Michael McGowan

Following the dismissal of several class actions against automobile insurers, the court determined the issue of costs.

The plaintiffs, who had relied on a previous Court of Appeal decision that was subsequently reversed, sought their costs despite being unsuccessful, citing disastrous financial consequences for their contingency-fee counsel.

The successful insurers sought their costs on a partial indemnity scale.

The Court of Appeal declined to award costs to either side.

The court held that the Class Proceedings Act was not intended to insulate unsuccessful plaintiffs from costs, but also found that the insurers should not receive costs because the litigation constituted a test case and the plaintiffs had reasonably relied on the court's own prior jurisprudence.

The appellant appealed an order regarding compensation in a class action.

The appeal was resolved on consent, with the appellant abandoning his claim for compensation in excess of $95,000.

Class counsel consented to a payment of $95,000 to the appellant on a quantum meruit basis, to be paid from funds set aside for class counsel and appellant compensation.

A freelance author brought a class proceeding alleging copyright infringement arising from newspaper publishers' republication of articles in electronic databases and CD-ROM archives.

The Court held that databases presenting articles as decontextualized individual works did not reproduce the publishers' collective newspaper work and therefore infringed freelance authors' copyrights absent consent, but that the CD-ROM product sufficiently preserved the linkage to daily editions and was a valid reproduction of the newspaper.

The Court further held that only exclusive licences require writing under the Copyright Act, and that staff writers should not have been included in the class because they had no cause of action unless they had exercised their statutory right to restrain publication.

The appeal was dismissed and the cross-appeal allowed only with respect to the CD-ROMs.

In an addendum regarding costs, the court considered the written submissions of the parties and the factors set out in Rule 57.01 of the Rules of Civil Procedure.

Applying the principle that costs must be reasonable and fair, the court fixed costs at $7,500 on a partial indemnity scale.

The defendant sought leave to appeal to the Divisional Court from orders dismissing its motion to decertify a wrongful dismissal class action and varying the process for adjudicating individual claims.

The defendant argued the motion judge erred in finding common issues and a workable plan, and in altering the application of Rule 49.

The court dismissed the motion for leave, finding no good reason to doubt the correctness of the motion judge's orders and noting that the Class Proceedings Act provides broad discretion to manage individual issues.

The defendant brought a motion for leave to appeal a decision dismissing its motion to decertify a wrongful dismissal class action and varying the process for adjudicating individual claims.

The class action involved former employees terminated after mass store closures.

The defendant argued the motion judge erred in finding common issues and a workable plan.

The Divisional Court dismissed the motion for leave to appeal, finding no good reason to doubt the correctness of the motion judge's orders and noting that the Class Proceedings Act provides adequate mechanisms to handle individual issues.

The appellant, a freelance author, wrote articles published in The Globe and Mail.

The newspaper subsequently placed these articles in electronic databases (Info Globe Online, CPI.Q, and CD-ROM).

The appellant sued for copyright infringement.

The Court of Appeal held that the databases did not constitute a 'newspaper or similar periodical' and did not reproduce a substantial part of the newspaper's collective work.

The court also found that the oral licence granted by the appellant did not convey a proprietary interest and thus did not need to be in writing.

The appeal and cross-appeal were dismissed.

The appellant brought a class action seeking restitution for unjust enrichment arising from late payment penalties (LPPs) levied by the respondent gas utility in excess of the interest limit prescribed by s. 347 of the Criminal Code.

The Supreme Court of Canada allowed the appeal, holding that the appellant made out a claim for unjust enrichment.

The Court established a two-part test for the juristic reason analysis and found that the OEB orders did not constitute a juristic reason because they were inoperative to the extent they conflicted with the Criminal Code.

The respondent was ordered to repay LPPs collected in excess of the legal limit after the action was commenced in 1994.

The plaintiffs in a class action brought motions to quash the defendants' appeals from orders dismissing their Rule 20 and Rule 21 motions.

The plaintiffs argued the orders were interlocutory, not final.

The Court of Appeal held that the orders, which dismissed the motions on a question of law and bound the court to a specific interpretation of the Insurance Act, gave rise to res judicata and were therefore final orders.

The motions to quash were dismissed.

The plaintiff appealed a Divisional Court decision setting aside a motion judge's order that appointed judges and judicial officers as referees to determine individual class members' claims under the Class Proceedings Act.

The Court of Appeal dismissed the appeal, holding that a court cannot appoint a judge or judicial officer to conduct a reference under s. 25(1)(b) of the Class Proceedings Act without first obtaining the authorization of the Chief Justice or her designate under s. 14(1) of the Courts of Justice Act.

The consent of individual judicial officers is not an adequate substitute for the Chief Justice's overarching responsibility for judicial assignments.

On appeal from summary judgment dismissing an intended class proceeding, the court held that the proposed claim for restitution of late payment penalties charged by a regulated gas utility was not an impermissible collateral attack on Ontario Energy Board rate orders, and that statutory and regulatory defences based on the Ontario Energy Board Act, the Criminal Code, and a regulated industries doctrine did not bar the proceeding.

The majority nevertheless dismissed the appeal on the merits, finding the unjust enrichment claim failed because receipt of the penalties did not constitute an enrichment in the utility's regulatory context and, in any event, the Board-ordered rate structure supplied a juristic reason for retention.

The court declined preservation, declaratory, and injunctive relief.

The appeal from the costs award was allowed, with no costs ordered either below or on appeal.

The appellant sought to certify a class action on behalf of 30,000 residents complaining of noise and physical pollution from a landfill owned by the respondent city.

The Supreme Court of Canada held that while the appellant established an identifiable class and common issues, he failed to demonstrate that a class action was the preferable procedure for resolving the claims.

The Court found that the common issues were negligible compared to the individual issues, and that alternative avenues of redress, such as a Small Claims Trust Fund, were available.

The appeal was dismissed.

The appellant's vehicle was damaged beyond repair.

The respondent insurer paid the actual cash value less the policy deductible and took title to the salvage.

The appellant brought an intended class proceeding arguing that statutory condition 6(7) requires payment of the actual cash value without reduction for the deductible when the insurer takes salvage.

The Court of Appeal allowed the appeal, holding that section 234(2) of the Insurance Act makes statutory conditions paramount over conflicting policy terms, including deductibles.

The court also found the appellant was not barred from claiming by signing a proof of loss, and remitted the class certification issue to the motions judge.