Crawford Glendron Smith

This endorsement addresses a scheduling dispute in a class action involving dentists who purchased insurance policies brokered by CDSPI Advisory Services Inc. and issued by Aviva companies.

The plaintiffs sought to adjourn upcoming motions for settlement approval and a stay of proceedings, pending an anticipated Court of Appeal decision in Thrive Capital Management Ltd. et al v. Noble 1324 Queen Inc. et al., which may reconsider the principles in Handley Estate v. DTE Industries Limited regarding partial settlements.

The court declined to adjourn, emphasizing the need for timely resolution and noting that new procedural rules (Rule 49.14) would be in force for the scheduled hearing.

The defendants sought to remove Stikeman Elliott LLP as counsel for the plaintiffs and to require destruction of documents containing their solicitor-client privileged information, alleging improper handling of privileged communications.

The court found that the privilege in the relevant emails was jointly held by both the sellers and the companies in the Ellis Group, and that the amalgamated company (Ellis Packaging Limited) continued to hold the privilege after the share purchase.

The motion was dismissed.

Corus Entertainment Inc. sought a declaration that Rogers Communications Inc. could not remove one of Corus's television channels from its existing packages, citing affiliation agreements and regulatory "standstill" provisions under the Broadcasting Distribution Regulations.

Corus also sought an interlocutory injunction to prevent the channel's removal pending a CRTC decision and a sealing order for confidential information.

The court dismissed the application for a declaration, finding that the affiliation agreement granted Rogers the broad right to create and modify television packages, which included the right to remove channels.

The court also dismissed the interlocutory injunction, holding that the CRTC had exclusive jurisdiction over regulatory matters and that Corus failed to demonstrate irreparable harm.

Finally, the sealing order was denied as the information was not deemed confidential under the "open court" principle, and the test for sealing orders was not met.

The proposed plaintiff, Frank Losak, sought leave to commence a class proceeding against the Financial Services Regulatory Authority (FSRA) and its CEO, Mark White, alleging misrepresentations related to the sale of Pace Savings & Credit Union securities while Pace was under FSRA's administration.

The court determined that leave was required under the Liquidation Order.

It granted leave for the claim against FSRA, finding a viable cause of action not barred by the Crown Liability and Proceedings Act or the Limitations Act, and that it would not undermine the liquidation.

However, leave was denied for the claim against Mark White due to statutory immunity under the FSRA Act, as no particulars of bad faith were provided.

The statement of claim against FSRA was allowed to be issued nunc pro tunc to February 28, 2024.

Stelco Inc. sought leave to appeal an order from the CCAA supervisory judge concerning the reconveyance of land (the "DGAP Parcel") to LandCo, a precondition for DGAP Investments Ltd. to purchase the land.

Stelco had previously been ordered to specifically perform this obligation but failed to do so.

The motion judge affirmed the court's authority to impose terms for reconveyance if the parties could not agree.

The Court of Appeal dismissed the motion for leave to appeal, finding that the proposed appeal was not prima facie meritorious, given prior judicial determinations and Stelco's previous concession that the court could determine the agreements.

The court also considered the significance of the issues to practice and the action, and the undue hindrance that an appeal would cause to the progress of the CCAA proceeding.

This decision addresses the impact of a Court of Appeal ruling that declared certain contingent property interests in a 1981 development agreement void for perpetuities.

The Superior Court was remitted to determine which other provisions of the 1981 Agreement and related contracts were affected and rendered inoperative.

The court found that the voided sections fundamentally altered the original bargain, which included a path for the evolution and potential redevelopment of the golf course lands, not a perpetual obligation to operate a golf course.

Consequently, several provisions related to the golf course's perpetual operation, sale, right of first refusal, and redevelopment path were declared inoperative.

The 40% open space principle was largely maintained but its application to golf course redevelopment was clarified.

This decision concerns Phase 4 of a motion to settle a Section 7 Order under the Class Proceedings Act, 1992.

The original proposed class action, brought by former and current major junior hockey players alleging abuse, was not certified.

The Section 7 Plan aims to transition the proposed class action into up to 60 individual joinder actions.

The court approved Version 4 of the Draft Section 7 Plan, which outlines procedures for notice, opt-in, commencement of actions, case management, and discovery.

A key contentious issue resolved in this phase concerned the staying of third-party claims until the completion of the main actions.

This decision is Phase 3 of a motion to settle a Section 7 Order under the Class Proceedings Act, 1992.

The court is finalizing the Draft Section 7 Plan, which facilitates the transition of a proposed class action, previously denied certification, into up to 60 individual joinder actions against various hockey leagues and teams.

The plan addresses notice dissemination, the approval of contingency fee agreements, the management of third-party claims by staying them under Rule 29.09 of the Rules of Civil Procedure, and the potential for severance of actions.

The court also proposes a consensual settlement track for modest claims as an alternative to litigation.

The respondent, Nordik Windows Inc., brought a motion to quash an appeal by the appellants, Aviva Insurance Company of Canada et al., arguing the underlying order was interlocutory and required leave to appeal to the Divisional Court.

Aviva contended the order was final as it determined a limitation period issue.

The Court of Appeal found the motion judge's order was interlocutory, as it did not finally determine the limitation period defence, but rather dismissed the motion without a final conclusion on that issue.

The appeal was therefore quashed.

The Financial Services Regulatory Authority of Ontario (FSRA) appealed a Superior Court decision that dismissed its motion to stay a class proceeding initiated by Brewers Retail Inc. and a committee of pension plan members.

The class proceeding sought court approval of a comprehensive settlement regarding pension indexing issues, including amendments to the pension plan and trust, and compensation for known and unknown plan members.

FSRA argued that the Financial Services Tribunal (FST) had exclusive jurisdiction over these matters under the Pension Benefits Act (PBA) and the Financial Services Tribunal Act, 2017 (FSTA).

The Court of Appeal upheld the motion judge's finding that the Superior Court had concurrent jurisdiction, noting that neither the FSTA nor the PBA contained clear and unequivocal language ousting the court's inherent equitable jurisdiction to approve settlements and vary trusts.

The court affirmed that the class proceeding was the preferable procedure, as the FST lacked the power to approve the settlement or vary the pension trust, and the class action provided the necessary finality for all affected plan members.

The Plaintiff, Nordik Windows Inc., was successful in a certification motion and related motions.

This endorsement addresses the costs for these motions, which involved two rounds of hearings due to a recusal by the initial judge.

The court determined the appropriate costs, considering the re-usable work from the first hearing and the work for the second hearing, ultimately awarding the Plaintiff $1,000,000.00 in all-inclusive costs.

This case concerns a re-hearing of a certification motion for a class action against Aviva Insurance Company of Canada, Aviva General Insurance Company, and Aviva Canada Inc. regarding business interruption insurance claims arising from the COVID-19 pandemic.

The plaintiff, Nordik Windows Inc., sought to certify a class of businesses whose claims were denied or not submitted due to the defendants' alleged blanket denial policy.

The defendants brought cross-motions for summary judgment against Nordik and a declaration concerning the tolling of the limitation period.

The court certified the class action, dismissed the defendants' summary judgment and limitation tolling motions, and allowed the addition of three new representative plaintiffs (Cash and Carry Inc., Hangar9 Studios Inc., and Real Food for Real Kids Inc.).

The decision addresses the adequacy of the representative plaintiff, the identifiable class, and the common issues, particularly regarding notice requirements and the interpretation of insurance policy clauses in the context of pandemic-related business closures.

This is an appeal concerning indemnification for pre-closing tax liabilities following a share purchase agreement (SPA).

The appellants (FQM) sold shares of a Finnish mining company (Kevitsa) to the respondents (Boliden).

A Finnish tax reassessment increased Kevitsa's taxable income for 2012-2016, leading to additional tax liabilities for those years and consequential liabilities for 2017-2018 due to the effective loss of accumulated tax losses.

The application judge found FQM liable under both a general indemnification provision (for breach of representation that there were "no grounds for reassessment") and a tax-specific indemnity.

The Court of Appeal dismissed FQM's appeal, upholding the application judge's finding of liability under the general indemnification provision, specifically confirming that the "no grounds for reassessment" warranty was absolute and that the loss of tax losses was a reasonably foreseeable consequential loss under Ontario contract law principles.

This case conference addressed the scheduling of multiple motions following a previous order for a re-hearing of a certification motion.

Counsel for both the plaintiff and defendants sought to schedule additional motions concurrently, including the plaintiff's motion to add representative plaintiffs, the defendants' summary judgment motion against the representative plaintiff, and the defendants' limitations motion regarding the tolling of the limitation period.

Despite a prior order only addressing the certification re-hearing, the court exercised its discretion to hear all four motions together over a three-day period, citing judicial economy due to substantial overlap in issues and counsel's agreement.

This endorsement addresses two motions for leave to appeal before the Divisional Court.

The Plaintiffs' motion for leave to appeal a "set aside" order was dismissed with costs awarded to the Defendants.

Concurrently, the Defendants' motion for leave to appeal earlier certification decisions was dismissed without costs, having become moot.

The Court of Appeal for Ontario issued an endorsement regarding a request to vary a trial costs award.

Following a successful appeal and cross-appeal by the Respondents (plaintiffs/defendants by counterclaim), they sought to vary the trial costs award, arguing entitlement to a higher scale due to beating a Rule 49 settlement offer.

The Appellants (defendants/plaintiffs by counterclaim) opposed this request.

The Court declined to vary its decision, noting that the Respondents had not appealed or sought leave to appeal the trial costs, nor had they raised the issue in their notices of cross-appeal or in their submissions on costs.

The Court of Appeal dismissed appeals by two groups of appellants (Varma/Madra and Palihapitiya) and allowed a cross-appeal by the respondents.

The case involved corporate malfeasance, breach of fiduciary duty, breach of contract, knowing assistance, and conspiracy related to the establishment of a competing fund (Annex Fund) and the undervalued sale of a technology company (Xtreme Labs), including the concealment of an equity interest in Hatch Labs (Tinder).

The trial judge's findings of liability for damages and disgorgement were largely upheld, and the disgorgement amount was increased on cross-appeal to serve a stronger deterrent purpose.

The court affirmed that directors of a corporate general partner can owe fiduciary duties directly to a limited partnership.

This addendum to a prior summary judgment resolves a dispute over the precise amount outstanding under a settlement agreement, which was a condition for granting relief from forfeiture to the defendants.

The court determined the defendants were liable for $12,000 in default administration fees for a specific period (July, August, September 2018) and $108,624.53 in legal fees incurred before November 2018, totaling $120,624.53.

The court rejected the plaintiff's claim for interest on default administration fees and for default administration fees accruing after October 2018 due to the plaintiff's own intransigence in providing an accounting.

A deadline of 30 days was set for payment, failing which the relief from forfeiture would be null and void.

The plaintiffs, a group of mortgage lenders, brought a motion for summary judgment seeking full arrears at a 25% annual interest rate and default administration fees after the defendants breached a settlement agreement.

The settlement had reduced the interest rate, but the defendants' opposition to a property sale approval motion triggered a clause voiding the release.

The defendants sought relief from forfeiture or argued the rates violated the federal Interest Act.

The court granted relief from forfeiture, finding the breach caused minimal prejudice to the lenders compared to the substantial forfeiture sought, and ordered an accounting of any remaining settlement amounts.

The court also found the 25% interest rate and default fees were not unenforceable under the Interest Act due to prior Supreme Court and Court of Appeal rulings on time-triggered rate increases and consensual resolutions.

The plaintiff, Akelius Canada Ltd., sought a world-wide Mareva injunction against the defendants, 2436196 Ontario Inc. and B’Nai Fishel Corporation, to protect its ability to recover damages arising from an aborted sale of eight apartment buildings.

The plaintiff claimed $45,000,000 in its Statement of Claim, but sought an injunction for $56,564,318 based on the increased value of the properties.

The court applied the five principles for Mareva injunctions from Chitel et al v. Rothbart et al, finding that the plaintiff established a strong prima facie case and a risk of asset removal given the defendants' sale of the properties and refusal to disclose the location of proceeds.

However, the court rejected the plaintiff's requested injunction amount, noting that the Statement of Claim did not include a claim for post-closing property value increase and that the valuation was inappropriate.

The injunction was granted for $690,631.38, representing professional fees incurred, plus fixed costs of $25,000 payable by the defendants.