F. Paul Morrison

The moving parties brought a motion for leave to appeal a decision of the Ontario Land Tribunal and a related costs decision.

The Divisional Court dismissed the motion for leave to appeal.

Costs of $5,000 were awarded to the City of Vaughan and $5,000 to the other responding parties.

The appellants, representative plaintiffs in a certified class proceeding concerning universal life insurance policies, appealed the dismissal of their motion to amend their statement of claim and add a new common issue regarding an 'Investment Spread Claim'.

The motion judge refused the amendments on the basis that the claim was a new cause of action that was discoverable in 2016 and therefore statute-barred under the Limitations Act, 2002.

The Court of Appeal upheld the motion judge's decision, agreeing that the claim was not captured by existing pleadings, was discoverable based on a 2016 repricing report, and did not engage a rolling limitation period as it involved discrete decisions rather than periodic breaches.

The applicants sought judicial review to quash O. Reg. 382/19, which amended transitional rules for planning appeals before the Ontario Land Tribunal, arguing it was ultra vires its enabling statute.

The regulation reimposed a more restrictive procedural regime on third-party appeals of municipal planning decisions.

The Divisional Court dismissed the application, finding that the Attorney General had broad, express statutory authority under s. 43.1 of the Local Planning Appeal Tribunal Act, 2017 to make the transitional regulation.

The court held the regulation was consistent with the enabling statute and did not improperly deprive the applicants of vested substantive rights.

The court also declined to address procedural fairness issues, finding them premature as they should be raised in the applicants' pending motion for leave to appeal.

The plaintiffs brought a motion for leave to appeal the order of Akbarali J. dated April 27, 2023.

The Divisional Court dismissed the motion for leave to appeal with no order as to costs.

This decision addresses the costs of a class action certification motion.

The plaintiff initially sought certification for a broad class action, which was adjourned due to being "uncertifiable." The plaintiff then reformulated and narrowed the claim, leading to partial certification.

The plaintiff sought substantial costs, while the defendant sought offsetting costs for wasted efforts.

The court, exercising its discretion, ordered no costs, finding the plaintiff's claim excessive and acknowledging the defendant's significant success in narrowing the class and issues.

The court emphasized reasonableness and divided success in class action costs.

The plaintiffs in this class proceeding moved to amend their statement of claim to add a new cause of action related to an "investment spread" and sought certification of a new common issue.

The defendant opposed, arguing the claim was time-barred and the amendment would fundamentally alter the certified action.

The defendant also moved to strike portions of the plaintiffs' expert report as irrelevant.

The court dismissed the plaintiffs' motion to amend, finding the claim discoverable in 2016 and thus out of time, and that the amendment would cause non-compensable prejudice and delay.

The court granted the defendant's motion to strike the expert report portions related to the investment spread and profitability, deeming them irrelevant to the certified common issues.

The plaintiff brought a motion to certify a class action against Allstate Insurance Company of Canada, alleging the employer breached the Employment Standards Act by failing to include certain bonus payments in the calculation of vacation and public holiday pay.

The court found that the 'some basis in fact' requirement was met only for Business Development Agents regarding the Agency Performance Bonus, as there was evidence it was not wholly discretionary and related to individual production.

The motion for certification was granted but strictly limited to this subclass and bonus type.

The defendant brought a motion for security for costs against the plaintiff under Rule 56.01(1)(d).

The plaintiff claimed approximately $417,000 for breach of contract, while the defendant counterclaimed for over $4.6 million.

The court dismissed the motion, finding that the plaintiff had sufficient assets in Ontario to cover a potential costs award.

Furthermore, the court held that an order for security for costs would not be just in the circumstances, given the inextricably linked and much larger counterclaim, the delay in bringing the motion, and its apparent tactical nature.

The applicant physician moved for an urgent interim injunction to stay the revocation of his hospital privileges pending judicial review of a decision by the Health Professions Appeal and Review Board.

The court applied the modified RJR-MacDonald test and found that the applicant failed to establish a strong prima facie case, as the statutory provisions relied upon applied to reappointment rather than mid-term revocation.

The court also found no irreparable harm and that the balance of convenience did not favour a stay.

The motion was dismissed with costs awarded to the respondent hospital.

The defendants in a proposed opioid class action moved to dismiss the proceeding for delay under s. 29.1 of the Class Proceedings Act, 1992.

In response, the plaintiff brought a cross-motion for a nunc pro tunc timetable order and commenced parallel proceedings in Manitoba.

The parties reached a settlement wherein the competing motions were dismissed without costs, the Manitoba proceedings would be discontinued, and the Ontario action would be deemed commenced on October 2, 2020, making it subject to the amended certification test under the Smarter and Stronger Justice Act, 2020.

The court approved the settlement and issued the consent orders.

The plaintiff physician brought an action against the defendant hospital and individuals for damages arising from a de facto suspension of his hospital privileges and alleged breach of a prior settlement agreement.

The defendants moved to strike the claim for lack of jurisdiction, arguing the plaintiff had not exhausted his remedies under the Public Hospitals Act (PHA), and on grounds of res judicata and abuse of process.

The court found that while the action was premature because the plaintiff had not exhausted his PHA remedies regarding the de facto suspension, the appropriate remedy was to stay the action rather than strike it.

The court dismissed the defendants' arguments on res judicata and abuse of process, but struck certain paragraphs of the statement of claim that made unfounded attacks on the hospital's legal counsel, with leave to amend.

The defendants brought a motion to transfer a class action regarding alleged systemic abuse at a psychiatric facility from Toronto to Barrie.

The court applied a holistic approach to the factors under Rule 13.1.02(2)(b) of the Rules of Civil Procedure.

While Barrie had proximity to the facility and witnesses, the Regional Senior Justice noted that due to courtroom availability and backlog, a trial in Barrie might ultimately be moved elsewhere in the Central East Region.

The court concluded that Toronto's judicial resources and specialized class action judges would better ensure a just and expeditious determination.

The motion to transfer was dismissed.

The plaintiffs brought a motion to settle the Notices of Certification and the Litigation Plan in a class action concerning universal life insurance policies.

The court excluded certain sentences from the Notices of Certification, finding them unnecessary and potentially confusing for class members deciding whether to opt out.

The court also heavily edited the plaintiffs' proposed Litigation Plan, removing extraneous, premature, and confrontational information, noting that a post-certification litigation plan should focus on implementation rather than litigation strategy.

The plaintiff brought a motion to enforce its contractual rights following a $5 million default on bearer bonds issued for a renewable energy project in Poland.

The plaintiff sought to terminate the Administration Agreement and assume the role of Administrator of the Trust.

The court found that final relief could not be granted on an interlocutory motion due to credibility issues requiring a trial.

However, the court granted a temporary mandatory injunction allowing the plaintiff to assume the Administrator's duties pending trial, finding a strong prima facie case of default, irreparable harm, and a balance of convenience favoring the plaintiff.

The moving parties brought a motion for leave to appeal.

The Divisional Court dismissed the motion and ordered the moving parties to pay costs fixed at $20,000 to the responding party.

The defendant was successful on a motion to strike the plaintiff's claims for inducing breach of contract and intentional interference with economic relations as an abuse of process.

The defendant sought costs of $21,804.92 on a substantial indemnity basis.

The court awarded costs of $17,750 on a partial indemnity basis, noting that the plaintiff's late abandonment of several causes of action unnecessarily lengthened the proceeding, but substantial indemnity costs were not warranted.

The plaintiff, Crown Crest Financial Corp., sued the defendant, a licensed paralegal, alleging he unlawfully obtained confidential business records and misused the information to recruit 14 claimants to sue Crown Crest in Small Claims Court.

The plaintiff advanced claims for inducing breach of contract and intentional interference with economic relations.

The defendant brought a motion to strike the claims under Rule 21.01.

The court granted the motion, finding that the claims were not legally viable on public policy grounds, as they would interfere with the loyalty relationship between a litigant and their legal representative.

The court also found the claims were an abuse of process because they relied on privileged communications.

The claims were struck, but the plaintiff was granted leave to amend to plead privacy torts.

A land surveying company brought a class action on behalf of Ontario land surveyors whose plans of survey had been digitized, stored, and copied by the province's electronic land registry service provider without payment of royalties.

The appellant argued that Crown copyright under s. 12 of the Copyright Act did not vest in the registered and deposited plans.

The majority held that the comprehensive provincial land registration regime gave the Crown complete control over the publication process, satisfying the requirements of s. 12.

A concurring minority agreed on the outcome but adopted a different interpretive framework, requiring both that the work be published 'by or under the direction or control' of the Crown and that the work qualify as a 'government work' serving a public purpose.

The appeal was dismissed without costs.

The defendants brought motions to strike the plaintiffs' claims for fraudulent and negligent misrepresentation regarding the purchase of a condominium unit, arguing that the unit was purchased by a corporation rather than the plaintiffs personally.

The court dismissed the motions on two grounds.

First, the motions were brought after an inordinate and unexplained delay, contrary to rules 2.02 and 21.02.

Second, on the merits, it was not plain and obvious that the plaintiffs' claims in their personal capacity as prospective purchasers and intended occupants would fail, nor was it plain and obvious that they lacked legal capacity to bring the claims.

This is a costs endorsement addressing the allocation of costs for certification and summary judgment motions in the Superior Court and the costs of the appeal to the Court of Appeal for Ontario.

The plaintiffs appealed from orders of Justice Paul M. Perell denying certification and granting summary judgment.

On appeal, the plaintiffs achieved partial success: they obtained certification on some common issues but not on their negligent misrepresentation claim, and they reversed summary judgment on some claims while others remained time-barred.

The Court of Appeal awarded costs to the plaintiffs reflecting their overall success.