COURT FILE NO.: 59044CP

DATE: 20151113

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: The Fanshawe College of Applied Arts and Technology, Plaintiff

AND:

Hitachi, Ltd., Hitachi Asia, Ltd., Hitachi America, Ltd., Hitachi Displays Ltd., Hitachi Electronic Devices (USA), Shenzhen Seg Hitachi Color Display Devices Ltd., Hitachi Canada, Ltd., Irico Group Corporation, Irico Group Electronics Co. Ltd., Irico Display Devices Co., Ltd., LG Electronics, Inc., LG Electronics Taiwan Taipei Co. Ltd., LG Electronics USA, Inc., LG Electronics Canada, Panasonic Corporation F/K/A Matsushita Electric Industrial Co. Ltd., Panasonic Corporation of North America, Panasonic Canada Inc., Koninklijke Philips Electronics N.V., Philips Electronics Industries (Taiwan) Ltd., Philips Da Amazonia Industria Electronica Ltda, Philips Electronics North America Corporation, Philips Electronics Ltd., Samsung Electronics Co. Ltd., Samsung Electronics America Inc., Samsung Electronics Canada Inc., Samsung SDI Co., Ltd. (f/k/a Samsung Display Device Co.), Samsung SDI Brasil Ltda, Samsung SDI America, Inc., Samsung SDI Mexico S.A. De C.V., Shenzhen Samsung SDI Co. Ltd., Tianjin Samsung SDI Co., Ltd., Toshiba Corporation, Toshiba America Electronic Components Inc., Toshiba America Information Systems Inc., Toshiba of Canada Limited, Beijing Matsushita Color CRT Company, Ltd., Samtel Color, Ltd and MT Picture Display Co., Ltd., Defendants

BEFORE: Grace J.

COUNSEL:
C. Wright/L. Visser, for the plaintiff

E. Davis, for the defendants Panasonic Corporation et al.

J. Gotowiec, for the defendant Panasonic Canada Inc.

R. Kwinter, for the Samsung defendants

S. Forbes, for the defendant Bejing Matsushita Color

A. Maladwala, for the Toshiba defendants

HEARD: November 9, 2015

ENDORSEMENT

[1] Fanshawe College’s motion for an order certifying the action for settlement purposes against four defendants and for approval of a May 20, 2015 settlement agreement entered into with them was heard jointly in Ontario, Quebec and British Columbia (the “settlement approval motion”).

[2] Its motion for approval and payment of fees, disbursements and applicable taxes was heard jointly in Ontario and British Columbia immediately afterward (the “fee approval motion”). I will deal with the motions in turn.

A. Settlement Approval Motion

[3] The joint motion/application record included affidavits of solicitor Linda Visser and Fanshawe College employee David Smith, each sworn October 27, 2015.

[4] Ms. Visser’s affidavit addresses, in detail, the nature of this action, its procedural history, including an earlier $2 million court approved settlement with the Chunghwa defendants, comparable litigation commenced and settlement negotiated in the United States and criminal and regulatory proceedings.

[5] It also contains commentary concerning the cathode ray tube (“CRT”) industry and the alleged conspiracy to fix prices.

[6] Ms. Visser’s affidavit appends and summarizes the settlement agreement negotiated and then executed by the plaintiffs in the Canadian proceedings including Fanshawe College on the one hand and Panasonic Corporation, Panasonic Corporation of North America, Panasonic Canada Inc. and MT Picture Display Co., Ltd. (collectively the “Panasonic defendants”) on the other.

[7] Class counsel’s recommendation was also set forth along with detailed reasons.

[8] I have also reviewed Fanshawe College’s factum (actually filed on behalf of the plaintiffs in all three actions) and the statutory provisions and case authorities it referenced. I have placed particular reliance on Osmun v. Cadbury Adams Canada Inc. (2009), 85 C.P.C. (6th) 148 (Ont. S.C.J.) (“Osmun #1”), Vitrapharm Canada Ltd. v. Hoffman La-Roche Ltd. (2005), 2005 8751 (ON SC), 74 O.R. (3d) 758 (S.C.J.) and Osmun v. Cadbury Adams Canada Inc., 2010 ONSC 2643 aff’d 2010 ONCA 841, leave to appeal to the S.C.C. denied (“Osmun #2”).

[9] I am well satisfied that this action meets the test for certification solely for settlement purposes; Class Proceedings Act, 1992, S.O. 1992, c.6 (the “CPA”), s. 5(1); Osmun #1, supra at para. 21; Visser affidavit, paras. 42-49.

[10] I am also persuaded that the proposed settlement with the Panasonic defendants should be approved as s. 29(2) CPA requires, for the reasons set forth at para. 40(a) through (h) of the Visser affidavit.

[11] In my view, the proposed settlement is, after taking into account the considerations summarized in the plaintiffs’ factum at paras. 50 and 51, fair, reasonable and in the best interest of the class.

[12] The proposed settlement involves a significant dollar amount ($4.15 million) and other non-monetary benefits. It was negotiated by experienced counsel on both sides. I am fully satisfied that the proposed settlement involves the best compromise that was obtainable.

B. The Fee Approval Motion

[13] I have reviewed Ms. Visser’s affidavit sworn October 30, 2015 and the affidavit of David Smith sworn October 27, 2015. I have also reviewed the retainer agreement dated January 24, 2008. Same contemplated a contingency fee equal to 25 percent of amounts recovered, plus disbursements and applicable taxes.

[14] The motion seeks approval and payments of fees of $963,210.73 plus $338,524.22 for disbursements and interest (see para. 15 of Ms. Visser’s affidavit for the calculation).

[15] I am conscious of the fact that the retainer agreement was previously approved and that fee approval was obtained in respect of the Chunghwa settlement on an identical basis.

[16] I have also taken into account the matters set forth at paras. 17 through 22 of Ms. Visser’s affidavit and the factors set forth in Osmun v. Cadbury Adams Canada Inc., 2010 ONSC 2752 (S.C.J.) at para. 23.

[17] With respect to time alone, I note that counsel for the plaintiffs have docketed time having a value of approximately $645,000 since the Chunghwa settlement. While not all of that time would have related to the Panasonic defendants, it helps demonstrate the fact that the actions involve factual and legal complexity.

[18] Risks have been substantial and real. Recovery was difficult to gauge particularly in circumstances where the Panasonic defendants had not yet entered into a settlement in the United States when the deal brought to this court was negotiated.

[19] I should add that no one opposed either motion.

[20] In my view, the requested fees and disbursements are fair and reasonable in the circumstances. They are approved, as is their payment.

C. Disposition

[21] For the reasons given, the requested relief is granted. Orders (one approving the settlement and another approving the fees) are to issue as signed by me.

“Justice A. D. Grace”

Justice A. D. Grace

Date: Released November 13, 2015 (transcribed for publication April 23, 2018)