Paul M. Perell

The plaintiff, having successfully certified a class action against BMW, sought substantial indemnity costs for the certification motion, totaling $367,210.28.

BMW proposed a costs award between $225,000 and $285,000.

The court awarded the plaintiff $300,000 on a partial indemnity basis, inclusive of fees, disbursements, and HST.

The court declined to award substantial indemnity costs, finding that Rule 49 (Offer to Settle) is an ill fit for certification motions and that defendants are entitled to resist certification without incurring punitive costs, provided their conduct does not unnecessarily lengthen proceedings.

The court also largely rejected BMW's arguments of overbilling by class counsel.

The plaintiff, 1207717 Ontario Inc., and defendants, Leggett & Platt Canada Co. and Garlock of Canada Ltd., brought motions and cross-motions to enforce a settlement agreement concerning environmental contamination.

Leggett sought a declaration that the Remedial Action Plan (RAP) was complete and dismissal of the action and crossclaim. 1207717 Ontario sought further groundwater testing, arguing the RAP was incomplete.

The court interpreted the settlement agreement, finding that the specified two-year monitoring period and "stable or decreasing" contamination standard had been met by Leggett's consultant's reports.

The court rejected 1207717 Ontario's arguments for further testing or that Ministry of Environment standards were relevant, as these were not part of the contract.

Leggett's motion was granted, and 1207717 Ontario's cross-motion was dismissed, leading to the dismissal of the action and crossclaim without costs.

The plaintiff, Conrey Francis, was successful on a summary judgment motion in a certified class action against Her Majesty the Queen in Right of Ontario.

This decision concerns the costs endorsement following that motion.

Francis sought a partial indemnity award of $782,629.10 (inclusive of taxes) for fees and disbursements.

The Crown argued for a reduction, proposing $617,394.92 (exclusive of taxes).

The court agreed to a deduction of $28,493.78 for disbursements and some, but not all, of the Crown's arguments for fee reduction.

Applying the principle of reasonableness and the factors under Rule 57.01, the court awarded Francis $720,000, all inclusive.

The plaintiffs, purchasers of condominium units, sued the defendant developer for breach of contract after the project was terminated and deposits returned.

The plaintiffs alleged the developer failed to take commercially reasonable steps to satisfy financing conditions and obtain municipal approvals.

The defendant brought a cross-motion for summary judgment, relying on an exculpatory clause (Clause 28) in the agreements that limited liability to the return of deposits.

The court granted the plaintiffs leave to amend their statement of claim but ultimately granted the defendant's summary judgment motion, dismissing the plaintiffs' action.

The court found Clause 28 enforceable, applying the three-step Tercon Contractors analysis, concluding it applied to the circumstances and was not contrary to public policy, even if a fundamental breach occurred.

This decision addresses a costs award following a successful motion by the defendants, Ka An Development Co. Limited and Chang Yu Liu, to have the action against them stayed or dismissed for lack of jurisdiction or forum non conveniens.

The court awarded the defendants costs on a partial indemnity basis, totaling $83,448.81, considering their complete success on the dispositive motion, the plaintiffs' unreasonable resistance to setting aside a noting of default, and the plaintiffs' failure to comply with the motion timetable and file responding costs submissions.

The plaintiff, Alex M. Bodnarchuk, brought a consent motion to certify a class action for settlement purposes and to obtain leave to proceed with a secondary market misrepresentation claim under the Ontario Securities Act against Guestlogix Inc., Brett Proud, and Patrick Leung.

The action alleged misrepresentations and omissions regarding credit facilities and financial covenants.

The parties reached a settlement of $1,275,000.

The court granted leave, finding the action was brought in good faith and had a reasonable possibility of success for settlement purposes.

The court also certified the action as a class proceeding for settlement purposes, finding all criteria under the Class Proceedings Act, 1992 were met.

The order approved the settlement notices and procedures for opt-outs and objections, and set a date for the settlement approval hearing.

The parties settled this litigation, and the defendants brought a motion on consent to dismiss the claim without costs.

The court granted the order, dismissing the action on a without costs basis, noting that the reasons for decision were deemed an operative and enforceable order due to the Covid-19 emergency.

The Plaintiffs sought partial indemnity costs and disbursements totaling $1,391,715.45 following a successful, but partially limited, certification motion in a class action against several financial institutions.

The Defendants argued for a significant reduction, citing their substantial success in narrowing the class definition and potential double recovery from prior settlements.

The court awarded the Plaintiffs $700,000 in legal fees and HST, payable forthwith, and ordered disbursements of $468,705.06 payable in the cause.

The reduction in fees reflected the Defendants' success in streamlining the class action and reducing their potential liability, which the court deemed important for the integrity of the class actions regime and to discourage overambitious claims, without constituting a distributive costs award.

The court issued a costs decision in an exceptional case following a carriage motion in a class action.

The Slapinski Action Consortium, though unsuccessful in the carriage motion, sought costs against the Del Giudice Action Consortium's counsel for non-compliance with a case management direction regarding simultaneous exchange of motion materials.

The court found that the Del Giudice Action Consortium's failure to comply with the simultaneous exchange rule prejudiced the court's ability to fairly decide the carriage contest, constituting a default under Rule 57.07.

Despite the Del Giudice Action Consortium's success on the carriage motion, the court awarded partial indemnity costs of $42,907 to the Slapinski Action Consortium, to be paid personally by the Del Giudice Action Consortium's counsel.

This decision concerns a motion by the plaintiffs to discontinue a proposed class action in Ontario regarding optionally retrievable inferior vena cava (IVC) filters manufactured by the defendants.

The discontinuance was sought to facilitate the settlement of 11 individual claims.

The court, pursuant to sections 19 and 29 of the Class Proceedings Act, 1992, approved the discontinuance and the proposed notice to putative class members.

The court found that the discontinuance would not prejudice non-settling class members, as similar class proceedings were ongoing in British Columbia and Saskatchewan, and limitation periods remained suspended.

The motion was granted without costs.

This is a joint direction from the Eastern and Western Administrative Judges concerning the administration of the Indian Residential Schools Settlement Agreement (IRSSA).

The direction assigns Justice Brown of the British Columbia Supreme Court to hear the "Metatawabin RFD #2" (Request for Direction #2), following Justice Perell's recusal as the Ontario Supervising Judge due to prior costs awards against the Requestors' counsel.

The decision emphasizes judicial economy and the urgency of resolving the RFD before the IRSSA's Independent Assessment Process (IAP) Secretariat ceases operations.

It also directs that the hearing be conducted virtually to address the safety concerns of St. Anne's Indian Residential School survivors during the Covid-19 pandemic.

The court redetermined Charter damages in a class action concerning administrative segregation in federal penitentiaries, following an appeal that set aside the initial damages award.

The Court of Appeal affirmed liability but remitted the damages issue for redetermination on proper principles.

The court awarded $20 million for vindication, deterrence, compensation, and pre-judgment interest, to be distributed directly to class members.

For the purposes of individual issues trials, the per capita award is to be deemed compensatory damages.

This decision rejected Canada's submission for a $2.4 million award and the plaintiffs' alternative submission for $20 million solely for vindication and deterrence.

The Defendants, having achieved partial summary judgment in a dispute over condominium unit boundaries and common elements, sought partial indemnity costs of over $100,000.

The Plaintiff, who also achieved partial success on summary judgment, argued for no costs or costs in the cause, asserting that joining all unit owners was necessary and that the adjudication provided clarity for all parties.

The court, acknowledging the divided success and the complex nature of the litigation, determined that an order of no costs was appropriate, finding that the necessity of joining all defendants and the shared benefit of clarifying the issues outweighed the Defendants' arguments for costs.

The Representative Plaintiff in a certified class action sought court approval for a $4.2 million settlement with the defendant auditor, approval of Class Counsel's contingency fees and disbursements, and an honorarium for the Representative Plaintiff.

The court approved the settlement, finding it fair, reasonable, and in the best interests of the class, considering the litigation risks and protracted nature of the case.

Class Counsel's fees and disbursements, and the Representative Plaintiff's honorarium, were also approved.

The Tenant, 6791971 Canada Inc., sought partial indemnity costs after successfully applying under s. 23 of the Commercial Tenancies Act, where the Landlord, Eli Messica, had unreasonably withheld consent to a lease assignment.

The Tenant requested $18,417.86, inclusive of taxes and disbursements.

The Landlord opposed, arguing the Tenant's lawyer's time was excessive and proposing a reduced award of $10,356.45.

The court found the Tenant's lawyer's hourly rate modest and the time expended reasonable for an important matter, ultimately awarding the Tenant the full requested costs.

The representative plaintiffs in a proposed class action sought leave to discontinue their action against Whirlpool Canada LP, Whirlpool Corporation, and Whirlpool Properties Inc. The discontinuance was necessitated by the plaintiffs' inability to secure After-the-Event insurance or funding from the Class Proceedings Fund, which was a pre-condition for their contingency fee agreement with counsel.

The court granted the motion, finding no prejudice to the putative class members, who were unaware of the action's commencement.

A notice of discontinuance was approved for distribution to inform potential class members of the action's cessation and the recommencement of limitation periods.

MarshallZehr Group Inc. ("MZ") sought substantial indemnity costs of $55,266.78 after successfully obtaining summary judgment against Ideal Developments Inc. and related entities ("Ideal") for $508,071.09 and dismissal of Ideal's counterclaim.

MZ based its claim on a contractual provision in the Commitment Letter and, alternatively, an unaccepted Offer to Settle.

Ideal proposed $36,273 on a partial indemnity basis.

The court, while acknowledging the contractual right to substantial indemnity, exercised its discretion to award costs on a basis between partial and substantial indemnity.

This decision was influenced by the unclear language of the Commitment Letter, MZ's muddied termination of the loan, and the fact that MZ had already made a significant return.

The court awarded MZ $40,000, all inclusive.

This decision addresses the costs arising from a motion to set aside a default judgment.

The plaintiffs sought costs on a substantial indemnity basis, while the defendants argued for partial indemnity.

The court found no conduct warranting a punitive costs award and therefore awarded costs on a partial indemnity basis, reducing the plaintiffs' claim for redundancies.

The final award was $21,000, all inclusive.

This motion for directions in a settled class action concerned the interpretation of two ambiguous provisions within the settlement agreement related to claims administration.

The court was asked to clarify whether Article 4.3(5) provided a minimum or maximum period for claimants to correct deficiencies and whether Article 4.2(6) required a final assessment of all claims by 60 days post-deadline or merely a status report.

The court adopted the interpretation proposed by Class Counsel and the Claims Administrator, confirming that the Claims Administrator has discretion to grant extensions beyond 30 days for correcting deficiencies and that the 60-day report is a status update, not a final assessment.

The motion was unopposed by the defendants.

The applicant, Dimitrious Karahalios, a disqualified leadership candidate for the Conservative Party of Canada, brought an application seeking reinstatement and release of campaign funds.

The respondents, including the Conservative Party and its Fund, brought a preliminary motion to strike the application, arguing it was barred by the Leadership Rules and disclosed no reasonable cause of action, and that individual committee members were not proper parties.

The court dismissed the motion to strike the application for not disclosing a reasonable cause of action, finding it was not plain and obvious that the Leadership Rules contractually precluded the applicant's claims.

The individual respondents (members of the Dispute Resolution Appeals Committee and Chief Returning Officer) were removed as parties by agreement.

The court converted the application into an action and scheduled a summary judgment motion to efficiently determine the merits of the dispute, given the complex and novel legal issues regarding the judicial review of unincorporated associations.