Ezra Siller

This endorsement addresses the approval of class counsel fees, plaintiffs' costs, defendants' costs, and the Law Foundation of Ontario's levy following a decade-long class action concerning the legality of Par account transactions (PATs) by London Life and Great-West Life.

The court approved class counsel fees of $16.4 million, found the plaintiffs entitled to $4 million in partial indemnity costs from the defendants, and denied the defendants' claim for costs.

It also determined that the Law Foundation of Ontario was entitled to a levy of $1,520,346.50 (repayment of disbursements) plus 10% of the net monetary award ($4,030,000), totaling $5,550,346.50, to be paid from the participating accounts.

The court clarified that a "monetary award" for the purposes of the Class Proceedings Act and the Law Society Act includes funds paid to the benefit of class members through participating accounts, even if not directly distributed to individuals.

The defendants, three major tobacco manufacturers, appealed a motion judge's decision dismissing their motion for summary judgment.

The plaintiffs, tobacco growers, brought class actions alleging the defendants breached agreements by paying lower export prices for tobacco that was subsequently smuggled back into Canada.

The defendants argued the claims were statute-barred as the plaintiffs knew or ought to have known of the claims more than six years prior.

The motion judge found a genuine issue for trial regarding when the plaintiffs discovered the defendants' complicity in the smuggling.

The Divisional Court dismissed the appeal, finding no palpable and overriding error in the motion judge's conclusion that the defendants' involvement in smuggling was an essential element of the claim and that its discoverability required a trial.