D. Michael Brown

The plaintiffs in a class action sought court approval for retainer agreements, payment of disbursements, a cy-près distribution of remaining settlement funds to the Breakfast Club of Canada, and the discontinuance of the Ontario action without costs.

This motion followed a Supreme Court of Canada decision in a parallel BC action that denied certification for both indirect and direct purchaser classes, significantly diminishing the prospects of success for the Ontario action.

The court approved all requested relief, finding the retainer agreements fair, the disbursements reasonable, the cy-près distribution appropriate given the small remaining funds and rational connection to the class, and the discontinuance justified due to the remote chances of success and lack of prejudice to class members.

The plaintiff sought leave to appeal a motion judge's order denying an amendment to the class definition to include all downstream purchasers of LCD panels and products.

The court found no good reason to doubt the correctness of the motion judge's decision, noting that the motion judge properly exercised discretion under the Class Proceedings Act and correctly characterized the plaintiff's attempt to re-litigate a previously settled issue as an abuse of process.

Leave to appeal was denied.

This class action involved two motions: approval of three settlements totaling $39.2 million in an FX market price-fixing conspiracy case, and approval of Class Counsel's fees and disbursements.

The court approved the settlements, finding them fair and reasonable given the litigation risks and the stage of the proceedings.

However, the court partially denied Class Counsel's request for $9.8 million in fees, approving only an additional $2 million, citing that the achieved recovery (5 cents on the dollar against a potential $1 billion loss) was respectable but not "very good," and that the claimed litigation risks were somewhat exaggerated given prior regulatory findings and U.S. settlements.

The court emphasized the need for diligence in approving contingency fees in settlements to ensure they are provident for class members, not just counsel.

This omnibus motion concerned the certification of a class action for settlement purposes, approval of the settlement agreement, notice of certification and opt-out rights, class counsel fees, and honorariums for representative plaintiffs.

The court approved the settlement as fair, reasonable, and in the best interests of the class, noting the absence of opt-outs or objections.

The requested class counsel fees and plaintiff honorariums were also approved.

The representative plaintiff, Fanshawe College, sought to amend the class definition in a certified class proceeding alleging price-fixing of LCD panels.

Two amendments were proposed: a broad "all purchasers' amendment" to include all direct and indirect purchasers, and an "alternative amendment" to expand the list of named OEMs and distributors.

The court denied the "all purchasers' amendment," finding it an abuse of process as it attempted to re-litigate an issue previously abandoned and decided by the certification judge.

However, the court granted the "alternative amendment," as it was specifically contemplated by the certification judge and the claims were not found to be time-barred.

Following dismissal of the representative plaintiffs’ motion seeking production of documents generated during a World Bank sanctions investigation involving the corporate defendant, the defendants sought costs of approximately $98,721.66 on a partial indemnity basis.

The plaintiffs argued that costs should be in the cause or substantially reduced due to proportionality and access-to-justice concerns in class proceedings, and challenged certain expert disbursements.

The court held that the defendants were entitled to recover their claimed costs but fashioned a hybrid order reflecting the realities of class action litigation.

The court ordered costs of $98,721.66 inclusive of HST, with $25,000 payable forthwith and the balance payable in the cause or set off against future costs awards if the defendants ultimately succeeded.

The ruling emphasized the multiple purposes of costs, including indemnity, discouraging meritless motions, and balancing access-to-justice concerns in complex class actions.

Direct and indirect purchasers sought certification of a class action alleging unlawful price-fixing of high-fructose corn syrup and pass-through overcharges.

The majority held indirect purchasers may in principle sue, but certification failed for that group because there was no evidentiary basis that at least two members could self-identify as having purchased affected products during the class period.

It also held the direct purchasers’ constructive trust claim was plain and obvious to fail for lack of proprietary nexus and inadequacy of monetary remedy.

The appeal by the proposed indirect purchaser class was dismissed and the respondents’ cross-appeal was allowed.

Dissenting reasons would have found an identifiable class and certified the indirect purchaser claims.