Kirk Michael Marius Baert

The plaintiff discontinued a proposed class action against the defendant, a discount brokerage firm, after the certification motion was adjourned.

The defendant sought costs for defending itself against the certification motion.

The plaintiff argued the costs were excessive and should be apportioned among the multiple defendants originally sued.

The court awarded costs to the defendant on a partial indemnity basis, reduced by approximately 25% to account for access to justice concerns in class action litigation.

The appellants, small and mid-size businesses, appealed a class action decision regarding business interruption insurance claims stemming from the COVID-19 pandemic.

They sought coverage for revenue losses, arguing that the presence of SARS-CoV-2 or civil authority orders constituted "physical loss or damage" to their property under their insurance policies.

The Court of Appeal upheld the trial judge's finding that neither the virus's presence nor the civil authority orders met the "physical loss or damage" criteria for business interruption coverage.

The appeal was dismissed, and costs were awarded to the respondents.

The plaintiff, Dr. Darryl Gebien, sought court approval for a Third-Party Funding Agreement with Omni Bridgeway Ltd. for a proposed class action against numerous pharmaceutical companies regarding the opioid crisis.

Several defendants objected to specific provisions of the agreement, including those related to amendments, assignments, attornment, costs enforcement, termination procedures, accrued costs, and confidentiality.

The court found that while the agreement generally met the requirements for approval, several of the defendants' objections, particularly concerning comprehensive attornment by Omni Bridgeway Ltd. and the broad confidentiality provisions, were "genuinely meaningful" and required resolution.

The motion for approval was adjourned to allow the parties to address these issues, with the court emphasizing that it is not its role to draft the agreement.

This class action is in the settlement administration phase.

Class Counsel sought an order appointing Doug Mitchell as a bilingual arbitrator to assess appeals filed by class members regarding claims administrator decisions, as contemplated by the court-approved Administration Protocol.

The court granted the motion, finding Mr. Mitchell qualified and his appointment consistent with the fair and expeditious determination of class member appeals under section 12 of the Class Proceedings Act, 1992.

The appellant, through her litigation guardian, appealed a Divisional Court decision that reversed a certification order for a proposed class action against the Government of Ontario.

The class action alleged negligence in the administration of services for adults with developmental disabilities and a breach of section 7 of the Canadian Charter of Rights and Freedoms.

The Court of Appeal found that the Divisional Court erred in recharacterizing the negligence claim as impugning core policy decisions and in striking the section 7 Charter claim.

The Court held that the negligence claim concerned operational failures within existing resources, and the section 7 claim alleged psychological harm from the arbitrary administration of waitlists for approved services, which was not foreclosed by existing jurisprudence.

The appeal was allowed, restoring the motion judge's certification order.

The appellant sought to certify a class proceeding against the Crown for failure to hold timely bail hearings, alleging negligence, breach of fiduciary duty, and Charter rights violations.

The motion judge dismissed certification.

The Court of Appeal dismissed the appeal, finding no cause of action in negligence (claims attacked core policy decisions), the fiduciary duty claim abandoned, and the Charter claims lacking common issues and not being a preferable procedure due to the need for individualized assessments.

The plaintiff's class action for systemic negligence in bail hearings was denied certification.

On appeal, the Crown raised the new Crown Liability and Proceedings Act, 2019 (CLPA) as a bar to the negligence claim.

The Divisional Court remitted this specific issue to the motion judge.

The judge found that the CLPA did not substantially change the common law on Crown immunity and that the plaintiff's claim, which challenged high-level policy decisions regarding resource allocation and management of the criminal justice system, remained non-justiciable as a core policy matter, both under the CLPA and pre-CLPA common law.

Consequently, the negligence claim was deemed dismissed without costs under s. 11(8) of the CLPA.

The Superior Court of Justice, on remittal from the Divisional Court, reconsidered the certification of an operational negligence class action claim against the provincial government in light of the newly enacted Crown Liability and Proceedings Act (CLPA) and a constitutional challenge under s. 96 of the Constitution Act, 1867.

The court found it was not plain and obvious that the operational negligence claim was statute-barred by the CLPA, particularly due to the "decision" requirement in s. 11(4) of the CLPA and the plaintiff's pleadings.

Furthermore, the court determined that the s. 96 constitutional challenge to the CLPA was not plainly and obviously doomed to fail, emphasizing the importance of access to courts and the Supreme Court's caution against restoring complete governmental immunity by broadly defining "policy matters." The court concluded that the meaning and constitutionality of the CLPA should be decided on a complete record at trial or summary judgment, not on a pleadings motion.

The original certification of the operational negligence claim remained intact, and a new common issue regarding the CLPA's effect was added by consent.

The plaintiffs, trustees of a pension fund, commenced a class action in Ontario and a similar one in Federal Court.

Settlements were reached with some defendants in the Federal Court action.

The plaintiffs sought court approval to discontinue the Ontario action, with prejudice and without costs, in favour of the Federal Court proceedings.

The court granted the motion, finding no prejudice to putative class members as their claims would continue in the Federal Court, and that discontinuing the Ontario action would avoid a multiplicity of proceedings.

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.

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.

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 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.

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.