Law Times

Law Times • sepTember 4, 2017 Page 9 www.lawtimesnews.com 'Excessive overpleading' attracts cost consequences BY JUDY VAN RHIJN For Law Times A s the risk of unsuccess- ful certification ap- plications diminishes, Ontario courts are coming down hard on the prac- tice of overpleading, saying it is unnecessary and wasteful, and leveraging cost consequences to emphasize the point. However, the concept is not gaining traction elsewhere, leading to conf licting decisions. "The whole animus of a class action is judicial expediency. Theoretically, we should just certify claims that have a viable chance and favour a stream- lined approach," says Craig Lockwood of Osler Hoskin & Harcourt LLP, who is on board with the Ontario push. "To be honest, the plaintiff 's bar wants to do what they can. They traditionally employ a buckshot approach. Once the essence of the claim is estab- lished, they articulate as many causes of action as can be rea- sonably sustained through the course of the litigation, and create a dog's breakfast. That makes cases more difficult and needlessly complex." Lockwood's view supports what has become a campaign by Justice Paul Perell, most recently articulated in Berg v. Canadian Hockey League 2017 ONSC 2608. That case alleges that junior hockey players were entitled to receive minimum wages for their services on the basis that they are employees of their clubs. In the certification proceed- ings, Perell explained, "Perhaps because of the novelty of their claim and the extraordinary importance that hockey has to Canadians, Messrs. Berg and Pachis excessively over-pleaded both their case and also their certification motion . . . " He went on to say that the de- fendants excessively responded to the certification motion. He found that while all of the causes of actions were prop- erly disclosed in the pleadings, many of them were redundant and should not be certified be- cause of the requirements of s. 5(1)(d), that the class proceed- ing be a preferable procedure for the fair and efficient resolution of the common issues. "This is a mantra Perell has been hammering since the Magill v. Expedia 2014 ONSC 2073 case," says Lockwood. He recalls similar statements in the Smith v. Sino-Forest 2012 ONSC 24 carriage fight. "He awarded carriage to the firm that had the most stream- lined claim," he says. Another case that provided a platform for the concept was the determination of costs in Bern- stein v. Peoples Trust Com- pany, 2017 ONSC 2189, where Perell said, "In the class action context, over-pleading the class size, class period, and adding redundant causes of action and claims and not making conces- sions is a frequent phenomenon. And it is a problematic phenom- enon because over-pleading and not making concessions virtu- ally ensures that there will be a contested certification motion — and an expensive one — that simply aggravates the access to justice problems that class ac- tion procedure was designed to ameliorate." Ted Charney of Charney Lawyers in Toronto, who repre- sents the plaintiff in the Ontario Hockey League case, points to the recent conf licting decision of Justice R.J. Hall of the Court of Queen's Bench of Alberta in the Western Hockey League case. "Justice Perell is the only one who has championed this so far. The only judge who has consid- ered it so far, to see if it's going to be accepted, is Justice Hall," he says. In Walter v. Western Hock- ey League, 2017 ABQB 382, Hall said, "Justice Perell chose not to certify various causes of action for reasons of efficiency and judicial economy. I am not prepared to follow his lead." "If the pleadings disclose causes of action, then I con- sider that those causes of action should be permitted to proceed . . . I am not prepared to strike causes of action which have been properly pleaded," said the ruling. Charney says it is very rare to have parallel cases, let alone par- allel class actions. "This case is virtually iden- tical to the one Justice Perell heard," he says. "It has the same facts, the same pleadings, the same causes of action and same common is- sues. It's virtually the same re- cord." Charney thinks Justice Hall takes the preferable approach. He has appealed the Ontario decision to exclude the causes of action, and the CHL and WHL have appealed Hall's decision to let them in. "There are serious implica- tions to having two conf licting decisions. Both OHL and WHL are overseen by CHL — it is a defendant in both proceedings. It's unfortunate. It is delaying the litigation significantly. We'll be preoccupied with this for the next six months to a year," he says. Charney points to another conf licting decision, namely the carriage motion in Mancinelli v. Barrick Gold Corporation, 2016 ONCA 571, which has been confirmed by the Ontario Court of Appeal. "It is the only appellate court to have dealt with a carriage mo- tion," he says. "Justice Belobaba awarded carriage to the firm with the most comprehensive pleadings." Until the conf licting deci- sions are resolved, Lockwood says that any hearing before Per- ell will likely be affected by the concept of overpleading. "He is the most prolific writ- er in the class actions realm in Ontario in any event," he says. "The reality is if you bring an action in Ontario there is a strong likelihood you will end up in front of Perell, so there is more force and effect when he says it." Despite this, Lockwood does not believe that plaintiff 's coun- sel is taking much note of the concept so far. "I do have sympathy for them. They want to pitch it at the highest level, but there is still a tendency to throw everything in except the kitchen sink," he says. "Once one side pleads it, the defence has no choice but to meet it with any available de- fence." He considers that the class action should be streamlined at the certification stage. "Let the judge pick and choose what he or she wants to proceed on," he says. He says the defence can also raise the issue. "In the CHL case, the defence conceded it was a valid cause of action but said that it's a singu- lar issue," he says. "We know what it is. We don't need 10 different ways of getting at it. We should not go through the headache of navigating all of them when one will do." Charney disagrees. "I do not think it's appropri- ate at the certification stage for the judge to call certain causes of action redundant or unnec- essary. They must realize that the motion is being heard at a preliminary stage," he says. "We haven't had discovery. We haven't had exchange of documents. It's necessary to have numerous causes of action until we have a complete record and the facts play out. At the pleadings stage, we do not have a crystal ball." LT Craig Lockwood says that any hearing before Justice Paul Perell will likely be affected by the concept of overpleading. FOCUS I do not think it's appropriate at the certification stage for the judge to call certain causes of action redundant or unnecessary. Ted Charney Every time you refer a client to our firm, you are putting your reputation on the line. It is all about trust well placed. TRUST Thomson, Rogers Lawyers YOUR ADVANTAGE, in and out of the courtroom. TF: 1.888.223.0448 T: 416.868.3100 www.thomsonrogers.com Since 1936 Thomson, Rogers has built a strong, trusting, and collegial relationship with hundreds of lawyers across the province. As a law firm specializing in civil litigation, we have a record of accomplishment second to none. With a group of 30 litigators and a support staff of over 100 people, we have the resources to achieve the best possible result for your client. We welcome the chance to speak or meet with you about any potential referral. We look forward to creating a solid relationship with you that will benefit the clients we serve. ROBERT BEN | LEONARD KUNKA | ALAN FARRER Untitled-4 1 2017-08-30 1:16 PM

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