Edward Poon

The court approved a class action settlement regarding balcony guardrail failures at the Matrix Towers in Toronto, which led to residents being deprived of balcony access for up to 3.5 years.

The settlement provides a lump sum per unit, regardless of unit size, and includes approval of class counsel fees and disbursements but denies honoraria for the representative plaintiffs.

The decision reviews the risks of litigation, the fairness of the settlement, comparator cases, and the legal standards for settlement approval, counsel fees, and honoraria.

The plaintiff agreed to purchase a residential property from the defendant.

Before closing, a fire damaged the property.

The defendant, whose insurance did not cover repairs due to vacancy, undertook repairs.

The plaintiff, a structural engineer, expressed concerns about the extent of the damage, the quality of repairs, and the lack of disclosure, and was denied the opportunity to inspect the damage before repairs.

The plaintiff ultimately refused to close the transaction due to unsatisfactory disclosure.

The defendant claimed anticipatory breach and counterclaimed for damages.

The court found that the defendant breached the agreement of purchase and sale by failing to provide the plaintiff a timely and meaningful opportunity to inspect the damage and by not acting in good faith in addressing the plaintiff's concerns.

The damage was deemed 'substantial' despite repair costs being a small percentage of the purchase price, as the quality, character, and consequences of the damage must also be considered.

The plaintiff's action for the return of his deposit was allowed, and the defendant's counterclaim for damages was dismissed.

Homeowners sued the Town of Huntsville after basement flooding due to Building Code non-compliance and deficient building inspections.

A first action was settled with a payment from the Town's insurer (Lloyd's) and an agreement for repairs, with releases held in escrow.

When the repairs failed, homeowners brought a second action.

The Town applied for a declaration that its insurers (Lloyd's and AIG) had a duty to defend the second action.

The court found that Lloyd's had a duty to defend because the first action was not fully settled, the second action was a continuation of the first, and the Town's exposure to contractual claims arose from counsel retained by Lloyd's.

AIG had no duty to defend as the damage was manifest before its policy period and the second action was primarily contractual.