Harvey T. Strosberg

This is a class proceeding settlement approval decision arising from a fire on November 12, 2019, in the parking garage of Westcourt Place, an apartment building in downtown Windsor.

The building contained approximately 150 residential apartments and 80,000 square feet of commercial space.

The occupants were displaced and sued the defendant owner and manager.

The parties reached a settlement of $7,300,000 after mediation and protracted negotiations.

The court approved the settlement despite objections from the City of Windsor and some residential tenants.

The court rejected the City's objection on the basis that it failed to opt out of the class proceeding by the deadline and did not establish excusable neglect.

The court also approved counsel fees of $2,190,000 plus disbursements and taxes under a 30% contingency fee agreement, and declined to award honoraria to the representative plaintiffs.

The court considered costs submissions following the successful summary judgment motion of the defendants, Nancy Flagler-Wilburn and F.R. Jordan & Associates Appraisal and Management Services (1977) Inc. The plaintiff, Dennis Paul Rivest, accepted that costs were owed but argued for a significant reduction due to curative steps required by the defendants' failure to plead witness immunity.

The court found some merit in the plaintiff’s argument but rejected the 40% reduction estimate as unfounded.

Ultimately, the court fixed costs at $40,945.80, inclusive of fees, disbursements, and H.S.T., to be paid by the plaintiff within 30 days.

This supplementary endorsement addresses a request from JTI-Macdonald Corp. regarding the adequacy of notice elements in the Claims Procedure Order within the ongoing Companies' Creditors Arrangement Act (CCAA) proceedings.

The court confirmed its satisfaction that the notice elements in the Claims Procedure Orders are reasonable in the circumstances, addressing an oversight from previous submissions.

The Superior Court of Justice addressed multiple motions within the complex Companies’ Creditors Arrangement Act (CCAA) proceedings of JTI-Macdonald Corp., Imperial Tobacco Canada Limited, Imperial Tobacco Company Limited, and Rothmans, Benson & Hedges Inc. The court granted a stay extension until January 31, 2025, and approved Meeting Orders and Claims Procedure Orders.

These orders facilitate the advancement of comprehensive Plans of Arrangement, developed by the court-appointed Mediator and Monitors, aiming for a Pan-Canadian global settlement of tobacco claims totaling $32.5 billion.

The court found the plans were not "doomed to fail" despite outstanding issues regarding financial allocation among the Tobacco Companies and the creditor status of JTI-Macdonald TM Corp.

This endorsement concerns three tobacco companies (JTI-MacDonald Corp., Imperial Tobacco Canada Limited, Imperial Tobacco Company Limited, and Rothmans, Benson & Hedges Inc.) operating under the Companies’ Creditors Arrangement Act (CCAA).

Each applicant sought an extension of their stay period until September 30, 2024, to continue formulating plans of arrangement.

Imperial also requested authorization to terminate a retirement plan and post security for a vaping product license.

RBH sought a procedural amendment for employee grievances.

The court, finding no opposition and satisfied with the applicants' good faith, diligence, and sufficient resources, granted all requested relief, noting significant progress in ongoing mediation.

This is a motion for approval of a class action settlement and class counsel's fees.

The class action alleged that Great Gulf Homes installed defective pressure-balanced valves in a condominium, leading to unpredictable temperature fluctuations and risk of harm.

The parties settled for $1.0 million.

The court found the settlement to be fair, reasonable, and in the best interests of the class, considering factors such as the likelihood of success, counsel's recommendation, and the absence of objections.

Class counsel's 30% contingency fee was also approved as reasonable, given the results achieved and the complexities of the case.

This motion concerned a proposed class action regarding the installation of non-pressure-balanced valves in a residential condominium built by the defendants.

The plaintiff sought consent certification for settlement purposes, and also moved to add a co-plaintiff.

The court found that all criteria for certification under s. 5(1) of the Class Proceedings Act, 1992 were satisfied and granted the order for certification for settlement purposes.

The plaintiff, Jeff Mailloux, brought a motion under s. 29 of the Class Proceedings Act, 1992, for leave to discontinue a proposed class action against Nissan Canada Inc. with prejudice and without costs.

Nissan consented to the motion.

The class action concerned a products liability claim for pure economic losses related to defective Takata airbag inflators.

The motion for discontinuance was brought due to significant changes in the legal landscape regarding compensation for pure economic loss from negligent supply of faulty goods, which greatly diminished the prospects of a substantial economic recovery for the class members.

The court granted the motion, finding that the action was commenced for a proper purpose, putative class members were not prejudiced, and the proposed notice of discontinuance was satisfactory.

This is a motion to discontinue a proposed class action concerning automobile airbags that had been recalled.

The action, which had not been certified, sought compensation for pure economic loss.

Due to developments in case law, particularly the Supreme Court of Canada's clarification on pure economic loss for defective products, the litigation risk increased, and the prospects for certification and substantial economic recovery diminished.

Class Counsel sought leave to discontinue the action with prejudice and without costs.

The court granted the motion, finding that the action was commenced for a proper purpose, the test for discontinuance was satisfied, and putative class members were not prejudiced, as limitation periods remained suspended.

This endorsement concerns the Companies' Creditors Arrangement Act (CCAA) proceedings for JTI-MacDonald Corp., Imperial Tobacco Canada Limited, Imperial Tobacco Company Limited, and Rothmans, Benson & Hedges Inc. The court granted an unopposed motion to extend the stay period until March 29, 2024.

Recognizing the complexity and the four-and-a-half-year duration of negotiations, the court directed the three court-appointed Monitors, in conjunction with the court-appointed Mediator, to collaborate and develop comprehensive Plans of Compromise or Arrangement.

The objective is to finalize plans that are fair and reasonable to all applicants and creditors, moving from observable activity to meaningful action.

The plaintiffs in a proposed class action sought court approval to discontinue the action without costs and without prejudice to putative class members, except for the named plaintiffs.

The action concerned alleged negligent design of a 'Body Control Module' in certain vehicles.

The discontinuance was sought due to recent Supreme Court of Canada jurisprudence limiting recovery for pure economic losses in product liability cases, which significantly curtailed the prospect of a substantial award for the class.

The defendants consented to the discontinuance.

The court granted the motion, finding that the action was commenced for a proper purpose, and the discontinuance would not prejudice putative class members, as limitation periods remained suspended until discontinuance.

The plaintiffs in a proposed class action sought court approval to discontinue the action without costs and without prejudice to putative class members, except for the named plaintiffs.

The action concerned alleged negligent design of a transmission shift cable in certain vehicles.

The motion for discontinuance was brought due to recent Supreme Court of Canada jurisprudence limiting recovery for pure economic losses in product liability cases, which significantly curtailed the prospect of a substantial award for the putative class.

The defendants consented to the discontinuance.

The court granted the motion, finding that the action was commenced for a proper purpose, the putative class members were not prejudiced, and the proposed notice of discontinuance was adequate.

This is a costs endorsement following an appeal where the appellant succeeded in part.

The appellant sought costs of $213,626.59 for the proceedings below, including prior reserved motions and expert fees.

The respondent argued for a reduction to $91,280, challenging the inclusion of prior motion costs, expert fees, and claims of duplication/excessive time.

The Court of Appeal found the prior motion costs and expert fees were reasonably included.

A modest reduction was justified due to some relief obtained by the respondent at the motion judge level (reduction of post-judgment interest).

The court awarded the appellant $180,000 inclusive of disbursements and taxes for costs of the motion below.

The Court of Appeal for Ontario heard an appeal concerning a motion to change a divorce judgment.

The original judgment included a provision for increased spousal support upon default.

The motion judge had found no material change in circumstances but nevertheless varied the judgment by declaring the default provision an unenforceable penalty and reducing the interest on arrears.

The Court of Appeal held that a judge cannot vary a spousal support order under s. 17 of the Divorce Act without a material change in circumstances, as the common law rule against penalty clauses applies to contracts, not to court orders that have been consented to and incorporated into a judgment.

However, the court affirmed the motion judge's power to vary the post-judgment interest rate under the Courts of Justice Act, as this power is distinct from varying support provisions under the Divorce Act.

The appeal was allowed in part, reinstating the default support provision but upholding the revised interest rate.

Following the successful certification of a class proceeding arising from a residential high-rise fire, the court determined the costs of the certification motion.

The plaintiffs sought over $435,000 in costs from the defendant, while the third parties sought their costs from the plaintiffs.

Applying the Pearson factors, the court awarded the plaintiffs $348,056.04 in costs against the defendant.

The court also found that the plaintiffs had drawn the third parties into the certification motion by amending the common issues, and ordered the plaintiffs to pay $45,200 in costs to the third parties.

The defendants Mercedes-Benz and Mitsubishi brought a motion to dismiss the proposed class action for delay pursuant to s. 29.1 of the Class Proceedings Act, 1992.

The plaintiffs argued that the court had discretion not to dismiss the action and that all defendants must join the motion.

The court held that s. 29.1 is mandatory and does not require all defendants to join.

The action was dismissed against the moving defendants, but the court exercised its jurisdiction under s. 12 to order that the dismissal be set aside if the plaintiffs file a complete certification motion record within thirty days.

The plaintiff brought a motion to certify a class action against FCA Canada Inc. (Chrysler Canada) regarding defective Takata airbags installed in its vehicles.

The plaintiff alleged negligence for pure economic losses associated with the dangerous product.

The court analyzed the certification criteria under s. 5 of the Class Proceedings Act, 1992.

The court found that the cause of action, identifiable class, common issues, and representative plaintiff criteria were met or could be met.

However, the court held that the preferable procedure criterion was not satisfied.

The court reasoned that Chrysler Canada's existing recall program was preferable to a class action, especially given the delay in prosecuting the action and the limited scope of recovery for pure economic loss under current tort law.

The certification motion was dismissed.

At a case management conference in a class proceeding, certain defendants requested a timetable for a motion to dismiss the action for delay under s. 29.1 of the Class Proceedings Act, 1992.

The plaintiffs sought to file material, conduct written interrogatories, or summons witnesses to explore why other defendants took no position on the motion.

The court denied the plaintiffs' request for interrogatories and cross-examinations, finding them unnecessary, irrelevant, and likely to breach privilege.

Exercising its case management powers under s. 12, the court directed the motion to proceed in writing without cross-examinations and set a timetable.