Michael Allan Eizenga

The plaintiff, a Toronto lawyer and community volunteer, brought a defamation action against a newspaper and journalist over an article questioning transparency in the handling of donations from a charity concert organized to raise funds for victims of the 2008 Sichuan earthquake.

The court held that, read in context, the article did not convey a defamatory meaning about the plaintiff.

In any event, the defendants established the defences of substantial truth, fair comment on a matter of public interest, and responsible communication.

The court also found no evidence of malice and concluded that the plaintiff had not proven any meaningful reputational harm.

The defendant, United Parcel Service Canada Ltd., sought leave to appeal an order certifying a class proceeding under the Class Proceedings Act, 1992.

The proposed appeal challenged the certification of common issues relating to whether the defendant's brokerage fee practices constituted false or unconscionable representations, forced renegotiation of contracts, or breached requirements for future performance agreements under the Consumer Protection Act, 2002.

The Divisional Court found no conflicting decisions or good reason to doubt the correctness of the motion judge's certification order.

The motion for leave to appeal was dismissed.

Following certification of a pension-related class proceeding, the plaintiff sought partial indemnity costs of over $210,000 for the certification motion.

The defendants conceded entitlement to costs but argued the claimed amount was excessive and opposed joint and several liability.

Applying the principles governing certification motion costs, including those articulated in Pearson v. Inco Ltd., the court determined that the plaintiff’s claimed costs were somewhat excessive and unsupported in part.

The court fixed fair and reasonable partial indemnity costs at $175,000 inclusive of disbursements and taxes.

The defendants were not held jointly and severally liable; instead, four groups of defendants were ordered to each pay an equal share.

The plaintiffs moved, on consent, for certification of a proposed medical device class action for settlement purposes, approval of a national settlement, and approval of class counsel fees under the Class Proceedings Act, 1992.

The action concerned allegations that surgical mesh hernia repair products were defectively designed and inadequately warned against, causing injuries due to device ring breakage or buckling.

The court found that the certification criteria under s. 5(1) of the Act were satisfied, noting an identifiable class and common issues regarding negligent design and failure to warn.

The court further held that the proposed $1.375 million settlement was fair, reasonable, and in the best interests of the class given significant litigation risks and the small number of qualifying claimants.

A 30% contingency fee and disbursements were also approved as reasonable in light of the work performed and the risks undertaken by class counsel.

In a securities class action concerning alleged misrepresentations in the prospectus and offering materials for a company’s 2010 initial public offering, the representative plaintiff moved for court approval of a settlement under the Class Proceedings Act, 1992.

The settlement provided for a global payment of USD $15,250,000 to resolve claims by Canadian and U.S. investors, with a coordinated cross‑border approval process and a shared claims administration.

The court applied the established criteria for approval of class action settlements, including the likelihood of success, litigation risks, counsel’s recommendations, the reasonableness of the terms, and the absence of objections.

Finding the settlement fair, reasonable, and in the best interests of the class, the court approved both the settlement and the plan of allocation, as well as class counsel’s requested contingency fees and litigation expenses.

In a securities class proceeding under the Class Proceedings Act, 1992 and the Securities Act, the plaintiffs sought certification for settlement purposes against certain underwriters, approval of three settlements totalling approximately $10.85 million, approval of counsel fees, and approval of a proposed plan of allocation.

The court held that the settlements were fair, reasonable, and in the best interests of the class and approved them, along with counsel fees and the appointment of an administrator.

However, the court rejected the parties’ proposed distribution plan because it excluded class members who purchased shares on the day of the corrective disclosure from any compensation.

Exercising its authority to determine the plan of allocation, the court varied the distribution plan to include those purchasers and approved the modified plan as fair and reasonable.

The plaintiff sought to certify a class action on behalf of members of the Eastern Canada Car Carriers Pension Plan against the plan's trustees, administrative agent, and actuaries.

The plaintiff alleged that the defendants negligently or in breach of trust granted early retirement benefits when the plan had ongoing solvency issues, leading to a reduction in benefits for plan members.

The court found that the pleadings disclosed causes of action in negligence and breach of trust, the class was identifiable, there were common issues, a class proceeding was the preferable procedure, and the representative plaintiff was suitable.

The motion for certification was granted.

The plaintiff brought a motion to certify a proposed class action for damages pursuant to s. 130 of the Securities Act.

The defendants consented to certification, except for the plaintiff's proposed class definition which included purchasers in the secondary market.

The court held that s. 130(1) of the Act does not provide a statutory cause of action to purchasers in the secondary market, and revised the class definition accordingly before granting certification.

In a proposed class action for alleged misconduct in the primary and secondary securities market, the defendant corporation was unresponsive to proceedings.

The insurers of the corporation's officers and directors brought a motion on behalf of the corporation to appoint a receiver to defend the claims.

The plaintiffs and other defendants did not oppose the appointment.

The court found it fair, just, and necessary to appoint a receiver and granted the order.

The defendant sought leave to appeal an order certifying a class action regarding customs brokerage fees charged on international shipments.

The core issue for the leave motion was whether the motion judge erred in certifying as a common issue whether the brokerage services were 'unsolicited services' under the Consumer Protection Act, 2002, without considering the consignees' knowledge or consent.

The Divisional Court granted leave to appeal, finding good reason to doubt the correctness of the motion judge's conclusion that consumer knowledge is irrelevant under section 13 of the Act, and noting that the issue is a matter of public importance.

The defendant brought a motion for directions to adjourn its motion for leave to appeal a class action certification order pending the disposition of its appeal of a summary judgment order to the Court of Appeal.

The plaintiffs brought a cross-motion to dismiss the leave motion for failing to name a hearing date.

The Divisional Court dismissed both motions, holding that the certification order frames the proceedings and the leave motion must be heard expeditiously before the summary judgment appeal.

The court declined to dismiss the leave motion on technical grounds and ordered it to be perfected and heard at the earliest opportunity.

In a proposed securities class action alleging misrepresentations in the primary and secondary markets, the plaintiffs sought an order compelling defendants to deliver statements of defence and requested that the certification motion be heard together with a leave motion under s. 138.8 of the Securities Act.

The defendants opposed delivering defences before certification and sought a sequence of motions beginning with the leave motion, followed by Rule 21 motions and then certification.

The court held that pleadings should generally be completed before certification and that ordering the delivery of a statement of defence was not contrary to law or due process.

However, the court limited the requirement to defendants who filed affidavits under s. 138.8(2) of the Securities Act, while permitting other defendants to plead voluntarily without losing the ability to bring Rule 21 motions.

The court further ordered that the leave motion and certification motion be heard together to avoid delay, inefficiency, and serial appeals.

Three competing groups of plaintiffs and their respective counsel brought carriage motions seeking to represent a class of investors who suffered losses following a massive decline in the value of Sino-Forest Corporation's securities.

The court evaluated the competing actions based on factors including the definition of class membership, class period, theory of the case, causes of action, joinder of defendants, and prospects of certification.

The court stayed the Smith and Northwest actions and granted carriage to the Labourers action, finding its approach to the class definition, causes of action, and joinder of defendants to be the most cohesive and in the best interests of the class.

Following the dismissal of 42 consolidated motions for leave to appeal costs awards in 37 class actions, the respondent insurers sought costs totalling $345,349.36.

The Court of Appeal assessed the bills of costs submitted by various law firms representing the insurers.

Applying the principle that costs must be fair and reasonable rather than a strict mathematical calculation of hours times rates, the Court reduced the amounts claimed, noting that the complexity was procedural rather than legal or factual.

The Court fixed the total costs payable to the insurers at $141,645.26.

The appellants and the Law Foundation of Ontario sought leave to appeal costs orders made by the case management judge following the dismissal of several proposed class actions against automobile insurers.

The motion judge had awarded costs to the successful insurers, including substantial indemnity costs where the plaintiffs persisted with unsubstantiated allegations of fraud and deceit to overcome limitation periods.

The Court of Appeal dismissed the application for leave to appeal, finding no error in principle in the motion judge's exercise of discretion regarding entitlement or scale of costs.

The defendants appealed a motion judge's decision to certify a class action against them regarding the manufacture and distribution of the anti-psychotic drug Zyprexa.

The plaintiffs alleged negligence and claimed restitutionary relief based on waiver of tort.

The defendants argued that proof of the amount of wrongful gain could not be a common issue and that a class proceeding was not the preferable procedure.

The Divisional Court dismissed the appeal, finding that given the uncertain state of the law regarding waiver of tort, a full evidentiary record was necessary, and the motion judge did not err in certifying the common issues or finding a class action to be the preferable procedure.

Following a successful appeal by the insurer that decertified a class proceeding due to a change in the law, the parties made submissions on costs.

The insurer sought costs of the appeal and the certification motion, while the representative plaintiff and the Class Proceedings Fund argued for no costs.

The Divisional Court declined to award costs to either party for the appeal, the motion for leave to appeal, or the certification motion, finding that the proceeding raised novel issues of law and matters of broad public interest under section 31 of the Class Proceedings Act.

The appellant insurer appealed a decision certifying a class proceeding regarding the application of deductibles to total loss automobile claims.

After the initial certification motion was remitted by the Court of Appeal, a subsequent five-member panel of the Court of Appeal in a different case (Polowin) reversed the interpretation of the relevant statutory condition, finding that insurers could apply deductibles.

The Divisional Court held that putative class members were not privies to the representative plaintiff prior to certification, meaning issue estoppel did not apply.

As the current law established no cause of action, the certification order was set aside.

The defendants appealed an order dismissing their motion to enjoin the plaintiffs from seeking access to discovery evidence in parallel U.S. anti-trust litigation.

The defendants argued that the plaintiffs were attempting to circumvent Ontario's discovery rules by obtaining discovery in the U.S. before certification of the class action.

The Divisional Court dismissed the appeal, finding that the plaintiffs were merely seeking passive access to evidence already discovered in the U.S. litigation, rather than actively conducting discovery.

The court held that such evidence gathering does not offend Ontario's discovery rules or the implied undertaking rule, and that the U.S. court should determine whether to grant access under its own protective order.

The appellant's vehicle was damaged beyond repair.

The respondent insurer paid the actual cash value less the policy deductible and took title to the salvage.

The appellant brought an intended class proceeding arguing that statutory condition 6(7) requires payment of the actual cash value without reduction for the deductible when the insurer takes salvage.

The Court of Appeal allowed the appeal, holding that section 234(2) of the Insurance Act makes statutory conditions paramount over conflicting policy terms, including deductibles.

The court also found the appellant was not barred from claiming by signing a proof of loss, and remitted the class certification issue to the motions judge.