Elie Waitzer

The plaintiffs appealed the dismissal of their motion to certify a class action against Facebook for allegedly making users' data available to third-party applications without consent.

The Divisional Court upheld the motion judge's findings that the proposed common issues regarding breach of contract and disgorgement were overly broad and required individual inquiries, and that a class proceeding was not the preferable procedure given the lack of evidence of compensable loss.

The appeal was dismissed.

The plaintiff moved to certify a class action against the defendants regarding their practice of automatically renewing residential mortgages at maturity into six-month closed terms at higher posted rates.

The plaintiff alleged this practice breached section 8 of the Interest Act, breached the standard form contracts, and constituted unjust enrichment.

The court found that the pleadings disclosed viable causes of action, including that the automatic renewal could trigger 'arrears' under the Interest Act.

The court certified the class action, finding an identifiable class, common issues predominating over individual ones, and that a class proceeding was the preferable procedure.

The plaintiff brought motions to approve a $60 million settlement in a class action concerning historical institutional abuse at Ontario Training Schools between 1953 and 1984.

The court approved the settlement, finding it fair, reasonable, and in the best interests of the class, noting the significant litigation risks and the benefits of a trauma-informed claims process.

The court also approved Class Counsel's contingency fee of 28.5%, a $15,000 honorarium for the representative plaintiff, the disclosure of class member contact information to the Public Guardian and Trustee, and a motion by a class member to rescind his prior opt-out due to medical difficulties.

This is a continued certification motion in a class action alleging that the defendant misused class members' data by making it available to third parties without consent.

The court declined to certify the proceeding on multiple grounds: the proposed class definition was not workable, as it required individual inquiries to develop a Master Class List and was both under-inclusive and over-inclusive; the nominal damages issue could not be certified as a common issue because individual issues were woven into its determination; the proceeding was not the preferable procedure given the absence of evidence of compensable loss and the availability of regulatory proceedings; and the litigation plan was unworkable given the size of the class and the numerous individual inquiries required.

The defendant was awarded costs of $500,000 all-inclusive.

The plaintiff discontinued a proposed class action against the defendant, a discount brokerage firm, after the certification motion was adjourned.

The defendant sought costs for defending itself against the certification motion.

The plaintiff argued the costs were excessive and should be apportioned among the multiple defendants originally sued.

The court awarded costs to the defendant on a partial indemnity basis, reduced by approximately 25% to account for access to justice concerns in class action litigation.

The representative plaintiff sought approval of a proposed settlement in a class action proceeding under the Class Proceedings Act.

The settlement involved claims that the defendant charged duplicative non-sufficient funds fees on pre-authorized debit transactions without proper disclosure.

The court approved a settlement fund of $7,050,000, with each of approximately 172,000 class members receiving an estimated $25 after deductions for counsel fees, taxes, disbursements, and funder's levy.

The court also approved class counsel fees and an honorarium of $5,000 to the representative plaintiff.

The plaintiff sought certification of a class proceeding against the defendant bank, alleging the improper charging of duplicative non-sufficient funds (NSF) fees on re-presented pre-authorized debit transactions.

The defendant consented to the certification.

The court, applying the five criteria under section 5(1) of the Class Proceedings Act, 1992, found that the pleadings disclosed a cause of action, there was an identifiable class, common issues were raised, a class proceeding was the preferable procedure, and the representative plaintiff was adequate.

Consequently, the action was certified as a class proceeding.

The plaintiff sought to certify a class proceeding against the defendant bank, alleging breach of contract and unjust enrichment due to the bank's practice of charging duplicative non-sufficient funds (NSF) fees on re-presented pre-authorized debits.

The motion for certification was brought with the defendant's consent.

The court applied the five-part test under section 5(1) of the Class Proceedings Act, 1992, finding that the pleadings disclosed a cause of action, there was an identifiable class, common issues were raised, a class proceeding was the preferable procedure, and the representative plaintiff was adequate.

The court granted the certification order.

The Superior Court of Justice approved identical third-party funding agreements in four related class actions against major Canadian banks.

The actions allege that the banks charged duplicative non-sufficient funds fees on single dishonoured pre-authorized debits.

The court, applying Section 33.1 of the Class Proceedings Act, 1992, found the agreements to be fair and reasonable, noting the staged success fee was comparable to or more advantageous than the Class Proceedings Fund levy.

The court confirmed the agreements preserved plaintiff control over litigation, ensured the funder's financial capacity for adverse costs, and included appropriate confidentiality and deemed undertaking provisions.

The defendants took no position on the motions.

The plaintiff, Tyler Dufault, moved for court approval of a class action settlement against The Toronto-Dominion Bank and The Canada Trust Company concerning the practice of charging multiple non-sufficient funds (NSF) fees on re-presented pre-authorized debits.

The proposed settlement included an all-inclusive payment of $15.9 million, direct distribution of funds to eligible class members, and non-monetary changes to the defendants' NSF fee disclosure and reversal policies.

The court approved the settlement, finding it fair, reasonable, and in the best interests of the class, noting the high take-up rate due to direct distribution and the significant non-monetary benefits.

The court also approved class counsel's fees and disbursements, third-party funder fees, and a $10,000 honorarium for the representative plaintiff.

The plaintiff, Robyn Ramanauskas, brought a consent motion to certify a class proceeding against the Bank of Montreal.

The action alleged that the bank charged duplicative non-sufficient funds (NSF) fees on re-presented pre-authorized debit transactions, constituting breach of contract and unjust enrichment.

The court found that all criteria under s. 5(1) of the Class Proceedings Act, 1992 were met, including disclosure of a cause of action, an identifiable class, common issues, preferable procedure, and an adequate representative plaintiff.

The motion for certification was granted.

The plaintiff brought a motion on consent to certify a class proceeding against the defendant bank regarding its practice of charging multiple non-sufficient funds (NSF) fees on re-presented pre-authorized debit transactions.

The court reviewed the five-part test under section 5(1) of the Class Proceedings Act, 1992.

Finding that the pleadings disclosed a cause of action in breach of contract and unjust enrichment, and that the other criteria including an identifiable class and common issues were met, the court granted the consent certification order.

The plaintiff moved for approval of a class action settlement, class counsel fees, and a representative plaintiff honorarium.

The action alleged the defendants failed to provide timely refunds for tickets to events cancelled or postponed due to the COVID-19 pandemic.

The settlement provided $5 credits per ticket and a cy-près distribution to a music education charity.

The court found the settlement fair and reasonable, approved class counsel fees of $30,000 plus disbursements and HST, and granted a $500 honorarium to the representative plaintiff.

The defendants brought a motion for leave to appeal the order of Belobaba J. dated May 6, 2022.

The Divisional Court dismissed the motion for leave to appeal.

Costs were awarded to the plaintiff in the agreed-upon amount of $3,500.

The Toronto-Dominion Bank sought summary judgment to dismiss a proposed class action alleging that it improperly charged a second Non-Sufficient Funds (NSF) fee for a single rejected payment that was subsequently re-presented by a third-party payee (PayPal).

The plaintiff argued that the bank's standard consumer banking agreement did not disclose this second fee, constituting a breach of contract, a contravention of consumer protection law, and unjust enrichment.

The court found that the NSF provision in the agreement unambiguously applied only to payments initiated by the customer, not to re-presentments by third parties.

The bank's argument that federal "Network Rules" mandated the second fee or informed the agreement's interpretation was rejected, as these rules were not known to consumers and did not address NSF fees.

Consequently, the bank's motion for summary judgment was dismissed, allowing the class action to proceed to certification.

The defendants in a proposed class action regarding NSF fees brought a motion under s. 4.1 of the amended Class Proceedings Act to have their summary judgment motion heard before the plaintiff's certification motion.

The court interpreted the new s. 4.1, finding it creates a presumption that pre-certification motions which may dispose of or narrow the proceeding should be heard first, unless there is a good reason to hear them together.

Finding that the defendants' summary judgment motion raised genuinely arguable issues and was not a delay tactic, the court granted the sequencing motion.