Mahmud Jamal

In a proposed class action, the defendants (Watchtower-Pennsylvania and Watchtower-New York, Inc.) successfully brought a preliminary motion to strike three affidavits filed by the plaintiff's counsel.

Following this, the defendants sought costs of $15,252.12.

The plaintiff argued the amount was excessive, citing the involvement of senior counsel and the defendants' refusal to engage in settlement discussions.

The court found the requested costs to be reasonable and awarded the full amount to the defendants, payable by the plaintiff within 30 days.

In a proposed class action regarding institutional sexual abuse, the foreign defendants brought a preliminary motion to strike three affidavits sworn by a partner of the plaintiff's law firm.

The affidavits were filed in support of a joinder motion and in opposition to a jurisdiction motion.

The court granted the motion to strike, finding that the affidavits improperly contained legal argument and personal opinions, violating the Rules of Civil Procedure.

Furthermore, the court held that the manner in which the evidence was presented created a disqualifying conflict of interest under the Rules of Professional Conduct, as the lawyer arguing the motion was the source of the contentious information in the affidavits.

The affidavits were struck with leave to deliver an unadorned Affidavit of Documents.

In a multi-jurisdictional class action regarding credit card merchant fees, Class Counsel entered into a Fee Sharing Agreement with a competing law firm to resolve a carriage dispute.

The agreement provided the competing firm up to $800,000 from Class Counsel's fees in exchange for staying rival actions.

On a motion to approve a partial settlement and fees, the motion judge reduced Class Counsel's requested fees by 10%, declared the Fee Sharing Agreement unenforceable, and prohibited any payments to the competing firm.

The Court of Appeal upheld the fee reduction and the prohibition on paying the competing firm from the settlement or approved fees, finding the agreement was subject to court approval under the Class Proceedings Act.

However, the Court set aside the declaration that the agreement was entirely unenforceable from any source, as the competing firm was not given notice or an opportunity to make submissions on that specific issue.

The plaintiffs brought a motion to certify a proposed class proceeding for settlement purposes against a credit card network defendant in a competition law action alleging conspiracy to fix merchant discount and interchange fees for Visa and MasterCard credit card transactions.

The claims included alleged breaches of the Competition Act, tortious conspiracy, intentional interference with economic interests, and unjust enrichment.

The court considered the certification criteria under s. 5(1) of the Class Proceedings Act, 1992 and held that the pleadings disclosed a cause of action, an identifiable class was established, common issues existed, and a class proceeding was the preferable procedure with an adequate representative plaintiff.

The court noted that certification for settlement purposes still requires satisfaction of the statutory criteria, though the analysis may be less strict given the settlement context.

Certification was granted as against the settling defendant and the proposed notice and notice plan were approved.

The appellant operated travel-related kiosks at a major airport and challenged municipal realty tax liability on the basis that its agreement with the airport authority created only a licence, not a tenancy, under the Assessment Act.

The Court of Appeal held that the issue was one of pure contractual interpretation and legal characterization, reviewable on a correctness standard, and that the agreement as a whole unambiguously created a landlord-tenant relationship.

The court further held that the appellant's leased premises did not qualify as "eligible property" under s. 331 of the Municipal Act, 2001 because the appellant could not bring the premises within any enumerated statutory category.

The appeal was dismissed with agreed costs.

Pharmacy and retailer appellants challenged provincial regulations that barred private-label generic drugs from formulary listing and interchangeable designation.

The Court reaffirmed that delegated legislation is presumed valid and is ultra vires only if inconsistent with statutory purpose or outside delegated authority.

It held the regulations aligned with the legislative scheme aimed at reducing prescription drug costs and promoting transparent pricing while maintaining safety.

The measures were rationally connected to preventing circumvention of rebate and allowance restrictions through affiliated manufacturers.

The appeal was dismissed.

The appellants appealed a decision quashing a property assessment against the respondent for advertising displays at Pearson International Airport.

The lower court had found that the respondent was not an occupant and that the assessment was arbitrary and discriminatory.

The Divisional Court allowed the appeal, finding that the respondent was an occupant under the Assessment Act as it had actual occupation, exclusive possession, value, and permanence.

The court also held that the doctrine of paramount occupancy did not apply, or alternatively, that the respondent was the paramount occupier.

Finally, the court found no evidence that the assessment corporation acted arbitrarily or discriminatorily.

The City of Mississauga, MPAC, and GTAA appealed a decision declaring that Exchange Corporation Canada Inc. was not a tenant of land owned by the Crown and therefore not liable to pay realty taxes for its space at Pearson International Airport.

Exchange cross-appealed the finding that its space was not an 'eligible property' under the Municipal Act.

The Divisional Court allowed the appeal, finding the application judge erred in concluding Exchange was a licensee rather than a tenant, and dismissed the cross-appeal, upholding the finding that the property was not an 'eligible property'.

In a copyright appeal, the Court considered whether pre-existing sound recordings embedded in film and television soundtracks remain subject to equitable remuneration under s. 19 of the Copyright Act when the soundtrack accompanies a cinematographic work.

Applying modern statutory interpretation, the Court held that the soundtrack exclusion in the definition of sound recording captures pre-existing recordings in that context.

The Court found this reading consistent with the legislative scheme, parliamentary intent, and international obligations under the Rome Convention.

As a result, the proposed tariffs could not be certified for performances or communications of recordings when accompanying cinematographic works.

The Ontario Energy Board brought a motion to quash two summonses issued by the appellant to a Board member and the Board's external counsel.

The appellant sought to examine them in aid of a motion to adduce fresh evidence on appeal, alleging a reasonable apprehension of bias because the external counsel's firm had represented the appellant's competitors and was a member of an industry association.

The Divisional Court quashed both summonses, finding that the proposed lines of inquiry were irrelevant to the objective test for a reasonable apprehension of bias.

The court also analyzed testimonial immunity under s. 10 of the Ontario Energy Board Act, 1998, deliberative secrecy, and solicitor-client privilege, finding multiple additional grounds to quash the Board member's summons and partial grounds to quash the external counsel's summons.

The applicants, Shoppers Drug Mart and Katz Group, successfully challenged provincial regulations banning pharmacies from selling private label generic drugs at the Divisional Court.

The Minister of Health appealed.

The Court of Appeal allowed the appeal, finding that the regulations were intra vires the Ontario Drug Benefit Act and the Drug Interchangeability and Dispensing Fee Act.

The Court held that the regulations validly imposed conditions on the drug supply chain to control prescription drug costs, rather than constituting an unauthorized prohibition, interference with commercial rights, or illegal discrimination.

The applicants, Shoppers Drug Mart Inc. and Katz Group Canada Inc., sought costs after being wholly successful in their judicial review applications against the Minister of Health and Long-Term Care.

The respondents argued the claimed costs were excessive and duplicative.

The Divisional Court rejected the duplication argument, noting the complexity and importance of the first-instance proceeding.

The court awarded Katz Group its full claimed costs, but reduced Shoppers Drug Mart's fee claim from $104,354 to $80,000 due to excessive hours and duplication among its legal team.

Class counsel appealed a motion judge's order fixing their fees at $14.5 million instead of the requested $27.5 million following the settlement of a class action regarding payday loans.

The Court of Appeal held that the motion judge did not err in applying section 32(4) rather than the base fee/multiplier approach in section 33(7) of the Class Proceedings Act, as the fee agreement was not approved by the court.

The Court also upheld the motion judge's decision to treat the fees of consultants and other lawyers retained on a contingency basis as disbursements.

However, the Court allowed the appeal in part, ruling that the representative plaintiff's $3,000 compensation should be paid out of the settlement fund rather than out of class counsel fees.

The applicants, who own and operate pharmacies in Ontario, challenged the validity of provincial regulations that prohibited 'private label' generic drugs from being designated as interchangeable or listed for public reimbursement.

The Divisional Court held that the regulations were ultra vires the Ontario Drug Benefit Act and the Drug Interchangeability and Dispensing Fee Act.

The Court found that the enabling statutes authorized the imposition of conditions, not absolute prohibitions, and that the ban on private label products was extraneous to the legislative purpose of controlling drug costs.

The regulations were declared invalid and of no force and effect.

The TD defendants sought leave to appeal a motion judge's order dismissing their motion to strike the plaintiff's claims.

The plaintiff alleged that the TD defendants transferred her share of lottery winnings out of the jurisdiction at her ex-boyfriend's request, despite knowing of her interest and a court preservation order.

The Divisional Court granted leave to appeal solely on the issue of whether the plaintiff's claim for a declaration of contempt of court should be struck, finding reason to doubt the correctness of allowing such a claim in a civil action.

Leave to appeal was denied for the negligence, breach of trust, breach of fiduciary duty, and preservation order validity issues.

The respondent sought costs following a one-day appeal.

The court noted the costs claimed were well beyond the usual range and that the respondent's motion to quash the appeal had been dismissed.

Taking into account the complexity, importance of the issues, amount at issue, and the result achieved, the court fixed costs awarded to the respondent at $50,000 inclusive of disbursements and GST.

The plaintiff brought a proposed class action against Dell for allegedly defective notebook computers.

Dell sought to stay the action based on a mandatory arbitration clause in its standard-form sales agreement.

The motion judge refused the stay and certified the class action.

On appeal, the Court of Appeal upheld the decision, finding that the Consumer Protection Act, 2002, which invalidates mandatory arbitration clauses in consumer agreements, applied to the claim because the computers failed after the Act came into force.

The Court also refused to grant a partial stay for non-consumer claims, as doing so would lead to inefficiency and a multiplicity of proceedings.

The appellants sought costs for their unsuccessful appeal against the dismissal of a summary judgment motion, arguing the appeal was necessary to establish that the motion judge's observations were obiter.

The Court of Appeal rejected this argument, noting the law was already well-established, and awarded costs to the respondents.

The respondents claimed $120,000, but the court fixed costs at $75,000 inclusive of disbursements and GST, finding the claimed amount excessive for a one-day appeal.

The defendants in a class action regarding payday loans appealed the dismissal of their renewed motion to stay the proceeding based on arbitration clauses in the loan agreements.

They argued that recent Supreme Court of Canada decisions changed the law, entitling them to a stay despite their previous unsuccessful stay motion.

The Court of Appeal dismissed the appeal, holding that the doctrine of issue estoppel applied.

The court exercised its discretion against allowing relitigation, finding that the plaintiffs' reliance on the prior determination and the advanced stage of the litigation outweighed the defendants' loss of the right to arbitrate.

The appellant appealed an order of a Superior Court judge.

The Court of Appeal dismissed the appeal, finding that the motion judge correctly considered and weighed the relevant factors in accordance with the governing jurisprudence.

The appeal was dismissed with costs awarded to the respondents.