Implications for Ontario Counsel When Other Foreign-Based Class Proceedings Are Pending
Greg Monforton and Jennifer DeThomasis

If a class action is commenced in a foreign jurisdiction, what impact, if any, will it have on similar class actions or potential class members in Ontario? The consideration of this question is perhaps an unintended consequence of the innumerable impacts of globalization. While there is no definitive answer to this question, it is clear from the caselaw that has developed that foreign-based class proceedings can significantly impact domestic proceedings, as well as domestic class members. In some cases, U.S. class action settlements have been extended to include Canadian residents, creating a trend that may ultimately result in a diminished need for Canadian class actions covering cross-border issues, and increasing the incentive for foreign lawyers to certify multinational classes. Such results have also increased the incentive for Canadian lawyers to join forces with foreign counsel to develop and work up foreign, domestic and multi-national class actions.

Examination of Expert Witnesses at Trial
Sandev Signh Purewal and Michael B. Stocks

Perhaps the most daunting and nerve-wracking task which we as “New Lawyers” can be called upon to perform is the examination or cross-examination of an expert witness. After all, we’re not doctors, engineers or actuaries. How then can we be expected to match wits with these people as regard to their own area of expertise?

The mere prospect of engaging in this task has been the root cause of countless sleepless nights on our part and likely many of yours as well. What follows are some “words of wisdom” we’ve been able to glean from the “war stories” or our more senior colleagues as well as the pages of endless books on the subject which were read, in large part, during those sleepless nights.

A key thing to always remember is that the achievement of both the effective examination in chief of your experts and the cross-examination of your opponent’s experts is not the result of some magical technique possessed only by a lucky few. Rather, it is the result of the application and mastery of a number of completely learnable skills and techniques; their mastery requiring essentially nothing more than a reasonable degree and combination of clear thinking, focused and outcome-oriented preparation and old-fashioned hard work.

Social Host Liability—Sisyphus and the Rest of Us
Peter Curran

The gods had condemned Sisyphus to ceaselessly rolling a rock to the top of a mountain, whence the stone would fall back of its own weight. They had thought with some reason that there is no more dreadful punishment than futile and hopeless labor.

The Myth of Sisyphus by Albert Camus

I. Introduction

Don’t feel too badly for Sisyphus; he wasn’t such a nice guy to begin with. But his fate, to a great degree, mirrors that of the Plaintiff’s bar in Canada in its effort to pursue, on behalf of injured victims, claims against negligent social hosts.

Of the dozen or so such claims which have found their way into our courts, none have truly met with success. Two of these cases, rather recently, have made their way into courts of appeal. In each instance, the claim, on its own merits, did not enjoy success at the appeal level. But all hope is not lost. Optimists will point to the appeal decision of Childs v. Desormeau (S.C.C. leave just granted), and focus on the fact that, while dismissing the action as against the defendant social hosts, the court stressed that such claims were by no way precluded where the facts better support a finding of negligence.

I, on the other hand, am not altogether convinced that we are really much further ahead than we were in 1986, when Mr. Justice Gould, in Baumeister v. Drake dismissed that action against the social host defendants based upon the facts of the case, while leaving open the door for future claims against social hosts. It seemed to be merely a matter of time before the proper fact scenario presented itself. Nineteen years later, that time has still not come.

Marshall McLuhan says “we drive into the future using only our rearview mirror”. So to best understand what lies ahead, it is worth reviewing where we have been. While we turn to the streets of Paisley (Donoghue v. Stevenson) to identify those neighbors to whom we owe a duty of care, developments south of the 49th parallel have had a measurable influence on our courts and our thinking with respect to the liabilities that may attach to a social host.

• Greg Monforton
• Brad Robitaille
• Jennifer E. DeThomasis
• Ruth Stewart
• Monica Pathak