John Albert Prestage

Motions were brought in two related class proceedings seeking approval of a settlement under the Class Proceedings Act, 1992, approval of contingency fee agreements, and approval of class counsel fees.

The litigation concerned claims by pension plan members seeking entitlement to the full surplus of two employer-sponsored pension plans.

Following mediation, the parties reached a settlement under which approximately $3.49 million in pension plan surplus would be distributed to plan beneficiaries, with an additional $350,000 allocated for other claims including costs.

The court held the settlement was fair, reasonable, and in the best interests of the class.

The court approved the settlement and awarded class counsel fees, fixing fees for one firm at $340,000 and for separate counsel at $75,000.

The appellant bank issued letters of credit to secure payment for shrimp supplied by the respondent to the bank's customer.

The letters of credit required delivery receipts as a precondition to payment.

The bank's customer failed to provide the receipts, and the bank used the proceeds from the sale of the shrimp to pay down the customer's line of credit instead of paying the respondent.

The Court of Appeal upheld the trial judge's finding that the bank was disentitled from relying on the defence of strict documentary compliance because it colluded with its customer to defeat the purpose of the letters of credit and breached its implied duty of good faith.

The appellant appealed a decision of the Financial Services Tribunal confirming the Superintendent's consent to merge two pension plans following a corporate amalgamation.

The appellant argued the merger and subsequent use of the actuarial surplus from one plan to fund contribution holidays for the merged plan constituted a revocation of trust.

The Divisional Court dismissed the appeal, finding the Tribunal's decision reasonable and correct.

The court held that the plan documents permitted the merger and that using actuarial surplus to fund contribution holidays while a plan is ongoing does not constitute a revocation of trust.

Following the dismissal of the appellants' appeal of a refusal to certify a class proceeding regarding pension plan amendments, the respondents sought costs.

The appellants argued that no costs should be awarded, relying on the public interest and novel point of law provisions under the Class Proceedings Act, 1992.

The Divisional Court found no special circumstances to depart from the general rule that costs follow the event.

Applying the overriding principle of reasonableness, the court awarded costs to the respondents, including disbursements for a responding report on a fresh evidence motion.

The appellants appealed the decision of the motion judge refusing to certify their proposed class proceedings against the Ontario Northland Transportation Commission regarding amendments to its pension plan.

The appellants alleged the pension plan was an irrevocable trust and the amendments constituted a breach of trust.

The Divisional Court dismissed the appeals, finding that the motion judge made no errors of law, no palpable and overriding errors of fact, and that her conclusions on mixed fact and law regarding common issues, preferable procedure, and representative plaintiffs were reasonable and entitled to deference.

The plaintiff brought a proposed class action in Ontario against McDonald's and Simon Marketing Inc. alleging wrongdoing in relation to promotional contests.

The defendants moved to dismiss or stay the action on the basis that the claims had been finally disposed of in an Illinois class action settlement.

The motion judge refused to stay or dismiss the action, finding that the notice given to the Canadian members of the plaintiff class in the Illinois action was so inadequate as to violate the rules of natural justice.

The defendants appealed.

The Court of Appeal dismissed the appeal, holding that before enforcing a foreign class action judgment against Ontario residents, the court must ensure the foreign court had a proper basis for jurisdiction and that the interests of Ontario residents were adequately protected.

The Court found no basis to interfere with the motion judge's finding that the notice given to the non-resident class members was inadequate, and therefore the Ontario courts should not recognize and enforce the Illinois judgment against the plaintiff and the non-attorning Canadian class members.

The appellant, ING Canada Inc., appealed a decision finding it breached warranties in a share purchase agreement regarding the funding of a pension plan.

ING had taken contribution holidays by relying on an actuarial surplus in a separate trust (the Halifax Trust) to offset deficits in the non-Halifax portion of the plan.

The Court of Appeal dismissed the appeal, holding that the clear terms of the Halifax Trust prohibited the diversion of its assets for the benefit of non-beneficiaries.

Consequently, ING was not entitled to use the Halifax Trust surplus to calculate its funding obligations for the rest of the plan.

The appellant imported and distributed disposable contact lenses.

To promote its brand, it supplied free contact lenses to authorized practitioners, who then dispensed them to patients.

The Minister of Finance assessed retail sales tax on these free lenses.

The appellant objected, arguing the lenses were exempt under s. 7(1)37 of the Retail Sales Tax Act as optical appliances sold on prescription.

The trial judge dismissed the appeal, finding the transaction was between the appellant and practitioners without a prescription.

The Court of Appeal allowed the appeal, holding that the 'sale' occurred when the patient received the lenses on prescription, thus qualifying for the tax exemption.

The insurer appealed an arbitration order that included a special award for unreasonably withholding benefits.

On appeal, the insurer brought a motion to admit new and extrinsic evidence.

The insurer sought to introduce evidence of institutional bias within the dispute resolution system, arguing that the use of full-time arbitrators created a reasonable apprehension of bias.

The Director of Arbitrations allowed this evidence to be admitted as extrinsic evidence, finding that the insurer had not waived its right to raise the issue.

However, the Director refused to admit new evidence regarding the insurer's belief about the insured's knowledge of available benefits, as this evidence could have been adduced at the original hearing.

The appellant appealed from a directed issue trial arising out of a dispute over the right to provide cable television services to apartment buildings after the landlord terminated its long-standing arrangement and entered into an exclusive agreement with a competitor.

The Court of Appeal held that the landlord's relationship with the appellant was governed by a contract that permitted termination, and the landlord's lawful exercise of that contractual right could not ground the appellant's tort claim.

Because the contractual component was dispositive, it was unnecessary for the trial judge or the appellate court to determine the broader intentional interference with economic relations issue.

The appeal was dismissed with costs.