Zohaib I. Maladwala

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.

A case conference was held following a Supreme Court of Canada decision that limited the class to personal users of the defendants' cell phone services.

The defendants intended to bring motions to enforce a costs ruling and revisit the certification order.

The plaintiff sought to proceed with examinations for discovery, while the defendants preferred to wait until after their motions were heard.

The court ordered that the discovery process proceed in tandem with the motions, as the issues raised by the defendants were primarily legal and would not significantly impact the scope of discoveries.

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 plaintiffs appealed a certification order that denied certification of claims for unlawful means conspiracy and claims on behalf of 'Umbrella Purchasers' in a class action alleging a global price-fixing conspiracy for lithium-ion batteries.

The Divisional Court allowed the appeal regarding the unlawful means conspiracy claim, finding it was bound by a recent Court of Appeal decision.

However, the court dismissed the appeal regarding the Umbrella Purchasers, concluding that allowing claims by purchasers who bought from non-defendant manufacturers would expose the defendants to indeterminate liability for economic loss.

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 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.

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.

The plaintiffs brought a motion to certify a class action against several manufacturers of lithium-ion batteries, alleging a price-fixing conspiracy that artificially inflated prices for direct and indirect purchasers in Canada.

The court certified the action solely for the statutory cause of action under section 36 of the Competition Act.

The court excluded 'umbrella purchasers' (those who bought from non-defendants) from the class, finding it plain and obvious they lacked a cause of action due to indeterminate liability and lack of restitutionary basis.

The court also declined to certify the common law claims for unlawful means conspiracy and unjust enrichment, holding that they were precluded by the comprehensive statutory scheme of the Competition Act.

The remaining certification criteria were met for the statutory claim.

The plaintiff brought a motion to certify a class action for settlement purposes against the Toshiba and Etron defendants in a price-fixing case involving the SRAM industry.

The parties reached settlement agreements wherein Toshiba agreed to pay $475,000 and Etron agreed to pay $150,000.

The court found that the criteria for certification under section 5(1) of the Class Proceedings Act, 1992 were met, noting that compliance is not as strictly required for settlement purposes.

The motion for certification was granted, and the proposed notices of hearings were approved.

This was a costs decision following a successful motion staying a proposed franchise class action in favour of arbitration.

The court held the successful defendants were entitled to partial indemnity costs for the stay motion and related motions, subject to a set-off in favour of the plaintiffs for their earlier success on a pleadings motion.

The court rejected the plaintiffs' argument that costs should be denied or significantly reduced under s. 31 of the Class Proceedings Act, 1992 because of novelty or public interest.

After set-off, the court awarded one defendant $8,000 and the other successful defendants $85,000, all inclusive.

In a receivership arising from CCAA proceedings, the moving party sought payment of post-filing collections on several assigned loans and the return of funds advanced for a failed loan transaction.

The court held the assigned loans had been absolutely and equitably assigned, and that the debtor acted only as collection agent.

Applying the constructive trust framework in Soulos, the court found the stay should preserve rather than reorder pre-filing proprietary rights, and that the post-CCAA collections could not be treated as estate property for general creditors.

The court also held the failed transaction advance was held for a specific purpose and remained subject to a trust obligation, with Quistclose trust principles supporting that result in the alternative.

The motion was granted, subject to a holdback for any amount owed by the moving party to a related entity.

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.

In a competition class proceeding alleging price‑fixing in the static random access memory (SRAM) industry, the plaintiff sought court approval of a national settlement reached with certain defendants and approval of interim class counsel fees.

The settlement required the settling defendants to pay $1.5 million for the benefit of settlement class members across Ontario, British Columbia, and Québec, and to provide cooperation in the ongoing litigation against remaining defendants.

The court applied established class action settlement approval principles, assessing fairness, reasonableness, and the best interests of the class.

Finding the settlement well‑investigated, negotiated at arm’s length, and beneficial to class members given the risks of continued litigation, the court approved the settlement and the requested class counsel fees.

The defendant moved under Rule 21.01(c) of the Rules of Civil Procedure to stay or dismiss an Ontario wrongful dismissal action on the basis that the court lacked jurisdiction and that North Carolina was the more appropriate forum.

The moving party relied on contractual terms stating that the agreement was governed by the laws of North Carolina and argued that related proceedings had already been commenced there.

The responding party argued that she had worked in Ontario for 27 years, was paid in Canadian dollars through a Canadian bank, and that the termination occurred in Ontario.

Applying the forum non conveniens principles articulated in Van Breda and subsequent appellate authority, the court held that the defendant had not met the high burden required to displace the plaintiff’s chosen forum.

Ontario was found to be the appropriate forum given the location of the plaintiff, witnesses, and the employment relationship.

The plaintiff, Canadian Pacific Railway Company, sought to convert an interim injunction into a permanent injunction to restrain the defendant truck drivers from picketing and blockading its Vaughan Intermodal Terminal.

The defendants, who were independent contractors for trucking companies serving CPR, had been protesting pay cuts.

Following reports of vandalism and safety concerns, the court found that the plaintiff met the test for an injunction and ordered that the existing interlocutory injunction be made permanent pending trial.

Following an appeal, the intervener Working Families Coalition (Canada) Inc. sought costs of the appeal.

The intervener had been granted leave to intervene before the Divisional Court on the condition that it would not seek costs and no costs would be awarded against it.

The Court of Appeal dismissed the request, finding that the intervener was bound by the original order and that allowing it to seek costs after learning the appeal's outcome would be fundamentally unfair to the appellants.

No costs were awarded to the intervener.