Law Times

HUMAN RIGHTS DAMAGES ARTICLING CHECKS Law society brings back evaluations Follow LAW TIMES on www.twitter.com/lawtimes $4.00 • Vol. 24, No. 35 P2 Case signals new era in employment law FOCUS ON P7 L aw TIMes Family Law P8 TOOLS CLOUD preview. Child and spousal support calculations anywhere, anytime, on your smartphone, tablet, Mac or PC. To get started, visit: www.divorcemate.com CO V E R I N G O N TA R I O ' S L E G A L S C E N E • W W W. L AW T I M E S N E W S . CO M November 4, 2013 ntitled-4 1 Consumers get SCC boost 13-10-25 12:53 P Price-fixing class actions 'open for business' BY JULIUS MELNITZER For Law Times I n a landmark trilogy released on Thursday, the Supreme Court of Canada has declared open season for consumers who wish to use class actions to recover overpayments for products or services that have been the subject of pricefixing conspiracies. "Price-fixing class actions are open for business in Canada," says J.J. Camp of Vancouver's Camp Fiorante Matthews Mogerman, who represented the class in Pro-Sys Consultants Ltd. v. Microsoft Corp., one of the three cases decided by the Supreme Court. "If the Court had excluded consumers, dozens of these types of cases would have been shut down, unjustly precluding consumers from recovering their losses against the wrongdoers and requiring them to disgorge their ill-gotten gains." More particularly, the court ruled plaintiffs' lawyers could lump direct and indirect purchasers into the same class action. "These decisions are, without a doubt, a big win for plaintiffs," says Michael Osborne, a class action defence lawyer at Toronto's Affleck Greene McMurtry LLP. "The entire structure of class actions in Canada has tended to be based on the one big happy family approach where direct and indirect purchasers sue in the same proceedings, and the court has basically validated that approach." Pro-Sys was a B.C. case involving operating systems. The second case, Sun-Rype Products Ltd. v. Archer Daniels Midland Co., was also a B.C. case but involved high-fructose corn syrup. The third, Infineon Technologies AG v. Option consommateurs, originated in Quebec and dealt with memory chips. The court unanimously certified the indirect purchaser 'Despite recognizing that there were complicated issues of multiple and double recovery in allowing indirect purchaser claims to proceed, the SCC clearly believed that trial judges would be able to sort these things out,' says Adam Fanaki. Photo: Couvrette/Ottawa classes in Pro-Sys and Infineon, but in a split decision, it rejected certification for both direct and indirect purchasers in Sun-Rype. The rejection of the indirect purchasers stemmed from the plaintiffs' inability to offer any evidence showing that at least two individuals (two being the minimum number for a class) could self-identify by proving they had purchased a product that actually contained the impugned syrup, something often not included on product labels. In all three cases, however, the court rejected the 1977 U.S. Supreme Court decision in Illinois Brick Co. v. Illinois, a case that has served to bar indirect purchaser claims in federal courts for more than three decades. "Despite recognizing that there were complicated issues of multiple and double recovery in allowing indirect purchaser claims to proceed, the SCC clearly believed that trial judges would be able to sort these things out," says Adam Fanaki, a class action defence lawyer with Davies Ward Phillips & Vineberg LLP's Toronto office who appeared on behalf of the Canadian Chamber of Commerce as an intervener in Sun-Rype. Just as significantly, the top court confirmed, as it had 10 years earlier when it first considered the question, that a relatively low evidentiary standard is necessary for certification of price-fixing class actions in common law provinces with an even lower one in Quebec. "It's clear that the Supreme Court does not see the certification process as a robust gatekeeping function," says Fanaki's colleague Mark Katz. It was not, the top court ruled, the certifying court's place to resolve conflicting facts or evidentiary issues. Rather, where loss issues arose, a plaintiff only had to make out a See Silver, page 5 LSUC revamps guidance on LGBT inclusion at law firms Law Times A 'I thought it was very important that they actually start to say some things some of us might think are obvious but need to be articulated,' says Susan Ursel. Photo: Laura Pedersen CLL-FP_LT_Nov4_13.indd 1 year after the province amended the Ontario Human Rights Code to recognize gender identity as a ground for discrimination, the Law Society of Upper Canada has designed an updated model policy for law firms when it comes to inclusiveness for people who identify as lesbian, gay, bisexual, and transgender. The model gives law firms guidance on issues from confidentiality to celebrating marriages as well as which bathroom transgendered staff should be able to use. According to a recent 10year report by the law society's discrimination and harassment counsel, five per cent of all complaints the office received related to sexual orientation. In addition, a 2004 Law Society of Alberta report showed that 88 per cent of gay, lesbian, and bisexual lawyers felt there was discrimination on the basis of sexual orientation in the profession. Susan Ursel, an employment and human rights lawyer at Ursel Phillips Fellows Hopkinson LLP, says although some of the model policy's contents may be obvious, it's still important to articulate them. "I thought it was very important that they actually start to say some things some of us might think are obvious but need to be articulated," says Ursel, who often works in matters related to lesbian and gay communities. In addition to the issue of fairness in the workplace, the policy also deals with matters of cultural inclusiveness, such as the celebration of employee marriages and other milestones. "Milestones in the personal lives of individuals who work at the firm that are celebrated by the firm shall include all individuals, regardless of their sexual orientation or gender identity," the model policy states. It's the smaller things firms can sometimes overlook, says Ursel. "We might say . . . 'Gee, we don't discriminate against anybody,' but we may completely overlook the fact that somebody just got married PM #40762529 BY YAMRI TADDESE See Celebrations, page 5 13-10-31 12:47 PM

• Cover