Christopher A. Wayland

The plaintiff obtained an ex-parte Mareva injunction and an interim preservation order against the defendants, who allegedly defrauded a government COVID-19 relief program of at least $11 million.

The moving party brought a motion to vary the Mareva injunction to access frozen funds for legal and living expenses.

The court dismissed the motion, finding that the moving party failed to make full disclosure of his worldwide assets and did not discharge the onus of proving that he and his family had no other assets available to pay their expenses.

The plaintiff's class action for systemic negligence in bail hearings was denied certification.

On appeal, the Crown raised the new Crown Liability and Proceedings Act, 2019 (CLPA) as a bar to the negligence claim.

The Divisional Court remitted this specific issue to the motion judge.

The judge found that the CLPA did not substantially change the common law on Crown immunity and that the plaintiff's claim, which challenged high-level policy decisions regarding resource allocation and management of the criminal justice system, remained non-justiciable as a core policy matter, both under the CLPA and pre-CLPA common law.

Consequently, the negligence claim was deemed dismissed without costs under s. 11(8) of the CLPA.

This endorsement addresses the costs of a motion where the Defendant was granted leave to amend its Statement of Defence late in the proceedings.

The Defendant sought costs for this motion, which the Plaintiff opposed, arguing that costs should instead be awarded to the Plaintiff to compensate for the prejudice caused by the late amendment.

The court, exercising its discretion under section 131 of the Courts of Justice Act, decided not to award costs for or against either party for the leave motion, finding the Plaintiff's opposition to be reasonable.

The defendant brought a motion for leave under Rule 48.04 to seek leave to amend its statement of defence under Rule 26.02(c), as the action had already been set down for trial.

The plaintiff opposed the motion, arguing that the delay in seeking the amendments was inordinate and presumed prejudice.

The court held that the mandatory language of Rule 26.01 governed, requiring amendments to be allowed unless there is non-compensable prejudice.

Finding no prejudice that could not be compensated in costs, the court granted the defendant leave to bring the motion and leave to amend the pleading.

This decision addresses a rehearing on class counsel's legal fees and the calculation of the Class Proceedings Fund (CPF) levy in a class action settlement.

The court approved the 25% contingency fee, finding it fair and reasonable based on the risk incurred and results achieved, despite an earlier judge's concerns about the settlement's modesty.

The court also determined that the CPF levy should be calculated on the total amount class members were entitled to receive ($10.2 million), rather than the amount actually paid out ($7.5 million), aligning with the settlement agreement and O. Reg. 771/92.

The court heard multiple motions to strike claims against Her Majesty the Queen in Right of Ontario (HMQ), various Children's Aid Societies (CAS), and an expert witness (Julia Klein).

These claims arose from the use of unreliable hair follicle drug testing by the Motherisk Drug Testing Laboratory in child welfare investigations and proceedings, leading to children's apprehension and, in some cases, Crown wardship.

The plaintiffs alleged negligence, breach of Charter rights, bad faith, and other torts against the defendants.

The court granted all motions to strike, finding that HMQ and the CAS did not owe a private law duty of care to the parents or children in their supervisory or investigative roles, as their paramount duty was to the child's best interests.

Many claims were also deemed impermissible collateral attacks on existing court orders.

The claim against the expert witness, Julia Klein, was struck due to witness immunity and a lack of causal connection between her testimony and the alleged damages.

The appellant, as representative plaintiff in a class action on behalf of approximately 4,500 former students of three provincial schools for the Deaf, appealed from a motion judge's order approving class counsel's legal fees subject to conditions.

The class action involved allegations of physical, sexual, and emotional abuse, and resulted in a $15 million settlement.

The motion judge approved fees of $3.75 million (25% of the settlement) but imposed conditions requiring class counsel to donate $1.5 million to a charity for the Deaf and made the remaining fees subject to proportionate reduction based on settlement fund reversion.

The Court of Appeal found the motion judge erred in unilaterally imposing the charitable donation condition without party consent, as this altered the negotiated settlement agreement.

The court set aside the order and remitted the matter for a new hearing before a different judge.

This decision grants an unopposed motion for class certification in an action against the Province of Ontario concerning the alleged unlawful use of youth segregation in justice facilities.

The class is defined as persons under 18 placed in youth segregation for more than 6 consecutive hours without meaningful human contact between April 1, 2004, and December 17, 2018.

The common issues certified include claims of negligence, breach of fiduciary duty, and violations of sections 7, 9, and 12 of the Canadian Charter of Rights and Freedoms.

This class action concerned historical abuse at the W. Ross MacDonald School for the Blind.

The court approved an $8,000,000 settlement fund, finding it fair, reasonable, and in the best interests of the class, particularly given the litigation risks and the advanced age of many class members.

The settlement provided for a paper-based, non-adversarial claims process with compensation up to $45,000 per claimant, free from tax claw-backs.

The court also approved a $15,000 honorarium for the representative plaintiff and fixed class counsel's legal fees at $2,412,534 plus HST and disbursements, emphasizing the risks undertaken and results achieved over mere docketed time.

Following a successful motion by the third party NGOs to strike the Crown's third party claims in a proposed class action regarding youth detention centres, the NGOs sought costs of $47,695.45 on a partial indemnity basis.

The Crown argued the amount was excessive and suggested $16,500, contending that the NGOs were only successful due to late amendments to the plaintiff's pleadings.

The court rejected the Crown's argument, finding the NGOs were entitled to costs for work both before and after the amendments, but reduced the claimed amount to $35,000 all inclusive as being within the reasonable expectations of the unsuccessful party.

In a proposed class action regarding youth detention centres, the plaintiff sued the Crown for negligence, breach of fiduciary duty, and Charter violations, explicitly limiting the claim to the Crown's several liability.

The Crown issued third party claims against the NGOs that operated some of the centres.

The plaintiff and the NGOs moved to strike the third party claims.

The court granted the motions, applying the principle that where a plaintiff limits their claim to the defendant's proportionate degree of fault, a third party claim for contribution and indemnity is legally untenable.

In a proposed class action regarding the use of secure isolation in youth detention centres, the Crown brought a motion seeking production of the representative plaintiff's Youth Records.

The plaintiff opposed, arguing the Superior Court lacked jurisdiction to order production under the Youth Criminal Justice Act.

The court held that while it could not directly order production of the records, it had jurisdiction under the Class Proceedings Act to order the plaintiff to apply to the Youth Justice Court for access to the records.

The court ordered the plaintiff to make the application, failing which the proposed class action would be stayed.

This motion concerned the certification of a class proceeding against the provincial Crown for alleged physical, emotional, and sexual abuse perpetrated against students at three residential schools for the deaf.

The action pleaded claims in negligence and breach of fiduciary duty, as well as Family Law Act derivative claims.

The motion for certification was brought on consent and was granted, as all criteria under the Class Proceedings Act, 1992 were satisfied.

The accused brought a procedural motion within a Rowbotham application seeking permission to file his Legal Aid Ontario file with the court without disclosing it to the Crown.

He argued the file contained presumptively privileged information and disclosure could prejudice trial fairness given the fraud-related charges.

The Crown agreed that privileged portions could be redacted and undertook not to use fresh disclosure from the file at trial.

The court held that relevant non-privileged information from the Legal Aid file may be necessary to assess a Rowbotham application and that the adversarial process requires disclosure to permit cross‑examination and submissions.

Given the availability of redactions and the Crown’s undertaking, the court found the risk of prejudice minimal and rejected the request to file the materials ex parte.

The appellant, a medical resident, appealed a decision of the Health Professions Appeal and Review Board confirming the refusal to issue him a certificate of registration.

The refusal was based on outstanding, unproven criminal charges of sexual assault.

The appellant argued the Board misapplied the law and violated the presumption of innocence.

The Divisional Court dismissed the appeal, finding the Board's decision reasonable as the regulatory scheme places the onus on the applicant to demonstrate good character, and considering unproven charges in the context of public interest does not violate the presumption of innocence.

The defendant moved for summary judgment to strike the plaintiff's claims in strict liability, negligence, and nuisance arising from environmental contamination.

The strict liability claim was struck on consent.

The court held that the plaintiff's claims for damages other than property devaluation were statute-barred because the limitation period resumed when the class action abandoned those claims in 2002.

However, the claim for property devaluation was not statute-barred as the limitation period remained suspended until the plaintiff was excluded from the class in 2009.

The court found a genuine issue for trial regarding the remaining claims.

The appellant physician was found guilty of professional misconduct for improperly conducting a breast examination.

The Discipline Committee imposed a permanent condition on his certificate of registration restricting his practice to male patients.

The physician appealed the penalty.

The Divisional Court allowed the appeal, holding that section 51(2)3 of the Health Professions Procedural Code permits conditions for a 'specified or indefinite' period, but 'indefinite' does not mean 'permanent'.

The Committee therefore lacked jurisdiction to impose a permanent restriction.

The College of Physicians and Surgeons of Ontario brought a motion to introduce fresh evidence on a physician's appeal from a 2006 penalty decision.

The proposed fresh evidence was a 2007 decision finding the physician guilty of professional misconduct for breaching an undertaking.

The Divisional Court dismissed the motion, holding that a subsequent conviction is not relevant to assessing the reasonableness of a prior penalty decision.

The Court noted that allowing such evidence would defeat the finality of the trial process and that the College could have adduced the underlying facts of the breach at the original penalty hearing.

The Crown appealed an order quashing the validation of service ex juris on the respondent foreign corporations for summonses relating to fraud charges.

The Crown argued that mailing the summonses from Canada constituted service in Canada and that the Provincial Offences Act and Criminal Code authorized such service.

The Court of Appeal dismissed the appeal, affirming that in penal proceedings, a summons cannot be served outside Canada without express statutory authorization, which neither the Criminal Code nor the Provincial Offences Act provides.

Following a successful appeal, the appellant sought clarification on whether the $85,000 costs award included the costs of the respondents' motions for leave to appeal to the Divisional Court.

The Court of Appeal confirmed that these costs were inadvertently omitted and fixed them at $22,000 and $12,000 respectively.

The court declined to determine the scale of costs for the underlying summary judgment motions, leaving that issue to the motion judge.