Christopher Brindley Horkins

The plaintiff, Tripsetter Inc., brought a motion seeking leave to add Tweed Inc. and Jurgen Schreiber as defendants, alleging they are "franchisor's associates" under the Arthur Wishart Act (Franchise Disclosure), 2000.

The proposed defendants objected, arguing the claim was out of time due to a lack of notice of rescission and that the proposed pleading failed to establish the necessary control for a franchisor's associate.

The court found that the Act does not require notice of rescission to be given to an alleged franchisor's associate for a claim for damages to proceed.

It also determined that the limitation period argument was not clear-cut and could be argued at trial, as the plaintiff's knowledge of Tweed's full involvement only came to light during discovery.

The court found the proposed pleading, including the "de facto franchisor" concept, to be sufficient for the purpose of a pleadings amendment motion, noting that amendments are to be read generously.

The defendants brought a motion to compel the plaintiff's representative to reattend discovery and answer numerous refused questions across four categories.

The plaintiff opposed the motion, arguing the questions were irrelevant or privileged.

The court largely upheld the plaintiff's refusals, finding most questions irrelevant to the core issues of the case, such as the nature of the business relationship (franchise vs. license) or the plaintiff's subjective understanding of legal requirements.

Only one minor question regarding inventory was ordered to be answered.

This decision concerns a proposed class action for secondary market liability under the Ontario Securities Act.

The parties sought and obtained consent certification of the action, approval of the notice plan, amendment of the plaintiff's pleading to narrow the claim to statutory issues, and substitution of a new representative plaintiff.

The court found that the criteria for certification under the Class Proceedings Act, 1992, were met, including commonality of issues and the appropriateness of the new representative plaintiff.

This is a costs endorsement following the release of reasons in an appeal.

The respondents advised that the court had misapprehended the appellants' oral costs submissions regarding quantum.

The parties were permitted to provide further written submissions on the costs issue.

The court affirmed its costs order for the appeal but altered the costs of the motion below, reducing the amounts payable by Bank of Montreal and Toronto Dominion Bank.

The appellants sought to add Toronto Dominion Bank and Bank of Montreal as defendants to an existing class action alleging a secret conspiracy to manipulate the foreign exchange market.

The motion judge dismissed the motion on the basis that the claim against the respondents was statute-barred under the Limitations Act, 2002.

The Court of Appeal allowed the appeal, finding that the motion judge erred by establishing too high an evidentiary threshold and by finding that the respondents' identities could have been discovered with reasonable diligence without proper evidentiary foundation.

The court held that the appellants provided a reasonable explanation for why they could not have identified the respondents before the limitation period expired, and that the issue of due diligence should be determined on a summary judgment motion or at trial.

On appeal from a motion judge's decision, the franchisor appealed the finding that the franchise agreement had been validly rescinded under section 6(2) of the Arthur Wishart Act (Franchise Disclosure), 2000, and the dismissal of its cross-motion for damages.

The franchisee cross-appealed certain ancillary issues.

The Court of Appeal found in favour of the franchisor on all issues.

This costs endorsement addresses the allocation of costs for both the underlying motions for summary judgment and the appeal.

The appellants (franchisor and related entities) appealed a motion judge's decision that the respondents (franchisee and principals) validly rescinded a franchise agreement under section 6(2) of the Arthur Wishart Act (Franchise Disclosure), 2000.

The motion judge found the franchise disclosure document (FDD) was so inadequate as to amount to no disclosure because it failed to include the terms of the head lease and did not provide cost estimates for converting an existing restaurant to an ASWR outlet.

The Court of Appeal allowed the appeal, finding that while the FDD may have contained deficiencies, these were not so serious as to amount to a complete lack of disclosure.

The court distinguished the case from prior jurisprudence by noting the franchise agreement contained collaborative site selection and opt-out provisions that protected the franchisee's ability to make an informed decision.

The court awarded damages to the franchisor for unpaid construction invoices and the head lease deposit, less any benefits derived from operating the franchise.

The Applicants (YESCO, Young, Wardle) brought a motion for summary judgment to dismiss a counterclaim filed by the Respondents (226 Ontario Inc., Goldlust).

The counterclaim alleged breach of contract, breach of the Arthur Wishart Act (Franchise Disclosure), and negligent misrepresentation, primarily concerning YESCO's alleged failure to develop a "National Accounts" program as promised in the franchise agreement and disclosure document.

The court dismissed the motion for summary judgment on limitations grounds, finding that the "appropriate means" test under the Limitations Act, 2002, was not met as the Respondents were reasonably relying on the franchisor's ongoing ameliorative efforts.

The court also dismissed the motion for summary judgment on the substantive merits of the breach of contract and Wishart Act claims, citing significant factual disputes and the risk of duplicative findings with the main action.

However, the court granted summary judgment dismissing the negligent misrepresentation claims, holding that an "entire agreement" clause in the franchise agreement barred such claims, given the commercial sophistication of the parties.

The plaintiffs, a franchisee and its principals, moved for partial summary judgment seeking rescission of a franchise agreement due to alleged failures of disclosure under the Arthur Wishart Act (Franchise Disclosure), 2000.

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

The court found that the franchisor's disclosure document was egregiously deficient, specifically lacking a materially complete form of lease (including the head lease) and proper cost estimates for a conversion-type franchise.

The court rejected arguments that disclosure was impossible due to an undetermined location or that franchisee sophistication waived disclosure obligations.

The deficiencies amounted to a failure to provide a disclosure document, entitling the franchisee to rescission under s. 6(2) of the AWA.

The court also determined which corporate defendants were "franchisor's associates" and dismissed claims for misrepresentation and breach of good faith due to lack of focused argument.

All damages issues were referred to a Master.

The applicants sought removal of an arbitrator in an ongoing franchise dispute arbitration on the basis of reasonable apprehension of bias.

The concern arose because the arbitrator, acting as counsel in another similar franchise case, had retained the same accounting expert whose report was filed by the respondents in the arbitration.

The court held that an objective and informed person could reasonably apprehend bias where the arbitrator had previously relied on the same expert in similar litigation and would be required to assess that expert’s credibility and qualifications in the arbitration.

Although no actual bias was proven, the professional relationship and prior reliance on the expert were sufficient to raise a reasonable apprehension of bias.

The court therefore exercised its authority under the Arbitration Act, 1991 to remove the arbitrator and directed the parties to attempt to agree on a replacement.