Idan Erez

The respondent brought a motion seeking an order declaring the applicant, as trustee for a bankrupt individual, and/or the bankrupt individual, to be vexatious litigants requiring leave to commence further court actions.

The respondent also sought dismissal of the applicant's application to enforce a foreign judgment as frivolous, vexatious, or without merit.

The court dismissed the respondent's motion, finding no evidence that the applicant was a vexatious litigant or that the application constituted an abuse of process.

The court emphasized that the applicant, as a court-appointed trustee in bankruptcy, occupied a distinct legal position from the bankrupt individual and that the respondent's arguments regarding the merits of the underlying application were better addressed at the hearing of the application itself.

The plaintiff, Qualicare Canada Inc., sought default judgment against the defendants for breaches of a franchise agreement and personal guarantees.

The defendants were noted in default.

The court applied the test for default judgment, finding that the plaintiff established liability based on deemed admissions and affidavit evidence.

The plaintiff was awarded $372,487.24 in damages, including lost royalties, branding fees, and legal fees, plus pre-judgment interest at a contractual rate of 36%, and fixed costs of $11,483.29.

The defendant, UAP Inc., brought a motion seeking security for costs against the corporate plaintiff, Mountainwide Auto Parts Ltd., under Rule 56.01(1)(d).

The court found that UAP's unexplained delay of more than five years in bringing the motion was fatal.

The court also noted that UAP did not seek security against the individual plaintiffs and possessed significant financial resources, concluding the motion was tactical rather than a genuine effort to secure costs.

The motion was dismissed.

The moving defendants brought a motion to strike various claims from the plaintiffs' Statement of Claim, including claims for statutory rescission, misrepresentation, common law rescission, and all claims against the individual defendant director personally.

The court struck the claim for statutory rescission without leave to amend as it was brought beyond the two-year limitation period under the Arthur Wishart Act.

The court struck the claims against the individual director, finding no separate identity of interest from the corporate franchisor, but granted leave to amend.

The claims for misrepresentation and common law/equitable rescission were also struck with leave to amend due to a lack of necessary particulars.

The respondents, acting as trustees for the deceased respondent's estate, brought a motion for an order to continue the application and to convert it into an action.

The underlying dispute involved a verbal agreement for a share transfer, with the responding party alleging fraudulent misrepresentation.

The court granted the motion to convert the application into an action, finding that material facts were in dispute, credibility needed to be assessed, and expert valuation of shares might be required.

A non-party to an application sought to transfer the proceeding and a related garnishment hearing from Kitchener to Toronto under Rule 13.1.02.

The court dismissed the motion, finding that the moving party was not a party to the application, the application had already been finally disposed of, and a garnishment hearing is a motion rather than a 'proceeding' subject to transfer under Rule 13.1.02.

The applicants, a franchisor, brought an application to compel a corporate franchisee and its individual principal and his wife to submit to arbitration, and to appoint an arbitrator.

The court held that it had jurisdiction to determine whether the individuals were bound by the arbitration agreement, as the issue required only superficial consideration of the documentary evidence.

The court found that the individuals were not parties to the franchise agreement and therefore could not be compelled to arbitrate.

The court appointed the applicants' proposed arbitrator to arbitrate the dispute between the franchisor and the corporate franchisee.

This decision addresses five separate motions brought by the plaintiffs to reinstate administratively dismissed actions or extend time for filing/serving Statements of Claim, after 14 years of litigation with minimal progress.

The court dismissed all motions, finding that the plaintiffs had abused the process by repeatedly attempting to re-litigate issues already decided, misusing court procedures for investigative purposes rather than advancing claims, consistently ignoring court orders and timetables, and failing to properly manage their claims and expert evidence.

The court relied on its inherent jurisdiction to manage its process, concluding that the delay was inordinate and inexplicable, and that "enough is enough."

The defendants were successful on a motion for the production of the plaintiffs' medical records in a proposed class action.

The defendants sought partial indemnity costs of $20,300.66.

The plaintiffs argued that no costs should be awarded, or alternatively, costs should be fixed at $9,000.

The court rejected the plaintiffs' arguments against a costs award but reduced the quantum sought by the defendants, finding it beyond the reasonable expectations of the unsuccessful party.

Costs were fixed at $17,500 payable to the defendants in any event of the cause.

Following a motion regarding the pre-certification production of medical records where the responding party (plaintiffs) was largely successful, the parties submitted costs submissions.

The plaintiffs sought $13,368 on a partial indemnity basis, while the defendants argued for costs in the cause or a maximum of $3,500.

The court found the plaintiffs were entitled to partial indemnity costs but reduced the claimed amount to comply with the Rules Committee's Grid for hourly rates and to account for excessive disbursement claims.

Recognizing the plaintiffs were largely but not entirely successful, the court fixed costs at $6,800 all-inclusive.

In a proposed pharmaceutical class proceeding alleging that anti-psychotic medications caused gynecomastia and that the defendants failed to warn of that risk, the moving defendants sought pre-certification production of broad medical and pharmacy records for five affiants.

The court held that pre-certification medical production must be limited to records bearing on certification issues and rejected any request that effectively sought entire medical files.

It confirmed production of records relating to prescriptions, ingestion, development of gynecomastia, related risk or warning discussions, and related surgeries.

The court refused on the present record to compel further diagnosis and treatment records aimed at individual causation or vague assertions about commonality and preferability, but left the issue open for renewal on cross-examination.

A law firm sought to replace existing carriage counsel in a proposed pharmaceutical class action on the basis of unreasonable delay in bringing a certification motion.

The court held that under s. 12 of the Class Proceedings Act, 1992 it has supervisory jurisdiction to entertain a carriage transfer motion.

The court established a four-part test requiring proof that the delay is clearly unreasonable, that it causes actual prejudice to class members, that the explanation for the delay is inadequate, and that compelling certification within a fixed timeline would be unworkable or not in the class’s best interests.

Applying this test, the moving party failed to demonstrate unreasonable delay or prejudice, and the explanation for the delay was credible.

The motion to replace carriage counsel was therefore dismissed.

The representative plaintiff in a certified class proceeding sought court approval of a settlement and approval of class counsel fees under the Class Proceedings Act, 1992 following a cyber‑attack on the defendants’ PlayStation Network and related online services that allegedly compromised personal information and interrupted access.

The settlement provided cash payments for unused account balances, online service benefits, and reimbursement of up to $2,500 for proven identity theft losses.

Notice of certification and settlement was distributed to millions of account holders and resulted in minimal opt-outs and no objections.

The court considered the applicable factors for settlement approval in class proceedings and concluded the agreement was fair, reasonable, and in the best interests of the class.

The requested class counsel fee of $265,000 was also approved as reasonable in light of the risk and work undertaken.

The defendant sought leave to appeal a decision certifying a multi-jurisdictional class proceeding regarding the prescription of CHAMPIX, a smoking cessation medication, and the subsequent $300,000 costs award.

The Divisional Court dismissed the motion, finding no conflicting decisions and no good reason to doubt the correctness of the certification decision.

The court held that the motions judge applied well-established legal principles and made no palpable and overriding error of fact or law.

The costs award was also upheld as there was no error in principle.

Following a certification motion in a proposed class proceeding concerning pharmaceutical product liability, the plaintiff sought partial indemnity costs after obtaining certification against one defendant but not the other.

The court considered Rule 57.01 of the Rules of Civil Procedure and the discretionary principles governing costs in class proceedings.

While the defendants argued the plaintiff’s claim should be substantially reduced due to partial success and limited certification of common issues, the court rejected most of these arguments.

However, because certification was not granted against one defendant, the court reduced the plaintiff’s claimed costs by approximately 20 percent.

Costs of $300,000 all-inclusive were awarded payable forthwith.

The plaintiff sought certification of a proposed national class action alleging that a prescription smoking‑cessation drug caused neuropsychiatric adverse events and that the manufacturer breached its duty to warn consumers and physicians.

The court considered the certification criteria under the Class Proceedings Act, 1992, including whether there was some basis in fact for the proposed common issues and whether a class proceeding was the preferable procedure.

The court held that there was some basis in fact for a duty to warn claim against the Canadian manufacturer based on expert and anecdotal evidence of adverse psychiatric events.

The proposed class definition and common issues were amended to focus on specific neuropsychiatric symptoms and the adequacy of product monograph warnings between 2007 and 2010.

The proceeding was certified against the Canadian manufacturer but not against the U.S. parent company, whose involvement lacked a factual basis.

In a proposed pharmaceutical products liability class action concerning alleged neuropsychiatric side effects of the smoking cessation drug Champix, the defendants brought a refusals motion seeking further production of medical and related records from proposed representative plaintiffs during cross‑examinations conducted for a certification motion.

The defendants argued the additional records were necessary to challenge whether there was some basis in fact for the proposed common issues and certification criteria.

The court accepted that the requested information had some relevance but held that the scope of cross‑examination on a certification motion is narrower than discovery and must comply with proportionality principles.

Given that the plaintiffs had already produced medical records and answered extensive questions, compelling further production would improperly extend the inquiry into the merits of the case and impose a disproportionate burden.

The motion to compel further answers and productions was therefore dismissed.

The insurer requested costs for a pre-hearing discussion, arguing the applicant failed to provide necessary information and documentation to engage in meaningful settlement discussions.

The arbitrator found that the applicant's failure to explain her position on the quantum of her income replacement benefit thwarted reasonable attempts to resolve the issues.

The arbitrator awarded the insurer $200.00 in expenses payable forthwith, noting that the applicant's conduct obstructed the pre-hearing proceeding.

The applicant was injured in a motor vehicle accident and sought caregiver and housekeeping benefits under the Statutory Accident Benefits Schedule.

The insurer paid benefits initially but terminated them.

The arbitrator dismissed the application, finding the applicant's evidence regarding his pre-accident responsibilities and post-accident needs to be inconsistent, contradictory, and lacking credibility.

The applicant failed to establish on a balance of probabilities that he suffered a substantial inability to perform his caregiving and housekeeping duties.

The applicant applied for statutory accident benefits following a motor vehicle accident.

After failing to attend three scheduled pre-hearing conferences and losing contact with his own legal representative, the insurer requested that the application be dismissed as frivolous and vexatious.

The arbitrator found that the applicant was no longer interested in pursuing the matter and dismissed the application.

The insurer was awarded its expenses for the arbitration, fixed at $500.00.