Margaret L. Waddell

In a proposed class action regarding allegedly defective power steering in MINI Cooper vehicles, the plaintiff moved under Rule 30.04(2) of the Rules of Civil Procedure to inspect documents referenced in the defendants' statement of defence.

The defendants refused, arguing the requests were for non-specific documents and were premature given the pending certification motion.

The court dismissed the motion, holding that the right to inspect under Rule 30.04(2) is not absolute and the court retains discretion under Rule 30.04(5) to refuse production based on disproportionality and untimeliness.

The court found the plaintiff's request was an improper attempt to obtain pre-certification documentary discovery without showing relevance to the certification criteria.

The defendants in a proposed class action regarding allegedly defective power steering in MINI Cooper vehicles brought a preliminary motion to strike portions of an affidavit filed by the plaintiff for the certification motion.

The impugned evidence consisted of charts compiling consumer complaints from a US regulatory database.

The court granted the motion, finding the evidence to be inadmissible multiple-level hearsay.

The court held that even on the lower 'some basis in fact' standard applicable to certification motions, evidence must meet usual admissibility criteria, and the prejudicial effect of the 400 pages of complaints outweighed any probative value.

The plaintiffs brought a motion, with the defendants' consent, to certify a proposed class action for settlement purposes, approve a settlement agreement, approve the plan for disseminating notices, approve the forms of the notices, and grant a privacy and disclosure order.

The class action concerned defective implantable cardioverter or cardiac resynchronization therapy defibrillators manufactured by the defendants, which were prone to premature battery depletion.

The court found that all criteria for certification under the Class Proceedings Act, 1992, were satisfied, noting that these criteria may be applied less rigorously in a settlement context.

The motion was granted, approving the certification for settlement, the settlement agreement, and related procedural orders.

The plaintiff, an Indian Residential School survivor, sued his former lawyers (the Wallbridge defendants) for negligence.

The negligence claim arose after the defendants initially failed to secure him compensation through an IAP claim for sexual abuse, causing him significant psychological harm.

The plaintiff later succeeded in obtaining compensation with new counsel.

The defendants moved to dismiss the negligence action as an abuse of process, arguing it was barred by the 2006 Indian Residential Schools Settlement Agreement (IRSSA) Approval Order.

The court dismissed the motion, holding that the release provisions in the Approval Order did not encompass causes of action that arose after its effective date, nor could claims of solicitor's negligence in the prosecution of an IAP claim have been within the contemplation of the parties to the IRSSA.

The Attorney General of Canada moved to dismiss or stay an action brought by an Indian Residential Schools Settlement Agreement (IRSSA) claimant, arguing abuse of process based on release, re-litigation, requirement for leave, and improper forum.

The court rejected the arguments regarding release and re-litigation of certain disclosure issues.

However, it found that the action against Canada, which sought damages for breach of IRSSA disclosure obligations, involved the implementation and enforcement of the IRSSA and should have been initiated as a Request for Directions before the Eastern Administrative Judge under the Court Administration Protocol.

The action against Canada was stayed, while the action against the other defendants (solicitors) was deemed properly brought outside the IRSSA provisions.

The Canadian Imperial Bank of Commerce (CIBC) sought an interpleader order under Rule 43 of the Rules of Civil Procedure for approximately $25.7 million CAD and $69,000 USD.

These "Disputed Funds" were held in accounts related to cryptocurrency transactions facilitated by Costodian Inc. for QuadrigaCX, with some funds transferred to Jose Reyes's personal accounts.

CIBC froze the accounts due to an inability to determine the rightful entitlement among 388 depositors, Costodian, Reyes, Billerfy, and QuadrigaCX, and concerns about money laundering.

The respondents opposed the application, arguing there were no competing claims.

The court found a real foundation for competing claims, both among the respondents themselves and from the depositors, particularly noting the refusal of QuadrigaCX's CEO to confirm if depositors' online wallets had been credited.

The interpleader order was granted, directing the funds to be paid into court, but the court declined to extinguish CIBC's potential liability for its actions in freezing the accounts.

The court determined the costs award following the dismissal of a securities class action against the defendant on jurisdiction and forum non conveniens grounds.

The successful defendant sought $696,393 in partial indemnity costs for both the jurisdiction and certification motions, while the plaintiff proposed $75,000 at most.

The court adjusted the defendant's request, particularly by removing expert fees for "efficient market" analysis deemed unnecessary.

Considering the timing of the jurisdiction motion and the impact of a prior analogous decision (Yip v HSBC Holdings) which simplified the legal analysis, the court fixed costs at $260,000, payable by the plaintiff to the defendant, emphasizing fairness and reasonableness to the losing party under Rule 57.01(1).

This is a costs endorsement on appeal from a Superior Court judgment dismissing requests for directions by Indian Residential School claimants pertaining to St. Anne's Indian Residential School.

The appellants sought costs on a partial indemnity scale, arguing the unique circumstances and public interest nature of the case warranted an award.

Independent Counsel also sought costs.

The Court of Appeal upheld the lower court's dismissal of the requests without costs, finding that the predominantly procedural nature of the issues on appeal did not warrant a costs award in favour of the appellants or Independent Counsel.

The plaintiff, George Leon, brought a proposed class action in Ontario against Volkswagen AG for fraudulent misrepresentation related to the purchase of VWAG American Depositary Receipts (ADRs) and common shares on foreign exchanges.

Volkswagen AG moved to dismiss the action for lack of jurisdiction or, alternatively, to stay it on the grounds of forum non conveniens.

The court dismissed the action, finding no real and substantial connection to Ontario, as VWAG did not carry on business in Ontario and the tort of fraudulent misrepresentation was not committed there.

The court also found that the U.S. (for ADRs) and Germany (for common shares) were clearly more appropriate forums, emphasizing the principle of international comity in cross-border securities litigation and giving little weight to the plaintiff's asserted juridical advantages in Ontario.

Angela Shisheesh, a class member under the Indian Residential School Settlement Agreement (IRSSA), brought a Request for Directions (RFD) seeking to deposit examination for discovery transcripts from the Cochrane civil proceedings with the National Centre for Truth and Reconciliation (NCTR) and a declaration that these transcripts were not subject to settlement privilege.

The court previously determined Shisheesh had standing only for directions regarding document delivery to the NCTR.

The court dismissed the RFD, finding no direction was needed for depositing the transcripts as the right was undisputed.

The court declined to issue a declaration on settlement privilege, deeming it unnecessary for the undisputed right to deposit documents and a matter for future case-by-case determination in other proceedings.

This decision addresses a costs award sought by the Attorney General of Canada against counsel, Ms. Fay Brunning, personally.

The underlying matter involved Requests for Directions (RFDs) related to the Indian Residential School Settlement Agreement (IRSSA), where Ms. Brunning represented claimants.

Canada sought $25,000 in costs, alleging Ms. Brunning brought duplicative, vexatious proceedings, made baseless and scandalous allegations against Canada and the courts, and unduly enlarged the proceedings.

The court found Ms. Brunning's conduct, including relitigating issues and defying court orders, fell within Rule 57.07(1) of the Rules of Civil Procedure and also warranted sanction under the court's inherent jurisdiction for seriously undermining the administration of justice.

Despite finding her conduct not dishonest or malicious, the court concluded it was an extraordinary case justifying a personal costs award.

Canada's request for $25,000 was granted, payable by Ms. Brunning personally.

The plaintiffs brought a motion to certify a class action against the Royal Winnipeg Ballet and a former instructor/photographer, Bruce Monk.

The plaintiffs alleged that Monk took intimate photographs of students in private settings and disseminated them without consent, constituting sexual assault, breach of fiduciary duty, and invasion of privacy.

The court found that the pleadings disclosed causes of action, there was an identifiable class, and there were 23 common issues.

The court also found that a class proceeding was the preferable procedure and that the representative plaintiffs were suitable.

The certification motion was granted.

Appeals arising from the implementation of the Indian Residential Schools Settlement Agreement (IRSSA).

The appellants sought declarations that Canada breached its disclosure obligations under the IRSSA by refusing to produce transcripts of examinations for discovery from civil actions (Cochrane Transcripts) and sought broad relief for all former students affected by alleged breaches.

The administrative judge dismissed the requests for directions.

The Court of Appeal upheld the dismissal, finding that Canada did not breach its disclosure obligations by refusing to produce the Cochrane Transcripts, that the deemed undertaking rule applied to protect the privacy of examinees, and that the court lacked jurisdiction to grant the broad relief sought.

The appellants appealed an order of the Superior Court of Justice conditionally approving a third-party litigation funding agreement for a proposed class action.

The respondents moved to quash the appeal, arguing the order was interlocutory and thus only appealable to the Divisional Court with leave.

The Court of Appeal held that the conditional approval order was interlocutory, not final, because it did not finally dispose of the substantive rights of the parties.

The order merely conditioned approval on amendments to the funding agreement; failure to amend resulted in dismissal of the approval motion, not from the order itself.

The appeal was quashed.

The Holmes defendants sought leave to appeal an order dismissing their fourth motion to set aside a Mareva injunction and ancillary orders.

The motion judge had dismissed the Mareva order challenge on grounds of waiver and res judicata.

The applicant argued for leave based on conflicting decisions and doubt regarding the order's correctness.

The court denied leave, finding no conflicting decision on principle and no serious debate about the order's correctness, emphasizing the unique circumstances and the history of repeated, unsuccessful motions.

Following dismissal of a certification motion in a proposed securities-related class proceeding, the court addressed a dispute regarding a disbursement claimed by the successful defendant for expert opinion evidence on American securities law.

The plaintiff argued the expert evidence was premature and unnecessary at the certification stage and should not be recoverable as a cost.

The court held that obtaining expert advice regarding potential application of American law was reasonably within the contemplation of the parties given the large number of American investors in the proposed class.

The court concluded that the expert opinion’s utility was tied to the certification motion and had no meaningful future value following refusal of certification.

The disbursement was therefore recoverable immediately along with agreed partial indemnity costs.

A proposed class action sought certification against an accounting firm for alleged negligent misrepresentation and negligence arising from a clean audit opinion included in a private placement memorandum for a hog‑farming company.

Accredited investors alleged the audit enabled a financing that later collapsed after disclosures about inadequate financial controls in a cash‑based business.

The court held the pleadings disclosed tenable causes of action and some proposed common issues satisfied the certification threshold.

However, the proposed global class lacked a real and substantial connection to Ontario and a class proceeding was not the preferable procedure, as the investors were identifiable, sophisticated, and capable of pursuing joined claims individually.

Certification was therefore refused.

In a securities class proceeding under the Class Proceedings Act, 1992 and the Securities Act, the plaintiffs sought certification for settlement purposes against certain underwriters, approval of three settlements totalling approximately $10.85 million, approval of counsel fees, and approval of a proposed plan of allocation.

The court held that the settlements were fair, reasonable, and in the best interests of the class and approved them, along with counsel fees and the appointment of an administrator.

However, the court rejected the parties’ proposed distribution plan because it excluded class members who purchased shares on the day of the corrective disclosure from any compensation.

Exercising its authority to determine the plan of allocation, the court varied the distribution plan to include those purchasers and approved the modified plan as fair and reasonable.

Following a successful application permitting a limited partnership to continue a proposed class proceeding despite a registration error under the Limited Partnerships Act, the court addressed costs.

The moving party sought partial indemnity costs, or alternatively substantial indemnity costs after making an offer to settle.

The responding party argued that no costs should be awarded because the motion was required to remedy the moving party’s own mistake.

The court held that although the error required the application, the responding party chose to contest the legal issue regarding whether the existing action could continue.

Partial indemnity costs of $22,500 were awarded to the moving party.

The proposed representative plaintiff in a class proceeding sought leave under s. 28(2) of the Limited Partnerships Act to maintain an action commenced while it was inadvertently non‑compliant with Ontario registration requirements following a partnership name change.

The defendant argued that the non‑compliance rendered the original action a nullity and that the plaintiff must commence a new proceeding.

The court rejected that interpretation and held that the statutory language permitting a party to “maintain” a proceeding allows continuation of an existing action once leave is granted.

Where the failure to register was inadvertent, the public was not misled, and compliance had been corrected, the statutory conditions for leave were satisfied.

The motion was granted and the existing proceeding allowed to continue.