Davida Shiff

The Ontario Superior Court of Justice addressed disputes regarding the Notice of Certification and Notice Plan in a certified class proceeding against Uber.

The plaintiffs, representing drivers and delivery people seeking employee classification, proposed a notice plan.

Uber responded with alterations, including broader newspaper publication and inclusion of its defence commentary.

The court largely sided with Uber, approving a more robust, province-wide notice plan sensitive to language and diversity, and requiring the inclusion of Uber's legal position in the notices.

The court also apportioned the costs of newspaper notices 33% to the Plaintiffs and 67% to Uber.

This decision addresses an omnibus motion and cross-motion within a certified class proceeding concerning the employment status of Uber drivers and delivery people.

The court granted Uber's request to certify an additional common issue, which clarifies the possible classifications of the relationship between Uber and class members (customer, independent contractor, or employee).

The court dismissed the plaintiffs' request to certify a common issue regarding the validity of the Class Action Waiver, finding that no cause of action had been pleaded to support such a claim.

The enforceability of the Class Action Waiver will not be determined at the common issues trial but may be addressed at individual issues trials.

The parties disputed the wording of a Certification Order in a class action regarding whether Uber drivers are employees.

The defendants requested the addition of the phrase 'to be calculated and assessed on an individual basis' to the paragraph describing the relief sought.

The court granted the request, finding that the phrase provided true and helpful information to the putative class members regarding the potential need for individual issues trials.

The defendants in two related actions sought orders to compel the plaintiffs, Andrew Stronach and Selena Stronach, to undergo medical examinations to assess their mental capacities for the purpose of determining if litigation guardians were required.

The court dismissed the motion against Selena Stronach, finding insufficient evidence to rebut the presumption of capacity.

The motion against Andrew Stronach was dismissed without prejudice, as the court found it premature and suggested other discovery avenues should be pursued first.

The court also declined to order production of video recordings of Andrew's examination for discovery.

The plaintiffs, Andrew and Selena Stronach, brought motions to strike out portions of the defendants' Fresh as Amended Statements of Defence under Rule 25.11 of the Rules of Civil Procedure.

The plaintiffs argued that the impugned pleadings improperly referenced documents and communications that were subject to settlement privilege arising from a confidential judicial mediation.

The defendants argued that the plaintiffs had waived privilege or that an exception applied based on the justice of the case.

The court found that the mediation was subject to settlement privilege, the plaintiffs had not waived the privilege, and no exception applied.

The court granted the motions to strike the pleadings relating to the mediation.

The court also struck out portions of one defendant's pleading as scandalous, but dismissed a motion to require another defendant to reinstate a withdrawn admission.

The plaintiff, Ms. Clarke, sought long-term disability benefits from Sun Life.

Sun Life initially approved 'own occupation' benefits but closed the file in February 2014, stating medical information did not support 'any occupation' benefits.

After a three-year delay, Ms. Clarke provided further medical information in March 2017, leading to another rejection in June 2017.

Ms. Clarke then filed a statement of claim in August 2018.

Sun Life moved for summary judgment to dismiss the action as statute-barred, which was denied by the motion judge.

Sun Life appealed.

The Court of Appeal found the motion judge erred in determining the limitation period's commencement and in failing to conduct a proper discoverability analysis under the Limitations Act, 2002.

The appeal was allowed in part, setting aside the motion judge's order and directing the matter to proceed to trial to determine the limitation period issues.

In a certified class action regarding whether document reviewers were employees or independent contractors, the plaintiff moved for a further and better affidavit of documents.

The court reviewed 11 categories of requested documents.

The court ordered the production of the defendant's insurance policy under Rule 30.02(3), but dismissed the remaining requests, noting that a party has no obligation to create documents that do not exist, and that requests for privileged communications and judicial inspection were premature or improper.

This is a costs endorsement on appeal from a Superior Court judgment.

The unsuccessful appellants (Essar entities and GIP entities) were ordered to pay costs to the successful respondents (the Monitor and Algoma Steel).

The parties agreed on the quantum of costs but disagreed on whether liability should be several or joint and several.

The court awarded costs on a several basis, allocating 25% to GIP and 75% to Essar, finding that GIP had a more limited role with different issues and less oral argument time than Essar.

Following the successful certification of a class action against Deloitte, the substituted representative plaintiff sought costs of $480,170.08 on a partial indemnity basis.

Deloitte argued the costs should be significantly reduced due to the narrowing of the claim, the disqualification of the initial representative plaintiff, and alleged over-lawyering.

The court rejected Deloitte's argument that there was divided success, but agreed the claimed amount was excessive.

Applying the factors under Rule 57.01(1), the court reduced the counsel fee and awarded the plaintiff costs fixed at $353,790.88 all-inclusive.

The plaintiff, an UberEATS driver, commenced a proposed class action alleging that Uber drivers are employees and entitled to the protections of the Employment Standards Act, 2000.

The defendants moved to stay the action in favour of arbitration in the Netherlands, relying on the arbitration clause in the service agreements.

The court held that the International Commercial Arbitration Act, 2017 applied and that, under the competence-competence principle, the arbitrator must determine their own jurisdiction in the first instance.

The court found no unconscionability or statutory bar to arbitration and stayed the action.

A CCAA monitor brought an oppression action under the Canada Business Corporations Act against the parent company (Essar Global) and related entities, alleging that a port transaction transferring critical assets to an Essar-controlled entity was oppressive to Algoma's stakeholders (trade creditors, employees, pensioners, and retirees).

The trial judge found the monitor had standing as a complainant, the action was properly brought as an oppression remedy rather than a derivative action, and the port transaction and its change of control provision were oppressive.

The court granted a remedy modifying the transaction to remove the change of control veto and provide Algoma with termination rights after GIP's loan was repaid.

The appellants appealed on multiple grounds, including standing, characterization of the claim, reasonable expectations analysis, and the appropriateness of the remedy.

The Court of Appeal upheld the trial judgment in all respects.

The plaintiff sought to certify a class action alleging that document reviewers, hired as independent contractors by Deloitte and Procom, were actually employees entitled to benefits under the Employment Standards Act.

The court found some basis in fact for an employer-employee relationship with Deloitte but not with Procom or ATD (a predecessor).

The court certified three common issues against Deloitte but adjourned the motion, requiring the plaintiff to revise the class definition and replace the representative plaintiff due to reliability and disinterest concerns.

The CCAA monitor of Algoma brought an oppression action under the CBCA against Algoma's parent company, Essar Global, regarding a transaction that transferred Algoma's critical port facilities to a related entity.

The court found that the monitor had standing to bring the action on behalf of creditors.

The court held that the port transaction and a change of control clause giving Essar Global a veto over any buyer of Algoma violated the reasonable expectations of creditors and were oppressive.

The court rejected the business judgment rule defence and ordered the deletion of the change of control clause and amended the agreements to allow Algoma to terminate them after a third-party loan is repaid.