Jeremy Devereux

The defendants in a class action brought a motion seeking the production of class counsel's redacted dockets to respond to the plaintiffs' costs submissions following certification.

The plaintiffs opposed the production.

The court dismissed the motion, holding that the production of dockets to support costs submissions on a motion is only ordered in exceptional cases to protect solicitor-client privilege.

The court found that the substantial amount of costs claimed, the disparity between the parties' costs, and alleged incongruities in the costs outline did not constitute exceptional circumstances warranting production.

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 brought a motion on consent to certify a class proceeding against the defendant bank regarding its practice of charging multiple non-sufficient funds (NSF) fees on re-presented pre-authorized debit transactions.

The court reviewed the five-part test under section 5(1) of the Class Proceedings Act, 1992.

Finding that the pleadings disclosed a cause of action in breach of contract and unjust enrichment, and that the other criteria including an identifiable class and common issues were met, the court granted the consent certification order.

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 proposed representative plaintiff brought a motion to certify a class action against RBC Insurance Agency Ltd. and Aviva General Insurance Company for alleged failure to pay vacation and public holiday pay on variable compensation to Property & Casualty Insurance Advisors.

The court granted certification against RBC IA, finding some basis in fact for the claims and that a class action was the preferable procedure.

However, the court found the proposed representative plaintiff's claim against Aviva General was presumptively statute-barred and conditionally certified the action against Aviva General, allowing 100 days to find a new representative plaintiff.

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 moving party brought a motion under Rule 59.06 to vary an interlocutory injunction that prohibited him from competing with or soliciting customers of the responding party.

The court found that the responding party had failed to pursue their case with reasonable dispatch, as pleadings were not yet closed 15 months after the injunction was granted.

Furthermore, the contractual non-competition and non-solicitation periods in the Professional Services Agreement had already expired.

The court granted the motion in part, terminating the non-competition and non-solicitation obligations against the moving party personally.

Following a decision removing the plaintiff's counsel in either the class action or individual action and staying the individual action, the successful defendant sought partial indemnity costs of $20,000.

The plaintiff opposed, arguing for no costs or a nominal amount due to divided success and duplication of work.

The court found the defendant was successful on the motion, which involved complex issues of conflict of interest and standing.

After a slight reduction for duplication of research from a prior scheduling motion, the court fixed costs at $16,050 plus disbursements and HST.

The defendant brought a motion to remove the plaintiff's counsel from either the proposed class action or the plaintiff's related individual wrongful dismissal action due to a conflict of interest, and to temporarily stay the individual action.

The court found that counsel's duty of commitment to the plaintiff in the individual action conflicted with the sui generis duty owed to the proposed class members, as the actions shared overlapping issues regarding common employment and vacation pay calculation.

The court ordered counsel removed from one of the actions and temporarily stayed the individual action pending the certification motion.

In four proposed class actions concerning investments in syndicated mortgages for land development projects, the defendants brought motions to strike the plaintiffs' statements of claim.

The court struck out the claims against the individual directors and officers of the corporate defendants without leave to amend, finding that the pleadings failed to allege any independent tortious conduct or separate identity of interest from the corporations.

The statements of claim against the remaining defendants were struck out in their entirety with leave to deliver fresh as amended statements of claim.

Following the dismissal of a Rule 21 motion seeking to strike a defamation action, the court determined the appropriate costs order.

The moving party had attempted to use Rule 21 to establish that a defence of privilege would succeed, which the court previously held to be an improper use of the rule.

The successful plaintiffs sought costs payable immediately under Rule 57.03(1), while the moving party requested costs in the cause on the basis that the defence might ultimately succeed at trial.

The court held that the motion represented a procedural misstep but that fairness required a moderated approach.

Costs of $24,187.37 were awarded to the plaintiffs in any event of the cause.

The defendant brought a motion under Rule 21.01(1)(a) and Rule 21.01(3)(d) of the Rules of Civil Procedure seeking dismissal of a defamation action commenced by developers of a condominium project.

The defendant argued that the alleged statements were protected by absolute or qualified privilege and that the claim was frivolous, vexatious, or an abuse of process.

The court held that Rule 21 cannot be used by a defendant to prove the success of a defence such as privilege; rather, the rule is intended to determine whether a plaintiff’s claim is plainly and obviously untenable in law.

The motion also failed because the defendant provided no evidentiary record supporting the abuse-of-process argument.

The court dismissed the motion and allowed the defamation action to proceed.

The plaintiff condominium owner sought certification of a class action arising from allegedly defective balcony railings at a Toronto condominium complex.

After a railing detached and fell, engineering reports concluded the guard-rail assemblies did not comply with the applicable Ontario Building Code, requiring removal and replacement of all balcony railings and resulting in extended restrictions on balcony use.

The proposed class consisted of persons who owned, rented, or resided in units whose balconies were inaccessible during the remediation period.

The court held that the pleadings disclosed viable causes of action in negligence and breach of contract, that an identifiable class and common issues existed, and that a class proceeding was the preferable procedure with an adequate representative plaintiff.

Certification under the Class Proceedings Act, 1992 was therefore granted.

Following a trial where the plaintiffs were awarded $134,000 in damages against their investment advisors for negligence, the court determined the appropriate costs award.

The court found that the plaintiffs' subsequent settlement correspondence did not constitute valid Rule 49 offers, meaning they were only entitled to partial indemnity costs.

Applying the principle of proportionality, the court fixed the plaintiffs' costs at $195,000.

The court further held that the individual employee defendants, while proper parties, were not necessary parties, and therefore ordered the employer to bear the sole responsibility for paying the plaintiffs' costs, declining to make any costs orders against or in favour of the individual employees.

The plaintiff commenced an action in 1989 alleging the defendants dumped coal tar waste that migrated onto its property.

After 25 years of litigation, the defendants moved to dismiss the action for delay under Rule 24 of the Rules of Civil Procedure.

The court found that while the initial 14 years of delay were excusable due to collaborative settlement efforts, the plaintiff's failure to advance the litigation after 2003 was inordinate and inexcusable.

The court held that the plaintiff failed to rebut the strong presumption of prejudice, as it had not preserved the evidence of key witnesses who had since passed away.

The motion was granted and the action was dismissed.

The plaintiff brought a motion to certify a class action against Bell Mobility regarding the expiry dates on pre-paid phone cards.

The plaintiff alleged breach of contract, breach of the Gift Card Regulation under the Consumer Protection Act, unjust enrichment, and unfair practices.

The court found that the pleadings disclosed causes of action for breach of contract and unjust enrichment, but not for unfair practices.

The court certified the action as a class proceeding, appointed the plaintiff as the representative, created a sub-class for consumer-users, and certified five common issues.