C. Scott Ritchie

The plaintiffs were successful on a bifurcated motion for leave to appeal a class action certification order.

They sought costs of $65,000 on a partial indemnity basis for the portion of the motion dealing with the remaining issues.

The defendant opposed an award of costs at this time, arguing for a single costs award at the end of the appeal.

The court rejected the defendant's argument, finding that the issues were discrete and an attendance-by-attendance award was appropriate.

The court fixed costs at $55,000, payable forthwith, after adjusting for duplication of time by senior counsel.

The respondents were successful on a motion for leave to appeal and the subsequent appeal.

They sought costs of $82,692.85 for the leave motion and $108,534.16 for the appeal.

The appellant argued the amounts were excessive and sought its own costs for the leave motion.

The Divisional Court found the respondents' claimed costs excessive given the focused nature of the issues and the number of hours docketed.

The court fixed costs payable to the respondents at $120,000.00 inclusive of HST and disbursements.

The appellant courier company appealed a class action certification order, arguing the motions judge erred in certifying a common issue regarding whether its customs brokerage services were 'unsolicited' under the Consumer Protection Act.

The appellant contended that determining whether services were unsolicited required an individualized inquiry into each consumer's knowledge and intent.

The Divisional Court dismissed the appeal, finding the claim was systemic and based on standard form contracts that did not mention brokerage fees, meaning the issue could be determined on a common basis without individualized inquiries.

The plaintiffs brought a motion to adjourn an eight‑week civil trial scheduled on the running list while appeals were pending concerning a refusal to amend the statement of claim and to admit late expert valuation reports.

The defendants opposed the adjournment, arguing the appeals would not materially affect the trial and proposing procedural alternatives such as hearing evidence and awaiting appellate outcomes or bifurcating liability and damages.

Applying the principles governing adjournments, including the objective of deciding matters on their substantive merits and considerations of prejudice and fairness, the court found the pending appeals could significantly affect the pleadings and expert evidence at trial.

The court concluded that proceeding before those issues were resolved risked inefficient and potentially unfair proceedings.

The trial was therefore adjourned pending the appellate process.

The defendant, United Parcel Service Canada Ltd., sought leave to appeal an order certifying a class proceeding under the Class Proceedings Act, 1992.

The proposed appeal challenged the certification of common issues relating to whether the defendant's brokerage fee practices constituted false or unconscionable representations, forced renegotiation of contracts, or breached requirements for future performance agreements under the Consumer Protection Act, 2002.

The Divisional Court found no conflicting decisions or good reason to doubt the correctness of the motion judge's certification order.

The motion for leave to appeal was dismissed.

The defendant sought leave to appeal an order certifying a class action regarding customs brokerage fees charged on international shipments.

The core issue for the leave motion was whether the motion judge erred in certifying as a common issue whether the brokerage services were 'unsolicited services' under the Consumer Protection Act, 2002, without considering the consignees' knowledge or consent.

The Divisional Court granted leave to appeal, finding good reason to doubt the correctness of the motion judge's conclusion that consumer knowledge is irrelevant under section 13 of the Act, and noting that the issue is a matter of public importance.

The defendant brought a motion for directions to adjourn its motion for leave to appeal a class action certification order pending the disposition of its appeal of a summary judgment order to the Court of Appeal.

The plaintiffs brought a cross-motion to dismiss the leave motion for failing to name a hearing date.

The Divisional Court dismissed both motions, holding that the certification order frames the proceedings and the leave motion must be heard expeditiously before the summary judgment appeal.

The court declined to dismiss the leave motion on technical grounds and ordered it to be perfected and heard at the earliest opportunity.

The solicitor brought a motion seeking to stay an ongoing assessment of legal accounts before an assessment officer, arguing that issues of law raised in the assessment exceeded the officer’s jurisdiction under the Solicitors Act.

The client opposed, asserting the assessment officer had jurisdiction and that the objection was raised too late after the solicitor had already participated in the assessment process.

The court reviewed the limited jurisdiction of assessment officers, noting they determine quantum but cannot resolve genuine disputes about retainers or broader legal issues.

Because the solicitor intended to raise issues including champerty, maintenance, and intentional interference with contractual relations, the court held that these matters required determination by a judge.

The assessment proceeding was therefore stayed on condition that the solicitor commence an action or application within 60 days to determine the adequacy of the account and related issues.

Following the allowance of the Crown's appeal, the Crown sought costs of the action against the Litigation Administrator and Litigation Guardian, solely to support a Rule 57.07 award of costs against Class Counsel personally.

The Court of Appeal dismissed the request, finding that while Class Counsel's conduct in pursuing the matter following the Supreme Court's decision was questionable, it did not constitute bad faith or the type of conduct required to found an order for costs against a solicitor personally under the test in Young v. Young.

The cost orders of the trial judge were set aside as a result of the original order allowing the appeal.

The Crown appealed a motion judge's decision awarding $4.6 billion in damages to a class of disabled veterans for the Crown's failure to invest or pay interest on administered pension funds prior to 1990.

The Court of Appeal allowed the appeal, finding that a previous Supreme Court of Canada decision upholding the validity of s. 5.1(4) of the Department of Veterans Affairs Act finally ended the litigation.

The Court held that s. 5.1(4) constituted a complete bar to the class's claims for damages, and that the motion judge erred in interpreting it as only a partial bar.

Furthermore, the Court found that the claims were time-barred and that the doctrine of equitable fraud did not apply to toll the limitation period.

Following the dismissal of the appellants' appeal of a refusal to certify a class proceeding regarding pension plan amendments, the respondents sought costs.

The appellants argued that no costs should be awarded, relying on the public interest and novel point of law provisions under the Class Proceedings Act, 1992.

The Divisional Court found no special circumstances to depart from the general rule that costs follow the event.

Applying the overriding principle of reasonableness, the court awarded costs to the respondents, including disbursements for a responding report on a fresh evidence motion.

The appellants appealed the decision of the motion judge refusing to certify their proposed class proceedings against the Ontario Northland Transportation Commission regarding amendments to its pension plan.

The appellants alleged the pension plan was an irrevocable trust and the amendments constituted a breach of trust.

The Divisional Court dismissed the appeals, finding that the motion judge made no errors of law, no palpable and overriding errors of fact, and that her conclusions on mixed fact and law regarding common issues, preferable procedure, and representative plaintiffs were reasonable and entitled to deference.

The appellant, a unionized employee, sued his former employer and union executive for allegedly misrepresenting the terms of an early retirement agreement.

The employer and union successfully moved to dismiss the action for lack of jurisdiction.

On appeal, the Court of Appeal affirmed the dismissal, holding that the dispute arose from the interpretation and application of the collective agreement and the union's duty of fair representation.

Under the Weber principle and the Labour Relations Act, such disputes fall within the exclusive jurisdiction of an arbitrator or the labour relations board, not the courts.

In an addendum on costs following an appeal, the Court of Appeal for Ontario awarded costs to the respondents.

The costs were fixed on a partial indemnity scale in the amount of $6,687.50 all inclusive.

The appellant purchasers entered into Agreements of Purchase and Sale with the respondent vendors to acquire farmlands for a golf course development.

The agreements were conditional on obtaining severance approvals for estate lots to be retained by the vendors.

The purchasers waived this condition and sought to close without the approvals, which the vendors refused.

The trial judge found the waiver clause ambiguous and held that the true intention of the parties required severance approvals prior to closing, declaring the agreements null and void and ordering the deposits forfeited.

The Court of Appeal dismissed the appeal, finding no palpable or overriding error in the trial judge's interpretation and confirming that the purchasers' failure to perform the contract justified the forfeiture of the deposits.

The appellants appealed an order refusing to enjoin the respondents from pursuing a motion in the United States to access testimony and documents obtained through the US discovery process.

The Court of Appeal dismissed the appeal, finding no comity concerns or overriding policy issues that would warrant an injunction.

The Court held that the respondents were legitimately attempting to gather evidence in a foreign jurisdiction according to its rules, and that the US judge was in the best position to determine whether and how to vary the protective order.

The appellant brought a motion to introduce fresh evidence and to amend his statement of claim on appeal.

The court granted both requests, finding that the interests of justice favoured admitting the evidence, which had been read to the motions judge but not marked as an exhibit.

The court also permitted the amendment to the statement of claim, which effectively withdrew an admission, and imposed terms to address any prejudice to the respondents.

The defendants appealed an order dismissing their motion to enjoin the plaintiffs from seeking access to discovery evidence in parallel U.S. anti-trust litigation.

The defendants argued that the plaintiffs were attempting to circumvent Ontario's discovery rules by obtaining discovery in the U.S. before certification of the class action.

The Divisional Court dismissed the appeal, finding that the plaintiffs were merely seeking passive access to evidence already discovered in the U.S. litigation, rather than actively conducting discovery.

The court held that such evidence gathering does not offend Ontario's discovery rules or the implied undertaking rule, and that the U.S. court should determine whether to grant access under its own protective order.