Margaret L. Waddell

The plaintiffs in three proposed class actions sought orders to note three corporate defendants (the "Fortress Defendants") in default of defence.

The motions were dismissed.

The court found that despite multiple attempts, the plaintiffs' Class Counsel failed to properly serve the amended originating process on the Fortress Defendants in accordance with the Rules of Civil Procedure, specifically rules 16.02(1)(c) and 26.04(3).

The court upheld the registrar's rejections, emphasizing the strict adherence required for service rules, especially given the significant financial implications of a default judgment.

This appeal concerned an anti-SLAPP motion under s. 137.1 of the Courts of Justice Act.

The appellant, a medical resident, sued an investigation firm and its investigator for defamation based on executive summaries of a workplace harassment investigation.

The motion judge dismissed the action, finding the summaries related to a matter of public interest, were protected by qualified privilege, and lacked evidence of malice.

The Court of Appeal upheld the dismissal, confirming that the expressions related to public interest due to the nature of the educational institution, media attention, and public safety concerns, and were protected by qualified privilege.

The plaintiff in a certified class action brought a refusals motion seeking to compel answers to questions refused during cross-examinations on the defendants' affidavits of documents.

The court dismissed the motion in its entirety, finding that the questions regarding the scope of documentary production, missing documents, and search terms were premature and irrelevant because the parties had not yet settled a discovery plan.

The court held that the scope of documentary discovery must be determined on the pending discovery plan motion before the adequacy of the affidavits of documents could be assessed.

In a certified class action concerning contaminated heater-cooler systems used in open-heart surgery, the defendants brought a motion seeking directions to prohibit Class Counsel from providing medical advice or information to class members about the infection risk.

The court dismissed the motion, holding that it is not the defendants' or the court's role to altruistically protect class members from their own lawyers' communications, nor should the court preemptively regulate medicolegal advice given by Class Counsel to gather evidence and prosecute the case.

Following the dismissal of Hockey Canada's motion to withdraw an affidavit and the vacating of its summary judgment motion, the plaintiff sought costs.

The plaintiff claimed partial indemnity costs for the motion and full indemnity for costs thrown away, totaling over $70,000.

The court found the plaintiff's claimed hours excessive due to duplication of work by multiple timekeepers and determined that some work done for the summary judgment motion could be repurposed for trial.

The court fixed the costs payable by Hockey Canada to the plaintiff at $25,000 all-inclusive.

The plaintiffs brought a motion for leave to appeal Paragraph 22 of the order of Perell J. dated February 11, 2022.

The Divisional Court granted the motion for leave to appeal and directed the parties to arrange a case conference regarding the conduct of the appeal.

This decision addresses a class action arising from a cyber breach of CarePartners' computer system.

The plaintiffs sought certification of the class for settlement purposes, approval of the settlement agreement, and approval of class counsel fees and honoraria for the representative plaintiffs.

The court granted all motions, certifying the class, approving a $3.44 million settlement fund, a 20% contingency fee for class counsel, and $5,000 honoraria for each representative plaintiff.

The judgment notably provides a detailed analysis and affirmation of the practice of awarding honoraria to representative plaintiffs in class actions, disagreeing with a recent decision that sought to end the practice, and outlining factors for assessing their quantum.

The plaintiffs brought a motion for court approval of a $10 million settlement in a certified class action against a ballet school and a former instructor/photographer for alleged sexual assault and privacy breaches.

The plaintiffs also sought approval of Class Counsel's fees and honoraria for the representative plaintiffs and certain class members.

The court approved the settlement as fair, reasonable, and in the best interests of the class, and approved Class Counsel's fee request of $2.25 million.

However, the court declined to approve the requested honoraria, holding on principle that the practice of awarding a stipend to representative plaintiffs for prosecuting a civil claim is contrary to the administration of justice and should be stopped.

The plaintiffs in a putative class proceeding regarding a cyber-breach of the defendant's computer systems sought approval of a notice plan for a proposed settlement.

The court approved the notice plan, which included direct notice to known affected individuals and indirect notice via press release and social media, finding it maximized breadth while minimizing costs.

The court ordered one amendment to include the Zoom link for the upcoming settlement approval hearing.

The defendants sought a reconsideration of a costs decision following a class action certification motion, arguing for no costs due to divided success because only one of the plaintiffs' two distinct cases was certified.

The court rejected this argument, finding that the joinder of claims was proper under the Rules of Civil Procedure and consistent with the principle of avoiding a multiplicity of proceedings.

The original costs award of $150,000 to the plaintiffs was confirmed.

Following the successful certification of a class proceeding, the plaintiffs sought costs.

The parties agreed that $150,000, all inclusive, was a fair and reasonable amount for the certification motion, which included $5,000 for a motion to strike an affidavit.

The defendants did not deliver any costs submissions opposing the request.

The court found the agreed amount to be fair and reasonable and awarded the plaintiffs $150,000 in costs.

The plaintiff moved to certify a medical device products liability action as a class action under the Class Proceedings Act, 1992.

The action concerns alleged bacterial contamination of the Sorin 3T Heater-Cooler System used during open chest cardiac surgeries.

The defendants did not oppose certification, reserving their rights to settle the litigation plan.

The court found the five requirements for certification under section 5(1) were satisfied and granted the order.

The plaintiffs brought a motion to certify a class action against a plastic surgeon and his clinic for breach of privacy.

The claims involved two main grievances: the surreptitious video surveillance of patients in the clinic (the Surveillance Complaint) and the posting of patient images on social media without valid consent (the Social Media Complaint).

The court certified the Surveillance Complaint, finding it met all criteria under s. 5 of the Class Proceedings Act, 1992.

However, the court declined to certify the Social Media Complaint, concluding that the issue of valid consent was highly idiosyncratic and required individual inquiries, meaning it failed the common issues and preferable procedure criteria.

The defendants in a proposed class action for breach of privacy brought a preliminary motion to strike portions of affidavits filed by the plaintiffs in support of certification.

The court granted the motion, striking evidence that was irrelevant, prejudicial, or detailed a College of Physicians and Surgeons investigation contrary to section 36 of the Regulated Health Professions Act.

The defendants in a proposed class action for breach of privacy brought a preliminary motion to strike the expert report of Dr. Mary Anne Franks, proffered by the plaintiffs for the certification motion.

The plaintiffs alleged the defendants surreptitiously recorded patients and posted images online without consent.

The court granted the motion to strike, finding that Dr. Franks' evidence regarding the social and cultural context of non-consensual image distribution and American law was not relevant or helpful to determining the common issues for certification.

In a proposed class action against a plastic surgeon for breach of privacy involving surreptitious video recording and unauthorized social media postings, the plaintiffs brought a preliminary motion for leave to deliver a supplementary affidavit regarding class size after cross-examinations had concluded.

The court dismissed the motion, finding that the defendants had provided their best information based on the plaintiffs' class definition, the supplementary evidence did not respond to matters raised on cross-examination, and allowing the affidavit would amount to prejudicial case-splitting.

The plaintiffs in a proposed privacy class action brought a preliminary motion to strike the complete clinical medical charts and medical records of the plaintiffs and two deponents, which were included in the responding affidavits of the defendant doctor.

The plaintiffs alleged the defendants surreptitiously recorded patients and posted images on social media without consent.

The court granted the motion, finding that the detailed medical records were irrelevant and inadmissible for the purposes of the certification motion, as the action concerned privacy breaches rather than medical malpractice.

The plaintiff in a certified class action moved for an order approving the condensed, short-form, and long-form notices of certification, the plan for their dissemination, and related matters including the appointment of a notice administrator and the production of class member information by the defendants.

The defendants did not oppose the relief sought.

The court granted the order, approving the notices and notice plan, appointing RicePoint Administration Inc. as the Notice Administrator, and compelling the defendants to provide vehicle identification numbers and class member contact information for notice purposes, while also addressing privacy concerns and opt-out procedures.

The moving parties, representing two groups of plaintiffs, brought motions for leave to appeal an order of Belobaba J. in a class action proceeding.

The Divisional Court dismissed the motions for leave to appeal.

On agreement of the parties, no costs were awarded.

The plaintiff, having successfully certified a class action against BMW, sought substantial indemnity costs for the certification motion, totaling $367,210.28.

BMW proposed a costs award between $225,000 and $285,000.

The court awarded the plaintiff $300,000 on a partial indemnity basis, inclusive of fees, disbursements, and HST.

The court declined to award substantial indemnity costs, finding that Rule 49 (Offer to Settle) is an ill fit for certification motions and that defendants are entitled to resist certification without incurring punitive costs, provided their conduct does not unnecessarily lengthen proceedings.

The court also largely rejected BMW's arguments of overbilling by class counsel.