Kirk Michael Marius Baert

The Canadian Civil Liberties Association (CCLA) brought a motion for leave to intervene as a friend of the court in an appeal from an order certifying a class action against Ontario.

The underlying class action alleges negligence and Charter breaches in the provision of services to adults with developmental disabilities.

On appeal, Ontario argues that the recently enacted Crown Liability and Proceedings Act, 2019 provides immunity from the negligence claims.

The CCLA sought to intervene to argue that Ontario's expansive interpretation of the Act's immunity provisions violates section 96 of the Constitution Act, 1867.

The court granted the motion, finding that the CCLA would make a useful and distinct contribution to a matter of public importance without causing injustice or undue delay to the parties.

Following the dismissal of a motion to certify a class action regarding unreliable hair drug testing at the Motherisk Drug Testing Laboratory, the plaintiff brought a motion under s. 7 of the Class Proceedings Act, 1992 to continue her action and join approximately 200 co-plaintiffs.

The court held that the limitation periods for the putative class members remain suspended under s. 28 of the Act until the defendants successfully move to dismiss the proceeding without an adjudication on the merits.

The court also held that the test for joining co-plaintiffs under s. 7 is the same as the test under the Rules of Civil Procedure.

The motion to join the co-plaintiffs was dismissed without prejudice due to insufficient pleading of material facts.

In a certified class action, the Attorney General of Canada moved for an order adjourning a summary judgment motion sine die, pending the outcome of appeals in two related cases concerning administrative segregation.

Canada argued that an adjournment would prevent duplication of resources, inconsistencies in law, and allow for streamlining of issues, consistent with the Courts of Justice Act.

The plaintiff opposed the adjournment, citing substantial prejudice due to delay after two years of litigation.

The court refused the adjournment, finding that proceeding with the summary judgment motion was more efficient and fair, as the evidentiary record was complete, and the case should be decided based on existing law.

The court emphasized that an adjournment would waste prior work and add to costs, and that justice delayed is justice denied.

The appellants appealed an order dismissing a motion for production under Rule 30.10(1) of the Rules of Civil Procedure.

The motion judge dismissed the motion without prejudice, allowing it to be brought back later.

Volkswagen, a non-party respondent, moved to quash the appeal, arguing the order was interlocutory and required leave to appeal to the Divisional Court.

The appellants contended the order was final and the appeal lay to the Court of Appeal.

The court held that the order was interlocutory because it did not finally dispose of any issue between the parties and the non-parties, and therefore the appeal was quashed.

This initial case conference for a proposed class action addressed the scheduling of proceedings leading to a certification motion.

The primary issue was whether the defendant's challenge to the plaintiff's cause of action should proceed as a pre-certification motion under Rule 21 of the Rules of Civil Procedure or be raised within the certification motion under section 5(1)(a) of the Class Proceedings Act.

The court, emphasizing the avoidance of 'litigation by instalments,' determined that the cause of action challenge should be made during the certification motion to prevent piecemeal litigation and potential delays from pre-certification appeals.

A schedule for the certification motion was subsequently set.

The plaintiff in a certified class action concerning Mercedes-Benz BlueTEC diesel vehicles moved for further directions regarding the schedule for a partial summary judgment motion on liability issues.

The court had previously set a one-year timeline for this motion and directed immediate discovery.

Despite the defendants' resistance, alleging an "artificially accelerated" discovery schedule without providing supporting evidence, the court reaffirmed its earlier directions.

The judge emphasized the importance of expeditious determination in class actions and the case management judge's role in setting timelines, confirming the summary judgment motion for December 2019 and setting discovery completion by mid-November 2019. interesting_citations_summary: > This decision underscores the broad authority of a class action case management judge to manage proceedings, including setting firm schedules for summary judgment motions and discovery, as supported by *ALS Society v Windsor*.

It highlights that such motions on liability issues are often the pivotal "merits" hearing in complex product liability class actions.

The court also clarifies that parties challenging judicial directions on timelines must provide evidentiary support for their assertions, rather than mere resistance. final_judgement: > The plaintiff's motion for summary judgment on liability issues was confirmed to proceed the week of December 16, 2019.

Counsel were directed to continue "meet and confer" discussions to ensure all relevant discovery is completed by mid-November 2019.

The defendants could re-attend for further directions if insurmountable difficulties arose.

Costs submissions were invited if parties could not agree. winning_degree_applicant: 1 winning_degree_respondent: 5 judge_bias_applicant: 3 judge_bias_respondent: 3 year: 2019 decision_number: 1591 file_number: "CV-16-550271-CP" source: "https://www.canlii.org/en/on/onsc/doc/2019/2019onsc1591/2019onsc1591.html" cited_cases: legislation: - title: "Class Proceedings Act, 1992, S.O. 1992, c. 6, s. 12" url: "https://www.ontario.ca/laws/statute/92c06#s12" case_law: - title: "Kalra v. Mercedes Benz, 2017 ONSC 3795" url: "https://www.canlii.org/en/on/onsc/doc/2017/2017onsc3795/2017onsc3795.html" - title: "Trillium v. General Motors of Canada et al, 2012 ONSC 5960" url: "https://www.canlii.org/en/on/onsc/doc/2012/2012onsc5960/2012onsc5960.html" - title: "Fehr v. Sun Life Assurance Co. of Canada, 2014 ONSC 2183" url: "https://www.canlii.org/en/on/onsc/doc/2014/2014onsc2183/2014onsc2183.html" - title: "ALS Society v Windsor, 2015 ONCA 572" url: "https://www.canlii.org/en/on/onca/doc/2015/2015onca572/2015onca572.html" keywords: - Class action - Motion for directions - Summary judgment - Discovery schedule - Case management - Product liability - Mercedes-Benz - BlueTEC diesel - Emission control areas_of_law: - Civil Procedure - Class Actions --- # Court File and Parties **COURT FILE NO.:** CV-16-550271-CP **DATE:** 20190315 **SUPERIOR COURT OF JUSTICE – ONTARIO** **RE:** YOGESH KALRA, Plaintiff / Moving Party **AND:** MERCEDES BENZ CANADA INC., DAIMLER AG, MERCEDES BENZ USA LLC and MERCEDES BENZ FINANCIAL SERVICES CANADA CORPORATION, Defendants / Responding Parties Proceeding under the Class Proceedings Act, 1992 **BEFORE:** Justice Edward P. Belobaba **COUNSEL:** Peter Griffin, Brian Kolenda, Kirk Baert and James Sayce for the Plaintiff Steven Rosenhek, Vera Toppings and Kimberly Potter for the Defendants **HEARD:** In writing ## Motion for Directions [1] The plaintiff moves for further directions in this class action.

The action was certified as a class proceeding in June 2017.

See [Kalra v. Mercedes Benz, 2017 ONSC 3795](https://www.canlii.org/en/on/onsc/doc/2017/2017onsc3795/2017onsc3795.html). [2] The focus of the class action is the Mercedes-Benz line of BlueTEC diesel automobiles.

The allegation is that the BlueTEC vehicles contain a defect or a “defeat device” that turns off the emission control system when the ambient air temperature drops below 10 degrees Celsius (50 degrees Fahrenheit).

If this is true, this means that the defendants’ BlueTEC vehicles are emitting high (and illegal) levels of nitrogen oxide pollution for the majority of time that they are being driven on Canadian roads.

See [Kalra v. Mercedes Benz, 2017 ONSC 3795, at para. 2](https://www.canlii.org/en/on/onsc/doc/2017/2017onsc3795/2017onsc3795.html#par2).

The defendants deny any such defeat device and look forward to the adjudication of the certified common issues. [3] In February 2018, the defendants advised that they would be bringing a motion for partial summary judgment dismissing the claim as against three of the four defendants (i.e. the off-shore and financial services defendants) and dismissing three of the 14 certified common issues.

However, no further material was delivered in this regard. [4] In December 2018 the plaintiff delivered a draft partial summary judgment motion for the adjudication of the 10 of the 14 certified common issues that deal with liability. [5] At a case conference in December 2018, having resumed my role as case management judge, I directed that the plaintiff’s summary judgment motion be heard in one year’s time, specifically the week of December 16, 2019.

I also directed that the discovery process should commence immediately and if there were any disagreements in the ongoing “meet and confer” discussions about the timing or content of the discovery plan, counsel could re-attend before me. [6] At a case conference in January, 2019 I reminded counsel by way of a further direction that “the requisite discoveries needed to be completed in sufficient time so as not to disturb the December 16, 2019 motion date.” [7] I made these directions to ensure the “fair and expeditious determination” of the class action before me.

This is in accordance with [Section 12 of the Class Proceedings Act, 1992, S.O. 1992, c. 6](https://www.ontario.ca/laws/statute/92c06#s12).

In my experience as a class action judge, the real “merits” hearing in a document-heavy, product liability case such as this, is the partial summary judgment motion for the adjudication of the liability issues.

The liability issues are at the heart of the class action.

If the plaintiff fails on liability that ends the matter; if the plaintiff prevails on liability and the action is not settled, the aggregate or individual damages issues can then be addressed under ss. 24 or 25 of the CPA.

I have found that the liability issues can almost always be adjudicated summarily. [8] Given that it is the defendant in these document-heavy cases that typically holds a disproportionate amount of the evidence, I directed that some measure of discovery begin immediately.

The directed discovery must obviously be limited to productions and questions that are relevant to the issues on the summary judgment motion, that is, to the ten liability issues.

See [Trillium v. General Motors of Canada et al, 2012 ONSC 5960, at paras. 15-16](https://www.canlii.org/en/on/onsc/doc/2012/2012onsc5960/2012onsc5960.html); [Fehr v. Sun Life Assurance Co. of Canada, 2014 ONSC 2183, at para. 54](https://www.canlii.org/en/on/onsc/doc/2014/2014onsc2183/2014onsc2183.html). [9] The direction that the summary judgment motion be heard in December, 2019 reflected my experience that this was generally more than enough time for the completion of the discovery task.

It was also based on the fact that that the defendants did not suggest otherwise or offer any evidence to the contrary. [10] The Court of Appeal made clear in [ALS Society v Windsor, 2015 ONCA 572](https://www.canlii.org/en/on/onca/doc/2015/2015onca572/2015onca572.html) that the directions made thus far are the kinds of directions that fall squarely within the job-description of the class action case management judge: The case management judge is entitled to give directions as to when certain steps should be accomplished and as to what motions may be brought, and when.

The case management judge may prohibit motions from being brought before certain steps have been accomplished and may make orders as to the sequencing of motions.

The case management judge is also entitled to determine the order in which some issues are addressed.

He or she is entitled, but not required, to determine whether some issues are amenable to summary judgment and to schedule the proceedings accordingly.

See [ALS Society v Windsor, 2015 ONCA 572, at para. 71](https://www.canlii.org/en/on/onca/doc/2015/2015onca572/2015onca572.html#par71). [11] The defendants, however, continue to offer a level of resistance that, frankly, is difficult to understand.

They say that the one-year time post for the plaintiff’s summary judgment motion unjustifiably imposes “an artificially accelerated or abbreviated discovery schedule.” They say this even though they have provided no evidence in support of this assertion.

Absent such evidence (which may still be tendered by the defendants provided this is done on a timely basis) I can only re-affirm my earlier Direction, albeit revised as follows: ## Direction (i) The plaintiff’s motion for summary judgment on the liability issues shall proceed as scheduled the week of December 16, 2019; (ii) Counsel shall continue their “meet and confer” discussions about the delivery schedule in the discovery plan in good faith and in an effort to ensure that all relevant discovery is completed by the middle of November, 2019 so that the scheduled hearing date of December 16, 2019 is not compromised; (iii) If the defendants encounter any insurmountable difficulties in adhering to the time-posts set out herein, they may re-attend before me for further directions; (iv) If the parties cannot agree on an appropriate costs award for this motion in writing, I would be pleased to receive brief written submissions – from the plaintiff within 14 days and from the defendants within 14 days thereafter. --- Justice Edward P. Belobaba Date: March 15, 2019

The appellant appealed an order dismissing a motion for certification of a class proceeding against the respondents for alleged systemic negligence in connection with overcharging for electricity supply caused by a new billing system.

The Divisional Court upheld the motion judge's finding that there was no common harm to the class, as the alleged systemic negligence produced a multiplicity of errors that were harmful, neutral, or beneficial to different class members.

The court concluded that the proposed common issues were not substantial ingredients of each class member's claim and that a class action was not the preferable procedure.

The appeal was dismissed.

Following the dismissal of the plaintiffs' motion for pre-discovery production from non-party Volkswagen (VW), VW sought partial indemnity costs of $29,487.29.

The plaintiffs argued the motion was straightforward and suggested an award of $5,000.

The court noted the motion was of substantial importance to both parties but found some evidence of over-lawyering by VW.

Applying the factors under Rule 57.01(1), the court fixed costs at $22,000 all inclusive.

In a class action, the Plaintiffs sought pre-discovery production of three million documents from Volkswagen Group Canada, Inc. et al. (VW), a non-party to the main action.

The motion was dismissed, and VW, as the successful party, sought partial indemnity costs of $29,487.29.

The Plaintiffs argued for a costs award of $5,000, contending the motion was straightforward.

The court considered the factors under Rule 57.01(1) of the Rules of Civil Procedure, including the importance and complexity of the motion, the reasonable expectations of the unsuccessful litigant, and the conduct of the parties.

While acknowledging the motion's importance to both sides, the court found some evidence of "over-lawyering" by VW.

Applying the discretionary principles for costs awards, the court adjusted the amount and awarded VW $22,000, all inclusive.

The plaintiff, Shawn Panacci, brought a motion to certify a class action against Volkswagen and Audi entities concerning an alleged widespread defect in the timing chain mechanism of EA888-type engines in vehicles sold or leased in Canada between 2007 and 2012.

The plaintiff alleged negligence, breach of warranty, unjust enrichment, and waiver of tort, claiming the defect posed a risk of catastrophic engine failure and personal injury.

The court granted certification, finding that the requirements under the Class Proceedings Act were met, including identifiable class, preferable procedure, and suitable representative plaintiff.

However, only three of the six proposed common issues were certified: duty of care and breach of duty of care, breach of express and implied warranties, and the availability of punitive damages.

Claims related to unjust enrichment, waiver of tort (due to lack of predicate liability finding), and aggregate damages (due to need for individualized assessments) were not certified as common issues.

This motion concerned the certification of a proposed class action against the provincial government regarding the negligent operation and administration of social assistance programs for developmentally disabled adults.

The plaintiff alleged negligence, breach of fiduciary duty, and breach of section 7 of the Canadian Charter of Rights and Freedoms, primarily due to indeterminate waitlists and flawed prioritization for approved services.

The court certified the class action, allowing the negligence and Charter claims to proceed, but struck the breach of fiduciary duty claim.

Common issues related to duty of care, Charter rights, and the availability of punitive damages were certified, while aggregate damages and the amount of punitive damages were not.

The appellant appealed the dismissal of her motion to certify a class action against the Hospital for Sick Children and others regarding the systemic negligence of the Motherisk Drug Testing Laboratory.

The motions judge had found that a class proceeding was not the preferable procedure because resolving the common issues of systemic negligence would not significantly advance the individual class members' claims, which required highly individualized proof of causation and damages.

The Divisional Court dismissed the appeal, finding no error of law or palpable and overriding error in the motions judge's discretionary balancing of the preferable procedure factors.

This is a costs endorsement following the release of reasons in an appeal.

The respondents advised that the court had misapprehended the appellants' oral costs submissions regarding quantum.

The parties were permitted to provide further written submissions on the costs issue.

The court affirmed its costs order for the appeal but altered the costs of the motion below, reducing the amounts payable by Bank of Montreal and Toronto Dominion Bank.

The appellants sought to add Toronto Dominion Bank and Bank of Montreal as defendants to an existing class action alleging a secret conspiracy to manipulate the foreign exchange market.

The motion judge dismissed the motion on the basis that the claim against the respondents was statute-barred under the Limitations Act, 2002.

The Court of Appeal allowed the appeal, finding that the motion judge erred by establishing too high an evidentiary threshold and by finding that the respondents' identities could have been discovered with reasonable diligence without proper evidentiary foundation.

The court held that the appellants provided a reasonable explanation for why they could not have identified the respondents before the limitation period expired, and that the issue of due diligence should be determined on a summary judgment motion or at trial.

Indigenous peoples from Ecuador obtained a US$9.5 billion judgment against Chevron Corporation for environmental devastation caused by oil exploration.

After failing to enforce the judgment in the United States due to findings of fraud by the plaintiffs' counsel, they sought to enforce it in Ontario against Chevron Canada, a seventh-level subsidiary.

The motion judge dismissed the claim, finding that Chevron Canada's shares and assets were not exigible under the Execution Act and that the corporate veil should not be pierced.

The appellants appealed, arguing both that the Execution Act permitted seizure of Chevron Canada's assets and that the corporate veil should be pierced in the interests of justice.

The Court of Appeal dismissed the appeal on the merits but reduced the costs award, recognizing the litigation as public interest litigation.

The appellants, plaintiffs in a proposed class action alleging price-fixing in the foreign exchange market, obtained an ex parte subpoena in the United States under 28 U.S.C. 1782 against a non-party, Bloomberg.

The respondents successfully moved before the case management judge for an order requiring the appellants to obtain authorization under the Ontario Rules of Civil Procedure before taking any steps to enforce the subpoena.

The Divisional Court dismissed the appellants' appeal, finding that the motion judge correctly held that the appellants could not use the U.S. process to circumvent Ontario's strict rules on pre-certification discovery of non-parties, and that the appellants had failed to make full and fair disclosure to the U.S. court.

The Crown appealed a motion judge's order striking its third party claim.

The Court of Appeal allowed the appeal, finding it was not plain and obvious that the Crown's third party claim had no reasonable prospect of success.

However, the respondent plaintiff amended his pleading to include language that would render the Crown's third party claim subject to being struck.

As a result, while the appeal was allowed, the practical outcome remained that the Crown's third party claim was struck.

The court awarded costs in accordance with the motion judge's decision, with each party bearing their own costs of the appeal.

The plaintiff brought a motion to certify a class action against Hydro One Networks on behalf of customers who were allegedly overcharged due to a malfunctioning customer information system (CIS) implemented in 2013.

The plaintiff advanced claims for breach of contract, negligence, and unjust enrichment, seeking $100 million in aggregate damages.

The court dismissed the certification motion, finding that the proposed common issues lacked commonality because the alleged systemic negligence produced a multiplicity of errors requiring individual inquiries.

The court also found that a class proceeding was not the preferable procedure, as individual issues trials would be inevitable and the Ontario Energy Board's complaint process offered a superior alternative for resolving the billing disputes.

This is an appeal of a motion judge's decision to strike the Crown's third party claims against 15 non-government, non-profit organizations that operated youth detention centres under contract with the Crown.

The plaintiff alleged negligence, breach of fiduciary duty, and breach of Charter rights arising from the use of solitary confinement in youth detention centres.

The plaintiff limited his claim to damages attributable to the Crown's proportionate degree of fault.

The motion judge struck the Crown's third party claims, relying on the principle from Taylor v. Canada (Health Canada) that when a plaintiff limits damages to a defendant's proportionate fault, the defendant cannot pursue contribution and indemnity claims.

The Crown appealed, arguing it was not plain and obvious that third party claims had no reasonable prospect of success, particularly regarding vicarious liability and breach of fiduciary duty claims.

Indigenous Ecuadorian villagers obtained a US$9.5 billion judgment against Chevron Corporation in Ecuador for environmental pollution.

They sought to enforce the judgment in Ontario against Chevron Corporation and its seventh-level indirect subsidiary, Chevron Canada.

The motion judge granted an order requiring the plaintiffs to post security for costs of approximately $942,951 before the appeal could proceed.

The appellants moved to vary this order.

The Court of Appeal set aside the security for costs order, finding that the motion judge erred in principle by failing to conduct a holistic analysis of the justness of the order in all circumstances.

The court emphasized that security for costs orders must be just and should not be used as a litigation tactic to prevent cases from being heard on their merits.