out-of-court settlement is within reach.
Though a trial date has yet to be set for
any franchise class action suit, Dolman
believes that franchisors are prepared to
“fight things” on their merits. “It’s going
to be very determinative when we get
that first trial,” said Dolman.
Competition class actions also face a
lower bar. Coming on the heels of amendments to the federal Competition Act,
which removed some hurdles antitrust
class action plaintiffs faced, rulings by Ontario Superior Court and the B.C. Court
of Appeal veered away from a well-en-trenched body of Canadian certification
decisions in competition class actions.
Indeed, while plaintiffs have been successful in negotiating several settlements,
only a handful of antitrust class actions in
Canada proceeded to a contested certification motion, and in virtually all cases
the courts denied certification. Anti-trust
class actions rarely got off the ground because plaintiffs were seldom capable of
THE CANADIAN class action legal
landscape is evolving, with some
arguing that the bar has been set
too low, while others insist a balance
has been achieved. recent key
developments include:
Securities class actions:
there were 28 active Canadian
securities class actions, representing
approximately $15.9 billion in
outstanding claims, as of the end
of 2010, revealed the national
economic research associates,
Inc. in a recently published study.
eight new Canadian securities class
actions were filed during 2010,
involving total claims of more than
$870 million. there were settlements
in six cases with defendants paying a
total of almost $80 million (including
one partial settlement). here are
some key rulings:
n;Silver v. Imax Corp., [2009] o.J.
no. 5573. a controversial ruling,
and the first bill 198 securities class
action suit for misrepresentations in
public disclosure.
n;Dobbie v. Arctic Glacier Income
Fund, [2011] o.J. no. 932. the second
case that granted certification to a
securities class action. also notable
because it certified primary market
claims even though the representative
plaintiffs admitted that they had not
purchased their units based on arctic
glacier’s prospectus.
n;the four most prominent certification
decisions involving a class of franchisees
suing a franchisor are: 1176560 Ontario
Ltd. v. Great Atlantic & Pacific Co. of
Canada, Landsbridge Auto Corp. v. Midas
Canada Inc., 2038724 Ontario Ltd. v.
Quizno’s Canada Restaurant Corp., and a
must-read, if only because it articulates
how a class proceeding works, what the
principles are, what has to be met and
the nature of common issues is 578115
Ontario Inc. v. Sears Canada Inc.
n;the ontario Court of appeal in
2038724 Ontario Ltd. v. Quizno’s Canada
Restaurant Corporation, 2[2010] o.J.
no. 2683. It declared that “a dispute
between a franchisor and several
hundred franchisees is exactly the kind
of case for a class proceeding.”
n;Some legal experts would include
Seidel v. TELUS Communications
Inc., [2011] S.C.J. no. 15 because the
SCC seemingly opened the door for
franchisees to bypass the arbitration
process and pursue their dispute before
the courts.
Competition class actions:
n;two court rulings that lowered the
bar, raising speculation that there will
likely be a surge in class actions alleging
price-fixing: Irving Paper Ltd. v. Atofina
Chemicals Inc., [2009] o.J. 4051 (S.C.J.)
and Pro-Sys Consultants Ltd. v. Infineon
Technologies AG, [2009] b.C.J. no. 2239.
n;Quebec Court of appeal ruling that
raised the bar, and put an end to the
province’s reputation as a class
action haven: Harmegnies c.
Toyota Canada inc., [2008] J.Q.
no. 1446.
Franchise class actions:
recently a class of franchisees in
578115 Ontario Inc. v. Sears Canada
Inc. obtained certification as did
the $100-million class action suit
in 1250264 Ontario Inc. v. Pet Valu
Canada Inc., and more recently still
the $750-million class action suit in
Trillium Motor World Ltd. v. General
Motors of Canada Ltd., [2011] o.J.
no. 889. here are the decisions that
laid the groundwork:
Other class
actions of note:
n;Apple Canada Inc. c Jimmy
St-Germain, [2010] J.Q. no. 7327
shows sometimes “you have to
recognize that defendants are
good corporate citizens.”
n;Class actions seeking
compensation for psychological
harm are hard to certify. In Healey v.
Lakeridge Health Corp., [2011] o.J. no.
231, the ontario Court of appeal held
that “the evidence in this case falls short
of demonstrating that the appellants
suffered harm of sufficient gravity and
duration to qualify for compensation.”
the Quebec Court of appeal in Labelle
c. Agence de développement de
réseaux locaux de services de santé
et de services sociaux — région de
Montréal, 2011 QCCa 334 is also
reticent to certify such cases.
