David Elman

This was a costs decision following the plaintiffs' substantial success in resisting a motion to strike, subject to dismissal of two peripheral causes of action.

The court held that costs should follow the event and rejected the defendants' position in light of the procedural history and the fairness concerns previously identified in the litigation.

The defendants did not challenge the reasonableness of the rates or hours claimed.

Costs were fixed in favour of the plaintiffs on a partial indemnity basis in the amount of $13,441.67 all inclusive.

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 respondents in the underlying appeal brought a motion to quash the appeal on the basis that the order appealed from was interlocutory.

The appellant sought an adjournment of the motion, which the court denied as unnecessary for the adjudication of the motion to quash.

The court found that the order in question, which denied an adjournment and set a date for a motion to strike, was clearly interlocutory.

As such, any appeal lay to the Divisional Court with leave.

The motion was allowed and the appeal was quashed for want of jurisdiction.

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.

The appellant appealed a summary judgment dismissing his claim against the respondent bank regarding disability insurance coverage.

The appellant claimed he believed he had disability insurance through the bank when he obtained a mortgage loan.

The Court of Appeal upheld the motion judge's finding that it was not credible the appellant would have purchased disability insurance even if offered, noting he had declined other insurance, had no prior disability insurance, and the bank did not offer mortgage disability insurance at the time.

The appeal was dismissed with costs.