Brendan van Niejenhuis

In a class action regarding allegedly illegal bingo licensing fees, the defendants brought a motion to lift an interim protection order that prevented them from sharing the identities of class members who opted out with their municipal clients.

The plaintiffs opposed, arguing that revealing the identities could harm the charities' fundraising efforts.

The court applied the Sierra Club test and found insufficient evidence of a serious threat to the commercial interests of the potential class members.

Emphasizing the open court principle, the court granted the defendants' motion and lifted the protection order.

The defendants were successful on a motion for leave to appeal brought by the plaintiffs in a class proceeding.

The defendants sought partial indemnity costs of $10,000, while the plaintiffs suggested $5,000 was appropriate given the motion was in writing.

The court fixed costs at $6,500 payable forthwith, considering the costs awarded on the underlying contempt motion and the merits of the leave application.

The plaintiffs brought a motion for leave to appeal which was dismissed.

The successful defendants sought partial indemnity costs of $10,000, while the plaintiffs suggested $5,000 was appropriate given the motion was in writing.

The court fixed costs at $6,500 payable forthwith, considering the costs awarded on the underlying contempt motion and the merits of the leave application.

The plaintiffs in two class action proceedings sought leave to appeal the dismissal of their motion for contempt against the defendants.

The contempt motion alleged that the City of Windsor breached an order limiting communication with class members during an opt-out period.

The court denied leave to appeal, finding that the original judge correctly applied the test for contempt, which requires proof beyond a reasonable doubt, a clear and unequivocal order, and deliberate and willful disobedience.

The court found no error in the original judge's conclusion that the order was ambiguous and that a wilful breach was not proven.

Furthermore, the court determined that the plaintiffs failed to identify any conflicting decisions or raise matters of such importance to warrant leave to appeal under Rule 62.02(4) of the Rules of Civil Procedure.

The plaintiffs in two class action proceedings sought leave to appeal a case management judge's dismissal of their motion for contempt.

The plaintiffs alleged that the defendant municipality breached a court order limiting communication with class members during the opt-out period.

The court denied leave to appeal, finding that the case management judge correctly applied the test for civil contempt, reasonably concluded the order was subject to multiple interpretations, and that there was no conflicting case law or good reason to doubt the correctness of the decision.

The appellant municipality appealed a summary judgment finding it owed a duty of care to a class of tenants to provide statutory notices of rent reductions following property tax decreases.

The Court of Appeal dismissed the appeal, holding that the municipality's specific interactions with the tenants through a pilot project created sufficient relational proximity to establish a prima facie duty of care.

The court further found no residual policy reasons to negate this duty, as the claim was limited to a specific group and did not conflict with the municipality's statutory obligations.

The municipality's failure to send the required notices breached the standard of care.

The defendants brought a motion to dismiss the plaintiff's action, arguing that a Founders' Restricted Rights Agreement explicitly mandated arbitration for all disputes.

Despite the plaintiff initially commencing an action to gain discovery advantages, both parties ultimately agreed on the validity and enforceability of the arbitration clause.

The court dismissed the action, finding the plaintiff had no right to litigate the dispute in court and should have pursued arbitration or discontinued the action earlier.

Costs were awarded to the defendants due to the plaintiff's unnecessary litigation and refusal to withdraw the action.

The Director of the Ontario Racing Commission sought judicial review of a Panel decision that exonerated a horse trainer from an absolute liability offence based on a due diligence defence.

The horse had tested positive for a prohibited drug after winning a race.

The Divisional Court held that the Panel's decision was unreasonable because a standard of care defence is not available for an absolute liability offence.

The Court set aside the Panel's decision, restored the original finding of a rule violation, and exercised its jurisdiction to impose a penalty of no fine and no suspension, leaving the horse's disqualification intact.

The Director of the Ontario Racing Commission sought judicial review of an ORC Panel decision that reduced the penalties of four horse trainers whose horses tested positive for a controlled substance.

The trainers had been found guilty of an absolute liability offence but the Panel reduced their penalties to a nominal fine and no suspension, finding they had exercised due diligence by consulting veterinarians and following their advice.

The Divisional Court dismissed the application, holding that the Panel's decision to consider due diligence as a mitigating factor at the penalty stage was reasonable and entitled to deference.

The plaintiffs brought a contempt motion alleging that the defendants, the City of Windsor and the Town of Tecumseh, breached a January 29, 2016 order regarding an opt-out campaign in a class proceeding.

The alleged breaches involved new radio advertisements and a live interview by the Mayor of Windsor.

The court found that the order's terms were arguably subject to more than one interpretation and that the defendants did not deliberately and willfully breach the order.

The contempt motion was dismissed, and the plaintiffs' request for further disclosure was denied.

The defendant municipalities sought leave to appeal a Case Management Judge's order requiring them to cease and desist an opt-out campaign directed at class members, which the judge found created undue influence.

The plaintiff class representatives sought leave to cross-appeal, arguing the judge should have ordered the removal of existing communications.

The Divisional Court dismissed both motions for leave to appeal, finding no reason to doubt the correctness of the Case Management Judge's findings or the discretionary remedy granted.

Following a successful appeal where the appellant was granted leave to amend his statement of claim, the Court of Appeal determined the issue of costs.

The parties agreed the successful party on appeal should receive $5,000 in partial indemnity costs.

The court awarded the appellant $5,000 for the appeal, but upheld the motion judge's $15,000 costs award in favour of the respondent.

The amounts were set off, resulting in a net payment of $10,000 from the appellant to the respondent.

The appellant appealed the dismissal of his action against the Law Society of Upper Canada after his statement of claim was struck out as disclosing no reasonable cause of action and being an abuse of process.

The appellant alleged a long history of unfair treatment, including administrative suspensions, disciplinary proceedings, and bankruptcy opposition.

The Court of Appeal agreed that the individual acts did not give rise to viable causes of action as pleaded and that many claims were settled by prior releases.

However, the Court found the motion judge erred in refusing leave to amend the pleading to properly allege the tort of misfeasance in public office based on a cumulative pattern of bad faith conduct.

The appeal was allowed in part to grant leave to file a fresh as amended statement of claim.

The Court of Appeal issued an endorsement regarding costs following an appeal involving a class action.

Due to divided success and the plaintiffs' failure to produce a rational and workable class definition, which contributed to delays and added costs, the court ordered no costs in either the Court of Appeal or the Divisional Court.

The plaintiff sought leave to enforce a consent judgment obtained following a settlement agreement arising from a large employee fraud.

The moving party argued that the defendant had materially breached the settlement agreement by failing to disclose assets, gifts, and financial transactions and by failing to account for significant proceeds obtained from resale of goods purchased through the fraud.

The court held that the consent judgment was contractually linked to the settlement agreement and therefore subject to conditions restricting enforcement against the defendant’s residence unless a material breach occurred.

The court found multiple material breaches, including undisclosed loans, gifts, assets, and evasive disclosure regarding hundreds of thousands of dollars in proceeds.

The breaches removed the contractual protection against execution.

Leave was granted nunc pro tunc for issuance of a writ of seizure and sale.

The appellant municipalities appealed the certification of two class actions alleging that charitable lottery licensing fees were ultra vires direct taxes.

The appellants argued that the class definition, which included claims dating back to 1990, was overly broad and included presumptively time-barred claims.

The Court of Appeal allowed the appeal in part, modifying the class definition to align with the 15-year ultimate limitation period under the Limitations Act, 2002.

The Court also created a subclass for the presumptively time-barred claims but held that the representative plaintiffs could represent both the main class and the subclass, and that a class proceeding remained the preferable procedure.

The plaintiff brought a motion for summary judgment seeking repayment of a $400,000 loan advanced for the production of a film.

The borrower and guarantor argued that a separate agreement governing distribution of film revenues subordinated repayment of the loan until other liabilities were satisfied and effectively transformed the loan into a risk investment.

The court held that the loan agreement and promissory note clearly provided that the loan was payable on demand and were not modified by the revenue-sharing agreement.

The defendants’ interpretation would contradict the express contractual language and render the loan agreement meaningless.

Summary judgment was granted for the full loan amount plus interest.

The moving party regulator brought a motion to strike a lengthy statement of claim alleging various wrongs arising from disciplinary proceedings, settlement agreements, trustee services, and bankruptcy matters.

The court held that many allegations were barred by a prior settlement and release, constituted impermissible collateral attacks on regulatory decisions, were statute-barred, or disclosed no reasonable cause of action.

The court considered whether the pleadings could support the tort of misfeasance in public office but found that the material facts alleged did not establish deliberate unlawful conduct or knowledge of likely harm.

Even accepting the pleaded facts as true, the claim could not succeed in law and amendment would not cure the defects.

The action against the regulator was therefore dismissed and costs were awarded.

The defendants sought leave to appeal a motions judge's order certifying two class proceedings regarding the restitution of allegedly illegal lottery licensing fees.

The motions judge had certified all claims going back to 1990, including those that were prima facie time-barred.

The court granted leave to appeal under Rule 62.02(4)(b), finding good reason to doubt the correctness of the certification order, particularly regarding whether a class proceeding was the preferable procedure and whether a sub-class should have been created for the time-barred claims.

The court also found the issues to be of general importance to the development of class action law.

The defendants sought leave to appeal a motions judge's order certifying two class proceedings seeking restitution of lottery licensing fees, including claims that were prima facie time-barred.

The court granted leave to appeal under Rule 62.02(4)(b), finding good reason to doubt the correctness of the motions judge's analysis regarding whether a class proceeding was the preferable procedure and whether a sub-class should have been created for the time-barred claims.

The court also found the issues raised were of general importance to the development of class action law.