David Elman

The defendant brought a motion to lift a stay and dismiss a proposed class proceeding commenced in 2008 that never advanced to the certification stage.

Parallel proceedings in British Columbia and Quebec had concluded with modest recoveries for narrow classes.

Plaintiff's counsel had lost contact with the nominal plaintiff and consented to dismissal.

The court dismissed the action for delay under s. 29.1 of the Class Proceedings Act, 1992, finding that the plaintiff had not moved for certification within the prescribed time.

The court required class counsel to publish notice of the dismissal on the firm's website but declined to order further notification steps, given the minor nature of the claims and the absence of any class member registry.

The plaintiffs in a class action sought to certify additional common issues.

The Landlord Defendants brought a preliminary motion to prevent this, arguing that a previous "Further Certification Order" (FCO) was a final certification order, or alternatively, that the plaintiffs required leave under s. 8(3) of the Class Proceedings Act, 1992, which should be denied.

The court dismissed the preliminary motion, finding no objective agreement that the FCO was a final certification order and that, consequently, no leave under s. 8(3) was required as the proposed motion was a continuation of the certification process, not an amendment to a final order.

The defendants brought a motion to dismiss a class action for delay pursuant to section 29.1(1) of the Class Proceedings Act, 1992.

The plaintiff had issued a Notice of Action in September 2020 and a Statement of Claim in October 2020, serving it in March 2021.

However, since serving the Statement of Claim, the plaintiff's counsel had taken no steps to advance the action, nor had they communicated with the defendants' counsel or responded to the dismissal motion.

The court found that none of the statutory requirements for advancing the proceeding (such as filing a certification record or agreeing to a timetable) had been met by the first anniversary of the proceeding's commencement.

Consequently, the court dismissed the action for delay, also dispensing with the requirement for public notice of dismissal due to the existence of a parallel class action with similar claims.

The plaintiff, Erwin Banfi, brought a motion for approval of a class action settlement and class counsel fees against multiple municipal and provincial defendants concerning alleged increased flood risk and reduced property values due to overdevelopment in Oakville.

The action, initially premised on property diminution, shifted focus due to difficulties in proving causation and quantifying individual damages.

The proposed settlement involved a $500,000 payment by defendants to the Intact Centre on Climate Adaptation for a flood education and protection program for class members, and class counsel fees of $495,000.

The court approved the cy-près settlement, finding it fair, reasonable, and in the best interests of the class, given the litigation's challenges and the material benefit provided to class members.

Class counsel fees and a $5,000 honorarium for the representative plaintiff were also approved.

In a proposed class action against a religious organization regarding alleged child sexual abuse, the defendant brought a motion to strike portions of two affidavits filed by the plaintiffs for the certification motion.

The court struck paragraphs from one affidavit that referenced foreign inquiries into the organization, finding them irrelevant and prejudicial.

The court declined to strike a paragraph from the second affidavit, finding it relevant to the proceedings.

The plaintiff brought a motion to certify a class action against FCA Canada Inc. (Chrysler Canada) regarding defective Takata airbags installed in its vehicles.

The plaintiff alleged negligence for pure economic losses associated with the dangerous product.

The court analyzed the certification criteria under s. 5 of the Class Proceedings Act, 1992.

The court found that the cause of action, identifiable class, common issues, and representative plaintiff criteria were met or could be met.

However, the court held that the preferable procedure criterion was not satisfied.

The court reasoned that Chrysler Canada's existing recall program was preferable to a class action, especially given the delay in prosecuting the action and the limited scope of recovery for pure economic loss under current tort law.

The certification motion was dismissed.

A case conference was held to schedule summary judgment motions brought by the Toronto Police Services Board and the Eaton Centre defendants.

The plaintiffs opposed the motions and sought a 14 to 17-day hearing to accommodate viva voce cross-examination of experts, arguing for a trial instead.

The court rejected the plaintiffs' proposed schedule as contrary to the purpose of summary judgment, which is meant to be a faster process.

The court scheduled a 6-day hearing for May 2021 and set a timetable for the exchange of materials and cross-examinations.

The defendants, the Toronto Police Services Board and the Eaton Centre, sought to schedule summary judgment motions to determine their liability in four related civil actions arising from a 2012 shooting at the Toronto Eaton Centre.

The plaintiffs opposed the motions, arguing they were entitled to a full jury trial on all issues.

The court held that there is no absolute right to a civil trial and that a summary judgment process is a legitimate alternative.

Finding that the liability issues would likely turn on legal concepts and expert evidence rather than disputed facts, the court directed that the summary judgment motions be scheduled.

This decision concerns a consent certification motion in a class action arising from a six-alarm electrical fire at 650 Parliament Street, Toronto, which displaced hundreds of tenants.

The court certified the action as a class proceeding against the core defendants, Parwell Investments Inc. and 650 Parliament (LHB) Investments Limited, on the common issue of negligence.

The certification was granted based on the parties' agreement, satisfying the requirements of the Class Proceedings Act, 1992, including an identifiable class, common issues, preferability of a class proceeding, and suitable representative plaintiffs.

The order defined the class, appointed representative plaintiffs, declared negligence as the cause of action, and outlined specific common issues related to the defendants' duty and breach of care concerning the building's design, construction, operation, maintenance, and electrical systems.

No costs were awarded for the motion.

In the context of Target Canada's CCAA proceedings, the Monitor sought advice and directions on whether to accept amended claims filed by Bell Canada and Bell Nexxia.

Bell sought to increase its original claims by approximately $4.1 million due to inadvertent calculation errors discovered after the claims bar date and after the original claims were admitted.

Target Corporation opposed the amendment.

Applying the Blue Range test, the court found that Bell acted in good faith, the errors were inadvertent, and admitting the amended claims would not cause relative prejudice to other creditors.

The court directed the Monitor to accept the amended claims for review, with Bell to bear the reasonable costs incurred by the Monitor and Target Canada due to the error.

The plaintiffs, National Industries Inc. and National Steel Car Limited, sought to amend their statement of claim against their insurance brokers, Peter Kirkwood and Marsh Canada Limited, to include allegations of negligence from 2008 and 2009 regarding D&O coverage.

The plaintiffs argued these were particulars of existing claims, while the defendants contended they were new causes of action barred by the limitation period.

The court found the proposed amendments constituted new causes of action, as they did not arise from the same factual matrix as the original claim, which focused on D&O insurance policies from 2010 and 2011.

Consequently, leave to amend the claim was dismissed.

Telecommunications companies sought leave to appeal certification orders permitting class proceedings concerning cellular phone billing practices.

The proposed class actions alleged that the defendants breached contracts, engaged in deceptive practices contrary to the Consumer Protection Act, 2002, and were unjustly enriched by rounding call durations up to the nearest minute under plans described as billed “per minute.” The moving parties argued that individual contractual contexts prevented the existence of a common issue and that certification was therefore inappropriate.

The court held that the meaning of the contractual phrase “per minute billing” was a common issue capable of resolution across the class, particularly given the standardized and adhesive nature of the consumer contracts.

Leave to appeal was refused and the certification orders were left undisturbed.

Consumers brought proposed class proceedings against wireless service providers alleging that the companies billed cellular calls by rounding up partial minutes to the next full minute without adequate disclosure.

The plaintiffs advanced claims in breach of contract, breach of the Consumer Protection Act, 2002, and unjust enrichment, seeking certification of national and provincial classes.

The court held that the pleadings disclosed viable causes of action and that there was some basis in fact for common issues regarding the interpretation of standardized contracts, alleged misrepresentations about available minutes, and the uniform rounding‑up practice.

The court also held that class proceedings were the preferable procedure given the large class size and relatively small individual claims.

The actions were certified as class proceedings with defined classes and common issues.

The defendants brought a motion under Rule 21.01 of the Rules of Civil Procedure to strike a statement of claim alleging negligence, breach of s. 7 of the Canadian Charter of Rights and Freedoms, and misfeasance in public office arising from a drive‑by shooting committed by a third party.

The plaintiffs alleged that police had prior intelligence about the shooter and owed a private law duty of care to protect a narrow class of potential victims.

The court held that the pleadings did not establish a special relationship of proximity between the police and the victim sufficient to create a private law duty of care, distinguishing the case from Doe v. Metropolitan Toronto Commissioners of Police.

The Charter claim failed because the Charter does not impose a positive obligation on police to prevent harm, and the pleadings did not establish the elements of misfeasance in public office.

The Fresh as Amended Statement of Claim was struck with leave to amend.

Following the dismissal of an action on summary judgment as statute-barred, res judicata, and an abuse of process, the court considered the appropriate costs award.

The plaintiff had commenced a second action arising from the same underlying facts as a prior lawsuit that had already been dismissed and upheld on appeal.

The court held that the re-litigation of the same dispute justified an award of substantial indemnity costs due to the abusive nature of the proceeding and the allegations of misconduct made against the defendants.

However, the court declined to order costs personally against the plaintiff’s counsel despite finding that unnecessary costs were incurred, emphasizing the need for extreme caution and the protection of solicitor-client privilege.

Substantial indemnity costs were awarded against the plaintiff in the amount of $24,007.07 payable to the Scotia defendants.