Anastasija Sumakova

This application concerned the validity of primary wills for two testators, John Douglas Milne and Sheilah Marlyn Milne, which granted executors discretion to determine which assets were subject to the will based on whether probate was required.

The executors sought certificates of estate trustee with a will for these primary wills.

The court dismissed the applications, finding the primary wills invalid due to a lack of certainty of subject matter.

The court held that the subject matter of a trust, including a testamentary trust, must be objectively ascertainable at the time of death, without relying on the retroactive discretion of the estate trustees.

The secondary wills, which included all property without such discretionary exclusions, were deemed valid.

The applicants, engaged in combating government corruption in Malaysia, sought a Norwich Pharmacal order to compel financial institutions to produce confidential information about a Canadian real estate group.

The applicants suspected the group was funded by proceeds of foreign corruption and contemplated a private criminal prosecution for money laundering and receipt of proceeds of crime.

The court dismissed the application, holding that the applicants lacked reasonable grounds to believe an indictable offence had been committed, and that it would be inappropriate to use the court's inherent civil jurisdiction to bypass the careful balance struck by Parliament in the Criminal Code for criminal investigations and private prosecutions.

Following dismissal of the defendants’ motion for leave to appeal orders made in a class proceeding, the successful plaintiff sought costs exceeding $30,000 on a partial indemnity basis.

The court considered the complexity of the class action and the substantial materials filed but found the hourly rates claimed by counsel excessive.

The court also reduced photocopying disbursements due to unnecessary duplication.

The plaintiff was awarded reduced costs reflecting reasonable fees and adjusted disbursements.

The plaintiff sought clarification of a prior ruling on a motion for leave to commence a statutory cause of action for secondary market misrepresentation under Part XXIII.1 of the Securities Act.

The earlier decision granted leave for some alleged misrepresentations but dismissed others, including allegations relating to revenue recognition in the issuer’s 2008 financial statements.

The parties requested clarification regarding whether the alleged misrepresentation in the issuer’s October 14, 2009 Management’s Discussion and Analysis concerning revenue recognition had been determined.

The court held that although there was likely an internal control deficiency relating to revenue recognition at the time of the MD&A, there was no evidence that the deficiency, standing alone, was material.

Leave was therefore refused and the motion dismissed with respect to that alleged misrepresentation.

A shareholder sought leave under s. 138.8 of the Securities Act to commence a statutory secondary market misrepresentation action under s. 138.3 against a solar energy company and two of its officers.

The alleged misrepresentations concerned financial statements, internal control disclosures, and statements incorporated into a prospectus supplement.

The court held that the plaintiff demonstrated a reasonable possibility of success regarding alleged misrepresentations in the issuer’s original Q4 2009 financial statements and the October 2009 prospectus supplement, including related press releases and conference calls.

However, the plaintiff failed to establish sufficient evidence of misrepresentation in earlier 2009 interim financial statements or the 2008 revenue recognition disclosure.

Leave was granted in part and refused in part.

In a franchise class action, the plaintiffs challenged the defendants' claims of solicitor-client privilege over certain documents and discovery refusals.

The court established seven general principles to govern the privilege claims, holding that requests for general legal information to understand rights are privileged, and that a lawyer's file compiled using professional skill is protected by work product privilege.

The court further held that pleading good faith in response to a bad faith claim does not impliedly waive privilege unless the party relies on legal advice as a material element of its defence.

The court outlined a process for the parties to apply these principles to the disputed documents and refusals ahead of a continued hearing.