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A few year-end thoughts about not being frozen in the dark

  • Letter from Law Law Land
Written by Posted Date: December 30th, 2013
b_150_0_16777215_00___images_stories_01-CANADIANLawyer_Columnists_tonywilson.jpgAs I hastily write this from warm, tropical Cabo San Lucas, there are 14 e-mails in my inbox from friends and colleagues from Toronto telling me about the Great Ice Storm that covered the city and the fact they’ve all been without power for 75 hours. Some checked into nearby hotels for Christmas, presumably hotels with enough power to warm them up, give them light, and cook a turkey. I can only imagine what Stuart McLean will do to update “Dave Cooks A Turkey” when he does his Christmas story for 2014.

Video: Making Rain: Another milestone year

Written by Posted Date: December 30th, 2013

b_150_0_16777215_00___images_stories_01-CANADIANLawyer_2013_December_Making_Rain_46.jpgIn the last episode of 2013, executive coach Debra Forman takes stock of the year’s accomplishments, milestones, and all of those opportunities for better business development and practice management practices.

Out with the old in with the new (maybe)

  • Definitely Mabey
Written by Posted Date: December 16th, 2013
b_150_0_16777215_00___images_stories_01-CANADIANLawyer_Columnists_Stephen-Mabey-2013.jpgDuring 2013 we talked about a number of challenges including:

Managing and conducting common issues trials

  • Class Acts
Written by Posted Date: December 16th, 2013
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.

Technology etiquette for lawyers

  • David Paul’s Field Notes
Written by Posted Date: December 16th, 2013
I was recently discussing a file with my articling student when his cellphone beeped with a text message. While I continued to speak, he read it and texted back. I was compelled to ask him: “Haven’t your parents taught you proper technology etiquette?” Before he could answer, I received an e-mail while sitting at my desk. While he was talking with me, I looked to my screen and began reading the e-mail.

The benefits of giving back

  • Trial by Fire
Written by Posted Date: December 16th, 2013
b_150_0_16777215_00___images_stories_01-CANADIANLawyer_Columnists_lindsay_scott.jpgDecember brings to my mind plenty of food, time for family and friends, and the season of giving. In this spirit of giving and gratitude for what we have, I’ve written before about my belief that lawyers have an obligation to use our skills for the benefit of our communities, in addition to our law practices.

Naming and shaming of international human rights abuses

  • Human Rights . . . Here & There
Written by Posted Date: December 9th, 2013
b_150_0_16777215_00___images_stories_01-CANADIANLawyer_Columnists_sonyanigam.jpgWith the widespread reporting that our 24-hour news cycle allows, as well as citizen videos and distribution of information through social media, it is hard to deny the occurrence of human rights abuses when they arise. We see the images and hear the sounds, often reported only a few hours after they have taken place — apartment buildings torn apart, maimed children in hospitals, women crying in despair, reports of terror and repression.

George Miller’s secret to being the best lawyer (you can be)

  • Accidental Mentor
Written by Posted Date: December 9th, 2013
b_150_0_16777215_00___images_stories_01-CANADIANLawyer_Columnists_lee-akazaki-revised.jpgAs I headed to my office, George pulled me aside and introduced me to a man whose face seemed familiar. ‘Lee, have you met Eric?’ he asked. ‘Eric is the worst lawyer in town. Eric, meet Lee, the best lawyer in town.’

Lessons to be learned from LSUC v. Groia

  • Trials & Tribulations
Written by Posted Date: December 9th, 2013
b_150_0_16777215_00___images_stories_01-CANADIANLawyer_Columnists_margaret-waddell.jpgWhen does zealous courtroom advocacy cross the line into incivility? And when does that incivility cross over to professional misconduct? The Law Society of Upper Canada has been grappling with these issues in a case that has held the attention of Ontario lawyers for nigh on a decade.

Do clients really hate billable hours?

Written by Posted Date: December 2nd, 2013
b_150_0_16777215_00___images_stories_01-CANADIANLawyer_Standard_photos_B.Hendrickson.jpgLawyers have a love-hate relationship with the billable hour. As it turns out so do our clients.
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