CITATION: Eidoo v. Infineon Technologies AG, 2015 ONSC 3282

COURT FILE NO.: 05-CV-4340

COURT FILE NO.: 10-CV-15178CP

DATE: 20150525

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

KHALID EIDOO and CYGNUS ELECTRONICS CORPORATION

Plaintiffs

– and –

INFINEON TECHNOLOGIES AG, INFINEON TECHNOLOGIES CORPORATION, INFINEON TECHNOLOGIES NORTH AMERICA CORPORATION, HYNIX SEMICONDUCTOR INC., HYNIX SEMICONDUCTOR AMERICA INC., HYNIX SEMICONDUCTOR MANUFACTURING AMERICA, INC., SAMSUNG ELECTRONICS CO., LTD., SAMSUNG SEMICONDUCTOR, INC., SAMSUNG ELECTRONICS AMERICA, INC. SAMSUNG ELECTRONICS CANADA INC., MICRON TECHNOLOGY, INC. MICRON SEMICONDUCTOR PRODUCTS, INC. o/a CRUCIAL TECHNOLOGIES, MOSEL VITELIC CORP., MOSEL VITELIC INC. and ELPIDA MEMORY, INC.

Defendants

AND BETWEEN:

KHALID EIDOO and CYGNUS ELECTRONICS CORPORATION

Plaintiffs

– and –

HITACHI LTD., HITACHI AMERICA, HITACHI ELECTRONIC DEVICES (USA), HITACHI CANADA LTD., MITSUBISHI ELECTRONIC CORPORATION, MITSUBISHI ELECTRIC SALES CANADA INC., MITSUBISHI ELECTRIC & ELECTRONICS USA, INC., NANYA TECHNOLOGY CORPORATION, NANYA TECHNOLOGY CORPORATION USA, NEC CORPORATION, NEC CORPORATION OF AMERICA, NEC CANADA, RENESAS ELECTRONICS CORPORATION fka NEC ELECTRONICS CORPORATION, RENESAS ELECTRONICS AMERICA, INC. fka NEC ELECTRONICS AMERICA, INC., RENESAS ELECTRONICS CANADA LTD., TOSHIBA CORPORATION, TOSHIBA AMERICA ELECTRONICS COMPONENTS INC., TOSHIBA OF CANADA LIMITED, WINBOND ELECTRONICS CORPORATION AND WINBOND ELECTRONICS CORPORATION AMERICA

Defendants

Jonathan J. Foreman for the Plaintiffs

Eric Letts for five Class Members

HEARD: In writing and court, on its own initiative

Proceeding under the Class Proceedings Act, 1992

PERELL, J.

REASONS FOR DECISION

1What follows is an order proprio motu; that is, on the court’s own initiative in an action under the Class Proceedings Act, 1992, S.O. 1992, c.6.

2I believe that I have the jurisdiction to make the order set out below pursuant to some combination of the court’s inherent jurisdiction to govern its own proceedings and ss. 12, 13, and 26 and 35 of the Class Proceedings Act, 1992, which state:

Court may determine conduct of proceeding

12. 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. 1992, c. 6, s. 12.

Court may stay any other proceeding

13. The court, on its own initiative or on the motion of a party or class member, may stay any proceeding related to the class proceeding before it, on such terms as it considers appropriate.

Judgment distribution

26.(1) The court may direct any means of distribution of amounts awarded under section 24 or 25 that it considers appropriate.

Idem

(2) In giving directions under subsection (1), the court may order that,

(a) the defendant distribute directly to class members the amount of monetary relief to which each class member is entitled by any means authorized by the court, including abatement and credit;

(b) the defendant pay into court or some other appropriate depository the total amount of the defendant’s liability to the class until further order of the court; and

(c) any person other than the defendant distribute directly to class members the amount of monetary relief to which each member is entitled by any means authorized by the court.

Idem

(3) In deciding whether to make an order under clause (2) (a), the court shall consider whether distribution by the defendant is the most practical way of distributing the award for any reason, including the fact that the amount of monetary relief to which each class member is entitled can be determined from the records of the defendant.

Idem

(4) The court may order that all or a part of an award under section 24 that has not been distributed within a time set by the court be applied in any manner that may reasonably be expected to benefit class members, even though the order does not provide for monetary relief to individual class members, if the court is satisfied that a reasonable number of class members who would not otherwise receive monetary relief would benefit from the order.

Idem

(5) The court may make an order under subsection (4) whether or not all class members can be identified or all of their shares can be exactly determined.

Idem

(6) The court may make an order under subsection (4) even if the order would benefit,

(a) persons who are not class members; or

(b) persons who may otherwise receive monetary relief as a result of the class proceeding.

Supervisory role of the court

(7) The court shall supervise the execution of judgments and the distribution of awards under section 24 or 25 and may stay the whole or any part of an execution or distribution for a reasonable period on such terms as it considers appropriate.

Payment of awards

(8) The court may order that an award made under section 24 or 25 be paid,

(a) in a lump sum, forthwith or within a time set by the court; or

(b) in instalments, on such terms as the court considers appropriate.

Costs of distribution

(9) The court may order that the costs of distribution of an award under section 24 or 25, including the costs of notice associated with the distribution and the fees payable to a person administering the distribution, be paid out of the proceeds of the judgment or may make such other order as it considers appropriate.

Return of unclaimed amounts

(10) Any part of an award for division among individual class members that remains unclaimed or otherwise undistributed after a time set by the court shall be returned to the party against whom the award was made, without further order of the court.

Rules of court

35. The rules of court apply to class proceedings.

3I also rely by analogy on rule 77.04, a case management rule under the Rules of Civil Procedure, which states:

Case Management Powers

77.04 (1) A judge or case management master may,

(a) extend or abridge a time prescribed by an order or the rules;

(b) adjourn a case conference;

(c) set aside an order made by the registrar;

(d) establish or amend a timetable; and

(e) make orders, impose terms, give directions and award costs as necessary to carry out the purpose of this Rule.

(2) A judge or case management master may, on his or her own initiative, require the parties to appear before him or her or to participate in a conference call to deal with any matter arising in connection with the case management of the proceeding, including a failure to comply with an order or the rules. O. Reg. 438/08, s. 64.

(3) For greater certainty, the powers set out in subrules (1) and (2) are in addition to any other powers set out in this Rule.

4The background to the order that I shall make below is that on May 5, 2015, I received a letter from Jonathan J. Foreman of Harrison Pensa LLP, one of a consortium of Class Counsel in two class actions in Ontario that are the companions in a national settlement of class actions in British Columbia, Ontario, and Québec.

5Mr. Foreman advised that Class Counsel had been contacted by Eric Letts, an Ottawa, Ontario lawyer acting for five Class Members, who had advised his clients that the distribution plan that had been approved by the courts in Ontario, British Columbia, and Québec contravened ss. 1 and 3 of the Human Rights Code, R.S.O. 1990, c. H.19 and that Mr. Letts’ clients intended to request damages pursuant to s. 46.1 of the Code and an amendment to the distribution plan.

6Mr. Foreman’s letter went on for some six pages to describe Class Counsel’s debate with Mr. Letts.

7Mr. Foreman’s letter ended with his advice that Class Counsel were prepared to convene a telephone conference in order to determine the way forward and asking that I advise about my availability.

8In response to Mr. Foreman’s letter, I directed my assistant Cindy Elphinstone to email Mr. Foreman with copies to Mr. Letts and Heather Rumble Peterson, who is also of Class Counsel, the message that I was not prepared to deal with the matter by a telephone conference but should counsel wish, a motion could be brought on short notice for May 19, 22, 25, or 28, 2015.

9None of the parties brought a motion, and on May 20, 2015, I received by email a five-page letter from Mr. Letts in follow up to Mr. Foreman’s letter of May 5, 2015 and purporting to be written “with the understanding that this letter, and the May 5th letter is not part of the case files or proceedings.” Mr. Letts advised that: “The pending issue is not yet before the Court and it is my clients’ prerogative and right to prosecute their case as they choose and in accordance with the Rules of [Civil] Procedure.”

10That said, Mr. Letts then went on for five pages to argue the matter that was not yet before the Court.

11Mr. Letts ended his letter by advising that no progress or procedural progress had been made despite the hard work, time and energy spent communicating between counsel and that if I wished I could participate in an informal and preliminary teleconference between counsel with respect to moving this issue forward and that would be useful and appreciated.

12The next correspondence, which was sent on May 20, 2015 was an email message sent by Mr. Foreman written to Ms. Elphinstone and copied to Mr. Letts and Ms. Peterson, which Ms. Elphinstone forwarded to me. Mr. Foreman told Ms. Elphinstone that “we are prepared to have a reporting case conference on the status of Mr. Letts’ complaint.” Then, Mr. Foreman pointed out to Ms. Elphinstone the many areas of disagreement Class Counsel had with Mr. Letts and he told her what was wrong with Mr. Letts’ opinion and about his suggestions about how to resolve the alleged problem with the distribution plan. Mr. Foreman ended his message to Ms. Elphinstone by telling her that: “If the court would like us to appear, we are prepared to do so to explain further and to answer any questions the court may have.”

13Mr. Foreman’s correspondence with Ms. Elphinstone apparently encouraged Mr. Letts to write her again on May 21, 2015, although he told her that “these letters to the presiding Judge are unusual from my litigation experience” and that he was uncomfortable with respect to the “procedural off-roading”. That said, while reserving his rights, Mr. Letts went on for two pages with a contribution “on the basis that it is outside the formal proceeding.” Mr. Letts concluded by repeating that he was open to participating in a preliminary process as previously discussed.

14I do not know what procedural planet the parties think they are living on, but it is not one known to me. In any event, the process or procedure adopted by the parties to deal with a possibly serious legal problem is inappropriate for a superior court of record and I do not approve of it. I order it to stop.

15However, having been brought to the court’s attention, the matter of the alleged contravention of the Human Rights Code must be addressed. I, therefore, order Class Counsel within 14 days of these Reasons for Decision to serve and file a notice of motion and supporting affidavit material for a motion for directions.

16I schedule the hearing of the motion for July 24, 2015, which should provide Mr. Letts’ clients sufficient time to deliver responding material and for the completion of any cross-examinations and the exchange of factums.

17Order accordingly.

Perell, J.

Released: May 25, 2015

CITATION: Eidoo v. Infineon Technologies AG, 2015 ONSC 3282

COURT FILE NO.: 05-CV-4340

COURT FILE NO.: 10-CV-15178CP

DATE: 20150525

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

KHALID EIDOO and CYGNUS ELECTRONICS CORPORATION

Plaintiffs

– and –

INFINEON TECHNOLOGIES AG, INFINEON TECHNOLOGIES CORPORATION, INFINEON TECHNOLOGIES NORTH AMERICA CORPORATION, HYNIX SEMICONDUCTOR INC., HYNIX SEMICONDUCTOR AMERICA INC., HYNIX SEMICONDUCTOR MANUFACTURING AMERICA, INC., SAMSUNG ELECTRONICS CO., LTD., SAMSUNG SEMICONDUCTOR, INC., SAMSUNG ELECTRONICS AMERICA, INC. SAMSUNG ELECTRONICS CANADA INC., MICRON TECHNOLOGY, INC. MICRON SEMICONDUCTOR PRODUCTS, INC. o/a CRUCIAL TECHNOLOGIES, MOSEL VITELIC CORP., MOSEL VITELIC INC. and ELPIDA MEMORY, INC.

Defendants

AND BETWEEN:

KHALID EIDOO and CYGNUS ELECTRONICS CORPORATION

Plaintiffs

– and –

HITACHI LTD., HITACHI AMERICA, HITACHI ELECTRONIC DEVICES (USA), HITACHI CANADA LTD., MITSUBISHI ELECTRONIC CORPORATION, MITSUBISHI ELECTRIC SALES CANADA INC., MITSUBISHI ELECTRIC & ELECTRONICS USA, INC., NANYA TECHNOLOGY CORPORATION, NANYA TECHNOLOGY CORPORATION USA, NEC CORPORATION, NEC CORPORATION OF AMERICA, NEC CANADA, RENESAS ELECTRONICS CORPORATION fka NEC ELECTRONICS CORPORATION, RENESAS ELECTRONICS AMERICA, INC. fka NEC ELECTRONICS AMERICA, INC., RENESAS ELECTRONICS CANADA LTD., TOSHIBA CORPORATION, TOSHIBA AMERICA ELECTRONICS COMPONENTS INC., TOSHIBA OF CANADA LIMITED, WINBOND ELECTRONICS CORPORATION AND WINBOND ELECTRONICS CORPORATION AMERICA

Defendants

REASONS FOR DECISION