Angus T. 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.

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 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 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 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 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.