Shalom Cumbo-Steinmetz

This costs endorsement addresses the aftermath of Remington Georgetown Inc.'s unsuccessful attempt to set aside an arbitration decision under the Ontario New Home Warranties Plan Act.

The court finds that both the set-aside application and a related Rule 14 application lacked merit, and that the respondent, Tarion Warranty Corporation, is entitled to full indemnity costs.

The court relies on the broad indemnity provision in the parties' Vendor Agreement and established case law regarding costs thrown away.

The endorsement also criticizes the applicant's unfounded allegations of arbitrator bias and concludes that the applicant must pay $212,000 in costs.

The court dismissed Remington Georgetown Inc.'s application to set aside an arbitration award under the Ontario New Home Warranties Plan Act.

The applicant, a residential developer, challenged the arbitrator’s decision on four grounds: excess of jurisdiction, procedural unfairness, bias, and failure to provide reasons.

The court found no merit in any of the grounds, holding that the arbitrator acted within her jurisdiction, provided adequate reasons, and that the applicant’s complaints were attempts to appeal the merits of the decision, which is not permitted under the Act or the arbitration agreement.

The court also addressed the admissibility of affidavit evidence and provided directions for costs submissions.

The plaintiff in a class action brought an unopposed motion for approval of a third-party funding agreement under s. 33.1 of the Class Proceedings Act, 1992.

The agreement provided indemnity for adverse costs in exchange for a premium of up to 10% of the litigation proceeds.

The court approved the agreement, finding it fair and reasonable, protective of the plaintiff's control over the litigation, and supported by the funder's financial capacity.

The plaintiff, David Trueman, in a proposed class action, sought leave to amend the Fourth Amended Statement of Claim to add a new sub-class and particularize existing claims.

The proposed amendments related to allegations that Rogers Communications and Rogers Bank obtained private credit information through unauthorized soft credit checks to pre-approve and issue unsolicited credit cards, in breach of privacy rights and contract.

The defendants opposed, arguing the amendments introduced a new, time-barred claim based on a breach of Bank Act regulations.

The court found that the amendments did not introduce a new cause of action but rather particularized existing claims for breach of contract and privacy, with the issuance of unsolicited credit cards being a consequence of the alleged wrongful conduct.

Therefore, no limitation period issue arose.

The court granted the plaintiff's motion to amend the statement of claim and awarded costs to the plaintiff.

The plaintiff sought costs on a partial indemnity scale after successfully certifying her action as a class proceeding and defeating the defendant's motion for summary judgment.

The defendant argued that costs should be reduced or not awarded because the plaintiff failed to obtain a reverse summary judgment and the class definition was narrowed.

The court found the plaintiff was substantially successful and awarded costs of $300,000 plus HST and disbursements, slightly reduced from the claimed amount to reflect the lack of success on the reverse summary judgment request.

The defendant, Sun Life, brought a motion for summary judgment in a class proceeding regarding the calculation of annual indexing increases on long-term disability benefits.

The plaintiff argued for a reverse summary judgment.

The court found that the interpretation of the policy and the correct methodology to calculate the annual indexing of benefits where 'other income' is deducted raised a genuine issue requiring a trial.

The court dismissed both the defendant's motion for summary judgment and the plaintiff's request for a reverse summary judgment.

The plaintiff brought a motion to certify a class proceeding against Sun Life, alleging it incorrectly calculated long-term disability benefits by wrongfully deducting the inflation component from CPP and PSSA benefits.

Sun Life argued the plaintiff failed to meet the certification criteria.

The court found the pleadings disclosed a reasonable cause of action for breach of contract, though not for punitive damages.

The court amended the class definition to include a temporal limit based on the ultimate limitation period and certified the action, finding a class proceeding to be the preferable procedure.

The applicant homebuilder abandoned its application against the respondent warranty corporation shortly before the scheduled hearing, after the respondent had incurred significant costs preparing its defence.

The respondent sought costs on a substantial indemnity scale, arguing the applicant unreasonably delayed abandoning the flawed application after an earlier injunction was dismissed.

The court agreed, finding the applicant's conduct in forcing the respondent to actively defend a doomed application warranted sanction.

Costs were fixed at $72,500 on a substantial indemnity scale.

Following the dismissal of the applicant's motion for an interim injunction, the respondent sought substantial indemnity costs.

The court found that the applicant had filed inaccurate and misleading evidence regarding its history of chargeable conciliations, which justified an enhanced costs award.

However, the court found the respondent's claimed amount of $86,845.95 to be disproportionate to the complexity of the matter.

The court awarded the respondent $45,000 in costs inclusive of disbursements and HST.

The applicant builder sought an interim injunction to prohibit the respondent statutory warranty corporation from conciliating delayed occupancy claims made by condominium purchasers.

The builder argued that the delays were caused by a municipal water supply issue and the COVID-19 pandemic, constituting an 'Unavoidable Delay', and that adverse conciliation decisions would irreparably harm its reputation.

The court dismissed the motion, finding no evidence of irreparable harm and concluding that the balance of convenience favoured allowing the statutory body to carry out its mandate to protect new home buyers.

The plaintiff brought a motion for approval of class counsel fees and a representative plaintiff honourarium following a class action settlement.

The court approved a $5,000 honourarium for the representative plaintiffs, finding they meaningfully contributed to access to justice and assumed no financial risk.

The court also approved class counsel fees calculated at 25% of the recovery, resulting in a 2.6 multiplier on docketed time, which was deemed appropriate given the significant risks assumed by counsel.

The parties brought a motion to approve settlement agreements and distribution protocols in class actions arising from data breaches at BMO and CIBC (Simplii) that affected over 120,000 clients.

The proposed settlements provided a combined $22.9 million to compensate class members for time spent and inconvenience, with tiered compensation based on the sensitivity of the compromised information.

The court applied the Mancinelli factors and found the settlements to be fair, reasonable, and in the best interests of the class, particularly given the litigation risks associated with the tort of intrusion upon seclusion for third-party hacker intrusions.

The appellant, Georgian Properties Corporation, appealed a summary judgment that reduced the principal amounts owing under two vendor take-back mortgages given by the respondent condominium corporation to the developer.

The mortgages related to HVAC service units and unsold parking and storage units.

The motion judge found the developer's revised disclosure documents infringed the Condominium Act and that both transactions were oppressive.

The principal amounts were reduced to reflect fair market value.

The Court of Appeal upheld the motion judge's findings regarding insufficient disclosure and oppression, dismissing the appeal and cross-appeal.

This is the third appeal in a class action arising from the acquisition of London Life by Great-West Life.

The class alleged that participating policy account (PAR) transactions violated the Insurance Companies Act.

The trial judge found breaches and awarded class counsel fees of $16.4 million with a first charge over the $56.43 million returned to PAR accounts, awarded $4 million in partial indemnity costs to the class, and imposed a levy in favour of the Law Foundation of Ontario.

The appellants challenged the class counsel fees, costs award, and levy.

The majority upheld all trial judge decisions, while the dissent argued that no monetary award was made to the class and therefore no charge could attach to the PAR accounts.