The Divisional Court certified the following as the common issues to be determined in the case as submitted by the franchisees:

(1.) Have the Quizno’s Defendants, or any of them, engaged in conduct contrary to Section 61(1) of the Competition Act?

(2.) Have the Defendants, or any of them, engaged in conduct that amounts to civil conspiracy?

(3.) Have the Quizno’s Defendants, or any of them, engaged in conduct which constitutes a breach of their contractual obligations to the class members?

(4.) Have the class members suffered loss or damage as a result of any of the conduct referred to in issues (1.), (2,), or (3.)? If so, what is the appropriate measure or amount of such loss or damages?

(5.) Should the court award an aggregate assessment of monetary relief on behalf of some or all class members? If so, what is the amount of the aggregate assessment and how should the class members share in the award?

(6.) Should the Defendants pay punitive, exemplary or aggravated damages to the class members? Should such damages be assessed in the aggregate? If so, what is the amount of such damages including pre- and post-judgment interest thereon?

(7.) Are the class members entitled to recover from the Quizno’s Defendants the full costs of their investigations and the full costs of this proceeding, including contingent legal fees on a complete indemnity basis, under s.36(1) of the Competition Act?

The issue of whether the action should not be allowed to proceed due to existence of a class action waiver provision in the franchise agreements in issue will not be considered by the Court of Appeal. As previously reported in this newsletter, when the class proceedings judge initially denied certification, he also ruled in favour of the franchisees that the class action waiver provision in the franchise agreements was unenforceable. Quizno’s did not originally appeal that finding. Quizno’s later tried to appeal but the Court of Appeal ruled against Quizno’s to deny it the right to appeal that decision given Quizno’s original decision not to file its appeal.

Our firm is representing the franchisee class in this action which, in addition to the certification motion itself, has been the subject of approximately 20 interlocutory motions brought primarily by the defendants. Our firm’s website contains a summary of the procedural history of the action.