Kathryn Podrebarac

The appellant appealed a case management judge's order permitting the foreign corporate respondent to redact irrelevant personal data from its documentary productions to comply with European and German privacy laws (GDPR and BDSG).

The Divisional Court upheld the redaction protocol, finding the motion judge had jurisdiction to craft a procedural compromise that balanced Ontario discovery obligations with international comity and foreign privacy laws.

However, the court granted the appeal solely to remove an unwarranted requirement that the respondent obtain leave before filing its affidavit of documents.

The plaintiff brought a motion for leave to appeal an order dated November 16, 2022.

The Divisional Court granted the motion for leave to appeal and ordered the respondents to pay the moving party agreed costs of $5,000.

The Ontario Superior Court of Justice heard unopposed applications by the Joint Committee in the national Hepatitis C class actions (Parsons and Kreppner) to allocate approximately $160 million in "Excess Capital" from the settlement fund.

The Joint Committee proposed four recommendations to increase various benefits for approved class members and family members, including lump sum payments, loss of guidance/care/companionship awards, lost pension benefits, and loss of services rates.

The court granted the application, finding the proposed allocations reasonable, non-discriminatory, and consistent with the settlement agreement's purpose of bridging compensatory gaps.

The plaintiff in a certified class action brought a refusals motion seeking to compel answers to questions refused during cross-examinations on the defendants' affidavits of documents.

The court dismissed the motion in its entirety, finding that the questions regarding the scope of documentary production, missing documents, and search terms were premature and irrelevant because the parties had not yet settled a discovery plan.

The court held that the scope of documentary discovery must be determined on the pending discovery plan motion before the adequacy of the affidavits of documents could be assessed.

In a certified class action regarding allegedly defective MINI Cooper vehicles, the defendants brought a motion seeking a declaration that the German defendant, BMW-AG, could produce documents using a 'layered approach' to comply with European and German privacy laws (GDPR).

This approach involved initially redacting all personal data.

The plaintiff opposed, arguing that Ontario's Rules of Civil Procedure required unredacted production.

The court held that the relevance scrutiny inherent in the Rules of Civil Procedure satisfies the 'Legitimate Interests Exception' under the foreign privacy laws.

The court ordered BMW-AG to produce documents in accordance with a modified Rule 30.03, allowing redactions only for privileged information and personal data that is not relevant to any issue in the action.

The plaintiff in a certified class action moved for an order approving the condensed, short-form, and long-form notices of certification, the plan for their dissemination, and related matters including the appointment of a notice administrator and the production of class member information by the defendants.

The defendants did not oppose the relief sought.

The court granted the order, approving the notices and notice plan, appointing RicePoint Administration Inc. as the Notice Administrator, and compelling the defendants to provide vehicle identification numbers and class member contact information for notice purposes, while also addressing privacy concerns and opt-out procedures.

The plaintiff, having successfully certified a class action against BMW, sought substantial indemnity costs for the certification motion, totaling $367,210.28.

BMW proposed a costs award between $225,000 and $285,000.

The court awarded the plaintiff $300,000 on a partial indemnity basis, inclusive of fees, disbursements, and HST.

The court declined to award substantial indemnity costs, finding that Rule 49 (Offer to Settle) is an ill fit for certification motions and that defendants are entitled to resist certification without incurring punitive costs, provided their conduct does not unnecessarily lengthen proceedings.

The court also largely rejected BMW's arguments of overbilling by class counsel.

The plaintiff brought a motion to certify a class action against the defendants regarding alleged defects in the power steering systems of certain Mini Cooper vehicles.

The plaintiff alleged the defects could cause a dangerous loss of power steering or a vehicle fire.

The defendants admitted the power steering system was defective but denied it posed an unreasonable safety risk or caused fires.

The court found that the plaintiff had pleaded a viable cause of action in negligence and met the 'some basis in fact' standard for the remaining certification criteria, including an identifiable class, common issues, preferable procedure, and representative plaintiff.

The certification motion was granted.

Loblaw Properties sought to declare the Town of Smiths Falls' right to repurchase a land parcel void or unconscionable, arguing it failed to develop the property within the prescribed four-year period.

The Town cross-applied to affirm and enforce its right and correct registration errors.

The court found the Town's right to be a valid equitable interest binding Loblaw, which had full notice of the condition.

The court dismissed Loblaw's arguments regarding uncertainty, penal nature, and unconscionability, noting Loblaw's sophistication and failure to provide proper valuation evidence.

Loblaw's application was dismissed, and the Town's cross-application was granted, including declarations and rectification of the title register.

The Attorney General of Canada and the Joint Committee representing Class Members brought competing applications regarding the allocation of approximately $236 million in excess capital held in the trust fund established by the 1986-1990 Hepatitis C Settlement Agreement.

Canada argued the excess capital should be returned to it, while the Joint Committee sought to allocate the funds to increase benefits for Class Members.

The court dismissed Canada's application, finding that the excess capital allocation provision was intended to provide an opportunity to bridge compensatory gaps for Class Members.

The court approved seven of the Joint Committee's nine recommendations for allocating the funds, including increases to fixed payments and loss of services compensation, to be implemented by way of special distribution.

The Steering Committee, an unincorporated group of physicians and scientists, sought to intervene in a joint hearing of motions concerning the allocation of actuarially unallocated funds from the 1986-1990 Hepatitis C Settlement Agreement.

The Committee proposed allocating funds to its "National HCV Initiative" which aimed to benefit all Canadians with HCV, not just class members.

The court dismissed the intervention request, finding that the Steering Committee was a stranger to both the Settlement Agreement and the underlying litigation, lacking privity of contract or any substantive right to participate in the administration of the settlement.

This was a costs and terms endorsement following a partially successful duty to defend application.

The applicants obtained a duty to defend against three insurer respondents but were unsuccessful against the service provider respondents.

The court awarded costs to the applicants against each insurer respondent, awarded partial indemnity costs to the successful service provider respondents in reduced amounts where appropriate, and declined to make a Sanderson order or determine disputed supplementary payments coverage issues within the costs proceeding.

The court also ordered each insurer respondent to pay a share of defence costs already incurred in the underlying action, excluding adverse costs awards, and imposed terms governing the appointment and reporting obligations of independent counsel because of conflicts of interest.

The applicants sought declarations that contractor respondents and their CGL insurers owed duties to defend and indemnify them for legal costs arising from third party claims in underlying vaccine spoilage litigation.

The court held that, for a duty to defend analysis involving third party claims, the statement of claim and the relevant third party claims must be read together.

Applying the pleadings rule and the mere possibility of coverage standard, the court found that three insurer respondents owed a duty to defend, but only with respect to the negligence-based vendor and service-provider claims, not the distinct claims concerning the applicants' own contractual representations and warehouse operations.

The service contracts did not themselves impose a separate contractual duty to defend, only indemnity obligations.

Defence responsibility for the covered category was apportioned equally among the three insurers, and independent counsel was required due to conflict.

The appellant entered into a contract with the respondent for the storage of vaccines in a temperature-controlled warehouse.

The contract required the appellant to maintain all-risk property insurance.

After the cooling system malfunctioned and destroyed the vaccines, the appellant's insurer brought a subrogated action against the respondent and other contractors involved in the warehouse's operations.

The Court of Appeal upheld the summary judgment dismissing the action, finding that the insurance covenant barred the claim against the respondent (except for a $100,000 negligence carve-out) and that the other contractors were third-party beneficiaries of this protection.

Following summary judgment dismissing the plaintiff’s claim against all defendants, the court addressed supplementary costs submissions from a defendant who did not participate in the summary judgment motion and from several third parties added to the litigation by defendants.

The court reviewed the discretionary framework for costs under s. 131 of the Courts of Justice Act and Rule 57.01 of the Rules of Civil Procedure.

While plaintiffs are generally not liable for costs incurred by third parties, the court noted that such costs may be ordered where the third party proceedings flowed naturally from the plaintiff’s claim.

The court awarded the non‑participating defendant partial indemnity costs and exercised its discretion to award approximately half of the third parties’ requested costs against the plaintiff.

Following dismissal of a complex multi‑party action on summary judgment, the successful defendants sought costs of the entire action in addition to agreed costs of the summary judgment motion.

The plaintiff argued that costs submissions should be limited to the motion and that delay in bringing the motion inflated the defendants’ legal fees.

The court held that where summary judgment disposes of the entire action, the court may fix costs of the entire proceeding, treating the motion similarly to a trial judgment.

Applying the discretion under s. 131 of the Courts of Justice Act and Rule 57.01 of the Rules of Civil Procedure, the court reduced the defendants’ claimed partial‑indemnity costs by 25% to align with what would have been the plaintiff’s reasonable expectations in a large and technically complex case.

The plaintiff pharmaceutical company stored vaccines with a logistics provider under a master services agreement requiring the plaintiff to obtain all‑risk property insurance covering the stored goods and naming the warehouse operator as an additional insured.

After a refrigeration malfunction allegedly rendered the vaccines unsellable, the plaintiff commenced a subrogated action against the warehouse operator and various contractors responsible for the cooling and monitoring system.

The defendants moved for summary judgment dismissing the claim.

The court held that the covenant to insure constituted an allocation of risk whereby the plaintiff assumed the risk of loss to the goods and thereby barred tort claims against the warehouse operator for that loss.

The court further held that the covenant extended to contractors and related parties with an identity of interest in the performance of the contract.

Summary judgment was granted dismissing the action and all cross‑claims.

The appellant insurers appealed an order requiring them to pay 90 per cent of the respondents' defence costs under a directors' and officers' liability insurance policy.

The dispute centered on whether Endorsement 3 of the policy applied to allocate defence costs for 'Hybrid Proceedings' that involved both covered and uncovered conduct, despite the claims not being made during the 2001 policy period.

The Court of Appeal dismissed the appeal, finding that the policy's definition of 'Claim' was not time-limited and that Endorsement 3 applied to allocate 90 per cent of the defence costs to the covered loss.

Following the dismissal of the appellants' appeal of a refusal to certify a class proceeding regarding pension plan amendments, the respondents sought costs.

The appellants argued that no costs should be awarded, relying on the public interest and novel point of law provisions under the Class Proceedings Act, 1992.

The Divisional Court found no special circumstances to depart from the general rule that costs follow the event.

Applying the overriding principle of reasonableness, the court awarded costs to the respondents, including disbursements for a responding report on a fresh evidence motion.

The appellants appealed the decision of the motion judge refusing to certify their proposed class proceedings against the Ontario Northland Transportation Commission regarding amendments to its pension plan.

The appellants alleged the pension plan was an irrevocable trust and the amendments constituted a breach of trust.

The Divisional Court dismissed the appeals, finding that the motion judge made no errors of law, no palpable and overriding errors of fact, and that her conclusions on mixed fact and law regarding common issues, preferable procedure, and representative plaintiffs were reasonable and entitled to deference.