OVERVIEW

Pet Valu

October 6, 2016 – The Supreme Court of Canada denied leave to appeal. The class action has concluded.

March 15, 2016 – The class is seeking leave to appeal the Ontario Court of Appeal’s decision to the Supreme Court of Canada. A copy of the class’ request can be found here: Notice of Application for Leave to Appeal and Memorandum of Argument. A further update will be posted in the upcoming months to update the timing for the Supreme Court of Canada’s decision.

The class action seeks damages in the amount of $100 million on behalf of all Canadian Pet Valu franchisees against the franchisor of the Pet Valu chain. The statement of claim alleges that the franchisor breached its obligations under the franchise agreement and the Arthur Wishart (Franchise Disclosure), 2000, S.O. 2000, c.3. The court has certified the case to proceed as a class action on the issue of whether Pet Valu breached its contractual duty to the Class Members at any time during the Class Period by failing to share volume-based rebates, allowances and discounts given by suppliers and manufacturers to Pet Valu or its affiliates, and other related claims. Links to the statement of claim and decision on certification are below. The proposed class consists of all persons carrying on business as a franchisee under a franchise agreement with Pet Valu at any time on or after December 31, 2003. The action was launched on December 9, 2009. On January 14, 2011, the Ontario Superior Court of Justice released a decision certifying the class action. The judge overseeing the class action released further reasons for decision on March 28, 2011 setting out the common issues for trial. On June 21, 2011, the Court released a further decision where it dismissed a motion to declare all future “releases” entered into by franchisees to be enforceable.

Pet Valu served a Notice of Appeal of the decision of the Honourable Justice Belobaba of the Ontario Superior Court of Justice dated January 7, 2015. On February 18, 2015, class counsel served a Notice of Cross-Appeal.

Pet Valu brought a motion to adjourn the determination of damages in relation to his Honour’s ruling that Pet Valu breached its duty of good faith and fair dealing. On March 17, 2015, the Honourable Justice Belobaba heard Pet Valu’s motion and adjourned the determination of damages pending the resolution of the appeals.

On February 3, 2015, Pet Valu served a Notice of Appeal of the decision of the Honourable Justice Belobaba of the Ontario Superior Court of Justice dated January 7, 2015. See Justice Belobaba’s Decision Here . Pet Valu’s appeal relates to his Honour’s findings on Common Issue 6. The Notice of Appeal can be reviewed here. On February 18, 2015, class counsel served a Notice of Cross-Appeal regarding his Honour’s decision on New Common Issue 8. The Notice of Cross-Appeal can be reviewed here.In light of the appeals, Pet Valu brought a motion to adjourn the determination of damages in relation to his Honour’s ruling that Pet Valu breached its duty of good faith and fair dealing. On March 17, 2015, the Honourable Justice Belobaba heard Pet Valu’s motion and adjourned the determination of damages pending the resolution of the appeals.His Honour found that if Pet Valu prevails on its appeal regarding Common Issue 6, then there will be no need to address damages and if the class prevails on its cross-appeal adding New Common Issue 8, there will similarly be no need to address damages. His Honour’s Endorsement dated March 17, 2015, can be reviewed here.Further updates will be posted here once a timetable has been determined for the hearing of the appeals. We anticipate that the appeal will be heard sometime in the autumn of 2015. We will advise of the specific date once it has been set by the Court of Appeal.The case is on hold pending Pet Valu’s appeal of Justice Belobaba’s January 7^th decision, which we expect will be heard by the Ontario Court of Appeal in the autumn of 2015. We will provide further details regarding the appeal and the next steps in the case on this website.

The parties filed their materials for the appeal. Pet Valu’s appeal factum can be reviewed here. The Plaintiff’s responding factum can be reviewed here. Pet Valu’s responding factum to the cross-appeal can be reviewed here.

The appeal and cross-appeal were heard on November 3, 2015 and November 4, 2015 in Toronto, Ontario. The Ontario Court of Appeal will release its decision on the appeal and cross-appeal at a later date. We will post the Court’s decision on this website when it is released.

Updates

October 6, 2016 – The Supreme Court of Canada denied leave to appeal. The class action has concluded.
March 15, 2016 – The class is seeking leave to appeal the Ontario Court of Appeal’s decision to the Supreme Court of Canada. A copy of the class’ request can be found here: Notice of Application for Leave to Appeal and Memorandum of Argument. A further update will be posted in the upcoming months to update the timing for the Supreme Court of Canada’s decision.
January 14, 2016: The Ontario Court of Appeal dismissed the class action today. A copy of the decision can be found here. Counsel are reviewing the decision and will decide whether to seek leave to appeal to the Supreme Court of Canada.
The appeal and cross-appeal were heard on November 3, 2015 and November 4, 2015 in Toronto, Ontario. The Ontario Court of Appeal will release its decision on the appeal and cross-appeal at a later date. We will post the Court’s decision on this website when it is released.
July 24, 2015: The parties filed their materials for the appeal. Pet Valu’s appeal factum can be reviewed The Plaintiff’s responding factum can be reviewed here. Pet Valu’s responding factum to the cross-appeal can be reviewed here. The appeal and cross-appeal will be heard on November 3, 2015 and November 4, 2015 at Osgoode Hall, 130 Queen Street West, Toronto, Ontario, M5H 2N5. The hearing will start at 10:30 am each day. Class members and the public are invited to attend all or part of the hearing.
April 1, 2015: On February 3, 2015, Pet Valu served a Notice of Appeal of the decision of the Honourable Justice Belobaba of the Ontario Superior Court of Justice dated January 7, 2015. Pet Valu’s appeal relates to his Honour’s findings on Common Issue 6. The Notice of Appeal can be reviewed here. On February 18, 2015, class counsel served a Notice of Cross-Appeal regarding his Honour’s decision on New Common Issue 8. The Notice of Cross-Appeal can be reviewed here.In light of the appeals, Pet Valu brought a motion to adjourn the determination of damages in relation to his Honour’s ruling that Pet Valu breached its duty of good faith and fair dealing. On March 17, 2015, the Honourable Justice Belobaba heard Pet Valu’s motion and adjourned the determination of damages pending the resolution of the appeals.His Honour found that if Pet Valu prevails on its appeal regarding Common Issue 6, then there will be no need to address damages and if the class prevails on its cross-appeal adding New Common Issue 8, there will similarly be no need to address damages. His Honour’s Endorsement dated March 17, 2015, can be reviewed here.Further updates will be posted here once a timetable has been determined for the hearing of the appeals. We anticipate that the appeal will be heard sometime in the autumn of 2015. We will advise of the specific date once it has been set by the Court of Appeal.
January 8, 2015: On January 7, 2015, the court ruled that Pet Valu has breached its duty of good faith and fair dealing. The court’s decision can be reviewed here.Specifically, Justice Belobaba determined that Pet Valu breached its duties by failing to disclose to franchisees (i) whether Pet Valu receives Volume Rebates, (ii) the amount of Volume Rebates received by Pet Valu, (iv) and the amount of Volume Rebates shared with Pet Valu’s franchisees.It was determined that the above information was “essential” to franchisees. However, Pet Valu “decided for its own purposes to keep the volume discount information to itself and not tell its franchisees.” The true extent of Pet Valu’s volume rebates was not disclosed until 2012 during the course of this litigation.The court will now decide what damages, if any, will be payable to class members due to Pet Valu’s breaches of good faith. The parties will be arranging a case conference to set a procedure for making submissions on damages.Further updates will be posted here once a procedure and timetable have been determined.
November 7, 2014: On October 8 – 10, 2014, Pet Valu’s summary judgment motion was heard before the Honourable Justice Belobaba of the Ontario Superior Court of Justice. His Honour released his decision on October 31, 2014. The decision is available here.Justice Belobaba dismissed the plaintiff’s breach of contract claim but deferred the issue of whether Pet Valu had properly discharged its disclosure obligations under the Arthur Wishart Act.On December 3-4, 2014, the court will be hearing further argument on the disclosure issue. Class members are welcome to attend the continuation of this hearing starting at 10:00 a.m. on December 3 and 4, 2014 at the following address:Osgoode Hall, 130 Queen Street West. Toronto, Ontario M5H 2N5
October 6, 2014: The upcoming summary judgment motion is now scheduled to proceed on October 8-10 and 29th, 2014. Class members are invited to attend all or part of the hearing. You may review the plaintiff’s legal argument by downloading the Factum of the Plaintiff. The hearing will start each day at 10:00am at the following address: Osgoode Hall 130 Queen Street West Toronto, Ontario M5H 2N5
August 8, 2014: On October 8 – 9, 2014, class counsel and Pet Valu’s counsel will appear before the court to ask that this action be determined by way of a summary judgment motion. Both sides will ask that this dispute be determined based upon the extensive documentation which has now been filed with the court. Class members are welcome to attend the hearing to observe.
August 8, 2014: On October 8 – 9, 2014, class counsel and Pet Valu’s counsel will appear before the court to ask that this action be determined by way of a summary judgment motion. Both sides will ask that this dispute be determined based upon the extensive documentation which has now been filed with the court. Class members are welcome to attend the hearing to observe. The hearing will commence at 10:00 am on October 8, 2014, at the following address:Osgoode Hall 130 Queen Street West Toronto, Ontario M5H 2N5
April 17, 2014: Justice Belobaba has ordered that Pet Valu must provide additional information about list prices. He ruled: “By my own count, and looking only at the 2008 spreadsheet, about 43 of the Top 100 products (25 ‘private label’ products and 18 others) show an LPV [list price from vendor] that is significantly lower than the price charged to the franchisee (for example, $19 versus $38). If the low LPV is actually a specially reduced, volume-related LPV that is offered to the supplier to PVCI (through Peton) and not to other buyers, then this would arguably amount to a Volume Rebate that would arguably have to be shared with the franchisees.” A copy of his decision can be found here.
March 3, 2014: The legal arguments filed by Pet Valu and the representative plaintiff can be found here: Pet Valu Factum dated February 20, 2014 and Representative Plaintiff Factum dated February 28, 2014. The court hearing begins on March 5, 2013 at 10:00 a.m., Courtroom 5, Osgoode Hall (130 Queen St. W., Toronto).
February 26, 2014: The Ontario Superior Court of Justice has scheduled important motions for summary judgment to be heard on March 5-7, 2014. The plaintiff will be asking the court to decide that Pet Valu is required to share volume allowances with class members. The motions will be heard starting March 5 at 10:00 A.M. at Osgoode Hall, 130 Queen Street West, Courtroom #5 and is open to the public. Please check this website frequently for additional information should it become available.
May 3, 2013: The Ontario Court of Appeal reversed Justice Strathy’s decision to conduct a new opt-out period. A copy of the appeal decision can be found here. The Court of Appeal’s decision means that if you opted out before the deadline, you are no longer part of the class action. We are reviewing the decision and next steps.
January 10, 2013: Pet Valu and Concerned Pet Valu Franchisees (“CPVF”) have appealed the decision of Justice Strathy, who invalidated the opt-out process, as described in the July 27, 2012 update below. The appeal will be heard by the Ontario Court of Appeal on February 26, 2013 beginning at 10:00 a.m. at 130 Queen Street West, Toronto (Osgoode Hall). Any member of the public may attend the appeal.
July 27, 2012: The court released its reasons regarding the opt-out process, which can be found here. A court-approved notice to the class can be found here.
April 4, 2012: The plaintiff has brought a motion to the court with respect to alleged irregularities during the opt out process. The motion will be heard by the court on July 4, 2012 and the results will be posted on our website. The motion seeks to annul the opt out notices received during the opt out period in the summer of 2011 and for a new opt-out process to be undertaken. The plaintiff has also brought a motion for summary judgment against Pet Valu. That motion will likely be heard in December 2012. Further details on both motions will be posted here.
October 28, 2011: The Divisional Court refused to grant Pet Valu leave to appeal the certification decision. As a result, Pet Valu will not be able to appeal the certification decision to a higher court. The case is currently proceeding towards trial.
June 21, 2011: The Court released a further decision where it dismissed a motion to declare all future “releases” entered into by franchisees to be enforceable.
January 14, 2011: The Ontario Superior Court of Justice released a decision certifying the class action. The judge overseeing the class action released further reasons for decision on March 28, 2011 setting out the common issues for trial.

Documents

Notice to class

Pleadings

Statement of Claim (Dec 9, 2009)

Written arguments

Court Decisions and Orders

More Information

Contacts

David Sterns

Have questions about this case?

What is a class action?

A class action is a special form of lawsuit in which one plaintiff brings a claim against one or more defendants based on allegations which are common to a group, or class, of people. In order for the action to become a class action, it must proceed through a stage known as “certification”.

Who brings a class action lawsuit forward?

A statement of claim is issued on behalf of a “representative plaintiff”. The representative plaintiff’s role is to work with class counsel to bring the action forward and to represent the class members in court.

What is certification?

In order for an action to proceed on behalf of the entire class, a judge must decide (among other things) whether the members of the proposed class have common issues, and whether a class action is the preferred way to resolve the issues. The process to decide these issues is known as the “certification motion”. If the judge is satisfied that the case meets all of the requirements for certification, he or she will issue an order which certifies the action as a class action.

Do I have to do anything to “join” the lawsuit?

No. If the lawsuit is certified, and you are included in the class as defined, you are automatically included in the lawsuit.

Once I am part of the class do I have to do anything?

No. We will work primarily with the class representative.

What if I do not want to be included in the lawsuit?

Those who do not wish to remain in the class will be given the option to opt-out by sending an opt-out form at the appropriate time to us.

What are the benefits of proceeding as a class action?

Certification as a class action will enable us to prove the facts in a single lawsuit rather than in numerous individual lawsuits. This has obvious benefits to the class members and to the courts.

How long does it take for a class action to be resolved?

There is no timeframe. We will move the case forward diligently but it can take a considerable period of time to reach trial.

Can a class action lawsuit be settled without going to trial?

Many class actions settle and thereby remove the need for a trial. However, we cannot predict with any certainty whether or not there will be a settlement in a given action.

What are the chances of winning the action?

The chances of “winning” can never be accurately predicted.

Will be liable for any costs or legal fees?

Class action lawsuits are typically brought on a contingency fee basis. This means that the lawyers will only be paid if the action is successful at trial or results in a settlement in favour of the plaintiffs. Legal fees would then be paid out of the settlement or judgment proceeds as approved by a judge.

Disbursements (i.e. out-of-pocket expenses, including expert reports) may be dealt with in one of two ways.

Most commonly, the lawyers will absorb the cost of disbursements. The lawyers may seek funding assistance from the Class Proceeding Fund, which may provide funding for disbursements if granted.

In some cases, disbursements may be funded by the class members, including the class representative. This typically occurs in smaller class actions brought on behalf of an organization or network of individuals where each member of the class is easily identifiable and known to the representative plaintiff. If the class action is successful, amounts advanced for disbursements are re-paid from the proceeds of any judgment or settlement to class members (and others).

Will I be liable for costs of the action if it is unsuccessful?

Only the class representative may be liable for costs of the common issues portion of the action if it is unsuccessful.

When can I expect to receive a payout from this class action?

A “payout” or an award for damages is never certain.

The action may settle or it may proceed to trial, at which time a judge will determine the amount of damages, if any, to which the class members are entitled to. Regardless, the amount of “payout” cannot be predicted, and we cannot predict when the action may settle or when the trial will conclude.

How will counsel keep me updated on the progress of the case?

If the lawsuit is certified as a class action, you will receive a formal notice from the court explaining the nature of the case and providing you with the opportunity to opt out if you wish. General information about the lawsuit will be posted on Sotos LLP’s website at https://www.sotosclassactions.com.

Where can I send any documents that I have that may be relevant to a class action?

We ask that you keep a copy of any documents, correspondences, records, invoices, receipts, etc. that you feel might be relevant to your individual claim in the class action. If there is a “payout,” this documentation may be required in order to support your claim for compensation.

It is not required that you send any documents to us at this time.