Erin Rizok

The Ontario Superior Court of Justice heard unopposed applications by the Joint Committee in the national Hepatitis C class actions (Parsons and Kreppner) to allocate approximately $160 million in "Excess Capital" from the settlement fund.

The Joint Committee proposed four recommendations to increase various benefits for approved class members and family members, including lump sum payments, loss of guidance/care/companionship awards, lost pension benefits, and loss of services rates.

The court granted the application, finding the proposed allocations reasonable, non-discriminatory, and consistent with the settlement agreement's purpose of bridging compensatory gaps.

This is a costs endorsement following the Court of Appeal's decision allowing an appeal of a trial judgment in a civil action involving allegations of excessive force during arrest.

The respondent sought to avoid paying the costs of the appeal on the basis that the matter constituted public interest litigation.

The Court of Appeal rejected this argument, finding that the nature of the proceeding did not fall within the recognized categories of public interest litigation.

The appellants were awarded costs of the appeal in the amount of $25,000 inclusive of disbursements and HST.

The respondent was arrested by Ontario Provincial Police officers on May 24, 2009, near Douglas Creek Estates in Caledonia while carrying a Canadian flag to participate in a flag-raising rally.

The trial judge found the arrest was unlawful and awarded damages for false arrest, wrongful imprisonment, and breach of Charter rights.

On appeal, the majority (Nordheimer and Cronk JJ.A.) found the arrest was lawful as a preventive measure to avoid an imminent breach of the peace, but remitted the case for a new trial on the issue of excessive force.

Huscroft J.A. dissented, finding the arrest was unlawful and that the trial judge's findings should not be disturbed.

The plaintiffs, former employees of an automobile dealership, sued police and others for damages after a criminal investigation led to the dealership's closure and their job loss.

The defendants moved for an order striking out the plaintiffs’ Statements of Claim.

The court dismissed the negligent investigation claim, finding no private law duty of care owed by police to employees of a suspect.

It granted leave to amend for civil conspiracy and misfeasance in public office claims, but struck other intentional tort claims without leave.

The Attorney General of Canada and the Joint Committee representing Class Members brought competing applications regarding the allocation of approximately $236 million in excess capital held in the trust fund established by the 1986-1990 Hepatitis C Settlement Agreement.

Canada argued the excess capital should be returned to it, while the Joint Committee sought to allocate the funds to increase benefits for Class Members.

The court dismissed Canada's application, finding that the excess capital allocation provision was intended to provide an opportunity to bridge compensatory gaps for Class Members.

The court approved seven of the Joint Committee's nine recommendations for allocating the funds, including increases to fixed payments and loss of services compensation, to be implemented by way of special distribution.

Following earlier motions by several defendants seeking dismissal of the action, a stay, or security for costs, the court addressed the issue of costs.

The defendants succeeded only in obtaining security for costs orders, and those orders were granted in amounts lower than requested.

The court refused the defendants’ requests to dismiss the action based on a final release, want of prosecution, or late service of the statement of claim.

Applying s.131 of the Courts of Justice Act and Rule 57.01 of the Rules of Civil Procedure, the court found the success of the parties to be divided when viewed globally.

In the circumstances, no costs order was appropriate.

The defendants brought motions to dismiss the plaintiff's personal injury action on the basis of a signed release, failure to serve the statement of claim on time, and want of prosecution, or alternatively for security for costs.

The plaintiff, a Japanese exchange student, was stabbed by another passenger on a Greyhound bus.

The court dismissed the motions to dismiss the action, finding triable issues regarding the release and no prejudice from the minor delay in service.

However, the court granted the motion for security for costs, finding the plaintiff was not impecunious and his claim against the bus company and police lacked a good chance of success based on foreseeability.

The plaintiff was ordered to post $15,000 in security.

Following certification of a class proceeding concerning alleged systemic abuse at a provincial institution, the court determined the appropriate costs award for the certification motion.

The plaintiff sought full indemnity costs, arguing that the defendant increased litigation expenses by delaying disclosure of its position and by re‑litigating issues previously rejected in similar proceedings.

The court held that while the defendant’s conduct was frustrating, it did not reach the threshold of “reprehensible, scandalous or outrageous” behaviour required for full indemnity costs.

However, because the plaintiff had delivered an unaccepted offer to settle, Rule 49.10 of the Rules of Civil Procedure justified partial indemnity costs up to the date of the offer and substantial indemnity costs thereafter.

The requested amounts were found reasonable and were awarded accordingly.

An accused charged with impaired driving and over 80 brought an application for a conditional stay of proceedings until state-funded counsel was provided.

The Crown opposed, arguing that since the accused faced only a fine and not incarceration, the application should be dismissed.

The court held that the absence of a jail sentence does not preclude an order for state-funded counsel where counsel is essential to a fair trial.

The court found the accused was indigent with no other means to retain counsel, and that counsel was essential given the complexity of the case (including issues regarding the two-hour limit for breath samples, potential statement voir dire, and a medical defence) and the accused's severe health issues that would impair his ability to participate effectively in his defence.

The proceedings were conditionally stayed pending provision of state-funded counsel.