Jody Nicholas Brown

The court approved the settlement and class counsel fees in a series of related class actions brought by investors in syndicated mortgage loans against Fortress Real Capital Inc., Fortress Real Developments Inc., and others, including the Sorrenti Defendants.

The settlement, representing approximately 82% of the available insurance, was found to be fair, reasonable, and in the best interests of the class.

The court certified the actions as class proceedings for settlement purposes and approved the distribution plan and counsel fees.

The court considered cross-applications between Michelle Goldstein Zaldin and Seymour Goldstein regarding the enforcement of a shotgun clause in a shareholders’ agreement for their jointly owned insurance and investment businesses.

The court found that a binding agreement was reached for Ms. Zaldin to purchase Mr. Goldstein’s shares, and that Mr. Goldstein’s failure to obtain necessary regulatory approvals constituted a breach that prevented closing.

The court granted specific performance in favour of Ms. Zaldin, declined to imply additional terms into the agreement, and awarded her costs.

The court considered cross-applications between Michelle Goldstein Zaldin and Seymour Goldstein regarding the enforcement of a shotgun clause in a shareholders’ agreement for their jointly owned insurance and investment businesses.

The court found that a binding agreement was reached for Ms. Zaldin to purchase Mr. Goldstein’s shares, and that Mr. Goldstein’s failure to obtain necessary regulatory approvals constituted a breach that prevented closing.

The court granted specific performance in favour of Ms. Zaldin, declined to imply additional terms into the agreement, and awarded her costs.

The appellant appealed an order striking his Notice of Application and refusing leave to amend, which sought Charter relief against the respondents.

The motion judge found the Charter claim could not succeed, was a collateral attack on a Law Society decision, and that the Charter did not apply to the individual respondents.

The Court of Appeal upheld the motion judge's decision, finding no error in the Charter interpretation or application, and that summary determination was not an abuse of process.

The Court also dismissed the appellant's motion for review of a single judge's order regarding joint representation, deeming it frivolous and an abuse of process.

This decision concerns the approval of a $30 million settlement in a class action alleging that major junior hockey players were employees entitled to minimum wage and other benefits.

The court approved the settlement, finding it fair, reasonable, and in the best interests of the class, given the high litigation risks and uncertain legal landscape.

The court also approved Class Counsel's fees but declined to approve honoraria for the representative plaintiffs, reiterating that such awards should be rare and reserved for exceptional contributions.

The applicant, Andrew Spasiw, sought a declaration that the respondents (Law Society of Ontario, McMillan LLP, David Milosevic, and Benjamin Bathgate) violated his Charter rights and a remedy under s. 24(1) of the Charter.

The respondents brought motions to strike the Notice of Application without leave to amend, arguing it was an abuse of process (collateral attack) and disclosed no viable cause of action.

The court granted the motions to strike, finding that the application was a collateral attack on the LSO's complaints process and that the Charter claims against the LSO and the private lawyers had no prospect of success, as the Charter does not apply to private entities in this context and the LSO is immune from damages for good faith acts.

Leave to amend was denied as the deficiencies could not be cured.

This appeal concerned a proposed class action by inmates and their families against Bell Canada and the Ontario government regarding allegedly unreasonable and unconscionable collect call rates from correctional facilities.

The motion judge had dismissed claims for an ultra vires tax and a Telecommunications Act breach, and permanently stayed other claims (unjust enrichment, consumer protection, unconscionable contracts, breach of fiduciary duty), deferring to the CRTC's jurisdiction.

The Court of Appeal upheld the dismissal of the ultra vires tax claim, finding the commissions paid to Ontario were proprietary/contractual charges, not taxes.

However, the Court substituted the permanent stay with a temporary stay for the remaining claims.

This was to allow the CRTC to first determine whether it had forborne from regulating these specific rates and, if not, to adjudicate their reasonableness, ensuring access to justice for the appellants if the CRTC declined jurisdiction.

The Canadian Imperial Bank of Commerce appealed three lower court decisions in a class action initiated by Dara Fresco on behalf of 31,000 customer service employees.

The class action alleged that the Bank's overtime policies and record-keeping practices led to uncompensated overtime, contrary to the Canada Labour Code.

The Court of Appeal for Ontario dismissed all three appeals.

It upheld the motion judge's interpretation of "permitted" overtime under s. 174 of the Code, affirming that the Bank's policies and record-keeping were "institutional impediments" to proper compensation.

The Court also confirmed the certification of aggregate damages, ruling that the Supreme Court's Pro-Sys decision allowed the trial judge to reconsider this issue despite a previous refusal at certification.

Finally, the Court upheld the motion judge's decision to defer a class-wide limitations order and a constitutional question regarding the extra-territorial application of the Class Proceedings Act, deeming them premature.

Dara Fresco, the representative plaintiff in a class action, moved to quash two aspects of the Canadian Imperial Bank of Commerce's appeals from a judgment on common issues.

Fresco argued that the issues concerning limitation periods and aggregate damages were only appealable to the Divisional Court with leave, not the Court of Appeal.

The Court of Appeal dismissed the motions to quash, holding that it had jurisdiction over all aspects of the appeals under s. 30(3) of the Class Proceedings Act, 1992, as the determinations on limitations and aggregate damages were part of the judgment on common issues.

This proposed class action concerned the alleged retention of DNA profiles by the Province of Ontario after individuals voluntarily provided samples for forensic DNA analysis that did not match any samples obtained under the Criminal Code.

The plaintiff moved for certification of the action, alleging breach of the Criminal Code, violation of section 8 of the Charter, and intrusion upon seclusion.

The defendant consented to certification shortly before the scheduled hearing.

The court certified the action as a class proceeding and addressed two outstanding issues: costs of the certification motion and the temporal limit of the proposed class.

The court adopted a hybrid approach for costs, ordering half payable forthwith and half in the cause, and fixed the quantum at $124,504.38.

The court also ordered that the temporal limit of the class definition be "without prejudice to the plaintiff bringing a future motion within this proceeding to certify an amended class" to protect future class members.

The plaintiff in a proposed class action moved for leave to amend the Statement of Claim to add the corporate directors of the defendant companies as new defendants.

The amendment was sought due to concerns about the existing defendants' ability to pay outstanding wages, particularly in light of the global travel industry's collapse due to the COVID-19 pandemic.

The court found no prejudice to any party, as the defendants did not object and the action was still at an early stage.

Leave to amend was granted, with no costs awarded.

This motion concerned the certification of a proposed class action against the provincial government regarding the negligent operation and administration of social assistance programs for developmentally disabled adults.

The plaintiff alleged negligence, breach of fiduciary duty, and breach of section 7 of the Canadian Charter of Rights and Freedoms, primarily due to indeterminate waitlists and flawed prioritization for approved services.

The court certified the class action, allowing the negligence and Charter claims to proceed, but struck the breach of fiduciary duty claim.

Common issues related to duty of care, Charter rights, and the availability of punitive damages were certified, while aggregate damages and the amount of punitive damages were not.

The defendant brought a motion to compel the plaintiff and her expert witness to produce extensive financial and medical records, and additional expert materials, during cross-examinations for a class action certification motion.

The court dismissed the defendant's motion, finding the requested information irrelevant and disproportionate to the certification issues under the Class Proceedings Act.

The court emphasized that a representative plaintiff's personal financial or medical circumstances are not generally relevant to certification, nor are an expert's draft notes or unrelated academic works that were not relied upon in their report.

The court considered the allocation of approximately $7.45 million in Strategic Program Investment funds, representing unclaimed settlement funds from three class actions concerning institutional abuse at Huronia, Rideau, and Southwestern Regional Centres.

The Plaintiffs sought approval for allocations to 37 applicants, while the Crown disputed parts of the proposal, advocating for increased funding for People First of Ontario or the McMaster University project, and raising concerns about accountability, potential bias, direct individual benefits, and artistic projects.

The court approved the Plaintiffs' allocation with adjustments, disapproving certain applications that provided direct individual benefits or were deemed disproportionate artistic projects, redirecting those funds to People First of Ontario and the McMaster University project, and establishing an accountability mechanism through the Administrator.

This decision concerns the judicial approval of a class action settlement, legal fees for class counsel, and an honorarium for the representative plaintiff in a misclassification overtime class action against BMO Nesbitt Burns Inc. The defendant agreed to pay $12 million for class member compensation and $500,000 for administration costs.

The court found the settlement to be fair, reasonable, and in the best interests of the class, falling within a zone of reasonableness established by comparable U.S. settlements.

A 25% contingency fee for class counsel and a $10,000 honorarium for the representative plaintiff were also approved.

Following certification of a class proceeding alleging unpaid overtime by investment advisors, the court determined the appropriate costs award arising from the certification motion.

The plaintiff sought $575,000 in partial indemnity costs while the defendant argued the award should not exceed $315,000.

The court outlined a structured methodology for certification-motion costs awards emphasizing transparency, historical averages, proportionality, and the Rule 57.01(1) factors.

After reducing the claim for excess fees and disbursements and considering historical cost award data and comparable cases, the court fixed costs at $290,000 all-inclusive payable by the defendant to the plaintiff.

In a certified class proceeding concerning the partial wind-up of a supplemental retirement plan, the defendant insurer brought a refusals motion seeking production of income information, tax assessments, and projected retirement income from the representative plaintiff and certain subclass members.

The defendant argued the information was necessary for its actuarial expert to quantify potential damages.

The court held that the requested information related to individual damage quantification rather than the certified common issues, which were limited to liability and the methodology for calculating damages.

Because the trial judge had not yet determined the methodology for assessing damages or whether aggregate damages could be assessed, ordering production was premature.

The court also held that obtaining information from absent class members would require leave under s. 15 of the Class Proceedings Act.

The motion was dismissed.

In a proposed overtime misclassification class action against a financial institution and its affiliate, the plaintiffs brought a motion to compel answers to refusals and undertakings arising from cross‑examinations on affidavits filed for an upcoming certification motion.

The court balanced the need for a full evidentiary record against the proximity of the certification hearing and the burden of additional production.

Requests for a third‑party inspection of the defendants’ human resources system and certain historical records were refused as disproportionate or unnecessary at the certification stage.

However, several questions concerning the duties of investment advisors, associate investment advisors, and the rationale for overtime eligibility policies were ordered answered because they related to class definition and commonality issues.

Other questions relating to merits issues, irrelevant job descriptions, or hypothetical inquiries were not compelled.