LEXPERT MAGAZINE
|
SEPTEMBER 2016 37
| CLASS ACTIONS |
tion" defence at trial.
What's compelling is that
Justice Belobaba went into the
evidence presented on the leave
motion at considerable length.
"When the leave test was
combined with the require-
ments of the reasonable investigation de-
fence, the court was required to consider
the 'compelling and voluminous evidence
of the defendants' under a high-powered
microscope," says John Campion of Fasken
Martineau DuMoulin LLP in Toronto,
who represented SouthGobi and five of the
six individual defendants.
More recently, defendants have been
further heartened by the decision of Justice
Helen Rady in Bradley v. Eastern Platinum
Ltd., released aer the SCC's ruling in
Green. Brian Bradley, the proposed repre-
sentative plaintiff, alleged that Eastern had
failed to disclose a complete or partial shut-
down of its platinum mine in South Africa
in 2011. e claim was then amended to
allege that the introduction of certain sup-
port technologies at the mine had caused
the decreased production.
Eastern responded with uncontradicted
affidavit, documentary and transcript evi-
dence from employees showing that there
had been no mine shutdown or introduc-
tion of new technology at the relevant time.
Instead, the evidence revealed that the de-
creased production had been caused by un-
foreseen rock falls.
Justice Rady concluded that the plain-
tiff 's interpretation of events was "simply
not supported by the overwhelming weight
of the evidence that points to the opposite
conclusion." She was not prepared to "dis-
regard what I view to be very compelling
and persuasive evidence" that could be un-
dermined only by the unproven conclusion
that Eastern's witnesses gave or fabricated
false evidence.
Justice Rady ruled that Green required
courts to undertake "a robust, meaningful
examination and critical evaluation of the
evidence (or absence of evidence)" in order
to determine whether the action had some
merit. As Justice Rady saw it, the test for
leave was more akin to a motion for sum-
mary judgment, which required judges to
weigh the evidence, than a motion to strike,
which had to be decided on the pleadings.
"Eastern Platinum makes it clear that the
leave threshold is going to be a meaningful
merits test, which is what the leave test was
always intended to be," says Alan D'Silva of
Stikeman Elliott LLP in Toronto, who rep-
resented the defendant company.
"e upshot is that motions for leave will
result in a comprehensive analysis on the
merits, forcing parties to lead with their
best foot," says Kevin O'Brien in the To-
ronto office of Osler, Hoskin & Harcourt
LLP. "at's not to say that the plaintiffs
will have to prove their case, but they will
have to show a realistic possibility that they
will ultimately be successful."
Siskinds' Bach, who represented Bradley,
acknowledged his client's disappointment
in the result. "It's a case where the court de-
cided to prefer one side's evidence over that
of the other," he says. "We believe, however,
that it will be some time before the courts
"When courts were treating leave
applications like rubber stamps, there
was always discussion as to whether
defence should consent to leave
instead of having clients cross-examined.
But now that the test has teeth, there's
more upside to fighting leave vigorously."
ANDREA LAING
>
BLAKE, CASSELS & GRAYDON LLP
THE MASS TORT ALTERNATIVE
Where class actions aren't viable, plaintiffs' counsel and trial lawyers'
organizations are coordinating large numbers of individual suits
PLAINTIFFS' COUNSEL in product-liability class actions are responding to legal uncertainty
by investigating opportunities around mass torts.
These lawsuits cover a much broader range of claim types than class actions, and are particularly
useful when defective products injure a large number of consumers. Because defects can cause
a wide range of problems for claimants, these cases may be difficult to group into a single class.
"For example, it's almost impossible to get drug or medical-device cases certified in the US,
but that hasn't meant that there's no access to justice," says Michael Eizenga of Bennett Jones LLP
in Toronto. "While these cases may not normally be viable as one-offs for law firms, they become
so when plaintiff's counsel and even trial lawyers' organizations coordinate their actions
and assemble large numbers of cases."
Paul Miller and his Ontario firm, Will Davidson LLP, have spearheaded the mass tort movement
in Canada. Encouraged by the results of the Vioxx litigation in the US, they decided to forgo a class
action in favour of a mass tort approach for their more than 200 clients with claims arising from
allegedly defective pelvic mesh devices — despite the fact that Siskinds and McKenzie Lake Lawyers
in London, Ont., had instituted class actions.
It's an approach that's finding increasing favour with plaintiffs and defendants. "Courts are
encouraging it, and both sides of the class-action Bar are responding and getting good results,"
says Cheryl Woodin of Borden Ladner Gervais LLP in Toronto.
