Benjamin Na

This endorsement addresses the costs of appeals and a cross-appeal that were previously dismissed.

The appellants proposed an aggregate payment of $300,000 as partial indemnity costs.

The respondents sought higher amounts, with one group seeking full indemnity.

The court found the amounts sought by the respondents to be reasonable and proportionate, noting cooperation among counsel and no duplication of effort.

The court awarded specific partial indemnity costs to each respondent group, totaling $549,082.93.

This is a complex set of appeals concerning anti-SLAPP motions.

The appellants (Catalyst parties) appealed the dismissal of two of their actions (Defamation and Wolfpack actions) and the dismissal of their partial anti-SLAPP motion against a counterclaim.

The court dismissed all appeals, upholding the motion judge's findings that the Catalyst parties' actions were strategic attempts to silence critics, lacked substantial merit against some respondents, and that the public interest in protecting expression outweighed the public interest in continuing the proceedings.

The court also upheld the costs awards against the Catalyst parties, emphasizing the deterrent purpose of anti-SLAPP legislation against abusive litigation.

The Catalyst Parties brought actions for defamation, injurious falsehood, and conspiracy against various defendants, including media organizations, journalists, short sellers, and former borrowers, arising from the publication of a Wall Street Journal article and whistleblower complaints to the Ontario Securities Commission.

The defendants brought motions to dismiss the actions under the anti-SLAPP provisions of s. 137.1 of the Courts of Justice Act.

The Catalyst Parties also brought a motion to dismiss four discrete defamation claims in a counterclaim brought by the West Face Parties.

The court granted the defendants' motions, dismissing the Defamation Action and the Wolfpack Action, finding that the expressions related to matters of public interest and that the public interest in protecting the expressions outweighed the public interest in allowing the actions to proceed, particularly given the Catalyst Parties' history of aggressive litigation and ethically dubious investigative tactics.

The court dismissed the Catalyst Parties' motion regarding the counterclaim, holding that partial anti-SLAPP motions are not permitted and that the counterclaim had substantial merit.

The Catalyst Parties brought actions for defamation, injurious falsehood, and conspiracy against various defendants, including media organizations, journalists, short sellers, and former borrowers, arising from the publication of a Wall Street Journal article and whistleblower complaints to the Ontario Securities Commission.

The defendants brought motions to dismiss the actions under the anti-SLAPP provisions of s. 137.1 of the Courts of Justice Act.

The Catalyst Parties also brought a motion to dismiss four discrete defamation claims in a counterclaim brought by the West Face Parties.

The court granted the defendants' motions, dismissing the Defamation Action and the Wolfpack Action, finding that the expressions related to matters of public interest and that the public interest in protecting the expressions outweighed the public interest in allowing the actions to proceed, particularly given the Catalyst Parties' history of aggressive litigation and ethically dubious investigative tactics.

The court dismissed the Catalyst Parties' motion regarding the counterclaim, holding that partial anti-SLAPP motions are not permitted and that the counterclaim had substantial merit.

The defendants in a complex defamation action brought motions for the production of documents related to 'Project Maple Tree', an operation undertaken by foreign investigative agents (including Black Cube) retained by the plaintiffs.

The plaintiffs asserted solicitor-client and litigation privilege over the documents.

The court held that it had jurisdiction to hear the motions despite the stay provision in s. 137.1(5) of the Courts of Justice Act.

The court rejected the claims of solicitor-client privilege, finding the third-party investigators were not essential to the solicitor-client relationship.

The court also rejected the claims of litigation privilege for the vast majority of the documents, finding their dominant purpose was not legitimate litigation and that the 'Blank exception' applied because the agents engaged in improper conduct, including pretext stings on a former judge and opposing party employees.

The defendant, John Hancock, brought a motion to dismiss or stay the action, arguing that a forum selection clause in the parties' agreement required the plaintiff, Infinite Media, to bring its claim in Boston, Massachusetts.

Infinite Media contended the clause mandated claims be brought in Ontario, specifically in the responding party's city or county within Ontario.

The court interpreted the clause holistically, considering the agreement's wording and factual matrix, and found that all claims were intended to be brought in Ontario, in the responding party's city or county.

The motion to dismiss or stay was dismissed.

Catalyst Capital Group Inc. attempted to acquire VimpelCom Ltd.'s interest in Wind Mobile Corp. but negotiations failed.

During negotiations, a junior analyst employed by Catalyst left to work for West Face Capital Inc., a member of a consortium that subsequently acquired Wind.

Catalyst sued the former employee and West Face for breach of confidence and other claims (the Moyse Action).

The trial judge dismissed the action, finding that no confidential information was communicated and that Catalyst suffered no detriment because its own refusal to agree to a break fee and its insistence on regulatory concessions made the deal impossible.

Catalyst then commenced a second action against the consortium members and others alleging breach of confidence, conspiracy, and inducing breach of contract.

The motion judge dismissed the second action as barred by issue estoppel, cause of action estoppel, and as an abuse of process.

The Court of Appeal upheld the dismissal, finding that Catalyst was attempting to relitigate factual findings from the first action and that it could have advanced all claims in the first proceeding.

The plaintiffs brought a motion to approve a US$90 million settlement of a class action against the defendant auditors for alleged negligence and misrepresentation in auditing a company's financial statements.

The court considered the significant litigation risks, the defences advanced, and the depletion of the defendants' insurance coverage.

Finding the settlement fair, reasonable, and in the best interests of the class, the court approved the settlement.

The court also approved class counsel's contingency fee request of approximately $21.9 million, noting the substantial risk undertaken and the successful result achieved after 17 years of litigation.

The plaintiff shareholder brought a motion to appoint an interim receiver-manager for the defendant corporation, alleging oppressive conduct by management and the board of directors.

The defendants brought a cross-motion for summary judgment to dismiss the oppression action.

The court dismissed the plaintiff's motion, finding he failed to establish a strong prima facie case of oppression, irreparable harm, or that the balance of convenience favoured the appointment.

The court also dismissed the defendants' cross-motion for summary judgment, concluding that the plaintiff raised serious issues requiring a trial and that the claims were not clearly statute-barred.

This is a costs endorsement on appeal from a partial summary judgment motion.

The appellants (lenders) and respondents (Deloitte) agreed on the quantum of costs for both the motion below and the appeal but disagreed on timing of payment.

The respondents argued costs should remain in the cause based on an alleged agreement that no money change hands on interlocutory motions until final resolution.

The Court of Appeal rejected this argument, finding it inconsistent with the respondents' own prior positions and earlier costs orders in the litigation.

The court determined that the motion judge erred in granting partial summary judgment and that costs should be fixed and payable immediately.

Following a successful partial summary judgment motion, the defendants sought costs of $700,000 plus disbursements payable forthwith.

The plaintiffs argued costs should be in the cause.

The court agreed with the plaintiffs that costs should be in the cause, as the trial was imminent and the trial judge would be in the best position to allocate liability for costs.

The court clarified that the costs would be in the cause of the specific plaintiff's action, not the consolidated action involving a receiver.

Lenders brought a class proceeding alleging negligent misrepresentation by auditors in connection with audited financial statements relied upon when extending a large syndicated loan.

The defendants moved for partial summary judgment dismissing the negligent misrepresentation claim on the basis that no duty of care was owed to the lending syndicate.

Applying the principles from Hercules Managements Ltd. v. Ernst & Young, the court held that auditors generally owe duties to the corporation and its shareholders but not to third-party lenders due to concerns about indeterminate liability.

Although the auditors knew lenders would likely review the statements, they did not know the identity of the lenders nor prepare the audits for the specific lending transaction.

The court concluded the circumstances did not negate indeterminate liability and no duty of care arose.

In a billion‑dollar negligence class action against auditors arising from allegedly defective audit reports relied upon by lenders, the plaintiffs brought a motion under Rule 30.10 of the Rules of Civil Procedure seeking production of investigative materials held by the Institute of Chartered Accountants of Ontario relating to disciplinary proceedings against two audit partners.

The court held that production from a non‑party requires proof that the documents are relevant and that it would be unfair to require the moving party to proceed without them.

The plaintiffs failed to demonstrate unfairness because they already possessed the underlying documentary record and extensive discovery evidence, and the investigator’s report was not necessary for the pending partial summary judgment motion or the pleaded issue estoppel.

The court further held that the materials were protected by a case‑by‑case privilege under the Wigmore criteria arising from confidential communications between the professional regulator and its members during disciplinary investigations.

The plaintiff, a senior investment banker, alleged he was constructively dismissed when his employer failed to promote him to a promised Team Leader position by a fixed date.

The court found that the employer had not breached the employment contract, as it was taking reasonable steps to implement the promotion within a reasonable timeframe and had paid the plaintiff significant increased compensation.

The court concluded the plaintiff voluntarily resigned to join a competitor start-up.

The constructive dismissal claim was dismissed, but the plaintiff was awarded minor amounts for unpaid cash incentive pay and a declared dividend.

Following a nine‑day trial concerning whether corporate decisions favouring a chief executive officer were protected by the business judgment rule and whether the executive was entitled to severance benefits, the court found that the executive breached fiduciary duties but remained entitled to severance under his employment arrangements, subject to recalculation excluding benefits arising from the breach.

Both sides claimed substantial success and sought significant costs awards, including requests for substantial indemnity costs based on abandoned allegations and trial outcomes.

The court held that the litigation involved two principal issues—fiduciary breach and entitlement to severance—and each party succeeded on one of them.

Because success was effectively divided and no settlement offers were made, the court determined that neither party should recover costs.