Ontario Civil

Civil Practice and Procedure

Class and representative proceedings

Representative or class proceedings under class proceedings legislation

Fact that award benefits some, but not all members of class does not remove award from ambit of Regulations

Class plaintiffs brought action against amalgamating insurance companies which had taken money from their PAR accounts. Trial judge approved class counsel fees of $16.4 million; placed first charge for fees over $56.43 million ordered returned to PAR accounts; found class plaintiffs entitled to $4 million partial indemnity costs; and imposed levy in favour of Law Foundation of Ontario (Foundation) on $56.43 million to be returned. Trial judge ruled no costs or expenses could be allocated to PAR accounts without leave of court and on notice. Companies appealed from decision on class counsel fees, costs and imposition of levy and from order clarifying earlier judgment. Foundation cross-appealed that additional disbursements should have been awarded to class and subject to levy. Appeals and cross-appeal dismissed. PAR accounts were fund available for benefit of class members if and when dividend declared. Class members awarded right to have $56.43 million repaid to PAR accounts which would not have been possible without work of class counsel. Levy payable to Fund when monetary award is made to one or more persons in class that includes a plaintiff who received financial support from Fund. Fact that award benefits some, but not all members of class does not remove award from ambit of s. 10 of Regulations. Disbursements related to prior appeal costs already awarded and Foundation lacked standing to argue class ought to have received further disbursements given that class did not appeal this aspect. Judge did not err in ordering partial indemnity costs in favour of class.

Jeffery v. London Life Insurance Company (2018), 2018 CarswellOnt 14183, 2018 ONCA 716, Doherty J.A., M.L. Benotto J.A., and Grant Huscroft J.A. (Ont. C.A.); affirmed (2016), 2016 CarswellOnt 13691, 2016 ONSC 5506, J.N. Morissette J. (Ont. S.C.J.). (Ont. C.A.); affirmed (2017), 2017 CarswellOnt 11397, 2017 ONSC 4480, J.N. Morissette J. (Ont. S.C.J.).

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