Jennifer Teskey

Following a certification decision in a proposed consumer class action concerning prepaid phone cards, the court determined the appropriate costs award.

The moving party sought over $204,000 in partial indemnity costs after succeeding on certification of most proposed common issues.

The court reviewed the costs outline, reduced counsel hourly rates to align with the Rules Committee’s Information to the Profession, and removed an excessive research disbursement.

Considering Rule 57.01 factors, historical certification-motion cost averages, and proportionality principles tied to access to justice under the Class Proceedings Act, the court fixed costs at $150,000 all-inclusive payable forthwith by the defendants.

The plaintiff brought a motion to certify a class action against Bell Mobility regarding the expiry dates on pre-paid phone cards.

The plaintiff alleged breach of contract, breach of the Gift Card Regulation under the Consumer Protection Act, unjust enrichment, and unfair practices.

The court found that the pleadings disclosed causes of action for breach of contract and unjust enrichment, but not for unfair practices.

The court certified the action as a class proceeding, appointed the plaintiff as the representative, created a sub-class for consumer-users, and certified five common issues.

Following a contract interpretation decision in which each party succeeded on different issues, the court considered submissions on costs.

The plaintiff succeeded on the issue of entitlement to the contractual interest rate, while the defendant succeeded on the issue of contractual setoff.

The plaintiff sought partial indemnity costs of approximately $94,000.

Applying principles governing divided success and referencing commentary from the Law of Costs, the court concluded that the parties were either equally successful or equally unsuccessful.

In the circumstances, the court declined to award costs to either party.

The infant plaintiff was seriously injured when struck by a train at a railway crossing.

The plaintiffs sued the railway company, the municipality, and the federal government for negligence.

The federal government successfully moved to strike the claim against it on the basis that it owed no private law duty of care to the plaintiffs.

The Court of Appeal dismissed the plaintiffs' appeal, affirming that under the Railway Safety Act, the federal government's statutory duties are owed to the public at large, not to individuals, and thus fail the proximity requirement for a private law duty of care.

The appellants appealed two decisions of the Ontario Energy Board granting leave to construct a natural gas pipeline to the proposed Greenfield Energy Centre.

The appellants argued the Board erred by limiting its public interest consideration to the pipeline itself, rather than considering the environmental and socio-economic effects of the generating station and the resulting closure of a coal-fired plant.

The Divisional Court dismissed the appeal, finding the Board properly limited its jurisdiction to the specific project before it and correctly deferred to the Ministry of the Environment on the assessment of the plant.

The appellant gas distributor sought to recover unrecorded gas costs, regulatory costs, and interest charges resulting from an accounting error.

The Ontario Energy Board allowed the recovery of the unrecorded costs deferred over three years but denied the recovery of regulatory costs and interest charges.

The Court of Appeal determined the applicable standard of review was reasonableness and upheld the Board's decision, finding it was open to the Board to balance the utility's right to recover prudently incurred costs against the impact on consumers caused by the utility's own accounting error.

The appellants, Deloitte & Touche LLP and two of its partners, appealed an order enforcing letters rogatory issued by a U.S. court in a securities fraud class action against Nortel Networks Corp. The letters rogatory sought the production of extensive audit working papers and the testimony of the two partners.

The Court of Appeal dismissed the appeal, finding no error in the application judge's conclusion that the evidence was relevant, crucial, otherwise unavailable, and that its production would not be unduly burdensome or infringe Canadian sovereignty.