (S.C.): Certification of pacemaker case. Justice Cullity made several interesting points on evidentiary issues.
The court rejected the admissibility of an affidavit filed by the defendants on preferable procedure sworn by a lawyer stating "In my opinion, the views of legal practitioners, however eminent, on the requirements of section 5 (1) (e) - or on any of the other requirements for certification for that matter - are not admissible as evidence to be considered in arriving at a decision. That is not, of course, to suggest that Mr Morse's opinions are not of interest, or that they would be unworthy of careful consideration outside the courtroom. In this motion, however, they have no more weight, status or authority than any opinions offered by counsel in the course of the hearing."
On evidentiary issues, the court stated " While without further guidance, I would be reluctant to accept that no questions of fact that affect the statutory requirements are to be decided in accordance with a standard less onerous than the usual civil standard - for example, facts that would determine whether a proposed representative plaintiff has an interest in conflict with those of class members - I believe that, consistently with the analysis in Hollick, I must accept that the standard is less strict in connection with - at least - the requirement that there is a class of persons whose claims raise common issues....
I do not consider that it was intended, or that it would be reasonable, to require the plaintiffs to embark on the inquiries and investigations necessary to test the methodology and grounds on which the defendants' numerous and unqualified assertions of fact were based. This would be the function of discoveries that will normally be conducted after certification has been granted and the descriptions of the class and the common issues have been ascertained in preparation for a trial of common issues or, in an appropriate case, a motion for summary judgment....
The legislative history was relied on in Hollick as justifying the very weak evidential burden of "some basis in fact" that was held to apply to each of the statutory requirements for certification, other than that relating to the disclosure of a cause of action. It must, I believe, follow logically that, although a defendant would be entitled to deliver affidavit evidence in rebuttal, the standard of proof is inversely heavy. It is not enough for the defendant to establish on a balance of probabilities that facts that bear on the existence of "colourable" claims differ from those asserted by the plaintiff - the onus must be to demonstrate that there is no basis in the evidence for the latter. For this reason, the court has generally declined to choose between conflicting opinions of qualified experts on the requirement of commonality of issues, or on the existence of the claims of class members that are said to raise such issues....
The second point is, I believe, the inevitable consequence of the "some basis in fact" approach adopted in Hollick to the existence of a rational connection between the class and the common issues. As it is not necessary for the plaintiffs to establish on a balance of probabilities that each class member will have an interest in the resolution of the common issues, there must always be the possibility that the judge at trial will find that this is not the case....
As has been insisted on many prior occasions, the certification motion is essentially procedural in nature. There is, of course, nothing to prevent the defendants from making full disclosure of facts that will assist in narrowing the class, or formulating the issues. Just as obviously, the proceedings are adversarial and they cannot be compelled to do this. If, however, they choose to rely on assertions of facts peculiarly within their own knowledge, and which cannot properly and adequately be tested on the motion, they cannot, in my opinion, insist that their evidence must be accepted as conclusive. The court must decide the weight that is to be given to it in the light of all the evidence and with strict attention to, and its focus on, the claims actually advanced by the plaintiffs on behalf of the class, and the standard of proof applicable to them. (at paras.62, 64, 68, 73, 81)
2038724 Ontario Ltd. v. Quizno's Canada Restaurant Corp: Divisional Court overturned refusal to certify this franchisee class action. A few notable points:
Deference to lower court on certification does not depend on personal level of experience of the judge who issued the decision (para.27).
The court stated: "We are satisfied that the motions judge erred in principle by focusing on proof of damages and failing to consider and identify other common issues...In our view, the motions judge erred in principle in holding that proving a s.61(1) breach depends upon proof of individual instances of loss or price maintenance, in applying a "bottom up" model of proof when considering proof of loss, and in consequently finding that the question of whether the respondents had breached s.61(1) was not a common issue."
On the breach of contract claim: "The determination of the following issues on a class wide basis would significantly advance this claim and avoid duplication of legal analysis and fact finding:
• the meaning of the contract provisions;
• the existence and nature of any common law duty of fairness; and
• Whether the Quiznos respondents have breached the contract provisions in failing to provide specifications." (para.91)
On weighing evidence on a certification motion: "It is neither necessary nor desirable to engage in a weighing of this conflicting evidence on a certification motion. The plaintiffs on a certification motion will meet the test of providing some basis in fact for the issue of determination of loss to the extent that they present a proposed methodology by a qualified person whose assumptions stand up to the lay reader. Where the assumptions are debated by experts, these questions are best resolved at a common issues trial. A motions judge is entitled to review the evidentiary foundation to determine whether there is some basis in fact to find that proof of aggregate damages on a class wide basis is a common issue. While that might require some review of the evidence, the assessment should not relate to the merits of the claim or the resolution of conflicting expert reports." (para 102)
On preferable procedure: " We have found that even if loss could not be proved on class wide basis, the breach of s. 61(1) of the CPA and the breach of contract, would in our view, be common issues that would have significantly advanced the claim....Access to justice and behaviour modification are both also relevant considerations in this case. The appellants submit that they could not afford to pursue these claims individually and would otherwise be denied access to justice. Furthermore, the motions judge noted (para. 40) "that efforts by franchisees, individually or collectively, to obtain information and a useful response to their concerns about overpricing only led to a heightened concern and considerable acrimony. The Plaintiffs accuse the Quiznos Defendants of stonewalling, of thwarting the attempts to redress overcharging, and they accuse the Quiznos Defendants of aggressive, divisive, harsh and retaliatory conduct to intimidate the franchisees." The record establishes that the Quiznos respondents stopped the appellants’ experts from gathering information about alternative costs of products and took steps to counter the efforts of Denver Subs to address their concerns about over-charging. This is a relevant consideration both with respect to the goals of access to justice and behaviour modification. The fact that there exists a mechanism to enforce the Competition Act is a factor but not a complete answer to the need for behaviour modification. Finally, the declaratory relief, if successful would provide relief to class members indefinitely." (para.137, 143)
Brown v. Newfoundland and Labrador (Workplace Health, Safety and Compensation Commission), 2009 NLTD 106: WCB integration case denied certification on the basis that no cause of action was disclosed. The decision of the Commission had to be properly challenged by way of judicial review, and such an application would have been out of time.
Cyr c. Ste-Adèle (Ville de), 2009 QCCS 2827: Dead raccoon case denied certification. Class alleged water contamination and psychological injury. The court held that there was insufficient pleading of causation, and that the alleged injury was too unique to support certification. Furthermore, the allegedly affected area was sufficiently bounded that joinder was possible.
Dubé c. Nissan Canada Finance, division de Nissan Canada inc., 2009 QCCS 2308: Financing charge disclosure case certified.
MacFarlane v. United Parcel Service Canada Ltd., 2009 BCSC 740: For the same reasons espoused in Blackman v. Fedex Trade Networks Transport & Brokerage (Canada) Inc., 2009 BCSC 201, the court dismissed this certification application
Haddad v. Kaitlin Group Inc. [2008] O.J. No. 5127 (S.C.J.): The court certified an real estate misrepresentation class action.
Jadue c. Fédération des caisses populaires Desjardins, 2009 QCCS 1606: Financing charge case dismissed on cause of action grounds.
Gauthier c. Société d'habitation du Québec, 2009 QCCS 845: Low income housing fee action refused certification based on jurisdictional grounds
Payne v. Eagle Ridge Pontiac GMC Ltd. August 10, 2007) Vancouver S063594 (B.C.S.C.): Action involved alleged misrepresentation regarding issuance of "cashable vouchers" certified. Subsequently, at 2009 BCSC 530 the case proceeded on the merits by way of a special case on an agreed statement of facts. The class was successful on one misrepresentation issue, but the training negligence issue was adjourned on the basis that further evidence was required.
Martin c. Société Telus Communications, 2009 QCCS 269: The court refused to certify text message fee class action based on the cause of action requirement. The court also rejected the representative for not advancing the necessary contractual information.
Chalmers (Litigation guardian of) v. AMO Canada Co., 2009 BCSC 689: Contact lens class action certified. The court narrowed the class stating: "On this hearing, Ms. Chalmers only put evidence before the Court in relation to Subclass A (persons who contracted AK after using the Solution). For that reason, I will focus my analysis on whether there is sufficient evidence before the Court to certify that subclass. Currently, there is no basis for this Court to certify either Subclass B (persons who underwent testing for AK after using the Solution) or Subclass C (persons who had a monetary loss as a result of the recall of the Solution). However, this does not preclude the possibility of these subclasses being certified at a future date if sufficient evidence is brought before the Court on a further application."
The court allowed evidence of class size to be put forward after the certification hearing was complete stating: "The information contained in Dr. Patrick's letter should have been provided to the Court by one or both of the parties. Their failure to place that information before the Court at the time of the certification hearing should not leave the Court in the position of having to make the certification decision with incomplete information. It is a procedural decision. It should be made with the best information regarding potential class size before the Court. The Act contemplates that it may be necessary at times to adjourn the certification hearing to permit amendment of materials or pleadings and to permit the parties to adduce further evidence: s. 5(6). This provision is included in the Act to allow the Court to have the best information available to inform its certification decision...The concerns that arise with the admission of fresh evidence following a trial are clearly different from those that arise on a certification application."
The court certified a national opt-in class. The defendant had argued there was no territorial competence following introduction of the Court Jurisdiction and Proceedings Transfer Act. The court disagreed stating: "The reasoning in Harrington is applicable under the CJPTA. Section 10 does not limit the type of circumstances that may constitute a real and substantial connection. The analysis of Huddart J. is equally applicable to a consideration of the test established pursuant to ss. 3(d) and 10 of the CJPTA as it was to the common law test."
The court also decided that it should not decline to exercise its jurisdiction, making a number of comments relevant to the national class debate:
"It is readily apparent that those factors favour a certification that includes non-residents:
(a) The aggregation of claims, including non-residents, provides economies of scale that will reduce the costs for all parties. While there is some inconvenience for the non-resident class members, they will weigh that inconvenience when deciding whether to opt in.
(b) AMO has not put forward any evidence to show that the law to be applied will be a factor of any significance on either the negligence common issues or the punitive damages common issue....
(c) The inclusion of non-residents will make it possible to reduce or avoid multiplicity of proceedings.
(d) The inclusion of non-residents will reduce the possibility of conflicting decisions in different courts.
(f) Certification of national class actions promotes the fair and efficient use of resources within the Canadian legal system as a whole. It encourages co-operation between the provinces and reduces the number of individual and class proceedings involving a single product.
AMO also argues that the inclusion of non-resident claims will mean it may have to defend multiple claims from the same individual. It says that a non-resident class member may be able to make a claim in their own province similar to the BPCPA claims made by British Columbia residents in this action. This is not a serious issue. Pursuant to s. 16(2) of the Act, each non-resident class member will have to opt in to these proceedings. They will be required to commit themselves to be bound by them. That commitment will be clearly set out in the Notice of Certification and the opt-in form. Consequently, non-residents who choose to opt in will be required to refrain from pursuing any other litigation related to use of the Solution."
Horner v. Saskatchewan (Workers' Compensation Board), 2009 SKQB 270: Court had earlier found that all the requirements save preferable procedure were met, but adjourned that aspect of the case for further argument and evidence. After reconvening the motion, the court refused certification of this Charter based class action. The court held "that it is generally undesirable to pursue a class action to obtain a declaration of constitutional invalidity". (at para.9) The court also noted that the plaintiff's claims for personal relief were statute-barred leaving only the declaratory claims. The court concluded: "These remaining issues can be more efficiently, economically and quickly dealt with as a single claim rather than in a class proceeding which the balance of authority holds to be an undesirable vehicle for the determination of constitutional questions. As well, as I see it, a single proceeding would effectively achieve the same result for all members of the class."
Electronic-Rights Defence Committee ERDC c. Southam inc., 2009 QCCS 1473: A Robertson v. Thomson-like freelance writer class action certified.
Mortillaro v. Cash Money Cheque Cashing Inc., [2009] O.J. No. 2904 (S.C.): Settlement approved. Each customer could apply for a voucher for $50, and the Class Proceedings Fund would be paid $5 for each redeemed voucher. The vouchers were fully transferable. The court commented as follows:
"There is precedent in Ontario for the approval of voucher settlements: Waddell v. Apple Computer Inc. (2008), 67 C.P.C. (6th) 1 (Ont. S.C.J.); Nantais v. Easyhome Ltd., [2005] O.J. No. 5805 (S.C.J.); McCutcheon; Wong v. TJX Companies, [2008] O.J. No. 398 (S.C.J.). In appropriate cir-cumstances, voucher settlements can serve both the class and the defendant and increase the overall value of settlement. Although it is not easy to assign a cash value to a voucher settlement, in cir-cumstances where the vouchers are transferable, there is evidence of a secondary market in which the vouchers can be discounted and converted to cash and/or there is evidence of a class of repeat users, a voucher settlement can be fair and reasonable and in the best interests of the class. Voucher settlements have been found to be appropriate where the quantum of damages for each claimant is either too difficult and/or too costly to determine as in Nantais or where a cash set-tlement would compromise the defendant's ability to continue as a viable concern as in McCutcheon"
Fees were payable in the amount of $380,000. A $1000 payment was approved for the class representative.
Cassano v. Toronto-Dominion Bank, [2009] O.J. No. 2922 (S.C.): Visa foreign exchange rate case settled. Maximum claim was $161.5M, and was settled for $55 million. $11 million was payable to certain cardholders whose accounts were still active. $28 million was to be paid cy-pres. $11 million or 20% was approved for fees. On the approach to fees, the court commented:
"The second matter is that the fee of $11 million represents the application of a multiplier of approximately 5.5 to counsel's approved time. This might well be considered to be excessive if the retainer agreements had provided for the adoption of the "lodestar approach" reflected in section 33 of the CPA. They did not do this. While it has been said that the appropriateness of a fee calculated in the lodestar manner might be tested by comparing it with the percentage of gross recovery it represents, I would be hesitant to use the lodestar method as a firm indicator of the reasonableness of a fee determined by the application of a percentage to the amount recovered. In Martin v. Barrett, [2008] O.J. No. 2105 (S.C.J.), at paras. 38-39, I referred to criticisms of the lodestar method. One of these that has been repeatedly mentioned in other cases in this jurisdiction and elsewhere is that the application of a multiplier to a base fee may not only encourage an inefficient use of time and a padding of dockets, it may also fail to reward efficient time-management and the exercise of superior skill by class counsel."
Robertson v. Thomson Canada Ltd., [2009] O.J. No. 2650 (S.C.): Long running electronic publication copyright dispute case settled for $11 million. A fresh opt out right was provided, with an opt out trigger under which the defendant could walk away from the deal. The fee issue was reviewed carefully because counsel sought to rely on an amended retainer agreement supporting a $4 million request, rather than the original agreement that would have only supported a $2.2 million request. The court commented on the amended retainer agreements stating:
"The CPA does not in its express terms require that fee agreements be made at the inception of, or at an early stage of, the litigation. (In this respect, there is a contrast with section 39 of the Class Proceedings Act of Alberta). Amendments to contingent fee agreements have been approved in this jurisdiction even though they were made in the course of ultimately successful settlement negotiations when the contingency that would result in no fee had virtually disappeared. In consequence, in this case, while I believe a degree of judicial vigilance is required in order to be satisfied that the representative plaintiff provided her free and informed consent to the amendment - and that the formula it provides is fair and reasonable from the standpoint of the class - I do not consider that it is objectionable per se." (at para.32)
The court relied on the fact that the multiplier was 2.4, that the results were exemplary, and that the litigation had motivated behaviour modification in approving the $4M fee.
The court's approval of the settlement was provisional based on receipt of a satisfactory response to certain questions the court had about the claim procedures.
The Maple Leaf settlement was approved in Quebec: Melvin v. Les Aliments Maple Leaf Inc., 2009 QCCS 1378.
Coutu c. Télébec, s.e.c., 2009 QCCS 2403: Telephone charge case settled.
Johnson v. Bayer, 2008 QCCS 4957: The court initially declined to approve a partial price fixing settlement on the basis that it contained a bar order which the court indicated could not be granted in Quebec. In 2009 QCCS 3020 (S.C.) the court did approve the settlement after certain changes were maid.
Parsons v. Coast Capital Savings Credit Union, 2009 BCSC 330: Overdraft class action settled. A $10,000 payment to the representative plaintiff was refused. On the test for such payments, the court stated:
"1. A representative plaintiff has the responsibility under the Class Proceedings Act to fulfill his or her duties to vigorously and capably prosecute the interests of the class.
2. A representative plaintiff is not automatically entitled to compensation for fulfilling his or her statutory responsibilities.
3. If the plaintiff's services to the class are over and above the usual responsibilities under the Act, he or she may be entitled to modest compensation on a quantum meruit basis.
4. The factors that will govern the entitlement to, and the amount of, such compensation include, but are not limited to:
· significant commitment of time and energy to the litigation;
· active participation in the instructing of counsel and decisions made in the litigation;
· contribution of special expertise;
· significant contribution to communication with the class;
· some other measurable significant contribution to the outcome;
· exposure to risk of costs; and
· some other special consideration or risks in being a named plaintiff.
In this case there is no affidavit from Ms. Parson outlining her contribution, time, or participation in this litigation. Counsel's affidavit indicates that she attended an examination for discovery and was engaged from time-to-time in instructing them. I do not believe she attended the mediation. While I have no doubt that she diligently fulfilled her statutory responsibilities, there is no evidence before me that her contributions were in any way of special significance to the class in a way that would entitle her to a compensatory quantum meruit payment."
Rouleau c. Fortin, 2009 QCCA 743: Settlement approved.
Settlement with various parties in the Manitoba Crocus litigation was approved: See
Fees were approved in the Quebec arm of the Nortel litigation: Association de protection des épargnants et investisseurs du Québec (APEIQ) c. Corporation Nortel Networks, 2009 QCCS 2407. The request for $6.7 million was knocked down to $3 million, or about a 2X multiplier. The court noted that most of the Quebec time was incurred after the announcement of the global settlement. The court held that the Quebec proceedings had no influence on the global outcome. Quebec counsel did not participate in the mediation that lead to the settlement.
Wamboldt v. Northstar Aerospace (Canada) Inc., [2009] O.J. No. 2583 (S.C.): Pollution case settled. 25% fee at $1.125M approved, which was a multiplier of about 1.25. Counsel was paid in two stages, since class was also going to be paid in two stages.
L'En-droit de Laval c. Institut Philippe Pinel de Montréal, 2009 QCCS 2193: Settlement approved in case alleging that psychiatric patients were improperly housed in criminal cells.
Paquin c. Cie de Chemin de fer Canadien Pacifique, [2009] J.Q. no 3384: Court approved use of residual settlement funds for construction of a park in this environmental class action..
Goudreault c. Service Garantie Québec, 2009 QCCS 1866: Financing class action certified and settled. 2009 QCCS 1804: Fees of $49,500 approved.
M.G. c. Association Selwyn House, [2009] Q.J. No. 3142: Sexual abuse class action settled. Parties eased court's earlier concern that class members could only opt out before reviewing the confidential claim schedules.
Glover v. Toronto, [2009] O.J. No. 1523 (S.C.): Court certified an infection class action applying the usual analysis. Tithe court initially raised a concern with class counsel's position on the management of class members following the common issues trial. The court stated:
"The litigation plan terminates the representation of proposed class members at the doorstep of individual assessments. As individual assessments of relatively modest claims are likely to be necessary in this class proceeding, the unexplained abandonment of class members at this crucial juncture is deeply problematic.
Under the heading, "Class Counsel Fees and Administration Expenses", the plan provides that the court will be asked to fix the amount of class counsel fees and to direct the Administrator and defendants to pay the fees "out of the monies recovered or owing" as a first charge and to fix the costs of the Administrator and the Referees and to order payment by the defendants as a second charge. It then provides: "Class counsel's retainer does not include representation of each individual Class Member or Family Class Member in pursuing their claims after the determination of the common issues. However, Class counsel will make every effort to secure representation for those Class members who request legal assistance, including the option to represent some Class Members and Family Class Members in pursuing their claims."
This provision raises a number of troubling questions. How will any class member be able to adduce general and expert evidence, including evidence about the nature of Legionnaires' disease and Pontiac fever at a hearing before the Referee without legal representation? What is the basis on which class counsel will decide whether to exercise "the option" to represent some class and family members, but not others? Is it contemplated that class counsel can choose to pursue the economically viable claims and abandon the rest? If class counsel does not exercise "the option", but is successful in securing legal representation for those class members who request it, what will be the arrangement for the sharing of fees? Is any lawyer likely to accept a retainer on behalf of a class member when class counsel fees are to be a first charge on any amount recovered or owing?
There is little doubt that if this action is certified, a solicitor-client relationship will exist be-tween counsel for the representative plaintiffs and the members of the class....
In a class proceeding, a client does not have a right to choose his or her lawyer or have a right to terminate the retainer. If a class member is dissatisfied with counsel of record, he or she may opt out of the class, but by the time this proceeding reaches the stage of individual assessments, that time will have long passed. In my opinion, class counsel cannot unilaterally choose to terminate representation, but is bound to represent those class members who wish to pursue individual claims on the same basis as the retainer agreement provides until the class member or the court directs otherwise. It seems to me that the proposed abandonment of class members following the determination of common issues is completely at odds with the fiduciary duty that a lawyer has to a client, which includes the duty of loyalty.... It is also completely at odds with the goals of class proceedings. Earlier I made reference to Chief Justice Winkler's re-marks in Cassano and I repeat them here: "the resolution of individual issues is an essential element of many class proceedings and is crucial if there is to be an advancement of the goal of access to justice". I am not satisfied that this goal can be achieved under the litigation plan that has been put forward." The court invited counsel to make further submission regarding this issue.
The court also rejected two of the proposed representatives stating: "They appear to have no appreciation that they are representing a class. Nor do they understand the nature of the plaintiffs' complaints against Toronto and Ontario. Both thought the claim was about late notice of the outbreak and that they are involved in the litigation to further their individual interests. I am not persuaded that either is a suitable representative plaintiff."
The court subsequently certified action on clarification of counsel's preparedness to act for class members. Class Counsel cured the court's concern by amending their litigation plan as follows: "Class Counsel will continue to represent the Class Members and their Family Class Members following the determination of the common issues trial and/or for the purposes of any individual claims, including individual assessments of damages."
Griffin v. Dell Canada Inc. [2009] O.J. No. 418 (S.C.J.), motion for reconsideration refused 2009 CanLII 18222 (ON S.C.): This was a motion by the plaintiff to certify an action as class proceeding and a motion by the defendant for a stay based on an arbitration clause. Case arose from the sale of allegedly defective notebook computers that were designed, manufactured and sold by the defendant. The defendant argued that a stay of proceedings should be granted pursuant to the Arbitration Act given that the terms and conditions of sale included a mandatory provision that all disputes and controversies would be resolved through arbitration. The case was certified and the defendant's motion dismissed. A class proceeding was the preferable procedure for the resolution of the common issues in the action and the requirements for certification had been met. The plaintiffs pleaded tenable causes of action in negligence, breach of contract and waiver or tort/unjust enrichment. Subject to two amendments, the class definition met the requirements for certification as the relationship between the class and the common issues was clear. Five of the eight common issue proposed by the plaintiff were appropriate for certification. Although the proposed plaintiff was a suitable representative plaintiff who had no conflict with other class members, his circumstances differentiated him from other class members and it would be prudent to add another plaintiff. The litigation plan was cursory at best and failed to satisfy the requirements of s. 5(1)(e)(ii) of the Class Proceedings Act. Given that the plaintiff had met the other requirements for certification, it was appropriate to conditionally certify the class action subject to the plaintiff providing an acceptable litigation plan. The defendant was not entitled to a stay. The motion for stay was to be considered in the context of the motion for certification. A class proceeding was the preferable procedure and a stay should not be granted. The court distinguished the Quebec cases and declined to follow the contrary case law in B.C. and Saskatchewan. The court stated: "Justice Perell and I both found it implausible that the Supreme Court of Canada purported to address the legislative choices of other provinces without any reference to this or to the submissions of the intervenors who provided the court with this law."
In Boulerice v. Bell Canada, 2008 QCCS 6096, the Court allowed discovery of additional class members, but limited the number to three, noting that the defendants should have sufficient information after those examinations to enable it to produce a defence.
In Goyette c. Glaxosmithkline inc. 2008 QCCS 5109, the court allowed pre-certification amendments to the pleadings on the basis that the amendments were useful and the rights of the parties were not compromised.
Jacques c. Pétroles Therrien inc., 2009 QCCS 1862: Case involved alleged conspiracy to fix gas prices. The court allowed the plaintiffs to make certain amendments to add defendants, alleged parties to the conspiracy. The court also allowed amendments expanding the action, except a geographic expansion to the entire province, as that geographic expansion was not yet supported by the facts.
Mères avec pouvoir (MAP) Montréal c. Bell Canada, 2009 QCCS 1450: Plaintiff allowed to amend motion for certification, but not allowed to enter further evidence to rebut defendant's evidence.
Mazzonna c. DaimlerChrysler Financial Services Canada Inc./Services financiers DaimlerChrysler inc., 2009 QCCS 1929: Court allowed Merchant Law Group to discontinue an action against one defendant.
Evoy-Larouche c. Cie d'assurance La Métropolitaine, [2009] J.Q. no 4810: Premium offset class action discontinued on the basis that few potential class members had identified themselves.
Union des consommateurs c. Zellers inc., [2009] J.Q. no 3385: Proposed class action discontinued.
Grant v. Canada (Attorney General), [2008] O.J. No. 4470 (S.C.J.): Motion by the defendant to strike a summons to witness. At the certification hearing, the plaintiff sought to examine an expert who had been retained by the Crown prepare a study. The Crown denied the request and the plaintiff issued a summons. The motion was dismissed on the grounds that the proposed witness would have opinions and evidence relevant to the certification issue. Furthermore, she would respond to contrary evidence from a Crown witness. The defendant would be able to object to questions outside the expertise of the witness or which were irrelevant to the issues of certification.
Robinson v. Saskatoon (City), 2009 SKQB 183: Taxicab driver class denied interlocutory injunction to (1) prevent dismissal by the defendant license holders, (2) prevent license transfers; (3) create a trust fund for fees, as well as other matters.
Wallace v. Canadian Pacific Railway 2009 SKQB 178: Defendant sought to disqualify class counsel. Class counsel sought order to cross-examine representative plaintiff. Application to cross granted on grounds that class counsel was entitled to probe whether CPR was a professional litigant with more forgiving conflict practices.
Saskatchewan Crop Insur. Corp. v. Hicks, 2009 SKCA 12: Court reaffirms Saskatchewan's "authentic and genuine" test at paras. 11-12.
Soldier v. Canada (Attorney General), 2009 MBCA 12: In Manitoba, the courts have adopted a low threshold for the cause of action requirement, but so far the Manitoba Court of Appeal has declined to decide whether the applicable test is that adopted in Saskatchewan, or the "plain and obvious" test. see para. 44
The court may order a stay of the notice requirement pending certification applications in other jurisdictions: Ring v. Canada (Attorney General), 2008 NLTD 168
Cilinger c. Centre hospitalier de Chicoutimi, 2009 QCCS 3152: Notice of proposed settlement approved in delayed cancer treatment class action.
In Option Consommateurs c. Banque de Montréal, 2008 QCCS 6432, the court found that there was no requirement for the Bank of Montreal to place the notice on its website.
Audette c. TVI Pacific inc., 2009 QCCS 2101: Court approved pre-settlement notice to class members.
LeFrancois v. Guidant Corp, 2009 OJ 2481 (S.C.) the court addressed an effort by the defendant to constrain the class definition in order to minimize the scope of individuals who would receive notice, arguably to prevent undue concern by pacemaker recipients for whom no concern was raised in the evidence. The court held that the restrictive approach to new evidence when a case has been refused certification adopted by the court in Risorto was not applicable to a case where the statute provided expressly for the amendment to the certification order. However, the court declined to issue the amendment stating:" It follows that the single point in dispute on this motion is whether there is a sufficient basis in fact for the plaintiffs' position that the defects in the three models of defibrillators were not remedied until the polyamide insulation was replaced with PEEK in December 2005. In my judgment, there is sufficient evidence to establish that this is an issue to be tried as part of the common issues relating to, among other things, the alleged breaches of Guidant's standard of care."
Piché c. St-Pierre, 2009 QCCS 2023: Court declined to stay an individual action where the class action was stalled.
Where circumstances warrant, a party in Saskatchewan may be able to have a case management judge appointed prior to certification (which right is separate from the designation of a judge to hear the certification application under section 4(2) of its Act): RoseTim Investments Inc. v. BCE Inc., 2008 SKQB 440
Duzan v. Glaxosmithkline, Inc., 2009 SKQB 230: Saskatchewan court confirmed that under Rule 79, a plaintiff must apply for a case management judge in a proposed class proceeding within 30 days of the expiry of the time to enter a defence, unless the court orders otherwise. In this case, the Plaintiff had breached that Rule, and the appropriate remedy was for the court to designate a case management judge.
Spieser v. Canada (Procureur général), 2009 QCCS 1725: Court established pre-trial schedule in this certified environmental class action.
Pellemans c. Lacroix, 2009 QCCS 1530: Court allows amendments to claim.
2009 QCCS 2040: Court grants confidentiality orders.
2009 QCCS 2282: Defendant denied right to amend defence, on the basis that the amendments were simply trying to reargue points lost on certification.
Conseil québécois sur le tabac et la santé c. JTI-MacDonald Corp., 2009 QCCS 2096: Plaintiff requested early cut off date for defence expert reports. The court rejected the request noting that the Plaintiffs had not yet produced their final reports.
Spieser c. Canada (Procureur général), 2009 QCCS 1383: Particulars granted in certified environmental class action.
In Association des consommateurs pour la qualité dans la construction c. Flamidor inc., 2008 QCCS 4848 the Fonds challenged fees agreed to be paid by the Defendant to the representative plaintiff organization as part of a settlement. The Court found that a contract between the parties in addition to the amount paid out to the class was permissible and did not interfere with the Fonds’ ability to receive repayment of its advances.
Marcotte c. Fédération des Caisses Desjardins du Québec, [2009] J.Q. no 5770 (S.C.), Adams v. Amex Bank of Canada, [2009] Q.J. No. 5769, Marcotte c. Banque de Montréal, [2009] J.Q. no 5771: Visa conversion rate class actions successful. The court rejected the constitutional defences raised by the defendant arguing that local consumer statute could not apply due to federal legislation. The court found that limitation period was stayed for all class members, even those persons who were part of an separate initial aborted class proceedings. The court also held that limitations did not run over the period where there was a failure to disclose the nature of the commissions. The court found that there was sufficient evidence to support an aggregate award for certain banks for certain periods. Certain banks were found liable for punitive damages based on their willful non-disclosure of the commissions.
Taylor v. Canada (Minister of Health), 2009 ONCA 487: Canada sought to bring in third party dental surgeon and hospital in jaw implant approval class action. The Court of Appeal affirmed that that the third party proceeding should be dismissed, since the class was only pursuing Health Canada for their proportionate share of the fault.
Royer-Brennan c. Apple Computer Inc., 2009 QCCS 2720: Court found that amendments were not made properly.
Muzyka v. Ontario, [2009] O.J. No. 2346 (S.C.): Court struck claim by individual who claimed she was a member of the class. The court found that all of the plaintiff's remedies in this respect were contained in the settlement agreement.
Brochu c. Société des loteries du Québec (Loto-Québec), 2009 QCCS 705: Court considered scope of expertise of proposed gaming expert.
European Minerals (unreported, May 20, 2009) (Ont.S.C.): Defendant ordered to produce insurance policy in advance of certification. The writer is counsel for the defendants.
Speers Estate v. Reader's Digest Assn. (Canada) ULC, [2009] O.J. No. 2332 (S.C.): Quebec defendant brought libel action in Quebec in relation to Ontario pleading. In Quebec there is no absolute privilege in pleadings. The plaintiff applied to stay the Quebec action. The court concluded that:
"* An Ontario court has the in personam jurisdiction to order defendants who are properly before it to refrain from prosecuting an action in Québec; however, it would not be appropriate in the immediate case to exercise that jurisdiction.
* Dr. Speers is at liberty to ask the Québec court to decline jurisdiction or to ask the Québec court to apply the law of Ontario with respect to his defence to the defamation claim.
* If Dr. Speers asks the Québec court to decline jurisdiction, he may advise the Québec court that the Ontario court would accept jurisdiction over the defamation claim, and he may advise the Québec court that the Ontario court would permit the defendants to plead that the law of Québec applies to the defamation claim should they advance it by counterclaim."
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Sunday, April 05, 2009

April 2009

Thanks to all of you who attended the Osgoode Conference this year! We will forward to receiving any feedback.
As always, you can find back issues of these updates at:
You can track new class action filings at:

For long-range planners, we are going to hold the Western Canadian Class Action Conference in Vancouver on Friday, November 20 (for those of you who prefer Vancouver's sea and mountains to Toronto's.....what is it that Toronto has going for it again??). Registration details will follow in subsequent updates.
NHL Playoffs start April 16. Go Canucks/Habs Go. Flames Suck. Leafs and Oil are beneath contempt.

Lepine v. Canada Post, 2009 SCC 16: The Supreme Court determined that an Ontario settlement should not be enforced in Quebec. The grounds for the decision were quite narrow:
1. No proper notice: The court held that it is important that notice procedures be designed so as to make it likely that the information will reach the intended recipients. The wording of the notice must take account the context in which it will be published and, in particular, the situation of the recipients. Compliance with these requirements constitutes an expression of the necessary comity between courts and a condition for preserving it within the Canadian legal space. In the instant case, the clarity of the notice was particularly important given that parallel class proceedings had been commenced in Quebec and in Ontario. The court found that the Ontario notice was likely to confuse its intended recipients, as it did not properly explain the impact of the judgment certifying the class proceeding on Quebec members of the national class established by the Ontario Superior Court of Justice. It could have led those who read it in Quebec to conclude that it simply did not concern them.
2. The presence of a filed (but not certified) proposed Quebec class proceeding. The Quebec courts were precluded from recognizing the Ontario judgment on the basis of lis pendens pursuant to art. 3155, para. 4 C.C.Q. The court held that a class action exists as of its filing date for the purposes of this article. The application for authorization to institute a class action is a form of judicial proceeding between parties for the purpose of determining whether a class action will in fact take place. In the instant case, the three identities were present at the stage of this application. The basic facts in support of both proceedings were the same for Quebec residents, the object was the same and the legal identity of the parties was established. There is no discretion to refuse enforcement under the relevant article if there is an extant Quebec motion.
The court did find an error in the Quebec C.A.'s analysis of jurisdiction and forum non conveniens. The Quebec court does not have to consider how the court of another province or of a foreign country SHOULD have exercised its jurisdiction or, in particular, how it might have exercised a discretion to decline jurisdiction over the case or suspend its intervention. Enforcement by the Quebec court depends on whether the foreign court HAD jurisdiction, not on how that jurisdiction was exercised, apart from the exceptions provided for in the Civil Code. On the facts, the court concluded that the Ontario court had properly assumed jurisdiction given that the defendant's head office was in Ontario. However, the two problems noted above precluded enforcement.
We draw the following conclusion from these findings: Quebec courts should respect a national class in proper circumstances i.e. where the original court had jurisdiction, where proper notice is given, and where there is no Quebec motion filed prior to the common law action. While this is "good news" in terms of the appropriateness of national classes, we do have a concern that this only heightens the incentive for a "race to the courthouse" , as it is now essential to get on file in a common law province with a proposed national class before there is a filing in Quebec, in order to have any chance of securing Quebec recognition of a future common law judgment.
The court declined to provide any broader guidance on the management of overlapping class proceedings stating:
"As can be seen in this appeal, the creation of national classes also raises the issue of relations between equal but different superior courts in a federal system in which civil procedure and the ad-ministration of justice are under provincial jurisdiction. This case shows that the decisions made may sometimes cause friction between courts in different provinces. This of course often involves problems with communications or contacts between the courts and between the lawyers involved in such proceedings. However, the provincial legislatures should pay more attention to the framework for national class actions and the problems they present. More effective methods for managing jurisdictional disputes should be established in the spirit of mutual comity that is required between the courts of different provinces in the Canadian legal space. It is not this Court's role to define the necessary solutions. However, it is important to note the problems that sometimes seem to arise in conducting such actions."
This throws the mess back into the hands of the courts and the legislatures. There was much talk at the Osgoode conference of how to move forward in this respect. More to come!

Wuttennee v. Merck Frosst, 2009 SKCA 43: The Saskatchewan Court of Appeal solved the competing national class problem in the Vioxx litigation by deciding that the Saskatchewan case should never have been certified in the first place, on traditional certification grounds.
On class definition, the court found that the court erred in over-complicating the issue through subclasses that had imbedded merits characteristics: "...the induced subclasses, defined as those "who by unfair marketing practices used by Merck, were induced to purchase Vioxx from a Canadian pharmacy rather than a cheaper NSAID and thereby suffered a financial loss", set criteria for class membership that depend on the outcome of the litigation of common issues, in this case relating to Merck’s conduct in marketing Vioxx, necessary for determination of whether it committed unfair marketing practices, as well as the outcome of the litigation of individual issues, whether the individual was "induced" by such conduct to purchase Vioxx rather than a cheaper drug and thereby suffered a financial loss. This definition is therefore objectionably circular even on the more liberal view of Cullity J., discussed above."
The court carried on to suggest that there was a fundamental flaw in the action that prevented certification generally: "In my view, much of this difficulty arises from two choices made by the respondents in fashioning this action: (1) the choice to combine in one action a number of diverse and not necessarily related claims; and (2) the choice to define those claims vaguely so as not to confine the plaintiffs to particular factual allegations. In relation to the diversity of claims, it seems clear, at least, that the claim for damages for personal injury in relation to gastrointestinal injuries or conditions is completely unrelated to the claim that Vioxx increased the risk for certain adverse cardiovascular events and, indeed, would have a distinct factual basis...In the result, however, these difficulties combine to make it difficult, if not impossible, for this Court to determine with any certainty whether the defects in the definitions of the subclasses that I have found above could be resolved by amending the class definition..."
The same problems were found to play into the common issues requirement: "[A]ll of the difficulties identified above recur in this context. In short, the diversity of claims sought to be asserted, combined with the lack of clarity of what facts are alleged in relation to each, present insurmountable challenges, in my view, to the identification of issues which are common to all claims and therefore to all members of the class."
The court held that the suitability of the case for a punitive damage claim could not stand on its own as a common issue (para.159).
On preferability, the court held: "While Klebuc C.J. relied upon the fact that class proceedings in other pharmaceutical cases had been found to be the preferable procedure, in my respectful view, he failed to consider this essential difference between the claims advanced in those cases and the myriad of claims sought to be advanced in this action. It is my view that this action vastly over-reaches what is reasonably manageable in a class action in a fair and efficient way."
Mignacca v. Merck Frosst Canada Ltd. (Nov 17, 2008) (Div Ct. ): In this Ontario Vioxx action, leave was granted on the refusal to grant a stay of the Ontario proceeding in favour of the Sask, but leave was not granted on the pure certification issues. This appeal is now presumably rendered moot if the decision above stands.
Sollen v. Pfizer, 2008 ONCA 803: The court refused an appeal by the defendant from a decision allowing discontinuance of an Ontario action so that the Plaintiff could pursue the claim in Saskatchewan. The court stated: "While we recognize that there are important issues surrounding national class proceedings commenced in multiple jurisdictions, the facts of this case do not provide the appropriate foundation for a consideration of those issues."
Ali Holdco Inc. v. Archer Daniels Midland Co., [2008] O.J. No. 4657: The Plaintiffs sought to set aside a Registrar's dismissal order, and an order that the Ontario action be set in abeyance for a year on the basis that the parallel B.C. action was proceeding first. The court granted the application.
Campbell v. Canada (Attorney General), 2009 FC 30: The Plaintiffs applied to discontinue the class proceeding so that the matter could be pursued in a new Saskatchewan claim. The court confirmed that in Federal Court, approval must be sought to discontinue (para.8). The Defendant argued that their interests should be taken into account in considering whether to grant the order. The court disagreed stating: "Having reviewed the extensive jurisprudence referred to by the parties, I have been unable to find any support for the Defendants' assertion that the Court must also be satisfied that they will not be prejudiced by the discontinuance." The Defendant also relied on abuse of process arguments. The court rejected these stating: "I accept that the multiplicity of actions commenced by the Plaintiffs, in particular, the recent action commenced in Saskatchewan may amount to an abuse of process." However, the court found that those issues should be raised in Saskatchewan given that the Saskatchewan action was commenced after the Federal Court proceeding. The order to discontinue was granted so long as notice was given (necessary due to the publicity that occurred on filing).

Bilodeau v. Maple Leaf (March 9, 2009) (Ont.S.C.): Court approved a $25 million guaranteed settlement and $3 million fee. The writer was co-counsel for the class (along with a cast of dozens). The court declined to approve a request by Merchant Law Group for pre-approval of an additional fee, and for payment of a disbursement to outside counsel hired by Merchant Law Group and Rochon Genova for the purposes of contesting carriage. Parallel approval was granted in Saskatchewan and pending in Quebec.
Geoghides v. Scotia Capital (January 23, 2009) (Ont.S.C.): Settlement of $3.4 million approved in foreign exchange case against securities broker. The writer was co-counsel for the class. Fees of 25% were approved.
Stewart v. General Motors of Canada Ltd. [2008] O.J. No. 4426 (S.C.): Court approved a defective automobile part process settlement. The writer was co-counsel for the class in B.C. The court commented on certain objections:
"A notable feature of the objections is the almost entire absence of any recognition that a settlement is essentially a compromise and that there would be risks, great delays and considerable expense in continuing with the litigation. There was also, I think, a pervasive failure to understand that the court has no power to amend the terms of the settlement, so that its refusal to give approval would mean that the litigation would continue unless and until it became possible to reach further agreement."
Fees were approved in part, with some interesting commentary:
"The first concern is that I do not see on what basis I can, or should, properly approve fees of counsel in the other proceedings. There is no evidence that they worked as a team in the prosecution of this action, or that their work on the other cases benefited the class in this action or, indeed, the members of the putative classes in such cases. The only persons who would benefit would be the lawyers in those proceedings who would, in effect, be bought off. The suggestion that the court should approve payment to the other lawyers of part of the amount the defendants are to provide to settle the proceeding could only give further encouragement to the commencement of multiple class actions in the future.
At the same time, there is, I believe, validity in the submission of plaintiffs' counsel in this proceeding that, by reaching agreements with respect to the other actions, they have conferred a benefit on the class in this proceeding. The benefit consists of avoiding delay and expense that otherwise might well be incurred because of the unresolved problems with multiple multi-jurisdictional class actions in Canada - problems exemplified by the Voutour and Tiboni proceedings. This benefit, in my view, may legitimately be taken into account in determining the appropriate quantum of the fee to be awarded to counsel in this case without purporting to approve the fees of counsel in the other cases, and without being concerned with - or interfering with - any binding agreements that the parties have made with such counsel...
In my opinion, the concerns I have expressed about approving the fees of the other lawyers do not detract significantly from the reasonableness of the total amount that the defendants agreed to pay. The amount of $2,520,000 represents a multiplier of approximately 2.6 times the docketed time of plaintiffs' counsel in the proceedings in Ontario and Quebec after the negotiated reduction of approximately 25 per cent is made in calculating an acceptable base fee. If the success achieved by the efforts of plaintiffs' counsel was to be determined without reference to the total amount that the defendants will actually have to pay - an amount that will depend on the number of claimants and the categorisation of their claims - and, if recognition is to be given to counsel's success in avoiding multi-jurisdictional disputes, a multiplier of 2.6 would, I believe, be on the low side. I am, however, not satisfied that, in this case, I can appropriately disregard the possibility that, when all claims have been dealt with, the lawyers and not the class members may turn out to be by far the principal beneficiaries of the settlement. The defendants have not agreed to contribute a minimum amount for the benefit of the class members, and there is no assurance that the net recovery for them will not be significantly less than the amount of the fees. It is, of course, equally possible that the fees will represent an acceptable percentage of the gross recovery, in which the expenses of administration to be borne by the defendants must be included. On the evidence in the record, it would be sheer speculation on my part to draw one inference rather than the other...The problem arises not just because, until the claims period has expired, it will be uncertain how many of the class members will make valid claims - and in which of the three categories those claims will fall....It has been recognised in other cases, that, for the purpose of fee approval, it is legitimate to look at the actual recovery achieved for the benefit of the class. This is consistent with the requirement that the court should look at the degree of success as well as the degree of risk...In similar circumstances, it has been recognised that it may be appropriate to defer final agreement of fees until the amounts recovered for the benefit of the class have been ascertained...In this case the amounts payable to individual class members are relatively small and over 25,000 successful applications at an average payment of $100 will be required for the payments to even equal the fees requested. Even after giving significant weight to the other factors that are relevant to a fee determination - as I am satisfied I must in this case - there is such uncertainty on the question of the total recovery, that I am not prepared at this stage to approve the payment of $2,520,000 ... There will be an order that $1.5 million of the amount to be held in escrow...may be paid to class counsel ....The balance - less any amount ordered by the Superior Court of Quebec to be paid to counsel in the Quebec proceeding - is to continue to be held in escrow until further order of the court."
A parallel approval issued in Quebec: Tsuk v. General Motors Du Canada Limitee (October 30, 2008) 500-06-000353-066 (Que.S.C.)
McCutcheon v. Cash Store, [2008] O.J. No. 5241: Settlement of payday loan class action covering all provinces but B.C. and Alberta was approved. A flat fee of $500,000 all inclusive was approved based on a minimum payment of $1.5 million plus administration costs. The court also approved a payment of $10,000 to the representative plaintiff based on the evidence filed of actual work done and the exposure to costs that was assumed, and the fact that the request was made by class counsel without request from the plaintiff himself. The court concluded: "I will, however, reiterate what I have said in other cases that, as a general rule, all benefits and payments to be made by defendants should be treated as a single package when considering the fairness and reasonableness of a settlement from the viewpoint of a class. This, I believe, should be accepted whether or not there are expressed to be separate agreements for fees to be paid directly by defendants rather than out of a settlement amount otherwise earmarked for the benefit of the class. As in other parts of the law, substance must prevail over form." The writer is counsel for the defendant in B.C.
Lawrence v. Atlas Cold Storage (February 12, 2009) 04-CV-263289CP (Ont.S.C.): Securities class action settlement for $40 million gross approved. Fee request of $12 million knocked down to $6.3 million based on concerns about overlawyering (resulting in a 25% reduction to the base time), and in order to put multiplier in the appropriate range (2.6).
Bernett v. St. Jude, 2009 BCSC 82: Settlement rejected due to failure to provide for compensation for possible psychological injuries.
Meretsky v. BNS (January 23, 2009) (Ont.S.C.): Settlement of FX class action paralleling Cassano v. TD. Fees of 20% were approved. For more information see
Walker v. Union Gas Ltd., [2009] O.J. No. 536: Criminal interest rate case settled for $9.2 million, or 8.8% of the late penalty payments (as compared to 19.3% in the earlier Enbridge settlement). The court stated: "The lower proposed settlement percentage in the Union class proceeding is justified because there are a number of issues relating to liability and the quantum of damages which arguably distinguish this class proceeding from the Enbridge class action." (at para.26). The court approved a distribution of $5.4M to the Winter Warm Program, $3.1M to class counsel, $600g to the Class Proceedings Fund, and $140g for notice. The fee was a multiplier of approximately 2.19. The representative plaintiff was paid $5000 from the fees otherwise payable to Class Counsel fees for 70 hours work. The court approved the cy pres distribution stating: "The Court is satisfied that it is both administratively difficult and prohibitively costly to attempt to determine the late payment penalties incurred by individual customers of Union and allocate individual payments in restitution. It is efficacious and efficient to have a cy pres distribution as seen in the Enbridge settlement."
Wong v. Sony Corp., [2009] O.J. No. 22 (S.C.): Settlement approved of DVD defect class action. Fees of $110,000 were approved, which were less than the time invested in the case.
Slabodkin v. Sandals Resorts International (2000) Ltd., [2008] O.J. No. 5323 (S.C.): Settlement of disrupted vacation class action. Compensation was 5 nights at an all inclusive resort, but not airfare. The court noted that there were substantial risks on all levels of the case. Fees of $50,000 were approved, which was said to be in excess of recorded time.
McColl v. Whitehall-Robins Inc. Canada (c.o.b. Wyeth Consumer Healthcare) [2008] O.J. No. 5311 (S.C.): Settlement of PPA class action approved. The only known personal injury class member was paid an undisclosed amount and $200,000 was paid cy-pres. Fees of $100,000 were approved, which was a 0.5 "multiplier".
Butler v. Honda Canada Inc. [2008] O.J. No. 5390 (S.C.) and (March 25, 2009) 52333CP (S.C.): Settlement of odometer case approved, subject to approvals in BC and Quebec, which are pending. Fees of $650,000 proposed.
Nutech Brands Inc.v. Air Canada, [2009] O.J. No. 709 (S.C.): Court approved partial settlement of this price fixing class action. The settlement fund net of fees was to be held in trust until further settlements or awards are achieved and a distribution protocol is approved by the court. The Canadian settlement was on par with a U.S. settlement. The settling defendant also agreed to assist in relation to the ongoing prosecution of the action. The court noted: "It is appropriate to consider non-monetary benefits in the assessment of the reasonableness of a settlement agreement..." In a subsequent decision at [2009] O.J. No. 710 (S.C.), the court approved a 25% contingency fee, which was approximately a 1.46 multiplier. A parallel approval issued in B.C. in McKay v. Air Canada, 2009 BCSC 392
Stasny v. Southwestern Resources Corp (November 3, 2008) CV-07-CV009525-0000 (Ont.S.C.J.): Securities class action settlement. Parallel cases were approved in B.C. (Martin v. Southwestern Resources Corp. January 14, 2009, S075049, B.C.S.C.) and Quebec (Vézina c. Southwestern Resources Corp., 2008 QCCS 5907). The courts approved a 24.79% contingency fee.
Smith v. Labatt Brewing Co., [2009] O.J. No. 117 (S.C.): Retirement benefits claim settled. Settlement restored approximately 25-50% of the expense that would have been incurred under the proposed amendment to the plan. A flat fee of $400,000 inclusive of disbursements and taxes was approved versus actual time of $261,000.
Manulife Securities International Ltd. v. Société Générale, [2009] O.J. No. 77 (S.C.): Investment class action settled.
Dhillon v. Hamilton (City), [2008] O.J. No. 5303 (S.C.): Pension case settled. The case had previously been certified in 2006. Counsel fees and disbursements of $540,000 were approved. No premium was sought.
799376 Ontario Inc. (c.o.b. Lonsdale Printing Services) (Trustee of) v. Cascades Fine Papers Group Inc., [2008] O.J. No. 5280 (S.C.): Price fixing case settled. Court approved a 25%/2.88 multiplier fee. Court noted that there was no reversion, so there was no need to consider whether fees should be based on amount actually distributed.
Djemai c. Institut Aviron inc., 2008 QCCS 6022 and 2009 QCCS 1075: "Defective education" case settled.
Carpentier c. Apple Canada, 2008 QCCS 4537: Ipod nano screen scratch class action settled for up to $345,000 in credits (depending on take up) and $40,000 in legal fees. The court held that this structure was not a collective recovery allowing the Fonds to take a percentage under 1031 C.P.C. Nor was in a monetary payment or damages entitling the Fonds to claim under 1028 CPC.
Rouleau c. Fortin, 2009 QCCA 452: Settlement notice regarding agreement with certain defendants approved. Cross appeal by other parties arguing limitations dismissed.
Doyer c. Dow Corning Corporation, 2008 QCCS 5746: Interim distribution of 64% of claims from settlement fund approved.
Ostiguy c. Québec (Procureur général, 2008 QCCS 5853: Court approved fee request of $10,000 in settled class action, rather than the $100,000 requested.

Sperm bank storage case refused certification: Lam v. University of British Columbia, 2009 BCSC 196: The writer was counsel for the fridge repairman. The court noted that the claim would turn in large measure on whether the class could overcome a contractual waiver, which was an individual issue. The decision is under appeal.
Franchise case granted certification: Landsbridge Auto Corp. v. Midas Canada Inc., [2009] O.J. No. 1279 (S.C.) The court struck certain causes of action but allowed others to remain, including unjust enrichment. The court made an interesting comment on class definition:
"Generally, I do not see why, as a condition for certification, plaintiffs should be compelled to include every person who shares in the common issues. It is, for example, accepted that geographic limitations are permissible and I see no reason why other limitations should be rejected. In any event, I believe it was not unreasonable for the plaintiffs in this case to limit the class they wish to represent to those persons who will have a continuing interest in the franchise relationship and in the respective rights and responsibilities of Midas and the Franchisees." (para.70)
Allegiance case refused certification: Roach v. Canada (Attorney General), [2009] O.J. No. 737 (S.C.): The court held that there was no proper claim for damages and hence an individual declaration for constitutional invalidity would be the preferable procedure. Interestingly, on class definition, the court would have allowed a representative who was counsel at the class counsel firm. The court stated: "As a general rule, it is not appropriate to appoint as a class representative a member, or associate, of a law firm that would act as class counsel... However, there is not here the usual potential conflict of interest and appearance of impropriety arising from the possibility that decisions he might make in the proceeding would be influenced by his firm's interest in earning substantial legal fees. Mr Roach has been the moving force behind the proceeding in his personal capacity, and his involvement in the case and the earlier proceeding - together with his legal knowledge and experience and his strong commitment to enforcing the rights of the class members under the Charter - make him eminently qualified to perform the responsibilities of a representative plaintiff. In the circumstances of this case, I do not consider that it would be necessary or desirable for this purpose to saddle him with the expense of retaining other lawyers."
Denial of psychiatric services case certified: Labelle c. Agence de développement de réseaux locaux de services de santé et de services sociaux - Région de Montréal, 2009 QCCS 204
Repair Estimate charge case certified: Dean v. Mister Transmission (International) Ltd., [2008] O.J. No. 4372 (S.C.): The proposed class argued that the defendant was not allowed to charge for an estimate if the repair work itself is performed. The court stated:
Para 31: "With respect to the first asserted cause of action, the request for declarations, it is clear, in my view, that the declarations, standing alone, are of no particular benefit to the plaintiff or the class. They are of benefit only if they are a springboard to the claim for damages or, to characterize it in another way, to a refund of the money paid in contravention of the statutory provisions."
Para 93 " It should be noted that the criterion prescribed by s. 5(1)(d) itself speaks of a class proceeding being the preferable procedure "for the resolution of the common issues". Normally, in my view, once the Court has found that an issue is properly a common issue, it would be unusual that a class proceeding would not be the preferable method of resolving it."
On alternate procedure: Paras. 96-98: "The defendants argue that a class action is not the preferable procedure because there is a dispute resolution mechanism created by the Consumer Protection Act, 2002. I disagree.... Both the Motor Vehicle Repair Act and the Consumer Protection Act, 2002 provide for a right of action in court. Neither statute precludes the use of the procedural mechanism of a class proceeding where circumstances warrant. The defendants argue that the Consumer Protection Act, 2002 provides for consumer complaints to be investigated by the Minister of Consumer and Business Services, and that such complaints may be determined by the Licence Appeal Tribunal, pursuant to s. 109 of the Act. I am not convinced that that process, even if available for claims of this sort, which I doubt, provides an adequate mechanism for the resolution of these claims that is superior to a class action."
Illegal school fees action not certified: Wiggins v. British Columbia, 2009 BCSC 121: The case was struck down based on the cause of action requirement. The court stated at para.34:
"With respect, nothing in the governing statute itself, the School Act, supports that plaintiff's assertion that the Province has a statutory duty to monitor and control the compliance of boards of education with law and policy regarding the charging of school fees. As the defendant submits, the purpose of the School Act is to establish a structure for the provision of educational services by independent boards. The statute clearly envisions boards of education as independent, elected bodies that operate with considerable autonomy. As such, the imposition of liability on the Province for the failure to control or monitor the schools or boards is contrary to the scheme of the School Act."
Alleged service interruption of cable services certified: Wilkins v. Rogers Communications Inc. [2008] O.J. No. 4381 (S.C.)
Immigration case refused certification: Patel c. Québec (Procureur général) (Ministère de l'Immigration et des Communautés culturelles), 2009 QCCS 601. Action was brought on behalf of all persons who applied for immigration to Canada under the Quebec skilled worker program and whose applications were rejected without being informed of their right to apply for an administrative review of such rejection. There was a nice (English) statement of Quebec's cause of action test: "Even though Patel need not go so far as to show a probability that her conclusions are well-founded as regards the alleged facts, it is a well-accepted principle that Patel must allege facts in a sufficiently precise manner so as to enable the Court to ascertain if the rights Patel is claiming have any chance of being recognized on the merits" (at para.41). The court found that there was no appearance of right given (1) the delay in making the claim, (2) the information that was provided to the representative plaintiff, and (3) the weakness of the contractual and discrimination claims.
The court also rejected certification based on the fact that there was insufficient commonality: "...[The] Court finds that even though the questions in law are possibly identical for all members of the potential class, they are contingent on the determination of an individualized set of facts that require separate analysis for each class member."
On the suitability of the representative, the court rejected the proposed individual noting that (a) all investigation had been done by the law firm, (b) no effort was made to contact even a small number of class members, (3) the immigration consultant retained by the Plaintiff was controlling everything, (4) the plaintiff had refused the opportunity for an administrative review, and (5) the plaintiff did not show that she was able to finance the proceedings, particular the cost of notice.
Pension case certified: Caponi v. Canada Life Assurance Co., [2009] O.J. No. 114 (S.C.). The court declined to certify the aggregate assessment question based on the evidence before it that consideration of individual circumstances may be required. However, the court stated " would be for the judge at the trial of the common issues to choose between the differing views of the methodology to be employed, and the information required, in calculating damages and, for this purpose, also to decide whether the conditions for an aggregate assessment are satisfied. Accordingly, the exclusion of issue (e) from the common issues would not in any way restrict the powers of the court at trial." On preferable procedure, the fact that the representative plaintiff had a claim for $780,000 did not prevent certification as "The important question, however, is whether access to justice will be provided for the Class and the fact, or the possibility, that the Plaintiff could afford to litigate the issues is not decisive." The suggestion that the case could proceed as a test case was "beside the point in the absence of any agreement by the Defendants to treat such a proceeding as a test case that would bind them vis a vis the remaining Class members." (at para.50). The court declined to mandate a separate subclass representative as "I see no justification for an inference that Mr Caponi would have any consequential conflict of interest, or otherwise be an unsuitable representative for such a subclass. He is a former long-standing employee of the Company with a substantial interest in the preceding and is a member of the Canada Life Canadian Pension Plan Members' Rights Group - a voluntary association established to promote awareness, and to provide information, relating to the rights of plan members."
Native membership rights case refused certification: Buffalo v. Samson Cree Nation, 2008 FC 1308: Court held that common issues were not adequately stated. On preferable procedure, the court held that litigation could be better resolved individually where proposed class members benefits would all have to be individually considered, and all had different releases. The court also noted the importance of individually assessing discoverability. Finally, the court noted that individual claims could be in the range of $200,000, giving class members a potential interest in individually controlling separate actions. On the adequacy of the representative, the court noted the failure to produce a litigation plan. The court declined to order any costs against the representative plaintiff.
Product defect case refused certification: Chartrand v. General Motors Corp., 2008 BCSC 1781: Notably the proposed representative "... became involved in this case because she was contacted by the proposed class counsel. Counsel had previously acted for her with respect to motor vehicle accidents. Her evidence is that counsel telephoned her in September 2005, and told her that her truck, which she purchased after one of the accidents, and which is one of the proposed class vehicles, might have a problem with a parking brake. Counsel asked her if she was interested in having her truck investigated. She agreed, and went to his office." After the inspection, counsel paid for the inspection and repair.
The court found there was no class stating: "It is not enough to point to a group of people in British Columbia who are owners of specific vehicles with automatic transmissions. There must be some evidence that two or more people have a complaint that GM manufactured a dangerously defective product that caused them a loss and/or that GM was unjustly enriched at their expense...[The class test] requirement has been viewed as an air of reality test, testing the reality of the linkage between the plaintiff's claim and the proposed class...There is evidence of anyone wanting to participate in the class proceeding; Ms. Chartrand herself was recruited to participate."
On the adequacy of the representative "In assessing whether Ms. Chartrand is an appropriate representative plaintiff, the Court may look to her motivation and the competence of her counsel...98 She is entitled to look to counsel to know the law, the procedures, and to devise the strategy whereby a remedy will be obtained: Frey v. BCE Inc., 2007 SKQB 328, 312 Sask. R. 4 at para. 7. She does not have to demonstrate an extensive understanding of the litigation process itself.
99 What is needed is a genuine plaintiff with a real role to play and not a placeholder plaintiff for the entrepreneurial interests of lawyers who have so much at stake...I, however, am not satisfied that she has been actively participating in the decisions relating to the litigation to date. Nor am I satisfied that she would actively participate in the future by directing the litigation and instructing class counsel. The role for which she was recruited is a passive one. In that sense she is not in a position to vigorously and capably prosecute the interests of the class...This conclusion is reinforced by the contents of the retainer agreement. That agreement makes no reference to her participation in decision making. Her retainer agreement is quite different in this respect from the one found in Fantl, ...which says that the client "retains the right to make all critical decision regarding the conduct of the matter"
On the recruitment: "There is no specific legislative provision or legal principle which prohibits recruitment. Nevertheless, recruitment is a factor to consider in deciding whether a proposed representative plaintiff can fairly and adequately represent the class."
On the role of U.S. Counsel: "Concerns also arise when American counsel are involved in proposed Canadian class pro-ceedings. The nature of the involvement is relevant. Lawyers from other jurisdiction may be able to act as consultants. It is a different matter if they are in some way underwriting the litigation and obtaining a potential benefit from it. A representative plaintiff must have competent counsel in order to fairly and adequately represent the interests of the class. The court, as part of its role in a class proceeding, supervises class counsel to ensure that counsel is acting in the interests of the class. The court is not in a position to supervise the actions of or participation of counsel from another jurisdiction."
In summary: "...she is not a suitable representative plaintiff because: she was recruited to play a particular role by counsel which did not involve active participation in decision making, at a time when she had no complaint against GM; she has no real interest in the outcome of the litigation because she was given a financial incentive to become involved; and her counsel has a partnership with U.S. lawyers, the nature of which is undisclosed, which may not be in her best interests or in the best interests of the class"
Light cigarettes action refused certification: Sparkes v. Imperial Tobacco Canada Ltd., 2008 NLTD 207: The court found that the fact that the Director of Trade Practices could bring an action in a representative capacity did not bar a class proceeding under s.41 of the Newfoundland Act: "The Plaintiff's action cannot be taken in a representative capacity under the TPA unless undertaken by the Director in his regulatory role under section 15 or following a written request by a consumer under section 16. There is no mechanism under section 15 to bind all members of the class, although the court may grant relief for the benefit of the class. The hallmark of a representative action is that it be binding on all persons represented or else there is little point in pursuing such an action."'
The case fell down on the cause of action requirement however. In relation to the alleged Trade Practices case, the plaintiff had failed to plead the requisite damages: "The TPA creates a single cause of action by a consumer under section 14(1) which may lead to various remedies under section 14(2). But in that action, the plaintiff must allege that he suffered damages as a result of an unfair trade practice committed by "the" supplier, i.e., the defendant with whom he entered into a consumer transaction. The TPA also allows for a Director's action in section 15 by which the Director of Trade Practices may commence an action against "a" supplier who has, in his opinion, "engaged" in an unfair trade practice. The Director may seek the remedies available under section 14. There are no issues of a consumer transaction, individual reliance, damages or privity of contract. In my view, the Plaintiff is attempting to pursue a Director's action under the guise of an individual action which is not permissible under the legislation."
The court also held that an alternate cause of action was flawed as it was, in essence, seeking to establish a nominate tort of breach of statute. The court went on to find that there was no identifiable class given the lack of a proposed connection to the alleged misrepresentations. On common issues, they were either not common (because of the need to establish reliance), were not supported by adequate evidence (in relation to aggregate and punitive damages), or related to defences that had not yet been raised.
Subdivision marketing case certified: Haddad v. Kaitlin Group Ltd., [2008] O.J. No. 5127 (S.C.): The court did not certify waiver of tort against a parent company because there was no allegation of wrongdoing against the parent, only a claim seeking to pierce the corporate veil. The court also confined the class to direct purchasers. The court confined the misrepresentation common issues to the specific issue regarding the golf course that was at the core of the pleading. The court deferred the issue about whether issues regarding possible defences should be certified until after a Statement of Defence was filed. The court found that certification was preferable even though the court acknowledged that issues as to reliance would remain. The court required that a second representative plaintiff be added given that the representative plaintiff's situation was "somewhat unique".
ZoPf v. Soberman Tessis Inc., [2009] O.J. No. 1104 (S.C.): Class action over allegedly misrepresented debentures certified. The application was unopposed save for a wrinkle created by a potential competing class action. The court deferred any carriage fight as follows: "Lerners LLP represents a group of class members, and I was advised that if a co-counsel arrangement was not achieved, a member of this group might commence a rival class action and bring a carriage motion. The certification of Mr. ZoPf's action as a class proceeding is made without prejudice to the rights of these class members to commence another action and to seek carriage."
Certification granted on appeal in paint delamination case: Vermette c. General Motors du Canada ltée, 2008 QCCA 1793. The majority held that the trial judge's decision on the extent of individuality was based on facts not in evidence, particularly given that the court had declined GM's request to submit an expert report. The court noted that there was a core common issue: "En l'espèce, la démonstration de la présence d'un vice caché de conception ou de fabrication à l'égard des véhicules visés par le recours collectif profitera indubitablement à l'ensemble des membres du groupe."
Ponzi case certified: Eaton v. HMS Financial Inc., 2008 ABQB 631: There were certain conditions imposed, in particular that any Representative Plaintiff surrender any commissions to the Plaintiff class prior to the certification order to avoid a conflict of interest. The court also noted that any commissions would have to be deducted from each class members award. Certain causes of action were struck. A few points of note from the decision follow.
On class definition: "I find that "having suffered a loss" is not merits-based because having invested and suffered a loss only gets one into the class and it does not determine recovery collectively or individually. In other words, to be a merits-based class it would have to be something to the effect of, "those who have suffered losses that were the product of fraud by the Defendants or their agents", which is not the case." (para.53).
On the need for a rep plaintiff for each defendant: "I believe that, in face of less than a complete document record at this point in the proceedings, and with Carlson not providing (or yet required to produce) any evidence, there would be a substantial injustice to the class if there was a need for a specific representative Plaintiff with a personal cause of action against Carlson at this point in the litigation...Moreover, I find that the evidence is sufficient at this stage in this unique case, before document disclosure, to make it apparent that one or more of the class members, albeit not specifically identified on the record at this time, has an action against Carlson, and that is sufficient. This is not a case, as in my decision in Alberta Society for Pension Reform, where the proposed representative plaintiff could never have a cause of action against any of the defendants. In any event, subject to other decisions I have made herein on the proposed Representative Plaintiffs, I find that they are, at this time, suitable for this purpose." (at para.67)
On the potential multiplicity of representations: "While to some extent yet to be determined there may be individual circumstances, I find that a class proceeding is appropriate where the allegation is of relatively few primary misrepresentations by Defendants, not a "myriad" of misrepresentations." (at para.133)
Risorto v. State Farm Mutual Automobile Insurance Co.,[2009] O.J. No. 820 (Div.Ct.): Court overturned decision by trial court to allow plaintiff to file fresh affidavits and take second shot at certification. The court held that the same test for new evidence should apply as in regular proceedings:
"Parties involved in this sort of litigation understand well the significance of an order granting or refusing certification. Both parties will usually devote substantial amounts of time and resources on the motion. Typically, the magnitude of costs requested, and often awarded, vastly exceeds anything awarded on an ordinary interlocutory motion. Indeed, it is difficult to conceive of an interlocutory proceeding in which the parties would better understand the need to put their best foot forward. In my view, the interests in preventing litigation by installments; requiring parties to put their best foot forward; and finality; are just as compelling in certification proceedings as they are in any other proceedings...In my view, neither s. 5(4) nor s. 12 of the Act compel a different approach. Section 5(4), on its face, permits the Court to "adjourn" the motion for certification to permit the parties to amend their materials or pleadings or to permit further evidence. That is not what occurred here. In this case, the motions judge had dismissed the motion. He was compelled to reopen the motion, and then adjourn it. While the Court retains its discretion to permit the calling of further evidence once the motion for certification has been disposed of but before a formal order has been taken out, the exercise of such discretion is not governed by s. 5(4). Section 12 of the Act allows the Court to "make any order it considers appropriate respecting the conduct of a class proceeding to ensure its fair and expeditious determination". While this provision is an express recognition of the broad flexibility conferred on certification judges, it cannot be construed, in my view, so as to override the long-standing and well-understood principles that apply once the Court has rendered its judgment and it is sought to reopen the proceedings and tender new evidence...For these reasons, in my view, the motions judge erred in the test that he applied for the reception of new evidence, namely, that there is an arguable case that the new evidence might justify certification. In my view, the test that he should have applied was the two-pronged test set out in Sa-gaz, namely, whether the new evidence would probably have changed the result, and whether it could not have been discovered by the exercise of due diligence"

MacKinnon v. National Money Mart Co, 2009 BCCA 103: The BCCA was asked to uphold the arbitration clause on reapplication by the Defendant following the SCC's decisions in Rogers and Dell. The court found that the law regarding commercial arbitration in British Columbia was not so different from Quebec law as to warrant a departure from the Supreme Court's findings with respect to the availability of arbitration to resolve class actions. However, the court found that issue estoppel applied to preclude Money Mart from applying to stay the proceedings in favour of arbitration. There were no special circumstances warranting the court's intervention to allow Money Mart to benefit from the changed law. The court also found that there was no error in failing to determine the constitutionality of s.347 of the Criminal Code at the certification hearing.
In Seidel v. TELUS Communications Inc., 2009 BCCA 104, the court reaffirmed its position on arbitration clauses, but to greater effect as issue estoppel did not apply. On the issue estoppel point, the court stated:
"Section 15(1) of the Commercial Arbitration Act specifically deals with the timing of stay applications. It provides that the application may be made by a party to legal proceedings "before or after entering an appearance and before delivery of any pleadings or taking any other step in the proceedings". TELUS has not delivered a statement of defence, and the provision of the list of defences did not constitute a step in the proceeding. TELUS did apply to strike out certain of Ms. Seidel’s claims but such an application is not a step in the proceedings...It must be remembered that when Ms. Seidel commenced her action, MacKinnon (2004) was binding authority in this province, and it held that an application for a stay under s. 15 prior to the certification application of an intended class proceeding was premature. TELUS delivered its stay application promptly after the issuance of Dell and Rogers cast doubt on the correctness of McKinnon (2004). TELUS cannot be faulted for its failure to make an earlier application when such an application was bound to fail pursuant to MacKinnon (2004)." Although there was a dispute about whether the 2003 arbitration clause applied to claims prior to that date, the court held that this should be determined by the arbitrator, not the court.
Smith v. Moneymart, 2008 ONCA 746: Court refused to allow Moneymart to revisit the issue as to whether arbitration clauses trump the class action, based on issue estoppel. Leave to appeal was subsequently dismissed: [2008] S.C.C.A. No. 535.
Smith Estate v. National Money Mart Co. [2008] O.J. No. 3497: Costs on application to dismiss. The Defendants moved for a stay of the action and the Plaintiffs moved for a partial summary judgment. See Smith Estate v. National Money Mart Co., [2008] O.J. No. 2248 (S.C.J.). The court dismissed both motions. On costs, the court concluded " is my view that costs in the cause is indeed the appropriate order for the summary judgment motion. I do not think, however, that a similar order should be made for the motion for a stay. For the motion for a stay, it is my opinion, that the Defendants should pay the Plaintiffs their costs forthwith.
Smith v. Moneymart, [2008] O.J. No. 4474: The purpose of this hearing was to determine the quantum of those costs. The court assessed: (a) the Plaintiffs' costs of the stay motion at $289,059.23; (b) the Plaintiffs' costs of the summary judgment motion at $398,981.55; (c) the Defendants' costs of the summary judgment motion at $184,773.20; (d) the costs of fixing costs at $5,000.00 in the cause.
Bodnar v. Cash Store, 2008 BCCA 432: The appeal of certification by lenders added to the class action was denied. The writer is counsel for the lead defendant, who took no position on the appeal.
Casavant v. Cash Money Cheque Cashing Inc., 2008 BCSC 1556: Court refused to allow defendant to probe plaintiff's medical records to test adequacy. Court also declined to order that the records of transactions with other lenders be disclosed since the Plaintiff already admitted that she had engaged in transactions with other companies.
DeWolf v. Bell ExpressVu Inc., [2008] O.J. No. 4769 (Div.Ct): The defendant Bell brought a motion for leave to appeal the Order of Perell J. dated September 15, 2008, in which he dismissed the defendants' motion for summary judgment. The issue was whether an administration fee charged by the defendants to its customers constituted "interest" as defined in s. 347 of the Criminal Code. Bell had already appealed the order granting the plaintiff summary judgment as of right. The Plaintiff did not oppose leave and it was granted.

Alberta Municipal Retired Police Officers' Mutual Benefit Society v. Alberta, 2009 ABQB 44: The court considered whether the defendants should be required to file a defence prior to certification. The court decided that this was unnecessary. The court distinguished the contrary finding Murray v. Alberta, 2007 ABQB 231 on the basis that (1) the court in Murray made a specific finding that there were reasons why the Statement of Defence would be helpful, and (2) defences would likely have to be altered following certification in the present case. The writer was counsel for Alberta.

T.L. v. Alberta, 2009 ABQB 96: The court held that:
1. The Plaintiffs had not done enough work to show that a resident plaintiff needed to be appointed as the non-resident class representative;
2. The Notice should refer to the possibility that third party proceeding might be brought;
3. The Notice should refer to the proposed contingency fee; and
4. The Notice need not refer to the possibility for an adverse cost award at the individual hearing, as that could be addressed at a later stage after the common issues trial. The writer was counsel for the defendant.
Bodnar v. The Cash Store, 2009 BCSC 74: As in T.L., the court found that the initial notice need not refer to the possibility of an adverse costs award at an individual hearing. The writer is counsel for the defendant, but I can blame this decision on Luciana, since I was out of town.

Ainslie v. CV Technologies: The lower court ruled that the OSA does not require each defendant to file an affidavit in response to the plaintiff's motion for leave to bring an secondary market securities class action: [2008] O.J. No. 4891, correction [2008] O.J. No. 4927. At [2009] O.J. No. 730 (Ont.Div.Ct), the Divisional Court granted leave to appeal given that there was a difference of views between Justice Lax's decision and comments (albeit in obiter) by the court in Silver v. Imax Corp., [2008] O.J. No. 1844 (leave to appeal denied, [2008] O.J. No. 2751 (Sup.Ct.Jus.). In Silver, the court suggested that there was a duty to profer evidence in considering refusals on an examination.

Ruffolo v. Sun Life Assurance Co. (April 3, 2009 Ont. C.A.): Lower court awarded Sun Life $215,000 in costs against the severely disabled plaintiffs on failed certification application. On appeal the plaintiffs characterized the award as "one of the highest costs awards in the history of the Act against an unsuccessful plaintiff" and "grossly excessive in the circumstances." On appeal, the court held the lower court properly exercised its discretion.
Roman Catholic Bishop of the Diocese of Calgary v. Canada (Attorney General) 2009 ABQB 29: A diocese that did not participate in the national IRS settlement sought costs from Canada. While the court acknowledged the general costs principles, the court declined to exercise its discretion to award costs stating: "The principle stated that simplistically, however, does not address a matter as complex as this. A policy objective of costs is to discourage unnecessary litigation and to encourage settlement. On a policy level, there is merit to Canada's argument that this Applicant is a significant beneficiary of this global settlement:" Further, the court found that the Diocese was bound by the order in the class action settlement dismissing all related claims on a without costs basis.
McGee v. London Life Insurance Co. [2008] O.J. No. 5312 (S.C.): Costs of a successful one day certification motion pegged at $50,000. The Plaintiffs had requested $130,000. The court noted: "I do not dispute that certification in any class action is a watershed moment and that significant resources are normally devoted to achieving and defeating this. For this reason, costs awards can be high relative to other motions." However, the court noted:
1. the focus of the argument was quite narrow.
2. some of the time incurred would have been in relation to research on the merits;
3. there appeared to be substantial duplication of effort;
4. the defendants claimed that their partial indemnity costs would only have been $68,713 (although the court noted that there were some questions about the accuracy of these dockets. The court did encourage defence counsel to continue to provide such information on these types of motions);
5. the costs award in Markle v. Toronto was only $30,000, and in Pearson v. Inco the Court of Appeal awarded only $50,000 for leave and a 2 day appeal.
Matoni v. C.B.S. Interactive Multimedia Inc. (c.o.b. Canadian Business College), [2008] O.J. No. 4910 (S.C.): Court set costs on motion for certification that was successful on a narrower basis than requested on a second attempt. The court found that as a portion of the claim had been certified, the plaintiffs were entitled to costs. The court also found that the defendants delayed and complicated matters, and inappropriately threatened to pursue costs against counsel personally. The court awarded $75,000 as opposed to the $230,000 requested.
Hagos v. ING Insurance Co. of Canada, [2009] O.J. No. 931 (S.C.): The court considered costs in relation to two aborted motions relating to the appointment of two prior representative plaintiffs. It was now proposed that there be a third representative plaintiff. The court awarded $75,000 as interim costs, and stated it would consider what further costs should be awarded after consideration of the motion to add the third plaintiff.

CHS v. Alberta, 2008 ABQB 620: The court refused substitution request on the basis that the proposed reps were either not proper class members or, in the case of a public interest advocate, that insufficient steps were taken to secure parental approval for the appointment as next friend. The court also found that proposed class counsel was not entitled to a list of class members in advance of certification stating "Although a solicitor-client relationship would arise upon certification, and the appointed representative plaintiff may request documents with proper notice and disclosure of the intent to seek such information after the opt-out period has expired, counsel for the Plaintiffs is nowhere near to achieving such status at this time." The writer is co-counsel for the defendant government.

In Nette v. Stiles, 2009 ABQB 153, the court refused the Plaintiff's motion asking that the cause of action aspect of the certification test as against the Defendant Chiropractic College be heard prior to the balance of the certification elements. The Court noted that (1) the motion would not be dispositive as certain defendants were not contesting the existence of the cause of action, (2) bifurcation could result in multiple appeals, and (3) there was no indication that bifurcation would result in any material cost savings. The writer was counsel for the Defendant College.
In Anderson v. Canada, 2008 NLTD 166, the court found that certification should proceed in advance of defence motions for particulars and to add additional parties. The court stated "It seems therefore that to engage in procedures that tend to defeat the efficiencies of class proceedings is to be discouraged unless the court is satisfied that such procedures will advance the fair and expeditious determination of the class action". The court noted that a number of class members were elderly, and that the request for particulars was extensive. The court found that the Statement of Claim was sufficiently stated to allow the Defendant to meet the case for certification. In relation to additional parties, the court found that this would inevitably delay the certification motion. The court did state in obiter that if the preliminary application has the potential to dispose of the litigation or more efficiently address the objectives of the Act, then it should be heard prior to the certification hearing. The court did award costs without comment, apparently adopting the view that even in a no costs jurisdiction, the protection was only engaged at and after the certification hearing.
Merchant Law Group v. Canada (Revenue Agency), 2008 FC 1371: The court ordered that the jurisdiction motion to strike should proceed prior to the certification motion.
Brooks v. Canada, [2009] S.J. No. 81 (S.C.):: The court set the scheduling of various motions. The application to examine on affidavits was scheduled prior to the certification application. A constitutional challenge was set down concurrent with the certification hearing.
Mazzonna c. Daimlerchrysler Financial Services Canada Inc./Services financiers Daimlerchrysler inc. 2008 QCCS 5084: In proposed privacy class action arising from data loss, the defendants applied for right to examine representative plaintiff and adduce affidavit evidence. The court granted the motion on the basis that the allegations in the certification motion were rather sketchy, and hence the court could be enlightened by further information. The court did refuse to allow one proposed affidavit.
Bouchard c. Ventes de véhicules Mitsubishi du Canada inc., 2008 QCCS 6033: Jurisdiction motion heard prior to motion for certification. Court granted the motion noting that there was no pleading of any acts having been committed in Quebec in furtherance of the alleged conspiracy. There was nothing more than economic damage suffered in Quebec, which is not sufficient to ground jurisdiction. The foreign defendants were not party to any contract.
Piercey Estate v. Atlantic Lottery Corp., 2008 NLTD 202: The court allowed a summary judgment type motion to proceed in advance of certification as it had the potential to end the matter. The issue was whether the Atlantic Lottery Corporation was subject to the local Trade Practices Act. The case involved video lottery terminals. The court held that ALC was not bound to the legislation, as it was a Crown agent.

Pellemans v. Lacroix, 2009 QCCS 135: The court allow an examination of a trust company employee in this ongoing Norbourg saga. In an earlier decision, the court rejected a counsel disqualification request: 2008 QCCS 5857.

Fairview Donut Inc. and Brule Foods Ltd., Plaintiffs, v. The TDL Group Corp. and Tim Hortons Inc., [2008] O.J. No. 4720 (S.C.): This was a proposed class proceeding on behalf of franchisees The moving parties were twenty Tim Hortons' franchisees who have come together as the Executive Committee for the Concerned Franchisees Group (the "CFG") to oppose certification of the class action. The court held. "It seems plain to me that adding CFG as an intervener will only serve to delay the determination of the issues and may serve to take the proceeding off into a tangent...CFG claims to be able to offer the court the "unique perspective of franchisees", but has not shown how this will assist the court in determining whether the plaintiffs can satisfy the requirements for certification under section 5(1) of the CPA. It has not identified any evidence or argument that would differentiate its position from the position of the defendant. Finally, it seems clear that CFG shares at least some of the plaintiffs' concerns that are raised as issues in the litigation, but simply disagrees with the mechanism the plaintiffs have chosen for resolving these issues. CFG would prefer to negotiate rather than litigate. The opt out provision in the CPA is the proper mechanism to address these concerns."

Mirshahi v. Suleman, [2008] O.J. No. 4954 (S.C.): Parts of Statement of Claim struck in this failed investment action.
Sorbara v. Canada (Attorney General), [2008] O.J. No. 4739: The court held that this tax class action could only be brought in Tax Court:
"Having reviewed the Kingstreet Investments Ltd. judgment and the other cases referred to by both parties, and for the reasons that follow, it is my opinion that the Sorbaras' action should be dismissed. As I will explain in detail below, it is plain and obvious that the Sorbaras' action has a jurisdictional impediment because the Tax Court has the exclusive jurisdiction to determine whether the services provided by the portfolio managers are an exempt supply under s. 123 (1) of the Excise Tax Act. That element of their action is not a constitutional law matter but an administrative law matter of interpreting the Excise Tax Act. The Tax Court has exclusive original jurisdiction to decide that matter, and the Ontario Superior Court's undoubted jurisdiction in regards to unconstitutional legislation is not yet engaged.... In my opinion, the Sorbaras do not have an answer to the Federal Crown's jurisdictional argument and at the present juncture, the presence or absence of class action machinery in the Tax Court is not a basis for the Superior Court to take jurisdiction that has exclusively been conferred on the Tax Court."
In a subsequent ruling at [2009] O.J. No. 657 (S.C.), the court issued an $11,000 costs order against the rep plaintiff. The court did agree that s.31 applies even prior to certification. The court held that: "the effect of s. 31(1) is to encourage the court to recognize that class actions tend toward being test cases, the determination of novel points of law, or the adjudication of matters of public interest and courts therefore should be alert to and respond to these tendencies. In other words, the court should be more willing to find that a proposed class action is a test case, the determination of a novel point of law, or the adjudication of matters of public interest."
The court continued: "It can be said that virtually every class action has some aspects or attributes based upon which it becomes arguable that the proposed class proceeding is in the public interest. For example, by their very nature, in virtually every class action, the representative plaintiff will have little to gain as an individual and thus it becomes arguable that he or she is litigating altruistically and thus in the interest of others; namely a sector of the public. Similarly, virtually every class action will be important to developing the law or will affect the societal interests of some sector of the public and thus it becomes arguable that the action is in the public interest. The problem is that sometimes these arguments have gravitas and sometimes they do not.
In the context of the case at bar, put simply, applying the s. 31 arguments to the circumstances of an action about the interpretation of an exemption to a taxing statute, I am not persuaded by the Sorbaras' argument that they should pay no costs for the dismissed action"
Wareham v. Ontario (Minister of Community and Social Services), 2008 ONCA 771: The court held that the dismissal of this action should be upheld stating: "I am in substantial agreement with the analysis of the motion judge and his order striking the entire statement of claim. However, I would not restrict leave to amend the s. 7 claim to a breach based exclusively on the failure to give reasons for the denial of benefit claims. I would grant leave to amend permitting the appellants to advance a claim for a declaration of a s. 7 Charter breach based on the Province's failure to provide a process for the determination of benefit entitlement that complies with the Charter requirements of procedural fairness."
Pearson v. Canada (Minister of Justice), 2008 FC 1161, appeal dismissed 2008 FC 1367: Motion to strike claim for discrimination against practitioners of the Assembly of the Church of the Universe of Canada granted and upheld.
Cavanaugh v. Grenville Christian College, [2009] O.J. No. 875 (S.C.): Application to strike abuse class action dismissed. Problematic aspects of the claim were dismissed.
Blackman v. Fedex Trade Networks Transport & Brokerage (Canada), Inc., 2009 BCSC 201: Court heard a summary trial under Rule 18A on consent prior to certification. The court held that the custom brokerage fees were properly charged. Notably, the court found that: " I agree with the defendants' contention that the removal of the "failure to disclose" portion of the definition of deceptive practice [in the new BPCPA replacing the prior Trade Practice Act] does foreclose the plaintiff from seeking redress under the BPCPA for a complaint that he was deceived by a failure to disclose..."

Fedex Ground Package System v. Au, 2008 BCSC 1800: The Plaintiff sought to avoid the application of the Commercial Arbitration Act by stating he intended to apply to make his action a class proceeding. However, he had not noted that intention on his claim, and there was no direct evidence of the intention. The court granted the stay application.

Grant v. Canada (Attorney General), [2008] O.J. No. 4470: For the purpose of a pending motion to certify this proceeding, plaintiff's counsel requested permission to speak to an employee of Health Canada, Dr. Hari M. Vijay. When permission was refused by the defendant, a summons to witness was served on Dr. Vijay. The Attorney General moved to strike the summons. The court allowed the application stating: "Having delivered the affidavit of Dr. Gots, I do not believe the Attorney-General can now properly object to the plaintiff's desire to examine Dr. Vijay in order to test, or rebut, the opinions he has expressed and, generally, to obtain her evidence on the requirements for certification. In my opinion a sufficient evidentiary basis has been provided for a conclusion that she will be in a position to provide some such relevant evidence."

Barrette v. St. Lawrence Cement Inc. v, 2008 SCC 64: The court rejected the defendant's appeal on liability, and granted the plaintiff's appeal seeking nuisance type strict liability.
On the limitation period for damages, the court held that damage relating to events subsequent to the judgment authorizing the class action were not subject to prescription. The application for authorization to institute a class action suspended prescription until the judgment granting the motion was no longer susceptible of appeal (art. 2908 C.C.Q.), and the filing of the action then interrupted prescription (art. 2892 C.C.Q.). According to art. 2896 C.C.Q., such an interruption continues until judgment and has effect in respect of any right arising from the "same source". These words must be interpreted liberally. Here, the source of the continuing damage suffered remained the same: activities of the defendant that caused excessive neighbourhood annoyances. Since those activities continued until 1997, it would make no sense, in addition to being impractical, to ask the representative plaintiffs to repeat their motion every three years for each annoyance suffered.
In terms of damages, given the trial judge's discretion and the difficulty of assessing environmental problems and annoyances, the trial judge's use of average amounts in different zones as a method in determining the quantum of damages was reasonable and appropriate in the circumstances. The Defendant had not shown that its liability increased as a result, and there is no indication that the amount awarded was based on a wholly erroneous estimate of the injury. The trial court's conclusions on the assessment of damages were restored. The court stated:
"The provisions of the Code of Civil Procedure on individual claims do not suggest that the trial judge may not decide the amount to be awarded in respect of an individual injury (see arts. 1037 to 1040 C.C.P.). Moreover, a judge who opts for collective recovery does so "if the evidence produced enables the establishment with sufficient accuracy of the total amount of the claims of the members; [the judge] then determines the amount owed by the debtor even if the identity of each of the members or the exact amount of their claims is not established" (art. 1031 C.C.P.). This suggests that the total amount is based on an assessment of the sum of the members' individual injuries. Finally, the trial judge has considerable discretion in making this assessment in the context of a class action...Thus, a trial judge who, as in the case at bar, decides to proceed by way of individual claims is not precluded from determining the amount to be awarded in respect of an individual injury. This approach also simplifies the individual claims procedure, since it will then be possible to limit what must be proved at that stage. The question that remains is whether it was appropriate for Dutil J. to use average amounts to determine the compensation in this case. It must be recognized that the annoyances suffered by victims of environmental injury are difficult to assess... Given the trial judge's discretion and the difficulty of assessing environmental problems and annoyances, we consider Dutil J.'s use of average amounts to have been reasonable and appropriate in the circumstances. Moreover, SLC has not shown that its liability increased as a result. There is no indication that the amount awarded by Dutil J. was based on a wholly erroneous estimate of the injury."
Notably, the court distinguished Hollick and arguably provided a road map for future common law environmental class actions stating:
"It is true that in Hollick v. Toronto (City), [2001] 3 S.C.R. 158, 2001 SCC 68, this Court expressed the opinion that the class action was not the preferable means of resolving the claims of the class members. However, in that case, the Divisional Court had noted that "[e]ven if one considers only the 150 persons who made complaints - those complaints relate to different dates and different locations spread out over seven years and 16 square miles" (para. 32). In the instant case, the representatives provided detailed evidence of the injury they had suffered. Dutil J. considered all that evidence and was able to infer from it that the members in each zone had suffered similar injuries. Her analysis contains no error warranting this Court's intervention."

Saraïlis c. Voyage Héritage J. & A. inc., 2008 QCCA 2439: Dismissal of travel class action upheld.
Barbour v. The University of British Columbia, 2009 BCSC 425: Parking class action successful on common issues.
Association pour la protection des automobilistes inc. c. Toyota Canada inc., 2009 QCCS 1009: Trial court asked to consider certain quantification issues arising from successful judgment on the merits. This included the interest calculation and special costs.
Kotai v. Queen of the North, 2008 BCSC 1398: Court refused order that liability in a series of individual actions be heard together with upcoming trial in certified class action. The court found that there were no common issues remaining across the individual actions and the class action. The court also held that the individual quantum trials should not be bogged down with the CPA quantum considerations.

Zushman v. United Parcel Services Canada Ltd., [2009] O.J. No. 1252 (S.C.): The Merchant Law Group sought to discontinue an Ontario proceeding. There was a competing Ontario action on the same issues that the court was advised would be proceeding instead. The court allowed the motion stating: "I see no reasons why the decision of experienced counsel to proceed only with the Wright proceeding should be questioned in the interest of the class"
The court did hit the plaintiff with costs however stating: "Given the practice of starting multiple class actions in which counsel compete for carriage, I believe it is important to emphasize that orders for costs can be made to compensate defendant's counsel for their work and time expended in cases that have subsequently been discontinued or stayed." Costs of $12,500 were awarded.

Jeffery v. London Life Insurance Co. [2008] O.J. No. 5395 (S.C.): Plaintiff had set matter down for trial, but then sought early exchange of expert reports. Defendant said that leave was required. The court found that:
"I am of the view that pursuant to s. 12 of the Class Proceedings Act, parties may bring motions before the court at any stage of the proceeding respecting the conduct of the proceeding to ensure its fair and expeditious determination. As a result the party who set the common issue trial down for trial ought to be able to bring a motion such as this one. To decide otherwise could deny parties access to the court to fulfill the functions contemplated by s. 12 of the Class Proceedings Act. Further, in my view, an order granting the type of relief sought by the plaintiffs on these motions would be an appropriate order pursuant to s. 12 of the Class Proceedings Act. A conclusion to the contrary would thwart the purpose for which s. 12 was enacted, that is to ensure a fair and expeditions determination of a class proceeding."
However, the court found that it would not be just to impose early disclosure, as the defendants could not meet the deadline. The trial was adjourned and a later date set for delivery of reports.

Peter v. Medtronic Inc. [2008] O.J. No. 4378: The defendant sought an order that the Plaintiff post $257,000.00 in security for costs. The court confirmed that it has the discretion under s.12 to order security for costs even where Rule 56's requirements are not met.
"As I discussed in Fantl v. Transamerica Life Canada,...the Legislature intended that class proceedings have a genuine plaintiff. This is important, amongst other reasons, because it allows the purposes of a two-way costs regime to be achievable, in whole or in part, in a class proceeding. Colloquially, a two-way costs regime means that the Legislature intended that both parties have some "skin in the game" and an incentive to make responsible decisions about how the class action is litigated. "
On the need for costs:
"In their view of the role of costs and or an order for security for costs, the Defendants focus their attention on the alleged circumvention of their reasonable expectation of recovering costs if they are successful in defending the action. The regimentation of costs in litigation, however, has more purposes than partially (or in a few cases, substantially) indemnifying the successful party for the expense of successfully prosecuting or successfully defending a proceeding. Costs awards are multifunctional. Modern costs rules are designed to further five purposes in the administration of justice: (1) to discourage frivolous claims and defences; (2) to discourage and sanction inappropriate behaviour by litigants in their conduct of the proceedings; (3) to facilitate access to justice, including access for impecunious litigants; (4) to indemnify successful litigants for the costs of litigation, although not necessarily completely; and (5) to encourage settlements....The Defendants' argument that security for costs is needed in the immediate case to protect the Defendants' reasonable expectation of being indemnified would have more heft to it if the indemnification principle were the main purpose of the costs regime, but, as I have just noted, costs serve purposes beyond indemnifying successful parties....Apart from the alleged misrepresentation to the court, another matter I will discuss further below is that there is no reason to impose costs as a sanction for inappropriate behaviour. I again foreshadow to say that in this case this factor is insufficient to ground an order for security for costs. ...And there is little reason to order costs or security for costs to encourage a settlement. Further, I am not prepared to find that the Representative Plaintiffs were selected in order to thwart the Defendants' reasonable expectation of recovering costs, and it appears to me that they rather have exposed themselves and made a serious commitment to the class action...Moreover, what should not be lost sight of is that while the Representative Plaintiffs may not have enough to satisfy the Defendants, they have risked everything they do have. This is significant because it means that while the indemnification purpose of a costs award may not be fully achievable, the other purposes for costs are achievable. In other words, the Representative Plaintiffs do have "skin in the game" and are exposed to the regimentation of costs. If they lose, they risk everything they have, which is at least as great, if not greater a risk, than confronted by the Defendants....In any event, it is my opinion that it is not appropriate in the circumstances of the immediate case to order security for costs mainly to protect the Defendants' reasonable expectation of recovering its costs. The general principle remains that both plaintiffs and defendants are not required to secure their potential liability for costs, and the risk of a judgment proof litigant is a fact of life in litigation.... In so far as the request for security for costs is made because the Representative Plaintiffs have not applied to the Class Proceedings Fund, this is a matter in which the Defendants would normally have no say or direct entitlement...[A] a defendant's reasonable expectation of being indemnified for costs does not extend to an entitlement or expectation that the plaintiff will apply for funding from the Class Proceedings Fund and the expectation cannot be the basis for ordering security for costs, although the presence of funding would be relevant to resisting the motion.
In a subsequent decision the court awarded the Plaintiff $21,000 for costs of this motion: [2008] O.J. No. 5055 (S.C.)

Brooks v. Canada (Attorney General), 2008 SKQB 433: The court set timetable for certification hearing.

Morrison Estate v. Nova Scotia, 2008 NSSC 281: The Provinces effort to strike the fiduciary duty claim in this action challenging a change in regime for private payment of nursing home fees was dismissed. The court stated that the following regulation was sufficient to at least raise an arguable case that a specific fiduciary duty was owed to class members rather than just a general duty to the public: " [R]egulation 28B.. reads: The per diem rate for a nursing home and a home for the aged shall be determined by the Minister of Health having regard to the best interests of the resident."

Mères avec pouvoir (MAP) Montréal c. Bell Canada, 2008 QCCS 5447: The court granted the defendant's application to call oral evidence at the certification hearing of this internet bundling class action. The court found that the proposed testimony would assist in evaluating the certification criteria.

Richard v. B.C. 2008 BCSC 1275: The trial court required production of all class member files held by the defendant in this abuse class action. The trial court held that the files were potentially relevant to the systemic abuse common issue, and that class counsel had implied authority to review class member files. Leave to appeal was granted, 2008 BCCA 549, but the appeal itself was dismissed: 2009 BCCA 77. The writer is co-counsel for the defendant.
Manuge v. Canada, 2009 FCA 29: The Court of Appeal held that this Charter action should have been commenced by way of application for judicial review rather than by action. Leave was granted to reconstitute the proceeding as an application. The writer is co-counsel for the class.
Withler v. Canada, 2008 BCCA 539: Court upheld dismissal of age discrimination class action, with one dissent. Leave to appeal to SCC is being sought. The writer is co-counsel for the class.
Fantl v. Transamerica [2008] O.J. No. 4928 (Div.Ct): Appeal denied of decision allowing class representative to choose new counsel on break up of prior firm.
Popovic v. Montreal, 2008 QCCA 2371: Court affirmed lower court decision dismissing a certified case on cause of action grounds prior to certification. The judgment is of interest to class action practitioners in Québec in that the Court of Appeal confirms for the first time that a certified class action can be struck before trial on the grounds that the proceedings fail to disclose a cause of action. Ever since a judgment of the Superior Court in the Dikranian case in 2000, conventional wisdom had held that, once certified, a class action could not be struck for failure to disclose a cause of action. As the argument went, the cause of action is already analyzed at certification under Art. 1003 (b) of the Code of Civil Procedure, which requires the judge to decide whether "the facts alleged seem to justify the conclusions sought" (the "appearance of right" criterion). Bringing a pre-trial motion for failure to disclose a cause of action after certification was thus seen as a "disguised appeal" from the certification judgment and, as such, an indirect violation of the prohibition against appeals from judgments certifying class actions. The Court of Appeal explicitly rejects this argument and notes that the analysis performed under Art. 1003 (b) CCP is different and more superficial than the analysis required under Art. 165 (4) CCP governing pre-trial motions, which provides that the action should be dismissed if "the suit is unfounded in law, even if the facts alleged are true." Thanks to Marie Auden of BLG for her assistance in interpreting the fine points of the decision.
Poulin v. Ford Motor Co. of Canada, [2008] O.J. No. 4153 (Div.Ct): Refusal to certify upheld. There was an interesting point on the suggestion that the trial judge should have ordered subclasses: "The Appellant did not raise the issue of subclasses with the motion judge. The Appellant had maintained the position up to and including the hearing of the motion for certification that a single class was sufficient and presented no evidence in support of the creation or identification of sub-classes. As a result, the Respondents' witnesses were never given the opportunity to give evidence on the suitability or identity of such subclasses. Also, the Appellant has not proposed or identified the persons who could act as representative plaintiffs in respect of such subclasses and has put for-ward no evidence as to the suitability of such persons as representative plaintiffs. There is no merit in the Appellant's submission that the motion judge erred in law because he failed to take the initiative, in the absence of any appropriate evidentiary base, to create multiple subclasses" (at paras.37-38)
The court did find an error in the refusal to recognize a damages common issue in relation to the satisfaction of the Winnipeg Condo standard, but this was not sufficient to support certification.
The court found that the Transport Canada alternative proposed by the trial judge was proper given that (1) class member just had a pure economic loss claim at this point, and (2) Transport Canada could order a recall.
In terms of the probing of the counsel relationship, the Divisional Court stated: "The fact that Will Barristers was required to obtain approval from Motley Rice (who was funding the disbursements for the action) for any disbursements over $2,500 was quite properly, as the motion judge found, a significant concern in the context of the Mr. Poulin's capacity to be a rep-resentative for a class proceeding."
Davis v. Canada, 2008 NLCA 49: Court dismissed refusal to certify class action by aboriginal group. The court emphasized the required deference (para.23). In terms of the preferred test case alternative, the court stated: " I do not accept the Claimants’ suggestion that a test case would not result in the application of relevant determinations of law to other individuals. As noted by the applications judge, I would expect that the governments would consider that they are bound by any judicial determinations applicable to similar claimants." (at para.45). The court also confirmed that the court's reliance on the availability of unconditional funding was proper (para.47). The court declined to place much weight on the protection against limitations provided by the CAA stating: "The purpose of the Class Actions Act is not to shield claimants from the operation of the law where the circumstances do not otherwise establish a class action as the preferable procedure." (at para.49).
Dubuc c. Bell Mobitlité inc. 2008 QCCA 1962: Court upheld this refusal to certify a cell phone charge class action based on the failure on the part of the rep plaintiff to present the contractual terms on which the alleged cause of action was based. A similar result was achieved in Option Consommateurs c. Bell Mobilité, 2008 QCCA 2201. In the latter decision the court held that it was inappropriate to consider a proposed amendment to the class definition at the appellate stage (Kirk Baert has cancelled his plans to move to Montreal).
Nadon c. Montréal (Ville de), 2008 QCCA 2221: Dismissal of this pollen/allergy class action was upheld. The court emphasized that the legal tests on the merits are not modified in a class action. The court agreed with the trial judge's conclusion that causation had not been established. In earlier proceedings the court rejected an application to file a new report: 2008 QCCA 2214.
Diffusion Métromédia CMR inc. c. Bou Malhab, 2008 QCCA 1938: "Are you talkin' about me? Are you talkin' about me?" Appeal of partial certification of taxi cab driver libel case. The court held that the case was not properly certified as there was no basis to conclude that the individual reputation and personal dignity of each of the drivers belonging the to the targeted groups had been sullied.
Halvorson v. British Columbia (Medical Services Commission), 2008 BCCA 501: Application by Plaintiff for leave to appeal from an interlocutory order requiring him to provide particulars of his class action claim. Leave was granted. There were issues as to whether or not particulars should be provided prior to the determination of the common issues. The procedural issues were significant to the claim, which had been stalled for five years, and were significant to the practice of class actions in order to avoid similar quagmires in the future.
McMillan v. Canada Mortgage and Housing Corp., 2008 BCCA 543: Court dismissed appeal of the pleadings dismissal of this leaky condo class action.
Soldier v. Canada (Attorney General), 2009 MBCA 12: Appeal by proposed plaintiffs from dismissal of applications for certification of two actions as class proceedings. The plaintiffs sought damages from the Crown for past annuities allegedly due to them under two treaties. The court found that the standard of review of the cause of action issue was correctness, whereas the balance of the test was discretionary and therefore entitled to significantly more deference (para.24). The Court of Appeal found that the certification judge did not err in principle or commit palpable and overriding error when she considered standing as part of the question as to whether the plaintiffs had a cause of action. On the cause of action point, the court held that: "the judge erred when she held that the plaintiffs had no standing because entitlement to the annuity under Treaties No. 1 and 2 is a collective right for which an individual may not sue. Quite simply, the law in this area is not sufficiently clear to conclude that it is beyond doubt that the action could not succeed at trial." This error also caused the judge to err in relation to the common issues requirement as well. However, the court found that certification was not the preferable procedure, as the matter should have proceeded by way of representative action. The court found that the representative plaintiffs were inappropriate because they were advancing the case on too narrow a basis, relying solely on the wording of the treaty: "In the court's view, given the complexity of treaty interpretation and the need for evidence related to the intention and understanding of the treaty signatories as well as the circumstances surrounding the signing of the treaties, such evidence was required." (at para.94). "While strategy and tactics may change as litigation progresses, representative plaintiffs purporting to advance litigation on behalf of approximately 40,000 individuals entitled to treaty annuity payments must, at a minimum, demonstrate an understanding of the jurisprudence on treaty interpretation." (at para.98).
MacQueen v. Canada (Attorney General), 2008 NSCA 117: Court upheld orders requiring plaintiffs and two representative plaintiffs to attend for cross-examination on their affidavits.
Attis v. Canada (Minister of Health), 2008 ONCA 660, Drady v. Canada (Minister of Health), 2008 ONCA 659: In both breast implant cases the court found that there was no duty of care on the part of the government in relation to the approval of the relevant products.

Lefrancois v. Guidant Corp. [2009] O.J. No. 36, Tiboni) v. Merck Frosst Canada Ltd. (November 24, 2008), Toronto 503-08 (Ont. S.C.J.): Leaves denied from decisions certifying products liability actions. In Guidant, the court specifically denied to give leave on the issue as to whether the cause of action test should conform with the refinements made by the Sask. C.A. in Hoffman v. Monsanto Canada Inc.. The court in Guidant also found that there was nothing improper about the trial judge's conclusion that references could be ordered to resolve issues of causation, given that the Ontario Rules in relation to references were stated to be controlled by the operation of any statute (including s.25 of the Ontario CPA). The court noted that references were part of the case management plans in Mignacca v. Merck Frost Canada Ltd. [2008] O.J. No. 2996, leave to appeal denied November 24, 2008 and Peter v. Medtronic [2007] O.J. No. 4828, leave to appeal denied [2008] O.J. No. 1916.
Tiboni v. Merck Frosst Canada Ltd., [2009] O.J. No. 80 (S.C.): Leave granted of decision disqualifying Alan Rock from acting in product liability action given his prior role as Minister of Health.
Sun-Rype Products Ltd v. Archer Daniels Midland Co., [2008] S.C.C.A. No. 416: Leave denied from decision of BCCA that 10 year limitation period applied to constructive trust claim.
Casavant v. Cash Money Cheque Cashing Inc., 2009 BCCA 58: Leave to appeal denied from a decision (2008 BCSC 1556) refusing disclosure of representative plaintiffs' health records in a pay day loan class action. The court stated that there was no merit in the position that the defendants were entitled to conduct an in-depth medical inquiry in order to test the suitability of a representative plaintiff. The court noted "The only Canadian case to which I was referred, is Phaneuf v. Ontario (2007), 285 D.L.R. (4th) 727 (Ont. S.C.J.). In that case, it was held that Ms. Phaneuf was not disentitled to act as a representative plaintiff by reason of her mental illness: paras. 78 - 81. Leave to appeal that judgment has been granted, but on other issues: (2008), 291 D.L.R. (4th) 515 (Ont. Div. Ct.)."
Nguyen v. CP Ships, [2008] S.C.C.A. No. 473: Leave denied of decision to certify national opt out securities case in Quebec.
Berneche v. Canada, 2008 SCCA 443: Leave dismissed from order granting particulars and striking part of the claim in the Quebec branch of the "mad cow" case.
Harmengies v. Toyota: [2008] S.C.C.A. No. 173: Leave dismissed from decision refusing to certify action.
Option Consommateurs c. Novopharm Ltd.[2008] S.C.C.A. No. 346: Leave dismissed
Sagharian (Litigation Guardian) v. Canada (Minister of Education), [2008] S.C.C.A. No. 350: Leave dismissed from decision striking claim.

Monaco v. Coquitlam (City), 2009 BCSC 248: Court refused application by non-party potential class member for certain relief in advance of certification.

Pearson v. Inco [2009] O.J. No. 780 (S.C.): Court rejected application to decertify this long-running environmental contamination case. The court clarified the test for decertification stating "The moving party has, in my opinion, the burden of showing that the earlier decision would not have been made in the light of new evidence - including evidence of facts that have subsequently occurred. Subsequent facts - consisting, for example, of development that occur as the proceeding moves towards trial - may demonstrate that, contrary to the original finding, it is not manageable as a class action."
The application was based on a letter from Plaintiff's counsel indicating that he intended to rely on disclosures regarding contamination made prior to the September 2000 date that served as the trigger for the class approved by the court.
The court found that this did not undermine certification as the court was not "prepared to infer that it was necessarily assumed that there were no disclosures prior to September 20, 2000, or that such disclosures would not have had any negative impact on property values."
Further, the court relied on commitment made by Plaintiff's counsel that "it was not part of the plaintiff's case to assert that the earlier disclosures had a negative impact on property values".

Pro-Sys Consultants Ltd. v. Microsoft Corp., [2008] B.C.J. No. 1778: This was a motion brought by Microsoft seeking to prevent the plaintiffs from relying on a number of affidavits - primarily those of experts - in an upcoming certification hearing. The principal arguments made by Microsoft were:
(a) the affidavits are not proper reply evidence. Therefore the plaintiffs have split their case;
(b) the affidavits exhibit and refer to opinions of experts given in similar litigation in the U.S. That evidence is inadmissible because the authors of the opinions have not filed affidavits in this action; and
(c) portions of the affidavits are in the nature of either argument or judicial pronouncements.
The court held: "It is true that a certification is motion is to be heard as soon as possible and as efficiently and fairly as possible. Sometimes balancing those ends will entail the Court entertaining and deciding pre-certification motions and sometimes not. I do not think that it can be said that a motion dealing with the admissibility of a substantial body of evidence to which a party would want to respond is necessarily premature. The ruling on such a motion may in fact assist in the efficiency and fairness of the certification process by reducing the volume of inadmissible material at the certification hearing" The court went on to review the particular evidence, allowing some and rejecting others. On the application to cross examine the Plaintiff's experts "Suffice it to say that the courts have permitted cross-examination where there is a conflict in evidence on a point which is germane to certification. Whether to allow the cross-examination in those circumstances is discretionary and depends on the factors of each case. Such factors include the importance of the issue, whether the cross-examination will unduly delay the certification application and whether the cross-examination is likely to elucidate the relevant issue(s)."

McKenna v. Gammon Gold Inc., [2009] O.J. No. 39: This decision addressed whether a law firm should be disqualified when it prosecutes an action against a subsidiary of its client for whom it has acted in unrelated matters. The defendants included the underwriting syndicate for the public share offering of the defendant Gammon Gold Inc. Two of the underwriter defendants complained that at the time the action was commenced, Siskinds was concurrently retained by the Bank of Montreal and Toronto Dominion Bank to act for them in consumer debt enforcement proceedings and some personal bankruptcy matters. The court held that there was no conflict of interest stating; "The underwriters and the banks are separate and sophisticated business and legal entities that are individually governed and autonomous. The banks had no reasonable expectation that their subsidiaries would be treated as clients."

Pearson v. Inco Ltd., [2008] O.J. No. 3589 (S.C.): Court considered privilege issues on XFD.
Durling v. Sunrise Propane Energy Group Inc., [2008] O.J. No. 5031 (S.C.): This proposed class action arose out of an explosion and fire at defendant's facility in Toronto, which resulted in an evacuation order. There was an application for documents in the hands of the police and other agencies was made prior to certification. The court granted the order. The court did not rely on the fact that the case was a class action stating: "Although there is a broad discretion to make any order it deems appropriate, "the discretion conferred by s. 12 of the CPA is intended to supplement the Rules by accommodating the special nature of class proceedings. However, s. 12 is not designed to circumvent the normative Rules." "It would take extraordinary circumstances to allow pre-discovery discovery because of the nature of class proceedings". The court found that the plaintiffs did not require the information in order to plead. Nor was the information required for certification.
However, invoking the usual rules in relation to discovery, the court was satisfied that "...the delay in getting to the discovery stage of this class proceeding and in obtaining documents which depict the condition of the site following the explosion and fire constitutes extraordinary circumstances. In my view this is an appropriate case for early non-party production, but such productions should be as narrow as possible..."
Ring v. Canada (Attorney General), 2009 NLTD 39: Court confirmed that implied undertaking rule existed in Newfoundland. Plaintiff's counsel sought to use material obtained in this certified action in Newfoundland in a parallel Saskatchewan litigation. The court stated: "A bald statement that it is appropriate to allow the use of such material in allegedly parallel actions across the country is not convincing, particularly where the Saskatchewan Class Actions Act, ...provides that discovery in that jurisdiction is to occur after certification and the action has not yet been certified and the Saskatchewan court has ruled that the two actions are in fact dissimilar in many important respects."
Conseil québécois sur le tabac et la santé c. JTI-Macdonald Corp. 2009 QCCS 830: Court declined to order examinations of class members that did not go to the common issues.
Berry v. Pulley, [2009] O.J. No. 463 (S.C.): The court gave direction on certain refusals in this long running dispute about the rights of pilots on the merger of Air Canada and Canadian Airlines. There was also an earlier production motion at [2008] O.J. No. 4109 (S.C.-Master).

Johnson v. British Columbia (Workers' Compensation Board), 2008 BCSC 1386: This certified judicial review procedure was sent back to the trial judge to consider the remaining issues. The defendant applied to disqualify the court. The cout refused stating: "WCB argued that, because I came to the conclusions I did in the Certification Decision and the Judicial Review Decision, there is a reasonable apprehension that I will be biased in considering the Procedural Issues, which involve consideration of the court's discretion. The flaw in this argument arises from the fact that my conclusions in the Certification Decision and the Judicial Review Decision are binding on every judge of this court unless overruled by the Court of Appeal. In considering whether a judge could come to a decision without the benefit of analysis by WCAT, every judge of this court must consider that in fact I did so in the Judicial Re-view Decision."

Canadian Red Cross Society (Re) [2008] O.J. No. 4114 (S.C.): In this CCAA proceeding there was an application to consider the jurisdiction to allow late claims. The court made reference to the existence of such a power in class proceedings stating: "In considering whether the court has jurisdiction to legitimise late and irregular applications, there are number of special features of the HIV Trust that distinguish it from trusts of a more traditional kind, and even the more closely analogous provisions of settlements of class proceedings un-der which - because of the inevitable imperfection of notice-dissemination programs - late-filed claims have been allowed from time to time."

Everest Canadian Properties Ltd. v. Mallmann, 2008 BCCA 276: Appeal by Everest from a summary judgment dismissing its action against CIBC, a Canadian bank that provided advice to the trustees of the Del Cano real estate investment trust. Everest was a group of investors in the trust. Everest made an unsuccessful takeover bid which was thwarted by the trustees, who later sold the trust in a transaction which provided shareholders with a better return than they would have received had Everest's bid been successful. Everest's allegations against the trustees and CIBC involved a claim they breached their duty of care to the shareholders of the trust by failing to disclose other letters of intent and expressions of interest when the trustees recommended the shareholders approve the offer to purchase the trust that ultimately succeeded. The judge applied the rule in Foss v. Harbottle, striking the claim against CIBC as derivative and capable of being asserted by the trust itself. The appeal was dismissed. The losses and damages Everest complained of arose only as a consequence of Everest being a shareholder of the trust. The true substance of the claim was damage to the trust only. Everest failed to show it had a cause of action against CIBC that the other shareholders of the trust did not. Everest had no independent relationship with CIBC and did not suffer an independent loss in respect of wrongs allegedly done to the trust. Everest could not engineer around the rule in Foss v. Harbottle by framing its action as a class proceeding.

Hinton v. Canada (Minister of Citizenship and Immigration), [2008] F.C.J. No. 1252: Application to extend time for judicial review to add additional regns granted.

Fortin c. Playtex ltée, 2008 QCCS 5580: Application to add new representative was not opposed and was allowed.
Holmes v. Jastek Master Builder 2004 Inc., 2008 SKQB 367, leave to appeal denied 2008 SKCA 159: Plaintiffs applied to amend to plead breach of fiduciary duty and breach of trust. The Plaintiff was allowed to plead the former, but not the latter.
Hinton v. Canada (Minister of Citizenship and Immigration), 2008 FC 1343: Long-running immigration fee case. This was application to expand the class to include those under further regulations. The application was granted.

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