Michael Allan Eizenga

The appellant, as representative plaintiff in a class action on behalf of approximately 4,500 former students of three provincial schools for the Deaf, appealed from a motion judge's order approving class counsel's legal fees subject to conditions.

The class action involved allegations of physical, sexual, and emotional abuse, and resulted in a $15 million settlement.

The motion judge approved fees of $3.75 million (25% of the settlement) but imposed conditions requiring class counsel to donate $1.5 million to a charity for the Deaf and made the remaining fees subject to proportionate reduction based on settlement fund reversion.

The Court of Appeal found the motion judge erred in unilaterally imposing the charitable donation condition without party consent, as this altered the negotiated settlement agreement.

The court set aside the order and remitted the matter for a new hearing before a different judge.

The appellants, survivors and family members of victims of the Rana Plaza building collapse in Bangladesh in 2013, brought a class action against Loblaws and Bureau Veritas seeking damages for negligence, vicarious liability, and breach of fiduciary duty.

The motion judge dismissed the action on the basis that Bangladeshi law applied (not Ontario law), the claims were statute-barred under Bangladesh's one-year limitation period, and the claims disclosed no reasonable cause of action.

The Court of Appeal upheld the dismissal on all grounds.

The court also addressed a costs appeal, reducing the costs award by 30% to reflect the public interest component of the claims.

This addendum corrects an error in a previous costs decision (2018 ONSC 4862) regarding the amount of costs requested by Brewers Retail Inc. The original decision mistakenly stated Brewers Retail requested $600,000 on a partial indemnity basis, when the correct amount, based on an amended bill of costs, was $744,396.42, all inclusive, comprising fees, HST, and disbursements.

The court confirmed the costs award subject to this correction.

Following the dismissal of the plaintiffs' proposed class action on summary judgment, the successful defendants sought costs on a partial indemnity basis totalling approximately $2.3 million.

The plaintiffs and the Class Proceedings Fund argued that the costs should be reduced to $600,000 in the aggregate, asserting that the case was not complex, was in the public interest, raised novel points of law, and that a large costs award would have a chilling effect on class actions.

The court rejected these arguments, finding that the litigation was primarily commercial, involved complex issues, and that the normal costs rules should apply.

The court awarded the defendants their requested costs, subject to a reduction of one expert witness's fee.

Following the dismissal of a proposed $2 billion class action regarding the Rana Plaza collapse in Bangladesh, the successful defendants sought costs totaling over $2.3 million.

The plaintiffs and the Class Proceedings Fund argued for no costs, asserting the case was novel and brought in the public interest.

The court rejected these arguments, finding the claims were grounded in established negligence principles and prosecuted aggressively with an expectation of costs.

The court awarded the defendants their claimed costs in full on a partial indemnity scale.

The court approved the $31.2 million in legal fees, disbursements, and taxes agreed upon by class counsel and the defendants (Volkswagen Group Canada Inc. et al.) following the $2.1 billion "dieselgate" class action settlement.

The fees were deemed reasonable and separate from the class members' recovery, ensuring the settlement remained generous and in the best interests of the class.

The plaintiffs, victims of the Rana Plaza factory collapse in Bangladesh, brought a proposed class action in Ontario against Loblaws (who sourced garments from the factory) and Bureau Veritas (who conducted social audits).

The defendants moved to dismiss the action under Rule 21, arguing the claims were governed by Bangladesh law, were statute-barred, and disclosed no reasonable cause of action.

The court held that while it had jurisdiction simpliciter, the claims were governed by Bangladesh law under the lex loci delicti rule and were statute-barred by a one-year limitation period.

Furthermore, the court found that under both Bangladesh and Ontario law, it was plain and obvious that the defendants owed no duty of care to the plaintiffs, nor was Loblaws vicariously liable or in breach of any fiduciary duty.

The action and the certification motion were dismissed.

The defendants moved for leave to appeal a decision dismissing their motion to dismiss the plaintiffs' action.

The underlying motion argued that the plaintiffs' notice of action was a nullity and that the statement of claim was delivered after the two-year limitation period expired.

The motions judge had found the notice of action sufficient and relied on the Rules of Civil Procedure to cure any defects.

The court granted leave to appeal, finding conflicting decisions regarding the required level of detail in a notice of action and good reason to doubt the correctness of the underlying decision.

This class action involved two motions: approval of three settlements totaling $39.2 million in an FX market price-fixing conspiracy case, and approval of Class Counsel's fees and disbursements.

The court approved the settlements, finding them fair and reasonable given the litigation risks and the stage of the proceedings.

However, the court partially denied Class Counsel's request for $9.8 million in fees, approving only an additional $2 million, citing that the achieved recovery (5 cents on the dollar against a potential $1 billion loss) was respectable but not "very good" and that the claimed litigation risks were somewhat exaggerated given prior regulatory findings and U.S. settlements.

The court emphasized the need for diligence in approving contingency fees in settlements to ensure they are provident for class members, not just counsel.

The plaintiffs brought a proposed class action alleging that the defendant financial institutions conspired to fix prices in the foreign exchange (FX) market.

The plaintiffs reached settlement agreements with three groups of defendants (Goldman Sachs, JPMorgan, and Citi) totaling $39.25 million.

The plaintiffs moved for an order certifying the action as a class proceeding for settlement purposes against these settling defendants and approving the notice plan.

The court found that the criteria for certification under section 5 of the Class Proceedings Act, 1992 were satisfied and granted the order.

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 sought court approval to certify a class action for settlement purposes and to approve the settlement and legal fees.

The class action, limited to specific pelvic mesh products (Avaulta, Align, Ajust), was certified for settlement.

The court approved the $2.475 million settlement after class counsel provided sufficient information demonstrating its reasonableness, addressing initial judicial concerns about the lack of detail.

Legal fees of $742,500 (30% contingency) plus disbursements and taxes were also approved, consistent with the court's principled approach to class counsel compensation.

The plaintiffs in a proposed class action regarding beer pricing and market allocation in Ontario sought leave under s. 29 of the Class Proceedings Act to discontinue the action against the LCBO and treat it as an unnamed co-conspirator.

The court dismissed the motion as premature, finding that the discontinuance should occur, if at all, only after the close of pleadings, as the remaining defendants had not yet filed statements of defence and might assert cross-claims or third-party claims against the LCBO.

The court also found the evidentiary record inadequate to justify discontinuance.

The plaintiffs were successful on a bifurcated motion for leave to appeal a class action certification order.

They sought costs of $65,000 on a partial indemnity basis for the portion of the motion dealing with the remaining issues.

The defendant opposed an award of costs at this time, arguing for a single costs award at the end of the appeal.

The court rejected the defendant's argument, finding that the issues were discrete and an attendance-by-attendance award was appropriate.

The court fixed costs at $55,000, payable forthwith, after adjusting for duplication of time by senior counsel.

Following a prior decision approving class counsel fees in a class proceeding settlement, class counsel sought clarification regarding the calculation of the fee award, treatment of consulting law firm fees, application of taxes, and comments regarding disclosure of a fee sharing agreement.

The court acknowledged that an arithmetic error had occurred in the original calculation and corrected the award by applying a 10% reduction to the claimed counsel fee before adding disbursements.

The court clarified that consulting law firms were to be paid from the approved counsel fee rather than treated as additional disbursements and confirmed that applicable taxes were payable in addition to the approved amount.

The court also addressed concerns about disclosure of the fee sharing agreement, reiterating that failure to fully disclose the agreement’s substance was a mistake despite counsel’s intentions.

Representative plaintiffs in a proposed national competition law class action sought court approval of partial settlement agreements with three defendants, approval of contingency fee agreements with class counsel, and approval of counsel fees and disbursements.

The court approved settlements totaling $13.63 million with Bank of America, Capital One, and Citigroup and found the agreements fair, reasonable, and in the best interests of the class under the Class Proceedings Act, 1992.

The court also approved the contingency fee agreements but scrutinized a separate fee‑sharing agreement between class counsel and a rival law firm that had commenced competing class actions.

The judge held that the fee‑sharing agreement required court approval, was not fair or reasonable to class members, and may constitute champerty or maintenance.

Class counsel’s requested fee was reduced by 10%, and the court ordered that no payment be made to the rival firm under the unauthorized agreement.

The respondents were successful on a motion for leave to appeal and the subsequent appeal.

They sought costs of $82,692.85 for the leave motion and $108,534.16 for the appeal.

The appellant argued the amounts were excessive and sought its own costs for the leave motion.

The Divisional Court found the respondents' claimed costs excessive given the focused nature of the issues and the number of hours docketed.

The court fixed costs payable to the respondents at $120,000.00 inclusive of HST and disbursements.

The appellant courier company appealed a class action certification order, arguing the motions judge erred in certifying a common issue regarding whether its customs brokerage services were 'unsolicited' under the Consumer Protection Act.

The appellant contended that determining whether services were unsolicited required an individualized inquiry into each consumer's knowledge and intent.

The Divisional Court dismissed the appeal, finding the claim was systemic and based on standard form contracts that did not mention brokerage fees, meaning the issue could be determined on a common basis without individualized inquiries.

The plaintiffs moved for certification of a products liability class action against the defendants regarding pelvic mesh products used to treat pelvic organ prolapse and stress urinary incontinence.

The court dismissed the certification motion, finding that while the plaintiffs satisfied the cause of action, identifiable class, and representative plaintiff criteria, they failed to establish some-basis-in-fact for the commonality and preferable procedure criteria due to the multifarious nature of the 19 different products involved.

The dismissal was made subject to an 'Alternatives Motion' to allow the plaintiffs to propose continuing the proceeding in an altered form.

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.