Dana M. Peebles

The Defendant, Bell Mobility Inc., brought a motion to amend the certified class definition in a class action, seeking either to exclude business customers or to compel the addition of a new sub-class with a separate representative plaintiff.

The Defendant argued that business customers might be statute-barred or had distinct interests requiring separate representation.

The court dismissed the motion, finding that the limitation issue was not ripe for determination on a class-wide basis as it required individualized discoverability analysis.

The court also declined to create a new sub-class, emphasizing judicial economy and the principle against "litigation in installments" given the advanced stage of the proceedings.

The plaintiff sought certification of a class action alleging that Uber improperly calculated Goods and Services Tax (GST) on pre-discounted Uber Eats orders, claiming violations of the Excise Tax Act (ETA), provincial consumer protection legislation, the Competition Act, breach of contract, and unjust enrichment.

The court dismissed the certification motion, primarily finding that the claim was barred by ss. 224.1 and 312 of the ETA.

The court characterized the action as an attempt to recover tax outside the comprehensive statutory scheme provided by the ETA, which includes a rebate mechanism.

Additionally, the court identified other deficiencies, including inadequate pleadings for certain causes of action, issues with class identifiability due to varying promotional language, and a lack of commonality among proposed issues, concluding that a class proceeding was not the preferable procedure.

This is a privacy law class action concerning a data breach at LifeLabs.

The plaintiffs moved for court approval of a settlement agreement and class counsel fees.

The court approved the settlement as fair, reasonable, and in the best interests of the class, noting the low likelihood of success at trial given recent legal developments regarding data breach claims and lack of proven damages.

Class counsel's requested fee of 25% of the settlement funds was also approved.

However, the court denied the representative plaintiffs' request for a $2,500 honorarium each, finding their contribution, while valuable, was not exceptional enough to warrant such an award.

The defendants, Uber Canada Inc. et al., brought a motion for a protective order to safeguard commercially sensitive information related to class size and promotional data, which they were compelled to disclose under the Class Proceedings Act, 1992, in a putative class action.

The plaintiff did not oppose the motion.

Applying the three-part test from Sherman Estate v. Donovan, the court found a strong public interest in protecting such information, that no reasonable alternatives existed, and that the benefits of the order outweighed any negative effects on the open court principle.

The motion was granted, and the protective order was issued.

The plaintiff in a putative class action sought court approval for a third-party funding agreement.

The agreement aimed to indemnify the plaintiff for adverse costs in exchange for a share of any litigation proceeds, as the plaintiff was unsuccessful in obtaining financing from the Class Proceedings Fund.

The court reviewed the agreement against the requirements of the recently amended s. 33.1 of the Class Proceedings Act, 1992, which codifies the approval process for such agreements.

The court found the agreement fair and reasonable, ensuring plaintiff control over litigation, and confirmed the funder's financial capacity.

The defendants did not oppose the motion.

The motion was granted, and the third-party funding agreement was approved.

The Financial Services Regulatory Authority of Ontario (FSRA) appealed a Superior Court decision that dismissed its motion to stay a class proceeding initiated by Brewers Retail Inc. and a committee of pension plan members.

The class proceeding sought court approval of a comprehensive settlement regarding pension indexing issues, including amendments to the pension plan and trust, and compensation for known and unknown plan members.

FSRA argued that the Financial Services Tribunal (FST) had exclusive jurisdiction over these matters under the Pension Benefits Act (PBA) and the Financial Services Tribunal Act, 2017 (FSTA).

The Court of Appeal upheld the motion judge's finding that the Superior Court had concurrent jurisdiction, noting that neither the FSTA nor the PBA contained clear and unequivocal language ousting the court's inherent equitable jurisdiction to approve settlements and vary trusts.

The court affirmed that the class proceeding was the preferable procedure, as the FST lacked the power to approve the settlement or vary the pension trust, and the class action provided the necessary finality for all affected plan members.

This is a motion for certification for settlement purposes in a proposed privacy law class action concerning a data breach affecting 8.6 million customers of LifeLabs.

The parties reached a settlement agreement, and the plaintiffs sought court approval for certifying the action for settlement, approving the settlement notices (Short and Long Form), and a plan for their dissemination.

The court granted the motion, finding that all criteria for certification were met, albeit less rigorously applied in the settlement context.

The settlement involves a guaranteed fund of $4.9 million and a contingent fund of $4.9 million, with claimants receiving a minimum of $50.

The plaintiff in a securities class action brought a motion to discontinue the action against the underwriter defendants and to unconditionally certify the primary market misrepresentation claim against the remaining corporate and individual defendants.

The action had been stalled due to an appeal regarding the disclosure of prospectus purchasers needed to find a representative plaintiff against the underwriters.

The court approved the discontinuance under section 29 of the Class Proceedings Act, 1992, finding it was in the best interests of the class to avoid further delay and proceed against the remaining defendants, who were jointly and severally liable and financially capable of satisfying a judgment.

This is a costs endorsement following a judgment certifying a class action settlement.

The Financial Services Regulatory Authority (FSRA) intervened to oppose the certification and sought a stay, but was entirely unsuccessful on the merits.

The court considered costs submissions from Brewers Retail Inc. (Applicant), the Committee representing the proposed class of pensioners (Respondents), and FSRA (Intervenor).

The court denied FSRA's request for costs, finding its intervention caused additional costs for other parties.

The court awarded Brewers Retail Inc. $159,000 and the Committee $51,000, both inclusive of disbursements and HST, to be paid by FSRA, finding their efforts necessary and reasonable given FSRA's strenuous opposition.

The moving parties (defendants) brought a motion to stay a production order issued by Perell J. pending the disposition of their appeal.

The Divisional Court granted the motion and ordered the stay.

The applicant employer sought to certify a class action on consent for settlement purposes regarding a long-standing dispute over pension plan indexing amendments.

The provincial pension regulator, FSRA, intervened to oppose the settlement and sought to stay the court proceedings in favour of a regulatory hearing before the Financial Services Tribunal.

The court granted FSRA leave to intervene but dismissed the stay motion, finding it had jurisdiction to adjudicate the pension dispute and that a class proceeding was the preferable procedure to achieve finality for all known and unknown plan members.

The action was certified as a class proceeding.

The moving parties sought an interlocutory stay of an order requiring them to disclose identifying information of primary market investors, pending their motion for leave to appeal that order.

The Divisional Court granted the stay on an interim basis, finding that the motion for leave to appeal had some prospect of success, the moving parties would suffer irreparable harm if the disclosure was made before the leave motion was decided, and the balance of convenience favoured a brief delay.

The court emphasized that interim stays pending leave to appeal should be addressed expeditiously to minimize prejudice.

The plaintiff brought a proposed class action against Aphria Inc., its directors/officers, and several underwriters, alleging misrepresentations in both the primary and secondary markets regarding two corporate acquisitions.

The plaintiff sought leave to discontinue certain claims, leave to assert secondary market claims under the Securities Act, and certification of the class action.

The court granted the discontinuances and leave for the secondary market claims, certifying them on consent.

For the primary market claims against the underwriters, the court held that the 'Ragoonanan Principle' still applies in Ontario, meaning a representative plaintiff must have a direct cause of action against each defendant.

Since the plaintiff only purchased shares in the secondary market, it could not represent primary market purchasers.

However, the court conditionally certified the primary market claims, giving class counsel 100 days to recruit an eligible representative plaintiff who purchased shares in the prospectus offering.

The plaintiff brought an omnibus motion to implement a Court of Appeal judgment in favour of a class of over 35,000 retirees regarding pension indexation.

The court approved the implementation methodology, which provides an estimated $103 million present value recovery to the class.

The court also approved class counsel fees of $10 million, a $15,000 honorarium for the representative plaintiff, and the Class Proceedings Fund levy.

Finally, relying on section 12 of the Class Proceedings Act, the court eliminated the right of class members to opt out, finding that the declaratory nature of the judgment and the 100% recovery made an opt-out right unnecessary and potentially unjust.

The plaintiffs brought a motion to approve a class action settlement arising from data breaches at BMO and CIBC's Simplii Financial, which affected over 120,000 clients.

The hackers accessed personal information and demanded ransom payments.

The proposed settlement provided for a total payment of approximately $23 million, distributed among class members based on the type of information compromised and time spent addressing the breach.

The court applied the Mancinelli factors and found the settlement to be fair, reasonable, and in the best interests of the class, noting the litigation risks associated with the tort of intrusion upon seclusion for third-party hacker intrusions.

In a class proceeding against the Bank of Montreal, class counsel brought a motion for approval of their fees and an honourarium for the representative plaintiffs.

The court approved a $5,000 honourarium, finding the representative plaintiffs meaningfully contributed to access to justice and assumed active roles without financial risk.

The court also approved class counsel's fees at 25% of the settlement funds, totaling over $3.6 million plus disbursements, noting the 2.6 multiplier was appropriate given the significant risks assumed by counsel.

The defendants in a proposed privacy class action regarding a data breach brought a motion to transfer and stay four identical Small Claims Court actions.

The court held that under s. 13 of the Class Proceedings Act, the small claims should be temporarily stayed pending the outcome of the certification motion, as allowing them to proceed would circumvent the opt-out provisions of the Act.

However, the court declined to transfer the actions to the Superior Court, finding such a transfer premature until the certification motion is decided.

A case management conference was held to schedule two motions for leave to appeal a decision appointing carriage counsel in a class action.

The court established a timetable for the exchange of motion materials, directed the creation of a joint record and electronic drop box, and ordered that the motions proceed in writing before a three-judge panel of the Divisional Court.

This appeal concerned the proper calculation of cost-of-living adjustments under a pension plan, specifically the rounding policy for the annual percentage increase in the Consumer Price Index (CPI).

The motion judge had found the respondents were entitled to round the CPI increase to two decimal points (1.49%), resulting in a 1% pension increase.

The appellant argued the plan required adherence to Statistics Canada's one-decimal policy (1.5%), which would result in a 2% pension increase.

The Court of Appeal found the motion judge made a palpable and overriding error of fact by ignoring uncontradicted evidence that the two-decimal rounding provision in the plan would still have meaning even with the Statistics Canada one-decimal policy for the Pension Index, particularly for recently retired pensioners.

The court held that the plan's language required adopting Statistics Canada's one-decimal policy for both the annual percentage increase and the CPI.

The appeal was allowed, and summary judgment was granted in favour of the appellant, leading to a 2% pension increase for 2017.

Following the dismissal of the plaintiff's class action on summary judgment, the parties made written submissions on costs.

The defendants sought full or substantial indemnity costs, while the Class Proceedings Fund argued for a 30% reduction on the basis that the litigation was brought in the public interest.

The court rejected both arguments, finding that the defendants' discounted fee arrangement and the breach of trust pleading did not justify an elevated costs scale, and that the pension calculation dispute was a private financial matter rather than public interest litigation.

The court exercised its discretion to award the defendants partial indemnity costs fixed at $200,000 for fees plus disbursements.