James David Bunting

On a certification motion in a proposed national class action concerning online travel and accommodation booking websites, the moving parties alleged misleading search result, discount, and urgency practices under the Competition Act, consumer protection statutes across Canada, and unjust enrichment.

The court held the pleaded statutory and restitutionary claims were legally deficient, including because the remedies pursued were unavailable, reliance and compensatory loss were not properly established where required, and several provincial and territorial claims were not properly pleaded.

The court also held there was no some basis in fact that two or more class members suffered compensable harm, as the alleged injury was disappointment from not choosing psychologically or economically preferable accommodation.

Aggregate damages and punitive damages were not certifiable common issues, and a class proceeding was not the preferable procedure.

The plaintiffs in a class proceeding sought approval of the long-form and short-form notices to be distributed to affected class members following a previously approved settlement.

The court approved the notices, finding them to be in plain language and clear regarding participation and opt-out procedures.

The court also permitted the notices to be distributed in English only, as the defendant only provided services in English.

The defendants brought a motion for leave to appeal an order of the Superior Court of Justice.

The Divisional Court dismissed the motion for leave to appeal and awarded agreed costs of $15,000 to the responding plaintiff.

This decision addresses a class action arising from a cyber breach of CarePartners' computer system.

The plaintiffs sought certification of the class for settlement purposes, approval of the settlement agreement, and approval of class counsel fees and honoraria for the representative plaintiffs.

The court granted all motions, certifying the class, approving a $3.44 million settlement fund, a 20% contingency fee for class counsel, and $5,000 honoraria for each representative plaintiff.

The judgment notably provides a detailed analysis and affirmation of the practice of awarding honoraria to representative plaintiffs in class actions, disagreeing with a recent decision that sought to end the practice, and outlining factors for assessing their quantum.

The plaintiff brought a motion to enjoin unidentified defendants (John Doe and Jane Doe) from posting defamatory online reviews and to require the removal of existing reviews.

The court granted the injunction against the unidentified authors.

Additionally, the court set aside its previous injunction and Norwich Order against Google after the parties jointly submitted that Google had not been properly served by email under Rule 16.01.

A new consent order regarding Google's disclosure of the reviewers' identities was issued.

The plaintiff brought a motion to certify a class action against the manufacturers of COLD-FX products, alleging that representations that the products were 'proven by science' or 'clinically proven' to reduce cold and flu symptoms were false and misleading.

The court found that the plaintiff met all the requirements for certification under section 5 of the Class Proceedings Act.

The court held that the claims under the Consumer Protection Act, the Competition Act, and for unjust enrichment disclosed valid causes of action, as reliance is not required for these claims.

The court certified the class and the proposed common issues against Bausch Health Canada Inc. and Valeant Canada LP, finding that a class proceeding was the preferable procedure.

The appellants, an Indian law firm and its senior partner, appealed the dismissal of their motion to stay or dismiss an action brought by Kyko Global Inc., an Ontario corporation.

The action alleged negligent and fraudulent misrepresentation and breach of contract related to a legal opinion provided by the appellants.

The appellants argued that Ontario lacked jurisdiction and was not the convenient forum.

The Court of Appeal upheld the motion judge's decision, finding that Ontario had jurisdiction simpliciter based on presumptive connecting factors (tort occurring in Ontario, contract made in Ontario) and that the appellants failed to demonstrate that Mumbai, India, was a clearly more appropriate forum.

The appeal was dismissed with costs.

Powerhouse Corporation appealed a Licence Appeal Tribunal (LAT) decision granting it a liquor licence but imposing a condition prohibiting outdoor amplified music at its Cabana pool bar.

The City of Toronto cross-appealed, arguing the licence should have been refused entirely because Powerhouse's application was an abusive attempt to circumvent existing noise conditions on the venue's prior licence.

The Divisional Court dismissed both appeals.

The Court held the LAT correctly interpreted its limited jurisdiction under s. 6(2)(h) of the Liquor Licence Act and properly applied an objective standard to assess noise disturbances affecting Toronto Island residents.

The Court also rejected Powerhouse's procedural fairness arguments regarding an incomplete hearing transcript and alleged lack of notice.

The plaintiffs in a proposed consumer protection and competition law class action sought court approval of a third-party funding agreement with Harbour Fund IV.

The plaintiffs, who are of modest means, required the funding to prosecute the action against several large travel booking companies.

The court applied the four-factor test for third-party funding and found the agreement was not champertous, was necessary for access to justice, and adequately protected the defendants' interests.

The motion was granted and the funding agreement was approved.

The respondent, Google Canada, brought a motion in writing on consent to dismiss the application against it and to dismiss the applicant's motion to add proposed respondents.

The court adjourned the motion, finding several procedural deficiencies.

Specifically, the underlying application and motion were previously stayed and the stay had not been lifted, the moving party failed to provide necessary evidence or copies of the originating processes, and there was no basis to proceed without notice to the other named respondents.

The plaintiff, Robert Drynan, brought a motion to approve a third-party litigation funding agreement in a class action against Bausch Health Companies Inc. and related entities, alleging misleading marketing of COLD-FX® products.

The court addressed the defendants' objections concerning security for costs, litigation autonomy, overcompensation, and access to justice.

After amendments to the funding agreement to cap recovery for the funder and class counsel at 33.3% of proceeds and defer court approval for certain expenses, the court approved the agreement, finding it fair, reasonable, and conducive to access to justice, while protecting the defendants' interests.

The plaintiffs, three Russian cyclists, sued the World Anti-Doping Agency (WADA) and Richard McLaren for damages, alleging they were falsely implicated in a state-sponsored doping scheme and wrongfully excluded from the 2016 Rio Olympic Games.

The defendants moved for summary judgment to dismiss the action on the grounds that the Court of Arbitration for Sport (CAS) had exclusive jurisdiction and that the action was an abuse of process.

The Superior Court of Justice granted the motion, finding that the essential character of the dispute fell within the broad arbitration clauses of the Olympic Charter and the athletes' entry forms.

The court also held that the action was an abuse of process as the plaintiffs were attempting to re-litigate a dispute they had already brought before the CAS.

This endorsement fixes the quantum of costs following a prior decision where WCL Capital Group Inc.'s cross-motion was dismissed and Google LLC's motion to permanently stay WCL's action was granted.

WCL was ordered to pay costs to Google and Amex Bank of Canada on a partial indemnity basis.

The court assessed the cost outlines, considering factors under Rule 57.01(1), including complexity, importance, and proportionality.

It found Google's claimed hourly rates and total hours excessive, noting duplication with Amex's submissions and disproportionality to the amount in issue.

The court fixed Amex's all-inclusive costs at $18,000 and Google's all-inclusive costs at $30,000.

The plaintiff sued the defendant over disputed online advertising charges billed to its credit card.

The defendant moved to stay the action based on a forum selection clause in its terms of service requiring disputes to be litigated in California.

The plaintiff brought a cross-motion to add the credit card company as a defendant and amend its claim.

The court dismissed the motion to add the credit card company, finding the claim premature as the plaintiff must first prove its claim against the defendant.

The court granted the defendant's motion to stay the action, holding that the forum selection clause was valid, enforceable, and not unconscionable, and that the plaintiff failed to show strong cause to avoid it.

The plaintiffs, three Russian cyclists, sued the World Anti-Doping Agency (WADA) and Richard McLaren for damages related to their exclusion from the 2016 Olympic Games.

The defendants brought Rule 21 motions to dismiss or permanently stay the proceeding for lack of jurisdiction and abuse of process, and to strike the statement of claim against McLaren.

The court found that resolving the jurisdictional issues would require extensive fact-finding, including assessing conflicting expert opinions and credibility, which exceeds the scope of a Rule 21 motion.

Consequently, the Rule 21.01(3) motions were ordered to be reconstituted as Rule 20 summary judgment motions or a trial of issues, and McLaren's Rule 21.01(1)(b) motion was deferred.

The plaintiff, Husky, brought an action against its founder, Robert Schad, his new company Athena, and others, alleging misuse of confidential information relating to injection molding machines.

Husky claimed that Athena accessed confidential information from Husky machines placed at a third-party facility (Niigon) and used it to develop competing machines.

The defendants argued the claims were statute-barred, that most issues were settled during prior negotiations, and that no confidential information was misused.

The court dismissed Husky's claims, finding they were statute-barred as Husky knew of the material facts more than two years before commencing the action.

The court also found that the commercially available machines were not confidential, and that Athena did not make material use of any confidential information from the prototype machines.

Athena's counterclaim for abuse of process and injurious falsehood was also dismissed for lack of evidence.

Following the dismissal of their appeals from decisions of the Environmental Review Tribunal regarding wind farm approvals, the appellant landowners argued they should not pay costs because the litigation was in the public interest.

The Divisional Court held that while the appeals were not public interest litigation that would merit no costs, they did contain a strong public interest component regarding the constitutionality of the legislative regime.

Taking this into account, along with the lack of particularity in the respondents' bills of costs and the lower scale of costs typically awarded on appeals to the Divisional Court, the court awarded reduced partial indemnity costs to the successful respondents totaling $67,000.

The moving defendants sought an order that further particulars of an injurious falsehood counterclaim be disclosed only subject to an undertaking limiting use of the information to the litigation.

The court held that the demanded particulars were material facts that had to be pleaded and filed, and were therefore subject to the open court principle.

The deemed undertaking rule did not apply to pleadings, public interest privilege did not extend to protect sources of private litigants, and there was no gap in the Rules warranting use of inherent jurisdiction.

The motion was dismissed and costs of $5,000 were awarded to the responding plaintiff.

The appellants, residents living near three proposed wind turbine farms, appealed decisions of the Environmental Review Tribunal (ERT) that confirmed the Director's issuance of Renewable Energy Approvals (REAs) for the projects.

The appellants argued that the statutory test requiring them to prove the projects would cause 'serious harm to human health' violated section 7 of the Charter.

The Divisional Court dismissed the appeals, finding that the statutory test aligned with the jurisprudential threshold for section 7 claims and did not depart from the consensus scientific view on wind turbines.

The Court also upheld the ERT's treatment of lay witness evidence, its finding that it lacked jurisdiction to review the Director's REA issuance process for Charter compliance, and its discretionary decisions denying adjournments.

The appellants brought motions to stay the construction of two wind turbine projects pending their appeals of the Environmental Review Tribunal's decisions upholding the Renewable Energy Approvals.

The court found it lacked jurisdiction under the Rules of Civil Procedure or the Environmental Protection Act to stay the Director's approvals directly, treating the motions as requests for interlocutory injunctions.

Applying the RJR-MacDonald test, the court found a serious issue to be tried but concluded the appellants would not suffer irreparable harm prior to the appeal hearing, as the turbines would not be operational by then.

The motions were dismissed.