Charles Sinclair

The court approved the settlement and class counsel fees in a series of related class actions brought by investors in syndicated mortgage loans against Fortress Real Capital Inc., Fortress Real Developments Inc., and others, including the Sorrenti Defendants.

The settlement, representing approximately 82% of the available insurance, was found to be fair, reasonable, and in the best interests of the class.

The court certified the actions as class proceedings for settlement purposes and approved the distribution plan and counsel fees.

The defendants moved to strike the plaintiffs' amended statement of claim under rules 21.01(1)(b) and 25.11, arguing it disclosed no reasonable cause of action and was frivolous, vexatious, or an abuse of process.

The plaintiffs, a lawyer and his law firm, failed to file responding evidence, a factum, or appear at the hearing.

The court found the claim deficient, confusing, and lacking material facts for the pleaded torts.

The motion was granted, the statement of claim was struck in its entirety without leave to amend, and the action was dismissed.

Costs were awarded to the successful defendants on a substantial indemnity basis due to the frivolous and vexatious nature of the pleading and the plaintiffs' non-compliance with court orders.

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 defendant solicitor brought a motion to dismiss the action for delay under the court's inherent jurisdiction.

The action, commenced in 2007, alleged professional negligence and breach of fiduciary duty arising from commercial real estate transactions in 2000 and 2001.

The court found the delay of over 15 years to be inordinate and inexcusable, noting the plaintiffs failed to take meaningful steps to advance the litigation since 2014.

The court held that the delay created an unrebutted presumption of prejudice, substantially compromising the defendant's ability to have a fair trial.

The motion was granted and the action was dismissed against the moving defendant.

The plaintiff, Phong Lam, sued defendants Ken Neumann and Laura Chehadi Jaja for $15 million, alleging failures in union representation and wrongful termination related to his employment.

The defendants brought motions to dismiss the action on grounds of lack of subject matter jurisdiction, failure to disclose a reasonable cause of action, and being frivolous, vexatious, and an abuse of process.

The court granted the defendants' motions, dismissing the plaintiff's action without leave to amend, finding that the claims fell under the exclusive jurisdiction of labour arbitrators and the Human Rights Tribunal of Ontario, that an identical proceeding was pending before the HRTO, and that the Statement of Claim disclosed no reasonable cause of action against the private defendants under the Charter or Criminal Code, nor personal liability for an employee acting within the scope of employment.

The defendants brought a summary judgment motion to dismiss the plaintiffs' action for solicitor's negligence, breach of contract, breach of fiduciary duty, breach of trust, misappropriation of trust funds, misrepresentation, and conversion.

The defendants argued the action was statute-barred under the Limitations Act, 2002, or lacked expert testimony.

The court dismissed the summary judgment motion, finding a "plethora of genuine issues" requiring a trial, particularly concerning the discoverability of the claims, the circumstances of the consolidation of actions, and the alleged improvident settlement.

The court emphasized that there were significant credibility and reliability issues that could not be resolved summarily.

The applicant university brought a motion within its CCAA proceedings for an order extending the stay period and an order approving the refinancing of its debtor-in-possession (DIP) facility with the provincial government.

The court found that the applicant had acted in good faith and with due diligence, and that the cash flow forecast demonstrated sufficient liquidity to operate during the extended stay period.

The court granted the requested orders, noting the significant interest rate reduction under the replacement DIP facility.

The defendant union requested that the claim against it be dismissed under Rule 2.1.01 of the Rules of Civil Procedure as frivolous, vexatious, and an abuse of process.

The court found that the statement of claim contained no legally cognizable cause of action against the union, as the allegations were directed almost entirely at the employer.

The court dismissed the claim against the union but granted the plaintiff liberty to take steps to amend the statement of claim.

In the CCAA proceedings of Laurentian University, the applicant sought an order regarding a Compensation Claims Process.

On consent, the court deferred relief related to Third Party RHBP Claims to a subsequent hearing, ordering that the deadlines and procedures in the Compensation Claims Process Order would not apply to those claims at this time.

The remaining unopposed relief was granted.

This is a costs endorsement following the dismissal of an appeal as frivolous and vexatious.

The appellants failed to respond to the respondents' requests for costs.

The court reviewed the submissions and found the partial indemnity costs sought by The Catholic Children’s Aid Society of Toronto, Mary McConville, Janice Robinson, Rena Knox, and The Hospital for Sick Children to be reasonable.

The appellants were ordered to pay costs to these respondents.

The Court of Appeal for Ontario refused leave to appeal a sealing order issued by a CCAA supervising judge in the Laurentian University insolvency proceedings.

The moving parties, including faculty unions, sought access to confidential documents (letters between Laurentian and the Ministry of Colleges and Universities) that were sealed to protect restructuring efforts.

The Court applied the Sierra Club test for sealing orders and the four-factor test for leave to appeal in CCAA cases, finding the proposed appeal was not prima facie meritorious, would unduly hinder the time-sensitive restructuring, and was not of sufficient significance to the action.

The court emphasized deference to the supervising judge's discretion in complex CCAA matters.

The appellants, parents whose children were made Crown wards, appealed the dismissal of their action against multiple defendants involved in the child protection proceedings.

The action was dismissed under Rule 2.1.01 of the Rules of Civil Procedure as frivolous and vexatious, being an impermissible attempt to relitigate issues already decided.

The Court of Appeal upheld the dismissal, finding no error in the lower court's decision that the action constituted an abuse of process.

This supplementary endorsement addresses a challenge to a sealing order granted in the Companies’ Creditors Arrangement Act (CCAA) proceedings of Laurentian University of Sudbury.

The sealing order covered confidential correspondence between the University and the Ministry of Colleges and Universities, which Laurentian University argued contained sensitive information that, if disclosed, could jeopardize its restructuring efforts.

Parties opposing the sealing order contended there was no evidentiary basis for it.

Applying the two-branch test from Sierra Club of Canada v. Canada (Minister of Finance), the court found that the disclosure posed a real and substantial risk to the University's future viability, that the "commercial" interest extended to the broader community, and that no reasonable alternatives existed given ongoing mediation.

Consequently, the court maintained the confidentiality of the exhibits and the existing sealing order.

The plaintiff brought a proposed class action against the defendant employer for unpaid overtime, initially claiming $100 million.

The parties reached a pre-certification settlement of $7 million, which included a new time-tracking system.

The court certified the action for settlement purposes and approved the settlement, finding it fair and reasonable given the adjusted actual loss, comparable settlements, and the significant litigation risk posed by the COVID-19 pandemic's impact on the travel industry.

The court also approved a $10,000 honorarium for the representative plaintiff due to retaliatory employment consequences, and approved class counsel's 25% contingency fee.

The representative plaintiff brought a motion for approval of a $17 million settlement, a distribution protocol, and class counsel fees in a certified class action regarding prepaid payment cards.

The action alleged the defendants breached gift card regulations under the Consumer Protection Act by seizing expired balances and charging unauthorized fees.

After a summary judgment was granted in part and appealed by both parties, a settlement was reached.

The court approved the settlement, finding it fair, reasonable, and in the best interests of the class.

The court also approved the distribution protocol and class counsel's fee request of 30% of the settlement amount.

The representative plaintiff in a class action sought partial indemnity costs of $982,097.02 following a successful summary judgment motion against the defendants for breaches of gift card regulations.

The defendants argued that the parties should bear their own costs due to divided success, or alternatively, that the costs should be significantly reduced.

The court rejected the argument for divided success, finding the plaintiff was the successful party.

However, the court agreed to deduct certain items not appropriate for a party-and-party assessment, awarding the plaintiff $905,244.02 in costs.

Following a summary judgment in a class action regarding prepaid payment cards, the court determined the appropriate prejudgment and postjudgment interest to be awarded to the plaintiff class.

The court deferred the determination of a distribution protocol pending the resolution of the defendants' appeal and the plaintiff's cross-appeal.

The court awarded $1,233,753 in prejudgment interest and ordered postjudgment interest at a rate of 3.0% per annum on the total award of $18,063,753.

The representative plaintiff brought a class action against the defendants for charging illegal fees and imposing expiry dates on prepaid payment cards, alleging violations of the Consumer Protection Act, 2002 and O. Reg. 17/05.

The court found that the defendants' Single Load Prepaid (SLP) cards were 'open loop gift cards' subject to the legislation, while their General Purpose Reloadable (GPR) cards were exempt as financial products.

The court granted summary judgment for the SLP cardholders, awarding $15,330,000 in aggregate damages for unlawful fees and seized balances, plus $1,500,000 in punitive damages for the defendants' intentional disregard of consumer protection laws.

The appellant appealed a motion judge's decision dismissing his action in the Ontario Superior Court on the basis that the Canada Industrial Relations Board has exclusive jurisdiction over his claim.

The appellant sought redress for union disciplinary actions taken against him following his allegations of financial and procedural improprieties within the union.

The Court of Appeal upheld the motion judge's decision, finding that the essential character of the claim fell within the exclusive jurisdiction of the Canada Industrial Relations Board under the Canada Labour Code.

This decision addresses the issue of costs following the dismissal of the plaintiff's claim for lack of jurisdiction.

The defendant, who successfully brought the motion to dismiss, sought partial indemnity costs.

The court found that partial indemnity costs were appropriate, as there was no reprehensible conduct by the plaintiff to warrant substantial indemnity costs.

After considering the complexity, importance, time spent, hourly rates, and proportionality, the court fixed the costs payable by the plaintiff to the defendant at $7,500.00, inclusive of HST and disbursements.