David Andrew Di Paolo

The Court of Appeal for Ontario dismissed an appeal by Denver Davis from two orders: one staying a proposed class action against Amazon in favour of arbitration, and the other dismissing the motion for certification of the class action.

The class action alleged Amazon was liable for breach of employment contracts, breach of good faith, unjust enrichment, and negligence, and sought damages on behalf of approximately 73,000 delivery workers.

The court held that the motion judge did not err in finding that Amazon was not a common employer of the delivery associates (DAs) employed by third-party logistics companies, and that the requirements for certification were not met.

The appeal was dismissed and costs awarded to the respondents.

The Ontario Securities Commission alleged that the respondents engaged in an illegal distribution of Canopy Growth Corporation shares and that Cormark and Kennedy failed to deal fairly, honestly, and in good faith with Canopy, or alternatively, acted contrary to the public interest.

The allegations centered on a series of transactions involving a private placement, a securities loan agreement, and short sales executed when Canopy was added to the TSX composite index.

The Capital Markets Tribunal dismissed all allegations, finding that the transactions did not constitute an illegal distribution under the extended definition, Canopy was not a client of Cormark or Kennedy, and the respondents did not mislead Canopy or otherwise engage the Tribunal's public interest jurisdiction.

The defendant FundEX brought a motion for default judgment on its crossclaim against the co-defendants (the Reeves defendants) to recover indemnity for a $2.29 million settlement paid to the plaintiffs.

The plaintiffs' action alleged that Reeves, a FundEX employee, defrauded them of their investments.

FundEX settled the main action and noted the Reeves defendants in default on the crossclaim.

The court dismissed the motion for default judgment because FundEX's crossclaim failed to plead the material facts necessary to claim indemnity for a settlement under section 2 of the Negligence Act.

The dismissal was without prejudice, granting FundEX leave to amend its crossclaim and bring a new motion.

In an enforcement proceeding, the moving parties (Cormark and Kennedy) sought a summons directing a non-party (Canopy) to produce documents listed in privilege logs previously provided to Staff.

The Capital Markets Tribunal found that the documents appeared relevant to the moving parties' ability to make full answer and defence, particularly regarding Canopy's state of mind.

The Tribunal issued the summons and ordered that the documents be produced to a third-party referee to conduct a privilege review, as the logs raised questions about the validity of the solicitor-client privilege claims.

In a proposed employment law class action, Amazon successfully resisted certification and obtained a stay for certain claims.

Amazon sought approximately $2.0 million in costs, while the plaintiff, Denver Davis, argued for an award of around $400,000.

The court, applying principles of reasonableness and access to justice in class proceedings, awarded Amazon costs on a partial indemnity basis of $750,000, finding both parties' requested amounts to be unreasonable.

The decision emphasized that costs should reflect what an unsuccessful party could reasonably expect to pay, not necessarily the successful party's actual costs, and acknowledged the public interest element in the plaintiff's claim.

The plaintiff in a proposed class action sought an extension of time to appeal a stay decision and an order to transfer and combine that appeal with a certification decision appeal, both arising from a single set of reasons by the class action judge.

The class action judge had dismissed certification and stayed claims for some class members due to arbitration agreements.

The Court of Appeal granted the extension and ordered the transfer and combination of appeals, finding strong reasons related to the administration of justice, given the interconnectedness of the underlying decisions and the risk of inconsistent results if heard separately.

In a proposed employment misclassification and common employer class action brought on behalf of delivery workers, the court stayed the claims of workers bound by arbitration agreements and dismissed certification.

Applying the stay framework under the Arbitration Act, 1991 and the unconscionability analysis from the Supreme Court’s arbitration jurisprudence, the court held the arbitration clauses were enforceable and not contrary to public policy.

The court further held that the common employer theory against the retailer in relation to workers hired by numerous third-party logistics companies was legally untenable and unsuitable for certification because the cause of action, common issues, and preferable procedure criteria were not met.

Although the direct-employer claims of certain drivers might otherwise have supported limited certification, the proceeding was ultimately stayed in part and the certification motion dismissed.

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 brought a class action against mutual fund managers for allowing certain investors to engage in frequent short-term trading (market timing/time zone arbitrage), which allegedly diluted the returns of long-term unitholders.

The court found that the defendants owed a duty of care to the funds and breached the standard of care by failing to prevent, and actively facilitating, frequent short-term trading contrary to their prospectuses.

However, the court dismissed the claim for breach of fiduciary duty, finding no bad faith or dishonesty.

The matter was directed to proceed to a damages trial.

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 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.

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 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 applicant underwriters sought a declaration that the respondent issuer, Aphria Inc., was required to pay their ongoing legal fees in defending a proposed securities class action.

The class action alleged that the underwriters engaged in market manipulation prior to a prospectus offering.

Aphria argued that the indemnity in the underwriting agreement did not cover intentional wrongdoing.

The court held that the plain language of the indemnity clause required Aphria to pay defence costs for any claims arising from the underwriters' professional services, subject only to an exclusion if a court makes a final, non-appealable determination of fraud or willful misconduct.

As no such determination had been made, the application was granted.

The plaintiff brought a motion on consent to certify a class action against the defendant student travel companies.

The claim alleges that 'Trip Leaders' were misclassified as volunteers rather than employees, depriving them of minimum wage and benefits under the Employment Standards Act.

The court found that all criteria under section 5(1) of the Class Proceedings Act, 1992 were met, including a valid cause of action, an identifiable class, common issues, preferable procedure, and a suitable representative plaintiff.

The action was certified as a class proceeding.

This endorsement addresses the issue of costs arising from a previous order for a discovery plan.

The Plaintiff sought substantial indemnity costs, arguing success on the motion, delay, and unreasonable conduct by the Defendants.

The Defendants sought partial indemnity costs, claiming the motion was unnecessary.

The court found the underlying motion necessary due to the Defendants' insufficient cooperation and that the Plaintiff was substantially successful.

Consequently, the Plaintiff was awarded partial indemnity costs.

The plaintiff in a proposed class action moved for leave to amend the Statement of Claim to add the corporate directors of the defendant companies as new defendants.

The amendment was sought due to concerns about the existing defendants' ability to pay outstanding wages, particularly in light of the global travel industry's collapse due to the COVID-19 pandemic.

The court found no prejudice to any party, as the defendants did not object and the action was still at an early stage.

Leave to amend was granted, with no costs awarded.

The court approved a class action settlement concerning unpaid hours and overtime for non-managerial, non-unionized employees of GoodLife Fitness Centres Inc. The settlement, reached after mediation, provides $7.5 million to approximately 22,000 class members across various employment categories, along with $1 million in class counsel fees and a $10,000 honorarium for the representative plaintiff.

The court certified the class action for settlement purposes and found the settlement fair and reasonable given the litigation risks and the benefits secured for the class, including compensation without individual proof of damages.

The appellant's employment was terminated in October 2012.

In December 2012, the appellant entered into a settlement agreement and release with the respondent.

In October 2014, the appellant commenced an action for wrongful dismissal, defamation, and conversion of his book of business.

The respondent brought a motion to dismiss under Rule 21.01(3)(d) based on the settlement agreement and release.

The motion judge dismissed the action, finding no breach of good faith, no fraudulent misrepresentation, and that the settlement agreement was neither unconscionable nor unenforceable.

The Court of Appeal allowed the appeal, finding that the motion judge improperly treated the Rule 21.01(3)(d) motion as a summary judgment motion and made findings of fact that were inappropriate at that stage.

Robert Connor, an investment advisor, was terminated by Scotia Capital Inc. for breaching internal policies and IIROC rules.

He subsequently signed a settlement agreement and release.

Connor later initiated a civil action against Scotia for wrongful dismissal, defamation, and conversion of his book of business.

Scotia brought a motion to dismiss the action, asserting the enforceability of the settlement agreement and release.

The court analyzed Connor's claims that Scotia breached a duty of good faith, made fraudulent misrepresentations, that the agreement was unconscionable, and that it was unenforceable due to his mental state and lack of legal advice.

The court found no merit in Connor's allegations, concluding that the settlement agreement and release were valid and enforceable.

Consequently, Scotia's motion was granted, and Connor's action was dismissed with costs.