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August 22, 2016

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Follow LAW TIMES on BY ALEX ROBINSON Law Times A recent Divisional Court deci- sion to grant leave to plaintiffs of an uncertified part of a class action lawsuit opens the door to an increase of claims brought by what's known as umbrella purchasers, some competition lawyers say. The Divisional Court granted leave to the plaintiffs of claims in Shah v. LG Chem, Ltd., which concerns allegations that a number of companies were part of a global price-fixing conspiracy on lithium- ion batteries. The motion judge, Superior Court Jus- tice Paul Perell, certified the action. However, he refused to certify claims relating to unlawful means conspiracy and those advanced on behalf of umbrella purchasers — claimants who did not buy batteries directly from the defendants but allege they were indirectly affected be- cause of a boost in price in batteries they bought from other companies, who were not part of the alleged conspiracy. Some competition lawyers say the de- cision to grant leave to the umbrella pur- chaser claim could potentially lead to an increase in these sorts of claims while the issue makes its way through the courts. Paul-Erik Veel, a lawyer at Lenczner Slaght Royce Smith Griffin LLP, says part of the problem with allowing such claims to proceed is that it will mean defendants could be liable for the pricing decisions of third parties over which they have no control. "If you're going to allow claims by um- brella purchasers, these class actions are now going to have to get into what the prices of those third-party manufactur- ers would have been in the absence of the conspiracy, how they made their pric- ing decisions, what their volume of sales were — all of that. And those are compli- cated enough questions in existing class actions when everyone is a party to the proceeding," says Veel, who is not in- volved in the case. "It gets a lot more complicated when all of a sudden you've got non-parties that no one has an automatic right of discov- ery against." In a companion class action suit that has started in B.C. — Godfrey v. Sony Corporation — the judge reached the op- posite decision of Perell, and certified the umbrella purchaser claim. The Divisional Court decided to grant appeal on the claim advanced on behalf of umbrella purchasers because of the conf licting Godfrey decision. Nikiforos Iatrou, a competition law- yer at WeirFoulds LLP, says defendants will likely have a harder time knock- Judicial discipline needs more public input BY ALEX ROBINSON Law Times A lberta Judge Robin Camp's upcoming hear- ing concerning mis- conduct allegations will likely shine a spotlight on the ju- dicial discipline system this fall, as the federal government looks to reform the process. While Justice Canada has an- nounced a consultation to examine how the process can be changed to deal with delays and significant costs that observers say have dam- aged the public's confidence in the system, legal scholars say there is a pressing need to go beyond the re- forms being discussed. The changes discussed in the consultation paper consider giv- ing the public more of a role in the process, but legal scholar Adam Dodek says the reforms need to make laypersons full members of the Canadian Judicial Council, which is responsible for overseeing the judicial discipline process. "They're looking at much more tinkering than serious wholesale reform," says Dodek, who is vice president of the Canadian Associa- tion for Legal Ethics — a nonprofit that submitted comments in the consultation. In 2014, the CJC issued a paper discussing a number of potential reforms. The CJC then adopted changes after a consultation peri- od, which included attempts to cut out duplication in the process and to include a member of the public on one of its panels. Justice Can- ada's new consultation paper was released this summer, recognizing more needs to be done. Dodek says the Canadian As- sociation for Legal Ethics would like to see a "much broader reform of the Canadian Judicial Council and the discipline process than is currently envisioned in the consul- tation document, which we see as overly narrow." In its submission, CALE pro- posed four key recommendations that it urged the federal govern- ment to consider in any reforms. LEGAL TECH NOW Canadians develop cutting-edge legal apps P3 DEGREE WASTE OF TIME? Undergrad not necessary for lawyers P7 FOCUS ON Pensions Law P8 See Increase, page 2 See Clarification, page 2 PM #40762529 $5.00 • Vol. 27, No.26 August 22, 2016 L AW TIMES C O V E R I N G O N T A R I O ' S L E G A L S C E N E • W W W . L A W T I M E S N E W S . C O M Paul-Erik Veel says allowing claims involving umbrella purchasers means defendants could be liable for decisions by third parties they don't control. Photo: Robin Kuniski Ruling opens door to umbrella purchaser suits & $#&!&jmmm$cYa[bbWh$Yec ntitled-4 1 12-03-20 10:44 AM Adam Dodek says reforms to judicial discipline should include more members of the public. When you're working, we're working. End-To-End Legal Marketing Solutions. Visit Untitled-5 1 2016-08-16 2:11 PM

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