Class Actions Statute 1995

FOOTNOTES

Footnote: 1 At page 210 of the 1977 Report.

Footnote: 2 At Volume I, page 291.


Footnote: 3 At page 100, 1988 Proceedings.


Footnote: 4 See Lauzon's article, "Lessons Learned and Experience Gained from Quebec Class Actions," in The Class Action Lawsuit ... One Year Later ... Legal, Procedural, Technical and Practice Issues, The Canadian Institute,

May 13, 1994.


Footnote: 5 While the drafters appreciate that "numerosity" has not quite made it into the Oxford Unabridged, it has become a term used extensively in the class action literature.


Footnote: 6 See also, Environment Committee of the Bay Inc. v. Alcan Electrolysis and Chemical Company Ltd., [1990] Q.L.R. 655 and Tremaine v. A.H. Robins Canada Inc., (30 October 1990), Quebec 200 - 09 - 000208 - 873 J.E. 90 - 1642 (C.A.). Both of these cases state common questions need

not predominate.


Footnote: 7 Quite recently, the Ontario Court of Justice, General Division, ruled on an appeal of the Abdool decision. Although a three judge panel upheld Montgomery J.'s decision to deny certification, Mr. Justice Moldaver disagreed with Mr. Justice Montgomery's interpretation of the "common questions" test. Moldaver
J. states that

I must respectfully disagree with Montgomery J.'s statement that the Act was not intended to be used in circumstances where the individual issues to be determined could be said to predominate the common issues. As will be seen, while I am of the view that individual issues ought not to be completely ignored when considering whether a "class proceeding would be the preferable procedure for the resolution of the common issues" as required under s. 5 (1) (d) of the Act, I cannot accept that the Legislature intended to incorporate the predominate issue test into the Act.

See, 21 O.R. (3d), at 471.


Footnote: 8 The possibility of granting representative status to certain legal persons may enable these groups to have negotiating power that benefits consumers and occasionally avoids the need for lawsuits. One example from Quebec illustrates this principle. In a letter addressed to the Fonds d'aide aux Recours Collectifs, the Automobile Driver Protection Association confirmed

that the threat of a class actions in Quebec had led to the resolution of two problems affecting many Canadian consumers. As of the fall of 1989, the Honda corporation stopped levying the $35 warranty transfer fee on its models. The APA showed that the resulting savings to consumers amounted to between $500,00 and $1 million per model-year. Similarly, in the summer of 1991, the Ford motor company introduced a program that saved owners of 1988 and 1989 Ford Tempos and Mercury Topazes with defective fuel pumps approximately $1 million. This program provided for an extension on the warranty on the pump as well as reimbursement for the repairs already undertaken by the consumer.


Footnote: 9 The phrase "seem to justify" has been interpreted by the Supreme Court of Canada to mean:

... there must be in the eyes of the judge a serious appearance of entitlement for which he wouldauthorize the action, without having to rule on the

merits in law of conclusions based on the facts presented.

; See, Quebec Regional Public Transit Users' Committee
; v. Quebec City Transit Commission, [1981] 1 S.C.R. 424.


Footnote: 10 The Courts have ruled on the intervention of a member of the group in Chateauneuf v. The Singer Company of Canada Ltd., [1990] Q.L.R. 216, and Fortier v. Attorney General of Quebec, 6 February 1991, Quebec, 200 - 06 - 000001 - 894, J.E. 91 - 575.


Footnote: 11 Section 32 directs the court to consider whether to require individual claims in order to apportion an aggregate award that is to be distributed individually.

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