Driediger v. Ashley Furniture Industries Inc. et al.,

• Jurisdiction: Saskatchewan
• Judge: Laing
• Neutral Citation: 2010 SKQB 437
• Citation: (2010), 364 Sask.R. 130 (QB),2010 SKQB 437,364 SaskR 130,(2010), 364 SaskR 130 (QB),364 Sask.R. 130
• Date: 08 November 2010
• Court: Court of Queen's Bench of Saskatchewan (Canada)

Driediger v. Ashley Furniture Ind. (2010), 364 Sask.R. 130 (QB)

MLB headnote and full text

Temp. Cite: [2010] Sask.R. TBEd. DE.001

Donna Driediger (plaintiff) v. Ashley Furniture Industries Inc. and Ashley HomeStores Ltd. (defendants)

(2009 Q.B. No. 1917; 2010 SKQB 437)

Indexed As: Driediger v. Ashley Furniture Industries Inc. et al.

Saskatchewan Court of Queen's Bench

Judicial Centre of Regina

Laing, C.J.Q.B.

November 8, 2010.

Summary:

The defendant retailers ran a marketing promotion under which consumers were provided with a gas voucher entitling them to up to $500 in gas or merchandise from participating gas stations. The third party that administered the program went into receivership before any customers received a benefit. A class action was commenced regarding the failed program. A settlement was reached under which class members would receive a preferred customer card from the defendants for 20% off of purchases for a 210 day period. The total of the discounts was not to exceed $500. Class members were also to receive $150 under certain conditions. The settlement was conditionally approved at the same time as the action was conditionally certified. Notice packets were sent out. Two objectors took the position that the defendants should honour the original promotion and that the 20% discount was not costing the defendants anything, but would result in increased sales.

The Saskatchewan Court of Queen's Bench approved the settlement. The court also approved counsel fees of $81,000 and a fee award of $1,500 to the representative plaintiff.

Practice - Topic 209.6

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class actions - Representative plaintiff - Compensation to - In approving a settlement that was reached in a class action and approving counsel fees of $81,000, the Saskatchewan Court of Queen's Bench also approved a fee award of $1,500 to the representative plaintiff on the basis that she had supplied instructions to the plaintiffs' counsel, been involved in settlement discussions, prepared a lengthy affidavit in support of the settlement and requested orders for court approval - The sum of $1,500 was reasonable in light of her efforts in the matter - See paragraph 23.

Practice - Topic 9862.1

Settlements - Court approval - Class actions (incl. fee approval) - The defendant retailers ran a marketing promotion under which consumers were provided with a gas voucher entitling them to up to $500 in gas or merchandise from participating gas stations - The third party that administered the program went into receivership before any customers received a benefit - A class action was commenced regarding the failed program - A settlement was reached under which class members would receive a preferred customer card from the defendants for 20% off of purchases for a 210 day period - The total of the discounts was not to exceed $500 - Class members were also to receive $150 under certain conditions - The settlement was conditionally approved at the same time as the action was conditionally certified - Notice packets were sent out - Two objectors took the position that the defendants should honour the original promotion and that the 20% discount was not costing the defendants anything, but would result in increased sales - The Saskatchewan Court of Queen's Bench approved the settlement - The settlement benefits to members of the class were real - All class members, whether they ever attempted to secure a gas voucher or not, would receive the benefit of the $500 preferred customer card, which admittedly required class members to expend money in order to realize this value - The fact that the card was transferable gave it a value which the class member might receive from a third party - The settlement was fair, reasonable and in the best interests of the class as a whole - See paragraphs 14 to 18.

Cases Noticed:

Sawatzky v. Société Chirurgicale Instrumentarium Inc. et al. (1999), 19 B.C.T.C. 220; 71 B.C.L.R.(3d) 51 (S.C.), refd to. [para. 11].

Parsons v. Canadian Red Cross Society (1999), 103 O.T.C. 161; 40 C.P.C.(4th) 151 (Sup. Ct.), refd to. [para. 11].

Dabbs v. Sun Life Assurance Co. of Canada, [1998] O.T.C. Uned. 269; 40 O.R.(3d) 430 (Gen. Div.), affd. (1998), 113 O.A.C. 307; 41 O.R.(3d) 97 (C.A.), leave to appeal refused (1998), 235 N.R. 390; 118 O.A.C. 399 (S.C.C.), refd to. [para. 12].

Jeffery et al. v. Nortel Networks Corp. et al., [2007] B.C.T.C. Uned. I32; 68 B.C.L.R.(4th) 317; 2007 BCSC 69, refd to. [para. 13].

Mortillaro v. Cash Money Cheque Cashing Inc., [2009] O.T.C. Uned. G36; 73 C.P.C.(6th) 369 (Sup. Ct.), refd to. [para. 17].

Counsel:

E.F. Anthony Merchant, Q.C., and Nicholas P. Robinson, for the plaintiff, Donna Driediger;

Robert W. Leurer, Q.C., for Ashley Furniture Industries Inc. and Ashley HomeStores Ltd.

This application was heard and decided on November 8, 2010, by Laing, C.J.Q.B., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Regina, who delivered the following written reasons for judgment on November 19, 2010.