agenda - Hicks Morley

September 20 – 21, 2012 • InterContinental Toronto Centre, Toronto 

The Canadian Institute’s 13 th Annual National Forum on 

CLASS ACTIONS 

LITIGATION 

Critical Cases and Trends That Will Shape Your Strategies 

for the Evolving Canadian Class Actions Environment 

Chair: 

Norm Emblem 

Partner 

Fraser Milner 

Casgrain LLP 

HEAR ABOUT BREAKING CLASS ACTIONS DEVELOPMENTS FROM: 

Judges/Former Judges: 

In-House Counsel: 

Hon. Ruben Castillo 

North District of Illinois 

Hon. Layn R. Phillips 

Irell & Manella LLP 

Hon. Barbara J. Rothstein 

Western District of Washington 

EARN 

CPD 

HOURS 

Laila Brabander 

Chubb Insurance Company of Canada 

Andrea Horton 

Royal Bank of Canada 

Patrick Rao 

Carrier Corporation 

Learn how to effectively respond to new and developing issues in class actions from 

a diverse faculty of leading class actions practitioners from across Canada and the U.S.! 

Gain practical advice on how to: 

• RESPOND to the latest class action trends and developments across Canada and in the U.S. 

• ADAPT to the increasing interest from the U.S. bar in Canadian class actions 

• OPTIMIZE your approach to negotiation and settlement and maximize your chances 

for a successful resolution 

• NAVIGATE difficult ethical dilemmas and avoid the mistakes of others 

• MANAGE complex jurisdictional issues and procedural uncertainty caused by national 

class actions 

• PREPARE your strategies for the increasing number of common issues trials 

And more! 

New Comprehensive, Practical, 

and Interactive Workshops on 

September 19, 2012! 

WORKSHOP A 

Critical Strategies to Avoid Ethical 

Missteps on the Road to Resolution 

of Your Class Actions Litigation 

WORKSHOP B 

A Comprehensive Guide to Successfully 

Negotiating, Structuring, and 

Implementing Class Action Settlements 

SPONSORED BY: 

We Find Missing Heirs A Better Way R 

REGISTER NOW 1-877-927-7936 

www.ClassActionsLit.com

2 

13 th Annual National Forum on 

TAKE ACTION NOW to Prepare Your Company and Your Clients 

for the NEW CLASS ACTIONS LANDSCAPE 

It is a critical time for class actions in Canada, as the landscape continues to mature and evolve. Important appellate 

decisions are imminent and developing trends are forcing Canadian practitioners to consider novel business 

opportunities and rethink their approach to litigation. The U.S. class actions bar, particularly in areas such as securities, 

is increasingly targeting Canada as a favourable jurisdiction for class actions. Both plaintiff and defence counsel are 

also shifting their attention to common issues trials, as the number of cases tried is likely to increase in coming years. 

What should you be doing now to ensure you can continue to successfully operate as class actions litigation increases in volume 

and complexity 

Attend The Canadian Institute’s 13 th Annual National Forum on Class Actions Litigation where you will gain skills 

directly from leading practitioners from across Canada and the U.S. and be brought up-to-date on all of the latest 

issues and trends in class actions. Hear from prominent members of the plaintiff bar, defence bar, in-house counsel, 

government, judiciary, and third party administrators who will share their unique perspectives to help you shape your 

litigation strategies from pre-certification through to trial and beyond. 

Get the innovative strategies you need to: 

• Respond to the “hottest” trends for class actions across Canada 

• Proactively mitigate risks in your class action litigation by attending our pre-program workshop: 

Critical Strategies to Avoid Ethical Missteps on the Road to Resolution of Your Class Actions Litigation 

• Improve administrative efficiency and increase take-up rates 

• Litigate in new and developing class actions areas: Securities, Franchising, Competition, Actions against the 

Crown, Employment, and more! 

• Achieve optimal settlements for complex class actions by attending the practical hands-on workshop: 

A Comprehensive Guide to Successfully Negotiating, Structuring, and Implementing Class Action Settlements 

And much more! 

Register today! Call The Canadian Institute toll-free at 1-877-927-7936, fax your registration to 1-877-927-1563, 

or register online at www.ClassActionsLit.com 

We look forward to seeing you in September! 

EARN 

CPD 

HOURS 

This program can be applied towards 9 of the 12 hours of annual Continuing Professional 

Development (CPD) required by the Law Society of Upper Canada. Workshop A has 

been accredited by the Law Society for 2.5 Professionalism Hours. 

This program has been approved by the Law Society of Saskatchewan for 13.50 CPD 

hours for the conference. Members will also receive 3.0 additional CPD credit hours for 

attending each workshop. 3.0 Ethics Hours have been accredited for Workshop A. 

The same number of hours may be applied toward your continuing legal education requirements in 

British Columbia. 

The Barreau du Québec automatically recognizes the same number of hours for this training activity, 

the latter having been accredited by another Law Society subject to MCLE. 

Attendance at this program by members of the Law Society of Alberta may be submitted to the Law 

Society for Continuing Professional Development credits. 

CONNECT WITH US 

Follow us @CI_Legal 

Use hashtag #CICAL 

Register at 1-877-927-7936 (416-927-7936) or www.ClassActionsLit.com

Class Actions Litigation 3 

Distinguished Faculty 

Chair: 

Norm Emblem 

Partner 

Fraser Milner Casgrain LLP 

“ 

Speakers: 

Paul J. Bates 

Bates Barristers Professional Corporation 

Paul Battaglia 

Managing Director 

Trilogy Class Actions 

Daniel M. Boone 

Regional Managing Partner, NL 

Stewart McKelvey 


Assistant Vice President, Canadian Zone 

Specialty Claims Manager 

Chubb Insurance Company of Canada 

Dennis W. Brown Q.C. 

General Counsel, Crown Law Office – Civil 

Ministry of the Attorney General (Ontario) 

Timothy Buckley 

National Leader, Class Action Practice 

Borden Ladner Gervais LLP 


U.S. District Judge 

United States District Court North District 

of Illinois 

Jay Cassidy 

Senior Vice President 

Marsh Inc. 

Enzo Carlucci, CA, CBV 

Director 

Duff & Phelps 

Alan L.W. D’Silva 

Partner 

Stikeman Elliott LLP 

Clint Docken 

Partner 

Docken & Company 

Jennifer Dolman 

Partner 

Osler, Hoskin & Harcourt LLP 

Michael Eizenga 

Partner 

Bennett Jones LLP 

Mark Evans 

Partner 


Jeffrey Goodman 

Partner 

Heenan Blaikie LLP 

Andrea Horton 

Senior Counsel 

Royal Bank of Canada 

William G. Horton 

Barrister, Arbitrator, Mediator 

William G. Horton Professional Corporation 

This information packed two day conference will bring you up to speed with respect to all areas 

of class actions litigation across Canada and highlight significant U.S. and cross-border issues. 

Hear from leading lawyers, class action administrators, U.S. judges and mediators and stay 

well ahead of the curve! – Norm Emblem 

” 

Eric Khan 

National Director, Class Action Litigation 

Deloitte & Touche LLP 

Won J. Kim 

Principal 

Kim Orr Barristers P.C. 

David Klein 

Partner 

Klein, Lyons 

Eliot Kolers 

Partner 

Stikeman Elliot LLP 

Dimitri Lascaris 

Partner 

Siskinds LLP 

Jill Lawrie 

Partner 

Blake, Cassels & Graydon LLP 

Robert W. Leurer, Q.C. 

Partner 

MacPherson Leslie & Tyerman LLP 

Wendy Matheson 

Partner 

Torys LLP 

Matthew Moloci 

Partner 

Scarfone Hawkins LLP 

Daniel Murdoch 

Stikeman Elliott LLP 

David O’Connor 

Partner 

Roy Elliott O’Connor LLP 


Partner 

Irell & Manella LLP 

Peter J. Pliszka 

Partner 

Fasken Martineau DuMoulin LLP 

Celeste Poltak 

Partner 

Koskie Minksy LLP 

Russell Raikes 

Partner 

McKenzie Lake Lawyers LLP 

Patrick Rao 

Assistant General Counsel 

Carrier Corporation 

Michael Robb 

Partner 

Siskinds LLP 

Sylvie Rodrigue 

Partner 

Norton Rose LLP 


Senior U.S. District Judge 


Linda Rothstein 

Managing Partner 

Paliare Roland Rosenberg Rothstein LLP 

Gina Scarcella 

General Counsel 

Department of Justice 

Michael Schafler 

Partner 


Louis Sokolov 

Partner 

Sack Goldblatt Mitchell LLP 

Mark Solomon 

Partner 

Robbins Geller Rudman & Dowd LLP 

Errol Soriano 


Campbell Valuation Partners Limited 

David Sterns 

Partner 

Sotos LLP 

Steve Stieber 

Partner 

Stieber Berlach LLP 

Diane Sullivan 

Partner 

Weil, Gotshal & Manges LLP 

David Thompson 

Partner 

Scarfone Hawkins LLP 

Paul B. Vickery 

Director General, Management of Class 

Actions and Mass Litigation 

Department of Justice Canada 

Raymond Wagner 

Founder 

Wagners Law Firm 

Irwin Warren 

Partner 

Weil, Gotshal & Manges LLP 

Bethune Whiston 

Partner 

Morneau Shepell Ltd. 

Malliha Wilson 

Assistant Deputy Attorney General, 

Legal Services Division 



4 13 th Annual National Forum on 

Pre-program Workshops – Wednesday, September 19, 2012 

A 9:00 a.m. to 12:00 p.m. 

(Registration opens at 8:30 a.m.) 

Critical Strategies to Avoid Ethical Missteps 

on Your Road to Resolution of Class Actions 

Litigation 

Linda Rothstein 

Managing Partner 

Paliare Roland Rosenberg Rothstein LLP (Toronto) 

Class actions litigation poses serious ethical challenges for both 

plaintiff and defence lawyers. Ethical issues will arise at all 

stages of a class action, as the multi-party nature of class actions 

requires a complex balancing of interests. Traditional ethical 

rules of conduct are difficult to apply to class actions litigation 

due to the class actions structure and the relationships created 

between class counsel, defence counsel, representative plaintiffs, 

absent class members, and subclasses. An ethical misstep during 

pre-certification, negotiation, trial preparation or settlement can 

seriously jeopardize your chances of a successful resolution. 

Explore the ethical implications of various problems commonly 

faced in class actions, and gain the knowledge, skills, and tools 

you need to meet your ethical obligations. Get in-depth, practical 

advice drawn from real-life scenarios, and avoid making the 

mistakes that have derailed cases for others. 

• Balancing the interests of the class with those of the 

individual plaintiff 

• Negotiating ethically: what to avoid to minimize the 

chances of ethical problems arising 

• Restrictions placed on advertising or recruitment of 

prospective plaintiffs 

• Limitations on the use of delay tactics 

• Transparency in settlement distribution 

• Case scenarios: How would you handle ethical problems 

that frequently arise 

B 2:00 p.m. to 5:00 p.m. 

(Registration opens at 1:30 p.m.) 

Comprehensive Guide to Successfully 

Negotiating, Structuring, and Implementing 

Class Action Settlements 

Matthew Moloci 

Partner, Scarfone Hawkins LLP (Hamilton) 

David Thompson 

Partner, Scarfone Hawkins LLP (Hamilton) 

Errol Soriano 


Campbell Valuation Partners Limited (Toronto) 

Class actions are one of the most difficult and complex types of 

litigation to achieve a workable settlement in. Negotiations are 

complicated by the number of parties involved and the sheer size 

of many classes. Failing to consider all relevant factors will cause 

poor results for your clients and costly delays in the administration 

of a settlement. 

Our workshop leaders will identify key strategies and 

considerations for settlement at every stage of a class action. Learn 

what you should be doing from the inception of a case onwards to 

maximize the chances of a successful resolution. 

• How will settlement strategies differ at each stage 

of the claim 

• Creatively structuring your class action settlement 

to satisfy parties involved 

• A close analysis of settlements reached in recent cases 

- Why there were, or were not, successful 

- Determining which settlement structures will work 

for different types of cases 

• Negotiation tactics for both sides 

- How to justify the size of the class 

- Calculating the quantum of damages 

- Negotiating effectively in multi-party proceedings 

• Avoiding common mistakes in mediation and arbitration 

preparation and presentation 

• Obtaining court approval: what factors are paramount 

in gaining judicial approval 

• Ensuring smooth administration of class action settlements 

- Critical factors that must be considered and addressed 

prior to settlement 

- Techniques to save costs through efficient notice and 

distribution of settlement funds 

A Must-Attend Event for: 

• Canadian private practice Plaintiff and Defence counsel 

• Private practice insurance claims counsel 

• U.S. cross-border private practice counsel 

• Crown: Federal, provincial and municipal government 

litigation counsel 

• In-house counsel and risk managers 

• VPs, Directors, and Managers of: 

- Class actions; Litigation; Risk management 

• Insurance claims managers and adjusters 

• Third party class action administrators 

• Third party class action funding providers 

• Litigation mediators and arbitrators 

• Judicial Law Clerks 



Day 1 – Thursday, September 20, 2012 

7:15 Registration and Coffee Served Sponsored by: 

8:15 Opening Remarks from the Chair 

Norm Emblem 

Partner 


8:30 Cross-Canada Update: How Recent Case Law 

and Class Actions Trends Impact Your Approach 

to Certification, Trial Preparation, Settlements 

and More 

Moderator: 

Norm Emblem 

Partner 

Fraser Milner Casgrain LLP (Toronto) 

Panelists: 

Daniel M. Boone 

Regional Managing Partner, NL 

Stewart McKelvey (St. John’s) 

Robert W. Leurer, Q.C. 

Partner 

MacPherson Leslie & Tyerman LLP (Regina) 

Michael Schafler 

Partner 

Fraser Milner Casgrain LLP (Toronto) 

As the Canadian class actions market continues to mature and 

develop, it is more important than ever to stay up to date on 

critical new case law developments in jurisdictions across the 

country. A number of recent and upcoming cases warrant greater 

discussion as they promise to reshape your class actions practice. 

This session will highlight the most pressing cases and trends 

you need to know in order to refine your litigation strategies in 

response to the constantly evolving nature of class actions. 

• A concise overview of the leading cases from the past year 

- How has Sharma v. Timminco Limited altered the 

treatment of limitation periods 

- Understanding the proper interpretation of s.28 of the 

Class Proceedings Act following Timminco and Coulson 

v. Citigroup Global Markets Canada 

- How will the certification of MacQueen v. Canada 

impact future environmental class actions 

• Looking ahead to upcoming cases 

- The Sun-Rype and Microsoft cases before the Supreme 

Court of Canada: How you should change your 

approach to expert evidence 

- Quebec’s tobacco litigation 

• Lessons learned on common issues trials: Andersen v. 

St. Jude Medical Inc. 

- What is the proper scope of the “waiver of tort” 

doctrine in class actions 

• New procedural requirements in light of Pennyfeather 

- Optimal ordering of motions: should the certification 

motion necessarily be first 

- Strategical considerations on filing a defence prior 

to certification 

• Analysis of recent certification trends 

- Why certification was denied in Gay v. Menon and 

its impact on future actions 

- Waldman v. Thomson Reuters Corporation 

• Updates on the use of motions for summary judgment 

in class actions 

- Which cases have been successful 

- In what circumstances should a motion for summary 

judgment be considered a viable option 

- Why “plain and obvious” is still not plain and obvious 

• Examining the latest trends in class actions and their 

implications for the future 

- Has the number of class actions been increasing 

What is the breakdown by jurisdiction and type 

- Recent settlement amounts and take up rates 

- Is there an increasing trend towards the trial of cases 

How will this impact your file handling strategies 

- Common issues: nuanced answers and other 

approaches to uncommon answers to common issues 

• Effectively controlling the conduct of claimants 

• When are costs appropriate in no-costs jurisdictions 

- Selecting the best procedure for your case: when other 

procedures are preferable 

• Analyzing the impact of legislative amendments on class 

actions procedures 

9:45 Establishing Your Future Plans: Analyzing 

Emerging U.S. Class Actions Developments to 

Anticipate Their Impact on Canadian Class Actions 


U.S. District Judge 

United States District Court North District of Illinois 

Won J. Kim (Plaintiff ) 

Principal 

Kim Orr Barristers P.C. (Toronto) 

Diane Sullivan (Defence) 

Partner 

Weil, Gotshal & Manges LLP (New York) 

Canadian lawyers and regulators often look to the American class 

actions regime for guidance, given the lengthier experience and 

more mature state of the American market. Leading Canadian 

class actions practitioners need to take a proactive approach and 

learn to anticipate which US trends and developments will 

eventually migrate north of the border. 

In addition, the increase in cross-border actions is giving rise 

to additional issues for both U.S. and Canadian counsel. Being 

able to understand the key differences between the two class 

action regimes is necessary to effectively co-ordinate actions and 

maximize litigation success. 


6 

• Examining the increased U.S. interest in Canada and its 

implications for your practice 

- What are the circumstances that have made Canada a 

target for class actions How will this trend continue 

to develop in the future 

- Which areas of class actions have generated the most 

cross-border litigation 

• What jurisdictions have been the most active for class 

actions and why 

- Which jurisdictions have seen the most certifications 

The least 

- Looking ahead to future trends – where are actions 

likely to be commenced in the next year 

• Recent U.S. class action developments that may soon 

be adopted in Canada 

- What U.S. legislation and jurisprudence is likely to 

be followed in Canada 

- Practical advice from U.S. litigators and judges on the 

issues they encounter day to day 

• What types of class actions are trending in Canada and 

the U.S. 

- How does that differ across jurisdictions 

• Critical differences between Canadian and American 

litigation 

- How do the Canadian and American tests for 

certification differ 

- Understanding the key trial and evidentiary differences 

that will impact your cross-border claims 

• Effectively co-ordinating cross border claims to control 

the costs of litigation 

• Resolving jurisdictional conflicts with respect to 

production and discovery 

10:45 Networking Coffee Break 

Sponsored by: 

11:00 Navigating the Complex Jurisdictional Issues 

of National and Multi-National Class Actions 

Sylvie Rodrigue 

Partner 

Norton Rose LLP (Montreal and Toronto) 

Paul B. Vickery 

Director General, Management of Class Actions 

and Mass Litigation 

Department of Justice Canada (Ottawa) 

Given the broad nature and increasing numbers of class actions, it is 

inevitable that overlapping or identical claims will frequently arise 

in multiple jurisdictions. Managing the numerous jurisdictional 

challenges involved in a class action has become commonplace for 

counsel. Failing to consider all of the material legal and procedural 

issues involved will lose cases and cost your clients money. Ensure 

you can protect your interests and make the best use of your resources 

by learning the latest on the efforts for reform and gaining proven 

strategies to resolve jurisdictional issues. 

• What is being done to resolve the issue of national class 

actions 


- Latest updates from the CBA National Class Actions 

Taskforce 

- What is the proposed framework to address national 

class action issues 

• Co-ordinating multiple actions successfully: Sauer v. Canada 

- What preliminary issues should be dealt with by way 

of motion(s) 

- At what point will co-ordination efforts be fruitful 

• Vital factors to consider when selecting the jurisdiction 

your action should proceed in 

- Comparing differences in case law and procedural rules 

- Taking advantage of opt-in and opt-out provisions of 

common jurisdictions 

- Practical considerations for procedural issues and 

expenses – travel distance, discovery rules, etc. 

• What risks are posed by the consolidation of actions 

• When will differences between actions and jurisdictions 

be too great to overcome 

- How can differences in class definitions, causes of 

action, and issues be resolved 

• Selecting the proper strategy for your specific case 

- When will motions to stay, forum non conveniens 

arguments, and constitutional challenges be 

appropriate 

• Analyzing recent carriage motions 

- Why were the winning parties ultimately successful 

- On what basis are courts making decisions 

- Working together effectively to avoid the need for 

carriage motions 

• Post settlement procedural issues 

- Dismissing multiple actions: Will an order be required 

Or is a notice of discontinuance sufficient 

12:00 Networking Luncheon 

1:15 How to Manage the Overwhelming Costs 

of Litigation: Selecting the Best Option for 

Financing Your Class Actions 

Michael Robb 

Partner 

Siskinds LLP (London) 

• Options for private and public funding of class actions 

• What factors will judges take into consideration when 

approving funding deals 

• Under what conditions will third party funding be 

permitted Dugal v. Manulife 

• Gaining access to public funds 

- What public funding is available in each province 

- Examining the structure of Ontario’s Class 

Proceedings Fund and Quebec’s Fonds D’aide aux 

Recours Collectives 

• Advantages and disadvantages of each public funding 

program 

• Utilizing funding through class members: when will it 

be appropriate 



• Mitigating financing risks by partnering with lawyers 

or consultants 

- Guidelines for selecting the right financing partner 

for your litigation 

- Key factors to consider when structuring your 

partnership agreements 

• To what extent can a funder be involved in litigation 

• How to balance the interests of a funder with the 

interests of the parties 

- Determining what can be disclosed in terms of 

confidential information and settlement discussions 

2:15 Effective Tactics to Stop or Resolve Claims Early 

in Today’s Class Actions Environment: Defence 

Panel Discussion 

Timothy Buckley 

National Leader, Class Action Practice 

Borden Ladner Gervais LLP (Toronto) 

Mark Evans 

Partner 


Daniel Murdoch 

Stikeman Elliott LLP (Toronto) 

Steve Stieber 

Partner 

Stieber Berlach LLP (Toronto) 

• Defending and defeating certification 

- Is it possible What will defeat certification 

• How has defence strategy shifted 

- What you need to focus on when defending a claim 

- Should fighting certification still be the main priority 

- Is there a growing trend towards taking cases to trial 

How should you alter your defence practices to respond 

• When will it be more effective to negotiate certification 

- How to position yourself favourably for trial or 

settlement through your negotiation of certification 

• Copycat class actions from the U.S. 

- How to anticipate and prepare for a pending or likely 

copycat class action 

- Proactive strategies to ensure you or your client is in 

the best possible position for a defence or favourable 

settlement 

- Can U.S. defences be imported into Canada How are 

Canadian defence counsel making use of cases such as 

Dukes v. Wal-Mart 

• Updates on the effectiveness and use of jurisdiction 

motions, motions to dismiss, and summary judgment 

3:15 Networking Coffee Break 

Sponsored by: 

3:30 Best Practices for In-House Assessment 

and Management of Class Actions 


Assistant Vice President, Canadian Zone Specialty 

Claims Manager 

Chubb Insurance Company of Canada (Toronto) 

Jay Cassidy 

Senior Vice President 

Marsh Inc. (Toronto) 

Andrea Horton 

Senior Counsel 

Royal Bank of Canada (Toronto) 

Patrick Rao 

Assistant General Counsel 

Carrier Corporation (New York) 

• Examining problems that U.S. and Canadian in-house 

counsel have faced in class actions litigation: practical 

guidance on how to resolve issues at every stage of the 

class actions process 

• What are the obligations of directors, officers, and 

executives within the company during a class action 

• How have recent certification trends impacted 

corporate decisions 

• Minimizing reputational damage from class actions 

claims: strategically responding to press inquiries while 

managing disclosure issues 

• Utilizing voluntary compensation plans: has this been 

a viable strategy to pre-empt litigation 

- How much weight will courts place on voluntary 

compensation plans when determining the preferable 

procedure for litigation 

• Effectively working with external counsel 

- At what point should external counsel be retained 

- What roles and tasks are internal and external 

counsel best suited for Guidance on how to provide 

instructions and define your roles 

• Working with coverage counsel to handle insurance issues 

- Common circumstances in which coverage issues 

may arise 

- Balancing the interests of everyone involved in 

settlement negotiations 

• Managing the costs of litigation 

- Minimizing the costs of documentary discovery 

- Proactive measures to implement into record keeping 

practices 

- Handling confidential or privileged information 

4:30 Comprehending the Key Differences Involved 

in Class Actions against Government 

Moderator: 

Malliha Wilson 

Assistant Deputy Attorney General, 

Legal Services Division 


Panelists: 

Dennis W. Brown Q.C. 

General Counsel, Crown Law Office – Civil 


David Klein (Plaintiff ) 

Partner 

Klein, Lyons (Vancouver) 


8 

Gina Scarcella 

General Counsel 

Department of Justice (Toronto) 

• Recent developments and trends in class actions brought 

against government across Canada 

• How do certification and take-up rates in Crown class 

actions compare to other class actions 

- How do they differ across provinces 

• How class actions against the Crown differ from those 

against other entities 

• Legislative barriers to class action litigation against 

the Crown 

• An overview of key developments in government class 

actions 

- Residential schools litigation 

- Tainted blood class actions 

- Analyzing the Crown’s role in tobacco litigation 

- Brown and Commanda: analyzing why the conditional 

certification was overturned and likely results of the 

pending appeal 

5:30 Concluding Remarks from the Co-Chairs 

Day 2 – Friday, September 21, 2012 

8:00 Coffee Served, Sponsored by 

8:30 Opening Remarks from the Co-Chairs 

8:45 Settlement Negotiation “360”: Insights from 

all Parties Involved on How to Plan and 

Execute a Win-Win Settlement for All 

William G. Horton 

Barrister, Arbitrator, Mediator 

William G. Horton Professional Corporation (Toronto) 

Eric Khan 

National Director, Class Action Litigation 

Deloitte & Touche LLP (Toronto) 

David O’Connor (Plaintiff ) 

Partner 

Roy Elliott O’Connor LLP (Vancouver) 


Partner 

Irell & Manella LLP (California) 

• Advice from Canadian and U.S. plaintiff and defence 

lawyers on their successful settlement strategies 

• Determining the optimal timing for settlement of your case 

- How will settlement differ pre- and post-certification 

• Strategically utilizing mediation and arbitration to 

resolve all or part of your case 

- Selecting the appropriate mediator or arbitrator 


• How to (and how not to) present your case at pretrial 

conferences and mediations in order to maximize your 

chances of a successful resolution 

• Circumstances in which an aggregate assessment of 

damages can be used 

• Do’s and don’ts regarding negotiations with putative 

class members 

- What guidance can be found in the jurisprudence 

- How to structure your offer to settle 

• What judicial discretion is permitted in varying terms 

of settlement 

10:00 Networking Coffee Break Sponsored by: 

10:15 Improving Take-Up Rates and Maximizing 

the Effectiveness of Class Action Administration 

Paul Battaglia 


Trilogy Class Actions 

Celeste Poltak 

Partner 

Koskie Minksy LLP (Toronto) 

Mark Solomon 

Partner 

Robbins Geller Rudman & Dowd LLP (San Diego) 

Bethune Whiston 

Partner 

Morneau Shepell Ltd. (Toronto) 

• An overview of the current trends in take-up rates in 

Canada 

• Strategies for increasing the rate of claim submissions 

- What can lawyers, judges, and administrators do to 

encourage more people/businesses to submit claims 

• Important considerations at the outset of a claim: 

how planning ahead can dramatically improve take up 

rates and avoid problems with the implementation of 

settlements 

• What is offered by different third party administrators 

and notice companies: how to select the right one for 

your case 

• Troubleshooting common oversights in settlement 

structuring: accounting for potential costs and 

identifying future problems that can arise 

• Protecting yourself from future litigation: Renaud c. 

Holcim Canada Inc. 

- In what circumstances could the exclusion of a group 

give rise to a new class action 

• Reducing costs by streamlining the payment method 

for settlements 

• Overcoming the challenges posed by lack of documentation 

- Establishing a fair evidentiary standard 



11:15 Conducting Mass Tort, Pharmaceutical, 

and Medical Device Class Actions 

Clint Docken (Plaintiff ) 

Partner 

Docken & Company (Calgary) 

Peter J. Pliszka (Defence) 

Partner 

Fasken Martineau DuMoulin LLP (Toronto) 

Raymond Wagner (Plaintiff ) 

Founder 

Wagners Law Firm (Halifax) 

• Lessons learned from the common issues trial of 

Andersen v. St. Jude Medical Inc. 

- Will “waiver of tort” be considered an independent 

cause of action Or will it only be available as a remedy 

• Investigating the availability of damages for mental 

distress, stress, and other psychological harm claims 

- How are damages quantified 

- What documentation is required to prove injury 

• Examining recent substantive developments in product 

liability actions 

• Mitigating the risk of class actions arising as a result 

of product recalls 

12:15 Networking Luncheon 

Breakout Streams (Choose A or B) 

A 

1:30 Key Developments in Securities Class Actions 

Enzo Carlucci, CA, CBV 

Director, Duff & Phelps (Toronto) 

Alan L.W. D’Silva (Defence) 

Partner, Stikeman Elliott LLP (Toronto) 

Dimitri Lascaris (Plaintiff ) 

Partner, Siskinds LLP (London) 

Irwin Warren (Defence) 

Partner, Weil, Gotshal & Manges LLP (New York) 

• In-depth analysis of recent cases: Sharma v. Timminco, 

Coulson v. Citigroup Global Markets Canada, and Fisher 

v. IG Investment Management Ltd. 

• Developments south of the border and their impact 

on future Canadian/cross-border class actions 

- What is the permissible scope of securities law claims 

arising out of multi-national securities transactions 

Morrison v. NAB 

- Tellabs Inc. v. Makor Issues & Rights Ltd: Increasingly 

strict pleading standards imposed at the motion to 

dismiss stage 

- Understanding limitations and requirements regarding 

loss causation: Dura Pharms Inc. v. Broudo 

- Recent developments regarding class certification, the 

nature and standards of proof 

• Defining the preferable procedure requirement for 

certification 

• How have courts treated the statutory vs. common law 

right to sue for misrepresentation 

• Canadian class actions post-IMAX: what has been the 

impact on the claims filed 

• Latest developments in the Sino-Forest class action 

• What are the implications of the proposed no-contest 

settlements by the Ontario Securities Commission 

• Cost of borrowing disclosure in credit card/secured 

lending cases 

• Strategies for managing a class action while a regulatory 

investigation is pending 

2:30 Preparing for the New Environment in 

Competition and Anti-Trust Class Actions 

Michael Eizenga (Defence) 

Partner, Bennett Jones LLP (Toronto) 

Eliot Kolers (Defence) 

Partner, Stikeman Elliot LLP (Toronto) 

The past year has been a notable one for competition law with 

significant developments in Canadian antitrust jurisprudence. 

With the Sun-Rype/Microsoft cases headed to the Supreme 

Court of Canada, now is the time to reassess your strategies for 

competition law class actions and ensure you are prepared for the 

dramatic changes to come. 

• How might the Supreme Court of Canada rule on 

Sun-Rype/Microsoft 

- Will Illinois Brick be imported to Canada Will 

indirect purchaser classes have a cause of action under 

Canadian law 

• Analyzing the findings of the Quebec Court of 

Appeal in Option Consommateurs et al. v. Infineon 

Technologies AG et al. 

- How does the decision differ from Sun-Rype/ 

Microsoft 

- How did the court treat the passing-on defence 

What are the evidentiary requirements 

• Certification trends in competition law: are there any 

possible defences 

• Mitigating the risk of a class action lawsuit arising from 

an anti-trust investigation 

*Stream B on page 10 


10 


B 

1:30 Critical Considerations for Franchising 

Class Actions Litigation 

Breakout Streams (Choose A or B) cont’d from page 9 

2:30 Updates on Major Litigation in Employment 

Law Class Actions 

Jennifer Dolman (Defence) 

Partner, Osler, Hoskin & Harcourt LLP (Toronto) 

David Sterns (Plaintiff ) 

Partner, Sotos LLP (Toronto) 

• Current trends in franchise class actions across Canada: 

- What are the leading causes of action 

- When are franchise actions likely to be certified 

• Overcoming contractual hurdles: 

- Class action waivers – are they valid 

- Mandatory releases: Implications of the Midas decision 

- Impact of arbitration clauses on franchisees’ right of 

association 

• Impact of governing law clauses in franchising agreements 

• Key distinguishing elements of franchising class actions: 

- Ongoing franchisee-franchisor relationship issues 

- Impact on day-to-day business 

- Opportunity to reform the franchising system going 

forward 

• Settlement issues in franchising class actions: 

- Preserving brand and promoting peace in the system 

- Restructuring the system through settlement 

- Are settlements with individual franchisees permitted 

- Who speaks for the franchisees at the settlement table 

- What is the role of settlement committees 

- Should franchisees have the right to opt out of a 

settlement 

3:30 Networking Coffee Break Sponsored by: 

3:45 Successfully Preparing For and Conducting 

Common Issues Trials 

Paul Bates (Plaintiff ) 

Bates Barristers Professional Corporation (Toronto) 

Jill Lawrie (Defence) 

Partner, Blake, Cassels & Graydon LLP (Toronto) 

Wendy Matheson (Defence) 

Partner, Torys LLP (Toronto) 

Russell Raikes (Plaintiff ) 

Partner, McKenzie Lake Lawyers LLP (London) 


Senior U.S. District Judge 


Certification continues to be a relatively low bar for plaintiffs to 

meet and both sides of the bar are now turning their attention 

to what comes after certification: preparing for and conducting a 

common issues trial. With the number of cases proceeding to trial 

likely to increase in the coming years, developing effective trial 

strategies will be necessary to ensure successful resolution of your 

litigation. Hear from seasoned plaintiff and defence counsel in 

Jeffrey Goodman (Defence) 

Partner, Heenan Blaikie LLP (Toronto) 

Louis Sokolov (Plaintiff ) 

Partner, Sack Goldblatt Mitchell LLP (Toronto) 

• Updates on the national employment class actions: 

Fresco v. Canadian Imperial Bank of Commerce, Fulawka 

v. Bank of Nova Scotia and McCracken v. Canadian 

National Rail Company 

• Updates on regional employment class actions including 

Kafka v. Allstate and Dominguez v. Northland Properties 

Corporation 

• Examining the future of employment class actions 

- When will there be a definitive answer What is the 

likelihood of major overtime cases being appealed to 

the Supreme Court of Canada 

- How can you advise appropriately on issues prior to 

a final decision from the courts 

• Assessing the impact of U.S. jurisprudence: why Dukes 

v. Wal-Mart Stores, Inc. was dismissed and what that 

means for current and future Canadian actions 

- Are we likely to see similar lawsuits launched in Canada 

this session, as they share the valuable insights they gained from 

their trial experiences. 

• Guidance provided by case law on how courts are 

approaching common issues trials: Smith v. Inco, 

Andersen v. St. Jude Medical Inc., Jeffrey v. London Life 

Insurance Company 

• How to involve the trial judge and case management 

judge in your preparation 

• Comprehending key differences between common issues 

trials and regular trials 

• Drafting and certifying common issues: how will they 

impact the trial process and in what circumstances will 

amendments be permitted 

• Evidentiary considerations for trial: when to introduce 

specific evidence from class members 

• Winning the battle of the experts: how to work with 

your experts to present the best and most credible 

evidence on your case 

- Considerations for different specialties: medical 

doctors, actuaries, regulatory experts 

- Establishing credibility though examination and crossexamination 

techniques 

• Managing and communicating documentary evidence 

effectively for trial: technological innovations 

4:45 Closing Remarks by the Co-Chair 



Thank You to Our Sponsors 

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Members of the National Litigation Group regularly act on matters relating 

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Collectiva Class Action Services is a boutique firm 

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Since 1967, International Genealogical 

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We Find Missing Heirs A Better Way firms, trust institutions and corporations 

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essence. www.heirsearch.com 

BMC Group is a provider of class action 

and settlement administration services. Our 

services help law firms, corporations, and 

government agencies control expenses and reduce time from settlement 

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SPONSORSHIP & EXHIBITION OPPORTUNITIES 

Maximize your organization’s visibility in front of key decision-makers in your target market. For more information, contact 

Senior Business Development Executive Andrew Thompson at 416-927-0718 ext. 7232, toll-free 1-877-927-0718 ext. 7232 

or by email at a.thompson@CanadianInstitute.com 

“One of the best conferences I have been to in 20 years of practice... I kept thinking ‘this was the 

best speaker’ until the next speaker gave their presentation. Excellent line-up of speakers 

” 

– Sharon Pratchler, Senior Crown Counsel, Ministry of Justice and AG Saskatchewan 

Delegate, 12th Annual Class Actions Litigation 

Don’t forget to select the Pre-Program Workshops you would like to add to your registration. 

A Critical Strategies to Avoid Ethical Missteps on Your Road to Resolutuion of Class Actions Litigation 

B Comprehensive Guide to Successfully Negotiating, Structuring, and Implementing Class Action Settlements 

See page 4 for more information on these invaluable and extremely practical learning opportunities. 

Register at 1-877-927-7936 (416-927-7936) or www.ClassActionsLit.com 

©The Canadian Institute, 2012

September 20 – 21, 2012 • InterContinental Toronto Centre, Toronto 

The Canadian Institute’s 13 th Annual National Forum on 

CLASS ACTIONS 

LITIGATION 

Critical Cases and Trends That Will Shape Your Strategies 

for the Evolving Canadian Class Actions Environment 

To expedite your registration, please 

mention your Priority Service Code 

389L13.WEB 

REGISTRATION FORM 

ATTENTION MAILROOM: If undeliverable to addressee, please forward to: 

Partner, Associate, Lawyer, Counsel, VP/Director/Manager Litigation/Risk Management, Claims Manager/Adjuster 

TOP REASONS TO ATTEND 

✓ 

✓ 

✓ 

✓ 

✓ 

 

 

UNDERSTAND the impact of 

recent case law and pending appellate 

decisions 

GAIN VALUABLE INSIGHTS 

into developing cross-border trends 

NEW WORKSHOPS to ensure successful 

resolution of complex 

class actions 

LEARN how to effectively manage 

and run a common issues trial from 

seasoned trial lawyers 

NETWORK with leading practitioners 

and potential clients 

5 EASY WAYS TO REGISTER 

 

 

Phone: 1-877-927-7936 or 

416-927-7936 

Fax: 

 

1-877-927-1563 or 

416-927-1563 

Email: 

CustomerService@CanadianInstitute.com 

Mail: 

The Canadian Institute 

1329 Bay Street 

Toronto, Ontario M5R 2C4 

Online: www.ClassActionsLit.com 

PROGRAM CODE: 389L13-TOR 

YES! Register the following delegate for The 13 th Annual National Forum on CLASS ACTIONS LITIGATION 

1 ADMINISTRATIVE DETAILS 

FEE PER DELEGATE Register & Pay by August 23, 2012 Register & Pay after August 23, 2012 VENUE: InterContinental Toronto Centre 

Program (on site) ADDRESS: 225 Front Street West, Toronto, ON 

$2095 $2295 

TEL.: 416-597-1400 

Program + 1 Workshop A or B $2690 $2890 

Hotel Reservations 

ELITEPASS*: Program + Both Workshops $3285 $3485 

Please choose your Breakout Session: A: Securities & Antitrust B: Franchising & Employment 

For information on hotel room availability and reservations, please 

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Live Webcast (Program Only) $1595 

making your reservation, please ask for the best available rate. 

PLEASE ADD 13% HST TO ALL ORDERS 

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Please add a copy of the *Program Proceedings BINDER or CD-ROM to my order for $295 + 22.95 (S+H) + applicable taxes 

The fee includes the program, all program materials, coffee 

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I cannot attend but would like information on purchasing a copy of the Program Proceedings 

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2 

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agenda - Hicks Morley

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