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.

The plaintiffs brought a motion for leave to appeal an order excluding from the class for certification persons who claim damages for purchases of packaged bread directly or indirectly sold by a defendant producer without being resold by a defendant retailer.

The Divisional Court granted the motion for leave to appeal on this issue and reserved costs to the panel hearing the appeal.

The defendants brought a motion for leave to appeal an order of Morgan J. dated December 31, 2021.

The Divisional Court dismissed the motion for leave to appeal.

Costs were awarded in favour of the plaintiffs in the amount of $15,000 all inclusive, payable jointly and severally by the defendants.

Following the successful certification of a class proceeding arising from a residential high-rise fire, the court determined the costs of the certification motion.

The plaintiffs sought over $435,000 in costs from the defendant, while the third parties sought their costs from the plaintiffs.

Applying the Pearson factors, the court awarded the plaintiffs $348,056.04 in costs against the defendant.

The court also found that the plaintiffs had drawn the third parties into the certification motion by amending the common issues, and ordered the plaintiffs to pay $45,200 in costs to the third parties.

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.

The plaintiff brought a motion to certify a class action against FCA Canada Inc. (Chrysler Canada) regarding defective Takata airbags installed in its vehicles.

The plaintiff alleged negligence for pure economic losses associated with the dangerous product.

The court analyzed the certification criteria under s. 5 of the Class Proceedings Act, 1992.

The court found that the cause of action, identifiable class, common issues, and representative plaintiff criteria were met or could be met.

However, the court held that the preferable procedure criterion was not satisfied.

The court reasoned that Chrysler Canada's existing recall program was preferable to a class action, especially given the delay in prosecuting the action and the limited scope of recovery for pure economic loss under current tort law.

The certification motion was dismissed.

At a case management conference in a class proceeding, certain defendants requested a timetable for a motion to dismiss the action for delay under s. 29.1 of the Class Proceedings Act, 1992.

The plaintiffs sought to file material, conduct written interrogatories, or summons witnesses to explore why other defendants took no position on the motion.

The court denied the plaintiffs' request for interrogatories and cross-examinations, finding them unnecessary, irrelevant, and likely to breach privilege.

Exercising its case management powers under s. 12, the court directed the motion to proceed in writing without cross-examinations and set a timetable.

The court held a case conference to settle the terms of a certification order following a decision to certify a class action regarding alleged price-fixing of packaged bread.

The court reviewed competing draft orders and approved the producer defendants' draft with specific amendments, including adjustments to the definition of packaged bread, the class definition, and the retention of constructive trust as a common issue.

The defendants brought a motion for leave to appeal an order of the Superior Court of Justice.

The Divisional Court dismissed the motion for leave to appeal and awarded agreed costs of $15,000 to the responding plaintiff.

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.