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LEGAL REPORT: CLASS ACTIONS cites the recent action against Carrier Corp. over corrosion in the heat exchangers of its furnaces. The action was certified Jan. 28 so that a Canada-U.S. settlement agreement executed last November could be approved by the Ontario Superior Court of Justice. The case involved 3.3 million people, she says, and given the multi-jurisdictional nature — the settlement also has to be approved in Quebec — it's the kind of action that fits well with a national firm. Malcolm Ruby of Gowling Lafleur Henderson LLP, which has also built up its own class action practice, also notes the trend towards more class actions in Ontario is driving interest. "Despite media stories about a court in Alabama which would issue drive-by certifications, certification is relatively liberal in Ontario and easier to meet than in the U.S.," he says, adding the trend is towards more settlements as cases mature. Plaintiffs, too, are seeing the increased interest from the large firms first-hand. "Certainly it's been wonderful for the Seven Sisters and other big firms," says Tony Merchant, the former Saskatchewan MLA who has built a sizeable class action prac- tice, the Merchant Law Group, from his power base in Regina. "It's a new litigation specialty where they send huge crews of people to court. It can be intimidating." Not that much intimidates veteran litigator Harvey Stros- berg of Sutts Strosberg LLP in Windsor, Ont. He was battling to bring class actions long before the law in Ontario changed in the mid 1990s. In those early days, the process was fraught with challenges, and Strosberg says with the change in legisla- tion he knew it was a chance at a new direction. "I decided to get into a medical malpractice, even though there appeared [to be] no upside because you could spend $1 million in time and $100,000 in out-of-pocket expenses," he says. Merchant also rails against the strategy of delay: "In Agent Orange [relating to the spraying of the chemical near CFB Gagetown in New Brunswick], for example, we're at $1.6 mil- lion in time and $150,000 in disbursements. We're certified and we're a third of the way through the battle. At the end of the day we may get nothing. The government continues to stall and people are dying. One of our people is an 80-year-old man who hasn't eaten solid food since 1982. He lives on Ensure. He could die tomorrow." However, some critics allege pursuit of class actions has turned some in the plaintiffs bar into a legal form of ven- ture capitalists, assuming the risk of litigation with the hope that every once in a while a big case brings home a windfall in fees. Ruby also worries that altruistic intent may have been subverted in practice. "I think the class action legislation was intended to help people with claims that otherwise would not be brought," says Ruby. "It was meant to right wrongs of un- scrupulous people. However, in the last six years we're seeing it become more about the plaintiffs' lawyers and a business op- portunity than it is about righting wrongs." It's a dig that Peter L. Roy of Roy Elliott O'Connor LLP GILBERTSON DAVIS EMERSON LLP BARRISTERS AND SOLICITORS practice restricted to CIVIL LITIGATION, INSURANCE LAW Angela Emerson John L. Davis The way we create Structured Settlements is not a numbers game, it's life..." Baxter STRUCTURES MEANING NEW ADDRESS AS OF APRIL 21st 501 3 1M2 Tel: (416) 979-2020 Fax: (416) 979-1285 SETTLEMENTS@BAXTERSTRUCTURES.COM SETTLEMENTS@BAXTERSTRUCTURES.COM DANIELLE@BAXTERSTRUCTURES.COM email: office@gilbertsondavis.com www. C ANADIAN mag.com APRIL 2008 47 John L. Davis Professional Corporation Richard Hayles R. Lee Akazaki James W. Wilson Nazanin Aleyaseen Jody W. Iczkovitz Counsel: James E. Adamson 20 Queen Street West, Suite 2020 Toronto, Ontario M5H 3R3