Remissa Hirji

This application sought a determination of contractual rights regarding an early termination provision in pre-construction condominium agreements.

The applicants argued that a 'sole, absolute and unfettered discretion' proviso in a financing condition rendered the entire condition null and void under the Tarion Addendum, leading to a breach of contract claim.

The court found that the proviso did not form part of the early termination condition or, if it did, it was inconsistent with the Addendum's requirement for commercially reasonable steps and was therefore unenforceable.

The court interpreted the condition to require vendors to take all commercially reasonable steps to arrange satisfactory financing, upholding the validity of the termination condition and dismissing the application.

The plaintiffs in a class action against Ford Motor Company sought court approval of a settlement agreement concerning allegedly defective Powershift Dual-Clutch Transmissions in Ford Focus and Fiesta vehicles.

The settlement, reached after mediation, provided varied compensation to class members on a claims-made basis, including cash payments for multiple repairs or alternative benefits like partial refunds for persistently troubled vehicles.

The court approved the settlement, finding it fair, reasonable, and in the best interests of the class, noting its advantages over individual litigation.

The court also approved class counsel fees (a combination of defendant contribution and a percentage of claims) and honoraria for representative plaintiffs, while denying late opt-out requests.

The plaintiffs moved for certification of a national class action against Ford Motor Company and Ford Motor Company of Canada, Limited, concerning alleged non-repairable defects in the transmissions of Ford Focus and Ford Fiesta automobiles.

The parties had reached a tentative settlement.

The court granted the consent order for certification, finding that all criteria under section 5(1) of the Class Proceedings Act, 1992 were met, including disclosure of a cause of action (breach of contract/warranty and Civil Code of Quebec provisions), an identifiable class, common issues, and that a class proceeding was the preferable procedure.

The court also approved the form and plan for distribution of the notice to the class.

The plaintiff sought approval of a $17.5 million settlement with the remaining defendants in a class action regarding a charitable tax scheme.

The court approved the settlement as fair and reasonable, noting the significant risks of further litigation, including enforcement issues in Bermuda.

The court also approved class counsel's 33% contingency fee of $5,829,427.20 plus HST, and a $50,000 honorarium for the representative plaintiff, who made extraordinary efforts and financial sacrifices.

A costs request by third parties was dismissed.

The Plaintiffs in a class action sought leave to examine second corporate representatives for AIC Limited and CI Mutual Funds Inc., and to examine non-party witnesses, pursuant to Rules 31.03 and 31.10 of the Rules of Civil Procedure.

The court dismissed the motions, finding that the Plaintiffs had not demonstrated that satisfactory answers could not be obtained from the initial representatives or that it would be unfair to proceed to trial without further examinations.

The court emphasized that Ontario's discovery rules generally envision a single examination per party, with the representative obliged to inform themselves and provide information based on knowledge, information, and belief, including through undertakings.

The plaintiffs, having successfully appealed the dismissal of their class action as time-barred and obtained certification and leave to proceed, sought costs on a partial indemnity basis for the certification and leave motions.

The defendants argued for a significant reduction, citing an "indulgence" (nunc pro tunc order), costs for required steps, limitation period issues, expert reports, divided success, and comparable cases.

The court rejected the defendants' arguments, emphasizing the extraordinary nature of the case, the public interest in access to justice for complex class actions, and the substantial success achieved by the plaintiffs.

The court awarded the plaintiffs the full amount of costs claimed, $2,679,277.82, payable by the Canadian Imperial Bank of Commerce.

The Court addressed three securities class action appeals on whether limitation periods for statutory secondary-market misrepresentation claims are suspended before leave is granted, and on related nunc pro tunc, special circumstances, leave-threshold, and certification issues.

The CIBC and IMAX appeals were dismissed, while the Celestica appeal was allowed.

Following dismissal of a motion by four donor‑distributors seeking to opt back into a class proceeding after previously opting out, the court determined the appropriate costs award.

The responding party sought $28,893 on a partial indemnity basis, while the unsuccessful moving parties argued that costs should not exceed $2,500.

The court found that the motion to opt back in was misguided and largely predictable in outcome based on existing jurisprudence.

Considering the factors in Rule 57.01(1) of the Rules of Civil Procedure and the Court of Appeal’s guidance that costs must be fair and reasonable to the unsuccessful party, the court fixed costs at $10,000 all‑inclusive payable by the unsuccessful moving parties.

Certain class members who had previously opted out of a certified class proceeding sought to opt back into the class action after a settlement was reached and a related third party claim was stayed.

They argued they were confused at the time of opting out and unaware that the third party claim against distributors might be stayed.

The court held that voluntary opt-outs may only be invalidated where there is evidence of misinformation, coercion, or other misconduct undermining the opt-out process.

No such evidence existed, and the explanation for opting out was neither credible nor legally relevant.

Emphasizing the importance of finality and integrity in the opt-out mechanism under the Class Proceedings Act, the motion to opt back into the class proceeding was dismissed with costs.

The plaintiffs sought court approval of a class action settlement under s. 29(2) of the Class Proceedings Act, 1992 arising from a Legionnaires’ Disease outbreak at a municipal long‑term care facility.

The settlement created a compensation fund for class members with tiered payments based on hospitalization and permitted challenges to categorization and references for additional damages.

The court applied established factors governing settlement approval and concluded the agreement fell within the zone of reasonable outcomes given litigation risk, delay, and the advanced age of many class members.

The court also approved class counsel fees and modest stipends for representative plaintiffs.

Due to a conflict with counsel and ongoing objections, one representative plaintiff was removed during the administration phase of the settlement.

The plaintiff brought a proposed class action against the former and current trustees of the Nortel Health and Welfare Trust, alleging fraud and constructive fraud in the administration of the trust.

The defendants moved to strike the claim under Rule 21, arguing that the claims were barred by a release granted in Nortel's CCAA proceedings and were statute-barred under the Limitations Act, 2002.

The court held that the CCAA release barred the constructive fraud claims, and that the plaintiff failed to plead a tenable claim for common law fraud.

Furthermore, the court found that the claims were discovered outside the two-year limitation period.

The action was dismissed.