Law Times

Page 8 aPril 13, 2015 • Law Times www.lawtimesnews.com COMMENT Resist the urge to settle re the courts too lenient in certifying class actions in Canada? As Law Times reported recently, business groups certainly think so. In a joint statement from the Canadian Cham- ber of Commerce and the U.S. Chamber Institute for Legal Reform, the two organizations decried the courts' "lax class certifi- cation standards" and the resulting cost to business. In their view, the threshold for certification is too low with plaintiffs essentially guaranteed a win as a ruling on that issue in their favour virtually guarantees the parties will go on to settle. But a ruling this month in Sankar v. Bell Mobility offers another perspective. In that case, Superior Court Justice Edward Belobaba awarded Bell Mobility Inc. $110,000 in costs after dismissing a class action on summary judgment over the company's seizure of unused prepaid wireless credits. While Bell had sought partial indemnity costs of $154,000, Belobaba's willingness to award $110,000 — an amount he noted the Law Foundation of Ontario would cover — is significant. Many of the business groups' concerns are valid. It's true that while the lower courts may sometimes reject certification, the plain- tiffs will often have more success on appeal. The overtime class ac- tions are cases in point. In many of those cases, the lower courts initially rejected certification with the Ontario Court of Appeal later deciding otherwise. But as with many things, the truth is often somewhere in the middle. In McCracken v. Canadian National Rail- way Co., for example, the appeal court overturned an earlier deci- sion granting certification. And in Brown v. Canadian Imperial Bank of Commerce last year, it upheld lower court decisions refusing to duffy trial off to wild and wacky start he Ottawa political trial of the century started off last week in chaos and mayhem and was more like a sideshow than a legal case before a judge. It was wild and wacky. Some journalists showed up at the provincial courthouse on Elgin Street as early as 6 a.m. to wait for the doors to open four hours later. There were so many people that officials issued wrist- bands to let them in for the show. The star of the spectacle, veteran broadcaster and suspended Sen. Mike Duffy, couldn't resist the attention. Duffy, surrounded by news cameras, turned to his lawyer, the studious Donald Bayne, and said, "Let the guys get set up." He was ready to give a news conference. But Bayne would have none of it. He grabbed Duffy and said, "No, no, Mike. We are going into court." And in they went, ignoring the questions shouted at them. Usually when a big criminal trial be- gins, the Crown prosecutor lays down in broad terms where it intends to go and what it intends to present. And then the defence says the Crown won't be able to prove what it intends to present. But that wasn't the case last week at the Duffy trial. Duffy told Justice Charles Vaillan- court, a court veteran with three decades of experience on the bench, that he was innocent of the 31 charges against him involving allegations of bribery, fraud, and breach of trust. The Crown and defence lawyers then went at each other like prizefighters intent on slaughter as they revealed details and traded accusa- tions of all kinds. Bayne alleged the prime minister's office and three senators close to Prime Minister Ste- phen Harper had forced Duffy to "lie for political purposes" and do what they told him to in order to sweep the whole ugly mess under the rug. That was some accusation to make against a prime minister and his staff. Forget the vague generalizations. It was time for ugly details. Prosecutor Mark Holmes, for ex- ample, said Duff y and his wife had gone to Peterborough, Ont., to meet former Conser vative MP Dean Del Mastro and buy a puppy. Bayne cate- gorically denied the allegation. "There was no puppy," he said. In another instance, Duffy went to Prince Edward Island, supposedly on political business, but he actually saw his daughter in a play. The trip cost taxpayers $8,000. Bayne shot back that Harp- er was always telling his sena- tors to stay close to their fami- lies. Duffy also once travelled on the Senate's tab to attend his granddaughter's birth. Lawyers spent the entire first day trying to establish whether the Senate regula- tions book is "lacking in clarity" about what count as admissible expenses. Senators, of course, must be residents of and own property in the provinces they represent. In 2008, Harper ap- pointed Duffy as a senator from Prince Edward Island even though he had been living in Ottawa for close to 30 years. Duffy bragged that in his soul, he was still an Islander and he did in fact have property in Prince Edward Island. Did Harper know he might be break- ing the rules by appointing Duffy to rep- resent Prince Edward Island? That will come out later in the trial. Harper could easily have appointed Duffy to represent Ontario. He had been living in Kanata, Ont., for five years. At one point, the Crown alleged Duffy had paid a makeup artist and hairdresser $500 to fix him up to attend a G8 confer- ence with Harper. What would he need a hairdresser for? We can expect details on such matters later in the trial. So far, the Senate has been the biggest loser in the case. Public opinion polls sug- gest 81 per cent of Canadians want the Senate abolished or reformed. They don't even want to wait until other embattled senators Patrick Brazeau, Mac Harb, and Pamela Wallin have had their day in court. And we can add to the list any other senators the auditor general turns up during his big investigation into Senate expenses. Reports are circulating around Par- liament Hill that so far about 30 of 103 senators have approached the Senate and offered to pay back some expenses similar to those the Crown prosecutors are raising in their case against Duffy. You might say that not even a week into his trial, Duffy has already done all of us a big favour. It appears the fun has just begun. If the trial continues as it did on the first day, it's going to be a wild and wacky summer. LT Richard Cleroux is a freelance reporter and columnist on Parliament Hill. His e-mail address is richardcleroux@ rogers.com. ©2015 Thomson Reuters Canada Ltd. All rights reserved. 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Cohen Editor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Glenn Kauth Staff Writer . . . . . . . . . . . . . . . . . . . . . . . .Yamri Taddese Staff Writer . . . . . . . . . . . . . . . . . . . . . . . . Shannon Kari Copy Editor . . . . . . . . . . . . . . . . . . . . . . . . . James Kang CaseLaw Editors . . Adela Rodriguez & Jennifer Wright Art Director . . . . . . . . . . . . . . . . . . . . . . Alicia Adamson Production Co-ordinator . . . . . . . . . . . . . Catherine Giles Electronic Production Specialist . . . . . . . Derek Welford Law Times Thomson Reuters Canada Ltd. One Corporate Plaza, 2075 Kennedy Rd., Toronto, ON • M1T 3V4 • Tel: 416-298-5141 • Fax: 416-649-7870 www.lawtimesnews.com • LT.Editor@thomsonreuters.com • @lawtimes • LT.Editor@thomsonreuters.com • @lawtimes u Editorial obitEr By Glenn Kauth certify. Both cases dealt with the issue of misclas- sifying employees as ineligible for overtime as op- posed to other matters that involved more system- ic issues around the defendants' overtime policies. Sankar, then, demonstrates that companies that are willing to defend class actions can prevail, in this case on summary judgment rather than at trial. So while there's probably room for a more restrictive approach to certifying class actions and the plaintiffs in Sankar have filed a notice of ap- peal of Belobaba's summary judgment decision, it's clear the burden in many cases falls on the defen- dants to resist the urge to settle even in the face of the legal and reputational risks. And as Sankar also shows, they can get some of their costs back. — Glenn Kauth The Hill Richard Cleroux T A

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