Andy Seretis

Following a 41-day trial where the plaintiff succeeded against one defendant (Cassels) but failed against another (GMCL), the court determined the costs awards.

The plaintiff was awarded partial indemnity costs against Cassels, apportioned at 40% of fees and 50% of disbursements to reflect the divided success of the action.

GMCL sought substantial indemnity costs against the plaintiff, arguing the plaintiff made unfounded allegations of misconduct.

The court rejected this, finding the allegations were not reprehensible, and awarded GMCL partial indemnity costs, subject to a 10% reduction for duplication between its two law firms.

The plaintiff was also awarded costs for successfully defending GMCL's counterclaim.

The representative plaintiff brought a class action on behalf of private issuers who operate ServiceOntario outlets, alleging that Ontario breached its duty of good faith and acted unreasonably in exercising its unilateral discretion to set their compensation.

The plaintiff argued that the compensation was inadequate and failed to keep pace with expenses.

The court dismissed the action, finding no evidence of dishonesty or bad faith by Ontario.

The court held that the duty of good faith applies to the performance of the contract, not to ensuring a commercially reasonable outcome, and that Ontario's compensation decisions were not commercially unreasonable in any event.

The alternative claim for unjust enrichment was also dismissed as the contract constituted a juristic reason for the enrichment.

The defendants appealed a motion judge's decision dismissing their motion to stay or dismiss the action for lack of jurisdiction or forum non conveniens.

The Court of Appeal allowed the appeal, finding that the motion judge's conduct gave rise to a reasonable apprehension of bias.

The motion judge had adjourned the motion on his own initiative to help the plaintiffs, dismissed the motion without hearing oral argument on key issues, made unwarranted findings of abuse of process, repeatedly criticized the defendants' counsel, and released delayed reasons that appeared to be an after-the-fact justification for his decision.

A new hearing before a different judge was ordered.

In this certified franchise class action arising from the 2009 automotive restructuring, the representative plaintiff alleged that the franchisor breached statutory duties of fair dealing, disclosure, and association when it issued wind-down agreements to affected dealers on short notice, and also alleged that class counsel acted in conflict and failed to protect the dealers' interests.

The court held that the franchisor did not breach its obligations under the Arthur Wishart Act or analogous provincial legislation, found the wind-down release enforceable as a settlement of existing and fully known claims, and dismissed the claim against the franchisor as well as the franchisor's counterclaim.

The court further held that the law firm retained for the dealer group had in fact entered into a solicitor-client relationship with the contributing dealers, that its retainer extended to pre-filing restructuring issues, and that it breached fiduciary, contractual, and tort duties by acting despite an undisclosed conflict with Industry Canada, failing to address the steering committee's internal conflict, and maintaining an unreasonable wait-and-see approach.

Applying a loss-of-chance analysis, the court found that the class lost a real and significant opportunity to negotiate collectively for higher wind-down payments and awarded aggregate damages of $45 million against the law firm.

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.

The defendants moved to dismiss a multi-plaintiff action brought by Saab dealers in five provinces, arguing Ontario lacked jurisdiction or was not the convenient forum.

The court held that the Canadian distributor carried on business in Ontario and throughout the provinces where it established dealers, and that the claims arose from the same series of transactions and common issues concerning the failure of a national dealer network.

Applying the Van Breda connecting factors, the court found jurisdiction simpliciter in Ontario for all claims, upheld joinder of all plaintiffs and defendants, and concluded Ontario was the most convenient Canadian forum.

The motion was dismissed and the plaintiffs were awarded substantial indemnity costs because the motion was found patently meritless and pursued in an abusive, wasteful manner.

The plaintiff sought certification of a class proceeding on behalf of operators of Sears Hometown Stores who entered into standard Dealer Agreements with the defendants.

The claim alleged that the contractual arrangements constituted franchise relationships under the Arthur Wishart Act (Franchise Disclosure), 2000, triggering statutory disclosure obligations and a duty of fair dealing, and alternatively alleged breach of contract, breach of the duty of good faith, and unjust enrichment arising from the defendants’ compensation structures, advertising practices, and direct sales into dealers’ market areas.

The court applied the certification criteria under s. 5(1) of the Class Proceedings Act, 1992 and found that the pleadings disclosed viable causes of action, the proposed class was identifiable, and the claims raised common issues concerning the defendants’ standardized contractual practices and compensation structure.

The court further held that a class proceeding was the preferable procedure and that the proposed representative plaintiff was adequate despite not currently operating a store and lacking resources to satisfy potential costs awards.

The action was certified as a class proceeding with revised common issues.

The moving parties (defendants) sought a stay of a motion judge's order dismissing their jurisdictional challenge as an abuse of process, pending their appeal of that order.

They also sought an extension of time to perfect the appeal.

The Court of Appeal applied the RJR-MacDonald test and granted the stay, finding that the appeal raised serious issues regarding jurisdiction and joinder, that there was some risk of irreparable harm due to the uncertain law on attornment, and that the balance of convenience favoured the moving parties.

The extension of time was also granted on consent.

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.

The applicant filed a human rights application alleging sexual harassment and discrimination in employment against a franchisee, its owner, and the franchisor, Wimpy's Diner.

The franchisor requested to be removed as a respondent on the basis that it was not the applicant's employer and did not exercise day-to-day control over the franchisee.

The Tribunal denied the request, noting its consistent practice of declining to dismiss applications against franchisors at a preliminary stage, as the issue of franchisor liability requires a full hearing.