Welcome and Introduction

Professor Emeritus Garry D. Watson, QC
Osgoode Hall Law School, York University

The Class Actions Trial – Myth or Monster?

Moderator
J.J. Camp, QC, Camp Fiorante Matthews, Vancouver

Panellists
Jonathan J. Foreman, Harrison Pensa LLP, London, Ontario
Larry P. Lowenstein, Osler, Hoskin & Harcourt LLP
The Hon. Justice Joan L. Lax, Ontario Superior Court of Justice

• Up-to-date summary on common issues trial activity across Canada
  
• Preparing for a common issues trial – organizational and case management considerations
  
• Trial process aspects which are unique to common issues trials
  
• Predictions about the future of common issues trial activity in Canada and the potential impact on class actions practice generally

Consent to Certification – When is it No Longer Worth Fighting?

Moderator
Kirk M. Baert, Koskie Minsky LLP

Panellists
The Hon. Chief Justice Warren K. Winkler, Ontario Court of Appeal
Sharon Strosberg, Sutts, Strosberg LLP
Michael A. Eizenga, Bennett Jones LLP

• When is it appropriate for a defendant to consent to certification?
  
• When is it inappropriate?
  
• Are there any advantages to doing so?
  
• Is the threshold for certification on consent lower than on a contested motion? If not, should it be?
  
• Should it matter that the consent certification is for settlement purposes?
  
• What is the role of the court on a consent certification?
  
• What materials should be before the court on such a motion?

Third Party Funding of Class Actions

Moderator
Ward K. Branch, Branch MacMaster, Barristers & Solicitors, Vancouver

Panellists
Raymond F. Wagner, Wagners, Halifax
Steve J. Tenai, Ogilvy Renault LLP

• The emergence of third party funding in Canada
  
• Are third party funding agreements permissible?
  
• Is there a need for third party funding?

- differences between provincial regimes impacting the

  case for third party funding
- does the Class Proceedings Fund render third party

  funding unnecessary?

• Key terms in funding agreements
  - funders' participation rights
  - compensation levels and structure
  - termination rights
  
• Court approval
  - should defendants be given notice and have standing
  

   to oppose?
- should any participation by defendants be limited?
- can court approval pre-certification bind putative

  class members?
- co-motions of fee arrangements and 3rd party funding

  approval

• Confidentiality
  - what terms, if any, of a funding agreement need confidentiality?
  - what terms must be disclosed by notice after certification?

Overtime Class Actions

Moderator
Ward K. Branch, Branch MacMaster, Barristers & Solicitors, Vancouver

Panellists
Peter L. Roy, Roy Elliott O’Connor LLP
Sylvie Rodrigue, Ogilvy Renault LLP

• Are the settled cases and the cases before the courts meeting the goals of the Class Proceedings Act?
  
• What benefits are employees generally receiving from the current crop of class actions and what should they receive?
  
• Are employers paying more attention to these issues than they were in the past and is that attention modifying behaviour?
  
• Will the doctrine of good faith performance of contracts be a useful tool in levelling the playing field between employers and employees?
  
• Overview of the employment cases in the US and Canada
  
• The Jurisdiction question - a Canadian issue
  
• Are we heading in the same direction as the US?

Managing Case Management

Moderator
Gordon McKee, Blake, Cassels & Graydon LLP

Panellists
Kirk M. Baert, Koskie Minsky LLP
Andrew Borrell, Fasken Martineau DuMoulin LLP, Vancouver
The Hon. Justice George R. Strathy, Ontario Superior Court of Justice

• What is and what isn't working with case management?
  
• What do counsel and case management judges want and expect from one another?
• How to get the most out of case management
  
• What should and should not be done in a case management conference?
  
• Realistic time lines for the management of a case
  
• Should case management judges impose deadlines, even if counsel don't request them?
  
• Can counsel and judges agree on some best practices?

Current Trends and Issues in Legal Fees

Moderator
Charles M. Wright, Siskinds LLP, London, Ontario

Panellists
E.F. Anthony Merchant, QC, Merchant Law Group LLP, Regina
Adrian C. Lang, Stikeman Elliott LLP
Professor Emeritus Garry D. Watson, QC, Osgoode Hall
Law School, York University

• What impact does going to the Fund (or an external funder)
  have on fees?
  
• How to handle the fee application in a national class action
  where cases are filed in multiple jurisdictions
  
• Is the multiplier dead and is that a good thing?
  
• How and when a defendant should pay the fees directly
  
• Should you be able to choose multiplier or percentage,
  whichever is higher?
  
• What happens when the numbers get too big – does a percentage still make sense? If so, how much?
  
• Should Courts ask to see retainer agreements in carriage battles?
  
• Law and economics – what are the right motivations?

Take-Up Rates: What Can Be Done to Improve Rates
and Their Disclosure?

Moderator
Kirk M. Baert, Koskie Minsky LLP

Panellists
Ward K. Branch, Branch MacMaster, Barristers & Solicitors, Vancouver
Stéphanie Poulin, Head of Legal Department
Option Consommateurs, Québec

• Are take-up rates too low?
  
• If so, how can they be improved?
  
• How can we make sure notices are read or heard?
  
• How can we make sure notices are understood?
  
• What role should judges play in pressing the parties to ensure reasonable take up rates?

Class Actions: More Than Your Usual Cost Issues

Moderator
Ward K. Branch, Branch MacMaster, Barristers & Solicitors, Vancouver

Panellists
Paul J. Evraire, QC, Special Counsel, Justice Canada
Celeste Poltak, Koskie Minsky LLP

• When can class counsel be held personally responsible for a defendant's costs?
  
• What can class counsel do to protect themselves personally from adverse cost awards ?
  
• When is consent to commence an action insufficient?
  
• What advice should class counsel give potential representative plaintiffs to protect them from costs?

Cy Près Awards and Access to Justice

Mark J. Sandler, Chair - Board of Trustees, Law Foundation of Ontario

Judicial Panel: A View from the Bench

Moderator
Charles M. Wright, Siskinds LLP, London, Ontario

Panellists
The Hon. Justice Dennis Thomas, Court of Queen’s Bench of Alberta
The Hon. Justice Elliott Myers, Supreme Court of British Columbia
The Hon. Chief Justice François Rolland, Superior Court of Québec
The Hon. Justice Lynne C. Leitch, Ontario Superior Court of Justice

This is an opportunity for symposium participants to put their questions to an experienced panel of judges. Participants can also email their questions in advance. We will pass on your questions ensuring that you will get the most out of this session.

Welcome to Day Two

Professor Emeritus Garry D. Watson, QC
Osgoode Hall Law School, York University

Class Actions Ethics

Moderator
Gavin MacKenzie, Heenan Blaikie LLP

Panellists
Dimitri Lascaris, Siskinds LLP, London, Ontario
Brad W. Dixon, Borden Ladner Gervais LLP, Vancouver
Katherine L. Kay, Stikeman Elliott LLP

• Conduct of settlement negotiations
  
• Boundaries on efforts to recruit a representative plaintiff
  
• Delay tactics by defence counsel
  
• Gathering evidence from former employees of a corporate defendant
• Reconciliation of duties to the class and to the representative plaintiff where conflicts arise
  
• Obligations to represent individual claimants after the common issues trial

Securities Class Actions

Moderator
The Hon. Justice Helen A. Rady, Ontario Superior Court of Justice

Panellists
Michael G. Robb, Siskinds LLP, London, Ontario
Peter Griffin, Lenczner Slaght Royce Smith Griffin LLP

• Imax, Gammon Gold – where are they now?
  
• Part XXIII.1 of the Securities Act: after 5 years in force
  - does it need to be refreshed?
  
• What are the implications for Canadian securities class actions of the decision of the Supreme Court of the United States in Morrison v. National Australia Bank?

Franchise Law and Class Actions

Moderator
Thomas G. Heintzman, OC, QC, McCarthy Tétrault LLP

Panellists
Geoffrey B. Shaw, Cassels Brock & Blackwell LLP
David Sterns, Sotos LLP

• Unique challenges in franchise class actions: the ongoing relationship
  
• Limits on settlement discussions with franchisees
  
• New causes of action in franchise disputes
  
• Plaintiff and Defence strategies for certification and beyond
  
• Interplay between class actions and the right of association
  and duties of fair dealing under franchise legislation
  
• Resolving system-wide franchise disputes

National Class Update

Moderator
Marie Audren, Borden Ladner Gervais LLP, Montréal

Panellists
Laurent Nahmiash, Fraser Milner Casgrain LLP, Montréal
Robert Hawkes, Jensen Shawa Solomon Duguid Hawkes LLP, Calgary
Robert W. Leurer, QC, MacPherson Leslie & Tyerman LLP, Regina

• Recent decisions and trends
  
• New legislation in Alberta
  
• Update on the CBA National Class Action Task Force
  
• Recognition of judgments from other jurisdictions
  
• Is Québec open to the national class?
  
• Pros and cons of national class actions