E.M. Morgan

The plaintiffs brought a motion to certify a class action arising from an airline accident involving a flight operated by Fly Jamaica Airways and an aircraft manufactured by Boeing.

The court found that the criteria under section 5 of the Class Proceedings Act were met, including the 'some basis in fact' standard, and certified the action on consent.

The court also granted the plaintiffs' unopposed requests to amend their pleadings to name the pilots and ordered the airline to disclose the passenger list to facilitate notice to the class.

At an initial case conference for a proposed class action, the court set a timetable leading up to a certification motion scheduled for April 2020.

The court also addressed concerns regarding limitation periods for cross-claims against defendants against whom the plaintiffs intended to discontinue their claims, ruling that serving a cross-claim tolls the limitation period even if it must later be reconstituted as a third-party claim.

The defendant appealed a Master's order granting the plaintiffs leave to amend their statement of claim.

The proposed amendment alleged that a trust agreement concerning a residential property was void because it violated the common law Rule Against Perpetuities by failing to specify a time frame for legal title to vest.

The Superior Court of Justice allowed the appeal, finding that the Master erred in law by failing to determine if the pleading was legally tenable.

The court held that under sections 3 and 4 of the Perpetuities Act, the contingent interest was presumptively valid and subject to a 'wait and see' approach, making the plaintiffs' proposed amendment impossible of success and legally untenable.

The plaintiff brought a motion to amend the certification order in a class action concerning a bacterial infection outbreak among patients who received epidural steroid injections from the defendant physician.

The plaintiff sought to revise and expand the common issues to include negligence, causation based on epidemiological evidence, fiduciary duty, and limitation periods, and to add two subclasses.

The defendant physician brought a cross-motion to decertify the action, arguing that causation and standard of care required individualized assessments.

The court granted the plaintiff's motion to amend the certification order and dismissed the defendant's motion to decertify, finding that the plaintiff's novel methodology of using statistical correlation to prove causation met the 'some basis in fact' standard for certification and should be tested at a common issues trial.

The plaintiff, a pensioner, brought a proposed class action alleging that the employer miscalculated the 2017 cost of living increase for pension payments, negatively affecting all subsequent years.

The plaintiff sought certification of the class proceeding and summary judgment for breach of contract, breach of trust, and breach of fiduciary duty.

The court certified the action as a class proceeding, finding it met all criteria under the Class Proceedings Act.

However, on the merits, the court granted summary judgment in favour of the defendants, concluding that the employer's interpretation of the pension plan's rounding provisions was correct and no breach of duty occurred.

The defendants brought an anti-SLAPP motion to dismiss a libel action commenced by the plaintiffs, a law firm and its senior partner.

The action arose after the individual defendant protested outside the plaintiffs' offices with placards alleging the law firm was withholding funds owed to the corporate defendant for occupational therapy services.

The court dismissed the motion, finding the expression did not relate to a matter of public interest, but rather a private financial dispute between two professional firms.

The court awarded costs to the plaintiffs, finding compelling facts to depart from the statutory presumption of no costs for an unsuccessful moving party.

The plaintiff and third party moved for contempt against the defendants for failing to remove a dock as ordered following a trial.

The defendants argued that the delay was due to the need for a Ministry of Natural Resources work permit and a pending appeal.

The court found that while the defendants improperly delayed applying for the permit while seeking a stay, they were justified in waiting for the permit before commencing demolition.

The court adjourned the contempt motion to allow time for the permit to be issued and the work to be completed, with leave to return if further delays occur.

Following a settlement approval in a class action, the plaintiff failed to pay a $5,000 costs award to the defendant, Canderm Pharma Inc., for six months.

The plaintiff argued the costs were payable only after settlement funds were distributed or a companion action was dismissed.

The court rejected these arguments, finding the delay unreasonable and the plaintiff's positions untenable.

The court ordered the plaintiff to pay the outstanding $5,000 forthwith, plus an additional $5,000 in costs for the case conference required to enforce the original order.

The plaintiff vendor brought a motion for summary judgment against the defendant purchasers for failing to close a real estate transaction.

The defendants raised defenses of frustration due to a market drop, delay, misrepresentation, and bribery, all of which were rejected by the court.

The court awarded damages for loss of bargain based on the difference between the contract price and the appraised value.

However, the court refused to enforce a 20% interest rate clause in the standard form agreement, finding it to be a surprisingly onerous term that was not drawn to the defendants' attention.

The plaintiff in a proposed class action moved to introduce Pension Information Committee Reports from 1998 to the present as late-filed evidence, after cross-examinations had been completed.

The defendants objected but suggested that if the reports were admitted, the annual pension statements for the same years should also be admitted.

The court applied the test for late-filed evidence, finding the documents relevant, non-prejudicial as they were the defendants' own records, and reasonably omitted initially.

The court granted the motion, admitting both the reports and the annual statements in the interests of justice.

Following the dismissal of the applicants' request to remove a boundary tree, the successful respondents sought costs.

The respondents had made an offer to settle prior to the hearing, which the applicants did not accept.

The court awarded the respondents costs on a partial indemnity scale up to the date of the offer and on a substantial indemnity scale thereafter.

The court found the respondents' counsel's hourly rates and staffing choices reasonable, fixing total costs at $77,000 inclusive of disbursements and HST.

The defendants brought a mid-trial motion to exclude video footage of an interview between a deceased plaintiff and a documentary filmmaker.

The plaintiffs sought to introduce the unsworn footage to demonstrate the deceased plaintiff's sincerity and counter credibility attacks in the defendants' expert reports.

The court held that the video footage did not meet the criteria of necessity and reliability under the principled approach to hearsay, noting that the best available evidence was the deceased plaintiff's sworn examination for discovery transcript and affidavit.

The motion to exclude the evidence was granted.

The representative plaintiff in two companion class actions against the Tim Hortons franchisor sought approval of a settlement agreement and class counsel fees.

The settlement included a $10 million payment toward local marketing initiatives, $2 million for legal costs, and significant non-monetary benefits valued at over $25 million, including governance changes and the revocation of restrictive clauses.

The court found the settlement to be fair, reasonable, and in the best interests of the class, noting it achieved access to justice, judicial economy, and behaviour modification.

The court also approved the fee requests for the litigation funder and class counsel, finding them to be within a zone of reasonableness.

At a pre-trial conference for a six-week trial, the court provided procedural directions regarding the presentation of evidence.

The court permitted the plaintiffs to use affidavits for their evidence-in-chief to save time, but declined to admit discovery transcripts en masse.

The court also agreed with the defendant that the judge should not read the expert reports until after hearing the plaintiffs' viva voce evidence, to avoid being influenced by the experts' interpretation of the plaintiffs' testimony before hearing it firsthand.

The applicants sought an order authorizing the removal of a mature boundary tree shared with the respondents to facilitate a home extension.

The applicants argued the tree constituted a nuisance because its protection zone prevented their proposed construction.

The court dismissed the application, finding that the tree did not interfere with the applicants' current use and enjoyment of their property, but only with their desired enhancement.

The applicants failed to demonstrate that the tree was a substantial and unreasonable interference or that there were no reasonable alternative designs for their renovation.

The parties attended a case conference to settle the terms of the orders approving a class action settlement and distribution protocol.

The court approved the draft orders with minor modifications, including pluralizing references to the Canderm defendants and adjusting the notice period.

The court declined to award costs of the Ontario action to Canderm, noting the action was stayed due to the settlement with the other defendants.

The court also addressed concerns raised by a class member regarding the claims administrator's handling of her income loss claim, directing the administrator to be flexible and objective in assessing evidence.

The plaintiffs, Tim Hortons franchisees, brought a motion for approval of a third-party litigation funding agreement with Galactic TH Litigation Funders LC in their proposed class action against the franchisor.

The court applied the multi-part test from Houle, finding the agreement necessary for access to justice, substantively meaningful, fair and reasonable, and protective of the defendant's interests.

The court also found the funder would not be overcompensated.

The funding agreement and budget were approved.

The plaintiff brought a motion for approval of a proposed $250,000 settlement with the settling defendants in a class action concerning adverse reactions to a cosmetic injectable filler.

The court found the settlement amount modest but reasonable given the small class size and litigation risks, provided the maximum compensation for income loss was increased from $5,000 to $20,000.

Class counsel fees were approved with a $20,000 reduction.

The action against the non-settling defendant was permanently stayed in Ontario, and procedural protections were added to the bar order.

Costs of $5,000 were awarded against the plaintiff for late service of a factum.

The parties appeared before the court to advise that the contested issue of carriage had been resolved by consent.

The court approved an agreed-upon schedule for the proceedings leading up to a certification motion and potential jurisdiction motions, including deadlines for the production of medical and gambling records, delivery of materials, cross-examinations, and factums.

The plaintiff pedestrian was struck and severely injured by a stolen motor vehicle.

Her spouse was employed as a delivery driver and had a company van available for his regular use during business hours.

The plaintiffs brought a motion to determine whether the employer's automobile insurance policy, which included an OPCF 44R Family Protection Change Form, provided excess coverage for the injuries.

The court found that because the employer's shop was open and the van was available for the spouse's use at the time of the accident, the policy provided coverage, even though the spouse was not yet at work or using the vehicle when the accident occurred.