George R. Strathy

Following certification of a national class proceeding and dismissal of defendants’ summary judgment motions, the court determined costs arising from the certification and related motions.

The court applied Rule 57 of the Rules of Civil Procedure and principles governing costs in class proceedings, including fairness, reasonable expectations of the parties, and the access to justice objectives of the Class Proceedings Act, 1992.

The litigation involved extensive evidence, numerous defendants, and complex factual and legal issues affecting approximately 10,000 class members with alleged losses approaching $150 million.

The court rejected requests for substantial indemnity costs and declined to refer costs to formal assessment, instead fixing costs directly.

Significant partial indemnity costs and disbursements were awarded to the plaintiff, apportioned among the defendant groups.

The moving party sought certification of a proposed class proceeding on behalf of present and former franchisees of a pizza franchise system alleging excess advertising contributions, excessive order‑processing fees, and failure to share supplier rebates.

The proposed claims included breach of contract, breach of statutory duty of fair dealing under the Arthur Wishart Act (Franchise Disclosure), 2000, misrepresentation in disclosure documents, and related equitable remedies.

The court held that the pleadings disclosed viable causes of action, that an identifiable class and common issues existed, and that a class proceeding would be the preferable procedure.

However, the proposed representative plaintiff was found unsuitable due to evidence of serious contractual breaches, insolvency, and potential conflicts with the class.

The certification motion was adjourned to permit substitution of a new representative plaintiff.

The defendant brought a motion in a certified class proceeding to compel answers to refusals, undertakings, and questions taken under advisement during examinations for discovery of the representative plaintiffs.

The underlying action alleged negligent misrepresentation, breach of contract, and unfair practices under the Consumer Protection Act, 2002 arising from statements in a college program calendar suggesting students could obtain certain industry designations.

The court reviewed the disputed discovery questions through the lens of proportionality and the principle that discovery before the common issues trial in a class action is generally limited to the certified common issues.

Many of the defendant’s requests were refused because they sought privileged communications, attempted discovery of class members, or addressed individual issues unrelated to the common issues.

Some limited answers were ordered where they would assist the defendant in understanding the case it must meet.

The moving party sought court approval of a class action settlement alleging that the defendant utility breached s. 4 of the Interest Act by charging monthly interest on overdue accounts without disclosing the equivalent annual rate.

The proposed settlement provided approximately $5.8 million in compensation through refunds to certain class members, cancellation of excess interest charges, and cy près distributions to charitable organizations.

The court applied the established settlement approval criteria and concluded the agreement was fair, reasonable, and within the range of acceptable outcomes given litigation risks and administrative constraints.

The court also approved class counsel’s contingency fee of 25% of the recovery.

However, the request for a $2,500 honorarium for the representative plaintiff was denied because the circumstances did not meet the threshold of exceptional contribution.

In a certified class action arising from a fire and explosion in an underground electrical vault at a residential complex, the defendant utility appealed a Master’s order compelling answers to refusals given during examinations for discovery.

The appeal concerned whether the defendant was required to disclose details of internal and expert investigations and to answer questions regarding its theory of causation.

The court held that the defendant failed to establish a factual basis for litigation privilege over investigative information and expert findings.

The court further held that under Rule 31.06(3) of the Rules of Civil Procedure, a party must disclose expert findings, opinions, and conclusions at discovery unless it undertakes not to call the expert at trial.

The Master’s order requiring answers to discovery questions and disclosure of investigative information was upheld.

Following certification of a proposed class proceeding concerning a medical product, the court determined the appropriate costs award for the certification motion and a related motion to strike an affidavit.

The court considered the factors in Rule 57.01 of the Rules of Civil Procedure and s. 31 of the Class Proceedings Act, 1992.

Although the plaintiffs were successful in obtaining certification, the evidentiary record and legal issues were relatively modest and the defendants made timely concessions that narrowed the scope of the dispute.

The court concluded that a conservative costs award was appropriate and reduced the plaintiffs’ claimed fees to a reasonable partial indemnity level.

The defendants were awarded costs for their successful motion to strike, which were offset against the certification costs.

Following the dismissal of a motion to certify a proposed class action concerning alleged defects in digital cameras, the court addressed the appropriate costs award.

The defendants sought $764,944.37 on a partial indemnity basis, arguing the plaintiffs were wholly unsuccessful and had advanced an overbroad claim lacking evidentiary foundation.

The court held that the case did not raise a novel legal issue or matter of public interest that would justify relaxing the ordinary costs regime under s. 31(1) of the Class Proceedings Act, 1992.

However, the court found the amount claimed excessive given the scale and complexity of the certification motion and the resources deployed by the defendants.

Balancing proportionality, fairness, and access to justice considerations, the court awarded the defendants $200,000 in costs.

In a proposed consumer class proceeding, the defendant sought directions permitting a summary judgment motion to be heard before the certification motion and sought leave to file a sur‑reply pleading.

The court considered the case management discretion under s. 12 of the Class Proceedings Act, 1992 and the general principle that certification should normally be the first substantive motion.

The proposed summary judgment motion would not dispose of the entire proceeding and would likely delay certification and increase costs.

The court held that efficiency favored addressing certification first and declined to schedule the summary judgment motion or the proposed sur‑reply motion before certification.

The parties were directed to agree on a timetable leading to certification.

The moving parties sought court approval of a proposed settlement in a certified class proceeding relating to a leveraged charitable donation tax shelter.

Participants had claimed inflated charitable tax credits based on loans and security deposits connected to the program, which were later disallowed by the Canada Revenue Agency.

The settlement provided for an $11 million payment by a defendant law firm alleged to have issued legal opinions supporting the program’s legality, with funds distributed to class members and covering counsel fees and administration.

The court applied established factors governing settlement approval in class proceedings and found the agreement fair, reasonable, and in the best interests of the class given significant litigation risks.

The court also approved class counsel fees but declined to award additional compensation to the representative plaintiffs, finding their contribution commendable but not exceptional.

In a proposed overtime misclassification class action against a financial institution and its affiliate, the plaintiffs brought a motion to compel answers to refusals and undertakings arising from cross‑examinations on affidavits filed for an upcoming certification motion.

The court balanced the need for a full evidentiary record against the proximity of the certification hearing and the burden of additional production.

Requests for a third‑party inspection of the defendants’ human resources system and certain historical records were refused as disproportionate or unnecessary at the certification stage.

However, several questions concerning the duties of investment advisors, associate investment advisors, and the rationale for overtime eligibility policies were ordered answered because they related to class definition and commonality issues.

Other questions relating to merits issues, irrelevant job descriptions, or hypothetical inquiries were not compelled.