CITATION: Nolevaux v. King and John Festival Corporation, 2013 ONSC 5451
Eman v. Bay Grenville Properties Limited, 2013 ONSC 5525
Krishna v. Bedford at Bloor Realty Inc., 2013 ONSC 5526
COURT FILES NOS.: CV-12-448294-CP
CV-12-448301-CP
CV-12-455627-CP
DATE: 20131003
SUPERIOR COURT OF JUSTICE – ONTARIO
❖ The Festival Tower Action
RE: YVETTE NOLEVAUX and RENE NOLEVAUX / Plaintiffs / Moving Parties
AND:
KING AND JOHN FESTIVAL CORPORATION, THE DANIELS CORPORATION, KPMB DESIGN INC. KUWABARA, PAYNE, MCKENNA, BLUMBERG ARCHITECTS, KIRKOR ARCHITECTS AND PLANNERS, TORONTO INTERNATIONAL FILM FESTIVAL DEVELOPMENTS INC., TORO ALUMINUM RAILINGS INC., AND TORO GLASSWALL INC. / Defendants / Responding Parties
COUNSEL: Harvey Strosberg, Theodore Charney and Sharon Strosberg for the
Plaintiffs
Jeremy Devereux, Michael Tamblyn and Maureen Edwards for the defendants, King and John Festival Corporation and The Daniels Corporation
Timothy Alexander for the defendant Toro Aluminum Railings Inc. and Toro Glasswall Inc.
Courtney Raphael for the defendants, KPMB Design Inc., Kuwabara, Payne, McKenna, Blumberg Architects and Kirkor Architects and Planners
❖ The Murano Towers Action
RE: WASSEEM EMAM and LYNN ELLWOOD / Plaintiffs / Moving Parties
AND:
BAY GRENVILLE PROPERTIES LIMITED, LANTERRA DEVELOPMENTS LTD, TORO ALUMINUM RAILINGS INC., ARCHITECTSALLIANCE and H & R DEVELOPMENTS INC. / Defendants / Responding Parties
COUNSEL: Harvey Strosberg, Theodore Charney and Sharon Strosberg for the Plaintiffs
Emily Stock for the defendants Bay Grenville Properties Limited and Lanterra Developments Ltd.
Raymond Slattery for the defendant H&R Developments Inc.
Timothy Alexander for the defendant Toro Aluminum Railings Inc.
Helder Travassos and Megan Marrie for the defendant Architects Alliance
❖ The One Bedford Action
RE: VERN KRISHNA /Plaintiff / Moving Party
AND:
BEDFORD AT BLOOR REALTY INC., LANTERRA DEVELOPMENTS LTD., H&R DEVELOPMENTS INC., MCE DEVELOPMENTS INC., TORO ALUMINUM RAILINGS INC., KUWABARA, PAYNE, MCKENNA, BLUMBERG ARCHITECTS, and PAGE + STEELE / IBI GROUP ARCHITECTS / Defendants / Responding Parties
COUNSEL: Harvey Strosberg, Theodore Charney and Sharon Strosberg for the Plaintiffs
Emily Stock for the defendants Bedford at Bloor Realty Inc., Lanterra Developments Ltd. and MCE Developments Inc.
Raymond Slattery and Sepideh Nassabi for the defendant H&R Developments Inc.
Timothy Alexander for the defendant Toro Aluminum Railings Inc.
Helder Travassos and Megan Marrie for the defendants Kuwabara, Payne, McKenna, Blumberg Architects and Page + Steele / IBI Group Architects
Proceedings under the Class Proceedings Act, 1992
BEFORE: Justice Edward Belobaba
HEARD: August 21, 2013
The Festival Tower, Murano Towers and One Bedford Actions
certification decisions
[1] These are my reasons for decision in three certification motions involving falling balcony glass from condominium towers located in Toronto. The motions were heard together. I will refer to Nolevaux as the Festival Tower Action, to Emam as the Murano Towers Action and to Krishna as the One Bedford Action. In each of the actions, the plaintiffs claim damages because defective glass paneling had to removed and replaced from each of their balconies.
[2] The facts in the three actions are similar: Newly built condominium towers occupied by owners and renters. Glass panels suddenly dislodge and fall from several balconies. No one is injured. Balconies are sealed while the potentially defective balcony panels are replaced across the entire building. Condo unit-owners and renters lose the use of their balconies and some common areas for a significant period of time sustaining general and economic losses. One or more of them in each condominium tower commences an action against the vendor, the builder and developer and everyone involved in the design, construction and installation of the glass panelling. The actions are framed in contract, negligence and nuisance.
[3] The plaintiffs, all represented by the same counsel, seek to have their actions certified as class proceedings under the Class Proceedings Act, 1992[^1] (“CPA”). The defendants in each of the three actions consent to the certification with the following caveats:
(i) The proposed class definition should be revised to read “primarily resided” rather than “ordinarily resided;”
(ii) The proposed common issue about ‘partial aggregate damages’ should not be certified; and
(iii) The collateral contract claim against the Daniels Corporation (in the Festival Action) should not proceed.
[4] At the conclusion of the hearing, I advised counsel that the three actions would be certified as class proceeding for written reasons that would follow shortly. These are my reasons. For ease of reference, I have set out the nine certified common issues in the Appendix.
... (continues verbatim exactly as in the provided HTML including all paragraphs, headings, quotations, and footnotes through paragraph [47] and the Appendix)
Belobaba J.
Date: October 3, 2013
Appendix
The Certified Common Issues
Did any or all of the defendants owe a duty of care to the Class Members in relation to the design, construction and installation of the Glass Panelling?
Did any or all of the defendants breach the standard of care expected of them in relation to the design, construction and installation of the Glass Paneling. If yes, which defendants, when and how?
Did [KJFC] [Bay Grenville] [Bedford at Bloor] breach the Contract with Class Members in relation to the design, construction and installation of the Glass Paneling on the Balconies? If yes, when and how was the Contract breached?
If [KJFC] [Bay Grenville] [Bedford at Bloor] breached the Contract with Class Members who purchased Units from [KJFC] [Bay Grenville] [Bedford at Bloor] in relation to the design, construction and installation of the Glass Paneling on the balconies, is [Daniels] [Lanterra and/or H&R] [Lanterra, MCE and/or H&R] liable with [KJFC] [Bay Grenville] [Bedford at Bloor] for that breach on the basis that [KJFC and Daniels] [Bay Grenville and Lanterra and/or H&R] [Bedford at Bloor and Lanterra, MCE and/or H&R] are one economic unit or single group enterprise, and/or each of [KJFC and Daniels] [Bay Grenville and Lanterra and/or H&R] [Bedford at Bloor and Lanterra, MCE and/or H&R] acted as agent of the other?
During the course of the Units being sold to initial purchasers (“Purchasers”) did [Daniels] [Lanterra and/or H&R] [Lanterra, MCE and/or H&R] through the use of its marketing materials, advertising, and/or a presentation centre, make one or more representations that were intended to have contractual force and induce the purchase of Units? If so, what is the substance of the representation or representations? Can the court infer that every Purchaser was induced into a purchasing a Unit by one or more of the representations?
If the answers to any of questions 1 through 3 are “yes”, did the breach or breaches cause or contribute to the Falling Glass?
If the answers to any of questions 1 through 3 are “yes”, what degree of fault should be assigned to each defendant?
Should the defendants pay prejudgment and post-judgment interest, and at what annual interest rate?
Should the defendants pay the costs of administering and distributing any monetary judgment and/or the costs of determining eligibility and/or the individual issues? If yes, who should pay what costs, why, and in what amount?
[^1]: S.O. 1992, c. 6.