David F. O’Connor

The moving parties, who were granted carriage of the Ontario Volkswagen class action, brought a motion alleging that the responding law firm breached the carriage order by sending a misleading email soliciting putative Ontario class members.

The responding firm agreed to send a court-approved clarifying email and not to execute any retainer agreements received from Ontario residents.

The court awarded the moving parties $40,000 in costs on a substantial indemnity basis due to the responding firm's reprehensible conduct in breaching the court order.

The applicant, charged with marijuana-related offences, brought an application for a stay of proceedings under s. 24(1) of the Charter, alleging a breach of his s. 11(b) right to be tried within a reasonable time.

The total delay was 33 months.

The court applied the Askov/Morin framework, attributing portions of the delay to inherent time requirements, institutional delay, the Crown, and the defence.

The court found the unjustified delay of almost 15 months fell within the Morin guidelines and that evidence of actual prejudice was weak.

The application was dismissed.

Following certification of a class action concerning an allegedly negligent tax opinion related to a timeshare charitable donation program, the court was required to determine costs of the certification motion after the Court of Appeal reversed the motion judge and certified the action.

The plaintiff sought more than $355,000 including substantial indemnity costs based on an unaccepted offer to settle.

The court rejected substantial indemnity costs, finding the offer tactical and unlikely to be accepted given a serious limitation defence.

Exercising discretion, the court awarded partial indemnity costs totaling $298,582.71, with $150,000 payable in the cause and the remainder payable forthwith.

No costs were ordered against certain third parties who had limited participation in the certification motion.

Following a class action certification motion where the plaintiff achieved certification for five insurance policies but the defendant successfully struck claims regarding 48 other policies, both parties sought costs payable forthwith.

The court held that because success was divided—with the plaintiff achieving procedural success and the defendant achieving substantial substantive success—the normal rule of awarding costs to the successful party did not apply.

The court ordered the costs of the certification motion to be in the cause.

The plaintiff sought certification of a proposed class action against an insurer relating to the performance of the Can‑Am segregated fund offered through multiple insurance contracts.

The plaintiff alleged breach of express or implied contractual terms requiring the fund to replicate the S&P 500 on a best‑efforts basis, as well as negligent misrepresentation in pre‑contract information folders.

The court held that only five insurance contracts contained an express “best‑efforts” term capable of supporting a breach of contract claim, and claims based on implied terms or collateral contracts were legally untenable due to statutory entire‑agreement provisions and the non‑contractual status of information folders.

Although negligent misrepresentation disclosed a cause of action, the court found that individual reliance, causation, and damages issues overwhelmed the common issues such that a class proceeding was not the preferable procedure.

Certification was therefore granted only for breach of express contractual terms for the five specified policy forms, subject to exclusion of statute‑barred claims.

The plaintiff sought leave to commence a secondary market misrepresentation action under the Securities Act and to certify a class proceeding against the defendants for misrepresentation, conspiracy, and oppression.

The plaintiff alleged that the defendants fabricated a financial crisis by including a 'going concern' note in the company's financial statements to artificially depress the share price, allowing insiders to acquire shares cheaply.

The court dismissed the motion for leave, finding no reasonable possibility of success at trial, as the financial disclosures were factual, required by GAAP, and made after reasonable investigation.

The court also refused to certify the conspiracy claim due to a lack of factual basis and struck the oppression claim, ruling that the Ontario Superior Court lacked subject-matter jurisdiction over an oppression remedy under the British Columbia Business Corporations Act.