Perell

Following the successful certification of a class action regarding transvaginal mesh devices, the plaintiffs sought costs of $900,000 on a partial indemnity basis.

The certification motion was heard in two phases, with the first phase adjourned to allow the plaintiffs to gather additional evidence.

The court found that the plaintiffs were the successful party and entitled to costs.

However, recognizing that the defendants should not have to pay for the plaintiffs' 'education' from the first phase unless the defendants are ultimately found culpable, the court awarded $425,000 payable forthwith (accounting for a $25,000 deduction for an abandoned motion) and $450,000 payable in any event of the cause.

Two Requests for Direction (RFDs) were brought regarding the disclosure of documents from prior civil and criminal proceedings concerning St. Anne's Indian Residential School.

In the first RFD, an IAP claimant alleged Canada breached its disclosure obligations by withholding discovery transcripts.

The court dismissed this RFD, finding the transcripts were protected by settlement privilege and the deemed undertaking rule.

In the second RFD, former students and an association sought extraordinary relief, including investigations into the conduct of counsel and the reopening of claims.

The court dismissed the second RFD, holding that the requestors lacked standing and that the court lacked jurisdiction under the Indian Residential Schools Settlement Agreement to grant the requested relief, as complaints about lawyer conduct fall outside the court's administrative role.

Following the dismissal of the plaintiffs' motion for class certification and the defendant's mixed success on a summary judgment motion, the defendant sought costs of $3.6 million on a substantial indemnity basis.

The plaintiffs argued the award should not exceed $775,000.

The court declined to award substantial indemnity costs, finding no reprehensible conduct by the plaintiffs in pleading misrepresentation.

Considering the defendant's technical loss on the summary judgment motion, which nonetheless provided a strategic victory in defeating certification, the court fixed costs at $1.0 million on a partial indemnity basis as a fair and reasonable amount.

Following a successful motion for summary judgment regarding a commercial lease dispute, the plaintiffs sought costs of $42,587.71 on a partial indemnity scale.

The landlord argued the costs were unreasonable based on the factors in Rule 57.01(1) and suggested a nominal award.

The court rejected the landlord's arguments, noting the plaintiffs achieved substantial success and the costs were not unnecessary or excessive.

The court fixed costs at $40,000 all inclusive.

Following a successful summary judgment motion by the defendant tenant, the court determined the costs of the proceeding.

The defendant had served a Rule 49 offer to settle and sought costs on a partial indemnity basis up to the date of the offer, and substantial indemnity thereafter.

The plaintiff landlord's costs submissions were found to be superficial and non-responsive.

The court awarded the defendant its claimed costs of $45,391.09, all inclusive.

The plaintiffs brought a proposed class action for civil conspiracy, defamation, and intentional infliction of mental distress against the defendants for distributing alleged hate speech pamphlets at a Pride Parade.

The lead defendant moved to dismiss the action under the anti-SLAPP provisions and as an abuse of process, and alternatively to strike the claim.

The plaintiffs moved for a Norwich Order to identify the anonymous co-defendants.

The court held that the defendant was estopped from denying the pamphlets were hate speech based on a prior Supreme Court decision, and thus the anti-SLAPP motion failed.

However, the court struck the class action because the torts pleaded are individual in nature and cannot be brought on behalf of a collective group.

The court granted leave to amend the claim to an opt-in joinder action and granted the Norwich Order on terms.

Following a successful motion by the defendants to prevent the plaintiffs from using extra-jurisdictional procedures to acquire documents from non-parties, the defendants sought partial indemnity costs of $75,365.38.

The plaintiffs argued for reduced costs of $15,000, citing the novelty and public interest of the issue under section 31 of the Class Proceedings Act, 1992.

The court rejected the plaintiffs' argument, finding the issue was not legally novel in a way that justified denying costs and noting the plaintiffs' conduct was improper.

The court awarded the defendants their costs as claimed.

The plaintiff was injured in a motor vehicle accident while a passenger in a car driven by an unlicensed 15-year-old.

The vehicle was owned by the driver's aunt, who was out of the country and had left the car at her sister's house.

The aunt brought a motion for summary judgment to dismiss the plaintiff's action against her, arguing she was not vicariously liable under s. 192 of the Highway Traffic Act because the vehicle was in the driver's possession without her consent.

The court reviewed the extensive case law on express and implied consent to possession.

The court found that the aunt had entrusted possession to her sister, but the sister's possession was interrupted when the son took the vehicle without consent.

As there was no express or implied consent for the driver to possess the vehicle, the owner was not vicariously liable.

The motion for summary judgment was granted.

Following a successful motion by the third party NGOs to strike the Crown's third party claims in a proposed class action regarding youth detention centres, the NGOs sought costs of $47,695.45 on a partial indemnity basis.

The Crown argued the amount was excessive and suggested $16,500, contending that the NGOs were only successful due to late amendments to the plaintiff's pleadings.

The court rejected the Crown's argument, finding the NGOs were entitled to costs for work both before and after the amendments, but reduced the claimed amount to $35,000 all inclusive as being within the reasonable expectations of the unsuccessful party.

The plaintiffs brought an omnibus motion for certification, settlement approval, and class counsel fee approval in a class action against a vending machine distributor and a vendor of candies.

The action alleged misrepresentation and breach of the statutory duty of fair dealing under the Arthur Wishart Act.

Following the dismissal of the action against the candy vendor and the dissolution of the vending machine distributor, the parties agreed to a settlement distributing the remaining trust funds pro rata among class members.

The court certified the action for settlement purposes, approved the settlement as fair and reasonable, and approved class counsel's reduced fee request.

The plaintiff landlord sued the defendant tenant for outstanding Additional Rent and damages for disrepair after the commercial lease expired.

The tenant brought a motion for summary judgment to dismiss the action and for the return of its security deposit.

The court found that the landlord failed to comply with the lease's mandatory notice provisions for Additional Rent for the years 2012-2014, barring those claims.

The landlord's claim for 2015 Additional Rent was allowed as it was made within the required timeframe.

The court also dismissed the landlord's repair claim, finding insufficient evidence that the premises were left in disrepair.

Summary judgment was granted to the tenant for the return of its security deposit less the 2015 Additional Rent.

The plaintiff landlord and defendant tenant brought cross-motions for summary judgment in an action for breach of a commercial lease agreement.

The dispute centered on whether a binding lease existed for the expansion of the tenant's premises and whether the tenant breached duties of good faith and honest performance by secretly securing an alternative location while delaying the provision of design information.

The court dismissed both motions, finding that the case presented a plethora of genuine issues for trial, including serious credibility issues, which could not be fairly and justly resolved using the summary judgment procedure.

The plaintiff brought a motion to certify a class action against the defendants regarding prepaid payment cards.

The plaintiff alleged that the defendants breached the Consumer Protection Act, 2002 and O. Reg. 17/05 by charging illegal fees and imposing expiry dates on the cards.

The defendants argued that the cards were exempt from the legislation.

The court found that the plaintiff satisfied the five-part test for certification under the Class Proceedings Act, 1992, and certified the action as a class proceeding, subject to an adjustment to the class definition to account for the limitation period.

Following a successful summary judgment motion dismissing the plaintiff's claim for development charges as statute-barred, the defendants sought partial indemnity costs of $21,941.47.

The plaintiff argued the costs should be drastically reduced to $2,104.50, asserting the defendants unnecessarily focused on substantive defences rather than solely on the limitation period.

The court rejected this argument, finding that the underlying factual footprint had to be developed regardless of the focus, and that the defendants' costs were reasonably incurred.

The court fixed the defendants' costs at $17,500 all inclusive.

The plaintiffs brought a motion for certification of a class action against the manufacturers of Pradaxa, an anticoagulant drug.

The plaintiffs alleged that the defendants breached their duty to warn consumers and healthcare professionals about the lack of an antidote for the drug, which could lead to excessive bleeding.

The court dismissed the certification motion, finding that the plaintiffs failed to establish that the proposed common issues actually existed or could be answered in common across the class.

The court noted that the decision to prescribe an anticoagulant and the need for a reversal agent are highly patient-specific, and there was no basis in fact to conclude that the absence of an antidote posed a common and material risk across the class.

In a proposed national class action alleging price-fixing in the foreign exchange market, the plaintiffs obtained an ex parte subpoena in the United States under 28 U.S.C. §1782 to compel pre-certification discovery from a non-party, Bloomberg LP.

The defendants brought a motion to enjoin the plaintiffs from taking any steps in furtherance of the subpoena without authorization from the Ontario court.

The court granted the motion, finding that the plaintiffs had circumvented Ontario's rules and jurisprudence regarding the discovery of non-parties and pre-certification discovery in class actions.

The court held that it has jurisdiction to control its own process and regulate the examination of non-parties for an Ontario action.

Class counsel brought an application to assess the financial sufficiency of the Compensation Fund established under the Hepatitis C class action settlement and sought a declaration prioritizing the transfer of surplus funds to the insolvent Past Economic Loss and Dependents Fund (PELD Fund).

The court found that the Compensation Fund was solvent with a small projected surplus, while the PELD Fund remained insolvent.

To prevent inequity for eligible class members who had received nothing from the depleted PELD Fund, the court authorized the transfer of the remaining Compensation Fund surplus to the PELD Fund, with the specific allocation to be determined at a future hearing.

The plaintiff brought a proposed class action against Walmart Canada Inc. and PNI Digital Media Inc. following a data breach at Walmart's online photocentre.

The parties reached a settlement agreement providing for credit monitoring and reimbursement of out-of-pocket expenses up to a combined maximum of $750,000.

The plaintiff brought a motion on consent to certify the action as a class proceeding for settlement purposes.

The court found that all criteria under section 5(1) of the Class Proceedings Act, 1992 were met and granted the motion.

In a proposed class action regarding youth detention centres, the plaintiff sued the Crown for negligence, breach of fiduciary duty, and Charter violations, explicitly limiting the claim to the Crown's several liability.

The Crown issued third party claims against the NGOs that operated some of the centres.

The plaintiff and the NGOs moved to strike the third party claims.

The court granted the motions, applying the principle that where a plaintiff limits their claim to the defendant's proportionate degree of fault, a third party claim for contribution and indemnity is legally untenable.

In a proposed class action regarding the use of secure isolation in youth detention centres, the Crown brought a motion seeking production of the representative plaintiff's Youth Records.

The plaintiff opposed, arguing the Superior Court lacked jurisdiction to order production under the Youth Criminal Justice Act.

The court held that while it could not directly order production of the records, it had jurisdiction under the Class Proceedings Act to order the plaintiff to apply to the Youth Justice Court for access to the records.

The court ordered the plaintiff to make the application, failing which the proposed class action would be stayed.