Anthony J. O’Brien

The moving party brought a motion for leave to appeal to the Divisional Court.

The court dismissed the motion for leave to appeal.

On agreement of the parties, costs were fixed at $10,000 payable to the successful respondent.

The Quebec Plaintiffs and the Defendants brought motions for leave to appeal an order of Belobaba J. dated November 21, 2019.

The Divisional Court dismissed both motions for leave to appeal.

Costs of $2,500 were ordered payable by each of the moving parties to the responding Ontario Plaintiffs.

The Ontario Plaintiff moved to quash the Quebec Plaintiff's appeal of an order dismissing a motion to stay the Ontario class action.

The Court of Appeal held that the refusal to stay the Ontario Action is an interlocutory order, not a final order, because it does not determine any substantive right to relief or substantive defence.

As the order is interlocutory, the appeal lies to the Divisional Court with leave, not to the Court of Appeal.

The appeal was quashed for lack of jurisdiction.

The plaintiffs sought interim relief by way of a Certificate of Pending Litigation (CPL) against five properties and an oppression remedy under the Ontario Business Corporations Act (OBCA), specifically the appointment of an inspector to audit financial information.

The court dismissed the request for a CPL, finding that the plaintiffs had no direct interest in the properties, which were corporate assets, and that a CPL would cause disproportionate harm to the defendants.

However, the court granted the request for an inspector, finding that the plaintiffs had standing and established a prima facie case of oppression based on their termination, inconsistent treatment as an employee versus partner, and denial of financial information.

The court determined that an inspector was necessary to clarify commingled funds and determine the plaintiffs' interests, with costs to be borne by the plaintiffs initially.

The plaintiff moved to certify a proposed class action against TD Asset Management Inc. (TDAM) alleging that TDAM improperly paid "trailing commissions" to discount brokers for "service and advice" that was not provided, thereby wasting Mutual Fund assets and causing investor losses.

The court granted certification for claims of breach of trust, breach of fiduciary duty, disallowance of improper expenses under s. 23.1 of the Trustee Act, and prospectus misrepresentation.

However, claims for knowing assistance, knowing receipt, and unjust enrichment were struck as analytically unworkable or lacking a proper basis in fact.

The court affirmed the plaintiff's standing as a unitholder to sue the trustee and manager, and found the class definition and common issues suitable for certification, reiterating that certification is a low hurdle not concerned with the merits.

The plaintiffs in a Quebec class action and the defendants brought motions to stay a parallel Ontario class action alleging securities misrepresentations.

The moving parties argued the Ontario action was duplicative and an abuse of process.

The court dismissed the motions, finding that the Ontario action was more comprehensive and not duplicative of the Quebec action when it was filed.

The court held that issues of preferability between parallel multi-jurisdictional class actions are better addressed at the certification stage rather than through a pre-certification stay motion for abuse of process.

In a proposed class action alleging price-fixing in the foreign exchange market, the plaintiffs sought to add BMO and TD as defendants.

BMO and TD argued the claims were statute-barred.

On cross-examination for the joinder motion, the plaintiffs' deponent refused to answer questions about a settlement proffer from another defendant, which the plaintiffs claimed was the source of discovering the claims against BMO and TD.

BMO and TD brought a motion to compel answers.

The court ordered the deponent to answer the questions, finding that the evidence was relevant to rebutting the presumption of discovery under the Limitations Act, 2002, and that any privilege attaching to the proffer had been waived when the plaintiffs voluntarily relied on it.

The interested parties appealed a motions judge's order requiring them and the garnishee, Vale Canada Limited, to produce contracts and assignment documents for an upcoming garnishment hearing.

The plaintiffs had obtained a default judgment against the defendant and sought to garnish amounts owed by Vale, alleging that the defendant had invalidly assigned its contracts to the interested parties to avoid garnishment.

The Divisional Court dismissed the appeal, finding that the motions judge properly exercised his discretion under Rule 60.08(16) of the Rules of Civil Procedure to order production of documents relevant to determining the rights and liabilities of the parties at the garnishment hearing.

The plaintiff brought a motion for summary judgment against the defendants for breach of fiduciary duty and misrepresentation related to a failed real estate development project.

The plaintiff sought rescission of the contract and recovery of his $500,000 investment.

The defendants argued that the claims were statute-barred by the Limitations Act, 2002, and raised genuine issues regarding the existence of a fiduciary duty, the cause of the project's failure, and the calculation of damages.

The court dismissed the motion for summary judgment, finding that there were multiple genuine issues requiring a trial, including the nature of the relationship between the parties, the state of the defendants' knowledge, and the limitation period.

The defendant, RBC General Insurance Company, sought leave to bring a motion for summary judgment under Rule 48.04 after the action was set down for trial.

The plaintiff, Lourdes Prabaharan (Boniface), opposed the motion.

The defendant aimed to determine if the plaintiff's damages were covered under OPCF-44R, which requires corroborative evidence for claims involving an unidentified automobile, potentially limiting coverage from $1 million to $200,000.

The court applied the considerations from *Dickson v. Di Michele* regarding leave to bring a motion post-trial list, focusing on whether it would be just, expeditious, and proportionate.

The court found that even if successful, the motion would not extinguish the need for a trial, and there was no explanation for the delay in bringing the motion earlier.

The court dismissed the defendant's motion for leave, finding it would not secure a just, most expeditious, and least expensive determination.

The plaintiffs, judgment creditors of Transport Development Inc. (TDI), brought a motion seeking an order compelling Vale Canada Limited (garnishee) and two interested numbered companies to answer questions and produce documents related to the assignment of a contract originally between Vale and TDI.

The plaintiffs sought this information to quantify amounts for a garnishment hearing, alleging the assignment might have been to avoid garnishment.

The interested parties opposed, arguing garnishment rules apply only to "debts" not "contracts" and citing delay, cost, and privacy concerns.

The court found that Rule 60.08(16)(d) provided broad jurisdiction to determine "any other matter in relation to a notice of garnishment" encompassing assigned debts and contracts.

The court emphasized the duty of honest performance in contracts and the relevance of the subsequent assignment to determine rights and liabilities.

The motion for disclosure was granted, subject to a sealing order, with costs reserved.

The bankrupt appealed a decision by the Registrar in Bankruptcy refusing to schedule his discharge application for a hearing before a Commercial List judge.

The Registrar had adjourned the hearing sine die pending the outcome of a separate action by the Trustee against the bankrupt's family for alleged preferential and fraudulent conveyances.

The Superior Court dismissed the appeal, finding that the Registrar properly exercised her discretion by balancing the relevant factors, including prejudice, interests of the parties, and the summary nature of discharge hearings where fraud allegations should be established beforehand.

The moving party, a director of the debtor companies, sought leave to appeal orders approving the sale of a lawsuit commenced by the debtors against their secured creditor.

The receiver had accepted a credit bid from the secured creditor to purchase the action.

The Court of Appeal dismissed the motion for leave to appeal, finding that the receiver's authority to sell the action was already determined in prior unappealed orders (res judicata) and that the proposed appeal lacked prima facie merit.

Following the dismissal of motions brought by a corporate director in receivership proceedings, the court determined the appropriate quantum of costs payable to the secured creditor and the court‑appointed receiver.

The director argued the creditor’s bill of costs reflected over‑lawyering and that legal research should not be compensable.

The court rejected that submission, emphasizing that legal research is an ordinary and necessary component of litigation and is properly recoverable.

Applying Rule 57.01 of the Rules of Civil Procedure and reasonable expectations of the losing party, the court fixed costs at $6,000 plus HST for the receiver and $27,500 inclusive for the creditor.

The court also refused to order that the costs be paid by a company in receivership rather than personally by the director.

The appellants sought to amend their statement of claim in a securities class action to add further particulars of wrongful conduct underlying their misrepresentation claims against the corporate respondent.

The motion judge denied leave for most of the amendments, finding they constituted discrete misrepresentation claims requiring fresh leave under s. 138.8(1) of the Securities Act, and were statute-barred under s. 138.14(1).

The Court of Appeal upheld the motion judge's decision, with one limited exception permitting the appellants to plead a narrower omission allegation relating to previously pleaded facts.

In a receivership proceeding, a corporate director sought leave to control litigation commenced by debtor companies against a secured creditor, arguing that the receiver faced a conflict in pursuing claims against the creditor that initiated the receivership.

The court held that the request constituted an impermissible collateral attack on a prior order directing the receiver to conduct a sales process for the litigation asset.

The court further determined that secured creditors may participate as bidders in a receiver’s sales process, including by way of credit bid, and that such participation is consistent with insolvency principles requiring maximization of value for stakeholders.

Applying analogous bankruptcy authorities, the court approved the receiver’s recommendation to sell the action to the secured creditor through a $1 million credit bid and rejected objections regarding valuation and fairness of the process.

Following dismissal of the defendants’ motion for leave to appeal orders made in a class proceeding, the successful plaintiff sought costs exceeding $30,000 on a partial indemnity basis.

The court considered the complexity of the class action and the substantial materials filed but found the hourly rates claimed by counsel excessive.

The court also reduced photocopying disbursements due to unnecessary duplication.

The plaintiff was awarded reduced costs reflecting reasonable fees and adjusted disbursements.

The appellant appealed a garnishment order requiring it to pay the respondent creditor.

The appellant argued it was indebted to an arms-length intermediate party, not the debtor, and that the motions judge erred in considering late affidavits.

The Divisional Court dismissed the appeal, finding no palpable or overriding error in the motions judge's conclusion that the debtor was in fact an employee of the appellant, nor any error in the exercise of discretion to admit the affidavits.

The defendants sought leave to appeal orders granting the plaintiff leave under s. 138.8 of the Ontario Securities Act to pursue statutory misrepresentation claims and certifying the proceeding as a securities class action.

The proposed appeal challenged, among other issues, the treatment of U.S. SEC disclosure documents as potential “core documents” and the certification of a global shareholder class alongside a negligent misrepresentation claim.

The court held that the motions judge applied the correct “reasonable possibility of success” standard for statutory leave and was entitled to defer final determinations about the core/non-core document classification to trial.

The court also found no misapplication of appellate authority concerning certification of parallel statutory and common law claims.

As there was no good reason to doubt the correctness of the orders, leave to appeal was refused.

The receiver moved for approval of the sale of a golf course property.

The respondent, the first mortgagor, opposed the sale and brought a motion to redeem the first mortgage.

The court approved the sale and dismissed the motion to redeem, finding that the receiver's sales process was reasonable and met the Soundair principles.

The court held that allowing redemption at the last minute would undermine the integrity of the court-approved sales process, especially given the respondent's bad faith interference with the purchaser.