Ted Charney

This is a motion for approval of a class action settlement concerning incidents of glass falling from balconies at Festival Tower, a condominium in Toronto.

The representative plaintiffs sought court approval for the settlement agreement, appointment of a claims administrator, approval of the distribution program, and approval of counsel fees and disbursements.

The court granted the orders sought, finding the settlement fair, reasonable, and in the best interests of the class, despite the comparatively minor loss of balcony use compared to similar cases.

The court considered the risks of litigation, including novel claims for loss of use and enjoyment, and the challenges in establishing liability and aggregate damages.

The moving parties, representing two groups of plaintiffs, brought motions for leave to appeal an order of Belobaba J. in a class action proceeding.

The Divisional Court dismissed the motions for leave to appeal.

On agreement of the parties, no costs were awarded.

A case management conference was held to schedule two motions for leave to appeal a decision appointing carriage counsel in a class action.

The court established a timetable for the exchange of motion materials, directed the creation of a joint record and electronic drop box, and ordered that the motions proceed in writing before a three-judge panel of the Divisional Court.

This is a costs endorsement following the certification of a class action.

The plaintiffs, having succeeded in certifying their action, sought substantial costs totaling over $368,000.

The court significantly reduced the requested amount, disallowing costs related to scheduling, a companion motion in Quebec, and expert fees/counsel time for experts at the certification stage.

The court found that the defendant's opposition to certification was modest and did not constitute a "full attack" warranting such extensive costs at that stage.

The final award was $84,500 plus HST in partial indemnity costs and $27,119.34 in disbursements.

This proposed class action alleged that Bell Mobility Inc. breached the privacy rights of its data service customers by using their personal information for its "Relevant Advertising Program" (RAP) without consent.

The plaintiffs sought certification of the class action.

The court certified the action, including all pleaded causes of action (contract, waiver of tort, negligence, breach of confidence, intrusion upon seclusion, consumer protection legislation, and Quebec civil law claims) and common issues.

The court rejected the defendant's argument that some claims were redundant and made the class proceeding unmanageable, affirming that it is not the judge's role at certification to pare down properly pleaded causes of action.

The decision also addressed the availability and methodology for aggregate damages.

The plaintiff sought damages for injuries from a motor vehicle accident.

Following a jury verdict that awarded modest general damages, the defendants brought a threshold motion seeking a declaration that the plaintiff's claim for non-pecuniary loss was barred under the Insurance Act.

The court considered the plaintiff's significant pre-existing arthritic condition and the medical evidence on causation.

The court found that the plaintiff failed to establish that the motor vehicle accident caused a permanent serious impairment meeting the statutory threshold, largely due to the pre-existing condition and the jury's modest award.

The defence motion was granted.

The defendants sought leave to introduce surveillance evidence for substantive purposes in a jury trial arising from a motor vehicle accident.

The plaintiff opposed, arguing late disclosure and prejudice.

The court found the defendants breached disclosure obligations under Rules 30.09 and 33.06, particularly regarding waiver of privilege when the evidence was provided to a medical expert.

Applying Rule 53.08, the court determined that significant prejudice to the plaintiff, including impacts on settlement considerations and trial strategy, could not be cured by an adjournment.

Leave to use the surveillance evidence for substantive purposes was denied, though its use for impeachment was not challenged.

The defendants brought a motion to exclude the plaintiff's second orthopedic expert, Dr. Daniel Ogilvie-Harris, arguing that his testimony duplicated that of the plaintiff's treating physician, Dr. Robert Luba, and citing prior judicial comments regarding Dr. Ogilvie-Harris's alleged bias.

The plaintiff sought to admit both experts, asserting distinct contributions and the need for a Rule 53 expert to challenge the defence's expert.

The court dismissed the defendants' motion, allowing both Dr. Luba to testify as a participant expert and Dr. Ogilvie-Harris as a Rule 53 expert.

The court found that Dr. Ogilvie-Harris's opinion offered significant differences, including addressing the Insurance Act threshold and challenging the defence expert, and ruled that allegations of bias should be addressed in a voir dire.

In a motor vehicle accident action, the plaintiff objected to the defence's expert medical evidence from Dr. Finkelstein, arguing the expert relied on inadmissible surveillance video.

A voir dire was held to determine admissibility.

The court ruled that Dr. Finkelstein could testify, but with conditions: no comment on surveillance in examination-in-chief, and the plaintiff could cross-examine on activities disclosed in evidence or directly on the surveillance (with defence re-examination rights).

The court balanced the probative value of the expert evidence against the potential prejudice from the inadmissible surveillance, noting the expert's opinions were largely independent of the video and foundational facts were already in evidence.

Two competing class actions were commenced following a cyberattack and privacy breach at Casino Rama.

The plaintiffs in the Kaplan Action and the plaintiff in the Harman Action both sought carriage of the proceeding.

The court applied the seven non-exhaustive factors for determining carriage, noting that the Kaplan Action counsel had more class action experience, a better class definition, and a more refined theory of the case.

The Harman Action counsel argued that their action would proceed faster in the Oshawa court, providing speedier access to justice.

The court rejected the speed argument as determinative on the facts and granted carriage to the Kaplan Action, staying the Harman Action.

The plaintiffs and four defendants (the Teskey defendants) sought leave to appeal a decision regarding the certification of a class action arising from a propane facility explosion.

The motions judge had refused to certify claims against the Teskey defendants in strict liability, nuisance, and under the Occupiers' Liability Act, but certified a claim in common law negligence.

The Divisional Court dismissed the plaintiffs' motion for leave to appeal, finding no reason to doubt the correctness of the refusal to certify those claims against the landlords.

The Court granted the Teskey defendants' motion for leave to appeal the certification of the common law negligence claim, finding good reason to doubt whether the landlords owed a duty of care to neighbours based on the lease provisions.

In a proposed class action arising from a train derailment, the defendants communicated directly with several putative class members during the pre‑certification stage and offered individual settlements in exchange for releases.

The plaintiffs sought disclosure of the releases, rescission of the settlements, and an order preventing further communications between the defendants and putative class members.

The court held that there was no evidence of misconduct or breach of the Rules of Professional Conduct because the communications were sent by the defendants rather than their counsel and there was no proof the defendants knew the recipients were represented.

However, to preserve the integrity of the proposed class proceeding, the court ordered disclosure of the releases and required the defendants to provide class counsel with copies of any future correspondence seven days before distribution while prohibiting communication with putative class members known to be represented.

Rescission of the settlements was refused due to the absence of evidence supporting grounds such as misrepresentation, duress, or unconscionability.

The applicants sought judicial review of a Human Rights Tribunal of Ontario decision that found they had discriminated against an employee on the basis of ancestry, ethnic origin, creed, and sex.

The Divisional Court set aside the Tribunal's decision, finding it to be patently unreasonable and procedurally unfair.

The adjudicator erred by refusing to accommodate a key witness for the employer, drawing an adverse inference from that witness's absence, and making findings of discrimination regarding a microwave policy and dress code that were unsupported by factual findings or logical legal reasoning.

The matter was remitted for a new hearing before a different adjudicator.

The plaintiffs appealed a decision upholding the defendants' claim of litigation privilege over an expert engineer's file.

Before the appeal was heard, the defendants produced the expert's report and underlying file, rendering the appeal moot.

The Divisional Court awarded the plaintiffs $15,000 in costs for the appeal, the leave motion, and the appeal below, finding that the defendants' tactical delay in obtaining the report and claiming privilege unnecessarily prolonged the proceedings and increased costs, particularly given the defendants' spoliation defence.

The plaintiff was injured in a motor vehicle accident while a passenger in an uninsured vehicle.

She sought uninsured motorist coverage under the policy of the other driver, who was insured by the respondent.

The motion judge dismissed the action against the respondent, finding the plaintiff was not a 'person insured under the contract' under s. 265 of the Insurance Act.

The Court of Appeal allowed the appeal, applying its previous decision in Taggart.

The Court held that the broader definition of 'insured' in s. 224 informs s. 265, meaning that because the plaintiff was entitled to statutory accident benefits under the respondent's policy, she was also entitled to uninsured motorist coverage.

The Court declined to overrule Taggart, finding it was not decided per incuriam.

The plaintiff's application for leave to appeal an interlocutory order regarding the attendance of co-defendants at examinations for discovery was dismissed.

The parties made written submissions on costs.

The defendants sought $4,544.90.

The court considered the factors under section 131 of the Courts of Justice Act and Rule 57.01, noting some procedural delays by the plaintiff but also adjusting for duplication of work.

Costs were fixed at $3,500 inclusive of disbursements and GST.

The plaintiff brought a motion for leave to appeal an interlocutory order that allowed the co-defendants to attend each other's examinations for discovery.

The plaintiff argued that the defendants should be excluded because credibility was in issue regarding a letter sent to the plaintiff after a motor vehicle accident.

The court dismissed the motion for leave to appeal, finding no reason to doubt the correctness of the motions judge's decision that the plaintiff had not met the onus of demonstrating that the ends of justice required exclusion.

The applicant sought her expenses following an arbitration decision regarding statutory accident benefits.

The arbitrator found that success was divided, as the applicant was unsuccessful in her claim for ongoing income replacement benefits and a special award, but successful in correcting the amount of her income replacement benefit and resisting the insurer's claim for repayment based on alleged fraud.

The arbitrator awarded the applicant one-half of her assessed expenses, calculated at Legal Aid rates rather than the requested maximum rate, resulting in an award of $11,414.28.

The applicant was injured in a motor vehicle accident and received income replacement benefits until the insurer terminated them.

The applicant sought ongoing benefits, while the insurer claimed repayment of all benefits paid, alleging wilful misrepresentation of her pre-accident medical history.

The arbitrator found that the applicant had a significant, undisclosed pre-accident history of chronic back pain and lacked credibility.

The arbitrator concluded that the applicant's ongoing disability was not caused by the accident, dismissing the claim for ongoing benefits.

However, the arbitrator ordered the insurer to pay a shortfall in the benefits already paid, as the applicant had a reasonable explanation for initially failing to disclose a second job.

The insurer's claim for repayment due to wilful misrepresentation was dismissed.

The applicant was injured in a motor vehicle accident and sought statutory accident benefits.

The parties attended mediation and executed a Release and Indemnity Agreement.

The insurer argued the agreement precluded the applicant from proceeding to arbitration for certain medical and rehabilitation benefits.

The arbitrator found the agreement ambiguous and admitted extrinsic evidence under an exception to the parol evidence rule.

The arbitrator concluded the parties intended to exclude the disputed clinic accounts from the release, allowing the applicant to proceed to arbitration.