J. Adam Dewar

This was a certification motion in a proposed national employment class action alleging that commission-only mortgage specialists were not paid vacation and holiday pay on their full variable compensation contrary to the Canada Labour Code and related contractual and equitable duties.

The court held that the pleaded claims for breach of contract, negligence, breach of fiduciary duty, unjust enrichment, breach of trust, and breach of duty of good faith were not plainly doomed to fail, and that there was some basis in fact for common liability issues and aggregate damages.

The court also held that the common issues predominated for preferable procedure purposes despite disputes about limitation periods and varying employment documents.

Certification was granted except for punitive damages, for which the record did not provide some basis in fact.

The appellant sought to certify a class action against the municipality for property damage caused by pinhole leaks in copper plumbing, allegedly resulting from the addition of sodium hydroxide to the municipal water supply.

The motion judge certified the negligence claim but struck the nuisance claim, finding it barred by s. 449 of the Municipal Act, 2001, which precludes nuisance claims related to the escape of water from water works.

The Court of Appeal upheld the decision, agreeing that the nuisance claim was plainly and obviously barred by the ordinary meaning of the statute.

The Court also dismissed the appellant's argument that a breach of contract claim should have been certified, as it was not argued before the motion judge.

This is a costs endorsement from the Court of Appeal for Ontario.

The parties settled the issue of costs for the appeal.

The appellant, Anna Barbiero, was ordered to pay the respondent, Dr. Sheldon Victor Pollack, $10,000 in costs, inclusive of disbursements and applicable taxes.

The appellant, Anna Barbiero, sought to overturn the dismissal of a 21-year-old certified class proceeding against Dr. Sheldon Victor Pollack for unlawfully injecting Liquid Injectable Silicone.

The motion judge dismissed the action for inordinate and inexcusable delay.

The Court of Appeal upheld the dismissal, emphasizing the need for a "culture shift" in civil justice to combat delay, finding the Langenecker approach to delay out of step with the Supreme Court of Canada's Hryniak decision.

The court found the 21-year delay inordinate and inexcusable, and the appellant failed to demonstrate error in the prejudice analysis or the exercise of discretion.

The defendant, Dr. Sheldon Victor Pollack, brought a motion to dismiss a certified class action for delay under the Class Proceedings Act, 1992, and Rule 24.01 of the Rules of Civil Procedure.

The class action, initiated in 2003 by the representative plaintiff Anna Barbiero, alleged medical negligence and battery related to Dr. Pollack's injection of Injectable Grade Liquid Silicone (IGLS) for lip augmentation.

The court found the 21-year delay inordinate and inexcusable, with significant periods of unexplained inactivity.

The plaintiff failed to rebut the strong presumption of prejudice, and actual prejudice was established due to the loss of the IGLS sample, which was crucial for the defendant's ability to test its composition and defend against liability and causation claims.

The court granted the motion, dismissing the class action for delay, and ordered that notice be provided to class members.

The plaintiff in a certified class action regarding unpaid statutory vacation and holiday pay moved to settle the Notice Plan and Notice of Certification.

The parties disagreed on the opt-out deadline, the contents of the opt-out affidavit, and the text of the Notice of Certification.

The court held that the opt-out deadline should be 60 days after the last notice is published and that the opt-out affidavit must identify the individuals who opted out.

However, the court rejected the defendants' proposed revisions to the Notice of Certification, finding them to be unnecessary, unfair, and potentially intimidating to class members.

The Notice of Certification was approved substantially in the form drafted by class counsel.

The plaintiff sought approval of a $7 million settlement and class counsel fees in a class proceeding against an insurance company regarding the performance of an investment fund.

The action, which spanned 20 years, involved claims of breach of contract and negligent misrepresentation.

The court found the settlement to be fair, reasonable, and in the best interests of the class, given the significant litigation risks.

The court also approved class counsel's 30% contingency fee, noting the high risks undertaken and the good result achieved for the class.

Following the death of the judge who certified this national class action regarding vacation and public holiday pay, the parties could not agree on the terms of the certification order.

The plaintiff brought a motion to settle the order under rule 59.04(14).

The court settled the class definition start dates by applying the ultimate limitation periods for provinces that have them, and the basic limitation periods (adjusted for Covid-19 suspensions) for provinces that do not.

The court also compendiously restated the liability common issue to include unjust enrichment.

The plaintiff brought a motion to certify a class action against the City of Thunder Bay for negligence and private nuisance, alleging that the City's addition of sodium hydroxide to the municipal water supply caused pinhole leaks in copper plumbing pipes, resulting in property damage.

The City brought a cross-motion to strike the nuisance claim, arguing it was barred by s. 449 of the Municipal Act, 2001, which provides immunity for nuisance claims connected to the escape of water from water works.

The court granted the City's motion to strike the nuisance claim, finding it was plainly and obviously barred by the statute.

The court granted the plaintiff's motion to certify the negligence claim, finding it met all the criteria under the Class Proceedings Act, 1992.

Class counsel sought approval of a $44 million contingency fee following a $153 million settlement in an unpaid overtime class action against CIBC.

The court found the requested fee, representing 30% of the settlement, to be excessive and potentially champertous given the megafund nature of the settlement.

The court approved a reduced fee of $25 million (17% of the settlement), finding it provided fair compensation for the risks undertaken while protecting the integrity of the profession.

The court also denied the representative plaintiff's request for a $30,000 honorarium, finding her involvement was not extraordinary enough to justify the award.

The plaintiff brought a motion to certify a national class action alleging that the defendant brokerage firm failed to provide vacation and public holiday pay to commissioned employees in breach of employment standards legislation.

The defendant argued that commissions continued to be paid while employees were on vacation and that the onus was on employees to prove non-payment.

The court found that the employer bears the burden of proving statutory payments were recorded and made, and that the absence of a class-wide system to record and report these obligations provided some evidence of commonality.

The court certified the class action, finding all requirements under section 5(1) of the Class Proceedings Act, 1992 were met.

The appellant appealed the dismissal of a motion to certify a class action on behalf of purchasers of Volkswagen and Audi diesel vehicles who sold their vehicles prior to the disclosure of the emissions defeat device.

The motion judge had found no plausible methodology to calculate damages on a class-wide basis.

The Divisional Court allowed the appeal, finding that the motion judge erred by requiring a tangible demonstration of the proposed methodology rather than merely assessing whether it met the low 'some basis in fact' threshold of plausibility.

The matter was remitted to a new judge to rehear the balance of the certification issues.

The moving parties (defendants) brought a motion for leave to appeal the orders of Belobaba J. dated January 6, 2022.

The Divisional Court dismissed the motion for leave to appeal, with costs fixed at $5,000 payable to the Foodland plaintiffs.

The Canadian Imperial Bank of Commerce appealed three lower court decisions in a class action initiated by Dara Fresco on behalf of 31,000 customer service employees.

The class action alleged that the Bank's overtime policies and record-keeping practices led to uncompensated overtime, contrary to the Canada Labour Code.

The Court of Appeal for Ontario dismissed all three appeals.

It upheld the motion judge's interpretation of "permitted" overtime under s. 174 of the Code, affirming that the Bank's policies and record-keeping were "institutional impediments" to proper compensation.

The Court also confirmed the certification of aggregate damages, ruling that the Supreme Court's Pro-Sys decision allowed the trial judge to reconsider this issue despite a previous refusal at certification.

Finally, the Court upheld the motion judge's decision to defer a class-wide limitations order and a constitutional question regarding the extra-territorial application of the Class Proceedings Act, deeming them premature.

The plaintiff sought to certify a class action on behalf of pre-disclosure owners and lessees of Volkswagen and Audi diesel vehicles containing 'defeat devices'.

The plaintiff alleged they paid a premium for a 'clean diesel' feature they did not receive.

The court dismissed the motion for certification, finding that the plaintiff failed to provide any evidence of a compensable loss or a plausible methodology to measure the alleged loss on a class-wide basis, as required under section 5(1) of the Class Proceedings Act.

The plaintiff brought a motion to approve a $19,000,000 settlement in a class action regarding unpaid overtime, as well as a distribution protocol and class counsel fees of 33%.

The court appointed amicus curiae to assist in assessing the reasonableness of the settlement and fees.

Finding the settlement to be a rational compromise based on expert analysis of electronic timekeeping data, and the contingency fee to be consistent with similar class proceedings, the court approved the settlement, distribution protocol, and class counsel fees.

This endorsement addresses a motion in a class proceeding for approval of the notice to class members regarding a proposed settlement and class counsel's fees and disbursements.

The court approved the notice and, recognizing the challenges of assessing unopposed fee applications, decided to appoint an amicus curiae to assist in evaluating the reasonableness of class counsel's fees and disbursements.

Directions were provided for serving materials on the appointed amicus.

In a certified national class action, the plaintiff proposed a notice plan for certification.

The defendant opposed the plan, arguing it was not robust enough to create binding issue estoppels in other jurisdictions, and proposed a more robust direct notice plan at the plaintiff's expense.

The court found that while the plaintiff's plan would normally be adequate, the defendant's concern regarding the recognition of an Ontario judgment by courts in other provinces was valid.

The court approved the defendant's more robust notice plan and ordered the costs to be shared one-third by the plaintiff and two-thirds by the defendant, as the defendant was the predominant beneficiary of the robust plan.

The appellant appealed a Divisional Court decision that allowed the respondent's appeal from a certification judge's refusal to certify a negligent misrepresentation claim as a class action.

The claim arose from a 'best efforts' statement in an information folder provided to investors in the appellant's investment fund.

The Court of Appeal dismissed the appeal, finding that a class action was the preferable procedure.

The Court held that the common issues of duty of care, falsity of the representation, and negligence would significantly advance the claims, and that the individual issues of reliance and damages could be managed within the class proceeding framework, thereby providing access to justice for claims that were not economically viable to litigate individually.

The plaintiffs in a proposed class action brought a contempt motion against Merchant Law Group LLP and two of its lawyers for allegedly breaching a carriage order that stayed MLG's Ontario action and prohibited similar class actions without leave.

The court found that MLG's subsequent emails to Ontario residents, which included retainer agreements referencing "class proceedings," were careless, unprofessional, and arguably in breach of the order.

However, the court could not find contempt beyond a reasonable doubt because the emails primarily discussed "joinder actions" and the clarity of the order regarding class actions was established after some of the impugned emails.

Despite dismissing the contempt motion, the court expressed strong displeasure with the respondents' conduct and ordered them to pay $5,000 in costs to the plaintiffs, and issued a further order clarifying future prohibitions on contacting Ontario residents for class actions.