Theodore P. Charney

The plaintiffs, former major junior hockey players, appealed a motion judge's refusal to certify five causes of action in their class proceeding against the Canadian Hockey League and its clubs, and appealed the costs order.

The defendants sought leave to cross-appeal the certification of the action, alleging a conflict of interest among class members.

The Divisional Court allowed the plaintiffs' appeal on certification, finding the motion judge erred in principle by using a proportionality analysis to dismiss properly pleaded causes of action as redundant.

The court dismissed the defendants' cross-appeal, finding no conflict of interest.

On costs, the court upheld the motion judge's decision to make a portion of the plaintiffs' costs payable in the cause, but allowed the appeal regarding the U.S. defendants' costs, ordering that they be paid by the Law Foundation of Ontario rather than the plaintiffs, pursuant to the Law Society Act.

The plaintiffs in a class action against Ford Motor Company sought court approval of a settlement agreement concerning allegedly defective Powershift Dual-Clutch Transmissions in Ford Focus and Fiesta vehicles.

The settlement, reached after mediation, provided varied compensation to class members on a claims-made basis, including cash payments for multiple repairs or alternative benefits like partial refunds for persistently troubled vehicles.

The court approved the settlement, finding it fair, reasonable, and in the best interests of the class, noting its advantages over individual litigation.

The court also approved class counsel fees (a combination of defendant contribution and a percentage of claims) and honoraria for representative plaintiffs, while denying late opt-out requests.

The applicants commenced an action against the Ontario Hockey Association and related entities and individuals.

After the respondents requested an extension to file a defence and the applicants confirmed they would not note them in default, the respondents were nonetheless noted in default one day after the deadline.

The respondents successfully moved to set aside the noting in default, and the motion judge ordered the applicants to amend their statement of claim within seven weeks.

The applicants failed to comply with this order.

The respondents subsequently moved to dismiss the claim for breach of the order, and the applicants did not attend the hearing.

The motion judge dismissed the claim with prejudice and ordered costs of $83,937.82.

The applicants later sought an extension of time to appeal, which was dismissed by the chambers judge.

The Court of Appeal affirmed the dismissal, finding no legal error and concluding that the applicants had deliberately breached court orders and lacked a bona fide intention to appeal within the relevant time period.

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.

In an addendum to a previous endorsement granting the plaintiffs an extension of time to seek leave to appeal a certification decision, the Divisional Court provided directions on the contents of the motion record.

Noting that motions for leave to appeal are now heard in writing by a three-judge panel, the court emphasized the need for counsel to collaborate and file a circumspect, necessary record rather than an extensive one.

The deadline for the plaintiffs to serve and file the record was extended to allow for this collaboration.

The defendants brought a motion to quash the plaintiffs' appeal of a class action certification order that excluded U.S. defendants.

The plaintiffs brought cross-motions for an extension of time to seek leave to appeal the exclusion of the U.S. defendants and the refusal to certify redundant causes of action.

The Divisional Court granted the motion to quash, finding that leave to appeal was required.

The court dismissed the plaintiffs' motion for an extension of time regarding the U.S. defendants, but granted the extension of time regarding the redundant causes of action due to a conflicting decision in a parallel Alberta proceeding.

The moving parties, plaintiffs in a parallel proposed class action in Saskatchewan, sought leave to intervene in the certification motion of an Ontario class action concerning the same subject matter.

The Ontario plaintiffs opposed the intervention.

The court held that while it had inherent jurisdiction to grant standing to intervene, the moving parties failed to show they would make a useful contribution to the certification motion.

The court found the intervention would likely delay proceedings and potentially prejudice a portion of the class.

The motion for leave to intervene 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.

At a case conference in a proposed class action, the plaintiffs sought an adjournment of the defendant's pending jurisdiction motion to summons witnesses.

The defendants objected, arguing an adjournment would prejudice them due to the impending expiry of the limitation period for third-party claims under s. 18 of the Limitations Act, 2002.

The court resolved the prejudice by ordering that the defendants could deliver pro forma defences and commence third-party proceedings without attorning to the court's jurisdiction, and adjourned the jurisdiction motion.

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.

In this costs endorsement following a personal injury jury trial, the plaintiff sought enhanced costs based on a Rule 49 offer of $300,000 inclusive of interest plus costs.

The defendants argued that the future income loss award should be excluded from the judgment for offer-comparison purposes because of the trust and assignment regime under s. 267.8 of the Insurance Act.

The court rejected that submission, held the judgment remained more favourable than the offer, and awarded partial indemnity costs to the offer date and substantial indemnity costs thereafter.

Applying Rule 57.01 and proportionality principles, the court fixed fees at $240,000 plus applicable GST/HST and allowed disbursements of $124,013.46.