1176560 Ontario Ltd. et al. v. Great Atlantic & Pacific Co. of Canada Ltd.

• Jurisdiction: Ontario
• Court: Superior Court of Justice of Ontario (Canada)
• Judge: O'Driscoll, Then and MacKenzie, JJ.
• Citation: (2004), 184 O.A.C. 298 (DC)
• Date: 08 March 2004

1176560 Ont. v. Great Atlantic (2004), 184 O.A.C. 298 (DC)

MLB headnote and full text

Temp. Cite: [2004] O.A.C. TBEd. MR.052

1176560 Ontario Limited, 1184883 Ontario Inc. and 1205427 Ontario Limited (respondents/plaintiffs/defendants by counterclaim) v. The Great Atlantic & Pacific Company of Canada Limited (appellant/defendant/plaintiff by counterclaim)

(745/02)

Indexed As: 1176560 Ontario Ltd. et al. v. Great Atlantic & Pacific Co. of Canada Ltd.

Court of Ontario

Superior Court of Justice

Divisional Court

O'Driscoll, Then and MacKenzie, JJ.

March 8, 2004.

Summary:

The plaintiff franchisees of a grocery chain sought to bring a class action for the recovery of rebates which they alleged the defendant franchisor was wrongfully withholding from them.

The Ontario Superior Court, in a decision reported at [2002] O.T.C. 963, certified the proceeding as a class action. The defendant sought leave to appeal.

The Ontario Divisional Court, in a decision reported at 169 O.A.C. 343, granted leave to appeal respecting two issues. The matter proceeded.

The Ontario Divisional Court dismissed the appeal.

Practice - Topic 209.3

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class actions - Certification - Considerations (incl. when class action appropriate) - The plaintiff franchisees of a grocery chain sought to bring a class action for the recovery of rebates which they alleged the defendant franchisor was wrongfully withholding from them - The defendant argued that there was conflict between the economic interests of the proposed representative plaintiffs and at least some other members of the class - Differences in economic position vis-à-vis the defendant meant that the representative plaintiffs would not fairly and adequately represent the interests of the class and did have an interest in common with the other members - The motions judge rejected the argument, certified the proceeding as a class action respecting the common issues and appointed the plaintiffs as representative plaintiffs on behalf of the class - The representative plaintiffs would fairly and adequately represent the interests of the class - There was no conflict of interest on the common issues for the class - The Ontario Divisional Court dismissed the defendants' appeal - See paragraphs 19 to 29.

Practice - Topic 209.4

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class actions - Certification - Appointment of representative plaintiff - [See Practice - Topic 209.3 ].

Cases Noticed:

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1, refd to. [para. 15].

Stein Estate v. Ship Kathy K, [1976] 2 S.C.R. 802; 6 N.R. 359, refd to. [para. 16].

Anderson et al. v. Wilson et al. (1999), 122 O.A.C. 69; 44 O.R.(3d) 673 (C.A.), refd to. [para. 17].

Carom et al. v. Bre-X Minerals Ltd. et al. (2000), 138 O.A.C. 55; 51 O.R.(3d) 236, refd to. [para. 17].

Western Canadian Shopping Centres Inc. et al. v. Dutton et al. (2001), 272 N.R. 135; 286 A.R. 201; 253 W.A.C. 201; 201 D.L.R.(4th) 385 (S.C.C.), refd to. [para. 29].

Counsel:

J.M. Steiner and L.K. Fric, for the appellant/defendant/plaintiff by counterclaim;

T.G. Heintzman, Q.C., J.C. Lisus and D. Sterns, for the respondents/plaintiffs/ defendants by counterclaim.

This appeal was heard at Toronto, Ontario on June 26 and 27, 2003, before O'Driscoll, Then and MacKenzie, JJ., of the Ontario Divisional Court. MacKenzie, J., released the following reasons for judgment for the court on March 8, 2004.