Emily Kim

This decision addresses costs following the dismissal of a class action certification motion.

The defendant, T.E.S. Contract Services Inc. (TES), sought substantial or partial indemnity costs.

The plaintiff, Ann Davidson, argued for no costs or significantly reduced costs, asserting the case was a test case, raised novel issues, or concerned public interest.

The court fixed costs on a partial indemnity scale, finding no egregious conduct by the plaintiff.

It rejected the plaintiff's arguments regarding public interest, novel issues, or test case status, and strongly criticized the suggestion that the representative plaintiff might be personally exposed to costs, emphasizing class counsel's duty to indemnify.

The court found TES's requested partial indemnity costs reasonable but deducted amounts related to the plaintiff's successful production motion and the defendant's abandoned motion to strike expert reports.

The plaintiff, Ann Davidson, brought a motion for certification of a proposed class action against T.E.S. Contract Services Inc. (TES), alleging misclassification of workers as independent contractors instead of employees, and seeking benefits under the Employment Standards Act, 2000.

The court dismissed the certification motion, finding no basis in fact for commonality regarding whether a s. 74.3 agreement (temporary help agency assignment) existed between TES and the putative class members, or whether a common law or s. 1(1) employment relationship could be determined on a class-wide basis.

The court concluded that individual inquiries would be required to determine employment status for each class member, as the evidence did not establish systemic commonality.

The defendants brought a motion under Rule 31.10 of the Rules of Civil Procedure seeking leave to examine two non-parties (the plaintiff's supervisor and a human resources representative) regarding the plaintiff's employment performance and termination.

The plaintiff alleged loss of income and earning capacity due to a motor vehicle accident.

The court dismissed the motion, finding that the defendants failed to satisfy the first conjunctive factor of Rule 31.10(2)(a), as they had not demonstrated that they were unable to obtain the information from the plaintiff or that the plaintiff had constructively refused to provide it.

The court noted that the plaintiff had answered questions to the best of her ability and had provided her employment file, and that the defendants had not asked her to undertake to inquire further from her former employer.

The defendant Jevco Insurance Company brought a motion under Rule 21.01 for a determination of a question of law: whether an automobile owned by the plaintiff's spouse, driven without consent by an uninsured driver, constitutes an "uninsured automobile" under the Insurance Act and the relevant insurance policy.

The court found that the statutory and contractual language explicitly excludes such a vehicle from the definition of "uninsured automobile" when it is owned by the insured or their spouse, even if the result may seem unfair.

Consequently, the plaintiff was not entitled to uninsured automobile coverage from Jevco.