Alexandra Monkhouse

The moving party sought leave to appeal from the order of Glustein J. dated September 9, 2020.

The Divisional Court dismissed the motion for leave to appeal and awarded costs to the responding party fixed at $10,000.

The plaintiff brought a motion to certify a class action alleging misclassification of salespersons and sales managers as independent contractors, which resulted in the denial of Employment Standards Act entitlements and Canada Pension Plan/Employment Insurance contributions.

The parties largely consented to certification, with the court approving the class definition and common issues, though excluding punitive damages due to a lack of factual basis.

The court also approved a revised litigation plan.

The defendants, RBC Insurance Agency Ltd. and Aviva General Insurance Company, sought to schedule a motion to stay an individual action and remove plaintiff's counsel due to an alleged conflict of interest, prior to the certification motion for a proposed class action.

The plaintiff, Kabir Singh, opposed this scheduling, arguing these issues should be determined at the certification hearing.

The court, applying section 12 of the Class Proceedings Act, 1992, found that hearing the conflict and stay issues before certification would ensure a fair and expeditious determination, preventing potential delays and issues with adequacy of representation if a conflict were found later.

The court ordered the defendants' motion to be heard before the certification motion.

The defendants, RBC Insurance Agency Ltd. and Aviva General Insurance Company, brought a motion to strike various paragraphs from the plaintiff's Amended Statement of Claim, alleging no reasonable cause of action or insufficient particulars.

The plaintiff claimed constructive dismissal, misrepresentation, Human Rights Code violations, and malicious investigation.

The court struck paragraphs related to malicious investigation, misrepresentation, Human Rights Code violations, and negligent infliction of mental suffering, but granted leave to amend for all.

Allegations of common employer and certain paragraphs pleading evidence were allowed to remain.

The court emphasized that pleadings define the scope of discovery and that leave to amend should generally be granted at this stage.

The defendants, Aviva General Insurance Company and RBC Insurance Agency Ltd., sought directions to schedule Aviva General's proposed summary judgment motion before the certification hearing in a class action.

The plaintiff, Kabir Singh, opposed this sequencing request.

The court dismissed the defendants' request, finding that the summary judgment motion would not dispose of the entire proceeding, would require a full evidentiary record, and would likely lead to delays, increased costs, and potential interlocutory appeals, thus not promoting judicial efficiency or settlement.

The plaintiff sought costs of a class action certification motion on a substantial indemnity basis, arguing they 'beat' a Rule 49 offer to settle.

The court noted that the offer was non-monetary and the parties had settled most issues prior to the hearing.

The court held that a settlement is not a victory and awarding costs for negotiating a settlement would disincentivize resolution.

Exercising its discretion under section 131 of the Courts of Justice Act, the court declined to award costs to either party.

In a certified class action regarding whether document reviewers were employees or independent contractors, the plaintiff moved for a further and better affidavit of documents.

The court reviewed 11 categories of requested documents.

The court ordered the production of the defendant's insurance policy under Rule 30.02(3), but dismissed the remaining requests, noting that a party has no obligation to create documents that do not exist, and that requests for privileged communications and judicial inspection were premature or improper.

The plaintiff brought a motion to certify a class action against the defendants regarding the alleged misclassification of non-managerial sales representatives as independent contractors rather than employees.

The parties consented to certification but disputed whether the class should be divided into two subclasses (lead generators and appointment bookers) and whether a second representative plaintiff was required.

The court certified the class action, divided the class into two subclasses for efficiency, and held that the single plaintiff could represent both subclasses as there was no actual conflict of interest.

Following the successful dismissal of the defendant's counterclaim under the anti-SLAPP provisions of the Courts of Justice Act, the plaintiff sought damages under s. 137.1(9) and full indemnity costs under s. 137.1(7).

The court dismissed the claim for damages, finding no evidence that the counterclaim was brought in bad faith or for an improper purpose.

The court awarded costs of $95,173.26, noting that while full indemnity costs are presumptive, the awarded amount was fair and proportionate given that the main action was continuing and some work would be useful in that proceeding.

The applicant, Medha Joshi, brought a motion under Ontario's anti-SLAPP legislation (s. 137.1 of the Courts of Justice Act) to dismiss a $700,000 counterclaim by Allstate Insurance Company of Canada.

Joshi's initial claim was for wrongful dismissal, alleging discriminatory insurance practices by Allstate against residents of Brampton, primarily visible minorities, which she had publicly discussed.

The court found that Joshi's expressions related to a matter of public interest.

Allstate failed to satisfy the court that its counterclaim had substantial merit or that Joshi had no valid defence, particularly regarding the absence of malice for malicious falsehood and the availability of absolute, qualified, and fair comment privileges for defamation.

Allstate also failed to demonstrate sufficiently serious harm.

Consequently, the motion was granted, and Allstate's counterclaim was dismissed as a Strategic Lawsuit Against Public Participation.

The defendants brought a motion to strike portions of the plaintiff's statement of claim in an employment dispute over unpaid commissions, and sought to make an interlocutory injunction permanent.

The court also addressed the distribution of materials seized under an Anton Piller order.

The court declined to make the injunction permanent, finding the test was not met and damages would be an adequate remedy.

The court refused to strike the claims for unpaid commissions based on the limitation period, as discoverability was a genuine issue for trial.

However, the court struck the claims for negligent and fraudulent misrepresentation and loss of future income, granting the plaintiff leave to amend.

The defendant brought a motion and the plaintiff brought a cross-motion to compel answers to outstanding undertakings and refusals from examinations for discovery in a wrongful dismissal action.

The court ordered the plaintiff to provide information regarding mitigation and income, largely resolving the defendant's motion by agreement.

The court ordered the defendant to answer questions regarding the plaintiff's start date and who made the decision to terminate him, finding them relevant to notice and bad faith claims.

However, the court dismissed the plaintiff's request for answers regarding the HR manager's personal motives, finding them speculative and overbroad.

In the context of a pending summary judgment motion for a wrongful dismissal action, the parties brought four procedural motions.

The plaintiffs sought leave to file additional documents and a supplementary affidavit, and a declaration that they could attend each other's cross-examinations.

The defendant sought an order compelling the production of privileged communications.

The Master granted the plaintiffs' motions, finding they met the test for filing additional evidence and that there was insufficient risk of evidence tailoring to justify an exclusion order.

The defendant's motion for privileged documents was dismissed as there was no deemed waiver of solicitor-client privilege.

The plaintiff brought a motion for default judgment following her termination from the defendant employer.

The defendant's statement of defence had been struck for failure to appoint new counsel.

The court awarded the plaintiff six months' reasonable notice, unpaid overtime, and reimbursement for inappropriate clawbacks.

The court also awarded punitive damages equal to the amount of the plaintiff's statutory entitlements, as the employer had maliciously failed to pay them upon termination.

The plaintiffs, two long-term senior employees, brought a motion for default judgment against their former employer for wrongful dismissal, unpaid overtime, and moral damages.

The defendant had been noted in default.

The court found the plaintiffs were constructively dismissed due to a deliberate course of harassing and demeaning conduct, including unilateral salary reductions and attempts to force them to quit.

The court awarded 24 months' notice for wrongful dismissal, unpaid overtime to one plaintiff, and $15,000 each in moral damages.

Partial indemnity costs were also awarded to the plaintiffs.