Antonio Di Domenico

The plaintiffs in 17 auto parts price-fixing class actions brought motions for approval of distribution protocols, an order compelling automakers to produce customer information, and approval of honoraria for representative plaintiffs.

The court approved the Omnibus and CVJB Distribution Protocols, finding them fair, reasonable, and in the best interests of the class.

The court also ordered the automakers to produce the requested customer information pursuant to section 12 of the Class Proceedings Act, 1992, and approved modest honoraria for the representative plaintiffs given their long-term commitment to the litigation.

The plaintiffs brought motions for the approval of 12 settlement agreements totaling $22.6 million in various class actions alleging price-fixing in the global automotive parts industry.

The court found that the proposed settlements fell within the 'zone of reasonableness,' as they were generally 8 to 10 percent of the comparable U.S. indirect purchaser settlements.

The court also approved class counsel's request for a 25 percent contingency fee, totaling approximately $5.4 million, plus disbursements, finding the fee presumptively valid and reasonable.

Following the dismissal of the plaintiffs' motion for certification in an emissions defeat device class action, the successful defendants sought costs totaling $965,012 on a partial indemnity basis.

The plaintiffs argued for a maximum award of $125,000, noting their own costs were $550,263.

The court fixed costs at $560,000 all-inclusive on a partial indemnity scale, finding this amount fair and reasonable given the complexity of the issues, the number of defendant groups, and the costs reasonably incurred by the plaintiffs themselves.

The plaintiffs brought a motion to certify a class action against the defendants regarding an alleged emissions defeat device in certain diesel-engine vehicles.

The defendants had already initiated a recall to repair the defeat device at no cost, rendering the vehicles compliant with emissions regulations.

The court dismissed the certification motion, finding that the plaintiffs failed to provide any evidence of compensable harm, such as paying a premium price or experiencing reduced fuel economy post-repair.

Without compensable harm, the court held that a class action would not advance the goals of access to justice, behaviour modification, or judicial economy.

Apotex sought damages for breach of contract and negligence against MDS for deficient bioequivalence studies that the FDA ultimately rejected.

The principal issue on appeal was whether the action was commenced within the two-year limitation period under the Limitations Act, 2002.

The trial judge found the action was timely, determining that discovery occurred on December 11, 2006, when Apotex learned the FDA would not accept the MDS studies.

The Court of Appeal upheld this conclusion but on different grounds, finding that the limitation period did not begin to run until December 11, 2006, based on when Apotex knew that the breach had caused injury, loss or damage.

The Court also upheld the trial judge's findings on breach of contract, mitigation, and damages.

Apotex brought an action against MDS (now Nordion) for breach of contract and negligence arising from bioequivalence studies conducted by MDS for Apotex's generic drug applications to the FDA.

The FDA refused to accept the studies due to MDS's failure to comply with U.S. regulatory requirements, forcing Apotex to repeat or certify the studies and delaying the launch of its drugs.

The court found MDS breached the Master Laboratory Services Agreement and its duty of care.

The court rejected MDS's defences regarding standing and the limitation period.

Apotex was awarded over $11.3 million in damages for the costs of repeating/certifying the studies and for lost profits due to the delayed market entry.

Following dismissal of an application seeking enforcement of letters rogatory issued by a United States court in foreign patent litigation, the court addressed costs.

The successful respondent sought full indemnity costs exceeding $72,000, arguing that non‑parties resisting letters rogatory should be fully indemnified.

The court held that while full indemnity may be appropriate in some cases involving non‑party respondents, the scale and quantum of costs remain discretionary and must satisfy the overriding principle of reasonableness and proportionality under s.131 of the Courts of Justice Act and Rule 57.01 of the Rules of Civil Procedure.

The court found the hours and number of legal professionals involved excessive given the limited record and straightforward issues.

Costs were therefore fixed at a reduced all‑inclusive amount.

The applicants sought an order enforcing letters rogatory issued by a United States District Court to compel documentary and oral discovery from the respondent, an Ontario non-party, for use in US patent litigation.

The respondent opposed the application, arguing the request was overly broad and the evidence insufficient.

The Superior Court of Justice dismissed the application, finding the applicants failed to demonstrate that the requested evidence was relevant by Ontario standards, necessary for trial, not otherwise obtainable, identified with reasonable specificity, and not unduly burdensome.

In a Commercial List proceeding involving allegations of fraudulent client statements and failure to supervise a securities representative, the court addressed repeated failures by the parties to comply with procedural timetables and case management orders.

The action had been scheduled twice for summary judgment but the parties failed to complete materials and examinations.

The court previously directed the matter to proceed as a hybrid trial with affidavit evidence-in-chief and cross‑examination at trial, but a self‑represented defendant failed to comply with orders to deliver evidence and served a deficient statement of defence consisting of a blanket denial.

At a further case management attendance, the court declined to make additional procedural orders and instead required the parties to choose between continuing under the hybrid trial timetable on the Commercial List or pursuing conventional discovery under the Rules of Civil Procedure, in which case the matter would be transferred to the Civil List.

An employer in a farming operation was convicted of failing to take every precaution reasonable in the circumstances for the protection of a worker under section 25(2)(h) of the Occupational Health and Safety Act.

An employee fell and broke her leg while descending from a transport storage trailer using portable steps that left a 24-inch gap between the top step and the trailer floor.

The employer appealed, arguing that the concept of "adequacy" did not apply to farming operations and that the steps had been used safely for months without incident.

The appeal was dismissed, with the court finding that the employer failed to provide adequate access and egress to the trailer and that the gap between the steps and trailer floor was self-evidently unsafe.

The appellant elevator maintenance contractor appealed convictions under the Technical Standards and Safety Act, 2000 and Ontario Regulation 209/01 arising from an elevator failure that injured several individuals.

The trial judge convicted the appellant on several strict liability offences relating to inspection failures, unsafe operation of an elevating device, and failure to maintain proper log books, and imposed substantial fines.

On appeal under the Provincial Offences Act, the appellant argued jurisdictional error due to a lost original Information, misinterpretation of regulatory obligations, improper application of the Kienapple principle, and an excessive sentence.

The Superior Court held that reliance on a duplicate Information did not deprive the court of jurisdiction, that the evidence supported the convictions, and that the trial judge properly rejected the due diligence defence.

The court also found no error in the refusal to stay certain counts or in the quantum of the fines.

In a class proceeding arising from a major propane facility explosion, the plaintiffs sought to amend their statement of claim and certify claims against additional defendants associated with the ownership and leasing of the facility property.

The court considered whether the proposed amended pleading satisfied the s. 5(1)(a) requirement of the Class Proceedings Act by disclosing a reasonable cause of action.

Claims in strict liability and nuisance against the property-owning defendants were struck because the pleadings failed to meet the legal prerequisites and improperly characterized the alleged nuisance.

Negligence claims under the Occupiers’ Liability Act were also dismissed because the alleged damages occurred off the premises and the statute only applies to persons entering the premises.

However, the court held that the plaintiffs had properly pleaded a viable common law negligence claim based on the defendants’ alleged rights of control and failure to intervene in unsafe operations.

Certification against the remaining defendants proceeded solely on the basis of the common law negligence cause of action.

In a certified class proceeding arising from explosions at a propane facility, class counsel moved for an order restraining an insurer and its counsel from communicating directly with class members during the court‑approved opt‑out period.

The insurer’s counsel had sent letters stating the insurer would opt insured class members out of the class action and pursue their claims through a subrogated action.

The court held the communications were misleading, interfered with the solicitor‑client relationship between class counsel and class members, and violated the Rules of Professional Conduct.

The court reaffirmed that insureds retain control of litigation until fully indemnified for both insured and uninsured losses.

An order was made prohibiting the insurer and its counsel from communicating with affected class members without court approval or consent of class counsel during the opt‑out period.

The plaintiffs sought certification of a proposed class action arising from explosions at a propane facility in Toronto that allegedly caused personal injury, property damage, and evacuation of nearby residents.

The court considered the certification requirements under s. 5 of the Class Proceedings Act, 1992.

It held that the pleadings against certain landlord defendants failed to disclose a viable cause of action because the allegations relying on agency, single‑group enterprise, and alter‑ego theories lacked material facts capable of piercing the corporate veil.

Those pleadings were struck with leave to amend and the certification motion against those defendants was adjourned.

The proceeding was otherwise certified as a class action against the remaining defendants, with common issues approved and representative plaintiffs appointed.

In a proposed class action arising from a train derailment, the defendants communicated directly with several putative class members during the pre‑certification stage and offered individual settlements in exchange for releases.

The plaintiffs sought disclosure of the releases, rescission of the settlements, and an order preventing further communications between the defendants and putative class members.

The court held that there was no evidence of misconduct or breach of the Rules of Professional Conduct because the communications were sent by the defendants rather than their counsel and there was no proof the defendants knew the recipients were represented.

However, to preserve the integrity of the proposed class proceeding, the court ordered disclosure of the releases and required the defendants to provide class counsel with copies of any future correspondence seven days before distribution while prohibiting communication with putative class members known to be represented.

Rescission of the settlements was refused due to the absence of evidence supporting grounds such as misrepresentation, duress, or unconscionability.

Bell Canada brought an application to strike two arbitration proceedings commenced by Plan Group Inc. (PGI) and its predecessor partnership.

PGI brought a motion to stay the application in favour of arbitration.

The court found that the first arbitration was a nullity because it was commenced by a dissolved partnership that no longer existed.

The court also found that the second arbitration was statute-barred under the Limitations Act, 2002, as the arbitration agreement did not contain clear and express language contracting out of the statutory limitation period.

The court declined to stay the application, finding that the issues were questions of law appropriate for summary judgment under the Arbitration Act, 1991.

The application was granted and the motion to stay was dismissed.