Adam Edward Babiak

The Court of Appeal for Ontario dismissed an appeal by the Attorney General of Canada from a certification order of a class action brought by immigration detainees.

Between May 2016 and July 2023, the Canada Border Services Agency placed approximately 8,360 immigration detainees in provincial and territorial prisons instead of Immigration Holding Centers.

The respondents challenged this practice as violating sections 7, 9, 12, and 15 of the Canadian Charter of Rights and Freedoms, and as constituting negligence.

The motion judge certified the class action, finding that the Charter and negligence claims disclosed reasonable causes of action and that common issues existed.

The appellate court upheld the certification, finding no palpable and overriding errors in the motion judge's analysis.

The plaintiff in a class action brought an unopposed motion for approval of a third-party funding agreement under s. 33.1 of the Class Proceedings Act, 1992.

The agreement provided indemnity for adverse costs in exchange for a premium of up to 10% of the litigation proceeds.

The court approved the agreement, finding it fair and reasonable, protective of the plaintiff's control over the litigation, and supported by the funder's financial capacity.

The proposed representative plaintiff in a product liability class action sought a protective order to anonymize their identity and seal sensitive personal information due to a history of sexual violence and PTSD, which led to their cannabis use and subsequent Cannabis Hypermesis Syndrome.

The defendants did not oppose the motion.

The court granted the order, applying the Sherman Estate test, finding that court openness posed a serious risk to the plaintiff's well-being and dignity, no reasonable alternatives existed, and the benefits of protecting the plaintiff and encouraging other trauma survivors to access justice outweighed the minimal impact on court openness.

The plaintiff, David Trueman, in a proposed class action, sought leave to amend the Fourth Amended Statement of Claim to add a new sub-class and particularize existing claims.

The proposed amendments related to allegations that Rogers Communications and Rogers Bank obtained private credit information through unauthorized soft credit checks to pre-approve and issue unsolicited credit cards, in breach of privacy rights and contract.

The defendants opposed, arguing the amendments introduced a new, time-barred claim based on a breach of Bank Act regulations.

The court found that the amendments did not introduce a new cause of action but rather particularized existing claims for breach of contract and privacy, with the issuance of unsolicited credit cards being a consequence of the alleged wrongful conduct.

Therefore, no limitation period issue arose.

The court granted the plaintiff's motion to amend the statement of claim and awarded costs to the plaintiff.

The plaintiffs brought a motion for leave to appeal the order of Glustein J. dated August 8, 2022.

The Divisional Court dismissed the motion for leave to appeal.

The moving parties were ordered to pay $5,000 in all-inclusive costs to the responding parties.

The Landlord sought leave to appeal an arbitration award concerning the rent reset for a 99-year ground lease, and alternatively, to set aside the award for excess of jurisdiction.

The arbitration tribunal had valued the "Demised Premises" at $63.3 million, while the Landlord argued for $95 million.

The court granted leave to appeal but dismissed the appeal, finding no error in the Majority's interpretation of the lease or its valuation mandate.

The court also dismissed the application to set aside the award, holding that the Landlord's arguments were an attempt to re-litigate the merits under the guise of a jurisdictional challenge.

Following a 71-day trial where the plaintiffs were awarded nearly $10 million in damages, the plaintiffs sought costs of approximately $8.5 million on a substantial indemnity basis or $5.3 million on a partial indemnity basis.

The defendants argued that substantial indemnity costs were unwarranted and that the partial indemnity claim included costs for interlocutory matters already decided.

The court found no reprehensible conduct by the defendants to justify an elevated scale of costs.

Applying the partial indemnity scale and deducting amounts attributable to prior interlocutory motions, the court fixed the plaintiffs' costs at $4,900,000 all-inclusive.

This is the damages phase of a multi-party action brought by 28 former patients of the Oak Ridge Division of the Penetanguishene Mental Health Centre.

In the liability phase, the defendants (two psychiatrists and the Crown) were found liable for breach of fiduciary duty and battery for subjecting the plaintiffs to experimental and harmful psychiatric programs (DDT, Capsule, and MAPP) between the 1960s and 1980s.

The court assessed general, punitive, and income loss damages on an individual basis.

General damages were awarded to all plaintiffs, ranging from nominal amounts to over $2 million for the most severely impacted.

Punitive damages were awarded in cases involving particularly egregious conduct, such as the treatment of underage patients or the administration of alcohol to known alcoholics.

Income loss claims were largely limited or barred by the ex turpi causa doctrine, which prevented recovery for periods the plaintiffs spent lawfully incarcerated or institutionalized for subsequent criminal offenses.

The defendants requested the court to issue a formal judgment following the liability phase of a bifurcated trial to establish res judicata for the upcoming damages phase.

The plaintiffs consented to the form of the draft judgment but argued it was unnecessary at this stage.

The court declined to issue the formal judgment, finding that the trial is a single proceeding and a comprehensive judgment should be issued after the damages phase is completed, though the liability findings remain binding.

The plaintiffs, former involuntary patients at the maximum-security Oak Ridge division of the Penetanguishene Mental Health Centre, brought an action against two doctors and the provincial Crown.

They alleged they were subjected to abusive and experimental psychiatric programs, including hallucinogenic drugs, solitary confinement, and harsh disciplinary regimes, without informed consent.

The court found that the doctors breached their fiduciary duties and committed assault and battery.

The court also found the Crown directly and vicariously liable for these breaches and torts, rejecting the Crown's arguments of statutory immunity, limitation periods, and laches.

The trial was bifurcated, with this decision addressing liability and causation, leaving damages to be quantified later.

During a trial, the defendants brought a motion to exclude a new reply report by the plaintiffs' expert, Dr. John Bradford.

The plaintiffs sought to introduce the report to address six questions they claimed arose unexpectedly from the defendants' experts' testimony.

The court reviewed the principles governing late-filed expert reports, noting they are only admissible to address new, unanticipated matters raised by the defence.

The court analyzed each of the six questions and found that only one (Question 4, regarding the difference between segregation in a hospital versus a prison setting) addressed a genuinely new opinion.

The motion to exclude was partially granted, with only Question 4 of the reply report admitted.

The plaintiffs brought a mid-trial motion to disqualify the defendants' proposed expert witness, Dr. Vernon Quinsey, arguing he lacked the requisite independence and objectivity.

Dr. Quinsey was previously employed as a staff psychologist and Director of Research at the very psychiatric facility whose programs were being challenged as unethical human experimentation.

The court found that Dr. Quinsey's integral role in evaluating the contentious programs during the relevant period created a serious doubt as to his objectivity.

The court concluded that the prejudicial effect of his evidence outweighed its probative value, and disqualified him from testifying as an expert, though permitting him to testify as a fact witness.