Sarah Elise Whitmore

In a certified class action regarding the employment classification of Uber drivers and delivery persons, both parties brought motions to compel answers to questions refused during examinations for discovery.

Uber also brought a motion under s. 15(2) of the Class Proceedings Act for leave to examine ten additional class members.

The court dismissed both refusals motions, finding the refused questions were irrelevant to the common issues, overbroad, or lacked foundation.

The court granted Uber's motion to examine the additional class members, finding their evidence regarding individual choices and interactions with the Uber app was highly relevant to the common issues, necessary, and would not cause undue burden.

The examinations were limited to a half day per class member.

The parties brought competing summary judgment motions regarding an Independent Auditor's report on Earn-Out Payments under a Share Purchase Agreement.

The Purchasers argued the auditor committed manifest errors and failed to follow instructions by deferring the choice of EBITDA calculation to the court.

The Superior Court of Justice found that the auditor materially departed from its mandate by failing to determine the EBITDA for the Second Earn-Out Period and directed the auditor to make that determination.

The court also found manifest errors in the auditor's treatment of Kits sales revenue and the starting point for related party sales adjustments, but dismissed challenges to the auditor's treatment of subcontractor costs.

The auditor's report was deemed not final and binding.

The applicant tenant brought an application under Rule 14.05(3)(d) for the interpretation of a commercial lease to determine whether the 'Net Rentable Area' included two mezzanines.

The respondent landlord argued that the mezzanines should be included based on an architect's certificate and expert evidence of standard commercial practice.

The court held that the plain and grammatical meaning of the lease defined a shell and did not contemplate adding the mezzanine floor area to the calculation.

The court rejected the expert evidence as an attempt to rewrite the contract and found the architect's certificate failed to follow the lease's methodology.

The plaintiffs, former and current Home Financing Advisors at Scotiabank, brought a motion to certify a class action alleging the bank failed to properly pay vacation and statutory holiday pay on their commission earnings as required by the Canada Labour Code.

Scotiabank argued its compensation model was all-inclusive and adequately disclosed, and brought a preliminary motion to strike portions of the plaintiffs' expert report.

The court granted the motion to strike portions of the expert report that went beyond the expert's mandate.

However, the court found the plaintiffs met all criteria under s. 5(1) of the Class Proceedings Act, including demonstrating some basis in fact that the compensation documents were confusing and inconsistent.

The action was certified as a class proceeding.

The moving parties, comprising various social media companies including Meta, Snap, and TikTok entities, brought motions for leave to appeal the substantive and costs orders of Leiper J. The Divisional Court granted the motions for leave to appeal without costs and directed the parties to provide an agreed schedule for the exchange of appeal materials.

The court considered whether service of an application record on the Republic of Argentina in a proceeding to enforce a U.S. judgment had to comply with the Hague Convention or could be validly effected through diplomatic channels under the State Immunity Act.

The court held that the State Immunity Act provides three non-hierarchical, alternative methods for service on a foreign state, and that service through diplomatic channels was valid.

The Republic’s motion for a declaration that it had not been duly served was dismissed, and costs were awarded to the applicants.

The plaintiff, Justin Ngan, brought a motion to partially discontinue his claim, amend his pleadings, and certify the action as a class proceeding regarding the calculation of holiday and vacation pay by The Bank of Nova Scotia.

The defendant consented to the motion.

The court granted the orders, finding the amendments and discontinuance reasonable and the class action appropriate for certification.

The class includes employees who received incentive or variable compensation, and the common issues focus on whether such compensation should be included in statutory pay calculations under the Canada Labour Code.

The plaintiff, Toronto District School Board, brought an action in negligence and public nuisance against several major social media corporations, alleging that their products were intentionally designed to be addictive to children and caused widespread mental health and behavioral issues among students.

The Board claimed it suffered direct economic damages in responding to these student harms, including increased costs for mental health services, security, and staff training.

The defendant corporations brought a motion to strike the statement of claim under Rule 21.01(1)(b) of the Rules of Civil Procedure, arguing that the claims had no reasonable prospect of success.

The Ontario Superior Court of Justice dismissed the motion, allowing the Board's novel claims in negligence and public nuisance to proceed.

The plaintiffs brought a motion for a pre-approval order regarding a $500 million settlement in principle with the Loblaw defendants in a national class action alleging a price-fixing conspiracy for packaged bread.

The court granted the order, amending the certification of the Ontario action for settlement purposes only, appointing the settlement administrator, and approving the notice plan and pre-approval notices to inform class members of the settlement and their opt-out or objection rights.

This costs endorsement follows the court’s decision on an application regarding the enforcement of an agreed procedure in a Share Purchase Agreement between CLEAResult Canada Inc. and the respondents.

The court granted the application, allowing the appointed Independent Auditor to proceed with the expert adjudication of the Reverse Earn-Out Calculation.

The parties had agreed that the wholly successful party would be paid $60,000 in costs.

However, due to a lack of clarity in the applicants’ position regarding the auditor’s mandate, the court reduced the costs award to $45,000, to be paid by the respondents.

The applicants sought to enforce a Share Purchase Agreement (SPA) provision requiring an Independent Auditor (BDO) to determine a "Reverse Earn-Out Calculation." The respondents argued that other disputes under the SPA needed court adjudication first, claiming BDO lacked necessary information and that the applicants breached earn-out covenants.

The court held that the expert adjudication by BDO should proceed expeditiously as agreed in the SPA, as it is a distinct process from the respondents' claims for breach of covenants, which can be pursued in a separate action for indemnity.

The court clarified BDO's mandate is limited to financial determination, not factual investigation of covenant breaches, and dismissed the respondents' attempt to have the court direct BDO on information use.

The Plaintiffs brought a motion to reconsider a previous certification ruling that dismissed the action against Maple Leaf Foods Inc. (MLF) in a class action alleging price-fixing.

The Plaintiffs sought to certify the action against MLF, presenting new evidence including a Second Information to Obtain (ITO), MLF's annual reports, Canada Bread's Agreed Statement of Facts (ASF) from a criminal proceeding, and emails from Canada Bread's files.

MLF opposed the motion and brought cross-motions to exclude the new evidence and strike the Plaintiffs' amended claims.

The court dismissed the Plaintiffs' motion, finding that the 'new evidence' was either not new, inadmissible hearsay, or did not substantively alter the lack of a viable cause of action against MLF.

The court emphasized the principle of finality in litigation, stating that a certification dismissal for lack of cause of action is a final order and cannot be revisited without meeting a strict test for new evidence (Sagaz test), which was not met here.

The court also granted MLF's motion to exclude the evidence and strike the amended statements of claim against MLF.

This appeal concerned the quantum of class counsel fees and a representative plaintiff honorarium following a $153 million class action settlement for unpaid overtime.

The motion judge had awarded $25 million in fees and denied a $30,000 honorarium.

The appellants sought an increase in fees to $44 million and the honorarium.

The Court of Appeal dismissed the appeal, upholding the motion judge's discretionary decision on both fees and honorarium, finding no palpable and overriding error or misdirection on law.

This is an appeal from a motion judge's decision denying an anti-SLAPP motion brought by the appellant, Brooke Dietrich, under s. 137.1 of the Courts of Justice Act.

The respondent, 40 Days for Life, an anti-abortion organization, sued Dietrich for defamation, internet harassment, fraud, breach of contract, inducing breach of contract, and civil conspiracy, following her TikTok videos encouraging disruption of their prayer vigils and online operations.

The motion judge found that 40 Days for Life's claims for defamation, internet harassment, and conspiracy had substantial merit and no valid defence, and that the public interest in continuing the action outweighed the public interest in protecting Dietrich's expression.

The Court of Appeal upheld the motion judge's decision, finding no reviewable error in her assessment of the merits of the claims (specifically defamation and conspiracy) or in her public interest balancing.

The Court emphasized that Dietrich's expression, which encouraged disruption and interference with 40 Days for Life's operations, was of low value and not the type of counter-speech protected by anti-SLAPP legislation.

The appeal was dismissed with costs.

Aimia Inc. brought an application under s. 104 of the Securities Act alleging that Mithaq Capital SPC's acquisition of shares a year prior constituted a deemed take-over bid because Mithaq acted jointly with others to exceed the 20% threshold.

Mithaq brought a motion to dismiss the application on a preliminary basis.

The Capital Markets Tribunal found that while Aimia had standing to bring the application, the application was an abuse of process.

The Tribunal dismissed the application because Aimia's long delay in seeking relief, combined with significant intervening events, made the application a misuse of the Tribunal's procedure.

Mithaq Canada Inc. applied to the Capital Markets Tribunal to cease trade a private placement by Aimia Inc., arguing it was an abusive defensive tactic designed to thwart Mithaq's take-over bid.

Mithaq also sought to set aside a decision of the Toronto Stock Exchange (TSX) that conditionally approved the private placement without requiring shareholder approval.

Aimia brought a cross-application to deny Mithaq the use of the 5% exemption for share purchases.

The Tribunal dismissed both applications.

It found that Aimia had a serious and immediate need for financing, and the private placement was negotiated largely before Mithaq's bid became imminent.

Although the private placement altered the bid dynamics, it was not clearly abusive.

The Tribunal also found no grounds to interfere with the TSX's decision, as the TSX did not err in principle and there was no compelling new evidence.

Finally, the Tribunal declined to alter the minimum tender condition or deny Mithaq the 5% exemption, finding no exceptional circumstances or lack of good faith.

Mithaq Canada Inc. applied to the Capital Markets Tribunal to cease trade a shareholder rights plan and a private placement adopted by Aimia Inc., alleging they were improper defensive tactics against Mithaq's unsolicited take-over bid.

Mithaq sought interim relief pending the full hearing.

The Tribunal ordered that the private placement be cease traded unless Aimia undertook that any securities issued under it would not be tendered to any alternative take-over bid or issuer bid.

The Tribunal dismissed Mithaq's requests for additional undertakings, including requiring Aimia to segregate the private placement proceeds or assume responsibility for investor breaches.

The plaintiffs in a certified class action against Uber sought leave to amend their statement of claim and add a new common issue challenging the validity of Uber's amended arbitration clause and class action waiver.

The court dismissed the motion, finding it to be an abuse of process because the plaintiffs were attempting to re-litigate the validity of the arbitration clause for the fourth time.

Although the court found the newly pleaded cause of action was not statute-barred and satisfied the cause of action criterion, it held that the proposed common issue failed the common issues, preferable procedure, and representative plaintiff criteria because it presupposed an employment relationship that had not yet been determined at the common issues trial.

This class action, alleging employee misclassification and breaches of provincial employment standards, settled for $2.4 million after almost eight years of litigation.

The court approved the settlement amount, class counsel's legal fees, payment to the Class Proceedings Fund, and the distribution method.

The representative plaintiff's requested honorarium of $20,000 was reduced to $8,000, as his involvement, while excellent, was not deemed "truly extraordinary" but did involve some personal and financial hardship.

The class period was also extended for settlement purposes.

At a case management conference in a certified class proceeding against Uber, the court considered whether to schedule the plaintiffs' proposed motions to amend their statement of claim and certify an additional common issue regarding an arbitration and class action waiver clause.

The defendants had already brought a motion to amend the class action notices.

Pursuant to section 12 of the Class Proceedings Act, 1992, the court exercised its discretion to allow the plaintiffs' motions to be scheduled and heard together with the defendants' motion, and set a timetable for the delivery of materials and the hearing.