Archive for the ‘ Class Actions ’ Category

Medication Errors Cause For Concern: Think Before You Pop That Pill



With approximately 422 million prescription bottles being filled up in Canada each year, it’s no wonder why medication errors are becoming very real concerns. The causes for these errors are still being researched further, but illegible doctor handwriting is likely one of several contributing factors.

One 81-year-old British Columbia woman, Nesta De Roy learned the hard way when she visited her pharmacist for a refill on blood pressure medication. Her pharmacist provided her with a bottle of new pills-identical in appearance to her last prescription, which she was to take every morning for two weeks. Unknown to her, these new pills were actually heavy sedatives-not the blood pressure medication she was expecting.  After complaining to family and friends about feelings of dizziness and drowsiness, she just assumed these were a normal part of  aging and didn’t think much of it. One day shortly after, she got behind the wheel of her car and crashed into a car dealership window. She lost consciousness for 15 minutes and narrowly escaped death. Read more

Class Actions: Moving Beyond Borders

As class proceedings in Canada continue to bloom from their relative infancy, the courts will play a key role in guiding the future directions of such proceedings. Now is the time for courts in Canada to lay the foundations for what is sure to become a class action packed future.  As part of this class action expansion into the Twenty First century, I will focus on the development of the jurisdictional boundaries at play within Canada in the context of class proceedings.

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Fluoride in Your Water Supply: Poisonous or Miraculous?…You Decide

Chances are that if you live in North America, your tap water contains trace amounts of Fluoride intentionally added to the water supply by local, provincial or state governments.

The obvious benefits asserted by proponents of Water Fluoridation are that when added in trace amounts, Fluoride will safely and effectively combat tooth decay. Proponents also claim that Fluoridation Promotes societal health even to the disadvantaged and most vulnerable. Read more

British Petroleum’s Impending Liability: When the Oil Driller Gets Drilled

Following BP’s recently failed attempts to plug up its leaking oil well in the Gulf of Mexico, the economic and environmental impacts associated with the leak have reached a historically unprecedented level. By comparison, the 1989 Exxon Valdez oil spill in Alaska ended with a $500 million dollar judgment against Exxon, drastically lowered from $5 billion on the ruling of the United States Supreme Court. However, the potential losses the BP leak will impose on the 5 Gulf States alone affected by this leak are staggering. Estimates of anticipated liability associated with BP’s oil leak have already been suggested to fall anywhere from $20 to $50 billion dollars in actual damages, not including punitive damages.

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The History:

In 1920, Canadian politician Duncan Campbell Scott, head of Canada’s Department of Indian Affairs from 1913 until 1932 spearheaded Canada’s Policy of Assimilation. In doing so, he stated:

“I want to get rid of the Indian problem. I do not think as a matter of fact, that the country ought to continuously protect a class of people who are able to stand alone… Our objective is to continue until there is not a single Indian in Canada that has not been absorbed into the body politic and there is no Indian question, and no Indian Department, that is the whole object of this Bill” Read more

Greenwashing in the Consumer Marketplace: Marketers Will Make Green as Long as Consumers Go Green

The recent practice of what has become known as “Greenwashing” refers to the act of companies dishonestly or insincerely branding their products as environmentally friendly when in fact they are not nearly as environmentally sound as consumers are lead to believe. The challenges associated with Greenwashing are quickly becoming an invitation for legal intervention on many fronts and may likely continue to develop into a niche legal practice with an abundance of opportunity. Greenwashing claims are becoming extremely popular, and lawsuits and class actions in relation to Greenwashing claims have only seen the tip of the iceberg according to industry experts.

Although misleading advertising and false labeling is not uncommon amongst many industries, I’ve decided to focus specifically on these issues as they relate to  Environmental Marketing because of the immense consumer fixation on “Going Green” and companies’ determination to meet this consumer need. Read more

Quebec Lottery Commission Reaches Settlement With Addicted Gamblers: Will Other Provinces Follow Suit?

A  $500 million  dollar class action launched against  the Quebec Lottery Commission in 2001  has reportedly reached a tentative settlement agreement. An estimated 250,000 class members who have incurred therapy fees between 1994 and 2002 as a result of  becoming addicted to using Video Lottery Terminals (VLTs) are expected to settle their gambling claims for $50 million dollars, a far cry from the original amount sought.  The actual figures and terms of the agreement will be made public on January 16, 2010. In March 2010, a Quebec judge will decide on whether the settlement ought to be approved after hearing arguments from  class members unhappy with the agreement. The significance of this outcome will be likely to have an effect across Canada as similar class actions have been filed in Nova Scotia, Newfoundland, and Ontario.

According to many, this settlement is bittersweet. On the one hand, some compensation has been provided to those “victims” of addictive gambling. On the other hand, the fact that the settlement was not court ordered means that this is not seen as a legal admission of liability, and cannot be used as a precedent to help bind  similar matters in other jurisdictions. This would allow lottery corporations to maintain their operational  status quo without any concern for the need to adhere to legally set duties of care to addicted gamblers. However, although a binding legal precedent may not have been set,  the settlement  may still  have established a “moral precedent” to encourage similar settlements in other jurisdictions, but only time will tell.

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$12 Million Settlement Agreement Approved in Air France Landing Mishap

A  $12 million class action settlement has been approved by the Ontario Superior Court of Justice in relation to an August 2005 incident where Air France flight 358 overshot the landing strip causing the aircraft to skid into a  ravine where it burst into flames. The plane was carrying 297 passengers onboard plus a crew of 12.

The flight had originated from Paris and encountered a severe thunderstorm upon landing at Toronto’s Pearson International Airport. Of all those onboard,  184 joined the class action settlement as many  others  either settled independently with Air France, or commenced separate actions.

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Factory Farming Operations: The Smell of Mass Litigation at its Finest

Factory Farming Operations are a  real and substantial threat to the environment, human health, and the economic integrity of  communities plagued by the presence of such operations. Factory Farming Operations confine as many animals as economically possible into a fixed amount of available space essentially operating as a factory by treating animals as units of production. It is not uncommon to have  thousands or hundreds of thousands  of animals tightly cramped into cages in order to maximize production for the corporate producers. The implications of such industrialized farming practices will be discussed to shed light on the various classes of stakeholders who are impacted by these operations.

The environmental impacts of Factory Farms are no secret. Hundreds of thousands of animals cramped in limited spaces translates into thousands of pounds of waste collected in cesspools every day. This gives  off offensive odours to members of the surrounding community. It is also not uncommon for the waste to find its way into the soil leading to nutrient overloading  causing runoff and contamination of  surrounding waterways and local drinking wells.

For frontline employees of these operations, exposure to high levels of dust, ammonia,  and hydrogen sulfide can result in serious health effects. It has been reported that just 2 hours of exposure in these conditions can lead to bronchitis, and asthma.

Consumers of meat produced from these facilities are at risk of consuming meat infected with bacteria such as E-coli, Salmonella, and Listeria to name but a few. In addition, as a result of  the high level of antibiotics pumped into the animals to keep them from developing illnesses in these less than ideal conditions, antibiotic  resistant strains of bacteria may become more prominent creating more risk to the public. Further risks associated with these types of Factory Farm conditions include the incubation and spread of flu epidemics such as Swine Flu, Avian Flu, and even diseases such as Mad Cow Disease (BSE).

For those residents who are plagued with a Factory Farm in their backyards, health effects have been reported to include asthma, immune suppression, neurological symptoms, psychological impairment, gastrointestinal problems and increased infant mortality rates. In addition, the establishment of such Farming operations greatly decrease the value of local properties, and outcompete smaller family run farming operations through its monopolistic nature.

The lower costs of food that Factory Farming practices may generate  fails to consider the great costs of production associated with environmental degradation of our air, water, soil, health and economic integrity posed by such practices. It is time for the power of class action litigation to do what it does best in  circumstances such as this where the regulatory regime falls short: behaviour modification.

Arbitration Clauses as a Shield Against Class Actions?…What Will Canada’s Top Court Say?

The Supreme Court of Canada has granted leave to hear an appeal next year in the matter of Seidel v. Telus Communications Inc. This appeal will attempt to clarify the issue of whether arbitration clauses in consumer agreements may prevent consumers from launching class action proceedings. This decision should move Canadian commerce one step closer in resolving what has been a flip-flopping legal issue across Canada for years.

The use of arbitration clauses in consumer agreements is common practice employed by corporate entities in laying out the mechanisms available for their consumers to use in addressing issues that may arise from such transactions. In essence, these clauses mandate customers to engage in private dispute resolution mechanisms rather than resorting to the courts to address problems.  The advantages conferred by such clauses may include a much more expedient and cost effective method of settling matters than through the “clogged” court system.

However, the downside of arbitration clauses may relate to how they are worded. The mere fact that they are unilaterally inserted into consumer contracts as a condition of service means that consumers are often forced to agree to such terms if they want to obtain such service. In addition, corporate entities may see arbitration clauses as a strategy for insulating themselves from class action claims by forcing consumers to waive their rights to participate in a class action and agreeing to the prescribed binding arbitration process instead. Concerns have also been raised about resource rich corporations compensating arbitrators for decisions in their favour.

This begs the question: can consumers resort to the courts to pursue class claims against corporate entities or must reliance on arbitration clauses be adhered to? The state of the law has been unclear in Canada.

To demonstrate the lack of clarity, I will attempt to lay out the current situation in Canada with respect to the issue of arbitration clause applicability and class actions as follows:

Seidel, a Telus customer in British Columbia launched a class action against Telus for breach of contract and deceptive and unconscionable practices. At this time, the predominant case authority was MacKinnon v. Instaloans Financial Solutions Centres (Kelowna) Ltd. which held that an arbitration clause is inoperable if a court certifies a class action. Because the court had certified Seidel’s class action against Telus, Telus simply had to live with the class action launched against it despite its arbitration clause.

The Supreme Court of Canada then subsequently rendered its decision in Dell Computers v. Union Des Consommateurs and  Rogers Wireless Inc. v. Muroff. Both these appeals came out of the Quebec lower courts and dealt with the applicability of arbitration clauses and class actions. The court agreed that in Quebec, it is the arbitrator who will determine the jurisdiction to hear the matter, not the court. The Supreme Court of Canada in both cases permitted the arbitration mechanism to prevail over the class action route.

As a result of these decisions, Telus was able to successfully appeal its case to the British Columbia Court of Appeal, which stayed the class action against it on the authority of  Dell and Rogers Wireless Inc., which seems to place arbitration clauses ahead of pursuing class actions.

It’s important to note that these Supreme Court of Canada decisions relied on by Telus were specific to Quebec, which is not a common law province and the applicability of these decisions may not necessarily clarify the issue for the other common law provinces anxious for further guidance.  This guidance shouldn’t be too far off now that Seidel has been granted leave to appeal to Canada’s top court.

I think it would be prudent for the courts to avoid taking an overly pro corporate stance on this issue. Consumers should not be denied access to the courts and forced to be bound by an arbitration clause, especially where the clause is worded unfairly. We know that corporations’ true loyalty is to their shareholders, not consumers and the Supreme Court should be mindful of this when rendering its decision next year to provide consumers with the protections they deserve.

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