Calie Adamson

This decision addresses two class actions, Francis v. Ontario and Chandra v. Ontario, concerning administrative segregation of inmates in Ontario correctional facilities.

The court heard motions for approval of a settlement in Chandra and a comprehensive claims protocol (Francis/Chandra Protocol) for both actions.

The Protocol establishes a three-track claims program for distributing aggregate damages and assessing individual claims.

The court granted both motions, finding the settlement and protocol fair, reasonable, and in the best interests of the class members, commending counsel for their diligent and exemplary work in pursuing access to justice.

This endorsement concerns the approval of a class action settlement and class counsel fees in two consolidated proceedings (Johnson et al. v. Ontario and Sabourin v. Ontario) alleging deplorable conditions at the Elgin-Middlesex Detention Centre.

The court approved a settlement of $32,795,400 and class counsel fees of $9,388,207.92, finding the settlement to be fair, reasonable, and in the best interests of the class, given the significant litigation risks, the protracted nature of the actions, and the desire for a certain outcome for the thousands of affected class members.

The contingency fee agreements and the requested fees were also deemed fair and reasonable.

The moving parties brought a motion for leave to appeal the order of Koehnen J. dated May 11, 2022.

The Divisional Court dismissed the motion for leave to appeal and awarded costs to the respondent in the amount of $4,500.

On a motion in a prisoner segregation class proceeding, the court approved class counsel’s contingency fee agreement, a $7.5 million class counsel fee plus HST, the statutory levy payable to the Class Proceedings Fund, and a $15,000 honorarium for the representative plaintiff.

The court held that the litigation was extraordinarily risky, legally and factually complex, and had produced a very substantial result, including a $30 million aggregate damages award that had been upheld on appeal.

Applying class action fee approval principles, the court found the reduced 25% fee request fair and reasonable.

Applying the exceptional contribution framework for representative plaintiff honoraria, the court found the representative plaintiff’s leadership and assistance instrumental to the class’s success.

This motion for directions addresses appeals of rejected claims in a class action settlement concerning cathode ray tubes (CRT) products.

The Claims Administrator had rejected claims, often using generic reasons, for insufficient proof of purchase.

The court clarified the interpretation of the Distribution Protocol, emphasizing that while declarations alone are insufficient"comparable verification" should be accepted.

The court also ruled that the Claims Administrator and Class Counsel do not have the authority to unilaterally amend the appeal process, which is under court control.

The appeals for certain class members were allowed and remitted for reconsideration, with directions for the Claims Administrator to provide fact-specific and instructive grounds for future decisions.

The plaintiffs moved for approval of a settlement agreement and class counsel fees in a product liability class action concerning defective Takata airbags installed in Honda vehicles.

The settlement provided a recall remedy, reimbursement of out-of-pocket expenses, and an outreach program, though its total monetary value was not readily calculable.

The court found the settlement to be fair, reasonable, and in the best interests of the class, noting the significant safety risks addressed.

The court also approved class counsel's fee request of $5,750,000 plus disbursements, finding it reasonable given the risks undertaken and the results achieved.

The defendants in a settled class action brought a motion for orders authorizing provincial and territorial authorities to disclose vehicle owner information.

This information was required to implement the court-approved notice plan.

The provinces and territories consented to or did not oppose the relief sought.

The court granted the requested orders, noting that in the circumstances of the Covid-19 emergency, the reasons for decision would be deemed an operative order.

The appellants, former senior executives of Sino-Forest Corporation, appealed the Ontario Securities Commission's decisions finding they engaged in a massive securities fraud and imposing significant sanctions, including disgorgement and administrative penalties.

The appellants argued the Commission failed to account for Chinese business and cultural practices (guanxi) when determining their intent to defraud, alleged a reasonable apprehension of bias by the panel chair, and challenged the sanctions as excessive.

The Divisional Court dismissed the appeal, holding that Ontario securities law overrides cultural practices for reporting issuers, the bias claim was unfounded, and the sanctions were reasonable given the enormity of the fraud and the need for deterrence.

The appellants, former executives of Sino-Forest Corporation, appealed the Ontario Securities Commission's decisions finding they engaged in a massive securities fraud and imposing significant sanctions, including over $11 million in administrative penalties and $64 million in disgorgement.

The appellants argued the Commission failed to properly consider Chinese business and cultural practices (guanxi) when assessing their intent to commit fraud, alleged a reasonable apprehension of bias by the hearing chair, and challenged the sanctions as excessive.

The Divisional Court dismissed the appeal, finding the Commission reasonably concluded that Ontario securities law overrides cultural explanations for illegal conduct, there was no reasonable apprehension of bias, and the sanctions were proportionate to the enormity of the fraud.

The plaintiffs in a class action sought an order approving the certification of the action for settlement purposes, appointing representative plaintiffs, and approving notice and opt-out procedures.

The action concerned defective Takata airbags in Honda vehicles, following approximately 1.52 million vehicle recalls in Canada.

The court found that all criteria for certification under the Class Proceedings Act, 1992, were met, noting that these criteria may be applied less rigorously in a settlement context.

The motion was granted, approving the certification for settlement and related procedures.

This initial case conference for a proposed class action addressed the scheduling of proceedings leading to a certification motion.

The primary issue was whether the defendant's challenge to the plaintiff's cause of action should proceed as a pre-certification motion under Rule 21 of the Rules of Civil Procedure or be raised within the certification motion under section 5(1)(a) of the Class Proceedings Act.

The court, emphasizing the avoidance of 'litigation by instalments,' determined that the cause of action challenge should be made during the certification motion to prevent piecemeal litigation and potential delays from pre-certification appeals.

A schedule for the certification motion was subsequently set.

This is a proposed class action seeking certification against Samsung Electronics Canada Inc. regarding allegedly defective Galaxy Note7, S7, and S7 Edge smartphones.

The plaintiff alleged misrepresentation, breach of consumer protection and sale of goods acts, negligence, unjust enrichment, and waiver of tort, claiming inadequate compensation for losses from a recall program.

The court dismissed the motion for certification, finding that the misrepresentation and statutory claims lacked contractual privity between the manufacturer and consumers, and were inadequately pleaded.

Claims for data loss and pain and suffering were deemed highly individualized, lacking commonality.

Furthermore, the plaintiff's expert failed to establish a credible methodology for class-wide damages.

The court concluded that a class action was not the preferable procedure, given Samsung's voluntary compensation program which addressed access to justice and behaviour modification concerns.

The appellants appealed the dismissal of their motion for certification of a proposed class proceeding against the manufacturers of the anti-coagulant drug Pradaxa.

The appellants alleged the respondents breached a duty to warn that there was no antidote for the drug.

The motions judge found that the duty to warn was not a common issue, concluding there was no basis in fact that the failure to warn was a source of harm common across the class.

On appeal, the Divisional Court held that the motions judge did not err in principle or impermissibly weigh competing expert evidence, but correctly applied the 'some basis in fact' test using undisputed evidence.

The appeal was dismissed.

Following the dismissal of the plaintiffs' action after a 26-day trial, the successful defendant sought costs on a substantial indemnity basis.

The plaintiffs argued the defendant should be deprived of costs because two of its witnesses gave untruthful evidence.

The court declined to award substantial indemnity costs, finding the plaintiffs' conduct was not egregious.

The court also refused to completely deprive the defendant of costs, but applied a 10% reduction to the fee award to sanction the untruthful testimony.

The court significantly reduced the defendant's claimed expert witness disbursements, finding them grossly excessive, and fixed total fees at $483,300 plus disbursements and HST.

The plaintiffs, a grain elevator business and a seed business, sued their bank for refusing to advance funds to pay margin calls on their grain hedges.

The bank's refusal forced the plaintiffs to liquidate their hedges at a significant loss.

The plaintiffs argued the bank was required to give reasonable notice before refusing to advance funds, based on contract, negligence, and fiduciary duty.

The Superior Court of Justice dismissed the action, finding that the plaintiffs were in default of their loan agreements and overdrawn on their credit limits.

The court held that the bank had no contractual obligation to extend further credit, nor was there an implied term, duty of care, or fiduciary duty requiring the bank to provide reasonable notice before refusing to fund the margin calls.

The plaintiffs brought a motion for certification of a class action against the manufacturers of Pradaxa, an anticoagulant drug.

The plaintiffs alleged that the defendants breached their duty to warn consumers and healthcare professionals about the lack of an antidote for the drug, which could lead to excessive bleeding.

The court dismissed the certification motion, finding that the plaintiffs failed to establish that the proposed common issues actually existed or could be answered in common across the class.

The court noted that the decision to prescribe an anticoagulant and the need for a reversal agent are highly patient-specific, and there was no basis in fact to conclude that the absence of an antidote posed a common and material risk across the class.

This ruling addresses the admissibility of opinion evidence from a former employee as a "participant expert" under *Westerhof v. Gee Estate*.

The court confirmed the witness's qualification and impartiality, allowing the evidence.

However, it imposed strict limitations, requiring the opinion evidence to be directly connected to the witness's observations and participation in the events at issue during their employment, and not to broader, temporally disconnected studies or activities.

The plaintiff moved for a Mareva injunction to freeze approximately $1.1 million held in a custody account belonging to the defendant, alleging the funds were mistakenly paid.

The court dismissed the motion, finding the plaintiff failed to establish a strong prima facie case, a real risk of asset dissipation for an improper purpose, or irreparable harm.

The defendant's intention to withdraw the funds was deemed a legitimate part of its corporate wind-down process.

In a proposed pharmaceutical products liability class action concerning the anticoagulant drug Pradaxa®, the defendants sought production of additional medical records of the proposed representative plaintiffs prior to the certification motion.

The plaintiffs resisted, arguing certification is a procedural step and that extensive medical disclosure was unnecessary and intrusive at the pre‑certification stage.

The court held that the scope of pre‑certification disclosure depends on the nature of the particular class action and that, in a drug‑related products liability claim alleging serious adverse effects, more detailed medical evidence was relevant to the certification criteria.

The court concluded it was apparent from the pleadings that limited records confirming ingestion of the drug were insufficient.

Production of the requested medical records was therefore ordered.

The applicants sought leave to appeal a Superior Court judge's order that overturned a Master's decision requiring the respondent to pay security for costs.

The Master had found the respondent was ordinarily resident outside Ontario and had insufficient assets.

The Superior Court judge reversed this, finding the respondent's directors and officers resided in Ontario and it had sufficient assets in a trust account.

The Divisional Court refused leave to appeal, holding that the Superior Court judge correctly applied the corporate residency test to the specific facts and that the issues did not raise matters of public importance warranting leave.