Court File and Parties
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: MARCY DAVID, BRENDA BROOKS and ANDREW BALODIS, Plaintiffs
– and –
LOBLAW COMPANIES LIMITED, GEORGE WESTON LIMITED, WESTON FOODS (CANADA) INC., WESTON BAKERIES LIMITED, CANADA BREAD COMPANY, LIMITED, GRUPO BIMBO, S.A.B. DE C.V., MAPLE LEAF FOODS INC., EMPIRE COMPANY LIMITED, SOBEYS INC., METRO INC., WAL-MART CANADA CORP., WAL-MART STORES, INC. and GIANT TIGER STORES LIMITED, Defendants
BEFORE: Justice E.M. Morgan
COUNSEL: Jay Strosberg, James Orr, and Kyle Taylor, for the Plaintiffs
Markus Kremer, Denes Rothschild, Linda Plumpton, and Sarah Whitmore, for the settling Defendants, George Weston Limited, Loblaw Companies Limited, Weston Foods (Canada) Inc. and Weston Bakeries Limited
HEARD: Motion in writing
NOTICE APPROVAL MOTION
1This action, along with a parallel action brought in Quebec, alleges a price fixing conspiracy in respect of packaged bread sold across Canada.
2On July 24, 2024, the Plaintiffs reached a settlement in principle with the Defendants, Loblaw Companies Limited, George Weston Limited, Weston Foods (Canada) Inc., Weston Bakeries Limited, Loblaws Inc. and Weston Food Distribution Inc. (collectively, “Loblaw”) for the national class (the “Settlement Agreement”). All claims relating to packaged bread that were made or that could have been made in the actions against Loblaw are included in the Settlement Agreement, and are proposed to be settled without admission of liability. The Settlement Agreement is subject to approval by the Superior Court in Ontario and the Superior Court in Quebec.
3If the Settlement Agreement is approved and so that it can be put into effect in accordance with its terms, the settlement amount of $500 million will be allocated 78% to the within Ontario action and 22% to the Quebec action. The settling Defendants will also provide significant co-operation to the Plaintiffs in their ongoing prosecution of the actions against the non-settling Defendants. The Plaintiffs and the newly defined Settlement Class Members will provide the settling Defendants with a full and final release of their claims.
4The Ontario action and Quebec action have each previously been certified or authorized. However, those orders are not precisely aligned with each other in respect of the purchasers included in the class or the length of the class periods. The Quebec class, as authorized, includes bread produced or retailed by any of the Defendants purchased between January 1, 2001 and December 19, 2019. The Ontario class, as certified, includes bread manufactured and produced by any Defendant that was sold by a Defendant retailer that was purchased between November 1, 2001 and December 31, 2021.
5The Parties have consented, for settlement purposes only, to an amended certification in Ontario, to: (i) expand the Ontario Settlement Class to include purchasers of packaged bread manufactured by the Defendant bakeries but purchased through a chain of commerce that did not include the Defendant retailers, and extend the start date of the Settlement Class Period to include all of 2001; and to, (ii) identify a Common Issue specific to the swettling Defendants.
6The Parties also propose a consent modification to the Quebec class period as set out in the Quebec action to impose an end date of December 31, 2021 for settlement purposes only, to be addressed by the court in Quebec.
7This court has authority under s. 8(3) of the Class Proceedings Act, 1992, SO 1992, c. 6 (“CPA”), to “amend an order certifying a proceeding as a class proceeding.” It likewise has authority under s. 12 of the CPA s. 12 to “make any order it considers appropriate respecting the conduct of a class proceeding to ensure its fair and expeditious determination and…may impose such terms on the parties as it considers appropriate.”
8The Plaintiffs seek an Order appointing themselves to represent the settlement class in Ontario. Each of them qualifies as a purchaser within the expanded Ontario Settlement Class. The Plaintiffs also seek an order extending the appointment of counsel in the Ontario action as Ontario Class Counsel for the expanded settlement class.
9In addition, the Plaintiffs seek orders establishing an opt-out procedure, an objection procedure, and a 45-day deadline by which members of the settlement class can exclude themselves from the Ontario action or object to or comment on the Settlement Agreement. This deadline is designed to accommodate scheduling in Ontario of a settlement approval hearing.
10The Settlement Agreement provides for the appointment of an Ontario Settlement Administrator and a Quebec Settlement Administrator. In addition, it provides for separate Notice Plans and separate Pre-Approval Notices.
11The large size of the settlement classes at issue in the two actions is an important consideration in retaining two separate administrations. Virtually every adult in Canada is a potential settlement class member; according to 2021 census data, this amounts to roughly 23.9 million claimants in Ontario and 7.1 million claimants in Quebec. The magnitude of the class and potential inquiries and claims that will be managed if the Settlement Agreement is approved will call for English speaking as well as French speaking administrators. Additionally, the administrator for the Ontario action that covers all of Canada except Quebec, must be capable of communicating with potential indigenous participants.
12Furthermore, the difference in the opt-out procedure required under the Quebec legislation and the CPA provides another important consideration in separating the administrations. The Pre-Approval Notice will be given first in Ontario. It will advise of the opt-out opportunity for all potential members of the settlement class who purchased packaged bread at any point throughout the 20-year Settlement Class Period. On the other hand, because the opt-out process has already run for the previously authorized Quebec class, the opt-out procedure to be run in connection with the Settlement Agreement in Quebec will only apply to first time purchasers of Packaged Bread in the two-year (2) period added to the Settlement Class Period for Quebec. The potential for confusion to potential class members is significantly reduced by having separate Pre-Approval Notices and Notice Plans.
13Class counsel in Ontario recommend RicePoint Administration Inc. dba Verita Global, an experienced Canadian notice and claims administrator, be appointed pursuant to the Settlement Agreement for the settlement class. This recommendation flows from, among other things, a combination of its: experience, track record, support systems, personnel, language capabilities (including English, French, and Indigenous), anti-fraud controls, pricing formula, and ability to satisfy the insurance requirements provided for in the Settlement Agreement. Class Counsel is of the view that Verita Global will provide effective, efficient and cost-effective administration of the Settlement Agreement.
14The Notice Plan recommended by Verita Global has been proposed by class counsel, reviewed by counsel for the Settling Defendants, and agreed to by the parties. It has been tailored to reach packaged bread purchasers in all of Canada outside of Quebec. The Notice Plan takes a multi-faceted approach. It includes a diverse electronic media campaign utilizing dedicated settlement websites, newswire, and electronic media, including Facebook, Google, national indigenous news/media sites and industry sites/publications. It also includes a targeted newspaper campaign directed at business purchasers; and a direct email campaign to members of the Ontario Settlement Class where contact information is available.
15Class counsel advises that it has employed similar approaches to notice successfully in other price-fixing cases and believes the proposed Ontario Notice Plan will provide broad-based and cost-effective notice to members of the Ontario Settlement Class.
16Pre-Approval Notices have also been proposed by class counsel. These have been reviewed by counsel for the Ontario Settling Defendants and agreed to by the parties. Thes Notices advise the class members of the principal elements of the Settlement Agreement. This includes the Distribution Protocol, the settlement certification, the date of the settlement approval hearing, along with their right to participate in that hearing, and their right to opt out or object to the Settlement Agreement. In my view, the Notices will provide the proposed class with an overview of information relevant to the proposed settlement and will direct those class members to obtaining any additional information should they need it.
17In addition, the order sought by the Plaintiffs includes an assurance that the rights and defences of the non-settling Defendants are not prejudiced by the settlement, together with an assurance that the rights of all parties are not prejudiced by the settlement in the event it does not become effective. The order also limits actions that may be brought against the parties and the various settlement service providers in the performance of their duties.
18Finally, the pre-approval Order will declare the proposed settlement null and void if the complementary pre-approval Order is not granted by the Superior Court of Quebec. I will also provide that the pre-approval Order sought here will be set aside if for any reason the Settlement Agreement does not become effective.
Disposition
19There will be an Order to go as submitted by class counsel and as reproduced in Schedule ‘A’ hereto.
Morgan J.
Date: February 28, 2025
SCHEDULE ‘A’
Court File No. CV-17-586063-00CP
ONTARIO
SUPERIOR COURT OF JUSTICE
THE HONOURABLE
FRIDAY, THE 28TH DAY
JUSTICE E. M. MORGAN
OF FEBRUARY, 2025
B E T W E E N:
MARCY DAVID, BRENDA BROOKS and ANDREW BALODIS
Plaintiffs
- and -
LOBLAW COMPANIES LIMITED, GEORGE WESTON LIMITED, WESTON FOODS (CANADA) INC., WESTON BAKERIES LIMITED, CANADA BREAD COMPANY, LIMITED, GRUPO BIMBO, S.A.B. DE C.V., MAPLE LEAF FOODS INC., EMPIRE COMPANY LIMITED, SOBEYS INC., METRO INC., WAL-MART CANADA CORP., WAL-MART STORES, INC. and GIANT TIGER STORES LIMITED
Defendants
Proceedings under the Class Proceedings Act, 1992
ORDER
(PRE-APPROVAL ORDER)
THIS MOTION made by the Ontario Plaintiffs for an “Order” amending the certification of the Ontario Action as a class proceeding for settlement purposes only as against Loblaw Companies Limited, George Weston Limited, Weston Foods (Canada) Inc., and Weston Bakeries Limited, approving the form and content of the Ontario Pre-Approval Notice and the Ontario Notice Plan for its dissemination and appointing the Ontario Settlement Administrator was heard this day in writing at Toronto, Ontario.
ON READING the materials filed, including the Settlement Agreement with the Settling Defendants dated January 31, 2025 attached to this Order as Appendix “A”;
AND ON HEARING the submissions of counsel for the Settling Parties, the Non-Settling Defendants taking no position;
AND ON BEING ADVISED that the Ontario Plaintiffs and the Ontario Settling Defendants (the “Settling Parties”) have agreed to a definition of the Ontario Settlement Class in respect of which amended certification is sought against the Ontario Settling Defendants for settlement purposes only;
AND ON BEING ADVISED that the Settling Parties consent to this Order and that the Non-Settling Defendants take no position:
THIS COURT DECLARES that, in addition to terms defined in this Order, for the purposes of this Order, the definitions set out in the Settlement Agreement apply to and are incorporated into this Order.
THIS COURT ORDERS that the certification of the Ontario Action as a class proceeding pursuant to section 5 of the Class Proceedings Act, 1992 on December 31, 2021 is amended as provided herein as against the Ontario Settling Defendants for settlement purposes only (the “Settlement Certification”).
THIS COURT ORDERS that for the purposes of this Settlement Certification, the Ontario Settlement Class is defined as:
All Persons resident anywhere in Canada, except Quebec, as of December 31, 2021, other than Excluded Persons, who between January 1, 2001 and December 31, 2021, inclusive, purchased Packaged Bread either directly or indirectly.
THIS COURT ORDERS that for the purposes of this Settlement Certification, the Ontario Plaintiffs, Marcy David, Brenda Brooks, and Andrew Balodis, are hereby appointed as the representative plaintiffs of the Persons included in the Ontario Settlement Class.
THIS COURT ORDERS that for the purposes of this Settlement Certification, Strosberg Wingfield Sasso LLP and Orr Taylor LLP are appointed as Ontario Class Counsel in the Ontario Action.
THIS COURT ORDERS that for the purposes of this Settlement Certification, the following issue is common to the Ontario Settlement Class:
Did the Ontario Settling Defendants, or any of them, engage in conduct that was contrary to section 45 of the Competition Act in effect from January 1, 2001 up to and including March 11, 2010, inclusive, and/or contrary to section 45 of the Competition Act in effect from March 12, 2010 up to and including December 31, 2021, inclusive, in respect of Packaged Bread? If so, what damages, if any, did members of the Ontario Settlement Class suffer?
THIS COURT ORDERS that members of the Ontario Settlement Class shall be given notice of the Settlement Certification of the Ontario Action against the Ontario Settling Defendants for settlement purposes only and of the Settlement Approval Hearings in Ontario in substantially the form set out in the Ontario Pre-Approval Notices Schedules “E1” and “E1.1” to the Settlement Agreement and in the manner set out in the Ontario Notice Plan Schedule “F1” to the Settlement Agreement.
THIS COURT ORDERS that RicePoint Administration Inc. dba Verita Global is hereby appointed Ontario Settlement Administrator for the purposes of accomplishing the tasks that devolve to them pursuant to the Settlement Agreement with respect to the Ontario Settlement Class.
THIS COURT ORDERS that: (i) Ontario Class Counsel disclose to the Ontario Settlement Administrator the list of putative Class Members that have provided contact information to them, including their last known email address; and (ii) the Loblaw Card Program Administrator disclose to the Ontario Settlement Administrator available contact information for putative Class Members who received a Card Program Payment under the Loblaw Card Program, including their last known email address where available, in order to facilitate the distribution of Ontario Pre-Approval Notices and/or the implementation of the Ontario Settlement Approval Order and the Settlement Agreement, including the implementation and administration of the Distribution Protocol and claims process, and for no other purpose.
THIS COURT ORDERS that the Ontario Settlement Administrator shall maintain confidentiality over and shall not share the information provided pursuant to this Order with any other Person, unless doing so is strictly necessary for executing the Ontario Notice Plan in accordance with this Order and/or implementing the Ontario Settlement Approval Order and the Settlement Agreement, including the claims process, and for no other purpose.
THIS COURT ORDERS that the Ontario Settlement Administrator shall use the information provided to it pursuant to this Order for the sole purpose of executing the Ontario Notice Plan in accordance with this Order and/or implementing the Ontario Settlement Approval Order and the Settlement Agreement, including the claims process, and for no other purpose.
THIS COURT DECLARES that this Order constitutes an order compelling the production of the information from Ontario Class Counsel, the Ontario Settling Defendants and the Loblaw Card Program Administrator within the meaning of applicable privacy laws, and that this Order satisfies the requirements of all applicable privacy laws.
THIS COURT DECLARES that Ontario Class Counsel, the Ontario Settling Defendants and the Loblaw Card Program Administrator are each released from any and all obligations pursuant to applicable privacy laws and regulations in relation to the communication and use of any personal and/or private information to and by the Ontario Settlement Administrator.
THIS COURT ORDERS that no Person may bring any action or take any proceedings against the Ontario Settlement Administrator or the Trustee or any of their employees, agents, partners, associates, representatives, successors or assigns for any matter in any way relating to the implementation of the Ontario Settlement Approval Order and the Settlement Agreement or to the implementation and administration of the Distribution Protocol and the claims process or the investment, distribution, or administration of the Settlement Payment, other than for liabilities as a result of the Ontario Settlement Administrator’s or the Trustee’s own actual fraud, dishonesty or negligenceand only with the leave of this Court.
THIS COURT ORDERS that no Person may bring any action or take any proceedings against Ontario Class Counsel or any of their employees, agents, partners, associates, representatives, successors or assigns for any matter in any way relating to the communication of any personal and/or private information to the Ontario Settlement Administrator, the implementation of the Ontario Settlement Approval Order and the Settlement Agreement, the implementation and administration of the Distribution Protocol and the claims process including, but not limited to, in relation to fraudulent claims under the claims process, or the investment, distribution, or administration of the Settlement Payment including, but not limited to, Trustee fees, other than for liabilities as a result of Ontario Class Counsel’s own willful or fraudulent misconduct and only with the leave of this Court.
THIS COURT ORDERS that no Person may bring any action or take any proceedings against the Settling Defendants or any of their employees, agents, partners, associates, representatives, successors or assigns for any matter in any way relating to the communication of any personal and/or private information to the Ontario Settlement Administrator, the implementation of the Ontario Settlement Approval Order and the Settlement Agreement, the implementation and administration of the Distribution Protocol and the claims process including, but not limited to, in relation to fraudulent claims under the claims process, or the investment, distribution, or administration of the Settlement Payment including, but not limited to, Trustee fees, other than for liabilities as a result of the Settling Defendants’ own willful or fraudulent misconduct and only with the leave of this Court.
THIS COURT ORDERS that no Person may bring any action or take any proceedings against the Loblaw Card Program Administrator or any of its employees, agents, partners, associates, representatives, successors or assigns for any matter in any way relating to the communication of any personal and/or private information to the Ontario Settlement Administrator, the implementation of the Ontario Settlement Approval Order and the Settlement Agreement, the implementation and administration of the Distribution Protocol and the claims process including, but not limited to, in relation to fraudulent claims under the claims process other than for liabilities as a result of the Loblaw Card Program Administrator’s own willful or fraudulent misconduct and only with the leave of this Court.
THIS COURT ORDERS that any potential member of the Ontario Settlement Class who wishes to opt out of the Ontario Action must do so by sending a signed written election to opt out, together with the information required in the Settlement Agreement, to the Ontario Settlement Administrator as directed in the Ontario Pre-Approval Notice to be received on or before midnight PST on the Opt-Out Filing Deadline, which shall be forty-five days (45) after the first publication of the Ontario Pre-Approval Order.
THIS COURT ORDERS that any member of the Ontario Settlement Class who timely and validly opts out of the Ontario Action is not bound by the Settlement Certification and will cease to be a class member in the Ontario Action that is continuing against the Non-Settling Defendants.
THIS COURT ORDERS that any member of the Ontario Settlement Class who does not timely and validly opt out of the Ontario Action is bound by the Settlement Certification against the Ontario Settling Defendants for settlement purposes only.
THIS COURT ORDERS that any member of the Ontario Settlement Class who wishes to object to the Settlement Agreement must do so by sending a signed written objection, together with the information required in the Settlement Agreement, to the Ontario Settlement Administrator as directed in the Ontario Pre-Approval Notice to be received on or before midnight PST on the Objection Filing Deadline, which shall be the same date as the Opt-Out Filing Deadline.
THIS COURT ORDERS that the Settlement Approval Hearing to consider approval of the Settlement Agreement in the Ontario Action shall be held on May 5, 2025, at 10:00 a.m. at Osgoode Hall, Toronto, Ontario, Courtroom #5, and if directed, by video conference at a link to be provided by this Court in due course.
THIS COURT ORDERS AND DECLARES that the date and time of the Settlement Approval Hearing in the Ontario Action shall be set forth in the Ontario Pre-Approval Notice but may be adjourned by this Court without further notice to the Ontario Settlement Class Members, other than such notice as may be posted on the websites of the Ontario Settlement Administrator and Ontario Class Counsel.
THIS COURT ORDERS AND DECLARES that if the Settlement Agreement is not approved, is terminated in accordance with its terms, or otherwise fails to take effect for any reason, this Order, including the Settlement Certification against the Ontario Settling Defendants for settlement purposes only, shall be set aside and declared null and void and of no force or effect on subsequent motion made on notice to the Ontario Plaintiffs and any Person is estopped from asserting otherwise and notice of the termination of the Settlement Agreement and the setting aside of Settlement Certification shall be given to the Ontario Settlement Class upon such order becoming a Final Order.
THIS COURT ORDERS AND DECLARES that this Order, including but not limited to the Settlement Certification of the Ontario Action as against the Ontario Settling Defendants for settlement purposes only and the definition of the Ontario Settlement Class and the Common Issue, and any reasons given by the Ontario Court in connection with this Order, are without prejudice to the rights and defences of the Non-Settling Defendants in the Ontario Action and, without restricting the generality of the foregoing, may not be relied on by any Person to establish jurisdiction, the criteria for certification (including class definition) or the existence or elements of the causes of action asserted in the Ontario Action, as against the Non-Settling Defendants.
THIS COURT ORDERS AND DECLARES that this Order is contingent upon the Quebec Pre-Approval Order being made by the Quebec Court in the action commenced by James Govan filed in Quebec Court, Court File No. 500-06-000888-178 (Montreal), and the terms of this Order shall not be effective unless and until such order is approved by the Quebec Court. If such order is not secured in Quebec, this Order shall be null and void without prejudice to the rights of the Ontario Plaintiffs to proceed with the Ontario Action and any agreement between the Ontario Plaintiffs and the Ontario Settling Defendants incorporated into this Order shall be deemed in any subsequent proceedings to have been made without prejudice.
Morgan, J.