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.

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.

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.

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.

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.

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.

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.