M. Waddell

During a class action trial involving cosmetic surgery patients and allegations related to social media consent forms, the defendants called a witness and sought to qualify him as an expert in eDiscovery document collection and retention.

The plaintiffs objected on the basis that the witness lacked independence and impartiality, having blindly followed counsel's instructions and failed to ensure compliance with PHIPA.

The court ruled that the proposed evidence was factual in nature rather than expert opinion, as the witness was simply explaining the steps he took and the data he extracted from electronic medical records.

Since the evidence was factual and not presumptively inadmissible opinion evidence, the court did not need to address the impartiality objections, but noted that cross-examination on those issues could be relevant to the weight of the evidence.

Following the dismissal of the defendants' application for leave to appeal, the court determined the quantum of costs.

The plaintiffs sought $13,257.73, while the defendants argued for $2,500.00.

The court found the plaintiffs' claimed costs excessive, noting that the participation of two counsel was unnecessary.

Costs were fixed at $5,000 on a partial indemnity basis.

The Gold defendants sought leave to appeal a case management judge's order that refused to permit them to file a factum, make arguments in support of their co-defendants' motion for summary judgment, or bring their own summary judgment motion.

The case management judge had found that the Gold defendants deliberately breached a timetable they had devised, engaging in delaying tactics.

The Divisional Court dismissed the motion for leave to appeal, finding no conflicting decisions and no reason to doubt the correctness of the case management judge's exercise of discretion under the Rules of Civil Procedure to protect the integrity of the case management process.

Class counsel brought a motion to quash appeals filed by the defendants and intervenors from an order approving class counsel fees under s. 32 of the Class Proceedings Act, 1992.

The Court of Appeal held that the appellants had no standing to appeal because they were not parties to the fee agreements, the settlement agreement did not reserve their rights to participate in fixing fees, and their rights were not affected by the fee approval order.

The appeals were quashed.