James Sayce

The respondent, representing a class of seriously mentally ill inmates and inmates held in prolonged administrative segregation, brought a class action against Ontario for Charter breaches and systemic negligence.

The motion judge granted summary judgment, finding that Ontario's use of administrative segregation violated sections 7 and 12 of the Charter, and awarded $30 million in aggregate Charter damages.

Ontario appealed, arguing that the Charter breaches were not established for all seriously mentally ill inmates, that Charter damages were inappropriate due to good governance concerns, and that the negligence claim was barred by statute.

The Court of Appeal dismissed the appeal, upholding the findings that administrative segregation of seriously mentally ill inmates constitutes cruel and unusual treatment, that Ontario's clear disregard for inmates' rights justified Charter damages, and that the operational implementation of segregation policies grounded a valid systemic negligence claim.

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.

The plaintiff sought approval of a $4.95 million settlement, class counsel fees, and a representative plaintiff honorarium in a class action alleging the defendants misrepresented vehicle fuel economy ratings.

The court initially rejected the settlement approval based on a take-up analysis, but approved it after class counsel provided a revised analysis showing the settlement amount was fair relative to the maximum recoverable at trial.

The court also approved a modified honorarium of $3,000 for the representative plaintiff and class counsel's 33 percent contingency fee.

The plaintiffs sought approval of a US$7 million settlement with the Bosch defendants regarding the installation of 'defeat devices' in certain diesel vehicles, as well as approval of class counsel's legal fees.

The settlement targeted 'leftover damages' for class members who were not made whole under previous settlements with the vehicle manufacturers.

The court found the settlement to be fair, reasonable, and in the best interests of the class, noting the pragmatic distribution protocol and the low number of objections.

The court also approved class counsel's 25 percent contingency fee, finding it presumptively valid and noting that the distribution mechanism would ensure high take-up by eligible claimants.

The plaintiff, Conrey Francis, was successful on a summary judgment motion in a certified class action against Her Majesty the Queen in Right of Ontario.

This decision concerns the costs endorsement following that motion.

Francis sought a partial indemnity award of $782,629.10 (inclusive of taxes) for fees and disbursements.

The Crown argued for a reduction, proposing $617,394.92 (exclusive of taxes).

The court agreed to a deduction of $28,493.78 for disbursements and some, but not all, of the Crown's arguments for fee reduction.

Applying the principle of reasonableness and the factors under Rule 57.01, the court awarded Francis $720,000, all inclusive.

The court redetermined Charter damages in a class action concerning administrative segregation in federal penitentiaries, following an appeal that set aside the initial damages award.

The Court of Appeal affirmed liability but remitted the damages issue for redetermination on proper principles.

The court awarded $20 million for vindication, deterrence, compensation, and pre-judgment interest, to be distributed directly to class members.

For the purposes of individual issues trials, the per capita award is to be deemed compensatory damages.

This decision rejected Canada's submission for a $2.4 million award and the plaintiffs' alternative submission for $20 million solely for vindication and deterrence.

The representative plaintiff brought a class action on behalf of inmates in Ontario correctional institutions who were placed in administrative segregation.

The plaintiff alleged that Ontario's use of administrative segregation constituted systemic negligence and violated sections 7 and 12 of the Charter.

On a motion for summary judgment, the court found that administrative segregation as practiced in Ontario was equivalent to solitary confinement and caused severe psychological harm, particularly to inmates with serious mental illness.

The court held that Ontario breached the inmates' Charter rights and was liable for systemic negligence at the operational level.

The court awarded $30 million in aggregate damages for compensation, vindication, and deterrence.

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.

Following a successful summary judgment motion in a class action regarding administrative segregation in federal penitentiaries, which resulted in a $20 million aggregate damages award, Class Counsel sought approval of their contingency fee agreement.

The court approved the requested counsel fee of approximately $7.9 million, representing 33.3% of the recovery, noting the extraordinary risk undertaken and the significant result achieved.

The court also approved a $15,000 honorarium for the representative plaintiff and the statutory levy payable to the Law Foundation of Ontario.

Following a successful summary judgment motion in a class action regarding administrative segregation in federal penitentiaries, the representative plaintiff sought partial indemnity costs of $1,235,590.33.

The defendant argued the costs were excessive and duplicative of work done in a concurrent class action involving mentally ill inmates.

The court rejected the defendant's argument that the work was largely duplicative, noting the cases were distinct and the defendant had tenaciously defended both.

The court made a modest reduction of $113,000 for some overlapping settlement discussions and awarded the plaintiff $1,122,590.33 in costs.

In a certified class action regarding Ontario's use of administrative segregation, the plaintiff sought to summons an independent expert appointed by Ontario to testify on an upcoming summary judgment motion.

Ontario opposed the summons, arguing it violated procedural rules regarding the timing of examinations.

The court declined to order the examination at this juncture, finding that it was more proportionate to simply order that the expert's Final Report be delivered to class counsel for use on the summary judgment motion once it is provided to Ontario.

The plaintiff brought a summary judgment motion in a class action against the Federal Government regarding the use of prolonged administrative segregation in federal penitentiaries.

The court found that the Federal Government breached the class members' rights under sections 7 and 12 of the Charter by placing them in administrative segregation for more than 15 days, and that these breaches were not saved by section 1.

The court also found the Federal Government liable for systemic negligence.

The court awarded $20 million in aggregate Charter damages for vindication, deterrence, and compensation, to be distributed equally among the class members, while dismissing the claim for class-wide punitive damages.

Class counsel brought a motion for approval of their legal fees and disbursements following a successful summary judgment motion that awarded $20 million in aggregate damages for Charter breaches related to the administrative segregation of mentally ill inmates.

The court approved the requested 33.3% contingency fee, totaling $6.66 million plus HST, finding it reasonable given the significant risks undertaken and the substantial success achieved.

The court also approved a $15,000 honorarium for each of the two representative plaintiffs in recognition of their exceptional contributions to the litigation.

The plaintiffs, Christopher Brazeau and David Kift, sought an award of costs totaling $1,164,059.22 in partial indemnity costs and disbursements after a partially successful summary judgment motion in a certified class proceeding against the Attorney General of Canada.

The Federal Government argued for each party to bear their own costs or a significant reduction, citing divided success, reduction in class period, dismissal of certain claims, and abandonment of health care claims during the motion.

The court awarded the plaintiffs $800,000, all-inclusive, comprising $600,000 for legal expenses and $200,000 for disbursements, finding them to be the successful party despite divided success, but adjusting the award due to the abandonment of health care claims and insufficient documentation for disbursements.

The Representative Plaintiffs sought prejudgment and postjudgment interest on a $20 million Charter damages award previously granted for deterrence and vindication in a class action concerning administrative segregation of mentally ill inmates.

The Federal Government opposed the award of interest.

The court determined that Charter damages awarded purely for deterrence and vindication are functionally similar to punitive damages, on which interest is generally precluded by the Crown Liability and Proceedings Act.

Alternatively, the court exercised its discretion to disallow interest, emphasizing that the $20 million award was non-compensatory, intended to remedy societal harm and ensure future Charter compliance, rather than to compensate individual class members for pecuniary loss.

Consequently, no prejudgment or postjudgment interest was awarded.

In a certified class action, the Attorney General of Canada moved for an order adjourning a summary judgment motion sine die, pending the outcome of appeals in two related cases concerning administrative segregation.

Canada argued that an adjournment would prevent duplication of resources, inconsistencies in law, and allow for streamlining of issues, consistent with the Courts of Justice Act.

The plaintiff opposed the adjournment, citing substantial prejudice due to delay after two years of litigation.

The court refused the adjournment, finding that proceeding with the summary judgment motion was more efficient and fair, as the evidentiary record was complete, and the case should be decided based on existing law.

The court emphasized that an adjournment would waste prior work and add to costs, and that justice delayed is justice denied.

The appellants appealed an order dismissing a motion for production under Rule 30.10(1) of the Rules of Civil Procedure.

The motion judge dismissed the motion without prejudice, allowing it to be brought back later.

Volkswagen, a non-party respondent, moved to quash the appeal, arguing the order was interlocutory and required leave to appeal to the Divisional Court.

The appellants contended the order was final and the appeal lay to the Court of Appeal.

The court held that the order was interlocutory because it did not finally dispose of any issue between the parties and the non-parties, and therefore the appeal was quashed.

The representative plaintiffs brought a summary judgment motion in a class action on behalf of seriously mentally ill inmates placed in administrative segregation in federal penitentiaries.

The court found that administrative segregation is a form of solitary confinement that causes severe psychological harm to mentally ill inmates.

The court held that the Federal Government breached section 7 of the Charter due to an inadequate review process, and breached sections 7 and 12 by subjecting mentally ill inmates to prolonged administrative segregation (over 30 days involuntary or 60 days voluntary).

The court awarded $20 million in aggregate Charter damages for vindication and deterrence, to be used for structural changes or additional mental health resources.

The plaintiff in a certified class action concerning Mercedes-Benz BlueTEC diesel vehicles moved for further directions regarding the schedule for a partial summary judgment motion on liability issues.

The court had previously set a one-year timeline for this motion and directed immediate discovery.

Despite the defendants' resistance, alleging an "artificially accelerated" discovery schedule without providing supporting evidence, the court reaffirmed its earlier directions.

The judge emphasized the importance of expeditious determination in class actions and the case management judge's role in setting timelines, confirming the summary judgment motion for December 2019 and setting discovery completion by mid-November 2019. interesting_citations_summary: > This decision underscores the broad authority of a class action case management judge to manage proceedings, including setting firm schedules for summary judgment motions and discovery, as supported by *ALS Society v Windsor*.

It highlights that such motions on liability issues are often the pivotal "merits" hearing in complex product liability class actions.

The court also clarifies that parties challenging judicial directions on timelines must provide evidentiary support for their assertions, rather than mere resistance. final_judgement: > The plaintiff's motion for summary judgment on liability issues was confirmed to proceed the week of December 16, 2019.

Counsel were directed to continue "meet and confer" discussions to ensure all relevant discovery is completed by mid-November 2019.

The defendants could re-attend for further directions if insurmountable difficulties arose.

Costs submissions were invited if parties could not agree. winning_degree_applicant: 1 winning_degree_respondent: 5 judge_bias_applicant: 3 judge_bias_respondent: 3 year: 2019 decision_number: 1591 file_number: "CV-16-550271-CP" source: "https://www.canlii.org/en/on/onsc/doc/2019/2019onsc1591/2019onsc1591.html" cited_cases: legislation: - title: "Class Proceedings Act, 1992, S.O. 1992, c. 6, s. 12" url: "https://www.ontario.ca/laws/statute/92c06#s12" case_law: - title: "Kalra v. Mercedes Benz, 2017 ONSC 3795" url: "https://www.canlii.org/en/on/onsc/doc/2017/2017onsc3795/2017onsc3795.html" - title: "Trillium v. General Motors of Canada et al, 2012 ONSC 5960" url: "https://www.canlii.org/en/on/onsc/doc/2012/2012onsc5960/2012onsc5960.html" - title: "Fehr v. Sun Life Assurance Co. of Canada, 2014 ONSC 2183" url: "https://www.canlii.org/en/on/onsc/doc/2014/2014onsc2183/2014onsc2183.html" - title: "ALS Society v Windsor, 2015 ONCA 572" url: "https://www.canlii.org/en/on/onca/doc/2015/2015onca572/2015onca572.html" keywords: - Class action - Motion for directions - Summary judgment - Discovery schedule - Case management - Product liability - Mercedes-Benz - BlueTEC diesel - Emission control areas_of_law: - Civil Procedure - Class Actions --- # Court File and Parties **COURT FILE NO.:** CV-16-550271-CP **DATE:** 20190315 **SUPERIOR COURT OF JUSTICE – ONTARIO** **RE:** YOGESH KALRA, Plaintiff / Moving Party **AND:** MERCEDES BENZ CANADA INC., DAIMLER AG, MERCEDES BENZ USA LLC and MERCEDES BENZ FINANCIAL SERVICES CANADA CORPORATION, Defendants / Responding Parties Proceeding under the Class Proceedings Act, 1992 **BEFORE:** Justice Edward P. Belobaba **COUNSEL:** Peter Griffin, Brian Kolenda, Kirk Baert and James Sayce for the Plaintiff Steven Rosenhek, Vera Toppings and Kimberly Potter for the Defendants **HEARD:** In writing ## Motion for Directions [1] The plaintiff moves for further directions in this class action.

The action was certified as a class proceeding in June 2017.

See [Kalra v. Mercedes Benz, 2017 ONSC 3795](https://www.canlii.org/en/on/onsc/doc/2017/2017onsc3795/2017onsc3795.html). [2] The focus of the class action is the Mercedes-Benz line of BlueTEC diesel automobiles.

The allegation is that the BlueTEC vehicles contain a defect or a “defeat device” that turns off the emission control system when the ambient air temperature drops below 10 degrees Celsius (50 degrees Fahrenheit).

If this is true, this means that the defendants’ BlueTEC vehicles are emitting high (and illegal) levels of nitrogen oxide pollution for the majority of time that they are being driven on Canadian roads.

See [Kalra v. Mercedes Benz, 2017 ONSC 3795, at para. 2](https://www.canlii.org/en/on/onsc/doc/2017/2017onsc3795/2017onsc3795.html#par2).

The defendants deny any such defeat device and look forward to the adjudication of the certified common issues. [3] In February 2018, the defendants advised that they would be bringing a motion for partial summary judgment dismissing the claim as against three of the four defendants (i.e. the off-shore and financial services defendants) and dismissing three of the 14 certified common issues.

However, no further material was delivered in this regard. [4] In December 2018 the plaintiff delivered a draft partial summary judgment motion for the adjudication of the 10 of the 14 certified common issues that deal with liability. [5] At a case conference in December 2018, having resumed my role as case management judge, I directed that the plaintiff’s summary judgment motion be heard in one year’s time, specifically the week of December 16, 2019.

I also directed that the discovery process should commence immediately and if there were any disagreements in the ongoing “meet and confer” discussions about the timing or content of the discovery plan, counsel could re-attend before me. [6] At a case conference in January, 2019 I reminded counsel by way of a further direction that “the requisite discoveries needed to be completed in sufficient time so as not to disturb the December 16, 2019 motion date.” [7] I made these directions to ensure the “fair and expeditious determination” of the class action before me.

This is in accordance with [Section 12 of the Class Proceedings Act, 1992, S.O. 1992, c. 6](https://www.ontario.ca/laws/statute/92c06#s12).

In my experience as a class action judge, the real “merits” hearing in a document-heavy, product liability case such as this, is the partial summary judgment motion for the adjudication of the liability issues.

The liability issues are at the heart of the class action.

If the plaintiff fails on liability that ends the matter; if the plaintiff prevails on liability and the action is not settled, the aggregate or individual damages issues can then be addressed under ss. 24 or 25 of the CPA.

I have found that the liability issues can almost always be adjudicated summarily. [8] Given that it is the defendant in these document-heavy cases that typically holds a disproportionate amount of the evidence, I directed that some measure of discovery begin immediately.

The directed discovery must obviously be limited to productions and questions that are relevant to the issues on the summary judgment motion, that is, to the ten liability issues.

See [Trillium v. General Motors of Canada et al, 2012 ONSC 5960, at paras. 15-16](https://www.canlii.org/en/on/onsc/doc/2012/2012onsc5960/2012onsc5960.html); [Fehr v. Sun Life Assurance Co. of Canada, 2014 ONSC 2183, at para. 54](https://www.canlii.org/en/on/onsc/doc/2014/2014onsc2183/2014onsc2183.html). [9] The direction that the summary judgment motion be heard in December, 2019 reflected my experience that this was generally more than enough time for the completion of the discovery task.

It was also based on the fact that that the defendants did not suggest otherwise or offer any evidence to the contrary. [10] The Court of Appeal made clear in [ALS Society v Windsor, 2015 ONCA 572](https://www.canlii.org/en/on/onca/doc/2015/2015onca572/2015onca572.html) that the directions made thus far are the kinds of directions that fall squarely within the job-description of the class action case management judge: The case management judge is entitled to give directions as to when certain steps should be accomplished and as to what motions may be brought, and when.

The case management judge may prohibit motions from being brought before certain steps have been accomplished and may make orders as to the sequencing of motions.

The case management judge is also entitled to determine the order in which some issues are addressed.

He or she is entitled, but not required, to determine whether some issues are amenable to summary judgment and to schedule the proceedings accordingly.

See [ALS Society v Windsor, 2015 ONCA 572, at para. 71](https://www.canlii.org/en/on/onca/doc/2015/2015onca572/2015onca572.html#par71). [11] The defendants, however, continue to offer a level of resistance that, frankly, is difficult to understand.

They say that the one-year time post for the plaintiff’s summary judgment motion unjustifiably imposes “an artificially accelerated or abbreviated discovery schedule.” They say this even though they have provided no evidence in support of this assertion.

Absent such evidence (which may still be tendered by the defendants provided this is done on a timely basis) I can only re-affirm my earlier Direction, albeit revised as follows: ## Direction (i) The plaintiff’s motion for summary judgment on the liability issues shall proceed as scheduled the week of December 16, 2019; (ii) Counsel shall continue their “meet and confer” discussions about the delivery schedule in the discovery plan in good faith and in an effort to ensure that all relevant discovery is completed by the middle of November, 2019 so that the scheduled hearing date of December 16, 2019 is not compromised; (iii) If the defendants encounter any insurmountable difficulties in adhering to the time-posts set out herein, they may re-attend before me for further directions; (iv) If the parties cannot agree on an appropriate costs award for this motion in writing, I would be pleased to receive brief written submissions – from the plaintiff within 14 days and from the defendants within 14 days thereafter. --- Justice Edward P. Belobaba Date: March 15, 2019

Following the dismissal of the plaintiffs' motion for pre-discovery production from non-party Volkswagen (VW), VW sought partial indemnity costs of $29,487.29.

The plaintiffs argued the motion was straightforward and suggested an award of $5,000.

The court noted the motion was of substantial importance to both parties but found some evidence of over-lawyering by VW.

Applying the factors under Rule 57.01(1), the court fixed costs at $22,000 all inclusive.