Won-Jin Kim

The plaintiffs sought leave under s. 17(2) of the Crown Liability and Proceedings Act, 2019 to bring a claim against the Ontario Ministry of Energy for misfeasance in public office, inducing breach of contract, and conspiracy.

The claims arose from the cancellation of the Feed-in-Tariff (FIT) renewable energy program following the 2018 provincial election.

The plaintiffs alleged the Ministry unlawfully took instructions from the incoming government's transition team during the caretaker period to defer Notice to Proceed requests, thereby avoiding increased compensation payouts upon the program's eventual cancellation.

The Superior Court of Justice dismissed the motion, finding no reasonable possibility that the claims would succeed, as the Ministry's actions in maintaining the status quo during the transition period were neither unlawful nor in bad faith.

The moving parties brought a motion for leave to appeal the decision of the lower court judge dated November 15, 2024.

The Divisional Court reviewed the written materials submitted by the parties.

The motion for leave to appeal was dismissed, and costs were fixed at $5,000 payable to the responding parties.

This is a motion to discontinue a proposed class action concerning automobile airbags that had been recalled.

The action, which had not been certified, sought compensation for pure economic loss.

Due to developments in case law, particularly the Supreme Court of Canada's clarification on pure economic loss for defective products, the litigation risk increased, and the prospects for certification and substantial economic recovery diminished.

Class Counsel sought leave to discontinue the action with prejudice and without costs.

The court granted the motion, finding that the action was commenced for a proper purpose, the test for discontinuance was satisfied, and putative class members were not prejudiced, as limitation periods remained suspended.

The plaintiffs brought a motion for leave to appeal the order of Akbarali J. dated April 27, 2023.

The Divisional Court dismissed the motion for leave to appeal with no order as to costs.

The Ontario Superior Court of Justice, Commercial List, addressed two issues in a case conference: a proposed motion by the defendants to amend their Amended Statement of Defence and Counterclaim, and a proposed anti-SLAPP motion.

The court granted leave to amend the pleading by consent.

However, the court declined to schedule the anti-SLAPP motion, finding it untimely given the action was nearly three years old and significant litigation steps had already occurred.

The court emphasized that anti-SLAPP motions are screening devices meant for early stages, not surrogates for summary judgment or trial, and that the evidence relied upon for timeliness was available much earlier.

The parties were directed to agree on a case management timetable to prepare for trial.

The Court of Appeal for Ontario issued an endorsement regarding a request to vary a trial costs award.

Following a successful appeal and cross-appeal by the Respondents (plaintiffs/defendants by counterclaim), they sought to vary the trial costs award, arguing entitlement to a higher scale due to beating a Rule 49 settlement offer.

The Appellants (defendants/plaintiffs by counterclaim) opposed this request.

The Court declined to vary its decision, noting that the Respondents had not appealed or sought leave to appeal the trial costs, nor had they raised the issue in their notices of cross-appeal or in their submissions on costs.

The respondents were successful in resisting appeals by the Varma/Madra Appellants and the Palihapitiya Appellants, and succeeded on their cross-appeal.

They sought costs on a substantial indemnity basis.

The Court of Appeal found no justification for a higher scale and awarded partial indemnity costs fixed at $300,000, payable equally by the two groups of appellants.

The Court of Appeal dismissed appeals by two groups of appellants (Varma/Madra and Palihapitiya) and allowed a cross-appeal by the respondents.

The case involved corporate malfeasance, breach of fiduciary duty, breach of contract, knowing assistance, and conspiracy related to the establishment of a competing fund (Annex Fund) and the undervalued sale of a technology company (Xtreme Labs), including the concealment of an equity interest in Hatch Labs (Tinder).

The trial judge's findings of liability for damages and disgorgement were largely upheld, and the disgorgement amount was increased on cross-appeal to serve a stronger deterrent purpose.

The court affirmed that directors of a corporate general partner can owe fiduciary duties directly to a limited partnership.

The plaintiffs sought judicial approval of a $25 million settlement in two pharmaceutical class actions alleging that the diabetes drug PIO caused bladder cancer and that the defendants failed to warn of this risk.

The court initially raised concerns about the settlement amount compared to a $2.4 billion U.S. settlement, but approved it after class counsel provided evidence of recent scientific studies undermining causation and differences in market size and litigation risk.

The court also approved class counsel's 30% contingency fee and awarded a reduced honorarium of $1,500 to each representative plaintiff.

The plaintiff brought a motion on consent to certify a class proceeding against the RCMP for the alleged inappropriate and sexualized conduct of Designated Physicians during mandatory medical examinations of applicants.

The Court found that the pleadings disclosed a reasonable cause of action, there was an identifiable class, the claims raised common questions, a class proceeding was the preferable procedure, and the representative plaintiff was suitable.

The motion for certification was granted.

The putative class counsel sought court approval to dismiss the proposed class action against the manufacturers of Accutane.

The representative plaintiff had previously withdrawn, and scientific consensus emerged that there was no causal link between Accutane and Inflammatory Bowel Disease.

The court approved the dismissal without costs, noting the lack of a representative plaintiff and negligible chances of success.

The plaintiffs brought a motion to settle the Notices of Certification and the Litigation Plan in a class action concerning universal life insurance policies.

The court excluded certain sentences from the Notices of Certification, finding them unnecessary and potentially confusing for class members deciding whether to opt out.

The court also heavily edited the plaintiffs' proposed Litigation Plan, removing extraneous, premature, and confrontational information, noting that a post-certification litigation plan should focus on implementation rather than litigation strategy.

The moving parties brought a motion for leave to appeal.

The Divisional Court dismissed the motion and ordered the moving parties to pay costs fixed at $20,000 to the responding party.

The plaintiffs sought court approval of a class action settlement agreement concerning allegedly defective Medtronic defibrillators, approval of class counsel fees and disbursements, and honoraria for representative plaintiffs.

The court approved the settlement and class counsel fees, finding the settlement fair and reasonable given the litigation risks and lack of reported injuries.

However, the request for honoraria for representative plaintiffs was dismissed due to insufficient evidence of exceptional contributions beyond typical representative plaintiff duties.

This class action concerned defective Medtronic Sprint Fidelis leads for implantable cardioverter defibrillators.

The plaintiffs moved for approval of a $26 million settlement, class counsel fees, and honoraria for representative plaintiffs.

The court approved the settlement as fair, reasonable, and in the best interests of the class, noting arm's-length bargaining and comprehensive investigation.

Class counsel's request for 30% contingency fees and disbursements was approved, upholding the strong presumption of validity for such agreements given the litigation's complexity and risks.

However, the request for honoraria for the representative plaintiffs was dismissed, as no exceptional circumstances or contributions beyond expected involvement were demonstrated.

Following a five-week trial where the plaintiffs succeeded in claims for breach of fiduciary duty and conspiracy, the court determined the appropriate scale and quantum of costs.

The plaintiffs sought over $6.2 million on a substantial indemnity basis.

The court rejected substantial indemnity costs, finding the defendants' litigation conduct did not warrant such a sanction and the pre-litigation conduct was already addressed through punitive damages and disgorgement.

The court awarded partial indemnity costs of $2,200,000 for the action and $20,000 for the counterclaim, apportioning liability among the defendants based on the claims.

The plaintiffs brought a motion to certify a class proceeding against the RCMP for systemic negligence regarding bullying, intimidation, and harassment.

The Crown argued the court should decline jurisdiction due to available internal and legislative remedies.

The court found those alternatives inadequate given the systemic nature of the claims.

Concluding that the pleadings disclosed a reasonable cause of action, an identifiable class existed, common issues predominated, a class proceeding was the preferable procedure, and the representative plaintiffs were appropriate, the court granted the certification motion.

The Ontario Superior Court of Justice ruled on the applicable exchange rate and prejudgment interest following a judgment where defendants were found to have breached fiduciary duties and conspired to conceal assets.

The court applied the default exchange rate under s. 121(1) of the Courts of Justice Act, which mandates conversion at the date of payment, rejecting the defendants' argument for an earlier transaction date.

The court found that a change in exchange rate alone does not constitute inequity to depart from the default rule.

Prejudgment interest was awarded on the damages and disgorgement amounts from the date the cause of action arose (August 15, 2012), at a rate of 1.3%, in accordance with s. 128(1) of the CJA, excluding punitive damages.

The appellants appealed the dismissal of their claim against the respondent by way of summary judgment.

The claim arose from a management buyout of Xtreme Labs, where the appellants were directors and shareholders.

The respondent had been engaged to provide a valuation of the company, which the appellants alleged significantly undervalued the business, causing them loss.

The motion judge dismissed the claim on the basis that the engagement letter excluded any duty of care owed to the appellants in their capacity as shareholders.

The Court of Appeal upheld the dismissal, finding no error in the motion judge's analysis of the engagement letter, the evidentiary burden, or the appropriateness of summary judgment.

The plaintiffs, founders of a venture capital fund, brought an action against their co-founders and a third-party purchaser for breach of fiduciary duty, breach of contract, and conspiracy.

The court found that the co-founders secretly established a competing fund and conspired with the purchaser to acquire a portfolio company at a discounted price while concealing a valuable asset (the Tinder app).

The court awarded compensatory damages, disgorgement of profits, and punitive damages against the defendants.