Norman T. Mizobuchi

The Court of Appeal for Ontario dismissed an appeal by defendants seeking to hold litigation lenders liable for costs incurred by a class member (Mr. Zuber) who pursued an exaggerated damages claim and incurred substantial debt from litigation loans.

The trial judge had refused to order the lenders to pay costs, finding they did not instigate or control the litigation in a manner amounting to an abuse of process, despite the onerous interest rates and the loans impeding settlement.

The Court of Appeal affirmed this decision, reiterating that non-party costs are limited to "person of straw" or abuse of process scenarios, neither of which applied to the lenders' conduct.

The court also refused leave to cross-appeal the trial judge's decision not to award costs of the motion to the lenders, finding no error in principle.

Following the dismissal of the plaintiffs' appeal from the dismissal of their certification motions in two proposed class actions, the parties consensually resolved the issue of costs.

The Divisional Court ordered costs payable by the plaintiffs/appellants to the various defendants/respondents in the total amount of $92,500, inclusive of fees, disbursements, and HST.

The plaintiffs appealed the dismissal of their certification motions in two proposed class actions arising from a privacy breach at two hospitals.

Rogue hospital employees accessed the contact information of maternity patients and sold it to RESP salespeople.

The Divisional Court upheld the motions judge's finding that the accessed information (names, addresses, phone numbers, and basic hospital visit details) was personal but not highly private, and that the intrusion would not be regarded by a reasonable person as highly offensive causing distress, humiliation, or anguish.

Although the motions judge erred in his class definition, the appeal was dismissed because the elements of the tort of intrusion upon seclusion were not met.

The moving party brought a motion for leave to appeal an unreported order dated April 11, 2022.

The Divisional Court dismissed the motion for leave to appeal without costs.

The appellants appealed a trial judgment awarding the respondent Royal Bank of Canada (RBC) damages for breach of a conditional sales contract and ordering that the judgment not be released by a bankruptcy discharge.

The Court of Appeal dismissed the appeal regarding the breach of contract claim, finding that the loan renewal did not negate the breach given the continuing obligation to provide security.

However, the court allowed the appeal in part by striking the order that the judgment survive bankruptcy, deferring this issue to the Bankruptcy Court due to RBC's awareness of the issues at the time of renewal.

The appellants appealed an order from the motion judge dismissing a certification motion for class proceedings.

The Court of Appeal found that the motion judge's order was clear and unequivocal in dismissing only the certification motion, not the underlying claims.

Under section 30 of the Class Proceedings Act, an appeal from an order refusing to certify a proceeding lies to the Divisional Court, not the Court of Appeal.

Accordingly, the appeal to the Court of Appeal was quashed without prejudice to the appellants proceeding with the appeal in the Divisional Court.

Two proposed privacy class actions arising from hospital employees’ unauthorized extraction of patient contact information for RESP sales leads were refused certification.

The court held that, on the actual evidentiary record, the disclosure of contact information alone, without disclosure of medical records or other objectively private information, could not support the tort of intrusion on seclusion because there was intrusion but no legally sufficient seclusion and no objectively highly offensive invasion.

Although certain claims, including a PHIPA s. 65 claim and some negligence theories against the hospitals and rogue employees, were arguable at the pleadings stage, there were no viable common issues and a class proceeding was not the preferable procedure.

Small Claims Court proceedings or PHIPA-related processes were found more proportionate for any remaining individualized claims.

The plaintiffs brought a Rule 21 motion seeking a declaration that Rouge Valley Health System was estopped from denying liability for various statutory and common law causes of action, based on an Order from the Information and Privacy Commissioner (PHIPA Order HO-013).

The court dismissed the motion, exercising its discretion under the doctrines of issue estoppel and abuse of process.

It found that applying issue estoppel would be procedurally and substantively unfair given the magnitude of the class action ($400 million) against a public institution, and the informal, discretionary nature of the administrative tribunal's proceedings, which focused on its privacy law mandate rather than complex civil law.

The court also noted that such an application would be inimical to the due administration of justice by discouraging settlements with the Commissioner.

The Plaintiff sought costs for a successful class action certification motion.

The Defendants argued for no costs or reduced costs due to partial success in opposing certification on some issues, and Mr. Theberge sought substantial indemnity costs for the uncertified fraud claim against him.

The court, applying Rule 57 of the Rules of Civil Procedure and the Good v. Toronto Police Services Board precedent, found the Plaintiff substantially successful and awarded partial indemnity costs, rejecting the Defendants' arguments for reduction based on partial success or an award to Mr. Theberge.

The plaintiff sought to certify a class action against the developer and its president regarding condominium units in the Alta Vista Ridge development.

The claims included breach of contract, breach of the Condominium Act, negligent and fraudulent misrepresentation, and breach of fiduciary duty, primarily concerning the failure to provide a forced air heating system as specified in disclosure statements and, for a subclass, the failure to provide storage units included in purchase agreements.

The court certified the action as a class proceeding, defining the main class and a subclass, finding valid causes of action for most claims.

However, claims for breach of fiduciary duty and personal liability against the president, Joey Theberge, were struck for lack of pleaded material facts.

The court found the class proceeding to be the preferable procedure, promoting access to justice, judicial economy, and behaviour modification.

The plaintiff brought a proposed class action for the common law tort of intrusion upon seclusion after hospital staff improperly accessed patient records.

The defendants moved to strike the claim, arguing that the Personal Health Information Protection Act (PHIPA) constitutes an exhaustive code that ousts the Superior Court's jurisdiction.

The Court of Appeal dismissed the appeal, holding that PHIPA does not create an exhaustive code.

The Act's language, its highly discretionary review procedure tailored for systemic issues, and its explicit contemplation of other proceedings indicate that the legislature did not intend to preclude common law claims for breach of privacy.

Following an appeal, the Court of Appeal considered written submissions regarding the costs of the motion before the lower court.

The Court ordered that the costs of the motion be remitted to the motion judge for reconsideration in light of the appellate reasons.

The plaintiffs in a proposed class action appealed a motion judge's decision striking out several claims from their statement of claim against an insurer regarding the sale and administration of universal life insurance policies.

The Court of Appeal allowed the appeal in part, reinstating the claims for breach of the duty of good faith and fair dealing, breach of contract, and deceit and fraud, finding it was not plain and obvious these claims would fail.

The court upheld the striking of allegations concerning releases because the plaintiffs failed to request specific relief for those who signed them.

Following dismissal of a proposed pharmaceutical class action certification motion, the successful defendants sought $1.2 million in costs.

The plaintiffs argued that no costs should be awarded due to public interest considerations relating to individuals with mental illness or, alternatively, that costs should be limited to $75,000.

The court held that although individuals with mental illness may constitute a historically disadvantaged group, the evidentiary record did not engage the public interest considerations under s. 31 of the Class Proceedings Act, 1992.

Applying the principles governing certification motion costs and considering the complexity of the proceeding, the plaintiffs’ litigation conduct, and comparable awards, the court fixed fees at $475,000 and allowed most disbursements subject to a reduction in travel expenses.

The defendant brought a motion in a certified class proceeding to compel answers to refusals, undertakings, and questions taken under advisement during examinations for discovery of the representative plaintiffs.

The underlying action alleged negligent misrepresentation, breach of contract, and unfair practices under the Consumer Protection Act, 2002 arising from statements in a college program calendar suggesting students could obtain certain industry designations.

The court reviewed the disputed discovery questions through the lens of proportionality and the principle that discovery before the common issues trial in a class action is generally limited to the certified common issues.

Many of the defendant’s requests were refused because they sought privileged communications, attempted discovery of class members, or addressed individual issues unrelated to the common issues.

Some limited answers were ordered where they would assist the defendant in understanding the case it must meet.

In CCAA restructuring proceedings, the plaintiff in a securities class action sought to lift the stay of proceedings to continue the class action against the debtor company and related defendants.

The moving party argued the action should proceed in order to access insurance proceeds that would not be available to other creditors.

The court considered the purposes of the CCAA stay, including preserving the status quo and facilitating a restructuring or sales process for the benefit of stakeholders.

Balancing prejudice, convenience, and the interests of the restructuring process, the court held that permitting the litigation to proceed would divert management resources from the ongoing court‑supervised sales process.

The stay was maintained except to permit the plaintiff to pursue a leave application to the Supreme Court of Canada on a limitation period issue.

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.