Michael Edward Kotrly

In a class proceeding, the plaintiffs sought directions for a modified trial procedure to determine the first certified common issue concerning the interpretation of licences of occupation and whether they established a fixed property boundary through a contour line.

The defendant argued the issue should proceed by way of a summary judgment motion supported by affidavits and expert reports.

The court considered the “full appreciation” test for summary judgment and the anticipated need for contested expert survey evidence.

Concluding that summary proceedings would not allow adequate assessment of the expert evidence, the court directed that the common issue proceed by a modified trial procedure with expert reports, an agreed statement of facts, limited discovery, and viva voce expert testimony.

Case management conferences were ordered to establish timelines and further procedural directions.

Following the successful appeal by the defendant overturning the certification of a proposed class action for unpaid overtime, the defendant sought partial indemnity costs of $300,000.

The plaintiff and the Law Foundation of Ontario argued that no costs or a maximum of $50,000 should be awarded, citing the novel legal issues and public interest nature of the case.

The Court of Appeal acknowledged the novel points of law and access to justice considerations under section 31(1) of the Class Proceedings Act, 1992, but held that the Act does not insulate representative plaintiffs from adverse costs.

The court fixed the costs of the appeal at $60,000 on a partial indemnity scale.

The plaintiff brought a proposed class action alleging that the defendant railway company misclassified first line supervisors as managerial employees to avoid paying overtime under the Canada Labour Code.

The motion judge certified the action but significantly redrafted the common issues, rejecting the plaintiff's proposed misclassification issue due to a lack of commonality.

On appeal, the Court of Appeal held that the motion judge correctly rejected the misclassification issue because individualized assessments of job duties were required.

However, the Court found the motion judge erred in certifying a reframed common issue about the minimum requirements for managerial status, as it suffered from the same lack of commonality.

The certification order was set aside.

The moving party, Maggie's: The Toronto Sex Workers' Action Project, brought a motion to intervene in an appeal concerning the constitutionality of prostitution-related offences.

The moving party sought to raise a new challenge under s. 15 of the Charter and to argue that the legislation was impermissibly driven by moral views.

The court dismissed the motion to intervene on the s. 15 issue, finding that the evidentiary record was not developed for such a challenge and that allowing it would be unfair to the parties and delay the appeal.

The court also declined to grant separate intervener status on the morality issue, as it was already being raised by others, but permitted the moving party to join an existing intervener group.