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.

In a certified class proceeding arising from alleged COVID-19 business interruption coverage denials, the moving parties sought production of internal insurer documents relevant to common issues alleging breach of the duty of good faith and punitive damages.

The court held that the bad faith allegations had sufficient evidentiary foundation, particularly given the certification findings and evidence of an apparent blanket denial process, to move the request beyond a fishing expedition.

Internal materials concerning the insurer's corporate-level denial decision, adjuster communications, and reinsurer communications about a later pandemic exclusion were found relevant to contemporaneous decision-making and after-the-fact policy interpretation.

Production was ordered for categories (c), (d), and (e), but not for comparator materials concerning different insurance programs in category (f).

The City of Ottawa appealed a remittal decision that found various provisions of a 1981 Agreement and related contracts governing golf course lands to be inoperative.

The Court of Appeal had previously struck down conveyancing provisions in the agreement for violating the rule against perpetuities.

The application judge held that without these provisions, the remaining obligations to operate a golf course in perpetuity fundamentally altered the parties' original bargain and were therefore inoperative.

The Court of Appeal dismissed the appeal, agreeing that the removal of the conveyancing provisions frustrated the balance of the agreement, rendering all provisions relating to the golf course lands void.

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.

The parties to a putative class action agreed to discontinue the action with prejudice, as similar claims were being pursued in a proposed class proceeding in British Columbia.

The court approved the discontinuance pursuant to s. 29(1) of the Class Proceedings Act, 1992, and dispensed with the requirement to give notice to the class, noting the early stage of the proceeding and the continuation of the claims in British Columbia.

In the context of a CCAA restructuring, the respondent was previously ordered to specifically perform its obligation to reconvey certain lands to a special purpose entity, which had agreed to sell a portion of those lands to the moving party.

The respondent refused to complete the reconveyance, arguing that the parties had not agreed on the terms of 'shared facilities and/or reciprocal easement agreements' required under the reconveyance agreement.

The moving party brought a motion for the court to interpret the agreement and impose terms.

The court held it had jurisdiction to determine the terms of the reconveyance and found that the respondent's demanded easements (including for undefined future utilities, carbon sequestration, and emissions) were not valid easements at common law and did not meet the contractual requirement of being 'shared' or 'reciprocal'.

The court directed the parties to attempt one final negotiation before it would impose the final terms of the easement agreement.

The moving parties sought leave to appeal three orders of Morgan J. The Divisional Court dismissed the motion for leave to appeal and awarded costs to the respondent in the amount of $35,500.

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 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 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 plaintiffs brought a motion to settle a Rule 7 Order pursuant to the Class Proceedings Act, 1992, following the dismissal of their certification motion for a proposed class action regarding systemic abuse in amateur hockey.

The court reviewed and settled the revised Draft Section 7 Plan, which transitions the proposed class action into up to 60 joinder actions against the defendant hockey teams and leagues.

The court approved the notice plan, opt-in procedures, and case management provisions, with minor revisions to protect player privacy and ensure efficient administration.

Following the dismissal of a proposed class action regarding systemic abuse in the Canadian Hockey League, the plaintiffs brought a motion under section 7 of the Class Proceedings Act, 1992 to approve a plan to transition the proceeding into multiple joinder actions.

The court reviewed the competing Section 7 Plans submitted by the plaintiffs and defendants and found both to be procedurally flawed and overreaching.

The court proposed its own Draft Section 7 Plan designed to facilitate the commencement of up to 60 joinder actions while respecting the court's jurisdictional limits and the parties' procedural rights.

The motion was adjourned to a second phase for the parties to revise and discuss the court's draft plan.

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.