Kirk Baert

Kirk Baert

Kirk M. Baert is is a partner at Koskie Minsky LLP in Toronto and a member of the firm’s executive committee. His practice focuses on plaintiff-side class actions. He can be reached at kbaert@kmlaw.ca.

Column: Class Acts
Monday, 27 October 2014 08:00

De novo certification hearings on appeal

b_150_0_16777215_00___images_stories_01-CANADIANLawyer_Columnists_kirkbaertnew2013.jpgIn August, the Ontario Divisional Court released its decision in Sherry Good v. Toronto Police Services Board, in which it found the elements required for certification had been met on appeal, reversing an earlier certification refusal in these G-20 class actions. This is despite the fact “[t]he proposed class action, as presented on this appeal, was markedly different from the proposed class action that was considered by the motion judge.”
b_150_0_16777215_00___images_stories_01-CANADIANLawyer_Columnists_kirkbaertnew2013.jpgLast month, the Supreme Court of Canada released a decision in which it held that a representative plaintiff in a class action need not have a cause of action against each named defendant, as long as members of the class held a cause of action against each named defendant.
b_150_0_16777215_00___images_stories_01-CANADIANLawyer_Columnists_kirkbaertnew2013.jpgThe plaintiff’s securities class action bar takes on substantial risk when they bring a claim seeking leave under Part XXIII.1 of the Ontario Securities Act. Often, all counsel knows is there has been some wrongdoing at a company that has led to a dramatic decline in the price of a share. The diligent counsel reviews the company’s historic public disclosure, wherein the company’s health has been, without fail, viewed through rose-coloured glasses. Once the corrective disclosure occurs, the security’s value tumbles down to earth and investors are left holding the bag.
b_150_0_16777215_00___images_stories_01-CANADIANLawyer_Columnists_kirkbaertnew2013.jpgThe Class Proceedings Act,1992 was intended to promote access to justice. To do so, it incentivizes lawyers to undertake class actions with contingency fee agreements and the availability of premium fee awards. However, if class counsel are not adequately and consistently provided an amount that fairly compensates them for the seriousness of the risks undertaken over the course of many years, the purpose of the legislation as set out by the framers of the act will not be achieved.
b_150_0_16777215_00___images_stories_01-CANADIANLawyer_Columnists_kirkbaertnew2013.jpgLast month, Ontario Superior Court Justice Paul Perell varied class counsel’s recommendation to distribute a cy-près award in its entirety to the Access to Justice Fund operated by the Law Foundation of Ontario. Instead, as a result of a University of Ottawa faculty member’s request to the court, 20 per cent of this award was donated to the Telfer School of Management at the University of Ottawa.
Monday, 28 April 2014 08:00

Is the docket dead for class counsel?

b_150_0_16777215_00___images_stories_01-CANADIANLawyer_Columnists_kirkbaertnew2013.jpgA 13-paragraph decision of Justice Edward Belobaba in Cannon v. Funds for Canada Foundation may kill the docket for class counsel in Ontario.
Monday, 24 March 2014 09:15

Wal-Mart coming to Canada. Sorry, no.

b_150_0_16777215_00___images_stories_01-CANADIANLawyer_Columnists_kirkbaertnew2013.jpgIn Wal-Mart Stores Inc. v. Dukes, the Supreme Court of the United States held that in order for class certification to be granted, judges must undertake a “rigorous analysis.” Of course, judicial analysis should be rigorous so we know the court must have meant something else. It turns out it did.
Monday, 24 February 2014 08:00

Court of Appeal rights its own wrong

b_150_0_16777215_00___images_stories_01-CANADIANLawyer_Columnists_kirkbaertnew2013.jpgIn a stunning reversal, a five-judge panel of the Ontario Court of Appeal reversed its decision in Sharma v. Timminco Ltd. where it just recently held that the three-year limitation period for bringing a statutory claim for misrepresentation in respect of shares trading in the secondary market could not be suspended until a court had granted leave to commence the claim.
Monday, 27 January 2014 08:00

The Hollick approach is here to stay

b_150_0_16777215_00___images_stories_01-CANADIANLawyer_Columnists_kirkbaertnew2013.jpgIn October 2001, the Supreme Court of Canada advocated a liberal and flexible construction of the Ontario Class Proceedings Act, 1992 in Hollick v. Toronto (City). In particular, Chief Justice Beverley McLachlin, on behalf of the court, held the CPA is to be “construed generously” in a manner that gives “full effect to the benefits foreseen by the drafters” — the Hollick approach.
Monday, 16 December 2013 08:00

Managing and conducting common issues trials

The Class Proceedings Act, 1992, has been in force since Jan. 1, 1993. In those 20-plus years, Ontario has had a handful of class actions reach the trial stage each year. Ontario’s experience is typical of other common law jurisdictions that have also had few class actions proceed to a common issues trial, but stands in contrast to Quebec’s experience, where class action trials have become the norm.

The common issues on which a judgment is rendered will not necessarily be the same common issues that were certified. Changes are often made to the common issues list as a result of matters that arise during discoveries as well as other stages of the action, even as late as the last days of a common issues trial.

In 2004’s Cloud v. Canada (Attorney General), the Ontario Court of Appeal recognized the need to accommodate amendments, stating:  “. . . the Act provides for flexibility and adjustment at all stages of the proceeding . . . any potential efficiency in advancement of their claims through the flexibility provided by the Act should, where reasonable, be utilized.”

Jurisdiction for courts to amend common issues arises from both the CPA and Ontario’s Rules of Civil Procedure. Under the CPA, s. 8(3) provides the court with jurisdiction to amend certification orders. In addition, s. 12 provides that on the motion of a party or class member, the court has jurisdiction to make any order it considers appropriate regarding the conduct of the proceeding in order to ensure its fair and expeditious determination.

Finally, since the Rules of Civil Procedure apply to class proceedings, Rule 26.01 regarding amendments to pleadings also applies. The rule provides that a court shall grant leave to amend a pleading at any stage of an action unless prejudice would result that could not be compensated for by costs or an adjournment.

In recognizing that, under Regulation 194 of the Rules, “certification is a fluid, flexible procedural process,” courts have allowed amendments that are relevant to the action, flow logically from the existing certification order, and do not fundamentally alter the nature of the action. These amendments can occur at various stages of the proceedings, even towards the end of the common issues trial.

In Smith v. Inco, the plaintiffs brought a motion to amend the common issues during the last days of the common issues trial. The motion was contested and the defendants also brought a cross-motion requesting another common issue to also be added. Justice J.R. Henderson granted both motions and the common issues list was amended to clarify semantic confusion and to reflect what had actually been argued at trial.

Both s. 12 of the CPA and Rule 26.01 were recently considered in Andersen v. St. Jude Medical Inc. In the late justice Joan Lax’s decision allowing the plaintiffs to amend the fresh statement of claim and the certification order to include waiver of tort issues, she dismissed the defendant’s arguments the amendments were late, fundamentally changed the action, and were prejudicial.

So long as amendments are relevant to the action, flow logically from the existing certification order, and do not fundamentally alter the nature of the action, the CPA and courts have recognized the complex nature of class actions and have allowed amendments to be made at various stages of the action.

Common issues trials also allow for aggregate assessments. Where no individual issues remain other than assessment of monetary relief, CPA s. 24 permits an aggregate assessment of monetary relief for the benefit of the entire class to be included in the relief granted.

The purpose of the section is to prevent inefficient and impractical individual proceedings in order to determine class members’ losses where the amounts can be more reasonably and fairly determined as a common question.

Where a court determines that individual claims need to be made in order to give effect to an order under s. 24(1), the CPA provides for the determination of individual claims with emphasis on minimizing the burden placed on class members. To accomplish this, s. 24(6) authorizes the court to make individual claim determinations through the use of standardized proof of claim forms, affidavit evidence as to damages, or auditing of claims on a sample or other basis.

In addition, the act expressly provides the court with the power to admit as evidence statistical information that would not otherwise be admissible in determining the appropriate aggregate award.

Section 23(3) further provides that statistical information may be admitted as evidence if notice is provided and the opposing party is provided with the opportunity to cross-examine the expert that supports the evidence.

The Ontario Court of Appeal has stated a finding of (i) liability and (ii) an entitlement to a remedy are sufficient to trigger the application of ss. 23 and 24 of the act.

b_150_0_16777215_00___images_stories_01-CANADIANLawyer_Columnists_kirkbaertnew2013.jpgIn Markson v. MBNA Canada Bank, a case involving illegal interests being charged for cash transactions on credit cards, Ontario Court of Appeal Justice Marc Rosenberg recognized the difficulty faced in assessing individual damages and approved the use of aggregate damages. In addition, as a result of the recordkeeping of the bank, the number of accounts and the small amount of damages owed to the class members, the court in Markson awarded an aggregate sum to class members even though it meant some class members who did not actually suffer damages shared in the award.
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