Joel P. Rochon

The plaintiffs sought to certify a class action against the Government of Ontario for its response to the COVID-19 pandemic in long-term care (LTC) homes.

The plaintiffs alleged gross negligence, breach of fiduciary duty, and breach of section 7 of the Charter.

The court certified the class action solely on the negligence/gross negligence claim against the Minister of Long-Term Care, finding it arguable that the Long-Term Care Homes Act imposes a private law duty of care on the Minister to protect LTC residents.

The fiduciary duty and Charter claims were struck for disclosing no reasonable cause of action.

The class was limited to LTC residents and their families, excluding visitors.

The moving parties brought a motion for leave to appeal the order of Akbarali J. dated July 28, 2022.

The Divisional Court dismissed the motion for leave to appeal.

As agreed by the parties, costs were awarded to the responding parties in the amount of $37,500.

This is a costs endorsement following complex grouped appeals and a cross-appeal concerning claims by 28 former residents of the Oak Ridge Division of the Mental Health Centre against His Majesty the King in Right of Ontario and two physicians.

The Court of Appeal had largely upheld the trial judge's findings on liability for breach of fiduciary duty and battery, with minor reductions in damages.

The appellants sought a significant reduction in the respondents' costs for the appeal and a reduction in the trial costs.

The court awarded the respondents the full amount of their claimed appeal costs, finding that despite mixed success, the trial judgment remained largely intact and the costs claimed were reasonable given the complexity.

The court also declined to vary the trial costs, deeming the overturned $1,000 judgment a minor part of the overall proceedings.

The plaintiff in a securities class action brought a motion to discontinue the action against the underwriter defendants and to unconditionally certify the primary market misrepresentation claim against the remaining corporate and individual defendants.

The action had been stalled due to an appeal regarding the disclosure of prospectus purchasers needed to find a representative plaintiff against the underwriters.

The court approved the discontinuance under section 29 of the Class Proceedings Act, 1992, finding it was in the best interests of the class to avoid further delay and proceed against the remaining defendants, who were jointly and severally liable and financially capable of satisfying a judgment.

The respondents were involuntarily admitted to a maximum-security psychiatric facility between 1966 and 1983, where they were subjected to experimental and abusive treatment programs, including mind-altering drugs and severe solitary confinement.

The trial judge found the province and the treating physicians liable for breach of fiduciary duty, battery, and assault, awarding substantial general and punitive damages.

On appeal, the Court of Appeal upheld the findings of breach of fiduciary duty and battery for certain respondents, but reversed the findings of assault and battery for others due to a lack of direct physical interference or imminent threat.

The Court rejected defences based on Crown immunity and historic limitation periods, and largely upheld the damages awards, including those exceeding the Andrews cap, while making specific adjustments for individual respondents.

In a supplementary decision on a motion for leave to commence a secondary market securities class action, the court considered whether certain disclosures constituted public corrections of alleged misrepresentations made by the defendants in February and March 2012 regarding a mining project's capital expenditure budget and schedule.

The court found a reasonable possibility that the plaintiffs could prove the July 2012 disclosure was a partial public correction, but rejected subsequent disclosures in November 2012 and April 2013 as public corrections.

Leave was granted to proceed with the misrepresentation claims against the corporate defendant and two individual certifying officers.

This decision concerns a carriage motion between two proposed securities class actions, Kennedy v. Akumin Inc. and Longair v. Akumin Inc., brought under the amended Class Proceedings Act, 1992.

The court applied the new s. 13.1 of the CPA, which mandates a focus on efficiency and likelihood of success in advancing class members' claims.

The Longair action proposed a broader class period, alleged more categories of misrepresentation, and named additional defendants, including the company's auditor.

The court found that the Longair action better advanced the goals of access to justice and behaviour modification by encompassing more viable claims and defendants, despite some reservations about the claim against the auditor.

Carriage was granted to the Longair action, and the Kennedy action was stayed.

The moving parties (defendants) brought a motion to stay a production order issued by Perell J. pending the disposition of their appeal.

The Divisional Court granted the motion and ordered the stay.

The plaintiffs brought a motion to approve a $125 million settlement in a class action against a major bank for secondary market misrepresentation related to subprime mortgage investments.

The plaintiffs also sought approval of class counsel fees of $37.5 million, representing a 30% contingency fee.

The court found the settlement to be fair and reasonable, noting the significant litigation risks the plaintiffs faced, including a due diligence defence and challenges to damages calculations.

The court also approved the requested counsel fees, emphasizing the substantial risk undertaken by class counsel over 14 years of litigation and the excellent result achieved for the class.

The defendants appealed a motion judge's interpretation of a Supreme Court of Canada costs order.

The motion judge had found the plaintiff was only required to repay $12,180, while the defendants argued the order required repayment of $200,000.

Rather than deciding the appeal, the Divisional Court ordered the parties to jointly apply to the Supreme Court of Canada for clarification of its own order, finding this to be the most efficient and proportionate method of resolving the ambiguity.

The defendants brought a motion to transfer a class action regarding alleged systemic abuse at a psychiatric facility from Toronto to Barrie.

The court applied a holistic approach to the factors under Rule 13.1.02(2)(b) of the Rules of Civil Procedure.

While Barrie had proximity to the facility and witnesses, the Regional Senior Justice noted that due to courtroom availability and backlog, a trial in Barrie might ultimately be moved elsewhere in the Central East Region.

The court concluded that Toronto's judicial resources and specialized class action judges would better ensure a just and expeditious determination.

The motion to transfer was dismissed.

The defendants in a proposed national class action regarding baby powder and ovarian cancer requested that their motion to dismiss or stay the action for delay or abuse of process be heard before the plaintiffs' certification motion.

The defendants argued that the Ontario action was duplicative of parallel class actions in other provinces and had languished for over five years.

The court applied the Cannon factors and determined that the stay/dismissal motion should be heard simultaneously with the certification motion, as doing so would promote judicial economy and allow the court to better assess the preferable procedure and multi-jurisdictional issues.

The defendants appealed a decision certifying an Ontario national class action and dismissing a motion to stay the action as an abuse of process due to a parallel, certified Quebec class action.

The Divisional Court dismissed the appeal, finding no error in principle in the motion judge's exercise of discretion.

The motion judge properly considered the history of the proceedings, including the defendants' failure to oppose the Quebec authorization after last-minute amendments, and reasonably concluded the Ontario action was not an abuse of process and was the preferable procedure.

The moving parties sought an interlocutory stay of an order requiring them to disclose identifying information of primary market investors, pending their motion for leave to appeal that order.

The Divisional Court granted the stay on an interim basis, finding that the motion for leave to appeal had some prospect of success, the moving parties would suffer irreparable harm if the disclosure was made before the leave motion was decided, and the balance of convenience favoured a brief delay.

The court emphasized that interim stays pending leave to appeal should be addressed expeditiously to minimize prejudice.

The Court of Appeal for Ontario issued a costs endorsement following its decision on an appeal concerning leave to proceed under the Ontario Securities Act.

The appellants had challenged the motion judge's denial of leave for certain alleged financial misrepresentations.

The Court of Appeal found the motion judge erred in principle on this central issue, remitting it for redetermination.

As the appellants were substantially successful on the appeal, they were awarded $60,000 in all-inclusive costs for the appeal.

The costs of the original motion for leave were deferred to the judge determining the remitted issue.

The plaintiff brought a proposed class action against Aphria Inc., its directors/officers, and several underwriters, alleging misrepresentations in both the primary and secondary markets regarding two corporate acquisitions.

The plaintiff sought leave to discontinue certain claims, leave to assert secondary market claims under the Securities Act, and certification of the class action.

The court granted the discontinuances and leave for the secondary market claims, certifying them on consent.

For the primary market claims against the underwriters, the court held that the 'Ragoonanan Principle' still applies in Ontario, meaning a representative plaintiff must have a direct cause of action against each defendant.

Since the plaintiff only purchased shares in the secondary market, it could not represent primary market purchasers.

However, the court conditionally certified the primary market claims, giving class counsel 100 days to recruit an eligible representative plaintiff who purchased shares in the prospectus offering.

Following a 71-day trial where the plaintiffs were awarded nearly $10 million in damages, the plaintiffs sought costs of approximately $8.5 million on a substantial indemnity basis or $5.3 million on a partial indemnity basis.

The defendants argued that substantial indemnity costs were unwarranted and that the partial indemnity claim included costs for interlocutory matters already decided.

The court found no reprehensible conduct by the defendants to justify an elevated scale of costs.

Applying the partial indemnity scale and deducting amounts attributable to prior interlocutory motions, the court fixed the plaintiffs' costs at $4,900,000 all-inclusive.

Two competing class counsel groups sought carriage of a proposed class action against the Province of Ontario regarding COVID-19 outbreaks in long-term care homes.

The Nisbet Action proposed suing Ontario solely for its several liability to avoid third-party claims and expedite certification.

The Robertson Action proposed a conventional joint and several liability approach, expecting third-party claims between Ontario and long-term care operators.

The court granted carriage to the Robertson Action, finding that the several liability approach offered no early-stage advantage and would create significant disadvantages in later-stage litigation, including potential unfairness to the defendant and risks of unrecovered losses for class members.

The plaintiffs sought judicial approval of a $25 million settlement in two pharmaceutical class actions alleging that the diabetes drug PIO caused bladder cancer and that the defendants failed to warn of this risk.

The court initially raised concerns about the settlement amount compared to a $2.4 billion U.S. settlement, but approved it after class counsel provided evidence of recent scientific studies undermining causation and differences in market size and litigation risk.

The court also approved class counsel's 30% contingency fee and awarded a reduced honorarium of $1,500 to each representative plaintiff.

The plaintiffs commenced a proposed class action in 2008 alleging that a prescription medication manufactured by the defendant caused cardiovascular harm.

After twelve years with no progress toward certification, the defendant moved to dismiss for delay.

The plaintiffs decided not to proceed and brought a consent motion to discontinue the action without costs.

The court approved the discontinuance under section 29 of the Class Proceedings Act, 1992, finding the action had no potential to be certified and the proposed notice to putative class members was appropriate.