The proposed methodology of aggregate
damages calculation advanced by appellants could be worked out in the trial
court. Finally, the judge erred in concluding that a class proceeding was not the
preferable procedure. The litigation plan
was sufficient, although it might have to be
amended as the action proceeded.
Steele v. Toyota Canada Inc., 
B.C.J. No. 352, B.C.C.A., per Hinkson
J.A. (Rowles and Groberman JJ.A. con-
curring), Mar. 7/11. Digest No. 3045-
006 (Approx. 24 pp.)
SETTLEMENT – Representative
plaintiff not entitled to settle action with
two of seven subclasses of defendants.
Motion by representative defendants
for an order declaring that an offer to settle was impermissible under the Class
Proceedings Act (Ont.) and for directions
that representative defendants and their
class counsel were not obliged to make the
offer available for acceptance by defendant
class members of the two defendant subclasses. In 1991 Air Canada acquired Air
Ontario, a regional airline. Plaintiff’s class
was comprised of 171 Air Ontario pilots. In
1997 representative plaintiff B commenced
a proposed class action against Air Canada
pilots alleging conspiracy and other torts
and claiming damages of $300 million
from defendant subclasses. In 2001 the
court granted certification of a plaintiff’s
class and seven defendant subclasses. The
first five subclasses were small and the last
two were large, comprising over 1600 Air
Canada pilots in subclasses six and seven.
In 2010 class counsel for plaintiffs delivered an offer to settle with respect to members of subclasses six and seven and
insisted that the offer be passed on to each
of the class members. Defendants’ class
counsel declined to do so and brought the
motion. The issue was whether a litigant’s
right to settle an action was taken away
when he or she was a class member in a
class proceeding and whether class counsel was legally obliged to disclose to class
members a settlement offer that the representative plaintiff or representative
defendant acting on advice of class counsel
does not recommend for acceptance.
HELD: Motion granted. If a putative
class member did not opt out of the class
proceeding and becomes a class member,
then he or she did not have the right to
accept a settlement offer until the action
reached the individual issues stage. The
right to accept settlement offers rested
exclusively with the representative plaintiff or representative defendant who, with
the advice of class counsel, had carriage of
the litigation and he/she was not obliged
to disclose the offer to class members.
While the Act had the effect of taking
away the rights of class members to settle
their own claims during the communal
stages of the class action, it used those
means in order to achieve its ends of
access to justice, behaviour management
and judicial economy.
Berry v. Pulley,  O.J. No. 927,
Ont. S.C.J., Perell J., Mar. 3/11. Digest
No. 3045-007 (Approx. 21 pp.)
Reference by the government of Alberta
to the court asking whether the Parliament of Canada had the legislative authority under the Constitution Act, 1867 to
pass the proposed Canadian Securities
Act. The provinces using their jurisdiction
over property and civil rights in the province had historically regulated the securities industry. The federal government
proposed to enact comprehensive legislation regulating the securities industry at
the national level. The proposed federal
legislation mirrored, from a functional
point of view, the existing provincial securities regulation regimes. The focus of the
proposed federal securities legislation, like
the provincial legislation, was the integrity
of market participants, protection of public investors and ensuring ethical practices
in the capital markets. The proposed federal legislation was to become effective in
a particular province only if that province
consented to being included and also
agreed to suspend its jurisdictions over
securities. Canada sought to validate the
proposed federal statute under the trade
and commerce power.
HELD: The proposed federal securities
legislation would, if enacted, be unconstitutional. The purpose of the federal statute
was the comprehensive regulation of trading in securities, which had consistently
been interpreted as coming under provincial jurisdiction. The proposed federal
securities legislation would have entered
an area of regulation long occupied by the
provinces and long considered to be clearly
within provincial jurisdiction. The proposed legislation did not meet the traditional tests for inclusion in the trade and
Reference re Securities Act (Can.),
 A.J. No. 228, Alta. C.A., per Slat-
ter J.A. (Côté, Conrad, Ritter and
O’Brien JJ.A. concurring), Mar. 8/11.
Digest No. 3045-008 (Approx. 21 pp.)
The judge erred, however, in assessing
respondent’s past wage loss by including a
four-and-a-half-week period that
respondent was off work due to surgery
unrelated to the accident. The award for
past wage loss was thus reduced by $3,735
to account for that period. The figures
relied on by the judge in assessing future
income loss were well within the range
that was supportable on the evidence and
did not reflect any error in principle with
respect to the assessment.
Bradshaw v. Matwick,  B.C.J.
No. 398, B.C.C.A., per Groberman J.A.
(Finch C.J.B.C. and Kirkpatrick J.A.
concurring), Mar. 11/11. Digest No.
3045-009 (Approx. 8 pp.)
SOFT TISSUE INJURIES – Appel-
late court ordered new trial on dam-
ages due to errors in instructions
given to jury.
Appeal from judgment awarding
respondent damages for personal injuries
suffered in three motor vehicle accidents.
Appellants admitted liability. The jury
awarded respondent $6,500,000 for nonpecuniary damages. The award was later
reduced to $327,000 after the jury confirmed that it had intended to award
respondent the rough upper limit for such
loss. Respondent, 42, had suffered soft tissue injuries in the accidents which greatly
reduced her ability to work in her own
business. The medical evidence indicated
it was unlikely that her condition would
improve. The jury also awarded respondent $5,600,000 for loss of future income
earning capacity and $335,000 for the
cost of future care.
HELD: Appeal allowed. A new trial was
ordered. The trial judge erred in not giving
the jury adequate instructions to assess
respondent’s damages. The jury might well
have been confused about the question of
causation and about their duty to deter-
mine which of respondent’s claims, if any,
were properly attributable to the car acci-
dents and in connection with the costs of
future care, which were medically justi-
fied. Fairness also required that in connec-
tion with loss of income-earning capacity
and future care costs, the jury be instructed
as to the need to apply a discount rate in
order to assess the present value of the
awards for future contingencies and on the
need to reduce such awards to reflect that
they did represent contingencies rather
than certain losses. The awards for non-
pecuniary damages and loss of income-
earning capacity were wholly out of pro-
portion to what was justified by the
evidence. The award of $327,000 would
have been justified only had respondent
suffered a truly catastrophic injury, which
was not the case.
& DISMISSAL LAW
EMPLOYMENT CONTRACTS –
Plaintiff awarded compensation of
$70,000 as entitlement for promised
transfer of corporate stock.
Action for damages for wrongful dismissal and breach of a promise to transfer
corporate stock, in lieu of specific performance. Defendant B was president,
CEO and directing mind of corporate
defendant, which provided electronically
supported teaching and learning. In 2003
plaintiff accepted an employment offer
from the corporate defendant for a senior
management position. Plaintiff was promised corporate stock as well as his salary.
He was terminated without cause in February 2006. The parties settled the wrongful dismissal claim and entered into minutes of partial settlement. The trial was to
determine the claim for damages for
breach of promise to transfer corporate
stock to plaintiff.
Cogan & Assoc. International
probate research, locators
of missing heirs. Telephone:
519-770-0500, Fax: 519-770-0059.
FAMILY LAWYER —
Are you diligent, empathetic,
knowledgeable and have a passion
for family law? Full details at:
RE: ELIZABETH GILMOUR
Anyone having knowledge of a Will
of the late ELIZABETH GILMOUR
JACKSON of the City of Toronto,
Ontario, who died on January 6,
2011, is requested to contact Jill
C. Anthony, Barrister & Solicitor, 10
Highway 20 East, Fonthill, Ontario,
L0S 1E0, Telephone: 905-892-2621,
or Fax: 905-892-1022 or by Email to:
123 JOHN STREET
steps from the University
courthouses, brick & beam lofts,
reception, amenities, up to 5 offices.
DISTRIBUTION OF LEGISLATIVE
POWERS – Proposed Canadian Secur-
ities Act would, if passed, be unconstitu-
tional because it entered area clearly
within provincial jurisdiction.
ASSESSMENT – Trial judge did not
err in finding respondent’s knee injury
attributable to motor vehicle accident or
in his assessment of future income loss.
Appeal from an assessment of damages
in a personal injury action. Respondent
was injured in a 2006 motor vehicle accident. He suffered soft tissue injuries to his
neck and back and a left knee injury.
Appellants argued that the knee injury
was unconnected to the accident. A 2008
MRI scan revealed that respondent had
both a lateral meniscus and a medial
meniscus tear in the left knee. While the
expert evidence at trial did not attribute
the lateral meniscus tear to the accident,
there was disagreement with respect to the
medial meniscus tear. The trial judge
found that the medial meniscus tear was
caused by the accident, relying primarily
on the opinion of a specialist in physical
medicine and rehabilitation. Appellant
also disputed the assessment of past and
future wage loss.
HELD: Appeal allowed in part. The
trial judge made no reversible error in
relying on the expert’s opinion relating to
the knee injury. There was evidence that
the knee symptoms commenced within a
week of the accident. The judge did not
err in finding that respondent had acted
reasonably in returning to work in August
2006 in order not to lose his employment.
NORTH YORK (Leslie & 401)
two modern offices available to
share with other solicitors and
litigation boutique. Reception, 3
boardrooms, copier, fax & parking.
416-224-2400 x 114.
RE: ESTATE OF
Anyone having knowledge of a
Will of the late, Richard Goddard,
of the City of Toronto, in the
Province of Ontario, who died on
or about February 13, 2011, is
requested to contact, Robert G.
Coates, Barrister & Solicitor at tel:
416-925-6490 fax 416-925-4492
RE: BRENDA ANNE WALSH
If anyone knows the whereabouts
of a Last Will and Testament
executed by Brenda Anne Walsh,
deceased, please contact Barry
M. Kaufman, Barrister & Solicitor,
308-3850 14th Avenue, Markham,
Ontario L3R 0A9, 905-477-8848,
Solicitor for the Estate.