Angus Thomson McKinnon

Following a successful motion by the defendant law firm for a declaration that lawyer-client privilege had been waived by co-defendants in a proposed class action, the court determined the costs of the motion.

The opposing defendants argued for no costs or a reduced amount, citing the novel circumstances and section 31 of the Class Proceedings Act.

The court rejected these arguments, finding the motion was of considerable strategic importance and not a test case justifying a departure from normal costs rules.

Costs were fixed at $16,000 all-inclusive, split equally between the two groups of opposing defendants.

In a proposed class action concerning a failed condominium development, the plaintiff alleged professional negligence against Blaney McMurtry LLP, a law firm that prepared investment instruments.

Blaney McMurtry LLP brought a motion for a declaration that solicitor-client privilege with its co-defendants had been waived.

The court found that several co-defendants, including those who had settled with the plaintiff and provided an affidavit criticizing the law firm's work, had impliedly waived privilege.

This waiver occurred because they made the quality of legal advice a material issue in the litigation, thereby making it unfair and inconsistent to maintain privilege.

The motion for a declaration of waiver was granted.

The plaintiffs requested a case conference to fix a trial date despite failing to complete a mandatory mediation by the court-ordered deadline.

One of the plaintiffs booked a vacation that conflicted with the scheduled mediation date, showing disregard for the court's prior order.

The court refused to dispense with the mediation requirement or hold a trial date as a placeholder, and consequently struck the action from the trial list until mediation is completed and the matter is truly ready for trial.

The plaintiff sued his former solicitor and law firm for negligence, breach of contract, and breach of fiduciary duty regarding the preparation of a marriage contract.

The marriage contract was previously set aside in a divorce proceeding because the plaintiff's former spouse did not understand its nature and consequences, largely due to the solicitor's failure to ensure proper independent legal advice and his conflict of interest.

The court found the solicitor breached the standard of care and his fiduciary duties.

The court held that 'but for' the solicitor's negligence, the marriage contract would have been enforceable, and awarded the plaintiff damages for the equalization payment, legal costs, and financing interest incurred.

The plaintiffs, a husband and wife, brought an action for wrongful dismissal against the defendants, a restaurant corporation and its majority financial backer.

The wife also claimed a remedy for shareholder oppression under s. 248 of the OBCA.

The court found that the wife was not expressly or constructively dismissed, but rather had resigned from her employment.

The husband's wrongful dismissal claim was also dismissed as he had received adequate payment in lieu of notice.

On the oppression claim, the court found that the defendants' failure to provide annual audited financial statements and the majority backer's post-litigation correspondence violated the wife's reasonable expectations as a shareholder.

The court ordered the purchase of the wife's shares, valuing them at $1.00 as of the date of the original oppressive conduct in 2010, given the corporation's significant debt at that time.

Claims for unjust enrichment and fraudulent misrepresentation were dismissed, as was the defendants' counterclaim for defamation.

The defendants in a solicitor's negligence action brought a motion seeking production of the plaintiff's former divorce lawyer's file.

The plaintiff refused production, claiming solicitor-client privilege.

The court held that the plaintiff impliedly waived privilege by pleading that the defendants caused his losses in the divorce proceedings, thereby putting his litigation strategy and mitigation of damages in issue.

The court ordered the production of the file and awarded costs to the defendants.

This proposed class action concerned a design defect in Kaba Simplex mechanical pushbutton locks manufactured before January 1, 2011, which could be opened using rare earth magnets.

The representative plaintiffs moved for certification of the action for settlement purposes, approval of the settlement, and approval of Class Counsel's fees.

The court granted the motion, finding that the settlement was fair, reasonable, and in the best interests of the class, providing full recovery by rectifying the defect.

The court also approved Class Counsel's fees and honorariums for the representative plaintiffs.

The plaintiffs brought a proposed class action alleging a global price-fixing conspiracy by the defendants regarding airfreight shipping services.

The defendants brought a motion to stay the action as it related to absent foreign claimants, arguing the court lacked jurisdiction simpliciter.

The court granted the motion, finding that the real and substantial connection test should not be applied to establish jurisdiction over absent foreign claimants, as an Ontario judgment would not be recognized abroad, offending principles of order, fairness, and comity.

Alternatively, the court held that even if jurisdiction existed, it would decline it on the basis of forum non conveniens.

Two legal associations brought motions for leave to intervene in an appeal concerning professional misconduct and the role of advocates.

The appeal raised issues regarding when zealous advocacy crosses into actionable misconduct and the use of prior court decisions in disciplinary proceedings.

The court granted both motions, finding that the proposed interveners, as recognized organizations of advocates, would provide useful perspectives on the implications of the issues raised without duplicating the parties' submissions.

The plaintiffs in the Bre-X class action brought a motion to dismiss the action without costs, relieve class counsel of an undertaking, approve counsel fees, and distribute remaining settlement funds cy-près.

The Trustee in Bankruptcy brought a cross-motion for its fees.

The court found that there was no reasonable prospect of recovery from the remaining defendants and approved the dismissal of the actions.

The court discharged class counsel's undertaking, approved the requested fees for class counsel and the Trustee, and allocated the unused adverse costs fund 50:50 between the Canadian and U.S. classes.

Finally, the court approved a cy-près distribution of the remaining Canadian settlement funds, allocating 80% to the Law Foundation of Ontario's Access to Justice Fund and 20% to the Telfer School of Business at the University of Ottawa.

The appellant appealed an order staying its Ontario action for negligent tax advice arising from the settlement of a Quebec action.

The Court of Appeal held that the motion judge applied the correct forum non conveniens principles and properly concluded that Quebec was clearly the more appropriate forum.

The court rejected the submission that reliance on the retainer agreement was erroneous, because the claim was pleaded in both tort and contract.

The appeal was dismissed with agreed costs to the respondents.

Following an earlier decision staying the plaintiff’s Ontario action on the basis that Quebec was the forum with the clearest connection to the dispute, the court determined costs of the successful defendants’ motion.

The defendants sought partial indemnity costs of $35,536.54, citing the complexity of the motion, extensive affidavit evidence, cross-examinations requiring interpretation, and the seriousness of allegations made in a $5 million claim.

The plaintiff argued the matter was straightforward and that the requested rates exceeded reasonable expectations.

Applying the principles governing costs under s. 131(1) of the Courts of Justice Act and Rule 57.01 of the Rules of Civil Procedure, the court fixed costs at a fair and reasonable amount rather than the defendants’ full claimed amount.

Partial indemnity costs of $24,000 all-inclusive were awarded to the defendants.

The defendants brought a motion to dismiss or stay an Ontario action alleging negligent legal advice and breach of contract arising from legal services provided in connection with Quebec litigation.

The plaintiff argued Ontario had jurisdiction because the defendant law firm carried on business in Ontario and an Ontario lawyer participated in providing the impugned tax advice.

The court held that presumptive connecting factors established jurisdiction simpliciter under the framework from Club Resorts Ltd. v. Van Breda.

However, applying the doctrine of forum non conveniens, the court concluded Quebec was clearly the more appropriate forum given the Quebec retainer agreement, Quebec governing law, the location of most witnesses and events, and parallel proceedings in Quebec.

The Ontario action was therefore stayed.

The plaintiffs, founders of a family-owned welding supply business, sued for wrongful dismissal after the business was sold to the manufacturer whose products they distributed.

The manufacturer argued that a term should be implied that the plaintiffs would retire upon the sale of the business given their senior age.

The court rejected this argument, finding that a term of reasonable notice is implied by law in employment contracts.

The court awarded 18 months' notice based on the plaintiffs' actual compensation, resulting in a joint and several damages award of over $1.1 million against the manufacturer and the business.

The plaintiff, acting as Trustee in Bankruptcy for Bre-X Minerals Ltd., brought a motion for leave to discontinue a derivative action against the remaining defendants without costs.

The action had dwindled to insider trading claims, and the Trustee lacked the financial resources to continue prosecuting it or to enforce any potential judgment overseas.

The court found the proposed discontinuance to be fair and reasonable to all affected shareholders and granted leave to discontinue the action pursuant to section 249(2) of the Business Corporations Act.

The plaintiffs in a Canadian class action brought a motion to divide approximately $5.2 million from a partial settlement with Bresea Resources Ltd. between Canadian and American class members.

The plaintiffs also sought to amend the settlement agreement to continue holding a reserve for adverse costs.

The court granted the amendment for the adverse costs reserve.

Regarding the settlement distribution, Canadian class counsel argued that a previously agreed 67:33 split in favour of the Canadian class was a mistake and should be 80:20 based on share ownership.

The court rejected the claim of mistake, finding the 67:33 split reasonable and fair as trading losses do not necessarily correlate directly with share ownership.

The defendants sought costs relating to four motions in a proposed class action that were ultimately never argued, including motions to strike portions of the statement of claim, for a pre-certification notice, for a sealing order, and for inspection of documents referred to in the pleadings.

The plaintiffs amended their pleadings multiple times and eventually produced certain documents, resulting in the withdrawal or abandonment of the motions.

The court held that the defendants had been put to unnecessary expense due to the manner in which the plaintiffs prosecuted the action.

Exercising its discretion under Rule 57.01(1) of the Rules of Civil Procedure, the court concluded that the defendants were practically the successful party in respect of the abandoned or unargued motions.

Costs of $14,000 all-inclusive were awarded to the defendants, payable in any event of the certification motion.

Costs decision arising from a Rule 21 motion in a proposed class proceeding.

The plaintiffs sought partial indemnity costs after largely resisting the defendants’ motion to strike, while the defendants sought costs because the plaintiffs abandoned several claims during the motion, including conspiracy and negligence claims involving the Attorney General of Canada.

The court found that the plaintiffs substantially succeeded on remaining claims but materially altered their pleadings and abandoned significant allegations during the hearing.

Given the divided success and the altered nature of the action, the court concluded that neither side should receive costs.

A certified class proceeding alleged that a manufacturer negligently designed, tested, marketed, and monitored mechanical heart valves coated with a silver-based antimicrobial surface.

The plaintiffs argued that the coating impaired tissue healing and increased the risk of complications including paravalvular leak, thromboembolism, and death.

After an extensive common‑issues trial involving scientific, epidemiological, and regulatory evidence, the court found the manufacturer exercised reasonable care in product design, testing, and post‑market surveillance.

The court concluded that the coating did not adversely affect tissue healing and did not materially increase the risk of most alleged complications, except for a temporary increase in paravalvular leak risk in the early post‑implant period.

Because negligence and causation were not established, the class action was dismissed.

The defendants brought a motion to strike the plaintiffs' proposed class action claims relating to the importation of vehicles from the United States into Canada.

The plaintiffs alleged that the defendants conspired to force importers to pay for unnecessary modifications and certifications by manipulating Transport Canada's admissibility list.

The court dismissed the motion to strike the Competition Act, Consumer Protection Act, and unjust enrichment claims.

The court struck the claim for unlawful purpose conspiracy without leave to amend, but allowed the unlawful conduct conspiracy claim to proceed.

The plaintiffs were granted leave to amend their claim for intentional interference with economic interests.