Andrew Lewis

Certain class members who had previously opted out of a certified class proceeding sought to opt back into the class action after a settlement was reached and a related third party claim was stayed.

They argued they were confused at the time of opting out and unaware that the third party claim against distributors might be stayed.

The court held that voluntary opt-outs may only be invalidated where there is evidence of misinformation, coercion, or other misconduct undermining the opt-out process.

No such evidence existed, and the explanation for opting out was neither credible nor legally relevant.

Emphasizing the importance of finality and integrity in the opt-out mechanism under the Class Proceedings Act, the motion to opt back into the class proceeding was dismissed with costs.

In a class proceeding settlement approval context, the court considered a motion by class counsel for approval of contingency legal fees equal to one-third of the settlement fund.

The court had initially approved a 25% fee but requested further submissions regarding the higher amount.

Upon reviewing supplementary submissions, the court concluded that contingency fee agreements fully understood and accepted by representative plaintiffs should be treated as presumptively valid.

The court reasoned that focusing on docketed time or retrospective assessments of litigation risk provides little principled guidance and undermines predictability in class action litigation.

Finding that the representative plaintiff understood and supported the fee, that the percentage was consistent with personal injury contingency norms, and that the amount was not unseemly, the court approved the full one‑third contingency fee.

Following earlier reasons dismissing most applicants’ requests for interim advancement of legal expenses from a corporation, the court addressed the costs of the applications.

The respondent corporation sought substantial indemnity costs exceeding $559,000 or alternatively partial indemnity costs, while the applicants argued that costs should remain in the cause of the underlying indemnity issue.

The court held that although the respondent was largely successful, payment of costs should be contingent on the outcome of the trial determining entitlement to indemnity.

The court fixed partial indemnity costs of $25,000 for a related motion and $165,000 for the applications, subject to specific allocations among applicants and exceptions for one successful applicant and another who withdrew participation.

The appellant former directors and officers of Look Communications Inc. sought advance funding for their legal costs to defend an action brought against them by the corporation for breach of fiduciary duty.

The corporation resisted the claims under s. 124(4) of the Canada Business Corporations Act, arguing the appellants had not acted in good faith.

The application judge refused advance funding, finding the corporation had established a strong prima facie case of bad faith regarding equity cancellation payments and legal retainers.

The Court of Appeal dismissed the appeal, confirming that s. 124(4) applies to actions brought by the corporation and that the strong prima facie case standard is the appropriate test for denying advance funding.

The appellant sued her former employer for wrongful dismissal and its executive chairman for intentional and negligent infliction of nervous shock.

The motion judge struck the claim against the executive chairman, finding he was protected by a limitation of liability clause in the appellant's employment contract.

On appeal, the Court of Appeal upheld the decision, applying the London Drugs exception to privity of contract.

The Court found the parties intended the limitation clause to apply to the executive chairman, who was acting in the course of his employment when he terminated the appellant.

Former directors, officers, and consultants of Look Communications Inc. sought interim advancement of their legal fees to defend against an action brought by Look alleging breach of fiduciary duty regarding bonus and equity cancellation payments.

The court held that s. 124(4) of the CBCA applies to actions brought directly by the corporation, requiring court approval for advancement.

The court found Look established a strong prima facie case of mala fides against the directors and officers, rebutting the presumption of good faith.

Advancement was denied for all applicants except one employee, Dolgonos, whose entitlement arose under an indemnity agreement not subject to s. 124(4).

The defendants brought a motion under Rule 21.01(1)(b) of the Rules of Civil Procedure to strike portions of an amended statement of claim against a corporate officer personally.

The plaintiff sought damages related to her termination of employment and pleaded tort claims for intentional or negligent infliction of nervous shock and punitive damages against the officer.

The court held it was plain and obvious that the tort claims had no reasonable prospect of success because allowing them would circumvent contractual exclusion and entire agreement clauses contained in the employment agreement.

Applying principles from Supreme Court of Canada jurisprudence concerning limitation of liability clauses and privity, the court found the exclusion clause extended to the officer acting within the scope of employment.

The claims against the officer were struck in their entirety without leave to amend.

The applicant, Labatt, brought an application seeking an interpretation of a renewal provision in a previous sponsorship agreement with the respondent, NHL.

The application judge found that the parties had reached a new, binding sponsorship agreement, a position that Labatt had not pleaded or advanced during the hearing.

The NHL and Molson appealed.

The Court of Appeal allowed the appeal, holding that it was procedurally unfair and contrary to natural justice for the application judge to base his decision on a novel theory of liability that was never pleaded and to which the respondents had no opportunity to respond.

The judgment was set aside and the matter remitted to a different judge.

The appellant appealed the judgment of Justice Andra Pollak of the Superior Court of Justice dated April 24, 2008, and the subsequent cost award.

The Court of Appeal agreed with the reasons of the lower court judge and dismissed the appeal, awarding costs to the respondent fixed at $8,000.

The appellants appealed an order granting the respondents, who were previously declared vexatious litigants, leave to proceed with an action under s. 140(3) of the Courts of Justice Act.

The Court of Appeal found the motion judge erred by misapprehending evidence regarding the appellants' knowledge of the respondents' claims prior to a settlement, and by treating the issue primarily as one of issue estoppel rather than examining the totality of the respondents' conduct.

The Court concluded the respondents' devious conduct to circumvent the vexatious litigant order constituted an abuse of process, allowed the appeal, and refused leave to proceed.

The appellant appealed a trial judgment regarding the eastern boundary of a traversing easement.

The Court of Appeal found that the trial judge erred by drawing the boundary adjacent to the appellant's house and over part of her front lawn, rather than reflecting the historical use of the property.

The appeal was allowed, and the judgment was varied to limit the easterly boundary of the traversing easement and adjust the possessory title accordingly.

The appellants, two trusts and their trustee, appealed a bankruptcy judge's decision dismissing their appeal from a Registrar's decision.

The Registrar had confirmed the trustee in bankruptcy's disallowance of the trusts' proofs of claims.

The Court of Appeal dismissed the appeal, agreeing with the bankruptcy judge that there was no evidence the cheques deposited into a numbered company controlled by the bankrupt were intended as loans.

Costs were awarded against the trusts and their trustee personally on a joint and several basis.

The appellant challenged a trial judgment on the basis that the corporate respondent's pleading lacked sufficient particulars and that the damages award was based on an excessive five-month period.

The Court of Appeal held that, although fuller particulars would have been preferable, it was clear the corporate respondent was advancing the claim accepted at trial.

The court further held that while it might have selected a shorter damages period, the trial judge's assessment was within the acceptable range.

The appeal was dismissed with costs.

The appellant, a corrections officer who was severely injured by an inmate, appealed a decision of the Criminal Injuries Compensation Board.

The Board had awarded the maximum amount for pain and suffering but deducted a $12,000 Non-Economic Loss (NEL) award received from the Workers' Compensation Board, pursuant to s. 17(3) of the Compensation for Victims of Crime Act.

The appellant argued this resulted in a double deduction because his long-term disability insurance also deducted the NEL award.

The Divisional Court dismissed the appeal, finding the Board properly exercised its discretion and that any dispute regarding insurance deductions was a matter between the appellant and his insurer.