Cheryl Woodin

The plaintiff sought certification of a class action against Volkswagen and Audi entities regarding diesel vehicles fitted with a defeat device to subvert emissions testing.

The Divisional Court had previously remitted the certification motion back to the Superior Court to rehear the balance of the certification motion, apart from the questions of harm and methodology for measuring damages.

The court certified the class action, finding that the pleadings disclosed causes of action for misrepresentation, breach of the Competition Act, breach of the Canadian Environmental Protection Act, and breach of certain provincial consumer protection statutes.

Claims for breach of warranty and unjust enrichment were struck.

The court certified several common issues but declined to certify issues requiring proof of individual reliance or disgorgement.

The plaintiffs, representing a class of small to medium-sized businesses, sought coverage under their business interruption insurance policies for losses sustained due to the COVID-19 pandemic and related civil authority orders.

The court held a common issues trial to determine whether the presence of the SARS-CoV-2 virus or government lockdown orders could cause 'physical loss or damage to property' within the meaning of the policies.

The court concluded that the virus does not physically alter or damage inanimate surfaces, and that the loss of use of the premises due to government orders does not constitute physical loss or damage.

Consequently, the court answered the certified common issues in the negative, finding no coverage under the business interruption provisions.

The defendants in a certified class action regarding COVID-19 business interruption insurance claims brought a motion seeking joint adjudication and common case management of common questions across approximately 79 overlapping proceedings.

The motion was opposed by several plaintiffs in individual actions who wished to proceed independently.

The court dismissed the motion, affording deference to a prior case management decision that declined to stay the individual actions, and finding that forcing joint adjudication would inappropriately undermine the plaintiffs' right to opt out of the class proceeding and cause undue delay.

The plaintiffs sought costs of $354,759.57 following a certification motion in a class action regarding allegedly defective water pumps in Ford vehicles.

The defendants argued that each party should bear their own costs due to the plaintiffs' limited success, as only one of fifteen causes of action was certified and the class size was significantly reduced.

The defendants also sought costs for their successful preliminary motion to strike evidence.

The court awarded the defendants $16,612.70 for the preliminary motion.

For the certification motion, the court found that a reduction in the plaintiffs' costs was justified to discourage overinclusive class membership, awarding the plaintiffs $197,750 in fees payable forthwith and $97,537.56 in disbursements payable in the cause.

In a proposed class action regarding allegedly defective water pumps in Ford vehicles, the defendants brought a preliminary motion to strike portions of an affidavit filed by the plaintiffs' proposed class counsel.

The affidavit attached unverified online complaints from a U.S. database.

The court granted the motion to strike, finding that the complaints were inadmissible hearsay and that their prejudicial effect outweighed any minimal probative value they might have had for imputing knowledge of the defect to the defendants.

The plaintiffs sought to certify a $1.1 billion class action against Ford Motor Co. alleging that certain vehicles contained a defective internal water pump that could cause catastrophic engine failure.

The court analyzed the claims under the Class Proceedings Act, 1992.

Applying the Supreme Court's decision in Maple Leaf Foods, the court struck the claims for pure economic loss for class members whose water pumps had not yet failed, finding no imminent danger.

The court also refused to certify the breach of contract, consumer protection, and unjust enrichment claims.

The court certified the action solely for design negligence for class members who actually experienced a water pump failure resulting in property damage or personal injury.

The plaintiff sought approval of a $4.95 million settlement, class counsel fees, and a representative plaintiff honorarium in a class action alleging the defendants misrepresented vehicle fuel economy ratings.

The court initially rejected the settlement approval based on a take-up analysis, but approved it after class counsel provided a revised analysis showing the settlement amount was fair relative to the maximum recoverable at trial.

The court also approved a modified honorarium of $3,000 for the representative plaintiff and class counsel's 33 percent contingency fee.

Following the dismissal of a motion brought by the representative plaintiffs in a settlement-approved class action, the defendants sought costs of $17,840 on a partial indemnity basis, requesting they be paid personally by class counsel.

Class counsel argued that awarding costs against them personally would undermine access to justice.

The court held that the defendants' request for costs against class counsel personally was improper, as class counsel was not a party and had committed no misconduct.

However, the court also rejected class counsel's access to justice arguments, finding that the representative plaintiffs, as the losing parties, were responsible for costs in the normal course.

Costs of $17,840 were awarded to the defendants, payable by the representative plaintiffs.

In a class action settlement regarding Volkswagen diesel vehicles, the plaintiffs brought a motion seeking production of data relating to VW's investigation of post-repair lag and surge issues, and an extension of the claims deadline.

The plaintiffs argued that the Settlement Agreement required disclosure of this data to allow class members to make informed decisions.

The court dismissed the motion, finding that the lag/surge issue was a safety concern outside the ambit of the Settlement Agreement's provisions on reduced performance.

Consequently, the court held it had no jurisdiction under the settlement to order production of the data or to extend the claims deadline.

Following the dismissal of the plaintiffs' motion for pre-discovery production from non-party Volkswagen (VW), VW sought partial indemnity costs of $29,487.29.

The plaintiffs argued the motion was straightforward and suggested an award of $5,000.

The court noted the motion was of substantial importance to both parties but found some evidence of over-lawyering by VW.

Applying the factors under Rule 57.01(1), the court fixed costs at $22,000 all inclusive.

The plaintiffs in a class proceeding brought a motion to determine whether a 'loan forgiveness' benefit under a settlement agreement was triggered.

The benefit was payable if there was no Approved Emissions Modification (AEM) by June 15, 2017.

The US EPA approved a fix on May 19, 2017, but it was not implemented in Canada until June 23, 2017.

The court held that the definition of AEM, which required the fix to be 'implementable in Canada', meant available within a reasonable time, not immediately available.

Therefore, the AEM existed by the deadline and the loan forgiveness benefit was not triggered.

Following a successful motion by the defendants to prevent the plaintiffs from using extra-jurisdictional procedures to acquire documents from non-parties, the defendants sought partial indemnity costs of $75,365.38.

The plaintiffs argued for reduced costs of $15,000, citing the novelty and public interest of the issue under section 31 of the Class Proceedings Act, 1992.

The court rejected the plaintiffs' argument, finding the issue was not legally novel in a way that justified denying costs and noting the plaintiffs' conduct was improper.

The court awarded the defendants their costs as claimed.

Telecommunications companies sought leave to appeal certification orders permitting class proceedings concerning cellular phone billing practices.

The proposed class actions alleged that the defendants breached contracts, engaged in deceptive practices contrary to the Consumer Protection Act, 2002, and were unjustly enriched by rounding call durations up to the nearest minute under plans described as billed “per minute.” The moving parties argued that individual contractual contexts prevented the existence of a common issue and that certification was therefore inappropriate.

The court held that the meaning of the contractual phrase “per minute billing” was a common issue capable of resolution across the class, particularly given the standardized and adhesive nature of the consumer contracts.

Leave to appeal was refused and the certification orders were left undisturbed.

Consumers brought proposed class proceedings against wireless service providers alleging that the companies billed cellular calls by rounding up partial minutes to the next full minute without adequate disclosure.

The plaintiffs advanced claims in breach of contract, breach of the Consumer Protection Act, 2002, and unjust enrichment, seeking certification of national and provincial classes.

The court held that the pleadings disclosed viable causes of action and that there was some basis in fact for common issues regarding the interpretation of standardized contracts, alleged misrepresentations about available minutes, and the uniform rounding‑up practice.

The court also held that class proceedings were the preferable procedure given the large class size and relatively small individual claims.

The actions were certified as class proceedings with defined classes and common issues.

Following the dismissal of a motion to certify a class proceeding related to policing during the G20 Summit, the court determined the costs payable to a successful defendant.

The plaintiff argued that no costs should be ordered because the case raised novel legal issues and matters of public interest.

The court held that although the action involved issues of public interest, the certification motion was seriously flawed and the novelty argument was unfounded.

Applying the governing principles for class proceeding costs and considering comparable certification cost awards, the court concluded that a reduced costs award was appropriate.

Costs were fixed at $200,000 in fees plus disbursements and applicable taxes, payable by the plaintiff and indemnified by the Class Proceedings Fund.

The plaintiff sought to certify a class action against multiple police services and government entities regarding mass arrests and detentions during the 2010 G20 Summit in Toronto.

The court dismissed the certification motion, finding that while some causes of action (like false imprisonment and battery) were properly pleaded against the Toronto Police Services Board, the claims against other defendants failed.

Crucially, the plaintiff failed to satisfy the identifiable class, common issues, and preferable procedure requirements of the Class Proceedings Act due to the highly variable individual conduct of protesters and the impermissible use of subclasses.