David Rosenfeld

This decision addresses a carriage motion between two proposed class actions against Aphria Inc. and other defendants, both alleging misrepresentations in the secondary market and oppression remedy claims.

The "Mirzoian-Rogers Action" (LATAM Theory) proposed a narrower class based primarily on the LATAM Transaction, while the "Vecchio Action" (Nuuvera+LATAM Theory) proposed a broader class period and additional causes of action encompassing both the Nuuvera and LATAM Transactions.

The court granted carriage to the Vecchio Action, finding its broader case theory to be in the best interests of the class by providing greater access to justice for a larger group of claimants, despite criticisms regarding the pleading of partial corrective disclosures for the Nuuvera Transaction.

The court emphasized that a carriage motion is not the appropriate forum to definitively resolve complex legal issues like the full effect of corrective disclosures.

The plaintiff, a union member, commenced an action against his union for damages for breach of contract and an order to expunge a six-month disciplinary suspension.

The plaintiff alleged procedural unfairness and bias in the union's disciplinary proceedings, including breaches of the union's constitution.

The defendant union moved for summary judgment to dismiss the action, arguing that the court should not interfere with a voluntary tribunal's decision unless it exceeded jurisdiction, failed to conduct proceedings fairly, or acted in bad faith.

The court found that while there were minor breaches of the union's constitution, these did not amount to a deprivation of procedural fairness.

The court also found no evidence of actual bias or a real likelihood of bias on the part of the adjudicators.

Consequently, the union's motion for summary judgment was granted, and the plaintiff's action was dismissed with costs.

This class action concerned historical abuse at the W. Ross MacDonald School for the Blind.

The court approved an $8,000,000 settlement fund, finding it fair, reasonable, and in the best interests of the class, particularly given the litigation risks and the advanced age of many class members.

The settlement provided for a paper-based, non-adversarial claims process with compensation up to $45,000 per claimant, free from tax claw-backs.

The court also approved a $15,000 honorarium for the representative plaintiff and fixed class counsel's legal fees at $2,412,534 plus HST and disbursements, emphasizing the risks undertaken and results achieved over mere docketed time.

The plaintiff brought a motion to certify a class action against the provincial Crown regarding alleged institutional abuse at the Children's Psychiatric Research Institute (CPRI) between 1963 and 2011.

The defendant consented to the certification.

The court reviewed the requirements under section 5(1) of the Class Proceedings Act and found them satisfied, noting the commonality of issues and the vulnerability of the proposed class.

The action was certified on consent.

The defendants sought leave to appeal an order certifying a class proceeding brought by sales agents claiming to be employees under the Employment Standards Act rather than independent contractors.

The defendants argued the motions judge erred in finding employee status to be a common issue and in failing to limit the class definition based on the limitation period.

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

The plaintiff brought a motion to certify a class action on behalf of approximately 7,000 door-to-door sales agents who were hired by the defendants as independent contractors.

The plaintiff alleged that the sales agents were misclassified and were actually employees entitled to benefits under the Employment Standards Act.

The court found that the plaintiff satisfied the requirements for certification under section 5(1) of the Class Proceedings Act, noting sufficient evidence of systemic commonality regarding the defendants' control over the sales agents.

The motion for certification was granted.

This decision approves a $35.9 million class action settlement and legal fees for a fourth class action concerning abuses in provincial "Schedule 1" facilities.

The settlement mirrors three previous approvals (Huronia, Rideau, Southwestern) and provides a claims-based compensation scheme for individuals with developmental disabilities who resided in 12 named facilities.

The court found the settlement to be fair and reasonable, particularly because the Huronia settlement, which served as the template, was reached just before trial, ensuring counsel had a comprehensive understanding of litigation risks and rewards.

The appellant, a union member, appealed a summary judgment decision that dismissed his action challenging two internal union disciplinary convictions.

The Divisional Court found no error in the motion judge's conclusion that the court's jurisdiction over internal union affairs is limited to ensuring compliance with the union constitution, good faith, and natural justice.

The court rejected the appellant's arguments regarding lack of evidence and bias, finding them without merit.

The appeal was dismissed with costs.

The union brought a motion for summary judgment dismissing an application challenging internal disciplinary findings against a union member who had been fined for performing union work for a non‑union contractor.

The applicant alleged breaches of the union constitution, denial of procedural fairness, tribunal bias, transcript irregularities, and bad faith.

The court held that internal union tribunals are domestic tribunals whose decisions are reviewable only for breaches of the constitution, bad faith, or procedural unfairness.

After reviewing the record, the court found the disciplinary process complied with the constitution and afforded the member adequate procedural protections, including notice, opportunity to present evidence, and multiple internal appeals.

No breach of natural justice or bad faith was established and the court declined to interfere with the union’s internal disciplinary decision.

In a motion under the Class Proceedings Act, 1992, class counsel sought court approval of legal fees following settlement of three related institutional abuse class actions involving provincially operated facilities for individuals with developmental disabilities.

The settlements created a total fund of $67.7 million, with additional administration and notice costs bringing the total cash value to approximately $70.7 million.

Class counsel requested $14 million in fees, representing approximately 20.68% of the settlement fund, plus disbursements and taxes.

The court applied the established factors for approving class counsel fees, including litigation risk, complexity, time invested, results achieved, and expectations of the class.

Finding the requested contingency fee within the common range for class actions and reasonable given the risks and work performed, the court approved the fees, disbursements, taxes, and the allocation of fees among the three actions.

The plaintiffs brought a motion for approval of settlements in two class actions against the Crown regarding the operation of the Rideau Regional Centre and the Southwestern Regional Centre, residential facilities for individuals with developmental disabilities.

The plaintiffs alleged negligence and breach of fiduciary duties resulting in harm and abuse.

The court approved the settlements, which included a $32.7 million settlement fund, a claims-based compensation scheme, an apology from the Premier, and other non-monetary benefits, finding them fair, reasonable, and in the best interests of the class members.

The plaintiffs moved for approval of a $35 million settlement in a class action against the Crown regarding alleged negligence and breach of fiduciary duties at the Huronia Regional Centre, a residential facility for individuals with developmental disabilities.

The settlement included a claims-based compensation scheme, an apology from the Crown, and various non-monetary benefits.

The court found the settlement to be fair, reasonable, and in the best interests of the class, considering the litigation risks and the advanced age of the class members.

The court also approved a $15,000 honorarium for each of the representative plaintiffs.

The applicant requested to reactivate a human rights application that had been deferred pending the conclusion of a related claim under the Workplace Safety and Insurance Act.

The respondent opposed the reactivation because the applicant's appeal before the Workplace Safety and Insurance Appeal Tribunal was still ongoing.

The Tribunal denied the request to reactivate, finding that the other process had not yet been completed as required by the initial deferral decision.

The appellant employee was terminated without cause and was entitled to six months' pay in lieu of notice under his employment agreement.

The agreement was silent on the duty to mitigate.

The employee found new employment after two weeks, and the employer ceased paying the salary continuance.

The application judge held the employee had a duty to mitigate.

The Court of Appeal allowed the appeal, holding that where an employment agreement contains a stipulated entitlement on termination without cause, the amount is either liquidated damages or a contractual sum, and mitigation is irrelevant unless expressly required by the contract.

Employees sought certification of a class action alleging that a bank misclassified analysts, investment advisors, and associate investment advisors as ineligible for overtime pay contrary to the Canada Labour Code and the Employment Standards Act, 2000.

The proposed class relied on job titles and levels to establish commonality, arguing that eligibility for overtime could be determined collectively or through statistical sampling.

The court held that determining whether an employee exercised managerial or supervisory functions required a fact‑specific assessment of the actual duties performed by each employee.

Evidence showed wide variation in responsibilities even among employees sharing identical job titles, defeating the proposed common issues and rendering statistical sampling inappropriate for determining liability.

As the central issues of overtime eligibility and breach required individualized inquiries, a class proceeding was not a preferable procedure and the certification motion was dismissed.

In an environmental class action concerning historic nickel emissions from a refinery, the appellant challenged findings of nuisance, strict liability, and aggregate damages for alleged property value stigma following public concern about soil nickel levels.

The Court of Appeal held that a mere chemical alteration of soil, without detrimental effect on the land or its use, does not constitute actual, substantial, physical damage for private nuisance.

The court also held that Ontario law does not recognize strict liability based solely on allegedly extra-hazardous activity, and that the refinery operation was not a non-natural use within the Rylands v. Fletcher framework.

The claimants further failed to prove any compensable diminution in property values on a proper analysis of the valuation evidence.

The appeal was allowed and the action dismissed.

Appeal from Ontario pension litigation concerning whether an employer could charge plan administration expenses to a pension trust fund, take contribution holidays in a defined benefit component, and use actuarial surplus from that component to satisfy contribution obligations for a newly added defined contribution component.

The majority held that reasonableness review applied to the Financial Services Tribunal's determinations, upheld the finding that most plan expenses were payable from the fund, and confirmed that the defined benefit contribution holidays were permitted under the plan text.

The majority further held that it was reasonable for the Tribunal to permit defined contribution holidays once retroactive amendments designated defined contribution members as beneficiaries of the same trust.

The Tribunal lacked authority to order costs from the fund because the fund was not a party, and the courts properly declined to award the appellants' costs from the fund because the litigation was adversarial.