Pavel Sergeyev

This was a certification motion in a proposed national employment class action alleging that commission-only mortgage specialists were not paid vacation and holiday pay on their full variable compensation contrary to the Canada Labour Code and related contractual and equitable duties.

The court held that the pleaded claims for breach of contract, negligence, breach of fiduciary duty, unjust enrichment, breach of trust, and breach of duty of good faith were not plainly doomed to fail, and that there was some basis in fact for common liability issues and aggregate damages.

The court also held that the common issues predominated for preferable procedure purposes despite disputes about limitation periods and varying employment documents.

Certification was granted except for punitive damages, for which the record did not provide some basis in fact.

The Cash Store Financial Services Inc. operated a payday loan business from 2002 until it sought CCAA protection in April 2014.

The company's estate sued its auditor KPMG LLP and counsel Cassels Brock & Blackwell LLP, alleging negligence and breach of fiduciary duty.

The plaintiff claimed that the defendants knew or ought to have known that Cash Store was misrepresenting its business as a broker when it was actually a direct lender bearing credit risk, and that this misrepresentation caused a deepening of insolvency from late 2011 until the CCAA filing in 2014.

The plaintiff sought damages ranging from $119 million to $177 million, plus disgorgement of legal fees.

The court dismissed all claims against both defendants, finding that Cash Store was properly characterized as a broker during the relevant period, that the defendants met applicable professional standards, and that the plaintiff failed to prove causation and damages.

The court also found the claims were statute-barred.

The defendants in a class action brought a motion seeking the production of class counsel's redacted dockets to respond to the plaintiffs' costs submissions following certification.

The plaintiffs opposed the production.

The court dismissed the motion, holding that the production of dockets to support costs submissions on a motion is only ordered in exceptional cases to protect solicitor-client privilege.

The court found that the substantial amount of costs claimed, the disparity between the parties' costs, and alleged incongruities in the costs outline did not constitute exceptional circumstances warranting production.

This appeal concerned the dismissal of a proposed class action against Capital One and Amazon Web following a data breach.

The motion judge had struck the appellants' pleadings without leave to amend and dismissed their certification motion, finding the case 'doomed to fail'.

The Court of Appeal upheld the motion judge's decision, affirming that the pleadings failed to disclose viable causes of action for data misuse (intrusion upon seclusion, misappropriation of personality, conversion, breach of confidence/trust/fiduciary duty) and data breach (negligence, statutory claims).

The Court also upheld the decision to deny leave to amend the pleadings, citing repeated opportunities and the defective nature of the claims.

The appellants' motion for an extension of time to appeal costs was also dismissed.

The plaintiff brought a proposed class action against numerous pharmaceutical manufacturers and distributors regarding the marketing and sale of opioids in Canada.

The defendants moved to strike the statement of claim for failing to disclose a reasonable cause of action, and one defendant, Pro Doc Limitée, moved to dismiss the action against it for lack of jurisdiction.

The court granted Pro Doc's jurisdiction motion, finding no real and substantial connection to Ontario.

The court struck the claims against the distributor defendants without leave to amend, finding no viable cause of action.

The court found that while there were viable causes of action against the manufacturer defendants for breach of the Competition Act, negligent misrepresentation, fraudulent misrepresentation, and failure to warn, the plaintiff's pleading was defective.

The court struck the claims against the manufacturer defendants with leave to amend to join representative plaintiffs for each defendant group and to comply with the rules of pleading.

This motion concerned the substitution of a representative plaintiff in a class action alleging underpayment of vacation and public holiday pay on variable compensation by RBC General Insurance Company and Aviva General Insurance Company.

The original proposed representative plaintiff, Deval Trivedi, was found to be statute-barred against Aviva General.

The plaintiff sought to substitute Binay Saroop as the representative plaintiff against Aviva General and to amend the statement of claim.

The court found that Saroop met the 'some basis in fact' test to rebut the statutory presumption regarding the limitation period and did not have a disqualifying conflict of interest, thus being an adequate representative plaintiff.

The motion to substitute Saroop and amend the claim was granted.

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.

This appeal concerns the applicability of the tort of intrusion upon seclusion to "Database Defendants" (entities that collect and store personal information) when a data breach occurs due to the alleged negligence or recklessness of the defendant, but the actual intrusion is committed by independent third-party hackers.

The Court of Appeal for Ontario affirmed the Divisional Court's decision, holding that the tort of intrusion upon seclusion, as defined in Jones v. Tsige, requires an act of intrusion by the defendant itself, not merely a failure to prevent intrusion by others.

The court dismissed the appeal, concluding that the plaintiffs' claim, which alleged Equifax's failure to protect data from hackers, did not disclose a viable cause of action for intrusion upon seclusion against Equifax.

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 moving parties sought leave to appeal a costs order.

The Divisional Court dismissed the motion for leave to appeal in writing.

Costs of the motion were fixed at $5,000 payable by the moving parties.

Following the dismissal of a proposed $240 billion class action regarding a data breach, the successful defendants sought costs.

The plaintiffs argued costs should be limited to a partial indemnity scale for a pleadings motion.

The court found that the plaintiffs' unsubstantiated allegations of professional misconduct against defence counsel, combined with their egregious violations of pleading rules and massive expansion of the claim, justified costs on a substantial indemnity basis.

The court awarded $725,000 to Capital One and $500,000 to Amazon Web.

The plaintiffs brought a motion to certify a $240 billion class action against a financial institution and a cloud storage provider following a massive data breach perpetrated by a former employee of the storage provider.

The plaintiffs alleged numerous causes of action, including intrusion upon seclusion, misappropriation of personality, conversion, breach of confidence, and negligence, arguing that the defendants misappropriated and misused the class members' personal information by retaining and aggregating it beyond its initial purpose.

The court dismissed the certification motion, finding that the plaintiffs' Fresh as Amended Statement of Claim egregiously contravened the rules of pleading and failed to disclose any legally viable causes of action against the corporate defendants.

The pleading was struck in its entirety without leave to amend.

The court reconsidered a previous costs award of $112,500 made against the plaintiffs following the dismissal of their refusals and interlocutory injunction motions in a proposed class action regarding a data breach.

The plaintiffs argued the defendants' costs claim reflected over-lawyering and sought costs in the cause.

The court rejected the plaintiffs' submissions, finding their motions were unnecessary, overreaching, and deplorably prosecuted.

The court confirmed the original partial indemnity costs award of $112,500 and awarded an additional $12,500 for the costs submissions, for a total of $125,000 payable to the defendants.

The defendants appealed the certification of a class action claiming intrusion upon seclusion following a massive data breach by third-party hackers.

The certification judge had allowed the claim to proceed, finding it was not plain and obvious that the novel claim would fail.

The Divisional Court majority allowed the appeal and set aside the certification of the intrusion upon seclusion claim, holding that the tort requires an actual intrusion by the defendant, not merely a failure to prevent an intrusion by others.

The plaintiffs' economic interests were adequately protected by the tort of negligence.

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 a proposed class action brought unsuccessful motions for an injunction and for refusals.

The Capital One defendants sought costs of $135,000 on a substantial indemnity basis or $112,500 on a partial indemnity basis.

The plaintiffs argued they should be awarded costs despite losing, claiming they achieved their objective.

The court rejected the plaintiffs' arguments, finding their motions were ill-advised and meritless.

Costs were awarded to the Capital One defendants in the amount of $112,500 on a partial indemnity basis.

In a proposed class action regarding a data breach, the plaintiffs brought a motion for an injunction to enjoin or supervise communications from the defendants to putative class members.

The defendants intended to send a notice to 51,000 affected individuals offering free credit monitoring.

The court dismissed the motion, finding no reason to intervene as the proposed notice did not affect the integrity of the class proceedings or compromise the putative class members' rights.

The plaintiffs in a proposed class action regarding a data breach brought motions to compel answers to questions refused on cross-examinations of two affiants and an omnibus motion to strike out various affidavits, factum paragraphs, and a sealing motion.

The court dismissed the refusals motions, finding the questions asked were beyond the narrow scope of the underlying motions (an injunction motion and a sealing motion) and were properly refused.

The court also dismissed the omnibus motion, finding no reason to strike the evidence or alter the timetable for the upcoming jurisdiction and certification motions.

The defendants brought a motion for leave to appeal a certification order.

The Divisional Court granted leave to appeal on the question of whether the tort of intrusion upon seclusion is available against collectors and custodians of private information when that information is improperly accessed by a third party, even if the defendants allegedly acted recklessly.

Costs of the motion were fixed at $11,300, left to the discretion of the appeal panel.

Following a successful judicial review application, the applicant sought costs of $21,760.65 based on Column V of Tariff B, arguing complexity and the respondent's conduct.

The respondent argued for Column III, suggesting $6,596.40.

Considering the factors under Rule 400(3) and guided by Column III, the Federal Court awarded costs to the applicant in the all-inclusive amount of $12,900.