Theodore P. Charney

Two competing class actions were filed following a six-alarm electrical fire that displaced hundreds of tenants at 650 Parliament Street.

The court heard a carriage motion to determine which law firm should proceed.

Finding both firms equally qualified and prepared, the court awarded carriage to the Strosberg/Charney consortium in the Chu action based on their fee arrangement, which would result in a significantly larger net recovery for the class members compared to the competing firm's fixed fee and third-party funding arrangement.

The plaintiffs moved for certification of a national class action against Ford Motor Company and Ford Motor Company of Canada, Limited, concerning alleged non-repairable defects in the transmissions of Ford Focus and Ford Fiesta automobiles.

The parties had reached a tentative settlement.

The court granted the consent order for certification, finding that all criteria under section 5(1) of the Class Proceedings Act, 1992 were met, including disclosure of a cause of action (breach of contract/warranty and Civil Code of Quebec provisions), an identifiable class, common issues, and that a class proceeding was the preferable procedure.

The court also approved the form and plan for distribution of the notice to the class.

The plaintiff, a land developer, sought insurance coverage from the defendant insurer for five underlying actions alleging misrepresentation of lot sizes, leading to claims of reduced property size and loss of use.

The defendant moved for a declaration that the alleged smaller lot sizes did not constitute "property damage" under its Comprehensive General Liability policy, and thus it had no duty to defend.

The plaintiff cross-moved for an order that the defendant did have a duty to defend.

The court found that the underlying claims for "loss of use of tangible property that is not physically injured" could constitute "property damage" as defined in the policy, particularly given the purchasers' equitable interest in the land.

Consequently, the court dismissed the defendant's motion and granted the plaintiff's cross-motion, declaring that the defendant had a duty to defend.

The court also addressed the issue of counsel selection, stating that merely disputing the duty to defend or indemnify does not automatically create a conflict requiring the insurer to surrender control of counsel appointment.

The defendant Coseco Insurance Company brought a motion seeking to separate the issue of consent (whether Kyriakos Constantinidis had his mother's consent to drive) from the damages determination in a motor vehicle accident claim.

Coseco proposed three options: bifurcate the jury trial, strike the jury notices and bifurcate a non-jury trial, or order a mini-trial under Rule 20.

The motion was opposed by Sofia Constantinidis.

The court found it lacked jurisdiction to bifurcate a jury trial without consent, declined to strike the jury notices as the consent issue was suitable for a jury, and determined it could not order a mini-trial under Rule 20 as that discretion rests with the motion judge.

All relief sought by Coseco was dismissed.

Following a certification motion in a proposed class action by former junior hockey players seeking minimum wage and overtime pay, the court determined the costs awards.

The plaintiffs succeeded in certifying the action against the Canadian teams but failed against the American teams.

The court awarded the plaintiffs $1,212,065.63 in partial indemnity costs, with $500,000 payable forthwith and the balance in the cause.

The American teams were awarded $200,000 in costs, which the court ordered to be credited against the plaintiffs' award, akin to a Bullock or Sanderson order, reflecting that both sides were responsible for the excessive litigation expense.

The plaintiffs, former players in the Ontario Hockey League, brought a motion to certify a class action against the Canadian Hockey League, its regional leagues, and their respective teams.

The plaintiffs alleged that the players were employees and were entitled to minimum wage and overtime pay under employment standards legislation.

The court certified the action as a class proceeding for the claims of breach of employment statutes and unjust enrichment against the Ontario teams.

The court declined to certify the claims against the U.S. teams, finding that a class action in Ontario was not the preferable procedure for those claims.

The court also declined to certify redundant causes of action, including breach of contract, negligence, breach of good faith, conspiracy, and waiver of tort.

The court found that the representative plaintiffs were adequate and had no disqualifying conflict of interest with current players.

The plaintiffs brought a motion for approval of a proposed settlement in a certified class action regarding a mass termination without notice or severance pay.

The employer had gone bankrupt, leaving the plaintiffs to pursue the directors and officers and their liability insurance policy.

After complex litigation and negotiations regarding the depletion of the insurance policy, a settlement was reached for approximately $1.77 million.

The court found the settlement to be fair, reasonable, and in the best interests of the class, providing significant recovery where there was high risk of none.

The court also approved class counsel's fee request of one-third of the settlement amount, noting the high risk undertaken and the excellent result achieved.

The plaintiff in a proposed class action sought ex parte court approval of a complex third-party funding agreement and an order sealing the court file.

The court adjourned the motion, requiring the plaintiff to obtain independent legal advice regarding the funding agreement and his retainer with class counsel, and ordered the motion record to remain sealed pending further order.

The court expressed concerns about protecting the plaintiff's interests, the potential for tactical advantages for defendants if the agreement were disclosed, and the need to reconcile Ontario's approach with other jurisdictions that approve such agreements ex parte.

The plaintiff in a proposed class action regarding defective condominium bathtub valves brought a motion to set aside settlements reached between the defendants and several putative class members prior to certification.

The defendants had offered $500 and a valve replacement to unit owners who contacted them, in exchange for a release.

The court dismissed the motion, finding no breach of the Class Proceedings Act or Rules of Professional Conduct, and concluded that court intervention was not necessary to protect the putative class members' interests at this stage.

In a class action arising from a train derailment where the defendants admitted liability, the parties could not agree on a litigation plan for the individual issues phase to determine damages.

The plaintiffs proposed a plan involving a test case for mental distress damages, while the defendants proposed a more cumbersome procedure with extensive discovery rights.

The court rejected both plans as inadequate and contrary to the goals of access to justice and judicial economy.

The court proposed a three-tier procedure based on the quantum of damages claimed and directed the parties to negotiate a plan based on this proposal.

In a class action arising from a train derailment where the defendants admitted liability, the parties could not agree on a litigation plan for the individual issues phase to determine damages.

The plaintiffs proposed a plan involving a test case for mental distress damages, while the defendants proposed a more cumbersome procedure.

The court rejected both plans as inadequate for achieving access to justice and judicial economy.

The court proposed an alternative three-tiered claims procedure based on the amount claimed and directed the parties to negotiate a final plan based on this proposal.

The plaintiff condominium owner sought certification of a class action arising from allegedly defective balcony railings at a Toronto condominium complex.

After a railing detached and fell, engineering reports concluded the guard-rail assemblies did not comply with the applicable Ontario Building Code, requiring removal and replacement of all balcony railings and resulting in extended restrictions on balcony use.

The proposed class consisted of persons who owned, rented, or resided in units whose balconies were inaccessible during the remediation period.

The court held that the pleadings disclosed viable causes of action in negligence and breach of contract, that an identifiable class and common issues existed, and that a class proceeding was the preferable procedure with an adequate representative plaintiff.

Certification under the Class Proceedings Act, 1992 was therefore granted.

A ruling on costs following a motion concerning severance of civil claims.

The responding party successfully defended the motion and sought costs on a partial indemnity basis.

The court considered the principles governing cost awards, including reasonableness and access to justice, and applied guidance from appellate authorities regarding the summary assessment of counsel fees.

The court rejected arguments that the successful party improperly used two lawyers or duplicated work.

Costs were fixed and ordered payable by certain defendants.

Following dismissal of a motion brought in a certified class proceeding seeking disclosure about how insurance proceeds were expended, the successful defendants sought costs.

The representative plaintiffs argued success on the motion was divided because certain insurance information had been disclosed before the motion.

The court rejected this characterization and held the defendants were the successful party.

However, exercising discretion under the costs principles governing interlocutory motions, the court found the amount claimed exceeded what the unsuccessful party could reasonably expect to pay.

Partial indemnity costs were reduced and fixed at $4,500 inclusive.

The moving defendants sought an order requiring that the plaintiff’s claims against them be asserted in a separate proceeding pursuant to Rules 5.02 and 5.05 of the Rules of Civil Procedure.

The action alleged two related kickback and fraud schemes involving a company executive who allegedly conspired with different subcontractors.

The moving parties argued that the claims concerning the two schemes should be severed.

The court held that the claims were properly joined because they involved a common participant, similar modus operandi, and overlapping factual and legal issues.

Severance would create unnecessary complexity and could require similar fact evidence to be litigated in separate proceedings.

In a certified class proceeding arising from a mass termination of employees, the representative plaintiffs brought a motion seeking further disclosure regarding the defendants’ insurance coverage, including details about the depletion of policy proceeds.

The defendants had already produced the policy and disclosed the remaining available coverage.

The court held that the discovery rules concerning insurance disclosure do not require detailed accounting of how insurance proceeds were spent, absent relevance to the issues in the litigation.

Additional disclosure could create unnecessary conflict between insured defendants and their insurer and was not necessary for the plaintiffs to decide whether to pursue or settle the litigation.

The motion for further disclosure was therefore dismissed.

In a certified class proceeding involving claims for unpaid wages and vacation pay, the representative plaintiffs sought partial default judgment against a defendant who had been noted in default.

The claims arose under the Employment Standards Act, 2000 and included statutory claims and damages for negligence, inducing breach of contract, and oppression relating to unpaid wages, vacation pay, termination pay, and severance pay.

The court held that, by virtue of the default, the defendant was deemed to admit the allegations in the amended statement of claim.

Based on the deemed admissions and evidentiary record, the court concluded the plaintiffs were entitled to judgment against the defaulting defendant.

The precise terms of the judgment and certification order were to be settled at a case conference.

The plaintiffs brought a motion to certify a class action on behalf of 521 dismissed employees of an insolvent call centre.

The defendants brought a cross-motion to strike several claims, arguing that the court lacked jurisdiction due to pending Employment Standards Act proceedings and that the pleadings failed to disclose reasonable causes of action.

The court struck the breach of fiduciary duty claims but allowed the negligence, conspiracy, inducing breach of contract, and oppression remedy claims to proceed.

The court held that while s. 97 of the Employment Standards Act precluded some employees from advancing wrongful dismissal claims, it did not bar them from participating in the class action for the other tort and statutory claims.

The action was certified as a class proceeding.

The plaintiffs brought certification motions under the Class Proceedings Act, 1992 relating to falling balcony glass panels from three condominium developments in Toronto.

Owners and residents alleged negligence, nuisance, and breach of contract against developers, builders, and related entities after balconies were sealed and glass panels replaced following safety concerns.

The defendants consented to certification subject to three caveats regarding class definition wording, certification of an aggregate damages issue, and the viability of a collateral contract claim against a developer.

The court certified the actions as class proceedings, rejecting the proposed change to the class definition and permitting the collateral contract claim to proceed as a common issue.

However, the court declined to certify a proposed aggregate damages issue due to appellate authority interpreting s. 24(1)(c) of the Class Proceedings Act as prohibiting random sampling of class members to determine damages.

During a civil trial arising from a motor vehicle collision, the court considered whether an expert accident reconstruction witness could remain in the courtroom during the testimony of the opposing party’s expert despite an existing witness exclusion order under Rule 52.06(1).

The moving party sought permission for the expert to observe the opposing expert’s testimony to assist counsel in cross-examination.

The opposing party argued the testimony involved credibility issues arising from changes between expert reports.

The court held that experts are commonly exempted from exclusion orders because they provide opinion evidence rather than factual testimony, and their presence can assist counsel in understanding and testing expert evidence.

Finding no prejudice and relying on its discretion to vary trial management orders where circumstances change, the court amended the earlier exclusion order to permit experts to hear the testimony of opposing experts.