Peter Istvan Waldmann

The defendant in a proposed class action moved under s. 29.1 of the Class Proceedings Act, 1992 to dismiss the action for delay, on the basis that the plaintiff failed to file a final and complete certification motion record within one year of commencing the action.

The plaintiff filed a certification record three days after the one-year deadline and, in any event, the record was incomplete as it contained no litigation plan — an indispensable requirement under s. 5(1)(e)(ii) of the CPA.

The plaintiff also moved to amend the Statement of Claim and substitute two new representative plaintiffs, but both proposed plaintiffs demonstrated no meaningful understanding of or engagement with the litigation plan requirement, effectively leaving counsel to litigate on his own.

The Court of Appeal had definitively eliminated any judicial discretion to relieve parties of the strict requirements of s. 29.1.

The motion to dismiss was granted; the motion to amend and substitute was denied.

On panel review under s. 7(5) CJA, the appellant challenged dismissal of a motion to extend time to perfect an appeal.

The panel found justice required an extension because perfection materials had been tendered before dismissal notice and defects were largely technical with no demonstrated prejudice.

The review motion was granted and timelines reset.

This endorsement addresses the awarding of full indemnity costs to the Defendants following the dismissal of the Plaintiffs’ defamation action under the anti-SLAPP provisions of the Courts of Justice Act.

The court found that several indicia of anti-SLAPP litigation were present, including a history of litigation against critics, a punitive purpose, and minimal damages.

The Plaintiffs did not provide costs submissions or arguments against the statutory presumption of full indemnity costs.

The court found the quantum of costs sought to be reasonable and noted that the Plaintiffs’ conduct increased litigation costs.

The Defendants were awarded $64,359.30 in costs, payable within 30 days.

The court dismissed a defamation action brought by UM Financial Inc., Omar Kalair, and Yusuf Panchbhaya against Ronald Butler and Butler Mortgage Inc. The plaintiffs alleged that a social media post by Mr. Butler defamed them by referencing a halal mortgage organization that "ripped off its clients years ago & embezzled people’s money." The court found that UM Financial lacked standing as an undischarged bankrupt, and that the impugned words did not refer to the plaintiffs specifically.

The court also found that the plaintiffs failed to show substantial merit to their claim, failed to show the defendants had no valid defences, and failed to demonstrate that the public interest in allowing the action to proceed outweighed the public interest in protecting the expression.

The action was dismissed under the anti-SLAPP provisions of the Courts of Justice Act.

The appellant, a formerly licensed lawyer, appealed the dismissal of his $15 million action against his former counsel for negligent legal advice and ineffective assistance during contempt proceedings.

The motion judge had dismissed the action under Rule 21.01(3)(d) as frivolous, vexatious, or an abuse of process.

The Court of Appeal dismissed the appeal, affirming that the action constituted an impermissible collateral attack on previous contempt findings.

The court also upheld the motion judge's finding regarding the limited scope of the retainer, which did not obligate counsel to adduce the additional evidence the appellant claimed was missing, and concluded that such evidence would not have altered the original contempt finding based on the appellant's collusion with his former client.

The applicants sought an order compelling Martin & Hillyer Associates to produce an unredacted adverse costs insurance policy.

Martin & Hillyer had provided a partially redacted copy, claiming privilege and confidentiality over certain portions.

The court found that the redacted portions were neither privileged nor confidential, as the policy contained generic wording common to such contracts and did not include solicitor-client communications or litigation strategy.

The court emphasized that the entire policy was relevant for proper contractual interpretation.

The application for production was granted.

The appellant appealed a summary judgment dismissing its action as statute-barred under the Limitations Act, 2002.

The action, assigned from a bankrupt estate, alleged negligence and breach of fiduciary duty by the former bankruptcy trustee and its representative.

The Court of Appeal found that the motion judge erred by reversing the onus of proof regarding discoverability and by failing to consider s. 12 of the Limitations Act, which applies to assigned claims in bankruptcy.

The court held that the limitation period analysis must account for the dual roles of the creditor as an inspector and the need to obtain court orders (s. 38 and s. 215 BIA) before commencing action against a trustee.

The appeal was allowed, the dismissal set aside, and the limitation period issue was directed to proceed to trial.

This is a motion for certification for settlement purposes in a proposed privacy law class action concerning a data breach affecting 8.6 million customers of LifeLabs.

The parties reached a settlement agreement, and the plaintiffs sought court approval for certifying the action for settlement, approving the settlement notices (Short and Long Form), and a plan for their dissemination.

The court granted the motion, finding that all criteria for certification were met, albeit less rigorously applied in the settlement context.

The settlement involves a guaranteed fund of $4.9 million and a contingent fund of $4.9 million, with claimants receiving a minimum of $50.

The defendants brought a motion to dismiss the plaintiff's professional negligence and negligent misrepresentation claims as frivolous, vexatious, or an abuse of process under Rule 21.01(3)(d).

The plaintiff, a suspended lawyer, alleged negligent legal advice and breach of professional obligations by the defendants in defending him against a civil contempt application, which resulted in a jail sentence.

The court found that the plaintiff's action constituted an impermissible collateral attack on prior court orders that had already established his contempt.

The court accepted the defendants' evidence regarding the limited scope of their retainer and dismissed the plaintiff's claims, including a claim for recovery of legal fees, which the court suggested should be pursued under the Solicitors Act.

This endorsement concerns the costs of a successful motion brought by Skyservice Business Aviation Inc. to strike allegations of vicarious liability for sexual harassment from the plaintiff's statement of claim.

Skyservice sought costs on a substantial indemnity basis, while the plaintiff argued for partial indemnity.

The court found no conduct warranting substantial indemnity costs, affirming that such an elevated scale is reserved for reprehensible conduct.

The court awarded Skyservice costs on a partial indemnity basis in the amount of $14,562.88, finding the quantum reasonable based on the time spent and rates, and noting its similarity to the plaintiff's own partial indemnity costs outline.

A police services board and a detective appealed a trial judgment finding them liable for false arrest, negligent investigation, and malicious prosecution, with significant damages awarded to the plaintiff.

The plaintiff cross-appealed the costs award.

The Court of Appeal dismissed both the appeal, upholding the trial judge's findings on lack of reasonable and probable grounds and malice, and the cross-appeal, affirming the costs award.

The defendant Skyservice Business Aviation Inc. brought a motion under Rule 21.01(1)(b) of the Rules of Civil Procedure to strike allegations of vicarious liability for sexual harassment from the plaintiff's Fresh as Amended Statement of Claim, arguing that it does not disclose a reasonable cause of action.

The court found that sexual harassment is not an independent tort in Ontario and that section 46.3 of the Human Rights Code expressly excludes vicarious liability for sexual harassment against an employer.

The motion to strike was granted, with leave to amend denied for this specific tort, but allowing for amendments related to other Code infringements under section 46.1.

This is an appeal and cross-appeal concerning the assessment of a law firm's fees under an unenforceable contingency fee agreement (CFA).

The law firm, Singer Kwinter (SK), appealed the application judge's reduction of their fees and a finding of double-billed disbursements.

Their former client, David Lima, cross-appealed the quantum meruit assessment and sought a greater reduction.

The Court of Appeal affirmed that an unenforceable CFA leads to a quantum meruit assessment, not forfeiture of fees, and reversed the double-billing finding due to procedural unfairness.

On costs, the court balanced SK's responsibility for the assessment due to non-compliance with the Solicitors Act against Lima's responsibility for the hearing's length due to rejecting reasonable settlement offers.

The appellants appealed a motion judge's decision enforcing a contingency fee agreement provision requiring them to join in an application under section 28.1(8) of the Solicitors Act for court approval of the inclusion of a percentage of legal costs paid to them as part of the solicitor's contingency fee.

The appellants argued that the provision was unenforceable and that they should have been permitted to oppose the application on the grounds that exceptional circumstances did not exist.

The Court of Appeal upheld the motion judge's decision, holding that the provision was enforceable and that the appellants were required to support the application.

The court also found that exceptional circumstances existed justifying the payment.

The applicant, Cassie Hodge, brought a motion for court approval of a class action settlement, class counsel's legal fees, and an honorarium for herself.

The class action alleged that the respondents, Gary Neinstein and Neinstein & Associates LLP, breached the Solicitors Act and fiduciary duties by charging additional costs and excessive disbursements in motor vehicle personal injury claims.

After extensive litigation and mediation, the parties reached a settlement.

The court approved the settlement as fair, reasonable, and in the best interests of the class, considering the litigation risks.

Class counsel's fee request of $1.0 million plus HST was approved, and an honorarium of $10,000 for the representative applicant was approved, reduced from the requested $20,000, acknowledging her extraordinary contribution.

The appellant appealed from a motion judge's order requiring disclosure of all documents and communications relating to a settlement agreement between the appellant and its creditor, Zodax.

The respondent sought annulment of the appellant's bankruptcy proposal, alleging that the Zodax settlement was entered into secretly and fraudulently to obtain court approval without proper disclosure to creditors.

The motion judge ordered production, finding that the integrity of the bankruptcy proposal process outweighed settlement privilege.

The Court of Appeal granted leave to appeal and dismissed the appeal, holding that while settlement privilege is a class privilege that generally applies, it may be subject to exceptions where competing public interests require disclosure, particularly where allegations of fraud in the proposal process are raised.

Appeal of a Divisional Court decision certifying a class proceeding brought by a former client against a personal injury law firm for alleged violations of the Solicitors Act relating to contingency fee agreements.

The applicant alleged the firm violated section 28.1(8) by including costs in its fees without court approval, charged interest contrary to section 33, and breached fiduciary duties and contracts.

The Court of Appeal dismissed the firm's appeal and allowed the applicant's cross-appeal in part, upholding certification of the class proceeding with 18 of 19 common issues (deleting one issue regarding whether the firm actually took amounts for costs) and certifying two additional common issues regarding breach of fiduciary duty and punitive damages.

This endorsement addresses the issue of costs following a previous decision.

The successful Plaintiff sought costs of $43,566.14, including disbursements for an expert report on Dutch law.

The Defendant challenged the quantum, arguing the issue was comparatively narrow and suggesting half the amount.

The court, applying principles of proportionality, found the claimed amount excessive and fixed the Plaintiff's costs at $30,000, inclusive of disbursements and taxes, payable within 30 days.

The plaintiff appealed a master's order dismissing its motion for a court‑imposed discovery plan under the Rules of Civil Procedure.

The appellant argued that a discovery plan was necessary to prevent delays and costs arising from refusals and undertakings during examinations for discovery.

The court held that the master applied the correct legal principles and exercised her discretion appropriately, noting that the pleadings were not finalized and that the appellant had made insufficient efforts to reach agreement on a discovery plan with the opposing parties.

The court also confirmed that jurisprudence does not require a master to impose a discovery plan whenever parties cannot agree, but instead grants discretion based on the circumstances.

Finding no palpable and overriding error or error in principle, the appeal was dismissed.