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LEGAL REPORT: LITIGATION Clarification or resolution from the courts about competing class actions across the country remains elusive. BY GL ENN KAUTH Carriage battles C lass action lawyers expected a case involving Canada Post might put an end to carriage battles and compet- ing claims, but a recent Supreme Court of Canada ruling has dashed hopes for more clarity on national classes. "The court did not address head-on the issue of national class," says Marie Audren, a partner in the commercial litigation group at Borden Ladner Gervais LLP in Montreal. At issue was the long-running case of Canada Post Corp. v. Lépine, a class action suit in which consumers went after the company over its promised $9.95-Internet-for-life package dating back to 2000. At the time, the dot-com bubble had the Crown corporation opti- mistic it could make money off the seem- ingly improbable Internet and e-mail package it was offering, but the ensu- ing market crash kiboshed those hopes. Within a year, it chose to discontinue the service, designed and created by Cybersurf Corp. Consumers and government agencies complained, and shortly afterwards, a series of competing class actions sprout- ed up across the country. In Quebec, Michel Lépine emerged as the represen- tative plaintiff on behalf of residents in that province who bought the package, while in Ontario Paul McArthur became the face of a similar action purport- ing to involve "any person in Canada" who purchased it. In British Columbia a class action suit filed by John Chen only affected residents on that province. The situation was ripe for jurisdic- tional conflict, a situation that came to pass in 2003 when Canada Post and lawyers for McArthur reached a settle- ment that would see the Crown corpo- ration refund consumers their $9.95 in exchange for the CD-ROMs they had received to use the service. As well, they would actually get Internet service free for three months. In December of that year, an Ontario judge approved the deal and, in what other courts found to be a strange move, expanded it to include class members in all provinces except British Columbia. Lawyers for Lépine, meanwhile, wrote to the court express- ing their objection to the agreement and asking the judge to leave out Quebec residents. The Ontario court declined to do so, a move that landed the case back in the hands of a Quebec judge as Lépine pressed on with his case. "The aver- age life expectancy is more than three months. They made a deal which is not right," says one of Lépine's lawyers, Paul Unterberg of Unterberg Labelle Lebeau & Morgan in Montreal. Complicating the case was the fact that Lépine had actually filed his lawsuit first, although it wasn't until after the Ontario judge approved the settlement there that the Quebec court authorized his competing class action. Issues for the courts to sort out, then, included whether Quebec authorities had a duty to recognize a judgment elsewhere and whether the first-come-first-served prin- ciple applies when a litigant launches a class action lawsuit or when a judge certifies it. But after Canada Post unsuccess- fully attempted to enforce the Ontario ruling through the Quebec courts, the Supreme Court found itself ruling largely on a technical issue involving conflicting class action notices sent out to Quebec residents in 2004. The first, published on Feb. 21, 2004, informed potential class members of the certification of Lépine's www. C ANADIAN Law ye rmag.com JULY 2009 45 MARCO CIBOLA