Lexpert US Guides

14 | LEXPERT • December 2014 | www.lexpert.ca CLASS ACTIONS Forbes also predicts that de-certifi cation motions will gain popularity. "As more and more cases get closer to trial, it will become apparent that some of them are just not manageable as class actions," she says. "I expect we're going to see some decertifi ca- tions, primarily on the basis of complexity, in some of the more complicated proceedings." Still, similarities aside, there are many other examples of the gaps that have arisen or may arise between US and Canadian class-action practice. For example, Canadian plaintiff s so far have not had to deal with a US-style doctrine of "pre-emption," which prohibits consumers in product liability cases from pursuing allegations that are within the realm of a regulator. While Canadian courts have recently taken a closer look at the feasibility of class actions for claims that might otherwise fall under the aegis of consumer protection legis- lation (the Whirlpool case in Ontario, Wakelam v. Wyeth in BC), they have not gone nearly as far as American courts. "To some degree, we have moved into an examination of pre-emption," Martin says. "But there's still plenty of room for class actions in the product liability area." Perhaps the greatest opportunity for expansion of the Canadian class-action docket, however, is in the area of anti- trust claims. In a landmark trilogy in 2013, the Supreme Court of Canada (SCC) declared open season for direct and indirect purchasers who wish to use class actions to recover overpay- ments for products or services that have been the subject of price-fi xing conspiracies. "Price-fi xing class actions are open for business in Canada," says J. J. Camp of Vancouver's Camp Fiorante Matthews Mogerman, who represented the class in Pro-Sys Consultants Ltd. v. Microso! Corporation, one of the three cases decided by the Supreme Court of Canada. "If the court had excluded consumers, dozens of these types of cases would have been shut down, unjustly precluding consumers from recovering their losses against the wrongdoers and requiring them to disgorge their ill-gotten gains." More particularly, the court ruled that plaintiff s' lawyers can lump direct and indirect purchasers into the same class action. " ese decisions are, without a doubt, a big win for plaintiff s," says Michael Osborne, a class-action defense lawyer at Toronto's Affl eck Greene McMurtry LLP. " e entire structure of compe- tition class actions in Canada has tended to be based on the one big happy family approach where direct and indirect purchas- ers sue in the same proceedings — and the court has basically validated that approach." Of the three cases that made up the trilogy, Microso! was a BC case involving operating systems. e second case, Sun-Rype Products Ltd. v. ADM, was also a BC case but involved high- fructose corn syrup. e third, Infi neon Technologies v. Option Consommateurs, originated in Québec and dealt with DR AM e low certifi cation standards are also changing the dynamics of class-action practice. Somewhat counter-intuitively, they may prove instrumental in weeding out some of the ineffi ciencies and delays that have plagued the system so far. "Because the Supreme Court of Canada has confi rmed that the bar for certifi cation is so low, you're going to see that defense lawyers take much more creatively focused and narrow defenses to certifi cation, seeking out only the truly legitimate arguments instead of all the viable ones," says Sandra Forbes in Davies Ward Phillips & Vineberg LLP's Toronto offi ce. "Counsel are really going to have to focus." Mark Veneziano of Toronto's Lenczner Slaght Royce Smith Griffi n LLP agrees. "Both sides spend too much money on certi- fi cation," he says. "Certifi cation is not the same as a trial, so you have to do it sensibly without blowing your brains out." Put another way, defense lawyers and their clients are discover- ing that settlement is not necessarily the inevitable consequence of certifi cation. " e premium for certifi cation isn't what it used to be," says Michael Eizenga in Bennett Jones LLP's Toronto offi ce. "In many cases, defendants are assuming that certifi cation of some sort of class will happen, and that impacts on the way we practice, for example, by focusing on negotiations aimed at narrowing the class as much as possible." In some ways, however, the Canadian system is emulating its American cousin. Jill Yates in McCarthy Tétrault LLP's Vancouver offi ce predicts that the Supreme Court of Canada's early 2014 decision in Hryniak (which was not a class-action proceeding), will encourage summary judgment motions at the certifi cation stage and also before trial. Hryniak considerably broadened the param- eters for granting summary judgment by allowing judges to determine whether summary disposition was a more proportion- ate way than a trial to achieve a just result in light of the evidence that was available. "Summary judgment motions are now a much more viable alternative in class actions, one that judges have certainly shown they are willing to use in a wide range of cases since Hryniak," she says. "It's a process that's a lot more appetizing than the cost and time associated with a full trial, and from defendants' perspec- tive, a lot more appetizing than settling." Paul Martin > Fasken Martineau DuMoulin LLP "WE HAVE A very unique system here, in which plaintiffs don't necessarily face the same hurdles that they face in the US. American counsel are starting to understand these differences and ponder the opportunities."

• Cover