Zohaib I. Maladwala

Two class action proceedings—one against TELUS Communications Company and related entities, and one against Bell Mobility Inc.—were brought by plaintiffs alleging that the defendants engaged in similar practices of rounding up seconds to minutes on cell phone bills.

The defendants moved to consolidate the two actions for trial or summary judgment.

The court granted the motion to hear the two summary judgment motions consecutively in a single three-week block of hearing time, finding that the common issues were identical and that separate proceedings would create an unnecessary multiplicity of litigation and risk inconsistent findings.

However, the court determined that the case management judge would not preside over the summary judgment motions, as the principles underlying Rules 37.15(1) and 77.06(2)—which prohibit a case management judge from presiding at trial without consent—apply equally to summary judgment motions.

This costs endorsement addresses the Plaintiff's entitlement to costs following an unsuccessful motion by the Defendants to amend the certification of a class action.

The court awards the Plaintiff $150,000 in costs, finding the Defendants' objections unpersuasive, particularly in the absence of their own Bill of Costs for comparison.

The court commends Plaintiff's counsel, especially Ms. Nayerahmadi, for effective advocacy.

The court dismissed TELUS’s motion to amend the certification order in a class action regarding alleged systematic overbilling of mobile phone customers.

TELUS sought to decertify aggregate damages as a common issue and to require individual inquiries into class membership, arguing that business and consumer customers could not be reliably distinguished.

The court found that TELUS’s arguments and evidence were not new and had already been addressed at certification.

The court reaffirmed that TELUS’s internal records and account types provide a sufficiently reliable basis for distinguishing between business and consumer customers, and that any residual issues can be managed administratively after the common issues trial.

The Court of Appeal for Ontario considered appeals and cross-appeals from a certification decision in a proposed class action regarding alleged defects in BMW vehicles equipped with N20 engines.

The court found that the certification judge erred in certifying causes of action for negligent design/manufacturing resulting in repair costs and in defining the class to include persons who incurred such costs.

The court held that neither of the proposed representative plaintiffs had a valid cause of action and set aside the certification order.

The Court of Appeal for Ontario considered an appeal and cross-appeal, along with motions to quash.

The parties agreed that the appeal and cross-appeal were sufficiently interrelated to be heard together to avoid duplication and ensure consistency.

Consequently, the court, on consent, dismissed both motions to quash without costs, ordering the consolidated appeal and cross-appeal to proceed.

The appellants sought to certify a class proceeding against pharmaceutical companies for negligently manufacturing valsartan, alleging contamination with NDMA and NDEA, which are potential carcinogens.

The claim was for damages related to an increased risk of cancer, costs of medical services and monitoring, refunds for drugs, and psychological damages.

The motion judge dismissed the certification, finding no viable cause of action based on concrete injury.

The Court of Appeal dismissed the appeal, affirming that claims for genotoxic injury (molecular changes without perceptible effect), psychological harm (not meeting the 'serious and prolonged' or 'ordinary fortitude' thresholds), and pure economic loss (as the product was discarded and not imminently dangerous) were not compensable in tort.

The court also upheld the dismissal of claims for battery, consumer protection breaches, Competition Act breaches, and unjust enrichment, concluding that the pleadings did not disclose viable causes of action or meet commonality criteria for certification.

This is a motion to discontinue a proposed class action concerning automobile airbags that had been recalled.

The action, which had not been certified, sought compensation for pure economic loss.

Due to developments in case law, particularly the Supreme Court of Canada's clarification on pure economic loss for defective products, the litigation risk increased, and the prospects for certification and substantial economic recovery diminished.

Class Counsel sought leave to discontinue the action with prejudice and without costs.

The court granted the motion, finding that the action was commenced for a proper purpose, the test for discontinuance was satisfied, and putative class members were not prejudiced, as limitation periods remained suspended.

This is a class action certification motion concerning allegedly defective N20 engines in BMW vehicles.

The plaintiffs sought to certify a class of owners/lessees of BMW vehicles with these engines, alleging design and/or manufacturing defects causing sudden loss of power.

The court analyzed the five certification criteria under the Class Proceedings Act, 1992.

While a cause of action in negligence was found, it was significantly narrowed to exclude claims for pure economic loss, limiting recovery to repair costs for actual damage or to avert imminent damage.

The proposed class definition was also narrowed to include only those who incurred such repair expenses by the judgment date.

One of the two proposed representative plaintiffs was deemed unsuitable as she had no recoverable loss.

The motion for certification was granted, but with substantial limitations on the scope of the class and the recoverable damages, and with only one representative plaintiff.

The plaintiffs sought to certify a class action against the defendant pharmaceutical companies for manufacturing and distributing valsartan contaminated with NDMA and NDEA, which are probable human carcinogens.

The plaintiffs claimed damages for psychological harm and pure economic losses (medical bills, medical monitoring, refunds, and wasted pills) arising from the increased risk of being diagnosed with cancer, but explicitly did not claim damages for actually developing cancer.

The court dismissed the certification motion, finding that the law does not recognize a cause of action for the mere creation of risk or for pure economic loss from shoddy but not imminently dangerous goods, and therefore the claims failed to satisfy the cause of action, common issues, and preferable procedure criteria.

The plaintiffs sought judicial approval of a $25 million settlement in two pharmaceutical class actions alleging that the diabetes drug PIO caused bladder cancer and that the defendants failed to warn of this risk.

The court initially raised concerns about the settlement amount compared to a $2.4 billion U.S. settlement, but approved it after class counsel provided evidence of recent scientific studies undermining causation and differences in market size and litigation risk.

The court also approved class counsel's 30% contingency fee and awarded a reduced honorarium of $1,500 to each representative plaintiff.

This case conference endorsement addressed three scheduling matters in ongoing class action litigation: an upcoming motion regarding costs ordered by the Supreme Court of Canada, a motion to revise the certification order, and the discovery plan and schedule.

The court established a specific timeline for the costs motion and examinations for discovery, and scheduled a further case conference to review progress on the certification amendment motion.

The plaintiffs, trustees of a pension fund, commenced a class action in Ontario and a similar one in Federal Court.

Settlements were reached with some defendants in the Federal Court action.

The plaintiffs sought court approval to discontinue the Ontario action, with prejudice and without costs, in favour of the Federal Court proceedings.

The court granted the motion, finding no prejudice to putative class members as their claims would continue in the Federal Court, and that discontinuing the Ontario action would avoid a multiplicity of proceedings.

The appellant appealed the striking of his wrongful termination claim against the respondent employer.

The claim was struck by the motions judge under Rule 21.01(1)(a) of the Rules of Civil Procedure on the basis that it was barred by the two-year limitation period under the Limitations Act.

The appellant had been terminated on October 6, 2015, and was required to commence his action by October 6, 2017.

Although the appellant sent a letter on September 29, 2017, purporting to be a Notice of Action, it did not comply with the formal requirements of Rule 14.03(2) and Form 14C of the Rules of Civil Procedure.

The appellant did not file his Statement of Claim until November 1, 2017, which was outside the limitation period.

The Court of Appeal upheld the striking of the claim and dismissed the appeal.

The plaintiffs in a proposed class action brought a pre-certification pleadings motion to replace a representative plaintiff and add Scarsview Motors Ltd. as a defendant, intending to certify a defendant class of FCA dealers.

Scarsview resisted its addition, arguing prejudice and unsuitability as a representative.

The court granted the plaintiffs' motion, finding the causes of action against Scarsview properly pleaded and its addition necessary to preserve potential remedies related to implied warranties.

The court deferred Scarsview's affidavit evidence regarding prejudice and unsuitability to the certification stage, emphasizing that such issues are best addressed on a proper record at certification, not on a pleadings motion.

Costs were awarded to the plaintiffs.

The plaintiff sought leave under Rule 48.04(1) to bring a motion for the production of new material (third year sales data or supporting documents for existing sales data) from the defendants after the action had been set down for trial.

The court applied the stricter test for leave under Rule 48.04(1), requiring a "substantial or unexpected change in circumstances such that a refusal to grant leave would be manifestly unjust." The court found that the plaintiff's request for new material, arising from the defendants' inability to provide supporting documents for previously disclosed sales data, did not constitute a substantial or unexpected change in circumstances, especially since the plaintiff had not pursued available remedies earlier.

The motion for leave was dismissed, though the plaintiff was permitted to bring a motion for the original supporting documents without leave.

The plaintiffs successfully opposed a motion by the Zimmer defendants to stay their action.

The court awarded the plaintiffs costs of $10,826.50 on a partial indemnity basis, payable "in any event of the cause," acknowledging the novelty and importance of the motion while deferring actual payment until the action's merits are determined.

The defendants, Zimmer GmbH, Zimmer, Inc., and Zimmer of Canada Limited (collectively "Zimmer"), moved for an order staying the individual action brought by the plaintiffs, Heather Ann Crider and Adrian Wilson, against them.

Zimmer argued that the plaintiffs were class members in overlapping medical products liability class actions (McSherry in Ontario and Jones in British Columbia) concerning the "Durom Cup" hip implant device manufactured by Zimmer, and thus their individual claims should be stayed or barred by res judicata.

The court found that while Ms. Crider technically remained a class member in the McSherry action due to compliance with the court-ordered notice plan, she had informally communicated her intent to opt out of the class action to class counsel prior to the opt-out deadline.

The court concluded that Ms. Crider should be permitted to opt out of the McSherry Action, preserving her litigation autonomy, and therefore dismissed Zimmer's motion for a stay.

In a national class action alleging price fixing in the Static Random Access Memory (SRAM) market, the representative plaintiff sought approval of multiple settlement agreements with several defendant manufacturers under the Class Proceedings Act, 1992.

The proposed settlements totalled $3,050,000 and followed earlier settlements with other defendants.

The court considered whether the agreements were fair, reasonable, and in the best interests of the class, and reviewed the proposed distribution protocol, administration protocol, claims administrator appointment, class counsel fees, and representative plaintiff honorarium.

The court approved the settlements, associated distribution and administration plans, class counsel fees and disbursements, and dismissed the remaining claim against the final defendant.

The court accepted the settlements as falling within the zone of reasonableness and consistent with the interests of the class.

Franchisee plaintiffs commenced a proposed class proceeding alleging that the franchisor breached disclosure obligations and interfered with franchisees’ statutory right to associate under the Arthur Wishart Act (Franchise Disclosure), 2000 after converting exclusive territories to non‑exclusive territories.

The franchisor moved to stay the action based on arbitration clauses contained in the franchise agreements.

The plaintiffs argued the statutory right to associate under the Arthur Wishart Act encompassed the right to pursue a class action and therefore invalidated the arbitration clause.

The court held that the Act does not manifest legislative intent to override arbitration agreements and that s. 7 of the Arbitration Act, 1991 requires enforcement of such clauses absent explicit statutory intervention.

Applying Seidel v. TELUS Communications Inc., the court concluded the disputes must proceed by arbitration and stayed the proposed class proceeding.