Adam Howard Hirsh

The representative plaintiffs in a class action alleging a price-fixing conspiracy for packaged bread sought to amend their pleadings and the Certification Order to add Maple Leaf Foods Inc. as a certified defendant.

The original Certification Order had refused certification against Maple Leaf on the basis that the pleadings disclosed no cause of action against it, and this decision was not appealed.

The Court of Appeal upheld the motion judge's dismissal of the motion, finding that the original refusal to certify was a final order that gave rise to res judicata.

The court held that the Class Proceedings Act does not permit relitigation of matters finally decided, and the motion judge did not err in refusing to exercise his limited discretion to bypass res judicata.

The Family Responsibility Office sought a warrant of committal against Orrett Fagan for non-payment of child support arrears and ongoing support, pursuant to a default order.

Fagan cross-moved to set aside or vary the default order, citing health issues and reduced income.

The court considered the factors for setting aside a default order under Rule 25(19) of the Family Law Rules, finding Fagan had an arguable defence but had not acted promptly and had a history of non-compliance.

The court suspended the committal order pending further proceedings, set new payment terms, and provided for future review and possible committal if Fagan failed to comply.

The Plaintiffs brought a motion to reconsider a previous certification ruling that dismissed the action against Maple Leaf Foods Inc. (MLF) in a class action alleging price-fixing.

The Plaintiffs sought to certify the action against MLF, presenting new evidence including a Second Information to Obtain (ITO), MLF's annual reports, Canada Bread's Agreed Statement of Facts (ASF) from a criminal proceeding, and emails from Canada Bread's files.

MLF opposed the motion and brought cross-motions to exclude the new evidence and strike the Plaintiffs' amended claims.

The court dismissed the Plaintiffs' motion, finding that the 'new evidence' was either not new, inadmissible hearsay, or did not substantively alter the lack of a viable cause of action against MLF.

The court emphasized the principle of finality in litigation, stating that a certification dismissal for lack of cause of action is a final order and cannot be revisited without meeting a strict test for new evidence (Sagaz test), which was not met here.

The court also granted MLF's motion to exclude the evidence and strike the amended statements of claim against MLF.

The plaintiffs purchased the defendant's software business for $1.25 million.

As part of the transaction, the defendant agreed to a three-year non-competition covenant.

The defendant subsequently incorporated a new company and launched a competing software product while still employed by the plaintiffs.

The plaintiffs moved for an interlocutory injunction to enforce the non-competition clause.

The court granted the injunction, finding that the plaintiffs established a strong prima facie case of breach, irreparable harm, and that the balance of convenience favoured the plaintiffs.

The plaintiffs brought a motion for leave to appeal an order excluding from the class for certification persons who claim damages for purchases of packaged bread directly or indirectly sold by a defendant producer without being resold by a defendant retailer.

The Divisional Court granted the motion for leave to appeal on this issue and reserved costs to the panel hearing the appeal.

The defendants brought a motion for leave to appeal an order of Morgan J. dated December 31, 2021.

The Divisional Court dismissed the motion for leave to appeal.

Costs were awarded in favour of the plaintiffs in the amount of $15,000 all inclusive, payable jointly and severally by the defendants.

On a certification motion in a proposed national class action concerning online travel and accommodation booking websites, the moving parties alleged misleading search result, discount, and urgency practices under the Competition Act, consumer protection statutes across Canada, and unjust enrichment.

The court held the pleaded statutory and restitutionary claims were legally deficient, including because the remedies pursued were unavailable, reliance and compensatory loss were not properly established where required, and several provincial and territorial claims were not properly pleaded.

The court also held there was no some basis in fact that two or more class members suffered compensable harm, as the alleged injury was disappointment from not choosing psychologically or economically preferable accommodation.

Aggregate damages and punitive damages were not certifiable common issues, and a class proceeding was not the preferable procedure.

Porter Airlines and Nieuport Aviation disputed the calculation of terminal fees at Billy Bishop Airport under a Licence Agreement.

Porter argued it could pay fees based on a variable daily slot allocation and claimed force majeure due to the COVID-19 pandemic to excuse non-payment.

Nieuport argued fees were based on a fixed, recurring number of daily slots and counterclaimed for unpaid fees.

The court held that the Licence Agreement required payment based on a fixed number of recurring daily slots.

The court also found that the COVID-19 pandemic did not trigger the force majeure clause to excuse Porter's payment obligations.

Porter was ordered to pay over $131 million in damages for unpaid terminal fees, while Nieuport's recourse under a guarantee was limited to specified aircraft.

The defendants in a proposed opioid class action moved to dismiss the proceeding for delay under s. 29.1 of the Class Proceedings Act, 1992.

In response, the plaintiff brought a cross-motion for a nunc pro tunc timetable order and commenced parallel proceedings in Manitoba.

The parties reached a settlement wherein the competing motions were dismissed without costs, the Manitoba proceedings would be discontinued, and the Ontario action would be deemed commenced on October 2, 2020, making it subject to the amended certification test under the Smarter and Stronger Justice Act, 2020.

The court approved the settlement and issued the consent orders.

The court held a case conference to settle the terms of a certification order following a decision to certify a class action regarding alleged price-fixing of packaged bread.

The court reviewed competing draft orders and approved the producer defendants' draft with specific amendments, including adjustments to the definition of packaged bread, the class definition, and the retention of constructive trust as a common issue.

The applicant sought to overturn an arbitrator's decision assuming jurisdiction over a business dispute between co-tenants of a real estate development project.

The parties were deadlocked on whether the project should include a hotel component.

The arbitrator found he had jurisdiction under a broad arbitration clause.

The Superior Court of Justice held that the dispute was a non-legal business decision that did not arise under the agreement, as the agreement required unanimous decision-making and did not provide a standard of review for this type of dispute.

The court set aside the arbitrator's decision, finding he lacked jurisdiction.

The plaintiffs brought a motion to certify a class action against major producers and retailers of packaged bread, as well as their parent companies, alleging a 16-year price-fixing conspiracy.

The court certified the action against the producer and retailer defendants on behalf of direct and indirect purchasers of packaged bread.

However, the court refused to certify the claims against the parent companies, finding no material facts pleaded to support their involvement.

The court also refused to certify claims on behalf of 'umbrella purchasers' (those who bought fresh bread or packaged bread from non-defendants), finding no plausible methodology to prove that the price-fixing of packaged bread caused an actionable increase in the prices of those non-competing or diverse products.

The plaintiffs in a proposed consumer protection and competition law class action sought court approval of a third-party funding agreement with Harbour Fund IV.

The plaintiffs, who are of modest means, required the funding to prosecute the action against several large travel booking companies.

The court applied the four-factor test for third-party funding and found the agreement was not champertous, was necessary for access to justice, and adequately protected the defendants' interests.

The motion was granted and the funding agreement was approved.

The appellant, Canadian Home Publishers Inc., appealed a judgment that dissolved the limited partnership upon the death of its sole limited partner, David Colville-Reeves, and awarded his estate a 50 percent share in the residual assets of the partnership.

The Court of Appeal allowed the appeal, finding that the application judge erred in importing the residual distribution provision from section 44 of the Partnerships Act into the Limited Partnerships Act.

The court held that a limited partner's rights are strictly defined under the Limited Partnerships Act and do not include participation in residual assets upon dissolution.

The limited partner is entitled only to their share of profits and return of their capital contribution.

The defendants in a class action sought a pause in proceedings, including the adjournment of a certification motion, pending a Supreme Court of Canada judgment in *Toshiba Corporation v Godfrey*.

The SCC decision was expected to clarify key issues relevant to class certification in price-fixing cases, specifically regarding "umbrella purchasers" and the economic methodology for proving common impact for indirect purchasers.

The court granted the motion, finding that a temporary pause would prevent the need for redoing expert reports and ensure the certification motion was based on the most current state of the law, thereby promoting the expeditious and efficient conduct of the litigation.

The plaintiffs in a proposed class action alleging a price-fixing conspiracy regarding packaged bread sought court approval of a third-party litigation funding agreement with Bentham.

The defendants largely did not object, except regarding a clause allowing Bentham to satisfy any security for costs order via an undertaking rather than paying into court.

The court found the funding agreement necessary for access to justice, fair and reasonable to the class, and approved the agreement, including the provision allowing an undertaking for security for costs.

The applicant, Canadian Home Publishers Inc. (general partner), and the respondents, estate trustees of David Colville-Reeves (sole limited partner), sought conflicting determinations regarding the entitlement to profits and residual assets of Canadian Home Publishers (CHP), a limited partnership.

The court determined that CHP was dissolved upon David's death because his executors did not become substituted limited partners without consent or prior authorization.

Consequently, CHP must be wound up, and its residual assets are to be distributed equally between the general partner (Lynda Reeves, owner of CHP Inc.) and David's Estate, as per the Partnerships Act.

The court dismissed the respondents' promissory estoppel argument, finding no formal representation or detrimental reliance, and doubted its applicability against mandatory statutory provisions.

The applicants, residents of Senegal, sought to enforce a Senegalese judgment in Ontario.

The respondent moved for security for costs under Rule 56.01(1)(a) due to the applicants' non-residency.

The court found the applicants failed to demonstrate impecuniosity with robust particularity, particularly regarding their ability to borrow against an owned house.

The court also found the merits of the application, specifically regarding notice to the respondent in the Senegal action, were not strong enough to defeat the motion for security for costs.

The applicants' offer of a security interest in a Senegalese house was deemed insufficient.

The motion for security for costs was granted, and the applicants were ordered to post $23,272.20 within 90 days.

One hundred and fifteen former Nortel employees brought a motion seeking to impose personal liability on the former directors of Nortel Networks Limited (NNL) and Nortel Networks Corporation (NNC) for unpaid severance payments under section 119 of the Canada Business Corporations Act (CBCA).

The employees argued that the severance payments were akin to retention payments for services performed.

The directors raised defenses including that severance payments are not covered by section 119, they exercised due diligence, and some claimants were employed by a different subsidiary (NNTC).

The court dismissed the motion, finding that severance payments are not for 'services performed' under CBCA s. 119, but rather compensation for loss of employment.

The court also found that the directors had a valid due diligence defense and that the 'true employer' test would have identified NNL as the employer for all employees, despite payroll being handled by NNTC.

The court also noted that releases signed by some employees would have covered the claim.

The appellant sought to appeal a decision dismissing her claim against multiple respondents as frivolous, vexatious, and an abuse of process.

The court, on its own initiative under Rule 2.1.01(3), considered dismissing the appeal on the same grounds.

The appellant's claim was for an amount exceeding the Divisional Court's jurisdiction, and she had been advised of this lack of jurisdiction but continued to pursue the appeal in the wrong forum.

The court found the appeal to be an abuse of process and dismissed it without an order as to costs.