Nadia Effendi

The plaintiff in a proposed class action against Amazon moved for approval of a third-party funding agreement under section 33.1 of the Class Proceedings Act, 1992.

The motion was unopposed.

The court found the agreement to be fair and reasonable, noting it provided sufficient funding for disbursements and adverse costs without overcompensating the funder.

The court also granted an order designating the plaintiff's lawyers as class counsel and precluding the commencement of similar actions in Ontario without leave of the court.

The Court of Appeal for Ontario dismissed an appeal by Denver Davis from two orders: one staying a proposed class action against Amazon in favour of arbitration, and the other dismissing the motion for certification of the class action.

The class action alleged Amazon was liable for breach of employment contracts, breach of good faith, unjust enrichment, and negligence, and sought damages on behalf of approximately 73,000 delivery workers.

The court held that the motion judge did not err in finding that Amazon was not a common employer of the delivery associates (DAs) employed by third-party logistics companies, and that the requirements for certification were not met.

The appeal was dismissed and costs awarded to the respondents.

In a proposed employment law class action, Amazon successfully resisted certification and obtained a stay for certain claims.

Amazon sought approximately $2.0 million in costs, while the plaintiff, Denver Davis, argued for an award of around $400,000.

The court, applying principles of reasonableness and access to justice in class proceedings, awarded Amazon costs on a partial indemnity basis of $750,000, finding both parties' requested amounts to be unreasonable.

The decision emphasized that costs should reflect what an unsuccessful party could reasonably expect to pay, not necessarily the successful party's actual costs, and acknowledged the public interest element in the plaintiff's claim.

The plaintiff in a proposed class action sought an extension of time to appeal a stay decision and an order to transfer and combine that appeal with a certification decision appeal, both arising from a single set of reasons by the class action judge.

The class action judge had dismissed certification and stayed claims for some class members due to arbitration agreements.

The Court of Appeal granted the extension and ordered the transfer and combination of appeals, finding strong reasons related to the administration of justice, given the interconnectedness of the underlying decisions and the risk of inconsistent results if heard separately.

In a proposed employment misclassification and common employer class action brought on behalf of delivery workers, the court stayed the claims of workers bound by arbitration agreements and dismissed certification.

Applying the stay framework under the Arbitration Act, 1991 and the unconscionability analysis from the Supreme Court’s arbitration jurisprudence, the court held the arbitration clauses were enforceable and not contrary to public policy.

The court further held that the common employer theory against the retailer in relation to workers hired by numerous third-party logistics companies was legally untenable and unsuitable for certification because the cause of action, common issues, and preferable procedure criteria were not met.

Although the direct-employer claims of certain drivers might otherwise have supported limited certification, the proceeding was ultimately stayed in part and the certification motion dismissed.

Following the dismissal of the applicants' challenge to Western University's COVID-19 vaccine mandate, the university sought partial indemnity costs of $97,721.11.

The applicants argued no costs should be awarded as the case was public interest litigation.

The court rejected this argument, finding the case lacked the exceptional nature required to deviate from the usual costs rules, and noted the applicants were backed by a litigation fund.

The court awarded the university costs fixed at $75,000.

The applicant students sought declaratory and permanent injunctive relief against the respondent university's COVID-19 Vaccination Policy, arguing that the collection of proof of vaccination violated s. 38(2) of the Freedom of Information and Protection of Privacy Act (FIPPA).

The court found that the university's broad statutory powers authorized the Policy as a 'lawfully authorized activity' and that the collection of proof of vaccination was 'necessary' to properly administer and enforce the mandate.

The application was dismissed.

The plaintiff brought a motion on consent to certify a class action against the defendant student travel companies.

The claim alleges that 'Trip Leaders' were misclassified as volunteers rather than employees, depriving them of minimum wage and benefits under the Employment Standards Act.

The court found that all criteria under section 5(1) of the Class Proceedings Act, 1992 were met, including a valid cause of action, an identifiable class, common issues, preferable procedure, and a suitable representative plaintiff.

The action was certified as a class proceeding.

A case management endorsement setting out the procedural schedule and directions for three related applications between the applicant employer and the respondent association.

The court ordered that the applications be heard together by a bilingual panel via ZOOM videoconference.

Directions were provided for the electronic filing of materials, including the use of a password-protected drop box, hyperlinked factums, and the avoidance of unnecessary duplication in the record.

The plaintiff in a proposed class action moved for leave to amend the Statement of Claim to add the corporate directors of the defendant companies as new defendants.

The amendment was sought due to concerns about the existing defendants' ability to pay outstanding wages, particularly in light of the global travel industry's collapse due to the COVID-19 pandemic.

The court found no prejudice to any party, as the defendants did not object and the action was still at an early stage.

Leave to amend was granted, with no costs awarded.

The court approved a class action settlement concerning unpaid hours and overtime for non-managerial, non-unionized employees of GoodLife Fitness Centres Inc. The settlement, reached after mediation, provides $7.5 million to approximately 22,000 class members across various employment categories, along with $1 million in class counsel fees and a $10,000 honorarium for the representative plaintiff.

The court certified the class action for settlement purposes and found the settlement fair and reasonable given the litigation risks and the benefits secured for the class, including compensation without individual proof of damages.

In an appeal from judicial review proceedings, the appellants challenged a law society decision refusing accreditation to a proposed law school because of a mandatory covenant restricting sexual intimacy to marriage between a man and a woman.

The majority held that the regulator had statutory authority to consider the covenant’s impact on equal access, diversity in the profession, and potential harm to LGBTQ prospective students.

Applying the Doré/Loyola framework, the Court found the decision proportionately balanced freedom of religion with statutory public-interest objectives and was reasonable.

The appeal was dismissed, with concurring reasons and a dissent that would have allowed the appeal.

The City of Thunder Bay appealed a decision dismissing its application for a declaration that Canadian National Railway Company breached a 1906 agreement by refusing to reopen the James Street Swing Bridge for motor vehicle traffic following a 2013 fire.

The bridge is a combined railway and roadway structure.

The application judge found that the parties intended the bridge to be maintained only for the type of traffic existing in 1906 (streetcars, horses, and carts), not modern motor vehicles.

The Court of Appeal allowed the appeal, finding the application judge's interpretation was unreasonable and tainted by extricable errors of law.

The court held that the perpetual right to cross the bridge for "vehicle traffic" and the obligation to maintain it "in perpetuity" must include modern motor vehicles, not merely those existing in 1906.

The court also found the application judge erred in placing the onus on Thunder Bay to provide specific proposals for making the bridge safe for vehicles, when that obligation rested with CN as the bridge operator.

Trinity Western University (TWU), an evangelical Christian university, sought accreditation from the Law Society of Upper Canada for its proposed law school.

TWU requires students to sign a community covenant prohibiting sexual intimacy outside of heterosexual marriage.

The Law Society denied accreditation, finding the covenant discriminated against the LGBTQ community.

TWU appealed the Divisional Court's dismissal of its judicial review application.

The Court of Appeal dismissed the appeal, holding that the Law Society's decision was subject to a reasonableness standard of review.

The Court found that while the denial of accreditation infringed TWU's freedom of religion under s. 2(a) of the Charter, the Law Society reasonably balanced this infringement against its statutory mandate to protect the public interest and ensure equal access to the legal profession.

The Crown appealed a declaration that the process for setting the remuneration of Case Management Masters violated the constitutional principle of judicial independence.

The respondents cross-appealed, seeking a broader remedy than a simple declaration of invalidity.

The Court of Appeal dismissed the appeal, finding that linking the Masters' salaries in perpetuity to a specific civil service classification without an independent commission violated the requirement for an independent, effective, and objective process.

The cross-appeal was also dismissed, as a simple declaration of invalidity was the appropriate remedy.

The suspension of the declaration of invalidity was extended for 12 months.

The appellants appealed a trial judgment finding them liable for malicious prosecution and wrongful dismissal.

The Court of Appeal rejected the argument that the trial judge's reasons were inadequate, finding they clearly showed the pathway to the result.

However, the Court agreed with the appellants that the trial judge erred by duplicating the award of 'Wallace' or 'Honda' damages and aggravated damages for malicious prosecution, as the same factors were used to justify both.

The appeal was allowed in part to set aside the $15,000 'Wallace' damages award, but otherwise dismissed.

The Law Society of Upper Canada appealed a decision of its Appeal Panel restoring the membership of a former judge who had resigned following findings of serious sexual misconduct.

The Divisional Court dismissed the appeal, upholding the Appeal Panel's findings that the Hearing Panel erred in applying the enhanced 'Bernstein' standard of proof and in concluding it lacked jurisdiction to impose conditions on a restored licence.

The Court confirmed that the standard of proof for restoration is a simple balance of probabilities, the burden of proof lies on the applicant, and the Law Society has broad jurisdiction to impose conditions on a restored licence to protect the public interest.