Michael Allan Eizenga

The defendant in a proposed class action moved under s. 29.1 of the Class Proceedings Act, 1992 to dismiss the action for delay, on the basis that the plaintiff failed to file a final and complete certification motion record within one year of commencing the action.

The plaintiff filed a certification record three days after the one-year deadline and, in any event, the record was incomplete as it contained no litigation plan — an indispensable requirement under s. 5(1)(e)(ii) of the CPA.

The plaintiff also moved to amend the Statement of Claim and substitute two new representative plaintiffs, but both proposed plaintiffs demonstrated no meaningful understanding of or engagement with the litigation plan requirement, effectively leaving counsel to litigate on his own.

The Court of Appeal had definitively eliminated any judicial discretion to relieve parties of the strict requirements of s. 29.1.

The motion to dismiss was granted; the motion to amend and substitute was denied.

This is an appeal from a motion judge's decision dismissing the plaintiffs' motion to amend their pleadings in a class action alleging a multi-bank conspiracy to fix gold and silver prices and engage in 'spoofing'.

The motion judge had found the proposed amendments time-barred or improper for joinder.

The Court of Appeal allowed the appeal, finding that the motion judge erred in law by treating amendments as new causes of action when they were alternative theories based on existing facts, and by misapplying the 'actual knowledge' standard for limitation periods.

The Court also found a palpable and overriding error in the motion judge's assessment of JP Morgan's joinder, concluding that the CFTC order did not preclude conspiratorial spoofing allegations.

The amendments were allowed, with the possibility for some respondents to plead a limitations defence at trial.

This decision concerns Phase 4 of a motion to settle a Section 7 Order under the Class Proceedings Act, 1992.

The original proposed class action, brought by former and current major junior hockey players alleging abuse, was not certified.

The Section 7 Plan aims to transition the proposed class action into up to 60 individual joinder actions.

The court approved Version 4 of the Draft Section 7 Plan, which outlines procedures for notice, opt-in, commencement of actions, case management, and discovery.

A key contentious issue resolved in this phase concerned the staying of third-party claims until the completion of the main actions.

This endorsement concerns the Companies' Creditors Arrangement Act (CCAA) proceedings for JTI-MacDonald Corp., Imperial Tobacco Canada Limited, Imperial Tobacco Company Limited, and Rothmans, Benson & Hedges Inc. The court granted an unopposed motion to extend the stay period until March 29, 2024.

Recognizing the complexity and the four-and-a-half-year duration of negotiations, the court directed the three court-appointed Monitors, in conjunction with the court-appointed Mediator, to collaborate and develop comprehensive Plans of Compromise or Arrangement.

The objective is to finalize plans that are fair and reasonable to all applicants and creditors, moving from observable activity to meaningful action.

This decision is Phase 3 of a motion to settle a Section 7 Order under the Class Proceedings Act, 1992.

The court is finalizing the Draft Section 7 Plan, which facilitates the transition of a proposed class action, previously denied certification, into up to 60 individual joinder actions against various hockey leagues and teams.

The plan addresses notice dissemination, the approval of contingency fee agreements, the management of third-party claims by staying them under Rule 29.09 of the Rules of Civil Procedure, and the potential for severance of actions.

The court also proposes a consensual settlement track for modest claims as an alternative to litigation.

The plaintiffs brought a motion to settle a Rule 7 Order pursuant to the Class Proceedings Act, 1992, following the dismissal of their certification motion for a proposed class action regarding systemic abuse in amateur hockey.

The court reviewed and settled the revised Draft Section 7 Plan, which transitions the proposed class action into up to 60 joinder actions against the defendant hockey teams and leagues.

The court approved the notice plan, opt-in procedures, and case management provisions, with minor revisions to protect player privacy and ensure efficient administration.

Following the dismissal of a proposed class action regarding systemic abuse in the Canadian Hockey League, the plaintiffs brought a motion under section 7 of the Class Proceedings Act, 1992 to approve a plan to transition the proceeding into multiple joinder actions.

The court reviewed the competing Section 7 Plans submitted by the plaintiffs and defendants and found both to be procedurally flawed and overreaching.

The court proposed its own Draft Section 7 Plan designed to facilitate the commencement of up to 60 joinder actions while respecting the court's jurisdictional limits and the parties' procedural rights.

The motion was adjourned to a second phase for the parties to revise and discuss the court's draft plan.

The plaintiffs, former major junior hockey players, brought a proposed class action against the Canadian Hockey League, its three member leagues, and 60 individual teams, alleging systemic negligence, breach of fiduciary duty, and vicarious liability for widespread hazing, bullying, and abuse.

The out-of-province defendants brought a motion challenging the court's jurisdiction, which was dismissed as the court found they carried on business in Ontario.

The defendants also brought a Ragoonanan motion, which was granted because the representative plaintiffs only had personal causes of action against five of the 60 teams.

The court dismissed the certification motion, finding that the claims failed the cause of action, common issues, preferable procedure, and representative plaintiff criteria, primarily because there was no basis for collective liability among the independent teams.

However, the court utilized sections 7, 12, and 25 of the Class Proceedings Act to permit the action to continue as individual joinder actions, ordering the plaintiffs to prepare an Individual Issues Protocol.

The plaintiff in a proposed medical device class action brought a motion to discontinue the action against one defendant, Sanofi S.A., without prejudice and without costs.

The plaintiff had learned that Sanofi S.A. acquired the shares of another defendant after that defendant had terminated its Canadian medical device licence, and Sanofi S.A. itself never held a licence.

The court granted the motion, finding the action against Sanofi S.A. appeared baseless and discontinuance would not prejudice putative class members.

Notice to the class was not required, provided notice was placed on class counsel's webpage.

Bennett Jones LLP brought an unopposed motion to be removed as lawyers of record for the Clover Leaf Defendants in a proposed class action alleging a price-fixing conspiracy.

The Clover Leaf Defendants had filed for bankruptcy protection in the US and Canada, resulting in a stay of proceedings and the sale of their assets.

As the entities' interests are now governed by bankruptcy trustees who have their own counsel, Bennett Jones LLP could no longer represent them.

The court granted the motion, noting it would not cause prejudicial delay.

The plaintiff appealed the dismissal of a motion to certify a class proceeding arising from a city bus crash.

The Certification Judge had denied certification on the basis that a class proceeding was not the preferable procedure, noting the plaintiff's strategic choice to pursue complex systemic negligence claims while ignoring direct claims against the bus driver and the city as owner.

The Divisional Court dismissed the appeal, finding no palpable and overriding error or error of law in the Certification Judge's discretionary preferability analysis.

Leave to appeal the costs order of the certification motion was also denied.

The moving parties brought a motion for leave to appeal the order of Pierce J. dated May 26, 2021.

The Divisional Court dismissed the motion for leave to appeal and ordered that there be no order as to costs.

The plaintiffs sought judicial approval of a $100 million settlement in a class action regarding hidden foreign exchange fees in registered accounts, along with approval of class counsel's legal fees and representative plaintiff honoraria.

The court approved the settlement as fair and reasonable.

However, the court declined to approve the requested $25 million in legal fees based on a straight-line 25% contingency, finding that in a 'mega-fund' settlement, a multiplier and percentage cross-check must be used to avoid a windfall and maintain the integrity of the profession.

The court approved $20 million in legal fees, plus disbursements and taxes, and approved the requested honoraria for the representative plaintiffs.

Two competing class counsel groups sought carriage of a proposed class action against the Province of Ontario regarding COVID-19 outbreaks in long-term care homes.

The Nisbet Action proposed suing Ontario solely for its several liability to avoid third-party claims and expedite certification.

The Robertson Action proposed a conventional joint and several liability approach, expecting third-party claims between Ontario and long-term care operators.

The court granted carriage to the Robertson Action, finding that the several liability approach offered no early-stage advantage and would create significant disadvantages in later-stage litigation, including potential unfairness to the defendant and risks of unrecovered losses for class members.

The plaintiff sought to certify a class proceeding against the City of Ottawa arising from a deadly bus accident at Westboro Station.

The proposed action was structured to plead systemic negligence in transit design and operation while avoiding claims against the city as the owner of the vehicle and employer of the driver.

The court dismissed the certification motion, finding that the proposed class proceeding was not the preferable procedure, as it ignored readily available compensation under the motor vehicle insurance regime and numerous individual actions had already been commenced.

The defendants brought motions across five Canadian jurisdictions to address overlapping multijurisdictional class actions regarding a data breach.

The parties reached a settlement to proceed only with the Ontario national class action and stay the actions in British Columbia, Alberta, Québec, and Nova Scotia.

The Ontario Superior Court of Justice approved the consent order dismissing the stay motion in Ontario, allowing the action to proceed subject to bi-annual reporting requirements to the case management judges in the other jurisdictions.

This decision concerns a motion by the plaintiffs to discontinue a proposed class action in Ontario regarding optionally retrievable inferior vena cava (IVC) filters manufactured by the defendants.

The discontinuance was sought to facilitate the settlement of 11 individual claims.

The court, pursuant to sections 19 and 29 of the Class Proceedings Act, 1992, approved the discontinuance and the proposed notice to putative class members.

The court found that the discontinuance would not prejudice non-settling class members, as similar class proceedings were ongoing in British Columbia and Saskatchewan, and limitation periods remained suspended.

The motion was granted without costs.

Her Majesty the Queen in right of Ontario sought to lift a stay on its $330 billion health care cost recovery action against three tobacco companies (JTI-Macdonald Corp., Imperial Tobacco, Rothmans, Benson & Hedges Inc.) and eleven co-defendants, which was imposed under CCAA proceedings.

Ontario proposed to temporarily stay the effects of any judgment.

The court dismissed the motion, emphasizing the need to preserve the status quo in CCAA proceedings to facilitate a global resolution of significant claims.

Allowing Ontario's action to proceed would alter the level playing field, distract from restructuring efforts, and impose significant costs, prejudicing other stakeholders.

The applicants, JTI-Macdonald Corp., Imperial Tobacco Canada Limited, Imperial Tobacco Company Limited, and Rothmans, Benson & Hedges Inc., sought protection under the Companies' Creditors Arrangement Act (CCAA) following a $13.5 billion judgment from the Quebec Court of Appeal and other ongoing litigation.

JTI-Macdonald Corp. and Rothmans, Benson & Hedges Inc. moved for orders to file Supreme Court of Canada (SCC) leave applications but suspend further proceedings.

Imperial Tobacco Canada Limited and Imperial Tobacco Company Limited sought a blanket stay of all proceedings and limitation periods.

The Quebec class action plaintiffs opposed the motions and sought to partially lift the stay.

The court affirmed its broad jurisdiction under CCAA s. 11 to stay all actions, including appellate proceedings and limitation periods.

The court dismissed the motion by JTI-Macdonald Corp. and Rothmans, Benson & Hedges Inc., and granted Imperial Tobacco's motion, finding that a blanket stay best preserved the status quo and facilitated a global resolution for all stakeholders.

Appellants brought a proposed class action alleging that respondents conspired to divide the beer market contrary to section 45(1) of the Competition Act through a Framework Agreement signed in 2000, and that a surcharge levied by Brewers Retail on licensees violated the Liquor Control Act.

The motion judge dismissed the action on the basis that the regulated conduct defence was available to the respondents.

The Liquor Control Act authorized the impugned conduct.

The Ontario legislature subsequently enacted retroactive amendments in 2015 to remove any doubt that the conduct was authorized.

The Court of Appeal upheld the dismissal, finding that the regulated conduct defence insulated the respondents from liability and that retroactive legislation could provide authorization for the defence.