Celeste Poltak

This decision addresses a rehearing on class counsel's legal fees and the calculation of the Class Proceedings Fund (CPF) levy in a class action settlement.

The court approved the 25% contingency fee, finding it fair and reasonable based on the risk incurred and results achieved, despite an earlier judge's concerns about the settlement's modesty.

The court also determined that the CPF levy should be calculated on the total amount class members were entitled to receive ($10.2 million), rather than the amount actually paid out ($7.5 million), aligning with the settlement agreement and O. Reg. 771/92.

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.

The appellant appealed the dismissal of her motion to certify a class action against the Hospital for Sick Children and others regarding the systemic negligence of the Motherisk Drug Testing Laboratory.

The motions judge had found that a class proceeding was not the preferable procedure because resolving the common issues of systemic negligence would not significantly advance the individual class members' claims, which required highly individualized proof of causation and damages.

The Divisional Court dismissed the appeal, finding no error of law or palpable and overriding error in the motions judge's discretionary balancing of the preferable procedure factors.

This is a costs endorsement following the release of reasons in an appeal.

The respondents advised that the court had misapprehended the appellants' oral costs submissions regarding quantum.

The parties were permitted to provide further written submissions on the costs issue.

The court affirmed its costs order for the appeal but altered the costs of the motion below, reducing the amounts payable by Bank of Montreal and Toronto Dominion Bank.

The appellants sought to add Toronto Dominion Bank and Bank of Montreal as defendants to an existing class action alleging a secret conspiracy to manipulate the foreign exchange market.

The motion judge dismissed the motion on the basis that the claim against the respondents was statute-barred under the Limitations Act, 2002.

The Court of Appeal allowed the appeal, finding that the motion judge erred by establishing too high an evidentiary threshold and by finding that the respondents' identities could have been discovered with reasonable diligence without proper evidentiary foundation.

The court held that the appellants provided a reasonable explanation for why they could not have identified the respondents before the limitation period expired, and that the issue of due diligence should be determined on a summary judgment motion or at trial.

The representative plaintiff brought a motion for approval of a $15 million settlement in a class action against Ontario regarding systemic negligence and breach of fiduciary duty at provincially-run schools for the deaf.

The court found the settlement to be poor for the majority of the class, as 90% of the student class and 100% of the family class would receive no compensation.

However, given the significant litigation risks and the lack of aggregate damages available, the court approved the settlement as falling within the zone of reasonableness.

The court also approved class counsel's fee request of $3.75 million, but on the condition that counsel donate $1.5 million to a charity for the deaf to introduce a cy-près element and provide some benefit to the uncompensated class members.

Indigenous peoples from Ecuador obtained a US$9.5 billion judgment against Chevron Corporation for environmental devastation caused by oil exploration.

After failing to enforce the judgment in the United States due to findings of fraud by the plaintiffs' counsel, they sought to enforce it in Ontario against Chevron Canada, a seventh-level subsidiary.

The motion judge dismissed the claim, finding that Chevron Canada's shares and assets were not exigible under the Execution Act and that the corporate veil should not be pierced.

The appellants appealed, arguing both that the Execution Act permitted seizure of Chevron Canada's assets and that the corporate veil should be pierced in the interests of justice.

The Court of Appeal dismissed the appeal on the merits but reduced the costs award, recognizing the litigation as public interest litigation.

Indigenous Ecuadorian villagers obtained a US$9.5 billion judgment against Chevron Corporation in Ecuador for environmental pollution.

They sought to enforce the judgment in Ontario against Chevron Corporation and its seventh-level indirect subsidiary, Chevron Canada.

The motion judge granted an order requiring the plaintiffs to post security for costs of approximately $942,951 before the appeal could proceed.

The appellants moved to vary this order.

The Court of Appeal set aside the security for costs order, finding that the motion judge erred in principle by failing to conduct a holistic analysis of the justness of the order in all circumstances.

The court emphasized that security for costs orders must be just and should not be used as a litigation tactic to prevent cases from being heard on their merits.

A class action appeal concerning copyright ownership in plans of survey registered or deposited in Ontario's electronic land registry system (ELRS).

The appellant land surveyors claimed that Teranet Inc., which operated the ELRS, infringed their copyright by digitizing, storing, and copying their survey plans.

The motion judge granted summary judgment dismissing the action, finding that copyright in registered or deposited plans belonged to the Province of Ontario under section 12 of the Copyright Act.

The Court of Appeal affirmed this decision, holding that the provincial land registration scheme gave the Crown complete control over registered plans, and that the Crown's publication of those plans through the ELRS occurred under the Crown's direction or control, thereby vesting copyright in the Crown.

The Ecuadorian plaintiffs sought to enforce a judgment of approximately 9.5 billion dollars from an Ecuadorian court against Chevron Corporation and its subsidiary, Chevron Canada Limited, in Ontario.

Following the Supreme Court of Canada's affirmation of Ontario's jurisdiction to hear the enforcement action, the motion judge granted summary judgment in favor of Chevron and Chevron Canada, dismissing the plaintiffs' claims on the basis of separate corporate personality.

The plaintiffs appealed.

Chevron and Chevron Canada brought a motion for security for costs.

The court held that security for costs was warranted because the plaintiffs were ordinarily resident outside Ontario, had not demonstrated impecuniosity, and had not established a good chance of success on appeal.

The court rejected the plaintiffs' argument that a new approach to security for costs should apply to foreign judgment enforcement actions, finding that comity does not require foreign litigants to be treated more favorably than domestic litigants.

This class action concerned historical abuse at the W. Ross MacDonald School for the Blind.

The court approved an $8,000,000 settlement fund, finding it fair, reasonable, and in the best interests of the class, particularly given the litigation risks and the advanced age of many class members.

The settlement provided for a paper-based, non-adversarial claims process with compensation up to $45,000 per claimant, free from tax claw-backs.

The court also approved a $15,000 honorarium for the representative plaintiff and fixed class counsel's legal fees at $2,412,534 plus HST and disbursements, emphasizing the risks undertaken and results achieved over mere docketed time.

The plaintiffs sought leave to appeal a motion judge's decision that refused to strike out several paragraphs of the defendant's statement of defence.

The underlying action involved the recognition and enforcement of a $9.5 billion Ecuadorian judgment.

The defendant pleaded defences of fraud, public policy, and lack of natural justice, alleging the foreign judgment was ghostwritten and obtained through bribery.

The Divisional Court dismissed the motion for leave to appeal, finding no conflicting decisions and no good reason to doubt the correctness of the motion judge's order, as the pleaded defences were recognized in law and not plainly and obviously bound to fail.

The plaintiffs moved to add Chevron Canada Capital Company (CCCC) as a party defendant to their action seeking to enforce an Ecuadorian judgment against Chevron Corporation.

The court dismissed the motion, finding that the proposed amendment was not legally tenable and disclosed no cause of action against CCCC, as the court had previously ruled that Chevron Canada's corporate veil could not be pierced.

Furthermore, the court found no basis for jurisdiction over CCCC, a Nova Scotia company with no assets or operations in Ontario, and noted that Rule 17.02(o) regarding necessary parties had been repealed.

The plaintiffs sought to enforce a US$9.5 billion Ecuadorian judgment against Chevron Corporation and its seventh-level indirect subsidiary, Chevron Canada Limited.

The defendants moved for summary judgment to dismiss the claim against Chevron Canada, arguing it was a separate legal entity not liable for the judgment.

The plaintiffs argued Chevron Canada's assets were exigible under the Execution Act or that the corporate veil should be pierced.

The court granted summary judgment dismissing the claim against Chevron Canada, finding the Execution Act does not override corporate separateness and there was no basis to pierce the corporate veil absent allegations of wrongdoing by the subsidiary.

The plaintiffs also moved to strike Chevron's statement of defence.

The court struck defences relating to retroactive legislation and international law, but permitted defences alleging the Ecuadorian judgment was procured by fraud, bribery, and a denial of natural justice to proceed to trial.

The moving parties sought leave to appeal a decision dismissing their motion to disqualify the respondents' counsel of record due to an alleged conflict of interest.

The conflict allegation arose after an associate lawyer, who previously worked at the law firm representing the moving parties, joined the law firm representing the respondents.

The court applied the test for leave to appeal under Rule 62.02(4) of the Rules of Civil Procedure.

The court found no conflicting decision to satisfy Rule 62.02(4)(a) and no reason to doubt the correctness of the motion judge's order or any matter of general importance to satisfy Rule 62.02(4)(b).

The motion for leave to appeal was dismissed with costs awarded to the respondents.

The Uber defendants in a proposed class action moved to disqualify Sutts Strosberg LLP as class counsel, alleging a conflict of interest.

The defendants claimed the firm failed to install adequate internal screens when hiring a lawyer who had previously acted for Uber in related litigation.

The court dismissed the motion, finding that the lawyer did not acquire relevant confidential information and that Sutts Strosberg had implemented reasonable measures to prevent disclosure, including pre-existing internal safeguards and a prompt full screen upon receiving notice of the alleged conflict.

The court emphasized that removal of counsel is a remedy of last resort and that minor technical errors do not warrant disqualification.

This motion concerned the certification of a class proceeding against the provincial Crown for alleged physical, emotional, and sexual abuse perpetrated against students at three residential schools for the deaf.

The action pleaded claims in negligence and breach of fiduciary duty, as well as Family Law Act derivative claims.

The motion for certification was brought on consent and was granted, as all criteria under the Class Proceedings Act, 1992 were satisfied.

The defendants brought a motion to quash the plaintiff's motion for certification of a common law misrepresentation claim, arguing that the court was functus officio, the motion was res judicata, or it constituted an abuse of process.

The court granted the defendants' motion, finding that the preferability of a stand-alone common law misrepresentation claim had already been determined and rejected in a prior certification decision.

This prior determination, which was not appealed, barred re-litigation of the issue under the doctrines of issue estoppel or abuse of process.

However, the court allowed the plaintiff to bring a motion under s. 7 of the Class Proceedings Act, 1992, to continue the action as an opt-in joinder proceeding for class members with significant claims.

This decision approves a $35.9 million class action settlement and legal fees for a fourth class action concerning abuses in provincial "Schedule 1" facilities.

The settlement mirrors three previous approvals (Huronia, Rideau, Southwestern) and provides a claims-based compensation scheme for individuals with developmental disabilities who resided in 12 named facilities.

The court found the settlement to be fair and reasonable, particularly because the Huronia settlement, which served as the template, was reached just before trial, ensuring counsel had a comprehensive understanding of litigation risks and rewards.

The Court addressed three securities class action appeals on whether limitation periods for statutory secondary-market misrepresentation claims are suspended before leave is granted, and on related nunc pro tunc, special circumstances, leave-threshold, and certification issues.

The CIBC and IMAX appeals were dismissed, while the Celestica appeal was allowed.