Class Actions
|
15
Du Pont, AdE, Guy
Davies Ward Phillips
& Vineberg LLP
(514) 841-6406
gdupont@dwpv.com
Mr. Du Pont focuses on
tax, corporate, white
collar, class actions,
constitutional and
administrative matters
at all Canadian court
levels with a special
expertise in appellate
matters. Fellow ACTL.
Member, ALI. Ad.E;
TCC Medal.
Dunphy, QC,
Michael E.
Cox & Palmer
(902) 491-4205
mdunphy@coxandpalmer.
com
Mr. Dunphy practises
insurance, commercial
and construction litiga-
tion, including profes-
sional and product
liability, personal injury
and property. He is a
Fellow of the American
College of Trial Lawyers
& of the International
Society of Barristers.
Eizenga, Michael A.
Bennett Jones LLP
(416) 777-4879
eizengam@bennettjones.com
Mr. Eizenga is Chair
of Bennett Jones's
Class Action Practice.
He teaches class ac-
tions at the University
of Toronto and is co-
author of Class Actions
Law and Practice. Mr.
Eizenga is a Fellow of
the American College
of Trial Lawyers.
Duchesne, Marc
Borden Ladner
Gervais LLP
(514) 954-3102
mduchesne@blg.com
Mr. Duchesne acts
as lead counsel on
corporate commercial
litigation cases relating
to insolvency, restruc-
turing, cross-border
and foreign matters,
banking, contracts,
insurance and complex
liquidations.
Earnshaw, Ross F.
Gowling Lafleur
Henderson LLP
(519) 575-7525
ross.earnshaw@gowlings.com
Mr. Earnshaw brings
his extensive litigation
expertise to a range of
areas, including real
estate, construction,
insurance, employ-
ment, banking, estates,
mortgage enforcement,
priorities, collections
and legal malpractice
defence.
Emblem, Robert D.G.
Clyde & Co Canada LLP
(514) 764-3650
robert.emblem@clydeco.ca
Mr. Emblem has exten-
sive experience in advo-
cacy and dispute resolu-
tion throughout North
America, particularly
in construction claims.
He regularly represents
owners, developers,
contractors, construc-
tion professionals and
their insurers.
leave requirement as an especially important tool.
"e standard says you have to have a reasonable chance
of success at trial and also that you have to take on the suit
in good faith — not just to be a nuisance or to get the
legal fees."
But Kirk Baert, who heads the class action group at Koskie
Minsky LLP in Toronto, which typically acts for sharehold-
ers, believes the provinces have made it too difficult to bring
such suits. He says the requirements block not only strike
suits, but legitimate claims as well.
PLAINTIFFS' FIRMS LIKE Baert's have to arrange
financing or lay out their own money to try for leave and
certification without knowing whether their case will even
make it into the real starting blocks.
"e motions tend to be three, five, seven days long, with
volumes of evidence, just enormously expensive. I think the
reason you're only seeing three or four firms really do much
of this work is other firms considering it say the capped dam-
ages aren't big enough for them to bring them."
e damage caps make it completely uneconomic to bring
class actions where they may be needed most, he says: against
small-cap and mid-size companies that spend less on compli-
ance and are more likely to try to bend the law.
"No one's going to bring a $12-million securities case, it's
got to be at least $500 million. And not every securities law
problem is a $500-million problem. So the way the [securi-
ties] Act is written has the effect of making cases against only
the biggest companies the most viable — and the biggest
companies don't tend to be the ones that pull the shenani-
gans as oen.
"You haven't created much of an incentive to go aer the
real bad guys. No one's going to go aer a company with
a $200-million market cap because damages are limited to
$10 million."
In a $10-million settlement or award, the lawyers would
typically get 20–30 per cent, or $2–$3 million, very close to
what they would spend to mount that case.
If the provinces wanted to make sure US-style strike suits
didn't take root in Canada, he says, all they had to do was in-
troduce a strict loser-pays cost system — something the US
does not have.
"If they'd done that we never would have had the strike
suit problem. Instead, what we did is we massively over-re-
acted and put five things in that are different from the US in-
stead of one. As a result, what you see are fewer than a dozen
of these cases being commenced a year under this law, and
only half are getting leave, and everything is appealed — so
it's a five-year process to get leave.
"To have a case take five years to decide whether some-
body made a misrepresentation – just to get you to the start-
ing process – is not a deterrent."
DAVID BYERS, co-chair of the litigation group at
Stikeman Elliott LLP, says they are a deterrent. He says the
number of cases filed over the past 10 years may be relatively
modest but they "have occupied a lot of time and effort …
even though it hasn't resulted in many payouts that have ben-
efited shareholders."
at lack of success on the plaintiff side does not mean
such suits aren't having any impact. To the contrary, he says,
corporate clients are very aware of them.
"Corporations recognize the potential. Just the fact
they're there and available to shareholders has had the ef-
