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.

The plaintiffs, international students, brought a class action against Niagara College alleging misrepresentations regarding the eligibility of its General Arts and Science Program for a three-year Post-Graduation Work Permit.

The parties reached a $3 million settlement.

The court certified the action for settlement purposes, approved the settlement as fair and reasonable, approved class counsel fees of $950,750, and awarded a $10,000 honorarium to each representative plaintiff.

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 applicant, a person under disability, sought court approval for a $225,000 all-inclusive tort settlement arising from a motor vehicle accident.

The court approved the settlement amount as being in the applicant's best interests, given the difficulty in proving causation for a subsequent brain aneurysm.

However, the court found the proposed legal fees of $52,585.35 to be excessive given the lack of complexity and time dockets, reducing the approved fees to $40,000 plus HST, thereby increasing the net recovery for the applicant.

The plaintiffs brought a motion for approval of a $10 million class action settlement and class counsel fees regarding an alleged investment leveraging scheme.

While the court found the settlement quantum and proposed counsel fees to be fair and reasonable, it refused to approve the settlement at this time due to a lack of procedural fairness.

Specifically, the settlement administrator failed to implement a transparent challenge process for class members to dispute their individual compensation amounts, as required by the settlement agreement.

The motion was adjourned to allow the parties to implement the required challenge process.

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.

The appellant appealed an order allowing the Crown to set-off damages payable to the appellant under a judgment against monies the appellant owed to the Crown under a restitution order.

The Court of Appeal dismissed the appeal, finding that the combined effect of the Motor Vehicle Accident Claims Act and the Financial Administration Act entitled the Crown to the set-off.

The court also rejected arguments based on bankruptcy principles and res judicata.

The plaintiff was injured in a motor vehicle accident in Ohio and subsequently received Statutory Accident Benefits in Ontario.

The plaintiff brought an action in Ontario against the defendants for damages.

The defendants appealed a motion judge's decision that the substantive law of Ohio applied, arguing that the Insurance Act modified the common law choice of law rule and that the plaintiff's receipt of Ontario benefits precluded an Ohio tort claim.

The Court of Appeal dismissed the appeal, holding that the Insurance Act does not alter the common law rule favouring the law of the place where the tort occurred, and the receipt of benefits does not affect the choice of law analysis.

The appellant was rendered a paraplegic after being shot by an unknown assailant while driving his wife's car.

He applied for statutory accident benefits, which his insurer denied on the basis that the incident was not an 'accident' under section 2(1) of the 1996 Statutory Accident Benefits Schedule.

The Court of Appeal upheld the motions judge's decision, finding that the gunshots, not the use or operation of the automobile, were the direct cause of the appellant's injuries.

The appeal was dismissed.

The appeal concerned whether a municipality widening a road and installing a continuous centre median was required under s. 298(1) of the Municipal Act to provide another means of access to a commercial property whose direct left-turn access was restricted but not entirely eliminated.

The court held that s. 298(1) applies only where the effect of the by-law is to deprive the landowner of the only means of ingress and egress to the highway.

A mere limitation on access, even if commercially significant, does not trigger the statutory right to alternate access.

The respondents' remedy was confined to compensation for injurious affection under the Expropriations Act.

The appeal was allowed and the declaratory relief was set aside.