40 LEXPERT MAGAZINE
|
SEPTEMBER 2016
e entire class-action Bar is hopeful
that the SCC will provide guidance on
steps that could further facilitate dealing
with such cases. "e uncertain situation
in Canada is ridiculous in this world of
multijurisdictional litigation," says Soko-
lov. "It doesn't serve anyone, including the
courts and especially the class members."
Compounding the problem are carriage
issues, which have become more heated
than ever. "ere is definitely a rise in car-
riage fights," Berman says. "e problem
is that counsel appear to be moving away
from their prior approach of working out
carriage disputes [amongst themselves] to
letting the courts sort them out."
As Baert sees it, the courts aren't doing
enough to sort out the mess. Despite the
fact that his firm was part of the consor-
tium appointed as class counsel, he cites
the most recent decision on carriage, Kow-
alyshyn v. Valeant Pharmaceuticals Inter-
national as indicative of the problematic
nature of the issue. "Carriage motions con-
tinue to be expensive, complex and hard
fought, as evidenced by the fact that the
Kowalyshyn ruling is 250 paragraphs long,"
he says. "We need a better, more objective
system to determine carriage."
GLIMPSES
OF CLARITY
Not every procedural issue around class
actions is fraught with uncertainty. Judges,
for instance, are scrutinizing settlements
more closely and settlement administra-
tion is sorting itself out. "In Ontario,
courts have been giving settlements a lot
of healthy scrutiny," Sokolov says. "ey're
taking their role as guardians of the class
very, very seriously."
So much so that the Ontario Divisional
Court recently appointed Eizenga as am-
icus curiae in Waldman v. omson Reuters
Canada (publisher of Lexpert), a case in
which the court ultimately overturned Jus-
tice Paul Perell's refusal to approve a settle-
ment in a copyright-infringement case.
"ere is some suggestion that an amicus
should be appointed in all cases, and we
Julius Melnitzer is a freelance legal-affairs
writer in Toronto.
may see more of that," Sokolov says.
e effort by plaintiffs' counsel to in-
crease class participation rates puts even
more emphasis on settlement approval. In
the litigation relating to the DRAM mem-
ory chips, J.J. Camp and his team at Camp
Fiorante Matthews Mogerman LLP in
Vancouver used radio, TV and social me-
dia advertising to publicize an $80-million
settlement. "To my knowledge, 17,000 was
the largest number of consumers who par-
ticipated in a price-fixing class action be-
fore this particular settlement," Camp says.
"We mailed out some 880,000 cheques to
Canadian households."
at kind of uptick — driven by the
power of social media to connect millions
of plaintiffs — is one that's likely to send
a chill down the spine of defendant cor-
porations and their counsel. So, when it
comes to class actions, the West may not be
as wild as it once was — but neither has it
been won outright.
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