HOW TO BULLET-PROOF AND ATTACK CLASS ACTION PLEADINGS

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HOW TO BULLET-PROOF AND
HOW
TO BULLET-PROOF AND
ATTACK CLASS ACTION PLEADINGS
ATTACK CLASS ACTION PLEADINGS
(Prepared
(Preparedfor
for Canadian
CanadianInstitute’s
Institute's 7th
7th Annual
Annual National
National Forum
on Litigating Class
Class Actions
September25,
25,2006
2006 Workshop)
Workshop)
Actions –September
by
Elaine J.
J. Adair
Adair
Clark Wilson LLP
tel.
tel. 604.891.7783
ej [email protected] com
[email protected]
www.cwilson.com
www.cwiIson.com
CLARK WILSON LLP
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BC's Law Firm for Business
TABLE
OF CONTENTS
CONTENTS
TABLE OF
1.
I.
.1
INTRODUCTION-–CLASS
CLASSACTIONS
ACTIONSPLEADINGS
PLEADINGSSEEM
SEEMDIFFERENT
DIFFERENT.............1
INTRODUCTION
...
A.
B.
.
Litigation: ...
Conventional Litigation:
......................................................................................................1
I.
Actions: ...
Class Actions:
......................................................................................................................1
II.
II.
.2
PLEADINGS BASICS
...
PLEADINGS
BASICS.......................................................................................................2
A.
B.
B.
C.
C.
..2
Civil Practice
The Rules of Civil
Practice...
..................................................................................................2
..2
Material Facts
of Action
Action ...
Material
Facts stating
stating aa Cause
Cause of
.............................................................................2
..3
...
Has a reasonable claim
claimbeen
beenstated?
stated?....................................................................................3
III.
III.
CHALLENGING PLEADINGS
- WHAT
IS IS
CHALLENGING
PLEADINGS(AND
(ANDSURVIVING
SURVIVINGATTACK)
ATTACK)
– WHAT
..3
WORKINGAND
ANDWHAT
WHATISISNOT
NOT......................................................................................3
WORKING
A.
B.
B.
C.
C.
D.
E.
F.
F.
G.
G.
H.
1.
I.
..4
Tort and Misrepresentation Claims
Claims ...
.....................................................................................4
.6
Contract-based Claims
...
Claims .........................................................................................................6
..7
"an industry"
...
Suing “an
industry”or
ormultiple
multipledefendants
defendantsininaasingle
singleaction
action.............................................7
..7
Particular causes
of
action
and
creative
pleading
can
facilitate
certification
...
causes of action and creative pleading can facilitate certification ......................7
.8
“Aggregate
Damages” .........................................................................................................8
"Aggregate Damages"
...
Drafting Common
Drafting
CommonIssues
Issues ...
.....................................................................................................88
12
...
When in
in the
the proceedings
proceedings should
shouldpleadings
pleadingsbe
bechallenged?
challenged?...............................................12
12
A Motion
MotiontotoStrike
Strikeisisnot
notaa summary
summary judgment
judgment motion
motion ...
....................................................12
A
13
ordered after
after certification
certification ...
Particulars can be ordered
.....................................................................13
IV.
IV.
..13
STATEMENTS OF
...
STATEMENTS
OFDEFENCE
DEFENCE......................................................................................13
A.
B.
13
Defence be
be filed
filed (even if itit is
Should aa Defence
is not
not required)?
required)? ...
......................................................13
14
What should
...
What
should the
theDefence
Defencesay?
say?...........................................................................................14
I
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HOW TO
AND
ATTACK
HOW
TOBULLETPROOF
BULLETPROOF
AND
ATTACK
CLASS ACTION
PLEADINGS'
CLASS
ACTION
PLEADINGS1
(WORKSHOP -SEPTEMBER
25, 2006)
(WORKSHOP
– SEPTEMBER
25, 2006)
1.
I.
INTRODUCTION
different
INTRODUCTION- –Class
ClassActions
ActionsPleadings
Pleadings seem
seem different
A.
Conventional
Conventional Litigation:
Litigation:
The ultimate
ultimate function of pleadings
of fact and
The
pleadings is to clearly
clearly define
define the
the issues
issues of
and law to be
be
determined by
by the court. Pleadings
determined
Pleadings that
that are
are merely
merely tactical
tactical and
and designed
designed to put
put unfair
unfairpressure
pressure
on the opponents, or to embarrass
them, are
are liable
liable to be struck as
an abuse
abuseof
ofprocess.
process. Moreover,
Moreover,
embarrass them,
as an
claim for
for damages.
damages. Portions
Portions of a
it is
is improper
improper to
tomake
make an
an excessive
excessive or grossly
grossly exaggerated
exaggerated claim
pleading that
that are
are irrelevant,
irrelevant, argumentative
argumentative or
inserted for
for colour,
colour,ororthat
thatconstitute
constitutebare
bare
pleading
or inserted
allegations should
should be
be struck
struck out as
scandalous. Facts
allegations
as scandalous.
Facts may be pleaded
pleaded but not the evidence
evidence by
which
which those
those facts
facts are
are to
to be
be proved.2
proved.2
B.
Class Actions:
Actions:
Class
Class proceedings
proceedingsare
are not
not exempt
exempt from the
Class
the usual
usual rules
rules for
forpleadings.3
pleadings.3
The Class
The
Class
Proceedings Act does not create
create substantive
substantive rights,
rights, or modify
modify the
the substantive
substantive law.4
law.4
However, statements
of claim in
class actions
actions still
still look different.5
statements of
in proposed
proposed class
different.5 The pleading
may run to aa hundred
paragraphsorormore.
more. It may
may
hundred paragraphs
may have
have a table
table of contents.
contents. There
There may
may be
be aa
1
longer version
version of
of this
thispaper,
paper, prepared
prepared for the
the 2005 Workshop,
available at
at www.mccarthy.ca
www.mccarthy.ca under
under
Workshop, is available
1 A longer
Publications -–Class
Class Actions
ActionsPractice
Practice Group,
Group, under
under the
the author's
author’s name.
name.
2
th 107
(4th)
2
C.P.C. (4
Homalco Indian
Band v. British
British Columbia
Columbia (1998),
(1998), 25 C.P.C.
) 107 (B.C.S.C.);
Trust Co.
Co. v.
v.
(B.C.S.C.); National
National Trust
Homalco
Indian Band
Furbacher, [1994] O.J. No. 2385
2385 (Gen.
(Gen.Div.
Div. Comm.
Comm. List);
List); Air Canada v.
v. WestJet
WestJetAirlines
AirlinesLtd.
Ltd (2004),
(2004), 72
72 O.R.
OR. (3d)
669 (S.C.J.).
3
v. BCE
BCE Inc. [2003]
Shaw v.
[2003] O.J.
O.J. No.
No. 2695
2695 (S.C.J.),
(S.C.J.), para. 5; Williams
Williams v.
v. Canada
Canada (2005),
(2005), 257
257 D.L.R.
D.L.R.(4th)
(4th) 704
704 (Ont.
(Ont.
3Shaw
17.
S.C.J.), para. 17.
4
4
Bisaillon v. Concordia University,
16-18, 22;
22; MacKinnon
MacKinnon v. National Money Mart
Mart Company
Bisaillon
University, 2006
2006 SCC
SCC 19, paras.
paras. 16-18,
Company
th 21
(4th)
(2004), 33 B.C.L.R. (4
(2004),
) 21 (C.A.), para.
para. 44; Ontario New
New Home
Home Warranty
Warranty Program
Program v.
v. Chevron
Chevron Chemical
Chemical Co.
Co.
OR. (3d)
& Johnson,
(1999), 46 O.R.
(3d)130
130(S.C.J.);
(S.C.J.); Serhan
Serhan v.
v. Johnson &
Johnson, [2006]
[2006] O.J.
O.J. No.
No. 2421
2421 (Div.
(Div.Ct.),
Ct.),para.
para.41
41and
and para,
para,
(Chapnik J.
252 (Chapnik
J. dissenting).
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definition section.
section. The
Thepleading
pleadingmay
mayinclude
includeaavery
verydetailed
detaileddescription
description of
ofdisease,
disease, the history
of drug
drug trials
trials and
and approvals
approvals or
or other
other product
product testing,
testing, or
or of
ofaadefendant's
defendant’s (alleged)
(alleged) bad
bad conduct.
conduct.
Damages claimed
claimed may
may be
bein
in the
thebillions
billions of dollars.
Damages
dollars.
II.
II.
PLEADINGS
PLEADINGS BASICS
A statement
statement of claim
claim that
that pleads,
pleads, concisely,
concisely, the
the material
material facts
facts setting
setting out
out aa complete
complete
cause
be bulletproof.
bulletproof. AAstatement
statement of
ofclaim
claimthat
thatisismissing
missingbasic
basic elements
elements of
causeof
of action
action will
will be
substantive claims,
claims, or
or which is
substantive
is aa rambling,
rambling, mixed-up
mixed-upmass
mass of
offacts,
facts,evidence,
evidence, arguments
arguments and
and
law, will
willbe
beattackable.6
attackable.6
A.
Rules of
of Civil
Civil Practice
The Rules
Drafters
must know
know what
Drafters of pleadings
pleadings must
what the
the local
local rules
rules ofofcivil
civilprocedure
proceduresay
sayabout
about
pleadings, and
and follow
follow the
the rules.
rules.
B.
Material
of Action
Action
MaterialFacts
Facts stating
stating aa Cause
Cause of
The "material
for the purpose
of formulating a
The
“material facts"
facts” are
are the
the facts
facts that
that are
are essential
essential for
purpose of
complete cause of action.7
action.7
Depending
on the
the jurisdiction,
jurisdiction, a plaintiff
Depending on
plaintiffwill
willnot
notneed
needaapersonal
personalcause
cause of
of action
action against
against
all defendants.8
all
defendants.8
sThe claims
claims in Mondor v. Fisherman and
and Harrington
Harrington v. Dow Corning
Corning Corp.
Corp. are
are two
two out
out of
of many
many examples
examples of very
ofclaim.
claim. Both
table of
of contents.
contents. Defnition
of claim
lengthy statements
statements of
Both have
have a table
Definitionsections
sectionsare
are found
found in
inthe
the statements
statements of
in Serhan
& Johnson
and Smith
Smith v.
v. National
National Money Mart, among
Serhan v. Johnson
Johnson &
Johnson and
among others.
others. Detailed
Detailed description
description of
ofdisease
disease
is pleaded
in Serhan
Serhan (diabetes)
(diabetes)and
andVezina
Vezinav.v.Loblaw
LoblawCompanies
CompaniesLtd.
Ltd(hepatitis
(hepatitisA).
A). In
Jude Medical
Medical
pleaded in
In Andersen
Andersen v. St. Jude
Inc., over
testing and
and recall
recall of the
over 20
20 paragraphs
paragraphs are
are devoted
devoted to describing
describing the development,
development, testing
the alleged
alleged defective
defective
product. The
Thestatement
statement of claim
claim in
inGrant
Grantv.v.Canada
Canada(Attorney-General)
(Attorney-General)(2005),
(2005),258
258D.L.R.
D.L.R.(4th)
(4th) 725
725 (Ont.
(Ont. S.C.J.)
S.C.J.)
was described
described by
by defence
defence counsel
counselas
asaa“statement
"statementininpursuit
pursuitof
of aa political
political agenda."
agenda.” Nevertheless,
Nevertheless, only parts
parts were
were
struck out. Grant
of relocation
relocation of a residential
residential community,
community, in particular problems
with
struck
Grantinvolved
involvedthe
theconsequences
consequences of
problems with
alleged toxic mold.
6
[1954] O.W.N. 221, at pp. 224-5; and see
seeCullity
Cullity J's
Contracting and
and Developments
Developments Ltd. v. Tanenbaum,
Tanenbaum, [1954]
J’s
6Cadillac Contracting
comment that
that the
the statement
statementofof claim
claim in
in Yordanes
v. Bank
Bank of
of Nova
Nova Scotia
Scotia (2006),
(2006), 78
78 O.R.
OR. (3d)
comment
Yordanes v.
(3d) 590
590 (S.C.J.)
(S.C.J.) was
was
"monstrously unwieldy.”
unwieldy." The
“monstrously
Thewhole
wholeclaim
claimwas
was struck
struck out.
out.
7
7
DuMoulin v. Ontario
DuMoulin
Ontario (2005),
(2005), 71
71 OR.
O.R.(3d)
(3d)556
556(S.C.J.),
(S.C.J.),and
andCassano
Cassano v.
v. Toronto-Dominion
Toronto-Dominion Bank
Bank (2005),
(2005), 99 C.P.C.
C.P.C.
th 291
(6th)
[2005] O.J.
(6
) 291 (Ont. S.C.J.), [2005]
O.J. No.
No. 845;
845; leave
leave to
to appeal
appeal refused [2006] O.J. No.
No. 2930.
2930.
5
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Has a reasonable claim
claim been
been stated?
Before a pleading
pleading will
will be
bestruck
struckout
outforforfailing
failing
to disclose
a reasonableclaim
claim
Before
to disclose
a reasonable
(or(or
defence), the failure must be "plain
“plainand
and obvious"
obvious”on
onaagenerous
generous reading.9
reading.9
The
“plain and
and obvious"
obvious” test
test does
does not
not mean
mean the
the complicated
complicated questions
questions of law
law are
are
The "plain
necessarily
unsuitedfor
for resolution
resolution on
on an
an application
application to strike, and
necessarily unsuited
and it does
does not permit defective
defective
pleadings.
on uncertain
uncertain areas
areasof
of the
the law should not be
pleadings. Nevertheless,
Nevertheless, actions
actions based
based on
be resolved
resolved at
the
pleadingsstage,
stage,
without
advantage
of afactual
full factual
the pleadings
without
thethe
advantage
of a full
background.10
background.'°
Leading cases
helpto
to“bulletproof”
"bulletproof 'pleadings.'
Leading
cases help
pleadings.11
1
III.
III.
CHALLENGING PLEADINGS
- WHAT
IS IS
CHALLENGING
PLEADINGS(AND
(ANDSURVIVING
SURVIVINGATTACK)
ATTACK)
– WHAT
WORKINGAND
ANDWHAT
WHATISISNOT
NOT
WORKING
If aacause
cause of
ofaction
actionisisone
onewhere
whereindividual
individualissues
issuesare
aresignifcant,
significant,and
andwillwill
likely
If
likely
overwhelm
and predominate
predominate over
over any
any common
common issues,
issues, the
thechances
chances ofofcertification
certificationareare
overwhelm and
12 For plaintiff's counsel, more is not necessarily
diminished.12
For plaintiff’s counsel, more is not necessarily better.13
diminished.
better.13
8
Compare Ragoonanan
Estate v.
v. Imperial
Imperial Tobacco
Canada Ltd.
Ltd (2000),
Ragoonanan Estate
Tobacco Canada
(2000), 51
51 OR.
O.R.(3d)
(3d)603
603(S.C.J.)
(S.C.J.)and
andHughes
Hughes v.
v.
8Compare
Sunbeam
Corp.(Canada)
(Canada)(2001),
(2001),11
11B.L.R.
B.L.R. (3d)
(3d) 236
236 (Ont.
(Ont. S.C.J.),
S.C.J.),varied
varied(2002),
(2002),61
61O.R.
O.R.(3d)
(3d) 433
433 (C.A.)
(C.A.) with
Sunbeam Corp.
th
MacKinnon v. National Money
(2004), 33
33 B.C.L.R.
B.C.L.R. (4
(4h)
21 (C.A.).
(C.A.). For
Money Mart Company
Company (2004),
) 21
For the
the time
time being,
being, Alberta is
is
following Ontario:
following
Ontario: see
seePauli
Pauliv.v.ACE
ACEINA
INAInsurance,
Insurance,2002
2002 ABQB
ABQB715
715and
andGillespie
Gillespiev.v.Gessert,
Gessert, 2006 CarswellAlta
datedMarch
March24,
24,2006).
2006). Saskatchewan
Saskatchewanmay
maybe
befollowing
following B.C.: see
429 (oral reasons
reasons dated
see the
the obiter
obiter comments
comments in
in Frey
Frey v.
v.
BCE Inc.,
Inc., 2006
2006 SKQB
SKQB331,
331,at
at para.
para. 15.
15.
9
9
Hunt v. Carey Can. Inc. (1990),
Hunt
(1990), 49 B.C.L.R.
B.C.L.R. (2d)
(2d) 273
273 (S.C.C.),
(S.C.C.), at
at pp.
pp. 288-289;
288-289; Kimpton
Kimpton v.
v. Canada
Canada (Attorney
(Attorney
139 (S.C.), at
General) (2002), 9 B.C.L.R.
B.C.L.R. (4th)
(4th) 139
at para.
para. 7; Dawson v. Rexcraft
Rexcraft Storage
Storage and Warehouse
Warehouse Inc. (1998),
(1998),
164 D.L.R.
D.L.R. (4h)
& Johnson,
[2006] O.J. No. 2421 (Div.
(Div. Ct.),
(Ont.C.A.), para.
para. 9;
9; Serhan
Serhan v. Johnson
Johnson &
Johnson, [2006]
Ct.), paras.
paras. 42164
(4th) 257 (Ont.C.A.),
43.
10
Compare Kripps
Kripps v. Touche
Touche Ross
Ross&& Co.
Co. (1992),
(1992), 69
69 B.C.L.R.
B.C.L.R. (2d) 62 (C.A.), 94
Compare
94 D.L.R.
D.L.R. (4th)
(4th) 284, at B.C.L.R.
B.C.L.R. pp.
pp.
67-68 (order
claims upheld)
upheld) with Haskett
Haskett v.
v. Equifax
Equifax Canada
Canada Inc.
Inc. (2003), 63 O.R.
(order striking
striking claims
OR. (3d) 577 (C.A.)
(plaintiff's appeal
(plaintiff’s
appeal of
of order
order striking
striking claim
claimallowed)
allowed)and
andKlein
Kleinv.v.American
AmericanMedical
MedicalSystems,
Systems, [2005] O.J.
O.J. No. 4910
4910
(S.C.J.);
Consider also also Cotton v. Wellsby
Wellsby (1991), 59
(S.C.J.); leave
leave to
to appeal
appeal granted
granted[2006]
[2006] O.J.
O.J. No.
No. 2188
2188 (S.C.J.).
(S.C.J.). Consider
B.C.L.R.
(2d) 366
366 (C.A.),
(C.A.),para.
para.25
25(judges
(judgesand
andmasters
masters have
have a duty to
to enforce
enforce the
the rules
rules concerning pleadings when
B.C.L.R. (2d)
asked to
to do
do so)
so) and
and Auger
Auger v.
v. Berkshire
Berkshire Investment
InvestmentGroup.
Group.Inc.,
Inc., [2001]
[2001] O.J.
O.J. No.
No. 379
379 (C.A.), paras.
14-15 (cited by
asked
paras. 14-15
Epstein J. in Serhan, para. 43).
11
" See
Hercules Managements
ManagementsLtd.
Ltd v. Ernst
Seefor
forexample
exampleQueen
Queenv.v.Cognos
Cognos (1993),
(1993), 99
99 D.L.R.
D.L.R.(4th)
(4th) 626 (S.C.C.) and
and Hercules
th
& Young
&
Young (1997),
(1997), 146
146 D.L.R.
D.L.R.(4th)
(4 ) 577
577 (S.C.C.)
(S.C.C.) (misrepresentation
(misrepresentation claims); Whiten v. Pilot
Pilot Insurance
Insurance Co.
Co. (2002),
be supported
supported by
by material
material facts);
facts); Hunt v. Carey
209 D.L.R. (4h)
(4th) 257
257 (S.C.C.)
(S.C.C.) (punitive
(punitivedamages;
damages; conclusions
conclusions must be
(conspiracy
claims); Winnipeg
Winnipeg Condominium
Condominium Corp.
Corp. No.
No. 36
36 v.
v. Bird Construction
(conspiracy claims);
Construction Co.
Co. (1993),
(1993), 101
101 D.L.R.
D.L.R. (4th)
(4th) 699
699
th 193
(negligence claims); Soulos
(economic loss);
loss); Cooper
Cooper v.
v. Hobart (2001),
(S.C.C.) (economic
(2001), 206
206 D.L.R.
D.L.R. (4th)
(4 ) 193 (S.C.C.) (negligence
Soulos v.
v.
Korkontzilos
Korkontzilos (1997),
(1997), 146
146 D.L.R.
D.L.R.(4th)
(4th) 214
214 (S.C.C.) (constructive trust);
trust); Garland
Garlandv.v.Consumers
Consumers Gas
Gas Co. (2004), 237
D.L.R.
(4th) 385 (S.C.C.) (unjust enrichment).
enrichment).
D.L.R. (4th)
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In advance
certification application,
that all
all elements
elements of
of
advance of the certification
application, aa defendant
defendant should ensure
ensure that
pleaded properly,
properly, since
since one
one or
or more
more of
of them
them may
may give rise to individual
a claim are pleaded
individual issues
issues that
may be
be highly significant
significant in
inthe
thecontext
context of
ofthe
thecase
case as
as a whole. Defendant's
Defendant’scounsel
counsel must
must also
also
14
analysethe
theclass
classdescription
description
and
proposed
common
issues
the light
the
analyse
and
thethe
proposed
common
issues
in theinlight
of theofpleadings.
pleadings.14
A.
Tort and
Tort
and Misrepresentation Claims
So-called “mass
"mass torts”
torts" are tailor-made for
and vice
vice versa.
versa. "Disasters
for class
class actions, and
“Disasters spawn
litigation.
litigation.”15
,15
Recent examples
examplesinvolving
involving direct
direct attacks
on pleadings
include Williams
Recent
attacks on
pleadings include
Williams v.
v. Canada
Canada
D.L.R. (4th)
Federal Crown
Crown and
and the
the City
City
(2005), 257 D.L.R.
(4th) 704 (Ont. S.C.J.) (SARS; claims against the Federal
of Toronto
the Provincial
Provincial Crown
Crown struck
Toronto struck,
struck, claims
claims against
against the
struck in part),
part), Abarquez
Abarquez v. Ontario
Ontario
th
(4th)
(2005),
D.L.R. (4
) 745 (Ont. S.C.J.)
S.C.J.) (SARS,
by nurses;
nurses; claims
claims against
against Provincial
(2005), 257 D.L.R.
(SARS, claim by
Crown struck in
in part),
part), Grant
Grant v.
v. Canada
Canada (2005),
(2005), 258
258 D.L.R.
D.L.R.(4th)
(4th) 725 (Ont. S.C.J.) (claims struck
in part),
206 (Ont.
(Ont. C.A.) (constructive
part), Gorecki
Gorecki v.
v. Canada
Canada (2006), 265 D.L.R. (4th)
(4th) 206
(constructive trust claim
based
on defendant’s
defendant'salleged
alleged“wrongful
"wrongful conduct”
conduct" struck
struck out),
out), and
and Klein
Klein v. American Medical
based on
Systems,
[2005] O.J.
O.J. No.
No. 4910
4910 (S.C.J.),
leave to appeal
granted [2006]
[2006] O.J. No. 2188
Systems, [2005]
(S.C.J.), leave
appeal granted
2188 (S.C.J.)
(S.C.J.)
12
Compare Hollick
Hollick v. Toronto (City)
with Pearson
Compare
(City) (2001),
(2001), 205
205 D.L.R.
D.L.R. (4th)
(4th) 19 (S.C.C.) with
Pearson v. Inco Limited (2006),
(2006), 78
78
OR. (3d)
O.R.
(3d) 641
641 (C.A.).
(C.A.).InInOlsen
Olsenv.v.Behr
BehrProcess
ProcessCorporation,
Corporation,2003
2003BCSC
BCSC 429,
429, the
the plaintiffs
plaintiffswere
were forced
forced to
to amend
amend
their pleadings,
and on
on certification
certifcation only
were certified:
certifed: see
pleadings, and
only some
some of
of the
the issues
issues were
see Olsen
Olsen v.
v. Behr
Behr Process
Process Corporation
(2003), 17 B.C.L.R.
B.C.L.R.(4th)
(4th) 315 (S.C.). The
Thecase
case was
was settled
settled in
in 2005.
2005.
13
13Consider
Consider the
the original
original scope
scope –- compared
with what eventually was
was certified
certifed at
compared with
at the
the appellate
appellate level -– of
ofPearson
Pearson v.
v.
and Rumley
Rumley v.
Columbia (1998)
(1998) 65
65 B.C.L.R.
B.C.L.R. (3d) 382
rev’d (1999),
(1999), 72
Inco and
v. British Columbia
382 (dismissing
(dismissing certification),
certifcation), rev'd
B.C.L.R. (3d) 11 (C.A.), afd
B.C.L.R.
aff’d(2001),
(2001),205
205D.L.R.
D.L.R.(4th)
(4th)39
39(S.C.C.).
(S.C.C.). Compare
Comparealso
also MacKinnon
MacKinnon v.
v. National
National Money
Money
Mart
Mart Company,
Company, 2005 BCSC 271 (attempt
(attempt to certify
certify an
an industry-wide
industry-wide class
class action dismissed)
dismissed) with Bodnar v.
v. The
The
Cash Store,
Store, 2005
2005 BCSC
BCSC 1904,
1904,aff’d
aff'd 2006 BCCA 260,
Store Inc. [2006] O.J.
Cash
260, McCutcheon
McCutcheon v. The Cash
Cash Store
O.J. No. 1860
1860
2006 BCSC
BCSC 1018
1018 (certification
(certifcation granted
(S.C.J.) and
and Tracy
Tracy v.
v. Instaloans
Instaloans Financial
Financial Solutions
Solutions Centres
Centres(B.C.)
(B.C) Ltd.
Ltd 2006
(S.C.J.)
granted
against specific
specifc companies
businesses,including
includingcertification
certifcation of
against
companies or related businesses,
ofconspiracy
conspiracy common
common issues).
issues). See
See also
also the
ruling on
on the
the certifcation
certificationapplication
application ininFrey
Freyv.v.BCE
BCEInc.,
Inc.,[2006]
[2006]S.J.
S.J.No.
No.453,
453,2006
2006 SKQB
SKQB328,
328, where
where the
the court
court
concluded that
that much
much of
of the
the 40
40 page
page statement
statementofofclaim
claimfailed
failed to
to plead
plead reasonable
reasonableclaims.
claims. Certification
Certifcation was
concluded
was refused
refused
grounds that
that there
therewas
wasno
noappropriate
appropriaterepresentative
representative
plaintiffororlitigation
litigationplan.
plan. Concurrently, the court ruled
on the grounds
plaintiff
in favour
favour of
ofdefendants
defendants on
on applications
applications to dismiss
dismiss the action
action on
on the
the grounds
grounds itit was
was scandalous,
scandalous, frivolous
frivolous or
vexatious: see
see Frey
Frey v.
v. BCE Inc.,
Inc., 2006
2006 SKQB
SKQB 329
329 and
and 2006 SKQB
SKQB 331.
331.
14
Compare the
the result
result in
in Cloud
Cloud with
with the results
results in
in Ragoonanan
Ragoonanan v.
v.Imperial
Imperial Tobacco
Tobacco Canada
Canada Limited
Limited (2006),
(2006), 78
78 O.R.
OR.
Compare
Caputo v.
v. Imperial Tobacco
Ltd (2004), 236 D.L.R.
(3d) 98 (S.C.J.),
(S.C.J.), Caputo
Tobacco Ltd.
D.L.R. (4th)
(4th) 348
348 (Ont.S.C.J.),
(Ont.S.C.J.), leave to discontinue
discontinue
granted [2006]
[2006] O.J.
O.J. No.
No. 537
537 (S.C.J.),
(S.C.J.), and
andDuMoulin
DuMoulin v. Ontario, [2005]
granted
[2005] O.J.
O.J. No.
No. 3961
3961 and
and [2006]
[2006] O.J.
O.J. No.
No. 1233,
1233, 23
th
C.P.C. (6
(6th)
207(S.C.J.).
(S.C.J.).None
Noneofofthe
thelatter
latterthree
threecases
cases
were
certifed.AAsignificant
signifcant problem
problem in
in the
the first
frst two
C.P.C.
) 207
were
certified.
two was
was
describing an
an identifiable
identifable class.
class.
L5
15
Carom v.
v. Bre-X
Bre-XMinerals
Carom
Minerals Ltd
Ltd.(2001),
(2001),51
51 OR.
O.R.(3d)
(3d)238
238(C.A),
(C.A),atatp.
p. 238.
238.
2008 Clark
Clark Wilson
Wilson LLP
LLP
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Elaine J. Adair,
T. 604.891.7783
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5
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Document hosted at
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BC's Law Finn for Busiess
(claim
arising from surgical
surgical insertion
insertion of device
device licensed
licensed by the Medical
Medical Devices
Devices Bureau
Bureau of
(claim arising
of
Health Canada;
AG's motion
Canada; AG’s
motiontotostrike
strikedismissed;
dismissed;leave
leaveto
toappeal
appeal dismissal
dismissal granted).
granted).
appeal to
to the
the Ontario
Ontario Divisional
Divisional Court of
The appeal
of the
the certification
certificationorder
orderininSerhan
Serhan v.
v. Johnson
Johnson
& Johnson
also involved
involved an
an attack
attackon
onthe
thepleadings,
pleadings,specifically
specificallythe
theplaintiff’s
plaintiff's“waiver
"waiver of
of tort”
tort"
&
Johnson also
cause
Motor Company,
Company, 2006
2006 BCSC
application to
causeof
of action.
action. In Reid v. Ford Motor
BCSC 712,
712, the
the plaintiff’s
plaintiff's application
amend
J. had
had
amendher
herstatement
statementofofclaim
claimtotoplead
pleadthe
the“wavier
"wavierofoftort”
tort" type
type of
of claim
claim that
that Cullity J.
16
certified
in
Serhan
was
certified in Serhan was dismissed.
dismissed.16
Pro-Sys Consultants
Consultants Ltd.
Corporation,2006
2006BCSC
BCSC1047,
1047,the
thedefendant
defendant
In Pro-Sys
Ltd. v.
v. Microsoft
Microsof Corporation,
challenged the
the statement
statementofofclaim
claim in
in advance
advanceof
of the
the certification
certification application.
application. Several
challenged
Several claims
claims
were
claims.17
were struck
struck out,
out, including
includingspoliation,
spoliation,unjust
unjustenrichment
enrichmentand
andconstructive
constructivetrust
trust
claims.17
Paragraphsdescribing
describingother
otherproceedings
proceedingsinvolving
involving Microsoft
Microsoft were also struck on
Paragraphs
on the
the grounds
grounds
that they improperly pleaded
evidence. However, aa “waiver
"waiver of tort"
pleaded evidence.
tort” claim
claimwas
was not
not struck
struck out.
out.
th
19 C.P.C.
(6th)
C.P.C. (6
4237 (Master) and
In Sauer
Sauer v.
v. Canada
Canada (2005),
(2005), 19
) 298, [2005] O.J.
O.J. No.
No. 4237
and
(2006), 79 O.R. (3d) 19
19 (S.C.J.),
(S.C.J.), the proposed
proposed class
classmembers
memberswere
wereall
allcommercial
commercialfarmers.
farmers. It
was alleged
asaaresult
resultof
of the
the borders
borders of
of the
the United States,
alleged that they suffered damages
damages as
States, Mexico
and Japan
Japanbeing
beingclosed
closedtotosale
saleofofCanadian
Canadiancattle
cattlefollowing
followingidentification
identification of
of aa case
case of
of BSE
BSE in
and
Alberta. The
Thedefendant
defendant Ridley
RidleyCanada
Canada was
was alleged
alleged to be
be the
the manufacturer
manufacturer of the
the cattle
cattle feed
feed
alleged to
to have
been consumed
consumedby
bythe
theinfected
infectedAlberta
Albertacow.
cow. Its
alleged
have been
Its Australian
Australian parent
parent was
was also
also
named
as aa defendant.
defendant. There
named as
There was
was no
no allegation
allegation that
that any
anyputative
putativeclass
class member
member had
had purchased
purchased
feed
of any
any cattle.
cattle. The
feed from Ridley, or
or lost
lost any
any cattle
cattle or lost any
any sales
sales of
The claim
claim against
against Australian
parent
company, which
which had
five times,
parent company,
had been
been amended
amended five
times, was
was struck
struck without
without leave
leave to
toamend.
amend.
However,
the other
other claims
claims were
were not
not struck.
struck. With
However, the
Withrespect
respect to
to the
the claim
claim that
that Ridley
RidleyCanada
Canada had
had
breached
duty to
to warn the
the putative class
class members,
members,Mr.
Mr. Justice
Justice Winkler
Winkler said (citing
(citing Haskett
breached aa duty
Haskett v.
v.
Equifax): "It“Itisisa anovel
novelcase
caseand
andwhen
whenthe
theconsiderations
considerations regarding policy are
are coupled with the
the
16
16Reid
was aa conventional
conventional “defective
"defective and
and dangerous
dangerousproduct”
product"case
casethat
thatwas
wascertified
certifedinin2003:
2003: see
Reid v.
v. Ford
Reid was
see Reid
Motor Company,
2003 BCSC
BCSC 1632.
1632. On
Company, 2003
On the
the application
application to
to amend,
amend, plaintiffs
plaintiff’scounsel
counselcandidly
candidlyconceded
conceded that
that the
the
purpose of the amendment was
was to
to avoid the necessity
necessity of
of proving
proving that
that each
each individual
individualclass
classmember
member suffered
sufferedloss
loss as
as aa
result of Ford's
Ford’s negligence
negligence or failure
failure to
to warn.
warn.
17
108 of the
The plaintiff
plaintiff was
however. See
The
was granted
granted leave
leave to amend
amend however.
See Tysoe
Tysoe J.'s
J.’s summary
summary of his
his rulings
rulings at
at para.
para. 108
the
judgment.
2008 Clark
Clark Wilson
Wilson LLP
LLP
© 2008
Adair, T.
Elaine J. Adair,
T. 604.891.7783
604.891.7783
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BC's Law Finn for Business
caution in Haskett,
stage that
thataacourt
courtcould
couldnot
notfind
find aa duty
duty of
of
caution
Haskett, itit is not plain and
and obvious at this stage
care to exist.
care
exist. . . . This is not
not to
to be
be taken
taken as
as a finding
finding that
that aa duty
dutyofofcare
careas
as pleaded
pleaded exists
exists but
rather
determination that
it is
rather aa determination
that it
is not
not plain
plainand
and obvious
obviousthat
that one
one does
does not
not exist."
exist.”18
18
However, not everything
everything succeeds.
succeeds. For
For example,
example, complaints
complaints concerning
concerning an alleged duty
19
and failure
failuretotowarn
warnhave
have
been
refused
certifcation,
and claims
for reimbursement
of
and19claims
for reimbursement
of drug costs
and
been
refused
certification,
drug costs
have
been struck
struck out.
out.20
have been
20
B.
Contract-based Claims
Claims
based on
implied terms
terms (including
implied warranties),
warranties), or
or oral
oralterms,
terms,are
are
Claims based
on implied
(including implied
particularly
for plaintiffs and
particularly problematic
problematic for
and their
their counsel.
counsel. Even
Evenif ifsome
somecommon
commonissues
issues are
are
Such cases
can also
present,
cases can
also
present, individual issues
issues are likely
likelytotooverwhelm
overwhelmand
andpredominate.21
predominate.21 Such
present
problems in
in arriving
arriving at
class definition.
definition.
present problems
at an appropriate class
Casesbased
basedon
onwritten
written agreements,
agreements,particularly
particularly standard
standardform
form contracts,
contracts, are
arelikely
likely to be
Cases
be
22
certified.22
Hickey-Button v. Loyalist College of Applied
Applied Arts
Arts &&Technology
Technology (2003),
(2003), 31
31 C.P.C.
C.P.C.
certified.
th 171
(5th)
was not
not certified
certified when
(5
) 171 (Ont. S.C.J.)
S.C.J.) was
when two levels
levels of
of court
court concluded
concluded the
the claims
claims were
were
based
on alleged
alleged oral
oral contract
contract terms,
terms,but
but was
was certified
certified when
when the
the Ontario
Ontario Court
Court of Appeal
based on
Appeal
concluded the
the claims
claims were
were based
based on
on an
an alleged
alleged written
written contract
contract (see
(see Hickey-Button
Hickey-Button v.
v. Loyalist
concluded
& Technology,
(C.A.).
College of Applied Arts &
Technology, [2006]
[2006] O.J.
O.J. No. 2393 (C.A.).
18
L8Sauer
Sauerv.v.Canada
Canada(2006),
(2006),79
79O.R.
OR. (3d)
(3d) 19
19 (S.C.J.),
(S.C.J.), para.
para. 85.
85.
19
L9
(C.A.), at
Rumley
v. British Columbia (1999), 72 B.C.L.R. (3d)
Rumley v.
(3d) 11 (C.A.),
at para.
para. 45; Harrington v.
v. Dow
Dow Corning
Corning Corp.
Corp.
(1996), 22 B.C.L.R. (3d) 97 (S.C.),
(1996),
(S.C.), at
at para.
para. 8.
On the
the hearing
hearing of the certifcation
certification application
application in Carriere v. Bell
8. On
Canada,
2360 (S.C.J.),
(S.C.J.), claims,
investigate and
Canada, [2006]
[2006] O.J.
O.J. No.
No. 2360
claims, including
including an
an alleged
alleged duty
duty to monitor, investigate
and warn
warn Bell
customersof
of “modem
"modem hi-jacking,”
hi-jacking," were struck out, but with
customers
with leave
leave to
to amend.
amend. The
Thecourt
courtrejected
rejectedthe
thedefendant's
defendant’s
motion to
to dismiss.
dismiss.
20
20Boulanger
Boulangerv.v.Johnson
Johnson&&Johnson
JohnsonCorp.,
Corp.,[2003]
[2003]O.J.
O.J.No.
No.2218
2218(C.A.),
(C.A.),affirming
affirming in part [2002]
[2002] O.J.
O.J. No. 1075,
1075, 14
C.C.L.T. (3d)
C.C.L.T.
(3d) 233
233 (Ont.
(Ont. S.C.J.).
S.C.J.).
21
21
Harrington
v. DeVry
DeVy Canada
Harrington v.
v. Dow
Dow Corning
Corning Corp.
Corp. (1996),
(1996), 22
22 B.C.L.R.
B.C.L.R. (3d)
(3d) 97
97 (S.C.),
(S.C.), at
at para.
para. 50; Mouhteros
Mouhteros v.
Canada
Inc. (1998),
(1998), 22
22 C.P.C.
C.P.C. (4th)
(4th) 198 (Ont. S.C.J.); Macleod v. Viacom Entertainment
Entertainment Canada
Canada Inc.
Inc.(2003),
(2003),28
28C.P.C.
C.P.C.(5th)
(5th)
160 (Ont.
S.C.J.), Arabi v.
v. Toronto-Dominion
Toronto-Dominion Bank,
Bank, [2006]
O.J. No.
No. 2072 (S.C.J.)
MacLean v. Telus
Telus
(S.C.J.) and
and MacLean
(Ont. S.C.J.),
[2006] O.J.
Corporation, 2006
Corporation,
2006 BCSC
BCSC 766,
766, [2006]
[2006] B.C.J.
B.C.J. No.
No. 1107.
1107.
22
22
("Scott
See
TDWaterhouse
Waterhouse Investor
Investor Services
Services (Canada) (2001), 94 B.C.L.R. (3d) 320 (S.C.) (“Scott
See Scott
Scott v. TD
Certifcation"); Wlson
Certification”);
Wilsonv.v.Re/Max
Re/Max Metro-City
Metro-City Realty
Realty Ltd
Ltd.(2003),
(2003),63
63OR.
O.R.(3d)
(3d)131
131(S.C.J.);
(S.C.J.);Bodnar
Bodnar v.v.The
The Cash
Cash
Store Inc., 2006
2006 BCCA
BCCA 260, affirming
affirming 2005
2005 BCSC
BCSC 1904.
1904.
2008 Clark
Clark Wilson
Wilson LLP
LLP
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Elaine J. Adair,
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BC's Law Finn for Business
Properly pleaded
breach of
of warranty
warranty claims
claims clearly are
to certification where
pleaded breach
are amenable
amenable to
where
the focus can remain on the conduct of
of the
the defendant,
defendant, and
and there is no
no real
real issue
issue concerning
concerning the
status of the
the claimants.23
claimants.23 Even where the claimants are
are not direct
direct purchasers,
purchasers, pleading aa breach
breach
of an
an implied
impliedwarranty
warrantyunder
under
Sale
of Goods
Act survive
may survive
of
thethe
Sale
of Goods
Act may
attack.24
attack.24
C.
Suing “an
"an industry”
industry" or
Suing
ormultiple
multipledefendants
defendants in
inaa single
single action
Suing multiple,
multiple, unrelated
unrelated defendants
defendants inevitably
inevitablyraises
raises issues
issues concerning
concerning manageability,
manageability,
therefore preferability,
preferability, of
and therefore
of litigating
litigatingthe
theclaims
claimsininthe
thecontext
contextofofa aclass
classaction.25
action.25
D.
Particular
of action
action and
andcreative
creativepleading
pleadingcan
canfacilitate
facilitatecertification
certifcation
Particular causes
causes of
Causesof
of action
action where
where the
the primary focus can
Causes
can be on conduct of
of the
the defendant,
defendant, and
and where
determinations made in respect of that conduct
conduct can
can advance the claims of
of the
the class
class members in a
meaningful
way,will
willfacilitate
facilitatecertification.26
meaningful way,
certification. 26
Compare
Waterhouse Investor
Compare Scott
Scott v.
v. TD Waterhouse
Investor Services
Services (Canada)
(Canada) (2001),
(2001), 94
94 B.C.L.R.
B.C.L.R. (3d)
320 (S.C.)
(S.C.) and
and Cassano
Cassanov.v.TD
TDBank.
Bank. Both involved fnancial
320
financial services,
services, both involved foreign
exchange rates,
rates,and
andin
in both
both cases
casesthe
theplaintiffs
plaintiffs complained that the defendant had been
been unjustly
unjustly
exchange
enriched at
at their
their expense.
expense. Only
Only Scott
certified.
Scott was certified.
Compare also
also Caputo
Caputo v.
v. Imperial
Imperial Tobacco Ltd. (2004),
Compare
(2004), 236
236 D.L.R.
D.L.R.(4th)
(4th) 348
348 (Ont.
(Ont. S.C.J.)
S.C.J.)
("Caputo"), which
(“Caputo”),
which was
was not
not certified,
certified, with
with the
the claims
claims advanced
advanced in Knight
Knight v.
v. Imperial
Imperial Tobacco
Tobacco
Canada Limited
Limited (2005), 250 D.L.R. (4th)
347 (B.C.S.C.),
(B.C.S.C.), 2005
2005 BCSC
BCSC 172,
172, varied
varied 2006
2006 BCCA
BCCA
Canada
(4th) 347
23
23An
An example
exampleisis aa claim
claim relying
relying on breach of implied
impliedwarranties
warranties under
under the
the Sale
Sale of
of Goods
Goods Act,
Act, where
where the
the defendant
defendant
is the seller and the class
class members
membersare
arepurchasers.
purchasers.See
SeeFakhri
Fakhri v.
v. Wild
Wild Oats Markets Canada Inc. (2004),
(2004), 41
41 C.P.C.
C.P.C.
th
(4th)
369(B.C.S.C.)
(B.C.S.C.) and
andVezina
Vezinav.v.Loblaw
Loblaw Companies
CompaniesLtd.,
Ltd, [2005]
(4
) 369
[2005] O.J.
O.J. No.
No. 1974
1974 (S.C.J.).
(S.C.J.).
24
24See
SeeCaputo
Caputov.v.Imperial
ImperialTobacco
TobaccoLtd.
Ltd (2004), 236
236 D.L.R. (4th)
348 (Ont.
(Ont. S.C.J.),
S.C.J.), para.
para.22.
22. Although the
(4th) 348
the attack on
the pleadings
pleadings was
was unsuccessful,
unsuccessful, the
certification application
application was
was dismissed,
dismissed, and
and the
the action
actionsubsequently
subsequently
the
the certifcation
discontinued.
25
25Harrington
Harrington v.
v.Dow
DowCorning
Corning Corp.
Corp. (2000),
(2000),82
82B.C.L.R.
B.C.L.R.(3d)
(3d)11(C.A.),
(C.A.), affirming
affrming (1996),
(1996), 22
22 B.C.L.R.
B.C.L.R. (3d)
(3d) 97
97 (S.C.)
(S.C.)
(certifcation granted
on appeal)
appeal) but
but plaintiff
plaintiff unable
the litigation forward
(certification
granted and upheld
upheld on
unable to move the
forward (see
(see Harrington
Harrington v.
v.
Dow Corning Corp.
Corp. (2002),
(2002), 33 B.C.L.R.
B.C.L.R.(4th)
(4th) 51
51 (S.C.));
(S.C.)); and
and MacKinnon v.
v. National
National Money
Money Mart
MartCompany,
Company, 2005
2005
BCSC 271
271 (certification
(certifcation of
BCSC
ofindustry-wide
industry-wide class
class action
action dismissed).
dismissed). Compare
Compare with
with Wilson
Wilson v.v. Servier
Servier Canada
Canada Inc.
Inc.
OR. (3d)
(multiple defendants,
(2000), 50 O.R.
(3d)219
219(S.C.J.)
(S.C.J.) and
and (2005),
(2005), 252
252 D.L.R.
D.L.R.(4th)
(4th) 742 (S.C.J.) (multiple
defendants, but all related), and
Bodnar v. The Cash
Cash Store,
Store,2006
2006BCCA
BCCA 260
260 (certification
(certifcation of
ofless
less ambitious
ambitious action
action upheld).
upheld).
th
26
Cloud v. Canada
(2004), 247
247 D.L.R.
D.L.R. (4
(4th)
667 (Ont.
(Ont. C.A.),
C.A.), Pearson
Pearson v.
v. Inco
Inco Limited
Limited (2006),
(2006), 78
78 O.R.
OR. (3d)
Cloud
Canada (2004),
) 667
(3d) 641
641
th
(4th)
14 B.C.L.R.
32 (C.A.) are
(C.A.) and Hoy v.
v. Medtronic,
Medtronic, Inc.
Inc. (2003), 14
B.C.L.R. (4
) 32
are appellate
appellate level decisions
decisions granting
granting or
affirming certifcation,
affirming
certification,despite
despitethe
theprevalence
prevalence (if
(ifnot
notthe
thepredominance)
predominance) of
of individual
individualissues.
issues.
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BC's U. Finn for Busiess
235 (“Knight”),
("Knight"), which
product liability
liability claim,
whichwas
was certified.
certified. Caputo
Caputowas
waspleaded
pleaded as
as a product
claim, complete
complete
with individual
causationand
anddamages.
damages.The
Thegist
gistofofthe
theclaim
claimininKnight
Knight –individual issues
issues concerning
concerning causation
relying on
on B.C.'s
B.C.’sTrade
TradePractice
PracticeAct,
Act,aaconsumer
consumer protection
protection statute
statute that proscribed “deceptive”
"deceptive"
trade practices
practices –- was
misrepresentedthe
thetrue
truenature
natureof
of “light”
"light" cigarettes.
was that
that the
the defendant
defendant has misrepresented
cigarettes.
knowledge and
and conduct,
conduct,and
andno
no claim
claim was
was made
madefor
for individual
It focussed
focussed on the defendant's
defendant’s knowledge
damages.
damages.
E.
"Aggregate Damages"
“Aggregate
Damages”
awards of
of
Despite the express
express provisions in
in class
class actions
actions statutes
statutes concerning aggregate
aggregate awards
27
relief,27
plaintiffs' counsel
from the
the court to include
plaintiffs’
counsel are
are receiving more encouragement
encouragement from
monetary relief,
for certification
certificationcommon
commonissues
issuesconcerning
concerning"aggregate
“aggregatedamages"
damages”or
oran
an"aggregate
“aggregateassessment"
assessment”
of damages.
of
damages.28
28
F.
Drafting
DraftingCommon
CommonIssues
Issues
Common issues
issuesare
areininfact
fact “pleadings.”
"pleadings." They
Common
They have
have their origins in
in the
the statement
statement of
claim, and
and possibly
possiblyalso
alsoaastatement
statementofofdefence.29
defence.29 The extent to which
which common
common issues
issues receive
receive
real scrutiny
scrutiny as
as pleadings is open to debate.
debate. One
One approach is that broadly
broadly drafted
drafted common
common issues
issues
acceptable and
andindeed
indeedpreferred,
preferred,particularly
particularly since amendments
amendments can
can be
bemade
madelater.
later. However,
are acceptable
recognized that
that common
common issues
issuesthat
that are
are too
too broadly
broadly or
others (including class
class counsel)
counsel) have
have recognized
vaguely drafted
drafted will
will not
to move
move the
the litigation
litigation forward to trial
not help
help the
the court
court and
and counsel
counsel to
trial and
and aa
determination of
determination
of issues
issues on the merits.
merits.
Ironically,
Ironically, Mr.
Mr.Justice
Justice Cullity
Cullityidentified
identifiedthe
theproblem
problemwith
withcommon
commonissues
issues that
that were
were too
broadly drafted, in
in Egglestone
Egglestone v. Barker, [2003]
[2003] O.J.
O.J. No.
No. 3137
3137 (S.C.J.)
(S.C.J.) (bold
(bold added):
added):
¶ 16 As
appearance of
of
As drafted,
drafted, the
the proposed
proposed issues
issues have an appearance
commonality in
that an
anaffirmative,
affrmative, or
commonality
in the
the sense
sense that
or negative,
negative, answer
answer
27
See, e.g.,
e.g.,B.C.
B.C. Class
Class Proceedings
Proceedings Act, s. 29, Ontario Class Proceedings
See,
Proceedings Act,
Act, s.
s. 24.
24.
28Recent
Recentexamples
examplesare
arefound
foundininCloud
Cloudv.v.Canada,
Canada,paras.
paras.55-56,
55-56,7070(note
(notethe
thecourt’s
court'squalification);
qualifcation); Vezina
Vezina v.
v. Loblaw
Loblaw
Companies Ltd.;
Ltd.; Serhan
Companies
Serhan v. Johnson
Johnson &
&Johnson,
Johnson, paras.
paras. 130
Vezina); Kranjcec
Kranjcec v. Ontario
130 and
and following
following (citing Vezina);
(2004), 69 OR.
O.R.(3d)
(3d)231
231(S.C.J.),
(S.C.J.),paras.
paras. 63-64;
63-64; McCutcheon
McCutcheonv.v. The
The Cash
Cash Store,
Store, [2006]
[2006]O.J.
O.J. No.
No.1860
1860(S.C.J.),
(S.C.J.), para.
para.
74. The
plaintiffs in Pearson
77 (citing
74.
The Ontario
Ontario Court
CourtofofAppeal
Appealalso
alsoappeared
appeared to be
be encouraging
encouraging plaintiffs
Pearson v. Inco, para.
para. 77
Kranjcec).
Kranjcec).
29
29In
InKnight,
Knight, some
some of
of the
the certified
certifed common
commonissues
issues were
were derived
derived from
fromthe
thestatement
statement of
of defence.
defence.
28
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BC's Law Finn for Business
to the question posed
by each
each of
of them
them would
would resolve the issue
issue in
in
posed by
respect of
of all members of the class.
class. In
the task
task of
of
respect
In that
that sense,
sense, the
framing
common
issues
for
the
purpose
of
a
motion
for
framing common issues for
purpose of a motion for
rarely, ifif ever,
ever,give
giverise
risetotodifficulty.
difficulty. In most
certification would rarely,
cases,the
thequestion
questionwhether
whether the
the defendants
defendants are
are liable
liable to the
cases,
members of the class could be considered to be a common
issue.
issue. IfIfthat
that were
were suffcient,
sufficient,the
the requirement
requirement of commonality
would
would call
call for
fornothing
nothingmore
morethan
than an
an exercise
exercise in drafting.
drafting.
In British
British Columbia,
Columbia, itit proved
proved difficult
difficulttoto"move
“movethe
thelitigation
litigationforward"
forward”inincases
casessuch
such as
as
Harrington v.
v. Dow
Dow Corning
Corning Corp.
Corp. and
and Rumley,
Rumley, without providing more
more detail
detail for the original
broad
andgeneral
general
common
issues
broad and
common
issues
certified.30
certifed .30
Collette v.
v. Great Pacifc
PacificManagement
Management Co.
Co. (2004),
(2004), 26
26 B.C.L.R.
B.C.L.R. (4th)
(4th)252
252 (C.A.),
(C.A.),aacase
case
In Collette
alleging negligence by investment advisors in relation
relation to
to investments
investments in
in mortgage
mortgage units, the
the B.C.
B.C.
Court
of Appeal
Appeal reversed
reversed the
the dismissal
dismissal ofofthe
thecertification
certificationapplication,
application,and
andcertified
certified
Court of
thethe
following issues:
following
issues:
1.
Did the
1.
Did
the Defendants,
Defendants, or any of
of them,
them, owe,
owe, to
to the
the class
class
members
with whom they dealt, a duty in contract, tort, or both, to
members with
evaluate the
the Multimetro
Multimetro Mortgages
evaluate
Mortgages by
by aa standard of due diligence
class members
membersifif
and not to offer units in
in the
the mortgages
mortgages for sale to class
the investments did not
not meet
meet the standard of due diligence?
2.
2.
If
If the
the answer
answer to question 1 is "yes", did
did the
the Defendants, or
any of them, breach that duty?
3.
If the
are "yes",
"yes", did the breach
3.
If
the answers
answers to questions 1 and 2 are
of duty
dutycause
cause damage
damage to
to the
the class
class members?
members?
However,
now proceeding
proceeding to
to trial,
trial, the
the plaintiff
plaintiff applied
However, with the
the case
case now
applied to
to "amend"
“amend” these
these
31
common issues.
Remarkably, the
the grounds
grounds on
on which
which the
the plaintiff’s
plaintiff's application
common
issues.31
Remarkably,
applicationwas
was made
made were
that (a) the common issues
asstated
statedby
bythe
theCourt
Courtof
of Appeal
Appeal conflated
confated the issues
of duty of
issues as
issues of
of care
care
and standard
standard of
of care;
care; and
and (b) the standard
of care
and
standard of
care allegedly owed to the
the class
class by
by the
the defendant
defendant
required
clarification. The
the plaintiff’s
plaintiff's application,
that the
the plaintiff’s
plaintiff's
required clarification.
The court
court dismissed
dismissed the
application, saying
saying that
30
SeeHarrington
Harrington v. Dow Corning Corp. (2002), 3 B.C.L.R. (4th)
51 (S.C.)
(S.C.) (plaintiff’s
(plaintiff's application
See
(4th) 51
application to
to approve
approve a trial
plan dismissed;
pleadings needed
neededtotobe
besettled
settledfirst)
frst) and
Rumley v.
v. British
British Columbia
dismissed; pleadings
and Rumley
Columbia (2003),
(2003), 12
12 B.C.L.R.
B.C.L.R.(4th)
(4th) 121
121
(S.C.) (motion to decertify
dismissed,
but
only
afer
the
court
redrafed
the
common
issues).
decertify dismissed,
after the court redrafted the common issues).
31
31
Cartier Partners
1749 (“Collette
("Collette (motion
Collette v. Cartier
Partners Securities
Securities Inc., 2005 BCSC 1749
(motion to
to amend)").
amend)”).
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BC's Law Finn for Business
new proposed common issues
"alter the substance
of the common issues
asstated
statedby
bythe
theCourt
Court of
of
issues “alter
substance of
issues as
32
Appeal
suchthat,
that,if ifgranted,
granted,
they
would
no longer
satisfy
the requirements"
for
Appeal such
they
would
no longer
satisfy
the requirements”
for certification.
certification. 32
In Ernewein
Ernewein v. General Motors of
of Canada
Canada Ltd. (2005),
(2005), 46
46 B.C.L.R.
B.C.L.R. (4th)
(4th) 234 (C.A.), the
the
B.C. Court of
of Appeal
Appeal allowed
allowed the
the defendant's
defendant’s appeal
appeal from an
an order granting certification and
and
dismissed the
the application
application –- aa very
dismissed
very rare
rare event.
event. Although
Althoughthe
thedefendant's
defendant’sappeal
appealsucceeded
succeeded on
other grounds,
grounds, Newbury
Newbury J.A.
J.A. specifically
inadequaciesininthe
thedrafting
drafing of the
specificallynoted
noted problems
problems and inadequacies
common issues.
issues.33
common
33
In Ontario,
Ontario, broadly
broadly drafed
draftedcommon
common issues
issues -– provided
provided they
they are
arenot
notofof the
the "is
“is the
the
defendant liable
liable to the
defendant
the class
class members"
members” variety -–appear
appear to
tobe
bequite
quiteacceptable,
acceptable, particularly
following the
following
the Ontario
Ontario Court
Court of
of Appeal's
Appeal’sdecision
decision in
inCloud
Cloudv.v. Canada.
Canada.
The final list
certified by the
the Ontario
Ontario Court
Court of
of Appeal
Appeal in Cloud were
The
list of
of common
common issues
issues certified
(para. 72):
72):
(1) By
Bytheir
theiroperation
operationor
ormanagement
management of the Mohawk Institute
Residential School from
from 1953
1953 to
to1969
1969did
didthe
thedefendants
defendants breach
breach a
duty of
care
owed
to
the
students
of
the
School
to
protect
them
of care
students of
from actionable
from
actionable physical
physical or
or mental
mental harm?
harm?
(2) By
Bytheir
theirpurpose,
purpose, operation
operation or
or management
management of
of the
the Mohawk
Mohawk
Institute Residential
Residential School
School from
from1922
1922 to
to 1969
1969 did
didthe
the defendants
defendants
breach aa fiduciary
fiduciary duty
breach
duty owed
owed to
to the
the students
students of the School to
protect them from
from actionable
actionable physical or
or mental
mental harm, or the
aboriginal rights
aboriginal
rightsof
ofthose
thosestudents?
students?
of the
the Mohawk
Mohawk
(3) By
Bytheir
theirpurpose,
purpose, operation
operation or
or management
management of
Institute Residential
Residential School
School from
from1922
1922 to
to 1969
1969 did
didthe
the defendants
defendants
breach
a
fiduciary
duty
owed
to
the
families
and
siblings
of the
breach a fiduciary
students of the School?
(4) IfIfthe
theanswer
answertotoany
anyofofthese
thesecommon
commonissues
issues isis yes,
yes, can
can the
assessmentof
of the
the damages
damagessuffered
suffered by
by all
court make
make an
an aggregate assessment
members of
of each
each class
class as
aspart
partof
of the
the common
common trial?
class members
32
Thenew
newproposed
proposedcommon
commonissues
issuesare
are at
at para.
para. 51.
51.
32Collette
Collette (motion
(motion to amend), para. 6. The
33
33
See
J.A. at
at paras.
paras. 22-23.
22-23.
See the
the comments
comments of
of Newbury
Newbury J.A.
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BC's Law Finn for Busiess
(5) IfIfthe
theanswer
answertotoany
anyofofthese
thesecommon
commonissues
issues is
is yes,
yes, were the
defendantsguilty
guilty of conduct that justifies an award
award of
of punitive
defendants
damages?
damages?
(6) IfIfthe
theanswer
answertotothat
thatisisyes,
yes, what
what amount
amount of
of punitive
punitivedamages
damages
is awarded?
A
A more
more detailed
detailed list
list of
of 53
53 common
common issues
issues –- which
whichCullity
CullityJ.J.somewhat
somewhatpejoratively
pejorativelydescribed
described as
as
"shoppinglist”
list"–-was
wasspecifically
specifically
aa “shopping
rejected.34
rejected.34
Recently,
in Serhan
v. Johnson
& Johnson,
the Ontario
Ontario Divisional Court
Recently, in
Serhan v.
Johnson &
Johnson, the
Court upheld
upheld the
the
certification of
certification
ofthese
these common
common issues:
issues:35
35
Are
(1)
Are the
the defendants, or any of them,
them, constructive
constructive trustees
trustees
for
all,
or
any,
class
members
of
all,
or
any
part
of,
the
proceeds
of
for all, or any, class members of
of,
proceeds of
the sales
of the SureStep
SureStep Meter
Meter and Strips and any other income
sales of
made
by them in connection with
with the
made by
the SureStep
SureStep Meter, Strips and
Associated Paraphernalia,
Paraphernalia, including
including the lancets and
and controlled
controlled
If so,
solutions? If
so, in
in what
what amount
amount and
and for
forwhom
whomare
aresuch
such proceeds
proceeds
held?
Are the defendants,
or any
any of
of them, liable
liable to account to all,
(2)
defendants, or
or any, of the class members
members on
on aarestitutionary
restitutionary basis
basis for
for all,
all, or any
part of,
of, the
the proceeds
proceeds of
of the
the sales of the SureStep
SureStep Meter and Strips
and any
any other
other income
income made
made by
by them
them in
in connection
connection with
with the
SureStep Meter,
Meter, Strips and associated
associated paraphernalia,
paraphernalia, including
including the
SureStep
lancets
and
controlled
solutions?
If
so,
in
what
amount
and for
for
lancets and controlled solutions? If
and
whose benefit
benefit is
is such
such accounting
accounting to
to be
be made?
made?
defendants pay
pay punitive
punitive
(3)
Should one or more of the defendants
damages?IfIf so,
so, in
in what amount and to whom?
damages?
the cost
cost of
of administering
administering and
and distributing
distributing
(4)
Who should pay the
amounts to which
which class
members
are
entitled
and
how,
and when,
class
should such cost the [sic; be] determined?
At
At least
least some
some judges
judges appear
appear to be
be unconcerned
unconcerned that often
often the
the common
common issues
issues being
being
proposed
for certification
certifcation are
of
proposed for
are logically
logicallycomplex
complexquestions,
questions, which
whichassume
assume that many elements
elements of
34
34See
SeeCullity
Cullity J.’s
J.'s comments
commentson
on the
thecommon
common issues
issuesatat(2003),
(2003),65
65O.R.
OR. (3d) 492 (Div.
(Div. Ct.),
Ct.),at
at paras.
paras. 10-11, 14-15,
14-15, 31.
31.
In the Court
Court of
of Appeal,
Appeal,the
thecommon
commonissues
issues were
were reduced
reduced to six.
six.
35
35
See Serhan
Serhanv.v.Johnson
Johnson&& Johnson,
Johnson,[2006]
[2006] O.J.
O.J. No.
No. 2421
2421 (Div.
(Div. Ct.),
See
Ct.), para.
para. 35.
35.
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the class
class members’
members' case
casehave
havealready
alreadybeen
beenproved
provedororwhich
whichinevitably
inevitably must
must be
be broken
broken down
down into
their component
are well
well served
parties are
served ifif a
component parts
parts for
for trial.36
trial.36 However, neither the court nor the parties
casein
in fact
fact cannot
cannot be
bemoved
movedforward
forward because
becauseititlacks
lacksappropriate
appropriatedefinition
definitionof
of the
theissues
issues–-all
all of
of
case
them –
- that
that will
willhave
havetotobe
be determined.
determined.
G.
When
When in
in the
the proceedings
proceedings should
should pleadings
pleadings be
be challenged?
challenged?
If
intendstotomount
mountaafull-fledged
full-fedged attack
attackwith
with the
thegoal
goalof
offorcing
forcing the
theplaintiff
plaintiff
If aa defendant
defendant intends
to plead properly, or to have
of claim
claim struck
struck out,
out, the
the better
betteroption
option(if
(if
have all or parts of a statement
statement of
available)isistotobring
bringthe
the
motion
separately,
in advance
the certification
available)
motion
separately,
and and
in advance
of the of
certification
application.37
application.37
defendant's motion to strike,
the onus
onus of
of satisfying the court that
On a defendant’s
strike, the
the defendant
defendant has
has the
the motion
defendant in
in
motion should
should be
be granted.
granted. There
Therecan
can be
be tactical
tacticaland
and strategic
strategic advantages
advantages to the defendant
being the
the party
party who first
being
first lays
lays out
out for
forthe
thecourt
courtthe
theaspects
aspects of
of the
the statement
statement of claim
claim that
that are
are
problematic or defcient,
deficient,and
and who
who has
has the right of reply.
reply.
A
to file aa statement
of defence
defencein
in advance
advanceofofcertification
certification will
will
A defendant
defendant who intends
intends to
statement of
statement of
of claim.
claim.
also want to have a properly pleaded statement
H.
Motion to
to Strike
Strike is
is not
not a summary judgment motion
A Motion
A motion
the legal
legal sufficiency
sufficiency of
of the
the plaintiff’s
plaintiff's
motion to
to have
have aa claim
claim struck
struck out
out challenges
challenges the
pleadings.
pleadings. IfIfthe
thedefendant
defendant in
infact
factwants
wantstotoargue
argue that
that the
the claim
claimshould
should be
be dismissed
dismissed on
on the
the
application for
merits, the defendant must make an application
forsummary
summarydismissal.38
dismissal.38
distinction in
Doherty J.A. noted this distinction
in Hickey-Button
Hickey-Buttonv.v. Loyalist
LoyalistCollege,
College,atatpara.
para. 46:
46:
Loyalist's arguments
of action
Loyalist’s
arguments that
that the
the claims
claims do
do not
not reveal
reveal aa cause
cause of
are really
really submissions
submissionsthat
thatthe
theclaims
claimswill
will fail on their merits at
are
with respect
classes. The
least with
respect to some members of the proposed classes.
36
in Rumley,
Rumley,inin order
order to
to avoid
avoid decertification.
decertifcation. See
This in fact
fact was
was necessary
necessary in
See Rumley
Rumley v. British
British Columbia,
Columbia, 2003
2003
BCSC 234, (2003), 12 B.C.L.R.
B.C.L.R.(4th)
(4th) 121 (S.C.)
37
This was
was the
the approach
approach taken in
in (among
(among other
other cases)
cases) Carom
Carom v.
v. Bre-X,
Bre-X,Ragoonanan,
Ragoonanan,Hughes
Hughesv.v.Sunbeam,
Sunbeam, Olsen
Olsen v.
v.
Behr Process
v. Bank
Bank of Nova Scotia and Pro-Sys
Consultants Ltd.
Ltd v.
Process Corporation, Sauer
Sauer v. Canada,
Canada, Yordanes
Yordanes v.
Pro-Sys Consultants
v.
Microsoft
Microsoft Corporation,
Corporation,2006
2006BCSC
BCSC 1047,
1047, with
withpositive
positiveresults.
results.
38
38The
Thedifference
differencebetween
betweenthe
thetwo
twotypes
typesof
of applications
applications is discussed
discussedin
in Dawson
Dawson v.
v. Rexcraft
Rexcraf Storage.
Storage.
2008 Clark
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ultimate success
or failure
failure of
of the claim is irrelevant to whether a
success or
cause of
of action is disclosed.
cause
disclosed.
However, compare
v.
However,
compare these
thesecomments
commentswith
withthose
thoseofof Madam
Madam Justice
Justice MacDonald
MacDonaldin
in Arabi v.
Toronto-Dominion Bank.39
Toronto-Dominion
Bank.39
Recently,
the B.C.
B.C. Court
Court of Appeal in Dahl
Recently, the
Dahl v.
v. Royal
Royal Bank
Bank of
of Canada,
Canada, 2006 BCCA 369
369
gave
encouragementtoto defendants
defendantswho
whoare
areinterested
interestedinindisposing
disposingof
of claims
claims on the
gave encouragement
the merits,
merits,
without incurring
time
andand
expense
associated
with
a certification
incurring the
thevery
verysignificant
significant
time
expense
associated
with
a certification
application. Kirkpatrick
KirkpatrickJ.A.
J.A.wrote
wrote(at
(atpara.
para. 37):
37):
is aa relatively
relatively simple matter of contract
[T]he issue in this case
case is
interpretation.
It
makes
no
sense
interpretation. It makes no sense to
to require
requirethe
the banks
banks to
to oppose
oppose a
certification hearing
certification
hearinginincircumstances
circumstances where
where the
the discrete
discrete legal
legal issue
issue
[which decides
capable of
of
[which
decides a substantial portion of
of the
the case] is capable
summary determination. InInsuch
suchcases
cases itit is
is appropriate
appropriate to
to decide
decide a
as here,
here,itit is
is ripe
ripe for
for
central legal issue in circumstances where, as
determination. Such
Suchdetermination
determinationsaves
saves enormous
enormous time and
expense for
for all the parties. ItItmakes
expense
makesno
nosense
sense to
to expose
expose the parties
to the expense
of
a
certifcation
hearing
and
the
discovery
expense of a certification hearing and the discovery process
process
when the litigation
litigation can
can be
be pared
pared to its proper dimensions by the
appropriate determination
determination of
of central
central legal
legalissues.
issues.
1.
I.
Particulars
be ordered
ordered after
after certification
certification
Particulars can be
th
31 C.P.C. (5
(5th)
(B.C.S.C.).
See
Medtronic Inc.
Inc. (2002), 31
) 86 (B.C.S.C.).
See Hoy
Hoy v. Medtronic
The particulars
The
particulars
demanded
demandedare
areset
setout
outininAppendix
Appendix“A”.
"A".
IV.
IV.
STATEMENTS OF DEFENCE
A.
Defencebe
befiled
filed(even
(evenififitit is
is not
not required)?
required)?
Should a Defence
A statement
can give
give added
focus and
and weight
weight to aa defendant's
statement of defence
defence can
added focus
defendant’s affidavit
evidence and
and arguments
argumentsininopposition
oppositiontotocertification.
certification. By
evidence
Byfiling
filinga adefence,
defence,aadefendant
defendant takes
takes an
official position
official
positionconcerning
concerningthe
the issues
issues that the court will
will(eventually)
(eventually)have
havetotoaddress
address before
before the
39
See in
in particular
particular paras.
See
paras. 35, and 45-46.
45-46.
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use its
its defence
defenceto
tobegin
beginlaying
laying out
out for
for the court
case will
will be
case
be fully
fullyadjudicated.40
adjudicated.40 A
A defendant
defendant can use
point will
will have
defendant will
will be
all of
of the
the individual
individualissues
issues that at some
some point
have to
to be
be tried,
tried, and
and that the defendant
be
arguing make
make the
the case unsuitable for
for prosecution
prosecutionas
as aa class
class proceeding.
proceeding.
are at
at least
least two
two examples
examples where
where the
the court
court appeared
appearedon
onthe
thecertification
certification application
There are
discount the
the defendant's
defendant’s arguments
arguments on
to discount
on issues,
issues,where
wherethe
the defendant
defendanthad
hadnot
notyet
yet filed
filed aa
statementofofdefence.41
statement
defence.41
B.
What
What should
shouldthe
theDefence
Defence say?
say?
statement of defence
defence (like
the statement
statement of
the basic
basic rules
rules of
of
A statement
(like the
of claim)
claim) must
must follow the
pleading. There
There is
is no
no point
point filing
filinga astatement
statement of
ofdefence
defence ififititfails
failstotodisclose
disclosea areasonable
reasonable
pleading.
defence to the claims.
claims.
One of the purposes
of filing
filing aa statement
will be
One
purposes of
statement of defence
defence will
be to
to begin
begin laying
laying out
outthe
thecase
case
against certification.
certification. Defendant's
Defendant’scounsel
counselneeds
needs to give careful thought
thought both to the merits of the
the
defence per
per se
se and
and to
to those
those features
featuresof
of the
the defence
defencethat
thatcounsel
counselwill
will want to
defence
to argue
argue should defeat
defeat
the certification application.
Defence
counsel faced
faced with
with blanket
Defence counsel
blanket pleadings
pleadings where
where multiple
multiple defendants
defendants are
are lumped
lumped
together
as “the
"the Defendants”
Defendants" should
should consider
consider both
both making aa motion
together in an undifferentiated mass
mass as
strike, and
and fling
filingseparate
separatedefences
defences even
even where
where counsel
counsel isis representing
representing more
more than
than one
one
to strike,
defendant, or all of
of the
the defendants
defendants in the group.
group.
40
40
strongargument
argumentin
infavour
favour of
of filing
fling aastatement
AA strong
statement of
ofdefence
defence isis found
foundininScott
Scottv.v.TD
TDWaterhouse
Waterhouse Investor
Investor Services
Services
(Canada)
Inc.
(2000),
83
B.C.L.R.
(3d)
365
(S.C.),
paras.
38
and
following.
(Note
this
case,
which
decided that a
case,
(Canada)
(3d) 365 (S.C.), paras. 38 and following.
statementof
of defence
defenceshould
shouldbe
befiled
filedprior
prior to
to the
the certification
certifcation application,
statement
application, was
was overruled
overruled on that point
point in
in MacLean
MacLean v.
v.
Telus Corp.
Corp. 2005
2005 BCCA
BCCA 338.)
Telus
41
41
See Reid
Reidv.
v. Ford
Ford Motor Company,
See
Company, 2003 BCSC 1632
1632 (S.C.),
(S.C.), [2003]
[2003] B.C.J.
B.C.J. No.
No.2489
2489(para.
(para.52);
52);and
andAndersen
Andersen v.
v.
St.
Jude Medical
Medical Inc. (2003), 67 OR.
St. Jude
O.R.(3d)
(3d)136
136(S.C.J.)
(S.C.J.) (para.
(para. 60)
60) and
and ruling
ruling on
on costs
costs [2004]
[2004] O.J.
O.J. No.
No. 3102
3102 (S.C.J.),
(S.C.J.),
para. 10.
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Once aa decision has
has been
beenmade
madetotofile
file aa defence,
defence, counsel
counselshould
should look
look on it as aa important
tool, not
certification of
not only
onlyto
todefend
defend the
the case
case on the merits, but also to oppose
oppose certification
of the
the action
action as
as a
class proceeding.
Elaine J.
J. Adair
Adair
HOW TO BULLET-PROOF
BULLET-PROOFAND
AND ATTACK
ATTACK
CLASS ACTION PLEADINGS
T. 604.891.7783 / [email protected]
CWA46963.1
CWA46963.1
2008 Clark
Clark Wilson
Wilson LLP
LLP
© 2008
Adair, T.
Elaine J. Adair,
T. 604.891.7783
604.891.7783
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BC's Law Finn for Business
APPENDIX "A"
"A"
APPENDIX
Demand for
for Particulars
Particulars from
Demand
fromHoy
Hoy v.
v. Medtronic,
Medtronic, Inc.
Inc.
(see
(2002),
31
C.P.C.
(5th)
86
(B.C.S.C.))
(see (2002), 31 C.P.C. (5th)
are identified
identified by
The particulars that
that the
the defendants
defendants seek
seek are
by reference
reference to
to the
the common
common issues
issues
sub-issuesas
asset
setout
outininthe
theOrder
Orderofofthe
theHonourable
HonourableMadam
MadamJustice
JusticeKirkpatrick
Kirkpatrick pronounced
and sub-issues
September 27,
27, 2001.
2001. The defendants
seekparticulars
particulars of
of the
the allegations
allegations made
madeby
by the
theplaintiffs
plaintiffs
on September
defendants seek
issues as
asfollows:
follows:
or the class as to those issues
1.
With respect
to paragraph
paragraph66(a)
(a)(iii)
(iii) of the order,
asfollows:
follows: "(a)
1.
respect to
order, which reads
reads as
“(a) Was
Was the
the
lead insulation
prone to
to degeneration
and failure
failure due
lead
insulation unreasonably
unreasonably prone
degeneration and
due to … (iii)
(iii) negligent
processing of polyurethane during the manufacture of the Leads?"
Leads?”
As to each
model of
of the
the Leads,
Leads, please
pleaseprovide
provideparticulars
particulars of:
each model
of:
(a)
the way or ways
ways in
in which
whichthe
theprocessing
processing of
of the
the polyurethane
polyurethane during
during manufacture
manufacture
was negligent, including
should have
have met
met but
but failed
failed to
including each
each standard
standard that the defendants
defendants should
meet in manufacturing
and
each
respect
in
which
they
failed
to
meet
such
standard;
manufacturing and each respect in which they failed to meet such standard;
(b)
as to
to each
each such
such standard,
standard,when
when that
that standard
standard first
first became
as
became applicable;
2.
2.
(i) ensure
As to paragraph
(b) (i),
(i), which
which reads:
reads: “(b)
"(b) Did
fail to …
... (i)
paragraph 66(b)
Did the
the defendants
defendants fail
ensure that
the Leads were
were free
free of
of defects;”
defects;"
As to each
model of
of the
the Leads,
Leads, please
pleaseprovide
provideparticulars
particulars of:
each model
of:
(a)
each act
act or
or omission
omission that
that is alleged to amount
each
amount to an
an actionable
actionable failure
failure to
to ensure
ensure
that such model was free of
of defects;
defects;
(b)
each such defect;
(c)
when each such
such defect
defect is alleged to have occurred or been
been allowed
allowed to occur.
occur.
3.
3.
paragraph 66(b)
(ii) perform
perform
As to paragraph
(b)(ii),
(ii),which
whichreads:
reads:“(b)
"(b) Did
Did the
the defendants
defendantsfail
failtoto. ..... (ii)
sufficient pre-market
Leads;"
sufficient
pre-market tests
tests on the Leads;”
Please
provide particulars
particulars of:
Please provide
of:
(a)
each standard
standardof
of pre-market
pre-market testing
testing which applied to
each
to each
each model of
of the
the Leads;
Leads;
each act
act or
or omission
omission that
that is
is alleged
alleged to
to amount
amount to
to an
an actionable
actionable failure
failure to perform
(b)
each
proper and sufficient
sufficient pre-market
pre-markettesting
testingby
byreference
referencetotosuch
suchstandard
standard or
or standards;
standards; and
(c)
as to
to each
each such
such standard,
standard, when
when the
the standard
standard first
first began to apply.
apply.
as
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4.
4.
As to paragraph
(b)(iii),
(iii), which
which reads:
reads: "Did
fail to
to …(iii)
... (iii) design
paragraph 66(b)
“Did the
the defendants
defendants fail
design and
and
adequateto
toprotect
protect against
againstfailure
failure and
and degeneration
degenerationduring
during ordinary
ordinary
manufacture Leads that were adequate
use in
use
in employing P80A as
as insulation;”
insulation;"
Please
provide particulars
particulars of:
Please provide
of:
(a)
the characteristics of the use
or uses
usesalleged
allegedto
toamount
amountto
to “ordinary
"ordinary use";
use or
use”;
(b)
each
which P80A
P80A was
wasinadequate
inadequate to
to protect
protectagainst
against failure
failureand
and
each respect
respect in
in which
ordinary use;
degeneration during such ordinary
use;
each act
act or
or omission
omission of the
or contributed to any such
(c)
each
the defendants
defendants which caused
caused or
such
failure; and
each standard
standardapplicable
applicabletoto Lead
Lead design
design and
and manufacturer
that such
such act
act or
(d)
each
manufacturer that
omission breached; and
(e)
when each such standard
standard first
first became applicable.
applicable.
5.
As to paragraph
(b) (iv),
(iv), which reads:
reads: "Did
fail to …
... (iv) produce
5.
paragraph 66 (b)
“Did the
the defendants
defendants fail
produce a
product
capable
of
withstanding
the
stresses
of
ordinary
and
foreseeable
uses;"
product capable of withstanding the stresses ordinary and foreseeable uses;”
Please
provide particulars
particulars of:
Please provide
of:
the characteristics of the use
use or
or uses
useswhich
which are
are alleged
allegedto
to amount
amountto
to “ordinary
"ordinary and
(a)
uses" of the Leads; and
foreseeable uses”
each act
act or omission
(b)
each
omission of the
the defendants
defendants that is alleged
alleged to
to be
be such
such an
an actionable
actionable
failure.
(c)
each standard
standard of
of Lead
Lead production
production that such act or omission
each
omission breached;
breached; and
(d)
when each such standard
standard first
first became applicable.
applicable.
6.
6.
to paragraph
paragraph 66 (b)
which reads:
reads: "Did
“Didthe
thedefendants
defendants fail
failtoto … (v) employ
employ
As to
(b) (v), which
available design
design and
and manufacture
manufacturetechniques
techniquesthat
thatwould
wouldhave
havereduced
reducedthe
thelikelihood
likelihoodof
offailure
failure of
of
the Leads;”
Leads;"
Please
provide particulars
particulars of:
Please provide
of:
(a)
each such
such design
design technique
technique and
andwhen
when itit first became available; and
each
(b)
as to each such technique:
technique:
as
(i)
each failure,
failure, the
the likelihood
likelihood of which
each
which ititwould
wouldhave
have reduced;
reduced; and
(ii)
how itit would
likelihood of
failure.
wouldhave
have reduced
reduced the likelihood
ofeach
each such
such failure.
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BC's Law Finn for Business
7.
As to paragraph
(b) (vi),
(vi), which reads:
reads: "Did
fail to ...
(vi) ensure
7.
paragraph 66(b)
“Didthe
the defendants
defendants fail
…(vi)
ensure that
that the
Leads did not deviate in a material way from
specifications;"
from their
their design
design and
and release
release specifications;”
Pleaseprovide
provide particulars
particulars of:
Please
of:
(a)
each respect
respectin
in which
which each
each model
model of the Leads deviated
deviated from its:
each
its:
(i)
design specifications; and
(ii)
release
specifications; and
release specifications;
as to each
such deviation, each
and each
each omission
omission that caused
or contributed
(b)
as
each such
each act and
caused or
to such deviation.
deviation.
8.
As to paragraph
(b) (vii),
(vii), which reads:
reads: "Did
fail to …
... (vii) recall
8.
paragraph 66(b)
“Did the
the defendants
defendants fail
recallthe
the
Leads when
whenthey
theyknew
knewor
orought
oughttotohave
haveknown
knownofofthe
therisk
riskofofinjury
injury prior
prior to the
the implantation
implantation of
of
Leads
members;"
Leads into class members;”
Pleaseprovide
provide particulars
particulars of:
Please
of:
each risk
risk of
of injury (including
(a)
each
(including the
the nature
nature of the
the injury)
injury) of
ofwhich
whichthe
thedefendant
defendant had
had
knowledge, or
the
means
of
knowledge;
and
or the means of
as to
to each
each such
such risk,
risk, the
the time
time at
at which the
first had, or ought to have
(b)
as
the defendants
defendants first
have
such knowledge;
knowledge; and
had, such
source of
of information from
(c)
every source
from which
whichthe
thedefendants
defendants received,
received, or
or should
should have
have
received, such knowledge.
9.
As to paragraph
(b)(viii),
(viii), which reads:
fail to …
... (viii)
9.
paragraph 66(b)
reads: "Did
“Did the
the defendants
defendants fail
obtain all
all
(viii) obtain
required approvals;”
approvals;"
Please
each required approval
approval that
thatany
anydefendant
defendantfailed
failedtoto
Pleaseprovide
provide particulars
particulars of each
obtain.
10.
10.
paragraph 66 (b)
“Did the
the defendants
defendants fail
provide
As to paragraph
(b) (ix),
(ix), which
which reads:
reads: "Did
fail to
to …
... (ix) provide
(andits
its predecessors)
predecessors)and
andthe
the
U.S.
Food
and
Drug
Administration(“FDA”)
("FDA") with
with
Health Canada
Canada (and
U.S.
Food
and
Drug
Administration
Leads;"
all relevant information
informationregarding
regarding any
any risks
risks posed
posed by the Leads;”
Please provide
as to each
each of Health
Health Canada,
Canada, its
itspredecessors,
predecessors, and the
Please
provide particulars,
particulars, as
FDA, of:
(a)
each risk
risk as
as to
to which
which the
the defendants
defendantsfailed
failedto
to provide
provide relevant
relevant information;
information;
each
each item
item of information
(b)
each
information that
that ititisisalleged
allegedthat
thataa defendant
defendant should
should have provided
but failed to provide; and
2008 Clark
Clark Wilson
Wilson LLP
LLP
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Adair, T.
Elaine J. Adair,
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604.891.7783
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(c)
when each
such item
item of
of information
information ought
each such
ought to
tohave
have been
been provided.
provided.
11.
11.
to paragraph
paragraph 66 (b)
which reads:
reads: "Did
“Didthe
thedefendants
defendants fail
fail toto...… (x) provide
provide
As to
(b) (x), which
adequate
warnings
as
to
any
risk
of
the
Leads
to
physicians,
surgeons
and
all
other
intermediaries
adequate warnings as to any risk
surgeons and all
as well
well as class
class members
members of
of any
any potential risks or
with the use
Leads?"
as
or hazards
hazards associated
associated with
use of the Leads?”
Please
provide particulars
particulars of:
Please provide
of:
(a)
each
defendant should
should have
have provided
provided but
but failed
failed totoprovide,
provide,
each warning
warning that
that aa defendant
specifying:
specifying:
(i)
the nature of the warning
warning that
that should
should have
have been provided;
(ii)
when; and
(iii)
(iii)
to whom;
itit should
should have
have been given;
(b)
each failure
failure to
to adequately
adequatelyor
orsufficiently
sufficiently inform:
inform:
each
(i)
any doctor;
(ii)
any surgeon;
(iii)
(iii)
learned intermediary;
intermediary; or
any learned
(iv)
any class member;
with the use
use of
of such
such lead
lead (identifying
(identifying the
of potential
potential risks
risks or
or hazards
hazards associated
associated with
the person
person
or persons
persons whom
whom such
such Defendant
Defendant failed to
to inform)
inform)and,
and,asasto to
each
such
failure,
each
such
failure,
specifying:
specifying:
(v)
when such failure is
is alleged
alleged to
to have
have occurred; and
(vi)
the potential risk; or
(vii)
the potential
potential hazard
hazard (as
(as the
the case
case may be)
and identifying each
and
each item
item of
ofinformation
informationthat
thatalerted,
alerted,ororshould
shouldhave
havealerted,
alerted,any
any
Defendant that itit should
should warn
warnany
anysuch
such person.
person.
12.
As to paragraph
12.
paragraph 6 (c), which reads: "If
“Ifthe
thedefendants
defendantsbreached
breached the duty of
of care
care owed to
the plaintiffs, are
are the
the plaintiffs
plaintiffs entitled
entitled totoan
anaward
award ofofpunitive
punitivedamages
damages having
having regard
regard to the
the
nature of the
the established
established breaches?"
breaches?”
2008 Clark
Clark Wilson
Wilson LLP
LLP
© 2008
Adair, T.
Elaine J. Adair,
T. 604.891.7783
604.891.7783
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BC's Law Finn for Business
Please
provide particulars
particulars of any act of any defendant that alone or taken together
Please provide
with
with any
any other
otheract
actof
ofany
anydefendant
defendantisisalleged
alleged to
tohave
have been:
been:
(a)
harsh;
(b)
vindictive;
(c)
reprehensible;
(d)
malicious;
(e)
high
high handed;
handed;
(f)
arbitrary;
(g)
deserving of condemnation; or
(h)
deserving of punishment,
specify:
and, in respect of
of each
each such act, please specify:
(i)
when;
(j)
where; and
(k)
by whom
such act was committed.
13.
As to
13.
to paragraph
paragraph 5 (b), which
which reads:
reads: "Did
“Didthe
thedefendants
defendantsbreach
breach the
the standard
standard of
of care
care in
distributing the
if so,
begin?"
designing, manufacturing and distributing
the Leads,
Leads, and if
so, when did
did the
the breach begin?”
To the extent that
that the
the facts
facts alleged
alleged by the plaintifs
plaintiffsrelevant
relevanttotothis
thiscommon
commonissue
issue
expresslyidentified
identified in
in paragraph
paragraph 6 of the
the draft
draft order,
provide particulars
particulars of:
are not expressly
order, please
please provide
of:
each relevant
relevant standard
standardof
of care
care in
in respect
of design,
manufacture or
or distribution
(a)
each
respect of
design, manufacture
which
the
defendants
are
alleged
to
have
breached,
when
that
standard
became
which the defendants are
to have breached,
standard became applicable
and when, if at all,
all, ititceased
ceased to be applicable;
(b)
the way or
or ways,
ways, not
not previously
previously particularized
particularizedininresponse
response to
to requests
requests 1 through
12 above,
above, that
that aa defendant
defendant breached
breachedthe
therelevant
relevant standard
standardwith
with respect
respect to
to aa model
model of the
12
Leads; and
(c)
as to each such
such alleged breach, when
as
when the
the breach
breach began.
began.
2008 Clark
Clark Wilson
Wilson LLP
LLP
© 2008
Adair, T.
Elaine J. Adair,
T. 604.891.7783
604.891.7783
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BC's Law Finn for Busiess
APPENDIX
APPENDIX "B"
"B"- -LIST
LISTOF
OF CASES42
CASES42
*Abarquez v. Ontario
Ontario (2005),
745 (Ont.
(Ont. S.C.J.)
S.C.J.)
*Abarquez
(2005), 257
257 D.L.R.
D.L.R.(4th)
(4th) 745
*Air Canada
*Air
Canada v. WestJetAirlines
WestJet Airlines Ltd.
Ltd.(2004),
(2004),72
72 O.R.
O.R. (3d)
(3d) 669
669 (S.C.J.)
(S.C.J.)
*Andersen v. St.
St. Jude
JudeMedical
Medical Inc. (2003), 67 O.R. (3d)
*Andersen
(3d) 136
136 (S.C.J.)
(S.C.J.)
*Andersen v.
v. St.
St. Jude
JudeMedical
Medical Inc.
Inc. [2004] O.J. No. 3102 (S.C.J.) (ruling
(ruling on
*Andersen
on costs)
costs)
*Arabi v.
*Arabi
v. Toronto-Dominion
Toronto-DominionBank,
Bank, [2006]
[2006]O.J.
O.J. No.
No. 2072
2072 (S.C.J.)
(S.C.J.)
*Auger v. Berkshire Investment Group. Inc., [2001
O.J. No.
No. 379
379 (C.A.)
(C.A.)
*Auger
[2001]] O.J.
*Bisaillon
v. Concordia
Concordia University,
University,2006
2006 SCC
SCC 19
*Bisaillon v.
*Bodnar v. The Cash
Cash Store,
Store, 2005
2005BCSC
BCSC1904,
1904,aff’d
aff'd 2006
2006 BCCA
BCCA 260
*Bodnar
Boulanger v. Johnson &
& Johnson (2003), 64 O.R. (3d) 208 (S.C.J.
(S.C.J. Div.
Div. Ct.)
*Boulanger v. Johnson
Johnson &
& Johnson
JohnsonCorp.
Corp.[2003]
[2003] O.J.
O.J.No.
No.2218
2218(C.A.),
(C.A.), affirming
affirming in part [2002]
*Boulanger
[2002]
O.J. No. 1075, 14 C.C.L.T.
C.C.L.T. (3d)
233
(Ont.
S.C.J.)
(3d) 233 (Ont. S.C.J.)
Bruce v. Odham
Odham Press
PressLtd.,
Ltd.,[1936]
[1936] 11 K.B.
K.B. 697 (C.A.)
*Cadillac
Contractingand
andDevelopments
Developments Ltd.
Ltd. v.
v. Tanenbaum,
Tanenbaum, [1954] O.W.N.
O.W.N. 221
221
*Cadillac Contracting
v. Flexwatt
Flexwatt Corp.
Corp. (1997),
(1997), 44
44 B.C.L.R.
B.C.L.R. 343
343 (C.A.),
(C.A.), affirming
affirming (1996), 25 B.C.L.R. (3d)
Campbell v.
329 (S.C.)
*Caputo v. Imperial
Imperial Tobacco
*Caputo
Tobacco Ltd.
Ltd. (2004), 236 D.L.R.
D.L.R. (4th)
(4th)348
348 (Ont.
(Ont. S.C.J.);
S.C.J.); leave
leave to
discontinue granted [2006] O.J. No.
No. 537
537 (S.C.J.)
Bre-XMinerals
Carom v. Bre-X
MineralsLtd.
Ltd.(1998),
(1998), 20
20 C.P.C.
C.P.C. (4th) 163 (Ont. G.D.)
Bre-XMinerals
Carom v. Bre-X
MineralsLtd.
Ltd.(1998),
(1998),41
41O.R.
O.R. (3d)
(3d)780
780 (S.C.J.)
(S.C.J.)
*Carom v. Bre
XMinerals
*Carom
Bre-X
MineralsLtd.
Ltd.(1999),
(1999),44
44O.R.
O.R.(3d)
(3d)173
173(S.C.J.),
(S.C.J.),(1999),
(1999), 46
46 O.R.
O.R. (3d)
(3d) 315
315
(Div.Ct.), (2000),
(Div.Ct.),
(2000), 51
51 O.R. (3d) 236 (C.A.)
*Carriere v.
*Carriere
v. Bell
BellCanada,
Canada, [2006]
[2006]O.J.
O.J. No.
No. 2360
2360 (S.C.J.)
(S.C.J.)
*Cassano v.
v. Toronto-Dominion
Toronto-Dominion Bank
*Cassano
Bank (2005),
(2005), 9 C.P.C. (6th)
(6th) 291
291 (Ont.S.C.J.), [2005]
[2005] O.J.
O.J. No.
No.
appeal dismissed
dismissed [2006]
[2006] O.J. No. 2930
845; leave to appeal
"42Cases
mentioned in
in the
the 2005
2005 version
version of
of
Cases marked
marked with
with an
an **are
are mentioned
mentioned in
in the
the body
body of
of the
the paper.
paper. Other
Othercases
cases are mentioned
the paper.
2008 Clark Wilson LLP
© 2008
Adair, T.
Elaine J. Adair,
T. 604.891.7783
604.891.7783
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www.cwiIson.com
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BC's Law Finn for Busiess
Chadha v.
v. Bayer
Bayer Inc.
Inc. (2003),
(2003), 63
63O.R.
O.R.(3d)
(3d)22
22(C.A.),
(C.A.), affirming
affirming (2001), 54 O.R. (3d) 520 (Div.
(Div.
Chadha
Ct.)
Chopik v.
v. Mitubishi
Mtubishi Paper
Paper Mlls
MillsLtd.
Ltd.(2002),
(2002),2626C.P.C.
C.P.C.(5th)
(5th)104,
104,[2002]
[2002]O.J.
O.J.No.
No.2780
2780 (S.C.J.)
(S.C.J.)
*Cloud v. Canada (Attorney General) (2004), 247
247 D.L.R.
D.L.R. (4th) 667 (Ont. C.A.),
C.A.), reversing
*Cloud
reversing
O.R. (3d)
(3d) 492
492 (Div.
(Div. Ct.)
(2003), 65 O.R.
*Collette
CartierPartners
PartnersSecurities
Securities Inc.,
Inc., 2005
2005 BCSC
BCSC 1749
1749
*Collette v. Cartier
Collette v. Great Pacifc
PacificManagement
Management Co.
Co. [2003]
[2003]B.C.J.
B.C.J.No.
No.529
529(S.C.),
(S.C.),reversed
reversed (2004), 26
B.C.L.R. (4th) 252 (C.A.)
Consumers’
Association v. Coca-Cola Bottling
Bottling Company,
Company, 2005
2005 BCSC 1042
Consumers 'Association
*Cooper v. Hobart (2001), 206
206 D.L.R.
D.L.R. (4th) 193 (S.C.C.),
(S.C.C.), affirming
affirming (2000), 184 D.L.R. (4th)
*Cooper
287 (B.C.C.A.)
(B.C.C.A.) reversing
reversing (1999), 68 B.C.L.R.
B.C.L.R. (3d)
(3d) 274
274 (S.C.)
(S.C.) and
and 68 B.C.L.R. (3d)
(3d) 293
293 (S.C.)
*Cotton v. Wellsby
Wellsby (1991),
(1991), 59
59 B.C.L.R.
B.C.L.R. (2d) 366 (C.A.)
*Cotton
*Dahl v.
*Dahl
v. Royal
Royal Bank
Bank of Canada, 2006 BCCA 369
Davy v. Garrett
Garrett (1878),
(1878), 7 Ch. D. (473) C.A.
C.A.
*Dawson
*Dawson v. Rexcraft Storage
Storage and
and Warehouse
WarehouseInc.
Inc.(1998),
(1998),164
164D.L.R.
D.L.R. (4th)
(4th) 257
257 (Ont.C.A.)
(Ont.C.A.)
Direnfeld
Direnfeld v.
v. National
National Trust
Trust (2002),
(2002), 17
17 C.P.C. (5th) 102 (Ont. C.A.)
*DuMoulin v.
*DuMoulin
v. Ontario
Ontario(2005),
(2005),71
71O.R.
O.R. (3d)
(3d) 556
556 (S.C.J.)
(S.C.J.)
th
*DuMoulin v.
C.P.C. (6
(6t)
) 207
207
*DuMoulin
v. Ontario,
Ontario,[2005]
[2005]O.J.
O.J.No.
No.3961
3961 and
and [2006]
[2006] O.J.
O.J. No. 1233, 23 C.P.C.
(S.C.J.)
Edwards v. Law Society of Upper Canada (2001), 206
206 D.L.R.
D.L.R. (4th) 211 (S.C.C.)
*Egglestone v.
v. Barker,
Barker, [2003]
[2003] O.J.
*Egglestone
O.J. No.
No. 3137
3137 (S.C.J.)
(S.C.J.)
*Ernewein v. General Motors of Canada Ltd. (2005), 46 B.C.L.R.
*Ernewein
B.C.L.R. (4th)
(4th) 234 (C.A.)
*Fakhri v.
*Fakhri
v. Wild
WildOats
OatsMarkets
MarketsCanada,
Canada,Inc.
Inc.(2004),
(2004),41
41C.P.C.
C.P.C.(4th)
(4th) 369 (B.C.S.C.)
Fehringer
Fehringer v.
v. Sun
Sun Media Corp.
Corp. (2002),
(2002), 27
27 C.P.C.
C.P.C. (5th)
(5th) 155
155 (Ont.
(Ont. S.C.J.)
S.C.J.)
Fraser-Reid
Fraser-Reid v. Droumtsekas (1980), 103 D.L.R. (3d)
(3d) 385
385 (S.C.C.)
*Frey v.
2006 SKQB
SKQB 328
328 (ruling
(ruling on certification application);
*Frey
v. BCE Inc., [2006]
[2006] S.J.
S.J. No. 453, 2006
(ruling on
on motion
motionby
byBCE
BCEdefendants
defendants to
to dismiss
dismiss action);
action); 2006
2006 SKQB
SKQB 331
331
2006 SKQB 329 (ruling
(ruling on
(ruling
on motion
motionby
byRogers
Rogers Communications
Communications Inc.
Inc.and
and others
others to dismiss action)
2008 Clark
Clark Wilson
Wilson LLP
LLP
© 2008
Adair, T.
Elaine J. Adair,
T. 604.891.7783
604.891.7783
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BC's Law Finn for Business
Garland v.
Gas Co.,
Co., [2004]
[2004] 1 S.C.R. 629, 2004
2004 SCC
SCC 25,
25, (2004),
(2004), 237
237 D.L.R.
D.L.R. (4th)
Garland
v. Consumers Gas
385
*Gillespie
v. Gessert,
Gessert, 2006 CarswellAlta
429 (oral
(oralreasons)
reasons)
*Gillespie v.
CarswellAlta 429
*Gorecki v.
(Ont. C.A.)
*Gorecki
v. Canada
Canada (2006), 265 D.L.R.
D.L.R. (4th)
(4th) 206 (Ont.
*Grant v.
*Grant
v. Canada
Canada (Attorney-General)
(Attorney-General) (2005),
(2005), 258
258 D.L.R.
D.L.R.(4th)
(4th) 725
725 (Ont.
(Ont. S.C.J.)
S.C.J.)
*Harrington v.
*Harrington
v. Dow
Dow Corning
Corning Corp.
Corp. (2000),
(2000), 82 B.C.L.R. (3d) 1 (C.A.), affirming
affirming (1996),
(1996), 22
B.C.L.R.
B.C.L.R. (3d)
(3d) 97
97 (S.C.)
*Harrington v.
*Harrington
v. Dow
Dow Corning
Corning Corp.
Corp. (2002),
(2002), 33 B.C.L.R.
B.C.L.R. (4th)
(4th) 51
51 (S.C.)
(S.C.)
*Haskett v. Equifax Canada Inc. (2003), 63 O.R. (3d) 577 (C.A.)
*Haskett
*Hercules Managements
Ltd. v. Ernst &
& Young
*Hercules
Managements Ltd.
Young (1997),
(1997), 146
146 D.L.R.
D.L.R.(4th)
(4th) 577 (S.C.C.)
*Hickey-Button v. Loyalist
*Hickey-Button
Loyalist College
College ofApplied
of AppliedArts
Arts&&Technology
Technology(2003),
(2003),31
31C.P.C.
C.P.C.(5th)
(5th) 171
171
(Ont. S.C.J.);
S.C.J.); rev’d
rev'd [2006] O.J. No. 2393 (C.A.)
Hofman
Hoffmanv.v.Monsanto
MonsantoCanada
Canada Inc.,
Inc., 2005
2005 SKQB
SKQB225
225 (Q.B.),
(Q.B.),[2005]
[2005]S.J.
S.J.No.
No.304;
304;leave
leave to
to appeal
appeal
granted
2005
SKCA
105,
[2006]
5
W.W.R.
400
granted 2005 SKCA 105, [2006]
*Hollickv.v.Toronto
*Hollick
Toronto(City)
(City)(2001),
(2001),205
205 D.L.R.
D.L.R.(4th)
(4th) 19
19 (S.C.C.)
(S.C.C.)
*Homalco Indian
*Homalco
Indian Band
Band v. British
British Columbia
Columbia (1998),
(1998), 25
25 C.P.C.
C.P.C. (4th)
(4th) 107 (B.C.S.C.)
*Hoy v.
1343; aff’d
aff'd (2003) 14
*Hoy
v. Medtronic,
Medtronic, Inc.
Inc. (2002),
(2002), 94
94 B.C.L.R.
B.C.L.R. (3d)
(3d) 169,
169, 2001 B.C.S.C. 1343;
B.C.L.R.
2003 B.C.C.A.
B.C.C.A. 316
B.C.L.R. (4th)
(4th) 32, 2003
*Hoy v. Medtronic
*Hoy
Medtronic Inc.,
Inc., (2002),
(2002), 31
31 C.P.C.
C.P.C. (5th) 86 (B.C.S.C.)
SunbeamCorp.
Corp.(Canada)
(Canada)Limited
Limited (2001),
(2001), 11
11 B.L.R.
B.L.R. (3d) 236 (Ont. S.C.J.); varied
** Hughes v. Sunbeam
(2002), 61 O.R. (3d) 433
433 (C.A.)
(C.A.)
*Hunt v. Carey Can. Inc. (1990), 49 B.C.L.R.
B.C.L.R. (2d)
*Hunt
(2d) 273
273 (S.C.C.)
Imperial
Imperial Oil
OilLtd.
Ltd.v.v.Lubrizol
LubrizolCorp.
Corp.(1996),
(1996),67
67 C.P.R.
C.P.R. (3d) 1 (F.C.A.)
*Kimpton v. Canada (Attorney General) (2002), 9 B.C.L.R. (4th)
*Kimpton
(4th) 139
139 (S.C.)
*Klein
v. American
AmericanMedical
MedicalSystems,
Systems, [2005]
[2005] O.J.
O.J. No.
No.4910
4910 (S.C.J.);
(S.C.J.); leave
leave to
to appeal
appeal granted
*Klein v.
[2006] O.J. No.
No. 2188
2188 (S.C.J.)
*Knight v.
*Knight
v. Imperial
ImperialTobacco
Tobacco Canada
Canada Limited
Limited (2005),
(2005), 250
250 D.L.R.
D.L.R. (4th)
(4th) 347
347 (B.C.S.C.),
(B.C.S.C.), 2005
2005
BCSC 172, varied 2006 BCCA
BCCA 235
235
2008 Clark Wilson LLP
© 2008
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Elaine J. Adair,
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604.891.7783
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BC's Law Finn for Busiess
Knowles v. Roberts
Roberts (1888),
(1888), 38
38 Ch.
Ch. D.
D. 263
263 (C.A.)
(C.A.)
*Kranjcec v.
*Kranjcec
v. Ontario
Ontario (2004),
(2004), 69
69 O.R.
O.R. (3d)
(3d) 231
231 (S.C.J.)
(S.C.J.)
*Kripps v.
Ross&
& Co.
Co. (1992),
(1992), 69
69B.C.L.R.
B.C.L.R. (2d)
(2d) 62
62 (C.A.),
(C.A.), 94 D.L.R. (4th) 284
*Kripps
v. Touche Ross
(B.C.L.R)
Letang v. Cooper,
Cooper, [1965]
[1965] 1 Q.B. 232 (C.A.)
MacKinnon v.
v. National
National Money
Money Mart
MartCompany,
Company, 2004
2004 BCSC
BCSC 1532
MacKinnon
*MacKinnon v.
*MacKinnon
v. National
National Money
Money Mart
MartCompany
Company (2004),
(2004), 33
33 B.C.L.R.
B.C.L.R. (4th)
(4th) 21 (C.A.)
*MacKinnon
v. National
NationalMoney
Money Mart
MartCompany,
Company,2005
2005 BCSC
BCSC 271
271
*MacKinnon v.
*MacLean v. Telus Corp., 2005 BCCA 338
*MacLean
*MacLean v. Telus Corporation,
Corporation, 2006
[2006] B.C.J.
*MacLean
2006 BCSC 766, [2006]
B.C.J. No.
No. 1107
1107
*Macleod v. Viacom Entertainment
*Macleod
Entertainment Canada
Canada Inc.
Inc. (2003),
(2003), 28
28 C.P.C.
C.P.C. (5th)
(5th) 160
160 (Ont.
(Ont. S.C.J.)
S.C.J.)
*McCutcheon v. The Cash Store
Store Inc.
Inc. [2006]
[2006] O.J.
*McCutcheon
O.J. No.
No. 1860
1860 (S.C.J.)
Mondor
Mondor v.
v. Fisherman,
Fisherman, [2001]
[2001] O.J.
O.J. No.
No. 4620
4620 (S.C.J.),
(S.C.J.), (2001) 18 B.L.R.
B.L.R. (3d)
(3d) 260
260 (Ont.
(Ont. S.C.J.)
S.C.J.)
*Mouhteros v. DeVry
*Mouhteros
DeVry Canada
Canada Inc.
Inc.(1998),
(1998),22
22C.P.C.
C.P.C.(4th)
(4th) 198 (Ont.
(Ont. S.C.J.)
S.C.J.)
Moyes v. Fortune Financial
Financial Corp.
Corp.(2001),
(2001),13
13 C.P.C.
C.P.C. (5th)
(5th) 147
147 (Ont.
(Ont. S.C.J.)
S.C.J.)
Naken v. General Motors of Canada Ltd. (1983), 144 D.L.R. (3d)
(3d) 385
385 (S.C.C.)
*National
Trust Co. v. Furbacher, [1994]
[1994] O.J. No. 2385 (Gen.
*National Trust
(Gen. Div.
Div. Comm. List)
*Olsen v. Behr Process
Process Corporation
Corporation (2003), 17 B.C.L.R.
B.C.L.R. (4th)
*Olsen
(4th) 315
315 (S.C.),
(S.C.), 2003
2003 BCSC 1252
*Olsen v. Behr Process
Process Corporation,
Corporation, [2003]
*Olsen
[2003] B.C.J.
B.C.J. No.
No. 627
627 (S.C.),
(S.C.), 2003
2003 BCSC 429
*Ontario
New Home
Home Warranty
Warranty Program
Program v.
v. Chevron
Chevron Chemical
Chemical Co.
Co. (1999), 46 O.R. (3d) 130
*Ontario New
(S.C.J.)
Ontario
PublicServices
Services Employees
Employees Union
[2005] O.J.
O.J. No.
No. 1841
1841 (S.C.J.)
(S.C.J.)
Ontario Public
Union v. Ontario, [2005]
Hidson v.
v. Livingstone and others, [1931] 1 D.L.R.
D.L.R. 386
386 (S.C.C.)
Patterson &
& Hidson
*Pauli v.
ABQB 715
*Pauli
v. ACE INA
INA Insurance,
Insurance, 2002 ABQB
715
*Pearson v.
v. Inco
Inco Limited (2006), 78 O.R. (3d) 641 (C.A.)
*Pearson
2008 Clark
Clark Wilson
Wilson LLP
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BC's U. Finn for Busiess
Price v.
v. Panasonic
Panasonic Canada Inc., [2000]
[2000] O.J.
O.J. No.
No. 3123
3123 (S.C.J.)
(S.C.J.)
Price
*Pro-Sys
Corporation,2006
2006 BCSC
BCSC 1047
1047
*Pro-Sys Consultants
ConsultantsLtd.
Ltd.v.v.Microsoft
Microsof Corporation,
*Queen v. Cognos
Cognos Inc.
Inc. (1993), 99 D.L.R.
*Queen
D.L.R. (4th)
(4th) 626 (S.C.C.)
*Ragoonanan Estate
Estate v.
v. Imperial
Imperial Tobacco Canada Ltd. (2000), 51 O.R. (3d)
*Ragoonanan
(3d) 603
603 (S.C.J.)
(S.C.J.)
*Ragoonanan
(2006), 78
78 O.R. (3d)
(3d) 98
98 (S.C.J.)
(S.C.J.)
*Ragoonanan v.
v. Imperial
Imperial Tobacco Canada Limited (2006),
*Reid v. Ford Motor
[2003] B.C.J.
*Reid
Motor Company,
Company, 2003 BCSC 1632 (S.C.), [2003]
B.C.J. No.
No. 2489
2489
*Reid v. Ford Motor
*Reid
Motor Company,
Company, 2006
2006 BCSC 712
*Rumley v.
v. British
British Columbia (1998)
(1998) 65
65 B.C.L.R.
B.C.L.R. (3d)
(3d) 382
382 (dismissing
(dismissingcertification),
certification), rev’d
rev'd
*Rumley
(C.A.), aff'd
(1999), 72 B.C.L.R. (3d) 1 (C.A.),
aff’d(2001),
(2001),205
205D.L.R.
D.L.R.(4th)
(4th) 39
39 (S.C.C.)
Rumley v.
v. British
British Columbia
Columbia (2003), 12 B.C.L.R.
B.C.L.R. (4th)
(4th) 121
121 (S.C.),
(S.C.), 2003
2003 BCSC 234
th
*Sauer v. Canada (2005), 19 C.P.C. (6
(6th)
298, [2005]
[2005] O.J. No. 4237 (Master) and (2006), 79
*Sauer
) 298,
O.R. (3d) 19 (S.C.J.)
*Scott
*Scott v. TD Waterhouse
Waterhouse Investor
Investor Services
Services(Canada)
(Canada)Inc.
Inc. (2000),
(2000), 83
83 B.C.L.R.
B.C.L.R. (3d) 365 (S.C.)
*Scott
*Scott v. TD Waterhouse
Waterhouse Investor
Investor Services
Services(Canada)
(Canada) (2001),
(2001), 94
94 B.C.L.R.
B.C.L.R. (3d) 320 (S.C.)
Johnson &
& Johnson (2004), 72 O.R. (3d)
Serhan v. Johnson
(3d) 296
296 (S.C.J.),
(S.C.J.), leave to appeal granted [2004]
O.J. No. 4580 (S.C.J.)
*Serhan v.
v. Johnson
Johnson&
& Johnson,
Johnson,[2006]
[2006] O.J.
O.J. No.
No. 2421
2421 (Div.
(Div. Ct.)
*Serhan
Shaw v.
v. BCE
BCE Inc.
Inc. (2003),
(2003), 42
42 B.L.R.
B.L.R. (3d) 107 (Ont. S.C.J.),
S.C.J.), aff’d
aff'd (2004), 49 B.L.R. (3d)
Shaw
(3d) 11 (Ont.
(Ont.
C.A.)
*Shaw v. BCE Inc. [2003]
[2003] O.J.
*Shaw
O.J. No.
No. 2695
2695 (S.C.J.)
(S.C.J.)
*Soulos v.
v. Korkontzilos
Korkontzilos (1997), 146 D.L.R.
*Soulos
D.L.R.(4th)
(4th) 214 (S.C.C.)
Stone
v. Wellington
Wellington (County)
(County) Board of Education (1999), 29 C.P.C.
C.P.C. (4th)
(4th) 320
320 (Ont.
(Ont. C.A.)
Stone v.
*Tracy
FinancialSolutions
Solutions Centres
Centres (B.C.)
(B.C.) Ltd.
Ltd. 2006
2006 BCSC
BCSC 1018
1018
*Tracy v. Instaloans Financial
*Vezina v. Loblaw Companies Ltd., [2005]
*Vezina
[2005] O.J.
O.J. No.
No. 1974
1974 (S.C.J.)
(S.C.J.)
W. W v.
v. Canada
Canada(Attorney
(Attorney General)
General) (2004),
(2004), 24
24 B.C.L.R.
B.C.L.R. (4th) 347 (S.C.)
W.W.
Western Canadian
Canadian Shopping
ShoppingCentres
CentresInc.
Inc.v.v.Dutton
Dutton (2001),
(2001), 201
201 D.L.R.
D.L.R. (4th) 385 (S.C.C.)
Western
2008 Clark
Clark Wilson
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LLP
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BC's Law Finnn for Business
*Whiten v. Pilot
Pilot Insurance
*Whiten
Insurance Co.
Co. (2002),
(2002), 209
209 D.L.R.
D.L.R.(4th)
(4th) 257 (S.C.C.)
*Williams v.
704 (Ont.
(Ont. S.C.J.)
S.C.J.)
*Williams
v. Canada
Canada (2005),
(2005), 257
257 D.L.R.
D.L.R.(4th)
(4th) 704
*Wilson v. Re/Max Metro-City
Metro-City Realty
*Wilson
Realty Ltd.
Ltd. (2003),
(2003), 63
63 O.R.
O.R. (3d)
(3d) 131
131 (S.C.J.)
(S.C.J.)
*Wilsonv.v.Servier
ServierCanada
Canada
(2000),
50 O.R.
219 (S.C.J.)
and (2005),
252 (4th)
*Wilson
Inc.Inc.
(2000),
50 O.R.
(3d) (3d)
219 (S.C.J.)
and (2005),
252 D.L.R.
D.L.R.
(4th)
742 (S.C.J.)
*Winnipeg
Construction Co.
Co. (1993),
(1993), 101
101 D.L.R.
D.L.R.(4th)
(4th) 699
*Winnipeg Condominium Corp. No. 36 v. Bird
Bird Construction
(S.C.C.)
Wong v.
v. Sony
Sonyof
of Canada
Canada Ltd.
Ltd. (2001),
(2001), 9 C.P.C. (5th) 122 (Ont.
Wong
(Ont. S.C.J.)
S.C.J.)
Wyman v.
v. Vancouver
VancouverReal
RealEstate
EstateBoard
Board(1957),
(1957),88D.L.R.
D.L.R. (2d)
(2d) 724
724 (B.C.C.A.)
(B.C.C.A.)
Wyman
*Yordanes v. Bank of Nova Scotia (2006), 78 O.R. (3d)
*Yordanes
(3d) 590
590 (S.C.J.)
2008 Clark
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