Theodore P. Charney

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 landlord defendants appealed an order certifying a class action against them founded on common law negligence following a series of devastating propane explosions.

The appellants argued that as landlords, they owed no duty of care to third parties in the surrounding residential neighbourhood.

The Divisional Court dismissed the appeal, finding it was not plain and obvious that the landlords had no obligation to act, given allegations that they knew of the highly dangerous propane business and the foreseeable risk of catastrophic harm to nearby residents.

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.

The plaintiffs in a proposed class action for wrongful dismissal brought a motion seeking particulars of the allegations in the defendants' Statement of Defence and Crossclaim.

The plaintiffs argued the particulars were necessary to deliver a reply and to prepare for the upcoming certification motion.

The court dismissed the motion, finding that the plaintiffs did not need the particulars to plead a reply, as they were not proposing a different version of facts.

Furthermore, the court held that particulars should not be used as a substitute for discovery, and the plaintiffs would have ample opportunity to understand the defendants' case through the normal certification motion procedures.

In a class proceeding arising from a major propane facility explosion, the plaintiffs sought to amend their statement of claim and certify claims against additional defendants associated with the ownership and leasing of the facility property.

The court considered whether the proposed amended pleading satisfied the s. 5(1)(a) requirement of the Class Proceedings Act by disclosing a reasonable cause of action.

Claims in strict liability and nuisance against the property-owning defendants were struck because the pleadings failed to meet the legal prerequisites and improperly characterized the alleged nuisance.

Negligence claims under the Occupiers’ Liability Act were also dismissed because the alleged damages occurred off the premises and the statute only applies to persons entering the premises.

However, the court held that the plaintiffs had properly pleaded a viable common law negligence claim based on the defendants’ alleged rights of control and failure to intervene in unsafe operations.

Certification against the remaining defendants proceeded solely on the basis of the common law negligence cause of action.

In a certified class proceeding arising from explosions at a propane facility, class counsel moved for an order restraining an insurer and its counsel from communicating directly with class members during the court‑approved opt‑out period.

The insurer’s counsel had sent letters stating the insurer would opt insured class members out of the class action and pursue their claims through a subrogated action.

The court held the communications were misleading, interfered with the solicitor‑client relationship between class counsel and class members, and violated the Rules of Professional Conduct.

The court reaffirmed that insureds retain control of litigation until fully indemnified for both insured and uninsured losses.

An order was made prohibiting the insurer and its counsel from communicating with affected class members without court approval or consent of class counsel during the opt‑out period.

The plaintiffs sought certification of a proposed class action arising from explosions at a propane facility in Toronto that allegedly caused personal injury, property damage, and evacuation of nearby residents.

The court considered the certification requirements under s. 5 of the Class Proceedings Act, 1992.

It held that the pleadings against certain landlord defendants failed to disclose a viable cause of action because the allegations relying on agency, single‑group enterprise, and alter‑ego theories lacked material facts capable of piercing the corporate veil.

Those pleadings were struck with leave to amend and the certification motion against those defendants was adjourned.

The proceeding was otherwise certified as a class action against the remaining defendants, with common issues approved and representative plaintiffs appointed.

In a certified class action arising from a fire and explosion in an underground electrical vault at a residential complex, the defendant utility appealed a Master’s order compelling answers to refusals given during examinations for discovery.

The appeal concerned whether the defendant was required to disclose details of internal and expert investigations and to answer questions regarding its theory of causation.

The court held that the defendant failed to establish a factual basis for litigation privilege over investigative information and expert findings.

The court further held that under Rule 31.06(3) of the Rules of Civil Procedure, a party must disclose expert findings, opinions, and conclusions at discovery unless it undertakes not to call the expert at trial.

The Master’s order requiring answers to discovery questions and disclosure of investigative information was upheld.

The appellant insurers appealed a decision granting the respondent insured carriage and control of an action against a third-party wrongdoer.

The action included both the insurers' $1.1 million subrogated claim and the insured's $700,000 uninsured loss claim.

The Court of Appeal dismissed the appeal, agreeing with the application judge that the insured should retain carriage and control given its diligence, the insurers' delay, and the lack of prejudice to the insurers.

The respondent's cross-appeal for full indemnity costs was also dismissed.

The Applicant sought expenses following a successful arbitration for statutory accident benefits.

The insurer conceded general entitlement but disputed the quantum of legal fees and certain disbursements.

The arbitrator applied the criteria under section 12(2) of Regulation 664 and determined that a 2:1 ratio of preparation time to hearing time was appropriate given the modest complexity of the issues.

The arbitrator allowed the law clerk's time at $45 per hour and counsel's time at $150 per hour.

The Applicant was awarded total arbitration expenses of $21,268.41, including legal fees, disbursements, and the costs of the expense hearing.

Following a motion for leave to appeal and a successful motion by the plaintiffs to exclude fresh evidence, the court determined the issue of costs.

The parties agreed that costs of the motion for leave should be left to the panel hearing the appeal.

For the motion to exclude fresh evidence, the court rejected the defendants' argument that a separate motion was unnecessary, noting the defendants attempted to introduce the same documents previously refused.

The court awarded the plaintiffs costs fixed at $765.

The Applicant was injured in a motor vehicle accident and applied for statutory accident benefits, including caregiver, housekeeping, and medical benefits.

The Insurer denied the claims, arguing in part that the Applicant failed to attend an in-home assessment.

The Arbitrator found that the Insurer's notice of examination was procedurally defective and that the Applicant had a reasonable excuse for refusing the in-home assessment.

On the substantive issues, the Arbitrator concluded that the accident materially contributed to the Applicant's physical and psychological impairments, including fibromyalgia and psychosis.

The Arbitrator awarded caregiver and housekeeping benefits for specific periods, as well as the costs of a dental assessment and a physiotherapy treatment plan, but denied the cost of a neurological examination.

Interest was awarded on the overdue benefits.

The applicant sought production of any surveillance evidence held by the insurer, regardless of whether the insurer intended to rely on it at the hearing.

The arbitrator dismissed the motion, holding that under Rule 40 of the Dispute Resolution Practice Code, an insurer is not obligated to produce surveillance evidence or disclose its existence unless and until it decides to rely on it.

The arbitrator found that he was bound by prior appellate decisions of the Director's Delegate confirming this interpretation.

Following the dismissal of 42 consolidated motions for leave to appeal costs awards in 37 class actions, the respondent insurers sought costs totalling $345,349.36.

The Court of Appeal assessed the bills of costs submitted by various law firms representing the insurers.

Applying the principle that costs must be fair and reasonable rather than a strict mathematical calculation of hours times rates, the Court reduced the amounts claimed, noting that the complexity was procedural rather than legal or factual.

The Court fixed the total costs payable to the insurers at $141,645.26.