Richelle M. Pollard

The defendants sought costs of a variance motion on a substantial indemnity scale against the plaintiff's former counsel, Monkhouse Law Professional Corporation.

The court found that while Monkhouse's conduct in the underlying action warranted a varied costs order, its conduct during the variance motion itself was professional and not reprehensible.

The court declined to award substantial indemnity costs and fixed costs at $30,000 all-inclusive, representing a mid-point between the parties' submissions.

The defendants in a decertified class action brought a motion to vary a $100,000 costs order to make Class Counsel, rather than the representative plaintiff, responsible for payment.

Class Counsel had refused to pay the costs, claiming they were not retained for 'collections' and refusing to disclose whether their retainer included a standard costs indemnity.

The court found it was not functus officio because the lack of a costs indemnity was new and critical evidence that contradicted the standard practice and representations made at certification.

Relying on Rule 59.06, its inherent jurisdiction, and section 12 of the Class Proceedings Act, the court varied the costs order to add Class Counsel as a party responsible for payment.

The plaintiff, a Global Strategic Client Executive earning approximately $760,000 annually, brought a motion for summary judgment for damages arising from his termination without cause by Oracle Canada ULC.

The court awarded 12 months of reasonable notice based on the Bardal factors, including the character of his specialized employment, his age (61), short length of service (3.7 years), and Oracle's failure to provide a meaningful letter of reference.

The court rejected Oracle's mitigation argument as unsupported by affirmative evidence.

The plaintiff was awarded damages for base salary, commissions (calculated on a three-year average), benefits (10% of base salary), and RRSP matching contributions (6% of base salary), less working notice and mitigation income.

The court also awarded punitive damages equal to the withheld commissions for Oracle's breach of the duty of good faith in failing to pay statutory entitlements during the notice period and maintaining an untenable legal position without explanation.

The court rendered a costs endorsement following the decertification of a class action.

The defendants, who were entirely successful in the decertification motion, sought substantial indemnity costs.

The court found the plaintiff's and class counsel's pursuit of the decertification motion to be excessive and unnecessary, particularly given that almost all class members had opted out.

Despite the plaintiff's argument that high costs would chill future class actions and cause financial disaster, the court emphasized the duty of counsel to avoid unnecessary litigation and the expectation of an indemnity agreement for class counsel.

The court awarded the defendants $100,000 in costs, a reduction from their requested amount but still an elevated level, acknowledging the disparity in costs incurred by both parties.

The defendants brought a motion to decertify a class action, arguing that a mass opt-out of 66 out of 69 potential class members meant the action no longer met certification criteria, particularly the "preferable procedure" requirement.

The plaintiff opposed, seeking further production and challenging the class list.

The court found the plaintiff's objections to the class list meritless and an abuse of process, given the late timing.

It held that with only one or a few remaining class members, the class action no longer served the goals of access to justice, judicial economy, or behavioral modification, as individual claims were economically viable and the class action could potentially harm the interests of those who opted out.

The motion to decertify was granted.

The applicant sought judicial review of a Human Rights Tribunal of Ontario (HRTO) decision dismissing his application for lack of jurisdiction.

The applicant alleged he was assaulted by a coworker and subsequently terminated from his temporary assignment, claiming discrimination on various grounds.

The HRTO dismissed the application because the applicant failed to allege any nexus between a protected ground under the Human Rights Code and the alleged discriminatory conduct.

The Divisional Court found the HRTO's decision reasonable and concluded there was no denial of procedural fairness, as the HRTO acted in accordance with its rules.

The application for judicial review was dismissed.

At a case conference in a certified class action, the parties discussed scheduling upcoming motions.

The plaintiff sought to amend the Statement of Claim to add unjust enrichment, which the defendants opposed as it could impact the certification analysis.

The defendants proposed a motion to decertify the action due to a low number of class members.

The court scheduled the decertification motion for April 2023 and directed the plaintiff to defer their motion to amend until after the decertification motion is decided.

This case conference addressed three issues in a class action: the plaintiff's counsel's use of the defendants' corporate logo, the opt-out deadline for class members, and the defendants' communications with class members.

The court directed the plaintiff's counsel to cease using the logo to avoid confusion, set a revised opt-out deadline of April 3, 2022, and found no evidence of misconduct in the defendants' communications, noting that a high opt-out rate was foreseeable due to the nature of the claim.

Following a motion for further document production where the defendant was largely successful, both parties sought costs.

The defendant claimed approximately $16,000 on a partial indemnity basis, while the plaintiff argued for a portion of his costs.

The court found the defendant's claimed costs grossly excessive for a simple production motion and fixed costs at $3,000 payable by the plaintiff, with an extended time to pay due to the COVID-19 pandemic.

The plaintiff in a wrongful dismissal action brought a motion under Rule 30.06 of the Rules of Civil Procedure for an order requiring the defendant to serve a further and better affidavit of documents.

The court applied the test from Bow Helicopters, noting that a motion for a further and better affidavit requires evidence that specific documents exist that have not been produced, rather than mere speculation.

The court found that the defendant had complied with its production obligations and that the plaintiff failed to provide evidence of specific missing documents.

The motion was dismissed, and the plaintiff was directed to resume the examination for discovery of the defendant's representative.

Following the dismissal of the plaintiffs' motion for the production of emails protected by solicitor-client privilege, the parties submitted written arguments on costs.

The defendant sought $16,190 on an actual indemnity basis, noting an unaccepted offer to settle the motion for $5,775.

The court applied the principles of reasonableness and proportionality, awarding the successful defendant $12,000 inclusive of disbursements and taxes.

The plaintiffs brought a motion seeking the production of a chain of emails between the defendant's counsel and the defendant.

The defendant opposed the motion on the grounds of solicitor-client privilege.

After a confidential review of the emails, the court found that the communications involved instructions and legal advice between a solicitor, his law firm, and their client, and were intended to be confidential.

The motion for production was dismissed.

The plaintiff brought a motion to compel the defendants to produce a 12,000-page 'JDIMI Production Report with Lead Sheet' in a dispute over earn-out payments following the sale of an insurance business.

The defendants resisted, arguing the plaintiff was on a fishing expedition and that the documents contained confidential client information.

The court granted the motion, finding that the documents were relevant, easily producible, and that the defendants' confidentiality concerns could be addressed through a comprehensive confidentiality agreement.

This is a costs endorsement following Daniel Sherk's successful motion to compel production of backup tapes.

The court found that the plaintiffs failed to comply with disclosure obligations under the Rules of Practice and the Sedona Principles, necessitating Daniel Sherk to incur significant costs for an audit.

The court awarded Daniel Sherk substantial indemnity costs, including indemnification for the $200,000 paid to Deloitte for the audit, totaling $46,854.92 for the motion itself.

This endorsement addresses the plaintiff's request for partial indemnity costs following a successful motion for answers to undertakings and waiver of privilege.

The court found the plaintiff was justified in bringing the motion, and the defendants' resistance unnecessarily complicated the proceedings.

Applying Rule 57.01(1), the court awarded the plaintiff partial indemnity costs and assessed disbursements.

The plaintiff former employee brought a motion to compel the defendant employer to answer questions refused on discovery and produce documents over which the defendants claimed solicitor-client privilege.

The defendants had produced certain emails between their lawyer and a senior employee in their affidavit of documents and answered questions about them on discovery, later claiming the disclosure was inadvertent.

The court found the disclosure was not inadvertent and that the defendants could not selectively waive privilege to support their defence of acting in good faith while withholding other communications on the same issue.

The motion was granted, and the defendants were ordered to produce all related communications.

The defendant Daniel Sherk brought a motion to compel the plaintiffs (Verge Insurance Brokers Limited et al.) to produce remaining backup tapes and a revised affidavit of documents, and to indemnify him for costs incurred in reviewing previously produced tapes.

The court found that the plaintiffs had a positive duty to review and produce relevant documents from their backup tapes, as per a prior order by Quinn J. and the Sedona Principles.

The plaintiffs had failed to do so, despite earlier sworn statements by Mark Sherk.

The court ordered the plaintiffs to indemnify Daniel Sherk for the costs of Deloitte's prior work and to forthwith restore and review the remaining 66 backup tapes, producing an amended affidavit of documents.

The court also rejected the plaintiffs' arguments regarding leave to bring the motion and proportionality of costs, noting the high stakes of the litigation.

The appellants, a terminated insurance agent and his company, appealed the dismissal of their claim against Sun Life for post-termination commissions under the Commissions on Release (CORe) program.

The CORe agreements stipulated that payments would cease if the agent induced clients to replace their policies.

The appellant transferred over 600 clients to a new business, prompting Sun Life to terminate the payments.

The Court of Appeal held that the termination clause was an enforceable forfeiture provision, not a penalty, and that the appellants were not entitled to equitable relief from forfeiture given their flagrant breach of the agreement.

This endorsement addresses the costs of a motion where the applicants sought an advance payment for shares in a family business.

The applicants were largely successful in obtaining a substantial advance payment, significantly more than the respondents' offers to settle.

Despite some divided success on ancillary requests, the court found the applicants to have achieved substantial success on the primary issue.

The court fixed costs on a partial indemnity basis, awarding the applicants $60,000 for fees and $5,948.49 for disbursements, payable within 30 days, declining to defer the costs decision to the trial judge.

The applicant filed a human rights application alleging disability discrimination, failure to accommodate, and constructive dismissal.

He subsequently commenced a civil action in the Superior Court of Justice relying on the same facts and seeking damages for breaches of the Human Rights Code.

The respondent requested that the application be dismissed pursuant to s. 34(11) of the Code.

The Tribunal found that the applicant raised the same facts and issues in his civil action and sought remedies for them, triggering s. 34(11).

The application was dismissed as being outside the Tribunal's jurisdiction.