Justine Smith

This is a class proceeding settlement approval decision arising from a fire on November 12, 2019, in the parking garage of Westcourt Place, an apartment building in downtown Windsor.

The building contained approximately 150 residential apartments and 80,000 square feet of commercial space.

The occupants were displaced and sued the defendant owner and manager.

The parties reached a settlement of $7,300,000 after mediation and protracted negotiations.

The court approved the settlement despite objections from the City of Windsor and some residential tenants.

The court rejected the City's objection on the basis that it failed to opt out of the class proceeding by the deadline and did not establish excusable neglect.

The court also approved counsel fees of $2,190,000 plus disbursements and taxes under a 30% contingency fee agreement, and declined to award honoraria to the representative plaintiffs.

The defendants moved to strike the plaintiff's claim for abuse of process, arguing that the prior decision in Leavens v. Schwartz (the "Shotgun Decision") had finally disposed of the matter.

The plaintiff sought to challenge a buy/sell transaction that had been enforced by the court, alleging that the defendants had engaged in a secret investment arrangement with third-party financiers without disclosure.

The court found that the claim constituted an abuse of process because the underlying subject matter was identical to the prior proceeding, the issues could have been raised before the prior judge, and the plaintiff was essentially seeking to undo a final court decision with which he was dissatisfied.

The court struck the claim without leave to amend.

The Court of Appeal for Ontario considered appeals and cross-appeals from a certification decision in a proposed class action regarding alleged defects in BMW vehicles equipped with N20 engines.

The court found that the certification judge erred in certifying causes of action for negligent design/manufacturing resulting in repair costs and in defining the class to include persons who incurred such costs.

The court held that neither of the proposed representative plaintiffs had a valid cause of action and set aside the certification order.

The Court of Appeal for Ontario considered an appeal and cross-appeal, along with motions to quash.

The parties agreed that the appeal and cross-appeal were sufficiently interrelated to be heard together to avoid duplication and ensure consistency.

Consequently, the court, on consent, dismissed both motions to quash without costs, ordering the consolidated appeal and cross-appeal to proceed.

The plaintiff, Jeff Mailloux, brought a motion under s. 29 of the Class Proceedings Act, 1992, for leave to discontinue a proposed class action against Nissan Canada Inc. with prejudice and without costs.

Nissan consented to the motion.

The class action concerned a products liability claim for pure economic losses related to defective Takata airbag inflators.

The motion for discontinuance was brought due to significant changes in the legal landscape regarding compensation for pure economic loss from negligent supply of faulty goods, which greatly diminished the prospects of a substantial economic recovery for the class members.

The court granted the motion, finding that the action was commenced for a proper purpose, putative class members were not prejudiced, and the proposed notice of discontinuance was satisfactory.

This is a motion to discontinue a proposed class action concerning automobile airbags that had been recalled.

The action, which had not been certified, sought compensation for pure economic loss.

Due to developments in case law, particularly the Supreme Court of Canada's clarification on pure economic loss for defective products, the litigation risk increased, and the prospects for certification and substantial economic recovery diminished.

Class Counsel sought leave to discontinue the action with prejudice and without costs.

The court granted the motion, finding that the action was commenced for a proper purpose, the test for discontinuance was satisfied, and putative class members were not prejudiced, as limitation periods remained suspended.

The plaintiffs in a proposed class action sought court approval to discontinue the action without costs and without prejudice to putative class members, except for the named plaintiffs.

The action concerned alleged negligent design of a 'Body Control Module' in certain vehicles.

The discontinuance was sought due to recent Supreme Court of Canada jurisprudence limiting recovery for pure economic losses in product liability cases, which significantly curtailed the prospect of a substantial award for the class.

The defendants consented to the discontinuance.

The court granted the motion, finding that the action was commenced for a proper purpose, and the discontinuance would not prejudice putative class members, as limitation periods remained suspended until discontinuance.

The plaintiffs in a proposed class action sought court approval to discontinue the action without costs and without prejudice to putative class members, except for the named plaintiffs.

The action concerned alleged negligent design of a transmission shift cable in certain vehicles.

The motion for discontinuance was brought due to recent Supreme Court of Canada jurisprudence limiting recovery for pure economic losses in product liability cases, which significantly curtailed the prospect of a substantial award for the putative class.

The defendants consented to the discontinuance.

The court granted the motion, finding that the action was commenced for a proper purpose, the putative class members were not prejudiced, and the proposed notice of discontinuance was adequate.

Porter Airlines and Nieuport Aviation disputed the calculation of terminal fees at Billy Bishop Airport under a Licence Agreement.

Porter argued it could pay fees based on a variable daily slot allocation and claimed force majeure due to the COVID-19 pandemic to excuse non-payment.

Nieuport argued fees were based on a fixed, recurring number of daily slots and counterclaimed for unpaid fees.

The court held that the Licence Agreement required payment based on a fixed number of recurring daily slots.

The court also found that the COVID-19 pandemic did not trigger the force majeure clause to excuse Porter's payment obligations.

Porter was ordered to pay over $131 million in damages for unpaid terminal fees, while Nieuport's recourse under a guarantee was limited to specified aircraft.

This decision concerns the costs arising from the dismissal of the plaintiff's motion for leave to commence a secondary market securities class action and to certify the action.

The defendants sought substantial indemnity costs, while the plaintiff argued for partial indemnity and a discount due to the alleged novel and public interest nature of the litigation.

The court awarded partial indemnity costs of $693,805.39, finding no basis for substantial indemnity as there was no reprehensible conduct or unproven fraud allegations.

The court also rejected the argument for a discount under s. 31(1) of the Class Proceedings Act, concluding that the issues were not novel or of broad public interest, particularly as they had been previously litigated.

A minor deduction was made for online research disbursements.

This decision concerns a motion for certification of a class action following a fire in an apartment building.

The court addressed preliminary issues of jurisdiction (Superior Court vs. Landlord and Tenant Board), admissibility of an expert report, and the involvement of third parties.

The court found that the Superior Court had jurisdiction because the total amount claimed exceeded the LTB's monetary limit, even if individual claims might be smaller.

The expert report was deemed admissible for certification purposes.

The class action was certified, with modifications to the proposed class definition and common issues.

Specifically, the court removed references to "contractors" and "subcontractors" from common issues related to the Third Parties, as no direct cause of action was pleaded against them by the plaintiffs.

The court emphasized access to justice and behaviour modification as key factors favoring certification.

This is a costs endorsement following an appeal.

The appellants argued that their appeal raised novel issues in the public interest, warranting no costs award.

The court rejected this, finding the appeal involved the application of well-established legal principles.

The respondent, GlaxoSmithKline Inc., successfully resisted the appeal and was awarded partial indemnity costs, fixed at $25,000, inclusive of disbursements and taxes, limiting the award to costs associated with time spent by two senior lawyers.

The appellant, Stericycle ULC, appealed an order dismissing its application for a declaration that it, rather than Daniels Sharpsmart Canada Limited, was the primary supplier for Provincial Health Services Authority (PHSA) under a public tendering process.

Stericycle argued that the application judge erred in contract interpretation, allowing impermissible bid repair, and failing to properly apply the duty of good faith.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error in the application judge's interpretation of the "Six Month Provision" or the contract start date.

The court also found no breach of the duty of good faith or honest performance by HealthPRO or PHSA, as their actions were consistent with the contract's purpose and Stericycle's reasonable expectations.

The appellants appealed a trial judgment that dismissed their action against GlaxoSmithKline (GSK), alleging that an H1N1 vaccine manufactured by GSK caused their five-year-old daughter's death.

The appeal raised issues concerning GSK's duty to warn (including the learned intermediary rule), its post-marketing commitments, the inference of negligence from circumstantial evidence, and costs.

The Court of Appeal dismissed the appeal, affirming the trial judge's findings that GSK adequately warned the learned intermediary (the physician), met its post-marketing obligations, and that the appellants failed to prove negligence or causation on a balance of probabilities.

The court also upheld the trial judge's discretionary costs award.

The plaintiff brought a motion to certify a class action against the manufacturers of COLD-FX products, alleging that representations that the products were 'proven by science' or 'clinically proven' to reduce cold and flu symptoms were false and misleading.

The court found that the plaintiff met all the requirements for certification under section 5 of the Class Proceedings Act.

The court held that the claims under the Consumer Protection Act, the Competition Act, and for unjust enrichment disclosed valid causes of action, as reliance is not required for these claims.

The court certified the class and the proposed common issues against Bausch Health Canada Inc. and Valeant Canada LP, finding that a class proceeding was the preferable procedure.

The applicant, an incumbent biomedical waste disposal provider, challenged the award of a new primary supplier contract to a competitor.

The applicant alleged that the respondents engaged in bid repair and breached their duty of fairness by allowing the competitor to delay the implementation of services and assisting them with regulatory approvals post-award.

The court dismissed the application, finding that the duty of fairness to unsuccessful bidders ended once the contract was awarded, and that the post-award communications were operational in nature and did not constitute bid repair.

The court also rejected the argument that the respondents had irrevocably elected the applicant as the primary supplier by utilizing their services during the transition period.

The plaintiff, Robert Drynan, brought a motion to approve a third-party litigation funding agreement in a class action against Bausch Health Companies Inc. and related entities, alleging misleading marketing of COLD-FX® products.

The court addressed the defendants' objections concerning security for costs, litigation autonomy, overcompensation, and access to justice.

After amendments to the funding agreement to cap recovery for the funder and class counsel at 33.3% of proceeds and defer court approval for certain expenses, the court approved the agreement, finding it fair, reasonable, and conducive to access to justice, while protecting the defendants' interests.

The plaintiffs brought an action against GlaxoSmithKline following the sudden and unexplained death of their five-year-old daughter, who died five days after receiving the H1N1 vaccine (Arepanrix).

The plaintiffs alleged that the manufacturer breached its standard of care by failing to adequately test the vaccine and failing to warn of its risks, and that the vaccine caused the child's death.

The court dismissed the action, finding no expert evidence to establish a breach of the standard of care regarding the vaccine's testing, approval, or disclosure of risks.

Furthermore, the court rejected the plaintiffs' expert evidence on causation, relying instead on the forensic pathologist and epidemiological experts who concluded there was no evidence linking the vaccine to the child's death.

The defendant, Toronto Hydro Corporation, brought a motion to dismiss or stay the action due to the plaintiffs' failure to pay approximately $45,000 in interlocutory costs orders.

The court, balancing the interests of allowing a litigant their day in court and enforcing court orders, granted the plaintiffs a final opportunity to comply with the outstanding costs orders.

The action was stayed, and the plaintiffs were ordered to pay the costs in six equal monthly installments, with leave for the defendant to seek dismissal if payments default.