Melanie Anderson

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.

This is a costs decision arising from a class action certification motion concerning the now-defunct "birth alerts" policy issued by Children's Aid Societies in Ontario.

The plaintiffs sought to certify a class action against the province of Ontario and 50 CAS defendants on behalf of mothers claiming compensation for discriminatory treatment.

The court certified the action against Ontario but denied certification against the CAS defendants due to structural defects in the pleading (the Ragoonanan problem).

The plaintiffs settled with Ontario for $300,000 in all-inclusive costs.

The CAS defendants sought $564,318.61 in costs.

The court reduced this amount to $335,000, applying a 40% discount under section 31(1) of the Class Proceedings Act to reflect the public interest nature of the case and access to justice concerns.

This decision certifies a class action against the Province of Ontario regarding the issuance of "Birth Alerts" by Ontario children's aid societies (CASs), but declines to certify the action against the CASs themselves.

The court finds that the claims against the CASs suffer from the "Ragoonanan problem"—the lack of a representative plaintiff with a claim against each defendant—and that the CASs acted independently, not collectively.

The action against Ontario, however, is certified on the basis of negligence and breaches of sections 7 and 15 of the Charter, as the Province had oversight authority and failed to act to stop the practice despite being able to do so.

The court sets out the certified class, common issues, and clarifies the preferable procedure for such claims.

The defendants moved to strike the plaintiffs' amended statement of claim under rules 21.01(1)(b) and 25.11, arguing it disclosed no reasonable cause of action and was frivolous, vexatious, or an abuse of process.

The plaintiffs, a lawyer and his law firm, failed to file responding evidence, a factum, or appear at the hearing.

The court found the claim deficient, confusing, and lacking material facts for the pleaded torts.

The motion was granted, the statement of claim was struck in its entirety without leave to amend, and the action was dismissed.

Costs were awarded to the successful defendants on a substantial indemnity basis due to the frivolous and vexatious nature of the pleading and the plaintiffs' non-compliance with court orders.

The Ontario government appealed a decision finding that the Protecting a Sustainable Public Sector for Future Generations Act, 2019 (Bill 124), which imposed a 1% cap on compensation increases for broader public sector employees, violated the right to freedom of association under s. 2(d) of the Charter.

The Court of Appeal upheld the application judge's finding that the Act substantially interfered with the respondents' collective bargaining rights and was not saved by s. 1 of the Charter, as it was not minimally impairing and its deleterious effects outweighed its salutary effects.

However, the Court allowed the appeal in part to limit the declaration of invalidity to represented employees, as non-represented employees do not benefit from the same collective bargaining protections.

The applicants, representing various public sector unions, challenged the constitutionality of the Protecting a Sustainable Public Sector for Future Generations Act, 2019 (Bill 124), which limited wage increases for broader public sector employees to 1% per year for a three-year moderation period.

The court found that the Act substantially interfered with the applicants' right to freedom of association under s. 2(d) of the Charter by preventing meaningful collective bargaining over wages and other compensation-related issues.

The court dismissed the applicants' claims under s. 2(b) (freedom of expression) and s. 15 (equality rights).

The court further held that the infringement of s. 2(d) was not saved by s. 1 of the Charter, as the government failed to demonstrate a pressing and substantial objective or that the measure was minimally impairing.

The Act was declared void and of no effect.

Following the successful dismissal of the plaintiffs' defamation action under the anti-SLAPP provisions of the Courts of Justice Act, the moving parties (defendants) sought full indemnity costs totalling over $1.1 million.

The court awarded full indemnity costs as requested, subject to a reduction for the costs of non-active counsel, clerks, or students.

The court also apportioned liability, finding one plaintiff jointly and severally liable only for costs related to the OMA dispute, while the other plaintiff was solely liable for costs related to the COVID-19 dispute.

Purolator brought an application for judicial review and a motion for a stay of a British Columbia arbitrator's procedural decision refusing to bifurcate a grievance arbitration regarding a COVID-19 vaccine policy.

The Ontario Superior Court of Justice (Divisional Court) dismissed the application and the motion, finding that it lacked jurisdiction simpliciter as there was no real and substantial connection to Ontario.

In the alternative, the court held that Ontario was forum non conveniens, as the parties, witnesses, and the arbitration itself were located in British Columbia.

The appellant appealed an order striking his claim against the respondents (lawyers of his former employer) without leave to amend.

The motion judge found the claims were covered by absolute privilege as they related to lawyers' work in contemplation of litigation.

The Court of Appeal dismissed the appeal, agreeing that the respondents had no duty to the appellant and their interactions were through litigation, and upheld the refusal to grant leave to amend.

This endorsement addresses the costs arising from a second Charter challenge to Ontario's election advertising spending restrictions (Bill 307), which the Attorney General successfully defended.

The Attorney General sought $580,652.54 in costs.

The Applicants argued against a costs award, citing the public importance of constitutional litigation and access to justice, and challenged the quantum of costs.

The court rejected the Applicants' access to justice argument, noting their financial capacity, and found the Attorney General's choice of external counsel and the work performed to be reasonable.

The court awarded the Attorney General $500,000 in all-inclusive costs, apportioned among the Applicant groups.

The plaintiffs, two physicians, brought a $12 million defamation action against over 20 defendants, including other physicians, journalists, and media organizations.

The claims arose from two main disputes: an internal Ontario Medical Association (OMA) dispute and public criticism of the plaintiffs' controversial tweets regarding COVID-19, in which they opposed vaccines and lockdowns and promoted hydroxychloroquine.

The defendants brought anti-SLAPP motions under s. 137.1 of the Courts of Justice Act.

The court found that the defendants' expressions related to matters of public interest and that the plaintiffs failed to show their claims had substantial merit or that the defendants lacked valid defences, such as fair comment and qualified privilege.

The court also found that the public interest in protecting the defendants' expressions far outweighed any harm suffered by the plaintiffs.

The action was dismissed against all defendants.

The Attorney General of Canada brought a motion under Rule 21.01(1)(b) to strike two paragraphs from the Statement of Claim which sought wide-ranging non-monetary relief under s. 24(1) of the Canadian Charter of Rights and Freedoms.

The Attorney General argued that the court lacked jurisdiction to grant such relief as it would intrude on the executive branch's powers.

The plaintiff, Ebrahim Toure, contended the motion was procedurally incorrect and that his claims for Charter relief were not plain and obvious to fail.

The court dismissed the motion to strike, finding that Rule 21.01(1)(b) applies only to "causes of action" and not to "claims for relief" or "remedies." The court also granted the Attorney General an extension of time to file a statement of defence.

The applicants challenged the constitutionality of amendments to the Election Finances Act that imposed a 12-month pre-writ restricted spending period for third-party political advertising.

The government had previously enacted similar amendments that were struck down under section 2(b) of the Charter, but re-enacted them using the section 33 notwithstanding clause.

The applicants argued the amendments violated the right to vote under section 3 of the Charter, which is not subject to the notwithstanding clause.

The court dismissed the application, finding that the spending limits were carefully tailored to the egalitarian model of elections and did not infringe the right to meaningful participation in the electoral process.

The defendants brought a motion under s. 137.1 of the Courts of Justice Act to strike the plaintiff's defamation claim as a strategic lawsuit against public participation (SLAPP).

The plaintiff, Sikhs for Justice, sued the defendants over an article alleging the plaintiff's referendum campaign for an independent Sikh state was driven and controlled by Pakistan.

The court found that the plaintiff's claim had substantial merit and that there were grounds to believe the defendants' defences of responsible communication and fair comment might not succeed.

The court concluded that the harm suffered by the plaintiff was sufficiently serious that the public interest in permitting the proceeding to continue outweighed the public interest in protecting the defendants' expression.

The motion was dismissed.

The applicants challenged the constitutionality of amendments to the Election Finances Act that extended the pre-election restricted spending period for third-party political advertising from six to twelve months.

The court found that the 12-month restriction infringed freedom of expression under section 2(b) of the Charter.

Applying the Oakes test, the court held that while the objective of fostering fair elections was pressing and substantial, the 12-month period failed the minimal impairment test because the government's own experts indicated a six-month period was effective.

The impugned provisions were declared of no force or effect.

The plaintiff brought a proposed class action against the defendant employer for unpaid overtime, initially claiming $100 million.

The parties reached a pre-certification settlement of $7 million, which included a new time-tracking system.

The court certified the action for settlement purposes and approved the settlement, finding it fair and reasonable given the adjusted actual loss, comparable settlements, and the significant litigation risk posed by the COVID-19 pandemic's impact on the travel industry.

The court also approved a $10,000 honorarium for the representative plaintiff due to retaliatory employment consequences, and approved class counsel's 25% contingency fee.