Paul M. Perell

Following successful applications for declarations that the respondent insurers had a duty to defend, the applicants sought costs on a full indemnity basis.

The insurers did not dispute the scale but argued the amounts claimed were disproportionate and unreasonable.

The court found the insurers' criticisms unhelpful as they did not disclose their own dockets.

The court awarded $50,000 all inclusive to each applicant.

The plaintiff sought costs following the dismissal of her motion for a mandatory interlocutory injunction against the defendant condominium corporation.

The motion was dismissed based on the defendant's undertaking to provide alternative accommodation.

The court found that although the defendant was technically the successful party, the plaintiff was entitled to costs because it was reasonable for her to seek court intervention and the dismissal was on terms.

The court awarded the plaintiff $25,000 in costs.

The plaintiffs brought a motion to certify a class action for settlement purposes against five settling bank defendants in a long-running price-fixing conspiracy case regarding credit card merchant discount fees.

The court found that the five requirements for certification under section 5(1) of the Class Proceedings Act, 1992 were satisfied.

The court certified the action against the settling defendants for the purpose of implementing the settlement agreement and approved the notice and plan of dissemination.

The plaintiffs brought a motion to certify a class action against a plastic surgeon and his clinic for breach of privacy.

The claims involved two main grievances: the surreptitious video surveillance of patients in the clinic (the Surveillance Complaint) and the posting of patient images on social media without valid consent (the Social Media Complaint).

The court certified the Surveillance Complaint, finding it met all criteria under s. 5 of the Class Proceedings Act, 1992.

However, the court declined to certify the Social Media Complaint, concluding that the issue of valid consent was highly idiosyncratic and required individual inquiries, meaning it failed the common issues and preferable procedure criteria.

The plaintiffs brought a motion for leave to discontinue a proposed securities class action against the defendant.

Due to increased litigation risks and the lack of an engaged representative plaintiff or class counsel willing to proceed, the plaintiffs sought to abandon the class proceeding.

The court granted the discontinuance under s. 29 of the Class Proceedings Act, 1992, finding no improper purpose and no prejudice to the defendant, who consented and received $130,000 in wasted costs.

The court also approved the form and manner of notice to putative class members.

The plaintiff brought a motion to certify a class action against the manager of an exchange-traded fund (ETF) that suffered catastrophic losses following a spike in market volatility.

The plaintiff advanced claims in common law negligence and statutory misrepresentation under s. 130 of the Securities Act.

The court certified the common law negligence claim, finding it met all certification criteria.

However, the court refused to certify the s. 130 claim because the plaintiff could not satisfy the identifiable class criterion, as it was impossible to prove which investors purchased 'Creation Units' directly from the manager versus units on the secondary market.

Following the dismissal of the applicant tenant's application for court approval of a lease assignment, the respondent landlord sought costs on a substantial or partial indemnity basis.

The underlying application had been dismissed without prejudice to being re-opened, but the issue became moot when the proposed new tenants withdrew.

The court declined to award costs to the landlord, finding that the dismissal was not a vindication of the landlord's legal position and that the litigation conduct of both parties was driven by mistrust.

No order as to costs was made.

The defendants in a proposed class action for breach of privacy brought a preliminary motion to strike the expert report of Dr. Mary Anne Franks, proffered by the plaintiffs for the certification motion.

The plaintiffs alleged the defendants surreptitiously recorded patients and posted images online without consent.

The court granted the motion to strike, finding that Dr. Franks' evidence regarding the social and cultural context of non-consensual image distribution and American law was not relevant or helpful to determining the common issues for certification.

The defendants in a proposed class action for breach of privacy brought a preliminary motion to strike portions of affidavits filed by the plaintiffs in support of certification.

The court granted the motion, striking evidence that was irrelevant, prejudicial, or detailed a College of Physicians and Surgeons investigation contrary to section 36 of the Regulated Health Professions Act.

The plaintiffs in a proposed privacy class action brought a preliminary motion to strike the complete clinical medical charts and medical records of the plaintiffs and two deponents, which were included in the responding affidavits of the defendant doctor.

The plaintiffs alleged the defendants surreptitiously recorded patients and posted images on social media without consent.

The court granted the motion, finding that the detailed medical records were irrelevant and inadmissible for the purposes of the certification motion, as the action concerned privacy breaches rather than medical malpractice.

In a proposed class action against a plastic surgeon for breach of privacy involving surreptitious video recording and unauthorized social media postings, the plaintiffs brought a preliminary motion for leave to deliver a supplementary affidavit regarding class size after cross-examinations had concluded.

The court dismissed the motion, finding that the defendants had provided their best information based on the plaintiffs' class definition, the supplementary evidence did not respond to matters raised on cross-examination, and allowing the affidavit would amount to prejudicial case-splitting.

Following the successful dismissal of the plaintiff's action on a motion to strike, the defendants sought costs on a substantial indemnity basis and requested that the costs be paid personally by the plaintiff's lawyers.

The defendants argued that the plaintiff lacked the mental capacity to instruct her counsel to commence the action.

The court rejected the request for substantial indemnity and personal costs, noting that if the defendants genuinely believed the plaintiff was under a disability, they should have sought the appointment of a litigation guardian or challenged the lawyers' authority under the Rules of Civil Procedure.

Costs were awarded to the defendants on a partial indemnity basis.

Following a successful summary judgment motion where the plaintiff was awarded $154,164.26, the plaintiff sought partial indemnity costs of $20,427.68.

The defendants argued for no costs due to divided success, as the plaintiff had originally claimed $215,459.46, or alternatively a reduction in the quantum.

The court rejected the divided success argument, noting the plaintiff was the successful party, and awarded costs to the plaintiff modestly reduced to $19,250.

The plaintiffs in a proposed class action brought unsuccessful motions for an injunction and for refusals.

The Capital One defendants sought costs of $135,000 on a substantial indemnity basis or $112,500 on a partial indemnity basis.

The plaintiffs argued they should be awarded costs despite losing, claiming they achieved their objective.

The court rejected the plaintiffs' arguments, finding their motions were ill-advised and meritless.

Costs were awarded to the Capital One defendants in the amount of $112,500 on a partial indemnity basis.

The Attorney General of Canada brought a Request for Directions to appoint an Independent Special Advisor to review certain Independent Assessment Process claims by former students of St. Anne's Indian Residential School.

The review was prompted by concerns that some claims were resolved before additional document disclosure was made available.

The court agreed that an independent review was necessary but modified Canada's proposed process to ensure claimants' interests were represented by an amicus and to remove arbitrary restrictions on the review.

The plaintiffs in a proposed consumer protection and competition law class action sought court approval of a third-party funding agreement with Harbour Fund IV.

The plaintiffs, who are of modest means, required the funding to prosecute the action against several large travel booking companies.

The court applied the four-factor test for third-party funding and found the agreement was not champertous, was necessary for access to justice, and adequately protected the defendants' interests.

The motion was granted and the funding agreement was approved.

Canada brought a Request for Direction seeking approval of its proposal to archive copies of certain Non-Claim Records from the Independent Assessment Process with the National Centre for Truth and Reconciliation.

The National Centre for Truth and Reconciliation and the Assembly of First Nations responded with some objections, particularly regarding the redaction of personal information.

The court approved Canada's proposal, finding it consistent with the legal framework governing government document retention, the Indian Residential Schools Settlement Agreement, and previous court orders, while deferring the issue of Static Reports to a future Request for Direction.

Following a decision granting Brewers Retail's motion for security for costs and Chill Media's motion to late file expert reports, the court determined the costs of the motions.

Brewers Retail sought costs of $18,864.93, while Chill Media argued for divided success and partial indemnity costs of $6,339.

The court found Brewers Retail to be the successful party, as Chill Media was seeking an indulgence to vary a previous order.

The court awarded Brewers Retail its requested costs of $18,864.93, payable in any event of the cause but not forthwith, to avoid frustrating the plaintiff's ability to prosecute its claim.

The plaintiff's counsel brought a motion to discontinue the proposed class action against Canada Goose Holdings Inc. and to be removed as counsel of record.

The representative plaintiff had ceased providing instructions and could not be contacted, and efforts to find a replacement representative plaintiff were unsuccessful.

The court granted the motion, finding it appropriate to discontinue the action and remove counsel, with the discontinuance taking effect on July 1, 2021, after adequate notice to class members.

Following an application regarding the continuation of a legal non-conforming use, the applicant sought costs of $60,186.30 on a partial indemnity basis.

The respondent argued for each party to bear their own costs due to divided success, or alternatively $20,000.

The court found there was genuinely divided success as the applicant was successful on the declaration but overreached on the injunction, which the respondent successfully resisted.

Applying Rule 57.01, the court awarded the applicant costs fixed at $38,000 all-inclusive.