Joel P. Rochon

The plaintiffs moved to certify a proposed product liability class action for settlement purposes and to approve a negotiated settlement and class counsel fees under the Class Proceedings Act, 1992.

The action alleged design and manufacturing defects in certain windows that permitted water penetration and caused wood rot and property damage.

The court held that the requirements for certification under s. 5(1) were met in the settlement context and that a class proceeding was the preferable procedure.

The proposed settlement, which provided compensation through a claims process or expedited arbitration and included no cap on total benefits, was found to be fair, reasonable, and in the best interests of the class.

The court also approved class counsel fees of $650,000 as reasonable in light of the risks and work undertaken.

The appellant appealed an order approving an additional $395,000 fee for class counsel following the administration of a class action settlement regarding a norovirus outbreak at resorts.

The settlement created a $2.25 million reversionary fund, but only $333,306.79 was claimed by class members.

The Court of Appeal allowed the appeal, finding that the motion judge erred by valuing the settlement based on the total fund rather than the actual take-up rate.

The Court held that the initial $600,000 fee was fair and reasonable, and the additional fee was grossly disproportionate to the actual results achieved for the class.

The plaintiffs sought leave under Part XXIII.1 of the Securities Act and certification of a proposed class proceeding alleging secondary market misrepresentation by a public issuer and its directors and officers in continuous disclosure documents.

They also requested approval to discontinue common law negligent misrepresentation and oppression remedy claims in favour of the statutory cause of action.

The court held that the plaintiffs met the statutory leave test by demonstrating good faith and a reasonable possibility of success at trial.

It further concluded that discontinuance of the common law and oppression claims would not prejudice class members because the statutory claim avoided reliance issues and certification difficulties.

The action was certified as a class proceeding, with identifiable class members, common issues, and a preferable procedure established.

The plaintiffs sought leave under s. 138.3 of the Securities Act and certification under the Class Proceedings Act to pursue a class action against CIBC and its senior officers for alleged secondary market misrepresentations concerning CIBC's exposure to the U.S. residential mortgage market.

The court found that the plaintiffs met the test for leave and certification for the statutory claim.

However, applying the Court of Appeal's recent decision in Sharma v. Timminco Limited, the court held that the statutory claim was time-barred because leave was not obtained within the three-year limitation period under s. 138.14 of the Securities Act.

Consequently, both motions were dismissed.

In a proposed securities class action alleging secondary market misrepresentation by a publicly traded company and several of its officers and directors, the plaintiff brought a motion for substituted service of pleadings on two individual defendants who had not been personally served.

One defendant’s whereabouts were uncertain in Québec and the other, a Canadian citizen ordinarily resident in Québec, was incarcerated in Switzerland while criminal proceedings were ongoing.

The court considered Rules 16.04 and 17.05 of the Rules of Civil Procedure and the interaction with the Hague Convention on service abroad.

It held that the rule prohibiting substituted service where Hague Convention service is required did not apply because the defendant’s ordinary residence and connection to Canada justified service under the general rule.

The court concluded that the proposed methods of service through counsel were reasonably likely to bring the proceedings to the defendants’ attention.

Following certification of a proposed class proceeding concerning a medical product, the court determined the appropriate costs award for the certification motion and a related motion to strike an affidavit.

The court considered the factors in Rule 57.01 of the Rules of Civil Procedure and s. 31 of the Class Proceedings Act, 1992.

Although the plaintiffs were successful in obtaining certification, the evidentiary record and legal issues were relatively modest and the defendants made timely concessions that narrowed the scope of the dispute.

The court concluded that a conservative costs award was appropriate and reduced the plaintiffs’ claimed fees to a reasonable partial indemnity level.

The defendants were awarded costs for their successful motion to strike, which were offset against the certification costs.

Following approval of a class action settlement fund of $2.25 million for approximately 4,000 class members alleging illness from a resort norovirus outbreak, class counsel sought approval of an additional fee of $395,500 beyond an initial $600,000 fee.

The defendant opposed the motion, arguing the low take‑up rate—only 352 claims totalling approximately $333,000—made the total counsel fee disproportionate and unfair.

The court held that the value of a settlement for purposes of counsel fees may properly be measured by the total funds made available to the class rather than the amount actually claimed.

Considering the litigation risks undertaken, the benefits made available to class members, and policy reasons supporting incentives for class counsel, the court concluded the fee request was fair and reasonable.

The additional counsel fee was approved.

The appellant commenced a proposed class action asserting a statutory cause of action under s. 130 of the Securities Act for misrepresentations in a prospectus.

The motion judge found the claim was barred by the limitation period in s. 138 of the Securities Act and was not saved by the suspension of limitation periods in s. 28 of the Class Proceedings Act.

The Court of Appeal upheld the decision, finding that a prior class action appeal did not encompass the s. 130 claim, meaning the suspension of the limitation period ended when the time to appeal the dismissal of that specific claim expired.

The plaintiffs brought a proposed class action against mutual fund managers for permitting market timing, which allegedly caused losses to long-term investors.

The defendants had previously entered into settlement agreements with the Ontario Securities Commission (OSC) regarding the same conduct.

The motion judge dismissed the certification motion, finding the OSC proceedings were the preferable procedure.

The Divisional Court allowed the plaintiffs' appeal.

The Court of Appeal dismissed the defendants' appeal, holding that the OSC proceedings were regulatory and lacked participatory rights for investors, and therefore did not fulfill the access to justice goals of the Class Proceedings Act.

The class action was deemed the preferable procedure.

Three competing groups of plaintiffs and their respective counsel brought carriage motions seeking to represent a class of investors who suffered losses following a massive decline in the value of Sino-Forest Corporation's securities.

The court evaluated the competing actions based on factors including the definition of class membership, class period, theory of the case, causes of action, joinder of defendants, and prospects of certification.

The court stayed the Smith and Northwest actions and granted carriage to the Labourers action, finding its approach to the class definition, causes of action, and joinder of defendants to be the most cohesive and in the best interests of the class.

The representative plaintiff in a certified class action sought leave to appeal a motions judge's decision dismissing a motion for enhanced notice to class members.

The settlement agreement, which capped the settlement fund at $2.25 million with the residue reverting to the defendants, had been approved by the court.

Due to a low take-up rate, the plaintiff sought to modify the notice provisions.

The motions judge held that the court could not modify a concluded and court-approved settlement agreement without the defendants' consent.

The Divisional Court denied leave to appeal, finding no good reason to doubt the correctness of the motions judge's decision.

The moving party sought leave to appeal an order sanctioning the monitor's methodology for distributing funds in Nortel's Health and Welfare Trust under the CCAA.

The Court of Appeal dismissed the motion, finding that the interpretation of the specific termination clause was not of significance to the practice, the appeal was not prima facie meritorious, and granting leave would unduly hinder the progress of the restructuring.

Costs were awarded to the Monitor.

The moving parties sought leave to appeal an order approving a settlement in the CCAA proceedings of Nortel Networks.

The Court of Appeal denied leave, finding no procedural or substantive unfairness in the settlement.

The motion judge had carefully balanced the various interests at stake and made no demonstrable error.

The moving parties, Objecting LTD Beneficiaries, sought an order expediting their motion for leave to appeal and consolidating the leave motion with the appeal itself.

The responding parties consented to expediting the leave motion but opposed consolidation.

The court agreed with the responding parties, finding no urgency requiring consolidation as benefits continued until the end of the year.

A schedule for the expedited leave motion was approved.

The respondent sought costs following a one-day appeal.

The court noted the costs claimed were well beyond the usual range and that the respondent's motion to quash the appeal had been dismissed.

Taking into account the complexity, importance of the issues, amount at issue, and the result achieved, the court fixed costs awarded to the respondent at $50,000 inclusive of disbursements and GST.

The plaintiff brought a proposed class action against Dell for allegedly defective notebook computers.

Dell sought to stay the action based on a mandatory arbitration clause in its standard-form sales agreement.

The motion judge refused the stay and certified the class action.

On appeal, the Court of Appeal upheld the decision, finding that the Consumer Protection Act, 2002, which invalidates mandatory arbitration clauses in consumer agreements, applied to the claim because the computers failed after the Act came into force.

The Court also refused to grant a partial stay for non-consumer claims, as doing so would lead to inefficiency and a multiplicity of proceedings.

The appellant appealed the dismissal of her motion for certification of a class proceeding against a tour operator regarding a norovirus outbreak at resorts in the Dominican Republic.

The Divisional Court found that while the motions judge did not err in narrowing the class definition, he erred in principle in his analysis of the preferable procedure criterion by failing to assess it in the context of the narrowed class.

The appeal was allowed, the dismissal and costs orders were set aside, and the matter was referred back to the motions judge for consideration of a revised litigation plan.

Following the dismissal of the plaintiffs' appeal from a decision refusing certification of a class action, and the dismissal of the defendant's cross-appeal regarding costs, the Divisional Court determined the costs of the appeal.

The court found that the action involved a matter of public interest, particularly given the promulgation of the Cigarette Ignition Propensity Regulations.

Applying section 31(1) of the Class Proceedings Act and Rule 57, the court ordered that each side bear its own costs of the appeal and cross-appeal.

The defendants sought leave to appeal a decision certifying a class action against them.

The Divisional Court denied leave, emphasizing the deference owed to case-management judges in certification motions.

The court found no conflicting decisions or errors in the certification judge's treatment of waiver of tort, conspiracy pleadings, or special damages.

The appellant, Apotex Inc., appealed a motion judge's decision allowing the respondents to amend their claim to substitute two Québec representative plaintiffs in an Ontario class action.

Apotex argued that the action lacked a real and substantial connection to Ontario, that Ontario was not the convenient forum, and that the action was an abuse of process due to parallel Québec proceedings.

The Court of Appeal dismissed the appeal, finding that Ontario had jurisdiction simpliciter because Apotex resides and carries on business in Ontario.

The court also held that it was premature to determine forum non conveniens on a motion to amend, and accepted counsel's undertaking that the Québec proceedings would not advance pending the Ontario certification decision, thereby negating the abuse of process claim.