Caroline H. Humphrey

The applicant, Fay Smith, moved to set aside minutes of settlement and a full and final release, alleging she was coerced under duress by her former counsel and Crown counsel.

The court applied the two-part test for duress from *Kawartha Capital Corp. v. 1723766 Ontario Limited*, requiring proof of pressure leaving no choice and illegitimate pressure.

The court found that the applicant received extensive and thoughtful independent legal advice throughout the litigation and mediation process.

The pressure experienced was deemed typical of litigation and did not meet the threshold for economic duress.

The court also found no evidence of collusion between counsel to cover up alleged Ministry malfeasance.

The applicant's motions were dismissed.

The plaintiffs appealed the dismissal of their motion to certify a class action against several discount brokers regarding the receipt of mutual fund trailing commissions.

The motion judge had found no basis in fact for the core proposed common issue of whether the receipt of such commissions contravened applicable Canadian securities law prior to their explicit prohibition in 2022.

The Divisional Court dismissed the appeal, finding that the motion judge correctly applied the 'some basis in fact' test, properly concluded that all pleaded causes of action relied on the allegation of illegality, and appropriately held the plaintiffs to their strategic concession that the entire action would fail if the core issue was not certified.

The plaintiff brought an unopposed motion to certify the proceeding as a class action under the Class Proceedings Act, 1992.

The action alleges that the defendant improperly paid trailing commissions to discount brokers out of mutual fund assets.

The court found that all certification criteria were met, relying on previous decisions in similar cases, and granted the certification order.

This endorsement addresses the sequencing of motions in a series of related class actions.

The 2018 plaintiffs sought a temporary stay of the 2022 actions.

The defendants proposed hearing the stay motion concurrently with their summary judgment motions, citing limitation period defenses.

The 2022 plaintiffs argued for their certification motion to proceed if the stay was delayed.

The court, acting as case management judge, directed that the motion to stay be heard first, finding no significant efficiencies in combining it with the summary judgment motions and stating that certification motions should only proceed after summary judgment motions are determined.

The moving party sought leave to appeal an order dated December 19, 2022.

The Divisional Court dismissed the motion for leave to appeal in writing and awarded costs of $10,000 inclusive to the responding party.

This endorsement addresses the costs of a dismissed summary judgment motion in a medical malpractice action.

The plaintiffs, having successfully resisted the defendant's motion for summary judgment based on a limitation defence, were entitled to costs on a partial indemnity basis.

The court significantly reduced the plaintiffs' claimed costs of $49,295.22 to $12,000.00, finding the hours billed excessive and disallowing certain disbursements, including the cost of an expert medical report deemed necessary for the main action rather than the specific motion, and unverified copying and computer search fees.

The plaintiffs brought a motion to certify a class action against seven discount brokers, alleging that their receipt of mutual fund trailing commissions prior to the 2022 prohibition was illegal.

The court found that the plaintiffs failed to satisfy the 'some evidence' requirement to show that the practice contravened applicable Canadian securities law.

The evidence filed by the plaintiffs themselves demonstrated that the practice, while controversial, was not illegal before the regulatory amendments took effect.

The motion for certification was dismissed.

The plaintiffs in two putative class actions sought leave to discontinue one action entirely and partially discontinue the second against all but one defendant group.

This procedural step aimed to streamline the proceedings by converting omnibus actions into separate class proceedings against distinct defendant groups.

The defendants did not oppose the requests.

The court granted leave for both discontinuances, recognizing the efficiency gains.

The plaintiff sought an interlocutory injunction restraining the defendant from reverting to an earlier commission structure under a commercial sales and service arrangement.

The court held that the plaintiff established a strong prima facie case that a 2020 amending agreement was binding despite the absence of signatures, based on objective intention, ostensible authority, and the parties' conduct in performing the amended terms for over two years.

The court further found a meaningful risk of irreparable harm because the plaintiff faced collapse of its cash flow, loss of workforce, employment contract breaches, and potential business failure if the lower commission model remained in place.

The balance of convenience favoured the plaintiff because any loss to the defendant was compensable in damages.

The injunction was granted, conditional on a sworn undertaking as to damages.

The defendant surgeon brought a motion for summary judgment to dismiss the plaintiffs' medical malpractice action as statute-barred under the Limitations Act, 2002.

The plaintiff suffered a ureter injury following a colon resection in 2012, but only discovered severe kidney damage in 2016, prompting the 2017 lawsuit.

The court dismissed the motion, finding genuine issues requiring a trial regarding whether the kidney damage was a new, distinct injury or an inevitable progression of the ureter injury, and when a reasonable person would have known that a legal proceeding was an appropriate means to seek a remedy.

This endorsement concerns the costs arising from successful summary judgment motions brought by Eaton Industries (Canada) Company and The Corporation of The City of London against Albert Bloom Limited (ABL).

The motions dismissed ABL's claims as statute-barred.

ABL conceded entitlement to costs but disputed the quantum, alleging duplication and excessiveness, particularly given Eaton's prior cost award in a related third-party motion.

The court found the claimed costs reasonable, noting the significance of the litigation, Eaton's efforts to avoid duplication, and ABL's failure to disclose its own costs for comparison.

This decision resolves a carriage motion between two competing proposed class actions (the Bonnick Action and the Blackford-Hall Action) concerning alleged predatory practices in the consumer marketplace for HVAC equipment.

The court interpreted the newly enacted section 13.1 of the Class Proceedings Act, 1992, which focuses on efficiency, productivity, and proportionality.

The court granted carriage to the Bonnick Action, finding its regional scope and targeted case theory against the alleged mastermind and lender corporations to be more efficient and cost-effective than the Blackford-Hall Action's national scope and broader conspiracy claims against multiple defendants.

The plaintiffs brought a motion to certify the action as a class proceeding for settlement purposes against TD, RBC, Credit Suisse, and Deutsche Bank in a case alleging a conspiracy to fix prices in the futures exchange market.

The court found that the criteria for certification under section 5(1) of the Class Proceedings Act, 1992 were met and granted the motion, approving the settlement agreements and the plan of dissemination.

The plaintiff brought a class action alleging that the defendant mining company made secondary market misrepresentations by failing to disclose the negative opinions of one of its mining consultants regarding a mineral resource estimate.

On cross-motions for summary judgment, the court dismissed the action, finding that the consultant's opinions were unsolicited, inexpert, premature, and based on unreliable data.

The court held that the defendants were not obliged to disclose unreliable information, meaning there was no omission of a material fact.

In the alternative, the court found that the defendants satisfied the reasonable investigation defence under the Securities Act.

Class Counsel brought a motion for approval of a further instalment of fees in an ongoing competition law class action regarding alleged price-fixing in the foreign exchange market.

The plaintiffs had settled with fourteen groups of defendants and the action continued against the remaining non-settling defendants.

The court reviewed the risks undertaken, the results achieved, and the docketed time, finding the requested fees of $6,325,000, plus costs and disbursements, to be fair and reasonable.

The fee request was approved.

The plaintiffs in a class action regarding foreign exchange price fixing brought a motion to amend the Distribution Protocol for the $110 million settlement proceeds.

The proposed amendments included transferring unused funds from the Indirect Claims Fund to the Direct Claims Fund, setting a minimum $1,000 payout for approved Direct Claimants, and removing the requirement to consider compensation received in other jurisdictions.

The court granted the motion, finding the amendments were administrative, imposed no additional burden on the defendants, and fell within the court's broad discretion under section 12 of the Class Proceedings Act, 1992.

The plaintiffs brought a motion to amend their statement of claim to include a claim for battery and punitive damages against the defendant plastic surgeon.

The court found that the proposed amendment to include battery introduced new material facts and a new cause of action that was statute-barred by the Limitations Act, 2002, due to inordinate delay.

However, the court allowed the amendment to include a claim for punitive damages, finding no prejudice.

The Plaintiffs sought partial indemnity costs and disbursements totaling $1,391,715.45 following a successful, but partially limited, certification motion in a class action against several financial institutions.

The Defendants argued for a significant reduction, citing their substantial success in narrowing the class definition and potential double recovery from prior settlements.

The court awarded the Plaintiffs $700,000 in legal fees and HST, payable forthwith, and ordered disbursements of $468,705.06 payable in the cause.

The reduction in fees reflected the Defendants' success in streamlining the class action and reducing their potential liability, which the court deemed important for the integrity of the class actions regime and to discourage overambitious claims, without constituting a distributive costs award.

The plaintiffs brought a motion to certify a class action against several banks for allegedly conspiring to fix prices in the foreign exchange market.

The court found that the plaintiffs satisfied the five criteria for certification under the Class Proceedings Act, 1992, but modified the class definition to exclude indirect purchasers (investors) and direct purchasers who transacted with non-defendant banks.

The court certified the action for direct purchasers who transacted with the defendant banks.

This decision addresses the issue of costs following a professional liability claim where the plaintiffs sought over $16 million in damages but were ultimately awarded only $2,000 in nominal damages for breaches of fiduciary duty by the defendants.

The court determined that the defendants were the successful parties, having largely resisted the substantial monetary claim.

Despite findings of serious fiduciary duty breaches against the defendants (a law firm and a former in-house counsel), the court awarded costs to the defendants, but reduced the quantum by over 25% to $925,000 to reflect the seriousness of their misconduct.