COURT OF APPEAL FOR ONTARIO

M28144

(C37258)

DIRECTRIGHT CARTAGE LTD. (Plaintiff/Respondent) v. LONDON LIFE INSURANCE COMPANY (Defendant/Respondent) and DIANNA HOLMES (Appellant/Moving Party)

HEARD: January 16, 2002

[1] An application was made before Cumming J. on September 28 by the applicant herein for individual party status. This was apparently done in the form of a notice of objection in relation to the proposed class action settlement. Cumming J. denied the applicant party status on September 28 and on October 18, 2001 made an order approving the class action settlement.

[2] A notice of appeal from the order of October 18 was served by the applicant herein on November 19, 2001. The respondents have brought an application for an order to quash this appeal and it is scheduled to be heard on February 14, 2002 before a panel of this court.

[3] The respondents argue that the decision of this court in Dabbs v. Sun Life supports their submission that no member of the class is entitled to status as an individual party. However, it may be arguable that the Dabbs decision has not closed the door in relation to any member of the Class seeking independent party status as O’Connor J.A. writing for the court appears to emphasize that the applicant in Dabbs had not applied to be a party or had not sought intervenor status.

[4] At the same time, I recognize that O’Connor J.A. in Dabbs also emphasized that “the wishes of one class member ought not to govern the interests of the entire class”.

[5] With respect to the issue of intention to appeal, I believe it is a fair inference from the affidavit of the applicant that she believed that the issue of her status would be a part of the appeal that she had made from the order of Cumming J. approving the class settlement action.

[6] In any event, when counsel for the appeal was retained, he decided that there should be a formal notice of appeal from the decision of Cumming J. on September 28, 2001 which denied the applicant party status.

[7] In these particular circumstances, I believe that there is a reasonable explanation for the delay in launching the appeal which is the subject matter of this application.

[8] The respondents have made very persuasive arguments in relation to a lack of merit with respect to the proposition that the applicant is entitled to standing as a single member of the class. However, I am of the view that this issue should be more properly decided by a full panel of this court.

[9] While the member of the class have an understandable concern with respect to any further delay with respect to the distribution of funds contained in the settlement of the class action, I do not believe that an order extending the time for the serving and filing of the notice of appeal will cause any real prejudice. It is therefore ordered that the notice of appeal from the order of Cumming J. dated September 28, 2001 be served and filed by January 23, 2002.

[10] The appeal related to party status and the appeal related to the order approving the class action settlement should probably be heard together.

[11] The costs of this motion are reserved to the panel hearing the appeal.

_____ “R. Roy McMurtry C.J.O.”

January 16, 2002

Melvyn Solmon and Michael Deverett, for the appellant/moving party, Dianna Holmes

Wendy Matheson, for the respondent, London Life Insurance Company

David Thompson, for the respondent, Directright Cartage Ltd.