Robert E. Kwinter

Following the dismissal of an appeal and motions for leave to act as representative plaintiffs by objecting class members (Home Depot and Wal-Mart), the representative plaintiffs and several defendants sought costs.

The objecting class members argued they were immune from costs under s. 31(2) of the Class Proceedings Act, 1992.

The Court of Appeal held that jurisdiction exists under ss. 14(1) and (2) to award costs against class members who unsuccessfully seek to represent the class to object to a settlement.

The court awarded costs to the moving parties, finding the delay in filing submissions was justified.

The plaintiffs, trustees of a pension fund, commenced a class action in Ontario and a similar one in Federal Court.

Settlements were reached with some defendants in the Federal Court action.

The plaintiffs sought court approval to discontinue the Ontario action, with prejudice and without costs, in favour of the Federal Court proceedings.

The court granted the motion, finding no prejudice to putative class members as their claims would continue in the Federal Court, and that discontinuing the Ontario action would avoid a multiplicity of proceedings.

Class members who are not representative plaintiffs have no direct right of appeal from an order approving a settlement in a certified class action.

The Court of Appeal affirmed that the decision in Dabbs v. Sun Life Assurance Co. of Canada remains good law and has not been superseded by subsequent decisions.

A settlement approval order is neither a judgment on common issues nor a determination of aggregate damages, and therefore class members cannot seek leave to appeal under section 30(5) of the Class Proceedings Act.

Permitting individual class members to appeal settlement approvals would introduce uncertainty into settlement negotiations, undermine the authority of representative plaintiffs and class counsel, and impede the resolution of class actions.

The appellant, a distributor of the respondent's products, appealed a summary judgment that dismissed its action and granted judgment on the respondent's counterclaim for approximately $430,000 in unpaid product purchases.

The motion judge found that the respondent properly terminated the distribution agreement based on the appellant's breach, including failure to honour customer orders and circulation of disparaging letters about the respondent.

The Court of Appeal upheld the summary judgment, finding no genuine issue for trial and rejecting the appellant's allegations of misuse of confidential information and interference with contractual relations.

The defendant, Bosch, brought a motion to dismiss the plaintiffs' proposed class action on the basis of issue estoppel and double recovery, following the plaintiffs' partial settlement with co-defendant Volkswagen regarding emissions measurement software in diesel vehicles.

Alternatively, Bosch sought to strike the plaintiffs' claims for predominant purpose conspiracy and negligence.

The court declined to apply issue estoppel, finding it would work an injustice and that the settlement approval did not make a binding determination of full compensation against Bosch.

The court upheld the conspiracy pleading but struck the negligence claim without leave to amend, concluding that software is not a dangerous product and the claim for pure economic loss was legally untenable.

On a summary judgment motion arising from the termination of a non-exclusive distribution agreement, the court held there was no genuine issue requiring a trial on the distributor's claims for wrongful termination, misappropriation of confidential information, solicitation, breach of good faith, and interference with contractual relations.

The court found that the contract expressly permitted termination without cause on 60 days' notice, that the moving party did not breach the duty of honest contractual performance under Bhasin, and that the responding party's evidence of bad faith and confidential information misuse was inadmissible, speculative, or insufficiently particularized.

The court also held that the responding party anticipatorily breached the agreement by stating it would not pay outstanding invoices, which independently justified termination for cause.

Summary judgment was granted dismissing the action and allowing the counterclaim for unpaid invoices with contractual pre- and post-judgment interest at 15 percent.

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.

The plaintiffs brought a motion to certify a class action against several manufacturers of lithium-ion batteries, alleging a price-fixing conspiracy that artificially inflated prices for direct and indirect purchasers in Canada.

The court certified the action solely for the statutory cause of action under section 36 of the Competition Act.

The court excluded 'umbrella purchasers' (those who bought from non-defendants) from the class, finding it plain and obvious they lacked a cause of action due to indeterminate liability and lack of restitutionary basis.

The court also declined to certify the common law claims for unlawful means conspiracy and unjust enrichment, holding that they were precluded by the comprehensive statutory scheme of the Competition Act.

The remaining certification criteria were met for the statutory claim.

In a proposed price-fixing class action involving lithium ion batteries, both sides brought refusals motions arising from cross-examinations conducted in advance of certification.

The court held that questions probing how class counsel came to act for the proposed representative plaintiffs, and requests for a retailer plaintiff’s business documents, were not relevant to the certification criteria.

However, questions to the plaintiffs’ expert about whether inclusion of contract phone purchasers complicated pass-through analysis were relevant to testing the expert’s methodology and had to be answered.

Questions to defence witnesses about alleged meetings and documents referenced in a related U.S. proceeding were refused as going to the merits rather than certification.