Aaron L. Kreaden

The plaintiffs, Arlene Stevenson and Mira Melien, brought a motion for certification of a class action against Mazda Motor Corporation, Mazda Canada Inc., and Subaru Canada Inc. for settlement purposes, along with approval of the notice plan, and appointment of administrators.

The class action concerned alleged economic loss arising from Takata airbag inflators in Mazda and Subaru vehicles.

The court found that all criteria for certification under the Class Proceedings Act, 1992 were satisfied, even with a less rigorous application in the settlement context.

The motion was granted, certifying the action for settlement purposes and approving the related relief.

This appeal concerns an auditor's liability action arising from the Bernard Madoff Ponzi scheme.

The appellants, three Fairfield feeder funds incorporated in the British Virgin Islands, invested in Madoff's company and suffered losses when the fraud was revealed in December 2008.

The funds sued PricewaterhouseCoopers for breach of contract and negligence in auditing their financial statements for 2006 and 2007, claiming damages of approximately $2.5 billion.

The motion judge granted summary judgment dismissing the action on the basis that no damages were suffered, applying the Livent damages methodology.

The appellants appealed on five grounds, all involving findings of fact or mixed fact and law regarding the calculation of damages.

The Court of Appeal dismissed the appeal, finding no palpable and overriding errors in the motion judge's analysis.

The appellant appealed the dismissal of his motion seeking leave to bring a derivative action in the name of the respondent corporation pursuant to s. 246 of the Business Corporations Act.

The appellant argued the motion judge applied the wrong legal test and considered irrelevant factors when determining whether the action appeared to be in the interests of the corporation.

The Divisional Court dismissed the appeal, finding the motion judge correctly applied the legal test and appropriately considered multiple relevant factors, including the appellant's negligible shareholdings, the lack of support from other shareholders, and the potential diversion of management resources.

In a negligence appeal arising from an auditor’s failure to detect corporate fraud, the Court applied the Anns/Cooper framework to pure economic loss claims for negligent misrepresentation and negligent performance of a service.

The Court held that liability must be confined to losses that fall within the purpose of the defendant’s undertaking and the plaintiff’s reasonable reliance.

It found no recoverable loss tied to services provided for investment solicitation, but upheld liability for losses flowing from a negligent statutory audit prepared for shareholder oversight.

The appeal was allowed in part, and damages were reduced to reflect only losses causally connected to the statutory audit.

The defendants brought a motion to vary a Mareva injunction to permit payments for legal fees and living expenses out of frozen funds.

The plaintiffs opposed the motion, arguing the defendants failed to demonstrate they lacked access to other assets.

The court dismissed the motion, finding the moving parties failed to discharge their onus because they did not provide evidence explaining why related corporate defendants (Incryptex and ApexDX) could not fund the litigation, nor did they provide sufficient details of their living expenses or account for other funds.

This supplementary endorsement clarifies the scope of a previous endorsement regarding a motion for leave to commence a derivative action.

The court clarified that its prior decision assumed, without deciding, the arguable case for the causes of action and did not consider arguments regarding whether the derivative action was in the corporation's interest or brought in good faith, thereby preserving the parties' ability to advance these positions on appeal.

The defendants, an auditing firm, brought a motion for summary judgment to dismiss a $5 billion negligence claim arising from their audits of feeder funds that invested in the Bernard Madoff Ponzi scheme.

The plaintiffs alleged that the auditors failed to discover the fraud, causing the funds to remain invested and suffer massive losses.

The court granted summary judgment, finding that the plaintiffs failed to prove any damages.

Applying the plaintiffs' own damages formula, the court concluded that the funds actually benefited from the delayed discovery of the fraud due to net withdrawals and the exclusion of fictitious profits and unasserted liabilities.

The applicant, a former majority shareholder who now holds a negligible amount of shares, sought leave nunc pro tunc to commence a derivative action on behalf of the respondent pharmaceutical corporation against its directors.

The applicant alleged mismanagement and breach of fiduciary duties, seeking damages for trading losses he suffered when selling his shares.

The court dismissed the motion, finding that the applicant could not use a derivative action to recover personal trading losses.

Furthermore, the court held that the action was not in the best interests of the corporation, as it would divert limited financial resources and management time, and lacked support from any current shareholders.

The defendants brought a motion for partial summary judgment to dismiss claims of breach of contract, fraudulent misrepresentation, unjust enrichment, and fraudulent conveyance.

The court dismissed the motion, finding that the defendants failed to establish there was no genuine issue for trial.

The absence of direct evidence from a key defendant (Weber), whose credibility was central to the claims, prevented a fair determination without a full trial.

The court also noted the risk of inconsistent findings if the fraudulent conveyance claim was dismissed while the related oppression claim proceeded to trial on similar facts.

The applicant sought leave to appeal an order dismissing his motion for interim possession of an Irish sport horse.

The parties had a dispute over the ownership of the horse, with the applicant claiming sole ownership and the respondent claiming a one-third interest based on a partnership agreement.

The motions judge had dismissed the interim possession motion due to competing credibility issues that needed to be resolved at trial.

The Divisional Court dismissed the motion for leave to appeal, finding no conflicting decisions or reason to doubt the correctness of the motions judge's order.

The plaintiffs commenced an action in Ontario seeking $400 million in damages and served the defendants in Guatemala, a non-Hague Convention state, in accordance with Ontario's Rules of Civil Procedure.

The defendants appealed the validation of service, arguing that Rule 17.05(2) must be interpreted in accordance with customary international law and comity, which would require service to comply with Guatemalan law.

The Court of Appeal dismissed the appeal, holding that service under Rule 17.05(2) does not violate Guatemalan sovereignty or international law, and that the rule provides a clear choice of service methods that rebuts any presumption of conformity with foreign law.

The appellants brought a motion to stay a trial judgment of $84.75 million and a subsequent appellate order pending their application for leave to appeal to the Supreme Court of Canada.

The court applied the RJR-MacDonald test, finding that the proposed appeal raised serious issues of public importance regarding an auditor's duty of care.

The court found that immediate enforcement of the judgment would cause irreparable harm and that the balance of convenience favoured the appellants, who had offered acceptable security for the judgment through liability insurance and currency hedge contracts.

The motion for a stay was granted.

Following the dismissal of the applicants' applications regarding holdback funds from a commercial transaction, the respondent sought costs.

The respondent had made an offer to settle that was better than the result obtained by the applicants.

The applicants objected to the costs claimed, arguing the matter was over-lawyered and the costs were disproportionate.

The court agreed there was some over-lawyering but found the applicants' unproven allegations of dishonesty against the respondent justified an elevated costs award.

The court awarded the respondent partial indemnity costs up to the date of the offer and substantial indemnity costs thereafter, fixed at $73,036 inclusive of disbursements.

Livent Inc., through its special receiver, sued its former auditor, Deloitte & Touche, for negligence and breach of contract in failing to detect a massive fraud perpetrated by Livent's senior management.

The trial judge found Deloitte negligent in its conduct of the 1997 audit and awarded Livent $118 million in damages.

Deloitte appealed, arguing that the ex turpi causa and corporate identification doctrines barred the claim, and that its negligence did not cause the losses.

Livent cross-appealed the trial judge's refusal to award damages for the 1996 audit and the 25% reduction for contingencies.

The Court of Appeal dismissed both the appeal and cross-appeal, holding that the ex turpi causa doctrine could not shield an auditor from liability for failing to detect the very fraud it was engaged to uncover, and that Deloitte's negligence was the proximate cause of Livent's increased liabilities.

Two related vendor companies applied for payment of holdback funds following the sale of land, building, and an industrial gas business to the purchaser.

The agreements required the vendors to obtain a zoning compliance letter satisfactory to the purchaser and permitted indemnity holdbacks for breaches relating to the property.

The purchaser refused to release the funds after concluding the business did not comply with municipal zoning restrictions and incurred relocation costs.

The court held the purchaser acted reasonably and in good faith in relying on professional advice and exercising contractual discretion under the holdback provisions.

Both applications were dismissed and the holdback funds were ordered released to the purchaser.

The appellants appealed a summary judgment permitting the respondent to enforce a Delaware judgment, including an order for a constructive trust, against the corporate appellants in Ontario.

The appellants argued the motion judge failed to consider the impact of the constructive trust on third parties, thereby misapplying the Pro Swing factors.

The Court of Appeal dismissed the appeal, finding the motion judge was alive to potential third-party impacts and that any unfairness was entirely speculative on the record.

The Supreme Court of Canada dismissed the auditors’ appeal and confirmed that an expert witness must be able and willing to provide fair, objective, and non-partisan assistance to the court as a threshold admissibility requirement, with remaining concerns about independence generally addressed at the gatekeeping weighing stage.

The plaintiff brought a motion for summary judgment against the individual defendant for repayment of a USD$1 million loan and over $400,000 in interest.

The funds had been advanced to a corporate entity controlled by the defendant, who failed to account for them.

Applying the Hryniak framework, the court found no genuine issue requiring a trial regarding the principal amount, as the defendant provided no credible explanation for the missing funds.

However, the court found a trial was necessary to determine if the defendant was personally liable for the contractual interest rate.

The defendants moved to transfer a civil proceeding from Hamilton to Toronto.

Applying Rule 13.1.02 of the Rules of Civil Procedure, the court held the moving party failed to establish that Toronto was a significantly better venue or that transfer was desirable in the interests of justice.

The court emphasized the shorter trial and motions lists in Hamilton, the prior procedural history already conducted there, and the absence of evidence of significant added inconvenience to parties or witnesses.

The motion was dismissed and costs were awarded to the plaintiff.

Following a prior motion decision, the parties were unable to agree on costs and sought a determination from the court.

The defendants sought substantial indemnity costs, arguing the motion was vexatious and unnecessary, while the plaintiff sought partial indemnity costs and argued the motion was required to secure payment of outstanding costs awards and attendance for an examination in aid of execution.

The court held that success on a motion must be assessed by comparing the circumstances before and after the motion and whether the motion induced compliance.

The court found the motion was necessary to obtain payment of outstanding costs awards and to secure attendance for examination.

Partial indemnity costs were awarded to the plaintiff, reduced to reflect lack of success on one issue.