Alexander J. Freedman

This decision concerns the continuation of refusals motions in complex insurance litigation involving environmental claims at 26 mining sites operated by Vale Canada Limited.

The court addresses the proportionality and sufficiency of discovery efforts, the organization and resolution of thousands of discovery refusals, and sets out directions for further production and inquiry.

The ruling emphasizes the need for balance and proportionality in discovery, especially in large-scale litigation, and provides a framework for resolving outstanding discovery disputes ahead of trial.

The plaintiffs, Avante Automobile (2017) Corporation and Francesco Serpa, sought damages from BMW Canada Inc. for breach of statutory, contractual, and common law duties in relation to the purchase and operation of a BMW dealership.

The court found BMW Canada liable for failing to properly document an extension to complete required renovations and for not following the termination provisions of the Retailer Agreement.

However, the court preferred the defendant’s evidence on valuation and found no net recoverable damages.

The action was dismissed, subject to costs.

This endorsement addresses motions by the defendant insurers to compel Vale Canada Limited to answer refusals arising from oral and written discovery in complex insurance litigation concerning environmental claims at 26 mining sites.

The court reviews the status of discovery, the parties' agreements, and the proportionality of further discovery requests, including the use of exemplar and bridge charts to manage voluminous refusals.

The decision provides detailed directions on categories of refusals, privilege claims, and the process for resolving outstanding discovery issues, emphasizing proportionality, cooperation, and case management to keep the matter on track for trial.

This decision addresses two motions: a Mareva injunction sought by CIM Mackenzie Creek Limited Partnership and Jiubin Feng against NSR Toronto Holdings Ltd., and a cross-motion by NSR Toronto Holdings Ltd. to stay CIM's counterclaim as an abuse of process.

CIM's Mareva injunction, based on alleged fraud by NSR in the sale of the Mackenzie Creek Project to Sunny Co., was dismissed due to lack of proof of fraud and no risk of asset dissipation.

NSR's cross-motion to stay CIM's counterclaim was granted because CIM failed to promptly disclose a settlement agreement with Sunny Co., which materially altered the litigation's adversarial landscape, constituting an abuse of process.

The court emphasized the strict disclosure requirements for such agreements.

The plaintiff brought a motion seeking court approval of a retainer agreement and an order for the defendants to pay Class Counsel's legal fees and disbursements.

This motion was brought after the plaintiff withdrew a certification motion in a class action alleging an electrical defect in Class Vehicles.

The plaintiff argued that the defendants' subsequent voluntary offer of an enhanced warranty to Canadian customers, mirroring a U.S. settlement, constituted "success" attributable to the litigation, thereby entitling Class Counsel to fees.

The defendants contended that the Canadian warranty enhancement was independent of the Canadian litigation, consistent with their corporate practice of coordinating benefits with U.S. settlements regardless of parallel Canadian actions.

The court found no evidence that the benefits stemmed from the Canadian action and concluded that the class proceeding had not been "successful" as defined by the Class Proceedings Act, which primarily links success to judgments or settlements.

Consequently, the court dismissed the plaintiff's motion for fees and disbursements.

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.

The moving party, Canadian National Railway Company, brought a motion for leave to appeal the order of Gordon J. dated April 26, 2022.

The Divisional Court dismissed the motion for leave to appeal and awarded costs of $5,000 to the responding parties.

The appellant appealed an order dismissing its claims against two corporate and individual respondents under Rule 21.01(1)(b) for lack of contractual privity and other deficiencies.

The motion judge had denied leave to amend.

The Court of Appeal upheld the dismissal, finding no error in the motion judge's conclusion that the respondents were not parties to the alleged contract (Mandate) and that other claims were unsustainable.

The court affirmed that reviewing a document expressly pleaded and incorporated into the statement of claim does not constitute considering evidence on a Rule 21.01(1)(b) motion and upheld the discretionary refusal to grant further leave to amend.

The Catalyst Parties brought actions for defamation, injurious falsehood, and conspiracy against various defendants, including media organizations, journalists, short sellers, and former borrowers, arising from the publication of a Wall Street Journal article and whistleblower complaints to the Ontario Securities Commission.

The defendants brought motions to dismiss the actions under the anti-SLAPP provisions of s. 137.1 of the Courts of Justice Act.

The Catalyst Parties also brought a motion to dismiss four discrete defamation claims in a counterclaim brought by the West Face Parties.

The court granted the defendants' motions, dismissing the Defamation Action and the Wolfpack Action, finding that the expressions related to matters of public interest and that the public interest in protecting the expressions outweighed the public interest in allowing the actions to proceed, particularly given the Catalyst Parties' history of aggressive litigation and ethically dubious investigative tactics.

The court dismissed the Catalyst Parties' motion regarding the counterclaim, holding that partial anti-SLAPP motions are not permitted and that the counterclaim had substantial merit.

The moving parties sought leave to appeal the February 12, 2021 decision of McEwen J. The Divisional Court dismissed the motion for leave to appeal and awarded costs of $5,000 to the respondents.