Timothy O'Gorman Buckley

The defendants sought leave to appeal a class action certification decision concerning alleged price-fixing of colour display tubes.

The motion for leave to appeal raised three main issues: whether an unlawful means conspiracy claim could be based on the Competition Act, whether "umbrella purchasers" had a viable cause of action, and whether the methodology for establishing class-wide harm met the "credible and plausible" standard.

The court granted leave to appeal on the issue of umbrella purchasers due to conflicting jurisprudence and concerns about indeterminate liability, but denied leave on the other two issues, finding the certification judge applied the correct test for common issues and that the Competition Act is not a complete code precluding common law claims.

Following a successful motion by the defendants to prevent the plaintiffs from using extra-jurisdictional procedures to acquire documents from non-parties, the defendants sought partial indemnity costs of $75,365.38.

The plaintiffs argued for reduced costs of $15,000, citing the novelty and public interest of the issue under section 31 of the Class Proceedings Act, 1992.

The court rejected the plaintiffs' argument, finding the issue was not legally novel in a way that justified denying costs and noting the plaintiffs' conduct was improper.

The court awarded the defendants their costs as claimed.

In a proposed national class action alleging price-fixing in the foreign exchange market, the plaintiffs obtained an ex parte subpoena in the United States under 28 U.S.C. §1782 to compel pre-certification discovery from a non-party, Bloomberg LP.

The defendants brought a motion to enjoin the plaintiffs from taking any steps in furtherance of the subpoena without authorization from the Ontario court.

The court granted the motion, finding that the plaintiffs had circumvented Ontario's rules and jurisprudence regarding the discovery of non-parties and pre-certification discovery in class actions.

The court held that it has jurisdiction to control its own process and regulate the examination of non-parties for an Ontario action.

The plaintiffs brought a proposed class action alleging that the defendant financial institutions conspired to fix prices in the foreign exchange (FX) market.

The plaintiffs reached settlement agreements with three groups of defendants (Goldman Sachs, JPMorgan, and Citi) totaling $39.25 million.

The plaintiffs moved for an order certifying the action as a class proceeding for settlement purposes against these settling defendants and approving the notice plan.

The court found that the criteria for certification under section 5 of the Class Proceedings Act, 1992 were satisfied and granted the order.

The plaintiffs brought a class action alleging that numerous financial institutions conspired to manipulate the foreign exchange market.

The plaintiffs reached early settlements with three groups of defendants (UBS, BNP, and Bank of America) totaling $15,950,000.

The plaintiffs sought court approval of the settlements and Class Counsel's fee request.

The court approved the settlements, finding them fair, reasonable, and in the best interests of the class, particularly given the litigation risks and the value of the settling defendants' cooperation.

The court also approved Class Counsel's fee request of $3,987,500 plus disbursements.

Telecommunications companies sought leave to appeal certification orders permitting class proceedings concerning cellular phone billing practices.

The proposed class actions alleged that the defendants breached contracts, engaged in deceptive practices contrary to the Consumer Protection Act, 2002, and were unjustly enriched by rounding call durations up to the nearest minute under plans described as billed “per minute.” The moving parties argued that individual contractual contexts prevented the existence of a common issue and that certification was therefore inappropriate.

The court held that the meaning of the contractual phrase “per minute billing” was a common issue capable of resolution across the class, particularly given the standardized and adhesive nature of the consumer contracts.

Leave to appeal was refused and the certification orders were left undisturbed.

The plaintiff was injured in a charity bicycle ride when the defendant swerved and clipped his wheel.

The defendant pleaded volenti and contributory negligence, and served a jury notice.

At trial, the judge struck the jury notice, finding that the jury would be confused by the waiver signed by the participants and the volenti defence.

The trial judge found the defendant entirely liable.

The defendant appealed.

The Court of Appeal allowed the appeal and ordered a new trial, holding that the trial judge erred in principle by striking the jury notice.

The volenti defence is not a claim for declaratory relief, and a properly instructed jury could understand the limited legal effect of the waiver.

Consumers brought proposed class proceedings against wireless service providers alleging that the companies billed cellular calls by rounding up partial minutes to the next full minute without adequate disclosure.

The plaintiffs advanced claims in breach of contract, breach of the Consumer Protection Act, 2002, and unjust enrichment, seeking certification of national and provincial classes.

The court held that the pleadings disclosed viable causes of action and that there was some basis in fact for common issues regarding the interpretation of standardized contracts, alleged misrepresentations about available minutes, and the uniform rounding‑up practice.

The court also held that class proceedings were the preferable procedure given the large class size and relatively small individual claims.

The actions were certified as class proceedings with defined classes and common issues.

The appellants brought a proposed class action against a washing machine manufacturer, alleging that its front-loading machines were defectively designed and prone to developing mould and unpleasant odours.

They sought damages for pure economic loss, asserting claims for breach of express and implied warranties, breach of the Competition Act, negligence, and waiver of tort.

The Court of Appeal upheld the motion judge's decision to dismiss the certification motion, finding that none of the claims disclosed a reasonable cause of action.

Notably, the court held that policy considerations negate recognizing a duty of care in tort for pure economic loss arising from a defective, non-dangerous consumer product.

The respondents suffered property damage when their rented hot water heater leaked.

They brought a subrogated claim in Small Claims Court and were awarded damages.

The appellant's appeal to the Divisional Court was dismissed.

The Court of Appeal dismissed the appellant's further appeal, relying on the reasons given in the companion case of Szilvasy v. Reliance Home Comfort Limited Partnership, which involved the application of s. 9(2) of the Consumer Protection Act, 2002 to the rental of a hot water heater.

The appellant rented a hot water heater to the respondent.

The heater leaked, causing property damage.

The trial judge found the appellant liable based on an implied warranty of fitness, and the Divisional Court dismissed the appeal.

On further appeal, the Court of Appeal held that section 9(2) of the Consumer Protection Act, 2002 applied retrospectively to the rental agreement, importing the implied warranty of fitness from section 15 of the Sale of Goods Act.

The court found the appellant breached this warranty because the water heater was not reasonably fit for its purpose.

The appeal was dismissed.

The plaintiffs brought a motion to certify a product liability class action against Whirlpool for pure economic losses related to allegedly negligently designed front-loading washing machines that were prone to biofilm buildup.

The court dismissed the certification motion, finding it plain and obvious that the plaintiffs had no tenable cause of action in contract, breach of statute, negligence, or waiver of tort.

Specifically, the court held that there is no recovery in negligence for pure economic losses for a shoddy but non-dangerous consumer product.