Celeste Poltak

Following certification of a class proceeding concerning alleged systemic abuse at a provincial institution, the court determined the appropriate costs award for the certification motion.

The plaintiff sought full indemnity costs, arguing that the defendant increased litigation expenses by delaying disclosure of its position and by re‑litigating issues previously rejected in similar proceedings.

The court held that while the defendant’s conduct was frustrating, it did not reach the threshold of “reprehensible, scandalous or outrageous” behaviour required for full indemnity costs.

However, because the plaintiff had delivered an unaccepted offer to settle, Rule 49.10 of the Rules of Civil Procedure justified partial indemnity costs up to the date of the offer and substantial indemnity costs thereafter.

The requested amounts were found reasonable and were awarded accordingly.

In a certified class proceeding concerning alleged systemic abuse and mistreatment of residents at a provincial facility for individuals with developmental disabilities, the plaintiffs brought a Rule 21 motion seeking a pre‑trial determination that the defendant owed the class a duty of care and fiduciary duty.

The defendant opposed the motion, arguing that the existence and scope of such duties required a full evidentiary record and should be determined at the common issues trial.

The court held that deciding only part of the duty analysis prior to trial would improperly fragment the inquiry and risk duplicative consideration of evidence.

Exercising case management powers under s. 12 of the Class Proceedings Act, 1992, the court directed that the motion not proceed before the common issues trial.

The plaintiff brought a class action against the Attorney General of Canada alleging Health Canada was negligent in regulating temporomandibular joint implants.

The defendant moved to decertify the action, arguing the pleadings did not establish a private law duty of care.

On a special case stated to the Court of Appeal, the court held that while a regulator's public statements alone do not create proximity, the plaintiff's allegations that Health Canada repeatedly misrepresented the safety of the implants and failed to correct the misrepresentation despite knowing the risks could arguably establish a prima facie duty of care.

The motion was granted, allowing the claim to proceed.

The moving party sought certification of a class action alleging systemic physical, emotional, and sexual abuse of visually impaired students at a provincially operated residential school.

The claim alleged negligence and breach of fiduciary duty arising from the province’s operation and supervision of the institution over several decades.

The court held that the pleadings disclosed viable causes of action in negligence and breach of fiduciary duty, including claims predating 1963.

It found an identifiable class, common issues relating to systemic misconduct, and that a class proceeding was the preferable procedure for resolving the claims.

The proposed representative plaintiff and litigation plan were found adequate, and the action was certified as a class proceeding.

The appellants, plaintiffs in a certified class action alleging abuse at a residential school, appealed a motion judge's order granting the respondents leave to issue third-party claims for contribution and indemnity against the students' parents and guardians.

The appellants argued that the third-party claims were legally untenable because they had limited their claims to the several liability of the respondents.

The Divisional Court allowed the appeal, applying the Court of Appeal's decision in Taylor v. Canada, holding that where a plaintiff limits their negligence claim to damages caused solely by the defendant, there is no right to claim contribution and indemnity.

Furthermore, liability for breach of fiduciary duty is not subject to apportionment.

The order permitting the third-party claims was set aside.

In an environmental class action concerning historic nickel emissions from a refinery, the appellant challenged findings of nuisance, strict liability, and aggregate damages for alleged property value stigma following public concern about soil nickel levels.

The Court of Appeal held that a mere chemical alteration of soil, without detrimental effect on the land or its use, does not constitute actual, substantial, physical damage for private nuisance.

The court also held that Ontario law does not recognize strict liability based solely on allegedly extra-hazardous activity, and that the refinery operation was not a non-natural use within the Rylands v. Fletcher framework.

The claimants further failed to prove any compensable diminution in property values on a proper analysis of the valuation evidence.

The appeal was allowed and the action dismissed.

The representative plaintiffs in a class action against a private school sought leave to appeal a motions judge's decision permitting the defendants to bring third party claims against the parents of the students, who were members of the certified class.

The plaintiffs argued that because they intended to limit their claims to the several liability of the defendants, third party claims for contribution and indemnity were legally barred, relying on the Court of Appeal's decision in Taylor.

The Divisional Court granted leave to appeal, finding good reason to doubt the correctness of the motions judge's decision and noting the issue's importance to access to justice.

The appellants, who received long-term disability benefits, brought a proposed class action challenging the insurer's deduction of CPP Child Benefits from their payments.

The trial judge dismissed the action, finding the deductions were permitted by the policies and not contrary to the Canada Pension Plan, and awarded the insurer $215,000 in costs.

On appeal, the Court of Appeal upheld the dismissal and the costs award, confirming that while the factors in s. 31(1) of the Class Proceedings Act must be given significance, they do not automatically insulate an unsuccessful class plaintiff from an adverse costs award.

The appellants, who received silicone gel breast implants that allegedly leaked or ruptured, commenced a proposed class action against Health Canada for regulatory negligence.

They alleged that Health Canada breached a private law duty of care by failing to properly regulate, test, or warn consumers about the hazards of the implants under the Food and Drugs Act.

The motion judge dismissed the certification motion, finding it plain and obvious that the claim disclosed no cause of action because the legislative scheme did not impose a private law duty of care on the government.

The Court of Appeal dismissed the appeal, confirming that the government's duty under the Act is owed to the public as a whole, not to individual consumers, and that no proximate relationship existed.

The appellant brought a proposed class action against Health Canada, alleging negligent regulation of temporomandibular joint (TMJ) implants.

The motion judge struck the claim under Rule 21.01(1)(b) on the basis that it disclosed no reasonable cause of action.

On appeal, the Court of Appeal affirmed the dismissal, holding that it was plain and obvious that Health Canada did not owe a private law duty of care to individual consumers of medical devices.

The statutory scheme did not create a proximate relationship, and the pleadings failed to allege specific representations or reliance that would establish proximity under the Anns/Cooper test.

The defendants, eight major financial institutions, successfully defended an appeal of a decision denying certification of a class action regarding mortgage contracts.

The defendants sought their costs of the appeal.

The plaintiffs argued that no costs should be awarded, asserting the proceeding was a test case and involved a matter of public interest under section 31(1) of the Class Proceedings Act.

The Divisional Court rejected the plaintiffs' arguments, finding the case was not a test case, did not raise a novel point of law, and was not a matter of public interest, but rather involved individual commercial mortgage contracts.

The court awarded the defendants modified partial indemnity costs fixed at $20,000 per defendant.

The appellants appealed the dismissal of their motions to certify eight separate class proceedings against various financial institutions.

The claims alleged that the respondents incorrectly interpreted mortgage provisions regarding partial prepayment rights and early discharge penalties.

The Divisional Court upheld the motion judge's decision, finding that the pleadings failed to disclose a cause of action as they relied on implied terms not supported by the express language of the mortgages.

The court also agreed that the proposed classes were overly broad, individual issues overwhelmed any common issues, and a class proceeding would be unmanageable and not the preferable procedure.

The Attorney General for Canada sought leave to appeal an interlocutory order certifying a class action against the Crown regarding allegedly defective medical implants.

The Crown argued that the pleadings failed to disclose a reasonable cause of action for regulatory negligence.

The Divisional Court dismissed the motion for leave, finding no conflicting decisions on the matter and no good reason to doubt the correctness of the certification judge's application of the Anns test for duty of care.

The Automotive Parts Manufacturers Association brought a motion to intervene in an appeal concerning the interpretation of the Construction Lien Act.

The proposed intervenor sought to provide evidence on the economic impact of the court's decision on the auto parts manufacturing industry.

The court dismissed the motion, finding that the proposed evidence and argument would not contribute to the understanding and determination of the legal issues under appeal.

The appellants, Deloitte & Touche LLP and two of its partners, appealed an order enforcing letters rogatory issued by a U.S. court in a securities fraud class action against Nortel Networks Corp. The letters rogatory sought the production of extensive audit working papers and the testimony of the two partners.

The Court of Appeal dismissed the appeal, finding no error in the application judge's conclusion that the evidence was relevant, crucial, otherwise unavailable, and that its production would not be unduly burdensome or infringe Canadian sovereignty.

The respondent and other companies sued the appellant and other parties for defects in concrete used to build houses.

The respondent obtained summary judgment against the appellant on the contract claim for 'hard costs' of rebuilding the homes.

The appellant appealed, arguing that summary judgment would not simplify the proceedings.

The Court of Appeal dismissed the appeal, finding the contract claim was discrete from the tort claims and raised no genuine issue for trial, and that the summary judgment significantly simplified the proceedings.

The respondent sued the appellant and other defendants for defects in concrete used to build houses.

The respondent obtained summary judgment against the appellant for breach of contract, including hard costs for rebuilding the homes.

The appellant appealed, arguing that summary judgment would not simplify the proceedings.

The Court of Appeal dismissed the appeal, finding that the contract claim was discrete from the tort claims and raised no genuine issue for trial, and that the summary judgment significantly simplified the proceedings.

Following the plaintiff's successful appeal to certify an environmental claim as a class proceeding, the court determined the appropriate costs awards for the certification motion, the Divisional Court appeal, and the Court of Appeal.

The court held that the plaintiff was entitled to costs for all stages, imputing success at the certification motion stage despite the plaintiff having substantially narrowed the claim on appeal.

Recognizing the public interest nature of the environmental class action under s. 31(1) of the Class Proceedings Act, the court awarded the plaintiff $90,000 for the motion, $65,000 for the Divisional Court appeal, and $50,000 for the Court of Appeal.

The appellant sought to certify a class proceeding against the respondent for environmental contamination caused by a nickel refinery in Port Colborne.

The motion judge and Divisional Court dismissed the certification motion.

On appeal, the Court of Appeal allowed the appeal and certified the action.

The Court found that the appellant's narrowed claim for property devaluation met all certification requirements under the Class Proceedings Act, 1992, including identifiable class, common issues, preferable procedure, and representative plaintiff.

The appellant sought to certify a class proceeding against Inco Limited for environmental contamination in Port Colborne, alleging that nickel oxide emissions caused a decline in property values following a 2000 Ministry of the Environment announcement.

The motion judge and Divisional Court refused certification, finding the class arbitrary and individual issues overwhelming.

The Court of Appeal allowed the appeal and certified the action, holding that the narrowed claim focusing solely on property devaluation met all certification requirements under the Class Proceedings Act, including identifiable class, common issues, preferable procedure, and suitable representative plaintiff.