ment as it dealt with counsel fees, the
judge was therefore entitled to determine
counsel’s fees himself. He was not bound
by any fee/multiplier analysis. He did not
err in finding the settlement was worth
nothing like the $120,000,000 proposed
by class counsel. There was no basis for
interfering with the judge’s finding that
$14,500,000 was a fair and reasonable fee
for class counsel. He did not err in treating
the fees charged by non-lawyer experts
retained by counsel as disbursements
rather than increasing them as contingency fees. Other lawyers retained by class
counsel to perform discrete tasks were not
entitled to a premium either, because neither the representative plaintiff nor the
court had approved them as counsel. The
judge erred in ordering that compensation
for the representative plaintiff be paid
from class counsel fees.
Smith Estate v. National Money Mart
Co., [2011] O.J. No. 1321, Ont. C.A., per
Juriansz J. A. (Moldaver and Armstrong
JJ.A. concurring), Mar. 28/11. Digest
No. 3048-006 (Approx. 25 pp.)
CROWN
PROCEEDINGS AGAINST THE
CROWN – Court summarily dismissed
plaintiff’s action against Crown because
there was no genuine issue for trial.
Motion by the attorney general for
summary judgment dismissing plaintiff’s
action. Plaintiff claimed damages against
Her Majesty the Queen on the basis of
negligence, misfeasance in public office
and breach of statute. The action was
based on the allegation that, during a
motion to dismiss plaintiff’s Federal Court
action, the federal lawyer stated in open
court that plaintiff had a personal bankruptcy and the statement was replicated in
the judge’s decision. The action against the
judge had already been struck. Plaintiff
argued that she chose to name Her Majesty
the Queen as a defendant and not the
attorney general, so the attorney general
had no standing to bring the motion.
HELD: Motion allowed. Plaintiff
improperly titled the proceedings against
Her Majesty the Queen rather than the
attorney general. However, that was a
technical point that was resolved without
prejudice. The attorney general filed a
transcript of the Federal Court proceedings, which established the federal lawyer
did not make any statement about plaintiff’s personal bankruptcy. Plaintiff’s
claims that the transcripts were inadmissible and inaccurate were entirely without
basis. The fact that the judge noted the
personal bankruptcy in his decision did
not mean he obtained the information
from the federal lawyer. Furthermore,
bankruptcy particulars were part of the
public record. Even if the lawyer had made
the statement, it would not have violated
the Income Tax Act or Privacy Act as
claimed by plaintiff. There was no genuine
issue for trial.
R. v. Collins, [2011] O.J. No. 1411,
Ont. S.C.J., Mossip J., Mar. 25/11. Digest
No. 3048-007 (Approx. 7 pp.)
DAMAGES
(PERSONAL INJURY)
APPEAL OF AWARD – Appellate
court maintained award of damages for
future income loss, increased award for
future care costs and eliminated a 10 per
cent reduction for failure to mitigate.
ESTATES
ESTATE ADMINISTRATION –
Court rejected claim by three benefici-
aries for $210,000 that was allegedly
kept in shoe box by deceased.
Application to determine the entitle-
ment of certain beneficiaries and the
appointment of executors. AB died at 102
years of age leaving a will. He named his
son K and daughter L as executors. His
will left farm property and his guns to K
and the contents of his home and the resi-
due of his estate to his four surviving chil-
dren, K and his three sisters. K had lived
on the farm until his marriage in 1959 and
had helped his father on the property for
the last 25 years. The solicitor who pre-
pared the will confirmed that AB recog-
nized that K was to receive the bulk of his
estate. He thought the farm was worth
$500,000. His only income had been from
the Old Age Security and a supplement.
AB had given $80,000 in cash to his four
children during his lifetime. In 1995 he
withdrew $86,956 from the bank. $82,000
was found in a sock after his death. L
alleged that AB had a box with envelopes
containing $210,000, which should have
been paid to the three sisters.
FAMILY LAW
SPOUSAL SUPPORT – Court ordered
reduction in spousal support beginning
in August 2011 and imputed income to
wife for purposes of child support.
Application by the husband for an order
imputing income to the wife and varying
access. The parties were married in 1992
and separated in 2006. The husband was
39 years old and the wife 47 years old.
They had three children. The wife worked
full time as an English instructor from
1995 to 1999 and reduced hours between
1999 and 2000. Since then she had been a
stay-at-home mother. The husband earned
about $90,000 per year. The parties
entered into minutes of settlement
reflected in a consent order in 2007, which
provided for spousal support of $1,318 per
month and child support.
HELD: Application allowed in part.
The settlement agreement did not address
the question of the wife’s obligation to
contribute to her own support and that of
her children over the long term. She had
significant education and training. Since
separation, she had not advanced her
employment or employment prospects in
any material way. She decided that she did
not have an obligation to re-enter the
workforce and contribute to her own support and that of her children. Her obligation to do so was clearly provided in the
Divorce Act. Given the length of the marriage and the ages of the parties at separation, the wife was not entitled to spousal
support for life. Spousal support was to
remain the same until August 2011. It
would then be reduced to $350 per month.
Spousal support would terminate in September 2016. Child support was to be paid
in accordance with the Guidelines based
on the husband’s annual income of
$90,000 and an imputed annual income
for the wife of $25,000.
Moon v. Moon, [2011] O.J. No. 1315,
Ont. S.C.J., Corbett J., Mar. 22/11.
Digest No. 3048-010 (Approx. 13 pp.)
FREEDOM OF
INFORMATION
PROTECTION OF PRIVACY –
Adjudicator’s decision that appellant
retailer could not require customers to
produce driver’s licences and licence
plate numbers before taking possession
of furniture was unreasonable.
INSURANCE
SUBROGATION – Subrogation
clause in insurance policy did not oper-
ate so as to give insurers control of liti-
gation brought by insured.
Motion for an order that insurers were
entitled to have carriage and control of an
action or full and meaningful participation
in the conduct of the action and full control of the subrogated claim advanced. In
2008 an explosion and fire occurred at an
apartment building. The insured, an automobile dealer, was storing 71 new cars in
the underground parking lot of the building. Many cars were damaged and could
