William McNamara

The appellant reinsurer appealed a trial judgment ordering it to indemnify the respondent retrocedant for its share of a $140 million settlement reached by the lead insurer regarding a business interruption claim.

The appellant argued it was not bound by the 'follow settlements' clause in the retrocession agreement because it had not agreed to the settlement.

The Court of Appeal dismissed the appeal, upholding the trial judge's findings that the appellant was bound by the single proviso follow settlements clause, that the settlement arguably fell within coverage as a matter of law, and that the lead insurer took proper and businesslike steps in reaching the settlement.

The Bayer and Johnson & Johnson Defendants brought motions under Rule 59.06 of the Ontario Rules of Civil Procedure to amend or vary a previous order dated October 4, 2023, which had declined to dismiss the plaintiff's extensive claims under Rule 2.1.

The defendants argued that the prior decision contained errors or oversights, specifically regarding the omission of a Federal Court Statement of Claim and the court's comments on limitation periods.

The court dismissed both motions, reiterating that Rule 59.06 is intended for clerical or accidental errors in memorializing a decision, not for re-evaluating the reasoning itself.

The court clarified that its previous comments on limitation periods were not a final determination and did not preclude the defendants from raising such a defence at a later stage.

The plaintiff brought a motion to certify a class action against the defendants, alleging that their glyphosate-based herbicide, Roundup, causes non-Hodgkin's lymphoma.

The court analyzed the five certification criteria under the Class Proceedings Act, 1992.

While the court struck the proposed causes of action for battery and unjust enrichment, it found that the pleadings disclosed a valid cause of action in negligence and failure to warn.

The court approved the proposed class definition, certified several common issues including general causation and punitive damages, and concluded that a class proceeding was the preferable procedure.

The action was certified as a class proceeding.

Following a successful trial where the plaintiff was awarded approximately $8.9 million, the plaintiff sought costs of $3.49 million based on a Rule 49.10 offer.

The defendant argued the offer was not a true compromise and challenged the proportionality of costs and specific disbursements.

The court found the Rule 49.10 offer was a genuine compromise, entitling the plaintiff to partial indemnity costs to the offer date and substantial indemnity costs thereafter.

The court allowed disbursements for fact witness preparation and e-discovery, but disallowed fees for an expert who did not testify.

Costs were fixed at $2.8 million.

The plaintiff, Wiener Städtische Versicherung AG (VIG), a reinsurer, sought to recover funds from the defendant, Infrassure Ltd., a retrocessionaire, under a retrocession agreement.

VIG had paid its portion of a $140 million settlement to Zurich Insurance Company Ltd. (Zurich) for a business interruption claim by Vale (Canada) Limited.

Infrassure denied liability, arguing it was not contractually bound to follow the settlement and that Zurich failed to take proper and businesslike steps.

The court found that Infrassure was contractually bound by the "follow the settlements" clause and that Zurich had taken proper and businesslike steps in reaching the settlement.

Judgment was granted in favour of VIG for the settlement amount and loss adjustment costs, with the court denying VIG's claim for punitive damages.

The defendants brought a motion on consent to dismiss the putative class action for delay under s. 29.1 of the Class Proceedings Act, 1992.

The action was commenced in 2011 and had been dormant since 2012, with no certification motion record filed or timetable established.

The court found that the mandatory requirements for dismissal under s. 29.1 were met, as the statutory deadline of October 1, 2021, had passed without any required steps being taken.

The action was dismissed, and plaintiffs' counsel was ordered to bear the costs of providing notice of the dismissal.

The defendant in a reinsurance dispute brought a motion to amend its Statement of Defence to particularize policy exclusions it relied upon to dispute the quantum of a business interruption claim.

The plaintiff opposed, arguing the amendments amounted to the withdrawal of an admission under Rule 51.05 of the Rules of Civil Procedure and would cause prejudice.

The court granted the motion, finding that the defendant had always disputed quantum, the amendments merely clarified how quantum should be calculated, and no deliberate concession had been made that would trigger Rule 51.05.

The defendants, Bayer Inc., Bayer Pharma AG, and Bayer OY, brought a motion to formally stay a proposed national class action in Ontario, initiated by Kimberley Babin, in favour of ongoing national class actions in Alberta.

The plaintiff opposed the stay, seeking to revive the Ontario action after an informal stay.

The court granted the defendants' motion, finding that the plaintiff's consortium had chosen Alberta as the primary forum and should pursue the action there.

The court rejected the plaintiff's reasons for returning to Ontario, which included concerns about the pace of the Alberta action and the failure to serve foreign defendants in Alberta, characterizing such actions as forum shopping and an attempt to hedge procedural choices.

The court emphasized the importance of avoiding multiplicity of proceedings and judicial comity.

The defendants brought a refusals motion to compel the plaintiff's counsel, Mr. Tuovi, to answer questions during cross-examination on his affidavit.

The questions related to the internal workings, formation, and strategic decisions of a consortium of class counsel prosecuting multi-jurisdictional class actions against the defendants.

The court dismissed the motion, finding that the questions were irrelevant to the underlying motion to stay the Ontario action and that, even if raised in the affidavit, the court had discretion not to compel answers to irrelevant questions, particularly those delving into privileged internal communications of the consortium.

Following a prior decision approving class counsel fees in a class proceeding settlement, class counsel sought clarification regarding the calculation of the fee award, treatment of consulting law firm fees, application of taxes, and comments regarding disclosure of a fee sharing agreement.

The court acknowledged that an arithmetic error had occurred in the original calculation and corrected the award by applying a 10% reduction to the claimed counsel fee before adding disbursements.

The court clarified that consulting law firms were to be paid from the approved counsel fee rather than treated as additional disbursements and confirmed that applicable taxes were payable in addition to the approved amount.

The court also addressed concerns about disclosure of the fee sharing agreement, reiterating that failure to fully disclose the agreement’s substance was a mistake despite counsel’s intentions.

Representative plaintiffs in a proposed national competition law class action sought court approval of partial settlement agreements with three defendants, approval of contingency fee agreements with class counsel, and approval of counsel fees and disbursements.

The court approved settlements totaling $13.63 million with Bank of America, Capital One, and Citigroup and found the agreements fair, reasonable, and in the best interests of the class under the Class Proceedings Act, 1992.

The court also approved the contingency fee agreements but scrutinized a separate fee‑sharing agreement between class counsel and a rival law firm that had commenced competing class actions.

The judge held that the fee‑sharing agreement required court approval, was not fair or reasonable to class members, and may constitute champerty or maintenance.

Class counsel’s requested fee was reduced by 10%, and the court ordered that no payment be made to the rival firm under the unauthorized agreement.

Following a certification motion in a proposed class proceeding concerning pharmaceutical product liability, the plaintiff sought partial indemnity costs after obtaining certification against one defendant but not the other.

The court considered Rule 57.01 of the Rules of Civil Procedure and the discretionary principles governing costs in class proceedings.

While the defendants argued the plaintiff’s claim should be substantially reduced due to partial success and limited certification of common issues, the court rejected most of these arguments.

However, because certification was not granted against one defendant, the court reduced the plaintiff’s claimed costs by approximately 20 percent.

Costs of $300,000 all-inclusive were awarded payable forthwith.

The plaintiff sought certification of a proposed national class action alleging that a prescription smoking‑cessation drug caused neuropsychiatric adverse events and that the manufacturer breached its duty to warn consumers and physicians.

The court considered the certification criteria under the Class Proceedings Act, 1992, including whether there was some basis in fact for the proposed common issues and whether a class proceeding was the preferable procedure.

The court held that there was some basis in fact for a duty to warn claim against the Canadian manufacturer based on expert and anecdotal evidence of adverse psychiatric events.

The proposed class definition and common issues were amended to focus on specific neuropsychiatric symptoms and the adequacy of product monograph warnings between 2007 and 2010.

The proceeding was certified against the Canadian manufacturer but not against the U.S. parent company, whose involvement lacked a factual basis.