Joel P. Rochon

Following the dismissal of the plaintiffs' motion for certification in a systemic negligence class action against a psychiatric hospital and the Province of Ontario, the successful defendants sought costs.

Waypoint claimed approximately $1.3 million and Ontario claimed approximately $815,000.

The court found the claimed amounts to be fair and reasonable given the complexity of the case and the resources expended by the plaintiffs.

Applying section 31 of the Class Proceedings Act, the court applied an approximate 10% discount due to the public interest nature of the litigation, awarding Waypoint $1,170,000 and Ontario $735,000 in partial indemnity costs.

The plaintiffs sought court approval of a class action settlement agreement with the defendants, General Motors LLC and General Motors of Canada Limited, for $12 million to resolve claims related to alleged defects in automobile ignition switches.

They also sought approval of counsel fees of $4,397,500.

The court approved both the settlement, finding it fair and reasonable given the litigation risks and the absence of objections, and the counsel fees, noting they were negotiated separately and represented a reasonable contingency fee.

The plaintiffs brought a motion to certify a class action against Ontario, Waypoint Centre for Mental Health Care, and individual hospital administrators, alleging systemic negligence, breach of fiduciary duty, and Charter violations related to the use of seclusion and restraints at a maximum-security psychiatric hospital.

The court dismissed the certification motion, finding that while some patients may have individual claims for culpable seclusion, there was no basis in fact for systemic wrongdoing.

The court concluded that the claims lacked commonality, as the use of restraints required highly individualized clinical assessments, and that a joinder action, rather than a class proceeding, was the preferable procedure.

The plaintiffs brought eight proposed class actions against various long-term care (LTC) home owners and operators in Ontario, alleging systemic negligence and gross negligence in their response to the COVID-19 pandemic.

The court considered whether the claims met the certification criteria under section 5(1) of the Class Proceedings Act, 1992, particularly in light of the statutory immunity provided by the Supporting Ontario's Recovery Act (SORA).

The court certified six of the actions against the main corporate groups, finding that the pleadings disclosed a viable cause of action in gross negligence and that a class action was the preferable procedure.

However, the court dismissed the certification motions against independently owned homes and municipalities due to the lack of a collective enterprise and missing representative plaintiffs.

The appellants, proposed representative plaintiffs in a class action, appealed a motion judge's decision regarding leave to pursue claims against Barrick Gold Corporation for alleged misrepresentations under the Ontario Securities Act.

The appeal concerned the denial of leave for certain misrepresentation allegations related to Barrick's capital expenditure budget and production schedule, and the identification of public correction dates.

The Court of Appeal dismissed the appeal, affirming the motion judge's finding that there was no reasonable possibility of success for the additional misrepresentation claims and that the earlier public disclosure fully corrected the alleged misrepresentations, thereby limiting the class period.

The appellants sought to certify a class proceeding against the provincial government for its response to COVID-19 in long-term care homes, asserting claims in negligence, breach of fiduciary duty, and breach of Charter s. 7.

The motion judge certified the negligence claim against the Minister of Long-Term Care (MLTC) but struck the other claims.

This appeal and cross-appeal challenged that decision.

The Court of Appeal dismissed both the appellants' appeal (seeking to certify the struck claims) and the respondent's cross-appeal (seeking to decertify the negligence claim against the MLTC), thereby upholding the motion judge's original certification decision.

This motion sought consent certification of a class action for settlement purposes and leave to discontinue certain causes of action related to defects in General Motors vehicles' ignition switches and other components.

The plaintiffs sought to certify economic loss claims while discontinuing claims for wrongful death, personal injury, and physical property damage.

The court granted the motion, finding that the discontinuance was appropriate as personal injury claimants were not prejudiced and could pursue individual claims or participate in a separate settlement scheme.

The court also found that the criteria for consent certification were met, albeit less rigorously applied in a settlement context, and approved the proposed notice program and settlement administrator.

The plaintiffs successfully defended a motion by the defendant to amend the certified class definition.

The plaintiffs sought partial indemnity costs of $88,296.33.

The defendant argued the amount was too high and suggested $45,000 payable in the cause.

The court found the plaintiffs' costs request slightly excessive due to unwarranted allegations of abuse of process, which unnecessarily protracted the matter.

The court reduced the requested amount by approximately 20% and awarded the plaintiffs $65,000 in costs, payable within 30 days.

This appeal concerned a motion judge's order regarding a class action.

The core issues were whether a discontinued cause of action and defendants could be added to an existing class action (the Martin action) and whether that action would then be governed by the old Class Proceedings Act, 1992, or the amended Act.

The motion judge had ordered the "recast" Martin action to proceed under the amended Act and denied leave to add a party (MicroPort Orthopedics Inc.) based on limitations.

The Court of Appeal found that the motion judge erred in ordering the Martin action to be governed by the amended Act, as Section 39 of the amended Act clearly dictates that actions commenced before October 1, 2020, remain under the old Act.

The court also found an error in dismissing the motion to add MicroPort Orthopedics Inc. based on the Limitations Act, stating that limitation periods are typically individual issues in class actions.

The appeal and cross-appeal were allowed in part, clarifying that the Martin action continues under the old Act, and a re-filed Rowland action (including MicroPort Orthopedics Inc.) would proceed under the amended Act.

Following a successful motion to certify a class action regarding psychiatric treatment at the St. Thomas Psychiatric Hospital, the plaintiffs sought costs of $713,798.85 on a partial indemnity basis.

The Crown defendants opposed the quantum, arguing the fees were unreasonable and should be reduced by at least 50% or made payable in the cause.

The court rejected the defendants' arguments, noting they failed to provide their own bill of costs for comparison.

Applying the principles of reasonableness and the factors under Rule 57.01(1), the court fixed the plaintiffs' costs at $675,000 all-inclusive, payable forthwith.

This is a motion to discontinue a proposed class action concerning automobile airbags that had been recalled.

The action, which had not been certified, sought compensation for pure economic loss.

Due to developments in case law, particularly the Supreme Court of Canada's clarification on pure economic loss for defective products, the litigation risk increased, and the prospects for certification and substantial economic recovery diminished.

Class Counsel sought leave to discontinue the action with prejudice and without costs.

The court granted the motion, finding that the action was commenced for a proper purpose, the test for discontinuance was satisfied, and putative class members were not prejudiced, as limitation periods remained suspended.

The plaintiff in a securities class action brought a refusals motion seeking production of a Special Committee report, three due diligence legal opinions, and answers to questions about missing marijuana inventory.

The court dismissed the motion, finding that the Special Committee report and the legal opinions were protected by solicitor-client and litigation privilege, and that the privilege had not been waived.

The court also held that the questions regarding the missing marijuana were irrelevant and disproportionate.

The Defendant, Bell Mobility Inc., brought a motion to amend the certified class definition in a class action, seeking either to exclude business customers or to compel the addition of a new sub-class with a separate representative plaintiff.

The Defendant argued that business customers might be statute-barred or had distinct interests requiring separate representation.

The court dismissed the motion, finding that the limitation issue was not ripe for determination on a class-wide basis as it required individualized discoverability analysis.

The court also declined to create a new sub-class, emphasizing judicial economy and the principle against "litigation in installments" given the advanced stage of the proceedings.

The plaintiffs brought a motion to certify a class action against the Government of Ontario regarding the psychiatric treatment of patients detained in the PST Unit of the St. Thomas Psychiatric Hospital between 1976 and 1992.

The plaintiffs alleged that the 'PST Program' was an experimental, abusive therapeutic community that improperly delegated treatment and punishment decisions to 'patient-teachers', resulting in physical and psychological harm.

The court granted certification, finding that the pleadings disclosed causes of action for negligence, breach of fiduciary duty, vicarious liability, and breaches of sections 7, 12, and 15 of the Charter.

However, the court narrowed the common issues, certifying questions related to systemic negligence, fiduciary duty, vicarious liability, and limitation periods, while directing that Charter breaches, causation, and damages must be determined at individual issues trials.

The court concluded that a class proceeding was the preferable procedure to advance the claims of the highly marginalized class members.

In a class action seeking certification against the Crown and two psychiatrists (Defendant Doctors) regarding treatment in a psychiatric hospital program, the plaintiffs moved for a partial discontinuance of the action against the Defendant Doctors.

The court granted the discontinuance, finding it to be in the best interests of the putative Class Members.

The decision was based on the lack of additional recovery from the doctors, the streamlining of the claim, the doctors' later involvement in the program, and their agreement to provide de bene esse examinations to preserve evidence.

The court confirmed that the discontinuance was not for an improper purpose and did not prejudice the class members or the co-defendant Crown, as the doctors' evidence remained available.

The plaintiffs' counsel, Rochon Genova LLP, sought an order to retain costs awarded by various courts, including post-judgment interest, as part of their contingency fee agreement.

The total amount of costs sought was over $5.6 million, bringing their total compensation to over $7.4 million.

The defendants took no position as the costs had already been paid.

The court approved the request, finding the contingency fee agreements fair and reasonable given the exceptional circumstances, high risk, complexity, and two-decade duration of the litigation, which involved novel claims and a protracted procedural history.

The court confirmed the request complied with section 28.1(8) of the Solicitors Act, noting no excessive fees or 'double-dipping.'

This is an appeal management endorsement concerning an appeal and cross-appeal from a class action certification decision.

The underlying action alleges gross negligence by the Government of Ontario regarding COVID-19 deaths and illnesses in long-term care homes.

The Court of Appeal addressed requests for extended factum lengths and oral hearing time.

The judge granted leave for longer factums (50 pages for the main appeal, 30 for the cross-appeal) and scheduled a two-day oral hearing.

The endorsement also provided guidance on the effective use and timely delivery of Oral Hearing Compendiums.

The defendant brought a motion for leave to appeal the order of Belobaba J. dated December 20, 2022, regarding a certification motion.

The Divisional Court granted leave to appeal and noted that the parties could apply to the Court of Appeal to have this appeal heard together with the pending appeal of the dismissal of the balance of the certification motion.

No costs were awarded as costs outlines were not filed.

LTL Management LLC, an indirect subsidiary of Johnson & Johnson, sought recognition of its second US Chapter 11 bankruptcy proceeding as a foreign main proceeding under the Companies’ Creditors Arrangement Act (CCAA) in Canada.

This application followed the dismissal of its initial Chapter 11 filing due to insufficient immediate financial distress.

The new Chapter 11 was based on a negotiated Plan Support Agreement establishing an $8.9 billion trust for talc-related claims.

The Ontario Superior Court of Justice granted the recognition order, along with ancillary relief including a stay of proceedings against LTL and related Canadian co-defendants, and the appointment of Ernst & Young Inc. as Information Officer.

The court found the US proceeding to be a foreign main proceeding, with LTL's Centre of Main Interests (COMI) in the United States, and that the relief was appropriate to coordinate proceedings and ensure equal treatment of talc-related claims.

The application was unopposed.

The plaintiffs brought a class action against mutual fund managers for allowing certain investors to engage in frequent short-term trading (market timing/time zone arbitrage), which allegedly diluted the returns of long-term unitholders.

The court found that the defendants owed a duty of care to the funds and breached the standard of care by failing to prevent, and actively facilitating, frequent short-term trading contrary to their prospectuses.

However, the court dismissed the claim for breach of fiduciary duty, finding no bad faith or dishonesty.

The matter was directed to proceed to a damages trial.