Edward P. Perell

Following a prior decision approving class counsel fees in a class proceeding settlement, class counsel sought clarification regarding the calculation of the fee award, treatment of consulting law firm fees, application of taxes, and comments regarding disclosure of a fee sharing agreement.

The court acknowledged that an arithmetic error had occurred in the original calculation and corrected the award by applying a 10% reduction to the claimed counsel fee before adding disbursements.

The court clarified that consulting law firms were to be paid from the approved counsel fee rather than treated as additional disbursements and confirmed that applicable taxes were payable in addition to the approved amount.

The court also addressed concerns about disclosure of the fee sharing agreement, reiterating that failure to fully disclose the agreement’s substance was a mistake despite counsel’s intentions.

The respondents brought a preliminary motion to strike portions of an elector’s application under the Municipal Conflict of Interest Act on the basis that several alleged contraventions were commenced outside the six‑week time limit in s. 9(1).

The court examined the legislative history and jurisprudence interpreting the provision and concluded that s. 9(1) functions as a temporal qualification for applicants rather than a conventional limitation period.

The relevant inquiry focuses on the applicant’s actual or constructive knowledge of the facts giving rise to the alleged contravention, not on what a reasonably diligent person could have discovered from publicly available information.

The court held that the applicant’s uncontradicted evidence established that she commenced the application within six weeks of acquiring the requisite knowledge.

The moving parties failed to prove earlier knowledge that would render the application untimely.

Two purchasers of hotel condominium units in the Trump International Hotel in Toronto brought test‑case summary judgment motions seeking rescission and damages based on alleged misrepresentations and an alleged breach of an Ontario Securities Commission prospectus‑exemption ruling.

The purchasers relied primarily on an “Estimated Return on Investment” document that allegedly overstated revenues and understated expenses.

The court found the document contained multiple misrepresentations but held the plaintiffs’ claims nevertheless failed because their reliance on the estimates was not objectively reasonable in light of extensive contractual disclaimers, disclosure documents, and risk warnings.

The court further held the defendants did not breach the OSC exemption ruling and that statutory securities and condominium misrepresentation provisions were not engaged.

One plaintiff’s claims were also statute‑barred under the Limitations Act, 2002.

The defendant brought a motion for summary judgment seeking dismissal of claims arising from alleged oral agreements among siblings relating to a condominium investment in China and loans allegedly advanced to the defendant to purchase a property in Ontario.

The defendant argued lack of jurisdiction, forum non conveniens, abuse of process due to a parallel Small Claims action, and that the claims were statute‑barred under the Limitations Act, 2002.

The court held that it possessed in personam jurisdiction over the Ontario-resident defendant and that the claims sought damages rather than a declaration of title to foreign land.

The court further concluded that Ontario was not an inappropriate forum and that genuine issues requiring a trial existed, including the existence of the alleged agreements and the discoverability of the limitation periods.

The defendant’s summary judgment motion was dismissed and the plaintiffs’ cross‑motion to amend pleadings and transfer and consolidate the Small Claims Court action was granted.

Following dismissal of an application by a professional regulatory body seeking to restrain alleged unauthorized practice under the Professional Foresters Act, 2000, the respondents sought substantial indemnity costs exceeding $127,000.

The regulator argued that no costs should be awarded because the proceeding raised novel public-interest issues concerning regulation of professional forestry and the enforcement of statutory duties.

The court held that while regulators acting in the public interest may sometimes avoid costs, they are not automatically exempt from the ordinary rule that costs follow the event.

Given the vigorous litigation pursued against the respondent, partial indemnity costs were appropriate.

The court awarded $90,000 in partial indemnity costs to the respondents.

In a billion‑dollar negligence class action against auditors arising from allegedly defective audit reports relied upon by lenders, the plaintiffs brought a motion under Rule 30.10 of the Rules of Civil Procedure seeking production of investigative materials held by the Institute of Chartered Accountants of Ontario relating to disciplinary proceedings against two audit partners.

The court held that production from a non‑party requires proof that the documents are relevant and that it would be unfair to require the moving party to proceed without them.

The plaintiffs failed to demonstrate unfairness because they already possessed the underlying documentary record and extensive discovery evidence, and the investigator’s report was not necessary for the pending partial summary judgment motion or the pleaded issue estoppel.

The court further held that the materials were protected by a case‑by‑case privilege under the Wigmore criteria arising from confidential communications between the professional regulator and its members during disciplinary investigations.

Following a partially successful appeal from a family arbitration award concerning equalization, child support, and spousal support, the court addressed costs of the leave motion and appeal.

The appellant succeeded in setting aside the retroactive child support award and in having the lump sum spousal support award reconsidered, while the respondent preserved most other components of the arbitration award.

Applying Rule 24 of the Family Law Rules and s.131 of the Courts of Justice Act, the court held that success on the appeal was divided.

Given the mixed and substantial success of both parties, it was inappropriate to treat either side as the substantially successful party.

The court exercised its discretion to make no order as to costs.

The defendant travel company brought a motion for summary judgment in a certified class proceeding alleging breach of contract relating to hotel reservation charges.

The representative plaintiff claimed that the defendant mischaracterized and inadequately disclosed its “Tax Recovery Charge” and “Service Fees,” including allegedly charging taxes based on a wholesale rate and embedding undisclosed profits within service fees.

The court held that the website Terms of Use formed part of the reservation contract but, properly interpreted, did not contain promises requiring disclosure of the calculation methodology, a breakdown of the combined fees, or the absence of a profit element.

The language merely described the nature of the charges and did not create contractual obligations consistent with the plaintiff’s interpretation.

Finding no breach of the express contractual terms, the court concluded there was no genuine issue requiring a trial.

Following a successful certification motion in a proposed class proceeding brought by former employees against corporate and individual defendants, the plaintiffs sought partial indemnity costs of approximately $64,000.

The defendants argued that no costs should be awarded due to their partial success on a Rule 21 motion and their role in narrowing the plaintiffs’ claims.

The court held that while the plaintiffs achieved overall success on certification, their success was limited because several causes of action were dismissed and the scope of the claims was reduced.

Exercising its discretion under the Class Proceedings Act, 1992, the court reduced the requested partial indemnity costs and awarded a global amount.

Costs of $50,000 inclusive were ordered payable forthwith to reflect the plaintiffs’ overall success.