Andrew H. Monkhouse

Following the dismissal of the defendant's summary judgment motion and the plaintiff's boomerang motion, the court determined costs.

The plaintiff sought substantial indemnity costs of $65,543 or partial indemnity costs of $48,078, relying on an offer to settle and Rule 20.06.

The defendant argued for costs of $12,199 or no costs.

The court found the plaintiff was the successful party but declined to award substantial indemnity costs, noting the offer to settle was more of a capitulation than a compromise and the defendant did not act unreasonably.

The court awarded the plaintiff partial indemnity costs of $48,078 inclusive of disbursements and HST.

The defendant brought a motion for summary judgment to dismiss the plaintiff's long-term disability claim, arguing the plaintiff was not totally disabled prior to his termination.

The plaintiff brought a cross-motion for summary judgment.

The court dismissed both motions, finding that the conflicting medical evidence and questions regarding the plaintiff's credibility and the exact onset date of his disability created genuine issues requiring a trial.

The moving party brought a motion for leave to appeal a decision and a costs decision of the lower court.

The Divisional Court dismissed the motion for leave to appeal in all respects and ordered the moving party to pay costs of $5,000 to the responding party.

The appellant appealed a decision refusing to certify a class action against a temporary help agency for alleged employee misclassification.

The motion judge had found that the proposed common issues regarding whether the agency was an employer under the Employment Standards Act or at common law lacked sufficient commonality and required individual determinations.

The Divisional Court dismissed the appeal, finding no palpable and overriding error in the motion judge's conclusion that there was no systemic commonality among the putative class members' arrangements.

Leave to appeal the costs award of $333,114.05 was also denied.

The plaintiffs brought a motion to compel answers to refusals and questions taken under advisement from the examination for discovery of the defendants’ representative.

The court considered the scope of discovery in a class action, focusing on whether the questions related to certified common issues.

The court ordered answers to certain questions and refusals to others, based on relevance and proportionality to the common issues.

No costs were awarded, as both parties had almost equal success.

The plaintiff law firm sought an assessment of its legal fees in the amount of $25,165.63 against its former client, who had retained the firm on a contingency fee basis for a wrongful dismissal claim.

The client terminated the retainer after the firm made several errors, including naming the wrong parties and discontinuing the action against one defendant without instructions.

The court found the firm's account to be unreasonable, noting the lack of first-hand evidence from the timekeepers, vague docket entries, and billing for time after the retainer was terminated.

Applying the Cohen factors, the court assessed the fair and reasonable value of the legal services at $2,000.

This decision addresses costs following the dismissal of a class action certification motion.

The defendant, T.E.S. Contract Services Inc. (TES), sought substantial or partial indemnity costs.

The plaintiff, Ann Davidson, argued for no costs or significantly reduced costs, asserting the case was a test case, raised novel issues, or concerned public interest.

The court fixed costs on a partial indemnity scale, finding no egregious conduct by the plaintiff.

It rejected the plaintiff's arguments regarding public interest, novel issues, or test case status, and strongly criticized the suggestion that the representative plaintiff might be personally exposed to costs, emphasizing class counsel's duty to indemnify.

The court found TES's requested partial indemnity costs reasonable but deducted amounts related to the plaintiff's successful production motion and the defendant's abandoned motion to strike expert reports.

The plaintiff in a class action sought court approval of a settlement reached with the defendants regarding the alleged misclassification of non-managerial sales representatives as independent contractors.

The settlement, primarily funded by one defendant, aimed to compensate class members for unpaid employment benefits.

The court also considered the proposed notice plan for the settlement and class counsel's request for fees.

The corporate defendant and one individual defendant were in default.

The moving parties brought a motion for leave to appeal the order of Perell J. dated February 29, 2024.

The Divisional Court dismissed the motion for leave to appeal and awarded costs to the responding parties in the amount of $1,500.

The moving parties, RBC Insurance Agency Ltd. and Aviva General Insurance Company, brought a motion for leave to appeal the order of Glustein J. dated March 2, 2023.

The Divisional Court dismissed the motion for leave to appeal without costs.

The plaintiff, Ann Davidson, brought a motion for certification of a proposed class action against T.E.S. Contract Services Inc. (TES), alleging misclassification of workers as independent contractors instead of employees, and seeking benefits under the Employment Standards Act, 2000.

The court dismissed the certification motion, finding no basis in fact for commonality regarding whether a s. 74.3 agreement (temporary help agency assignment) existed between TES and the putative class members, or whether a common law or s. 1(1) employment relationship could be determined on a class-wide basis.

The court concluded that individual inquiries would be required to determine employment status for each class member, as the evidence did not establish systemic commonality.

The moving parties brought a motion for leave to appeal an order of the Superior Court of Justice.

The Divisional Court dismissed the motion for leave to appeal and awarded costs of $5,000 to the responding party.

The defendants in a class action brought a motion seeking the production of class counsel's redacted dockets to respond to the plaintiffs' costs submissions following certification.

The plaintiffs opposed the production.

The court dismissed the motion, holding that the production of dockets to support costs submissions on a motion is only ordered in exceptional cases to protect solicitor-client privilege.

The court found that the substantial amount of costs claimed, the disparity between the parties' costs, and alleged incongruities in the costs outline did not constitute exceptional circumstances warranting production.

This decision concerns the costs of a prior motion in an employment class action.

The Plaintiffs brought a motion to settle a Discovery Plan, and the Defendants brought a cross-motion to amend certified common issues.

The court granted the Defendants' motion and dismissed the Plaintiffs' motion.

The Defendants sought substantial indemnity costs, while the Plaintiffs argued for costs in the cause or partial indemnity.

The court awarded the Defendants $29,930.58 on a partial indemnity basis, finding that while the Plaintiffs' proposed discovery plan was "outrageous, abusive, and unfair" their conduct in seeking it was not.

The court also considered that the process of developing the discovery plan, despite the Plaintiffs losing the motion, ultimately benefited them by leading to admissions that could avoid an onerous common issues trial.

The plaintiff, Ann Davidson, brought a pre-certification motion under s. 12 of the Class Proceedings Act, 1992, seeking production of the defendant T.E.S. Contract Services Inc.'s (TES) application for a temporary help agency (THA) licence, along with accompanying documents.

Davidson argued these documents were relevant to the certification motion's common issue of whether class members were misclassified as independent contractors rather than employees, particularly under s. 74.3 of the Employment Standards Act, 2000, which deems workers assigned by THAs as employees.

TES opposed, arguing the application was irrelevant and that s. 74.3 only applies to existing employees.

The court ordered production of the application, subject to redactions for irrelevant parts, finding it relevant to whether TES operated or sought to operate as a THA and the nature of its relationship with workers.

In a certified class action regarding unpaid vacation and public holiday pay, the plaintiffs moved to settle a discovery plan, and the defendants brought a cross-motion to amend the certified common issues and approve an alternative discovery plan.

The court dismissed the plaintiffs' motion, finding their proposed discovery plan to be disproportionate, unnecessary, and abusive, as it sought extensive electronic searches and oral discovery beyond the scope of the common issues.

The court granted the defendants' cross-motion, approving their revised common issues and their more proportionate discovery plan.

In a class action regarding unpaid vacation and public holiday pay, the plaintiffs moved to settle a discovery plan, and the defendants brought a cross-motion to amend the certified common issues and approve an alternative discovery plan.

The court dismissed the plaintiffs' motion, finding their proposed discovery plan to be disproportionate, unnecessary, and overly broad.

The court granted the defendants' cross-motion, amending the common issues to reflect the actual scope of the claims and approving the defendants' more focused discovery plan.

In a class action regarding unpaid vacation and public holiday pay, the plaintiffs moved to settle a discovery plan, and the defendants brought a cross-motion to amend the certified common issues and approve an alternative discovery plan.

The court dismissed the plaintiffs' motion, finding their proposed discovery plan to be disproportionate, unnecessary, and abusive.

The court granted the defendants' cross-motion, amending the common issues to reflect the actual scope of the action and approving the defendants' more proportionate discovery plan.

This motion concerned the substitution of a representative plaintiff in a class action alleging underpayment of vacation and public holiday pay on variable compensation by RBC General Insurance Company and Aviva General Insurance Company.

The original proposed representative plaintiff, Deval Trivedi, was found to be statute-barred against Aviva General.

The plaintiff sought to substitute Binay Saroop as the representative plaintiff against Aviva General and to amend the statement of claim.

The court found that Saroop met the 'some basis in fact' test to rebut the statutory presumption regarding the limitation period and did not have a disqualifying conflict of interest, thus being an adequate representative plaintiff.

The motion to substitute Saroop and amend the claim was granted.

This decision addresses the costs of a class action certification motion.

The plaintiff initially sought certification for a broad class action, which was adjourned due to being "uncertifiable." The plaintiff then reformulated and narrowed the claim, leading to partial certification.

The plaintiff sought substantial costs, while the defendant sought offsetting costs for wasted efforts.

The court, exercising its discretion, ordered no costs, finding the plaintiff's claim excessive and acknowledging the defendant's significant success in narrowing the class and issues.

The court emphasized reasonableness and divided success in class action costs.