Allan D. J. Dick

In this certified class action, the defendant moved for summary judgment dismissing claims by private issuers of motor vehicle licences and registrations alleging breach of contract and unjust enrichment arising from compensation fixed by the province.

The plaintiff informally sought summary judgment on issues including commercially reasonable compensation, good faith, and the anti-fettering doctrine.

Applying the post-Hryniak summary judgment framework, the court held that the action raised numerous genuine, novel, and profound issues at the intersection of private and public law that should be determined at trial.

The court emphasized the need for a full evidentiary record, party vindication, and appellate review.

Both the motion and the informal cross-request for summary judgment were dismissed, with costs in the cause.

The appellant appealed a decision upholding a Master's finding that the appellant owner repudiated a construction contract.

The Master found that the contract evolved over time due to multiple plan changes, requiring the owner to act reasonably and renegotiate construction milestones.

The Divisional Court dismissed the appeal, holding that the Master's conclusions were rooted in the evidence and the appeal judge correctly applied the palpable and overriding error standard of review.

Following dismissal of an application challenging confirmation of a Master’s Report after a lengthy trial, the successful party sought costs on a partial indemnity basis.

The court reviewed the reasonableness of the hours claimed for responding to and preparing for the motion, noting that the same counsel had participated at trial and were already familiar with the evidence.

The court held that the preparation time claimed for the motion was excessive and reduced it by half.

Applying the principle that costs awards must be reasonable and reflect parties’ expectations as to quantum, the court fixed a reduced lump‑sum costs award.

The defendants applied under Rule 54.09(2) to oppose confirmation of a master's report following a 12‑day construction lien trial.

The master had found that the owner repudiated the construction contract, that performance milestones were implicitly amended due to design and structural changes imposed by the owner, and that the contractor was entitled to damages and a construction lien.

On review, the court applied the appellate standard of review requiring an error in principle or palpable and overriding error.

The court held that the master's factual findings regarding the applicable construction plans, scope changes, and amended milestone sequence were supported by the evidence and entitled to deference.

The application to oppose confirmation of the master's report was dismissed.

The appellants appealed orders arising from a franchise rescission dispute under the Arthur Wishart Act, 2000.

The respondents had obtained partial summary judgment on rescission-related claims, and a Master fixed compensation under s. 6(6).

The appellants also sought to amend their pleading to assert equitable set-off, but the appeal court upheld the interpretation that any such amendment was confined to the still-outstanding s. 7 claims and could not reopen the already-adjudicated s. 6 claims.

The court further held that the Master's factual findings attracted deference and disclosed no misapprehension, error in principle, or palpable and overriding error.

The appeals were dismissed with fixed costs to the respondents.

The plaintiff brought a motion for approval of a proposed class action settlement and class counsel fees.

The class action involved franchisees alleging the franchisor breached its duties of good faith and fair dealing regarding changes to the franchise system.

The court approved the $8,500,000 settlement, finding it fair, reasonable, and in the best interests of the class members.

The court also approved class counsel fees of $2,125,000 plus HST and disbursements, noting the significant risk assumed by class counsel.

In a certified class action arising from the termination of automobile dealerships following the 2009 automotive industry restructuring, the plaintiff brought a Rule 30 motion seeking production of documents withheld on the basis of solicitor‑client privilege by a non‑party dealers’ association.

The court reviewed 211 disputed documents in camera to determine whether they constituted privileged legal advice or merely legal information.

Applying the distinction between general legal information and particularized legal advice concerning rights, duties, or liability, the court found that many communications concerned general information about potential bankruptcy proceedings under the CCAA rather than legal advice.

Of the documents reviewed, 60 were held to be privileged while the remainder were ordered produced.

The decision clarifies the analytical distinction between legal advice and legal information for purposes of solicitor‑client privilege in document production disputes.

Former franchisees rescinded their franchise agreements under the Arthur Wishart Act after failing to receive a disclosure document.

Following a reference determining the franchisor’s payment obligations under s. 6(6) of the Act, the franchisor defendants moved to oppose confirmation of the Master’s report, challenging awards for inventory, supplies and equipment, the refusal to offset profits earned during operation, and the costs award.

The court applied the deferential standard governing review of a master’s report and held that no error in principle or misapprehension of evidence had been demonstrated.

The court confirmed that payments under s. 6(6)(a)-(c) are independent statutory entitlements and cannot be offset by profits under s. 6(6)(d).

The Master’s findings and costs award were upheld.

Following the dismissal of two Rule 30 motions brought by the defendants seeking production of allegedly privileged documents in a certified class proceeding, the court determined the appropriate costs award.

Although the court agreed that solicitor-client privilege had been expressly waived during cross-examinations, the motions were dismissed because the legal advice received by an individual class member was irrelevant to the certified common issues.

On the costs issue, the court rejected the defendants’ submission that success was divided and held that the responding party was substantially successful.

Applying the factors in Rule 57.01(1) and the guidance from the Court of Appeal in Boucher, the court fixed a fair and reasonable costs award below the amount claimed.

Costs of $20,000 all-inclusive were awarded to the responding party, divided equally between the two defendants.

In a certified class action involving former automobile dealers whose franchises were terminated during the 2009 automotive industry restructuring, the defendants sought production of documents relating to legal advice the representative plaintiff received from its own lawyer when signing wind‑down agreements.

The moving parties argued that solicitor‑client privilege had been waived and that the advice was relevant to issues such as causation and damages.

The court held that although privilege regarding advice about the wind‑down agreement had been expressly waived during earlier cross‑examination, relevance for discovery in a class proceeding prior to the common issues trial is confined to the certified common issues.

Because the certified issues focused on the defendants’ conduct under provincial franchise legislation and alleged professional duties, and did not require examination of the individual legal advice received by class members, the requested documents were not relevant at this stage.

The motions to compel production were therefore dismissed.

The defendants brought a motion under s. 47(1) of the Construction Lien Act to discharge the plaintiff’s construction lien and certificate of action and to dismiss the action.

The court held that the lien against the property owner was invalid because the plaintiff failed to provide the written notice required under s. 19(1) of the Act.

The court further found, on the evidentiary record, that the amount already paid exceeded the value of the work actually performed under the contracts.

Applying the summary judgment principles in the Rules of Civil Procedure and the guidance in Combined Air Mechanical Services Inc. v. Flesch, the court concluded a trial was unnecessary.

The lien and certificate of action were discharged and the action dismissed as against the relevant defendants.

Following a reference determining compensation owed under s. 6(6) of the Arthur Wishart Act (Franchise Disclosure), 2000 after rescission of a franchise agreement, the court considered the appropriate costs award.

The successful franchisee plaintiffs sought substantial indemnity costs after obtaining an order requiring the defendants to pay $290,830.72 plus interest.

The defendants argued no costs should be awarded because the amount had effectively been conceded.

The court held that the plaintiffs were the successful party and entitled to costs, but rejected substantial indemnity costs absent reprehensible conduct or success under Rule 49.

Partial indemnity costs were fixed at $25,000 inclusive of disbursements and taxes.

Following a declaration that the plaintiffs validly rescinded their franchise agreement, a reference hearing was held to determine compensation under s. 6(6) of the Arthur Wishart Act.

The court awarded compensation for refunded money, inventory, and equipment, but denied compensation for operating losses because the plaintiffs failed to properly record cash transactions and could not substantiate their claimed expenses.

Total compensation of $290,830.72 was ordered.

The appellant franchisee operated a gas station under a one-year franchise agreement with the respondent franchisor.

The franchisee sought to rescind the agreement and claim a refund under the Arthur Wishart Act because the franchisor had not provided a disclosure document.

The franchisor successfully moved for summary judgment on the basis that it was exempt under s. 5(7)(g)(ii) of the Act, which applies to agreements valid for no longer than one year that do not involve a non-refundable franchise fee.

The Court of Appeal upheld the motion judge's finding that the agreement's one-year term and requirement to pay royalties, rather than a franchise fee, satisfied the exemption criteria.

The appellant franchisor appealed a summary judgment declaring that the respondents validly rescinded their franchise agreement due to a lack of disclosure.

The franchisor argued it was exempt from disclosure obligations under the resale exemption of the Arthur Wishart Act, claiming it merely consented to the transfer between the former franchisee and the respondents.

The Court of Appeal dismissed the appeal, finding the franchisor was actively involved in the transaction by directing the respondents to the vendor, participating in negotiations, and requiring the execution of additional documents not specified in the original franchise agreement.

Consequently, the grant was 'effected by or through the franchisor', nullifying the exemption.

The defendants moved for leave to appeal an order certifying a class action brought by the plaintiff franchisee.

The defendants challenged the certification of several common issues relating to GMCL's alleged breach of statutory duties and Cassels Brock & Blackwell LLP's alleged negligence and breach of contract.

The Divisional Court granted leave to appeal in part.

Leave was granted regarding the common issues of whether GMCL failed to disclose material facts and interfered with the right to associate, as these required individual inquiries.

Leave was also granted regarding the claims against the law firm, as there was conflicting authority on whether loss of chance requires proof that the plaintiff would have acted differently but for the breach.

Leave was denied for the remaining issues, and a request to stay the action against the law firm was refused.

The plaintiffs sought leave to appeal a cost award made by the motions judge following the certification of their class proceeding.

The plaintiffs argued the motions judge ignored established principles, such as costs following the event and the reasonable expectations of the unsuccessful party, and improperly applied the principle of access to justice to the defendants.

The Divisional Court found that the motions judge properly exercised his discretion, considering all relevant factors and principles, and that there was no conflicting decision.

The motion for leave to appeal was dismissed.

The respondents sought costs of $77,362 for the motion for leave to appeal, the motion to expedite the appeals, and the appeals.

The Court of Appeal noted that the arguments were similar to those advanced before the motion judge and the Divisional Court.

The Court fixed the respondents' costs on a partial indemnity scale at $45,000, inclusive of disbursements and taxes, payable by the appellants.

The appellant franchisor appealed an order declaring that provisions in its standard franchise agreement requiring franchisees to release the franchisor from liability as a condition of renewal or transfer were void and unenforceable.

The Court of Appeal dismissed the appeal, holding that such releases violate sections 4 and 11 of the Arthur Wishart Act by forcing franchisees to waive statutory rights and interfering with their right to associate in a class proceeding.

The Court also upheld the application of Ontario law to franchisees operating outside the province due to the agreement's choice of law clause.

The appellants, a restaurant franchisor and its food distributor, appealed a Divisional Court decision certifying a class action brought by former franchisees.

The franchisees alleged the appellants engaged in a price maintenance scheme, civil conspiracy, and breach of contract by charging exorbitant prices for supplies.

The Court of Appeal upheld the certification, finding that the motion judge erred by focusing too heavily on the individual nature of damages and failing to recognize that the breach of the Competition Act, conspiracy, and breach of contract claims constituted valid common issues.

The court also affirmed that aggregate damages provisions under the Class Proceedings Act could potentially be utilized at trial.