Paul J. Martin

The plaintiff sought costs following the certification of a class action against the defendants.

The court noted that while the plaintiff achieved certification, success was divided because the class definition and types of claims were significantly narrowed.

Applying the principle of divided success, the court agreed with the defendants' submission to reduce the plaintiff's claimed fees by 50%.

The court also deducted duplicated and non-compensable travel expenses from the plaintiff's disbursements.

The defendants were ordered to pay the plaintiff costs in the all-inclusive amount of $282,759.06.

The plaintiff moved to certify a class action against the manufacturers and distributors of allegedly defective cochlear implants.

The plaintiff claimed the devices suffered from a design defect causing fluid ingress and premature failure, requiring invasive revision surgery.

The court found that the pleadings disclosed viable causes of action for negligent design, failure to warn, and failure to recall.

The court amended the class definition to include only patients whose devices experienced a 'hard failure' to ensure the class was properly bounded.

With limitations placed on the scope of general damages to ensure common issues predominated over individual medical histories, the court certified the action and appointed the plaintiff as the representative plaintiff.

This was a certification motion in a proposed national employment class action alleging that commission-only mortgage specialists were not paid vacation and holiday pay on their full variable compensation contrary to the Canada Labour Code and related contractual and equitable duties.

The court held that the pleaded claims for breach of contract, negligence, breach of fiduciary duty, unjust enrichment, breach of trust, and breach of duty of good faith were not plainly doomed to fail, and that there was some basis in fact for common liability issues and aggregate damages.

The court also held that the common issues predominated for preferable procedure purposes despite disputes about limitation periods and varying employment documents.

Certification was granted except for punitive damages, for which the record did not provide some basis in fact.

In a proposed class action alleging defective cochlear implants, the defendants moved for production of comprehensive medical records from the representative plaintiff and a putative class member.

The plaintiff had produced only limited medical records, asserting that other health issues were not relevant to the implant defect claim.

The court granted the defendants' motion, finding that the full medical records were necessary to assess issues of commonality, preferability, and negligence at the certification stage, particularly given the plaintiff's acknowledgment of co-morbidities and his disagreement with his physician regarding the source of his symptoms.

The moving party brought a motion for leave to appeal a lower court decision.

The Divisional Court dismissed the motion for leave to appeal and awarded costs of $5,000 all-inclusive to the responding parties.

The applicant, a dentist facing disciplinary proceedings before the Inquiries, Complaints and Reports Committee (ICRC) regarding allegations of sexual abuse, brought an application for judicial review seeking mandamus to compel the College to obtain an unredacted copy of a police file.

The Divisional Court dismissed the application as premature.

The court found that the administrative proceeding was not complete, as the ICRC had not yet made its decision and the applicant still had the opportunity to make submissions to the ICRC regarding the need for the unredacted documents.

The court concluded there were no exceptional circumstances to justify interfering in the ongoing administrative process.

The moving party brought a motion for leave to appeal a lower court decision.

The Divisional Court dismissed the motion for leave to appeal and ordered costs payable to the responding parties in the fixed amount of $2,712.

The discipline panel considered a registrant's admission that he falsely told a patient he had consulted an oral pathologist who agreed that a tongue lesion was non-urgent hyperkeratosis.

The panel held that the dishonesty, coupled with the lack of documentation and the resulting delay in cancer diagnosis, constituted professional misconduct under s. 51(1)(c) of the Code and s. 2(59) of Ontario Regulation 853/93.

Applying the public-interest test governing joint submissions on penalty, the panel accepted a jointly proposed disposition centered on public protection, general deterrence, and the registrant's undertaking to resign permanently from practice in Ontario and elsewhere in Canada.

The panel ordered a reprimand and costs of $7,500.

The defendants brought a motion for summary judgment to dismiss the plaintiff's claim, which alleged various torts including breach of confidence and intrusion upon seclusion, stemming from an employee's improper access to a child's file at a clinic.

The plaintiff, father of the children, brought the claim on his own behalf, not as a litigation guardian or under the Family Law Act.

The plaintiff failed to respond to a request to admit, did not comply with court-ordered timetables for filing materials, and made last-minute attempts to amend his claim and seek an adjournment, which were denied due to non-compliance and the need for orderly administration of justice.

The court found no genuine issue requiring a trial, relying on the deemed admissions and the defendants' evidence.

The claims were dismissed as the plaintiff had no contractual relationship with the defendants, no personal confidential information was disseminated, and no provable injury was demonstrated.

This decision concerns the approval of a settlement and a plan of allocation in a securities class action, along with class counsel's fees and disbursements.

The plaintiff sought approval for a US$3 million settlement with the Gatos Defendants and Electrum Group entities, following an earlier settlement with the Tetra Tech Defendants.

The court found the Gatos Settlement to be fair, reasonable, and in the best interests of the class, noting it was reached through arm's length negotiations and recovered a significant portion of estimated damages despite litigation risks.

Class counsel's requested fees (25% contingency) and disbursements were also approved as fair and reasonable, considering the complexity and risks of the multi-stage litigation.

The moving parties, RBC Insurance Agency Ltd. and Aviva General Insurance Company, brought a motion for leave to appeal the order of Glustein J. dated March 2, 2023.

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

The defendants in a class action brought a motion seeking the production of class counsel's redacted dockets to respond to the plaintiffs' costs submissions following certification.

The plaintiffs opposed the production.

The court dismissed the motion, holding that the production of dockets to support costs submissions on a motion is only ordered in exceptional cases to protect solicitor-client privilege.

The court found that the substantial amount of costs claimed, the disparity between the parties' costs, and alleged incongruities in the costs outline did not constitute exceptional circumstances warranting production.

This is a securities class action where the Plaintiff sought approval of a settlement with the Tetra Tech Defendants and pre-settlement orders for a proposed settlement with the Gatos Defendants.

The court approved the C$1,000,000 settlement with the Tetra Tech Defendants, finding it fair, reasonable, and in the best interests of the class.

For the Gatos Defendants, the court granted leave to proceed under section 138.8 of the Securities Act, certified the action as a class proceeding for settlement purposes, and approved the proposed notice plan and ancillary orders, paving the way for a future US$3,000,000 settlement approval motion.

The representative plaintiffs in a certified class action against Cook (Canada) Inc., Cook Incorporated, and William Cook Europe APS moved for court approval of a notice plan for a proposed settlement.

The class action concerned optionally retrievable inferior vena cava filters.

The court reviewed the proposed short-form and long-form notices and the dissemination plan, finding them compliant with the Class Proceedings Act, 1992.

The motion for approval of the notice plan was granted.

This is a costs endorsement following a motion where the Defendants were wholly successful and beat their offer to settle under Rule 49.

The court found the Defendants' claimed hours excessive for a straightforward, non-complex motion and fixed costs at $3,750.00, inclusive of HST, payable by the Plaintiff to the Defendants.

The decision emphasizes proportionality and reasonableness in costs awards.

In a securities class action, the plaintiff sought multiple orders in advance of a settlement approval motion.

The plaintiff requested leave to proceed against Tetra Tech, Inc. under the Securities Act, leave to discontinue common law negligence and negligent misrepresentation claims against Tetra Tech, and certification of the action as a class proceeding against Tetra Tech for settlement purposes.

Additionally, the plaintiff sought approval to discontinue the action against the Underwriter Defendants based on a Standstill and Tolling Agreement.

The court granted all requested orders, finding that the criteria for leave and certification were met and that the discontinuance against the Underwriter Defendants would not prejudice the class.

The plaintiff sought leave to amend her Statement of Claim to proceed under Simplified Procedure, limiting her claim to $200,000.

The primary issue on the motion was whether the defendants were entitled to costs thrown away due to the amendment, and if so, the timing and quantum of such costs.

The court found that Rule 76.13 of the Rules of Civil Procedure mandated the payment of costs unnecessarily incurred by the opposing party up to the date of the amendment.

The court ordered the plaintiff to pay the defendants $8,000 all-inclusive for costs thrown away, calculated on a substantial indemnity basis, and declined to defer the decision to the trial judge.

This motion concerned the substitution of a representative plaintiff in a class action alleging underpayment of vacation and public holiday pay on variable compensation by RBC General Insurance Company and Aviva General Insurance Company.

The original proposed representative plaintiff, Deval Trivedi, was found to be statute-barred against Aviva General.

The plaintiff sought to substitute Binay Saroop as the representative plaintiff against Aviva General and to amend the statement of claim.

The court found that Saroop met the 'some basis in fact' test to rebut the statutory presumption regarding the limitation period and did not have a disqualifying conflict of interest, thus being an adequate representative plaintiff.

The motion to substitute Saroop and amend the claim was granted.

The appellant employer appealed a summary judgment decision awarding the respondent employee damages for wrongful dismissal.

The appellant argued the motion judge erred in finding the respondent made reasonable efforts to mitigate, alleging she fabricated records of online job applications.

The Divisional Court dismissed the appeal, finding no palpable and overriding error in the motion judge's conclusion that the appellant failed to meet its onus to prove a failure to mitigate or fabrication of evidence.

The court also upheld the motion judge's determination that summary judgment was appropriate.

This motion concerned the approval of several settlement agreements in ongoing automotive parts class actions, specifically with Mitsubishi Heavy, SKF, Brose, and Yamada.

The plaintiffs also sought approval for a distribution protocol for Automotive Bearings, Electric Powered Steering Assemblies, High Intensity Discharge Ballasts, and Manual Steering Columns actions, authorization for using previously produced customer information, honoraria for representative plaintiffs, use of residual wire harness funds, and class counsel's legal fees and disbursements.

The court granted all requests, finding the settlements and distribution protocol fair, reasonable, and in the best interests of the class, and the requested fees and honoraria justified.