Linda M. Plumpton

This decision addresses an omnibus motion and cross-motion within a certified class proceeding concerning the employment status of Uber drivers and delivery people.

The court granted Uber's request to certify an additional common issue, which clarifies the possible classifications of the relationship between Uber and class members (customer, independent contractor, or employee).

The court dismissed the plaintiffs' request to certify a common issue regarding the validity of the Class Action Waiver, finding that no cause of action had been pleaded to support such a claim.

The enforceability of the Class Action Waiver will not be determined at the common issues trial but may be addressed at individual issues trials.

The defendants in two related actions sought orders to compel the plaintiffs, Andrew Stronach and Selena Stronach, to undergo medical examinations to assess their mental capacities for the purpose of determining if litigation guardians were required.

The court dismissed the motion against Selena Stronach, finding insufficient evidence to rebut the presumption of capacity.

The motion against Andrew Stronach was dismissed without prejudice, as the court found it premature and suggested other discovery avenues should be pursued first.

The court also declined to order production of video recordings of Andrew's examination for discovery.

The Canadian Imperial Bank of Commerce appealed three lower court decisions in a class action initiated by Dara Fresco on behalf of 31,000 customer service employees.

The class action alleged that the Bank's overtime policies and record-keeping practices led to uncompensated overtime, contrary to the Canada Labour Code.

The Court of Appeal for Ontario dismissed all three appeals.

It upheld the motion judge's interpretation of "permitted" overtime under s. 174 of the Code, affirming that the Bank's policies and record-keeping were "institutional impediments" to proper compensation.

The Court also confirmed the certification of aggregate damages, ruling that the Supreme Court's Pro-Sys decision allowed the trial judge to reconsider this issue despite a previous refusal at certification.

Finally, the Court upheld the motion judge's decision to defer a class-wide limitations order and a constitutional question regarding the extra-territorial application of the Class Proceedings Act, deeming them premature.

Following a decision declaring the respondent a vexatious litigant and staying his underlying civil claims as an abuse of process, the court determined the scale and quantum of costs.

The court awarded full indemnity costs to both groups of applicants for both the applications and the underlying civil actions, citing the respondent's extreme, baseless claims and his well-funded, obsessive litigation campaign.

Costs were fixed at $53,175.37 for the Flores applicants and $195,970.46 for the JFCY applicants.

The appellants appealed a motion judge's decision striking out portions of their statements of defence.

The impugned pleadings referred to documents and communications from a judicial mediation, which the motion judge found were prima facie protected by settlement privilege.

The Divisional Court dismissed the appeal, holding that the motion judge correctly applied Rule 25.11 of the Rules of Civil Procedure.

The court affirmed that the respondents had not waived settlement privilege and that the justice of the case did not require an exception to allow the appellants to plead the privileged information to defend against breach of fiduciary duty claims.

The applicants, including a legal clinic and family friends, brought applications under s. 140 of the Courts of Justice Act to have the respondent declared a vexatious litigant.

The respondent had engaged in years of relentless litigation across multiple jurisdictions following his teenage daughter's decision to withdraw from his custody, repeatedly alleging abduction, fraud, and conspiracy against anyone involved.

The court found that the respondent persistently and without reasonable grounds instituted vexatious proceedings and conducted them in a vexatious manner, continually attempting to re-litigate issues already decided against him.

The applications were granted, the respondent was declared a vexatious litigant, and he was prohibited from instituting or continuing related proceedings without leave of the court.

The parties made written submissions regarding costs following judgments in several related appeals.

The Appellants sought partial indemnity costs for the appeals in which they were successful, while the Respondent sought substantial indemnity costs.

The Tax Court of Canada awarded lump sum costs in favour of the Respondent fixed at $1,197,942, payable by the Appellants on a joint and several basis, finding that the Respondent was entitled to partial indemnity costs at the mid to high end of the scale due to the degree of overall success, amounts at issue, complexity, and conduct of the parties.

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 moving parties sought leave to appeal from the decision of Cavanagh J. dated August 26, 2021.

The Divisional Court granted the motions for leave to appeal and awarded costs in the agreed amount of $20,000 payable by the responding parties.

A case management teleconference was scheduled to settle a schedule for the exchange of appeal materials and to schedule an expedited appeal date.

The plaintiffs, Andrew and Selena Stronach, brought motions to strike out portions of the defendants' Fresh as Amended Statements of Defence under Rule 25.11 of the Rules of Civil Procedure.

The plaintiffs argued that the impugned pleadings improperly referenced documents and communications that were subject to settlement privilege arising from a confidential judicial mediation.

The defendants argued that the plaintiffs had waived privilege or that an exception applied based on the justice of the case.

The court found that the mediation was subject to settlement privilege, the plaintiffs had not waived the privilege, and no exception applied.

The court granted the motions to strike the pleadings relating to the mediation.

The court also struck out portions of one defendant's pleading as scandalous, but dismissed a motion to require another defendant to reinstate a withdrawn admission.

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.

The Appellant established several income funds and arranged for his RRSP Trust to acquire in excess of 99% of the units.

The Minister reassessed the Appellant and the RRSP Trust on the basis that the income funds were not qualified investments, or alternatively, that they were a sham, window dressing, or subject to GAAR.

The Tax Court found that the income funds were not qualified investments because they failed to meet the prescribed conditions for a mutual fund trust, specifically the requirement for a lawful distribution to the public.

The Court also found that the transactions were abusive tax avoidance under GAAR.

However, the Court allowed the appeals in part, finding that the Minister could not assess the same amounts under both subsection 56(2) and subsection 146(10.1), and that the RRSP Trust was entitled to a credit for the value of units issued in exchange for other qualified investments.

The plaintiffs, Andrew and Selena Stronach, sought leave to amend their respective statements of claim in two related actions concerning the management of the Stronach family business and trusts.

The defendants, including Belinda Stronach, opposed the amendments on several grounds, primarily arguing that references to a May 2020 Agreement were barred by settlement privilege.

The court found that the defendants failed to prove the May 2020 Agreement was intended to be kept confidential, and alternatively, that any privilege had been waived or an exception applied.

The court also rejected arguments that the amendments improperly withdrew admissions or were scandalous and vexatious.

Leave to amend the pleadings was granted.

Following a successful appeal, the appellant sought its costs of the original application on a substantial indemnity basis, citing the respondent's bad faith dealing.

The Court of Appeal declined to award substantial indemnity costs, finding the respondent's conduct did not rise to the level of reprehensible, scandalous, or outrageous.

The Court awarded the appellant partial indemnity costs fixed at $100,000.

The parties brought a motion to approve settlement agreements and distribution protocols in class actions arising from data breaches at BMO and CIBC (Simplii) that affected over 120,000 clients.

The proposed settlements provided a combined $22.9 million to compensate class members for time spent and inconvenience, with tiered compensation based on the sensitivity of the compromised information.

The court applied the Mancinelli factors and found the settlements to be fair, reasonable, and in the best interests of the class, particularly given the litigation risks associated with the tort of intrusion upon seclusion for third-party hacker intrusions.

The plaintiff brought a motion for approval of class counsel fees and a representative plaintiff honourarium following a class action settlement.

The court approved a $5,000 honourarium for the representative plaintiffs, finding they meaningfully contributed to access to justice and assumed no financial risk.

The court also approved class counsel fees calculated at 25% of the recovery, resulting in a 2.6 multiplier on docketed time, which was deemed appropriate given the significant risks assumed by counsel.

The moving parties sought leave to appeal the February 12, 2021 decision of McEwen J. The Divisional Court dismissed the motion for leave to appeal and awarded costs of $5,000 to the respondents.

The moving parties sought leave to appeal the January 11, 2021 decision of Boswell J. The Divisional Court dismissed the motion for leave to appeal and awarded costs to the responding parties.

Dara Fresco, the representative plaintiff in a class action, moved to quash two aspects of the Canadian Imperial Bank of Commerce's appeals from a judgment on common issues.

Fresco argued that the issues concerning limitation periods and aggregate damages were only appealable to the Divisional Court with leave, not the Court of Appeal.

The Court of Appeal dismissed the motions to quash, holding that it had jurisdiction over all aspects of the appeals under s. 30(3) of the Class Proceedings Act, 1992, as the determinations on limitations and aggregate damages were part of the judgment on common issues.

The defendants in a complex defamation action brought motions for the production of documents related to 'Project Maple Tree', an operation undertaken by foreign investigative agents (including Black Cube) retained by the plaintiffs.

The plaintiffs asserted solicitor-client and litigation privilege over the documents.

The court held that it had jurisdiction to hear the motions despite the stay provision in s. 137.1(5) of the Courts of Justice Act.

The court rejected the claims of solicitor-client privilege, finding the third-party investigators were not essential to the solicitor-client relationship.

The court also rejected the claims of litigation privilege for the vast majority of the documents, finding their dominant purpose was not legitimate litigation and that the 'Blank exception' applied because the agents engaged in improper conduct, including pretext stings on a former judge and opposing party employees.