ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 06-CV-035171

DATE: 20140320

BETWEEN:

DORIS DUCHARME
Plaintiff

– and –

SOLARIUM DE PARIS INC.
Defendant

William J. Sammon, for the Plaintiff

Brian C. Elkin, for the Defendant

HEARD: March 7, 2014 (Ottawa)

REASONS FOR DeciSION ON MOTION

R. SMITH J.

[1] The plaintiff has brought a motion to:

(a) Settle the certification order along with the notice to the class;

(b) Obtain an order to have the action proceed on an undefended basis if the two outstanding costs orders are not paid within 30 days; and

(c) Obtain an order to have the defendant pay $7,000 into his counsel’s trust account as security for payment of its share of the cost of publishing the notice.

[2] The defendant has brought a cross-motion seeking an order to:

(a) Amend the class definition to remove purchases of solariums and to refer to them instead as “All residents of Ontario who own and use a solarium model numbers…”

(b) Remove Doris Ducharme as the representative plaintiff because she no longer uses a solarium;

(c) Decertify the action as a class proceeding; and

(d) Require the plaintiff to disclose its fee arrangement in the notice to class members.

Unpaid Costs by the Defendant

[3] The defendant has assured the Court that the matter of unpaid costs would be dealt with within 30 days. The plaintiff accepted the assurance, however if the defendant fails to pay the outstanding costs within 30 days, the plaintiff may return this part of the motion and make written submissions within 10 days after default on the remedy sought, the defendant to have 10 days to respond, and the plaintiff to have 7 days to reply.

1. Should the Defendant be Ordered to pay $7,000 to his Counsel’s Trust Account for His Share of the Costs to Publish Notice?

[4] Given the defendant’s reluctance to pay costs awards and the extensive delay in getting the action moving forward, the defendant is ordered to pay $7,000 into his counsel’s trust account as security for payment of his share of the costs of publishing notice in the newspapers as agreed by the parties.

2. Should the Definition of Class Member be Amended from the “Purchases of….” to “Those who Own and Use Solarium Models…”?

[5] The defendant seeks to amend the definition of class member from “All residents of Ontario who, since on or after the 12th of November, 2004, purchased a solarium model numbers…” to “those Ontario residents who own and use a solarium model numbers…”.

[6] The defendant expressed a concern that a solarium may have been gifted to its present owner and user. I do not find that this concern is justified and amounts to speculation on the part of the defendant that some of the solariums may have been gifted to their current owners. This possibility is unlikely and may be dealt with in the future if some of the solariums turn out to have been gifted.

[7] The defendant also seeks to amend the class definition because it became aware from Dr. Pilette’s expert report that Ms. Ducharme had sold her home and moved into an apartment. If the proposed amendment was granted it would exclude the representative plaintiff from the class definition and require the appointment of a new representative plaintiff.

[8] The plaintiff submits that the class definition of all those “Ontario residents who purchased a solarium model numbers...” has been the same since the class proceeding was commenced and approved on appeal to the Divisional Court several years ago. The defendant did not appeal further and this issue has been settled. I agree with the submission.

[9] The plaintiff further submits that the class definition of anyone who “purchased a solarium model numbers...” includes both the original purchaser and any subsequent purchaser of a solarium or a structure to which a solarium is attached. I agree with the plaintiff’s submissions and find that the definition as approved by Charbonneau J. and the Divisional Court is acceptable as ordered.

[10] The defendant’s final argument is that they have only recently discovered that Ms. Ducharme was not using her solarium and had sold her home. However the defendant was always aware that Ms. Ducharme had purchased a solarium, installed it at her residence, and then was ordered to take it down by the Building Inspector for Renfrew County. As a result, the defendant has always been aware of the evidence that Ms. Ducharme was not using her solarium because she was ordered to remove it. This is not new or fresh evidence as this was the situation from the outset.

[11] Ms. Ducharme’s damages have crystalized and the damages are an individual issue in any event. The common issues of whether the defendant owed a duty of care in designing the solarium, whether the defendant was negligent in its design and manufacture, whether they pose a risk to health and safety, whether the defendant sold the models knowing they were unsafe and if class members are entitled to punitive damages are all common issues that are applicable to all class members including Ms. Duscharme.

[12] Common Issue 4(a), related to question 2 and 3 also applies to whether Ms. Ducharme’s solarium had to be demolished. The answer to question 4(a) will assist in determining the damages for all members of the class as well as for Ms. Ducharme.

Deposition of Issue #3

[13] For the above noted reasons the defendant’s motion to amend the definition of the class is dismissed.

3. Should Ms. Ducharme be Removed as Representative Plaintiff?

[14] As I have refused the defendant’s motion to amend the definition of a class member to exclude Ms. Ducharme, she remains a member of the class who purchased a solarium model as defined. In addition she has already been approved as an acceptable representative plaintiff and there has been no material change, as a result the defendant’s motion to have her removed as the representative plaintiff is dismissed.

4. Should the Class-Proceeding be Decertified?

[15] The defendant has not presented any fresh evidence which would justify decertifying the class-proceeding which has been approved by the Divisional Court. The fact that Ms. Ducharme’s solarium was demolished pursuant to the order of the Renfrew Building Inspector has been known by the defendant for many years and does not change her ability to claim for damages on her behalf and also on behalf of other class members. There has been no material change or fresh evidence and so the defendant’s motion is dismissed.

5. Should the Order and Notice to the Class be Approved as Submitted?

[16] The defendant’s main objections were in changing the definition of class members to one that would exclude Ms. Ducharme, and therefore require her removal as the representative plaintiff. In his letter dated January 8, 2014, the defendant listed a number of objections to the wording of the proposed notice to class. The plaintiff has made some of the suggested amendments.

[17] For reasons given previously the definition of class member remains as stated in paragraph 2 of the order. I agree with the submission of the plaintiff that the subsequent purchasers of a residence would acquire the solarium and would be included in the class definition as a purchaser of a solarium.

[18] I find that paras. 4 and 5 of the proposed order provide an adequate summary of the plaintiff’s claim.

[19] Para. 6, setting out the common issues, is approved and para. 10, outlining the method for opting out of the class proceeding, is also approved. The order as submitted at this hearing is approved.

Notice to Class

[20] Most of the defendant’s objections to the notice to the class, attached as Schedule A to the draft order were addressed when settling the order.

Financial Details

[21] The defendant expresses concern that the notice does not adverse class members of the financial arrangement in a manner that is sufficiently detailed. The notice sets out the financial consequences to class members. The notice states that the fees are on a contingency basis. The legal fees charged will have to be approved by the Court in any event, which will ensure that the fees charged are fair and reasonable to class members.

[22] To ensure that class members are fully informed the following sentence should be added: “Any member of the class will be provided with a copy of the retainer agreement with the representation plaintiff on request”. The above sentence shall be added in the second paragraph of the notice at the top of page 3, after the sentence “any fees charged by the lawyers for the representative plaintiff must be approved by the Court”.

Costs

[23] If the parties are unable to agree on costs, the plaintiff is to make brief submissions on costs within 10 days, the defendant is to have 10 days to respond and the plaintiff will have 7 days to reply.

Mr. Justice Robert J. Smith

Released: March 20, 2014

COURT FILE NO.: 06-CV-035171

DATE: 20140320

ONTARIO
SUPERIOR COURT OF JUSTICE

BETWEEN:

DORIS DUCHARME
Plaintiff

– and –

SOLARIUM DE PARIS INC.
Defendant

REASONS FOR decision on motion

R. SMITH J.

Released: March 20, 2014