Roger Flaim

Following successful motions to strike the plaintiffs' $5 million claim as statute-barred, the defendants sought their costs on a partial indemnity basis.

The plaintiffs argued the requested amounts were disproportionate and suggested a combined award of $10,000.

The court reviewed the complexity of the historical claims, the extensive document retrieval required, and the plaintiffs' conduct which prolonged the proceedings.

Applying the principles of reasonableness and proportionality, the court awarded costs of $85,000 to each defendant.

The plaintiffs commenced an action in 2020 alleging breach of an airport lease and negligent misrepresentation regarding a lease extension promised between 1985 and 1995.

The defendants moved to strike the claims under Rule 21.01(1) as statute-barred.

The plaintiffs argued the Real Property Limitations Act applied or that the breaches were ongoing.

The court rejected these arguments, finding the claims were subject to the Limitations Act, 2002 and the former Limitations Act.

The court held it was plain and obvious that the plaintiffs discovered their claims between 1999 and 2013, well beyond the applicable limitation periods.

The action was dismissed without leave to amend.

The appellants appealed the dismissal of their application to set aside a NAFTA Chapter 11 arbitration award.

They argued the tribunal exceeded its jurisdiction by misapplying the causation standard and that the award violated public policy.

The Court of Appeal dismissed the appeal, affirming the narrow scope of judicial review for arbitration awards under the Commercial Arbitration Code.

The court held that the tribunal acted within its jurisdiction and that the award did not conflict with Canadian public policy, which requires a very high standard for intervention.

The Attorney General of Canada brought a motion to rectify a mutual release signed with Elmara Construction Co. Limited, asserting it was mistakenly drafted as mutual instead of a one-sided release from Elmara to Canada, contrary to their settlement agreement.

Elmara did not oppose the rectification.

AC Metal Fabricating Limited, a plaintiff in the broader litigation, opposed the motion, arguing the mutual release was intended or that their own mutual release with Canada already precluded Canada's future warranty claims against Elmara.

The court found that the mutual release failed to accurately record the parties' prior agreement, which intended a one-sided release from Elmara to Canada, preserving Canada's warranty rights.

The court held that the mistake was common to Canada and Elmara, or alternatively, a unilateral mistake by Canada that Elmara knew or ought to have known about, and allowing Elmara to benefit would be unconscionable.

The motion for rectification was granted.

This is a costs endorsement following the dismissal of an appeal and cross-appeal in a class proceeding.

The court outlines the disposition of costs, including payments between the Law Foundation of Ontario, the Attorney General of Canada, and the Ontario Health Insurance Plan.

The original appeal by Kathryn Anne Taylor was dismissed, leading to this costs decision.

The appellant, representative plaintiff in a class action concerning defective temporomandibular joint (TMJ) implants, appealed the dismissal of her action following a trial of common issues.

She alleged the Canadian government (Health and Welfare Canada, HWC) owed a duty of care to regulate and warn about the devices.

The Court of Appeal upheld the trial judge's finding that no private law duty of care was owed by HWC, either through the legislative scheme or through interactions with class members, and found no palpable and overriding error in the trial judge's factual findings regarding the approval status of the devices.

The Attorney General's cross-appeal on costs was granted leave but dismissed, with the court affirming the trial judge's discretion in awarding costs, particularly considering the public interest nature of the case and the Class Proceedings Fund.

Following the dismissal of a class action concerning medical device implants, the Crown sought over $6.3 million in costs.

The plaintiff argued for no costs based on public interest and access to justice principles under the Class Proceedings Act, and sought costs for an unproven fraud allegation against a witness.

The court significantly reduced the Crown's costs to $385,000, noting the public interest nature of the case, the access to justice mandate, and the Crown's own contribution to the 20-year delay.

OHIP was ordered to pay 10% of the costs, with the remainder payable by the Law Foundation of Ontario.

The plaintiff brought a class action against the Crown alleging negligent regulation of Vitek Proplast temporomandibular joint (TMJ) implants by Health Canada.

The plaintiff claimed that the Crown owed a private law duty of care to the class members and breached that duty by failing to properly regulate the devices, issuing Notices of Compliance negligently, and failing to adequately warn the public or recall the devices.

Following a lengthy common issues trial, the Superior Court of Justice dismissed the action.

The court applied the Anns test and concluded that the Crown did not owe a private law duty of care to the class members, as there was insufficient proximity between the regulator and the unidentifiable group of potential implant recipients.

Furthermore, the court found that even if a duty of care existed, the Crown did not breach the applicable standard of care, as its regulatory actions and responses to the evolving scientific understanding of the implants' risks were reasonable and appropriate.

The plaintiff brought a motion under Rule 60.12 to strike the defendant's Statement of Defence in a class action, alleging failure to produce documents.

Mid-motion, the plaintiff changed the requested relief to an order for specific further productions and examinations.

The Master found that the plaintiff's mid-motion change in position and late-filed materials prevented the defendant from properly responding.

The Master also concluded that granting the proposed order risked jeopardizing a fixed 17-week trial date, and a Master lacks authority under Rule 37.02(2)(b) to make orders that would effectively adjourn a judge's fixed trial date.

Consequently, the motion was adjourned sine die, and the parties were directed to attend before Justice Firestone for directions regarding the trial date and the relief sought.

The applicant, the Attorney General of Canada, sought to set aside a NAFTA arbitral award that found Canada liable for breaching the prohibition on performance requirements under Article 1106.

Canada argued that the tribunal exceeded its jurisdiction by applying the wrong criteria to determine whether the impugned guidelines fell within Canada's reservation for subordinate measures under Article 1108.

The Superior Court of Justice dismissed the application, holding that the tribunal's interpretation of the NAFTA reservation provisions was a question of merits, not a true question of jurisdiction under Article 34(2)(a)(iii) of the Commercial Arbitration Code.

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.