Edward P. Belobaba

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 plaintiffs sought approval of a US$7 million settlement with the Bosch defendants regarding the installation of 'defeat devices' in certain diesel vehicles, as well as approval of class counsel's legal fees.

The settlement targeted 'leftover damages' for class members who were not made whole under previous settlements with the vehicle manufacturers.

The court found the settlement to be fair, reasonable, and in the best interests of the class, noting the pragmatic distribution protocol and the low number of objections.

The court also approved class counsel's 25 percent contingency fee, finding it presumptively valid and noting that the distribution mechanism would ensure high take-up by eligible claimants.

Following a jurisdiction motion where the defendant insurers successfully argued that the court lacked jurisdiction over the proposed class actions, the insurers sought costs of approximately $620,000.

The court found this request preposterous and excessive, fixing costs payable by the plaintiffs to the 13 non-settling insurers at $28,000 on a partial indemnity basis.

The costs payable by the government regulator to the plaintiffs were settled at $12,500.

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.

In a class action where core negligence claims were dismissed on appeal and the remaining "knowing assistance" claim was conceded as having no prospect of success, the action was formally dismissed.

The defendant auditor sought $485,000 in costs for defending the action.

The Law Foundation of Ontario (LFO), which funded the plaintiff through the Class Proceeding Fund, resisted this amount, arguing that previous costs awards covered the merits.

The court found the defendant was entitled to costs for the "knowing assistance" claim but deemed the requested amount excessive.

Applying a 40% discount to the plaintiff's estimated actual costs for this component, the court awarded $68,000 for the action and an additional $4,000 for the costs motion, totaling $72,000, payable by the LFO/CPF to the defendant.

The insured renewed a travel insurance policy by telephone, providing answers about medical conditions.

After hospitalization, the insurer denied the claim due to alleged misrepresentation.

The insured's estate argued that the insurer could not rely on oral statements, asserting that Statutory Condition 2 of the Insurance Act required written statements.

The court dismissed the application, holding that the insurer's practice of providing a written application for review and correction after the telephone interview satisfied the statutory requirement and the consumer protection objectives of the Insurance Act.

The applicants challenged the constitutionality of the Canadian prison needle exchange program (PNEP), specifically its "threat risk assessment" (TRA) feature, arguing it violated sections 7 and 15(1) of the Canadian Charter of Rights and Freedoms by denying effective access to essential health care.

The court dismissed the application, finding it premature due to the ongoing PNEP rollout and evolving design.

Furthermore, the applicants failed to establish that professionally accepted standards required a health services-centered model without security staff involvement, or that the PNEP/TRA model breached Charter rights by being arbitrary, overbroad, or grossly disproportionate, or by discriminating on enumerated grounds.

The Superior Court of Justice, on remittal from the Divisional Court, reconsidered the certification of an operational negligence class action claim against the provincial government in light of the newly enacted Crown Liability and Proceedings Act (CLPA) and a constitutional challenge under s. 96 of the Constitution Act, 1867.

The court found it was not plain and obvious that the operational negligence claim was statute-barred by the CLPA, particularly due to the "decision" requirement in s. 11(4) of the CLPA and the plaintiff's pleadings.

Furthermore, the court determined that the s. 96 constitutional challenge to the CLPA was not plainly and obviously doomed to fail, emphasizing the importance of access to courts and the Supreme Court's caution against restoring complete governmental immunity by broadly defining "policy matters." The court concluded that the meaning and constitutionality of the CLPA should be decided on a complete record at trial or summary judgment, not on a pleadings motion.

The original certification of the operational negligence claim remained intact, and a new common issue regarding the CLPA's effect was added by consent.

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.

The plaintiff moved to certify a proposed class action against TD Asset Management Inc. (TDAM) alleging that TDAM improperly paid "trailing commissions" to discount brokers for "service and advice" that was not provided, thereby wasting Mutual Fund assets and causing investor losses.

The court granted certification for claims of breach of trust, breach of fiduciary duty, disallowance of improper expenses under s. 23.1 of the Trustee Act, and prospectus misrepresentation.

However, claims for knowing assistance, knowing receipt, and unjust enrichment were struck as analytically unworkable or lacking a proper basis in fact.

The court affirmed the plaintiff's standing as a unitholder to sue the trustee and manager, and found the class definition and common issues suitable for certification, reiterating that certification is a low hurdle not concerned with the merits.

The defendants brought a motion to amend the class definition in a certified data breach class action.

They sought to narrow the class to persons who had active leases or loans with Nissan during a specific period, based on evidence that the stolen data sample only contained information from that timeframe.

They also sought to exclude corporate customers.

The court granted the motion to amend the timeframe, finding it supported by the evidence, but declined to exclude corporate customers at this stage, holding that the issue of whether corporations can claim intrusion upon seclusion should be determined as a separate question of law.

Following a partially successful certification motion in a privacy breach class action, the plaintiffs sought costs of $532,162.17.

The court found the requested amount excessive and unreasonable due to over-litigating, over-staffing, and over-docketing.

Noting the plaintiffs' mixed success and last-minute changes to their case that prejudiced the defendants, the court reduced a reasonable starting point of $160,000 by half, awarding the plaintiffs $80,000 all-inclusive.

In a certified class action regarding whether document reviewers were employees or independent contractors, the plaintiff moved for a further and better affidavit of documents.

The court reviewed 11 categories of requested documents.

The court ordered the production of the defendant's insurance policy under Rule 30.02(3), but dismissed the remaining requests, noting that a party has no obligation to create documents that do not exist, and that requests for privileged communications and judicial inspection were premature or improper.

The plaintiffs in a Quebec class action and the defendants brought motions to stay a parallel Ontario class action alleging securities misrepresentations.

The moving parties argued the Ontario action was duplicative and an abuse of process.

The court dismissed the motions, finding that the Ontario action was more comprehensive and not duplicative of the Quebec action when it was filed.

The court held that issues of preferability between parallel multi-jurisdictional class actions are better addressed at the certification stage rather than through a pre-certification stay motion for abuse of process.

The plaintiffs brought a motion to certify a class action against Nissan following a data breach where an unknown employee accessed and stole the personal information of thousands of customers, demanding a ransom.

The court found that the plaintiffs satisfied the certification requirements under s. 5(1) of the Class Proceedings Act.

The court certified common issues relating to vicarious liability for the tort of intrusion upon seclusion, negligence, aggregate damages, and punitive damages, while narrowing the proposed class definition.

This decision addresses a rehearing on class counsel's legal fees and the calculation of the Class Proceedings Fund (CPF) levy in a class action settlement.

The court approved the 25% contingency fee, finding it fair and reasonable based on the risk incurred and results achieved, despite an earlier judge's concerns about the settlement's modesty.

The court also determined that the CPF levy should be calculated on the total amount class members were entitled to receive ($10.2 million), rather than the amount actually paid out ($7.5 million), aligning with the settlement agreement and O. Reg. 771/92.

This decision concerns a motion for judicial approval of a class action settlement and class counsel's legal fees in the Body Sealing Products action, part of a larger series of auto parts price-fixing class actions.

The plaintiffs sought approval of a $5.75 million settlement with the Nishikawa defendants, which also included cooperation.

The court found the settlement to be fair, reasonable, and in the best interests of the class, falling within the established 'zone of reasonableness' benchmarked against U.S. settlements.

Class counsel's request for a 25% contingency fee plus disbursements and taxes was also approved, consistent with prior jurisprudence on class action fee approvals.

The plaintiff, Haidar Omarali, brought a motion for summary judgment on 13 certified common issues in a class action against Just Energy Group Inc., Just Energy Corp., and Just Energy Ontario LP.

The core issues concerned whether the defendants' 8000 sales agents were employees or independent contractors under the Employment Standards Act, 2000, and if employees, whether they were exempt as outside salespersons or fell within the "route salesperson" exception.

The court found diametrically conflicting evidence regarding the level of control exercised by the defendants over the sales agents, raising serious credibility issues and requiring substantial clarification.

Due to these evidentiary conflicts, the insufficiency of evidence to make class-wide determinations, and the preclusion of a "mini-trial" approaching the dimensions of a full trial by s. 34(3) of the Class Proceedings Act, the motion for summary judgment was dismissed.

All 13 common issues were directed to proceed to a focused trial.

This decision concerns a consent certification motion in a class action arising from a six-alarm electrical fire at 650 Parliament Street, Toronto, which displaced hundreds of tenants.

The court certified the action as a class proceeding against the core defendants, Parwell Investments Inc. and 650 Parliament (LHB) Investments Limited, on the common issue of negligence.

The certification was granted based on the parties' agreement, satisfying the requirements of the Class Proceedings Act, 1992, including an identifiable class, common issues, preferability of a class proceeding, and suitable representative plaintiffs.

The order defined the class, appointed representative plaintiffs, declared negligence as the cause of action, and outlined specific common issues related to the defendants' duty and breach of care concerning the building's design, construction, operation, maintenance, and electrical systems.

No costs were awarded for the motion.

The court awarded costs following the dismissal of the plaintiffs' motion for certification in a class action.

The defendants sought $255,707.13, while the plaintiffs argued for no costs or $75,000, citing public interest and novel legal issues.

The court rejected these arguments, finding no public interest dimension as no losses were sustained and the defendant reacted responsibly to the cyber-hack.

The court also found the legal issues not novel, despite involving a cyber-attack, as similar incidents have led to numerous class actions.

Applying its established approach to costs in certification motions, the court adhered to the Grid rates for hourly fees, explicitly rejecting the defendants' argument for 60% of actual rates.

After considering a Grid-compliant outline of $176,459 and a 10% reduction for additional work attributed to the defendant, the court fixed an all-inclusive costs award of $160,000 to be paid by the plaintiffs to the defendants.