Joel P. Rochon

The plaintiff sought to certify a class action against Intuit Canada ULC and Intuit Inc., alleging that the defendants engaged in misleading advertising and 'drip pricing' by promoting their tax filing software as 'free' or 'free for simple tax returns', only to require users to pay to complete their filings after investing time in the software.

The court granted certification, finding that the pleadings disclosed valid causes of action under provincial consumer protection legislation, the Competition Act, and unjust enrichment.

The court approved the class definition, certified common issues relating to liability and aggregate damages (excluding punitive damages), and found that a class proceeding was the preferable procedure.

In this class action damages trial arising from negligent facilitation of frequent trading in retail mutual funds, the court held that dilution caused by time zone arbitrage should be quantified using the Next Day NAV method rather than the profits method.

The court rejected the argument that prior OSC settlements conclusively compensated investors, found that objective trading characteristics and circumstantial evidence were sufficient to identify time zone arbitrage, and declined to require direct evidence of each trader’s subjective motivation.

Additional timer accounts were included for one defendant outright and for the other subject to specified filters, and the class definition was amended accordingly to exclude those market timers from recovery.

The court awarded principal damages of $60.48 million against one remaining defendant, plus further amounts for qualifying additional accounts, and $37,900,659.63 against the other, with simple prejudgment interest at 2.8% from commencement of the action.

In a class action against a long-term care home regarding a COVID-19 outbreak, the parties agreed on the terms of a certification order except for the temporal scope of discovery regarding infection prevention and control (IPAC).

The defendants sought to limit questions to the three weeks prior to the first outbreak, while the plaintiff sought an undefined period leading up to the outbreak.

The court adopted the plaintiff's flexible approach, holding that the relevance of IPAC matters preceding the outbreak must be assessed on a question-by-question basis during discoveries.

The plaintiffs brought a motion on consent for an order certifying a class action against the defendants regarding COVID-19 outbreaks at a retirement home.

The plaintiffs alleged the defendants were grossly negligent in their response to the pandemic, resulting in infections and deaths.

The court found the requirements of section 5(1) of the Class Proceedings Act were met and certified the action on the terms proposed by the plaintiffs.

The plaintiffs brought a motion on consent to certify a class action against the defendants regarding their response to COVID-19 outbreaks at a retirement residence.

The plaintiffs alleged the defendants were grossly negligent in their infection prevention and control measures, resulting in preventable infections and deaths.

The court found that the requirements of section 5(1) of the Class Proceedings Act were satisfied and certified the action on the terms proposed by the plaintiffs.

The plaintiff sought certification of a class action under section 5(1) of the Class Proceedings Act, 1992, alleging the defendant was grossly negligent in its response to the COVID-19 pandemic at Oakwood Park, a long-term care home.

The classes comprised residents and visitors who contracted COVID-19 and their family members during the period January 25, 2020 to May 5, 2023.

The defendant consented to certification.

The court found all five certification requirements satisfied, including cause of action, identifiable class, common issues supported by expert methodology on causation and damages, preferability of a class proceeding, and adequate representative plaintiffs with a workable litigation plan.

The plaintiffs brought a motion for certification of a class proceeding against Barrick Gold Corporation and its officers/directors for alleged misrepresentations regarding a mining project in South America.

The court certified the secondary market claims under the Securities Act and the common law negligent misrepresentation claims, but amended the class definitions and common issues to reflect prior leave decisions.

The court declined to certify the primary market claims, finding a class proceeding was not the preferable procedure for a class of two institutional investors.

The court also declined to certify common issues for aggregate damages due to a lack of expert methodology.

The plaintiffs were awarded $2.75 million in costs for the prior leave motions.

The defendants brought a motion to stay the Ontario class action as an abuse of process due to overlapping class proceedings in British Columbia and Québec.

The plaintiffs sought certification of the Ontario action.

The court dismissed the motion to stay, finding that the Ontario action was not a carbon copy of the others and offered a broader class definition and potential remedies, thus not offending principles of comity or amounting to an abuse of process.

The court also found that a class proceeding in Ontario was the preferable procedure for resolving the common issues, despite the parallel proceedings, and certified the action.

The plaintiffs' request to amend their claim to add a new statutory cause of action under New Brunswick legislation was denied.

The defendants in a proposed class action regarding allegedly deceptive advertising of tax software brought a motion to strike a paragraph in the statement of claim and portions of the certification record.

The impugned materials referenced regulatory and civil litigation settlements in the United States concerning similar advertising by the parent company.

The court granted the motion, finding that the U.S. settlement was not sufficiently relevant to the Canadian claims and that admitting the foreign litigation evidence would needlessly expand the certification inquiry.

Two class action proceedings—one against TELUS Communications Company and related entities, and one against Bell Mobility Inc.—were brought by plaintiffs alleging that the defendants engaged in similar practices of rounding up seconds to minutes on cell phone bills.

The defendants moved to consolidate the two actions for trial or summary judgment.

The court granted the motion to hear the two summary judgment motions consecutively in a single three-week block of hearing time, finding that the common issues were identical and that separate proceedings would create an unnecessary multiplicity of litigation and risk inconsistent findings.

However, the court determined that the case management judge would not preside over the summary judgment motions, as the principles underlying Rules 37.15(1) and 77.06(2)—which prohibit a case management judge from presiding at trial without consent—apply equally to summary judgment motions.

On a certification motion in a proposed national product liability class action concerning talc-based baby powder and epithelial ovarian cancer, the court held that the plaintiffs met four of the five certification criteria for negligence, Competition Act claims, and consumer protection claims in several provinces.

The court struck or refused Ontario and Prince Edward Island consumer protection claims for lack of privity of contract, and indicated that Yukon and New Brunswick statutory claims required further submissions.

The court accepted that the plaintiffs' expert evidence provided a plausible methodology for proving general causation, negligent design and manufacturing, misleading representations, and punitive damages as common issues, while emphasizing that conflicting expert opinions were for trial.

The motion to stay for delay was dismissed because the delay was sufficiently explained and prejudice was not irreparable.

However, the duplication-based stay motion and the preferability analysis were adjourned pending the outcome of the British Columbia appeal.

The Court of Appeal for Ontario dismissed the appeal from the denial of certification of a class action alleging systemic negligence in the use of seclusion and restraint at a forensic psychiatric hospital.

The court found that the motion judge did not err in concluding that the claims lacked commonality, as the alleged wrongdoing could only be determined on an individual basis.

The court also upheld the dismissal of claims against individual hospital administrators and affirmed the costs award, finding no reversible error in the motion judge’s analysis.

The Empowerment Council sought leave to intervene as a friend of the court in an appeal from the refusal to certify a proposed class action concerning psychiatric inpatients at Waypoint Centre for Mental Health Care.

The Court of Appeal dismissed the motion, finding that the proposed intervener’s submissions were largely duplicative of the appellants’ and would not usefully contribute to the resolution of the appeal without prejudicing the parties.

The court approved a $30 million settlement in a class action brought by shareholders of Aphria Inc. against the company and two of its officers, alleging misrepresentations in public disclosures about major business acquisitions.

The settlement was reached on the eve of trial after extensive discovery and negotiation, with the court finding the terms fair and reasonable given the risks of trial and potential insolvency proceedings.

The court also approved class counsel fees, disbursements, a levy to the Class Proceedings Fund, and an honorarium for the representative plaintiff.

This decision resolves a carriage motion between three proposed class actions seeking damages for investors in The Toronto-Dominion Bank, arising from alleged misrepresentations and failures to disclose anti-money laundering (AML) deficiencies.

The court concludes that the Parkin action is best suited to advance the class members’ claims efficiently and cost-effectively, considering the statutory criteria under the Class Proceedings Act, 1992.

The decision addresses the impact of late registration of a class proceeding, the legal framework for carriage motions, the comparative strengths and weaknesses of each action, and issues of funding and counsel experience.

The court approved a Notice Plan for a proposed settlement in a certified class action between Vecchio Longo Consulting Services Inc. and Aphria Inc. et al.

The Notice Plan, developed by class counsel and to be administered by RicePoint Administration Inc., was found to be fair, reasonable, and effective in providing adequate notice to class members regarding the settlement approval hearing and related matters.

The court confirmed that the plan met the requirements of the Class Proceedings Act, 1992, and ordered that the Notice Plan proceed as proposed.

The plaintiff moved to certify a proposed class action against the Province of Ontario following an inadvertent data disclosure.

An employee of the Ministry of Children, Community and Social Services mistakenly emailed a spreadsheet containing the names, email addresses, and identification numbers of approximately 45,000 Ontario Disability Support Program recipients to 103 clients.

The plaintiff alleged intrusion upon seclusion, negligence, breach of confidence, and publication of private facts, claiming the disclosure caused distress.

The court found that no actual harm had materialized in the six years since the incident and that the plaintiff had publicly disclosed his own status.

Consequently, the court dismissed the motion for certification.

This motion concerned the approval of a proposed settlement and counsel fees in a national class action against pharmaceutical companies.

The class action alleged that the atypical antipsychotic medications ABILIFY and ABILIFY MAINTENA caused various compulsive behaviours due to inadequate warnings.

The court approved a $14.75 million settlement fund, which includes compensation for class members suffering psychological harm, residual catastrophic injury, and financial loss, as well as honoraria for representative plaintiffs and class counsel fees.

The court found the settlement to be fair and reasonable, falling within the 'zone of reasonableness' despite objections from some class members regarding compensation adequacy and counsel fees.

The Plaintiffs in multiple class actions brought an omnibus motion for approval of a proposed notice plan, including direct notice and production orders from Defendants, following a complex certification decision where some actions were certified, some partially, and some dismissed.

The court denied the request for direct notice and associated production orders, finding it would impose a substantial and undue burden on defendants, particularly those against whom certification was denied.

The court also noted that such production could be seen as an attempt to solicit new representative plaintiffs or re-litigate issues already decided at the certification stage.

An indirect notice strategy was approved, and costs for the notice plan were allocated, with the Plaintiffs bearing a larger share.

The moving parties, including Chartwell Retirement Residences, Sienna Senior Living Inc., Extendicare Inc., and Schlegel Villages Inc., brought four motions for leave to appeal the decision of Morgan J. dated March 7, 2024.

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