Lisa Kimberley Talbot

This endorsement addresses two issues arising from a case conference in a class action: whether the defendant should disclose its process for identifying class members, and the appropriate cut-off date for class membership.

The court declined to compel disclosure of the defendant's identification process, relying on counsel's undertaking to provide an accurate list, but allowed for future disclosure if disputes arise.

The court determined that the cut-off date for class membership should be the date notice is given to class members, approximately five months after certification, to ensure broader inclusion.

Due to mixed success on the issues and late filings by both parties, no costs were awarded for the attendance.

The plaintiff brought a motion to certify a class proceeding against the defendant employer for unpaid overtime.

The proposed class included non-management employees subject to the defendant's overtime policy.

The court found that the pleadings disclosed valid causes of action in breach of contract, unjust enrichment, and negligence.

The court certified the action, finding that there was an identifiable class, common issues regarding systemic practices and aggregate damages, that a class proceeding was the preferable procedure, and that the plaintiff was an appropriate representative.

The defendants sought leave to appeal an interlocutory order approving the plaintiff's discovery plan in a class action for unpaid overtime.

The defendants argued the order conflicted with established principles of relevance in class actions.

The Divisional Court dismissed the motion, finding no reason to doubt the correctness of the motion judge's decision on relevance and concluding it was not desirable to grant leave.

The defendants sought leave to appeal an order certifying a class proceeding for unpaid overtime on behalf of approximately 7,800 employees.

The defendants argued the certification decision conflicted with appellate authority regarding systemic practices and misclassification.

The Divisional Court dismissed the motion for leave to appeal, finding no conflicting decisions and no good reason to doubt the correctness of the motion judge's order, as the plaintiff had properly framed the case around a systemic policy rather than individual misclassification.

The plaintiff in a certified class action brought a motion to strike the defendants' reply factum filed on a motion for leave to appeal.

The plaintiff argued the reply factum violated Rule 61.03.1(11) of the Rules of Civil Procedure by re-arguing issues rather than responding to new issues.

The Divisional Court agreed, finding that the plaintiff's responding factum did not raise new issues but merely responded to the defendants' original arguments.

The motion was granted, the reply factum was struck, and costs of $5,000 were awarded to the plaintiff.

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 plaintiff in a wrongful dismissal action brought a motion to amend his statement of claim nearly five years after commencing the action.

The proposed amendments sought to add a claim for damages relating to the value of the plaintiff’s investment advisor “book of business” and alleged entitlement to working notice to transition clients.

The court held that the proposed amendments were not tenable at law because they effectively sought double recovery for lost income and relied on a non‑existent entitlement to working notice.

In addition, the amendments constituted a new cause of action based on new material facts and were therefore statute‑barred under the Limitations Act, 2002.

The court granted leave only for certain unopposed amendments and permitted limited further discovery.

The applicant filed a human rights application alleging discrimination in employment on the basis of disability, claiming she was terminated after informing her employer of a pregnancy and a history of miscarriages.

She concurrently filed a complaint under the Employment Standards Act (ESA) alleging reprisal.

An Employment Standards Officer (ESO) dismissed the ESA complaint, finding the termination was for bona fide business reasons.

The respondent requested the Tribunal dismiss the human rights application under section 45.1 of the Code.

Applying the Supreme Court's decision in Figliola, the Tribunal found that the ESO had appropriately dealt with the substance of the human rights allegations and that the applicant was attempting to relitigate the same factual issues.

The application was dismissed.

The applicant filed a human rights application alleging discrimination in employment on the basis of disability.

The Tribunal previously deferred the application pending the conclusion of Employment Standards Act (ESA) proceedings.

Following the conclusion of the ESA proceedings, the respondent requested the application be dismissed under s. 45.1 of the Code, arguing the ESA proceedings appropriately dealt with the substance of the application.

The applicant requested reactivation.

The Tribunal reactivated the application and scheduled a conference call hearing to hear oral submissions on the respondent's request to dismiss, as required by s. 43(2) of the Code.

The Chippewas of Mnjikaning First Nation (MFN) appealed the dismissal of its action claiming a 35% share of net profits from Casino Rama.

MFN argued that its selection as the host site for the casino created a binding contract with Ontario based on its submitted proposal.

The Court of Appeal upheld the trial judge's findings that the site selection process did not constitute a binding tender or RFP process for revenue sharing, and that revenue sharing was intended to be negotiated separately among all First Nations.

The Court also rejected MFN's arguments regarding breach of fiduciary duty, misapprehension of the Aboriginal context, and reasonable apprehension of bias arising from the trial judge's interventions.

The appellant appealed an application judge's order appointing an arbitrator and defining the scope of the arbitration regarding a dispute over the use of casino revenues to fund litigation.

The appellant argued the application judge exceeded his authority by defining the arbitrator's jurisdiction.

The Court of Appeal dismissed the appeal, finding that the Arbitration Act, 1991 does not grant an arbitrator exclusive authority to decide jurisdictional questions in the first instance.

The court held that the application judge properly exercised his jurisdiction to assist the parties and prevent multiple proceedings by deciding between the competing draft orders.