James Sayce

In a class action, the Plaintiffs sought pre-discovery production of three million documents from Volkswagen Group Canada, Inc. et al. (VW), a non-party to the main action.

The motion was dismissed, and VW, as the successful party, sought partial indemnity costs of $29,487.29.

The Plaintiffs argued for a costs award of $5,000, contending the motion was straightforward.

The court considered the factors under Rule 57.01(1) of the Rules of Civil Procedure, including the importance and complexity of the motion, the reasonable expectations of the unsuccessful litigant, and the conduct of the parties.

While acknowledging the motion's importance to both sides, the court found some evidence of "over-lawyering" by VW.

Applying the discretionary principles for costs awards, the court adjusted the amount and awarded VW $22,000, all inclusive.

The plaintiff, Shawn Panacci, brought a motion to certify a class action against Volkswagen and Audi entities concerning an alleged widespread defect in the timing chain mechanism of EA888-type engines in vehicles sold or leased in Canada between 2007 and 2012.

The plaintiff alleged negligence, breach of warranty, unjust enrichment, and waiver of tort, claiming the defect posed a risk of catastrophic engine failure and personal injury.

The court granted certification, finding that the requirements under the Class Proceedings Act were met, including identifiable class, preferable procedure, and suitable representative plaintiff.

However, only three of the six proposed common issues were certified: duty of care and breach of duty of care, breach of express and implied warranties, and the availability of punitive damages.

Claims related to unjust enrichment, waiver of tort (due to lack of predicate liability finding), and aggregate damages (due to need for individualized assessments) were not certified as common issues.

This decision grants an unopposed motion for class certification in an action against the Province of Ontario concerning the alleged unlawful use of youth segregation in justice facilities.

The class is defined as persons under 18 placed in youth segregation for more than 6 consecutive hours without meaningful human contact between April 1, 2004, and December 17, 2018.

The common issues certified include claims of negligence, breach of fiduciary duty, and violations of sections 7, 9, and 12 of the Canadian Charter of Rights and Freedoms.

The Plaintiffs in a class action against Robert Bosch GmbH sought pre-discovery production of three million documents from Volkswagen Group (VW), a non-party.

The Plaintiffs had previously settled a separate class action against VW, where these documents were produced under a protective order and deemed undertaking.

The court dismissed the Plaintiffs' motion, finding it premature and that the Plaintiffs failed to meet the high threshold for non-party production under Rule 30.10(1) of the Rules of Civil Procedure.

The court noted that Class Counsel had likely breached the deemed undertaking and protective order by seeking to use the documents in the Bosch action without prior consent or a court order.

The plaintiffs in a certified class action against Robert Bosch GmbH sought an order appointing an administrator and allowing the use of an existing email database, compiled from related class action settlements, for disseminating notice of certification to class members.

The defendant, Bosch, argued the motion was premature due to a pending mediation.

Non-parties Volkswagen and Porsche, whose customer data formed the database, raised concerns about privacy under PIPEDA.

The court granted the plaintiffs' motion, finding Bosch's prematurity argument unconvincing and ruling that a formal court order would ensure compliance with PIPEDA's exceptions for disclosure.

The plaintiff, Conrey Francis, brought a proposed class action against Her Majesty the Queen in Right of Ontario, alleging negligence and breaches of sections 7 and 12 of the Canadian Charter of Rights and Freedoms due to the use of Administrative Segregation (solitary confinement) in correctional facilities.

The parties sought approval of a consent order certifying the action as a class proceeding.

The court found that all criteria for certification under s. 5(1) of the Class Proceedings Act, 1992 were met, including an identifiable class, common issues of fact or law, preferability of a class proceeding, and an adequate representative plaintiff.

The certification motion was granted.

This decision concerns a motion on consent for the certification of a class proceeding against Robert Bosch GmbH.

The action alleges that Bosch conspired with Volkswagen, Audi, and Porsche by designing illegal software that deceived government regulators regarding diesel vehicle emissions.

The court found that all five criteria for certification under the Class Proceedings Act, 1992 were satisfied, including the disclosure of a cause of action, an identifiable class, common issues of fact or law, preferability of a class proceeding, and suitable representative plaintiffs with a workable litigation plan.

The action was certified, a class definition was established, and common issues were identified, encompassing conspiracy, punitive damages, and waiver of tort.

Robert Bosch LLC was also added as a defendant.

The plaintiff brought a motion on consent to certify a class action against the Attorney General of Canada.

The action alleges that the Government of Canada breached inmates' Charter rights by subjecting them to prolonged administrative segregation in federal correctional institutions.

The court found that all criteria for certification under section 5(1) of the Class Proceedings Act, 1992 were satisfied and granted the certification motion.

In a certified class action regarding emissions defeat devices, the parties disagreed on the scheduling of a partial summary judgment motion by the foreign defendants.

The plaintiff sought to delay the motion until after full discoveries, while the defendants sought an early determination to avoid the burden of full production.

The case management judge ordered that the motion proceed prior to discoveries, but directed that the foreign defendants provide expansive disclosure for the motion, which would subsequently form part of the discovery record.

Two consortiums of proposed Class Counsel brought competing motions for carriage of a proposed competition law class action against several German automobile manufacturers.

The underlying actions alleged that the defendants engaged in an anti-competitive conspiracy relating to automotive design, development, manufacturing, and marketing.

The court evaluated the competing litigation plans and case theories, noting that both were viable but that the Quenneville action presented a superior, more creative, and more developable case theory that appropriately included claims for deceptive marketing under the Competition Act.

The court granted carriage to the Quenneville action and stayed the competing Stibbe action.

The Crown appealed a motion judge's order striking its third party claim.

The Court of Appeal allowed the appeal, finding it was not plain and obvious that the Crown's third party claim had no reasonable prospect of success.

However, the respondent plaintiff amended his pleading to include language that would render the Crown's third party claim subject to being struck.

As a result, while the appeal was allowed, the practical outcome remained that the Crown's third party claim was struck.

The court awarded costs in accordance with the motion judge's decision, with each party bearing their own costs of the appeal.

The defendant, Bosch, brought a motion to dismiss the plaintiffs' proposed class action on the basis of issue estoppel and double recovery, following the plaintiffs' partial settlement with co-defendant Volkswagen regarding emissions measurement software in diesel vehicles.

Alternatively, Bosch sought to strike the plaintiffs' claims for predominant purpose conspiracy and negligence.

The court declined to apply issue estoppel, finding it would work an injustice and that the settlement approval did not make a binding determination of full compensation against Bosch.

The court upheld the conspiracy pleading but struck the negligence claim without leave to amend, concluding that software is not a dangerous product and the claim for pure economic loss was legally untenable.

The plaintiffs brought motions on consent to certify two class actions against Ontario and Canada arising out of staffing-related lockdowns at Ontario correctional institutions.

The plaintiffs alleged systemic negligence and breaches of sections 7 and 12 of the Charter.

The court found that the pleadings disclosed a cause of action, there was an identifiable class, the claims raised common issues, a class proceeding was the preferable procedure, and there were adequate representative plaintiffs.

The motions for certification were granted.

This is an appeal of a motion judge's decision to strike the Crown's third party claims against 15 non-government, non-profit organizations that operated youth detention centres under contract with the Crown.

The plaintiff alleged negligence, breach of fiduciary duty, and breach of Charter rights arising from the use of solitary confinement in youth detention centres.

The plaintiff limited his claim to damages attributable to the Crown's proportionate degree of fault.

The motion judge struck the Crown's third party claims, relying on the principle from Taylor v. Canada (Health Canada) that when a plaintiff limits damages to a defendant's proportionate fault, the defendant cannot pursue contribution and indemnity claims.

The Crown appealed, arguing it was not plain and obvious that third party claims had no reasonable prospect of success, particularly regarding vicarious liability and breach of fiduciary duty claims.

Following the certification of a class action regarding emission levels in BlueTEC diesel vehicles, the plaintiff sought costs of $569,882 on a partial indemnity basis.

The defendants argued for no costs due to divided success.

The court found that while the plaintiff was largely successful, significant time was wasted on misguided aggregate damages submissions.

Applying the Grid rates and reducing the fees and disbursements to account for the unsuccessful arguments, the court fixed costs at $225,000 all-inclusive.

The plaintiff sought certification of a class action against Mercedes-Benz entities, alleging that BlueTEC diesel vehicles contained "defeat devices" that turned off emission controls below 10 degrees Celsius, leading to excessive nitrogen oxide emissions.

The action primarily claimed economic loss due to negligent misrepresentation, alongside statutory claims under the Canadian Environmental Protection Act and Competition Act, and common law claims for negligence, unjust enrichment, breach of warranties, and waiver of tort.

The court granted certification for 14 of the 17 proposed common issues, revising three and declining to certify three (negligence, breach of express/implied warranties, and aggregate damages).

The decision clarified the "some basis in fact" test for common issues, emphasizing a one-step approach focused on class-wide commonality, and reiterated that aggregate damages are for the quantum of loss, not proof of liability, requiring liability to be established first.

The respondent Crown brought a motion to quash an appeal from a Superior Court order requiring the appellant to produce Youth Records under the Youth Criminal Justice Act.

The motion judge had ordered the appellant to produce specified Youth Records or face a stay of his proposed class action proceeding.

The appellant challenged the order as final rather than interlocutory, arguing the Court of Appeal had jurisdiction to hear the appeal.

The Court of Appeal held that the order was interlocutory in nature—a production order with a sanction for non-compliance—and therefore any appeal lay to the Divisional Court with leave.

The appeal was quashed and costs were awarded to the Crown.

In a proposed class action regarding youth detention centres, the plaintiff sued the Crown for negligence, breach of fiduciary duty, and Charter violations, explicitly limiting the claim to the Crown's several liability.

The Crown issued third party claims against the NGOs that operated some of the centres.

The plaintiff and the NGOs moved to strike the third party claims.

The court granted the motions, applying the principle that where a plaintiff limits their claim to the defendant's proportionate degree of fault, a third party claim for contribution and indemnity is legally untenable.

In a proposed class action regarding the use of secure isolation in youth detention centres, the Crown brought a motion seeking production of the representative plaintiff's Youth Records.

The plaintiff opposed, arguing the Superior Court lacked jurisdiction to order production under the Youth Criminal Justice Act.

The court held that while it could not directly order production of the records, it had jurisdiction under the Class Proceedings Act to order the plaintiff to apply to the Youth Justice Court for access to the records.

The court ordered the plaintiff to make the application, failing which the proposed class action would be stayed.

The plaintiffs, former federal inmates with mental health disorders, brought a proposed class action against Canada alleging systemic abuses in federal penitentiaries, including the overuse of solitary confinement and failure to provide adequate mental healthcare.

They alleged breaches of sections 7, 9, and 12 of the Charter.

On consent, the court found that all criteria under section 5(1) of the Class Proceedings Act, 1992 were met and certified the action as a class proceeding.