Gillian P. Kerr

The plaintiff sought to certify a class action against Intuit Canada ULC and Intuit Inc., alleging that the defendants engaged in misleading advertising and 'drip pricing' by promoting their tax filing software as 'free' or 'free for simple tax returns', only to require users to pay to complete their filings after investing time in the software.

The court granted certification, finding that the pleadings disclosed valid causes of action under provincial consumer protection legislation, the Competition Act, and unjust enrichment.

The court approved the class definition, certified common issues relating to liability and aggregate damages (excluding punitive damages), and found that a class proceeding was the preferable procedure.

The defendants in a proposed class action regarding allegedly deceptive advertising of tax software brought a motion to strike a paragraph in the statement of claim and portions of the certification record.

The impugned materials referenced regulatory and civil litigation settlements in the United States concerning similar advertising by the parent company.

The court granted the motion, finding that the U.S. settlement was not sufficiently relevant to the Canadian claims and that admitting the foreign litigation evidence would needlessly expand the certification inquiry.

Two class action proceedings—one against TELUS Communications Company and related entities, and one against Bell Mobility Inc.—were brought by plaintiffs alleging that the defendants engaged in similar practices of rounding up seconds to minutes on cell phone bills.

The defendants moved to consolidate the two actions for trial or summary judgment.

The court granted the motion to hear the two summary judgment motions consecutively in a single three-week block of hearing time, finding that the common issues were identical and that separate proceedings would create an unnecessary multiplicity of litigation and risk inconsistent findings.

However, the court determined that the case management judge would not preside over the summary judgment motions, as the principles underlying Rules 37.15(1) and 77.06(2)—which prohibit a case management judge from presiding at trial without consent—apply equally to summary judgment motions.

The moving parties, comprising various social media companies including Meta, Snap, and TikTok entities, brought motions for leave to appeal the substantive and costs orders of Leiper J. The Divisional Court granted the motions for leave to appeal without costs and directed the parties to provide an agreed schedule for the exchange of appeal materials.

The plaintiff, Toronto District School Board, brought an action in negligence and public nuisance against several major social media corporations, alleging that their products were intentionally designed to be addictive to children and caused widespread mental health and behavioral issues among students.

The Board claimed it suffered direct economic damages in responding to these student harms, including increased costs for mental health services, security, and staff training.

The defendant corporations brought a motion to strike the statement of claim under Rule 21.01(1)(b) of the Rules of Civil Procedure, arguing that the claims had no reasonable prospect of success.

The Ontario Superior Court of Justice dismissed the motion, allowing the Board's novel claims in negligence and public nuisance to proceed.

The appellant, William Daniel Lewis, appealed a motion judge's decision dismissing a class action against Uber entities.

The core issue was whether the action, seeking a rebate of GST remitted to the government, was prohibited by the Excise Tax Act (ETA).

The Court of Appeal affirmed the motion judge's finding that section 312 of the ETA prohibits such actions, as the ETA provides a complete statutory framework for GST rebates, with exclusive jurisdiction vested in the Tax Court.

The court also agreed that section 224.1 of the ETA reinforces this statutory bar, extending protection from civil liability to tax collectors acting in compliance with the ETA.

The appeal was dismissed.

The parties to a putative class action agreed to discontinue the action with prejudice, as similar claims were being pursued in a proposed class proceeding in British Columbia.

The court approved the discontinuance pursuant to s. 29(1) of the Class Proceedings Act, 1992, and dispensed with the requirement to give notice to the class, noting the early stage of the proceeding and the continuation of the claims in British Columbia.

The plaintiff sought certification of a class action alleging that Uber improperly calculated Goods and Services Tax (GST) on pre-discounted Uber Eats orders, claiming violations of the Excise Tax Act (ETA), provincial consumer protection legislation, the Competition Act, breach of contract, and unjust enrichment.

The court dismissed the certification motion, primarily finding that the claim was barred by ss. 224.1 and 312 of the ETA.

The court characterized the action as an attempt to recover tax outside the comprehensive statutory scheme provided by the ETA, which includes a rebate mechanism.

Additionally, the court identified other deficiencies, including inadequate pleadings for certain causes of action, issues with class identifiability due to varying promotional language, and a lack of commonality among proposed issues, concluding that a class proceeding was not the preferable procedure.

The applicant, LifeLabs LP, brought a motion seeking additional disclosure from the Information and Privacy Commissioner of Ontario to complete the record for its application for judicial review.

The underlying application challenged a joint decision by the Ontario and British Columbia privacy commissioners rejecting LifeLabs' claims of privilege over documents related to a cyber-attack.

LifeLabs sought internal policies, correspondence between the commissioners, and documents generated during the decision-making process, alleging procedural unfairness.

The Divisional Court dismissed the motion, holding that the requested documents were protected by deliberative secrecy (adjudicative privilege) and that LifeLabs had not established a sufficient foundation of procedural unfairness to displace the privilege.

The appellants appealed a motion judge's decision striking their claims for breach of privacy, breach of confidence, and punitive damages against an insurer and its counsel.

The claims arose after the appellant's friend attended a Licence Appeal Tribunal case conference as a witness, and the insurer's counsel reported this to the insurer, who subsequently terminated the friend's employment.

The Court of Appeal dismissed the appeal, finding that the attendance at the tribunal and the provision of a witness list did not constitute private information, and that the insurer's counsel owed no duty to the appellants.

Furthermore, any claim regarding the insurer's bad faith handling of the accident benefits claim was barred by section 280 of the Insurance Act.

The plaintiff in a proposed price-fixing class action regarding linear resistors brought motions to discontinue the action against six defendants and to certify the action for settlement purposes against the Kamaya defendants.

The court approved the discontinuance, finding no prejudice to the class as tolling agreements were in place and there was no evidence of the discontinued defendants' involvement in the conspiracy.

The court also certified the action for settlement purposes, approving an expanded class definition that included British Columbia purchasers to facilitate a comprehensive settlement with the Kamaya defendants.

This is a costs endorsement following a successful appeal by Subway against the Canadian Broadcasting Corporation (CBC) in an anti-SLAPP motion.

Subway sought partial indemnity costs of $61,291.30.

CBC requested reconsideration of the costs award based on Supreme Court of Canada anti-SLAPP decisions (Pointes and Bent) or a reduction to $17,000.

The Court of Appeal upheld its decision to award partial indemnity costs, distinguishing the case from Bent due to the availability of substantial judicial guidance on s. 137.1 of the Courts of Justice Act prior to CBC's motion, and the significant costs incurred by Subway.

The court awarded Subway $40,000 in partial indemnity costs.

The plaintiffs in a price-fixing class action regarding electrolytic capacitors moved for court approval of a $5.9 million settlement with the Panasonic defendants, as well as approval of class counsel fees and disbursements.

The court found the settlement, which included significant cooperation from the settling defendants, to be fair, reasonable, and in the best interests of the class.

The court also approved the retainer agreements and the requested class counsel fees of $1,487,500 (25% of the settlement) and disbursements of $141,866.96, noting the complexity and risk of the litigation.

The plaintiff in a class action alleging a price-fixing conspiracy regarding film capacitors moved for approval of a settlement with the Panasonic defendants and for approval of class counsel fees.

The court found the $1.35 million settlement, which included valuable cooperation from the settling defendants, to be fair and reasonable despite being heavily discounted from the estimated exposure.

The court also approved the requested class counsel fees of 25% of the settlement, but ordered the payment to be split into two installments to incentivize counsel to advance the litigation more expeditiously.

This motion concerned the approval of class counsel's retainer agreement, fees, and disbursements following a partial settlement in a price-fixing class action.

The plaintiff class counsel sought approval for 25% of the settlement amount ($2.35 million) as fees, plus disbursements and interest.

The court reviewed the retainer agreements for compliance with the Class Proceedings Act, 1992, and assessed the reasonableness of the fees and disbursements based on established factors.

The court approved the retainer agreements and the requested fees and most disbursements, but declined to approve interest on disbursements at this stage, pending further developments in the ongoing litigation.

The plaintiff sought court approval for a class action settlement agreement with the Panasonic defendants in a price-fixing conspiracy action concerning linear resistors.

The settlement included a monetary payment of $2,350,000 and significant cooperation from the Panasonic defendants to assist in prosecuting the action against non-settling defendants.

The court approved the settlement, finding it fair, reasonable, and in the best interests of the class, considering the arm's length negotiations, the benefits of cooperation, and the risks of continued litigation.

However, the court rejected a proposed term in the draft order that would allow class counsel to use settlement funds for future disbursements, citing concerns about retainer agreements and counsel's financial risks.

The appellants, Subway, appealed the dismissal of their $210 million defamation action against the Canadian Broadcasting Corporation (CBC) under an anti-Strategic Litigation Against Public Participation (SLAPP) motion (s. 137.1 of the Courts of Justice Act).

The action arose from a CBC Marketplace report alleging Subway's chicken products contained only 50% chicken DNA.

The Court of Appeal found that the motion judge erred in applying a higher standard for the "no valid defence" test and in weighing the public interest.

The Court determined that Subway had established grounds to believe CBC had no valid defence of responsible communication and that the public interest in allowing the action to proceed outweighed the public interest in protecting the expression, given the significant reputational and financial harm alleged and the lack of urgency in disseminating unverified information.

The appeal was allowed, and the defamation action against CBC was permitted to continue.

The defendants brought a motion to strike the plaintiffs' claims for intrusion upon seclusion and all claims against the individual defendant lawyer, Costantino.

The plaintiffs cross-moved to amend their Statement of Claim to add new defendants and causes of action for breach of confidence and Human Rights Code violations.

The court found that the plaintiffs failed to plead the necessary elements for the tort of intrusion upon seclusion, as the disclosure of a witness list in a quasi-judicial proceeding was legally justified and not highly offensive.

The court struck the privacy claims and dismissed the action against the lawyer, finding she owed no duty of care to the opposing party's witness and her actions were protected by absolute privilege.

The plaintiffs' motion to amend was dismissed as the proposed claims were doomed to fail.

The plaintiffs brought a medical malpractice action against the defendant obstetricians, alleging that their negligence caused the infant plaintiff to suffer a severe brain injury.

Following a jury trial, the jury found that the defendants breached the standard of care and that the breaches caused the injuries.

However, the trial judge refused to enter judgment on the verdict, finding that the jury's answers explaining how the breaches caused the injuries were insufficient and non-responsive.

The trial judge ordered a new trial.

The plaintiffs appealed, arguing the trial judge exceeded her jurisdiction.

The defendants cross-appealed, arguing the action should have been dismissed for lack of evidence on causation.

The Divisional Court dismissed both the appeal and cross-appeal.

The majority held that the trial judge correctly concluded the jury's answers on causation were insufficient, as they merely repeated the breaches of the standard of care and failed to explain the causal link, leaving the central issue in doubt.