Perell

This was a costs decision arising from an individual issues motion in a class proceeding after judgment on common issues had been granted.

The representative plaintiffs sought recovery of counsel fees and substantial disbursements incurred through the common issues phase, including occupational therapy and psychological assessment reports for class members.

The court held that Rule 49 offers were not to affect costs at this stage, excluded certain unrecoverable disbursements, and treated only part of the medical assessment expenses as attributable to successfully advancing the action to the individual issues phase.

Costs of $214,624.41 all-inclusive were awarded, with the balance of certain disbursements reserved for the individual issues phase.

In two proposed medical device products liability class proceedings concerning transvaginal mesh used to treat stress urinary incontinence and pelvic organ prolapse, the plaintiffs moved on consent for certification and approval of notice plans.

The court applied the certification criteria under s. 5(1) of the Class Proceedings Act, 1992 and held that the pleadings disclosed negligence claims, the proposed classes were identifiable, and the common issues were framed narrowly enough around devices using the same mesh to treat the same condition.

Distinguishing an earlier unsuccessful mesh certification case, the court found some basis in fact for common design defect issues in each action when treated discretely.

The court also approved the certification notices, dissemination plans, and opt-out form.

Both certification motions were granted.

This was a costs decision following a motion by a defendant to set aside a default judgment.

Although the plaintiffs were technically unsuccessful on the motion, the court had granted the motion on terms requiring payments to the plaintiffs, including costs thrown away and security for costs.

The plaintiffs sought substantial indemnity costs or, alternatively, partial indemnity costs for the motion.

The court held that a punitive costs award was not warranted and fixed costs at $8,500 all inclusive on a partial indemnity basis.

The applicant sought a declaration and rectification of title to reflect an express right of way over the respondent's servient lands that had been granted under the Registry Act but omitted from the servient parcel register when the lands were administratively converted to Land Titles.

The court held that the respondent acquired only LT Conversion Qualified title and was subject to the overriding interests preserved by s. 44(1) of the Land Titles Act, including easements, despite the omission from the servient register.

Relying on the statutory scheme and analogous authority concerning administrative conversion errors, the court found the right of way ought to have been noted and ordered rectification.

The order was made without prejudice to any future action alleging abandonment or extinguishment of the easement.

In a proposed national class action concerning hip devices, the plaintiff moved without notice for an extension of time to serve the statement of claim on foreign defendants in the Netherlands and China.

The court held that proceeding without notice was impracticable in the circumstances, where the service difficulty itself arose from the mechanics of Hague Convention service.

Applying the prejudice-based framework governing extensions of time for service, the court found the plaintiff had made reasonable efforts to effect service within six months and that there was no discernable prejudice caused by the delay.

The time for service was extended to December 31, 2015.

The defendants moved for summary judgment dismissing a commercial dispute arising from a failed business relationship and an Asset Allocation Agreement concerning several development properties.

The moving parties argued the claim was answered by the agreement or was statute-barred under the Limitations Act, 2002.

The court held the matter was not suitable for summary judgment because the evidentiary record disclosed numerous genuine issues for trial, including unpleaded rescission-related allegations and intertwined disputes across several related proceedings.

The motion was dismissed, and the court indicated a present intention to award no costs because the responding party had helped provoke the motion through deficient pleadings.

In a class proceeding concerning a national settlement distribution plan, the court acted on its own initiative after receiving informal correspondence from class counsel and counsel for five class members alleging that the approved distribution plan contravened the Human Rights Code.

The court held that the parties' attempt to address a potentially serious legal issue through off-record letters and a proposed informal teleconference was procedurally improper for a superior court of record.

Relying on the court's inherent jurisdiction and ss. 12, 13, 26, and 35 of the Class Proceedings Act, 1992, with analogy to Rule 77.04, the court ordered that the correspondence process stop.

Class counsel were directed to bring a formal motion for directions within 14 days, with a hearing scheduled for July 24, 2015.

In a proposed price-fixing class action involving lithium ion batteries, both sides brought refusals motions arising from cross-examinations conducted in advance of certification.

The court held that questions probing how class counsel came to act for the proposed representative plaintiffs, and requests for a retailer plaintiff’s business documents, were not relevant to the certification criteria.

However, questions to the plaintiffs’ expert about whether inclusion of contract phone purchasers complicated pass-through analysis were relevant to testing the expert’s methodology and had to be answered.

Questions to defence witnesses about alleged meetings and documents referenced in a related U.S. proceeding were refused as going to the merits rather than certification.

The plaintiffs brought motions arising from an ATM business dispute, unpaid unsecured promissory notes, and allegations that mortgages granted on a matrimonial home were fraudulent conveyances.

Applying the summary judgment framework, the court held there was no genuine issue requiring a trial on the promissory note claim or the fraudulent conveyance claim.

The court dissolved Mareva injunctions in both actions, finding the record did not satisfy the stringent test for pre-judgment asset-freezing relief.

The court granted summary judgment for $710,000 plus interest on the promissory notes against the business partners and their business entities, dismissed the fraudulent conveyance claims, and refused a certificate of pending litigation.

This was a costs decision following a summary judgment motion by the defendant insurer asserting the plaintiffs' action was statute-barred and a successful cross-motion by the plaintiffs to amend their pleading.

The court had previously granted the cross-motion, dismissed the insurer's summary judgment motion, and declared the action timely.

On costs, the insurer argued the issue was novel and that no costs should be awarded, or alternatively that costs should be capped at $3,500.

The court held that costs were appropriate and fixed the plaintiffs' costs at $7,000 all inclusive on a partial indemnity basis.

In a defamation action arising from a broader franchise dispute, the defendants moved to set aside a substantial default judgment.

Applying the five-factor framework governing relief from default, the court found the motion was brought promptly, the defendants had a plausible explanation for their default, there was at least an arguable defence, and the plaintiffs would suffer no substantive prejudice from a merits determination.

The court also found the confusion created by parallel related litigation and different counsel of record materially contributed to the default.

The default judgment was set aside on condition that counsel be retained and a statement of defence and counterclaim be delivered within 60 days.

The moving parties sought summary judgment dismissing professional negligence claims arising from the prescription and dispensing of Clindamycin for an infected tooth, while the federal defendant moved under Rule 21 to strike a regulatory negligence claim.

The court held that expert evidence was required to establish the standard of care, breach, and causation in the medical and pharmacy negligence claims, and the plaintiff had provided no evidence capable of supporting those claims.

The expert evidence filed by the moving parties established that the prescription, dental treatment recommendations, and pharmacy counselling met the applicable standards of care.

The court further held that Health Canada does not owe a private law duty of care to individual users of approved drugs in the circumstances pleaded.

The motions were granted and the action was dismissed against the moving parties.

This was a costs decision following dismissal of the plaintiff's summary judgment motion and the granting of the defendants' cross-motion for summary judgment dismissing the action against them.

The successful defendants sought $29,905.98 in costs on a partial indemnity basis.

The self-represented plaintiff argued the claim was excessive and that the matter had been over-lawyered, submitting that only provable disbursements should be awarded.

The court agreed that costs should reflect a fair and reasonable amount rather than a precise hourly calculation and fixed costs at $25,000 all inclusive.

This is a costs decision following the successful summary judgment motions of the defendants and third parties in a slip and fall action.

The plaintiff argued that costs should be reduced due to his impecuniosity.

The court rejected this argument, noting that a plaintiff suing for a substantial sum must expect to pay costs if unsuccessful.

The court fixed the costs payable by the plaintiff to the defendants, and the costs payable by the defendant to the third parties, on a partial indemnity basis.

The defendant home inspector brought a motion to set aside a default judgment granted to the plaintiffs four years prior.

The plaintiffs had sued the defendant for professional negligence and breach of contract regarding a home inspection that failed to disclose severe water damage and rot.

The defendant failed to defend the action, citing severe health issues including a heart attack and rheumatoid arthritis.

Despite the significant delay and procedural non-compliance, the court found an arguable defence on the merits and no genuine prejudice to the plaintiffs' ability to prove their case.

The court exercised its discretion to set aside the default judgment, but imposed strict terms including payment of costs thrown away and payment into court as security.

The plaintiff was injured while exiting a taxi and sued her insurer for unidentified automobile coverage after failing to identify the driver.

The insurer brought a motion for summary judgment, arguing the plaintiff did not take reasonable steps to identify the driver and failed to provide proper notice.

The court granted the motion, finding that the driver's identity could have been ascertained with reasonable diligence through the taxi dispatch company's records, meaning the vehicle did not qualify as an 'unidentified automobile' under the policy.

The plaintiffs brought a proposed class action alleging a price-fixing conspiracy regarding lithium ion batteries.

Two foreign defendants, NEC Corporation and NEC Tokin Corporation, brought a motion to stay or dismiss the action against them for lack of jurisdiction simpliciter.

The court granted the motion, finding that the plaintiffs failed to establish a good arguable case that the moving defendants carried on business in Ontario or committed the tort of conspiracy in Ontario, as there was no evidence that their batteries reached Ontario through normal channels of trade or that they participated in acts causing damage in Ontario.

This is a costs decision following the successful setting aside of an Anton Piller Order in an employer-employee dispute.

The defendants sought full indemnity costs of over $450,000, alleging the plaintiffs' principal engaged in reprehensible conduct and failed to make full disclosure on the ex parte motion.

The plaintiffs argued no costs should be awarded due to an unaccepted settlement offer, or alternatively, costs should be significantly reduced.

The court found the defendants' costs claim to be grossly excessive and noted that both parties engaged in acrimonious and uncooperative conduct.

The court awarded the defendants $100,000 in partial indemnity costs, less $10,000 awarded to the plaintiffs for a production motion, payable in any event of the cause.

Following the dismissal of the defendants' motion to set aside a default judgment, the plaintiff sought costs of $9,975.65 on a partial indemnity scale.

The defendants argued the legal fees claimed were excessive and unreasonable, noting the plaintiff's lawyer spent twice as much time on the matter.

The court disagreed, finding the costs claimed to be fair, reasonable, and within the defendants' reasonable expectations.

Costs were awarded to the plaintiff in the requested amount.

The plaintiffs moved for certification of a products liability class action against the defendants regarding pelvic mesh products used to treat pelvic organ prolapse and stress urinary incontinence.

The court dismissed the certification motion, finding that while the plaintiffs satisfied the cause of action, identifiable class, and representative plaintiff criteria, they failed to establish some-basis-in-fact for the commonality and preferable procedure criteria due to the multifarious nature of the 19 different products involved.

The dismissal was made subject to an 'Alternatives Motion' to allow the plaintiffs to propose continuing the proceeding in an altered form.