Adam Ship

The Toronto-Dominion Bank sought summary judgment to dismiss a proposed class action alleging that it improperly charged a second Non-Sufficient Funds (NSF) fee for a single rejected payment that was subsequently re-presented by a third-party payee (PayPal).

The plaintiff argued that the bank's standard consumer banking agreement did not disclose this second fee, constituting a breach of contract, a contravention of consumer protection law, and unjust enrichment.

The court found that the NSF provision in the agreement unambiguously applied only to payments initiated by the customer, not to re-presentments by third parties.

The bank's argument that federal "Network Rules" mandated the second fee or informed the agreement's interpretation was rejected, as these rules were not known to consumers and did not address NSF fees.

Consequently, the bank's motion for summary judgment was dismissed, allowing the class action to proceed to certification.

This application concerned the interpretation of a dispute resolution clause in a Share Purchase Agreement (SPA) regarding the calculation of a post-closing working capital adjustment.

The core issue was whether the purchaser, Rester Ontario Investments Inc., was permitted to provide narrative written submissions to an independent accountant in response to the vendor's, Elad Canada Operations Inc., dispute notice.

The court determined that the interpretation of the SPA was a matter for the court, not the independent accountant.

It ruled that narrative submissions were permissible, provided they did not alter the original calculations, and set page limits for both Rester's submissions and Elad's reply.

The defendants in a proposed class action regarding NSF fees brought a motion under s. 4.1 of the amended Class Proceedings Act to have their summary judgment motion heard before the plaintiff's certification motion.

The court interpreted the new s. 4.1, finding it creates a presumption that pre-certification motions which may dispose of or narrow the proceeding should be heard first, unless there is a good reason to hear them together.

Finding that the defendants' summary judgment motion raised genuinely arguable issues and was not a delay tactic, the court granted the sequencing motion.

The applicant underwriters sought a declaration that the respondent issuer, Aphria Inc., was required to pay their ongoing legal fees in defending a proposed securities class action.

The class action alleged that the underwriters engaged in market manipulation prior to a prospectus offering.

Aphria argued that the indemnity in the underwriting agreement did not cover intentional wrongdoing.

The court held that the plain language of the indemnity clause required Aphria to pay defence costs for any claims arising from the underwriters' professional services, subject only to an exclusion if a court makes a final, non-appealable determination of fraud or willful misconduct.

As no such determination had been made, the application was granted.

The plaintiff brought motions to approve a $10 million national settlement in a class action regarding PayPal's foreign currency conversion practices, and to approve class counsel fees and a representative plaintiff honorarium.

The court found the settlement fair, reasonable, and in the best interests of the class, noting the significant litigation risks and the efficient direct-deposit distribution protocol.

The court also approved class counsel's 25% contingency fee request and awarded a $10,000 honorarium to the representative plaintiff for his exceptional efforts in initiating the litigation.

Aeon Sodding Corp. sued The Royal Bank of Canada (RBC) for breach of contract after discovering that a "legal professional" it had retained, Steven Mann, was a fraudster who had performed no work despite receiving over $430,000 via an RBC Visa card.

Aeon sought a chargeback from RBC, which was denied due to time limits under Visa rules.

RBC brought a motion for summary judgment to dismiss Aeon's action.

The court granted summary judgment, finding that RBC exercised reasonable care in handling the chargeback request and that Aeon's claim was barred by a verification clause in the Visa Agreement, which required disputes to be raised within 30 days of the statement period.

This endorsement addresses the issue of costs following a successful motion by the defendants.

The defendants sought $200,000 in costs, arguing it was a discount from their partial and substantial indemnity costs, citing extensive motion records, witness evidence, cross-examinations, and rejected settlement offers.

The plaintiff requested costs be reserved to the trial judge or argued the claimed costs were excessive, noting their own partial indemnity costs were significantly lower.

The court declined to reserve costs, affirming the defendants' entitlement as successful parties.

However, the court found the defendants' claimed costs excessive, noting they were double the plaintiff's costs, and fixed the costs at $150,000, all-inclusive, payable within 30 days, emphasizing the need for costs to be reasonable in the circumstances.

The plaintiff, a former franchisee, brought a motion for summary judgment against the franchisor and its principal, alleging deficiencies in disclosure documents, fraud, and forgery, and seeking damages over $2,000,000.

The defendants opposed the motion, arguing numerous factual disputes and credibility issues.

The court dismissed the motion for summary judgment, finding that the case involved too many disputed issues of fact, including allegations of fraud and forgery, which required an assessment of credibility that could not be resolved on a paper record.

The court also noted that a complex legal issue regarding the effect of a notice of rescission required a full appreciation of the factual matrix, best achieved at trial.

Appellants brought a proposed class action alleging that respondents conspired to divide the beer market contrary to section 45(1) of the Competition Act through a Framework Agreement signed in 2000, and that a surcharge levied by Brewers Retail on licensees violated the Liquor Control Act.

The motion judge dismissed the action on the basis that the regulated conduct defence was available to the respondents.

The Liquor Control Act authorized the impugned conduct.

The Ontario legislature subsequently enacted retroactive amendments in 2015 to remove any doubt that the conduct was authorized.

The Court of Appeal upheld the dismissal, finding that the regulated conduct defence insulated the respondents from liability and that retroactive legislation could provide authorization for the defence.

The defendants brought a motion for leave under Rule 39.02(2) of the Rules of Civil Procedure to file two further affidavits on the plaintiff's pending summary judgment motion.

The affidavits were sought to be filed after cross-examinations had concluded, primarily to respond to the plaintiff's allegation that a franchise disclosure document was forged.

The court applied the four-part test for leave and found that the defendants failed to provide a reasonable explanation for not delivering the evidence earlier, noting it was a tactical choice rather than an oversight.

The court also found the proposed evidence did not respond to matters raised during cross-examination.

The motion for leave was dismissed.

This addendum corrects an error in a previous costs decision (2018 ONSC 4862) regarding the amount of costs requested by Brewers Retail Inc. The original decision mistakenly stated Brewers Retail requested $600,000 on a partial indemnity basis, when the correct amount, based on an amended bill of costs, was $744,396.42, all inclusive, comprising fees, HST, and disbursements.

The court confirmed the costs award subject to this correction.

Following the dismissal of the plaintiffs' proposed class action on summary judgment, the successful defendants sought costs on a partial indemnity basis totalling approximately $2.3 million.

The plaintiffs and the Class Proceedings Fund argued that the costs should be reduced to $600,000 in the aggregate, asserting that the case was not complex, was in the public interest, raised novel points of law, and that a large costs award would have a chilling effect on class actions.

The court rejected these arguments, finding that the litigation was primarily commercial, involved complex issues, and that the normal costs rules should apply.

The court awarded the defendants their requested costs, subject to a reduction of one expert witness's fee.

The plaintiffs in a proposed class action regarding beer pricing and market allocation in Ontario sought leave under s. 29 of the Class Proceedings Act to discontinue the action against the LCBO and treat it as an unnamed co-conspirator.

The court dismissed the motion as premature, finding that the discontinuance should occur, if at all, only after the close of pleadings, as the remaining defendants had not yet filed statements of defence and might assert cross-claims or third-party claims against the LCBO.

The court also found the evidentiary record inadequate to justify discontinuance.

The applicant beer distributor sought an interlocutory injunction preventing the respondent brewer from terminating a long-standing licence agreement granting exclusive Canadian distribution rights for certain beer brands.

The respondent issued a termination notice based on the applicant’s failure to meet contractual volume targets after an amendment to the licence agreement terminated automatically when industry regulatory changes did not occur.

The court held that serious issues existed regarding the continued effect of a contractual waiver of termination rights and whether the respondent was required to engage in good faith negotiations before exercising termination rights.

The court also found that the applicant would suffer irreparable harm through disruption of its product portfolio, damage to customer relationships, and potential harm to brand equity.

Balancing the parties’ respective harms and favouring preservation of the status quo pending trial, the court granted the interlocutory injunction.

The plaintiff developed a lesion on her foot and was referred by her family doctor to a dermatologist, who then referred her to a plastic surgeon.

The lesion was eventually excised and diagnosed as a malignant melanoma, resulting in severe health consequences.

The plaintiff sued both specialists for medical negligence.

The Superior Court of Justice found both defendants liable.

The dermatologist breached the standard of care by failing to adequately communicate his findings and the urgency of the situation in his referral note.

The plastic surgeon breached the standard of care by failing to urgently excise the lesion despite observing signs of a possible melanoma.

The court concluded that their combined negligence materially contributed to the delayed diagnosis and the plaintiff's resulting damages.