Darcy Richard Merkur

The Court of Appeal for Ontario dismissed an appeal by non-settling defendants challenging the approval of a Pierringer agreement in a multi-party motor vehicle accident case.

The court held that the agreement did not cause substantive prejudice to the non-settling defendants, as the Negligence Act places the risk of an insolvent or impecunious tortfeasor on the remaining tortfeasors, not the victim.

The court also declined to grant procedural orders in advance, leaving such matters to the trial judge.

The plaintiffs sought court approval of a Pierringer agreement with the City of Ottawa and leave to amend their statement of claim.

The non-settling defendant, United Petroleum, opposed the agreement, arguing it would suffer prejudice by potentially bearing the insolvent co-defendant's share of damages due to joint and several liability.

The court approved the Pierringer agreement, finding the alleged prejudice speculative and emphasizing the policy objective of promoting settlements.

The court also granted leave to amend the pleading but required the City of Ottawa to remain in the style of cause with its original allegations for apportionment of fault.

The plaintiff in a putative class action sought court approval for a third-party funding agreement.

The agreement aimed to indemnify the plaintiff for adverse costs in exchange for a share of any litigation proceeds, as the plaintiff was unsuccessful in obtaining financing from the Class Proceedings Fund.

The court reviewed the agreement against the requirements of the recently amended s. 33.1 of the Class Proceedings Act, 1992, which codifies the approval process for such agreements.

The court found the agreement fair and reasonable, ensuring plaintiff control over litigation, and confirmed the funder's financial capacity.

The defendants did not oppose the motion.

The motion was granted, and the third-party funding agreement was approved.

The plaintiff moved to certify a class action against the estate of an orthodontist for surreptitiously video recording patients and sought approval of a settlement.

The court granted certification for settlement purposes and approved the settlement, finding it fair, reasonable, and in the best interests of the class, given the limited assets of the estate and the challenges of individual proof of damages.

The settlement provided $425,000, including $350,000 for class members, an administration fund, and partial indemnity costs.

This endorsement, issued by the Case Management Judge, addresses a request for leave by Aviva General Insurance Company to bring a motion to amend a prior order to add Aviva as a statutory third party in various actions arising from a specific incident.

The court directs that any such request for leave must be made by way of a motion in writing, on notice to all necessary parties, in accordance with Rule 37.12.1(4) of the Rules of Civil Procedure.

The endorsement also includes directions for distributing the order and notifying an incarcerated defendant.

The court considered a motion seeking approval of a proposed $10 million class action settlement relating to investment advice involving leveraged borrowing to purchase mutual or segregated funds.

Although the court found the overall settlement amount to be fair and reasonable in light of litigation risks, potential appeals, and the complexity of individualized damages, it determined that the settlement administration process lacked procedural fairness.

Specifically, the settlement agreement required a “challenge” mechanism allowing class members to contest the calculation of their compensation, but the administrator had not implemented a meaningful challenge process.

Several objectors raised concerns about how their losses were calculated and were given no adequate opportunity to dispute the administrator’s determinations.

The court therefore declined to approve the settlement at that stage and adjourned the motion to allow implementation of a proper challenge process.

In a proposed class proceeding arising from a vending machine distributorship program, the plaintiffs alleged misrepresentation and sought rescission and damages under the Arthur Wishart Act (Franchise Disclosure), 2000.

A supplier of nut products brought a motion for summary judgment arguing it was neither a partner nor a “franchisor’s associate” of the program’s operator.

The court held the documentary record showed the supplier merely licensed trademarks and supplied products and did not share profits, manage the program, or exercise control over the franchisor.

Applying the statutory definition and partnership principles, the court concluded there was no genuine issue requiring a trial.

The claim against the supplier was dismissed while the proposed class action continued against the franchisor.