David F. O’Connor

The plaintiff sought approval of a $4.95 million settlement, class counsel fees, and a representative plaintiff honorarium in a class action alleging the defendants misrepresented vehicle fuel economy ratings.

The court initially rejected the settlement approval based on a take-up analysis, but approved it after class counsel provided a revised analysis showing the settlement amount was fair relative to the maximum recoverable at trial.

The court also approved a modified honorarium of $3,000 for the representative plaintiff and class counsel's 33 percent contingency fee.

In a national class action for unpaid overtime, the defendant bank brought a motion for a class-wide limitations order to time-bar claims falling outside provincial limitation periods.

The court dismissed the motion, finding that the reasonable discoverability of the claims—specifically whether taking legal action was appropriate—required individualized assessments.

Evidence of power imbalances, fear of reprisal, and reasonable reliance on the bank's misrepresentations rebutted the statutory presumption of discoverability on a class-wide basis.

The plaintiff's cross-motion to strike the limitations defence entirely was also dismissed.

The accused was charged with sexual interference and sexual assault against the minor granddaughter of his long-time girlfriend.

The Crown applied to admit the complainant's video-recorded statement under section 715.1(1) of the Criminal Code, which was granted.

However, the court found significant inconsistencies and contradictions in the complainant's evidence, particularly when compared to the credible testimony of her grandmother.

Finding the complainant's evidence unreliable and prone to exaggeration, the court was left with a reasonable doubt and acquitted the accused on all counts.

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 representative plaintiff brought a motion for summary judgment on the liability common issues in a class action for unpaid overtime on behalf of customer service employees of the defendant bank.

The court found that the bank's overtime policies, which required pre-approval, and its failure to record actual hours worked, violated the Canada Labour Code.

The court concluded that the bank permitted uncompensated overtime by failing to prevent it, thereby breaching its statutory and contractual duties to the class members.

In a professional negligence class action regarding tax opinions provided for a timeshare donation program, the plaintiff brought a refusals motion seeking production of internal law firm memoranda.

The defendant law firm claimed quality assurance privilege and solicitor-client privilege over communications with its Ethics and Standards Committee.

The court held that a law firm can assert quality assurance privilege on a case-by-case basis using the Wigmore criteria.

After inspecting the documents, the court found they were privileged but ultimately irrelevant, and dismissed the refusals motion.

The plaintiff brought a motion to approve a $19,000,000 settlement in a class action regarding unpaid overtime, as well as a distribution protocol and class counsel fees of 33%.

The court appointed amicus curiae to assist in assessing the reasonableness of the settlement and fees.

Finding the settlement to be a rational compromise based on expert analysis of electronic timekeeping data, and the contingency fee to be consistent with similar class proceedings, the court approved the settlement, distribution protocol, and class counsel fees.

In an unpaid overtime class action, the defendant bank inadvertently produced three employee survey theme reports and brought a motion seeking their return on the basis of solicitor-client and litigation privilege.

The court dismissed the motion, finding that the reports were factual summaries created by a third-party vendor for business purposes, did not contain legal advice, and were not created with the dominant purpose of litigation preparation.

The documents were ordered to remain produced.

The accused pleaded guilty to trafficking fentanyl and criminal negligence causing death after selling heroin and furanyl fentanyl to a friend who subsequently died of an overdose.

The court determined the fit sentence was 5 years for criminal negligence and 3 years concurrent for trafficking.

The sentence was reduced by 1.5 years due to the accused's cooperation with the Crown in prosecuting a co-accused.

After applying 28.5 months of enhanced pre-sentence custody credit, the accused was sentenced to an additional 13.5 months in custody, followed by 2 years of probation.

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 offender pleaded guilty to 20 counts of arson, including multiple counts of arson with disregard for human life, following a crime spree in which he set numerous fires in residential and commercial areas while highly intoxicated.

The fires caused over $3.1 million in property damage and displaced numerous residents, though no one was seriously injured.

The court considered the offender's extensive criminal record, his Aboriginal background (Gladue factors), and his struggles with substance abuse and potential fetal alcohol spectrum disorder.

The court sentenced the offender to a global term of 12 years' imprisonment, less credit for pre-sentence custody, along with a lifetime weapons prohibition and a DNA order.

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 plaintiff brought a motion to certify a class proceeding against the defendant employer for unpaid overtime.

The proposed class included non-management employees subject to the defendant's overtime policy.

The court found that the pleadings disclosed valid causes of action in breach of contract, unjust enrichment, and negligence.

The court certified the action, finding that there was an identifiable class, common issues regarding systemic practices and aggregate damages, that a class proceeding was the preferable procedure, and that the plaintiff was an appropriate representative.

The appellant appealed a Divisional Court decision that allowed the respondent's appeal from a certification judge's refusal to certify a negligent misrepresentation claim as a class action.

The claim arose from a 'best efforts' statement in an information folder provided to investors in the appellant's investment fund.

The Court of Appeal dismissed the appeal, finding that a class action was the preferable procedure.

The Court held that the common issues of duty of care, falsity of the representation, and negligence would significantly advance the claims, and that the individual issues of reliance and damages could be managed within the class proceeding framework, thereby providing access to justice for claims that were not economically viable to litigate individually.

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.

The moving parties brought a motion to quash an appeal.

The responding party argued the appeal should proceed, asserting the order below was not made on consent and the court lacked jurisdiction, while also appealing the costs component.

The Court of Appeal granted the motion and quashed the appeal, finding that the communication contemplated by the order below had already been sent, rendering the order spent and the appeal moot.

The court also noted that no leave to appeal costs had been sought.

The plaintiff sought approval of a revised settlement in a class action regarding unpaid bank overtime.

The original settlement's claims process encountered difficulties, leading to a revised agreement where the defendant bank would pay an additional $20.6 million, bringing the total payout to $39.3 million.

The court approved the revised settlement, finding it fair, reasonable, and in the best interests of the class, despite some objections regarding the compensation bands.

The court also approved $2.3 million in legal fees for class counsel.