Won-Jin Kim

This is a costs endorsement addressing the allocation of costs for certification and summary judgment motions in the Superior Court and the costs of the appeal to the Court of Appeal for Ontario.

The plaintiffs appealed from orders of Justice Paul M. Perell denying certification and granting summary judgment.

On appeal, the plaintiffs achieved partial success: they obtained certification on some common issues but not on their negligent misrepresentation claim, and they reversed summary judgment on some claims while others remained time-barred.

The Court of Appeal awarded costs to the plaintiffs reflecting their overall success.

The plaintiffs moved to enforce an alleged settlement agreement with the defendant Seven Hills Group LLC, while Seven Hills brought a cross-motion for summary judgment to dismiss the negligence claim against it.

The court found no binding settlement agreement existed, as the parties had not agreed on essential terms regarding the scope and indemnity provisions of the release.

The court granted Seven Hills' motion for summary judgment, concluding that Seven Hills owed no duty of care to the plaintiffs, as its engagement letter with Xtreme Labs expressly limited its duties and prohibited reliance by third parties like the plaintiffs for the purpose of a management buyout.

The action against Seven Hills was dismissed, and costs were awarded to Seven Hills.

This appeal concerns a proposed $2.5 billion class action involving more than 230,000 universal life insurance policies sold by Metropolitan Life Insurance Company between 1985 and 1998.

The plaintiffs alleged misrepresentation in the sale of policies and breach of contractual duties relating to premiums and fees.

The motions judge dismissed the certification motion for misrepresentation claims and initially declined to certify breach of contract claims.

The Court of Appeal allowed the appeal in part, certifying the breach of contract common issues and allowing the plaintiffs to pursue individual misrepresentation claims.

The court found the motions judge erred in principle by failing to conduct individualized and contextual analyses of the limitation period defences and by improperly deciding the merits of the breach of contract claims at the certification stage.

The defendants Chamath Palihapitiya and El Investco 1 Inc. brought a motion for summary judgment, arguing the plaintiffs lacked evidence for their claims, particularly conspiracy.

The plaintiffs opposed, asserting that the conspiracy claims against the moving parties could not be severed from claims against other defendants not party to the motion.

The court dismissed the motion, finding that granting summary judgment for a subset of defendants risked inefficiencies, conflicting findings, and multiple appeals, especially given the proximity of the trial and the intertwined factual matrix.

This appeal concerns whether a proposed securities class action asserting a statutory cause of action for misrepresentation under Part XXIII.1 of the Ontario Securities Act was time-barred by the three-year limitation period in section 138.14.

The appellant commenced a class action in May 2009 but did not bring a motion for leave to proceed with the statutory claim within the limitation period.

The motion judge refused to grant leave nunc pro tunc (retroactively), finding that the appellant failed to meet the test established by the Supreme Court of Canada in Canadian Imperial Bank of Commerce v. Green.

The Court of Appeal upheld the motion judge's decision, finding no error in principle in the exercise of discretion to deny nunc pro tunc relief.

Following the dismissal of the plaintiffs' motion for class certification and the defendant's mixed success on a summary judgment motion, the defendant sought costs of $3.6 million on a substantial indemnity basis.

The plaintiffs argued the award should not exceed $775,000.

The court declined to award substantial indemnity costs, finding no reprehensible conduct by the plaintiffs in pleading misrepresentation.

Considering the defendant's technical loss on the summary judgment motion, which nonetheless provided a strategic victory in defeating certification, the court fixed costs at $1.0 million on a partial indemnity basis as a fair and reasonable amount.

The plaintiffs brought a motion to certify a class action against a life insurance company, alleging breach of contract regarding increases to the cost of insurance and administrative fees for universal life insurance policies.

The court had previously adjourned the motion to allow for further evidence on how the fees were calculated.

After reviewing actuarial evidence, the court found that the insurer had set and adjusted the fees in accordance with the policy terms and industry practice.

Concluding there was no basis in fact for the breach of contract claims, the court dismissed the certification motion in its entirety.

The plaintiffs, Wendell and Linda Allen, brought a motion for court approval of a settlement in a certified class action against The Manufacturers Life Insurance Company ("Manulife").

The class action alleged Manulife failed to provide proper adjustment notices for TermPlus life insurance policies, leading to insufficient premiums and negative accumulation amounts for policyholders.

Manulife investigated, acknowledged errors, and sought to resolve the issue.

The proposed settlement, valued between $1.59 million and $2.03 million, aimed to restore approximately 170 class members to the position they would have been in had proper notices been received, often providing 100% recovery without deductions for fees.

The court found the settlement fair, reasonable, and in the best interests of the class, granting the motion for approval.

This decision addresses costs following the dismissal of the plaintiff's cross-motion and the granting of the defendants' motions in a proposed securities misrepresentation class action.

The plaintiff, St. Clair Pennyfeather, had sought a *nunc pro tunc* order to save his statutory misrepresentation claim, which was ultimately deemed statute-barred.

The Timminco Defendants sought $124,028.81 in costs, and the Photon Defendants sought $25,330.07, both on a partial indemnity basis.

The court rejected the plaintiff's arguments of divided success and public interest litigation, finding that the defendants were entirely successful.

Applying Rule 57.01(1) factors, the court found the defendants' requested costs reasonable, noting the complexity and high stakes of the litigation, and awarded costs as requested.

The Ontario Superior Court of Justice approved a class action settlement, honoraria for representative plaintiffs, and class counsel's legal fees after eight years of litigation, including trials and appeals.

The class action arose from misrepresentations by George Brown College regarding industry designations for its International Business Management Program.

The settlement provides $2.725 million to 108 class members, covering direct costs and a portion of foregone income, and was deemed fair, reasonable, and in the best interests of the class.

The defendants brought a motion for a declaration that the plaintiff's statutory secondary market misrepresentation claim under Part XXIII.1 of the Securities Act was statute-barred.

The plaintiff brought a cross-motion seeking an order granting leave nunc pro tunc to save the claim.

The court found that while the plaintiff was not barred by issue estoppel or abuse of process from arguing for a nunc pro tunc order, the request failed on its merits.

Applying the Supreme Court's decision in CIBC v. Green, the court held that a nunc pro tunc order was not available because the plaintiff had not filed a motion for leave before the expiry of the limitation period, and the equitable factors did not favour granting the order.

The defendants' motion was granted and the plaintiff's cross-motion was dismissed.

The plaintiffs, who had opted out of a rival Alberta class action to pursue an Ontario action, brought a motion to restrain the Merchant Law Group from contacting them.

A junior associate at the Merchant Law Group had sent a letter to one of the plaintiffs, who was already represented by Kim Orr Barristers.

The court found the communication inappropriate and a breach of duties owed to the court.

Although the court declined to issue a formal injunction because no actual harm occurred, it issued a declaration and awarded $15,000 in costs against the Merchant Law Group.

The plaintiff brought a certification motion for a class action regarding systemic negligence.

During the hearing, the judge noted a statement in the plaintiff's factum suggesting the judge had previously stated the case was ideally suited for a class action.

Concerned about a reasonable apprehension of bias, the judge inquired about the comment.

After clarification that the comment was misreported and actually related to US class action regimes, the judge adjourned the first day to allow parties to consider a recusal motion.

Neither party wished to bring a recusal motion.

The plaintiff requested an adjournment due to lost hearing time, which the Crown did not oppose.

The hearing was adjourned.

The plaintiffs sought costs of $20,000 after successfully resisting the defendant's motion to amend the reasons for decision in a certification and summary judgment motion.

The defendant argued costs should be reserved or refused as no Bill of Costs was submitted.

The court found the plaintiffs were entitled to reasonable costs for an important motion, fixing the amount at $7,500 all inclusive, payable in any event of the cause.

The moving party defendant sought leave to appeal an order granting the plaintiffs leave to serve a Second Fresh as Amended Statement of Claim against foreign defendants in a proposed class proceeding.

The court dismissed the motion, finding no good reason to doubt the correctness of the order, as the motions judge was in the best position to interpret his own prior order regarding amendments for the purpose of certification.

Furthermore, the proposed appeal did not raise issues of general importance warranting appellate consideration.

The appellants, students in a post-graduate program, brought a class action against the respondent college for a misleading statement in its course calendar regarding the opportunity to complete industry designations.

At the damages trial, the judge awarded aggregate damages under the Consumer Protection Act but excluded the third cohort of students from the class.

The Court of Appeal allowed the appeal, reinstating the third cohort into the class, finding that reliance is not required for a Consumer Protection Act claim.

The Court dismissed the respondent's cross-appeal, upholding the trial judge's award of aggregate damages.

In a proposed class action brought by a former RCMP officer alleging systemic sexual harassment and discrimination against female RCMP members, the defendant Crown moved under Rule 21 to strike the statement of claim for disclosing no reasonable cause of action.

The Crown argued that systemic negligence claims against the RCMP amounted to impermissible direct liability contrary to the Crown Liability and Proceedings Act, that no contractual employment relationship existed, and that the claim was statute‑barred.

The court held that the breach of contract claim was untenable because the employment relationship of RCMP members is statutory rather than contractual and struck that portion of the claim.

However, the court found it was not plain and obvious that the systemic negligence claim failed, holding that the pleadings could support vicarious liability of the Crown for collective misconduct of Crown servants.

The limitation issue could not be resolved on a pleadings motion.

The plaintiffs in a proposed Ontario class action brought a motion seeking mandatory and restrictive injunctions against a class action administrator, class counsel in a certified Alberta class proceeding, and a defendant manufacturer.

The motion arose after an Alberta class action concerning allegedly defective oral contraceptives proceeded to certification and settlement discussions, while the Ontario action had been discontinued as a class proceeding and converted into a joinder action for claimants opting out of the Alberta case.

The plaintiffs objected to a letter sent by the Alberta action administrator suggesting that opt-out forms might have been submitted without the recipients’ knowledge.

The court criticized the language of the letter and the involvement of opposing counsel in its drafting but held that no actual harm had occurred and that the Ontario court lacked jurisdiction over several of the actors.

The motion for injunctive relief was dismissed.

The plaintiffs sought certification of a proposed $2.5 billion class proceeding against an insurer arising from alleged misrepresentations in the sale and administration of universal life insurance policies originally issued by another insurer.

The defendant opposed certification and brought a cross‑motion for summary judgment arguing the representative plaintiffs’ claims were statute‑barred.

The court held that the alleged misrepresentation, deceit, good faith, and rescission claims lacked commonality and largely mirrored deficiencies identified in prior appellate authority concerning insurance misrepresentation class actions.

The court further found most negligent misrepresentation claims were statute‑barred under applicable provincial limitation statutes, while certain breach of contract claims relating to cost‑of‑insurance and administrative fee adjustments were not clearly time‑barred but required further evidentiary development.

Certification was dismissed except that the motion was adjourned to permit further evidence regarding potential breach of contract claims concerning cost‑of‑insurance and administrative fee calculations.

The plaintiff expert witness sued the defendant law firm for unpaid fees and subsequently served a Rule 49 offer to settle for $50,000 plus HST 'in full and complete satisfaction of the plaintiff's claim'.

The defendant accepted the offer days before trial and argued the settlement amount was inclusive of costs.

The motion judge agreed, finding the offer unambiguous.

On appeal, the Court of Appeal reversed, holding that the motion judge erred by adopting a literal interpretation and failing to consider the factual matrix, including the Rule 49 context and the timing of the offer.

The Court concluded the offer did not dispose of costs, entitling the plaintiff to costs under Rule 49.07(5)(b).