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LEGAL REPORT/LITIGATION certification. And statements of de- fence were commonly withheld with the courts' approval until aſter certification, a custom that emerged from Ontario (now Chief) Justice Warren Winkler's 1996 decision in Mangan v. Inco Ltd. that judges had wide discretion to allow such delays by defendants. Laila Brabander, assistant vice presi- dent and specialty claims manager for Chubb Insurance Co. of Canada, who manages litigation against corporate de- fendants insured by Chubb, says there's been a "noticeable change" in the courts' approach in recent years. "There's no question that the pendulum has swung, and recent decisions likely suggest that certification is easier," she says. In 2005, for example, in the national residential schools class action Baxter v. Canada, Winkler again influenced the system by ruling that certification mo- tions should be heard promptly, and should not be delayed by other motions. That led to an increasing reluctance by other judges to entertain a series of tech- nical challenges by defendants. Elsewhere there have been examples NOW IN ITS 25TH YEAR BROWN ON DEFAMATION: CANADA, UNITED KINGDOM, AUSTRALIA, NEW ZEALAND, UNITED STATES, SECOND EDITION RAYMOND E. BROWN (FORMERLY ENTITLED THE LAW OF DEFAMATION IN CANADA, 2ND EDITION) When your client's most personal asset – their reputation – is at stake, turn to the renowned authority. Now in its 25th year of publication, this seminal text provides detailed discussions of defamation law in Canada, as well as extensive international materials. ORDER # 9558625-67255 $432 8 volume supplemented book Supplements invoiced separately 4-5 supplements per year 0-459-55862-5 Shipping and handling are extra. Price subject to change without notice and subject to applicable taxes. MORE THAN 14,000 CASES CITED FOR AN UNMATCHED DEPTH OF CONTENT This very discerning text addresses significant new developments in this complex area of legal practice. Topics of discussion include: • Analysis of all relevant Canadian cases and more than 9,000 decisions from the other Commonwealth jurisdictions and the United States • Causes of action • Available defences, practice and procedure – includes discovery, pleadings, parties, evidence, costs, and discovery • Remedies • Charter implications • Injurious Falsehood – includes a closer look at slander of title, disparagement of goods, and interference with prospective advantage AVAILABLE RISK-FREE FOR 30 DAYS Order online: www.carswell.com Call Toll-Free: 1-800-387-5164 In Toronto: 416-609-3800 • Malicious Prosecution – includes an extensive analysis of the principles of law relating to the initiation and termination of judicial proceedings, reasonable and probable cause, malice, defences to the action and damages • Recent case highlights • Recent developments of the law relating to the Internet • Comparative analysis of special media privileges in England, Australia, New Zealand, South Africa, and the United States of judges helping plaintiff lawyers draſt more sustainable pleadings, as Perell did before he certified the overtime labour class action McCracken v. Canadian Na- tional Railway Co. in 2010. There are also cases — as in Smith v. Inco, recently overturned by the Ontario Court of Appeal — of judges actively rewriting common issues during a trial. "There's a perception that the practice of some judges assisting plaintiffs in im- proving their pleadings is unfair to defen- dants," says Sonia Bjorkquist, a class ac- tion litigator at Osler Hoskin & Harcourt LLP. "I wonder about whether it's tipping the balance in favour of plaintiffs." Other lawyers say judges are behav- ing properly. Aſter all, the purpose of class actions is to extend justice to large groups of people who otherwise might not receive it. Why toss out a proposed lawsuit with the correct germ of an idea, simply because it hasn't been pleaded correctly by the plaintiff's counsel? "In the CNR case, the plaintiff lawyers didn't describe the common issues exactly the way they should have to get certi- fied, so Justice Perell modified them. He was doing his job," says Kirk Baert, a plaintiffs' litigator at Koskie Minsky LLP in Toronto. "To me it's not logical, in a claim of half-a-billion dollars, to say, 'You lose certification because of the way you worded your claim.' That's not the purpose of the justice system, to have a series of trap doors people can fall into. Cases should be decided on their real merit, and sometimes there are plead- ings problems." The trouble is that judicial re-working of plaintiff pleadings has become so common that defendants now have trouble know- ing what precisely to defend, says Lang. "It makes litigating prior to certification a challenge, because you're dealing with a constantly moving target." Meanwhile in competition class actions, 48 JAN UARY 2012 www. CANADIAN Lawyermag.com