Rita Valda Bambers

The appellant, a class member, sought an extension of time to opt out of a consolidated class action after commencing an individual action without knowledge of the class proceeding.

The motion judge denied the request.

The Court of Appeal for Ontario clarified and affirmed the test for extending the time to opt out: the class member must demonstrate excusable neglect for the delay and show that granting the extension will not result in prejudice to the class, the defendant, or the administration of justice.

The Court found the motion judge erred by not applying this test and by misinterpreting the appellant's evidence.

The appeal was allowed, and the appellant was granted an extension to opt out, as he demonstrated excusable neglect and no prejudice was shown.

This motion concerned an application by The Class Action Clinic, University of Windsor, Faculty of Law, to intervene as a friend of the court in an appeal brought by Donald Parker.

Parker's appeal challenged an unsuccessful motion for an extension of time to opt out of a class action against Her Majesty the Queen in the Right of Ontario, concerning medical care for inmates.

The Clinic sought to provide a framework for determining extensions of time to opt out of class actions.

The court granted the Clinic's motion to intervene, finding that the Clinic could make a useful contribution to the appeal's resolution without prejudicing the parties, given the unsettled legal considerations regarding opt-out extensions in class actions.

Donald Parker appealed a motion judge's refusal to extend his opt-out period from a class action and a related costs order.

Her Majesty the Queen in Right of Ontario moved to quash Parker's appeal, arguing the motion judge's order was interlocutory and thus appealable only to the Divisional Court.

The Court of Appeal dismissed Ontario's motion, holding that the motion judge's order was final because it effectively terminated Parker's individual civil action by denying his substantive right to opt out of the class proceeding.

The court emphasized the importance of opt-out rights as substantive rights.

Donald Parker, a class member, appealed an order denying him an extension to opt out of a class proceeding.

He brought a motion seeking an extension of time to perfect his appeal and permission to include an affidavit from his counsel in the appeal book and compendium (ABC) regarding an unrecorded lower court hearing.

The Court of Appeal granted the extension of time to perfect the appeal and allowed the inclusion of the affidavit, finding it permissible under Rule 61.10(1)(i) of the Rules of Civil Procedure, while noting that the relevance of the affidavit would be determined by the appeal panel.

The Crown sought to stay a Master's order requiring it to file a comprehensive statement of defence to a cross-claim by John Barbro, pending an appeal of that order.

The Crown argued the court lacked jurisdiction over the cross-claim, and that complying with the order would render the appeal moot and potentially breach settlement privilege.

Applying the three-part test for a stay, the court found a serious issue to be tried, that failure to stay would irreparably harm the Crown's appeal by rendering it moot, and that the balance of convenience favored granting the stay.

The motion to stay was granted.

This decision addresses a cost endorsement following an 11-day jury trial where the plaintiff's negligence claim against the defendant, Sears Canada Inc., was largely unsuccessful.

The defendant sought substantial indemnity costs against the plaintiff and a portion of costs against OHIP.

The court dismissed the claim for costs against OHIP, finding that its statutory subrogation claim was not assessed and had no significant impact on the trial.

For the plaintiff, the court considered the defendant's Rule 49 offer to settle, the overriding principle of reasonableness, and various factors under Rule 57.01(1), including the complexity of the case, the amount claimed and recovered, and counsel rates.

The court fixed a reasonable cost award against the plaintiff at $200,000, inclusive of HST, to be paid within 30 days.

The plaintiff was seriously injured when attacked by a rival gang member in a provincial jail.

The plaintiff sued Ontario and others, alleging that a correctional officer was negligent in placing the plaintiff and the assailant in the same unit despite the jail's policy of separating members of the same gang.

The trial judge found for the plaintiff.

On appeal, Ontario argued that the policy negated any duty of care and that the trial judge erred in applying the standard of care and finding causation.

The Court of Appeal dismissed the appeal, holding that the policy did not negate the common law duty of care, that the correctional officer breached the standard of care by failing to consider inmate incompatibility, and that the negligence caused the plaintiff's injuries.