Peter L. Roy

This is a costs endorsement from the Court of Appeal for Ontario.

The parties settled the issue of costs for the appeal.

The appellant, Anna Barbiero, was ordered to pay the respondent, Dr. Sheldon Victor Pollack, $10,000 in costs, inclusive of disbursements and applicable taxes.

The appellant, Anna Barbiero, sought to overturn the dismissal of a 21-year-old certified class proceeding against Dr. Sheldon Victor Pollack for unlawfully injecting Liquid Injectable Silicone.

The motion judge dismissed the action for inordinate and inexcusable delay.

The Court of Appeal upheld the dismissal, emphasizing the need for a "culture shift" in civil justice to combat delay, finding the Langenecker approach to delay out of step with the Supreme Court of Canada's Hryniak decision.

The court found the 21-year delay inordinate and inexcusable, and the appellant failed to demonstrate error in the prejudice analysis or the exercise of discretion.

The defendant, Dr. Sheldon Victor Pollack, brought a motion to dismiss a certified class action for delay under the Class Proceedings Act, 1992, and Rule 24.01 of the Rules of Civil Procedure.

The class action, initiated in 2003 by the representative plaintiff Anna Barbiero, alleged medical negligence and battery related to Dr. Pollack's injection of Injectable Grade Liquid Silicone (IGLS) for lip augmentation.

The court found the 21-year delay inordinate and inexcusable, with significant periods of unexplained inactivity.

The plaintiff failed to rebut the strong presumption of prejudice, and actual prejudice was established due to the loss of the IGLS sample, which was crucial for the defendant's ability to test its composition and defend against liability and causation claims.

The court granted the motion, dismissing the class action for delay, and ordered that notice be provided to class members.

The plaintiff sought approval of a $7 million settlement and class counsel fees in a class proceeding against an insurance company regarding the performance of an investment fund.

The action, which spanned 20 years, involved claims of breach of contract and negligent misrepresentation.

The court found the settlement to be fair, reasonable, and in the best interests of the class, given the significant litigation risks.

The court also approved class counsel's 30% contingency fee, noting the high risks undertaken and the good result achieved for the class.

The moving parties (defendants) brought a motion for leave to appeal the orders of Belobaba J. dated January 6, 2022.

The Divisional Court dismissed the motion for leave to appeal, with costs fixed at $5,000 payable to the Foodland plaintiffs.

This is a joint decision from the Supreme Court of British Columbia, Alberta Court of Queen’s Bench, Ontario Superior Court of Justice, and Superior Court of Québec concerning the administration and termination of the national Hepatitis C class action settlement.

Class Counsel sought orders approving a third pro rata payment from the PELD Fund, payment of class counsel disbursements, approval of administrative expenses, waiving a future audit, and a declaration terminating the Settlement Agreement.

The courts approved all requests, with a minor variation regarding the termination process, and also granted relief from forfeiture to a class member for a missed payment.

This appeal concerns whether a court has jurisdiction to extinguish a third party's gross overriding royalty (GOR) interest in land through a vesting order in a receivership proceeding.

The Court of Appeal held that while the court has jurisdiction under section 243 of the Bankruptcy and Insolvency Act to grant vesting orders, the motion judge erred in exercising that jurisdiction to extinguish the appellant's GORs, which constituted interests in land akin to ownership interests rather than fixed monetary claims.

However, the appellant failed to appeal within the prescribed 10-day period under the BIA Rules, and the justice of the case did not warrant an extension of time.

The appeal was dismissed, though the appellant retained the $250,000 payment it had received.

The plaintiff in a wrongful dismissal action brought a motion for the production of documents related to the defendant's recruitment process for a Co-Head of M&A. The plaintiff alleged the hiring of the new Co-Head amounted to a demotion and constructive dismissal.

The court found the recruitment documents relevant to the plaintiff's allegations but limited production to documents concerning the successful candidate and one other top candidate to balance relevance with the privacy interests of non-parties and the principle of proportionality.

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.

Following earlier reasons dismissing most applicants’ requests for interim advancement of legal expenses from a corporation, the court addressed the costs of the applications.

The respondent corporation sought substantial indemnity costs exceeding $559,000 or alternatively partial indemnity costs, while the applicants argued that costs should remain in the cause of the underlying indemnity issue.

The court held that although the respondent was largely successful, payment of costs should be contingent on the outcome of the trial determining entitlement to indemnity.

The court fixed partial indemnity costs of $25,000 for a related motion and $165,000 for the applications, subject to specific allocations among applicants and exceptions for one successful applicant and another who withdrew participation.

The appellant former directors and officers of Look Communications Inc. sought advance funding for their legal costs to defend an action brought against them by the corporation for breach of fiduciary duty.

The corporation resisted the claims under s. 124(4) of the Canada Business Corporations Act, arguing the appellants had not acted in good faith.

The application judge refused advance funding, finding the corporation had established a strong prima facie case of bad faith regarding equity cancellation payments and legal retainers.

The Court of Appeal dismissed the appeal, confirming that s. 124(4) applies to actions brought by the corporation and that the strong prima facie case standard is the appropriate test for denying advance funding.

Following the successful appeal by the defendant overturning the certification of a proposed class action for unpaid overtime, the defendant sought partial indemnity costs of $300,000.

The plaintiff and the Law Foundation of Ontario argued that no costs or a maximum of $50,000 should be awarded, citing the novel legal issues and public interest nature of the case.

The Court of Appeal acknowledged the novel points of law and access to justice considerations under section 31(1) of the Class Proceedings Act, 1992, but held that the Act does not insulate representative plaintiffs from adverse costs.

The court fixed the costs of the appeal at $60,000 on a partial indemnity scale.

Former directors, officers, and consultants of Look Communications Inc. sought interim advancement of their legal fees to defend against an action brought by Look alleging breach of fiduciary duty regarding bonus and equity cancellation payments.

The court held that s. 124(4) of the CBCA applies to actions brought directly by the corporation, requiring court approval for advancement.

The court found Look established a strong prima facie case of mala fides against the directors and officers, rebutting the presumption of good faith.

Advancement was denied for all applicants except one employee, Dolgonos, whose entitlement arose under an indemnity agreement not subject to s. 124(4).

The plaintiff brought a proposed class action alleging that the defendant railway company misclassified first line supervisors as managerial employees to avoid paying overtime under the Canada Labour Code.

The motion judge certified the action but significantly redrafted the common issues, rejecting the plaintiff's proposed misclassification issue due to a lack of commonality.

On appeal, the Court of Appeal held that the motion judge correctly rejected the misclassification issue because individualized assessments of job duties were required.

However, the Court found the motion judge erred in certifying a reframed common issue about the minimum requirements for managerial status, as it suffered from the same lack of commonality.

The certification order was set aside.

The appellant City purchased asset-backed commercial paper notes that subsequently collapsed in value.

The City sued the respondents for negligent misrepresentation, conspiracy, and unjust enrichment more than two years after purchasing the notes but less than two years after the notes matured and defaulted.

The Court of Appeal upheld the motion judge's summary judgment dismissing the claims as statute-barred.

The Court held that for negligent misrepresentation inducing a transaction, damage occurs when the plaintiff enters into the transaction and receives something less valuable than represented, not when the full extent of the loss is monetized.

The limitation period was not suspended by a standstill agreement or by the involvement of an investors committee.

The applicant, the former president and CEO of the respondent company, sought a declaration that the company's management information circular was not properly authorized and contained material misrepresentations regarding his departure.

He argued the circular falsely stated he 'stepped down' instead of being terminated without cause, and omitted his potential $1 million severance claim.

The court found the circular was validly authorized through retroactive ratification.

While the court agreed the disclosure was not entirely forthright, it dismissed the application because the applicant failed to prove the alleged misrepresentations were material to a reasonable shareholder voting on the election of directors.

A mining company sought indemnification from the federal government for environmental remediation costs associated with uranium tailings produced under Cold War-era fixed-price uranium supply contracts with a Crown corporation.

The plaintiff argued that the contracts contained an implied term guaranteeing profitability or requiring indemnification if later government regulation increased production costs, and alternatively alleged breach of a duty of good faith and unjust enrichment.

The government moved for summary judgment dismissing the action, while the plaintiff brought a cross-motion for partial summary judgment.

The court held that the proposed implied term was inconsistent with the express fixed‑price structure of the contracts and failed the necessity test for implying contractual terms.

It further held that the doctrine of good faith could not be used to create new obligations inconsistent with the contract, and that the government's enactment of environmental legislation did not constitute contractual bad faith.

The appellant lawyers represented the plaintiffs in a successful class proceeding that declared certain provisions of the Canada Pension Plan invalid, entitling class members to survivor benefits.

The lawyers sought to enforce a first charge on the monetary award for their fees under s. 32(3) of the Class Proceedings Act.

The Court of Appeal held that the award constituted a 'benefit' under the CPP, which prohibits assigning or charging benefits under s. 65(1).

The Court found that the CPP prevailed over the CPA, rendering the lawyers' charge void.

Commercial appeal arising from a terminated joint venture funding agreement for the acquisition of Greek mines.

The Court of Appeal held that no fiduciary duty survived termination of the parties' arm's-length commercial agreement, but upheld findings that the respondent group provided confidential information, that the appellant misused that information in acquiring the property, and that the confidentiality agreement and common law duty of confidence were enforceable.

The court refused to admit fresh evidence under the Palmer test and dismissed a non-party motion to set aside the judgment based on alleged ownership of the information.

The remedy awarding a 12 per cent carried interest plus a further 12 per cent participating interest was upheld, while both the main appeal and cross-appeal were dismissed.

The applicant employees sought to enforce a Review Officer's Order directing the respondent employer to revise and post a pay equity plan and make retroactive payouts.

The employer sought to vary the Order, arguing that the higher job rate paid to a male comparator (Programmer Analyst) was justified under the 'skills shortage' exception in s. 8(1)(e) of the Pay Equity Act.

The Tribunal found that the employer failed to establish that it had encountered difficulties in recruiting employees with the requisite skills, as it relied only on general market trends rather than its own specific recruitment experiences.

The Tribunal ordered the employer to comply with the Review Officer's Order, post the pay equity plan, and mail copies to former employees.

The issue of interest on outstanding payments was deferred pending further submissions.