Jonathan Joseph Jennings Foreman

The Court of Appeal for Ontario dismissed an appeal by the Attorney General of Canada from a certification order of a class action brought by immigration detainees.

Between May 2016 and July 2023, the Canada Border Services Agency placed approximately 8,360 immigration detainees in provincial and territorial prisons instead of Immigration Holding Centers.

The respondents challenged this practice as violating sections 7, 9, 12, and 15 of the Canadian Charter of Rights and Freedoms, and as constituting negligence.

The motion judge certified the class action, finding that the Charter and negligence claims disclosed reasonable causes of action and that common issues existed.

The appellate court upheld the certification, finding no palpable and overriding errors in the motion judge's analysis.

Two proposed class actions were brought against consumer loan companies for allegedly engaging in unlawful business practices that misled consumers into signing loan agreements in breach of consumer protection legislation.

The plaintiffs sought interim motions for temporary stays of hundreds of related proceedings (primarily in Small Claims Court) pending final disposition of the class actions.

At a case conference, the court determined the sequencing of motions and set a litigation timetable.

The court ordered that the interim stay motions be heard before certification, finding that fairness and efficiency dictated this sequencing to prevent the defendants' enforcement actions from effectively mooting the class proceedings.

This is a sentencing decision for Zlalame Alemu, who was found guilty of multiple offences including assault with a weapon, assault causing bodily harm, failing to comply with a release order, residential break and enter, mischief, and threatening a peace officer.

The court considered aggravating factors such as the serious nature of the injuries, the unprovoked attacks, and the accused's lengthy criminal record, including prior convictions for similar offences.

Mitigating factors included the accused's expression of remorse and his difficult life experiences, including systemic anti-Black racism and mental health issues, as detailed in a Pre-Sentence Report and an Enhanced Pre-Sentence Report.

The court applied principles from R. v. Morris regarding anti-Black racism and R. v. Hills regarding conditions of incarceration.

While acknowledging the impact of systemic racism, the court found it did not significantly reduce moral culpability for these specific violent offences given the accused's recidivism and lack of engagement with past rehabilitative efforts.

The court imposed a global sentence of 30 months, which, after applying credit for pre-sentence custody and substantial mitigation for incarceration conditions, resulted in one further day in custody, followed by a three-year probation order.

In this proposed class action, the plaintiffs sought leave to proceed under the Securities Act and certification as a class action under the Class Proceedings Act, 1992, against Kew Media Group Inc. for statutory and common law misrepresentation.

The alleged misrepresentations concerned Kew's financial health and compliance.

Kew consented to the orders.

The court granted leave to proceed and certification, defining the class and common issues, and appointed plaintiffs' counsel as class counsel.

The defendant, facing a sexual assault charge, brought an application to exclude evidence of the complainant's prior sexual disinterest in him.

The complainant had no memory of the sexual activity due to intoxication, and the Crown intended to adduce evidence that she was not sexually interested in the defendant in the hours leading up to her memory blackout as circumstantial evidence of non-consent.

The defence argued this evidence lacked probative value.

The court dismissed the application, ruling that evidence of sexual disinterest closely connected by time and circumstance to the alleged assault has probative value and is admissible to determine subjective consent, distinguishing it from more remote expressions of disinterest.

The defendant, Garrett Depippo, was charged with impaired driving and operating a motor vehicle with an illegal blood alcohol content.

The court addressed whether the roadside breath demand satisfied the "immediacy" requirement and if the defendant had a realistic opportunity to consult counsel.

The court found the immediacy requirement was met and there was no realistic opportunity for counsel at roadside, dismissing the Charter application.

The court then found the defendant guilty of impaired driving based on the totality of evidence, including his own testimony and poor judgment.

Following a Supreme Court decision (R. v. Breault), the excess blood alcohol count was stayed under the Kienapple principle.

The accused, Christian Bolemwa, was charged with impaired operation of a conveyance and operating a conveyance with a blood alcohol concentration over 80 mg%.

During the trial, a Charter application was brought alleging violations of sections 8, 9, 10(a), and 10(b).

The court found that the police had reasonable grounds to detain and arrest the accused, and that his rights under sections 8, 9, and 10(a) were not violated.

Regarding section 10(b), the court determined that the accused's circumstances did not constitute "special circumstances" requiring enhanced police diligence, as he indicated understanding his rights and was provided French-speaking duty counsel.

The court found the accused guilty of both counts, concluding that his ability to operate a conveyance was impaired by alcohol beyond a reasonable doubt, rejecting mental health concerns as a plausible alternative explanation for his behavior.

The defendant, Vinusan Arudselvam, was charged with failing or refusing to comply with a breath demand under s. 320.15(1) of the Criminal Code following a motor vehicle accident.

The defence argued that due to chest pain from the accident, he had a reasonable excuse for not providing a suitable sample and challenged the mens rea requirement for the offence.

The court ruled that the breath demand was lawful and that the mens rea for the offence is knowledge that a demand has been made, not specific intent to refuse.

However, the court found the defendant's testimony credible regarding his chest pain and accepted that his injury constituted a reasonable medical excuse, making compliance extremely difficult or painful.

The police investigation was deemed rushed and poorly conducted, particularly regarding the officer's failure to ascertain the defendant's language difficulties or medical distress.

Consequently, the charge was dismissed.

The accused, Khanij Chopra, was charged with impaired operation of a conveyance, "over 80," and possession of a controlled substance.

The defense filed a Charter application alleging violations of sections 8, 9, 10(a), and 10(b), seeking to exclude breath samples and the controlled substance.

The Crown sought to admit the accused's utterances.

The court found significant Charter breaches due to prolonged unlawful detention and denial of the right to counsel, leading to the exclusion of the breath samples and the controlled substance under section 24(2) of the Charter.

Consequently, the accused was found not guilty of the "over 80" and possession charges.

For the impaired operation charge, the court found reasonable doubt regarding impairment at the time police located the accused, leading to an acquittal on that count as well.

The plaintiff in a class action sought court approval for a partial settlement agreement with the Kamaya defendants, who were accused of participating in a price-fixing conspiracy for linear resistors.

The settlement included a monetary payment and cooperation benefits for the plaintiff class.

The court, applying principles from the Class Proceedings Act, 1992, and relevant case law, found the settlement to be fair, reasonable, and in the best interests of the class, despite the monetary amount being at the lower end of the reasonable zone.

The decision emphasized the value of arm's-length negotiation, counsel's recommendation, and the strategic benefits of early cooperation from settling defendants in complex conspiracy litigation.

This motion concerned the approval of class counsel's retainer agreement, fees, and disbursements following a partial settlement in a price-fixing class action.

The plaintiff class counsel sought approval for 25% of the settlement amount ($2.35 million) as fees, plus disbursements and interest.

The court reviewed the retainer agreements for compliance with the Class Proceedings Act, 1992, and assessed the reasonableness of the fees and disbursements based on established factors.

The court approved the retainer agreements and the requested fees and most disbursements, but declined to approve interest on disbursements at this stage, pending further developments in the ongoing litigation.

The plaintiff sought court approval for a class action settlement agreement with the Panasonic defendants in a price-fixing conspiracy action concerning linear resistors.

The settlement included a monetary payment of $2,350,000 and significant cooperation from the Panasonic defendants to assist in prosecuting the action against non-settling defendants.

The court approved the settlement, finding it fair, reasonable, and in the best interests of the class, considering the arm's length negotiations, the benefits of cooperation, and the risks of continued litigation.

However, the court rejected a proposed term in the draft order that would allow class counsel to use settlement funds for future disbursements, citing concerns about retainer agreements and counsel's financial risks.

This is the third appeal in a class action arising from the acquisition of London Life by Great-West Life.

The class alleged that participating policy account (PAR) transactions violated the Insurance Companies Act.

The trial judge found breaches and awarded class counsel fees of $16.4 million with a first charge over the $56.43 million returned to PAR accounts, awarded $4 million in partial indemnity costs to the class, and imposed a levy in favour of the Law Foundation of Ontario.

The appellants challenged the class counsel fees, costs award, and levy.

The majority upheld all trial judge decisions, while the dissent argued that no monetary award was made to the class and therefore no charge could attach to the PAR accounts.

The plaintiffs moved under Rule 59.06(2)(c) to enforce a prior trial judgment's prohibition against the defendants debiting defence costs from participating accounts.

The defendants had allocated 50% of legal costs to these accounts prior to the judgment without seeking leave.

The court found that the prohibition order, which enjoined the defendants from debiting "any costs or expenses incurred... in the defence of these actions," applied retrospectively to all costs, whenever incurred, and was not merely prospective.

The court rejected the defendants' functus officio argument, affirming its jurisdiction under Rule 59.06(2)(c) to carry its orders into operation.

The defendants were ordered to move for leave to charge the previously allocated legal costs.

This endorsement addresses the approval of class counsel fees, plaintiffs' costs, defendants' costs, and the Law Foundation of Ontario's levy following a decade-long class action concerning the legality of Par account transactions (PATs) by London Life and Great-West Life.

The court approved class counsel fees of $16.4 million, found the plaintiffs entitled to $4 million in partial indemnity costs from the defendants, and denied the defendants' claim for costs.

It also determined that the Law Foundation of Ontario was entitled to a levy of $1,520,346.50 (repayment of disbursements) plus 10% of the net monetary award ($4,030,000), totaling $5,550,346.50, to be paid from the participating accounts.

The court clarified that a "monetary award" for the purposes of the Class Proceedings Act and the Law Society Act includes funds paid to the benefit of class members through participating accounts, even if not directly distributed to individuals.

This decision addresses an application by the Representative Plaintiffs and Class Counsel in a settled class action for various relief related to the administration and distribution of an $80 million settlement fund.

The application sought orders to adjust small claims, distribute surplus monies, approve payment of the remaining legal fee holdback, approve disbursements for Class Counsel and other legal services, and establish a holdback for future disbursements.

The Ontario court, after conferring with parallel proceedings in British Columbia and Québec, granted the application, adopting the analysis of the decisions from the other two provinces.

Following a prior trial and a partial appeal, the court conducted a rehearing to determine the appropriate remedy in a certified class proceeding concerning participating account transactions and an unlawful pre‑paid expense asset used by life insurance companies.

The Court of Appeal had upheld the finding of illegality but directed the trial judge to determine the monetary amounts required to unwind the transactions and restore funds to participating policyholder accounts.

The central disputes concerned the calculation of merger synergy deductions, whether historical amortization charges should be deducted when determining the benefit received by participating accounts, the interpretation of a 6.91% return provision, and the appropriate “effective date” for unwinding the transactions.

The court concluded that amortization expenses since 1997 must be deducted to reflect the “no contribution/no benefit” principle and interpreted the Court of Appeal formula as adding, not subtracting, the 6.91% return to the participating accounts.

The court fixed December 31, 2011 as the effective date and ordered that $284,675,000 be paid to the participating accounts, with cancellation of the pre‑paid expense asset and related amortization charges.

The plaintiffs brought a motion to certify two actions as class proceedings for settlement purposes under the Class Proceedings Act, 1992 in relation to alleged price-fixing of DRAM (dynamic random access memory) devices.

The actions alleged breach of Part IV of the Competition Act, civil conspiracy, and tortious interference with economic interests against numerous international semiconductor manufacturers.

Following earlier settlement with one defendant, additional settlements were reached with several defendants totaling substantial monetary payments and cooperation commitments.

The court held that the criteria for certification under s. 5(1) of the Class Proceedings Act, 1992 were satisfied and approved certification for settlement purposes.

The court further determined that no additional opt‑out period was required because class members had already been provided a valid opportunity to opt out during the earlier settlement process.

Following dismissal of a defendant law firm’s summary judgment motion in a securities class proceeding, the court addressed costs of the motion.

The plaintiff sought $150,000 in partial indemnity costs, asserting extensive preparation and the importance of the motion.

Applying Rule 57 of the Rules of Civil Procedure and s. 31(1) of the Class Proceedings Act, 1992, the court considered indemnity principles, proportionality, complexity, and the parties’ reasonable expectations.

Because the motion raised novel issues that would ultimately be determined at trial and did not resolve the merits, the court fixed costs but ordered them payable in the cause.

Costs were set at $100,000 all-inclusive on a partial indemnity basis.

In a certified class proceeding alleging a price-fixing conspiracy in the market for DRAM (dynamic random access memory) devices contrary to Part IV of the Competition Act and related torts, the representative plaintiffs sought court approval of a negotiated settlement with one defendant.

The settlement required the settling defendant to pay $5.75 million for the benefit of class members in Ontario, British Columbia, and Québec and to provide extensive cooperation in the ongoing litigation against non-settling defendants.

The agreement also included a bar order preventing contribution and indemnity claims against the settling defendant while permitting discovery cooperation and proportional liability determinations at trial.

Applying established class action settlement approval principles, the court concluded the settlement was fair, reasonable, and in the best interests of the class.

The settlement approval order was granted.