Law Times

PAGE 6 COMMENT Law Times Group Publisher . . . . . . . Karen Lorimer Editorial Director . . . . . . . Gail J. Cohen Editor . . . . . . . . . . . . . . . . . . Glenn Kauth Staff Writer . . . . . . . . . . . . . Robert Todd Staff Writer . . . . . . . Michael McKiernan Copy Editor . . . . . . . . . Heather Gardiner CaseLaw Editor . . . . . . Jennifer Wright Art Director . . . . . . . . . . Alicia Adamson Account Co-ordinator . . . . Catherine Giles Electronic Production Specialist . . . . . . . . . . . . . Derek Welford Advertising Sales . . . . Kimberlee Pascoe Sales Co-ordinator . . . . . . . . . Sandy Shutt ©2011 Thomson Reuters Canada Ltd. All rights reserved. No part of this publication may be reprinted or stored in a retrieval system without written permission. The opinions expressed in articles are not necessarily those of the publisher. Information presented is compiled from sources believed to be accurate, however, the publisher assumes no responsibility for errors or omissions. Law Times disclaims any warranty as to the accuracy, completeness or currency of the contents of this publication and disclaims all liability in respect of the results of any action taken or not taken in reliance upon information in this publication. march 14, 2011 • Law Times Law Times Thomson Reuters Canada Ltd. 240 Edward Street, Aurora, ON • L4G 3S9 Tel: 905-841-6481 • Fax: 905-727-0017 www.lawtimesnews.com Publications Mail Agreement Number 40762529 • ISSN 0847-5083 Law Times is published 40 times a year by Thomson Reuters Canada Ltd., 240 Edward St., Aurora, Ont. L4G 3S9 • 905-841-6481. clb.lteditor@thomsonreuters.com CIRCULATIONS & SUBSCRIPTIONS $165.00 + HST per year in Canada (HST Reg. #R121351134) and US$259.00 for foreign address- es. Single copies are $4.00 Circulation inquiries, post- al returns and address changes should include a copy of the mailing label(s) and should be sent to Law Times 240 Edward St., Aurora, Ont. L4G 3S9. Return postage guaranteed. Contact Jacquie Clancy at: jacquie.clancy@ thomsonreuters.com or Tel: 905-713-4392 • Toll free: 1-888-743-3551 or Fax: 905-841-4357. ADVERTISING Advertising inquiries and materials should be directed to Sales, Law Times, 240 Edward St., Aurora, Ont. L4G 3S9 or call Karen Lorimer at 905-713-4339 karen.lorimer@thomsonreuters.com, Kimberlee Pascoe at 905-713-4342 kimberlee.pascoe@thomson- reuters.com, or Sandy Shutt at 905-713-4337 sandra. shutt@thomsonreuters.com Law Times is printed on newsprint containing 25-30 per cent post-consumer recycled materials. Please recycle this newspaper. Editorial Obiter Manilla deserves 2nd chance with conditions I n many ways, the Law Society of Upper Canada had good reason for denying law school star Ryan Manilla from becoming a lawyer. Despite graduating in the top 10 per cent of his class at Osgoode Hall Law School and having worked with two prestigious law fi rms, Manilla clearly went too far in a condo dispute with fellow board members over a fee hike that resulted in criminal harass- ment charges against him. By concocting a letter from a pur- ported private investigator falsely al- leging the acceptance of kickbacks and domestic assault by fellow board mem- bers, Manilla had engaged in "charac- ter assassination," a law society hearing panel concluded. In the meantime, authorities had already withdrawn the criminal charges after he agreed to sell his condo and stay away from the complainants. He also wrote letters of apology and made $250 donations in their names to charity. Manilla was before another panel on March 4 arguing his appeal of the good character ruling (see Law Times, page 4). In essence, he argues the panel failed to provide adequate reasons for its conclusions. In particular, he says there's no basis for the fi nding that he was manipulative in owning up to his misdeeds and that not enough time had passed to be sure his character had changed. Th e case is certainly a vexing one. On the one hand, allowing Manilla to become a lawyer would cast some doubt on the law society's willingness to uphold the profession's standing with the public. As a lawyer, would he reveal his darker side once again in dealing with clients and possibly adversaries? How would he react to being on the losing side in matters he handles? On the other hand, Manilla is clearly smart. He certainly would have spent lots of time and money during law school, so it's a signifi cant matter to deny him the right to practise. At the same time, it's possible that his misdeeds with the condo board were more the result of youthful misjudg- ment rather than an inherent charac- ter fl aw. In addition, there's no doubt that he could have learned from his mistakes and won't repeat them. Th e law society panel, however, was right to have concerns over whether enough time had passed and whether he had done enough through anger management and therapy to have learned fully from his misjudgments. But that only raises the question of whether there was a middle ground for the panel to consider. Could the LSUC allow him to practise for a period un- der conditions? Why not, as a degree of penance, attach a stipulation that he do a certain amount of pro bono work for the fi rst couple of years of practice? In the meantime, if he does act badly again, complaints against him would likely arise that the law society could then discipline him for. Th at's not to say that the hearing panel was wrong or that it necessarily has the right to impose such condi- tions. But in an ideal world, it would do so. In that way, it would be able to deal with the concerns while giving someone a second chance. Th at's not often the way the world works, but surely it's a better option. — Glenn Kauth BY JEAN-MARC LECLERC For Law Times F Time to clarify use of hearsay in class actions Speaker's or many years, a plaintiff has had to show "some basis in fact" for the al- legations made in a class ac- tion. Th e origin of this was the court decision in Taub v. Manu- facturers Life Insurance Co., in which a representative plaintiff whose apartment had signs of mould sought to bring a class action on behalf of residents of her entire building. Th e test for some basis in fact was ne- cessary because there was no evidence the mould had been found anywhere other than in the plaintiff 's own apartment. Th e Supreme Court of Canada affi rmed the test in Hollick v. Toronto (City). After the Taub decision, some plaintiff s tried to satisfy the test by relying on hear- say evidence. For example, in Metzler Investment GMBH v. Gildan Activewear Inc., the plaintiff submitted an affi - davit of a private investiga- tor who spoke with fi ve for- mer employees. Th e court struck the affi davit on the basis that it was "replete with hearsay and double hearsay relating to conten- tious issues." In Fresco v. Canadian Im- perial Bank of Commerce, the plaintiff sought to introduce an affi davit that summarized the bank's overtime policies based on employees' responses regis- tered on a web site. Th e court rejected the evidence simply on the basis that it "constitutes hearsay and does not meet either the test of necessity or of reliability." By contrast, the court ac- cepted hearsay evidence in Griffi n v. Dell Canada Inc. Th e court relied on information collected from putative class members who contacted coun- sel for the plaintiff . Th e evi- dence was stored in a database and attached as an exhibit to Corner an affi davit sworn by counsel for the plaintiff . Th e court con- cluded the "minimum eviden- tiary burden" to certifi cation was met by the "persistence and remarkable similarity" of the complaints. Most recently in Pollack v. Advanced Medical Optics Inc., Superior Court Justice George Strathy revisited the use of hearsay evidence in certifi ca- tion motions. Noting the di- vergent approaches to the issue, he concluded "there is not a hard and fast rule about the admissibility of survey or data- base records on a certifi cation motion. It will depend, among other things, on the nature of the underlying evidence, the purpose for which the evidence is tendered, the existence of www.lawtimesnews.com other evidence on the issue, and the factors aff ecting the necessity for the evidence and its reliability." It would be helpful to clarify the issue. Th e ori- ginal purpose for requiring some basis in fact was to ensure the class action wasn't really just an individual claim shared by no one else. It seems fair to require proof through non-hearsay evidence or by facts that meet an exception to the rule against hearsay, as in Fanshawe College v. LG Philips. In most cases, all that would be necessary is fi rst-hand evi- dence of a dispute or complaint to illustrate that the issue is common rather than isolated. Th is doesn't seem to be par- ticularly onerous, especially since the Court of Appeal, as per Hughes v. Sunbeam Corp. (Canada) Ltd., already requires a plaintiff in a class action to have a real cause of action to be eligible to be a representative plaintiff . Th e court shouldn't be determining class certifi ca- tion through survey evidence that's immune from cross- examination unless it rules it to be properly admissible. Requiring the use of non- hearsay evidence to meet the test for some basis in fact shouldn't be mistaken for raising the over- all standard of proof for certifi - cation. A plaintiff isn't required to prove the merits of the case in a motion for certifi cation. It's simply a question of meeting the lower threshold with appropri- ate and admissible evidence as opposed to allowing a plaintiff to satisfy the lower standard through hearsay evidence that the other side can't even challenge through cross-examination. Jean-Marc Leclerc is a partner in the litigation department at Os- ler Hoskin & Harcourt LLP in Toronto. His areas of practice in- clude class actions, antitrust, and franchise law. He regularly posts updates on class action litigation on Twitter at j_leclerc.

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