Craig T. Lockwood

This decision concerns three motions to approve class counsel fees in the context of insolvency proceedings under the Companies' Creditors Arrangement Act involving three major tobacco companies.

The court approved the Quebec Class Action Plaintiffs' counsel fee request of approximately $901 million (representing 22% of the $4.119 billion allocated to the Quebec class members), the Knight Class Counsel fee request of $5 million plus disbursements, and the Tobacco Producers' counsel fee request of $3.75 million.

The court found that the fees were fair and reasonable given the exceptional risks assumed, the unprecedented outcome achieved, and the unique circumstances of the case.

A $50 million reserve was established from the Quebec counsel fees to protect against any pro-rata reduction in class member compensation due to actual take-up rates or other factors.

This decision sanctions the CCAA Plans of Imperial Tobacco Canada Limited, Imperial Tobacco Company Limited, JTI-Macdonald Corp., and Rothmans, Benson & Hedges Inc., effecting a global settlement of all tobacco-related claims in Canada.

The court reviews the structure, allocation, and fairness of the plans, including the creation of a $1 billion Cy-près Foundation, and addresses objections from social stakeholders.

The court finds the plans fair, reasonable, and in the public interest, and grants the requested relief, including third-party releases and the appointment of plan administrators.

This endorsement addresses motions by the court-appointed Monitors in the ongoing Companies’ Creditors Arrangement Act (CCAA) proceedings involving JTI-Macdonald Corp., Imperial Tobacco Canada Limited and Imperial Tobacco Company Limited, and Rothmans, Benson & Hedges Inc. The Monitors sought approval for amendments to the CCAA Plans to resolve the allocation of a $750 million working capital holdback among the Tobacco Companies.

The only opposition came from the Heart and Stroke Foundation, which objected as a social stakeholder but was found to lack standing.

The court granted the motions, finding the amendments did not adversely affect any creditors and were appropriate in the circumstances.

This endorsement concerns ongoing insolvency proceedings under the Companies’ Creditors Arrangement Act (CCAA) involving JTI-Macdonald Corp., Imperial Tobacco Canada Limited, Imperial Tobacco Company Limited, and Rothmans, Benson & Hedges Inc. The specific motion, brought by the applicants, sought a Quebec Class Action Plaintiffs Notice Protocol Order.

The motion was unopposed and was granted by the court, with the requested order signed.

This endorsement concerns a joint motion brought by the court-appointed Monitors for JTI-Macdonald Corp., Imperial Tobacco Canada Limited, Imperial Tobacco Company Limited, and Rothmans, Benson & Hedges Inc. in their ongoing Companies’ Creditors Arrangement Act (CCAA) proceedings.

The Monitors sought a Sanction Protocol Order to establish the date for the Sanction Hearing, ratify the litigation timetable, approve the dissemination of the Agenda and Sanction Hearing procedure, approve the Omnibus Sanction Hearing Notice, and set the deadline for Sanction Hearing Objection Notices.

The motion was unopposed and was granted by the court, with three orders signed.

This endorsement concerns three tobacco companies (JTI-MacDonald Corp., Imperial Tobacco Canada Limited, Imperial Tobacco Company Limited, and Rothmans, Benson & Hedges Inc.) operating under the Companies’ Creditors Arrangement Act (CCAA).

Each applicant sought an extension of their stay period until September 30, 2024, to continue formulating plans of arrangement.

Imperial also requested authorization to terminate a retirement plan and post security for a vaping product license.

RBH sought a procedural amendment for employee grievances.

The court, finding no opposition and satisfied with the applicants' good faith, diligence, and sufficient resources, granted all requested relief, noting significant progress in ongoing mediation.

Q4 Inc. brought an application under section 182 of the Business Corporations Act for final court approval of a plan of arrangement involving SEP Forge BidCo Inc. The arrangement, which involved the acquisition of Q4 shares for cash, had previously received an interim order and was approved by the requisite majorities of shareholders.

The court granted the final approval order, finding that all statutory procedures and court-ordered requirements were met, the application was put forward in good faith, and the arrangement was fair and reasonable.

The decision noted the overwhelming shareholder support and the absence of exercised dissent rights, despite public opposition from a competitor shareholder.

This endorsement concerns the Companies' Creditors Arrangement Act (CCAA) proceedings for JTI-MacDonald Corp., Imperial Tobacco Canada Limited, Imperial Tobacco Company Limited, and Rothmans, Benson & Hedges Inc. The court granted an unopposed motion to extend the stay period until March 29, 2024.

Recognizing the complexity and the four-and-a-half-year duration of negotiations, the court directed the three court-appointed Monitors, in conjunction with the court-appointed Mediator, to collaborate and develop comprehensive Plans of Compromise or Arrangement.

The objective is to finalize plans that are fair and reasonable to all applicants and creditors, moving from observable activity to meaningful action.

The court addressed two pretrial motions: one seeking to stay a counterclaim based on abuse of process due to delayed disclosure of a cooperation agreement, and another seeking leave for third-party discovery.

The motion to stay was dismissed, as the immediate disclosure rule for settlement agreements was found not to apply to agreements with non-parties.

The motion for third-party discovery was granted, with the court finding the non-party's evidence critical and that the cooperation agreement constituted a constructive refusal to provide information, making a pretrial examination necessary for trial fairness.

This is an appeal from a motion judge's refusal to certify a claim for intrusion upon seclusion against Trans Union of Canada, Inc. in a class action.

The appellant alleged that Trans Union, a "Database Defendant," enabled third-party hackers to access private information due to inadequate security.

The Court of Appeal for Ontario dismissed the appeal, holding that the tort of intrusion upon seclusion, as recognized in Jones v. Tsige, does not extend to "Database Defendants" for the actions of independent third-party hackers, as there is no basis for vicarious liability in such circumstances.

The court also confirmed its jurisdiction to hear the appeal, treating the refusal to certify as a final order effectively dismissing the claim.

The defendants in two related actions sought orders to compel the plaintiffs, Andrew Stronach and Selena Stronach, to undergo medical examinations to assess their mental capacities for the purpose of determining if litigation guardians were required.

The court dismissed the motion against Selena Stronach, finding insufficient evidence to rebut the presumption of capacity.

The motion against Andrew Stronach was dismissed without prejudice, as the court found it premature and suggested other discovery avenues should be pursued first.

The court also declined to order production of video recordings of Andrew's examination for discovery.

The plaintiff brought a motion to certify a class action against TransUnion arising from a data breach where hackers accessed the credit profiles of 37,444 individuals.

The plaintiff alleged intrusion upon seclusion, negligence, and breach of provincial privacy statutes.

The court certified the negligence and certain provincial privacy statute claims, finding they disclosed a cause of action and met the certification criteria.

However, the court refused to certify the intrusion upon seclusion claim, as binding authority established it does not apply to database defendants for hacker attacks, and struck claims under the privacy statutes of Manitoba, Newfoundland and Labrador, and British Columbia for lack of subject matter jurisdiction.

The applicant, a non-share capital corporation, sought a declaration that a resolution proposed by its voting members to remove certain directors and amend its by-laws was unlawful.

The voting members had requisitioned a special meeting to pass the resolution following a governance review that alleged the directors were in a conflict of interest.

The court granted the application, finding that under the Corporations Act and the applicant's by-laws, the voting members did not have the authority to unilaterally amend the by-laws or reduce the number of directors.

Furthermore, the resolution to remove the directors failed to comply with the procedural fairness and conflict of interest provisions set out in the by-laws.

Multiple tobacco manufacturer defendants sought partial indemnity costs of approximately $300,000 after withdrawing previously scheduled motions to strike the Crown’s statement of claim in a health care cost recovery action under the Tobacco Damages and Health Care Costs Recovery Act.

The defendants argued they were the successful parties because their motions prompted extensive amendments to the pleading and that the Crown delayed notifying them of its intention to amend.

The court held that the amendments addressed only some of the alleged deficiencies and that significant legal issues remained unresolved when the defendants chose to withdraw the motions.

As a result, success on the motions was considered divided.

Exercising discretion under s. 131 of the Courts of Justice Act, the court ordered that each side bear its own costs.

In a health care cost recovery action brought by the Crown against tobacco companies under the Tobacco Damages and Health Care Costs Recovery Act, 2009, a defendant moved to strike portions of the statement of claim referencing alleged misrepresentations made by tobacco companies before parliamentary committees.

The court considered whether statements made to House of Commons and legislative committees could be relied upon in a civil action.

It held that parliamentary privilege, specifically freedom of speech, protects statements made during parliamentary proceedings and committee appearances, including by non‑members who participate as witnesses.

Because the privilege is absolute and prevents courts from questioning such statements, the impugned pleadings referencing those presentations could not stand.

The motion to strike those paragraphs was therefore granted.