In the latest instalment of Canada's first global securities
class action, Justice van Rensburg ordered that the class
definition be amended to exclude all of those individuals who did
not opt out of a settlement agreement in parallel US
In the latest decision, 2013 ONSC 1667, Justice van Rensburg ruled on
a motion brought by the defendants to amend the class definition in
the Canadian proceeding. The amendment was required as a condition
of the settlement in the US proceedings. If the amendment was not
approved, then the US settlement would not proceed. Broadly,
Justice van Rensburg's decision deals with the Court's
authority to amend the class definition, and the relevant criteria
for recognition of a US settlement approval and for amendment of
the class definition.
Justice van Rensburg reviewed the history of settlement
discussions, the US settlement approval and the information that
had been provided to overlapping class members. The overlapping
class members had been advised in the Canadian Notice of the
proceeding that they were not excluded from the US proceedings if
they chose to remain in the Canadian class. The same class members
were advised in the US Notice that a settlement had been reached in
the US proceedings and if they wished to partake in the settlement
that they would not be able to recover under the Canadian
proceedings. Canadian class counsel provided input into the form of
both Notices and their contact information was provided in both
The US Court approved the settlement and there was no evidence
that there was anything unfair about the settlement or its
approval. Ultimately, only one individual objected to the US
settlement and only 7 individuals opted out of the US
As a result, the overlapping class members of the Canadian class
action that had accepted payment under the US settlement were to be
excluded from the Canadian class. In essence, Justice van Rensburg
held that individuals were given fair process to exercise a choice.
They were permitted to choose whether they wanted to accept the
certainty of what was being offered in the US Settlement or whether
they wanted to continue pursuit of potentially larger recovery in
the Canadian proceedings. They were not permitted to bank what was
on offer in the US settlement and hedge their bets by still
participating in the Canadian class proceedings.
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In Irwin v. Alberta Veterinary Medical Association, 2015 ABCA 396, the Alberta Court of Appeal found that the "ABVMA" failed to afford procedural fairness to a veterinarian undergoing an incapacity assessment.
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