The Quebec Court of Appeal has overturned no less than eight lower court decisions over the past year that denied class action certification, signaling a possible discord that shows little sign of abating between motion judges more likely to cast a critical eye and the higher court intent on strictly adhering to case law and the teachings of the Supreme Court of Canada, according to class action experts.
With the Quebec justice system under severe strain, beset by underfunding and vexed by a dire shortage of court personnel, with more than 20 per cent of employees resigning in a year, leaving many Quebec judges compelled to share judicial assistants, class action lawyers speculate that motion judges are taking a harder line on the viability of class actions, all the while taking into consideration the impact it would have on an overtaxed justice system. “Perhaps what is happening is that trial judges have a more concrete understanding of the fact that there are already too many class actions going on in Quebec, be it at the authorization stage or at the trial level,” said Éric Préfontaine, a Montreal class action defence lawyer with Osler, Hoskin & Harcourt LLP. “There seems to be some kind of disconnect between the assessment some motion judges make” and the Appeal Court.
A $28-million settlement reached with a Catholic religious order in a sexual abuse class action was rejected by Quebec Superior Court because of the high legal fees associated with the agreement, the second Quebec class action settlement in the past month whose legal fees have been the subject of a critical assessment.
The decision by Quebec Superior Court Justice Thomas Davis to rebuff a settlement for more than 375 alleged victims of sexual assaults committed by members and employees of the Clercs de Saint-Viateur of Canada follows on the heels of a ruling in mid-June by Quebec Superior Court Justice Daniel Dumais to curb plaintiff class action legal fees by 20 per cent in the so-called Dieselgate scandal in which German carmaker Volkswagen AG violated Canadian emissions standards.
The decisions underline that settlement approvals are not a rubber stamping exercise, demonstrate that the courts will take into account the Code of Professional Conduct of Lawyers (Code) when examining plaintiff class action legal fees, reiterate the importance of transparency vis-à-vis clients even in a class action setting, and illustrate why settlement approvals should be separate from and not contingent on class counsel fee approvals, according to class action legal experts.
In a resounding victory for the pharmaceutical industry, the Quebec Court of Appeal held that the province’s consumer protection law does not apply to the sale of prescription drugs, jettisoning a legal avenue a growing number of class action plaintiffs were using to sue the industry.
Barely a week after Bell Canada’s wireless provider was compelled to pay $1.6 million to some 76,000 clients who paid excessive cancellation fees after the Supreme Court of Canada refused to hear its appeal, the telecommunication giant now faces another potentially costly legal battle after Quebec Superior Court authorized a class action over fee increases on internet, mobile, telephone, television services.
Joey Zukran is a busy man. The Montreal lawyer who spearheaded a class action over photo radar tickets following a series of decisions that have put thousands of tickets in jeopardy after the courts called into question the rules around the province’s use of the automated speed and red-light enforcement technology is at again.
This time, he has Bell Canada in his sights. Zukran has launched a class action on behalf of Montreal resident Shay Abicidan that alleges that the largest telecommunications firm in the country is misleading customers that its high-speed internet service delivers a fibre optic network to homes.
The class action, certified yesterday by Quebec Superior Court Daniel Bisson, alleges that the company has falsely advertised its Fibe television and Internet service. An Internet-based television service, Bell Fibe uses a fibre optic internet network to connect to homes. In many cases however the fibre optic wiring is sent to a neighborhood node which in turn is connected to residential homes through copper phone wires. The class alleges that Bell is misrepresenting its adverstisements, in violation of article 41 of the Quebec Consumer Protection Act.
Compensatory and punitive damages in amounts have yet to be determined.
The Quebec Court of Appeal upheld a ruling that certified a class-action lawsuit following an outbreak of Legionnaires’ disease in Quebec City in 2012 that is believed to have contributed to 14 deaths and lead 181 others to become ill from bacteria found to be in a cooling tower of a downtown office building.
A class action against an automobile manufacturer that was dismissed by a lower court was partially overturned by the Quebec Court of Appeal after it held that Mazda Canada Inc. failed to disclose “important information” to consumers in a timely manner.
Hailed as a victory for consumers, the appeal court’s decision bucks the nationwide growing trend against economic loss based tort claims, and serves a clear reminder to manufacturers that it is in their best interests to promptly inform consumers over “important facts” regarding their products and to fix products afflicted with latent defects expeditiously, according to consumer law experts.
Class action ethics, an issue barely broached by academic circles, the legal profession and even by regulatory authorities or bar associations, has now surfaced following a series of rulings that underscore the tension between the singular nature of class action litigation and the traditional position that ethical guidelines governing single plaintiff proceedings also apply to class actions.
In the absence of rules of professional conduct tailored for class action litigation, the courts have begun filling in the gap and providing guidance, albeit on a case-by-case basis, on the ethical minefields that line the class action landscape, the latest of which was Smith Estate v. National Money Mart Company, 2011 ONCA 233, in which the Ontario Court of Appeal voiced concerns the courts have over an uncontested motion for class counsel fees in the face of an adversarial vacuum.
Class action lawsuits appear to be an increasingly pervasive force in today’s business world, with organizations of all stripes, from top publicly-traded companies to small regional enterprises, looking over their shoulders, anxiously watching an ever-evolving legal landscape to see where things are heading next.
And it’s not necessarily looking good as recent rulings appear to be favouring consumers, and not companies.When a deeply divided Supreme Court of Canada recently held that disgruntled customers in British Columbia can launch class action proceedings even though the fine print of their contracts calls for disputes to be settled through private and confidential mediation and arbitration, it seemed that the long-awaited decision in Seidel v. TELUS Communications Inc. 2011 SCC 15 was but the latest in a growing line of cases that highlights the growing exposure Corporate Canada faces over class action proceedings. Continue reading “Class action legal landscape in Canada is maturing”
Nearly three decades after class actions made their first appearance in the Canadian legal landscape, little light has been shed over the proportion of class members who make a claim, which hasn’t stopped some from speculating that the numbers are so low that they call into question the need for class proceedings.
“Where there is money set aside for individual plaintiffs and they have to apply for the funds, anybody who did the research would find that there’s very little uptake and the funds that are unapplied for are given to charitable organizations,” asserts William Vanveen, a former assistant law professor at the University of Windsor’s faculty of law, now a partner with Gowling Lafleur Henderson LLP in Ottawa. “The lack of application for relief to the funds by directly affected plaintiffs indicates to me that there isn’t a great social need for these actions.”