Dennis Brown

The Crown and Ontario First Nations entered into a revenue sharing agreement requiring the Crown to appoint a First Nations representative to the board of directors of the Ontario Lottery and Gaming Corporation (OLG).

When no appointment was made, First Nations sought arbitration.

The Crown and OLG moved to strike the claim, arguing the appointment was protected by Crown prerogative and non-justiciable.

The arbitration panel dismissed the motion and also allowed First Nations to withdraw its claim against OLG.

The Crown and OLG appealed both decisions.

The Superior Court dismissed the appeals, holding that the Crown prerogative could not be used to avoid a declaration that a contract had been breached, and that OLG was not a necessary party to the arbitration.

Two related class proceedings alleged that employees transferred from municipal home‑care providers to Community Care Access Centres suffered pension losses when their OMERS or VON pensions were replaced with HOOPP after a government restructuring of home‑care services.

The plaintiffs advanced claims for negligent misrepresentation and breach of contractual undertaking against the province.

Following mediation and negotiations, the parties reached a settlement providing $6.5 million for class members, along with amounts for class counsel fees and administration.

The court reviewed the settlement under s. 29 of the Class Proceedings Act, 1992 and considered the risks of establishing liability and damages, the complexity of actuarial loss calculations, and the absence of objections from class members.

The settlement and proposed class counsel fees were found to fall within a reasonable range and to be in the best interests of the class.

The court determined costs following a motion concerning whether a proceeding could continue as a representative action under Rule 12.08 of the Rules of Civil Procedure.

Success on the underlying motion was divided: the moving party succeeded on the central issue that the action could proceed as a representative proceeding meeting the test analogous to certification under the Class Proceedings Act, but the responding parties succeeded on issues including that only individual union members, not the union itself, could act as representative plaintiffs and that particulars were required for a negligent misrepresentation claim.

Applying the factors in Rule 57, including relative success, complexity, and conduct of the parties, the court concluded that the moving party was overall more successful.

The court awarded reduced partial indemnity costs reflecting divided success and certain pleading deficiencies.