Russell M. Raikes

The plaintiffs sought to certify a class action against CIBC Mortgages Inc. regarding the calculation of prepayment penalties on residential mortgages.

The plaintiffs alleged that the prepayment penalty clauses were illegal, contrary to public policy, unconscionable, and void for uncertainty, and that the defendant miscalculated the penalties by failing to apply a present value discount and using a shortened amortization period.

The court found that the pleadings did not disclose causes of action for illegality, unconscionability (as pleaded), uncertainty, or failure to apply a present value discount.

However, the court found a valid cause of action regarding the use of a shortened amortization period and certified the action as a class proceeding on that narrowed basis.

The plaintiffs brought a motion seeking an interim stay and an adjournment of a scheduled certification motion in Ontario.

The purpose was to pursue certification of a national class in a parallel class proceeding in British Columbia, citing the death of lead counsel in BC and anticipated legislative changes allowing opt-out national classes there.

The court denied the motion, finding the request was a late-stage tactical shift amounting to forum shopping, inefficient, and unfair to the defendant and class members, especially given the Ontario action's advanced stage and prior agreements on scheduling.

The appellant appealed a Tribunal decision regarding the calculation of income for social assistance purposes.

The Tribunal had included a loan incurred for refinancing an existing student loan as income.

The Divisional Court allowed the appeal, finding the Tribunal's decision unreasonable.

The Court held that there is implicit discretion under s. 48(1) of O.Reg. 134/98 to exclude a loan where the recipient receives no actual financial benefit or increase in assets.

The matter was remitted to the Tribunal for reconsideration.

The appellants appealed an order finding that a trail across their land was an 'access road' under the Road Access Act and refusing to order it closed.

The Divisional Court dismissed the appeal, finding ample evidence that prior owners had permitted the respondent's use of the road to access his landlocked property.

The court also upheld the application judge's discretionary decision to refuse closure and impose conditions, noting the respondent's long-term use and lack of disruption to the appellants.

The debtor company filed a Notice of Intention to Make a Proposal under the Bankruptcy and Insolvency Act.

Three days later, a fuel supplier processed a pre-authorized debit for pre-NOI arrears.

The debtor sought the return of the funds, arguing the payment violated the stay of proceedings under s. 69(1)(a) of the BIA.

The court held that processing the pre-authorized debit constituted a 'remedy' captured by the stay, as it gave the supplier an advantage over other creditors.

The supplier was ordered to return the funds, less a set-off for fuel supplied post-NOI.

The parties separated after a 14-year marriage with four children.

The applicant father sought child support deviation under shared custody and undue hardship provisions, as well as spousal support and equalization.

The court found the 40% shared custody threshold was only met for one child and rejected the undue hardship claim.

The court awarded the applicant spousal support of $875 per month for nine years on both compensatory and non-compensatory grounds, noting his contributions to the respondent's nursing career and his post-separation economic disadvantage.

Equalization values were also determined.

Plaintiffs' counsel brought a motion seeking court approval of their contingency fee retainer agreement, class counsel fees, disbursements, and an honorarium for the representative plaintiff, Soheil Kafai, following a class action settlement.

The court considered factors for reasonableness of fees, including complexity, risk, responsibility, monetary value, importance to the class, skill, results, and opportunity cost.

The court approved the retainer agreement, fees, disbursements, and a $1,000 honorarium for the representative plaintiff, finding them fair and reasonable.

The plaintiffs sought court approval for a class action settlement and allocation plan concerning a Hepatitis A contamination recall of frozen fruit.

The court approved the $3,000,000 settlement, finding it fair, reasonable, and in the best interests of the class, considering the arm's length negotiations, lack of significant objections, and risks of continued litigation.

The plan allocated funds across four categories: purchasers, immunized members, bodily injury members, and family members/health insurers.

This trial addressed custody, care schedule, child support, and a constructive trust claim between unmarried parents.

The court granted sole custody of the child to the respondent mother, Amanda Mattson, finding that joint custody was not in the child's best interests due to the parents' significant communication difficulties and mistrust.

The applicant father, Matthew Bruce Ince, was granted an expanded care schedule, including alternating weekends and shared summer holidays, but his proposed equal 2-2-3 schedule was rejected as too disruptive.

Child support was set at $1,079 per month, with annual adjustments.

The court also found unjust enrichment regarding the mother's contributions to the father's former home and ordered the father to pay the mother $8,780.50.

The defendants in a proposed price-fixing class action brought a motion for directions to pause the proceeding pending the release of a Supreme Court of Canada decision in a related case.

The plaintiffs opposed the delay.

The court found that it made sense to await the Supreme Court's decision for efficiency, but declined to vacate the scheduled motion dates immediately.

The court directed that most cross-examinations proceed, but deferred the cross-examination of the plaintiffs' expert economist until after the Supreme Court hearing.

The applicant sought declarations of her mother's incapacity to manage property, personal care, and instruct counsel, and an order for a new capacity assessment, as well as removal of her mother's s. 3 counsel.

The court dismissed the applicant's motion, finding that previous assessments of incapacity for property and personal care were sufficient and that a further assessment for capacity to instruct counsel was unnecessary and intrusive.

The court affirmed the role of s. 3 counsel and the principle that counsel determines their client's capacity to instruct, absent strong evidence to the contrary.

The applicant sought to set aside a cohabitation agreement signed prior to marriage that waived spousal support and equalization, and alternatively sought spousal support despite the agreement.

The court found the agreement was valid and binding, dismissing claims of duress, unconscionability, and material non-disclosure.

However, applying the Miglin framework, the court awarded the applicant a $250,000 lump sum in spousal support, finding that her unexpected severe health issues and resulting inability to work constituted a significant change in circumstances that made strict enforcement of the support waiver non-compliant with the objectives of the Divorce Act.

The appellant pleaded guilty to mischief and uttering threats.

The Crown and defence made a joint submission for a conditional discharge with 18 months' probation.

The sentencing judge rejected the joint submission and entered convictions without notifying counsel of his concerns or allowing the appellant to withdraw his plea.

On appeal, the Superior Court found this violated the procedure set out in R. v. Anthony-Cook.

The appeal was allowed, the convictions and sentence were vacated, and the joint submission for a conditional discharge was imposed.

The offender, an Aboriginal man, was convicted of assault causing bodily harm, simple assault, two counts of dangerous driving causing bodily harm, and mischief.

The Crown sought a 27-month sentence, while the defence sought a 90-day intermittent sentence.

Applying Gladue principles and considering the offender's traumatic childhood in the foster care system, the court imposed a global sentence of 15 months incarceration, noting that a penitentiary sentence would have been warranted but for the offender's personal circumstances and Aboriginal background.

The applicant father brought a motion to change to terminate his child support obligations for his 22-year-old daughter, arguing that various triggering events in a previous consent order had occurred, including that she had completed her post-secondary education and was enrolled in a degree in policing.

The respondent mother opposed the termination and sought an upward adjustment of child support based on the father's increased income.

The court dismissed the father's motion, finding that the daughter remained a 'child of the marriage' enrolled in a full-time program of education that was not strictly a degree in policing, and that she had not earned over $15,000.

The court granted the mother's request to adjust child support upwards for 2017 and 2018 based on the father's increased income, with support terminating on the daughter's 22nd birthday.

The applicant sought costs of $92,399.43 on a partial indemnity basis following a family law trial involving equalization, child support, and spousal support.

The respondent requested that each party bear their own costs.

The court found the applicant was the more successful party overall, despite divided success on some issues.

After considering the factors under Rule 24(11) of the Family Law Rules, including the respondent's unreasonable positions on certain support issues and the reservation of costs from prior motions, the court fixed costs payable by the respondent to the applicant at $81,920.43.

The defendants in a proposed price-fixing class action brought a motion to strike the affidavits of the plaintiffs' economics expert, arguing the proposed methodologies for calculating aggregate damages and pass-through rates were invalid and unreliable.

The court applied the test for admissibility of expert evidence and found that the expert's proposed regression models and economic analyses met the threshold for reliability and were highly probative to the certification motion.

The motion to strike was dismissed, with the issue of the legal relevance of umbrella purchaser claims deferred to the certification hearing.

The accused was charged with multiple offences, including aggravated assault against a three-month-old infant and assault with a weapon against his girlfriend, following a domestic dispute.

The Crown relied heavily on the girlfriend's videotaped police statement, which she recanted at trial.

Applying the W.D. framework, the court found the accused guilty of simple assault for intentionally dropping the infant's bassinette and for placing a pillow over his girlfriend's face.

However, the court acquitted the accused of aggravated assault and uttering threats, finding reasonable doubt regarding the cause of the infant's severe head injuries and the exact words spoken during the pillow incident.

The defendant hospital brought two motions: one to enforce an alleged settlement (a Pierringer Agreement) and another for summary judgment dismissing the plaintiff's medical malpractice claim.

The court dismissed the motion to enforce the settlement, finding that while the parties had agreed on the settlement amount, essential terms regarding document production and witness cooperation remained unresolved.

The court also dismissed the summary judgment motion, concluding that competing expert evidence regarding the nursing standard of care and whether the nurses' actions contributed to the plaintiff's compartment syndrome created genuine issues requiring a trial.

The plaintiffs brought a motion to certify a class action for settlement purposes and to approve a national settlement regarding alleged exhaust leaks in certain Ford Explorer vehicles.

The court approved the discontinuance of claims regarding other Ford models, added a new representative plaintiff, and certified the class for settlement.

Finding the settlement fair, reasonable, and in the best interests of the class, the court approved the settlement, the notice plan, and honoraria for the representative plaintiffs.