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w w w . C A N A D I A N L a w y e r m a g . c o m J u n e 2 0 1 4 45 in Canwest Publishing and the class action within that: Heather Robertson v. ProQuest Information and Learning Co., where Justice [Sarah] Pepall, then of the Superior Court, applied the test under each of the Class Proceedings Act and the CCAA, which are not all that dis- similar in terms of inquiring whether the settlement is fair and reasonable and whether it is beneficial to the stakehold- ers, says Osborne. "In both Robertson and Sino-Forest, the motions judge was cross-appointed under both the Class Proceedings Act and the CCAA for the purposes of the approval motion." The Class Proceedings Act says any plaintiff who doesn't like a settlement has the right to opt out and continue the claim. The problem with that — as Morawetz, the Court of Appeal, and now the SCC have confirmed — is that all claims in a CCAA are subject to compromise. "Really, when you think about it, it seems right to say that there's no princi- pled reason why a representative claim or class action claim should have any greater rights than any other creditor claim in a restructuring," adds Osborne. If, for example, Susan Smith brings a claim and the court can force a com- promise — which is the whole point of the CCAA — it doesn't seem right if her neighour brings a claim on behalf of herself and three friends that their claim would have some greater rights. It is still just a contingent claim caught up in the restructuring. There was another settlement in the Sino-Forest case before EY. The forest evaluator Poyry (Beijing) Consulting Co. Ltd., an arm of Finland-based global consultancy Poyry PLC, which did the valuations of the timber holdings for the company, had reached a settlement with the investor plaintiffs. In the course of that settlement under the Class Proceed- ings Act, there was an opt-out notice all claimants received. No one opted out. Laubman says in the case of EY, the SCC decision flowed out of principles that have become more fully formed in the CCAA context over the past several years. Particularly at the appeal court level, quite a bit of water had already gone under the bridge by the time the dissenters became active in the CCCA proceeding and that had an impact on the decision. "That's not uncommon or unusual with CCAA proceedings — you sit on the sidelines at your own risk," says Laubman. "I think this just reinforces the point that if there is a potential for there to be a detrimental impact on interest or rights the earlier you become involved or make your interest known the more like- ly they are to be fully taken into account." The SCC's decision settles the EY case but there are still ongoing class actions in play against other parties, says Staley. "We're not fully done but the CCAA plan is now fully implemented and all appeals dismissed and this settlement is fully approved so we're getting closer to the end but it's not all done." DIRECTOR Stephanie Ben-Ishai Associate Professor Osgoode Hall Law School Affi liated Scholar Davies Ward Phillips & Vineberg LLP Osgoode's Professional LLM in Bankruptcy & Insolvency Law REFLECTING ON YOUR SPECIALTY REFLECTS WELL ON YOU. Put the focus on what interests you most, with our Professional LLM in Bankruptcy & Insolvency Law. Taught by leading academics and top practitioners, this executive-style program offers you the unparalleled fl exibility to study with a network of your peers while working full-time. STUDY ON SITE AT OUR CONVENIENT DOWNTOWN TORONTO FACILITY, OR VIA VIDEOCONFERENCE – COURSES INCLUDE: > Perspectives on the Insolvency System > Lending, Security and Insolvency Law > Behavioural Economics > Reorganizations and Restructurings > Consumer Bankruptcy Issues and Policies > International Aspects of Bankruptcy and Insolvency > The Financial Services Industry and the Public Interest > American Bankruptcy Law Professional legal education the way it was meant to be. To learn more or to register for an Information Session, visit www.osgoodepd.ca today. A WORLD LEADER IN LAW SCHOOL LIFELONG LEARNING ntitled-1 1 14-05-16 8:06 AM

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