Margaret Waddell

A case management conference was held to set the timetable for two grouped appeals arising from a decision certifying a class action against the Province of Ontario but declining to certify it against 49 Children's Aid Societies regarding the use of 'Birth Alerts'.

The appeals will be heard by a five-judge panel to consider whether the court should depart from the Ragoonanan principle.

The case management judge set the schedule for responding materials, intervention motions, and factums.

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 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.

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 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.

The plaintiff brought a motion to certify a class action and approve a $2.25 million settlement regarding the defendants' systemic collection of credit scores during the automobile insurance claims adjusting process, which the Privacy Commissioner found breached PIPEDA.

The court certified the action for settlement purposes, finding the settlement fair, reasonable, and in the best interests of the class.

The court also approved a 60-day opt-out period, a cy-près distribution to the Public Interest Advocacy Centre, the notice plan, a $15,000 honorarium for the representative plaintiff, and class counsel fees of $500,000 plus disbursements.

The plaintiffs in a proposed product liability class action concerning defective cardiac defibrillators moved for approval of a third-party litigation funding agreement with Bentham IMF Capital Inc. The proposed agreement featured a novel hybrid retainer and a contingency fee structure heavily favouring the funder.

The court found that while third-party funding was necessary for access to justice, the proposed agreement was potentially champertous due to the uncapped and disproportionate reward to the funder, and it improperly interfered with the plaintiffs' litigation autonomy.

The court conditionally approved the agreement, subject to the parties amending it to make the funder's contingency fee and any termination of the agreement subject to court approval, and removing clauses that interfered with the lawyer-client relationship.

The plaintiff sought approval of a $17.5 million settlement with the remaining defendants in a class action regarding a charitable tax scheme.

The court approved the settlement as fair and reasonable, noting the significant risks of further litigation, including enforcement issues in Bermuda.

The court also approved class counsel's 33% contingency fee of $5,829,427.20 plus HST, and a $50,000 honorarium for the representative plaintiff, who made extraordinary efforts and financial sacrifices.

A costs request by third parties was dismissed.

The applicant sought leave to appeal an arbitral award finding it breached contractual and fiduciary duties by failing to redeem the respondent's hedge fund investment.

The arbitrator awarded $1.3 million in damages, rejecting the applicant's argument that damages should be assessed based on an alternative, less onerous method of performance.

The Superior Court denied leave to appeal, finding that the arbitrator correctly interpreted the contract as mandating only one method of performance and that the applicant's challenges raised issues of mixed fact and law, not extricable questions of law.

In a class proceeding, a subgroup of third party distributor defendants sought legal fees of approximately $286,738 on a full indemnity basis payable forthwith by the Class Proceedings Fund following negotiations and a court order amending certified common issues and staying a third party claim.

The court acknowledged that the subgroup’s counsel contributed to the proceedings but noted that multiple parties’ counsel had similarly contributed.

Given the complex, multi‑party interactions surrounding the negotiations and motion process, the court held that determining entitlement and quantum of costs at this stage would be impractical and counter‑productive.

The court therefore declined to award immediate costs and directed that costs be addressed at the conclusion of the third party action.

The request for immediate payment from the Class Proceedings Fund was rejected.

Following the dismissal of an application for leave to appeal an order staying third party claims in a class action until completion of the common issues trial, the court addressed the issue of costs between the plaintiff and the defendant applicants.

The plaintiff sought partial indemnity costs exceeding $34,000 plus disbursements, while the defendants argued for a significantly reduced amount.

The court rejected the defendants’ criticism of the plaintiff’s preparation time and counsel allocation, emphasizing the importance of the application to the plaintiff and the plaintiff’s leadership role in responding.

Considering the relevant factors, the court fixed costs at a reduced but substantial amount within the defendants’ reasonable expectations.

In a certified class proceeding, the defendants sought leave to appeal a case management order that refined the common issues and stayed their third party claims against numerous distributors pending the common issues trial.

The defendants argued the stay conflicted with principles governing third party claims and with provisions of the Rules of Civil Procedure, the Courts of Justice Act, and the Class Proceedings Act.

The court held that the broad discretionary powers under ss. 12 and 13 of the Class Proceedings Act permitted such case management orders to ensure the fair and expeditious determination of class proceedings.

The court found no reason to doubt the correctness of the stay order and rejected arguments that it conflicted with other statutory provisions or prior case law.

Leave to appeal was denied.

Costs decision following the abandonment of a Rule 45 motion in a class proceeding seeking an order requiring the defendant to pay an alleged fund into court.

The court considered the presumptive rule under Rule 37.09(3) of the Rules of Civil Procedure that a responding party is entitled to costs when a motion is abandoned.

While the plaintiff had a reasonable basis initially to believe the defendant possessed the alleged fund, the court found the motion would have failed because the existence of a fund could not be proven.

The court declined to award substantial indemnity costs due to the absence of reprehensible conduct but granted partial indemnity costs.

The defendant was awarded $30,000 for the abandoned Rule 45 motion and $8,750 for a related refusals motion.

In a certified class proceeding concerning an alleged defective charitable gift program, the plaintiff moved to amend the certified common issues and to stay the defendants’ third‑party claims against distributors until after the common issues trial.

Competing drafts of revised common issues and orders were submitted by the plaintiff, defendants, and another defendant concerned about exposure to an unpleaded claim.

The court preferred the plaintiff’s proposed revisions and order because they more directly preserved the objective of a focused common issues trial that would not bind or involve the distributors.

However, the proposed amendments required clarification to address concerns that they might create liability for negligent implementation of an otherwise valid program, which had not been pleaded or certified.

The court directed that the revisions be modified to limit the issues or, alternatively, that the plaintiff bring a motion to amend the statement of claim and certify the additional common issue.

In a class proceeding settlement approval context, the court considered a motion by class counsel for approval of contingency legal fees equal to one-third of the settlement fund.

The court had initially approved a 25% fee but requested further submissions regarding the higher amount.

Upon reviewing supplementary submissions, the court concluded that contingency fee agreements fully understood and accepted by representative plaintiffs should be treated as presumptively valid.

The court reasoned that focusing on docketed time or retrospective assessments of litigation risk provides little principled guidance and undermines predictability in class action litigation.

Finding that the representative plaintiff understood and supported the fee, that the percentage was consistent with personal injury contingency norms, and that the amount was not unseemly, the court approved the full one‑third contingency fee.