Andy Seretis

Class Counsel brought a motion for approval of a further instalment of fees in an ongoing competition law class action regarding alleged price-fixing in the foreign exchange market.

The plaintiffs had settled with fourteen groups of defendants and the action continued against the remaining non-settling defendants.

The court reviewed the risks undertaken, the results achieved, and the docketed time, finding the requested fees of $6,325,000, plus costs and disbursements, to be fair and reasonable.

The fee request was approved.

The plaintiffs in a class action regarding foreign exchange price fixing brought a motion to amend the Distribution Protocol for the $110 million settlement proceeds.

The proposed amendments included transferring unused funds from the Indirect Claims Fund to the Direct Claims Fund, setting a minimum $1,000 payout for approved Direct Claimants, and removing the requirement to consider compensation received in other jurisdictions.

The court granted the motion, finding the amendments were administrative, imposed no additional burden on the defendants, and fell within the court's broad discretion under section 12 of the Class Proceedings Act, 1992.

The appellants sought to appeal a motion judge's decision dismissing their motion to stay an action in favour of arbitration.

The respondents raised a jurisdictional objection based on section 7(6) of the Arbitration Act, 1991, which provides that there is no appeal from the court's decision on a motion to stay.

The Court of Appeal held that section 7(6) precludes any appeal from a decision on a motion to stay, whether granting or refusing the stay, and therefore dismissed the appeal on jurisdictional grounds without reviewing the motion judge's analysis.

The plaintiff brought a motion seeking answers to questions refused on discovery in a wrongful competition claim.

The court addressed eight remaining disputed questions after the defendants agreed to answer five.

The motion concerned the production of electronic documents, inspection of a personal computer, legal advice, other business operations, alteration of ballistics reports, and production of corporate financial records.

The court dismissed requests for electronic document production and computer inspection due to lack of evidence of missing documents, and questions about unrelated legal advice and other businesses as speculative.

However, the court ordered answers regarding the alteration of ballistics reports and the production of corporate financial records, finding them relevant and proportional to the claims for accounting and damages.

The Martin Defendants sought a stay of action against them in favour of arbitration, relying on s.7(1) of the Arbitration Act, 1991.

The Plaintiffs opposed the motion, arguing that granting a partial stay would unreasonably bifurcate the proceedings because the fourth defendant, TDL Group Corp., was not a party to the arbitration agreements, and all claims arose from closely related facts.

The court dismissed the motion for a partial stay, finding it unreasonable to bifurcate the action and that doing so would lead to a multiplicity of legal proceedings, contrary to the policy reflected in s. 138 of the Courts of Justice Act.

The applicant, a secured creditor, applied to adjudge the respondent bankrupt and sought a declaration that its perfected security interest under the Personal Property Security Act took priority over class counsel's first charge under the Class Proceedings Act regarding a $3 million costs award.

The court adjudged the respondent bankrupt and found the costs award was the respondent's property.

However, the court held that the first charge under the Class Proceedings Act is essentially a solicitor's lien, which is exempt from the Personal Property Security Act.

Therefore, class counsel's charge takes priority over the applicant's secured claim.

The court approved the class action distribution plan, which allocated proceeds proportionally based on prior wind-down payments, and the class counsel's retainer agreement, fees, and disbursements.

The court also approved honourariums for the representative plaintiff and another instrumental class member.

A dispute regarding priority between General Motors' security interest and Class Counsel's first charge was noted for a subsequent decision.

This decision addresses two post-appeal issues: the costs of administering a class action settlement and the final quantification of damages.

The court ordered the defendant, Cassels Brock & Blackwell LLP, to pay reasonable administration costs.

For damages, following directions from the Court of Appeal, the court adopted the defendant's mathematical approach, awarding $28,745,304.00 to the plaintiff, Trillium Motor World Ltd., rejecting the plaintiff's proposed higher amounts based on proportional mathematical approaches or alleged enhanced bargaining power.

The plaintiff franchisor sought costs following a successful motion for summary judgment against the defendant franchisee.

The franchise agreement contained a provision entitling the franchisor to costs on a solicitor and client basis.

The court rejected the defendant's argument that the indemnity only applied to third-party claims and upheld the commercial bargain.

The court awarded the plaintiff costs on a substantial indemnity basis, fixed at $60,000 inclusive of disbursements and HST.

The plaintiff franchisor brought an action against the defendant, the sole shareholder of a former corporate franchisee, to recover over $1.7 million in costs awarded to the franchisor in a prior class action commenced by the franchisee.

The plaintiff moved for summary judgment relying on an indemnification provision in the franchise agreement and a personal guarantee signed by the defendant.

The court granted the plaintiff's motion, finding the defendant personally liable under both the indemnification provision and the guarantee.

The court also dismissed the defendant's cross-motion, rejecting arguments that the claim was statute-barred or previously released.

The plaintiffs in a class action alleging a price-fixing conspiracy in the foreign exchange market brought a motion to amend their statement of claim to add BMO and TD as defendants.

The proposed defendants argued the claims were statute-barred under the Limitations Act, 2002.

The plaintiffs claimed they only discovered the involvement of BMO and TD after receiving a proffer of evidence from a settling defendant.

The court dismissed the motion, finding that the plaintiffs failed to exercise reasonable diligence to discover the claims against BMO and TD before the expiry of the limitation period.

This is a motion to vary the Court of Appeal's decision in a solicitor's negligence case.

The moving party sought to clarify the trial judge's discretion regarding the final quantification of damages and the process for calculating the damages award, subject to a ceiling of $36.9 million.

The respondent opposed the motion.

The Court of Appeal dismissed the motion, finding that the moving party could not bring itself within the applicable rules permitting reconsideration of appellate decisions, and that it was not in the interests of justice to invoke the court's narrow jurisdiction to reconsider.

This appeal concerns a class action by General Motors of Canada Limited (GMCL) dealers against the law firm Cassels Brock & Blackwell LLP for breach of fiduciary and contractual duties.

During the 2009 financial crisis, Cassels represented three potentially conflicting clients: the Saturn Dealers, Industry Canada (regarding GMCL bailout financing), and GMCL dealers generally regarding a potential restructuring or insolvency.

The trial judge found that Cassels breached its duties by failing to disclose the conflict of interest with Industry Canada to the dealers and by failing to provide proper advice regarding Wind-Down Agreements (WDAs) offered by GMCL.

The dealers lost the opportunity to negotiate collectively for better compensation.

The Court of Appeal upheld the liability findings but reduced the damages award from $45 million to approximately $41 million (subject to further calculation regarding class composition).

This appeal arises from the 2009 General Motors of Canada bailout and the termination of franchise dealerships.

The franchisor offered Wind-Down Agreements to 240 dealers, providing payment in exchange for comprehensive releases of all claims, including those under the Arthur Wishart Act.

The dealers were required to obtain independent legal advice before signing.

A class action was subsequently brought by terminated franchisees claiming breaches of statutory rights.

The trial judge found the releases valid under the Tutor Time exception to section 11 of the Wishart Act, as they constituted settlements of known and existing claims entered into with legal advice.

The trial judge also held that covenants not to sue and indemnity provisions were void for public policy reasons but were severable from the release.

The Court of Appeal upheld both the validity of the releases and the severance of the covenant not to sue.

The appellants, out-of-province franchisors, appealed a motion judge's decision dismissing their challenge to the Ontario Superior Court's jurisdiction to hear an action brought by eight Saab dealerships, five of which were located outside Ontario.

The Court of Appeal upheld the motion judge's finding of jurisdiction simpliciter based on the appellants carrying on business in Ontario, noting that joining the out-of-province plaintiffs promoted commercial efficiency.

The Court also upheld the motion judge's forum non conveniens analysis and costs award.

The appeal was dismissed.

In a certified class proceeding regarding a franchise dispute, the plaintiff sought to bring a motion for partial summary judgment on the issue of whether the defendant was a franchisor under the Arthur Wishart Act.

The defendant opposed, arguing that all issues should proceed to the scheduled common issues trial.

The court held that permitting a partial summary judgment motion would not be proportionate, expeditious, or cost-effective, as it risked creating multiple final judgments and appeal routes.

The court exercised its power under section 12 of the Class Proceedings Act to prohibit the plaintiff from proceeding with the motion, directing that all issues be determined at the common issues trial.

The moving party (respondent on appeal) brought a motion for security for costs against the responding party (appellant), an insolvent representative plaintiff in a class action.

The moving party sought over $5.3 million for trial and appeal costs.

The Court of Appeal dismissed the motion, finding that the moving party had delayed significantly in bringing the motion, having known of the responding party's insolvency since 2012 but choosing not to seek security for tactical reasons.

This delay prejudiced the responding party by depriving it of the opportunity to seek funding from the Class Proceedings Fund and by allowing it to perfect its appeal at great expense.

The court also noted concerns about considering class members' assets when determining a representative plaintiff's impecuniosity.

This costs endorsement addresses the plaintiffs' request for partial indemnity costs following their successful resistance of a motion brought by the defendants.

The court found the plaintiffs' claim for $50,130.33, inclusive of fees, disbursements, and HST, to be reasonable, considering the complexity and importance of the underlying motion.

The court rejected the defendants' arguments to deny costs, including those related to the conduct of the first motion judge and the plaintiffs' affidavit evidence, emphasizing that the defendants' motion was successfully resisted.

The defendants moved to set aside service ex juris, dismiss for want of jurisdiction, or stay the action on the basis of forum non conveniens in a franchise dispute.

The plaintiffs sought a declaration of valid rescission of Saab Dealer Sales and Service Agreements under the Arthur Wishart Act (Ontario) and Alberta Franchises Act, and damages for statutory misrepresentation or breach of contract.

The court found a real and substantial connection to Ontario because the defendant franchisor carried on active business in the province.

The court also determined that California was not a clearly more appropriate forum, considering factors such as the residence of plaintiffs, location of witnesses, governing law, and the avoidance of proving Ontario law in a foreign jurisdiction.

The motion was dismissed.

The parties appeared on a motion to settle the terms of a judgment following a class action trial.

The court resolved three disputes between the plaintiff and the defendant law firm regarding the wording of the judgment.

The court held that the judgment should include a mechanism allowing for a potential reduction of the $45 million aggregate damages award, as the court had mistakenly assumed all 181 class members had retained the law firm.

The court also clarified that class members only needed to return a participation form or funding to create a retainer, and that this had to be done prior to the waiver of the Acceptance Threshold Condition.