John C. Teal

The court approved a class action settlement regarding balcony guardrail failures at the Matrix Towers in Toronto, which led to residents being deprived of balcony access for up to 3.5 years.

The settlement provides a lump sum per unit, regardless of unit size, and includes approval of class counsel fees and disbursements but denies honoraria for the representative plaintiffs.

The decision reviews the risks of litigation, the fairness of the settlement, comparator cases, and the legal standards for settlement approval, counsel fees, and honoraria.

The Court of Appeal for Ontario dismissed an appeal by S.D.M.O. Industries (Kohler-SDMO) and Kohler Co., who sought to stay proceedings on the basis of lack of jurisdiction or a forum selection clause favoring a French court.

The court held that Ontario had jurisdiction, the forum selection clause was not proven to be valid or applicable, and the motion judge made no reviewable error.

The appeal was dismissed with costs.

The plaintiffs brought an action for damages arising from catastrophic failures of emergency generators at a hospital.

Defendants SDMO and Kohler moved to stay proceedings, arguing lack of jurisdiction or that Ontario was not an appropriate forum.

The court found Ontario had jurisdiction simpliciter as the torts (property damage, failure to warn, negligent misrepresentation) occurred in the province.

The court also found the forum selection clause in the contract between SDMO and GAL Power was not properly before the court and would not apply to third parties or be enforceable against GAL Power.

Finally, the court determined Ontario was the most appropriate forum, considering the location of parties, witnesses, and evidence, and the existence of related proceedings.

The motion for a stay was dismissed.

The defendants, Toronto Hydro and the City of Toronto, sought leave to issue third-party claims against the plaintiffs (a building owner and two tenants) and various former owners and property managers for contribution and indemnity following a fire in a hydro vault.

The plaintiffs opposed the motions, arguing that covenants to insure in their leases shielded them from liability to each other, rendering the third-party claims legally untenable under the Supreme Court's decisions in T. Eaton Co. and Giffels.

The court granted leave in part, allowing claims against parties in capacities not shielded by the insurance covenants (e.g., former owners, property managers), but dismissed the motions regarding claims against the landlord and tenant in their capacities governed by the leases.

The court also rejected the argument that covenants to insure should be treated as exclusion clauses subject to public policy exceptions.

Following a consent order dismissing the action against several defendants and striking the plaintiff's fresh as amended statement of claim, the successful defendants sought costs.

The court awarded full indemnity costs to a defendant lawyer due to unfounded allegations of fraud and breach of fiduciary duty.

Other defendants were awarded costs on a partial indemnity basis.

The court rejected the plaintiff's argument that costs should be limited or denied due to procedural steps or prior cost awards.

The plaintiff was ordered to pay substantial costs to the moving parties.