Aaron Dantowitz

Following the successful appeal by the defendant overturning the certification of a proposed class action for unpaid overtime, the defendant sought partial indemnity costs of $300,000.

The plaintiff and the Law Foundation of Ontario argued that no costs or a maximum of $50,000 should be awarded, citing the novel legal issues and public interest nature of the case.

The Court of Appeal acknowledged the novel points of law and access to justice considerations under section 31(1) of the Class Proceedings Act, 1992, but held that the Act does not insulate representative plaintiffs from adverse costs.

The court fixed the costs of the appeal at $60,000 on a partial indemnity scale.

Following the dismissal of an environmental class action on appeal, the successful defendant sought costs for the period from certification to the trial decision, payable from the Class Proceedings Fund administered by the Law Foundation of Ontario.

The court held that the defendant was prima facie entitled to costs on a partial indemnity basis under the general rule that costs follow the event.

However, under s.31(1) of the Class Proceedings Act, the court considered that the proceeding raised novel legal issues concerning environmental mass torts and class proceedings and involved significant public interest, including access to justice and environmental concerns.

Balancing these factors with the defendant’s entitlement to compensation for substantial litigation expenses, the court reduced the costs award.

The defendant was awarded 50% of the otherwise assessed costs, payable from the Fund.

In a class proceeding costs dispute following the dismissal of environmental contamination claims, the defendant brought a motion to strike portions of affidavits filed by a third-party fund administrator opposing payment of costs from the Class Proceedings Fund.

The challenged affidavits contained opinion evidence from non‑expert witnesses asserting that the litigation raised issues of public interest.

The court applied the principles governing admissibility of lay opinion evidence from R. v. Graat, distinguishing between admissible opinion grounded in factual observations and inadmissible speculation or legal opinion.

While the court permitted most of the opinion evidence as permissible lay opinion supporting observations about the public interest and access to justice, it struck limited portions that lacked factual foundation or amounted to speculation.

The College of Nurses of Ontario brought disciplinary proceedings against a registered practical nurse following an incident where a resident with a history of cardiac issues died after being left unattended in a washroom.

The Member failed to assess the resident, ignored signs of illness, refused to administer prescribed medication for nausea, and left the floor without notifying colleagues.

The Discipline Committee found the Member committed professional misconduct and was incompetent, demonstrating a profound lack of basic nursing knowledge, skill, and judgment.

Given the Member's lack of insight, failure to attend the hearing, and the danger she posed to the public, the Committee ordered the revocation of her certificate of registration.

The College of Nurses of Ontario brought allegations of professional misconduct against the member for working as a registered nurse while suspended, falsifying prescriptions, misappropriating funds, and asking a co-worker for a urine sample.

The member did not attend the hearing.

The Discipline Committee found the allegations proven, noting the member's guilty pleas to related criminal charges.

The Committee revoked the member's certificate of registration, emphasizing the need for specific and general deterrence given the serious, deceitful, and criminal nature of the conduct.

The applicant sought costs for an original motion before Justice Maranger and for a judicial review application before the Divisional Court.

The Law Society opposed the request, noting the applicant had mixed success as she did not obtain the permanent stay she sought.

The court agreed the applicant's success was mixed, as it merely maintained the interim stay pending an appeal before the Law Society Appeal Panel.

The court awarded the applicant $5,000 in costs for the motion before Justice Maranger, but declined to award costs for the judicial review.

The respondents (defendants) moved for security for costs of an appeal and the proceeding below.

The appellants (plaintiffs) are foreign residents with no assets in Ontario, have unpaid costs from the lower court, and are pursuing parallel proceedings in other jurisdictions.

The court granted the motion, ordering the appellants to post security for costs totaling $191,980.59 before taking any further steps in the appeal.

The applicant appealed a Law Society Hearing Panel order suspending her licence for two and a half months.

She sought a permanent stay of proceedings, arguing her language rights were violated because the Law Society failed to form a francophone Appeal Panel in a timely manner.

The Divisional Court found that while the Law Society failed to demonstrate it took all necessary steps to fulfill its language rights duties, the applicant unilaterally began serving her suspension and did not show that allowing the appeal to proceed would be contrary to the interests of justice.

The application for a permanent stay was dismissed, but a temporary stay was continued until the appeal could be heard.

The College of Nurses of Ontario brought disciplinary proceedings against a registered nurse for alleged professional misconduct, including the sexual abuse of a vulnerable adolescent psychiatric client.

The nurse engaged in unauthorized 'hands-on healing' and boundary violations that culminated in sexual intercourse with the client.

The Discipline Committee found the nurse guilty of professional misconduct, noting the severe breach of trust and failure to maintain professional boundaries.

Pursuant to the mandatory penalty provisions of the Health Professions Procedural Code, the Committee ordered the revocation of the nurse's certificate of registration and an oral reprimand.

Following the dismissal of the appeal and cross-appeal, the respondent sought partial indemnity costs of $26,457.59.

The Law Foundation of Ontario, responsible for the appellants' costs, argued for a reduction to $12,000 due to novelty, public interest, and access to justice concerns.

The Court of Appeal fixed the respondent's costs at $18,000, inclusive of disbursements and GST, reflecting the nature of the appeal and the dismissal of the cross-appeal.

The appellants, who received long-term disability benefits, brought a proposed class action challenging the insurer's deduction of CPP Child Benefits from their payments.

The trial judge dismissed the action, finding the deductions were permitted by the policies and not contrary to the Canada Pension Plan, and awarded the insurer $215,000 in costs.

On appeal, the Court of Appeal upheld the dismissal and the costs award, confirming that while the factors in s. 31(1) of the Class Proceedings Act must be given significance, they do not automatically insulate an unsuccessful class plaintiff from an adverse costs award.

The appellant, a thoroughbred trainer, appealed a Stewards' Ruling suspending him for 15 days and imposing a $1,000 fine after his horse tested positive for Methocarbamol (Robaxin).

The appellant argued that the positive test resulted from a mistake by veterinary technicians who administered the wrong medication.

The Ontario Racing Commission denied the appeal, finding that the appellant failed to establish due diligence under the strict liability trainer responsibility rule, as he was not present during the administration of medications and did not ensure his instructions were followed.

The suspension was reduced to eight days in recognition of his excellent past record, with the remaining seven days stayed.

The applicants sought judicial review of an Ontario Racing Commission (ORC) decision suspending them for one year and imposing fines for 'tubing' horses prior to races.

The applicants argued they were denied natural justice because the ORC relied on general rules rather than a specific prohibition against tubing, and that the panel erred in excluding photographic evidence.

The Divisional Court applied the reasonableness standard, finding ample evidence that tubing was a known prohibited practice in the industry.

Although the panel erred in excluding the photographs, it did not cause a meaningful injustice.

The application was dismissed and the penalties upheld.

The respondents brought a motion for an order requiring Staff of the Ontario Securities Commission to make meaningful disclosure of documents relevant to the specific allegations against them.

Staff had provided a database containing over 4.3 million pages of documents obtained during a four-year investigation, without separating relevant from irrelevant material.

The Commission held that Staff had not satisfied its legal obligation to make meaningful disclosure simply by delivering the massive database.

Staff was ordered to apply reasonable judgment to identify and disclose the documents relevant to the specific allegations against each respondent, rather than foisting the obligation to sift through the material onto the respondents.

A thoroughbred jockey appealed a Stewards' ruling that suspended him for three days and disqualified his horse from first place due to alleged interference.

The Industry Appeal Board reversed the suspension but left the disqualification undisturbed.

On a de novo hearing before the Ontario Racing Commission, the Panel found that the jockey did not breach any racing rules and that the interference was caused by another jockey's dangerous attempt to pass on the inside going into a turn.

The Panel allowed the appeal and ordered the original order of finish restored.

The appellant, a standardbred owner, appealed a 30-day suspension imposed on his horse after it tested positive for the Class IV drug Ambroxol.

The appellant argued for leniency as a new owner and claimed the drug did not affect the race outcome.

The Ontario Racing Commission denied the appeal, emphasizing that owners have a responsibility to conduct due diligence on their trainers and that the penalty was necessary as a deterrent to protect the integrity of horse racing.

The standardbred licensee appealed a Director's Order immediately suspending his licenses and proposing a 10-year suspension and $100,000 fine after a horse he trained tested positive for the performance-enhancing drug DPO.

The Ontario Racing Commission found that the trainer responsibility rule is a strict liability offence and the licensee failed to demonstrate due diligence in protecting the horse from tampering.

The Commission varied the penalty, imposing a 10-year suspension and reducing the fine to $10,000.

The Northern Horsemen's Association appealed a decision by the Executive Director allowing Sudbury Downs to cancel a makeup race date scheduled for December 12, 2007.

The cancellation was conditionally approved based on benchmarks regarding field sizes and race backs.

The Ontario Racing Commission Panel found that Sudbury Downs had historically raced short fields and that the late posting of condition sheets likely caused a shortage of entries.

The Panel granted the appeal and ordered Sudbury Downs to hold a full card of racing on December 22, 2007, with supervisory conditions.

The applicants sought judicial review of a racing commission decision dismissing their appeal of a stewards' ruling.

They argued the commission breached natural justice by failing to adequately address evidence that another jockey's whip caught in their horse's tail, causing interference.

The Divisional Court dismissed the application, finding the commission's reasons were adequate, the evidence was considered, and the factual findings were not patently unreasonable.

The appellant, a standardbred owner/trainer, appealed a Judges' Ruling that disqualified his horse from first place due to alleged interference before the start of a race.

The Commission Panel allowed the appeal, finding that the Judges had improperly dismissed the drivers' testimony as a class, which constituted a denial of procedural fairness.

The Panel reviewed the evidence, including video replays and testimony from the starter and drivers, and concluded that the brief contact between race bikes did not cause the interference, but rather the other horse was bad-gaited.

The original order of finish was restored.