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Belle River et. al. v. Town of Tecumseh
Acting Lawyer

In this class action, the plaintiffs, Belle River District Minor Hockey Association Inc. (“Belle River”), and Essex County Dancers Incorporated allege that the Corporation of the Town of Tecumseh (“Town of Tecumseh”) has been charging excessive lottery licensing and lottery administration fees (“lottery fees”) to organizations who participate in fundraising through charity bingo and other charity lotteries. The plaintiffs allege that the lottery fees are so excessive that they have become a form of unconstitutional taxation. The action claims for an accounting and disgorgement (the return) of all lottery fees paid to the Town of Tecumseh on or after October 24, 1993 found to be levied without authority or ultra vires and, in the alternative restitution (a refund) of all lottery fees that have been received by the Town of Tecumseh since October 24, 1993.

ATTENTION CLASS MEMBERS

This action is certified. The opt-out period is now closed. If you did not opt-out before May 15, 2016 at 11:59 p.m. and fall within the class definition, you are a class member. If you are a class member, please ensure that we have your current contact information and that you keep our offices informed of any changes in your contact information.

On January 16, 2016, the City of Windsor and the Town of Tecumseh commenced an aggressive and extensive multi-media opt-out campaign intended to discourage potential claimants from pursuing their claims in this class action. The plaintiffs brought an emergency motion regarding the opt-out campaign. By reasons dated January 29, 2016, the Court found that the defendants’ opt-out campaign went over the line. The Court found that the opt-out campaign contained misinformation and that its effect created undue influence.  The Court made a number of orders including that there be no further information from the defendants concerning the opt-out campaign and that information and communications about the opt-out campaign that already exist may remain in place.

The Court also ordered that any potential claimants who opted out shall have an opportunity to reconsider their position at the end of the opt-out period. The exact mechanism for this reconsideration has not yet been determined.

The defendants attempted to appeal the January 29, 2016, decision to the Court of Appeal for Ontario. The representative plaintiffs brought a motion to quash the defendants’ appeals to the Court of Appeal on the basis that the appeals should have been brought to the Divisional Court. On February 25, 2016, the Court of Appeal agreed with the position of the representative plaintiffs. The Court of Appeal quashed the defendants’ appeals and ordered costs in the amount of $5,000. The representative plaintiffs started a cross-appeal in the Divisional Court requesting that the Court grant additional relief to address the defendants’ unlawful conduct. Both the defendants’ appeals and the representative plaintiffs’ cross-appeals proceeded in the Divisional Court on March 15, 2016.

By reasons dated March 24, 2016, the Divisional Court refused to grant leave to appeal to both the defendants and the representative plaintiffs. In so doing the Divisional Court found that the Court’s finding of “undue influence” with respect to the defendants’ Opt-Out Campaign was correct. In addition, the Divisional Court found that the discretionary remedy fashioned by the Court was appropriate and correct in the circumstances. No costs were awarded.

As a result of being advised of new information that was disseminated by the defendants in respect of the opt-out campaign after January 29, 2016, the representative plaintiffs’ brought a motion that the City of Windsor and Town of Tecumseh were in breach of the Order dated January 29, 2016 and therefore in contempt of court. The motion for contempt was based on the broadcasting of two radio advertisements which were aired for the first time after the Order dated January 29, 2016 and as a result of an interview given by the Mayor of the City of Windsor after January 29, 2016. This motion was heard on April 7, 2016. By reasons dated April 14, 2016, the Court dismissed the motion.

YOU MAY CONTACT CLASS COUNSEL AT:

tecumsehbingoclassaction@lerners.ca

Phone: 1.866.877.7887 extension 5924
Fax: 519.672.2044

Procedural History

This action has been proceeding with another smilar action against The Corporation of the City of Windsor.

These actions were certified as class actions in January 2011 but Justice Patterson limited the claims for restitution to lottery fees that had been paid after 2006. (January 20, 2011 Certification Reasons)

The plaintiffs successfully appealed that time restriction to the Divisional Court. (Reasons of the Divisional Court, April 25, 2012)  The Divisional Court remitted the motion back to Justice Patterson, and asked him to reconsider the certification motion in light of the Divisional Court’s legal finding that the plaintiffs were not barred, as a matter of law, from pursuing claims prior to 2006.

Following the plaintiffs successful appeal to the Divisional Court, the Divisional Court declined to award any costs to the plaintiffs for the appeal.  The plaintiffs appealed that decision to the Court of Appeal for Ontario, which ordered that the plaintiffs were entitled to costs. (Reasons of the Court of Appeal on Costs)  The defendants sought leave to appeal that decision to the Supreme Court of Canada.  The Supreme Court of Canada dismissed the defendants’ application for leave to appeal on October 3, 2013. (Judgment of the Supreme Court of Canada)

The rehearing of the certification motion was held in November, 2012 and Justice Patterson again certified the claims as class actions.  Justice Patterson agreed that the plaintiffs should be permitted to pursue claims for all lottery fees paid to the City of Windsor and the Town of Tecumseh since 1990. (December 31, 2012 Re-Hearing Certification Reasons)

The defendants sought leave to appeal that decision, again to the Divisional Court.  That hearing was heard in Windsor on July 15, 2013 before Justice M. Nolan.  On October 30, 2013 Justice Nolan released her decision in which she allowed the defendants’ motion and granted them leave to appeal to the Divisional Court (Reasons of Justice Nolan granting leave to appeal).

The Divisional Court heard the appeal on April 28, 2014.  The Court dismissed the appeal and upheld Justice Patterson’s decision, in which he held that the plaintiffs can pursue a class action seeking repayment of all lottery fees paid to the City of Windsor and the Town of Tecumseh since 1990.  (Reasons of the Divisional Court, May 1, 2014)

The defendants further appealed to the Court of Appeal for Ontario.  The Court of Appeal agreed that the plaintiffs should be able to pursue these claims as class actions, but slightly reduced the time period covered by the claims, holding that the plaintiffs are permitted to pursue claims for the 15 years prior to commencement of the action in October, 2008.  (Reasons of the Court of Appeal on Certification)

This website provides only general information about‎ this class action. While it is not always current, it is updated from time to time as information becomes available.

This website is not designed to and does not provide legal advice or answer legal questions about your individual situation or entitlement. Do not rely upon the information provided on this website as legal advice for your individual situation. This website does not replace independent legal advice.

Providing information through this website does not make you a client of Lerners LLP or our co-counsel, does not create a solicitor-client, fiduciary or other form of relationship, and does not make you a member of the class. Whether or not you are a class member is determined by court order. Any information you provide will not be privileged, confidential or private. The information you provide may assist in prosecuting this matter as a class action and assessing damages for the class overall.

Legal Team:

ALS Society of Essex County v. City of Windsor
Acting Lawyer

In this class action, the plaintiff, Amyotrophic Lateral Sclerosis Society of Essex County (“ALS Society of Essex County”), alleges that The Corporation of the City of Windsor (“City of Windsor”) has been charging excessive lottery licensing and lottery administration fees (“lottery fees”) to organizations who participate in fundraising through charity bingo and other charity lotteries. The plaintiff alleges that the lottery fees are so excessive that they have become a form of unconstitutional taxation. The action claims for an accounting and disgorgement (the return) of all lottery fees paid to the City of Windsor on or after October 24, 1993 found to be levied without authority or ultra vires and, in the alternative restitution (a refund) of all lottery fees that have been received by the City of Windsor since October 24, 1993.

ATTENTION CLASS MEMBERS

This action is certified.  The opt-out period is now closed. If you did not opt-out before May 15, 2016 at 11:59 p.m. and fall within the class definition, you are a class member. If you are a class member, please ensure that we have your current contact information and that you keep our offices informed of any changes in your contact information.

On January 16, 2016, the City of Windsor and the Town of Tecumseh commenced an aggressive and extensive multi-media opt-out campaign intended to discourage potential claimants from pursuing their claims in this class action. The plaintiffs brought an emergency motion regarding the opt-out campaign. By reasons dated January 29, 2016, the Court found that the defendants’ opt-out campaign went over the line. The Court found that the opt-out campaign contained misinformation and that its effect created undue influence.  The Court made a number of orders including that there be no further information from the defendants concerning the opt-out campaign and that information and communications about the opt-out campaign that already exist may remain in place.

The Court also ordered that any potential claimants who opted out shall have an opportunity to reconsider their position at the end of the opt-out period.  The exact mechanism for this reconsideration has not yet been determined.

The defendants attempted to appeal the January 29, 2016, decision to the Court of Appeal for Ontario. The representative plaintiffs brought a motion to quash the defendants’ appeals to the Court of Appeal on the basis that the appeals should have been brought to the Divisional Court. On February 25, 2016, the Court of Appeal agreed with the position of the representative plaintiffs. The Court of Appeal quashed the defendants’ appeals and ordered costs in the amount of $5,000. The representative plaintiffs started a cross-appeal in the Divisional Court requesting that the Court grant additional relief to address the defendants’ unlawful conduct. Both the defendants’ appeals and the representative plaintiffs’ cross-appeals proceeded in the Divisional Court on March 15, 2016.

By reasons dated March 24, 2016, the Divisional Court refused to grant leave to appeal to both the defendants and the representative plaintiffs.  In so doing the Divisional Court found that the Court’s finding of “undue influence” with respect to the defendants’ Opt-Out Campaign was correct.  In addition, the Divisional Court found that the discretionary remedy fashioned by the Court was appropriate and correct in the circumstances.  No costs were awarded.

As a result of being advised of new information that was disseminated by the defendants in respect of the opt-out campaign after January 29, 2016, the representative plaintiffs’ brought a motion that the City of Windsor and Town of Tecumseh were in breach of the Order dated January 29, 2016 and therefore in contempt of court. The motion for contempt was based on the broadcasting of two radio advertisements which were aired for the first time after the Order dated January 29, 2016 and as a result of an interview given by the Mayor of the City of Windsor after January 29, 2016. This motion was heard on April 7, 2016. By reasons dated April 14, 2016, the Court dismissed the motion.

YOU MAY CONTACT CLASS COUNSEL AT:

windsorbingoclassaction@lerners.ca

Phone: 1.866.877.7887 extension 5923
Fax: 519.672.2044

Procedural History

This action has been proceeding with another similar action against the Corporation of the Town of Tecumseh.

These actions were certified as class actions in January 2011 but Justice Patterson limited the claims for restitution to lottery fees that had been paid after 2006. (January 20, 2011 Certification Reasons)

The plaintiffs successfully appealed that time restriction to the Divisional Court. (Reasons of the Divisional Court, April 25, 2012)  The Divisional Court remitted the motion back to Justice Patterson, and asked him to reconsider the certification motion in light of the Divisional Court’s legal finding that the plaintiffs were not barred, as a matter of law, from pursuing claims prior to 2006.

Following the plaintiffs successful appeal to the Divisional Court, the Divisional Court declined to award any costs to the plaintiffs for the appeal.  The plaintiffs appealed that decision to the Court of Appeal for Ontario, which ordered that the plaintiffs were entitled to costs. (Reasons of the Court of Appeal on Costs)  The defendants sought leave to appeal that decision to the Supreme Court of Canada.  The Supreme Court of Canada dismissed the defendants’ application for leave to appeal on October 3, 2013. (Judgment of the Supreme Court of Canada)

The rehearing of the certification motion was held in November, 2012 and Justice Patterson again certified the claims as class actions.  Justice Patterson agreed that the plaintiffs should be permitted to pursue claims for all lottery fees paid to the City of Windsor and the Town of Tecumseh since 1990. (December 31, 2012 Re-Hearing Certification Reasons)

The defendants sought leave to appeal that decision, again to the Divisional Court.  That hearing was heard in Windsor on July 15, 2013 before Justice M. Nolan.  On October 30, 2013 Justice Nolan released her decision in which she allowed the defendants’ motion and granted them leave to appeal to the Divisional Court (Reasons of Justice Nolan granting leave to appeal).

The Divisional Court heard the appeal on April 28, 2014.  The Court dismissed the appeal and upheld Justice Patterson’s decision, in which he held that the plaintiffs can pursue a class action seeking repayment of all lottery fees paid to the City of Windsor and the Town of Tecumseh since 1990.  (Reasons of the Divisional Court, May 1, 2014)

The defendants further appealed to the Court of Appeal for Ontario.  The Court of Appeal agreed that the plaintiffs should be able to pursue these claims as class actions, but slightly reduced the time period covered by the claims, holding that the plaintiffs are permitted to pursue claims for the 15 years prior to commencement of the action in October, 2008.  (Reasons of the Court of Appeal on Certification)

This website provides only general information about‎ this class action. While it is not always current, it is updated from time to time as information becomes available.

This website is not designed to and does not provide legal advice or answer legal questions about your individual situation or entitlement. Do not rely upon the information provided on this website as legal advice for your individual situation. This website does not replace independent legal advice.

Providing information through this website does not make you a client of Lerners LLP or our co-counsel, does not create a solicitor-client, fiduciary or other form of relationship, and does not make you a member of the class. Whether or not you are a class member is determined by court order. Any information you provide will not be privileged, confidential or private. The information you provide may assist in prosecuting this matter as a class action and assessing damages for the class overall.

Legal Team:

Tennant v Stefanic 2015 ONSC 3511
Acting Lawyer

Counsel for the Plaintiff in a breach of contract/passing off action. The Plaintiff and Defendant operated similar wholesale businesses with the majority of sales deriving from online purchases. At trial, the Defendant was found to have wrongfully directed consumers, who believed they were shopping on the Plaintiff’s website, to the Defendants website which led to a loss of sales, contract and goodwill to the Plaintiff. The Plaintiff was wholly successful in its action against the Defendant with costs awarded against the Defendant.

Burford International v Meg Ont. and Larlyn Property Management Ltd. SCC 2092/14
Acting Lawyer

Trial counsel for the Defendants in a commercial lease dispute. The Plaintiff sought damages against the Defendants for an alleged breach of a lease renewal option. The Plaintiff was wholly unsuccessful at trial, its claim was dismissed, with costs against the Plaintiff.

McDonald v. Powers et. al. C-383/13
Acting Lawyer

Counsel for the Defendants in a dispute involving a closely-held corporation. The corporation owned hunting property and operated a hunting camp in Halliburton, Ontario. The Plaintiff brought an oppression application against the Defendants seeking a wind up or purchase out of its shares. In the result, the Plaintiff surrendered his shares and his oppression application was dismissed with costs.

Grajewski v McLean SCC 2030/13
Acting Lawyer

Trial counsel for homeowner Plaintiff. The Plaintiff sought damages against the Defendant contractor for the installation of a defective residential driveway. The Plaintiff was successful at trial with substantial indemnity costs being ordered against the Defendant.

Graystone v Salhani SCC 1965/12
Acting Lawyer

Trial counsel for the Plaintiff in a contractual dispute involving the sale of property located in London, Ontario. The Defendant failed to close on an Agreement of Purchase and Sale that had a delayed closing. The Plaintiff was successful in recovering damages as a result of the aborted transaction as well as substantial indemnity costs against the Defendant.

1688782 Ontario Ltd. v. Maple Leaf Foods Inc. et. al.
Acting Lawyer

This proposed class action is brought on behalf of all those who, on August 17, 2008, were franchisees operating in Canada of the restaurant chain of which Mr. Submarine Limited (“Mr. Sub”) was the franchisor.  Mr. Sub franchisees were required to purchase certain Ready-To-Eat meats (“RTE Meats”) manufactured by Maple Leaf Foods Inc. and Maple Leaf Consumer Foods Inc. (jointly “Maple Leaf”).  In August 2008, some of the RTE Meats were recalled due to possible contamination with the bacteria Listeria monocytogenes. It was reported in the news that Maple Leaf supplied RTE Meats to Mr. Sub.

The allegations are that Maple Leaf owed a duty of care to the franchisees in relation to the  production, processing, sale and distribution of the RTE Meats and that it breached its duty of care. The action seeks damages including damages for economic loss of past and future sales and profits. Lerners LLP is co-counsel with Nicholson Smith & Partners LLP.

The statement of claim was amended on December 4, 2014. The statement of defence was delivered in August 2015.

The plaintiff’s motion for leave to proceed with certification was heard on April 25, 2016 and was immediately followed by the plaintiff’s motion for certification.  The motion for certification was heard on April 25 and 26, 2016. The defendants’ motion for summary judgment was also heard on April 26, 2016.  The Court has reserved on all three motions.  We will advise once reasons are released.

If you think that you are a potential class members, please provide your contact information to Scott Smith at Nicholson Smith & Partners LLP.

If you have already provided your contact information and have since moved, please ensure that your contact information is kept up to date.

 

This website provides only general information about‎ this class action. While it is not always current, it is updated from time to time as information becomes available.  

This website is not designed to and does not provide legal advice or answer legal questions about your individual situation or entitlement. Do not rely upon the information provided on this website as legal advice for your individual situation. This website does not replace independent legal advice. 

Providing information through this website does not make you a client of Lerners LLP or our co-counsel, does not create a solicitor-client, fiduciary or other form of relationship, and does not make you a member of the class. Whether or not you are a class member is determined by court order. Any information you provide will not be privileged, confidential or private. The information you provide may assist in prosecuting this matter as a class action and assessing damages for the class overall.

Legal team:

Economical Mutual Insurance Company v Caughy
Acting Lawyer

2016 ONCA 226; Lerners acted for the Respondent in this appeal. The action arose out of the injuries sustained by the Respondent from tripping over a motorcycle, and the Appellant insurer’s subsequent denial of accident benefits on the basis that the incident did not meet the definition of “accident” in the Statutory Accident Benefits Schedule. The application judge concluded that the incident did satisfy the test for an “accident” under the SABS. The Court of Appeal dismissed the appeal.

Dr. Wade ats Felicity Polera
Acting Lawyer

2015 ONCA 895; Lerners represented the Appellant in this appeal. The action arose out of the Appellant doctor’s delayed diagnosis of a brain tumour. The motion judge summarily dismissed the Appellant’s defence of contributory negligence. Prior to the motions, the Appellant had admitted that he breached the standard of care and that his breach caused the Respondent’s damages. The Court of Appeal dismissed the appeal, finding that the motions judge had not erred in dismissing the defence of contributory negligence or in enumerating a list of injuries that the Respondent had suffered as a result of the Appellant’s admitted breach of the standard of care.

Dr. Oyenubi et al. ats Hawthorne
Acting Lawyer

2016 ONCA 10; Lerners represented the Respondents in this appeal of a dismissal on summary judgment. The action arose out of the administration of steroids to the Appellant while she was in the hospital in October 2009. The nineteen Respondent physicians successfully moved for summary judgment on the grounds that the limitation period had run out and thus that the Appellants’ claim was statute barred. The Court of Appeal upheld the dismissal of the action, as the Appellants had failed to adduce evidence sufficient to rebut the discoverability presumption in the Limitations Act, 2002.

Black v Owen
Acting Lawyer

2016 ONSC 40; Lerners acted for the Appellants in this appeal. The action arose out of the Respondents’ failure to pay annual levies related to a property located in Wychwood Park in Toronto from 2010 to 2014, as required under a Trust Deed established for the benefit of the properties situated in Wychwood Park. In a prior action against the Respondents based on their failure to pay such levies in 2008 and 2009, the Divisional Court upheld the trial finding that the levy was valid and that the Respondents’ family was required to pay it. The deputy judge in this action held that the Respondents were not required to pay the levy because the Trust Deed was a positive covenant that did not run with the land. The Divisional Court allowed the appeal and ordered that the Respondents were liable to pay the annual levies, on the basis of the conditional grant exception to the general rule that positive covenants do not run with the land.

BMO Trust Company and Verolin Spence et al
Acting Lawyer

2016 ONCA 196; Lerners represented the Respondents in this appeal of an order setting aside a will. The Respondents had brought an application to set aside the will of their deceased father, which disinherited the Respondents (the deceased’s daughter and grandson). The application judge set aside the will on the grounds of public policy, finding that the deceased had racist motivations in choosing not to leave a gift to his daughter. The Court of Appeal reinstated the will, finding that there were no public policy grounds justifying judicial interference with the deceased’s testamentary freedom. The application judge also had erred in admitting extrinsic evidence that contradicted the testator’s lawful motive as disclosed by the plain language of the will and substituted a different and allegedly unlawful motive.

Geertsema ats Musyoki
Acting Lawyer

2015 ONCA 643; Lerners acted for the Respondents in this appeal of a dismissal on summary judgment. The action arose out of an easement at the rear of property purchased by the Appellant from the Respondents, and whether the Respondents misrepresented the nature of the easement prior to the sale. The motion judge granted the Respondents’ motion for summary judgment. The Court of Appeal upheld the dismissal, as the Appellant had failed to adduce any evidence to support the claims of misrepresentation.

Nordlund Family Retreat Inc. ats Plominski
Acting Lawyer

2014 ONCA 444; Lerners acted for the Appellant (Defendant in the underlying action) in this appeal of a summary judgment motion. The underlying action involved a claim by the Plaintiff that an enforceable easement agreement was entered into with the Defendant. At the motion appealed from, the Plaintiff was granted summary judgment despite strong arguments that the claim presented genuine issues for trial. In dismissing the appeal, the Court of Appeal found that the motion judge had appropriately used his powers under Rule 20.04(2.1) to weigh evidence and evaluate credibility, and that there was no error in the motion judge’s reasoning.

Re Sorkos Estate
Acting Lawyer

2014 ONCA 618; Lerners acted for the Appellant in this estate matter. The trial judge had decided not to consolidate the Appellant’s application for dependant’s relief with an action against the estate for property, and that the property action took precedence over the dependant’s relief application. The Court of Appeal allowed the appeal and ordered a new trial on the narrow issue of the Appellant’s entitlement to dependant’s relief. The decision not to consolidate the trials had led to errors of law, and the trial judge did not conduct a proper analysis of the priority between the claims.

Savone ats Law Society of Upper Canada
Acting Lawyer

2015 ONLSTA 26;Lerners acted for the Appellant in this appeal of a Law Society of Upper Canada disciplinary proceeding. The Appellant lawyer was found by the Hearing Panel to have knowingly participated in real estate fraud, the presumptive penalty for which was disbarment. The Appellant had acted only for the vendors in the impugned transactions, and the fraud was alleged to have been perpetrated on the lender. Although the Law Society had the files of the lawyers acting for the purchasers/lenders, it refused to produce them. The Law Society and the Hearing Panel then relied on the fact that the lawyer’s files were missing documents to support a finding of constructive knowledge of fraud. The Law Society Appeal Division allowed the appeal and ordered a new hearing based on the Law Society’s failure to meet its “high standard of disclosure”.

Dr. Baum ats Diana Brown
Legal Team Cynthia B. Kuehl, Stuart Zacharias

Lerners represents the Appellant in this appeal of an unsuccessful summary judgment motion. The action arises out of a breast reduction surgery performed by the Appellant doctor on the Respondent, and whether the Appellant had advised of certain risk factors and the potential for additional surgeries. The Appellant moved for summary judgment on the basis that the limitation period had expired almost a year prior to the commencement of the action. The motion judge dismissed the motion. The Appellant appeals the finding that the Respondent’s case is not statute barred (Court of Appeal, October 29, 2015).

Hollowcore v Visocchi et al
Legal Team Jasmine T. Akbarali, Peter W. Kryworuk

Lerners acts for the Respondent Plaintiffs in this appeal. The action arises out of engineering drawings prepared by the Appellants for the Respondent Plaintiffs under a subcontract for the construction of a parking garage addition, which were delivered late and incomplete. At trial, the Respondent Plaintiffs were successful in their claims against the Appellants for breach of contract, negligence, and negligent misrepresentation. The trial judge also found that the Respondent Third Party insurers were liable to indemnify the Appellants for 100% of the damages for costs associated with certain of the Appellants’ errors, and for 55% of the balance of the damages owing for negligence. The Appellants appeal the trial judge’s finding as to the indemnification required by the Respondent Third Parties, and the individual Appellant appeals a finding of personal liability made against him (Court of Appeal, April 13-14, 2016).

Groia v Law Society of Upper Canada
Legal Team Earl A. Cherniak, Q.C., FCI.Arb, Jasmine T. Akbarali

Lerners represents the Appellant in this appeal of Law Society of Upper Canada professional disciplinary proceedings. The Law Society’s Appeal Panel found the Appellant guilty of four counts of professional misconduct during a trial in which the Appellant was representing an individual charged in connection with the well-known Bre-X securities fraud. The Appeal Panel imposed a one-month suspension and awarded costs of $200,000. The Divisional Court upheld the Appeal Panel’s decision and ordered the Appellant to pay an additional $30,000 in costs. The Appellant appeals the findings of professional misconduct against him, as well as the sanction and costs ordered (Court of Appeal, December 14, 15 and 16, 2015).

Frank Barclay, Thunder Bay Police and 495793 Ontario Ltd.
Acting Lawyer Jasmine T. Akbarali

Lerners represents the Appellants in this appeal of a finding of negligent investigation. The action arises out of a police investigation into auto theft in the auto recycling industry, which resulted in the laying of several criminal charges that ultimately were dropped or dismissed. The trial judge found the Appellants liable for negligent investigation and awarded damages for, among other things, loss of reputation and loss of profits. The Appellants appeal the findings of negligent investigation made against them, as well as the trial judge’s assessment of damages (Court of Appeal, March 1, 2016).

Carter, Helene and Intact Insurance
Legal Team Jasmine T. Akbarali, Anthony J. Bedard

Lerners represents the Respondent in this appeal. The action arises out of fire damage to the Appellants’ insured property, following which the Respondent insurance company refused to pay the Appellants’ claim for “replacement cost”. At the Appellants’ motion for a declaration on a point of law, the motion judge found that the proposed redevelopment of the property was not a “replacement” under the terms of the insurance policy, and thus that the Appellants were not entitled to replacement cost coverage. The Appellants appeal the dismissal of their motion (Court of Appeal, April 28, 2016).

Campbell, Stephen v Corporation of the County of Bruce
Legal Team Peter W. Kryworuk, Andrew C. Murray, Alysia M. Christiaen

Lerners acts for the Respondents in this appeal of a finding of liability under the Occupier’s Liability Act. The action arises out of injuries suffered by the Respondent while mountain biking at a park of which the Appellant county is occupier. The trial judge found that the Appellant had breached its duty of care and was liable for the injuries. The Appellant appeals the finding of liability made against it (Court of Appeal, April 28, 2016).

Dr. Wong ats Liu, Songyuan
Legal Team Cynthia B. Kuehl, Stephen Ronan

Lerners represents the Respondent in this appeal of a dismissal on summary judgment. The action arises out of a staple removal procedure performed on the Appellant by the Respondent doctor. The motion judge found no genuine issue requiring a trial with respect to the Appellant’s allegations of negligence on the basis of an expired limitation period and the Appellant’s failure to deliver expert evidence critical of the Respondent’s care. The Appellant appeals the dismissal of his action (Court of Appeal, May 9, 2016).

Johnson, Joshua v Rankin
Legal Team Jasmine T. Akbarali, Maia L. Bent, Alfonso E. Campos Reales

Lerners acts for the Respondents in this appeal. The action arises out of a single-vehicle accident that occurred after teenaged boys stole a vehicle from the property of the Appellant garage and took it on a joyride. The trial judge found that the Appellant was negligent in failing to secure the vehicle from theft. The Appellant appeals the finding of liability made against it (Court of Appeal, June 27, 2016).

Astley v. Verdun
Acting Lawyer

2014 ONCA 668
Lerners acted for the respondent (plaintiff in the action) in this appeal. At the trial of the action, the appellant was found guilty of defamation and subsequently was made subject of a permanent injunction that, among other things, enjoined him from publishing any statements or communications referring to the respondent. The appellant later forwarded a fax containing reference to the respondent, and on this basis was found guilty of contempt of the permanent injunction. The Court of Appeal dismissed the appellant’s appeal of the contempt finding.

Knew Order Co. Ltd. v. 2291955 Ontario Inc. et al
Acting Lawyer

Lerners represented the appellant defendants in this appeal. The appeal stems from a successful Rule 44 motion for interim recovery of personal property brought by the plaintiff. At issue in the appeal was whether the declaration that the Repair and Storage Liens Act had no application to the case was properly included in the Order resulting from the Rule 44 motion. The Ontario Court of Appeal allowed the appeal and struck the paragraph relating to the Repair and Storage Liens Act, holding that the motions judge had not made such an Order.

Users of Accutane
Acting Lawyer

Accutane was recommended for the treatment of severe acne. This proposed class action alleges that there were significant risks associated with the use of Accutane and that there were inadequate warnings of the serious health implications associated with its use.  The proposed class action is ongoing and is being pursued by a number of other law firms.  Please note that Lerners LLP is no longer involved in this proposed class action. Updates on the status of this proposed class action may be obtained from the website of Kim Orr Barristers P.C.

Tiboni v. Merck Frosst Canada Ltd.
Acting Lawyer

The drug Vioxx was withdrawn from the market worldwide on September 30, 2004 following reports that its users faced a significantly higher risk of cardiovascular complications, including heart attack, stroke, angina, blood clots and congestive heart failure.  Multiple class actions were commenced across Canada. Ultimately, one class action was certified out of Ontario for a national class, excluding individuals resident in Quebec or Saskatchewan. That class action was managed by a group of multiple law firms across Canada.  A Canada-Wide Settlement Agreement was reached in 2012 and approved in 2013.  Please note that Lerners LLP is no longer involved in this class action.  Details regarding this class action may be obtained at the Vioxx National Class Action Canada website.

Ormerod v. Manulife Securities International Ltd.; Hurst v. Berkshire Securities
Acting Lawyer

The plaintiffs in these class actions were investors who purchased hedge funds between 2003 and 2005 from the embattled Portus Alternative Asset Management Inc. through referral programs run by the defendants. The plaintiffs alleged a lack of due diligence by the defendants.