Law Times

PAGE 24 FOCUS April 11, 2011 • lAw Times Courts deliver several precedents in class actions Recent rulings provide clarity on key legal questions for members of the bar BY DARYL-LYNN CARLSON For Law Times lawyers approach class action matters. Th e cases hail from both the Ontario T and provincial appeal courts and, in one case, the Supreme Court of Canada. All of the precedent-setting judg- ments have provided much-needed clar- ity for lawyers practising in the area. "It is always helpful when a court clar- ifi es a point of law," says Craig Brown, a partner at Th omson Rogers in Toronto. He, along with fellow fi rm partner Darcy Merkur and managing partner Alan Farrer, have been watching the area closely for case law developments that will aff ect their practice. Th e fi rm has a signifi cant class action practice and has been involved in no- table cases. One of the cases they referenced that changes the approach for lawyers is Healey v. Lakeridge Health Corp., in here have been some interesting precedents set within the past year or so that will aff ect the way which the Ontario Court of Appeal de- termined the plaintiff s couldn't submit a claim for mental anguish unless they could provide medical proof. In the Healey case, more than 1,600 patients at two hospitals were exposed to the tuberculosis virus and subsequently launched two respective class actions. "In the past, we've always entertained those cases because people are always concerned about their health after be- ing exposed to toxic elements, but the Court of Appeal said that unless you can prove a diagnosable harm, you're out of luck," Merkur says. Th e plaintiff s in the case alleged that Lakeridge and the patients' treating physicians failed to properly diagnose and take steps to prevent tuberculosis infection within the hospitals. Th e decision by the appeal court was released earlier this year and was decid- ed by a panel of fi ve judges. "It's an important case because it's clearly a case that the Court of Appeal thought was signifi cant," says Brown. "Th e issue was whether there was a It's what's inside that counts! ISSUE DATE May 2 May 9 May 16 May 30 June 6 June 13 June 20 FOCUS SECTION Personal Injury Law E-Discovery Running Your Practice Criminal Law Internet/E-Commerce Law Real Estate Law Family Law To advertise In an upcoming issue of Law Times, contact our sales team: Karen Lorimer 905-713-4339 To advertise In an upcoming issue of Law Times, contact our sales team: kimberlee.paswcoe@thomsonreuters.com kimberlee.pascoe@thomsonreuters.com What's Inside 2X.indd 1 4/6/11 10:02:31 AM TAP INTO CANADA'S MOST AUTHORITATIVE SOURCE ON PRODUCT LIABILITY NEW EDITION PRODUCTS LIABILITY, FIFTH EDITION STEPHEN M. WADDAMS, B.A., M.A., Ph.D., LL.B., LL.M., S.J.D., F.R.S.C. Canada has seen a rise in product liability claims in recent years due to increased consumer activism and the growing availability of class actions. 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He considers their development in other jurisdictions, and sets out the current state of Canadian law. AVAILABLE RISK-FREE FOR 30 DAYS Order online at www.carswell.com Call Toll-Free: 1-800-387-5164 In Toronto: 416-609-3800 karen.lorimer@thomsonreuters.com Kimberlee Pascoe 905-713-4342 karen.lorimer@thomsonreuters.com Kimberlee Pascoe 905-713-4342 Karen Lorimer 905-713-4339 'It is always helpful when a court clari- fies a point of law,' says Craig Brown. recognizable cause of action as well as a duty of care, and in its decision, the court established there was a duty of care." But the court also went on to say that the Supreme Court, in the case of Mu- stapha v. Culligan of Canada Ltd., had lowered the bar for psychological injury. Th e Ontario Court of Appeal referenced that case and addressed the duty of care accordingly. In the decision released in January, Justice Robert Sharpe, writing on behalf of the panel of judges, said: "As the ap- pellants essentially rest their case on the proposition that Mustapha changed the law and as that argument fails, I would dismiss the appeal on this ground. "However, I wish to add two points. First, even if I were to accept the sub- mission that Mustapha did change the law, it is my view that the evidence in this case falls short of demonstrating that the appellants suff ered harm of suf- fi cient gravity and duration to qualify for compensation. Th e harm revealed by the evidence was not 'serious trauma or illness' that amounted to more than 'upset, disgust, anxiety, agitation or oth- er mental states that fall short of injury' or that was 'serious and prolonged and [rising] above the ordinary annoyances, anxieties, and fears that people living in society routinely, if sometimes reluc- tantly, accept.'" Based on that explanation, the decision provides some much-needed guidance, Brown says. "It clarifi es an area of law that was uncertain, particularly for people who are frightened by a particular incident and are considering a class action as a result," he says. "So now in Ontario, they don't have the opportunity to initiate a class ac- tion based on their fear." In another matter, Seidel v. Telus Communications Inc., the question as to whether the parties are bound to a con- tractual obligation to go through arbi- tration was addressed, something Farrer says is signifi cant. In its decision last month, the top court opened the door by enabling the plaintiff to launch a class action against Telus despite the arbitration contract. "Th e court, in recognizing the broad re- medial purpose of those statutes, decided that it should allow people to sue rather than going to arbitration," Farrer says. In the case of Dobbie v. Arctic Glacier Income Fund, he notes the Ontario Su- perior Court addressed the requirements for certifi cation in a complex matter in which claims are being brought against a number of income funds and corpo- rate entities. "Th is is a very technical, diffi cult, and relatively new remedy that hasn't been very well explored previously by the courts," he says. "Justice [Wolfram] Tausendfreund wrote 79 pages, and you could teach a law school course on the decision." Meanwhile, in the case of Trillium Motor World Inc. v. General Motors of Canada Ltd., the Superior Court certi- fi ed the class action under the Arthur Wishart Act. Ultimately, Farrer believes the mat- ter will open the door to many more franchise-related class actions. "With the franchise act and this sort of thinking of the broad remedial powers of the class action act, I think it's going to open a few more doors going forward in terms of seeing many more class actions in franchise disputes," he says. 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