David F. O’Connor

The moving parties, who were granted carriage of the Ontario Volkswagen class action, brought a motion alleging that the responding law firm breached the carriage order by sending a misleading email soliciting putative Ontario class members.

The responding firm agreed to send a court-approved clarifying email and not to execute any retainer agreements received from Ontario residents.

The court awarded the moving parties $40,000 in costs on a substantial indemnity basis due to the responding firm's reprehensible conduct in breaching the court order.

The parties disagreed on the form of the order reflecting the court's appeal decision regarding class certification.

The appellant argued the class should expressly include recipients of both English and French versions of the documents, while the respondent argued it should be restricted to the English version.

The Divisional Court agreed with the appellant, noting no distinction was made during the appeal, and varied the certification order to include both language versions.

The applicant, charged with marijuana-related offences, brought an application for a stay of proceedings under s. 24(1) of the Charter, alleging a breach of his s. 11(b) right to be tried within a reasonable time.

The total delay was 33 months.

The court applied the Askov/Morin framework, attributing portions of the delay to inherent time requirements, institutional delay, the Crown, and the defence.

The court found the unjustified delay of almost 15 months fell within the Morin guidelines and that evidence of actual prejudice was weak.

The application was dismissed.

The defendants sought leave to appeal an order dismissing their motion to seal documents and transcripts related to a Mareva injunction.

The defendants argued that the documents should be sealed because one of the defendants was facing criminal fraud charges.

The motion judge had ruled that sealing was unnecessary because the defendants were protected by the privilege against self-incrimination and the implied undertaking rule.

The Divisional Court dismissed the motion for leave to appeal, finding no conflicting decisions and no reason to doubt the correctness of the motion judge's order.

The Divisional Court issued a costs endorsement following an appeal and motion for leave to appeal.

The appellant was awarded $50,000 inclusive for the appeal and leave motion.

The costs of the underlying certification motion were remitted to the motion judge, who had extensive experience with the matter, to determine a fair and reasonable amount.

Multiple motions arising from five civil proceedings related to the Algo Centre Mall collapse sought transfer of a certified class action to Sault Ste.

Marie, trial together or common case management of related actions, and appointment of a single motions judge.

The court held that opt-out plaintiffs in separate proceedings lacked standing under rule 13.1.02 to seek transfer of the class action, and in any event failed to show that Sault Ste.

Marie was a significantly better venue than Toronto in the interest of justice.

The court further declined relief under s. 107(1) of the Courts of Justice Act because any transfer necessary to enable common case management or trial together would impose substantial cost and inefficiency, particularly given the existing class action case management structure.

Appointment of a rule 37.15 judge was also refused.

Following certification of a class proceeding arising from the collapse of a shopping mall, the court determined the appropriate allocation of costs for the certification motion.

Most defendants did not oppose certification and several entered into settlement agreements regarding costs.

The court distinguished between baseline costs that would have been incurred even if certification had proceeded on consent and additional costs caused by defendants who opposed certification.

The judge concluded that $140,000 represented additional costs attributable to opposition and allocated remaining unpaid costs primarily to the provincial government, whose extensive submissions challenged multiple certification criteria.

Costs were fixed at $15,000 against one defendant and $60,000 against the provincial government, with other amounts accounted for through settlements.

The plaintiffs brought a motion to certify a class action following the collapse of the Algo Centre Mall roof in Elliot Lake, which killed two people and injured dozens.

The proposed class included occupants, tenants, and employees of the mall.

The defendants included the mall owners, builders, engineers, and the Province of Ontario.

The Province opposed certification, arguing it owed no private law duty of care for negligent inspection.

The court found that the pleadings disclosed a valid cause of action for negligent inspection against the Province and that all five prerequisites for certification under s. 5(1) of the Class Proceedings Act, 1992 were met.

The action was certified as a class proceeding.

Following certification of a class action concerning an allegedly negligent tax opinion related to a timeshare charitable donation program, the court was required to determine costs of the certification motion after the Court of Appeal reversed the motion judge and certified the action.

The plaintiff sought more than $355,000 including substantial indemnity costs based on an unaccepted offer to settle.

The court rejected substantial indemnity costs, finding the offer tactical and unlikely to be accepted given a serious limitation defence.

Exercising discretion, the court awarded partial indemnity costs totaling $298,582.71, with $150,000 payable in the cause and the remainder payable forthwith.

No costs were ordered against certain third parties who had limited participation in the certification motion.

The appellant appealed an order striking out claims for breach of contract based on representations in an information folder regarding the Can-Am Fund.

The Court of Appeal upheld the motion judge's finding that it was plain and obvious no cause of action existed for breach of contract, given the governing statutory scheme and warnings in the materials.

The application for leave to appeal the costs order was also dismissed.

Following a class action certification motion where the plaintiff achieved certification for five insurance policies but the defendant successfully struck claims regarding 48 other policies, both parties sought costs payable forthwith.

The court held that because success was divided—with the plaintiff achieving procedural success and the defendant achieving substantial substantive success—the normal rule of awarding costs to the successful party did not apply.

The court ordered the costs of the certification motion to be in the cause.

The plaintiff sought certification of a proposed class action against an insurer relating to the performance of the Can‑Am segregated fund offered through multiple insurance contracts.

The plaintiff alleged breach of express or implied contractual terms requiring the fund to replicate the S&P 500 on a best‑efforts basis, as well as negligent misrepresentation in pre‑contract information folders.

The court held that only five insurance contracts contained an express “best‑efforts” term capable of supporting a breach of contract claim, and claims based on implied terms or collateral contracts were legally untenable due to statutory entire‑agreement provisions and the non‑contractual status of information folders.

Although negligent misrepresentation disclosed a cause of action, the court found that individual reliance, causation, and damages issues overwhelmed the common issues such that a class proceeding was not the preferable procedure.

Certification was therefore granted only for breach of express contractual terms for the five specified policy forms, subject to exclusion of statute‑barred claims.

Following the successful appeal by the defendant overturning the certification of a proposed class action for unpaid overtime, the defendant sought partial indemnity costs of $300,000.

The plaintiff and the Law Foundation of Ontario argued that no costs or a maximum of $50,000 should be awarded, citing the novel legal issues and public interest nature of the case.

The Court of Appeal acknowledged the novel points of law and access to justice considerations under section 31(1) of the Class Proceedings Act, 1992, but held that the Act does not insulate representative plaintiffs from adverse costs.

The court fixed the costs of the appeal at $60,000 on a partial indemnity scale.

The plaintiff sought leave to commence a secondary market misrepresentation action under the Securities Act and to certify a class proceeding against the defendants for misrepresentation, conspiracy, and oppression.

The plaintiff alleged that the defendants fabricated a financial crisis by including a 'going concern' note in the company's financial statements to artificially depress the share price, allowing insiders to acquire shares cheaply.

The court dismissed the motion for leave, finding no reasonable possibility of success at trial, as the financial disclosures were factual, required by GAAP, and made after reasonable investigation.

The court also refused to certify the conspiracy claim due to a lack of factual basis and struck the oppression claim, ruling that the Ontario Superior Court lacked subject-matter jurisdiction over an oppression remedy under the British Columbia Business Corporations Act.

The defendant bank sought leave to appeal a decision certifying a class action for unpaid overtime on behalf of its retail branch employees.

The bank argued that the certification decision conflicted with another recent decision denying certification in a similar overtime class action against a different bank, and that there was good reason to doubt the correctness of the decision.

The Divisional Court granted leave to appeal on both grounds, finding a clear conflict in principle regarding whether systemic duties and implied contractual terms could overcome a lack of commonality, and noting the general public importance of the issues raised.

The appellant appealed an order striking its claim against the respondent employees on a Rule 21 motion.

The motion judge had concluded that a release executed by the corporate parties included the employees and that the action was an abuse of process.

The Court of Appeal allowed the appeal, finding it was not plain and obvious that the release covered the employees, and that the motion judge impermissibly weighed evidence.

The Court also held that bringing a subsequent action against the employees was not an abuse of process, as the specific issues and duties of care were not decided in the earlier action against the principal.

The appellants, holders of convertible debentures in Rio Algom Limited, brought an oppression claim after a successful takeover bid by Billiton plc resulted in the delisting of Rio Algom's shares, rendering the debentures' conversion feature valueless.

The application judge dismissed the claim, finding that the trust indenture governing the debentures provided for the event of delisting and limited the debentureholders' remedy to redemption at par.

The Court of Appeal upheld the decision, agreeing that the debentureholders had no reasonable expectation of further compensation and that the indenture's 'no-action' clause precluded individual debentureholders from bringing an oppression action against the issuer or third parties.