Brookelyn Kirkham

Two consolidated appeals concerning the interpretation of leave provisions in certification orders for class actions relating to trailing commissions paid to mutual fund managers.

The appellants (mutual fund managers) argued that new class actions commenced by different plaintiffs on behalf of different classes should have required leave under the certification orders because they related to the same subject matter.

The motion judge and Court of Appeal held that the leave requirement applied only to proceedings by the certified class members and parties to the original actions, not to new plaintiffs seeking to represent different classes.

The court dismissed the appeals, affirming that the leave provisions were limited in scope to the parties and class members bound by the original certification orders.

This is the penalty phase of a civil contempt proceeding.

The respondent, an unlicensed individual, was found to have breached a permanent injunction by misusing a licensed professional engineer's seal on building permit applications submitted to the City of Windsor.

The respondent misappropriated the seal on 29 of 48 pages bearing the engineer's seal, placed seals on drawings never prepared by the licensed engineer, altered dates on drawings, and resubmitted them as updated documents.

The court imposed a 14-day custodial sentence, finding the breach was knowing, deliberate, and repeated over several years.

The respondent showed no genuine remorse, continued to deny wrongdoing, and failed to comply with multiple court orders throughout the proceedings.

The court also awarded substantial indemnity costs of $21,144.85 payable in quarterly installments of $3,000 commencing January 1, 2026.

The appellants appealed a discipline panel's decision finding they engaged in professional misconduct by devising and sending three falsified emails to discredit former employees.

The appellants admitted to sending one email but claimed the other two were sent by a hacker.

The Divisional Court dismissed the appeal, finding the panel correctly applied the burden of proof, reasonably rejected the hacking theory, properly qualified the respondent's digital forensics expert, and appropriately drew an adverse inference against the appellants for failing to produce key evidence.

The court also upheld the panel's penalty and costs awards, noting the sanctions were measured given the fundamental dishonesty involved.

The court found Benabdallah Chouchaoui in contempt of a permanent injunction order prohibiting him and his company from holding out as engineers, engaging in the practice of professional engineering, or using an engineering seal without proper authorization under the Professional Engineers Act.

The decision details a pattern of non-compliance, including misuse of another engineer’s seal, failure to comply with court-ordered procedures, and evasive conduct.

The court awarded substantial indemnity costs to the applicant and scheduled a sentencing hearing.

The defendants in several related class actions brought motions for summary judgment, arguing that the plaintiffs' actions were statute-barred by limitation periods or were a nullity for failing to obtain leave to commence.

The court adjourned the limitation period motions, finding they overlapped with common issues in earlier certified class actions.

The court dismissed the motions based on the leave requirement, interpreting the certification orders' leave provisions as applying only to competing class actions representing the same class members, not to actions by different classes arising from the same factual matrix.

The appellant, a registered nurse practitioner, appealed a 10-month suspension imposed by the Discipline Committee for failing to maintain professional boundaries by engaging in an intimate relationship with a former patient while continuing to treat the former patient's spouse.

The appellant argued the penalty was unfit and failed to adequately account for the abusive nature of the relationship and her vulnerability.

The Divisional Court dismissed the appeal, finding the Panel made no error in principle, properly considered the mitigating psychological evidence, and imposed a fit penalty within the reasonable range given the serious impact on both patients.

This endorsement addresses the sequencing of motions in a series of related class actions.

The 2018 plaintiffs sought a temporary stay of the 2022 actions.

The defendants proposed hearing the stay motion concurrently with their summary judgment motions, citing limitation period defenses.

The 2022 plaintiffs argued for their certification motion to proceed if the stay was delayed.

The court, acting as case management judge, directed that the motion to stay be heard first, finding no significant efficiencies in combining it with the summary judgment motions and stating that certification motions should only proceed after summary judgment motions are determined.

The plaintiffs in two putative class actions sought leave to discontinue one action entirely and partially discontinue the second against all but one defendant group.

This procedural step aimed to streamline the proceedings by converting omnibus actions into separate class proceedings against distinct defendant groups.

The defendants did not oppose the requests.

The court granted leave for both discontinuances, recognizing the efficiency gains.

The College of Nurses of Ontario brought discipline proceedings against a Nurse Practitioner for failing to maintain the boundaries of the therapeutic nurse-client relationship.

The member engaged in a personal and romantic relationship with the spouse of a patient, who was also a former patient, and continued to provide care to the patient while involved with her spouse.

The Discipline Committee found the member committed professional misconduct.

The Committee ordered a 10-month suspension, an oral reprimand, and imposed terms, conditions, and limitations on the member's certificate of registration, noting the mitigating factor that the member was a victim of domestic violence and manipulation by the former patient.

The Association of Professional Engineers of Ontario (PEO) brought a discipline proceeding against a professional engineer and his firm regarding the design and permitting of a replacement residential sewage system.

The respondents admitted to professional misconduct for failing to complete contracted services, failing to submit permit applications in a timely manner, failing to adequately explain requirements to the client, and falsely advising the client that applications had been submitted.

The Discipline Committee accepted an Agreed Statement of Facts and a Joint Submission as to Penalty.

The respondents were reprimanded, the engineer was ordered to successfully complete the National Professional Practice Examination within 14 months, and the findings were ordered to be published.

The appellant appealed the dismissal of his anti-SLAPP motion under s. 137.1 of the Courts of Justice Act and the granting of summary judgment and broad injunctive relief in a defamation action brought by the respondent union and its members.

The Court of Appeal upheld the dismissal of the anti-SLAPP motion, finding no error in the motion judge's conclusion that the harm suffered by the respondents outweighed the low public interest in the appellant's expression.

However, the Court allowed the appeal in part regarding the injunctive relief, narrowing the publication ban to prohibit only defamatory statements and setting aside the restrictions on the appellant's movements and communications as overly broad and unjustified by the defamation findings.

The applicants, graduate students and teaching assistants at York University, sought judicial review of a University Tribunal decision disciplining them for misconduct during a legal strike.

The Tribunal had assumed jurisdiction under the Student Code.

The Divisional Court quashed the Tribunal's decision, holding that the essential character of the dispute was labour-related and fell within the exclusive jurisdiction of a labour arbitrator under the Labour Relations Act and the Back to Class Act.

The Court also found exceptional circumstances to hear the judicial review despite the applicants not exhausting internal appeals, and noted the Tribunal's process was procedurally unfair.

The appellant daycare appealed a Notice of Proposal to refuse to renew its licence under the Day Nurseries Act and the Child Care and Early Years Act, 2014.

Over a three-year period, the daycare had a history of numerous non-compliances and operated under several provisional and conditional licences.

The Tribunal found that the cumulative impact of the ongoing failure to comply with regulatory requirements provided reasonable grounds to believe the daycare would not be operated in accordance with the law.

The appeal was dismissed and the Director was directed to carry out the proposal to refuse to renew the licence.