Law Times

Law TiMes • May 25, 2009 NEWS PAGE 5 Court settles Kim-REO class action matter BY ROBERT TODD Law Times of counsel in a class action fol- lowing the 2007 breakup of Roy Elliott Kim O'Connor LLP, set- ting a clear test for resolving such disputes in the future. "I think it's not unusual for T there to be some carry-over mat- ters when fi rms split up, and this is one of those carry-over mat- ters," says Peter Roy, a founding partner of Roy Elliott O'Connor LLP, in reference to the split with Won Kim, who now is a princi- pal with Kim Orr Barristers. Adds Roy, "I don't have any an- imosity towards Won; I just take a diff erent approach to class actions, and I was pleased to see that, of the seven judges who listened to the argument to decide it, all of them agreed with me, and none of them agreed with Won." Roy says Kim, "clearly had a diff erent view of what the [solicitor-client] relationship ought to be, and a diff erent view of what his role in that re- lationship is." Roy adds that he is "not prone to animosity" and that he and Kim still talk. Kim referred Law Times' ques- tions to his lawyer, Alan Lenczner, who did not respond by press time to a request for comment. Kim said he did not think it would be "appropriate" for him to com- ment on the decision because he is a litigant in the matter. Th e case followed Joseph Fan- tl's move in 2006 to retain REKO to pursue a class action against Transamerica Life Canada over he Ontario Court of Ap- peal has backed a repre- sentative plaintiff 's choice alleged overcharging of fees. But near the end of 2007 the fi rm dis- solved after Kim left to open his own shop with James Orr. Fantl decided to continue the class action with REO due to his close relationship with Roy — Fantl was the best man in Roy's wedding — and because "he had some experience with, and respected members of, the fi rm," wrote Chief Justice War- ren Winkler for the court on be- half of Justice Stephen Goudge and Justice Janet Simmons. Kim Orr then brought a mo- tion asking for an order forcing Fantl to retain their fi rm, or for Fantl to be removed as the representative plaintiff , with two new plaintiff s entered in his place. Th at motion was dis- missed, a decision backed by the Divisional Court. Th e Court of Appeal agreed to expedite its hearing on the matter, with approval of a settle- ment in the class action "immi- nent," said Winkler. Th e chief judge, in dismiss- ing Kim Orr's appeal, said it's up to the representative plaintiff to select class counsel. Winkler said courts must consider three aspects when engaged to re- view a choice for class counsel: whether the plaintiff has chosen "competent counsel"; whether there are any improper consid- erations underlying the choice made by the plaintiff ; and whether there is prejudice to the class as a result of the choice. "Unless this inquiry reveals something unsatisfactory to the court, it ought not to interfere with the choice of counsel made by the plaintiff ," said Winkler. "Th e court is not a substitute decision-maker for the plaintiff in the litigation. Accordingly, any intervention based in its supervi- sory jurisdiction must be limited to situations where there is cogent evidence that steps taken may have an adverse impact on the absent class members." Kim Orr argued that it should be class counsel in part due to ac- cess to justice objectives within the Class Proceedings Act. "It is argued that if represen- tative plaintiff s are allowed to switch counsel at will, there will be less of an incentive for counsel to take on class actions and make an investment of time and eff ort that may be lost," wrote Winkler in summarizing that argument. But the court rejected that line of reasoning, saying "an en- trepreneurial class action bar" is not a goal of the CPA. "Th is argument fails because as far as the CPA is concerned, the entrepreneurial lawyer is a means to an end, not an end in and of itself," said Winkler. "Sections 33(1) and (4) of the CPA, which provide for contingency fees and a multi- plier eff ect on fees to reward risk and success, are intended to provide suffi cient incentives for lawyers to take on class pro- ceedings that would not other- wise be attractive," he wrote. "Th is is the entrepreneurial aspect of class proceedings leg- islation that enhances access to justice. Th e CPA does not, nor was it ever intended to, provide lawyers with a vested interest in the subject matter of the law- suit entitling them to override the choices of the representative Canadian Employment Law Also available on CD-ROM or Internet! One of Canada's foremost employment authorities provides an examination of the facts you can count More than 5,500 cases cited! This one-stop reference provides a thorough survey of the law. 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Large windows overlooking mature tree-lined street right next door to Yorkville. Available June 1. Contact Clayton Ruby or Mandy Machin at 416-964-9664 or mmachin@ruby shiller.com To advertise call 905-841-6481 plaintiff in the litigation, includ- ing the choice of counsel." Th e court also ruled that the relationship between Fantl and Roy would not "constitute an improper purpose in and of it- self. An improper purpose would be one where the plaintiff was seeking to gain a personal advan- tage, the hope of an advantage not shared by the class members, or was motivated in some way that was inconsistent with the interests of the class." Roy says the decision "accords with what my understanding of solicitor-client responsibilities are all about. It's not a great surprise to me that class actions require the same duty of loyalty and put the representative plaintiff fi rst." Bonnie Tough, a founding partner of Tough & Podreba- rac LLP, says the court has pro- vided "very clear direction" with the decision. "It's a very good reiteration of the fact that this is real litigation, these are real plaintiff s who have a say in their lawyer," says Tough. Amendments are 'preposterous' Continued from page 1 against a person in some other proceeding would be unconsti- tutional as well." Ertel and Trudell say courts have ruled fi ngerprinting fol- lowing charges but prior to a conviction are an acceptable Charter limit, but that the prints can't be used against the person if there is no conviction. Trudell adds that contrary to popular belief, even if those who have been arrested but not convicted subsequently ask the police to destroy the fi ngerprints, there is no legal require- ment for the police to accede to the demand. He tells Law Times the proposed changes will only further erode Charter rights. "Where is the perceived need for this change?" he says, while dismissing Nicholson's claim that the amendment will streamline identifi cation processes in police stations. "It's vacuous," argues Trudell. "We don't have all kinds of people lined up in police stations waiting for their fi ngerprints and photographs to be taken." "Let's not corner cut people's rights," he adds. Responding to a question from Law Times, a Justice De- partment spokesperson says the current system, preventing fi ngerprints and photographs until charges or a conviction, "often results in unnecessary delays and has led to calls to make the application of this legislation clearer and simpler." But spokesperson Carole Saindon appears to indicate the government is sensitive to the concerns of Trudell, Ertel, and others about what police will do with the fi ngerprints and photographs. "Many police services destroy fi ngerprints and photographs at the request of the accused when charges do not result in a convic- tion (under the current law)," Saindon writes in an e-mail. "Courts have stated that it is not unreasonable for the po- lice to retain prints where no request for their destruction or return upon charges being dropped," she adds. "Discussions with the law enforcement community will continue in this regard to ensure that practices are consistent and that concerns are appropriately addressed." Trudell says it would take another amendment to the Criminal Identifi cation Act to guarantee that police destroy fi ngerprints or photographs where no charges are laid after a person is detained, or when charges are laid but no conviction is obtained. Th e bill also amends the expert-evidence regime to give parties more time to prepare a response to expert evidence in criminal trials, creates a new off ence to help prevent individuals from fl ee- ing a province or territory to avoid prosecution, and gives police more access to search and seizure warrants by telephone. LT LT Stacey Reginald Ball

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