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"every province in this country, I would argue, has more recently become overwhelmingly plaintiff-friendly," says Katherine Kay, a competition law specialist with Stikeman Elliott LLP. The B.C., Quebec, and Ontario courts have since 2009 certified a series of price-fixing cases — including Pro-Sys Consultants Ltd. v. Infineon Technologies AG in the B.C. Court of Appeal — despite difficulties in showing how harm was passed down through a distribution chain to indirect purchasers. Two similar cases in B.C. produced different rulings — Pro-Sys Consultants Ltd. v. Microsoſt Corp. and Sun-Rype Products Ltd. v. Archer Daniels Midland Co. — that were granted leave to appeal to the Supreme Court of Canada on Dec. 1, 2011. Kay says certification has become almost a foregone conclu- sion in the competition area, not solely because the courts favour plaintiffs, but because in light of the complexity of these cases — and the conflicting expert evidence — courts are passing the buck to trial judges rather than scrutinizing whether a proposed class action meets the certification test. As a result, a series of "messy" cases, as Kay puts it, with "unbounded and inappropriate" com- mon issues and class definitions, are winding up at trial. "The only time you have to resolve the issue of whether or not it's an appropriate case to be treated as a class action, the only kick you get at that can is on certification," she says. "So I would argue it's an abdication — that's a strong word, I appreciate that — but it's an abdication of the court's responsibility to duck these issues on certification and say, 'You know what, we're not up to dealing with them, so lets certify it and leave it to the trial judge.' "The courts have made a policy decision, I would argue, that class actions are good, and we're not going to subject them to the kind of scrutiny that we do other cases." The access to justice that class actions offer large groups of citi- zens, defence lawyers say, is likely what's motivating judges to ease the way for plaintiffs in many certification proceedings. That, and the desire to streamline lengthy, expensive, and drawn-out pretrial procedures, may be the impetus behind Perell's ruling on the early filing of statements of defence. "I don't see that as a particularly pro-plaintiff decision," says Baert. "I'd say it's intended to make it easier for judges doing these cases to have a grip on what's in dis- pute, earlier in the case." In his decision, Perell argues that the early delivery of a state- ment of defence "could be a fresh step that could foreclose any sub- sequent attack by the defendant for any pleadings' irregularities." But defence lawyers warn that Perell's desire to streamline class actions, if adopted by other courts, could have the opposite effect. Rather than making the pre-certification phase more efficient, it could force defendants to file numerous technical and substantive preliminary motions at the very start of the pre-certification pro- cess, before their defence-filing deadline. "We'll have to see how it unfolds," says Bjorkquist. "Allowing defendants to attack dubious claims or sloppy pleadings, or over-broad pleadings before engag- ing in the costly certification process, could actually improve the system. On the other hand it may also threaten access to justice, because requiring defendants to bring a variety of motions will simply delay certification. Think about it — you bring a motion, you lose, you appeal, etc." www.CANADIAN Lawyermag.com JAN UARY 2012 49 What's more certain, says Bjorkquist, is that filing an early defence will mean more defence amendments in response to ongoing plaintiff amendments, and therefore higher costs for defendants, as the case proceeds through certification. More importantly, she says: "Is it fair that defendants are forced to plead earlier, and disclose positions or strategy before deter- mining whether the plaintiff has met their burden under the legislation, as to whether the proposed class action should suc- ceed at all?" Of course it's fair, says Baert. "In all other types of litiga- tion, no matter how complex, defendants file defences at the beginning, within the time limits and the rules. They manage to do so without the sky falling, or the world coming to an end." Baert also calls complaints about a plaintiff-friendly trend in the courts "a lot of smoke." "I certainly don't think it's remotely plausible to argue that judges in this country are bending over backwards to help plaintiffs," he says. "You only have to look at, where do most judges who handle complex litigation come from — the cor- porate law side. Is it likely there's this cadre of extremely lib- eral judges who are looking to completely open the floodgates of class action litigation by bailing out incompetent plaintiffs counsel? Seems unlikely to me." PROFESSIONAL DIRECTORY