Sarah Elise Whitmore

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.

This decision concerns a motion for pre-approval of a settlement in a national class action alleging price fixing in the packaged bread market in Canada.

The Ontario plaintiffs reached a $500 million settlement in principle with several defendants, including Loblaw Companies Limited and George Weston Limited, subject to court approval in both Ontario and Quebec.

The court approved the notice plan, opt-out and objection procedures, and the appointment of a settlement administrator, and set a hearing date for final approval.

The order amends the class definition and certification for settlement purposes only, and provides for the administration and notice of the settlement to class members.

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.

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.

This decision addresses an omnibus motion and cross-motion within a certified class proceeding concerning the employment status of Uber drivers and delivery people.

The court granted Uber's request to certify an additional common issue, which clarifies the possible classifications of the relationship between Uber and class members (customer, independent contractor, or employee).

The court dismissed the plaintiffs' request to certify a common issue regarding the validity of the Class Action Waiver, finding that no cause of action had been pleaded to support such a claim.

The enforceability of the Class Action Waiver will not be determined at the common issues trial but may be addressed at individual issues trials.

The Ontario Superior Court of Justice addressed disputes regarding the Notice of Certification and Notice Plan in a certified class proceeding against Uber.

The plaintiffs, representing drivers and delivery people seeking employee classification, proposed a notice plan.

Uber responded with alterations, including broader newspaper publication and inclusion of its defence commentary.

The court largely sided with Uber, approving a more robust, province-wide notice plan sensitive to language and diversity, and requiring the inclusion of Uber's legal position in the notices.

The court also apportioned the costs of newspaper notices 33% to the Plaintiffs and 67% to Uber.

The Canadian Imperial Bank of Commerce appealed three lower court decisions in a class action initiated by Dara Fresco on behalf of 31,000 customer service employees.

The class action alleged that the Bank's overtime policies and record-keeping practices led to uncompensated overtime, contrary to the Canada Labour Code.

The Court of Appeal for Ontario dismissed all three appeals.

It upheld the motion judge's interpretation of "permitted" overtime under s. 174 of the Code, affirming that the Bank's policies and record-keeping were "institutional impediments" to proper compensation.

The Court also confirmed the certification of aggregate damages, ruling that the Supreme Court's Pro-Sys decision allowed the trial judge to reconsider this issue despite a previous refusal at certification.

Finally, the Court upheld the motion judge's decision to defer a class-wide limitations order and a constitutional question regarding the extra-territorial application of the Class Proceedings Act, deeming them premature.

Dara Fresco, the representative plaintiff in a class action, moved to quash two aspects of the Canadian Imperial Bank of Commerce's appeals from a judgment on common issues.

Fresco argued that the issues concerning limitation periods and aggregate damages were only appealable to the Divisional Court with leave, not the Court of Appeal.

The Court of Appeal dismissed the motions to quash, holding that it had jurisdiction over all aspects of the appeals under s. 30(3) of the Class Proceedings Act, 1992, as the determinations on limitations and aggregate damages were part of the judgment on common issues.

This decision addresses cross-motions for summary judgment on damages issues in a class action for unpaid overtime.

The court previously found the defendant bank liable for breaching federal labour law regarding overtime.

In this stage, the court considered common issues related to unjust enrichment, remedies, and punitive damages, and crucially, whether to add aggregate damages as a common issue.

The court found that while the defendant was enriched, restitutionary relief was not available due to the breach of contract claim.

Punitive damages were denied as the bank's conduct, though careless, did not meet the "malicious, oppressive and high-handed" standard.

Most significantly, the court certified aggregate damages as a new common issue, finding a "reasonable possibility" that the plaintiff's proposed methodology, based on time-stamped computer data, could determine damages without individual proof, despite previous appellate court reservations about sampling.

The determination of the final aggregate damages quantum was adjourned pending expert reports and data access.

The appellants sought to enforce a mandatory arbitration clause in their standard form services agreement, requiring the respondent to resolve any dispute through mediation and then arbitration in the Netherlands under ICC Rules at an up-front cost of approximately US$14,500.

The majority held that the arbitration clause was unconscionable, as there was a clear inequality of bargaining power between a large multinational corporation and a low-income delivery driver, and the resulting arbitration agreement was improvident in that the prohibitive fees effectively denied the respondent any meaningful access to dispute resolution.

The Court also clarified the framework for determining when a court, rather than an arbitrator, should resolve challenges to arbitral jurisdiction, holding that a court may depart from the general rule of arbitral referral where there is a real prospect that the challenge would never be resolved if referred to arbitration.

A concurring judgment by Brown J. agreed with dismissal but preferred to ground the result in public policy rather than unconscionability, finding that the arbitration clause imposed undue hardship by barring access to a legally determined dispute resolution.

Côté J. dissented, reasoning that the arbitration clause was valid, that the Court of Appeal erred in applying the Arbitration Act rather than the International Commercial Arbitration Act, and that the appropriate remedy, if any, was a conditional stay requiring Uber to advance the initiation fees.

Walsh Construction Company Canada (WCC) brought a motion to compel the Toronto Transit Commission (TTC) to produce approximately 1,600 documents over which TTC claimed litigation privilege.

The court applied the "dominant purpose" test for litigation privilege, conducting a contextual analysis of when litigation was reasonably contemplated and whether the documents were created primarily for litigation or for other purposes such as contractual claims review, project completion, or budget management.

The court found that while litigation was anticipated, many documents served multiple purposes, and TTC failed to establish dominant litigation purpose for a significant portion of the disputed documents.

The court ordered the production of most documents, with specific exceptions for those genuinely created for the dominant purpose of litigation or solicitor-client privilege, and provided directions for redactions.

The appellant brought a proposed class action on behalf of Uber food delivery drivers, claiming they were employees entitled to protections under the Employment Standards Act, 2000 (ESA).

The service agreement required arbitration in the Netherlands under ICC Rules.

The motion judge granted a stay in favour of arbitration.

The Court of Appeal allowed the appeal, finding the arbitration clause invalid on two independent grounds: (1) it constituted illegal contracting out of an employment standard (the complaint investigation process under s. 96 of the ESA), contrary to s. 5(1) of the ESA; and (2) it was unconscionable at common law due to prohibitive costs (US$14,500 upfront), significant inequality of bargaining power, and the absence of independent legal advice.

The court held that validity of arbitration agreements is a matter for the court to determine under s. 7(2) of the Arbitration Act, 1991, not the arbitrator.

The appellants, owners of a residential property in Caledon, Ontario, appealed a decision dismissing their application against the Ontario Heritage Trust and a local resident.

The appellants' property is accessible only via a 1 km driveway through parkland owned by the OHT, over which they hold an easement for ingress and egress.

The appellants claimed the easement granted them exclusive use of the driveway and sought to prevent public access by hikers using trails on the OHT property.

The court upheld the lower court's decision, finding that the deed of easement did not grant exclusive use, that public use by hikers did not substantially interfere with the appellants' easement rights, and that an injunction against the publication of a hiking guide was not warranted.

The moving parties sought an extension of time to file a motion to set aside a security for costs order made by Gillese J.A. The order required each moving party to post $15,000 as security for costs in their appeal from a lower court decision.

The motion was brought almost seven months after the deadline prescribed by Rule 61.16(6), which requires service and filing within four days of the order.

The court dismissed the motion, finding that while the moving parties had formed a bona fide intention to challenge the order within the required timeframe, the lack of merit in the proposed motion and significant prejudice to the respondent outweighed these factors.

The court emphasized the respondent's history of unpaid costs orders and the vexatious nature of the litigation.