Law Times

PAGE 10 a proposed class action to seek funding approval by way of an in camera motion without the par- ticipation of the defendants. In Fehr v. Sun Life Assurance Co. ntario Superior Court Justice Paul Perell has refused to allow plaintiffs in of Canada, Perell also denied the plaintiff' us what their war chest is," says Won Kim of Toronto' motion materials, including the funding agreement, sealed. "The defendants don't tell who with colleagues Victoria Paris and Megan McPhee repre- sented the plaintiffs. "Why should the defendants s Kim Orr, decades have passed since On- tario' Court opens window on plaintiff funding approvals O FOCUS BY JULIUS MELNITZER For Law Times came into force, only three or four firms have been able to sus- tain significant plaintiffs' class action practices. "The reason for that is that there has been a lack of capital available to fund these cases," says Kim. "This case is a massive one threatens because it s application to have the the internal workings of third- party funders open to the public and therefore make class action funding a less attractive proposi- tion. It also comes at a particu- larly bad time when a number of hedge firms are trying to get into this business and provide the necessary capital to facilitate access to justice. to make know how much we have avail- able to pursue our case?" Kim notes that although two s Class Proceedings Act funder is Bridgepoint Global Litigation Services Inc., a To- ronto company that bills itself as the country' In this case, the third-party " tion lender. The company, rep- resented by Ward Branch of Vancouver' s largest litiga- s Branch MacMaster should be able to participate in ap- proval hearings because the out- come would affect them and they might raise questions, including ones related to the agreement' agreement wasn't privileged. It was not about communications between solicitor and client but about who was paying for the lawsuit, the funder' The defendant Sun Life is happy with the decision, says Paul Morrison. LLP, appeared on the motion in support of Kim' closure of the funding agreement would breach solicitor-client privilege, adversely affect a fair trial, harm the administration of justice, and impair access to it. But Perell ruled defendants In court, Kim argued that dis- s position. tion, and the independence of the representative plaintiff. To the extent that a third-party agreement contained privileged information, its inclusion was both unnecessary and improper. But Perell did put limits on s motiva- defendants' rights regarding such motions, including a prohibition on cross-examination without first obtaining leave of the court. "The defendant is affected, gality, that would provide useful information to the court. Those questions, he concluded, couldn't be answered without determining the precise role of the funder. As Perell saw it, the funding s le- and although the defendant should be allowed to protect its own proper interests, there are aspects of a funding application that should be none of the defen- dant' dant may have an interest in en- suring that an adverse costs award will actually be paid to it, it is no business of the defendant to in- quire into how the plaintiffs would propose to use the funding for the purposes of the litigation." Paul Morrison, who with col- "For instance, while the defen- s business," wrote Perell. leagues Glynnis Burt and Heather Meredith of McCarthy Tétrault LLP acted for Sun Life, says his cli- ent is happy with the decision. "In terms of what may de- velop in this area, however, this case is more of a first step than a definitive code, ample, it remains to be seen how courts will apply the limitation on cross-examination." Morrison notes the plaintiffs received their motion materials," he says. LT Franchisors warned Continued from page 9 to hold franchisors responsible for closures and for the impact of competitive tides," Dolman says. For his part, Hoffman agrees A CRITICAL EXAMINATION OF CLASS ACTION SETTLEMENTS NEW PUBLICATION FAIRNESS IN CLASS ACTION SETTLEMENTS CATHERINE PICHÉ Get a cross-jurisdictional perspective on the legal policy and reasoning behind the mandatory judicial approval of class settlements. This insightful new treatise also offers recommendations for reforming class action settlement processes and the roles of participants. These recommendations are based on interviews conducted with judges in Quebec, Ontario, British Columbia and the United States. More than an analysis of the current system of class action settlement, Fairness in Class Action Settlements is a call-to-action for reform. AN INSIGHTFUL NEW PERSPECTIVE ON CLASS ACTION SETTLEMENT • Get a thorough analysis of every stage of settlement in four jurisdictions • • Gain insight on how class action judges think at the approval stage Understand the relevant factors of settlement fairness ORDER # 982769-65203 $89 Hardcover approx. 400 pages January 2012 978-0-7798-2769-5 Shipping and handling are extra. Price subject to change without notice and subject to applicable taxes. AVAILABLE RISK-FREE FOR 30 DAYS Order online: www.carswell.com AUTHORITATIVE. INNOVATIVE. TRUSTED. say that franchisors shouldn't take heed of the decision. "The message to the franchise s not to that Bertico is an unusual case whose application and preceden- tial value should be confined to its unique facts. But that' community is that franchisors should create a meaningful, well-thought-out response in the face of increased competi- tion or other forces that may be eroding their products' market position, goodwill, trademark or brand, Dunkin' Donuts' problem was it didn't pass the "smell test" in this respect. "Dunkin' Donuts' solution According to Hoffman, " he says. nuts also failed to deliver on its promise to inject $20 million to revive the brand. " he notes. "Dunkin' Do- Call Toll-Free: 1-800-387-5164 In Toronto: 416-609-3800 the results in Tim Hortons and Bertico might well be in the dif- fering attitudes the franchisors took to their franchisees. "Tim Hortons demonstrat- The key difference between " ed that it had taken years to develop the program, done a number of studies, got feedback from the franchisees, and took account of their interests," says Hoffman. "This was not the case in Bertico." LT www.lawtimesnews.com " he says. "For ex- September 3, 2012 • Law timeS have indicated they'll move for ap- proval of funding on notice. "We have not as yet, however, was to suggest that franchisees invest $200,000 in a remodelling program that never got off the ground,

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