Nicole Henderson

Following the dismissal of two proposed class action certification motions and a Rule 21 motion regarding the unauthorized sale of hospital patient contact information to RESP sales representatives, the successful defendants sought costs totaling over $690,000.

The Law Foundation of Ontario, which had indemnified the plaintiffs, argued that no costs should be awarded due to the novelty of the legal issues and the significant public interest in the protection of health privacy.

The court agreed, finding that the case raised novel questions about commercial liability for purloined patient information and engaged important public policy issues.

Applying section 31 of the Class Proceedings Act, 1992, the court exercised its discretion to make no order as to costs.

The plaintiffs in a proposed class action brought a pre-certification pleadings motion to replace a representative plaintiff and add Scarsview Motors Ltd. as a defendant, intending to certify a defendant class of FCA dealers.

Scarsview resisted its addition, arguing prejudice and unsuitability as a representative.

The court granted the plaintiffs' motion, finding the causes of action against Scarsview properly pleaded and its addition necessary to preserve potential remedies related to implied warranties.

The court deferred Scarsview's affidavit evidence regarding prejudice and unsuitability to the certification stage, emphasizing that such issues are best addressed on a proper record at certification, not on a pleadings motion.

Costs were awarded to the plaintiffs.

Vista owned a shopping mall and leased space to Zellers, which operated a retail store.

Zellers notified Vista in February 2004 of its intention to cease operations in May 2004, although the lease did not terminate until April 2005.

Vista sued, claiming Zellers was obliged under "continuous use" clauses in the lease to operate until the lease ended.

The trial judge found that Zellers was entitled to close when it did, interpreting the continuous use obligation as qualified by the hours of operation clause.

The Court of Appeal reversed, holding that the continuous use obligation in sections 8.01 and 8.05 was not overridden by the hours of operation clause in section 8.01.1, and that Zellers breached its obligation by closing prematurely.

The Plaintiffs in a class action against Robert Bosch GmbH sought pre-discovery production of three million documents from Volkswagen Group (VW), a non-party.

The Plaintiffs had previously settled a separate class action against VW, where these documents were produced under a protective order and deemed undertaking.

The court dismissed the Plaintiffs' motion, finding it premature and that the Plaintiffs failed to meet the high threshold for non-party production under Rule 30.10(1) of the Rules of Civil Procedure.

The court noted that Class Counsel had likely breached the deemed undertaking and protective order by seeking to use the documents in the Bosch action without prior consent or a court order.

The plaintiffs in a certified class action against Robert Bosch GmbH sought an order appointing an administrator and allowing the use of an existing email database, compiled from related class action settlements, for disseminating notice of certification to class members.

The defendant, Bosch, argued the motion was premature due to a pending mediation.

Non-parties Volkswagen and Porsche, whose customer data formed the database, raised concerns about privacy under PIPEDA.

The court granted the plaintiffs' motion, finding Bosch's prematurity argument unconvincing and ruling that a formal court order would ensure compliance with PIPEDA's exceptions for disclosure.

The plaintiff brought a motion to finalize the terms of a certification order for settlement purposes and to set a timetable for a settlement approval hearing.

A non-settling defendant, Canderm Pharma Inc., objected to the form of the order, identifying several clerical errors.

The court agreed that the errors should be corrected before the order was issued, despite the plaintiff's concern about maintaining parallel language with a British Columbia order.

The court finalized the terms, set the timetable, and declined to award costs to any party.

This decision concerns a motion on consent for the certification of a class proceeding against Robert Bosch GmbH.

The action alleges that Bosch conspired with Volkswagen, Audi, and Porsche by designing illegal software that deceived government regulators regarding diesel vehicle emissions.

The court found that all five criteria for certification under the Class Proceedings Act, 1992 were satisfied, including the disclosure of a cause of action, an identifiable class, common issues of fact or law, preferability of a class proceeding, and suitable representative plaintiffs with a workable litigation plan.

The action was certified, a class definition was established, and common issues were identified, encompassing conspiracy, punitive damages, and waiver of tort.

Robert Bosch LLC was also added as a defendant.

The proposed representative plaintiffs in a class action arising from a cyberattack brought a motion for the production of third-party cybersecurity reports (the Mandiant Reports) prior to cross-examining the defendants' affiant on a certification motion.

The defendants opposed production, claiming privilege.

The court held that by relying on the investigation's findings regarding the size and scope of the class in their affidavit, the defendants waived privilege over those specific aspects of the reports.

Applying principles of waiver, relevance, and proportionality, the court ordered the defendants to produce only the excerpts of the reports relating to the size and scope of the class.

The appellant, a distributor of the respondent's products, appealed a summary judgment that dismissed its action and granted judgment on the respondent's counterclaim for approximately $430,000 in unpaid product purchases.

The motion judge found that the respondent properly terminated the distribution agreement based on the appellant's breach, including failure to honour customer orders and circulation of disparaging letters about the respondent.

The Court of Appeal upheld the summary judgment, finding no genuine issue for trial and rejecting the appellant's allegations of misuse of confidential information and interference with contractual relations.

The defendant, Bosch, brought a motion to dismiss the plaintiffs' proposed class action on the basis of issue estoppel and double recovery, following the plaintiffs' partial settlement with co-defendant Volkswagen regarding emissions measurement software in diesel vehicles.

Alternatively, Bosch sought to strike the plaintiffs' claims for predominant purpose conspiracy and negligence.

The court declined to apply issue estoppel, finding it would work an injustice and that the settlement approval did not make a binding determination of full compensation against Bosch.

The court upheld the conspiracy pleading but struck the negligence claim without leave to amend, concluding that software is not a dangerous product and the claim for pure economic loss was legally untenable.

The defendant, having been successful in the proceeding, sought costs on a partial indemnity basis in the amount of $91,766.46.

The plaintiff submitted that $60,000 was a reasonable amount but provided no meaningful explanation or costs outline to support this figure.

The court considered the factors under Rule 57.01, the complexity of the $50 million claim, and the principles of proportionality and reasonable expectations.

Finding no basis to deviate from the defendant's requested amount, the court ordered the plaintiff to pay costs of $91,766.46.

The defendants, Toromont Industries Ltd. (and Toromont Cat) and Caterpillar Inc., brought motions for summary judgment to dismiss the plaintiff Haliburton Forest & Wildlife Reserve Ltd.'s claims for breach of contract, negligence, and negligent misrepresentation related to the purchase of forestry equipment.

Toromont relied on entire agreement (EA) and limitation of liability (LL) clauses in the sales contracts.

Caterpillar argued it was not a party to the sales contracts and that its limited warranty excluded liability.

The court granted partial summary judgment to Toromont, dismissing most of Haliburton's claims but allowing a claim under the Sale of Goods Act for the purchase price of the equipment to proceed.

The court granted full summary judgment to Caterpillar, dismissing all claims against it, finding no privity of contract for SGA claims, no reasonable reliance on representations, and no duty of care for pure economic loss.

The plaintiffs in a proposed class action regarding beer pricing and market allocation in Ontario sought leave under s. 29 of the Class Proceedings Act to discontinue the action against the LCBO and treat it as an unnamed co-conspirator.

The court dismissed the motion as premature, finding that the discontinuance should occur, if at all, only after the close of pleadings, as the remaining defendants had not yet filed statements of defence and might assert cross-claims or third-party claims against the LCBO.

The court also found the evidentiary record inadequate to justify discontinuance.

The plaintiff brought a proposed class action against the former and current trustees of the Nortel Health and Welfare Trust, alleging fraud and constructive fraud in the administration of the trust.

The defendants moved to strike the claim under Rule 21, arguing that the claims were barred by a release granted in Nortel's CCAA proceedings and were statute-barred under the Limitations Act, 2002.

The court held that the CCAA release barred the constructive fraud claims, and that the plaintiff failed to plead a tenable claim for common law fraud.

Furthermore, the court found that the claims were discovered outside the two-year limitation period.

The action was dismissed.

A former law firm partner brought an application disputing liability for goodwill payments and accounting fees following his withdrawal from the partnership.

The central issue was whether the goodwill buy‑in constituted a fixed obligation payable over five years or annual payments contingent on continued partnership membership.

The court held that the parties had not expressly addressed early departure and that the available documentation and surrounding circumstances supported the interpretation that goodwill payments were contingent on partnership earnings during each year.

As the applicant left the partnership after two years, he was not liable for the remaining goodwill payments.

The court also held that accounting services incurred to resolve disputes regarding the firm's records were firm expenses, not the applicant’s personal liability.

The plaintiff invested in a limited partnership that purchased shares of a private corporation.

The investment failed, and the plaintiff sued the promoters, a minority shareholder who sold his shares, and the valuators who appraised the shares.

The minority shareholder and the valuators brought motions for summary judgment.

The court granted the motions, finding no evidence that the minority shareholder participated in any conspiracy or breached securities laws.

The court also found that the valuators owed no duty of care to the plaintiff, the plaintiff did not rely on the valuation, and any claim for negligent valuation belonged to the limited partnership under the rule in Foss v. Harbottle.

The plaintiff requested a status hearing after receiving a status notice indicating the action would be dismissed for delay.

The plaintiff explained the delay was due to the sole director's separation, loss of confidence in former counsel, and financial difficulties.

The court found the plaintiff adequately explained the delay and that the defendant would suffer no non-compensable prejudice if the action proceeded.

The court declined to dismiss the action, ordered a timetable for the remaining steps, and awarded no costs.