Stewart McKelvey

CLASS ACTION REGIONAL OVERVIEW Court of Appeal allowed the appeal, finding that a distinction must be drawn between claims for dam- ages which rely on the decision of a tribunal and cases which seek to impugn tribunal decisions through ju- dicial review. The court remitted the matter back to the Trial Division to permit the plaintiffs to apply to amend their pleadings, after which time it would be determined whether a valid cause of action had been pleaded within the jurisdiction of the Supreme Court. In Gay v. Regional Health Authority 7, a 2009 decision of the New Brunswick Court of Queen's Bench, the court allowed an inquiry report con- ducted pursuant to an Order-in-Council of the Provincial Government to be admitted into evidence at the certification hearing. In Gay, it was alleged that a pathologist had made numerous errors. The action was brought on behalf of a proposed class of over 15,000 individuals whose tissue samples underwent pathology testing in the class period and whose samples were subsequently retested in light of concerns about the quality of the doctor's services. The inquiry report was prepared to investigate into the pathology services in question. In allowing the inquiry report to be introduced at the certification hearing, the court distinguished the 1998 Ontario Court of Justice decision in Robb Estate v. St. Jo- seph's Health Care Centre and noted that the object of the plaintiffs in introducing the inquiry report was not for the purpose of determination of liability but was instead principally relevant to a determination of the existence of common issues, to class definition and to the preferable procedure analysis. By decision released in March, 2012, the New Brunswick Court of Queen's Bench denied the plain- tiff's certification application in Gay. Although the court expressed concern with various aspects of the proposed action, including the claim for mental dis- tress, the principal basis of denying certification was the court's finding that proof of the alleged negli- gence could only be made on an individual basis. The court noted that any finding of negligence in an individual case could not be extrapolated to other cases and also noted that there is no legal duty of competency that would allow the plaintiffs to avoid having to prove negligence on an individual basis. The Nova Scotia Supreme Court certified a class action in 2011 in Crooks v. CIBC World Markets. In Crooks, approximately 100 people were involved in a particular series of option trades when a third party contractor of the defendant made a calculation error 6 SUMMER 2012 DOING BUSINESS IN ATLANTIC CANADA resulting in losses to a defined group. The defendant attempted to compensate the group by cancelling, at its expense, all trades from the date of the error, but this approach eradicated gains as well as losses. This method of compensation was unilaterally imposed by the defendant. The court certified the action notwith- standing the defence's argument that damages would be the principal issue requiring determination and would necessarily involve an individual assessment. The court noted that there were numerous common issues in respect of liability and that the defendant had not made an unequivocal admission of same. In MacQueen v. Sydney Steel Corporation, a 2011 decision of the Nova Scotia Supreme Court, an environ- mental class action related to the Sydney Tar Ponds was certified. The claim was made on behalf of current property owners and former property owners within a prescribed boundary, and alleged various causes of ac- tion, including nuisance, breach of fiduciary duty and strict liability. The remedies sought included property remediation, identification of health risks and medical monitoring, and did not include any claims for per- sonal injury. In allowing certification, the court did not fully accept the plaintiff's expert evidence concerning the proposed boundaries of property for the class. Going forward in Atlantic Canada, it will be in- teresting to review the findings in the first common issues trial in Newfoundland and Labrador in the case of Sundance Saloon v. Newfoundland and Lab- rador Liquor Corporation, in respect of which final arguments were concluded in January, 2012 and to see if further common issues trials occur. It will also be interesting to see if the Nova Scotia courts ever expressly consider their non-resident opt-out require- ment, where Nova Scotia is the only province in At- lantic Canada to arguably contemplate that residents of other provinces would have to actively opt-out of a class proceeding in Nova Scotia. Dan Boone Saint John's, NL 709.570.8879 dboone@stewartmckelvey.com Jonathan Dale Saint John's, NL 709.570.5795 jdale@stewartmckelvey.com

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