Odette Soriano

This decision concerns a class action brought by victims and families of the 2018 Danforth Avenue shooting against Smith & Wesson Corp., alleging negligence for failing to implement authorized user technology in its handguns.

The Court of Appeal for Ontario held that the plaintiffs’ negligence claim should proceed as a class action, finding that the claim disclosed a reasonable cause of action and that the certification judge erred by applying a merits-based test at the certification stage.

The court struck the strict liability and public nuisance claims, holding that Canadian law does not recognize such claims against product manufacturers in these circumstances.

The representative plaintiffs, on behalf of a class of Ontario franchisees, sought production of documents from the defendants (Shoppers Drug Mart Inc. and Shoppers Drug Mart (London) Ltd.) to support a “bottom-up” damages assessment for individual class members under section 25 of the Class Proceedings Act, 1992.

The Court of Appeal had previously found Shoppers liable for breach of contract and duty of good faith, and ordered that damages be determined through an individual issues process.

The defendants opposed production on grounds of proportionality, prematurity, and lack of expert evidence.

Justice Glustein granted the motion, ordering production of the requested documents for all class members subject to the 2002 Associate Agreement for the relevant years, finding the request reasonable and proportionate in light of the litigation’s scope and the evidence before the court.

The appellants, representing a class of Ontario Shoppers Drug Mart franchisees, appealed a summary judgment decision regarding their entitlement to Professional Allowances paid by generic drug manufacturers.

The Court of Appeal upheld the motion judge's findings that Shoppers breached the 2002 franchise agreement by retaining the allowances, which constituted 'revenue', but did not breach the 2010 agreement, which explicitly allowed Shoppers to retain such concessions.

The Court also upheld the application of a rolling limitation period and the refusal to award aggregate damages due to the idiosyncratic nature of the profit-sharing model.

However, the Court allowed the appeal regarding the quantification of damages, finding that Shoppers breached its duty of good faith by arbitrarily allocating $129 million as out-of-province rebates to avoid sharing the funds with Ontario franchisees, bringing the total Professional Allowances received to $1.084 billion.

The plaintiffs in a certified class action brought a motion seeking an order to provide official notice to class members regarding the outcome of common issues summary judgment motions, despite pending appeals and cross-appeals.

The defendants objected, arguing that such notice would confuse class members and disputed the sharing of information and costs.

The court granted the plaintiffs' motion, finding that providing notice was necessary to protect the interests of the class members and that the defendants' concerns about confusion were unfounded.

The court emphasized the fiduciary responsibility of class counsel to report to class members throughout the litigation.

In this certified class action, the plaintiff franchisees (Associates) brought a motion for summary judgment against the franchisor, Shoppers Drug Mart, alleging breaches of contract, breaches of the duty of good faith, and unjust enrichment regarding various fees and the retention of Professional Allowances paid by generic drug manufacturers.

Shoppers brought a cross-motion for summary judgment to dismiss the claims, arguing they lacked merit and were statute-barred.

The court dismissed the claims regarding the Optimum Fee and Shoppers Charges, finding no breach of contract or bad faith.

The court also dismissed the unjust enrichment claim for Professional Allowances but found that Shoppers breached the 2002 Associates Agreement (but not the 2010 Agreement) by failing to remit Professional Allowances to the Associates.

The court held that aggregate damages were not viable and directed that the surviving breach of contract and distribution centre claims proceed to individual issues trials, subject to limitation periods.

The plaintiffs sought judicial approval of a $100 million settlement in a class action regarding hidden foreign exchange fees in registered accounts, along with approval of class counsel's legal fees and representative plaintiff honoraria.

The court approved the settlement as fair and reasonable.

However, the court declined to approve the requested $25 million in legal fees based on a straight-line 25% contingency, finding that in a 'mega-fund' settlement, a multiplier and percentage cross-check must be used to avoid a windfall and maintain the integrity of the profession.

The court approved $20 million in legal fees, plus disbursements and taxes, and approved the requested honoraria for the representative plaintiffs.

The plaintiff brought motions to approve a $10 million national settlement in a class action regarding PayPal's foreign currency conversion practices, and to approve class counsel fees and a representative plaintiff honorarium.

The court found the settlement fair, reasonable, and in the best interests of the class, noting the significant litigation risks and the efficient direct-deposit distribution protocol.

The court also approved class counsel's 25% contingency fee request and awarded a $10,000 honorarium to the representative plaintiff for his exceptional efforts in initiating the litigation.

In a certified class action by franchisees against Shoppers Drug Mart regarding the retention of professional allowances, the plaintiffs brought a discovery motion seeking to compel answers to refused questions, to examine three non-party former employees, and to obtain documentary production from two non-party generic drug manufacturers.

The court dismissed the motion, finding that the defendants had already provided sufficient information to allow the plaintiffs to argue their case, and that further discovery would be irrelevant and disproportionate.

The court ordered a limited search for documents related to 'over and above' amounts but otherwise denied the relief sought.

The plaintiffs brought a class action alleging that the defendant financial institutions breached their trust and fiduciary duties by failing to disclose markup fees charged on foreign currency conversions in registered accounts.

The parties brought cross-motions for summary judgment on the common issues, and the defendants moved for decertification.

The court found that the defendants breached the trust agreements by failing to disclose the amount of the markup fees.

The court ordered an accounting of profits to be determined at a reference, emphasizing the need to deter fiduciary misconduct.

The court dismissed the plaintiffs' claims for an elevated interest rate and punitive damages, and dismissed the defendants' motion to decertify the class action.

The applicant, Cassie Hodge, brought a motion for court approval of a class action settlement, class counsel's legal fees, and an honorarium for herself.

The class action alleged that the respondents, Gary Neinstein and Neinstein & Associates LLP, breached the Solicitors Act and fiduciary duties by charging additional costs and excessive disbursements in motor vehicle personal injury claims.

After extensive litigation and mediation, the parties reached a settlement.

The court approved the settlement as fair, reasonable, and in the best interests of the class, considering the litigation risks.

Class counsel's fee request of $1.0 million plus HST was approved, and an honorarium of $10,000 for the representative applicant was approved, reduced from the requested $20,000, acknowledging her extraordinary contribution.

Appeal of a Divisional Court decision certifying a class proceeding brought by a former client against a personal injury law firm for alleged violations of the Solicitors Act relating to contingency fee agreements.

The applicant alleged the firm violated section 28.1(8) by including costs in its fees without court approval, charged interest contrary to section 33, and breached fiduciary duties and contracts.

The Court of Appeal dismissed the firm's appeal and allowed the applicant's cross-appeal in part, upholding certification of the class proceeding with 18 of 19 common issues (deleting one issue regarding whether the firm actually took amounts for costs) and certifying two additional common issues regarding breach of fiduciary duty and punitive damages.

In a class action regarding price-fixing of DRAM devices, a settlement and distribution protocol were approved by the courts.

A class member subsequently alleged that the distribution protocol contravened the Ontario Human Rights Code by requiring family members residing in the same household to pool their claims, which allegedly discriminated based on family and marital status.

The court held a motion for directions to determine the issue.

The court ruled that the Human Rights Code does not apply to court orders, including a court-approved distribution protocol, as they are not 'services' under the Code.

Furthermore, even if the Code applied, the pooling requirement did not constitute prima facie discrimination, and any disadvantage was justified to prevent windfall compensation and encourage claims.

A class member challenged a court-approved Distribution Protocol in a class action settlement, alleging it contravened the Ontario Human Rights Code by requiring family members to pool their claims for minimum compensation, thereby discriminating on the basis of family and marital status.

The court held that the Human Rights Code does not apply to court orders or distribution schemes under the Class Proceedings Act.

Furthermore, even if the Code applied, the pooling requirement did not constitute discrimination, as it was a justified mechanism to encourage claims while preventing windfall overcompensation.

In a certified class proceeding brought by pharmacy franchisees against a franchisor, the plaintiffs moved to finalize a discovery plan for the upcoming common issues trial.

The dispute concerned whether the defendant franchisor should produce source documents underlying accounting reports regarding professional allowances received from drug manufacturers.

The court emphasized the proportionality principle in discovery, noting that the plaintiffs had not yet reviewed the reports already agreed to be produced and that further requests might therefore be speculative or unnecessary.

The court categorized the requested document productions as improper, premature, or appropriately satisfied through representative sampling.

The discovery plan was finalized accordingly, requiring samples for certain categories while denying or deferring others.

The defendants brought a motion under Rule 21.01(1)(b) of the Rules of Civil Procedure to strike an action commenced by a corporate religious entity seeking declarations regarding the removal of a bishop and a church council member from ecclesiastical positions.

The court considered whether the corporate plaintiff had private law standing to seek declaratory relief concerning religious appointments and governance within the church.

It held that the corporation’s objects did not give it a legal interest in determining who held ecclesiastical offices or church administrative roles.

Because the dispute concerned the personal rights of individuals within a religious organization rather than the corporation’s legal rights or property interests, the corporation lacked standing.

The statement of claim was struck for disclosing no reasonable cause of action.

The applicant sought to certify a class proceeding against her former lawyers, alleging they breached the Solicitors Act by improperly including recovered costs in their contingency fees without court approval.

The court dismissed the certification motion, finding that while the pleadings disclosed a cause of action and an identifiable class could be defined, the claims lacked commonality.

The court held that determining whether the contingency fee agreements were fair and reasonable required highly individualized assessments of each solicitor-client relationship, making a class proceeding unmanageable and not the preferable procedure.

In a proposed class proceeding under the Class Proceedings Act, 1992, the moving party brought an omnibus motion seeking multiple procedural and evidentiary orders affecting the record for a certification motion.

Most of the relief sought was either abandoned or dismissed, with only minor unopposed amendments granted.

The court held that the respondents were entitled to costs because the moving party was largely unsuccessful.

Although the respondents sought over $30,000 including substantial indemnity costs for abandoned claims, the court rejected punitive costs and applied the partial indemnity scale.

A proportionate costs award of $20,000 all-inclusive was ordered.

Following the abandonment of a motion seeking court approval of a third‑party litigation funding agreement in a proposed class proceeding, the respondents sought costs under Rule 37.09(3) of the Rules of Civil Procedure.

The applicant argued that the costs decision should be deferred to the certification motion, that no costs should be awarded due to the novelty of the issues, or alternatively that a reduced amount should be ordered.

The court held that the normal rule applies that a responding party is entitled to costs when a motion is abandoned.

While costs were warranted, the amount claimed on a partial indemnity basis was excessive.

The court reduced the award and ordered costs payable to the respondents in the amount of $7,000, all inclusive.

The plaintiffs brought a motion for approval of a class action settlement and approval of class counsel fees under the Class Proceedings Act, 1992.

The class action alleged negligent design and manufacture of elevator “sheave jammer” braking devices and breach of maintenance contracts following a regulatory order requiring their replacement.

The parties reached a mediated settlement establishing a $12 million settlement fund for class members who incurred costs replacing the devices.

The court held the settlement fell within the range of reasonableness given litigation risks, including uncertainty in proving defectiveness and potential reduction of damages through betterment arguments.

The court approved the settlement, class counsel fees, and a $15,000 honorarium for one representative plaintiff, but declined compensation for the second representative plaintiff.