Chadha et al. v. Bayer Inc. et al. [Indexed as: Chadha v. Bayer Inc.]
48 O.R. (3d) 415
[1999] O.J. No. 5466
Court File No. 98-CV-142211
Ontario Superior Court of Justice
Divisional Court
Lane J.
December 10, 1999
Civil procedure -- Class proceedings -- Certification -- Stay of action -- Class action by ultimate consumers of price fixing conspiracy -- Plaintiff alleging that defendants had conspired to fix prices of concrete blocks -- Leave granted to appeal certification of class proceedings -- Stay of action pending appeal of certification order.
J.L. McDougall, Q.C., for moving parties. Joel P. Rochon and Vincent Genova, for respondents.
NOTE: By a decision reported 1999 15080 (ON SC), 45 O.R. (3d) 478, Lane J. granted leave to appeal the decision of Sharpe J., reported 1999 14812 (ON SC), 45 O.R. (3d) 29, which granted certification of a class proceeding. On December 10, 1999, Lane J. granted an order staying the action pending the appeal to the Divisional Court. His endorsement was as follows:
LANE J.: -- I overlooked dealing with the stay requested by Bayer if leave to appeal was granted and the matter was argued today.
The test for the stay is the RJR-MacDonald test [RJR- MacDonald v. Canada (Attorney General), 1994 117 (SCC), [1994] 1 S.C.R. 311, 111 D.L.R. (4th) 385].
Serious issue: I have granted leave to appeal on the basis that the decision conflicts with other decisions. That means it is at least debatable whether it is right. There is a serious issue here. It is not appropriate in my view to apply the Ogden case where the appeal was as of right and the court determining the stay issue did so assuming the decision below was correct. No such assumption is appropriate here.
Irreparable harm: The expense to Bayer of continuing the action will be extensive -- not only in preparation of a statement of defence, but inquiries must be made to suppliers and others in the distribution chain at considerable cost, given that some one million houses are said to have been affected. This expense is both great and essentially unrecoverable. Further, the publication of the notices will have an adverse effect on Bayer's reputation. I think that these considerations satisfy this test.
Balance of convenience: The matters referred to above weigh heavily in the scale, as does the involvement of third parties in potentially costly document searches. The delay of several months in a case where the facts are seven to 15 years old seems much less burdensome. It is said that 300,000 homes are sold annually and the class will become dispersed. But the dispersal has already been under way for seven to 15 years and a further few months cannot weigh heavily in the scale. I find the balance of convenience/inconvenience favours the defendant.
It was submitted that it is fundamental to our open court system that a party to the litigation be informed as to everything that occurs in it. I quite agree, but one of the issues here is, who are the parties? The named plaintiffs are presumably informed by counsel. Until the class is formed, there is no other party to inform.
Finally, on the issue of convenience, I note the decision of A. Campbell J. in Hollick v. Metropolitan Toronto (Municipality), where there were 30,000 potential claimants. He stayed that action pending appeal to avoid the confusion that would arise from a notification to so large a group when the issue of certification was the subject of an appeal.
For these reasons, the action is stayed pending the appeal to the Divisional Court. Costs reserved to the panel hearing the appeal.