Case Name:

Fehringer v. Sun Media Corp.

Between

Vanessa Fehringer, plaintiff (appellant), and

Sun Media Corporation, Sun Media (Toronto) Corporation and

Toronto Sun Publishing Corporation, carrying on business as

The Toronto Sun and Norm Betts, also known as Norman Betts,

defendants (respondents))

[2003] O.J. No. 3918

39 C.P.C. (5th) 151

125 A.C.W.S. (3d) 954

Court File No. 718/02

 Ontario Superior Court of Justice

 Divisional Court

McRae, Dunnet and Jennings JJ.

Heard: September 30, 2003.

 Oral judgment: September 30, 2003. Released: October 6,

 2003.

(9 paras.)

Counsel:

Raymond G. Colautti and Jeffrey Raphael, for the plaintiff (appellant).

Paul Tushinski, for the Sun Media respondents.

Lois B. Roberts, for the respondent, Norman Betts.

The judgment of the Court was delivered by

1 JENNINGS J. (orally):-- The appellant appeals from a decision refusing certification of her action as a class proceeding. The appellant alleged that she was one of a large number of women who, between 1971 and 2000 wanting to have their photographs published in the respondent's newspaper, were coerced into posing nude or topless and subjected to inappropriate comments, suggestions and other conduct.

2     The motions Judge correctly identified and discussed the criteria for certification required by s. 5(1) of the Class Proceedings Act, 1992. Although he found problematic the proposed class definition and that an appropriate alternative procedure for expeditious and inexpensive resolution was to be found either in the Small Claims Court or under the Rule 76 Simplified Procedures, his primary concern was whether there were common issues.

3     He asked himself the appropriate question: whether the resolution of common issues would move the litigation forward to a sufficient degree so as to justify certification. He stated in paragraphs 16 and 17 of his reasons in part:

"My concern is that it is virtually impossible to embark on a trial of the common issues until the facts which form the basis for all the individual claims have been presented. Put another way, it is simply not possible to make a blanket determination of the liability of any of the defendants without first engaging in an individual examination of the specific events which underlie each member's claim."

He concluded in paragraph 24 of his judgment:

"It is clear that if this action was certified ... it would quickly break down into an individual assessment of each proposed class member's particular circumstances."

4     We are of the view that the motions Judge did not apply a predominance test as argued by the appellant nor did he err in principle by distinguishing Rumley v. British Columbia (2001), 205 D.L.R. (4th) 39 (S.C.C.) where McLachlin C.J.C. held at p. 31, that there is no dispute that abuse occurred at the school and the central issue was whether the school should have prevented the abuse or responded to it differently.

5     Although the appellant submitted that the motions Judge erred in considering the limitation period issue, we agree that the allegations in the statement of claim gave rise to those issues.

6     Accordingly, we see no error in his findings that the common issues requirement was not met. We also agree with the findings and conclusion of the motions Judge on the issue of preferable procedure and representative plaintiff.

7     Although not necessary for our conclusion we are mindful of the comments of MacPherson J. in Carom v. Bre-X Minerals Ltd., [2000] O.J. No. 4014 at paragraph 36, regarding deference due to Superior Court Judges who have developed expertise in the new and sophisticated area of class actions. The appeal on the merits is dismissed.

8     The award of costs was entirely within the discretion of the motions Judge. It has not been demonstrated that he exercised that discretion improperly. Indeed a strong argument can be made that in fixing costs at the levels that he did, he exercised his discretion in favour of the appellant. Leave to appeal the order as to costs is granted and the appeal therefrom is dismissed.

9     McRAE J.:-- The appeal is dismissed for oral reasons delivered by Jennings J. Costs on the appeal to the respondents fixed at $5,000 to each respondent including disbursements and GST.

McRAE J.

 DUNNET J.

 JENNINGS J.

cp/e/nc/qw/qlgkw