Peter William Kryworuk

The defendants were successful on a motion for leave to appeal brought by the plaintiffs in a class proceeding.

The defendants sought partial indemnity costs of $10,000, while the plaintiffs suggested $5,000 was appropriate given the motion was in writing.

The court fixed costs at $6,500 payable forthwith, considering the costs awarded on the underlying contempt motion and the merits of the leave application.

Following a successful appeal regarding the apportionment of damages, the court determined the costs of the appeal and cross-appeal.

The third parties were ordered to pay partial indemnity costs of $50,000 to the appellants and $75,000 to the respondents.

The appellants were ordered to pay $30,000 in partial indemnity costs to the respondents, as the respondents were required to address all issues initially raised by the appellants.

The plaintiffs in two class action proceedings sought leave to appeal a case management judge's dismissal of their motion for contempt.

The plaintiffs alleged that the defendant municipality breached a court order limiting communication with class members during the opt-out period.

The court denied leave to appeal, finding that the case management judge correctly applied the test for civil contempt, reasonably concluded the order was subject to multiple interpretations, and that there was no conflicting case law or good reason to doubt the correctness of the decision.

The plaintiffs in two class action proceedings sought leave to appeal the dismissal of their motion for contempt against the defendants.

The contempt motion alleged that the City of Windsor breached an order limiting communication with class members during an opt-out period.

The court denied leave to appeal, finding that the original judge correctly applied the test for contempt, which requires proof beyond a reasonable doubt, a clear and unequivocal order, and deliberate and willful disobedience.

The court found no error in the original judge's conclusion that the order was ambiguous and that a wilful breach was not proven.

Furthermore, the court determined that the plaintiffs failed to identify any conflicting decisions or raise matters of such importance to warrant leave to appeal under Rule 62.02(4) of the Rules of Civil Procedure.

The appellants, an engineering firm and its principal, appealed a trial judgment apportioning liability for damages between them and their insurers.

The trial judge found the appellants liable in negligence and breach of contract for errors and delays in engineering drawings for a construction project.

The trial judge apportioned 45% of the damages to the appellants and 55% to the insurers, based on an exclusion clause for delay.

The Court of Appeal allowed the appeal, finding that all delays were caused by the appellants' negligence in having to correct errors, which was covered under the policy.

The insurers' cross-appeal regarding the assessment of damages and the date used for foreign currency conversion was dismissed.

The appellant municipality appealed a trial judgment finding it liable under the Occupiers' Liability Act for catastrophic injuries sustained by the respondent at a municipal mountain bike park.

The respondent fell from a wooden obstacle and was rendered quadriplegic.

The trial judge found the municipality breached its duty of care by failing to post proper warning signs, negligently promoting the park, failing to monitor risks, and failing to provide an adequate progression of qualifiers.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error in the trial judge's application of the duty of care, standard of care, causation, or assessment of contributory negligence.

The defendant municipalities sought leave to appeal a Case Management Judge's order requiring them to cease and desist an opt-out campaign directed at class members, which the judge found created undue influence.

The plaintiff class representatives sought leave to cross-appeal, arguing the judge should have ordered the removal of existing communications.

The Divisional Court dismissed both motions for leave to appeal, finding no reason to doubt the correctness of the Case Management Judge's findings or the discretionary remedy granted.

The plaintiffs in two certified class actions regarding allegedly illegal bingo licence fees brought a motion to restrict the defendants' multi-media opt-out campaign.

The defendants, the City of Windsor and the Town of Tecumseh, launched an extensive campaign including newspaper ads, websites, and direct mailings, urging potential class members to opt out to save taxpayers from a potential $70 million uninsured damages award.

The court found that while defendants have a right to communicate with class members, the campaign went too far by pitting taxpayers and organizations against each other, creating undue influence.

The court ordered the defendants to add hyperlinks to the class action websites on their materials and directed that class members who had already opted out be given an opportunity to reconsider, but declined to impose broader communication restrictions.

The Court of Appeal issued an endorsement regarding costs following an appeal involving a class action.

Due to divided success and the plaintiffs' failure to produce a rational and workable class definition, which contributed to delays and added costs, the court ordered no costs in either the Court of Appeal or the Divisional Court.

The appellant municipalities appealed the certification of two class actions alleging that charitable lottery licensing fees were ultra vires direct taxes.

The appellants argued that the class definition, which included claims dating back to 1990, was overly broad and included presumptively time-barred claims.

The Court of Appeal allowed the appeal in part, modifying the class definition to align with the 15-year ultimate limitation period under the Limitations Act, 2002.

The Court also created a subclass for the presumptively time-barred claims but held that the representative plaintiffs could represent both the main class and the subclass, and that a class proceeding remained the preferable procedure.

The plaintiffs moved to certify a proposed class proceeding arising from alleged respiratory injuries following administration of Taxotere during breast cancer treatment at a hospital.

Certification was refused because the amended statement of claim did not adequately plead material facts supporting negligence, fiduciary duty, contract, misrepresentation, or failure to warn, and because the proposed class definition was vague and overbroad.

The court held that causation, duty, standard of care, warning, and damages issues were inherently individual and lacked a workable class-wide methodology.

Given the limited number of potential claimants and the predominance of individualized malpractice issues, a class action was not the preferable procedure and the litigation plan was unworkable.

The plaintiffs brought a motion to amend their statement of claim to add a corporate defendant, retain a placeholder defendant, and delete certain words.

The defendants brought a cross-motion to strike the statement of claim for disclosing no reasonable cause of action.

The court granted the plaintiffs' motion to amend, finding that the addition of the corporate defendant was a correction of a misnomer rather than the addition of a new party after the expiry of the limitation period.

The court dismissed the defendants' motion to strike, concluding it was not plain and obvious that the plaintiffs lacked capacity to sue or that their claims for breach of contract, breach of confidence, unjust enrichment, and breach of fiduciary duty would fail.

The appellant homeowner made a claim against his insurer for flood damage, submitting a proof of loss without supporting documentation.

The insurer invoked the statutory appraisal process and successfully moved for an order compelling the appellant to submit to an examination under oath and produce documentation.

The appellant appealed, arguing the appraisal process extinguished the insurer's right to examine him.

The Court of Appeal dismissed the appeal, holding that the appraisal process does not oust the insurer's contractual right to examine the insured, and the court has inherent jurisdiction to make procedural orders to give effect to the statutory scheme.

The defendants sought leave to appeal a motions judge's order certifying two class proceedings regarding the restitution of allegedly illegal lottery licensing fees.

The motions judge had certified all claims going back to 1990, including those that were prima facie time-barred.

The court granted leave to appeal under Rule 62.02(4)(b), finding good reason to doubt the correctness of the certification order, particularly regarding whether a class proceeding was the preferable procedure and whether a sub-class should have been created for the time-barred claims.

The court also found the issues to be of general importance to the development of class action law.

The defendants sought leave to appeal a motions judge's order certifying two class proceedings seeking restitution of lottery licensing fees, including claims that were prima facie time-barred.

The court granted leave to appeal under Rule 62.02(4)(b), finding good reason to doubt the correctness of the motions judge's analysis regarding whether a class proceeding was the preferable procedure and whether a sub-class should have been created for the time-barred claims.

The court also found the issues raised were of general importance to the development of class action law.

The appellants, a nurse and a hospital, appealed a jury verdict finding them liable for a brain injury suffered by an infant during birth.

The jury found the nurse 75% liable and the hospital 25% liable, while dismissing claims against the delivering physician.

The appellants argued the verdict was unreasonable due to insufficient evidence of causation and lack of expert evidence on the hospital's standard of care, and that the trial judge erred in the jury charge.

The Court of Appeal dismissed the appeal, holding that the jury was entitled to determine the hospital's standard of care without expert evidence, that there was sufficient evidence to support the jury's finding of causation based on a robust and pragmatic application of the 'but for' test, and that the jury charge contained no reversible errors.

The appellants successfully appealed a motion judge's decision limiting the scope of their class proceedings based on the Limitations Act.

The Divisional Court, however, refused to award the appellants their costs of the appeal, finding success was divided, and remitted the costs issue to the motion judge.

The Court of Appeal allowed the appeal on costs, holding that the Divisional Court erred in principle by mischaracterizing the appellants' success and by failing to apply the general rule that the costs of a successful appeal should be awarded to the appellant and not depend on the outcome of a rehearing.

The defendants brought a motion seeking to compel the plaintiff insured to attend for an examination under oath or alternatively an examination for discovery regarding the scope and quantum of damages arising from a flood loss claim under a property insurance policy.

The plaintiff argued that because the insurer had invoked the appraisal process under s. 128 of the Insurance Act, issues of quantum were exclusively within that process and outside the court’s jurisdiction.

The court rejected that position, holding that the statutory right to examine the insured under oath was not displaced by the election to proceed through appraisal and that the court retained jurisdiction to make procedural orders facilitating the statutory scheme.

The court also found the plaintiff’s proof of loss materially deficient and concluded that disclosure regarding damages was necessary.

A separate motion by the defendants to quash a summons requiring their appointed appraiser, who had since become counsel of record, to be examined was granted as the proposed examination constituted an unnecessary fishing expedition lacking evidentiary relevance to the pending motion.

The appellants appealed a trial judgment dismissing their medical malpractice claim against the respondent doctor.

The appellants argued the trial judge made palpable and overriding errors in finding that the cause of the patient's bleeding was an IUD rather than a laceration or perforation caused by the respondent's negligence.

The Court of Appeal dismissed the appeal, finding ample evidence to support the trial judge's conclusions and no reviewable error in her assessment of the evidence or exercise of discretion on costs.

The applicant sought leave to appeal a carriage decision in competing securities class proceedings under the Class Proceedings Act, 1992.

A prior motion judge had granted carriage to one group of plaintiffs and stayed the applicant’s action after comparing factors such as causes of action, class definitions, representative plaintiffs, and litigation strategies.

The applicant argued the motion judge improperly conducted a substantive comparison of the competing theories and failed to give sufficient weight to factors such as conflicts of interest and retainer arrangements.

The court held that there was conflicting jurisprudence regarding the proper scope of analysis on carriage motions and that the issue warranted appellate clarification.

Leave to appeal was granted on the question of whether the motion judge erred in assessing the theories and attributes of the competing class actions and in determining carriage.