J. Adam Dewar

The moving parties brought a motion to quash an appeal.

The responding party argued the appeal should proceed, asserting the order below was not made on consent and the court lacked jurisdiction, while also appealing the costs component.

The Court of Appeal granted the motion and quashed the appeal, finding that the communication contemplated by the order below had already been sent, rendering the order spent and the appeal moot.

The court also noted that no leave to appeal costs had been sought.

The moving parties, who were granted carriage of the Ontario Volkswagen class action, brought a motion alleging that the responding law firm breached the carriage order by sending a misleading email soliciting putative Ontario class members.

The responding firm agreed to send a court-approved clarifying email and not to execute any retainer agreements received from Ontario residents.

The court awarded the moving parties $40,000 in costs on a substantial indemnity basis due to the responding firm's reprehensible conduct in breaching the court order.

Multiple motions arising from five civil proceedings related to the Algo Centre Mall collapse sought transfer of a certified class action to Sault Ste.

Marie, trial together or common case management of related actions, and appointment of a single motions judge.

The court held that opt-out plaintiffs in separate proceedings lacked standing under rule 13.1.02 to seek transfer of the class action, and in any event failed to show that Sault Ste.

Marie was a significantly better venue than Toronto in the interest of justice.

The court further declined relief under s. 107(1) of the Courts of Justice Act because any transfer necessary to enable common case management or trial together would impose substantial cost and inefficiency, particularly given the existing class action case management structure.

Appointment of a rule 37.15 judge was also refused.

In a class action under the Class Proceedings Act, 1992, the court determined the costs consequences of an earlier production motion concerning potentially privileged documents.

The moving parties sought production of documents held by other law firms that were within the power, possession, or control of the plaintiff.

The court had previously granted production with respect to one set of documents but denied production for another.

On the costs issue, the court held that the moving parties were successful and were entitled to costs, but that the costs should be payable in the cause given the plaintiff’s legitimate need to protect solicitor-client privilege.

The court awarded each successful moving party $10,000, all inclusive, payable in the cause.

Following certification of a class action concerning an allegedly negligent tax opinion related to a timeshare charitable donation program, the court was required to determine costs of the certification motion after the Court of Appeal reversed the motion judge and certified the action.

The plaintiff sought more than $355,000 including substantial indemnity costs based on an unaccepted offer to settle.

The court rejected substantial indemnity costs, finding the offer tactical and unlikely to be accepted given a serious limitation defence.

Exercising discretion, the court awarded partial indemnity costs totaling $298,582.71, with $150,000 payable in the cause and the remainder payable forthwith.

No costs were ordered against certain third parties who had limited participation in the certification motion.

The appellant appealed an order striking out claims for breach of contract based on representations in an information folder regarding the Can-Am Fund.

The Court of Appeal upheld the motion judge's finding that it was plain and obvious no cause of action existed for breach of contract, given the governing statutory scheme and warnings in the materials.

The application for leave to appeal the costs order was also dismissed.

Following a class action certification motion where the plaintiff achieved certification for five insurance policies but the defendant successfully struck claims regarding 48 other policies, both parties sought costs payable forthwith.

The court held that because success was divided—with the plaintiff achieving procedural success and the defendant achieving substantial substantive success—the normal rule of awarding costs to the successful party did not apply.

The court ordered the costs of the certification motion to be in the cause.

The moving party (respondent on the appeal) brought a motion for directions in a class action appeal, seeking to exclude certain extrinsic evidence from the appeal record.

The moving party argued that because the appeal concerned the motion judge's decision to strike claims under s. 5(1)(a) of the Class Proceedings Act, which is analogous to a Rule 21.01(1)(b) motion, extrinsic evidence was inadmissible.

The responding party (appellant) argued the motion judge made determinations of mixed fact and law that required the evidence.

The court dismissed the motion, holding that the panel hearing the appeal should have the same material as the motion judge, leaving the admissibility of the evidence to be argued before the panel.

This is a costs endorsement following an appeal.

The Court of Appeal ordered no costs of the appeal against the third party.

The costs of the certification motion were remitted to the motion judge to be dealt with in light of the Court's reasons.

The respondent was ordered to pay the appellant's costs of the appeal on a partial indemnity basis in the amount of $50,000 for fees and $10,000 for disbursements, plus applicable taxes.

The plaintiff sought certification of a proposed class action against an insurer relating to the performance of the Can‑Am segregated fund offered through multiple insurance contracts.

The plaintiff alleged breach of express or implied contractual terms requiring the fund to replicate the S&P 500 on a best‑efforts basis, as well as negligent misrepresentation in pre‑contract information folders.

The court held that only five insurance contracts contained an express “best‑efforts” term capable of supporting a breach of contract claim, and claims based on implied terms or collateral contracts were legally untenable due to statutory entire‑agreement provisions and the non‑contractual status of information folders.

Although negligent misrepresentation disclosed a cause of action, the court found that individual reliance, causation, and damages issues overwhelmed the common issues such that a class proceeding was not the preferable procedure.

Certification was therefore granted only for breach of express contractual terms for the five specified policy forms, subject to exclusion of statute‑barred claims.

The representative plaintiff in a certified class proceeding sought court approval of a proposed settlement under s. 29(2) of the Class Proceedings Act, 1992.

The action alleged that a private college failed to adequately disclose that its dental hygiene program lacked accreditation, delaying graduates’ eligibility to write licensing examinations.

After six years of litigation and two unsuccessful mediations, the parties reached a settlement providing $115,000 to be distributed among class members and a $60,000 contribution toward class counsel’s costs.

The court held that the settlement was fair, reasonable, and in the best interests of the class, despite a single objection concerning allocation.

The court also approved the negotiated contribution to class counsel’s fees given the significant litigation risk and modest recovery relative to counsel’s expenditures.

The representative plaintiff brought a proposed class action against the defendant bank for unpaid overtime, alleging breach of contract, unjust enrichment, and negligence due to systemic policies requiring pre-approval for overtime and inadequate record-keeping.

The motion judge certified the action, and the Divisional Court upheld the certification.

On appeal, the Court of Appeal upheld the certification of most common issues and agreed that a class proceeding was the preferable procedure.

However, the Court allowed the appeal in part, striking the common issue regarding the aggregate assessment of damages under s. 24(1) of the Class Proceedings Act, finding that damages could not reasonably be calculated without proof by individual class members.

The plaintiff brought a proposed class action against Ontario on behalf of individuals who contracted SARS during the 2003 outbreak, alleging negligence in the province's handling of the crisis.

Ontario moved to strike the statement of claim as disclosing no reasonable cause of action.

The Court of Appeal applied the Cooper-Anns test and concluded that no relationship of proximity existed between the plaintiff and Ontario capable of giving rise to a private law duty of care.

The court held that the government's public law duty to protect the health of residents does not translate into a private law duty owed to specific individuals.

The plaintiff's appeal was dismissed, Ontario's cross-appeal was allowed, and the claim was struck in its entirety.

The plaintiffs, a special needs child and his mother, brought a proposed class action against Ontario for negligence and misfeasance in public office, alleging the government unlawfully terminated special needs agreements under section 30 of the Child and Family Services Act.

The Court of Appeal held that the statement of claim failed to disclose a cause of action.

The court found that the statutory discretion to enter into voluntary agreements did not create a private law duty of care, and the plaintiffs failed to plead specific facts demonstrating intentional wrongdoing by a public officer required for misfeasance in public office.

The appeal was allowed and the certification order was set aside.

The plaintiffs sued Ontario in negligence, alleging the province failed to prevent the outbreak of West Nile Virus in 2002, resulting in the deceased contracting the virus and dying from complications.

Ontario moved to strike the statement of claim for disclosing no reasonable cause of action.

The motions judge and Divisional Court dismissed the motion.

On appeal, the Court of Appeal allowed the appeal and struck the claim, holding that the Health Protection and Promotion Act imposes a general public law duty to protect health, but does not create a private law duty of care owed to specific individuals to prevent the spread of infectious diseases.

The appellants appealed a decision dismissing their motion to certify a class proceeding against the provincial government.

The action alleged negligence, breach of statutory duty, and misfeasance in public office arising from the government's decision to discontinue entering into Special Needs Agreements for profoundly disabled children.

The Divisional Court allowed the appeal, finding that the motion judge erred in concluding it was plain and obvious the negligence claim could not succeed.

The court held that the statement of claim disclosed arguable causes of action and that a class proceeding was the preferable procedure.