Theodore P. Charney

This is a continued certification motion in a class action alleging that the defendant misused class members' data by making it available to third parties without consent.

The court declined to certify the proceeding on multiple grounds: the proposed class definition was not workable, as it required individual inquiries to develop a Master Class List and was both under-inclusive and over-inclusive; the nominal damages issue could not be certified as a common issue because individual issues were woven into its determination; the proceeding was not the preferable procedure given the absence of evidence of compensable loss and the availability of regulatory proceedings; and the litigation plan was unworkable given the size of the class and the numerous individual inquiries required.

The defendant was awarded costs of $500,000 all-inclusive.

The court approved a class action settlement regarding balcony guardrail failures at the Matrix Towers in Toronto, which led to residents being deprived of balcony access for up to 3.5 years.

The settlement provides a lump sum per unit, regardless of unit size, and includes approval of class counsel fees and disbursements but denies honoraria for the representative plaintiffs.

The decision reviews the risks of litigation, the fairness of the settlement, comparator cases, and the legal standards for settlement approval, counsel fees, and honoraria.

The plaintiffs brought a motion to certify a class action against Facebook, alleging the unauthorized sharing of user data with third-party apps.

The court struck the claims for breach of confidence and breaches of the privacy statutes of British Columbia, Manitoba, and Newfoundland and Labrador, but found the pleadings disclosed causes of action for breach of contract, intrusion upon seclusion, disgorgement, and breach of the Saskatchewan Privacy Act.

The court excluded the plaintiffs' proposed expert evidence but admitted various documentary exhibits.

While the court approved several common issues, it found others required individual inquiries and adjourned the motion to allow the plaintiffs to propose a revised class definition and litigation plan.

The plaintiffs in a class action sought to certify additional common issues.

The Landlord Defendants brought a preliminary motion to prevent this, arguing that a previous "Further Certification Order" (FCO) was a final certification order, or alternatively, that the plaintiffs required leave under s. 8(3) of the Class Proceedings Act, 1992, which should be denied.

The court dismissed the preliminary motion, finding no objective agreement that the FCO was a final certification order and that, consequently, no leave under s. 8(3) was required as the proposed motion was a continuation of the certification process, not an amendment to a final order.

The moving parties sought leave to appeal the decision of Glustein J. dated April 19, 2024.

The Divisional Court dismissed the motion for leave to appeal.

In accordance with the parties' agreement, no costs were awarded.

This decision concerns the approval of a $30 million settlement in a class action alleging that major junior hockey players were employees entitled to minimum wage and other benefits.

The court approved the settlement, finding it fair, reasonable, and in the best interests of the class, given the high litigation risks and uncertain legal landscape.

The court also approved Class Counsel's fees but declined to approve honoraria for the representative plaintiffs, reiterating that such awards should be rare and reserved for exceptional contributions.

In a certified and settled class action against Yahoo!, Class Counsel brought a motion to resolve conditions of the settlement approval and finalize administration.

The court approved a second notice program, awarded additional Class Counsel fees of $541,869.22 plus disbursements, and allocated a portion of the accrued interest on the settlement fund to Class Counsel.

The court also recalculated the Class Proceedings Fund levy.

However, the court dismissed Class Counsel's request for retroactive payment of omitted docketed time, finding it was counsel's own error.

The defendants brought a motion for summary judgment, arguing that the motor vehicle accident was an "inevitable accident" due to the defendant driver suffering a severe anaphylactic shock from an allergic reaction to naproxen (Aleve).

The plaintiff opposed, asserting that genuine issues of fact and credibility required a trial.

The court dismissed the motion, finding that there were complex and highly disputed factual issues, particularly regarding the timing of the anaphylactic reaction, the driver's potential negligence in taking a double dose of medication without reading instructions, and when unconsciousness occurred.

The court determined it could not make the necessary factual findings for a fair and just determination without a full trial, even with enhanced fact-finding powers.

The plaintiffs in a proposed class action sought a mid-certification motion adjournment to introduce new expert evidence, arguing a gap in their existing evidence regarding the class members' stake in the litigation.

The defendants opposed, characterizing the request as a fundamental re-conceptualization of the claim.

The court granted the adjournment, finding that the proposed new evidence would indeed necessitate a significant re-do of the case, including potential amendments to pleadings and common issues, and possibly a redefinition of the class.

Due to the substantial prejudice caused to the defendants by this shift, the court ordered the plaintiffs to pay costs thrown away.

The plaintiffs sought to certify a class action against the defendant pharmaceutical companies for manufacturing and distributing valsartan contaminated with NDMA and NDEA, which are probable human carcinogens.

The plaintiffs claimed damages for psychological harm and pure economic losses (medical bills, medical monitoring, refunds, and wasted pills) arising from the increased risk of being diagnosed with cancer, but explicitly did not claim damages for actually developing cancer.

The court dismissed the certification motion, finding that the law does not recognize a cause of action for the mere creation of risk or for pure economic loss from shoddy but not imminently dangerous goods, and therefore the claims failed to satisfy the cause of action, common issues, and preferable procedure criteria.

The defendants in a personal injury action brought a motion for a further examination for discovery of the plaintiff, relying on surveillance footage that allegedly showed the plaintiff working despite his discovery evidence to the contrary.

The defendants argued the plaintiff had a duty to correct his answers under Rule 31.09 or that the surveillance constituted a material change in circumstances.

The court dismissed the motion, finding that the plaintiff maintained his answers were correct and that the generation of surveillance evidence did not constitute a change in circumstances justifying further discovery.

The appellant, Sarfraz Malik, appealed a Superior Court decision that denied his motion to amend his statement of claim to add Family Law Act (FLA) s. 61 claims for losses arising from injuries to his children, more than four years after the accident.

The Superior Court judge had reversed a Master's decision, finding that s. 61 FLA claims constitute a distinct statutory cause of action, subject to the Limitations Act, and not merely a claim for additional damages within an existing negligence action.

The Court of Appeal affirmed the Superior Court's decision, holding that a s. 61 FLA claim is a separate statutory cause of action that was statute-barred in this case, thereby dismissing the appeal.

The representative plaintiffs in three related class actions concerning the employment status of major junior hockey players sought approval of a $30 million settlement.

The court declined to approve the settlement because of an eleventh-hour objection raising concerns that the standard form release in the settlement agreement might bar class members from pursuing other existing class actions against the defendants for concussions, sexual abuse, and anti-competitive behaviour.

The court found that the release needed to be renegotiated to ensure it did not prejudice class members' rights in those other actions.

Three competing groups of law firms sought carriage of a proposed class action against LifeLabs following a massive data breach affecting 15 million patients.

The court evaluated the competing proposals based on factors including the experience of counsel, overall approach, and proposed fee arrangements.

Carriage was awarded to the McPhadden Group (the Carter action) because their proposal for a single national class action was preferred over parallel actions, and their proposed contingency fee arrangement was significantly more cost-effective for the class.

The plaintiffs in a proposed class action against Yahoo!

Inc. and Yahoo!

Canada Co. for privacy breaches brought a consent motion for a pre-certification representation order.

The order sought to appoint Charney Lawyers PC as representative counsel to negotiate a holdback agreement with Altaba Inc. (formerly Yahoo) during its dissolution in Delaware.

This agreement would secure potential creditor claims for the approximately 5 million putative class members in Canada.

The court granted the order, finding it necessary and desirable under Rule 10.01 of the Rules of Civil Procedure and s. 12 of the Class Proceedings Act, 1992, to protect the interests of the unascertained class members and ensure the fair and expeditious determination of the class proceeding, drawing parallels to representation orders in CCAA proceedings.

This decision concerns a consent certification motion in a class action arising from a six-alarm electrical fire at 650 Parliament Street, Toronto, which displaced hundreds of tenants.

The court certified the action as a class proceeding against the core defendants, Parwell Investments Inc. and 650 Parliament (LHB) Investments Limited, on the common issue of negligence.

The certification was granted based on the parties' agreement, satisfying the requirements of the Class Proceedings Act, 1992, including an identifiable class, common issues, preferability of a class proceeding, and suitable representative plaintiffs.

The order defined the class, appointed representative plaintiffs, declared negligence as the cause of action, and outlined specific common issues related to the defendants' duty and breach of care concerning the building's design, construction, operation, maintenance, and electrical systems.

No costs were awarded for the motion.

The court awarded costs following the dismissal of the plaintiffs' motion for certification in a class action.

The defendants sought $255,707.13, while the plaintiffs argued for no costs or $75,000, citing public interest and novel legal issues.

The court rejected these arguments, finding no public interest dimension as no losses were sustained and the defendant reacted responsibly to the cyber-hack.

The court also found the legal issues not novel, despite involving a cyber-attack, as similar incidents have led to numerous class actions.

Applying its established approach to costs in certification motions, the court adhered to the Grid rates for hourly fees, explicitly rejecting the defendants' argument for 60% of actual rates.

After considering a Grid-compliant outline of $176,459 and a 10% reduction for additional work attributed to the defendant, the court fixed an all-inclusive costs award of $160,000 to be paid by the plaintiffs to the defendants.

The appellant, Amir Nikbakht, appealed an interlocutory order of Master Wiebe that granted the respondent, Sarfraz Malik, leave to amend his statement of claim to add a claim under s. 61 of the Family Law Act (FLA) after the two-year limitation period had expired.

The Master, relying on Bazkur v. Coore, held that the FLA claim was not a new cause of action but an additional remedy.

The Superior Court judge, exercising coordinate jurisdiction, found that Bazkur was "plainly wrong" and that a s. 61 FLA claim constitutes a new statutory cause of action, distinct from a direct negligence claim.

Consequently, the amendment sought after the limitation period was statute-barred.

The appeal was allowed, and the Master's order was set aside.

An anonymous hacker stole personal information from Casino Rama's computer system, affecting customers, employees, and suppliers.

The plaintiffs sought to certify a class action for negligence, breach of contract, intrusion upon seclusion, and other privacy torts.

The motion for certification was dismissed.

The court found that claims for breach of confidence and publicity given to private life were bound to fail.

While negligence, breach of contract, and intrusion upon seclusion were deemed viable causes of action, the common issues requirement under s. 5(1)(c) of the Class Proceedings Act, 1992 was not satisfied.

The court determined that the proposed common issues required too much individual inquiry, particularly regarding the duty and standard of care, and the varying sensitivity of stolen information.

The class definition was also found to be overbroad, specifically including unionized employees whose claims fell under exclusive labour arbitration jurisdiction.

This application sought a determination of contractual rights regarding an early termination provision in pre-construction condominium agreements.

The applicants argued that a 'sole, absolute and unfettered discretion' proviso in a financing condition rendered the entire condition null and void under the Tarion Addendum, leading to a breach of contract claim.

The court found that the proviso did not form part of the early termination condition or, if it did, it was inconsistent with the Addendum's requirement for commercially reasonable steps and was therefore unenforceable.

The court interpreted the condition to require vendors to take all commercially reasonable steps to arrange satisfactory financing, upholding the validity of the termination condition and dismissing the application.