Henry Michael Gilmour Rosenberg

The applicants sought court review of legal fees claimed by six lawyers (the Legal Team) who represented the Robinson Huron Treaty Litigation Fund in litigation to enforce the Crown's obligations under the Robinson Huron Treaty of 1850.

The Legal Team claimed $510 million as a 5% contingent success fee on a $10 billion settlement.

The court found the Partial Contingency Fee Agreement was neither fair when signed nor reasonable at the time of hearing.

The court determined the Legal Team acted in conflict of interest when advising clients on their own fees and failed to ensure clients received independent legal advice.

The court assessed the fair and reasonable value of the Legal Team's services at approximately $40 million (double their billable fees of $23 million plus $6.5 million in disbursements already paid), rejecting the $510 million claim as champertous and disproportionate to the settlement amount.

The applicants brought preliminary objections to the admissibility of two pieces of evidence in an application proceeding concerning contingent fee recognition.

The respondent law firm and lawyers sought recognition of contingent fees claimed under a Partial Contingency Agreement dated June 17, 2011.

The court ruled on the admissibility of an expert report from a former Federal Court judge and a third affidavit from one of the respondent lawyers.

The court found that expert evidence on the complexity of the case, risks involved, and results achieved was not necessary, as these matters were within the experience and knowledge of the court and were adequately addressed through extensive evidence and comprehensive legal submissions.

The court also found the expert lacked the requisite qualifications to opine on the specific topics.

The court reserved judgment on the admissibility of the third affidavit pending further consideration of its relevance.

The decision addresses a motion by David Peter McMath and Darcy Loyie to stay their motion for leave to appeal a summary judgment decision dismissing their individual claims for additional damages arising from administrative segregation, pending the outcome of other test cases.

The court applies the RJR-MacDonald test for a stay and finds that while there is a serious question to be tried, the applicants failed to establish irreparable harm or that the balance of convenience favours a stay.

The motion is dismissed.

This decision approves a class action settlement and distribution protocol regarding predatory and unconscionable equipment lease agreements, including the registration of Notices of Security Interests (NOSIs) on consumers’ homes.

The court finds the settlement fair, reasonable, and in the best interests of the class, considering the risks of continued litigation, the insolvency of several defendants, and the benefits achieved, including monetary compensation, lease cancellations, and legislative reform.

The court also approves class counsel fees, disbursements, a Class Proceedings Fund levy, and an honorarium for the lead plaintiff.

This decision concerns a certified class proceeding that is progressing towards a settlement approval hearing.

The plaintiffs brought an unopposed motion to appoint Verita Global as the administrator for the implementation of the proposed settlement.

Class counsel, after a request for proposals process, recommended Verita Global based on its extensive experience, capacity to serve vulnerable individuals, communication abilities, reporting, budget, and cybersecurity certification.

The court found class counsel's choice appropriate and approved the appointment of Verita Global as the settlement administrator.

The court addressed two related putative class proceedings concerning predatory equipment lease agreements.

The plaintiffs sought to amend pleadings, add parties, consolidate the actions, certify the consolidated proceeding for settlement, and approve the notice plan.

The court granted all motions, finding that the criteria for class certification under the Class Proceedings Act, 1992, were met in the context of a proposed settlement, and that a class proceeding was the preferable procedure, especially given ongoing CCAA proceedings.

The notice plan for the settlement approval hearing was also approved.

In a consolidated class action, Class Counsel sought partial indemnity costs for their work on a Distribution and Individual Issues Protocol (DIIP).

The court dismissed the motion, finding that the costs for DIIP development had been prepaid as part of prior counsel fee approvals.

The decision emphasized that DIIP creation is a necessary and collaborative aspect of class proceedings, not an event warranting additional 'success' costs, and clarified that prior judicial statements about future payments referred to costs already accounted for.

This is Part 10 of a series of joint decisions in multi-jurisdictional class actions (Ontario and Quebec).

Class Counsel sought further revisions to the Distribution and Individual Issues Protocol (DIIP), specifically to increase the $6,000 costs cap for Track 2 claims to $12,000, and to add a clause about Rule 49 of the Rules of Civil Procedure applying to Track 2/3 claims, and to apply ordinary costs rules for contested Track 2 motions.

The court approved the latter two unopposed requests but denied the request to increase the costs cap, emphasizing proportionality and the need to simplify procedures rather than increase costs.

This decision, Part 9 of a series in a multi-jurisdictional class action, addresses bitterly contested motions by both the Attorney General of Canada and Class Counsel to revise the Distribution and Individual Issues Protocol (DIIP).

The dispute centered on the scope of reply position statements for Track 2 claims.

Canada sought to limit replies strictly to mitigating factors and causation rebuttal, while Class Counsel argued for broader replies to new issues raised by Canada.

The court denied both parties' specific requests, instead directing a revision to allow Canada a right of sur-reply if a claimant files a reply, and imposing an increased payment to the Manager/Expert in such instances.

The ruling aims to ensure fair, efficient, and proportionate litigation while discouraging procedural abuses by either party.

The Attorney General of Canada sought an order to compel the class action administrator (Epiq) to disclose contact information of "Unlawfully at Large" (UAL) claimants to law enforcement.

The class members, through their counsel, opposed this, arguing it was an improper use of class action administration powers and a violation of Charter rights, suggesting that the Criminal Code's production order process was the appropriate mechanism.

The court, in a joint decision from the Ontario Superior Court of Justice and the Superior Court of Québec, denied the Attorney General's broad request.

Instead, it granted a modified order, allowing disclosure only if the Attorney General first obtains a production order under s. 487.014 of the Criminal Code, thereby upholding the proper legal process for obtaining such information while acknowledging the Attorney General's good faith in bringing the motion.

The Ontario Superior Court of Justice heard unopposed applications by the Joint Committee in the national Hepatitis C class actions (Parsons and Kreppner) to allocate approximately $160 million in "Excess Capital" from the settlement fund.

The Joint Committee proposed four recommendations to increase various benefits for approved class members and family members, including lump sum payments, loss of guidance/care/companionship awards, lost pension benefits, and loss of services rates.

The court granted the application, finding the proposed allocations reasonable, non-discriminatory, and consistent with the settlement agreement's purpose of bridging compensatory gaps.

This is Part 7 of a joint decision by the Ontario Superior Court of Justice and the Superior Court of Québec concerning multi-jurisdictional class actions (Brazeau, Reddock, Gallone).

The decision addresses a consensual motion by the parties to streamline the payment process for "Track 2, Box 1 only Claims" under the previously approved Distribution and Individual Issues Protocol.

The courts approved an order confirming that payments to class members, class counsel, and the Class Proceedings Fund will be made periodically (every 75 days after a cut-off date) without requiring further motions for confirmation, thereby enhancing judicial economy and access to justice.

This is Part 6 of a joint decision concerning the ongoing administration of multi-jurisdictional class actions (Ontario and Quebec) against the Attorney General of Canada regarding administrative segregation.

The parties brought a joint, consensual motion to amend sections 10.1 and 11.2 of the Distribution and Individual Issues Protocol.

The amendments aim to resolve issues arising from "BRG Crossover" claimants (those with placements in both Ontario and Quebec) and misallocated claimants, by allowing claimants to elect the court (Ontario or Quebec) that will review their claims, provided there is a connection to that jurisdiction.

The court approved the amendments, finding them to be in the best interests of class members and conducive to cost-effective and expeditious claim determination.

The appellant, David Wong, representing a class of shareholders, appealed the summary dismissal of a secondary market misrepresentation class action against Pretium Resources Inc. and its former CEO.

The claim alleged that Pretium failed to publicly disclose concerns about its Brucejack mining project's resource estimate and feasibility study, which had been conveyed by Strathcona Mineral Services Ltd. The Court of Appeal upheld the motion judge's decision, finding that Strathcona's concerns were not material facts requiring disclosure because they were unsolicited, inexpert, premature, and unreliable opinions, not undisputed facts.

The court also found no error in the motion judge's alternative finding that the respondents had conducted a reasonable investigation.

The appeal was dismissed.

Procor Limited, a defendant, brought a motion for partial summary judgment seeking to dismiss the plaintiff Erectoweld Company Limited's claim against it regarding perchloroethylene (PCE) contamination on the plaintiff's land.

The plaintiff theorized the PCE originated from a massive spill on Procor's property that migrated to its land.

The court dismissed the motion, applying the "litigation as a whole" principle and the "bright line test" for partial summary judgment.

The court found that granting partial summary judgment would not resolve the core issue of the PCE's origin, would risk duplication of evidence, and could lead to inconsistent verdicts given the remaining claims against other defendants and their cross-claims against Procor.

This is Part 2 of a joint decision by the Ontario Superior Court of Justice and the Superior Court of Québec concerning the Brazeau, Reddock, and Gallone class actions.

The courts finalized and approved the Distribution and Individual Issues Protocol, which governs the distribution of the aggregate damages award and the procedures for determining individual issues.

The decision addresses submissions from the parties on a provisional draft protocol and resolves a late-arriving dispute between Class Counsel and the Law Foundation of Ontario regarding funding for the individual issues phase by deleting contentious provisions.

This appeal concerned two class actions (Brazeau and Reddock) brought by federal inmates challenging the legality of administrative segregation practices.

The Court of Appeal for Ontario upheld the motion judge's finding of liability against Canada for breaches of ss. 7 and 12 of the Canadian Charter of Rights and Freedoms, concluding that the prolonged administrative segregation practices constituted cruel and unusual punishment and lacked independent review.

The court found that Canada's failure to alter its policies despite long-standing criticism met the "clear disregard for Charter rights" threshold for awarding damages.

However, the court set aside the motion judge's order in Brazeau to use aggregate damages for structural changes to penal institutions, deeming it an unjustifiable assumption of judicial control and a misinterpretation of the Class Proceedings Act.

The court also overturned the finding of systemic negligence in Reddock, concluding that Charter damages were the more appropriate remedy.

The appeals were allowed in part, with the Brazeau damages remitted for re-determination and the Reddock negligence finding reversed.

The Attorney General of Canada sought a second extension of the suspension of a declaration of invalidity regarding sections 31-37 of the Corrections and Conditional Release Act.

The application judge had found these provisions infringed section 7 of the Canadian Charter of Rights and Freedoms due to the absence of meaningful independent review within five working days of administrative segregation placement.

The court granted a conditional extension to June 17, 2019, requiring implementation of an independent fifth-day review of administrative segregation decisions, rather than the unconditional extension to November 30, 2019 that the Crown sought.

The Canadian Civil Liberties Association challenged the constitutionality of sections 31-37 of the Corrections and Conditional Release Act, which authorize administrative segregation (solitary confinement) in federal penitentiaries.

The applicant sought declarations that these provisions violate sections 7, 11(h), and 12 of the Canadian Charter of Rights and Freedoms.

The Court of Appeal found that prolonged administrative segregation (more than 15 consecutive days) violates section 12 of the Charter as cruel and unusual treatment and cannot be justified under section 1.

The court rejected arguments regarding inmates aged 18-21 and those with mental illness due to insufficient evidence, and dismissed the section 11(h) claim.

The court declared sections 31-37 of no force and effect to the extent they authorize prolonged administrative segregation.

The plaintiffs brought a motion seeking an interim stay and an adjournment of a scheduled certification motion in Ontario.

The purpose was to pursue certification of a national class in a parallel class proceeding in British Columbia, citing the death of lead counsel in BC and anticipated legislative changes allowing opt-out national classes there.

The court denied the motion, finding the request was a late-stage tactical shift amounting to forum shopping, inefficient, and unfair to the defendant and class members, especially given the Ontario action's advanced stage and prior agreements on scheduling.