Law Times

Page 4 December 5, 2016 • Law Times www.lawtimesnews.com NEWS NEWS NEWS of Stockwoods LLP, who was asked to appear at the appeal proceedings as amicus curiae to represent class members, says the court found it particularly important to uphold the part of Perell's order that provides pro- tection for class members from having to fund disputes between law firms. "It really puts the onus on class counsel to show that it's them who are bearing the real economic burden of what the motion judge called ransom fees here and not class members do- ing so in an indirect way, simply by structuring their arrange- ments," he says. Anthony Tibbs, who represented Merchant, did not respond to a request for comment. LT The plaintiffs, who are mer- chants, brought the class action against Visa and MasterCard, as well as 10 other Canadian banks and financial institutions, over the allegedly anti-competitive nature of the Visa and Master- Card networks in Canada. The action is one of a number that were filed across the country, the first of which was launched in Quebec in 2010. MLG subsequently brought rival class actions in both Al- berta and Saskatchewan. A consortium of three firms that were acting as class counsel in the other provinces — Branch MacMaster LLP, Camp Fiorante Matthews Mogerman LLP and Consumer Law Group — then launched their own actions in Alberta and Saskatchewan, lead- ing to a carriage battle. The sharing fee arrangement that is central to the decision was that MLG would stay its ri- val actions in exchange for the fee of $800,000 out of the fees recovered if the class action was successful. The agreement came out of mediation proceedings at a judicial conference in Alberta. When ruling on a motion to approve class counsel's fees, On- tario Superior Court Justice Paul Perell refused to approve the fee- sharing agreement, declaring it might be "possibly illegal." He ordered class counsel not to pay MLG from "the settlement pro- ceeds or from any other source now or in the future." Reidar Mogerman, of Camp Fiorante Matthews Mogerman — one of the firms that is part of the consortium — says the agreement, which was reached through mediation, was the only way to move the class forward. He said that the consortium wanted to litigate the carriage battle, but the court declined to give a result after two days in court and sent the parties to mediation. "In order to serve the class, we need to stay those cases and in order to stay those cases, we either have to get a court to stay the cases or have a contract to stay the cases and because the court wouldn't do it, we don't have any choice but to honour the contract," he says. The Court of Appeal upheld most of Perell's decision, but it tweaked it to allow class coun- sel to pay the agreement out of its own pocket, rather than from fees recovered through the action. James Musgrove of McMil- lan LLP, who is representing defendant MasterCard in the case, says the decision will likely make resolving carriage fights more complicated. "I think there is no doubt that the original decision and the Court of Appeal decision will make it more complicated and complex to resolve carriage is- sues," he says. Brendan van Niejenhuis Continued from page 1 Carriage issues now likely 'more complicated' to resolve er or cellphone and be able to get to the office within an hour of receiving a call. According to the Federal Court of Appeal de- cision, in Quebec, each lawyer ends up on standby duty for two or three weeks out of the year. Weekend calls are rare, accord- ing to the decision, occurring only around six times per year. Weeknight work is more fre- quent, with about 120 stay appli- cations per year requiring atten- tion. Before 2010, on-call slots were filled by volunteer lawyers who received days of leave in return at their employer's dis- cretion. However, the volunteer pool dried up when the govern- ment announced that it would compensate lawyers only for hours worked while on call, and a rota was drawn up to include all lawyers, according to their individual availability and per- sonal situation. Laura Williams, a labour and employment lawyer who acts for employers, says the Charter pro- tections available to government lawyers adds an extra layer of complexity to the relatively com- mon problem of on-call duty. "I think we're on a real slip- pery slope if the court further expands the scope of liberty under s. 7 to include some of the activities that these employ- ees are saying were restricted by the policy," says Williams, the principal at Williams HR Law in Markham, Ont. With the collective agree- ment silent on the issue of on- call duty, the AJC filed a griev- ance in the Quebec case within weeks of the new policy coming into force in March 2010. How- ever, it wasn't until April 2015 that Stephan Bertrand, an adju- dicator with the Public Service Labour Relations and Employ- ment Board, delivered his ruling in the group's favour. The government directive was "neither reasonable nor fair," according to Bertrand, who found that it breached s. 7 of the Charter: However, in its March 23 decision in Canada (Attor- ney General) v. Association of Justice Counsel, a three-judge panel of the Federal Court of Appeal granted the Attorney General of Canada's application for judicial review of Bertrand's decision, finding that it was un- reasonable for him to conclude a breach of the collective agree- ment had occurred. "We feel the court of appeal's definition of the right to liberty was too narrow," says Bernard Philion, the lawyer with Mon- treal firm Philion Leblanc Be- audry who represented the AJC on the appeal, who's hopeful the Supreme Court will see things differently in the spring. LT 'Real slippery slope' Continued from page 1 ORDER YOUR COPY TODAY! Visit carswell.com or call 1.800.387.5164 for a 30-day no-risk evaluation THE MOST COMPLETE DIRECTORY OF ONTARIO LAWYERS, LAW FIRMS, JUDGES AND COURTS Ontario Lawyer's Phone Book is your best connection to legal services in Ontario with more than 1,400 pages of essential legal references. You can depend on the accuracy of this trusted directory that includes the most up-to-date names, phone numbers, mailing addresses and emails so you don't have to search anywhere else. 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