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Big Suits | 37 commenced a campaign to encourage other franchisees to opt out of the class action. The campaign involved telephone calls to all franchisees and the launch of a website that, among other things, kept a tally of all class members who had indicated an intention to opt out. The CPVF's central message was that class members should give Pet Valu's new management team a chance to address the dispute and that the class action would harm Pet Valu's business. A number of class members opted out after the campaign started. In February 2012, the representative plaintiff delivered their motion record for an order setting aside all of the opt-out forms. The motion was heard in July 2012. The motion judge held that the CPVF's actions had impaired the opt-out process to an extent requiring judicial intervention. He granted an order setting aside all of the opt-outs received on or after the start of the CPFV's campaign and directed that a new opt-out period be held following a determination of the class action on its merits. Notably, the motion judge found that Pet Valu was not involved in the CPVF's campaign. Pet Valu and the individual members of the CPVF appealed. On May 3, 2013, the Court of Appeal overturned the motion judge's order and upheld the validity of the opt-outs, stating there was "no evidence to support a finding that the opt-outs by individual class members were not voluntary or fully informed." For example, there was no direct evidence to establish that a class member had been misled or intimidated. Conversely, class members who had opted out provided evidence confirming they had done so voluntarily. Further, as Pet Valu was not implicated in the CPVF's conduct and had not exerted pressure on the franchisees, there was no basis for the motion judge to have considered the vulnerability inherent in the franchisor/ franchisee relationship. The Court also found that the motion judge erred by holding the CPVF's communications to a standard of objectivity. It stated that the CPVF had merely voiced its opinion on the undesirability of the class action from a business perspective. The class members were able to consider these opinions in the context of the objective information provided in the notice of certification and on class counsel's website. On that basis, the Court described the CPVF's communications as the "type of intra-class debate that is acceptable during the opt-out period." In addition, the decision provides guidance for parties to a class action who learn that class members may be engaging in questionable conduct during the opt-out period. It states that the representative plaintiff should promptly notify the supervising judge, and that the defendant should take proactive steps to reduce the risk that any opt-outs will be set aside. Geoffrey Shaw, Derek Ronde, Eric Mayzel and Rob Kligman of Cassels Brock and Blackwell LLP represented Pet Valu. The representative plaintiff was represented by Sotos LLP with a team of David Sterns and Jean-Marc Leclerc. Lawrence Theall, James Norton and Bevan Brooksbank of Theall Group LLP represented the members of the CPVF. Silver v. IMAX Decision date: March 19, 2013 The Ontario Court defined the test for enforcement of a US class action settlement order in a parallel Canadian class action, giving defendants the opportunity to settle each case independently, rather than being obliged to settle both, or neither. In 2009 in IMAX, Madame Justice Katherine van Rensburg of the Ontario Superior Court granted leave to investors to proceed for the first time in Canada with a statutory secondary market misrepresentation claim and then certified the case as a class action on behalf of a global class of shareholders (who had purchased securities on both the TSX and the NASDAQ). That decision was made even though certain IMAX LEXPERT®Ranked Lawyers Wakil, Omar K. Wardle, Peter C. Wilcox, Peter R. Torys LLP Wardle Daley Bernstein Bieber LLP Belmore Neidrauer LLP (416) 863-3363 (416) 351-2771 pwardle@wdbblaw.ca Mr. Wardle has a hardwon reputation for successfully resolving complex and important cases affecting his clients' businesses, careers and reputations. He is acclaimed for his work in securities litigation, D&O liability and professional negligence. (416) 865-0040 owakil@torys.com Partner in Torys' Competition and Antitrust Group and chair of the firm's Foreign Investment Review Group. Advises domestic/international clients on all aspects of competition law and on foreign investment reviews under the Investment Canada Act. Woods, AdE, James A. Yorke-Slader, QC, Blair C. Woods LLP Bennett Jones LLP peter.wilcox@ belmorelaw.com (514) 982-4503 jwoods@woods.qc.ca Mr. Wilcox practises intellectual property litigation, with a particular emphasis on pharmaceutical and biotech patent trials and applications. Mr. Woods's domestic and international litigation and arbitration practice includes appearances in Québec, Ontario and Federal courts, and the SCC. He is also qualified in England, Wales, and BC. His mandates include the BCE and ABCP cases. (403) 298-3291 yorkesladerb@ bennettjones.com Mr. Yorke-Slader is a leading practitioner in high-stakes corporate and commercial litigation with an active trial and appellate business and energy litigation practice. He is the only Alberta Fellow of the IATL. Zakaib, Glenn M. Cassels Brock & Blackwell LLP (416) 869-5711 gzakaib@casselsbrock.com Mr. Zakaib's practice focuses on product liability (drug & medical devices, automotive & aviation products, electrical equipment & home appliances), and class proceedings (product liability, life insurance and Competition Act claims).

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