Andrew H. Monkhouse

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 plaintiff, a warehouse employee of 13.5 years, sued for wrongful dismissal after the defendant outsourced its warehouse operations.

The plaintiff declined an offer of employment from the outsourcing company before his termination took effect.

The court held that the plaintiff did not fail to mitigate his damages because the alternative job offer was made and withdrawn prior to his actual termination.

The court awarded the plaintiff 12 months of reasonable notice and dismissed the claim for punitive damages.

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.

The appellant employer appealed a summary judgment decision awarding the respondent employee damages for wrongful dismissal.

The appellant argued the motion judge erred in finding the respondent made reasonable efforts to mitigate, alleging she fabricated records of online job applications.

The Divisional Court dismissed the appeal, finding no palpable and overriding error in the motion judge's conclusion that the appellant failed to meet its onus to prove a failure to mitigate or fabrication of evidence.

The court also upheld the motion judge's determination that summary judgment was appropriate.

The plaintiff, a depot manager with five years of service, was laid off during the COVID-19 pandemic and brought a wrongful dismissal action.

The court found the termination clause in his employment contract void because its 'just cause' provision violated the Employment Standards Act.

Applying the Bardal factors, the court awarded the plaintiff seven months of reasonable notice.

The court also ruled that the plaintiff's Canada Emergency Response Benefit (CERB) payments should not be deducted from his damages award.

The proposed representative plaintiff brought a motion to certify a class action against RBC Insurance Agency Ltd. and Aviva General Insurance Company for alleged failure to pay vacation and public holiday pay on variable compensation to Property & Casualty Insurance Advisors.

The court granted certification against RBC IA, finding some basis in fact for the claims and that a class action was the preferable procedure.

However, the court found the proposed representative plaintiff's claim against Aviva General was presumptively statute-barred and conditionally certified the action against Aviva General, allowing 100 days to find a new representative plaintiff.

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.

The plaintiff and the defendant Tofield Pizza Hut consented to a motion to remove Tofield Pizza Hut from a proposed employment misclassification class action.

The plaintiff accepted that Tofield Pizza Hut did not misclassify its delivery drivers as independent contractors.

The court granted the motion, finding that the dismissal would not prejudice the prospective class as no putative class member had a viable claim against this specific defendant.

The parties settled a wrongful dismissal action for $15,000 but could not agree on costs.

The plaintiff sought costs, while the defendant argued no costs should be awarded due to the plaintiff's conduct and the small settlement amount.

The court found the defendant fought the case aggressively and that a plaintiff in a wrongful dismissal action should reasonably expect partial indemnity costs.

The court awarded the plaintiff $30,000 in costs, inclusive of a $3,000 deduction for the defendant's costs of finalizing the settlement.

At a case conference in a certified class action, the parties discussed scheduling upcoming motions.

The plaintiff sought to amend the Statement of Claim to add unjust enrichment, which the defendants opposed as it could impact the certification analysis.

The defendants proposed a motion to decertify the action due to a low number of class members.

The court scheduled the decertification motion for April 2023 and directed the plaintiff to defer their motion to amend until after the decertification motion is decided.

The appellants, former employees of Medcan, appealed the dismissal of their motion to certify a class proceeding for unpaid vacation and public holiday pay on variable compensation.

The certification judge had found that a class action was not the preferable procedure.

The Divisional Court allowed the appeal, finding the certification judge erred in principle by failing to conduct the preferability analysis through the lens of the three principal goals of class actions, specifically failing to consider barriers to access to justice and behaviour modification.

The action was certified as a class proceeding.

Following a summary judgment motion in a wrongful dismissal action where the plaintiff recovered $17,587.11, both parties made written submissions on costs.

The plaintiff sought $35,000 in partial indemnity costs, while the defendant sought $17,387.88 in costs thrown away.

The court noted that both parties had advanced and subsequently abandoned serious, unsubstantiated allegations during the litigation.

Given the conduct of both parties and the plaintiff's recovery falling within the Small Claims Court monetary jurisdiction, the court ordered no costs to either party.

The plaintiff brought a motion to certify a class action for settlement purposes, approve a $105,000 settlement, and approve class counsel fees and a representative plaintiff honorarium.

The class action alleged that the defendants misclassified event staffing workers as independent contractors rather than employees, depriving them of minimum employment standards.

The court certified the action for settlement purposes, finding the criteria under s. 5(1) of the Class Proceedings Act were met.

The court approved the settlement as fair and reasonable given the significant risk of non-recovery due to the corporate defendant ceasing operations.

Class counsel fees of $50,454.50 plus disbursements were approved, and the representative plaintiff was awarded a $4,000 honorarium.

The plaintiff, a dental hygienist, was dismissed without cause after less than six months of employment.

She brought a motion for summary judgment for wrongful dismissal damages.

The defendant employer alleged she had fabricated evidence of her job search to prove mitigation.

The court found the employer failed to prove the mitigation fraud allegation.

Applying the Waksdale rule, the court held the employment contract's termination clause was void because its 'for cause' provision violated the Employment Standards Act.

The court awarded a three-month notice period and declined to deduct the plaintiff's CERB payments from the damages award.

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.