Paul J. Martin

The proposed representative plaintiff brought a motion to certify a class action against RBC Insurance Agency Ltd. and Aviva General Insurance Company for alleged failure to pay vacation and public holiday pay on variable compensation to Property & Casualty Insurance Advisors.

The court granted certification against RBC IA, finding some basis in fact for the claims and that a class action was the preferable procedure.

However, the court found the proposed representative plaintiff's claim against Aviva General was presumptively statute-barred and conditionally certified the action against Aviva General, allowing 100 days to find a new representative plaintiff.

In a proposed class proceeding, the Defendant moved to strike three expert affidavits filed in the Plaintiffs' reply record on certification.

The Court struck the affidavit of Dr. Drogin, finding it introduced a new damages methodology that constituted improper case-splitting.

The Court declined to strike the affidavit of Mr. Anand, finding it was properly responsive to jurisdiction issues raised by the Defendant.

The Court granted the Plaintiffs leave under Rule 52.4 to file Mr. Anand's affidavit as an additional expert, noting the public significance of the proceeding.

No costs were awarded.

The appellant, Princes Gates GP Inc. (PG), appealed a trial judgment finding it liable for breach of contract and bad faith termination of agreements with the respondent tenant, 2505243 Ontario Limited (250), a food services provider.

The trial judge awarded 250 reliance damages and employee compensation damages.

PG argued errors in findings of improper termination, refusal to assist with the Canada Emergency Commercial Rent Assistance Program (CECRA), bad faith, and damages calculation.

The Court of Appeal dismissed PG's appeal, upholding the trial judge's findings that PG's actions contributed to 250's inability to pay rent, their refusal to assist with CECRA was unjustified, and their termination was in bad faith by misleading 250 while secretly negotiating with a new provider.

The court also affirmed the reliance damages award and the employee compensation damages.

The Court of Appeal for Ontario heard a motion by 94 former employees (proposed interveners) to intervene as an added party in an appeal between 2505243 Ontario Limited and Princes Gates GP Inc. The employees sought to protect a $2.063 million fund set aside for their potential termination claims by the trial judge.

The motion was opposed by Princes Gates GP Inc., while 2505243 Ontario Limited took no position.

The court dismissed the motion, finding that although the proposed interveners had a direct financial interest, their submissions would largely duplicate those of 2505243 Ontario Limited and risked introducing a new, unlitigated issue (common employer) from a separate class proceeding.

Following a summary judgment motion in a wrongful dismissal action where the plaintiff recovered $17,587.11, both parties made written submissions on costs.

The plaintiff sought $35,000 in partial indemnity costs, while the defendant sought $17,387.88 in costs thrown away.

The court noted that both parties had advanced and subsequently abandoned serious, unsubstantiated allegations during the litigation.

Given the conduct of both parties and the plaintiff's recovery falling within the Small Claims Court monetary jurisdiction, the court ordered no costs to either party.

The plaintiff, a dental hygienist, was dismissed without cause after less than six months of employment.

She brought a motion for summary judgment for wrongful dismissal damages.

The defendant employer alleged she had fabricated evidence of her job search to prove mitigation.

The court found the employer failed to prove the mitigation fraud allegation.

Applying the Waksdale rule, the court held the employment contract's termination clause was void because its 'for cause' provision violated the Employment Standards Act.

The court awarded a three-month notice period and declined to deduct the plaintiff's CERB payments from the damages award.

The plaintiffs were successful in obtaining an interlocutory injunction enforcing restrictive covenants related to the purchase of a dental practice.

In this costs decision, the plaintiffs sought partial or substantial indemnity costs.

The respondent argued costs should be deferred to the arbitrator who would hear the underlying damages claim.

The court held it was appropriate to determine costs now, as the injunction motion effectively determined the respondent's ability to practice dentistry and the court had already reviewed the voluminous materials.

The court rejected the request for substantial indemnity costs and fixed costs at $60,000 inclusive of disbursements and HST.

The defendants moved to dismiss the proposed class action for delay under section 29.1 of the Class Proceedings Act.

The plaintiff failed to file her certification motion record or establish a court-ordered timetable by the one-year anniversary of the action's commencement.

The court rejected the plaintiff's argument that a vague direction to file 'when she can' constituted a timetable, emphasizing that section 29.1 is mandatory and must be strictly applied to advance class action litigation.

The motion was granted and the proposed class proceeding was dismissed.

The plaintiffs sought interlocutory relief to enforce non-competition, non-solicitation, and confidentiality covenants against a dentist who left a purchased dental practice and began practising within the restricted radius.

The court held that the clean hands defence failed, found a strong prima facie case on the non-compete claim, and concluded that the covenant was linked to the sale-of-business bargain and was likely enforceable.

The court further held that the ESA amendments introduced by the Working for Workers Act, 2021 did not retrospectively void the 2020 agreement.

Irreparable harm was established through likely loss of goodwill and patient movement, the balance of convenience favoured enforcement, and the court also ordered the return of patient information taken from the practice.

The plaintiffs brought an interlocutory motion for injunctive relief against the defendants regarding the solicitation of dental clients and a non-compete clause.

Following the hearing of the motion, the court issued an interim order enjoining the defendants from soliciting clients of the dental centre and prohibiting one of the defendants from practicing dentistry within a 5-kilometre radius until the final decision on the interlocutory motion is released.

The plaintiff brought motions for approval of a class action settlement, plan of distribution, and class counsel fees in a securities class action alleging goodwill misrepresentation.

The court approved the settlement of US$3.65 million, finding it fair and reasonable given the significant risks of the litigation, including the primary market claims being potentially statute-barred and the defendants' dwindling insurance proceeds.

The court also approved the plan of distribution, the appointment of the settlement administrator and referee, and class counsel's 33% contingency fee of $1,353,246.25.

Ten X Toronto Inc. brought a motion to be added as a party to an appeal regarding the proposed revocation of a liquor licence held by 1938334 Ontario Inc. Ten X argued that it owned and occupied the premises covered by the licence and could not obtain its own liquor licence until the appellant's licence was revoked.

The Licence Appeal Tribunal found that Ten X had a significant interest in the appeal and that its substantive rights would be affected by the outcome.

The motion was granted on consent of the appellant and with no position taken by the respondent.

The plaintiffs sought judicial approval of settlement agreements totaling $7.9 million with seven defendant groups in multiple class actions alleging price-fixing in the global automotive parts industry.

The court also considered the approval of a distribution protocol, discontinuances and dismissals against certain defendants, representative plaintiff honoraria, and class counsel's 25% contingency fees.

The court found the settlements, distribution protocol, and fees to be fair, reasonable, and in the best interests of the class, and granted all requested approvals.

The plaintiff brought a motion for summary judgment for wrongful dismissal after being terminated from a three-year fixed-term employment contract.

The employment agreement was negotiated alongside a share purchase agreement.

The court found that the 'just cause' termination provision violated the Employment Standards Act, 2000, rendering the entire termination clause void, despite the commercial context and the parties' sophistication.

The plaintiff was awarded the balance of the fixed-term contract (approximately 20 months) without a duty to mitigate, plus 10% for benefits, less CERB payments received.

The moving defendants sought a temporary stay of the plaintiff's certification motion pending the determination of a certification motion in a related price-fixing class action involving different electronic components.

The defendants argued that a stay would promote efficiency as the expert evidence and methodology were substantially similar in both actions.

The court dismissed the motion, finding that the actions involved different products, time periods, and parties, and that an indefinite delay would be unfair to the plaintiff class and contrary to the goals of judicial economy and access to justice.

The plaintiff in a proposed price-fixing class action regarding linear resistors brought motions to discontinue the action against six defendants and to certify the action for settlement purposes against the Kamaya defendants.

The court approved the discontinuance, finding no prejudice to the class as tolling agreements were in place and there was no evidence of the discontinued defendants' involvement in the conspiracy.

The court also certified the action for settlement purposes, approving an expanded class definition that included British Columbia purchasers to facilitate a comprehensive settlement with the Kamaya defendants.

The moving party sought leave to appeal from the order of Glustein J. dated September 9, 2020.

The Divisional Court dismissed the motion for leave to appeal and awarded costs to the responding party fixed at $10,000.

The plaintiffs in 17 auto parts price-fixing class actions brought motions for approval of distribution protocols, an order compelling automakers to produce customer information, and approval of honoraria for representative plaintiffs.

The court approved the Omnibus and CVJB Distribution Protocols, finding them fair, reasonable, and in the best interests of the class.

The court also ordered the automakers to produce the requested customer information pursuant to section 12 of the Class Proceedings Act, 1992, and approved modest honoraria for the representative plaintiffs given their long-term commitment to the litigation.

The plaintiffs brought motions for the approval of 12 settlement agreements totaling $22.6 million in various class actions alleging price-fixing in the global automotive parts industry.

The court found that the proposed settlements fell within the 'zone of reasonableness,' as they were generally 8 to 10 percent of the comparable U.S. indirect purchaser settlements.

The court also approved class counsel's request for a 25 percent contingency fee, totaling approximately $5.4 million, plus disbursements, finding the fee presumptively valid and reasonable.

This appeal concerned proposed class actions against auto insurers for improperly deducting HST from statutory accident benefits (SABs) and against the Financial Services Commission of Ontario (FSCO) for alleged regulatory failures.

The motion judge had dismissed claims against insurers due to the exclusive jurisdiction of the Licence Appeal Tribunal (LAT) under s. 280 of the Insurance Act, but allowed claims against FSCO to proceed.

The Court of Appeal upheld this decision, confirming the LAT's exclusive jurisdiction over SAB disputes and affirming the court's jurisdiction over tort claims against the regulator.

The court also refused leave to appeal the motion judge's costs order, finding it within his discretion.