Jamie A. Macdonald

This is a class action settlement approval motion involving sexual assault and voyeurism by a physician at a university health clinic.

The representative plaintiffs sought court approval of a $21,050,000 settlement on behalf of a class of approximately 150-200 patients who were photographed, videotaped, and/or sexually assaulted without their knowledge or consent.

The settlement was reached after extensive negotiations including mediation and three days of judicial pre-trial conferences.

The court approved the settlement as fair, reasonable, and in the best interests of the class members, addressing concerns about the claims process, trauma-informed procedures, honoraria for representative plaintiffs, legal fees, and various disbursements.

This is a costs decision following a trial in which the plaintiff, a self-represented Ph.D. student, brought claims against his academic supervisor, the University of Ottawa, and a former friend.

The plaintiff alleged that his supervisor breached his responsibilities and conspired with the former friend to frustrate his academic progress and obtain free labour.

The plaintiff was entirely unsuccessful on all allegations.

The court found that the plaintiff's conduct in adding his former friend as a defendant after the friend refused to provide false evidence constituted unreasonable and improper conduct that lengthened the proceedings.

The defendants sought costs on a substantial indemnity basis but the court awarded costs on an enhanced partial indemnity basis to account for the plaintiff's misconduct.

The plaintiff, Ahmed Abada, brought an action against his former PhD supervisor, the University of Ottawa, and a former friend, alleging damages for loss of earnings, general and punitive damages, and various torts arising from his removal from the PhD program.

The court found that the core of the dispute was academic in nature and that Abada had already availed himself of the university's internal appeal processes, which resolved the issues of bursary payment and academic progress.

The court dismissed all claims, finding no negligence, breach of contract, or tortious conduct by the defendants, and held that Abada was primarily responsible for his failure to complete the program due to personal and legal issues.

The applicant, Jennifer Carr, President of the Professional Institute of the Public Service of Canada (PIPSC), brought an oppression application under the Canada Not-for-profit Corporations Act against the directors (respondents) for placing her on "administrative leave" with pay.

Carr argued this was an effective suspension, contrary to PIPSC's By-laws, Policies, and the CNFPCA, and that she was denied procedural fairness.

The respondents argued it was a non-disciplinary administrative leave to protect investigations into Carr's conduct and that their actions were justified by the business judgment rule.

The court found that the administrative leave was functionally equivalent to a disciplinary suspension, breached Carr's reasonable expectations, and constituted oppressive and unfairly prejudicial conduct.

The court quashed the motion for administrative leave and reinstated Carr to her position.

The defendants/plaintiffs by counterclaim (the "Soods") brought a motion for an interim injunction to prevent Celernus Investment Partners Inc. ("Celernus") from continuing power of sale proceedings on properties secured by a defaulted mortgage.

The Soods alleged breach of contract and breach of the duty of honest contractual performance by Celernus in their counterclaim.

The court applied the three-part RJR-MacDonald test for injunctions.

It found no serious question to be tried regarding Celernus's enforcement rights, determined that any potential loss to the Soods would be quantifiable in damages and thus not irreparable harm, and concluded that the balance of convenience favoured upholding the lender's contractual rights.

The motion for an interim injunction was dismissed, though a 60-day extension was granted to the Soods to arrange alternate financing.

This costs endorsement addresses the allocation of costs following the dismissal of motions by UD Trading Group and Rutmet for intervention and consolidation, and a cross-motion by TransAsia Private Capital Ltd. (TAP) for vexatious litigation.

The court had previously ordered a stay of proceedings on its own initiative.

The UD Group sought costs from TAP, while TAP primarily argued for each party to bear their own costs, or alternatively, sought partial indemnity costs in the cause.

The court rejected the relevance of a subsequent Singapore judgment to the costs determination and ultimately ordered that all participating parties bear their own costs of the dismissed motions and cross-motion.

The Applicants sought costs following a partial success in an application concerning insurance coverage, specifically the duty to defend and equitable allocation among insurers.

The court awarded full indemnity costs to the Applicants against AIG and Royal & Sun Alliance Insurance Company of Canada (RSA) for the duty to defend issue, finding the Applicants overwhelmingly successful on that point.

Costs related to the exhaustion of self-insured retentions (SIRs)/deductibles were deferred to a future trial of the issue, as neither party fully succeeded.

Zurich Insurance Company Ltd. was ordered to pay reduced costs due to its partial success on a specific "Single Retention Endorsement" interpretation.

The defendant, Carleton University, brought a motion to dismiss the plaintiff's action as an abuse of process or, alternatively, to strike the amended statement of claim for failing to disclose a reasonable cause of action.

The plaintiff's action stemmed from dissatisfaction with the university's investigation and ruling regarding sexual misconduct complaints against him.

The court found that the greater part of the plaintiff's claim constituted an abuse of process, being an attempt to collaterally attack the university's internal disciplinary decision, which should properly be challenged via judicial review.

However, the court also identified potential legitimate claims of negligence related to post-decision actions by the university.

Consequently, the court struck the plaintiff's amended statement of claim but granted him leave to file a new amended statement of claim focusing solely on the alleged post-decision negligence.

The appellants (UDG) appealed a motion judge's decision to permanently stay their Ontario proceeding in favour of ongoing litigation in Singapore and Dubai.

UDG had commenced the Ontario action seeking declarations against the respondents (TAP), effectively advancing as claims the same allegations they made as defences in the foreign proceedings.

The motion judge found that a related loan involving Rutmet was distinct from UDG's loans and that UDG's Ontario action was an attempt to gain a jurisdictional advantage.

The Court of Appeal upheld the motion judge's decision, finding no error in her fact-finding, exercise of discretion, or analysis of attornment and forum selection clauses.

The appeal was dismissed, and the Ontario proceedings remained stayed.

The defendant brought a motion following a trial to seal certain exhibits to protect litigation privilege related to a separate class proceeding.

The plaintiffs opposed the motion.

The court noted that litigation privilege exists for the benefit of the plaintiff class in the separate proceeding, and therefore class counsel should have the opportunity to waive or defend it.

The motion was adjourned to be brought back with formal notice to class counsel.

Following a trial where the plaintiffs were awarded $328,396.82 for breach of contract, the parties made submissions on costs.

The plaintiffs sought costs of approximately $500,000, while the defendant sought costs from the date of its Rule 49 offer.

The court noted that the plaintiffs' costs were driven by multiple unmeritorious causes of action and that the defendant's offer triggered the costs consequences of Rule 49.10(2).

Balancing the plaintiffs' partial success against the defendant's offer and the plaintiffs' unreasonable litigation conduct, the court exercised its discretion to award no costs to either party.

The plaintiff, a former law student, conceived the idea of using a class proceeding to resolve the issue of unpaid royalties to unlocatable musicians.

She brought the idea to the Canadian Internet Policy and Public Interest Clinic (CIPPIC) at the University of Ottawa, which formed a consortium with class counsel.

The plaintiff and CIPPIC entered into an agreement guaranteeing her 5% of the counsel fees awarded.

The plaintiff later sued the university for $3.5 million, alleging breach of copyright, breach of fiduciary duty, and unjust enrichment, arguing she was entitled to a larger share.

The court dismissed the tort and equitable claims, finding no breach of copyright or fiduciary duty, and upheld the written agreement as binding and reasonable.

The plaintiff was awarded $328,396.82, representing her agreed 5% share of the counsel fees.

The Plaintiffs (UDG) sought an anti-suit injunction to halt proceedings against them in Dubai and Singapore concerning an alleged outstanding debt and guarantees.

The Defendants (TAP) cross-moved to dismiss or stay the Ontario action for lack of jurisdiction or forum non conveniens, citing forum selection clauses.

The court denied the anti-suit injunction, finding UDG failed to meet the Amchem test, particularly by not pursuing stays in the foreign jurisdictions.

The court also found Ontario was not the natural forum, given the parties' residences, witness locations, and applicable foreign laws.

The Plaintiffs' Ontario action was permanently stayed.

The plaintiff, Howard and Associates Inc., brought a motion for partial summary judgment seeking a declaration that the defendant, Tomasek Agencies Inc., was not a "dependent contractor" and an order for the delivery of a sworn affidavit of documents.

The defendant had initially asserted a dependent contractor relationship but later clarified its position was based on implied contractual rights.

The court found the issue of dependent contractor status was not theoretical given the defendant's initial stance and reference to "economic dependence." The motion was granted, declaring that the defendant was not a dependent contractor and ordering the delivery of a sworn affidavit of documents.

Following jurisdictional motions that resulted in a stay of the action against several foreign defendants, the court determined the appropriate costs payable by the unsuccessful plaintiffs.

The defendants sought substantial partial indemnity costs reflecting extensive counsel time for both preliminary litigation steps and the jurisdictional motions.

Applying s. 131 of the Courts of Justice Act and Rule 57.01 of the Rules of Civil Procedure, the court emphasized that costs must be fair and reasonable for the unsuccessful party to pay, rather than matching the successful party’s actual expenditures.

The court reduced certain pre‑motion time allocations and adjusted hourly rates but allowed full time claimed for the jurisdictional motions due to their complexity and importance.

Costs were awarded to the moving defendants in specified amounts inclusive of fees, HST, and disbursements.

The moving defendants sought a stay of an Ontario action arising from injuries allegedly sustained during a horseback riding excursion in Jamaica.

The plaintiffs did not attend the motion or file responding materials.

Applying the jurisdictional framework from Club Resorts Ltd. v. Van Breda, the court held that the foreign hotel and excursion operators lacked the necessary presumptive connecting factors to Ontario.

Although one defendant carried on business in Ontario, the presumption of jurisdiction was rebutted because the defendant had no involvement in the excursion where the injury occurred.

Alternatively, the court held that Jamaica was clearly the more appropriate forum under the doctrine of forum non conveniens.