Crawford Glendron Smith

The plaintiff, Zheng Lou, brought a two-branched motion: (1) for court approval of a settlement reached with defendant Baomin Yi, and (2) to convert her individual action against London Life Insurance Company into a class action.

The court dismissed the motion for settlement approval, finding no jurisdiction to approve settlements in regular actions.

The court also dismissed the motion to convert the action into a class proceeding, holding that an additional threshold test beyond Rule 26 of the Rules of Civil Procedure must be met for such conversions.

This threshold was not satisfied due to serious limitation period issues, problems with the proposed class definition, common issues, preferable procedure criteria, and the suitability of the plaintiff as a representative.

The plaintiff hired the defendant general contractor for a home renovation on a cost-plus basis.

After becoming concerned about costs, the plaintiff hired a cost consultant who discovered a fraudulent invoicing scheme, including inflated sub-trade accounts and double-counted HST.

The plaintiff brought a motion for summary judgment for civil fraud and to pierce the corporate veil to hold the sole shareholder personally liable.

The court granted summary judgment, finding the contractor committed civil fraud and the shareholder used the corporation as an instrument of fraud.

The defendants' counterclaim for unpaid invoices was largely dismissed due to lack of supporting documentation.

This endorsement addresses the approval of class counsel fees, plaintiffs' costs, defendants' costs, and the Law Foundation of Ontario's levy following a decade-long class action concerning the legality of Par account transactions (PATs) by London Life and Great-West Life.

The court approved class counsel fees of $16.4 million, found the plaintiffs entitled to $4 million in partial indemnity costs from the defendants, and denied the defendants' claim for costs.

It also determined that the Law Foundation of Ontario was entitled to a levy of $1,520,346.50 (repayment of disbursements) plus 10% of the net monetary award ($4,030,000), totaling $5,550,346.50, to be paid from the participating accounts.

The court clarified that a "monetary award" for the purposes of the Class Proceedings Act and the Law Society Act includes funds paid to the benefit of class members through participating accounts, even if not directly distributed to individuals.

The Ontario Electricity Financial Corporation brought a motion to vary an order of a single judge that dismissed its motion to stay a portion of certain Superior Court orders pending its application for leave to appeal to the Supreme Court of Canada.

The Court of Appeal dismissed the motion, finding no reviewable error in the single judge's application of the three-part test for a stay, including her conclusion that there was little likelihood of leave being granted and that irreparable harm was not established.

The Ontario Electricity Financial Corporation (OEFC) brought a motion to stay portions of judgments requiring it to pay approximately $160 million in retroactive payments to several non-utility generators, pending its application for leave to appeal to the Supreme Court of Canada.

The Court of Appeal dismissed the motion, finding that OEFC failed to establish a serious issue to be adjudicated, as the proposed appeal issues were highly fact-specific and lacked precedential value.

Furthermore, OEFC failed to demonstrate that it would suffer irreparable harm if the stay was not granted.

This case concerns the interpretation of a 1985 indemnity agreement granted by the Province of Ontario to Great Lakes Forest Products Limited (now Resolute FP Canada Inc.) and its successors and assigns, regarding mercury contamination.

Weyerhaeuser Company Limited, a subsequent owner of the property, and Resolute sought indemnity from the Province for costs incurred complying with a 2011 environmental remediation order issued by the Ministry of the Environment.

The court granted summary judgment, finding that the indemnity's broad language covered statutory claims by provincial agencies and that the fettering doctrine did not apply to this business agreement.

Weyerhaeuser was also found to be able to rely on the indemnity as a successor or assignee.

The appellant, Ontario Electricity Financial Corporation, appealed a decision regarding the calculation of amounts payable to the respondent non-utility generators under long-term power purchase agreements.

The dispute centered on whether a new government regulation reallocating the Global Adjustment Mechanism (GA) altered the calculation of Total Market Costs (TMC) under the agreements.

The application judge found that the new GA calculation was inconsistent with the definition of TMC, which required costs to be allocated pro rata to consumption.

The Court of Appeal dismissed the appeal, finding that the application judge did not decide the case on an unargued issue, made no palpable and overriding factual errors, and properly interpreted the agreements without improperly implying a term.

The appellants commenced an action in Ontario alleging mismanagement of their investment accounts by their advisor and vicarious liability of the brokerage firm.

The brokerage firm successfully moved to stay the action based on a forum selection clause in the client account agreements requiring disputes to be litigated in British Columbia.

The Court of Appeal dismissed the appeal, finding the appellants failed to show strong cause to depart from the forum selection clause, as they were sophisticated investors who had the opportunity to read the agreements, and Ontario law could be proven in British Columbia courts.

The Ontario Energy Board appealed a decision that had required it to apply a mandatory prudence framework when assessing Ontario Power Generation compensation costs in rate-setting.

The majority held tribunal participation in defending its own decision was proper in this regulatory context and found no impermissible bootstrapping on appeal.

The Court held the governing statute did not require a single prudence methodology and permitted the Board to use a mixed approach for costs that were partly committed and partly subject to managerial discretion.

The Board’s disallowance of $145 million in compensation costs was found reasonable, and its original decision was reinstated.

The appellant utility appealed a Divisional Court decision affirming an Ontario Energy Board order that reclassified $22 million in FT-RAM revenues from utility earnings to gas supply cost reductions.

The appellant argued this was an unauthorized departure from their Incentive Regulation Mechanism Agreement and constituted impermissible retroactive ratemaking.

The Court of Appeal dismissed the appeal, finding that the revenues were generated on a planned basis contrary to the regulatory principle inherent in the agreement, and that because the revenues were brought forward for disposition and the utility failed to disclose its planned activities, the funds were encumbered and subject to further disposition by the Board without offending the rule against retroactive ratemaking.

Applicants under multiple long-term power purchase agreements sought declarations that the respondent miscalculated Total Market Cost after the 2011 global adjustment reallocation regime came into force.

The court held that the contractual definition of TMC implicitly required aggregated electricity costs to be allocated pro rata based on electricity consumption, and that the respondent's new formula improperly reflected a regulatory reallocation between customer classes rather than the underlying costs of generation and supply.

Although the court found the respondent breached the PPAs, it also held that neither the change of law clauses nor the material change provisions were triggered by the reallocation regulation.

Declaratory and consequential relief was granted requiring recalculation from January 1, 2011 and compensation with interest.

The moving parties sought interim and interlocutory injunctive relief to prevent unilateral termination of an affiliate property manager under a co-owners agreement and property management agreement governing a jointly owned commercial plaza.

The court found a strong prima facie case that the responding parties had acted unilaterally and in clear breach of the contractual unanimity requirements, and rejected the asserted conflict-based disenfranchisement of the moving parties at the co-owners committee meeting.

However, the motion failed because the alleged harm was compensable in damages and the evidence did not establish irreparable harm arising from the management dispute or ongoing tenant negotiations.

Although the balance of convenience favoured maintaining the status quo, the injunction was dismissed and no costs were awarded.

The Court allowed the appeal from the Federal Court of Appeal and set aside the divestiture order under s. 92 of the Competition Act.

A majority held the merger likely prevented competition substantially, but concluded the efficiencies defence in s. 96 succeeded because proven efficiency gains outweighed proven anti-competitive effects after the Commissioner failed to quantify quantifiable effects.

The appellants, representing former Barbados participating policyholders of Manulife, brought a class action for negligence.

They claimed Manulife owed them a duty of care to protect their interests when it transferred their policies to another insurer in 1996, three years before Manulife demutualized and distributed $9 billion to its participating policyholders.

The trial judge dismissed the action, finding that while harm was foreseeable, policy reasons negated a duty of care.

The Court of Appeal dismissed the appeal, holding that the claim was for pure economic loss and did not fall within established categories.

The Court found no prima facie duty of care because the relationship lacked sufficient proximity, as the policyholders had no legally recognized right to share in a future demutualization at the time of the transfer, and the governing legislation permitted Manulife to terminate the relationship.

In a second appeal arising from insurance class proceedings concerning participating account transactions implemented in a 1997 life insurance acquisition, the appellants challenged the trial judge’s interpretation of the remedial formula previously crafted by the Court of Appeal.

The court held that the objective of the remedy was to unwind the transactions as of the effective date by restoring the participating accounts and shareholder accounts to the positions they would have occupied had the transactions not occurred, without conferring a windfall.

It concluded that amortization charges could not reduce the merger expense savings deduction, that the 6.91 percent return under paragraph 200(e) had to be calculated on an after-tax basis, and that paragraph 200(e) formed part of the deduction rather than an addition to the amount payable.

The appeal was allowed, the effective date remained December 31, 2011, and the amount repayable to the participating accounts was fixed at $51.6 million subject to updating.

The appellant utility company appealed a decision of the Ontario Energy Board that reclassified $22 million in earnings from a transportation risk alleviation mechanism as 'gas transportation costs' rather than 'utilities revenue'.

The appellant argued this constituted impermissible retroactive ratemaking.

The Divisional Court dismissed the appeal, finding that the standard of review was reasonableness and that the Board had the authority under section 36 of the Ontario Energy Board Act to ensure rates were just and reasonable, particularly given the appellant's lack of disclosure regarding the nature of the revenues.

The appellant appealed a decision of the Ontario Energy Board approving the respondent's application to construct electricity transmission lines for a wind energy project and approving the forms of land agreements offered to affected landowners.

The appellant argued the independent legal advice clauses in the agreements were misleading and the Board failed to provide adequate reasons.

The Divisional Court dismissed the appeal, finding that the approval of the form of agreement was a discretionary decision that did not raise a question of law or jurisdiction.

Furthermore, the Board's decision was reasonable and its reasons were adequate.

The applicant sought a determination that amendments to the Planning Act enacted through the Green Energy and Green Economy Act, 2009 exempted a temporary turbine component storage site from municipal planning controls.

The renewable energy developer had obtained a Renewable Energy Approval from the Ministry of the Environment for a wind power project and leased nearby land zoned for aggregate extraction to store turbine components during construction.

The municipality argued that the temporary storage property was not part of a renewable energy project and therefore required zoning and official plan amendments.

The court interpreted the statutory definitions of “renewable energy undertaking” and “renewable energy project” broadly and concluded that temporary component storage integral to construction formed part of the renewable energy undertaking.

As a result, municipal official plans and zoning bylaws did not apply under s. 62.0.2 of the Planning Act.

The appellants challenged a regulatory decision reducing a power generator's proposed revenue requirements for nuclear compensation costs during a forward test period.

The Court of Appeal held that future compensation costs mandated by existing collective agreements were committed costs, not forecast costs that could simply be managed downward.

The Board acted unreasonably by relying on hindsight and current benchmarking information unavailable when the collective agreements were made, and by failing to conduct a prudence review based on what was known or ought to have been known at the time of the commitments.

The matter was remitted to the Board for rehearing in accordance with those principles.

Following a prior trial and a partial appeal, the court conducted a rehearing to determine the appropriate remedy in a certified class proceeding concerning participating account transactions and an unlawful pre‑paid expense asset used by life insurance companies.

The Court of Appeal had upheld the finding of illegality but directed the trial judge to determine the monetary amounts required to unwind the transactions and restore funds to participating policyholder accounts.

The central disputes concerned the calculation of merger synergy deductions, whether historical amortization charges should be deducted when determining the benefit received by participating accounts, the interpretation of a 6.91% return provision, and the appropriate “effective date” for unwinding the transactions.

The court concluded that amortization expenses since 1997 must be deducted to reflect the “no contribution/no benefit” principle and interpreted the Court of Appeal formula as adding, not subtracting, the 6.91% return to the participating accounts.

The court fixed December 31, 2011 as the effective date and ordered that $284,675,000 be paid to the participating accounts, with cancellation of the pre‑paid expense asset and related amortization charges.