Andrew McCoomb

The plaintiffs, an elevator maintenance company and its parent corporation, brought an urgent ex parte motion for a Mareva injunction and other injunctions restraining a former president and CEO, his wife, and their competing corporation from using the plaintiffs' credit cards or funds, soliciting customers or employees, and from making unauthorized changes to corporate governance documents.

The court found extraordinary urgency and a strong prima facie case of breach of fiduciary duty, conversion of corporate funds, misappropriation of corporate opportunity, conspiracy, and breach of a unanimous shareholder agreement.

Interim injunctions were granted restraining the defendants from using corporate funds and soliciting customers and employees, and restraining the individual defendant from altering corporate documents or breaching his fiduciary duties.

The Mareva injunction was refused on the basis that there was insufficient evidence of a serious risk the defendant would remove or dissipate assets before judgment.

The court approved a $500 million settlement in a national class action concerning a price-fixing conspiracy in the packaged bread market, resolving claims against Loblaw Companies Limited and related entities.

The settlement includes a substantial damages payment, a distribution protocol for class members, and a cooperation agreement by Loblaw to assist in ongoing litigation against non-settling defendants.

The court also approved class counsel fees and the payout to a third-party funder, finding the settlement fair, reasonable, and in the best interests of the class.

This decision concerns the interpretation of a “Material Adverse Change” (MAC) clause in a governance agreement between Simpson Oil Limited (SOL) and Parkland Corporation.

The court found that the departures of Parkland’s CFO and a majority of its senior management constituted a MAC under the agreement, thereby lifting restrictions on SOL’s voting and acquisition rights.

The decision turns on whether certain events listed in the MAC definition are mandatory triggers or merely illustrative, and the court concludes they are mandatory.

The court granted an extension of an interim interlocutory and mandatory order restraining the transfer, access, and use of the internet domain "ditlabs.io" pending the outcome of the action.

The decision addresses the requirements for a Mareva injunction, including the presence of a strong prima facie case, irreparable harm, and the balance of convenience.

The court found that KNNX Corp. had established a strong prima facie case that it was the rightful owner of the domain, that there was a risk of irreparable harm if the injunction was not extended, and that the balance of convenience favoured the plaintiff.

The order was granted to preserve the status quo and prevent dissipation of the domain asset.

The Plaintiffs brought a motion to reconsider a previous certification ruling that dismissed the action against Maple Leaf Foods Inc. (MLF) in a class action alleging price-fixing.

The Plaintiffs sought to certify the action against MLF, presenting new evidence including a Second Information to Obtain (ITO), MLF's annual reports, Canada Bread's Agreed Statement of Facts (ASF) from a criminal proceeding, and emails from Canada Bread's files.

MLF opposed the motion and brought cross-motions to exclude the new evidence and strike the Plaintiffs' amended claims.

The court dismissed the Plaintiffs' motion, finding that the 'new evidence' was either not new, inadmissible hearsay, or did not substantively alter the lack of a viable cause of action against MLF.

The court emphasized the principle of finality in litigation, stating that a certification dismissal for lack of cause of action is a final order and cannot be revisited without meeting a strict test for new evidence (Sagaz test), which was not met here.

The court also granted MLF's motion to exclude the evidence and strike the amended statements of claim against MLF.

The plaintiffs moved for court approval of a proposed settlement in a class action against Symantec Corporation concerning defective NortonTM-branded security software.

The settlement, valued at approximately $21.7 million, includes cash payments, free licenses, and discount codes for 640,000 Ontario class members.

After 7 years of litigation, discovery, and mediations, the parties reached an arm's length agreement.

The court approved the settlement, finding it fair, reasonable, and in the best interests of the class, despite a small number of objections.

The respondent sought costs on a partial indemnity scale after successfully defending an application to wind up the company.

The applicant argued for no costs or reduced costs, citing the respondent's failure to upload a Bill of Costs in advance and claiming the fees were excessive.

The court found the respondent's claimed costs to be fair and reasonable, noting the application's importance and moderate complexity, and that the applicant's own costs were comparable.

The court fixed costs payable by the applicant to the respondent in the amount of $142,890.01.

The applicant, a co-founder and former CTO of the respondent technology company, brought an application to wind up the company under section 207 of the Business Corporations Act.

The applicant alleged the company could not continue its business due to its liabilities and that a breakdown in the relationship between the founders made it just and equitable to wind up the company.

The court dismissed the application, finding the company had recently raised significant capital and was not insolvent.

The court also held that while there was a breakdown of trust, the company was not a two-person partnership, and winding up was not a just and equitable remedy given the presence of other investors and employees.

The Court of Appeal for Ontario heard motions to quash an appeal of a class certification order in a price-fixing conspiracy case involving packaged bread.

The plaintiffs (appellants) argued the certification order, which defined the class, effectively dismissed claims of excluded persons and was thus a final order appealable under the Courts of Justice Act.

The defendants (moving parties) contended it was a certification order governed by the Class Proceedings Act (CPA) and that, under the CPA's transitional provisions, the appeal should lie to the Divisional Court with leave.

The court found the certification order was a procedural order, not a final one, as it did not decide the ultimate merits of any claim.

Consequently, the appeal provisions of the CPA applied.

Furthermore, the court determined that the pre-2020 amendments to the CPA governed the appeal because the original proceeding was commenced before the amendments came into force.

The appeal to the Court of Appeal was therefore quashed.

The court held a case conference to settle the terms of a certification order following a decision to certify a class action regarding alleged price-fixing of packaged bread.

The court reviewed competing draft orders and approved the producer defendants' draft with specific amendments, including adjustments to the definition of packaged bread, the class definition, and the retention of constructive trust as a common issue.

The parties separated after an eight-year marriage.

The applicant mother struggled with alcohol abuse, leading to the respondent father becoming the primary caregiver for their three children.

The court maintained the current parenting schedule, with the children residing primarily with the father and the mother having parenting time 5 out of 14 days subject to alcohol monitoring.

The court also resolved complex financial issues, including valuing the father's security business on the date of marriage, determining the parties' incomes for support purposes, and addressing claims of unjust enrichment and resulting trust.

The father was ordered to pay an equalization payment of $882,115.16 and retroactive spousal support, while the mother was ordered to pay retroactive section 7 expenses.

The plaintiffs brought a motion to certify a class action against major producers and retailers of packaged bread, as well as their parent companies, alleging a 16-year price-fixing conspiracy.

The court certified the action against the producer and retailer defendants on behalf of direct and indirect purchasers of packaged bread.

However, the court refused to certify the claims against the parent companies, finding no material facts pleaded to support their involvement.

The court also refused to certify claims on behalf of 'umbrella purchasers' (those who bought fresh bread or packaged bread from non-defendants), finding no plausible methodology to prove that the price-fixing of packaged bread caused an actionable increase in the prices of those non-competing or diverse products.

Torstar Corporation sought court approval for a plan of arrangement to sell all its shares to NordStar Capital LP for $0.74 per share.

The arrangement was overwhelmingly approved by shareholders.

Competing bidder CMMH and dissenting shareholder Patrick Collins objected, alleging inadequate disclosure and a flawed bidding process due to hard lock-up agreements.

The court found the arrangement had a valid business purpose, the process was conducted in good faith with professional advice, and the objections were resolved fairly.

The court emphasized the weight given to the shareholder vote and the Board's business judgment, particularly in uncertain times, and approved the arrangement.

The plaintiff franchisor requested the immediate scheduling of a motion for injunctive relief on the basis of urgency during the COVID-19 pandemic, which the defendant franchisees opposed.

The court found that the dispute, which centered on unpaid royalty fees and had been ongoing since September 2019, did not meet the criteria for urgent scheduling under the court's COVID-19 notices.

The request for immediate scheduling was denied, and a timetable was set for the motions to be heard at a later date.

The defendant moved to strike the plaintiff's statement of claim under Rule 21.01(1)(b) for disclosing no reasonable cause of action.

The plaintiff alleged breach of contract, breach of confidence, conspiracy, inducing breach of contract, intentional interference with economic relations, and unjust enrichment arising from the defendant allegedly sharing the plaintiff's confidential pricing information with a competing bidder.

The court dismissed the motion to strike for most claims, finding they met the low threshold of disclosing a 'germ or scintilla' of a cause of action.

However, the court struck the claim for intentional interference with economic relations, as the pleading failed to allege an unlawful act against a third party, but granted the plaintiff leave to amend.

The defendant, Toronto Hydro Corporation, brought a motion to dismiss or stay the action due to the plaintiffs' failure to pay approximately $45,000 in interlocutory costs orders.

The court, balancing the interests of allowing a litigant their day in court and enforcing court orders, granted the plaintiffs a final opportunity to comply with the outstanding costs orders.

The action was stayed, and the plaintiffs were ordered to pay the costs in six equal monthly installments, with leave for the defendant to seek dismissal if payments default.

The plaintiff sought to introduce preliminary inquiry transcripts as evidence in support of a pending Mareva injunction motion.

The defendants opposed, arguing that a publication ban from the criminal proceedings prohibited their use and that the transcripts were inadmissible hearsay.

The court ruled that filing the transcripts would breach the publication ban, they were not "otherwise admissible by law" under the Ontario Evidence Act, and their evidentiary purpose in the preliminary inquiry differed from the Mareva injunction motion, leading to actual prejudice for the defendants.

Consequently, the plaintiff was not permitted to rely on the transcripts.

The defendant Sherwin H. Shapiro brought a motion to strike new causes of action (knowing assistance in breach of fiduciary duty and knowing assistance in breach of trust) added by the plaintiff, Ontario Professional Fire Fighter’s Association (OPFFA), in a Fresh As Amended Statement of Claim.

Shapiro argued that these new claims were statute-barred by the Limitations Act and that the filing of the Fresh Claim constituted an abuse of process.

The court dismissed the abuse of process argument, finding the plaintiff's actions technically consistent with Rule 26.02(a) of the Rules of Civil Procedure.

The court also dismissed the motion to strike based on limitation periods under Rule 21.01, reiterating that such issues, particularly those involving discoverability, are typically inappropriate for determination at the pleadings stage under Rule 21 and are better suited for summary judgment or trial after pleadings have closed.

The court found that the material facts necessary to support the new causes of action were implicitly present in the original claim, and it was not plain and obvious that the claims were statute-barred.

A case conference was held to address procedural issues following previous endorsements.

The court directed the parties to draft separate orders for six prior motions.

The court also scheduled a Rule 21 motion brought by the defendant Shapiro regarding the plaintiff's Fresh as Amended Statement of Claim, and scheduled the plaintiff's renewed motion for a Mareva injunction.

Finally, the court set a timetable for written submissions regarding the Atkinson defendants' request to pay outstanding costs orders from funds held in trust.

The Atkinson defendants brought a motion seeking approval to withdraw funds held in trust to pay legal fees and costs awards.

The plaintiff opposed, arguing that the funds were subject to a solicitor's undertaking given by the Atkinson defendants' counsel to hold them in trust pending the resolution of the dispute.

The court found that a clear and unambiguous undertaking existed, binding the funds to remain in trust until entitlement was determined by the court or by agreement between the parties.

Consequently, the Atkinson defendants' request to access the funds was denied.