Law Times

PAGE 10 FOCUS APRIL 14, 2008 / LAW TIMES Class action field continues to grow ROUND-UP BY IAN HARVEY For Law Times A s the plaintiff and defen- dants' bar pile onto the mushrooming arena of class action litigation, the depth and breadth of lawsuits contin- ues to diversify and spread to other jurisdictions. While the Supreme Court of Canada decision of October in Kerr v. Danier Leather Inc. had the unexpected effect of making unsuccessful plaintiffs pay costs of $1 million, it is too early to tell whether this has cast a chill over the forum. What it may have done is en- courage litigants to forum shop in jurisdictions where there is no costs regime. However, there are still sever- al high-profile and some innova- tive cases in the Ontario system working their way to certifica- tion or in the process of prepar- ing for court. Creating the biggest buzz among the Seven Sisters of Bay Street, of course, are the overtime claims against CIBC, seeking $600 million, and Sco- tiabank, seeking $350 million. Financial services giant KPMG LLP has also been hit with a suit and has announced it will settle with non-litigants claim- ing overtime at a cost estimated at up to $10 million. The cases have generated hundreds of billable hours, as firms advise their clients as to best practices to head off future claims. In the meantime, those in the class action sector are anx- iously awaiting the results of a SCC decision in the matter of Lépine v. Société canadienne des postes, which may also have an impact. The court is to decide whether a settlement reached in one jurisdiction can be enforced in another. BRANCH_Class Actions in Canada 4/9/08 11:36 AM Page 1 The matter revolves around a CD sold through Canada Post, which promised free internet service for life. When the com- pany behind it couldn't deliver after a couple of months, it switched gears and told custom- ers they'd have to pay $9.95 a month. Michel Lépine launched a class action in Québec on be- half of 45,000 others demand- ing compensation of $250 each and free internet service for life or $23 a month. An Ontario court settled a similar action but the Quebec courts refused to recognize it, saying it was con- fusing. If the SCC upholds the On- tario settlement as enforceable in Quebec, it may mean that plaintiffs will be even more en- couraged to shop for a jurisdic- tion that has both a cost-friendly disposition and a relatively clear docket to ensure matters move along crisply. In the interim, there are still a plethora of notable matters in hand, most recently involving Canada's self-crowned king of class action torts, Tony Merchant of Merchant Law Group in Sas- katchewan. In January, Merchant filed on behalf of Canadian troops participating in nuclear weapons testing outside the country during the Cold War. Members of the Canadian Atomic Veterans Association say they fell sick as a result of the test- ing following radiation exposure in the U.S. and Pacific Ocean from 1946 through 1963. The Federal Court claim says the government knew about the health risks but did not disclose them to the soldiers, suggesting only that they should be pre- pared for "strong winds." The suit asks for $150,000 compensation for each of the up to 689 soldiers who are thought to have taken part in the testing. The trend to class actions against government seems to be picking up. The Ontario Min- istry of Transportation has also been served with a class action by Lynn McIntosh, of Emsdale, a hamlet outside of Huntsville, alleging a yard there has allowed road salt to leach onto her prop- erty and those of her neighbours for some 25 years. She's claiming Everything you need to successfully initiate, defend or manage a class action lawsuit CLASS ACTIONS IN CANADA Ward Branch Cited with approval by the Supreme Court of Canada in the leading class action decision (2001), 205 D.L.R. (4th) 19, [2001] 3 S.C.R. 158 Class Actions in Canada is the leading text and a comprehensive guide to bringing and defending class actions in Canada. Helping you gain the unique skill of successful class action advocacy, this important work provides examples and direction through analysis of hundreds of class action cases litigated across Canada, as well as a comprehensive bibliography of class action articles. This well-organized, easy-to-read text features: • practical direction and commentary by an expert in class action litigation • guidelines for drafting appropriate class action pleadings • expert guidance on the effective use of class actions in different legal areas, such as securities, environmental law and product liability • analysis of case law regarding current topics including pre-certification motions, jurisdiction, costs and funding • detailed Canada-wide coverage; including the full text of all class action legislation and local rules from across the country • analysis of all significant case law in Canada (including Quebec) and the United States Class Actions in Canada gives you the tools you need for successful class action advocacy. Order your copy today! 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It's further alleged the result- ing writeoff would more than cover the interest on the loan, but the Canada Revenue Agency later struck down the scheme, forcing hundreds of participants into paying back money. The suit demands $50 mil- lion in compensation and $5 million in punitive damages. Most of the class actions, however, seem to fall into the ac- cess to justice vein with consum- ers seeking to redress wrongs allegedly inflicted on them by large companies or agencies. One such action filed last year and awaiting certification is modeled on a similar U.S. action against Dell for alleged defects involving some of its Inspiron laptop computers, spe- cifically the 1100, 1150, 5100, 5150, and 5160 models. The claim in Ontario Su- perior Court of Justice alleges Dell was negligent in the de- sign of the notebooks and that the fundamental problem with the models makes them likely to overheat and for the moth- erboards to fail prematurely — usually just outside the one-year warranty period. The matter is scheduled for a hearing this month. Another that will undoubt- edly draw cheers from the pea- nut gallery is the action against Bell ExpressVu for a $19 admin- istrative charge. Peter De Wolf, 54, who lives near Ottawa, filed in September 2005 on behalf of 1.7 million other Canadian cus- tomers. The case was certified earlier this year. He was angry because he was dinged with the $19 fee when he didn't pay his monthly bill on time. He claims the fee is in ex- cess of the Criminal Code usury rate section. Unfortunately, however, a similar successful class action over late payment fees proves only that even when a win in court can mean consumers still lose. In Feburary, the Ontario En- ergy Board ruled Enbridge Inc. can charge back $22 million to its customers — the cost of a class action which decreed the penalty charged on late accounts was usury. With Union Gas and Toronto LT Hollick v . T or onto (City)

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