David F. O’Connor

The appellant sought to certify a class action against the municipality for property damage caused by pinhole leaks in copper plumbing, allegedly resulting from the addition of sodium hydroxide to the municipal water supply.

The motion judge certified the negligence claim but struck the nuisance claim, finding it barred by s. 449 of the Municipal Act, 2001, which precludes nuisance claims related to the escape of water from water works.

The Court of Appeal upheld the decision, agreeing that the nuisance claim was plainly and obviously barred by the ordinary meaning of the statute.

The Court also dismissed the appellant's argument that a breach of contract claim should have been certified, as it was not argued before the motion judge.

The plaintiff sought to certify a class action alleging breach of fiduciary duty, knowing assistance, and knowing receipt against investment advisors and their associated companies.

The claims arose from the defendants' recommendation of investments in Invoice Payment System Corporation (IPS), a company in which the advisors had a significant undisclosed ownership stake and from which they received commissions.

While the Court of Appeal had previously found the pleadings disclosed a cause of action for a class-wide fiduciary duty, this court dismissed the certification motion.

The court found that the proposed common issues regarding the existence, nature, and breach of a class-wide fiduciary duty could not be determined in common across the class, as individual inquiries into each client's specific circumstances, level of trust, reliance, and understanding of disclosures were necessary.

Consequently, the claims for knowing receipt, knowing assistance, and remedies also failed the certification test.

This appeal concerned the quantum of class counsel fees and a representative plaintiff honorarium following a $153 million class action settlement for unpaid overtime.

The motion judge had awarded $25 million in fees and denied a $30,000 honorarium.

The appellants sought an increase in fees to $44 million and the honorarium.

The Court of Appeal dismissed the appeal, upholding the motion judge's discretionary decision on both fees and honorarium, finding no palpable and overriding error or misdirection on law.

The plaintiff in a certified class action regarding unpaid statutory vacation and holiday pay moved to settle the Notice Plan and Notice of Certification.

The parties disagreed on the opt-out deadline, the contents of the opt-out affidavit, and the text of the Notice of Certification.

The court held that the opt-out deadline should be 60 days after the last notice is published and that the opt-out affidavit must identify the individuals who opted out.

However, the court rejected the defendants' proposed revisions to the Notice of Certification, finding them to be unnecessary, unfair, and potentially intimidating to class members.

The Notice of Certification was approved substantially in the form drafted by class counsel.

This is an appeal from the Divisional Court, which upheld a certification judge's decision that a class action claim for breach of fiduciary duty against investment advisors did not disclose a cause of action.

The Court of Appeal for Ontario examined whether the claim adequately pleaded an ad hoc fiduciary relationship, considering factors beyond just professional rules.

The Court found that the lower courts erred by narrowly interpreting the pleading, and that the claim, taken as a whole, sufficiently pleaded vulnerability, trust, reliance, and discretion, in addition to breaches of professional standards.

The appeal was allowed, declaring that the claim did disclose a cause of action for breach of a class-wide fiduciary duty, and the matter was remitted for redetermination of other certification criteria.

The plaintiff sought approval of a $7 million settlement and class counsel fees in a class proceeding against an insurance company regarding the performance of an investment fund.

The action, which spanned 20 years, involved claims of breach of contract and negligent misrepresentation.

The court found the settlement to be fair, reasonable, and in the best interests of the class, given the significant litigation risks.

The court also approved class counsel's 30% contingency fee, noting the high risks undertaken and the good result achieved for the class.

Following the death of the judge who certified this national class action regarding vacation and public holiday pay, the parties could not agree on the terms of the certification order.

The plaintiff brought a motion to settle the order under rule 59.04(14).

The court settled the class definition start dates by applying the ultimate limitation periods for provinces that have them, and the basic limitation periods (adjusted for Covid-19 suspensions) for provinces that do not.

The court also compendiously restated the liability common issue to include unjust enrichment.

The plaintiff brought a motion to certify a class action against the City of Thunder Bay for negligence and private nuisance, alleging that the City's addition of sodium hydroxide to the municipal water supply caused pinhole leaks in copper plumbing pipes, resulting in property damage.

The City brought a cross-motion to strike the nuisance claim, arguing it was barred by s. 449 of the Municipal Act, 2001, which provides immunity for nuisance claims connected to the escape of water from water works.

The court granted the City's motion to strike the nuisance claim, finding it was plainly and obviously barred by the statute.

The court granted the plaintiff's motion to certify the negligence claim, finding it met all the criteria under the Class Proceedings Act, 1992.

Class counsel sought approval of a $44 million contingency fee following a $153 million settlement in an unpaid overtime class action against CIBC.

The court found the requested fee, representing 30% of the settlement, to be excessive and potentially champertous given the megafund nature of the settlement.

The court approved a reduced fee of $25 million (17% of the settlement), finding it provided fair compensation for the risks undertaken while protecting the integrity of the profession.

The court also denied the representative plaintiff's request for a $30,000 honorarium, finding her involvement was not extraordinary enough to justify the award.

The Canadian Imperial Bank of Commerce appealed three lower court decisions in a class action initiated by Dara Fresco on behalf of 31,000 customer service employees.

The class action alleged that the Bank's overtime policies and record-keeping practices led to uncompensated overtime, contrary to the Canada Labour Code.

The Court of Appeal for Ontario dismissed all three appeals.

It upheld the motion judge's interpretation of "permitted" overtime under s. 174 of the Code, affirming that the Bank's policies and record-keeping were "institutional impediments" to proper compensation.

The Court also confirmed the certification of aggregate damages, ruling that the Supreme Court's Pro-Sys decision allowed the trial judge to reconsider this issue despite a previous refusal at certification.

Finally, the Court upheld the motion judge's decision to defer a class-wide limitations order and a constitutional question regarding the extra-territorial application of the Class Proceedings Act, deeming them premature.

The plaintiff sought to certify a class action on behalf of pre-disclosure owners and lessees of Volkswagen and Audi diesel vehicles containing 'defeat devices'.

The plaintiff alleged they paid a premium for a 'clean diesel' feature they did not receive.

The court dismissed the motion for certification, finding that the plaintiff failed to provide any evidence of a compensable loss or a plausible methodology to measure the alleged loss on a class-wide basis, as required under section 5(1) of the Class Proceedings Act.

The plaintiff brought a motion to certify a class action against her investment advisors and related corporations, alleging breach of fiduciary duty, knowing assistance, knowing receipt, breach of contract, and oppression in relation to the sale of promissory notes.

The court dismissed the certification motion, finding that the claims did not satisfy the cause of action, common issues, and preferable procedure criteria under the Class Proceedings Act, 1992.

The court held that the existence of a fiduciary duty and any breach thereof would require individualized assessments, and that the secondary claims for knowing assistance and knowing receipt were similarly flawed and lacked a basis in fact.

Dara Fresco, the representative plaintiff in a class action, moved to quash two aspects of the Canadian Imperial Bank of Commerce's appeals from a judgment on common issues.

Fresco argued that the issues concerning limitation periods and aggregate damages were only appealable to the Divisional Court with leave, not the Court of Appeal.

The Court of Appeal dismissed the motions to quash, holding that it had jurisdiction over all aspects of the appeals under s. 30(3) of the Class Proceedings Act, 1992, as the determinations on limitations and aggregate damages were part of the judgment on common issues.

This decision addresses cross-motions for summary judgment on damages issues in a class action for unpaid overtime.

The court previously found the defendant bank liable for breaching federal labour law regarding overtime.

In this stage, the court considered common issues related to unjust enrichment, remedies, and punitive damages, and crucially, whether to add aggregate damages as a common issue.

The court found that while the defendant was enriched, restitutionary relief was not available due to the breach of contract claim.

Punitive damages were denied as the bank's conduct, though careless, did not meet the "malicious, oppressive and high-handed" standard.

Most significantly, the court certified aggregate damages as a new common issue, finding a "reasonable possibility" that the plaintiff's proposed methodology, based on time-stamped computer data, could determine damages without individual proof, despite previous appellate court reservations about sampling.

The determination of the final aggregate damages quantum was adjourned pending expert reports and data access.

The Defendants/Appellants appealed a Master's decision that dismissed their motion to set aside a Certificate of Pending Litigation (CPL) and confirmed a $600,000 payment into court as security.

The appeal focused on the Plaintiffs/Respondents' counsel's failure to disclose to the Master that opposing counsel had requested notice of the ex parte CPL motion.

The court found that this non-disclosure was a material fact that adversely impacted the Master's ruling, leading to a palpable and overriding error.

The appeal was allowed, the CPL discharged, the security fund released to the Appellants, and substantial indemnity costs awarded against the Respondents.

In a certified national class action, the plaintiff proposed a notice plan for certification.

The defendant opposed the plan, arguing it was not robust enough to create binding issue estoppels in other jurisdictions, and proposed a more robust direct notice plan at the plaintiff's expense.

The court found that while the plaintiff's plan would normally be adequate, the defendant's concern regarding the recognition of an Ontario judgment by courts in other provinces was valid.

The court approved the defendant's more robust notice plan and ordered the costs to be shared one-third by the plaintiff and two-thirds by the defendant, as the defendant was the predominant beneficiary of the robust plan.

The court approved the $31.2 million in legal fees, disbursements, and taxes agreed upon by class counsel and the defendants (Volkswagen Group Canada Inc. et al.) following the $2.1 billion "dieselgate" class action settlement.

The fees were deemed reasonable and separate from the class members' recovery, ensuring the settlement remained generous and in the best interests of the class.

The court approved a $2.1 billion class action settlement for Canadian owners and lessees of VW 2.0-litre diesel vehicles affected by the "defeat device" fraud.

The settlement provides cash payments and options for vehicle buyback or emissions modification, with the buyback option generally offering a larger recovery.

The court found the settlement fair, reasonable, and in the best interests of the class, exceeding what members would likely recover under provincial consumer protection legislation or tort law.

This endorsement addresses two issues arising from a case conference in a class action: whether the defendant should disclose its process for identifying class members, and the appropriate cut-off date for class membership.

The court declined to compel disclosure of the defendant's identification process, relying on counsel's undertaking to provide an accurate list, but allowed for future disclosure if disputes arise.

The court determined that the cut-off date for class membership should be the date notice is given to class members, approximately five months after certification, to ensure broader inclusion.

Due to mixed success on the issues and late filings by both parties, no costs were awarded for the attendance.

The plaintiffs in a proposed class action brought a contempt motion against Merchant Law Group LLP and two of its lawyers for allegedly breaching a carriage order that stayed MLG's Ontario action and prohibited similar class actions without leave.

The court found that MLG's subsequent emails to Ontario residents, which included retainer agreements referencing "class proceedings," were careless, unprofessional, and arguably in breach of the order.

However, the court could not find contempt beyond a reasonable doubt because the emails primarily discussed "joinder actions" and the clarity of the order regarding class actions was established after some of the impugned emails.

Despite dismissing the contempt motion, the court expressed strong displeasure with the respondents' conduct and ordered them to pay $5,000 in costs to the plaintiffs, and issued a further order clarifying future prohibitions on contacting Ontario residents for class actions.