Peter I. Waldman

The defendant, Diamond & Diamond Lawyers LLP, brought a motion to dismiss a class proceeding for delay, arguing that the plaintiffs, William Tataryn and Daya Nand Rajan, failed to comply with section 29.1 of the Class Proceedings Act, 1992.

The court found that the plaintiffs had not taken the required steps towards certification within the statutory deadline of October 1, 2021.

The court rejected the plaintiffs' arguments that their efforts to amend faulty pleadings constituted progress under s. 29.1 or that the defendant had waived its rights.

The court also dismissed the request for a "Phoenix" order, which would allow a new action to be started, deeming it contrary to the policy of s. 29.1.

The action was dismissed.

The defendants brought a second motion under Rule 21.01 to strike portions of the plaintiff's seventh amended statement of claim, alleging non-compliance with a previous ruling.

The plaintiff brought a cross-motion to add a new plaintiff and new statutory causes of action.

The court granted the motion to strike references to previously discontinued defendants and a claim of fraudulent concealment, finding them improper or insufficiently pleaded.

However, the court dismissed the motion to strike new consumer protection claims and the challenge based on limitation periods, deeming these issues premature for a pleadings motion.

The plaintiff's cross-motion to add a new plaintiff was granted.

This motion addressed the enforceability of paragraph 16 of a contingency fee agreement between Stockwoods LLP and the plaintiffs, which stipulated that a portion of legal costs obtained in a settlement could be included in Stockwoods' fee, subject to court approval due to exceptional circumstances.

The court also determined whether the plaintiffs were obligated to join Stockwoods in a joint application for such approval under s.28.1(8) of the Solicitor's Act.

The court found paragraph 16 enforceable and binding, compelling the plaintiffs to participate in the joint motion.

The plaintiff, AAA Entertainment B.V., moved for summary judgment to enforce a foreign judgment from the Amsterdam District Court against the defendant, Cinemavault Releasing International Inc. While partial summary judgment was granted for the principal amount, the defendant contested the enforcement of a court-imposed penalty for delayed compliance, arguing improper service and public policy contravention.

The court found proper service under Dutch law and the Hague Convention and determined that the penalty, being a coercive measure to ensure compliance rather than a penal provision, was not contrary to Ontario public policy and was therefore enforceable.

The applicant sought to certify a class proceeding against her former lawyers, alleging they breached the Solicitors Act by improperly including recovered costs in their contingency fees without court approval.

The court dismissed the certification motion, finding that while the pleadings disclosed a cause of action and an identifiable class could be defined, the claims lacked commonality.

The court held that determining whether the contingency fee agreements were fair and reasonable required highly individualized assessments of each solicitor-client relationship, making a class proceeding unmanageable and not the preferable procedure.

Following the abandonment of a motion seeking court approval of a third‑party litigation funding agreement in a proposed class proceeding, the respondents sought costs under Rule 37.09(3) of the Rules of Civil Procedure.

The applicant argued that the costs decision should be deferred to the certification motion, that no costs should be awarded due to the novelty of the issues, or alternatively that a reduced amount should be ordered.

The court held that the normal rule applies that a responding party is entitled to costs when a motion is abandoned.

While costs were warranted, the amount claimed on a partial indemnity basis was excessive.

The court reduced the award and ordered costs payable to the respondents in the amount of $7,000, all inclusive.

The plaintiff appealed a Master's order transferring the defamation action from Toronto to Hamilton.

The plaintiff argued that extensive media coverage in Hamilton regarding his previous murder charge and its withdrawal created a reasonable apprehension of bias, preventing a fair jury trial.

The Superior Court of Justice allowed the appeal, finding the Master erred in law by failing to properly address the reasonable apprehension of bias and by expressing inappropriate personal views regarding a perceived duty to the child of a murdered barrister, which amounted to a denial of a fair hearing.

The appellant appealed a Master's order transferring the defamation action and place of trial from Toronto to Hamilton.

The defamation claim arose from media reports following the withdrawal of murder charges against the appellant in Hamilton.

The appellant argued he could not get a fair jury trial in Hamilton due to extensive prejudicial publicity.

The Superior Court of Justice allowed the appeal, finding the Master erred in law by failing to properly address whether the appellant had a reasonable apprehension of bias in Hamilton.

The court also found the Master's inclusion of irrelevant personal views regarding the murdered parents of the responding party amounted to an effective denial of a fair hearing.