Andrew H. Monkhouse

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.

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 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.

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.

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.

The court rendered a costs endorsement following the decertification of a class action.

The defendants, who were entirely successful in the decertification motion, sought substantial indemnity costs.

The court found the plaintiff's and class counsel's pursuit of the decertification motion to be excessive and unnecessary, particularly given that almost all class members had opted out.

Despite the plaintiff's argument that high costs would chill future class actions and cause financial disaster, the court emphasized the duty of counsel to avoid unnecessary litigation and the expectation of an indemnity agreement for class counsel.

The court awarded the defendants $100,000 in costs, a reduction from their requested amount but still an elevated level, acknowledging the disparity in costs incurred by both parties.

The defendant, His Majesty the King in Right of Ontario, brought a motion to strike the plaintiff's, Scott McAnsh's, proposed class action claim.

The plaintiff, a former adjudicator with a fixed-term appointment to the Assessment Review Board, sued for breach of contract, alleging that the government's failure to reappoint him after his term expired constituted a termination of employment and violated a promise of extended tenure.

The court dismissed the action, holding that statutory appointments to administrative tribunals are not employment contracts, and there is no legal obligation or right to reappointment after a fixed term expires.

The court affirmed that the decision to reappoint rests solely with Cabinet's discretion, which cannot be fettered by alleged promises or political considerations, and that fixed-term appointments are consistent with adjudicative independence.

The defendants brought a motion to decertify a class action, arguing that a mass opt-out of 66 out of 69 potential class members meant the action no longer met certification criteria, particularly the "preferable procedure" requirement.

The plaintiff opposed, seeking further production and challenging the class list.

The court found the plaintiff's objections to the class list meritless and an abuse of process, given the late timing.

It held that with only one or a few remaining class members, the class action no longer served the goals of access to justice, judicial economy, or behavioral modification, as individual claims were economically viable and the class action could potentially harm the interests of those who opted out.

The motion to decertify was granted.

This class action, alleging employee misclassification and breaches of provincial employment standards, settled for $2.4 million after almost eight years of litigation.

The court approved the settlement amount, class counsel's legal fees, payment to the Class Proceedings Fund, and the distribution method.

The representative plaintiff's requested honorarium of $20,000 was reduced to $8,000, as his involvement, while excellent, was not deemed "truly extraordinary" but did involve some personal and financial hardship.

The class period was also extended for settlement purposes.

This decision addresses the quantum of costs following a successful appeal by the Plaintiffs in a certified class action.

The Plaintiffs sought substantial costs for both the certification motion and the appeal.

The court, applying the principles of reasonableness and proportionality under the Courts of Justice Act and Rules of Civil Procedure, found the Plaintiffs' requested costs for the certification motion to be excessive, particularly regarding the hours billed, given the motion's complexity.

While the appeal costs were undisputed, the court significantly reduced the certification motion costs, emphasizing that awards must reflect the fair and reasonable expectations of the unsuccessful litigant.

The plaintiff brought a motion to certify a class action against Allstate Insurance Company of Canada, alleging the employer breached the Employment Standards Act by failing to include certain bonus payments in the calculation of vacation and public holiday pay.

The court found that the 'some basis in fact' requirement was met only for Business Development Agents regarding the Agency Performance Bonus, as there was evidence it was not wholly discretionary and related to individual production.

The motion for certification was granted but strictly limited to this subclass and bonus type.

Plaintiff's counsel moved to remove themselves as counsel of record due to a breakdown in relations with their client, Gregory Stokker, who had settled his individual claim in a proposed class action through separate counsel and became incommunicative.

The court granted the motion, allowing counsel to withdraw.

The plaintiff was ordered to be served directly with the endorsement and any future materials, and given 30 days to communicate his plans for the claim or retain new counsel, failing which the defendant would be at liberty to bring further motions.

The defendants brought a motion to determine the sequencing of their proposed summary judgment motion and the plaintiff's certification motion in a class action.

The core dispute revolved around the interpretation of s. 4.1 of the Class Proceedings Act, 1992, which governs pre-certification motions.

The court followed the precedent set in Dufault v. Toronto Dominion Bank, affirming a presumptive right for preliminary motions that can dispose of or narrow issues to be heard before certification.

The court found that the defendants' proposed summary judgment motion raised genuinely arguable issues concerning limitation periods and the legality of their "negative vacation bank" policy under the Employment Standards Act, 2000, which could narrow the litigation.

Consequently, the court ordered the summary judgment motion to proceed prior to the certification motion.

This case conference addressed three issues in a class action: the plaintiff's counsel's use of the defendants' corporate logo, the opt-out deadline for class members, and the defendants' communications with class members.

The court directed the plaintiff's counsel to cease using the logo to avoid confusion, set a revised opt-out deadline of April 3, 2022, and found no evidence of misconduct in the defendants' communications, noting that a high opt-out rate was foreseeable due to the nature of the claim.

Honeycomb Hospitality Inc. sought a stay pending its application for leave to appeal a Divisional Court decision that affirmed summary judgment for wrongful dismissal and damages in favour of the employee.

The motion judge applied the three-part test for a stay, finding that while a serious issue was raised regarding pregnancy's role in Bardal factors, the employer failed to demonstrate irreparable harm if required to pay the judgment and costs into trust.

The balance of convenience also favored denying the stay.

The appellant, Microsoft Canada Inc., appealed a trial decision that awarded the respondent, a former employee, unvested stock awards after his termination without cause.

The trial judge had found the termination provisions in the Stock Award Agreement unenforceable because they were "harsh and oppressive" and not brought to the respondent's attention.

The Court of Appeal allowed the appeal, finding that the trial judge erred in concluding the respondent received no notice, as the respondent had expressly agreed to the terms for 16 years by clicking an acceptance box, despite consciously choosing not to read the agreement.

The appellant appealed a summary judgment dismissing his claim for constructive dismissal and other related relief.

The Court of Appeal found no error in the motion judge's decision to focus on the constructive dismissal claim, as it was central to all other claims (intentional infliction of mental distress, human rights violation, punitive damages).

The court also upheld the motion judge's refusal to grant an adjournment and her approach to summary judgment, noting that the employer had made reasonable efforts to accommodate the appellant, which were frustrated by the appellant's non-compliance.

The appeal was dismissed, and costs were awarded to the respondent.