Bryan Finlay

This decision addresses two post-appeal issues: the costs of administering a class action settlement and the final quantification of damages.

The court ordered the defendant, Cassels Brock & Blackwell LLP, to pay reasonable administration costs.

For damages, following directions from the Court of Appeal, the court adopted the defendant's mathematical approach, awarding $28,745,304.00 to the plaintiff, Trillium Motor World Ltd., rejecting the plaintiff's proposed higher amounts based on proportional mathematical approaches or alleged enhanced bargaining power.

This is a motion to vary the Court of Appeal's decision in a solicitor's negligence case.

The moving party sought to clarify the trial judge's discretion regarding the final quantification of damages and the process for calculating the damages award, subject to a ceiling of $36.9 million.

The respondent opposed the motion.

The Court of Appeal dismissed the motion, finding that the moving party could not bring itself within the applicable rules permitting reconsideration of appellate decisions, and that it was not in the interests of justice to invoke the court's narrow jurisdiction to reconsider.

This appeal concerns a class action by General Motors of Canada Limited (GMCL) dealers against the law firm Cassels Brock & Blackwell LLP for breach of fiduciary and contractual duties.

During the 2009 financial crisis, Cassels represented three potentially conflicting clients: the Saturn Dealers, Industry Canada (regarding GMCL bailout financing), and GMCL dealers generally regarding a potential restructuring or insolvency.

The trial judge found that Cassels breached its duties by failing to disclose the conflict of interest with Industry Canada to the dealers and by failing to provide proper advice regarding Wind-Down Agreements (WDAs) offered by GMCL.

The dealers lost the opportunity to negotiate collectively for better compensation.

The Court of Appeal upheld the liability findings but reduced the damages award from $45 million to approximately $41 million (subject to further calculation regarding class composition).

The respondents, a corporation and four individual shareholders, sued the Crown for damages arising from two theories of liability: forced incorporation and failure to enforce.

Under the forced incorporation theory, the respondents alleged that Crown misconduct forced them to incorporate their partnership, resulting in tax liability they would have avoided as Indians under section 87 of the Indian Act.

Under the failure to enforce theory, they alleged the Crown failed to properly implement an anti-smuggling initiative, causing them to compete unfairly against unlicensed contraband manufacturers.

The Crown appealed a motion judge's decision refusing to strike the claims.

The Court of Appeal dismissed the forced incorporation appeal, allowing it to proceed to trial, but allowed the failure to enforce appeal in part by striking the fiduciary duty claims while permitting the negligence and misfeasance claims to proceed.

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 parties appeared on a motion to settle the terms of a judgment following a class action trial.

The court resolved three disputes between the plaintiff and the defendant law firm regarding the wording of the judgment.

The court held that the judgment should include a mechanism allowing for a potential reduction of the $45 million aggregate damages award, as the court had mistakenly assumed all 181 class members had retained the law firm.

The court also clarified that class members only needed to return a participation form or funding to create a retainer, and that this had to be done prior to the waiver of the Acceptance Threshold Condition.

The defendant, the Attorney-General of Canada, sought leave to appeal an order dismissing its motion to strike the plaintiffs' claims for misfeasance in public office, negligence, and breach of fiduciary duty.

The claims arose from the federal government's alleged failure to enforce anti-smuggling laws regarding contraband tobacco on the Six Nations Reserve.

The court granted leave to appeal, finding that the correctness of the motion judge's decision was open to very serious debate and that the issues raised—specifically the extent to which government policy decisions and law enforcement discretion can be subject to private law duties—were matters of public importance warranting appellate review.

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.

A class action brought by automobile dealers challenged a manufacturer’s 2009 wind‑down agreements issued during the global financial crisis, alleging breaches of the statutory duty of fair dealing, disclosure obligations, and the right of association under franchise legislation.

The court held the manufacturer did not breach its contractual or statutory obligations in implementing the dealer reduction plan or issuing the agreements under urgent restructuring circumstances.

However, the law firm advising the dealer group was found to have breached fiduciary duties, contractual duties, and the standard of care by acting despite conflicts of interest and failing to properly advise the dealers during the restructuring process.

The court concluded that the lawyers’ misconduct deprived the dealers of a real opportunity to negotiate improved termination compensation.

Aggregate damages were therefore awarded for loss of that negotiation opportunity.

The plaintiff sought clarification of a prior ruling on a motion for leave to commence a statutory cause of action for secondary market misrepresentation under Part XXIII.1 of the Securities Act.

The earlier decision granted leave for some alleged misrepresentations but dismissed others, including allegations relating to revenue recognition in the issuer’s 2008 financial statements.

The parties requested clarification regarding whether the alleged misrepresentation in the issuer’s October 14, 2009 Management’s Discussion and Analysis concerning revenue recognition had been determined.

The court held that although there was likely an internal control deficiency relating to revenue recognition at the time of the MD&A, there was no evidence that the deficiency, standing alone, was material.

Leave was therefore refused and the motion dismissed with respect to that alleged misrepresentation.

A shareholder sought leave under s. 138.8 of the Securities Act to commence a statutory secondary market misrepresentation action under s. 138.3 against a solar energy company and two of its officers.

The alleged misrepresentations concerned financial statements, internal control disclosures, and statements incorporated into a prospectus supplement.

The court held that the plaintiff demonstrated a reasonable possibility of success regarding alleged misrepresentations in the issuer’s original Q4 2009 financial statements and the October 2009 prospectus supplement, including related press releases and conference calls.

However, the plaintiff failed to establish sufficient evidence of misrepresentation in earlier 2009 interim financial statements or the 2008 revenue recognition disclosure.

Leave was granted in part and refused in part.

The representative plaintiff appealed an order of a Master dismissing a motion for production of communications between a distressed company and its financial advisor and between the company and government actors.

The court considered whether solicitor‑client privilege extended to communications with a financial advisor who might have served as a CCAA monitor, and whether common interest privilege protected communications with federal and provincial governments during restructuring negotiations.

The court held that the financial advisor’s role was integral to the legal advice provided and that the communications were subject to solicitor‑client privilege.

The court also upheld the Master’s finding that communications shared with governments during negotiations to secure restructuring funding were protected by common interest privilege.

Finding no palpable and overriding error in the Master’s factual determinations, the appeal was dismissed.

The plaintiff brought a motion to compel the defendants to answer questions and produce documents refused during cross-examination on an affidavit filed in response to a certification motion in a proposed securities class proceeding.

The dispute concerned the interpretation of s. 138.8(2) of the Ontario Securities Act, which governs affidavit evidence on a motion for leave to commence a statutory secondary market misrepresentation claim under Part XXIII.1.

The plaintiff argued that because the defendants filed an affidavit addressing certification, they should be required to answer questions relevant to the leave motion.

The court followed the line of authority beginning with Ainslie v. CV Technologies Inc. holding that defendants are only required to file an affidavit if they intend to lead evidence on the leave motion.

As the defendants had intentionally filed no affidavit addressing the leave motion, they could not be compelled to answer questions for that purpose.

In a certified class action arising from the termination of automobile dealerships following the 2009 automotive industry restructuring, the plaintiff brought a Rule 30 motion seeking production of documents withheld on the basis of solicitor‑client privilege by a non‑party dealers’ association.

The court reviewed 211 disputed documents in camera to determine whether they constituted privileged legal advice or merely legal information.

Applying the distinction between general legal information and particularized legal advice concerning rights, duties, or liability, the court found that many communications concerned general information about potential bankruptcy proceedings under the CCAA rather than legal advice.

Of the documents reviewed, 60 were held to be privileged while the remainder were ordered produced.

The decision clarifies the analytical distinction between legal advice and legal information for purposes of solicitor‑client privilege in document production disputes.

Following the dismissal of two Rule 30 motions brought by the defendants seeking production of allegedly privileged documents in a certified class proceeding, the court determined the appropriate costs award.

Although the court agreed that solicitor-client privilege had been expressly waived during cross-examinations, the motions were dismissed because the legal advice received by an individual class member was irrelevant to the certified common issues.

On the costs issue, the court rejected the defendants’ submission that success was divided and held that the responding party was substantially successful.

Applying the factors in Rule 57.01(1) and the guidance from the Court of Appeal in Boucher, the court fixed a fair and reasonable costs award below the amount claimed.

Costs of $20,000 all-inclusive were awarded to the responding party, divided equally between the two defendants.

The plaintiffs sought damages arising from the termination of a memorandum of understanding and a subsequent agreement relating to the proposed development of an 80 MW wind energy project on the defendant's industrial lands.

The court held that both documents were largely agreements to agree and therefore unenforceable with respect to the broader development and lease arrangements.

However, the documents imposed limited binding obligations, including a requirement to provide 60 days’ notice before termination of the memorandum and an obligation to allow access for wind measurement under the second agreement.

The defendant breached those obligations by terminating immediately and preventing continued wind testing.

Claims for fiduciary duty, breach of confidence, unjust enrichment, partnership, and loss of chance damages were rejected.

In a certified class action involving former automobile dealers whose franchises were terminated during the 2009 automotive industry restructuring, the defendants sought production of documents relating to legal advice the representative plaintiff received from its own lawyer when signing wind‑down agreements.

The moving parties argued that solicitor‑client privilege had been waived and that the advice was relevant to issues such as causation and damages.

The court held that although privilege regarding advice about the wind‑down agreement had been expressly waived during earlier cross‑examination, relevance for discovery in a class proceeding prior to the common issues trial is confined to the certified common issues.

Because the certified issues focused on the defendants’ conduct under provincial franchise legislation and alleged professional duties, and did not require examination of the individual legal advice received by class members, the requested documents were not relevant at this stage.

The motions to compel production were therefore dismissed.