Ted Brook

The moving party, Telus Communications Inc., brought a motion for leave to appeal the orders of Perell J. dated January 12, 2021 and August 19, 2022.

The Divisional Court dismissed the motion for leave to appeal and awarded costs to the responding party fixed at $5,000 all-inclusive.

The Court of Appeal for Ontario heard motions to quash an appeal of a class certification order in a price-fixing conspiracy case involving packaged bread.

The plaintiffs (appellants) argued the certification order, which defined the class, effectively dismissed claims of excluded persons and was thus a final order appealable under the Courts of Justice Act.

The defendants (moving parties) contended it was a certification order governed by the Class Proceedings Act (CPA) and that, under the CPA's transitional provisions, the appeal should lie to the Divisional Court with leave.

The court found the certification order was a procedural order, not a final one, as it did not decide the ultimate merits of any claim.

Consequently, the appeal provisions of the CPA applied.

Furthermore, the court determined that the pre-2020 amendments to the CPA governed the appeal because the original proceeding was commenced before the amendments came into force.

The appeal to the Court of Appeal was therefore quashed.

The court held a case conference to settle the terms of a certification order following a decision to certify a class action regarding alleged price-fixing of packaged bread.

The court reviewed competing draft orders and approved the producer defendants' draft with specific amendments, including adjustments to the definition of packaged bread, the class definition, and the retention of constructive trust as a common issue.

The appellant appealed the dismissal of her Superior Court action against Canada Post Corporation and Norton Rose Fulbright Canada, which was found to be frivolous, vexatious, and an abuse of process under Rule 2.1.01.

The Superior Court action alleged misconduct by the respondents in a Federal Court proceeding.

The Court of Appeal dismissed the appeal, affirming the application of absolute privilege for statements made in judicial proceedings and the prohibition against collateral attack, finding no arguable merit to the appellant's grounds of appeal, including a recusal request.

This endorsement concerns the costs arising from successful summary judgment motions brought by Eaton Industries (Canada) Company and The Corporation of The City of London against Albert Bloom Limited (ABL).

The motions dismissed ABL's claims as statute-barred.

ABL conceded entitlement to costs but disputed the quantum, alleging duplication and excessiveness, particularly given Eaton's prior cost award in a related third-party motion.

The court found the claimed costs reasonable, noting the significance of the litigation, Eaton's efforts to avoid duplication, and ABL's failure to disclose its own costs for comparison.

The plaintiffs brought a motion to certify a class action against major producers and retailers of packaged bread, as well as their parent companies, alleging a 16-year price-fixing conspiracy.

The court certified the action against the producer and retailer defendants on behalf of direct and indirect purchasers of packaged bread.

However, the court refused to certify the claims against the parent companies, finding no material facts pleaded to support their involvement.

The court also refused to certify claims on behalf of 'umbrella purchasers' (those who bought fresh bread or packaged bread from non-defendants), finding no plausible methodology to prove that the price-fixing of packaged bread caused an actionable increase in the prices of those non-competing or diverse products.

This is a costs endorsement following an appeal decision.

The parties reached an agreement on costs, whereby the respondent, William O’Reilly, was ordered to pay $10,000 to the appellant, Tornado Medical Systems Inc., covering costs for both the appeal and the motion below.

No costs were payable by Dr. Jae Kim.

The moving party sought an extension of time to commence an application for judicial review of two Canadian Human Rights Commission decisions regarding his employment.

The Court applied the Hennelly test and found the moving party had not established a continuing intention to pursue the application, a reasonable explanation for the delay, lack of prejudice to the respondents, or merit to the proposed application.

The motion for an extension of time was dismissed.

This appeal concerned the scope of common employer liability and director liability for unpaid wages under the Business Corporations Act.

The motion judge had found Tornado Medical Systems, Inc. liable as a common employer and Jae Kim liable as a director for unpaid wages and vacation pay.

The Court of Appeal allowed Tornado's appeal, finding that the motion judge erred in her articulation and application of the common employer doctrine by effectively finding liability based on corporate affiliation rather than an intention to create an employment relationship.

The Court dismissed Dr. Kim's appeal, but varied the judgment to make his director liability conditional on the statutory requirements of execution against the corporation being returned unsatisfied or corporate insolvency.

The moving party sought leave to appeal from the order of Glustein J. dated September 9, 2020.

The Divisional Court dismissed the motion for leave to appeal and awarded costs to the responding party fixed at $10,000.

The London Transit Commission (LTC) appealed a motion judge's decision to strike its third-party claim against Eaton Industries (Canada) Company (Eaton) as statute-barred under the Limitations Act, 2002.

LTC argued the motion judge erred in determining when it had actual or constructive knowledge of the claim.

The Court of Appeal dismissed the appeal, affirming the motion judge's findings that LTC had actual or constructive knowledge of its claim against Eaton by May 22, 2013, and failed to exercise due diligence in investigating the contamination.

The court rejected LTC's arguments regarding a general rule for discoverability in environmental claims, continuing torts, and standalone claims, and declined to consider a new argument under the Environmental Protection Act.

The plaintiff brought a proposed class action against the defendant employer for unpaid overtime, initially claiming $100 million.

The parties reached a pre-certification settlement of $7 million, which included a new time-tracking system.

The court certified the action for settlement purposes and approved the settlement, finding it fair and reasonable given the adjusted actual loss, comparable settlements, and the significant litigation risk posed by the COVID-19 pandemic's impact on the travel industry.

The court also approved a $10,000 honorarium for the representative plaintiff due to retaliatory employment consequences, and approved class counsel's 25% contingency fee.

Following a decision removing the plaintiff's counsel in either the class action or individual action and staying the individual action, the successful defendant sought partial indemnity costs of $20,000.

The plaintiff opposed, arguing for no costs or a nominal amount due to divided success and duplication of work.

The court found the defendant was successful on the motion, which involved complex issues of conflict of interest and standing.

After a slight reduction for duplication of research from a prior scheduling motion, the court fixed costs at $16,050 plus disbursements and HST.

The defendant brought a motion to remove the plaintiff's counsel from either the proposed class action or the plaintiff's related individual wrongful dismissal action due to a conflict of interest, and to temporarily stay the individual action.

The court found that counsel's duty of commitment to the plaintiff in the individual action conflicted with the sui generis duty owed to the proposed class members, as the actions shared overlapping issues regarding common employment and vacation pay calculation.

The court ordered counsel removed from one of the actions and temporarily stayed the individual action pending the certification motion.

The defendants, RBC Insurance Agency Ltd. and Aviva General Insurance Company, sought to schedule a motion to stay an individual action and remove plaintiff's counsel due to an alleged conflict of interest, prior to the certification motion for a proposed class action.

The plaintiff, Kabir Singh, opposed this scheduling, arguing these issues should be determined at the certification hearing.

The court, applying section 12 of the Class Proceedings Act, 1992, found that hearing the conflict and stay issues before certification would ensure a fair and expeditious determination, preventing potential delays and issues with adequacy of representation if a conflict were found later.

The court ordered the defendants' motion to be heard before the certification motion.

The third party, Eaton Industries (Canada) Company, brought a motion for summary judgment to dismiss the third party claim of the London Transit Commission (LTC) on the basis that it was statute-barred by the Limitations Act, 2002.

The LTC's third party claim alleged environmental contamination caused by Eaton's predecessors.

The court found that the LTC had actual or ought to have had knowledge of its claim against Eaton by May 22, 2013, when it was served with the plaintiff's statement of claim, and failed to rebut the presumptive limitation period.

The court dismissed the LTC's arguments for a separate limitation period for other damages, concluding all claims were statute-barred.

GF Machining Solutions LLC (GFMS) brought an application seeking judgment for unpaid invoices against Technicut Tool Inc. Technicut responded by commencing a separate action for breach of contract, unjust enrichment, negligence, and negligent misrepresentation, and then brought a motion to convert GFMS's application into an action and consolidate it with Technicut's claims as a counterclaim.

The court found that there were genuine issues of material fact and credibility requiring a trial, particularly concerning the scope of the service contracts, GFMS's performance, and Technicut's alleged damages and right of set-off.

The court granted Technicut's motion, converting GFMS's application into an action and directing Technicut's claims to proceed as a counterclaim within that newly constituted action, while staying Technicut's separate action.

The court also provided detailed procedural directions for the converted action.

The appellants appealed a motion judge's decision granting a stay of proceedings on forum non conveniens grounds.

The motion judge had characterized the claim as one for oppression under the Canada Business Corporations Act and found that Ontario was forum non conveniens because the core dispute involved shareholders' dissatisfaction with internal management decisions of a Quebec-based company.

The appellants argued the motion judge erred by misconstruing their claim as purely oppression and failing to recognize a common law claim for fraudulent misrepresentation with connections to Ontario.

The Court of Appeal dismissed the appeal, finding no error in the motion judge's characterization of the claim or his forum non conveniens analysis.

The Plaintiff sought costs for a successful class action certification motion, requesting $229,283 (partial indemnity) or $343,924 (substantial indemnity).

The Defendant conceded costs were due but argued the amount was disproportionately high, proposing $102,081.10.

The court, exercising its discretion under s. 131 of the Courts of Justice Act and Rule 57.01(1) of the Rules of Civil Procedure, found the Plaintiff's counsel's requested hours (1,094.28) to be excessive for a motion of moderate complexity, despite the importance of the issues for access to justice in a class action.

The court awarded costs to the Plaintiff in the amount of $102,000 plus HST and disbursements, aligning closely with the Defendant's proposed amount as a proportionate level of costs.

The Plaintiff moved for certification of a class action concerning overtime and public holiday pay under the Employment Standards Act, 2000.

The Defendant argued that its employees fell under construction industry exemptions and that some were managers, requiring individual assessments.

The court certified the action, finding that the causes of action were disclosed, an identifiable class existed, common issues were present (including the applicability of ESA exemptions based on the employer's overall output and the minimal nature of supervisory duties), a class proceeding was the preferable procedure, and the representative plaintiff was suitable with a workable litigation plan.