Ontario Civil

Civil Practice and Procedure

Class and representative proceedings

Representative or class proceedings under class proceedings legislation

Proceeding stayed in favour of arbitration in another country

Class action. Plaintiff brought proposed $400 million class action on behalf of drivers who drove for defendant ride sharing app. Defendants brought successful motion for order staying proceeding in favour of arbitration in another country. Defendants sought indemnification of $158,000, approximately 54 per cent of total fees and disbursements they claimed. Having regard to normal factors, appropriate award to defendants was $65,000 all inclusive. Case did not raise novel issue, nor was it matter in public interest. Defendants undoubtedly knew from outset of their retainer that their clients’ legal position was extraordinarily strong, but team of four lawyers and two paralegals were assigned to file. Lawyer’s time expended was 437.2 hours with student and clerks expending another week of work. Subjective reasonable expectations of losing party in class action were no longer reasonable. Both sides over-litigate, knowing that over litigating is what their foe will be doing and knowing that court will not second-guess lawyer’s decision. Plaintiff’s rejection of offer to settle did not attract costs consequences. 

Heller v. Uber Technologies Inc. (2018), 2018 CarswellOnt 3867, 2018 ONSC 1690, Perell J. (Ont. S.C.J.); additional reasons (2018), 2018 CarswellOnt 1090, 2018 ONSC 718, Perell J. (Ont. S.C.J.).

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