Canadian Lawyer

10 A P R I L 2 0 1 8 w w w . C A N A D I A N L a w y e r m a g . c o m A n Ontario judge has awarded car- riage of a proposed class action against bread sellers for an alleged price-fixing scheme to a consor- tium led by Strosberg Sasso Sutts LLP. Two different groups of law firms were vying to represent potential class mem- bers in the proposed lawsuit, brought against Loblaw, Sobeys, Metro and other Canadian retailers. The group led by Strosberg was made up of four law firms that have filed actions in five different provinces and the Federal Court. Sotos LLP and Siskinds LLP led the other consortium, which only launched an Ontario action. Ontario Superior Court Justice Ed Morgan found that the Strosberg group's approach would be in the best interests of a potential national class and fairer to the defendants, despite the fact the defen- dants favoured the Sotos group. "The Strosberg approach to the mul- tijurisdictional problem is to accomplish in advance what the Sotos Team says that it will eventually do if awarded car- riage," Morgan wrote in David v. Loblaw; Breckon v. Loblaw. "That is, in forming the Strosberg Consortium it has negotiated with coun- sel for the other existing actions." Lawyers say the decision could have implications for multi-jurisdictional liti- gation, which is a hot topic in the plaintiff class action bar. While Strosberg had brought together firms that had started actions in different jurisdictions, Sotos said it would enter negotiations with firms that brought actions in other provinces after it was awarded carriage. The Sotos consortium had agreed to provide an undertaking to the defendants that it would not start actions in other jurisdictions. The defendants argued this would be a way of containing the multi- jurisdictional nature of the matter and that the Strosberg group's refusal to pro- vide such an undertaking should count against them in the carriage battle. Morgan found that the undertak- ing had prevented the Sotos group from being proactive in other jurisdictions and that it had "ham-strung" the consortium in a way Strosberg had not. The judge also found that the use of such an under- taking by the defendants, who favoured the Sotos group, was unusual. Jay Strosberg, of Strosberg Sasso Sutts LLP, says the undertaking would not achieve the objective of limiting multi- jurisdictional litigation, as Merchant Law Group LLP, which was not part of either consortium, had launched actions in sev- eral western provinces. He says that if the Strosberg consor- tium had agreed to the undertaking, it would shut down its own actions in those provinces but leave Merchant's actions. Morgan noted that Sotos could not compete with Merchant in other provinc- es because of the undertaking, whereas Strosberg's ability to compete would help ensure uniformity of actions. David Sterns, a partner with Sotos LLP, however, says the decision means firms that take the approach of filing in the jurisdiction in which they intend to move forward are going to be at a dis- advantage to those that file in multiple jurisdictions. "What this means is that the arms race of multiple jurisdictional filings is back on," he says. — ALEX ROBINSON \ AT L A N T I C \ C E N T R A L \ W E S T REGIONAL WRAP-UP U niversity of Alberta law professor Malcolm Lavoie acknowledges it might be a story he will tell his grandchildren when he is old and wise. The first time he appeared at the Supreme Court just happened to be the final time Chief Justice Beverley McLachlin (who incidentally graduated from U of A's Law School in 1968) heard a case. She is the SCC's first woman and longest-serving chief justice, a post she had held since 2000 before retiring last year. Even though this was Lavoie's first appearance in the court as counsel, he did clerk there from 2013 to 2014. Like other interveners, he had a brief five minutes to address the court. Lavoie was representing a Calgary=based beer importer in a case centred on the free trade clause in the Constitution Act. R. v. Comeau con- cerns the one-time importation by a private individual of cheaper Quebec beer into New Brunswick. At the conclusion of the hearing, McLachlin's departure was marked with remarks by Justice Rosalie Abella. By a happy accident, Owen Rees, who served as the court's executive legal officer in 2012-2014, happened to be appearing for one of the litigants and was able to offer "a touching farewell," says Lavoie, on behalf of counsel. There were laughs and a few tears. It was, says Lavoie with lawyerly reserve, "a significant day." — GEOFF ELLWAND ALBERTA LAW PROFESSOR'S FIRST SCC CASE IS MCLACHLIN'S LAST W E S T Judge awards carriage of bread price-fixing class action

• Cover