Vadim Kats

The plaintiff moved to certify a class action against the defendants regarding their practice of automatically renewing residential mortgages at maturity into six-month closed terms at higher posted rates.

The plaintiff alleged this practice breached section 8 of the Interest Act, breached the standard form contracts, and constituted unjust enrichment.

The court found that the pleadings disclosed viable causes of action, including that the automatic renewal could trigger 'arrears' under the Interest Act.

The court certified the class action, finding an identifiable class, common issues predominating over individual ones, and that a class proceeding was the preferable procedure.

The court considered whether to stay five "protective actions" brought by a law partner against former clients and third parties following the misappropriation of trust funds by a defalcating lawyer.

The plaintiff sought to recover misappropriated funds on behalf of the firm's client beneficiaries.

The court found that continuing the litigation would be oppressive, vexatious, and an abuse of process, as the defendants—many of whom were themselves victims—had been subjected to prolonged litigation without clarity on amounts owed or owing.

The court stayed all five protective actions, finding that the victims should not bear the burden of their former counsel's wrongdoings through litigation.

This decision addresses two motions: the plaintiff's motion for a stay of a proposed class action against Apple Canada Inc. pending an appeal in an unrelated case (Lewis v. Uber Canada Inc. et al.), and Apple's scheduling motion for summary judgment to be heard before certification.

The plaintiff's class action alleges Apple overcharged consumers on sales tax in its trade-in program, contrary to the Excise Tax Act and other statutes.

The court dismissed the plaintiff's stay motion, finding no certainty the Lewis appeal would resolve the jurisdictional issue, and that a stay is inappropriate merely because a similar legal issue is being decided in an unrelated case.

The court granted Apple's scheduling motion, affirming the strong presumption under s. 4.1 of the Class Proceedings Act, 1992, that merits-based motions should be heard before certification, especially when they could dispose of the entire case.

Costs were awarded to Apple.

The Superior Court of Justice approved a class action settlement concerning the defendant's practice of automatically renewing mortgages at increased interest rates.

The court found the $1.5 million settlement to be fair, reasonable, and in the best interests of the class, noting the arm's length negotiation and lack of objections.

Class counsel fees of $450,000 plus HST and disbursements were approved, being less than their hourly rate calculation and reflecting the significant risk undertaken.

However, the requested $15,000 honorarium for the representative plaintiff was denied, as the court determined her contributions, while appropriate, did not meet the 'exceptional circumstances' threshold required for such an award.

The plaintiff brought a consent motion to certify a class proceeding against Haventree Bank for settlement purposes.

The action alleged that the bank breached legislation and contract terms by automatically renewing mortgages at higher interest rates, leading to additional costs for class members.

The court granted the certification, finding that all criteria under the Class Proceedings Act, 1992 were met, including disclosure of a cause of action, an identifiable class, common issues, and that a class proceeding was the preferable procedure, especially in the context of a settlement.

The court also approved the notice plan and the appointment of a Claims Administrator.

The applicant requested a reconsideration of a Licence Appeal Tribunal decision that denied his claims for an Income Replacement Benefit, an occupational therapy treatment plan, and an award under section 10 of Regulation 664.

The applicant argued that the Tribunal violated procedural fairness by providing inadequate reasons and relying on a sur-reply, and that it made errors of law and fact regarding the causation of his psychological impairments.

The Vice-Chair dismissed the request, finding that the original decision was well-reasoned, the applicant had failed to object to the sur-reply prior to the hearing, and the applicant was improperly attempting to re-litigate the Tribunal's assessment of the evidence.

The plaintiff brought a consent motion to discontinue a proposed class action regarding a data breach involving Capital One.

The action had previously been stayed following a carriage motion where another action was granted carriage, but the stay was lifted after the other action was denied certification.

The court approved the discontinuance under section 29 of the Class Proceedings Act, 1992, finding that the test for discontinuance was met and ordering notice to be posted on class counsel's websites.

The defendant brought a motion for leave to examine a non-party, who was an expert engaged by the plaintiffs, for discovery.

The plaintiffs opposed the motion on the basis that Rule 31.10 of the Rules of Civil Procedure expressly prohibits the examination of an expert engaged by a party in preparation for litigation.

The court agreed, finding that the rule does not apply to experts, and dismissed the motion for leave to examine the expert.

The court also validated service of the motion material on the non-party.

The plaintiff sought a case conference after the defendant's counsel delayed scheduling a mediation, proposing a date in February 2022.

The court found this delay unacceptable, citing the Supreme Court's direction in Hryniak v. Mauldin to move cases forward in a timely manner.

The court emphasized the importance of mediation in the civil justice system and ordered the parties to hold a mediation before November 30, 2021, along with setting deadlines for updated medical reports and defence medical examinations.

The defendants brought a motion for leave to appeal the decision of Justice Belobaba dated October 29, 2019.

The Divisional Court dismissed the motion for leave to appeal.

Costs of the motion were awarded to the responding parties, the plaintiffs, fixed in the amount of $35,000.

The court issued a costs decision in an exceptional case following a carriage motion in a class action.

The Slapinski Action Consortium, though unsuccessful in the carriage motion, sought costs against the Del Giudice Action Consortium's counsel for non-compliance with a case management direction regarding simultaneous exchange of motion materials.

The court found that the Del Giudice Action Consortium's failure to comply with the simultaneous exchange rule prejudiced the court's ability to fairly decide the carriage contest, constituting a default under Rule 57.07.

Despite the Del Giudice Action Consortium's success on the carriage motion, the court awarded partial indemnity costs of $42,907 to the Slapinski Action Consortium, to be paid personally by the Del Giudice Action Consortium's counsel.

Two rival consortia of law firms brought a carriage motion to determine who would prosecute a class action against Capital One, Amazon, and GitHub regarding a massive data breach affecting 6 million Canadians.

The court evaluated the competing case theories, noting that while both actions were viable, the Del Giudice Action's strategy of including Amazon and GitHub as defendants, despite adding complexity and litigation risk, was preferable for advancing the interests of the class and the goals of the Class Proceedings Act.

Carriage was granted to the Del Giudice Action.

The defendants brought a motion to amend the class definition in a certified data breach class action.

They sought to narrow the class to persons who had active leases or loans with Nissan during a specific period, based on evidence that the stolen data sample only contained information from that timeframe.

They also sought to exclude corporate customers.

The court granted the motion to amend the timeframe, finding it supported by the evidence, but declined to exclude corporate customers at this stage, holding that the issue of whether corporations can claim intrusion upon seclusion should be determined as a separate question of law.

Following a partially successful certification motion in a privacy breach class action, the plaintiffs sought costs of $532,162.17.

The court found the requested amount excessive and unreasonable due to over-litigating, over-staffing, and over-docketing.

Noting the plaintiffs' mixed success and last-minute changes to their case that prejudiced the defendants, the court reduced a reasonable starting point of $160,000 by half, awarding the plaintiffs $80,000 all-inclusive.

The plaintiffs brought a motion to certify a class action against Nissan following a data breach where an unknown employee accessed and stole the personal information of thousands of customers, demanding a ransom.

The court found that the plaintiffs satisfied the certification requirements under s. 5(1) of the Class Proceedings Act.

The court certified common issues relating to vicarious liability for the tort of intrusion upon seclusion, negligence, aggregate damages, and punitive damages, while narrowing the proposed class definition.

Two competing consortiums of class counsel brought a carriage motion to determine who would represent the proposed class in a national class action against Marriott regarding a massive data breach.

The court evaluated the standard carriage factors, finding most to be neutral.

The determinative factor was the interrelationship of class actions in multiple jurisdictions.

The court favoured the Winder Action because its counsel did not concede the necessity of overlapping regional class actions and was prepared to use multi-jurisdictional protocols to resolve the overlapping claims, whereas the Kogut Action consortium planned to run multiple overlapping actions across Canada.

Carriage was granted to the Winder Action and the competing actions were stayed.

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 plaintiff in a motor vehicle action sought an order that the insurer pay the full costs of a mediation, arguing that section 258.6(1) of the Insurance Act, which mandates the insurer to pay full costs when the plaintiff requests mediation, prevails over Rule 24.1 of the Rules of Civil Procedure, which requires equal sharing of mediator costs for mandatory mediations in Toronto actions.

The court found a conflict between the two statutory provisions and held that the Insurance Act prevails by virtue of Rule 1.02, which states that the Rules do not apply if a statute provides for a different procedure.

The motion was granted, and the plaintiff's costs for the motion were fixed.

The landlord appealed a Landlord and Tenant Board order requiring it to pay a rent differential to a former tenant who vacated due to a bedbug infestation.

The Board found that the landlord's failure to address the infestation in the common hallway substantially interfered with the tenant's reasonable enjoyment and induced him to move out.

The Divisional Court dismissed the appeal, holding that the Board's interpretation of 'induced' to include a failure to act was reasonable and consistent with the tenant protection objectives of the Residential Tenancies Act.

A costs endorsement following an appeal in which the respondents were successful.

The successful parties sought costs on a substantial indemnity scale, while the appellant argued that a lower all-inclusive amount was appropriate.

After reviewing the written submissions of both parties, the court declined to award substantial indemnity costs.

Costs were instead fixed on a partial indemnity scale in the amount of $10,301.71, payable within 30 days.