COURT FILE NO.: CV-13-483540-00CP
DATE: 2021/01/15
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
KHURRAM SHAH and ALPINA HOLDINGS INC.
Plaintiffs
– and –
LG CHEM, LTD., LG CHEM AMERICA, INC., PANASONIC CORPORATION, PANASONIC CORPORATION OF NORTH AMERICA, PANASONIC CANADA, INC., SANYO ELECTRIC CO., LTD., SANYO NORTH AMERICA CORPORATION, SANYO ENERGY (U.S.A.) CORPORATION, SONY CORPORATION, SONY ENERGY DEVICES CORPORATION, SONY ELECTRONICS, INC., SONY OF CANADA LTD., SAMSUNG SDI CO., LTD., SAMSUNG SDI AMERICA, INC., SAMSUNG ELECTRONICS CANADA INC., HITACHI LTD., HITACHI MAXELL, LTD., MAXELL CORPORATION OF AMERICA, MAXELL CANADA, GS YUASA CORPORATION, NEC CORPORATION, NEC TOKIN CORPORATION, NEC CANADA, TOSHIBA CORPORATION, TOSHIBA AMERICA ELECTRONIC COMPONENTS, INC. and TOSHIBA OF CANADA LIMITED
Defendants
Jean-Marc Leclerc for the Plaintiffs
Emrys Davis for Panasonic Corporation, Panasonic Corporation of North America, Panasonic Canada Inc., Sanyo Electric Co., Ltd., Sanyo North America Corporation and Sanyo Energy (U.S.A.) Corporation
Proceedings under the Class Proceedings Act, 1992
HEARD: January 15, 2021
PERELL, J.
REASONS FOR DECISION
A. Introduction
[1] In this certified (many times) competition law class action, settlements or discontinuances have been reached and approved against six groups of Defendants; namely: (1) NEC Corporation and NEC Tokin Corporation, (collectively “NEC”); (2) Samsung SDI Co., Ltd. and Samsung SDI America, Inc. (collectively, “Samsung”) (3) Sony Corporation, Sony Energy Devices Corporation, Sony Electronics, Inc., Sony of Canada Ltd. (collectively “Sony”); (4) LG Chem, Ltd. and LG Chem America, Inc. (collectively “LG Chem”) (5) Toshiba Corporation, Toshiba America Electronic Components, Inc. and Toshiba of Canada Limited (collectively “Toshiba”) and (6) Maxell Holdings, Ltd. (formerly Hitachi Maxell Ltd.) and Maxell Corporation of America (collectively “Maxell”).
[2] Now, the Plaintiffs, Khurram Shah and Alpina Holdings Inc. have negotiated a settlement with Panasonic Corporation, Panasonic Corporation of North America, Panasonic Canada Inc., and Sanyo Electric Co., Ltd. (collectively “Panasonic”). In November, the Plaintiffs moved for a consent certification for settlement purposes, which was granted on November 19, 2020.[^1] The Plaintiffs now move for approval of the settlement, including its distribution plan.
[3] If approved, this settlement will end the litigation.
[4] Class Counsel also moves for approval of its fees and for a $5,000 honorarium for the Representative Plaintiff, Mr. Shah.
B. Background to the Class Action
[5] In June 2013, pursuant to the Class Proceedings Act, 1992[^2] the Plaintiffs, Khurram Shah and Alpina Holdings Inc., brought a competition law class action. The action was brought on behalf of direct and indirect purchasers in two distribution channels in the marketplace for rechargeable Lithium Ion Battery Cells (“LIBs”).
[6] The 26 Defendants are: LG Chem, Ltd., LG Chem America, Inc., Panasonic Corporation, Panasonic Corporation of North America, Panasonic Canada, Inc., Sanyo Electric Co., Ltd., Sanyo North America Corporation, Sanyo Energy (U.S.A.) Corporation, Sony Corporation, Sony Energy Devices Corporation, Sony Electronics, Inc., Sony of Canada Ltd., Samsung SDI Co., Ltd., Samsung SDI America, Inc., Samsung Electronics Canada Inc., Hitachi Ltd., Hitachi Maxell, Ltd., Maxell Corporation of America, Maxell Canada, GS Yuasa Corporation, NEC Corporation, NEC Tokin Corporation, NEC Canada, [Inc.], Toshiba Corporation, Toshiba America Electronic Components, Inc., and Toshiba of Canada Limited.
[7] The Plaintiffs alleged that the Defendants conspired to fix the price of LIBs manufactured and sold in Canada for the 11 years between January 1, 2000 and December 31, 2011.
[8] The Plaintiffs claimed general and special damages of $75 million and punitive and exemplary damages of $10 million for conspiracy, interference with economic relations, unjust enrichment, and conduct that is contrary to Part VI of the Competition Act.[^3]
[9] The Statement of Claim alleged that the price-fixing conspiracy caused damages in Canada because the prices of LIBs sold directly or indirectly to the Plaintiffs and other proposed Class Members in Canada were at artificially inflated levels and the proposed Class Members paid more for LIBs and products containing LIBs than they would have in the absence of the wrongful conduct.
[10] Related class proceedings with a consortium of Class Counsel are proceeding in British Columbia and Québec.
[11] The action was discontinued or dismissed against five Defendants, Hitachi Ltd., Maxell Canada, NEC Canada, [Inc.], Toshiba of Canada Limited (all discontinuances), and GS Yuasa Corporation (dismissal).
[12] Two Japanese corporations, NEC Corporation and NEC Tokin Corporation were successful in having the action dismissed on jurisdictional grounds.[^4]
[13] In 2015, I certified the action as a class action under the Class Proceedings Act, 1992.[^5] More precisely, I certified the statutory cause of action (s. 36 of the Competition Act) for conduct that is contrary to s. 45 of the Competition Act, and I certified the associated common issues.
[14] In the class definition, I removed what the parties called the “Unconnected Purchasers” or “Umbrella Purchasers” from class membership. I did not certify the Plaintiffs’ causes of action for: unlawful means conspiracy and unjust enrichment based on a contravention of the Competition Act. I concluded that these causes of action, while they existed, have been precluded by the statutory cause of action. I did not certify the predominant purpose conspiracy and the interference with economic relations tort claim.
[15] In January 2016, the Plaintiffs and Defendants sought leave to appeal the Certification Order. Both motions for leave were heard by the Divisional Court in August 2016, with the Plaintiffs being granted leave and the Defendants being denied leave. The Divisional Court subsequently allowed the Plaintiffs’ appeal as it related to the claim for the tort of unlawful means conspiracy, but did not allow the appeal as it related to umbrella purchaser claims.[^6]
[16] The Plaintiffs were granted leave to appeal to the Ontario Court of Appeal on the umbrella purchaser issue. On October 12, 2018, the Ontario Court of Appeal reversed the decision of the Divisional Court and certified the action to include the claims of umbrella purchasers.[^7] The defendants sought leave to appeal to the Supreme Court of Canada but in December 2018, leave was refused.
[17] While the certification contest was raging, Class Counsel reached settlements with NEC, Samsung, and Sony. The action was re-certified for settlement purposes, and the settlements were approved.[^8] Subsequently, settlements were reached with LG Chem, Toshiba, and Maxell, and the settlements were approved.[^9]
[18] In the context of the NEC, Samsung, and Sony settlements, the notice of settlement approval as well as the related court orders specified that there would be only one opportunity to opt-out of the action. No opt-out requests were received.
[19] The following settlements have been approved:
| Defendant Group | Settlement Amount |
|---|---|
| NEC | CDN$50,000 |
| Samsung | USD$2,200,000 |
| Sony | CDN$4,500,000 |
| LG Chem | USD$3,900,000 |
| Toshiba | CAD$264,759.67 |
| Maxell | USD$300,000 |
[20] If the Panasonic settlement is approved, the litigation will be resolved in its entirety.
[21] On October 1, 2020, the Plaintiffs entered into a settlement agreement with Panasonic whereby Panasonic agrees to pay USD $6,295,000, which converts to approximately CAD $8.2 million. The settlement also releases claims against Sanyo Energy (U.S.A.) Corporation and Sanyo North America Corporation.
[22] The Settlement Agreement provides the following, among other things:
a. the Settlement Amount will be held in an interest-bearing trust account for the benefit of Settlement Class Members; and
b. the costs of disseminating the Notices of Hearing are to be paid by Class Counsel from the Settlement Amount.
[23] The Panasonic settlement is the largest settlement achieved in the litigation. Class Counsel considered this appropriate given that Panasonic was the last to settle and therefore faced greater joint and several liability. Panasonic also had significant market share. Panasonic and Sanyo’s combined market share was 44% in 2000 and 27% in 2010. Moreover, Sanyo was one of two companies that pleaded guilty in the U.S. and its fine was significantly higher than that of LG Chem.
[24] The proposed distribution protocol sets out how the settlement funds will be distributed to Settlement Class Members and the process for adjudicating Settlement Class Members’ claims:
a. Settlement Class Members can claim for their purchases of LIBs (excluding for use in automobiles) and LIB Products.
b. LIB Products are defined as notebook computers, laptop computers, tablet computers, e-book readers, MP3 players, personal digital assistants, handheld GPS, handheld video players, cellphones/smartphones that were not acquired as part of a cellphone service contract, and replacement batteries for these products.
c. Settlement Class Members who file undocumented claims will be eligible to receive the administrative minimum payment ($20). Other consumer cases have permitted undocumented claims, including the LCD and CRT cases.
d. Settlement Class Members who wish to be eligible to receive more than $20 must substantiate their claim by purchase records.
i. Where available, Settlement Class Members can rely on purchase information provided by Defendants.
ii. Otherwise, Settlement Class Members can rely on purchase or accounting records, or a declaration setting out purchases, with the required supporting documents and information.
e. After the undocumented claims are paid out, the remainder of the Net Settlement Funds will be allocated for payment of documented claims. In respect of documented claims, a Settlement Class Member’s entitlement will be calculated pro rata based on the Settlement Class Member’s point total as against the aggregate point total. The point total depends on:
i. The number and type of LIBs and LIB Products that a Settlement Class Member purchased during the class period. Each LIB Product was assigned a point value based on the number and value of LIB cells contained therein and the strength of the claims. The point value was informed by information obtained from the plaintiffs’ certification expert.
ii. The Settlement Class Member’s position in the distribution chain. Settlement Class Members will be divided into four purchaser groups, depending on their placement in the distribution chain.
f. The proposed Distribution Protocol contemplates Settlement Class Members filing a claim online. Using an online claims process helps to automate the claims administration process and reduces the costs of claims administration. Hardcopy claim forms are available to persons who do not have internet; however, corporate entities are required to file their claims online.
g. The claims process will include a deficiency review and a partial appeal right. Settlement Class Members are required to pay a $150 fee to submit an appeal, which will be refunded if the appeal is successful. Appeals will be heard based on written submissions by an arbitrator appointed by the Ontario and Quebéc Courts.
i. Class Counsel recommends that Marc Beauchemin be appointed as the adjudicator. Mr. Beauchemin is a lawyer based in Quebéc. He is bilingual and has considerable experience in class action matters.
h. Class Counsel recommends that RicePoint Administration Inc. be appointed as the claims administrator. RicePoint has acted as claims administrator in many class actions, including price-fixing class actions, and is able to provide services in English and French.
[25] The Settlement Agreement is conditional upon approval of the Ontario Court and Québec Court. The parallel British Columbia class action will be dismissed as against the Settling Defendants and other Releasees who are named as Defendants in the BC Proceeding.
C. Class Counsel Fee Request
[26] Siskinds LLP and Sotos LLP are co-counsel in the Ontario action.
[27] Parallel litigation was commenced in B.C. and Québec. Siskinds and Sotos are working cooperatively with the law firms Camp Fiorante Matthews Mogerman LLP, counsel in the B.C. action, and Belleau Lapointe s.e.n.c.r.l. counsel in the Québec action. These firms are collectively the Class Counsel.
[28] Morganti Legal PC commenced a parallel proceeding in January 2013. By agreement with Siskinds, Sotos and Camp Fiorante Matthews Mogerman, Morganti withdrew from the case and discontinued its action. Class Counsel agreed to pay Morganti its disbursements incurred in the litigation ($1,030.24), and to pay its time incurred on the file ($30,000) plus one-half of any multiplier awarded to Class Counsel in a fee award.
[29] The retainer agreements specify a 25% contingency fee. Accordingly, Class Counsel requests $1,587,839.52 in fees. Class Counsel also claims $114,231.20 in disbursements (and interest of $1,408.76).
[30] In the context of previous settlements, this Court approved Ontario and B.C. counsel fees totaling $2,764,230.31 and disbursements totaling $485,096.95 (not including interest). If the Court approves the proposed fee request, the total fees awarded to Ontario and B.C. counsel will be $4,352,069.83 and disbursements totaling $599,328.15 (not including interest).
[31] In respect of the Settlement Agreement, Class Counsel is seeking a 25% contingency fee, allocated 77% to Ontario and B.C. counsel and 23% to Québec counsel.
[32] The combined legal fee sought by Ontario and B.C. counsel is $1,587,839.52. The following chart summarizes the combined legal fee sought by Ontario and B.C. counsel:
| Panasonic Settlement Amount (USD$6,295,000 to CDN$8,243,300) | $8,243,300.00 |
|---|---|
| Plus: Interest as of December 31, 2020 | $5,216.99 |
| Total Recovery including Interest | $8,248,516.99 |
| Ontario and BC Fee Application (25%*77% = 19.25%)) | $1,587,839.52 |
[33] The total docketed time incurred since the commencement of the action until December 31, 2020 is broken down as follows:[^10]
| Law Firm | Total Docketed Time |
|---|---|
| Sotos | $1,351,642.88 |
| Siskinds | $1,621,454.00 |
| CFM | $865,494.00 |
| TOTAL | $3,838,590.88 |
[34] The requested fees represent a multiplier of 1.13 on the total docketed time to date.
[35] Class Counsel has funded all disbursements associated with advancing this action and did not apply to the Class Proceedings Fund or a third-party funder.
D. Settlement Approval
[36] Section 29 of the Class Proceedings Act, 1992 requires court approval for the discontinuance, abandonment, or settlement of a class action. Section 29 states:
Discontinuance, abandonment and settlement
29.(1) A proceeding commenced under this Act and a proceeding certified as a class proceeding under this Act may be discontinued or abandoned only with the approval of the court, on such terms as the court considers appropriate.
Settlement without court approval not binding
(2) A settlement of a class proceeding is not binding unless approved by the court.
Effect of settlement
(3) A settlement of a class proceeding that is approved by the court binds all class members.
Notice: dismissal, discontinuance, abandonment or settlement
(4) In dismissing a proceeding for delay or in approving a discontinuance, abandonment or settlement, the court shall consider whether notice should be given under section 19 and whether any notice should include,
(a) an account of the conduct of the proceeding;
(b) a statement of the result of the proceeding; and
(c) a description of any plan for distributing settlement funds.
[37] Section 29(2) of the Class Proceedings Act, 1992, provides that a settlement of a class proceeding is not binding unless approved by the court. To approve a settlement of a class proceeding, the court must find that, in all the circumstances, the settlement is fair, reasonable, and in the best interests of the class.[^11]
[38] In determining whether a settlement is reasonable and in the best interests of the class, the following factors may be considered: (a) the likelihood of recovery or likelihood of success; (b) the amount and nature of discovery, evidence or investigation; (c) the proposed settlement terms and conditions; (d) the recommendation and experience of counsel; (e) the future expense and likely duration of the litigation; (f) the number of objectors and nature of objections; (g) the presence of good faith, arm’s-length bargaining and the absence of collusion; (h) the information conveying to the court the dynamics of, and the positions taken by, the parties during the negotiations; and (i) the nature of communications by counsel and the representative plaintiff with Class Members during the litigation.[^12]
[39] In determining whether to approve a settlement, the court, without making findings of fact on the merits of the litigation, examines the fairness and reasonableness of the proposed settlement and whether it is in the best interests of the class as a whole having regard to the claims and defences in the litigation and any objections raised to the settlement.[^13] An objective and rational assessment of the pros and cons of the settlement is required.[^14]
[40] In mandating that settlements are subject to court approval, the class action statutes place an onerous responsibility to ensure that the class members’ interests are not being sacrificed to the interests of Class Counsel who have typically taken on an enormous risk and who have a great deal to gain not only in removing that risk but in recovering an enormous reward from their contingency fee. The incentives and the interests of class counsel may not align with the best interests of the class members, and, thus, it falls on the court to seriously scrutinize the proposed settlement both in its making and in its substance.[^15]
[41] The case law establishes that a settlement must fall within a zone of reasonableness. Reasonableness allows for a range of possible resolutions and is an objective standard that allows for variation depending upon the subject-matter of the litigation and the nature of the damages for which the settlement is to provide compensation.[^16] A settlement does not have to be perfect, nor is it necessary for a settlement to treat everybody equally.[^17]
[42] Generally speaking, the exercise of determining the fairness and reasonableness of a proposed settlement involves two analytical exercises. The first exercise is to use the factors and compare and contrast the settlement with what would likely be achieved at trial. The court obviously cannot make findings about the actual merits of the Class Members’ claims. Rather, the court makes an analysis of the desirability of the certainty and immediate availability of a settlement over the probabilities of failure or of a whole or partial success later at a trial. The court undertakes a risk analysis of the advantages and disadvantages of the settlement over a determination of the merits. The second exercise, which depends on the structure of the settlement, is to use the various factors to examine the fairness and reasonableness of the terms and the scheme of distribution under the proposed settlement.[^18]
[43] In the case at bar, I am satisfied that the settlement with Panasonic is fair and reasonable and in the best interests of the Class Members. The settlement is approved.
E. Fee Approval
[44] The fairness and reasonableness of the fees awarded in respect of class proceedings is to be determined in light of the risk undertaken by the lawyer in conducting the litigation and the degree of success or result achieved.[^19]
[45] Factors relevant in assessing the reasonableness of the fees of class counsel include: (a) the factual and legal complexities of the matters dealt with; (b) the risk undertaken, including the risk that the matter might not be certified; (c) the degree of responsibility assumed by class counsel; (d) the monetary value of the matters in issue; (e) the importance of the matter to the class; (f) the degree of skill and competence demonstrated by class counsel; (g) the results achieved; (h) the ability of the class to pay; (i) the expectations of the class as to the amount of the fees; and (j) the opportunity cost to class counsel in the expenditure of time in pursuit of the litigation and settlement.[^20]
[46] The court must consider all the factors and then ask, as a matter of judgment, whether the fee fixed by the agreement is reasonable and maintains the integrity of the profession.[^21]
[47] In my opinion, having regard to the various factors used to determine whether to approve Class Counsel’s fee request, the request in the immediate case should be approved.
F. Honorarium
[48] Where a representative plaintiff can show that he or she rendered active and necessary assistance in the preparation or presentation of the case and that such assistance resulted in monetary success for the class, the representative plaintiff may be compensated by an honorarium.[^22]
[49] However, the court should only rarely approve this award of compensation to the representative plaintiff.[^23] Compensation for a representative plaintiff may only be awarded if he or she has made an exceptional contribution that has resulted in success for the class.[^24] Compensation to the representative plaintiff should not be routine, and an honorarium should be awarded only in exceptional cases.
[50] In determining whether the circumstances are exceptional, the court may consider among other things: (a) active involvement in the initiation of the litigation and retainer of counsel; (b) exposure to a real risk of costs; (c) significant personal hardship or inconvenience in connection with the prosecution of the litigation; (d) time spent and activities undertaken in advancing the litigation; (e) communication and interaction with other class members; and (f) participation at various stages in the litigation, including discovery, settlement negotiations and trial.[^25]
[51] In my opinion, the honorarium request in the immediate case should not be granted. In my opinion, Mr. Shah’s contribution while laudatory was not exceptional or extraordinary. Honourarium should not be awarded as a routine matter. Plaintiffs in normal litigation who are exposed to costs consequences do not receive a payment for giving instructions to their lawyer. Mr. Shah is a Class Member, and he should recover no more than any other Class Member and as a matter of principle, he should have no incentive to recommend a settlement other than that he genuinely believes that it is in the best interests of the Class of which he is a member.
G. Conclusion
[52] For the above reasons, the settlement and the fee request are approved.
Perell, J.
Released: January 15, 2021.
COURT FILE NO.: CV-13-483540-00CP
DATE: 2021/01/15
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
KHURRAM SHAH and ALPINA HOLDINGS INC.
Plaintiffs
– and –
LG CHEM, LTD., LG CHEM AMERICA, INC., PANASONIC CORPORATION, PANASONIC CORPORATION OF NORTH AMERICA, PANASONIC CANADA, INC., SANYO ELECTRIC CO., LTD., SANYO NORTH AMERICA CORPORATION, SANYO ENERGY (U.S.A.) CORPORATION, SONY CORPORATION, SONY ENERGY DEVICES CORPORATION, SONY ELECTRONICS, INC., SONY OF CANADA LTD., SAMSUNG SDI CO., LTD., SAMSUNG SDI AMERICA, INC., SAMSUNG ELECTRONICS CANADA INC., HITACHI LTD., HITACHI MAXELL, LTD., MAXELL CORPORATION OF AMERICA, MAXELL CANADA, GS YUASA CORPORATION, NEC CORPORATION, NEC TOKIN CORPORATION, NEC CANADA, TOSHIBA CORPORATION, TOSHIBA AMERICA ELECTRONIC COMPONENTS, INC. and TOSHIBA OF CANADA LIMITED
Defendants
REASONS FOR DECISION
PERELL J.
Released: January 15, 2021
[^1]: Shah v. LG Chem, Ltd., 2020 ONSC 7093
[^2]: 1992, S.O. 1992, c. 6.
[^3]: R.S.C. 1985, c. C-34.
[^4]: See Shah v. LG Chem, Ltd., 2015 ONSC 2628.
[^5]: Shah v. LG Chem, Ltd., 2015 ONSC 6148, leave to appeal granted 2016 ONSC 4670 (Div. Ct.), var’d 2017 ONSC 2586 (Div. Ct.).
[^6]: Shah v. LG Chem, Ltd., 2017 ONSC 2586 (Div. Ct.).
[^7]: Shah v. LG Chem, Ltd. 2018 ONCA 819.
[^8]: Shah v. LG Chem, Ltd., 2018 ONSC 6106.
[^9]: Shah v. LG Chem, Ltd., 2019 ONSC 554; Shah v. LG Chem, Ltd., 2019 ONSC 3453; and Maxell Holdings, Ltd. (formerly Hitachi Maxell Ltd.) and Maxell Corporation of America (collectively “Maxell”).
[^10]: Ibid para 37
[^11]: Fantl v. Transamerica Life Canada, [2009] O.J. No. 3366 at para. 57 (S.C.J.); Farkas v. Sunnybrook and Women’s Health Sciences Centre, [2009] O.J. No. 3533 at para. 43 (S.C.J.); Kidd v. Canada Life Assurance Company, 2013 ONSC 1868.
[^12]: Fakhri v. Alfalfa's Canada, Inc., 2005 BCSC 1123; Jeffery v. Nortel Networks Corp., 2007 BCSC 69; Corless v. KPMG LLP, [2008] O.J. No. 3092 at para. 38 (S.C.J.); Fantl v. Transamerica Life Canada, [2009] O.J. No. 3366 at para. 59 (S.C.J.); Farkas v. Sunnybrook and Women’s Health Sciences Centre, [2009] O.J. No. 3533 at para. 45 (S.C.J.); Kidd v. Canada Life Assurance Company, 2013 ONSC 1868.
[^13]: Baxter v. Canada (Attorney General) (2006), 2006 CanLII 41673 (ON SC), 83 O.R. (3d) 481 at para. 10 (S.C.J.).
[^14]: Al-Harazi v. Quizno’s Canada Restaurant Corp. (2007), 49 C.P.C. (6th) 191 at para. 23 (Ont. S.C.J.).
[^15]: Dabbs v. Sun Life Assurance Company of Canada (1998), 1998 CanLII 14855 (ON SC), 40 O.R. (3d) 429 at para. 30 (Gen. Div.); L. (T.) v. Alberta (Director of Child Welfare), 2015 ABQB 815 at para. 11; AFA Livforsakringsaktiebolag v. Agnico-Eagle Mines Ltd., 2016 ONSC 532 at paras. 3-17; Sheridan Chevrolet Ltd. v Furukawa Electric Co., 2016 ONSC 729; McIntyre v. Ontario 2016 ONSC 2662 at para. 26; Welsh v. Ontario, 2018 ONSC 3217; Perdikaris v. Purdue Pharma, 2018 SKQB 86.
[^16]: Parsons v. Canadian Red Cross Society, [1999] O.J. No. 3572 at para. 70 (S.C.J.); Dabbs v. Sun Life Assurance Company of Canada (1998), 1998 CanLII 14855 (ON SC), 40 O.R. (3d) 429 (Gen. Div.).
[^17]: Fraser v. Falconbridge Ltd., [2002] O.J. No. 2383 at para. 13 (S.C.J.); McCarthy v. Canadian Red Cross Society (2007), 158 ACWS (3d) 12 at para. 17 (Ont. S.C.J.).
[^18]: Welsh v. Ontario, 2018 ONSC 3217.
[^19]: Parsons v. Canadian Red Cross Society, 2000 CanLII 22386 (ON SC), [2000] O.J. No. 2374 at para. 13 (S.C.J.); Smith v. National Money Mart, 2010 ONSC 1334 at paras. 19-20, varied 2011 ONCA 233; Fischer v. I.G. Investment Management Ltd., [2010] O.J. No. 5649 at para. 25 (S.C.J.).
[^20]: Smith v. National Money Mart, 2010 ONSC 1334, varied 2011 ONCA 233; Fischer v. I.G. Investment Management Ltd., [2010] O.J. No. 5649 at para. 28 (S.C.J.).
[^21]: Commonwealth Investors Syndicate Ltd. v. Laxton, [1994] B.C.J. No. 1690 at para. 47 (B.C.C.A.).
[^22]: Windisman v. Toronto College Park Ltd., [1996] O.J. No. 2897 at para. 28 (Gen. Div.).
[^23]: Sutherland v. Boots Pharmaceutical plc, supra; Bellaire v. Daya, [2007] O.J. No. 4819 at para. 71. (S.C.J.); McCarthy v. Canadian Red Cross Society, [2007] O.J. No. 2314 (S.C.J.).
[^24]: Toronto Community Housing Corp. v. ThyssenKrupp Elevator (Canada) Ltd., 2012 ONSC 6626; Markson v. MBNA Canada Bank, 2012 ONSC 5891 at paras. 55-71.
[^25]: Robinson v. Rochester Financial Ltd., 2012 ONSC 911 at paras. 26-44.