Eliezer Karp

Nobilis Health Corp. sought costs after successfully defending a class action certification motion and leave application brought by Vince Cappelli.

Nobilis requested $200,000 in partial indemnity fees and $311,696.39 in disbursements, primarily for three expert reports.

Cappelli did not oppose the fees but challenged the disbursements as excessive and duplicative.

The court found the expert evidence necessary and critical, despite some overlap, and deemed the disbursements fair and reasonable given the litigation risk.

Costs were awarded to Nobilis as requested, with the Class Proceedings Fund ultimately responsible for payment.

The applicant wife sought leave to amend her pleadings for a second time to include a constructive trust claim on the matrimonial home.

This motion was brought late in the litigation process, after the respondent husband had already agreed not to rely on separation agreements for trial.

The court dismissed the applicant's motion, finding that allowing the amendment would cause significant, non-compensable prejudice to the respondent due to the late stage of litigation, the need for additional facts and disclosure, and the inevitable delay of the trial.

The court emphasized the importance of fair notice and diligent pursuit of claims under the Family Law Rules.

The plaintiff sought leave under s. 138.8(1) of the Securities Act to bring a statutory cause of action for secondary market misrepresentation against the defendant corporation, and to certify the action as a class proceeding.

The plaintiff alleged that the defendant made material misrepresentations in its financial statements, which were later restated.

The court dismissed the motion for leave, finding that the plaintiff had no reasonable possibility of success because the specific misrepresentations pleaded were not material to a reasonable investor, and the alleged corrective disclosure did not relate to the pleaded misrepresentations.

Consequently, the certification motion was also dismissed.

A class action was brought against a telecommunications provider on behalf of approximately two million Ontario residents who alleged they were overcharged through an undisclosed call-rounding practice.

The class consisted of both consumers (protected from arbitration by the Consumer Protection Act, 2002) and non-consumer business customers bound by a mandatory arbitration clause in standard form contracts.

The majority held that s. 7(5) of the Arbitration Act, 1991 does not grant the court discretion to refuse to stay claims that are dealt with in an arbitration agreement, and that the first precondition under s. 7(5)(a) was not met because the sole matter in dispute — alleged overbilling — was dealt with in the arbitration agreements.

The business customer claims were therefore stayed, as only the consumers benefited from the Consumer Protection Act's override of the arbitration clause.

Four judges dissented, holding that s. 7(5) confers a discretion to allow the entire proceeding including arbitrable claims to continue in court where it would be unreasonable to separate them.

The appellants appealed a costs award of $60,583.05 made against them following the dismissal of their application to assess the accounts of their former lawyers (the respondents), who were self-represented on the application.

The appellants argued the award was excessive because it failed to account for the respondents' self-represented status and should have been nominal.

The Court of Appeal allowed the appeal, finding the application judge erred in principle by treating the self-represented lawyers as if they were retained counsel and awarding costs on a partial indemnity basis without adjustment.

The court reduced the costs award to $20,000, all-inclusive, and awarded the appellants $10,000 for costs of the appeal.

The plaintiff brought a motion to compel the law firm DJD to disburse $338,627.56 held in trust pursuant to prior court orders.

The funds were the proceeds of property sales related to a fraud and misrepresentation action.

Following a settlement where the defendants relinquished their claim to the funds, DJD refused to release the money, asserting priority for its own legal fees and subsequently issuing notices of garnishment on behalf of new clients (the garnishment creditors) against its former clients.

The court held that the funds were held in trust for the plaintiff pending the litigation's outcome and did not constitute a debt payable to the defendants.

The plaintiff was granted priority over the garnishment creditors, and DJD was ordered to release the funds.

A court-appointed receiver sought directions regarding the distribution of proceeds from the sale of a property.

The Applicants, who held a second mortgage, claimed priority over the alleged first mortgagee, Pillar Capital Corporation, arguing that the first mortgage had been paid in full and therefore the subsequent assignment to Pillar Capital was a nullity.

The court found that the first mortgage was indeed paid in full on August 15, 2014, and there was no contemporaneous agreement to assign it.

Consequently, the May 5, 2015, assignment of charge to Pillar Capital was deemed a nullity.

The Applicants' claim for priority was upheld, and the Receiver was directed to pay the remaining amount due on the second mortgage from the sale proceeds.

Claims by Pillar Capital for property management fees, maintenance fees, and certain legal fees were rejected due to lack of proof and contractual basis.

The plaintiffs brought a motion to extend the time for service of their statement of claim and to validate service, after serving the claim approximately six months past the deadline.

The defendants opposed the motion, arguing the delay was tactical and prejudiced their ability to defend the action.

The court applied the test from Rowland v. Wright Medical Technology Canada Ltd., finding that the plaintiffs met their onus to demonstrate no prejudice resulted from the brief delay, as relevant documents were preserved and witnesses remained available.

The motion was granted, service was validated, and the plaintiffs were awarded costs of $10,000.

The plaintiff brought a motion to set aside an order quashing its appeal of a decision that refused to certify class action claims against certain defendants while certifying claims against others.

The Divisional Court held that under section 30 of the Class Proceedings Act, where an action is certified against some defendants but not others, the plaintiff requires leave to appeal the refusal.

Applying binding appellate authority, the court found that allowing an appeal as of right would unduly delay the certified proceeding.

The motion was dismissed.

In a securities misrepresentation class action, the defendants brought a motion to strike the plaintiffs' reply expert report, delivered by Andrew M. Mintzer, in its entirety.

The report, initially intended to address causation, expanded to cover liability, contravening the agreed timetable and the rule against case-splitting.

The court granted the defendants' motion, striking the report but allowing the plaintiffs leave to file a new affidavit from Mr. Mintzer strictly confined to the issue of causation, as originally agreed.

The court emphasized the importance of adhering to timetables and the rule against case-splitting, particularly in leave motions under the Ontario Securities Act, which serve a gatekeeper function.

The plaintiff in a proposed securities class action moved for certification for settlement purposes, approval of a partial settlement with the auditor defendant, dismissal of the action against individual defendants, and approval of class counsel fees.

The action alleged misrepresentations in the corporate defendant's financial statements.

The court approved the $1 million (USD) settlement with the auditor, finding it fair and reasonable, particularly given the statutory liability limits for experts.

The court also approved the dismissal against the individual defendants and class counsel's fee request of 30% of the settlement funds plus disbursements.

The respondent husband brought a motion for summary judgment to dismiss the applicant wife's claims to set aside their 2009 and 2012 separation agreements, arguing there was no genuine issue for trial, the claims were an abuse of process, and the equalization claim was statute-barred.

The court dismissed the summary judgment motion, finding genuine issues for trial regarding unconscionability, duress, and inadequate financial disclosure.

The court also denied the husband's requests to bifurcate the trial and for security for costs, and ordered him to answer various undertakings and refusals from questioning.

The plaintiff sought to appeal an order that certified a class proceeding against some defendants but dismissed the certification motion against the defendant underwriters, allowing those claims to proceed individually.

The underwriters brought a motion to quash the appeal, arguing that leave to appeal was required under s. 30(2) of the Class Proceedings Act.

The plaintiff argued it had an appeal as of right under s. 30(1).

The Divisional Court held that because a class proceeding was certified and the claims against the underwriters were not dismissed on the merits but merely directed to proceed individually, the order was procedural and leave to appeal was required.

The motion to quash was granted.

However, the court granted the plaintiff's cross-motion for an extension of time to seek leave to appeal, finding the proposed appeal had some merit.

The plaintiff brought a proposed class action for secondary market misrepresentation against the defendants under the Ontario Securities Act and common law.

The defendants brought motions to restrict the class to Canadians who purchased shares on the TSX, arguing that the Ontario court was forum non conveniens for Canadians who purchased on NASDAQ, and that American law should apply to those claims.

The court dismissed the motions, finding that the defendants failed to show that the U.S. was a clearly more appropriate forum, and that the statutory cause of action under the Ontario Securities Act applies extra-territorially to Canadian purchasers on foreign exchanges.

This appeal concerns whether a partial stay of proceedings should be granted in favour of arbitration in a class action involving both consumer and non-consumer claims against TELUS Mobility for alleged undisclosed billing practices (rounding up calls to the next minute).

The appellants argued that the motions judge erred in refusing to stay the non-consumer claims pursuant to section 7(5) of the Arbitration Act, 1991.

The appellants contended that the Court of Appeal's decision in Griffin v. Dell Canada Inc. had been overtaken by the Supreme Court's decision in Seidel v. TELUS Communications Inc. The Court of Appeal dismissed the appeal, holding that Griffin remains binding authority in Ontario and has not been overtaken by Seidel, as the two cases were decided in materially different legislative contexts.

In a proposed pharmaceutical products liability class proceeding, the defendants moved for summary judgment before certification.

The plaintiffs alleged that a testosterone gel caused serious cardiovascular events, was improperly marketed for age-related low testosterone, and generated claims in negligence, failure to warn, unjust enrichment, waiver of tort, and pure economic loss.

The court held that although the evidence established an association and biological plausibility, it did not establish general causation on a balance of probabilities.

The court further held that an association may trigger a duty to warn, but any failure-to-warn claim still failed because causation was not proven.

The claims for unjust enrichment, waiver of tort, and pure economic loss also failed factually and legally, and the action was dismissed.

The defendants, having successfully obtained a temporary stay of two securities misrepresentation actions (a class action and an individual action), sought costs on a partial indemnity scale.

The plaintiffs objected, arguing the costs were excessive, success was divided, and the defendants should adhere to the Costs Grid.

The court awarded the Palladium Defendants $25,000 and KPMG LLP $20,000, all inclusive, finding these amounts reflected the fair and reasonable expectations of the unsuccessful litigants, considering the complexity and importance of the underlying motion, while acknowledging the plaintiffs' partial success in reducing the requested amounts.

A costs endorsement following a focused trial on whether the respondent (mother) could travel to Russia with the parties' two-year-old child.

The mother was successful in obtaining permission to travel.

The court awarded costs to the mother in the amount of $4,500, inclusive of fees, disbursements and HST.

The court reduced the costs award due to the mother's unreasonable procedural conduct, including filing inadmissible hearsay evidence and refusing to produce witnesses for cross-examination without court order.

The court also noted that neither party served offers to settle, which was unreasonable behaviour.

The defendants moved to temporarily stay two related securities misrepresentation actions: an individual action (Vaeth Action) and a proposed class action (Johnson Class Action).

The court granted the temporary stay, finding irreconcilable conflicts of interest for the shared counsel (Morganti Legal) representing both the individual plaintiffs (who intended to opt-out of the class action) and the representative plaintiff of the class action.

The court also found independent reasons to stay the individual action to avoid multiplicity of proceedings and ensure judicial economy, pending the certification and leave motions in the class action.

This decision concerns the judicial approval of a class action settlement, legal fees for class counsel, and an honorarium for the representative plaintiff in a misclassification overtime class action against BMO Nesbitt Burns Inc. The defendant agreed to pay $12 million for class member compensation and $500,000 for administration costs.

The court found the settlement to be fair, reasonable, and in the best interests of the class, falling within a zone of reasonableness established by comparable U.S. settlements.

A 25% contingency fee for class counsel and a $10,000 honorarium for the representative plaintiff were also approved.