Andrew Eckart

The plaintiffs brought a motion to discontinue a proposed employment class action against the defendant.

The representative plaintiffs were found to be unsuitable or in conflict with the class, and no replacement plaintiffs could be found.

The court granted the discontinuance without costs and without prejudice, finding no prejudice to putative class members as the limitation period had been tolled and notice would be provided to those who had come forward.

This motion concerned an application by The Class Action Clinic, University of Windsor, Faculty of Law, to intervene as a friend of the court in an appeal brought by Donald Parker.

Parker's appeal challenged an unsuccessful motion for an extension of time to opt out of a class action against Her Majesty the Queen in the Right of Ontario, concerning medical care for inmates.

The Clinic sought to provide a framework for determining extensions of time to opt out of class actions.

The court granted the Clinic's motion to intervene, finding that the Clinic could make a useful contribution to the appeal's resolution without prejudicing the parties, given the unsettled legal considerations regarding opt-out extensions in class actions.

The defendants brought a motion to exclude the plaintiff's second orthopedic expert, Dr. Daniel Ogilvie-Harris, arguing that his testimony duplicated that of the plaintiff's treating physician, Dr. Robert Luba, and citing prior judicial comments regarding Dr. Ogilvie-Harris's alleged bias.

The plaintiff sought to admit both experts, asserting distinct contributions and the need for a Rule 53 expert to challenge the defence's expert.

The court dismissed the defendants' motion, allowing both Dr. Luba to testify as a participant expert and Dr. Ogilvie-Harris as a Rule 53 expert.

The court found that Dr. Ogilvie-Harris's opinion offered significant differences, including addressing the Insurance Act threshold and challenging the defence expert, and ruled that allegations of bias should be addressed in a voir dire.

The defendants sought leave to introduce surveillance evidence for substantive purposes in a jury trial arising from a motor vehicle accident.

The plaintiff opposed, arguing late disclosure and prejudice.

The court found the defendants breached disclosure obligations under Rules 30.09 and 33.06, particularly regarding waiver of privilege when the evidence was provided to a medical expert.

Applying Rule 53.08, the court determined that significant prejudice to the plaintiff, including impacts on settlement considerations and trial strategy, could not be cured by an adjournment.

Leave to use the surveillance evidence for substantive purposes was denied, though its use for impeachment was not challenged.

In a motor vehicle accident action, the plaintiff objected to the defence's expert medical evidence from Dr. Finkelstein, arguing the expert relied on inadmissible surveillance video.

A voir dire was held to determine admissibility.

The court ruled that Dr. Finkelstein could testify, but with conditions: no comment on surveillance in examination-in-chief, and the plaintiff could cross-examine on activities disclosed in evidence or directly on the surveillance (with defence re-examination rights).

The court balanced the probative value of the expert evidence against the potential prejudice from the inadmissible surveillance, noting the expert's opinions were largely independent of the video and foundational facts were already in evidence.

The plaintiffs sought leave under Rule 48.04(1) of the Rules of Civil Procedure to bring a summary judgment motion, despite the action having already been set down for trial.

The proposed motion would only address claims against two of the defendants for breaches of share purchase and consulting agreements.

The court dismissed the motion for leave, finding that the proposed summary judgment motion would not eliminate any parties, would not shorten the trial given the interconnected factual matrix, and would risk inconsistent verdicts and prejudice regarding the defendants' counterclaim.

Following a successful certification motion in a proposed class proceeding brought by former employees against corporate and individual defendants, the plaintiffs sought partial indemnity costs of approximately $64,000.

The defendants argued that no costs should be awarded due to their partial success on a Rule 21 motion and their role in narrowing the plaintiffs’ claims.

The court held that while the plaintiffs achieved overall success on certification, their success was limited because several causes of action were dismissed and the scope of the claims was reduced.

Exercising its discretion under the Class Proceedings Act, 1992, the court reduced the requested partial indemnity costs and awarded a global amount.

Costs of $50,000 inclusive were ordered payable forthwith to reflect the plaintiffs’ overall success.

The plaintiffs brought a motion to certify a class action on behalf of 521 dismissed employees of an insolvent call centre.

The defendants brought a cross-motion to strike several claims, arguing that the court lacked jurisdiction due to pending Employment Standards Act proceedings and that the pleadings failed to disclose reasonable causes of action.

The court struck the breach of fiduciary duty claims but allowed the negligence, conspiracy, inducing breach of contract, and oppression remedy claims to proceed.

The court held that while s. 97 of the Employment Standards Act precluded some employees from advancing wrongful dismissal claims, it did not bar them from participating in the class action for the other tort and statutory claims.

The action was certified as a class proceeding.

The insurer moved under Rule 21.01(3) of the Rules of Civil Procedure to stay a statutory accident benefits action as an abuse of process.

The insurer argued the insured improperly switched forums from a Financial Services Commission of Ontario arbitration to the court after initiating arbitration proceedings.

The court held that the doctrine of abuse of process did not apply because there was no limitation period issue preventing the insured from changing forums and no risk of duplicative or inconsistent proceedings.

The withdrawal of the arbitration eliminated concerns about parallel proceedings, and trying the accident benefits action together with the tort claim promoted efficiency.

The motion to stay the action was dismissed.