Ian C. Matthews

The defendants sought leave to appeal an order certifying a class proceeding for unpaid overtime on behalf of approximately 7,800 employees.

The defendants argued the certification decision conflicted with appellate authority regarding systemic practices and misclassification.

The Divisional Court dismissed the motion for leave to appeal, finding no conflicting decisions and no good reason to doubt the correctness of the motion judge's order, as the plaintiff had properly framed the case around a systemic policy rather than individual misclassification.

The plaintiffs and the defendant OLG brought cross-motions regarding discovery in an action for damages arising from the cancellation of the Slots at Racetrack Program.

The plaintiffs sought an order compelling OLG to produce relevant emails sent or received by current and former OLG employees on personal, non-OLG email accounts, and to produce OLG's email use and document retention policies.

OLG sought leave to conduct an advance form of discovery by written questions prior to oral examinations.

The court adjourned both motions, ordering OLG to produce its IT and document retention policies for the court's review, and granting the parties leave to file further affidavit evidence regarding OLG's request for written particulars.

The plaintiff in a certified class action brought a motion to strike the defendants' reply factum filed on a motion for leave to appeal.

The plaintiff argued the reply factum violated Rule 61.03.1(11) of the Rules of Civil Procedure by re-arguing issues rather than responding to new issues.

The Divisional Court agreed, finding that the plaintiff's responding factum did not raise new issues but merely responded to the defendants' original arguments.

The motion was granted, the reply factum was struck, and costs of $5,000 were awarded to the plaintiff.

The plaintiffs brought a proposed class action alleging a price-fixing conspiracy regarding lithium ion batteries.

Two foreign defendants, NEC Corporation and NEC Tokin Corporation, brought a motion to stay or dismiss the action against them for lack of jurisdiction simpliciter.

The court granted the motion, finding that the plaintiffs failed to establish a good arguable case that the moving defendants carried on business in Ontario or committed the tort of conspiracy in Ontario, as there was no evidence that their batteries reached Ontario through normal channels of trade or that they participated in acts causing damage in Ontario.

The plaintiff brought a proposed class action for the common law tort of intrusion upon seclusion after hospital staff improperly accessed patient records.

The defendants moved to strike the claim, arguing that the Personal Health Information Protection Act (PHIPA) constitutes an exhaustive code that ousts the Superior Court's jurisdiction.

The Court of Appeal dismissed the appeal, holding that PHIPA does not create an exhaustive code.

The Act's language, its highly discretionary review procedure tailored for systemic issues, and its explicit contemplation of other proceedings indicate that the legislature did not intend to preclude common law claims for breach of privacy.

The plaintiffs, standardbred horse breeders and related entities, moved for an imposed discovery plan and broad documentary production in a $60 million action arising from the termination of the Slots at Racetracks Program.

The court held that the defendants had not filed cogent evidence under Rule 29.2.03 to justify restricting otherwise relevant productions on proportionality grounds.

The court ordered both defendants to run the plaintiffs’ proposed search terms for affidavit-of-documents purposes, but limited most searches to January 1, 2009 through December 31, 2012, while extending searches involving SARP or HIP terminology back to January 1, 1998.

Ontario’s motion to file further affidavit material was dismissed, and the plaintiffs’ request for custodian details was dismissed without prejudice.

In a proposed class proceeding alleging a worldwide conspiracy to fix lithium ion battery prices, the plaintiffs sought leave to file a supplemental law clerk affidavit after cross-examining the affiant on the foreign defendants' jurisdiction motion.

The court held that leave under rule 39.02(2) should be granted sparingly and only where the moving party meets a very high threshold.

The proposed affidavit was relevant but not important to the plaintiffs' jurisdiction theory, which did not depend on disproving the affiant's evidence about direct or indirect Canadian sales.

The plaintiffs also failed to provide an adequate explanation for why the material could not have been included before cross-examination.

Leave was denied and there was no order as to costs.

Following the dismissal of a proposed class proceeding and the granting of summary judgment in favour of the defendant, the court addressed the issue of costs.

The defendant sought partial indemnity costs of over $321,000, while the plaintiffs argued that a substantially lower award was appropriate and invoked s. 31(1) of the Class Proceedings Act, 1992, asserting the action raised a novel legal issue.

The court held that although the case contained some novel aspects, it was primarily a private financial dispute and not a public interest test case warranting a reduction of costs.

Applying the principles from Boucher v. Public Accountants Council for the Province of Ontario and Rule 57.01 of the Rules of Civil Procedure, the court assessed whether the claimed costs were fair and reasonable.

The court concluded that the defendant’s claimed costs exceeded what the unsuccessful plaintiffs could reasonably be expected to pay and fixed costs at $200,000 all inclusive.

The proposed representative plaintiffs sought certification of a class action alleging that fellows at a teaching hospital were contractually entitled to receive fellowship stipends on a tax‑free basis and that the defendant payroll management entity breached the employment contracts by later withholding income tax without grossing up compensation.

The defendant opposed certification and brought a motion for summary judgment dismissing the action.

The court held that although the defendant could be considered an employer within a common‑employer structure, there was no express, implied, or collateral contractual term guaranteeing tax‑free fellowship payments.

Because the alleged promise of tax‑free compensation could not be established and damages claims were untenable, the individual claims failed.

Certification was also denied because the key issues were individualized and the proposed plaintiffs were not adequate representatives.