Law Times

LAW TIMES / APRIL 14, 2008 FOCUS PAGE 13 When the dust settles, it's time to deliver BY IAN HARVEY For Law Times ometime after certifica- tion, when the arguments have closed, the flurries of motions set aside, and the process of a class action comes to either a settlement or a deci- sion in the plaintiffs' favour, the nitty- gritty begins. As fast as the arena of class actions have grown in Ontario, and indeed Canada, over the last decade, so too have the ser- vices associated with the sector — not least of which is claims- settlement administration. "We're a third party and we're not contracted to the plaintiff or defendant but to the court, so everything we do has to be checked and double-checked because the court do not toler- ate mistakes," says Kerry Eaton, vice president at Crawford Class Action Services. "It sounds a little arrogant to say we saw it coming, but we did [see it com- ing] based on what our Ameri- can parent company had experi- enced down there, because they were some 20 years ahead of us in this area." Crawford and Co. began in S Atlanta in 1953, specializing in loss-adjustment, and the Cana- dian branch is located in Kitch- ener-Waterloo, the heart of On- tario insurance country. It's also the biggest firm of its kind in North America, with 700 offices in 63 countries, and is a publicly traded company on the New York Stock Exchange. "I suppose, in a way, it's like It's a step forward Continued from page 12 ULCC into legislation and is just waiting to proclaim it," says Branch, who is hoping to see it adopted by other jurisdictions as well. "That's a step forward be- cause it's a good jurisdiction on the cutting edge of class actions. "When you're both equal in those areas, there's lot of room for collaboration." Indeed, says David Thomp- son of Scarfone Hawkins in Hamilton who recently collabo- rated with Harvey Stosberg on an action against Hamilton Health Sciences, along with Stanley M. Tick and Associates, winning a settlement of about $10 million for each of 189 claimants, car- riage issues are unbecoming for the profession. "It's nasty and unsavoury for lawyers to be engaging in," he says. "Working collaboratively means the defence team takes you much more seriously." Indeed, collaboration, not squabbling over carriage, says Rochon, is the far better path. "I think the Fen-Phen case, where we collaborated with David Klein, and in Nortel one and two with Peter Jervis at Lerners LT For a 30-day, no-risk evaluation call: 1 800 263 2037 or 1 800 263 3269 www.canadalawbook.ca CA011 Canada Law Book is A Division of The Cartwright Group Ltd. • Free Shipping on pre-paid orders. Prices subject to change without notice, and to applicable taxes. www.lawtimesnews.com LT0414 catastrophic loss administra- tions in the event of disasters," says Eaton, adding that when the legislation changed in prov- inces like Ontario it was inevi- table that there was going to be an explosion of matters before the courts that would ultimately require settlement services. The job sounds simple: re- view the settlement documenta- tion or court order and ensure those qualifying members of the class receive their financial due. In practice, it's an obstacle course in which the hurdles and water-jumps are hidden in the fine print. "Mr. Justice Ian Nord- heimer at one point referred to the process as the aftermath," chuckles Eaton, who had a long and distinguished career for 23 years as a staff sergeant with Hamilton-Wentworth Police, at one point specializ- ing in organized crime. "And I suppose it is. What really helps us though is that in the word- ing or any settlement docu- ments that all the ambiguity is eliminated. What we want is a workable process." He says Crawford is often asked to review proposed word- ing before it's endorsed by the court as a prelude to ensure the intended structure is workable. "Sometimes the words don't translate into a workable process," he says. "You get something that sounds great but just won't work, humans being humans and reacting KPMG needed a credible third party to deal with up to $10 million in payments for present and past employees who worked overtime without compensa- tion. It's a multidisciplinary pro- cess involving project manage- ment, accounting, law and ex- pediting, and even a good call centre, he says, noting his ex- perience in the criminal courts — working with Crown counsel have in the area of financial services and commercial law is astounding. It's a privilege to work with them." The future of class actions means not only will there con- tinue to be work for settlement administrators like Crawford, but the scope will be increas- ingly global, predicts Eaton, citing the recent case of Royal Dutch Shell, where shareholders sued, complaining the company And the level of brain power some of the judges in these civil cases have in the area of financial services and commercial law is astounding. It's a privilege to work with them. CA011 4/9/08 11:36 AM Page 1 differently to the way things are intended." Crawford has carved out a sizable reputation in legal circles: it's the administrator in nine provinces in the Indian Residential Schools class ac- tion, it handled compensation in the Walkerton tainted water debacle, and was first on the list when financial services giant preparing and managing docu- ments for trial — well prepared him for his post-policing career. "Though in a homicide you'd go back maybe five years, in these cases you're managing evidence and documents that go back 20 years or more in some cases," he says. "And the level of brain power some of the judges in these civil cases had overstated its oil and gas re- serves. In that settlement the Am- sterdam Court of Appeals set the tone for the U.S. compensation. "With all the product liabil- ity issues coming out of China, I think it will be increasingly global," says Eaton. "And look- ing at how Crawford's offices are distributed around the world, I LT Damages: Estimating Pecuniary Loss An original approach to blending economic data with unique, particularized case law from civil litigation cases. Support for each economic principle or assumption is found in cases throughout Canada so counsel will know which economic assumptions judges will accept and which ones they won't. 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