Alexandra Urbanski

Optiva Inc. appealed a Superior Court decision that refused to set aside an arbitration award and denied leave to appeal.

The arbitration award found Optiva breached a contract with Tbaytel and awarded damages.

The Court of Appeal addressed whether the arbitrator had jurisdiction to proceed by summary judgment, whether Optiva's challenge to this ruling was time-barred under s. 17(8) of the Arbitration Act, 1991, and whether the arbitrator based his interpretation of a limitation of liability clause on a legal theory not advanced by the parties.

The Court dismissed the appeal, finding the arbitrator had broad procedural powers, the s. 17(8) time limit did not apply to procedural rulings, and no new legal theory was introduced.

Tbaytel, the moving party, sought to strike an affidavit filed by Optiva Inc., the responding party, in connection with Optiva's pending motion for leave to appeal an arbitration award.

The affidavit, from J. Brian Casey, aimed to provide factual information regarding the public importance of issues raised in the leave to appeal motion, specifically concerning the availability of summary judgment in arbitration without consent and the arbitrator's use of case law.

The court partially granted the motion, striking parts of the affidavit that expressed opinions on the legal importance of issues or buttressed attacks on the correctness of prior decisions, while allowing factual descriptions of common arbitration practices to remain.

This appeal concerned proposed class actions against auto insurers for improperly deducting HST from statutory accident benefits (SABs) and against the Financial Services Commission of Ontario (FSCO) for alleged regulatory failures.

The motion judge had dismissed claims against insurers due to the exclusive jurisdiction of the Licence Appeal Tribunal (LAT) under s. 280 of the Insurance Act, but allowed claims against FSCO to proceed.

The Court of Appeal upheld this decision, confirming the LAT's exclusive jurisdiction over SAB disputes and affirming the court's jurisdiction over tort claims against the regulator.

The court also refused leave to appeal the motion judge's costs order, finding it within his discretion.

Following a jurisdiction motion where the defendant insurers successfully argued that the court lacked jurisdiction over the proposed class actions, the insurers sought costs of approximately $620,000.

The court found this request preposterous and excessive, fixing costs payable by the plaintiffs to the 13 non-settling insurers at $28,000 on a partial indemnity basis.

The costs payable by the government regulator to the plaintiffs were settled at $12,500.

The plaintiffs filed proposed class actions against 15 auto insurers and the provincial regulator, FSCO, alleging improper deduction of HST from statutory accident benefits.

The defendant insurers brought motions to dismiss the actions for lack of jurisdiction, arguing the Licence Appeal Tribunal (LAT) has exclusive jurisdiction over such disputes.

The court agreed, dismissing the actions against the insurers and refusing to approve two early settlements, as the claims fell squarely within the LAT's exclusive jurisdiction under s. 280 of the Insurance Act.

However, the court found it had jurisdiction to hear the claims against FSCO for regulatory negligence, as those allegations did not directly concern benefit entitlements or amounts.

An insured claimed under a jewelry insurance policy for a ring valued at over $500,000 allegedly stolen during a late-night beach walk in the Dominican Republic.

The insurer denied the claim based on suspicious circumstances and the insured's prior loss of another valuable ring.

The motion judge granted summary judgment in favor of the insured, awarded punitive damages for bad faith, and ordered substantial indemnity costs.

On appeal, the court found the motion judge erred by refusing to allow the insurer to amend its pleadings to rely on fraud exclusions and by failing to consider credibility issues and suspicious circumstances relevant to whether the loss was proven.

The appeal court set aside the judgment and remitted the matter for trial.

The moving party brought a motion under Rule 34.10 of the Rules of Civil Procedure to compel the responding parties to produce documents in advance of cross-examinations on affidavits sworn in support of the responding parties' summary judgment motions.

The responding parties argued the motion was prohibited under Rule 48.04(1) because the action had been set down for trial, and that the requests were disproportionate.

The court held that Rule 48.04(1) did not bar the motion and the moving party had not waived the right to documentary discovery.

However, because the responding parties had never served affidavits of documents, the court dismissed the motion without prejudice, directing the responding parties to first serve affidavits of documents so that relevance and proportionality could be properly assessed.

The defendants, having successfully obtained a temporary stay of two securities misrepresentation actions (a class action and an individual action), sought costs on a partial indemnity scale.

The plaintiffs objected, arguing the costs were excessive, success was divided, and the defendants should adhere to the Costs Grid.

The court awarded the Palladium Defendants $25,000 and KPMG LLP $20,000, all inclusive, finding these amounts reflected the fair and reasonable expectations of the unsuccessful litigants, considering the complexity and importance of the underlying motion, while acknowledging the plaintiffs' partial success in reducing the requested amounts.

The defendants moved to temporarily stay two related securities misrepresentation actions: an individual action (Vaeth Action) and a proposed class action (Johnson Class Action).

The court granted the temporary stay, finding irreconcilable conflicts of interest for the shared counsel (Morganti Legal) representing both the individual plaintiffs (who intended to opt-out of the class action) and the representative plaintiff of the class action.

The court also found independent reasons to stay the individual action to avoid multiplicity of proceedings and ensure judicial economy, pending the certification and leave motions in the class action.

A non-party sought leave to appeal an order requiring production of decades of corporate financial statements in connection with a summary judgment motion.

The order, originally made by a master and upheld on appeal, required production of financial statements of a pharmaceutical company alleged to be carrying on the business of a predecessor company whose sale generated royalty and option agreements benefiting the plaintiffs.

The moving party argued that conflicting decisions existed and that the order was incorrect because the documents were irrelevant, disproportionate, and improperly required disclosure from a non-party.

The court held that the alleged conflicting decisions involved different procedural stages and discretionary contexts, and therefore did not conflict in principle.

It further found the financial statements had a semblance of relevance to issues of liability, including whether the successor company continued the predecessor’s business.

Leave to appeal was refused.

In a certified class proceeding alleging a price-fixing conspiracy in the market for DRAM (dynamic random access memory) devices contrary to Part IV of the Competition Act and related torts, the representative plaintiffs sought court approval of a negotiated settlement with one defendant.

The settlement required the settling defendant to pay $5.75 million for the benefit of class members in Ontario, British Columbia, and Québec and to provide extensive cooperation in the ongoing litigation against non-settling defendants.

The agreement also included a bar order preventing contribution and indemnity claims against the settling defendant while permitting discovery cooperation and proportional liability determinations at trial.

Applying established class action settlement approval principles, the court concluded the settlement was fair, reasonable, and in the best interests of the class.

The settlement approval order was granted.