Paul Tushinski

The plaintiff, a pizza delivery driver, brought a proposed class action against the franchisor and 141 franchisees alleging misclassification as an independent contractor.

Both the plaintiff and the franchisee defendants appealed the certification judge's decision.

The Divisional Court dismissed the plaintiff's appeal, upholding the finding that the franchisees were not 'common employers' under the Employment Standards Act.

The Court granted the franchisees' appeal in part, finding the motion judge erred in certifying a conspiracy claim among all defendants because the pleadings only alleged the franchisor controlled the agreements, not that the franchisees conspired with each other.

The certification of employment status as a common issue and the negligence claim were upheld.

The moving party, a third party in the underlying action, brought a motion for leave to appeal a prior decision.

The Divisional Court dismissed the motion for leave to appeal in a brief endorsement, awarding costs of $5,000 to the responding party.

The moving party brought a motion for leave to appeal a decision of Kimmel J. The Divisional Court dismissed the motion for leave to appeal and awarded costs of $5,000 to the responding party.

The moving party, a third party in the action, brought a motion for leave to appeal a decision of Kimmel J. The Divisional Court dismissed the motion for leave to appeal and awarded costs of $5,000 to the responding party.

The plaintiff and the franchisee defendants brought motions for leave to appeal the decision of Glustein J. dated December 17, 2024.

The Divisional Court granted both motions for leave to appeal.

Costs of the motions were fixed at $5,000 each and reserved to the panel hearing the appeal.

The plaintiffs brought eight proposed class actions against various long-term care (LTC) home owners and operators in Ontario, alleging systemic negligence and gross negligence in their response to the COVID-19 pandemic.

The court considered whether the claims met the certification criteria under section 5(1) of the Class Proceedings Act, 1992, particularly in light of the statutory immunity provided by the Supporting Ontario's Recovery Act (SORA).

The court certified six of the actions against the main corporate groups, finding that the pleadings disclosed a viable cause of action in gross negligence and that a class action was the preferable procedure.

However, the court dismissed the certification motions against independently owned homes and municipalities due to the lack of a collective enterprise and missing representative plaintiffs.

The moving parties (defendants) brought a motion for leave to appeal the orders of Belobaba J. dated January 6, 2022.

The Divisional Court dismissed the motion for leave to appeal, with costs fixed at $5,000 payable to the Foodland plaintiffs.

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.

The defendants, Toronto Hydro and the City of Toronto, sought leave to issue third-party claims against the plaintiffs (a building owner and two tenants) and various former owners and property managers for contribution and indemnity following a fire in a hydro vault.

The plaintiffs opposed the motions, arguing that covenants to insure in their leases shielded them from liability to each other, rendering the third-party claims legally untenable under the Supreme Court's decisions in T. Eaton Co. and Giffels.

The court granted leave in part, allowing claims against parties in capacities not shielded by the insurance covenants (e.g., former owners, property managers), but dismissed the motions regarding claims against the landlord and tenant in their capacities governed by the leases.

The court also rejected the argument that covenants to insure should be treated as exclusion clauses subject to public policy exceptions.

Following a jurisdiction motion where the defendant insurers successfully argued that the court lacked jurisdiction over the proposed class actions, the insurers sought costs of approximately $620,000.

The court found this request preposterous and excessive, fixing costs payable by the plaintiffs to the 13 non-settling insurers at $28,000 on a partial indemnity basis.

The costs payable by the government regulator to the plaintiffs were settled at $12,500.

The plaintiffs filed proposed class actions against 15 auto insurers and the provincial regulator, FSCO, alleging improper deduction of HST from statutory accident benefits.

The defendant insurers brought motions to dismiss the actions for lack of jurisdiction, arguing the Licence Appeal Tribunal (LAT) has exclusive jurisdiction over such disputes.

The court agreed, dismissing the actions against the insurers and refusing to approve two early settlements, as the claims fell squarely within the LAT's exclusive jurisdiction under s. 280 of the Insurance Act.

However, the court found it had jurisdiction to hear the claims against FSCO for regulatory negligence, as those allegations did not directly concern benefit entitlements or amounts.

The defendant Ryder Truck Rental Canada Ltd. brought a motion in writing to lift a stay of proceedings and dismiss the action in its entirety without costs.

The plaintiffs had resolved their claim with the co-defendant insurer and elected not to proceed against the remaining defendants.

The court found that a previous noting in default of the individual defendant while the stay was in place was invalid, but that noting in default was not required to dismiss the action.

The court lifted the stay for the sole purpose of dismissing the action without costs on consent of the participating parties.

The defendant Ryder Truck Rental requested an order lifting a previously imposed stay of proceedings and dismissing the action on consent.

The court noted that the defendant Minassian had been noted in default after the stay order was issued, and that a noting in default obtained during a stay should not be given effect.

The court directed that any request to lift the stay and dismiss the action must be made by way of a formal motion in writing on notice to all parties.

The plaintiffs sought court approval for a class action settlement and allocation plan concerning a Hepatitis A contamination recall of frozen fruit.

The court approved the $3,000,000 settlement, finding it fair, reasonable, and in the best interests of the class, considering the arm's length negotiations, lack of significant objections, and risks of continued litigation.

The plan allocated funds across four categories: purchasers, immunized members, bodily injury members, and family members/health insurers.

The defendant, Chubb Insurance Company of Canada, brought a motion to transfer the action from the Central East Region (Newmarket) to the Toronto Region, pursuant to Rule 13.1.02 of the Rules of Civil Procedure.

The plaintiffs, Smartcentres Management Inc. and North Park Shopping Centres Limited, opposed the motion.

The court granted the transfer, finding that the events, subject matter, and damages were primarily located in Toronto, and that Toronto was "significantly better" in the interests of justice after a holistic application of the factors outlined in Rule 13.1.02(2)(b).

The plaintiffs brought a motion to certify a class action against the Royal Winnipeg Ballet and a former instructor/photographer, Bruce Monk.

The plaintiffs alleged that Monk took intimate photographs of students in private settings and disseminated them without consent, constituting sexual assault, breach of fiduciary duty, and invasion of privacy.

The court found that the pleadings disclosed causes of action, there was an identifiable class, and there were 23 common issues.

The court also found that a class proceeding was the preferable procedure and that the representative plaintiffs were suitable.

The certification motion was granted.

The appellant motorcyclist was rendered paraplegic after colliding with the respondent's recycling truck, which was making a left turn.

A jury found the appellant 100% responsible for the accident.

On appeal, the appellant argued the verdict was unreasonable and that expert evidence was improperly adduced during cross-examination.

The Court of Appeal dismissed the appeal, finding the jury's verdict was not so plainly unreasonable that no jury could have reached it, and that the expert evidence elicited on cross-examination was not outside the witnesses' expertise.