Sarah Whitmore

At a case management conference in a certified class proceeding against Uber, the court considered whether to schedule the plaintiffs' proposed motions to amend their statement of claim and certify an additional common issue regarding an arbitration and class action waiver clause.

The defendants had already brought a motion to amend the class action notices.

Pursuant to section 12 of the Class Proceedings Act, 1992, the court exercised its discretion to allow the plaintiffs' motions to be scheduled and heard together with the defendants' motion, and set a timetable for the delivery of materials and the hearing.

The parties disputed the wording of a Certification Order in a class action regarding whether Uber drivers are employees.

The defendants requested the addition of the phrase 'to be calculated and assessed on an individual basis' to the paragraph describing the relief sought.

The court granted the request, finding that the phrase provided true and helpful information to the putative class members regarding the potential need for individual issues trials.

The plaintiff sought approval of a $22.25 million settlement in a class action alleging unpaid overtime by the defendant trucking company.

The court approved the settlement, finding it fair and reasonable given the significant risks of proving systemic liability and the range of damages calculated by experts.

The court also approved a $10,000 honorarium for the representative plaintiff and class counsel's 30% contingency fee, noting that while third-party funding arrangements must now be considered in assessing legal fees under the amended Class Proceedings Act, it would not retroactively adjust fees in this case.

The plaintiff brought a motion to certify a class action against Uber on behalf of drivers and delivery people, alleging they are employees misclassified as independent contractors and are entitled to benefits under the Employment Standards Act, 2000.

Uber opposed certification, arguing the relationship is idiosyncratic and relying on a new Arbitration and Class Action Waiver Clause.

The court certified the action for breach of contract and ESA claims, finding some basis in fact for common issues regarding employment status based on the standard form contracts and app functionality.

The court declined to strike down the arbitration clause at this stage, ordering that class members be given notice of its potential legal significance.

In a national class action for unpaid overtime, the defendant bank brought a motion for a class-wide limitations order to time-bar claims falling outside provincial limitation periods.

The court dismissed the motion, finding that the reasonable discoverability of the claims—specifically whether taking legal action was appropriate—required individualized assessments.

Evidence of power imbalances, fear of reprisal, and reasonable reliance on the bank's misrepresentations rebutted the statutory presumption of discoverability on a class-wide basis.

The plaintiff's cross-motion to strike the limitations defence entirely was also dismissed.

The plaintiff, a former radio host, brought a defamation action against the defendants over a magazine article detailing his criminal harassment of a former partner.

The defendants brought an anti-SLAPP motion under s. 137.1 of the Courts of Justice Act to dismiss the action.

The court found that the article related to a matter of public interest (gender-based harassment).

While the plaintiff showed the action had substantial merit and the defence of justification might not succeed, he failed to prove that the harm he suffered from the article outweighed the public interest in protecting the expression.

The court noted the plaintiff's career damage occurred prior to the article's publication due to the criminal charges themselves.

The motion was granted and the action dismissed.

The representative plaintiff brought a motion for summary judgment on the liability common issues in a class action for unpaid overtime on behalf of customer service employees of the defendant bank.

The court found that the bank's overtime policies, which required pre-approval, and its failure to record actual hours worked, violated the Canada Labour Code.

The court concluded that the bank permitted uncompensated overtime by failing to prevent it, thereby breaching its statutory and contractual duties to the class members.

The plaintiff, an UberEATS driver, commenced a proposed class action alleging that Uber drivers are employees and entitled to the protections of the Employment Standards Act, 2000.

The defendants moved to stay the action in favour of arbitration in the Netherlands, relying on the arbitration clause in the service agreements.

The court held that the International Commercial Arbitration Act, 2017 applied and that, under the competence-competence principle, the arbitrator must determine their own jurisdiction in the first instance.

The court found no unconscionability or statutory bar to arbitration and stayed the action.

Following a certification motion in a proposed class action by former junior hockey players seeking minimum wage and overtime pay, the court determined the costs awards.

The plaintiffs succeeded in certifying the action against the Canadian teams but failed against the American teams.

The court awarded the plaintiffs $1,212,065.63 in partial indemnity costs, with $500,000 payable forthwith and the balance in the cause.

The American teams were awarded $200,000 in costs, which the court ordered to be credited against the plaintiffs' award, akin to a Bullock or Sanderson order, reflecting that both sides were responsible for the excessive litigation expense.

Following the dismissal of Iran's motions to set aside default judgments and a Mareva injunction, the plaintiffs sought costs.

Iran argued it was immune from costs orders under the State Immunity Act and the Justice for Victims of Terrorism Act.

The court held that Iran was not immune from costs and awarded the plaintiffs costs on a partial indemnity basis, finding the claimed amounts reasonable given the complexity and high stakes of the proceedings.

The applicants brought a motion to strike portions of the respondents' affidavits filed in a pending application regarding a right of way dispute and defamation claims.

The applicants argued the impugned paragraphs contained irrelevant, prejudicial, and hearsay evidence.

The court dismissed the motion, finding that the evidence was either withdrawn from objection by the applicants or was admissible as it went to the respondents' state of mind, responded directly to issues raised by the applicants, or provided relevant narrative history rather than being offered for the truth of its contents.

The plaintiffs, victims of terrorist attacks sponsored by Iran, sought to enforce U.S. judgments against Iran in Ontario under the Justice for Victims of Terrorism Act (JVTA).

Iran brought motions to set aside or stay the default judgments and a Mareva injunction, arguing state and diplomatic immunity, limitation periods, and public policy.

The court dismissed Iran's motions, finding that the State Immunity Act and JVTA removed Iran's jurisdictional and enforcement immunity, the actions were not statute-barred, and the U.S. judgments met the criteria for recognition in Canada.

The court also granted summary judgment to the Bennett plaintiffs to enforce their U.S. judgment against Iran's non-diplomatic property in Ontario.

The moving parties sought costs of $11,097.22 on a partial indemnity basis after successfully obtaining an adjournment.

The respondent opposed the costs, arguing they should be assessed later or denied due to alleged delays.

The court found the motion was entirely avoidable and necessitated by the respondent's unreasonable refusal to consent to the adjournment.

Applying the principles of proportionality and reasonableness, the court fixed costs at $6,000 inclusive of disbursements and HST.

This costs decision followed a successful certification motion in a proposed class proceeding.

The moving party sought substantial indemnity costs after the date of a Rule 49 offer, arguing that the certification result met or exceeded the offer terms.

The court accepted that submission, adjusted counsel hourly rates to conform with the costs grid, removed a legal research disbursement, reviewed comparable historical certification costs awards, and fixed fair and reasonable costs at $175,000 all-inclusive.

After deducting prior costs awarded to the responding parties on a refusals motion, the court ordered payment of $161,500 forthwith.

On a certification motion in a proposed overtime class action against a federally regulated trucking employer, the court held that the claim was not framed as a misclassification case requiring individualized overtime entitlement determinations, but as a systemic challenge to the employer’s overtime policies, practices, and record-keeping.

Applying the s. 5(1)(c) commonality requirement under the Class Proceedings Act, 1992, the court found some basis in fact for most proposed common issues, including contractual incorporation of overtime obligations, alleged systemic avoidance of overtime, good faith duties, negligence-based record-keeping duties, unjust enrichment, the effect of an Assurance of Voluntary Compliance, class-wide liability, aggregate damages, and punitive damages.

The court refused to certify issues that depended on individual proof of actual overtime entitlement or that were too broad or unnecessary.

The action was certified as a class proceeding.

The appellant and respondent reached a settlement in a copyright infringement class action, which the motion judge refused to approve.

The appellant appealed the refusal to the Court of Appeal.

The Court of Appeal quashed the appeal, holding that an order refusing to approve a class action settlement is an interlocutory order, not a final order, because the litigation continues and the merits of the case remain to be determined.

Therefore, jurisdiction to hear the appeal lies with the Divisional Court, with leave, rather than the Court of Appeal.