CITATION: Lavier v. MyTravel Canada Holidays Inc., 2011 ONSC 5559
DIVISIONAL COURT FILE NO.: DC-11-00000298-00ML
COURT FILE NO.: 05-CV-300187CP
DATE: 20110923
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Proceeding under the Class Proceedings Act, 1992, S.O. 1992, c. 6
BETWEEN:
SUZANNE LAVIER
Plaintiff
(Moving Party)
- and -
MYTRAVEL CANADA HOLIDAYS INC. and MYTRAVEL GROUP PLC
Defendants
(Responding Parties)
Joel P. Rochon, for the Plaintiff (Moving Party)
Sally Gomery, for the Defendants (Responding Parties)
HEARD: September 21, 2011
Hoy J.
REASONS FOR DECISION
[1] The representative plaintiff, Suzanne Lavier, seeks leave to appeal to the Divisional Court from the May 25, 2011 decision of the class action motions’ judge dismissing the plaintiff’s motion seeking approval of enhanced notice efforts to class members with a view to improving take-up of the settlement.
[2] The action was certified by the motions judge as a class action in December of 2010. Thereafter, notice was given to class members of the certification and the settlement that had been reached, subject to court approval.
[3] Under the settlement, the defendants, MyTravel Canada Holidays Inc. and MyTravel Group PLC, did not admit liability. The settlement fund was capped at $2.25 million. To the extent that total claims made by class members and administrative costs are less than $2.25 million, the defendants are entitled to the residue.
[4] On February 23, 2011, the motions judge held a fairness hearing with respect to the settlement. He noted that as of February 16, 2011, only 50 claims had been filed with the Settlement Administrator, and the apparently low take-up was discussed. (Notice in accordance with the settlement agreement had been given in December and January but the claims period had not yet expired.)
[5] Class counsel ‑ who the motions judge noted are very experienced ‑ recommended approval of the settlement and, after consideration of the relevant factors, the motions judge approved it. On consent, an order was issued approving the settlement agreement.
[6] In his May 25, 2011 decision which class counsel seeks leave to appeal, the motions judge highlighted that in considering whether to approve the settlement, he had noted, as an unfavourable factor, that the settlement included “the possibility that the take-up will be low and the residue correspondingly high.”
[7] The take-up in fact proved to be low and class counsel brought a motion to permit it to engage in activities to enhance the likelihood that notice would come to the attention of more class members and class members who had received notice would file claims.
[8] In their submissions, the defendants cautioned that, “Allowing class counsel to modify the terms of the agreement when the settlement does not have the effect they expected will introduce a degree of uncertainty into the class actions regime that will make defendants hesitant to settle any action. This would have a chilling effect of on the settlement of class actions in Ontario.” They argued that the Court had approved the settlement agreement as fair and reasonable and in the best interests of class members, and could not modify the settlement agreement without the consent of the defendants. The motions judge accepted the submissions of the defendants.
[9] Class counsel argues that sections 12 and 19 of the Class Proceedings Act, 1992, S.O. 1992, c. 6 provide good reason to doubt the correctness of the motions’ judge’s decision that he could not modify the concluded and court-approved settlement agreement without the agreement on the parties. They provide as follows:
- The court, on the motion of a party or class member, may make any order it considers appropriate respecting the conduct of a class proceeding to ensure its fair and expeditious determination and, for the purpose, may impose such terms on the parties as it considers appropriate.
19.(1) At any time in a class proceeding, the court may order any party to give such notice as it considers necessary to protect the interests of any class member or party or to ensure the fair conduct of the proceeding.
[Emphasis added.]
[10] Class counsel argues that the cases the defendants rely on ‑ Gray v. Great-West Lifeco Inc., 2011 MBQB 13; Stewart v. General Motors (unreported, September 15, 2009, Court File No. 06-CV-310082PD1, Ont. S.C.) at pp. 8-9; and Harington v. Dow Corning Corp., 2010 BCSC 673 at para. 15 ‑ to the effect that a court cannot modify a class action settlement agreement should be distinguished. They address the extension of claims periods and the eligibility criteria for claimants, not the extent of the efforts to be taken to give notice to class members. Notice, class counsel argues, is key to the access to justice objective of the Class Proceedings Act. Class counsel submits that a class action motions judge retains the discretion to unilaterally modify a court approved settlement agreement after a consent order has been taken out with respect to the approval to provide for greater or different notice if it will ensure that the notice will as a result likely come to the attention of more class members or take-up rates will increase.
[11] Class counsel did not address the defendants’ further argument that, pursuant to Monarch Construction Ltd. v. Buildevco Ltd., [1988] O.J. No. 322 (C.A.), a consent order is “final and binding” and can be varied only on consent or on the same equitable grounds as any contract can be varied.
[12] Neither the representative plaintiff’s factum before the motions judge, nor his reasons refer to section 19. It does not appear to have been argued before the motions judge.
[13] There is no good reason to doubt the correctness of the motions’ judge’s careful and thorough decision. The cases on which the defendants rely are not properly distinguishable. The motions judge was in my view correct.
[14] In the result, leave is denied.
[15] I note that class counsel did not advance an argument that the motions judge had erred in his interpretation of the notice provisions of the settlement agreement, appreciating that such an issue is specific to the parties and not a basis for leave to appeal.
[16] I unfortunately neglected to obtain costs submissions at the conclusion of the hearing. If the parties are unable to agree on costs, the defendants shall provide their brief costs submissions within seven days. Class counsel shall provide brief reply submissions within four days thereafter. I may be spoken to if this timetable is problematic.
Hoy J.
Released: September 23, 2011
CITATION: Lavier v. MyTravel Canada Holidays Inc., 2011 ONSC 5559
DIVISIONAL COURT FILE NO.: DC-11-00000298-00ML
COURT FILE NO.: 05-CV-300187CP
DATE: 20110923
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Proceeding under the Class Proceedings Act, 1992, S.O. 1992, c. 6
BETWEEN:
SUZANNE LAVIER
Plaintiff / Moving Party
- and -
MYTRAVEL CANADA HOLIDAYS INC. and MYTRAVEL GROUP PLC
Defendants / Responding Parties
REASONS FOR DECISION
Hoy J.
Released: September 23, 2011