Danielle K. Royal

The Superior Court of Justice approved identical third-party funding agreements in four related class actions against major Canadian banks.

The actions allege that the banks charged duplicative non-sufficient funds fees on single dishonoured pre-authorized debits.

The court, applying Section 33.1 of the Class Proceedings Act, 1992, found the agreements to be fair and reasonable, noting the staged success fee was comparable to or more advantageous than the Class Proceedings Fund levy.

The court confirmed the agreements preserved plaintiff control over litigation, ensured the funder's financial capacity for adverse costs, and included appropriate confidentiality and deemed undertaking provisions.

The defendants took no position on the motions.

The plaintiff, Robyn Ramanauskas, brought a consent motion to certify a class proceeding against the Bank of Montreal.

The action alleged that the bank charged duplicative non-sufficient funds (NSF) fees on re-presented pre-authorized debit transactions, constituting breach of contract and unjust enrichment.

The court found that all criteria under s. 5(1) of the Class Proceedings Act, 1992 were met, including disclosure of a cause of action, an identifiable class, common issues, preferable procedure, and an adequate representative plaintiff.

The motion for certification was granted.

This is a costs endorsement following successful motions by the State of California and the Attorney General of Quebec to dismiss claims brought against them by W.O. Stinson & Son Limited.

The court had previously dismissed Stinson's claim against California based on state immunity under the State Immunity Act and against Quebec due to Crown immunity.

Stinson argued for no costs, citing unfair treatment due to the cancellation of Ontario's cap-and-trade program and alleged profit by California and Quebec from Stinson's losses.

The court rejected these arguments, finding no reason to deny costs to the successful parties.

The court then assessed the reasonableness of the requested partial indemnity costs, reducing the amounts sought by both California and Quebec, and specifically reducing Quebec's expert witness disbursement.

This motion concerned the approval of class counsel fees, disbursements, and a representative plaintiff honorarium following the settlement of two national class proceedings (2012 and 2016 Actions) against various defendants, including Apple Inc., for an alleged eBook price-fixing conspiracy.

The aggregate settlement amount was $15,175,000.

Class Counsel sought $2.7 million in fees (25% of the Apple settlement, adjusted for Quebec) and $43,669.39 in disbursements, plus a $5,000 honorarium for the representative plaintiff.

The court addressed whether the Class Proceedings Act is a complete code for fee approval, the applicability of the Solicitors Act and its regulations regarding costs and disbursements in "all-in" settlements, and the treatment of notional cost contributions and administration costs.

The court found that the Solicitors Act provisions regarding costs and disbursements should apply harmoniously to class proceedings.

It ruled that disbursements should be deducted from the gross settlement amount, and a notional contribution to costs ($500,000) should be applied before calculating counsel fees.

Settlement administration costs were deemed not a disbursement incurred by counsel.

The court approved class counsel fees of $2,450,000 plus taxes, disbursements of $43,669.39 plus taxes, and an honorarium of $2,500 for the representative plaintiff.

The defendants in a proposed opioid class action moved to dismiss the proceeding for delay under s. 29.1 of the Class Proceedings Act, 1992.

In response, the plaintiff brought a cross-motion for a nunc pro tunc timetable order and commenced parallel proceedings in Manitoba.

The parties reached a settlement wherein the competing motions were dismissed without costs, the Manitoba proceedings would be discontinued, and the Ontario action would be deemed commenced on October 2, 2020, making it subject to the amended certification test under the Smarter and Stronger Justice Act, 2020.

The court approved the settlement and issued the consent orders.

The plaintiffs sought judicial approval of settlement agreements totaling $7.9 million with seven defendant groups in multiple class actions alleging price-fixing in the global automotive parts industry.

The court also considered the approval of a distribution protocol, discontinuances and dismissals against certain defendants, representative plaintiff honoraria, and class counsel's 25% contingency fees.

The court found the settlements, distribution protocol, and fees to be fair, reasonable, and in the best interests of the class, and granted all requested approvals.

The applicant target company sought specific performance of a share purchase agreement after the respondent purchaser refused to close, citing the COVID-19 pandemic.

The purchaser alleged breaches of the Material Adverse Effect (MAE), ordinary course, amortization event, and access to information covenants.

The court found that while the pandemic threatened earnings, it fell within the MAE's emergency carveout and did not disproportionately affect the target.

The target's pandemic responses, including branch access changes and accounting adjustments, were within the ordinary course of business for an economic downturn.

The court ordered specific performance of the agreement.

The plaintiffs sought court approval of a class action settlement agreement concerning allegedly defective Medtronic defibrillators, approval of class counsel fees and disbursements, and honoraria for representative plaintiffs.

The court approved the settlement and class counsel fees, finding the settlement fair and reasonable given the litigation risks and lack of reported injuries.

However, the request for honoraria for representative plaintiffs was dismissed due to insufficient evidence of exceptional contributions beyond typical representative plaintiff duties.

This class action concerned defective Medtronic Sprint Fidelis leads for implantable cardioverter defibrillators.

The plaintiffs moved for approval of a $26 million settlement, class counsel fees, and honoraria for representative plaintiffs.

The court approved the settlement as fair, reasonable, and in the best interests of the class, noting arm's-length bargaining and comprehensive investigation.

Class counsel's request for 30% contingency fees and disbursements was approved, upholding the strong presumption of validity for such agreements given the litigation's complexity and risks.

However, the request for honoraria for the representative plaintiffs was dismissed, as no exceptional circumstances or contributions beyond expected involvement were demonstrated.

The plaintiffs sought judicial approval of two settlement agreements in class actions alleging price-fixing in the automotive parts industry.

The first settlement with T.Rad was for $1,167,452, and the second with S-Y Systems was for $50,000.

The court found both settlements to be fair, reasonable, and in the best interests of the class, noting they fell within a zone of reasonableness.

The settlements and requested legal fees were approved.

The plaintiff in a class action regarding alleged over-recovery of fuel surcharges by the defendant railway company brought a motion for documentary production and to compel answers to questions refused on cross-examination.

The defendant had brought a motion for summary judgment based on narrow legal grounds, arguing that the Canada Transportation Act is a complete code and that the claims are statute-barred or disclose no cause of action.

The court dismissed the plaintiff's motions, finding that the requested production and answers related to the factual issue of over-recovery, which was irrelevant to the purely legal issues raised in the defendant's summary judgment motion.

The court also accepted the defendant's evidence that the specific data requested by the plaintiff did not exist and would require complex, arbitrary allocation to create.

This appeal concerns the applicable test for determining jurisdiction over absent foreign claimants (AFCs) in a class action involving allegations of conspiracy to fix prices of air freight shipping services for shipments from or to Canada between 2000 and 2006.

The motion judge had rejected the real and substantial connection test and held that jurisdiction could only be established if AFCs were present in Ontario or had consented to the court's jurisdiction.

The motion judge also declined to exercise jurisdiction on the basis of forum non conveniens.

The Court of Appeal allowed the appeal, holding that the real and substantial connection test applies to class actions involving AFCs and that jurisdiction may be established where there is a real and substantial connection between the subject matter and Ontario, common issues exist between representative plaintiffs and AFCs, and procedural safeguards of adequate representation, notice, and opt-out rights are provided.

The court also found that forum non conveniens did not apply as no clearly more appropriate forum existed.

The parties sought costs following a certification motion (where the plaintiffs were successful) and a jurisdiction motion (where the defendants were successful).

The plaintiffs initially sought over $600,000 but reduced their claim to $268,301.22, while the remaining defendants sought $228,575.05.

The court found the jurisdiction motion was highly complex and awarded the defendants their full requested amount.

For the certification motion, the court noted that class counsel had already been substantially compensated through prior settlements with other defendants.

The court awarded the plaintiffs $228,575.05 for the certification motion and ordered the two costs awards to be offset against each other.

The plaintiffs in a price-fixing class action regarding air freight shipping services brought a motion for approval of a notice of hearing regarding a settlement with one of the defendants.

The plaintiffs also sought orders requiring non-settling defendants and a non-party association to produce customer information, and authorizing freight forwarders to voluntarily disclose customer information, to facilitate the notice and claims process.

The court approved the notice plan and granted the production orders, finding that section 12 of the Class Proceedings Act satisfies the requirements for disclosure under section 7(3)(c) of the Personal Information Protection and Electronic Documents Act.

The plaintiffs brought a proposed class action alleging a global price-fixing conspiracy by the defendants regarding airfreight shipping services.

The defendants brought a motion to stay the action as it related to absent foreign claimants, arguing the court lacked jurisdiction simpliciter.

The court granted the motion, finding that the real and substantial connection test should not be applied to establish jurisdiction over absent foreign claimants, as an Ontario judgment would not be recognized abroad, offending principles of order, fairness, and comity.

Alternatively, the court held that even if jurisdiction existed, it would decline it on the basis of forum non conveniens.

In a proposed class action alleging a price‑fixing conspiracy in the optical disc drive (ODD) market contrary to common law and s. 45 of the Competition Act, the plaintiff sought leave to amend the claim to add eighteen additional corporate defendants.

The defendants opposed the amendment on the basis that limitation periods under the Limitations Act and s. 36(4) of the Competition Act had expired.

The court held that at the pleadings amendment stage it was inappropriate to make definitive findings on discoverability or the expiry of limitation periods where the evidentiary record was incomplete.

Although the plaintiff’s evidence regarding due diligence was thin, the court concluded it would be unfair to refuse the amendment solely on the deficient record.

The motion was adjourned to permit the plaintiff to file additional evidence addressing discoverability and diligence.

The appellant franchisees commenced a proposed class action against the respondent franchisors for breach of contract, misrepresentation, unjust enrichment, and breach of the duty of good faith.

The motion judge granted summary judgment dismissing the action, finding that the franchisor's conversion to a new donut production system and pricing requirements did not breach the franchise agreement or the duty of good faith.

The Court of Appeal upheld the decision, agreeing that the franchisor's actions were a rational business decision and that the contract did not require every new method or product to be profitable in its own right.

The plaintiffs, Tim Hortons franchisees, brought a proposed class action against the franchisor alleging breach of contract, breach of the duty of good faith and fair dealing, unjust enrichment, and breaches of the Competition Act.

The claims centered on the franchisor's requirement that franchisees purchase par-baked donuts and Lunch Menu ingredients at allegedly commercially unreasonable prices.

The franchisor moved for summary judgment.

The court granted summary judgment dismissing all claims, finding that the franchisor had the contractual right to require the purchases and set the prices, and that there was no breach of the duty of good faith or the Competition Act.

The certification motion was therefore moot, though the court indicated it would have certified certain common issues had the claims survived.

The representative plaintiffs in two certified class proceedings regarding allegedly defective implantable defibrillators appealed orders of the motion judge.

The motion judge had ordered the bifurcation of discovery and trial of common issues relating to the quantification of compensation for waiver of tort from the liability issues.

In one of the actions, the motion judge also refused to certify punitive damages as a common issue.

The Divisional Court dismissed the appeals, finding no error in principle in the motion judge's exercise of discretion to bifurcate the proceedings to ensure a fair and expeditious determination.

The Court also upheld the refusal to certify punitive damages as a common issue, agreeing that entitlement to punitive damages could not be rationally determined without first determining individual issues of causation and compensatory damages.

The plaintiffs brought a motion for leave to appeal a certification decision that refused to certify class members' entitlement to punitive damages as a common issue and bifurcated common issues relating to the quantification and apportionment of waiver of tort damages.

The Divisional Court found that there were conflicting decisions on both issues and good reason to doubt the correctness of the motion judge's order.

Leave to appeal was granted on both issues and the hearing of the appeal was expedited.