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 appellant appealed a Small Claims Court decision striking his claim against the respondents for failing to disclose a reasonable cause of action.

The appellant had sued for damages related to extra expenses and lost income after failing his truck driving test multiple times, disputing specific instructions in the Ministry of Transportation Truck Handbook.

The Divisional Court dismissed the appeal, finding the Deputy Judge made no error of law in concluding the claim disclosed no reasonable cause of action, even when read generously.

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.

The Ministry of Community and Social Services and the Ontario Public Service Employees Union appealed a Divisional Court decision upholding an Information and Privacy Commissioner order.

The order required the Ministry to disclose records containing the full names of Family Responsibility Office (FRO) employees to a requester.

The appellants argued that disclosure posed a health and safety risk to the employees and conflicted with a prior Grievance Settlement Board order.

The Court of Appeal dismissed the appeal, finding the Commissioner reasonably concluded that the evidence did not establish a reasonable expectation of harm to the employees, and that the disclosure order did not conflict with the prior grievance settlement.

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.

The appellant appealed from orders granting summary judgment and dismissing her claims against the Crown and Seneca College.

She alleged wrongful denial of student aid funding and an improperly assigned failing grade in a nursing course.

The Court of Appeal upheld the motions judge's findings that student aid was discretionary and restricted due to an unrefunded overpayment, and that the appellant failed the course despite numerous opportunities to rewrite the exam.

The appeal was dismissed, and fresh evidence was not admitted.

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.

Following a successful appeal, the Court of Appeal received written submissions on costs.

The appellant did not seek costs for either the trial or the appeal.

Consequently, the previous trial costs order was set aside, and the court ordered that no costs be awarded for either the trial or the appeal.

The respondents sued Ontario in negligence after their dairy herd suffered health problems and low milk production, alleging that asphalt and concrete waste deposited on their farm by the Ministry of Transportation in the 1960s contaminated their well water.

The trial judge found Ontario liable and awarded damages.

On appeal, the Court of Appeal set aside the judgment and dismissed the action.

The Court held that Ontario did not breach the standard of care because the risk of harm to the cattle from the buried waste was not reasonably foreseeable in the 1960s.

Furthermore, Ontario had no statutory or common law duty to remove the waste or remediate the water, as testing showed the water met the allowable provincial drinking standards.

Seven generic drug manufacturers sought judicial review of a decision by the Executive Officer of the Ontario Public Drug Programs to designate Apotex's product, Apo-Lisinopril, as a benefit under the Ontario Drug Benefit Formulary.

The applicants argued that Apotex could not meet the supply pre-condition at the time of its application due to a patent injunction.

The Divisional Court dismissed the application, finding that the Executive Officer correctly interpreted the regulations to require a prospective assessment of the manufacturer's capability to supply the product to meet anticipated demand, rather than requiring sufficient inventory on hand at the moment of application.

The applicants sought leave to bring an application for judicial review before a single judge of the Superior Court pursuant to s. 6(2) of the Judicial Review Procedure Act, arguing urgency.

The matter concerned the proposed designation of Apotex Inc.'s version of Lisinopril as a benefit under the Ontario Drug Benefit Act.

The respondent Minister opposed the application, arguing the urgency was self-created and economic loss was insufficient.

The court granted leave, finding the potential economic loss significant and the applicants' prior inaction not fatal.