Jeremy James Devereux

The defendants sought costs after successfully moving to strike portions of the plaintiffs' statement of claim.

The court noted that the motion was essentially a demand for particulars and that the plaintiffs' pleadings were defective.

However, the court criticized the high costs incurred by both sides for a motion that could have been resolved through cooperation.

The court ordered the plaintiffs to pay the defendants' costs in the cause on a partial indemnity basis, fixed at $20,000.

This endorsement addresses the costs of a successful motion brought by the defendants, CleanDesign Income Corp., CleanDesign Power Systems Inc., and Mark Lerohl, to remove the plaintiff's counsel, Fogler Rubinoff, due to a conflict of interest.

The court, having granted the motion to remove counsel, considered the parties' written submissions on costs.

Applying Rule 57.01 and the principle of indemnity, the court found that the successful defendants were entitled to costs.

Despite the plaintiff's arguments regarding the narrow grounds of success, conflicting caselaw, and the defendants' alleged contribution to complexity and higher fees, the court determined a fair and reasonable cost award.

The defendants brought a motion to disqualify the plaintiff's counsel, Fogler Rubinoff, citing a conflict of interest due to the firm's prior representation of the defendants.

The plaintiff argued no conflict existed, no confidential information was at risk, and the motion was tactical.

The court found that the firm owed a duty of loyalty to its former client, Clean Power, and that the current action, particularly concerning restrictive covenants, was sufficiently related to the prior retainer.

The court dismissed arguments of delay or tactical motive and ordered Fogler Rubinoff removed as counsel.

The moving parties, RBC Insurance Agency Ltd. and Aviva General Insurance Company, brought a motion for leave to appeal the order of Glustein J. dated March 2, 2023.

The Divisional Court dismissed the motion for leave to appeal without costs.

The moving parties 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 costs of $5,000 to the responding party.

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.

Bombardier Inc. appealed a decision by Associate Justice Jolley that largely dismissed Bombardier's request for a further and better affidavit of documents from Triple-K Consult Ltd. Bombardier sought documents related to an audit, which it claimed was a precondition to commission payments.

The appeal judge upheld the Associate Justice's findings, determining that Bombardier had not established the relevance or existence of most requested documents, distinguishing between documents relevant to the audit process and those relevant to the litigation's core defence of non-compliance with the audit.

The appeal was dismissed, and costs were awarded to Triple-K Consult Ltd.

The Superior Court of Justice approved identical third-party funding agreements in four related class actions against major Canadian banks.

The actions allege that the banks charged duplicative non-sufficient funds fees on single dishonoured pre-authorized debits.

The court, applying Section 33.1 of the Class Proceedings Act, 1992, found the agreements to be fair and reasonable, noting the staged success fee was comparable to or more advantageous than the Class Proceedings Fund levy.

The court confirmed the agreements preserved plaintiff control over litigation, ensured the funder's financial capacity for adverse costs, and included appropriate confidentiality and deemed undertaking provisions.

The defendants took no position on the motions.

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.

This motion concerned the substitution of a representative plaintiff in a class action alleging underpayment of vacation and public holiday pay on variable compensation by RBC General Insurance Company and Aviva General Insurance Company.

The original proposed representative plaintiff, Deval Trivedi, was found to be statute-barred against Aviva General.

The plaintiff sought to substitute Binay Saroop as the representative plaintiff against Aviva General and to amend the statement of claim.

The court found that Saroop met the 'some basis in fact' test to rebut the statutory presumption regarding the limitation period and did not have a disqualifying conflict of interest, thus being an adequate representative plaintiff.

The motion to substitute Saroop and amend the claim was granted.

The defendants brought a motion for leave to appeal the order of Belobaba J. dated December 29, 2022.

The Divisional Court dismissed the motion for leave to appeal.

As the responding party did not provide costs submissions, the court made no order as to costs.

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.

This is a remand from the Supreme Court of Canada to the Ontario Court of Appeal concerning the award of incentive plan-related damages in a wrongful dismissal action.

The Supreme Court remanded the case for disposition in accordance with Matthews v. Ocean Nutrition Canada Ltd. The majority of the Court of Appeal affirmed its original decision, finding that the employee, Mr. Manastersky, was not entitled to additional damages beyond his vested interest in the Mezzanine Carried Interest Plan (CIP) because the plan's terms did not entitle him to annual payments or future investment periods.

The court held that RBC Dominion Securities Inc. had paid Mr. Manastersky all to which he was entitled at common law.

Feldman J.A. dissented, arguing that the trial judge's original decision, which awarded additional damages, correctly applied the legal principles affirmed in Matthews, emphasizing the requirement for "absolutely clear and unambiguous" language to limit an employee's common law right to compensation.

The moving party sought leave to appeal from the order of Glustein J. dated September 9, 2020.

The Divisional Court dismissed the motion for leave to appeal and awarded costs to the responding party fixed at $10,000.

The plaintiff brought a motion seeking the production of unredacted copies of documents listed in the defendant's affidavit of documents, which related to an internal investigation leading to her dismissal.

The defendant sought a confidentiality order over the documents, arguing they contained personal information of non-parties.

The court ordered the production of the unredacted documents, finding the defendant failed to demonstrate that disclosure would cause significant harm or that the redacted information was clearly irrelevant.

The court also declined to impose a formal confidentiality order, concluding that the deemed undertaking rule and an undertaking provided by the plaintiff's counsel were sufficient to protect the defendant's interests.

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.