Michael D. Wright

The Court of Appeal for Ontario dismissed Mario Oliveira Jr.'s application to review a motion judge's order refusing to extend the time to perfect his appeal.

The court found that while Mr. Oliveira had a genuine intention to perfect his appeal and was delayed by inaccurate information from court staff, the appeal itself was so devoid of merit that it was not in the interests of justice to grant an extension.

The court agreed with the motion judge that the underlying claim was abusive and vexatious, and rejected the argument that the motion judge failed to account for Mr. Oliveira's self-represented status.

Costs of $1,500 were awarded against Mr. Oliveira Jr.

The appellant, Mario Oliveira, appealed two lower court decisions: the dismissal of his wrongful dismissal action due to a breach of the deemed undertaking rule, and a finding of contempt for non-compliance with injunctive orders concerning a confidential union member list.

The Court of Appeal upheld the dismissal of the wrongful dismissal action and the contempt finding.

However, it set aside the 89-day intermittent jail sentence for contempt, replacing it with a 14-day conditional sentence (house arrest), and reduced the contempt costs from $75,000 to $50,000.

The plaintiffs in a certified class action against Uber sought leave to amend their statement of claim and add a new common issue challenging the validity of Uber's amended arbitration clause and class action waiver.

The court dismissed the motion, finding it to be an abuse of process because the plaintiffs were attempting to re-litigate the validity of the arbitration clause for the fourth time.

Although the court found the newly pleaded cause of action was not statute-barred and satisfied the cause of action criterion, it held that the proposed common issue failed the common issues, preferable procedure, and representative plaintiff criteria because it presupposed an employment relationship that had not yet been determined at the common issues trial.

At a case management conference in a certified class proceeding against Uber, the court considered whether to schedule the plaintiffs' proposed motions to amend their statement of claim and certify an additional common issue regarding an arbitration and class action waiver clause.

The defendants had already brought a motion to amend the class action notices.

Pursuant to section 12 of the Class Proceedings Act, 1992, the court exercised its discretion to allow the plaintiffs' motions to be scheduled and heard together with the defendants' motion, and set a timetable for the delivery of materials and the hearing.

The parties disputed the wording of a Certification Order in a class action regarding whether Uber drivers are employees.

The defendants requested the addition of the phrase 'to be calculated and assessed on an individual basis' to the paragraph describing the relief sought.

The court granted the request, finding that the phrase provided true and helpful information to the putative class members regarding the potential need for individual issues trials.

This decision addresses an omnibus motion and cross-motion within a certified class proceeding concerning the employment status of Uber drivers and delivery people.

The court granted Uber's request to certify an additional common issue, which clarifies the possible classifications of the relationship between Uber and class members (customer, independent contractor, or employee).

The court dismissed the plaintiffs' request to certify a common issue regarding the validity of the Class Action Waiver, finding that no cause of action had been pleaded to support such a claim.

The enforceability of the Class Action Waiver will not be determined at the common issues trial but may be addressed at individual issues trials.

The Ontario Superior Court of Justice addressed disputes regarding the Notice of Certification and Notice Plan in a certified class proceeding against Uber.

The plaintiffs, representing drivers and delivery people seeking employee classification, proposed a notice plan.

Uber responded with alterations, including broader newspaper publication and inclusion of its defence commentary.

The court largely sided with Uber, approving a more robust, province-wide notice plan sensitive to language and diversity, and requiring the inclusion of Uber's legal position in the notices.

The court also apportioned the costs of newspaper notices 33% to the Plaintiffs and 67% to Uber.

The appellant, Mario Oliveira, brought a motion to review a chambers judge's order that refused to extend time to perfect his appeal of a contempt order and other related orders.

The Court of Appeal found that the chambers judge erred in principle by denying the extension primarily on the basis of perceived lack of merit, especially given the absence of written reasons for the contempt order.

The panel granted the extension of time for the appellant to perfect his appeal related to the contempt order, the subsequent sentencing decision, and to seek leave to appeal the costs order, while upholding the sealing order for a document filed in violation of the deemed undertaking rule.

The plaintiff brought a motion to certify a class action against Uber on behalf of drivers and delivery people, alleging they are employees misclassified as independent contractors and are entitled to benefits under the Employment Standards Act, 2000.

Uber opposed certification, arguing the relationship is idiosyncratic and relying on a new Arbitration and Class Action Waiver Clause.

The court certified the action for breach of contract and ESA claims, finding some basis in fact for common issues regarding employment status based on the standard form contracts and app functionality.

The court declined to strike down the arbitration clause at this stage, ordering that class members be given notice of its potential legal significance.

The plaintiff in a proposed class action against Uber sought court approval of a third-party litigation funding agreement with Augusta.

The proposed class action alleges that Uber breached employment contracts and the Employment Standards Act, 2000.

The court reviewed the four-factor test for approving third-party funding agreements, noting that the agreement was necessary for access to justice, fair and reasonable, and did not overcompensate the funder.

The court approved the litigation funding agreement.

The defendant was found in civil contempt for failing to abide by court orders and subsequently destroying devices subject to a court-ordered forensic inspection.

The plaintiffs sought a stay of a related action, but the court declined to order a stay at this stage.

Applying the factors for civil contempt sentencing, the court determined that a period of incarceration was appropriate but deferred the sentence due to Covid-19 concerns, allowing the defendant 30 days to provide submissions.

The defendant was previously found in contempt of court for failing to comply with orders requiring the return of confidential union information and the forensic inspection of his electronic devices.

Instead of purging his contempt, the defendant deliberately destroyed the devices.

The plaintiffs sought to stay the defendant's separate action in Brampton as a penalty.

The court declined to stay the action at this time and deferred sentencing to consider house arrest, requiring the defendant to provide details of his living situation.

Costs submissions were also ordered.

The plaintiff, a 59-year-old senior executive with 14 years of service, was terminated without cause.

On a motion for summary judgment, the court determined the reasonable notice period to be 18 months.

The court held that the plaintiff was entitled to damages for his lost Sales Target Incentives (STI) during the notice period, as the policy did not unambiguously exclude it.

However, the court found that the Long Term Incentives (LTI) agreement unambiguously excluded recovery for unvested Restricted Stock Units.

The court ordered a trust and accounting mechanism for the remainder of the notice period to account for any mitigation earnings.

This case conference addressed the scheduling of the plaintiff's summary judgment motion in a wrongful dismissal action.

The defendant preferred to proceed with discoveries and trial, arguing the motion was premature and might involve credibility issues.

The court, however, decided to schedule the two-hour summary judgment motion, noting that wrongful dismissal cases often have contained issues and that a motions judge retains discretion to order a trial or mini-trial if credibility issues require further exploration.

The appellant brought a proposed class action on behalf of Uber food delivery drivers, claiming they were employees entitled to protections under the Employment Standards Act, 2000 (ESA).

The service agreement required arbitration in the Netherlands under ICC Rules.

The motion judge granted a stay in favour of arbitration.

The Court of Appeal allowed the appeal, finding the arbitration clause invalid on two independent grounds: (1) it constituted illegal contracting out of an employment standard (the complaint investigation process under s. 96 of the ESA), contrary to s. 5(1) of the ESA; and (2) it was unconscionable at common law due to prohibitive costs (US$14,500 upfront), significant inequality of bargaining power, and the absence of independent legal advice.

The court held that validity of arbitration agreements is a matter for the court to determine under s. 7(2) of the Arbitration Act, 1991, not the arbitrator.

The defendants brought a motion to strike several paragraphs from the plaintiff's statement of claim under Rule 25.11, arguing they were irrelevant and scandalous.

The plaintiff's claim was based on the common employer doctrine, alleging the defendants were his employers despite his contract being with an insolvent related corporation.

The court struck paragraphs solely related to the plaintiff's employment qualifications and performance, finding them irrelevant to the common employer determination.

However, the court allowed most other impugned paragraphs to stand, including those detailing corporate structure, operations, and post-termination events leading to the original employer's insolvency, deeming them relevant to the common employer analysis and the potential for unfairness to the employee.

The plaintiff commenced an action and brought a motion for an interim injunction to prevent the defendant from imposing a trusteeship on a local union.

The plaintiff subsequently abandoned the motion and the litigation after the trusteeship was imposed and she joined a rival union.

The defendant sought costs of the abandoned motion pursuant to Rule 37.09(3).

The court found no good reason to depart from the general rule that a responding party is entitled to costs of an abandoned motion, and awarded the defendant $30,000 in costs on a partial indemnity scale.

The appellants appealed the motion judge's order striking their statement of claim without leave to amend on grounds of being time-barred and constituting an abuse of process.

The Court of Appeal found that while most of the claims were properly struck as statute-barred under the Limitations Act, 2002, the motion judge erred by not separately considering paragraph 39 of the statement of claim, which alleged a new claim arising from the dissolution of a corporate defendant in 2013.

The court allowed the appeal in part, setting aside the order with respect to paragraph 39 and remitting the matter for further consideration.

The defendants, the Legislative Assembly of Ontario and the Office of the Ombudsman of Ontario, sought costs on a partial indemnity scale after successfully dismissing the plaintiff's action against the Assembly for lack of jurisdiction and striking out the plaintiff's statement of claim against the Ombudsman for disclosing no reasonable cause of action.

The court awarded the Legislative Assembly $49,983.67 and the Ombudsman $18,551.81, finding their initial claims for costs to be excessive but acknowledging the legal complexity and importance of the motions.

The plaintiff's financial circumstances were considered but not determinative in the costs award.

The Superior Court of Justice approved a $69 million settlement in a securities class action against Manulife Financial Corporation, along with the plan of allocation, honoraria for representative plaintiffs, class counsel's contingency fees, and a preliminary commission for a third-party litigation funder.

The court found the late-stage settlement to be fair and reasonable, considering the extensive litigation and identified risks, including compelling evidence of market understanding of Manulife's hedging practices, a reasonable investigation defense, arguments against corrective disclosure, the impact of the economic crisis, and the dismissal of a parallel U.S. action.