Akiva Stern

The plaintiff brought a motion to certify a national class proceeding alleging that the defendants, major manufacturers of fragrance ingredients, engaged in an unlawful price-fixing conspiracy contrary to the Competition Act.

The proposed class included direct, indirect, and umbrella purchasers of fragrance ingredients and products.

The court dismissed the certification motion, finding that the plaintiff failed to meet the 'some basis in fact' test.

The evidence relied upon consisted merely of unsubstantiated suspicions and investigations by foreign regulators, without any direct or indirect evidence of a conspiracy or its impact in Canada.

Furthermore, the court found the proposed class definition unmanageable, as it would be nearly impossible for individuals to self-identify as class members.

The applicants sought to convert an application into an action and consolidate it with a related action.

The respondents opposed, seeking to strike the action for lack of corporate authority and arguing against consolidation.

The court found that while the action was technically deficient due to improper director authorization, the appropriate remedy was a stay pending delivery of a properly authorized resolution, not dismissal.

The court granted consolidation and conversion of the application to an action, finding substantial overlap in the pleadings and common factual and legal issues.

The applicants were substantially successful and awarded costs of $75,000.

This decision addresses a carriage motion in proposed securities class actions stemming from a mine landslide.

Two plaintiff groups, represented by Strosberg Sasso Sutts LLP (SSS) and Berger Montague (Canada) PC (BMC), sought carriage.

The court applied the criteria under section 13.1(4) of the Class Proceedings Act, 1992.

It found both firms equally capable in terms of funding and expertise, and the core statutory claims had similar prospects of success.

However, the action led by SSS (Liang action) was significantly more developed, having invested more resources in evidence gathering and expert retention.

This distinction proved determinative, leading the court to grant carriage to the Liang action and stay the competing Jones action.

The moving parties brought a motion for leave to appeal the order of Akazaki J. dated January 2, 2024.

The Divisional Court dismissed the motion for leave to appeal and awarded costs to the responding party fixed at $5,000.

The court issued supplementary reasons regarding costs for an interim injunction motion.

The defendants sought to revisit the costs award, arguing that an offer to settle the motion should attract costs consequences under Rule 49.

The court found that the defendants' offer was insufficient as it did not fully address the plaintiff's concerns, particularly regarding non-solicitation, and that the plaintiff had obtained what it sought.

The court dismissed the defendants' request to revisit the costs, affirming the original costs award to the plaintiff.

The plaintiff, an insurance brokerage, brought a motion for interim injunctive relief to prevent former employees and rival brokerages from using confidential client information and soliciting clients.

The individual defendants resigned en masse and allegedly used client lists from the plaintiff.

The defendants argued an injunction was unnecessary due to an undertaking not to use confidential information.

The court applied the RJR-MacDonald test, finding a serious question to be tried, irreparable harm due to the alienation of confidential information, and that the balance of inconvenience favored the plaintiff.

An interim injunction was granted prohibiting the defendants from possessing, disclosing, using (including for solicitation), altering, destroying, copying, removing, or transferring the plaintiff's confidential information, including information acquired mentally.

A separate non-solicitation order was not granted, as the confidential information injunction was deemed sufficient.

Costs were awarded to the plaintiff.

The plaintiff brought a motion to prohibit Dr. John Bohnen from testifying as an expert for the defence, alleging issues with his expert reports (unsigned, invalid contact information) and potential bias due to his past relationship with a defendant and frequent retention by the defence law firm.

The court applied the two-stage test for expert admissibility from *White Burgess* and *Mohan*.

The judge found that the initial failure to sign a report was not a material omission, the contact information provided was valid, and the expert's professional relationships did not demonstrate a lack of independence sufficient to disqualify him.

The motion was dismissed, with the court concluding that the issues raised by the plaintiff pertained to the weight of the expert's evidence rather than its admissibility.

In a medical malpractice action arising from hernia procedures, the defendants brought a motion during trial to exclude certain evidence the plaintiff sought to introduce.

The plaintiff sought to admit decisions from the College of Physicians and Surgeons of Ontario (CPSO) regarding his complaint, as well as anonymous online reviews of the defendant physician.

The court ruled the CPSO documents were strictly inadmissible under s. 36(3) of the Regulated Health Professions Act.

The court also excluded the online reviews, finding they were hearsay and did not meet the necessity and reliability requirements of the principled exception.

This appeal addresses issues of jurisdiction simpliciter and forum non conveniens in a complex international insurance coverage dispute.

Vale and RSA initiated actions in Ontario seeking coverage for environmental liabilities, primarily in Ontario, after Travelers commenced a similar action in New York.

The motion judge largely found Ontario had jurisdiction and was not forum non conveniens, except for North River.

The Court of Appeal dismissed the insurers' appeals, affirming Ontario's jurisdiction over them, and allowed Vale's appeal, finding Ontario also had jurisdiction over North River.

The court emphasized that a comprehensive general liability insurer underwriting Ontario risks connects itself to Ontario for jurisdictional purposes, and that the "first-to-file" rule does not automatically determine the appropriate forum.

In an application for judicial review of a Governor in Council order under the Investment Canada Act requiring the divestment or winding up of a Canadian business on national security grounds, the applicants brought a motion for documentary production.

They sought documents before the Minister prior to the referral to the GiC under Rule 317, and challenged a section 39 Canada Evidence Act certificate protecting Cabinet confidences before the GiC.

The Court dismissed the Rule 317 request as it improperly sought documents from a decision-maker whose decision was not under review.

The Court set aside one item in the section 39 certificate for an insufficient description but upheld the remainder of the certificate, finding no improper exercise of power.

The plaintiffs brought a motion for court approval of four settlements totaling over $25 million with TD, RBC, Credit Suisse, and Deutsche Bank in a class action alleging price-fixing in the foreign exchange market.

The plaintiffs also sought approval of Class Counsel's fees of approximately $10.2 million.

The court found the settlements to be fair, reasonable, and in the best interests of the class, noting the significant litigation risks and the substantial results achieved.

The court also approved the requested Class Counsel fees, recognizing the risk undertaken and the successful outcome.

The appellant, an undischarged bankrupt, sought an extension of time to file a notice of appeal from a lower court order that declared his debts would survive bankruptcy and lifted a stay of proceedings.

The respondent opposed the extension, arguing there was no right to appeal without leave and that the appeal lacked merit.

The respondent also brought a cross-motion for security for costs.

The Court of Appeal granted the extension of time, finding that the appellant had a right to appeal under sections 193(c) and 193(a) of the Bankruptcy and Insolvency Act, and that the proposed appeal had arguable merit.

The court dismissed the respondent's cross-motion for security for costs, concluding that the "other good reason" test under Rule 61.06(1)(c) of the Rules of Civil Procedure was not met, given the appellant's impecuniosity and the arguable merit of the appeal.

The moving parties, a syndicate of six banks, sought to partially lift an automatic stay of a bankruptcy order pending appeal under s. 195 of the Bankruptcy and Insolvency Act.

The banks argued that the appellant was frustrating the bankruptcy process and might dissipate her assets.

The court found that the appellant's grounds of appeal were extremely weak and that maintaining the stay would prejudice the banks by preventing the trustee from identifying and preserving assets.

The court granted the motion, partially lifting the stay to allow the trustee to exercise specific powers under the BIA.

Medical negligence trial arising from an alleged delayed diagnosis of uterine leiomyosarcoma in a patient presenting with fibroids, prolonged heavy bleeding, and risk factors including age over 40 and nulliparity.

The court held that the gynecologist breached the standard of care by failing to perform an endometrial biopsy at the initial consultation and by maintaining inadequate clinical notes.

Applying the but for causation test, the court found that an earlier biopsy would likely have detected Stage I disease, leading to earlier hysterectomy and a substantially improved prognosis.

The court rejected the defence reliance on statistical literature as determinative and found both factual and legal causation established.