The Lawyers Weekly - September 3, 2010

Waiver of tort proceeds as
common issue in class action

LUIS MILLAN

A lawsuit against Bell Mobility Inc., which claims that the national cellular carrier charges fees for non-existent 911 service, was recently certified as a class action lawsuit within the Northwest Territories (N.W.T.), even though the federal territory does not have a class action statute.

In a ruling hailed by Toronto
lawyers Keith Landy and Samuel
Marr as a “victory for residents of
the North,” Justice Ronald Veale
of the Supreme Court of the
Northwest Territories held that
failing to certify the lawsuit as a
class action “would result in pre-
venting access to justice,” adding
that a “determination of the com-
mon issues will provide judicial
economy and fairness.”
Justice Veale, while noting that
the N.W.T. does not have a class
action statute, held that the
Supreme Court of Canada ruling
in Western Canadian Shopping
Centres Inc. v. Dutton, [2000]
S.C. J. No. 63, provides the proced-
ure and conditions for an action to
be certified as a class pursuant to
Rule 62 of the Rules of the Supreme
Court of the Northwest Territories.

“The ruling makes clear that even in the N.W. T., where there is no class proceedings regime, there is still the possibility for a viable class action, providing access to justice, the same as we have in jurisdictions where there are class proceedings,” remarked Marr of Landy Marr Kats LLP, a well-known Toronto firm that specializes in class-action suits.

In 2007, Yellowknife residents James Anderson and his son Samuel filed a lawsuit against Bell Mobility for charging 75 cents a month in 911 emergency access fees, even though there is no 911 live operator emergency service. In Yellowknife, when 911 is called, a recording prompts the caller to hang up and dial the local emergency number or dial zero to reach an operator.

Last April, the Andersons argued that the lawsuit should be certified as a national class action whose members should include all Bell Mobility customers living in remote communities without access to a 911 emergency operator such as in Nunavut, most of Yukon and five other provinces.

“We are seeking a national class action because in the northern tier of Canada there are a number of provinces where similar charges have been made to individuals where they are essentially paying a fee and not getting a service,” said Landy, the senior and founding partner of Landy Marr Kats LLP.

But Justice Veale found that he did not have “sufficient evidence to decide the national class action issue.” Judge Veale held that the class should, for now, be comprised of only N.W.T. residents who entered an agreement with Bell Mobility, were charged with 911 emergency service fees but had no access to a 911 live operator— a class that amounts to approximately 20,000 people.

“To a certain extent, the deci-
sion involves a consideration of
order to determine whether the
service agreements between the
class members and Bell Mobility
expressly and impliedly required
the national cellular carrier to pro-
vide 911 live operator services to
class members, it would require
the evidence of individual class
members. Bell Mobility also sub-
mitted that individual issues are at
the heart of the Andersons’ claim
on unjust enrichment, and there-
fore it is neither fair nor manage-
able as a class action.

“This doctrine permits a plaintiff to recover from
the defendant the amount by which a defendant
has been enriched by its wrongful conduct,
rather than receiving compensation damages
for loss suffered by the plaintiff.
the service agreements in the
other jurisdictions, the numbers
involved, and the degree of com-
monality of issues,” said Justice
Veale. “As a result, I am adjourning
this issue to be considered when
there is more evidence provided
by the Plaintiffs.”
In spite of this temporary set-
back, Landy and Marr are
“pleased with the result,” particu-
larly since Judge Veale held that
most of the common issues pro-
posed by the Andersons were
deemed to be appropriate.

In its defence, Bell Mobility pointed out that it has different 911 services depending on the local authority. The company argued that its obligation rests with providing the so-called “trunk line” access to provide access to its local and national networks, and that though wireless companies such as Bell collect fees it is not responsible for ensuring that 911 service exists in all communities. Bell Mobility noted that it has put in place all the necessary infrastructure and software in the N. W. T. to trunk 911 calls to a live answering service on its network. Bell also argued that while the Andersons do not have 911 service where they live, the fees cover them when they travel in the rest of Canada.

The company also submitted
that some of the proposed com-
mon issues are not appropriate
for a class action as they require
evidence of individual circum-
stances to establish “certain legal
issues,” including express and
implied contract terms, the claim
for unjust enrichment and
“waiver of tort.”
Bell Mobility argued that in
Judge Veale was not swayed,
concluding that the common
issues proposed by the Andersons
were appropriate. He also found
that the plaintiff’s claim under the
“novel” doctrine of waiver of tort is
not substantially different than
other common issues such as
unjust enrichment from a proced-
ural perspective.

Reasons: Anderson v. Bell Mobility Inc., [2010] N. W. T.J. No. 60.

Folk singer sues Led Zeppelin – after 41 years

A U.S. folk singer who claims he wrote Led Zeppelin’s classic song,
“Dazed and Confused,” waited 41 years to file a plagiarism suit.
Folk singer Jake Holmes released “Dazed and Confused” on his 1967
debut album. The same year, he opened for Jimmy Page, then of the
Yardbirds and later Led Zeppelin, at a Greenwich Village gig. Page
included a version of “Dazed and Confused” on Led Zeppelin’s first
album in 1969.
Holmes can only claim royalties and damages for the past three years
due to a statute of limitations, according to Guardian.co.uk. No one
knows why Holmes waited 41 years to launch his lawsuit—maybe he’s
interested in “buying a stairway to heaven.” — Natalie Fraser
GEOPAUL / DREAMSTIME.COM
FOCUS
• Labour & Employment Law
• Personal Injury

www.lawyersweekly.ca June25,2010| THELAWYERSWEEKLY

Nova Scotiagovernment launches review of cap and seeks alternative controls

www.lawyersweekly.ca March5,2010| THELAWYERSWEEKLY

www.lawyersweekly.ca February5,2010| THELAWYERSWEEKLY

FOCUS
FOCUS

The province’s Office oftheSuperintendent of Insurance has launcheda reviewofthe cap, seeking public input on alternative ways to control damageawards for pain andsuffering. A discussionpaper accompanying the call for submissions suggests changes tothe six-year-old capcouldbe appliedretroactively. NewDemocratPremier Darrell Dexter, electedlastJune, says the cap—imposed by the former Conservative government in 2003— is preventing people who have been seriously injured from pursing compensation, and will not survive inits presentform. “Insurance is a product designedto protect people,” he told reporters inDecember. “Ifyou exclude people from protection…thenby definition you’re not delivering the productthat has been paid for.”He has floatedthe idea of anacross-the-boarddeductible, similarto one used in Newfoundland and Labrador, that would weed outthe minorinjury claims the cap is supposed totarget.

FOCUS

Labour & Employment Law
Personal Injury
Personal Injury

EMPLOYEE

dismissal misconduct

“permanentseriousdisfigurement,”no “seriousimpairmentofanimportant bodilyfunction” orresolveditself within ayearoftheaccident wasconsidered minor.

Scrappingthe minorinjury cap

DEAN JOBB HALIFAX

DEANJOBB HALIFAX

ova Scotia’s New Democraticgov-ernmenthastripledthecapon insuranceclaimsforminorinjur- iessufferedinautoaccidentsto$7,500 whilegivingmorevictimstherighttosue forhigherdamages.

“Theoldcapcoveredeverytypeof injury,” says Mason. “Youcouldhavea brokenbone, youcouldhavenervedam-age,youcouldhavebraindamage…as longastheinjurywas‘resolved’within12 months.”

N
T

By Christopher Guly

he Nova Scotia government is poisedtoscrap a controversial $2,500 cap ondamages for minor injuries suffered in highway crashes— a restriction personal-injury lawyers contendis unfair toaccident victims butinsurers insist is keeping premiums affordable.

Thechanges, announced April28, will befullyimplementedon July1. They overhaulaseven-year-oldautoinsurance regimethatrecentlywithstoodaconsti-tutionalchallengebutpersonalinjury lawyerscontendwasunfairtovictims caughtbyabroaddefinitionof“minor injury.”

The reviewcomes on the heels ofa Nova
Scotia CourtofAppeal ruling that rejected a
constitutional challenge tothe cap. The court
ruledlastDecember thatthe restriction does
not violate the Charter’ss. 15 equality guaran-
tee and regulations defining “minorinjury” do
not exceedthe intentofthe legislation’s fram-
ers (Hartling v. NovaScotia(Attorney
General), [2009] N.S.J. No. 599).
One of the lawyers who brought the con-
stitutional challenge praised the govern-
ment’s decision to review the cap. “It’s a good
move,” Barry Masontold The Lawyers
Weekly. “I’m pleasedthat they’re sticking to
their position, before the election, that the
capis wrong and it’stakenaway too many
rights for accidentvictims.”
Mason, ofPresse Mason Law Office in
Bedford, N.S., says he will file a submission
before the Feb. 15 deadline and will ask the
governmentto take three simple steps: “Get
ridofthe cap, restore accident victims’ rights
andregulate the (insurance) industry tomake
sure they charge a fair premium.”
Halifax lawyer Janus Siebrits, who repre-
sentsone of the accidentvictims pursuing the
constitutional challenge, estimates thathun-
dreds of injury claims are being heldin abey-
ance until the capis struckdown or rescinded.
“They’re simplyhovering outthere, and wait-
ing to be resolved.”
The definition of a minor injury is so
restrictive that “unless you’ve got very severe
injuries, justabout every case isaffected by
this,” added Siebrits, whopractises with
MacGillivray Law Office. He has clients who
suffered spinal injuries and broken bones
that are not considered serious injuries
under the cap, whichexcludes injuries that
don’tresultin “serious impairment ofan
important bodily function” beyond the first
year afteran accident.
But the manager ofmedia relations for
the Insurance Bureau of Canada points out
that the caphas withstood the court chal-
lenge. Pete Karageorgos says it has been
effective in reducing auto insurance rates in
Nova Scotia and, if changes are made, they
shouldnot be retroactive.
“The challenge, obviously, applying any-
thing retroactively is a greatone from a busi-
ness perspective, ifyou’reasking to goback
and pay out or even charge people retroactive-
ly—that’s quite an oneroustask and, to some
extent, doesn’teven seem tobe fair.”
Karageorgossaysthe cap has allowed the
The government
of Nova Scotia
wants to get rid
of a $2,500 cap on
damages for minor
injuries suffered in
highway crashes.

“ It’sessentiallygivingaproperdefin-itiontoaminorinjury andit’scertainlymore inline withwhatmost people wouldunder-standthetermto mean,”addedJanusSie-britsof Halifax’s MacGillivray Law Office. “Thepreviousdefinition wasextremelyrestrict-iveandcouldtheoretically—orin fact—captureveryseriousinjuries.” Siebritsand Masonwereinvolvedin challengestotheoldcapanditsdefin- itionsasdiscriminatoryunders.15ofthe Charter. The Nova Scotia Courtof Appealrejectedthechallengeslastyear andthe Supreme Courtof Canadaturned downanapplicationforleavetoappeal on May27(Gionetv. Nova Scotia(Attor-ney General), [2010]S.C.C.A. No.63). Thenewdefinitionsandcapapplyto injuriessufferedafter April28butthe governmentdeclinedtomakethechan-gesretroactive. Coupledwiththefailure oftheconstitutionalchallenge, Mason saysthismeansthousandsofvictims havebeencaughtbythe“incredibly unfair”$2,500cap.

Employers must consider the context of misconduct before firing employees

“It’samoveintherightdirection, so I applaudthegovernmentforadvancing therightsofaccidentvictimsinNova Scotia,” says Barry Mason, oneofthelaw-yerswholobbiedtoreverseinjury-claim limitstheprevious Conservativegovern- mentimposedin2003.

The Toronto Transit Commission has recently suffered a number of workplace-related employee missteps.

“Itwaslessthanwhatwehopedfor,
butbetterthanthesystemthat wasin
place,” Mason, whopractises withthe
Presse Mason Law Officein Bedford, told
The Lawyers Weekly. “Ithinkit willallow
agreaternumberofaccidentvictimsto
beabletobecompensatedbeyondcap
damages.”
Ontario on Jan. 1. Rule 29.1cre-
ates an entirely ne w procedural
step in litigation: the discovery
plan. The discovery plan has
becomeanunnecessarycompli-
cation in personal injury litiga-
tion, making the discovery pro-
cess more acrimonious, costly
andcumbersome.
Rule 29.1 requires parties to
agree ona writtendiscoveryplan
whenever a party intends to
obtainevidenceby wayofdiscov-
ery of documents, oral and writ-
ten examinationfordiscovery or
a medical examination. The dis-
covery plan must be continually
updated. This effectively makes
agreement bet weenlitigantsona
discovery planmandatoryinvir-
tually every action in Ontario.
The intent islaudable —to apply
Siebrits

PAULVSMARA/ MAGES.COM

Inannouncingthechanges, Finance Minister Graham Steelesaidthegovern-menthopesthenewregulations will “ ensurebothfaircompensationforacci-dentvictimsandaffordable, stablepre-miumsforallof Nova Scotia’sdrivers.” Akeychange—besidesincreasingthe minor-injurycapandindexingittoinfla-tion—istheadoptionof Alberta’sdefin-itionofaminorinjuryasastrain, sprain orwhiplash-associatedinjurythatleaves nolong-termimpairmentorpain.Under theolddefinition,aninjurythatleftno

New Democrat Premier Darrell Dexter, elected last June, says the cap...is preventing people who have been seriously injured frompursing compensation...

See Cap Page 11

RAGSAC19/ DREAMSTIME.COM

Nova Scotia
triples auto
insurance cap

F THE TORONTO
Transit
Commission’s tension-filled tri-
fecta of management, workers
and riders has become a case
study in workplace and customer ser-
vice dissonance, a recently released
memo to employees from the TTC
general manager Gary Webster reveals
a textbook example of a boss reaching
the endof the road over “unacceptable
operating discipline.”
In it, he stated that, “employees
need to be heldaccountable for their
poor performance”and that he was
“not proud of what we have been deal-
ing with over the lastseveral weeks.”
Wrote Webster: “We are in the
customer service business, but some
of the behaviour our customers have
encountered recently would suggest
otherwise.”
He didn’t have to cite examples.
Two generated a media storm and
prompted angry calls into phone-in
radio and TV shows in Canada’s
largest city.
Early inthe new year, a TTC rider
snapped a widely publicized photo-
graph of a subway ticket taker— identi-
fied as George Robitaille, a 55-year-old,
near 30-year veteran TTC employee
who reportedly takes special medica-
tion after undergoing a heart proce-
dure last summer—sleeping on the
job. (More photos of other snoozing
TTC workers have since ended up in
the hands of Toronto media outlets.)
Then, in late January, an unidenti-
fied TTC driver leftpassengers cool-
ing their heels on his bus for seven
minutes when he went to a doughnut
shop to use the bathroom and buy a
drink. A rider preserved that
unscheduled employee break on
video, which was posted on YouTube.
The driver was later suspended. (Rob-
itaille, who later apologized for dozing
on the job, told the Toronto Sun that
the issue had been “resolved,” but
would notcomment on whether he
had faced any discipline.)
These incidents might have caused
public relations problems for the TTC
(also embattled by the sex scandal of its
chairman, City Councillor Adam Giam-
brone, who was forcedto abandon his
mayoral bidas a resultof his self-
acknowledged personal indiscretions).
But the workplace-related TTC
employee missteps serve as “good seg-
ues in reminding employers what they
need to be aware of when faced with
apparent misconduct on the part of
employees,” says Stuart Rudner, a part-
ner in the labour and employment
group at Miller Thomson LLP in
Markham, Ont.
The ultimate penalty — just cause
for dismissal —is viewed in legal
circles as the “capital punishmentof
employmentlaw” when a fired
employee contests the disciplinary
action. The onus falls on an employer
to show that an employee engaged in
misconductthat
“irreparably harmed”
the employment rela-
tionship to the point
thattermination is jus-
tified — regardless of
whether photos or vid-
eos exist that illustrate
wrongful behaviour,
according to Rudner.
He explains that
courts — and in the case of a unionized
workplace, such as the TTC, arbitra-
tors — take a contextual approach when
determining whether misconduct
shouldresult in dismissal for cause.
“They look at the entirety of the
employment relationship — the length,
the nature of the employee’s position
andduties and the amountof trust
required, any prior discipline — and
have not set outany hard and fast rules
for summary dismissal,” says Rudner.
He points out that unionizedcollective
agreements may identify specific penal-
ties related to misconduct, such as a
warning for a firstoccurrence followed
by suspension and ultimately dismissal.
But employers need to ensure
they have a “zero-tolerance policy”
toward employee infractions and not
have inconsistent standards, warns
veteran employment lawyer Howard
Levitt, counsel to
Lang Michener
LLP in Toronto.
“If something isn’t
disciplinable for one
employee, itcan’t be
for another employee,”
he explains. “Differen-
tial treatment is a
defence, and courts or
arbitrationboards will
be very sympathetic to that.”
In instances of apparentemployee
misconduct, an employer mustalso
conduct aninvestigation and obtain
the employee’s side of the story.
“After someone sees a lawyer, they
might come up with a better explana-
tion for the situation,” says Levitt,
who writes on employment law for
the Financial Postsection of the
National Post. “But if the employee
already explained to the employer
why he or she did something, any-