Law Times

Law Times • November 4, 2013 'Silver linings' for defence Continued from page 1 "credible" or "plausible" methodology that would allow a court to try the case on a class-wide basis. In a price-fixing case, the methodology had to offer a "realistic prospect" — one grounded in the facts of the case and based on "some evidence" that appropriate data was available — for establishing loss on a class-wide basis to ensure that the plaintiffs could demonstrate at trial that any proven losses were common to the class. In Quebec, however, the civil code imposed a lower standard of certification. Expert evidence was, therefore, "not the norm" at the certification stage and the plaintiffs had only to demonstrate an "arguable case that an injury was suffered." Canada's acceptance of indirect purchaser classes and its lower evidentiary standard for certification raise the prospect that competition class actions that can't be certified in the United States will come to this country and succeed here. "It's not clear yet how much sense that makes," says Christopher Naudie, a defence lawyer with Osler Hoskin & Harcourt LLP's Toronto office. However that may be, Naudie says the trilogy isn't bereft of "silver linings for defendants." In particular, he points to the court's refusal to certify the indirect class in Sun-Rype. "The significance of this ruling can't be underestimated because it reiterates that, whatever the standard for certification, plaintiffs must at least adduce persuasive evidence to meet the requirement that a class of two or more does in fact exist," he says. "So many class actions these days, like those about computer components or auto parts, involve a part of a part, where it can be hard to show that the defective product actually existed in an individual consumer's purchase or that it was produced by a particular defendant." LT Page 5 NEWS Celebrations emphasized in policy Continued from page 1 because it's a same-sex marriage," she says. "We don't know how to handle it — call attention to it or not to call attention to it — whereas the policy gives us an idea that it's appropriate to celebrate things that need celebrating and to mourn with our colleagues when their significant others pass." She adds: "I think it creates a space for people to do what as human beings they want to do. They don't want to feel like they're putting a foot wrong and this policy says, 'No, that's not putting a foot wrong; it's doing the right thing.'" Firms can adapt the model as a whole or include it in their existing policies, according to Paul Saguil, chairman of the Ontario Bar Association's sexual orientation and gender identity law section. Saguil, who's also part of the advisory group consulted in drafting the policy, says the guide was necessary because of the invisibility of lesbian and gay individuals as opposed to other equity seekers. "There are certain issues that are unique to LGBT people and that's why [the policy] is important," he says. Like Ursel, Saguil found the clause on law firm functions and celebrations an important one. "That's key because sometimes people just forget or assume otherwise," he says, adding it's important to consider inclusiveness not just structurally but socially as well. The model policy also suggests a way of addressing the question around which bathroom transgendered staff should use, an issue Ursel says "gets people all bent out of shape." When it comes to this apparent quandary, the model policy has a simple solution. "The firm respects the needs of those who identify as transgender regarding the use of washrooms and gender-specific facilities," it states. "It is that person's right to use a washroom that is in accordance with their gender identity and presentation." According to law society spokesman Roy Thomas, the policy needed an update to accommodate new laws and legal questions. "The equity initiatives department and the equity and aboriginal issues committee update their resources from time to time to ensure consistency with legal developments and evolving policies and practices," he said. "In the case of this model guide, it had not been updated for almost 10 years. Since the last publication, there have been a number of legal developments, including the inclusion of the grounds of gender identity and gender expression in the Human Rights Code and updates in definitions," he added. The model policy includes a glossary of terms, a feature Ursel says is particularly important. "Having a language to describe what's going on has been recognized as very important in human rights for generations," she says. In addition to these features, the model policy has provisions that respect individuals' choice to keep information about their sexual orientation and gender identity secret. It also includes guidance on pensions, life insurance, and the definition of a parent. The policy would apply to "everyone working for the firm or who is a partner, director, member or employee of the firm, whether part-time, full-time or casual, regardless of their position in the firm, including (professional and administrative staff, articling students, summer students, paralegals, salaried lawyers, contract lawyers, associates, and partners)," the law society guidance says. Firms that wish to draft a written policy dealing specifically with sexual orientation and gender identity should first create a committee involving "respected" members, the law society suggests. "It is most important that the committee include respected individuals of the law firm who appreciate the importance of the issues to be addressed and who will be able to communicate these matters to others within the law firm," the law society guidance says. There may be questions about why the regulator would single out a specific community for commentary, says Ursel, who adds that in this case, it was important to do so. "There's always this tension in human rights between acknowledging difference and not seeing difference. For a long time, our policies have been based on an idea that we don't see difference, that we just see a human being," she says. "Except we also celebrate diversity and diversity is difference," she adds. "So we have to find cordial and good ways of acknowledging it. This sort of opens social space by talking about it." LT Part-time, Executive LLM program for corporate counsel and practising lawyers Information T Faculty of Taught by U of Session Wednesday, December together with top Law professors, 7, 2011 5:30 - 7:00 pm Friday, December 9, 2011 8:00 - 9:30 am international faculty from U of T School of Management MIT-Sloan Faculty of Law, Faculty Lounge 78 Queen's Park, Toronto and Please feel free to drop in anytime during these hours. expert practitioners. No registration required. EVENT: For more information, call 416-978-1400 or visit: http://www.law.utoronto.ca/programs/GPLLM.html Supported by the Association of Corporate Counsel (ACC) - Ontario Chapter and in partnership with Carswell, a Thomson Reuters business. GLLM_LT_July8_13.indd 1 www.lawtimesnews.com 13-07-03 10:51 AM

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