Paul D. Mack

The defendant/plaintiff by counterclaim, Durham Label Inc., brought a motion seeking costs for wasted discovery time and a further and better affidavit of documents from the plaintiff/defendants by counterclaim (Labow Defendants).

The court dismissed the motion, finding that the request for further documents should be addressed after examinations for discovery, and that a motion for interim costs thrown away is generally not appropriate during the course of a proceeding.

Following the settlement of a class proceeding regarding abortive purchases of hotel units, the Claims Administrator submitted its report detailing the distribution of the $5.75 million settlement fund.

The court reviewed the report, noting a 71% take-up rate and the extensive work performed by Class Counsel to assist class members.

Satisfied with the administration process, the court approved the Claims Administration Report pursuant to s. 27.1(17) of the Class Proceedings Act, 1992, and authorized the release of the $950,000 holdback for Class Counsel fees.

The plaintiffs brought a motion for settlement and fee approval in a certified class proceeding against the defendant developer regarding abortive purchases of hotel condominium units.

The court approved the $5.75 million settlement as fair and reasonable, noting it was a modest success given the litigation risks.

The court also approved class counsel's fee of $2.2 million, with $1.25 million payable immediately and a $950,000 holdback pending final distribution.

A motion by former, disqualified class counsel to approve a fee-sharing agreement with current class counsel was dismissed, as the former counsel had been disqualified, assumed no ongoing risk, and provided no services under the current retainer.

The parties in a certified class proceeding regarding purchasers of hotel units in the Trump Tower sought a consent order approving the form and content of the proposed Notice of Settlement Approval Hearing.

The court reviewed the proposed notice plan, which included direct mail, email, a dedicated website, and a Facebook page to reach geographically dispersed class members.

Finding the notice and notice plan satisfactory under section 27.1(8) of the Class Proceedings Act, 1992, the court granted the order.

The plaintiffs (purchasers in a real estate transaction) brought a motion to stay or dismiss a separate action commenced by the defendant real estate brokerage for unpaid commission, arguing it should have been brought as a counterclaim and was an abuse of process.

The defendant brokerage brought a cross-motion to transfer the plaintiffs' action from Toronto to Oshawa, where multiple related actions were already pending.

The court dismissed the plaintiffs' motion, finding it was not an abuse of process for the brokerage to commence a separate action given its dual role as plaintiff and defendant with separate counsel.

The court granted the cross-motion to transfer the Toronto action to Oshawa, noting the property, witnesses, and related proceedings were all located in the Oshawa area.

The Representative Plaintiffs sought substantial or partial indemnity costs following a successful conditional certification motion in a class action.

The court awarded partial indemnity costs of $35,000 for the certification motion and $1,000 for costs submissions.

The court rejected substantial indemnity, finding the defendant's conduct in resisting certification was not egregious and did not warrant a punitive award.

It also found the plaintiff's Offer to Settle ill-advised and an "ill fit" for a certification motion, which is a mandatory procedural step that does not decide the merits of the case.

The applicants, Dawn and Scott McIntosh, sought to schedule a motion in Toronto to stay an action (the "2020 Oshawa Action") brought by HomeLife Superior Realty Inc. in Oshawa.

McIntosh argued the Oshawa action should have been a counterclaim in the existing Toronto action and sought to dismiss it as frivolous or an abuse of process.

The court declined to schedule the motion in Toronto, emphasizing Rule 37.03(1) which presumptively requires motions to be heard in the region where the affected proceeding was commenced.

The court found no reason to deviate from this rule, noting the Oshawa action was not improperly brought, there was a history of litigation in Oshawa related to the real estate transaction, and McIntosh was already involved in other Oshawa proceedings.

The plaintiffs brought a motion to revise a conditional Certification Order, approve the Notice of Certification, and determine costs.

The court found it unnecessary and inappropriate to revise the Certification Order, as it was properly taken out and there was no mistake.

The court approved a modified Notice of Certification and directed the parties to make written submissions on costs.

The plaintiffs in a conditionally certified class action sought court approval for new Class Counsel, a precondition for certification.

The defendant withdrew its decertification motion and consented to the appointment.

The court appointed Flaherty McCarthy LLP and Mack Lawyers as Class Counsel, rendering the action unconditionally certified.

This decision addresses the costs award following the dismissal of the defendants' motion to set aside a default judgment.

Royal Bank of Canada, as the successful party, sought substantial indemnity costs based on contractual terms in the loan guarantees.

The court affirmed the contractual right to costs but exercised its discretion to reduce the requested amount.

The reduction was based on the disproportionality of counsel's seniority to the tasks performed, excessive time dockets for routine work, and the lack of merit in some of RBC's responding arguments.

A total of $29,561.96 inclusive of HST was awarded, payable jointly and severally by the defendants.

The court determined the costs of a motion for judgment and the costs of the action in a shareholder dispute.

The defendants were wholly successful on their motion for judgment, which dismissed the plaintiff's oppression and legal fees claims, and were awarded $15,000 in costs.

The plaintiff had made an offer to settle that triggered Rule 49.10(1) consequences, entitling her to partial indemnity costs of the action up to the date of the offer, fixed at $7,500.

The court set off the amounts, ordering the plaintiff to pay the defendants a net amount of $7,500 in costs.

The defendants moved for summary judgment to dismiss the plaintiff's action, arguing that the claims were statute-barred under the Limitations Act, 2002, and that the plaintiff was no longer a shareholder entitled to oppression remedies.

The court found that the plaintiff's oppression claims were statute-barred as she had sufficient knowledge of the facts before the limitation period expired.

However, the court granted judgment to the plaintiff for $30,130.07, representing a debt paid by her under a guarantee, as this specific claim was not statute-barred.

All other claims, including for legal fees and the defendants' set-off claim, were dismissed.

The plaintiff moved for summary judgment arising from the purchase of a luxury motor-home that developed extensive and serious defects during a cross-border winter trip.

The court held that the implied condition of reasonable fitness under s. 15(1) of the Sale of Goods Act was engaged and breached, and that the accumulation of defects constituted a fundamental breach of contract.

The court rejected the seller's arguments that the plaintiff was not a buyer and that the goods had been accepted so as to limit remedies.

Rescission was granted together with damages representing the purchase price and related expenses, a nominal award for loss of use and enjoyment, and pre-judgment interest.

The moving party bank sought summary judgment dismissing claims alleging that its registered mortgage formed part of a fraudulent land transaction scheme.

The plaintiffs alleged that a prior partial discharge of their charge and subsequent transfers were fraudulent and that the bank had knowledge of the fraud through its solicitors or should have conducted further inquiries.

Applying the summary judgment framework articulated in Combined Air Mechanical Services Inc. v. Flesch, the court found no genuine issue requiring a trial.

The record established that the bank had no actual, deemed, or constructive knowledge of fraud and was entitled to rely on the land titles register.

The plaintiffs’ failure to understand the acknowledgment authorizing the discharge and their failure to register notice of their interest for more than two years contributed to any alleged losses.

The appellant appealed a motion judge's order dismissing his motion to discharge a previous contempt order, finding him in contempt for a third time, and sentencing him to a further 15 months of incarceration.

The underlying class action involved a multi-million dollar fraud.

The appellant had repeatedly failed to produce documents and attend examinations for discovery, resulting in multiple contempt findings.

The Court of Appeal dismissed the appeal, finding no basis to interfere with the discretionary orders of contempt given the serious, wilful, and deliberate nature of the appellant's conduct.