Welcome and Introduction

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

Top 10 Canadian Class Actions Decisions of the Past Year

Moderator
The Hon. Justice Peter A. Cumming
Ontario Superior Court of Justice
Panellists
John A. McKiggan, Arnold Pizzo McKiggan, Halifax
Robert W. Leurer, QC, MacPherson Leslie & Tyerman LLP, Regina
Margaret L. Waddell, Paliare Roland Rosenberg Rothstein LLP
David B. Williams, Harrison Pensa LLP, London, Ontario

The Class Actions Trial: How Does it Work?

Moderator
The Hon. Justice Joan L. Lax
Ontario Superior Court of Justice
Panellists
Kirk M. Baert, Koskie Minsky LLP
Wendy Matheson, Torys LLP

• What are the special rules for a common issues trial?
• The representative plaintiff as a witness at trial
• The impact of the pleadings and certification order
• The role of the aggregated damages regime at trial
• Is a common issues trial any different, or should it be?

Refreshment Break

National Classes Conundrum: The Search for a Solution

Moderator
Professor Peter W. Hogg, QC, Osgoode Hall Law School Scholar in Residence, Blake, Cassels & Graydon LLP

Professor Hogg will moderate this panel, and will make an opening statement on the constitutionality of national class actions.

Panellists
Harvey T. Strosberg, QC, Sutts, Strosberg LLP
Craig E. Jones, Counsel, Ministry of Attorney General British Columbia
Sylvie Rodrigue, Ogilvy Renault LLP, Toronto and Montréal

• Are there problems with the ULCC proposal?
• If so, what are the required adjustments?
• Should we resign ourselves to provincial watertight compartments?
• Contributions from the floor: symposium attendees to give their views

Networking Luncheon

Does the Certification of the Price-Fixing Cases Signal a New World?

Moderator
The Hon. Justice George R. Strathy
Ontario Superior Court of Justice

Panellists
Charles M. Wright, Siskinds LLP, London, Ontario
David W. Kent, McMillan LLP

• Has waiver of tort gone from “not clearly bound to fail” to an accepted basis of liability?
• Vigilante (civil) justice – has waiver of tort become a freestanding basis for liability to bystanders?
• Proof prorogued – how far have DRAM and HP lowered the evidentiary bar?
• How does a price-fixing litigation plan work if damages
  are not assessed in the aggregate?
• Disgorgement – practical implications of a non-compensatory remedy
• Do co-defendants in price-fixing cases have rights and contribution and indemnity? What are the consequences if they don’t?
• Should an amnesty applicant receive benefits applicable
  to follow-on civil litigation?

Class Action Discovery Strategies

Reidar Mogerman, Camp Fiorante Matthews, Vancouver

• How does discovery in class actions differ?
• When is discovery of class members allowed?
• How much discovery is too much?

Class Counsel Fees and Financing

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

Panellists
Peter L. Roy, Roy Elliott O’Connor LLP
Mary Jane Stitt, Blake, Cassels & Graydon LLP

• Balancing access to justice and a loser pays costs regime – certification costs since Pearson v. Inco
  
• Third party indemnification agreements and financing arrangements – policy implications and practical considerations
• Percentage contingency fees vs. multiplier – is there any difference in fact?
• Relevant factors in determining a fair and reasonable counsel fee? Are over-lawyering and over-compensation concerns justified?
• Post-certification fees and implementation/administration costs – separate costs headings or included in the court approved fees?
• When and under what circumstances is it appropriate for the parties to agree to have the defendant directly pay class counsels’ fees?
• Are there different considerations in fee approvals/settlements where class counsel fees are paid by the defendant and not from class recovery?

Settlement Structures and Processes

Moderator
The Hon. Justice André Prévost
Superior Court of Québec

Panellists
Mike Eizenga, Siskinds LLP, London, Ontario
Professor Catherine Piché, Université de Montréal Faculty of Law, Montréal

• Issues surrounding reversionary settlements
• The role of class counsel in the claims process
• The role of defence counsel in the claims process
• Crafting a claim process and selecting an administrator
• Cy prés as part of a settlement

Debunking Class Actions Myths: Plaintiff and Defence Counsel Speak Out

Larry P. Lowenstein, Osler, Hoskin & Harcourt LLP
Kirk M. Baert, Koskie Minsky LLP
Adrian C. Lang, Stikeman Elliott LLP
Harvey T. Strosberg, QC, Sutts, Strosberg LLP

• Certification is too easy nowadays
• Class actions don’t go to trial and plaintiffs don’t expect them to
• Cy prés distributions are like a tax and have no place in the civil litigation system
• Defendants delay cases and bring appeals to try and wear out plaintiffs and avoid the real issues being addressed
• Judges should manage class actions better to avoid this
• The real money in class actions is made on the defence side

Introduction to Day Two

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

Class Actions Ethics

Moderator
The Hon. Justice Paul M. Perell
Ontario Superior Court of Justice

Panellists
Ward K. Branch, Branch MacMaster
Barristers & Solicitors, Vancouver
Adrian C. Lang, Stikeman Elliott LLP

• Class counsel being asked/agreeing not to represent opt outs or others in related or similar actions
• Defence or plaintiff counsel contacting proposed class members, and the limits on those discussions
• Does class counsel have to agree to represent all class members in the individual issues phase? (relevant to adequacy of the representative plaintiff and the workability of the litigation plan)
• Conflicts of interest in settlement discussions – considering/discussing class counsel fees
• Does class counsel have ethical duties to proposed class members pre-certification?
• When should the defence have input about carriage motions and other class counsel fights?
• Ethical limits on efforts to get clients
• Is the ethical issue a plaintiff or defendant problem?
• Revisiting Lepine: are there ethical concerns in settling claims in a national class action, where plaintiff’s counsel is not a member of one of the outside jurisdictions?

Securities Class Actions

Moderator
Tristram J. Mallett, Osler, Hoskin & Harcourt LLP, Calgary

Panellists
Alan D’Silva, Stikeman Elliott LLP
Dimitri Lascaris, Siskinds LLP, London, Ontario

• Imax securities class action
  - the threshhold for the granting of leave
  - the certification of a global class
  - the certification of the common law misrepresentation claims
• AIG securities class action
  - the jurisdictional/forum non conveniens motion
• The disclosure of D&O insurance policies in the
  pre-certification phase of a securities class action

The Present Québec Situation: Where Do We Stand Now?

Moderator
The Hon. Justice Louis Lacoursière
Superior Court of Québec

Panellists
Daniel Belleau, Belleau Lapointe LLP, Montréal
Silvana Conte, Osler, Hoskin & Harcourt LLP, Montréal

• Has Québec lost its status as the “class action paradise”?
• A general overview of the most important new trends in Québec from the plaintiff and defendant’s respective points of view
• Has the Québec Court of Appeal been tightening the rules for authorization (certification)?
• The common law preferable procedure test – has it been imported as a 5th criteria in Québec?
• Articles 4.1 and 4.2 of the Code of Civil Procedure: has it changed the way to approach authorization? The practical outcomes of the decision of the Supreme Court of Canada in Marcotte and Breslaw
• Does the class representative have to show interest/standing to sue each of the defendants in a multi-party class action?

Judical Panel: A View From the Bench

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

Panellists
The Hon. Chief Justice Robert Bauman
Supreme Court of British Columbia
The Hon. Justice Catherine L. Dawson
Court of Queen’s Bench of Saskatchewan
The Hon. Justice James P. Adams
Supreme Court of Newfoundland and Labrador
The Hon. Judge D. Brock Hornby,
U.S. District Judge District of Maine, Portland ME
The Hon. Justice Joan L. Lax
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 to: dthomas@osgoode.yorku.ca. We will pass on your questions in advance, ensuring that you will get the most out of this session.

Closing Address; Conference Concludes