David Rosenfeld

Costs endorsement following the appeal reasons reported at 2025 ONCA 861.

The respondents on appeal were the more successful parties, having succeeded entirely on one issue and partially on the second, where the court substituted a temporary stay for the motion judge's dismissal.

The court discounted both the motion judge's costs award and the agreed appeal costs by 25% to reflect the divided success, resulting in costs of $18,750 for both the motion and the appeal, inclusive of disbursements and HST.

This is a costs decision following a successful summary judgment motion.

The defendants, represented by Dave Griffiths and others, succeeded in having the action dismissed based on the ultimate limitation period.

The court considered the parties' bills of costs, the complexity and importance of the case, and the lack of detail in the bills.

Ultimately, the court fixed costs at $80,000, all-inclusive, in favour of the defendants, finding this amount fair, reasonable, and proportionate in the circumstances.

The court granted the defendants' motion to dismiss the plaintiffs’ action as statute-barred under the 15-year ultimate limitation period in the Limitation Act, 2002.

The plaintiffs, Bruce G. Johnston and Judith A. Walker, claimed wrongful expulsion from their union and denial of full pension benefits.

The court found that all material facts were known or discoverable by 1994/95, and the ultimate limitation period had expired long before the action was commenced in 2021.

The court also rejected arguments based on concealment, breach of contract, unjust enrichment, and the expulsion being void ab initio.

The defendant union moved to dismiss the plaintiff's action for lack of jurisdiction and abuse of process, arguing that the claims, including discrimination, wrongful dismissal, defamation, and breach of contract, fell under the exclusive jurisdiction of the Ontario Labour Relations Board (OLRB) or a labour arbitrator, and had already been adjudicated by the OLRB.

The plaintiff, a union member, alleged improper termination by his employer and the union's failure in its duty of fair representation, asserting that his claims involved human rights issues beyond the OLRB's jurisdiction.

The court dismissed the action, finding that the essential character of the dispute arose from the collective agreement and the union's duty of fair representation, which are exclusively within the OLRB's jurisdiction, and that the action constituted an abuse of process as it sought to relitigate issues already determined by the OLRB.

The plaintiffs brought an action for damages resulting from alleged property interference and a blockade during a lawful strike by the defendant union.

Both parties brought summary judgment motions regarding the appropriate forum for the dispute.

The Superior Court held that it lacked jurisdiction, finding that the dispute arose from a labour dispute covered by a retroactive collective agreement.

The court dismissed the plaintiffs' motion and granted the defendants' motion, ruling that the Ontario Labour Relations Board is the proper forum.

This decision concerns the approval of a class action settlement and class counsel's fees related to pension indexing benefits for members of the Brewer’s Retail, Inc. Pension Plan.

The dispute revolved around whether indexing constituted a protected pension benefit under the Pension Benefits Act.

The settlement provides for a 0.9% annual adjustment to pension benefits for pre-2010 service, with a specific fund allocated for certain class members requiring a claims process.

The court found the settlement to be fair, reasonable, and in the best interests of the class, noting it was the result of arm's-length negotiations and avoided the "all or nothing" risk of litigation.

Class counsel's fees and disbursements were also approved as fair and reasonable, representing a significant reduction from their dockets and a modest percentage of the total settlement value.

The Financial Services Regulatory Authority of Ontario (FSRA) appealed a Superior Court decision that dismissed its motion to stay a class proceeding initiated by Brewers Retail Inc. and a committee of pension plan members.

The class proceeding sought court approval of a comprehensive settlement regarding pension indexing issues, including amendments to the pension plan and trust, and compensation for known and unknown plan members.

FSRA argued that the Financial Services Tribunal (FST) had exclusive jurisdiction over these matters under the Pension Benefits Act (PBA) and the Financial Services Tribunal Act, 2017 (FSTA).

The Court of Appeal upheld the motion judge's finding that the Superior Court had concurrent jurisdiction, noting that neither the FSTA nor the PBA contained clear and unequivocal language ousting the court's inherent equitable jurisdiction to approve settlements and vary trusts.

The court affirmed that the class proceeding was the preferable procedure, as the FST lacked the power to approve the settlement or vary the pension trust, and the class action provided the necessary finality for all affected plan members.

The plaintiffs in two proposed class actions sought leave to discontinue their actions under section 29(1) of the Class Proceedings Act, 1992.

The decision to discontinue was based on elevated litigation risks due to newly disclosed facts in the defendants' Statement of Defence and the inability to secure third-party funding.

The parties entered into a discontinuance agreement, which included the defendants paying $225,000 for the plaintiffs' counsel's disbursements, no release of individual claims, and no costs sought by the defendants.

The court granted leave to discontinue, finding no prejudice to the putative class, especially given that no class notice had been disseminated and a Notice Plan was in place to inform those who had registered for updates.

In a CCAA proceeding, the court considered supplementary written submissions regarding the appropriateness of differential consideration offered to unsecured creditors in the proposed Plan.

The court accepted the applicants' submission that the fairness of the differential consideration, which involves providing shares to Term Loan Lenders and cash to General Unsecured Creditors, should be determined at the Sanction Hearing rather than at the Meetings Order stage, given the low threshold for a Meetings Order and the presence of conflicting expert reports.

The Applicants sought an Authorization Order and Meetings Order under the CCAA.

The primary issues in dispute concerned the voting rights and classification of Litigation Claimants, which included uncertified U.S. class actions, a certified Ontario class action, and Texas mass tort claims.

The court held that the Litigation Claimants are creditors entitled to vote, but restricted them to one vote per action to prevent them from overriding other stakeholders on numerosity grounds.

The court also ordered summary proceedings to value their claims rather than accepting the Applicants' proposal to value them at $1.

Finally, the court declined to place the Term Loan Lenders in a separate class from other unsecured creditors, finding sufficient commonality of legal interests.

At a case conference in a securities class action, the plaintiffs sought to amend their pleading to add a secondary market claim, which requires leave to proceed under the Securities Act.

The defendants argued the motion to amend should be heard first as a preliminary matter, while the plaintiffs argued it should be heard together with the motions for leave to proceed and certification.

The court ordered that all three motions be heard together to avoid litigation by installment and potential separate appeals.

This is a costs endorsement following a judgment certifying a class action settlement.

The Financial Services Regulatory Authority (FSRA) intervened to oppose the certification and sought a stay, but was entirely unsuccessful on the merits.

The court considered costs submissions from Brewers Retail Inc. (Applicant), the Committee representing the proposed class of pensioners (Respondents), and FSRA (Intervenor).

The court denied FSRA's request for costs, finding its intervention caused additional costs for other parties.

The court awarded Brewers Retail Inc. $159,000 and the Committee $51,000, both inclusive of disbursements and HST, to be paid by FSRA, finding their efforts necessary and reasonable given FSRA's strenuous opposition.

The applicant employer sought to certify a class action on consent for settlement purposes regarding a long-standing dispute over pension plan indexing amendments.

The provincial pension regulator, FSRA, intervened to oppose the settlement and sought to stay the court proceedings in favour of a regulatory hearing before the Financial Services Tribunal.

The court granted FSRA leave to intervene but dismissed the stay motion, finding it had jurisdiction to adjudicate the pension dispute and that a class proceeding was the preferable procedure to achieve finality for all known and unknown plan members.

The action was certified as a class proceeding.

The plaintiff sought court approval of a $12 million settlement in a class action alleging systemic negligence and breach of fiduciary duty by the provincial government resulting in physical and sexual abuse at the Child and Parent Resource Institute (CPRI).

Despite objections from some class members regarding the lack of a direct apology and the adequacy of compensation, the court approved the settlement, finding it fell within the zone of reasonableness established in similar institutional abuse class actions.

The court also approved class counsel's legal fees of $2.75 million and honoraria for the representative plaintiffs.

This decision addresses a rehearing on class counsel's legal fees and the calculation of the Class Proceedings Fund (CPF) levy in a class action settlement.

The court approved the 25% contingency fee, finding it fair and reasonable based on the risk incurred and results achieved, despite an earlier judge's concerns about the settlement's modesty.

The court also determined that the CPF levy should be calculated on the total amount class members were entitled to receive ($10.2 million), rather than the amount actually paid out ($7.5 million), aligning with the settlement agreement and O. Reg. 771/92.

The plaintiff, Haidar Omarali, brought a motion for summary judgment on 13 certified common issues in a class action against Just Energy Group Inc., Just Energy Corp., and Just Energy Ontario LP.

The core issues concerned whether the defendants' 8000 sales agents were employees or independent contractors under the Employment Standards Act, 2000, and if employees, whether they were exempt as outside salespersons or fell within the "route salesperson" exception.

The court found diametrically conflicting evidence regarding the level of control exercised by the defendants over the sales agents, raising serious credibility issues and requiring substantial clarification.

Due to these evidentiary conflicts, the insufficiency of evidence to make class-wide determinations, and the preclusion of a "mini-trial" approaching the dimensions of a full trial by s. 34(3) of the Class Proceedings Act, the motion for summary judgment was dismissed.

All 13 common issues were directed to proceed to a focused trial.

This decision addresses a carriage motion between two proposed class actions against Aphria Inc. and other defendants, both alleging misrepresentations in the secondary market and oppression remedy claims.

The "Mirzoian-Rogers Action" (LATAM Theory) proposed a narrower class based primarily on the LATAM Transaction, while the "Vecchio Action" (Nuuvera+LATAM Theory) proposed a broader class period and additional causes of action encompassing both the Nuuvera and LATAM Transactions.

The court granted carriage to the Vecchio Action, finding its broader case theory to be in the best interests of the class by providing greater access to justice for a larger group of claimants, despite criticisms regarding the pleading of partial corrective disclosures for the Nuuvera Transaction.

The court emphasized that a carriage motion is not the appropriate forum to definitively resolve complex legal issues like the full effect of corrective disclosures.

The plaintiff, a union member, commenced an action against his union for damages for breach of contract and an order to expunge a six-month disciplinary suspension.

The plaintiff alleged procedural unfairness and bias in the union's disciplinary proceedings, including breaches of the union's constitution.

The defendant union moved for summary judgment to dismiss the action, arguing that the court should not interfere with a voluntary tribunal's decision unless it exceeded jurisdiction, failed to conduct proceedings fairly, or acted in bad faith.

The court found that while there were minor breaches of the union's constitution, these did not amount to a deprivation of procedural fairness.

The court also found no evidence of actual bias or a real likelihood of bias on the part of the adjudicators.

Consequently, the union's motion for summary judgment was granted, and the plaintiff's action was dismissed with costs.

This class action concerned historical abuse at the W. Ross MacDonald School for the Blind.

The court approved an $8,000,000 settlement fund, finding it fair, reasonable, and in the best interests of the class, particularly given the litigation risks and the advanced age of many class members.

The settlement provided for a paper-based, non-adversarial claims process with compensation up to $45,000 per claimant, free from tax claw-backs.

The court also approved a $15,000 honorarium for the representative plaintiff and fixed class counsel's legal fees at $2,412,534 plus HST and disbursements, emphasizing the risks undertaken and results achieved over mere docketed time.

The plaintiff brought a motion to certify a class action against the provincial Crown regarding alleged institutional abuse at the Children's Psychiatric Research Institute (CPRI) between 1963 and 2011.

The defendant consented to the certification.

The court reviewed the requirements under section 5(1) of the Class Proceedings Act and found them satisfied, noting the commonality of issues and the vulnerability of the proposed class.

The action was certified on consent.