Sarah Elise Whitmore

In an addendum to a previous endorsement granting the plaintiffs an extension of time to seek leave to appeal a certification decision, the Divisional Court provided directions on the contents of the motion record.

Noting that motions for leave to appeal are now heard in writing by a three-judge panel, the court emphasized the need for counsel to collaborate and file a circumspect, necessary record rather than an extensive one.

The deadline for the plaintiffs to serve and file the record was extended to allow for this collaboration.

The defendants brought a motion to quash the plaintiffs' appeal of a class action certification order that excluded U.S. defendants.

The plaintiffs brought cross-motions for an extension of time to seek leave to appeal the exclusion of the U.S. defendants and the refusal to certify redundant causes of action.

The Divisional Court granted the motion to quash, finding that leave to appeal was required.

The court dismissed the plaintiffs' motion for an extension of time regarding the U.S. defendants, but granted the extension of time regarding the redundant causes of action due to a conflicting decision in a parallel Alberta proceeding.

The appellants appealed a Superior Court judgment finding that a contract existed between the parties requiring the contractor to bill actual costs plus a 25% markup, and that the contractor had engaged in fraudulent invoicing, overcharging, and double-charging for HST.

The Court of Appeal upheld the motion judge's findings, rejecting the appellants' argument that the work was performed on an ad hoc basis without a formal agreement.

The court found it inconceivable that a two-and-a-half-year project costing over six million dollars with architect plans and a site supervisor could have been conducted without a clear contractual arrangement.

The appeal was dismissed with costs awarded to the respondent.

This is a costs endorsement following an appeal decision dated June 30, 2017.

The appellants (Iranian government entities) appealed orders from the Superior Court of Justice.

The Court of Appeal dismissed most appeals but allowed appeals in actions commenced by certain respondents, striking those actions.

The court awarded costs to the respondents on a partial indemnity basis, rejecting the appellants' argument that no costs should be awarded due to novel issues and declining to award substantial indemnity costs or costs to respondents whose actions were struck.

Following a certification motion in a proposed class action by former junior hockey players seeking minimum wage and overtime pay, the court determined the costs awards.

The plaintiffs succeeded in certifying the action against the Canadian teams but failed against the American teams.

The court awarded the plaintiffs $1,212,065.63 in partial indemnity costs, with $500,000 payable forthwith and the balance in the cause.

The American teams were awarded $200,000 in costs, which the court ordered to be credited against the plaintiffs' award, akin to a Bullock or Sanderson order, reflecting that both sides were responsible for the excessive litigation expense.

The appellants (Iran and related entities) appealed orders of the Superior Court of Justice recognizing and enforcing U.S. judgments obtained by victims of terrorism against Iran for its sponsorship of terrorist attacks.

The respondents sought to enforce these judgments in Ontario under the Justice for Victims of Terrorism Act (JVTA) and amendments to the State Immunity Act (SIA).

Iran challenged the recognition and enforcement of the judgments on multiple grounds, including arguments regarding state immunity, the temporal scope of the JVTA, proof requirements, limitation periods, jurisdiction, public policy, diplomatic immunity, and the appropriateness of costs awards.

The Court of Appeal dismissed Iran's appeal, save for judgments arising from terrorist attacks that occurred prior to January 1, 1985, which could not be enforced under the JVTA.

The applicants sought a declaration of exclusive use over a right-of-way (ROW) connected to their property and permanent injunctions against the Ontario Heritage Trust (OHT) and Nicola Ross.

The OHT, as the servient tenement owner, permitted public access to the ROW, which also served as access to the Bruce Trail.

The court dismissed the application, finding that the easement did not grant exclusive use to the applicants and that there was no substantial interference with their rights.

The court also found the applicants lacked "clean hands" due to misleading evidence and dismissed the injunction claim against Ms. Ross, noting her statements were consistent with OHT's position and not made with malice.

Following the dismissal of Iran's motions to set aside default judgments and a Mareva injunction, the plaintiffs sought costs.

Iran argued it was immune from costs orders under the State Immunity Act and the Justice for Victims of Terrorism Act.

The court held that Iran was not immune from costs and awarded the plaintiffs costs on a partial indemnity basis, finding the claimed amounts reasonable given the complexity and high stakes of the proceedings.

The defendants sought leave to appeal an interlocutory order approving the plaintiff's discovery plan in a class action for unpaid overtime.

The defendants argued the order conflicted with established principles of relevance in class actions.

The Divisional Court dismissed the motion, finding no reason to doubt the correctness of the motion judge's decision on relevance and concluding it was not desirable to grant leave.

The applicants brought a motion to strike portions of the respondents' affidavits filed in a pending application regarding a right of way dispute and defamation claims.

The applicants argued the impugned paragraphs contained irrelevant, prejudicial, and hearsay evidence.

The court dismissed the motion, finding that the evidence was either withdrawn from objection by the applicants or was admissible as it went to the respondents' state of mind, responded directly to issues raised by the applicants, or provided relevant narrative history rather than being offered for the truth of its contents.

The plaintiffs, victims of terrorist attacks sponsored by Iran, sought to enforce U.S. judgments against Iran in Ontario under the Justice for Victims of Terrorism Act (JVTA).

Iran brought motions to set aside or stay the default judgments and a Mareva injunction, arguing state and diplomatic immunity, limitation periods, and public policy.

The court dismissed Iran's motions, finding that the State Immunity Act and JVTA removed Iran's jurisdictional and enforcement immunity, the actions were not statute-barred, and the U.S. judgments met the criteria for recognition in Canada.

The court also granted summary judgment to the Bennett plaintiffs to enforce their U.S. judgment against Iran's non-diplomatic property in Ontario.

The plaintiff appealed a motion judge's refusal to approve a class action settlement regarding alleged copyright infringement by the defendant's online legal database.

Following Supreme Court of Canada decisions that significantly enhanced the defendant's fair dealing defence, the parties agreed to a settlement including a cy-près payment and a non-exclusive licence from class members.

The Divisional Court allowed the appeal and approved the settlement, finding the motion judge erred in characterizing the licence as a property right and in elevating the standard for settlement approval by introducing 'institutional fairness' as a new factor.

The moving parties sought costs of $11,097.22 on a partial indemnity basis after successfully obtaining an adjournment of a judicial review application.

The applicant opposed the costs, arguing they should be assessed later or denied.

The court found the motion was entirely avoidable and necessitated by the applicant's unreasonable refusal to consent to the adjournment.

The court awarded costs to the moving parties but reduced the amount to $6,000, finding the time spent on the motion materials excessive.

The moving parties sought costs of $11,097.22 on a partial indemnity basis after successfully obtaining an adjournment.

The respondent opposed the costs, arguing they should be assessed later or denied due to alleged delays.

The court found the motion was entirely avoidable and necessitated by the respondent's unreasonable refusal to consent to the adjournment.

Applying the principles of proportionality and reasonableness, the court fixed costs at $6,000 inclusive of disbursements and HST.

The representative plaintiff in a class action sought leave to appeal an order refusing to approve a settlement and class counsel fees.

The Divisional Court granted leave to appeal, finding good reason to doubt the correctness of the motions judge's decision.

The motions judge arguably erred by adding a new criterion of 'institutional fairness', mischaracterizing a non-exclusive licence as a property right, failing to consider the high-risk nature of the litigation, and incorrectly concluding he had no authority to alter class counsel fees.

The appeal raises important issues regarding settlement approval factors and copyright law.

The defendants sought leave to appeal an order certifying a class proceeding for unpaid overtime on behalf of approximately 7,800 employees.

The defendants argued the certification decision conflicted with appellate authority regarding systemic practices and misclassification.

The Divisional Court dismissed the motion for leave to appeal, finding no conflicting decisions and no good reason to doubt the correctness of the motion judge's order, as the plaintiff had properly framed the case around a systemic policy rather than individual misclassification.

The plaintiff in a certified class action brought a motion to strike the defendants' reply factum filed on a motion for leave to appeal.

The plaintiff argued the reply factum violated Rule 61.03.1(11) of the Rules of Civil Procedure by re-arguing issues rather than responding to new issues.

The Divisional Court agreed, finding that the plaintiff's responding factum did not raise new issues but merely responded to the defendants' original arguments.

The motion was granted, the reply factum was struck, and costs of $5,000 were awarded to the plaintiff.

This costs decision followed a successful certification motion in a proposed class proceeding.

The moving party sought substantial indemnity costs after the date of a Rule 49 offer, arguing that the certification result met or exceeded the offer terms.

The court accepted that submission, adjusted counsel hourly rates to conform with the costs grid, removed a legal research disbursement, reviewed comparable historical certification costs awards, and fixed fair and reasonable costs at $175,000 all-inclusive.

After deducting prior costs awarded to the responding parties on a refusals motion, the court ordered payment of $161,500 forthwith.

On a certification motion in a proposed overtime class action against a federally regulated trucking employer, the court held that the claim was not framed as a misclassification case requiring individualized overtime entitlement determinations, but as a systemic challenge to the employer’s overtime policies, practices, and record-keeping.

Applying the s. 5(1)(c) commonality requirement under the Class Proceedings Act, 1992, the court found some basis in fact for most proposed common issues, including contractual incorporation of overtime obligations, alleged systemic avoidance of overtime, good faith duties, negligence-based record-keeping duties, unjust enrichment, the effect of an Assurance of Voluntary Compliance, class-wide liability, aggregate damages, and punitive damages.

The court refused to certify issues that depended on individual proof of actual overtime entitlement or that were too broad or unnecessary.

The action was certified as a class proceeding.

The appellant and respondent reached a settlement in a copyright infringement class action, which the motion judge refused to approve.

The appellant appealed the refusal to the Court of Appeal.

The Court of Appeal quashed the appeal, holding that an order refusing to approve a class action settlement is an interlocutory order, not a final order, because the litigation continues and the merits of the case remain to be determined.

Therefore, jurisdiction to hear the appeal lies with the Divisional Court, with leave, rather than the Court of Appeal.