Laura Day

Following certification of a class proceeding arising from the collapse of a shopping mall, the court determined the appropriate allocation of costs for the certification motion.

Most defendants did not oppose certification and several entered into settlement agreements regarding costs.

The court distinguished between baseline costs that would have been incurred even if certification had proceeded on consent and additional costs caused by defendants who opposed certification.

The judge concluded that $140,000 represented additional costs attributable to opposition and allocated remaining unpaid costs primarily to the provincial government, whose extensive submissions challenged multiple certification criteria.

Costs were fixed at $15,000 against one defendant and $60,000 against the provincial government, with other amounts accounted for through settlements.

The plaintiffs brought a motion to certify a class action following the collapse of the Algo Centre Mall roof in Elliot Lake, which killed two people and injured dozens.

The proposed class included occupants, tenants, and employees of the mall.

The defendants included the mall owners, builders, engineers, and the Province of Ontario.

The Province opposed certification, arguing it owed no private law duty of care for negligent inspection.

The court found that the pleadings disclosed a valid cause of action for negligent inspection against the Province and that all five prerequisites for certification under s. 5(1) of the Class Proceedings Act, 1992 were met.

The action was certified as a class proceeding.

A defendant electrical contractor brought a motion for summary judgment seeking dismissal of the action and a cross-claim arising from an accident allegedly caused by non-functioning streetlights on a boundary bridge between two municipalities.

The responding municipality argued the contractor should remain in the action pending trial because the municipalities’ respective jurisdiction over the streetlights might still be determined.

The court held that both the municipality and the contractor mutually understood under their Streetlighting Services Agreement that the bridge streetlights were outside the municipality’s jurisdiction.

Because the cross-claim was contractual and there was no possible breach under the agreement as interpreted by the parties’ mutual intention, there was no viable claim against the contractor.

Summary judgment dismissing the action and cross‑claim against the contractor was granted.

The applicant municipalities sought a declaration that their insurers had a duty to indemnify them for damages sought in two underlying actions relating to the expropriation of lands for a Toyota manufacturing plant.

The insurers argued the application was premature as the underlying actions involved substantial disputed facts and potential coverage exclusions, including whether the municipalities gained a personal profit or advantage, or if the claims were for restitution or statutory compensation.

The court dismissed the application, holding that unlike the duty to defend, the duty to indemnify must generally be determined after trial based on findings of fact, and the current record contained too many disputed facts to resolve the coverage issues prematurely.

The representative plaintiff brought a motion for approval of a settlement agreement in a class action arising from the loss of an unencrypted USB key containing the personal information of over 83,000 individuals who received H1N1 vaccines.

The proposed settlement established a claims process for class members who suffered economic harm, with a claim period ending in August 2016, but provided no direct cash payments for anxiety or distress.

Despite objections from some class members regarding the lack of immediate compensation and the length of the claims period, the court approved the settlement as fair and reasonable.

The court noted that the risk of identity theft had largely dissipated over time, making the prospects of success at trial poor, and also approved class counsel fees of $500,000 plus a percentage of future claims.

The Litigation Administrator in a class action sought court approval for its accounts totaling $65,455.25.

The defendants objected, arguing the fees significantly exceeded the initial estimate of $21,500.00.

The court applied the principles for passing a receiver's accounts and found the work was necessary, well done, and the hourly rates were known in advance.

The court approved the accounts up to the end of December 2011, noting that changes in the notice process increased the complexity and expense of the administrator's work.