Crawford Glendron Smith

The plaintiffs sought leave under s. 138.3 of the Securities Act and certification under the Class Proceedings Act to pursue a class action against CIBC and its senior officers for alleged secondary market misrepresentations concerning CIBC's exposure to the U.S. residential mortgage market.

The court found that the plaintiffs met the test for leave and certification for the statutory claim.

However, applying the Court of Appeal's recent decision in Sharma v. Timminco Limited, the court held that the statutory claim was time-barred because leave was not obtained within the three-year limitation period under s. 138.14 of the Securities Act.

Consequently, both motions were dismissed.

The appellants, including Ontario Power Generation Inc. (OPG) and two unions, appealed a decision of the Ontario Energy Board (OEB) that disallowed $145 million of OPG's forecast nuclear compensation costs for the 2011-2012 test period.

The appellants argued the OEB was required to presume the collective agreements were prudent when entered into and could not use hindsight to assess their reasonableness.

The Divisional Court dismissed the appeal, holding that the OEB was not restricted to a retrospective prudence review for forecast costs and was entitled to consider current market comparators to ensure rates were just and reasonable for consumers.

The court also found the OEB's reasons were adequate and its decision did not violate section 2(d) of the Charter.

The appellants appealed a summary judgment order dismissing their claim against the respondent for knowing assistance in breach of fiduciary duty.

The dispute arose from the sale of the appellants' shares in a family-owned shopping mall to the remaining family members, who then sold a 50% interest to the respondent at a higher valuation.

The Court of Appeal upheld the motion judge's finding that there was no evidence the respondent had actual knowledge of the alleged fraudulent and dishonest conduct or breach of fiduciary duties towards the appellants.

Following an appeal where the appellants achieved substantial but not total success, the Court of Appeal for Ontario issued a costs endorsement.

The appellants did not seek costs, and the court determined the respondents were not entitled to costs.

Consequently, the court made no order as to costs.

The appellants, life insurance companies, appealed a trial judgment finding that transactions involving their participating accounts to finance a corporate acquisition breached the Insurance Companies Act.

The Court of Appeal upheld the trial judge's findings that the transactions breached the Act by failing to comply with generally accepted accounting principles, improperly allocating expenses, and constituting prohibited transfers.

However, the Court allowed the appeal in part regarding the remedy, finding that the trial judge's order to return $390 million to the participating accounts via litigation trusts was overly broad and akin to an oppression remedy not available under the Act.

Instead, the Court ordered the transactions unwound as of the present, with adjustments for expense savings already received.

The appellants, rural landowners whose lands formed part of a natural gas storage pool, brought an action against the respondent gas company for breach of contract, negligence, unjust enrichment, and nuisance.

The respondent successfully moved for summary judgment on the basis that the Ontario Energy Board had exclusive jurisdiction over the claims.

The Court of Appeal dismissed the appeal, holding that the substance of the claims fell within the ambit of section 38 of the Ontario Energy Board Act, 1998, which grants the Board exclusive jurisdiction to determine just and equitable compensation for gas storage rights and related damages.

The appellant appealed a judgment regarding the interpretation of a corporate resolution related to a share purchase agreement.

Under the agreement, the appellant received an $800,000 reduction in the purchase price in exchange for a pre-closing dividend declaration in favour of the respondent.

The Court of Appeal dismissed the appeal, finding that the appellant's interpretation would allow it to enjoy both the reduced purchase price and full ownership of the warrants involved in the dividend, which was contrary to the parties' joint good faith commercial intentions.

The appellants appealed a decision certifying two actions as class proceedings on behalf of participating life insurance policyholders.

The appellants argued the motions judge erred in finding a class proceeding was the preferable procedure under s. 5(1)(d) of the Class Proceedings Act, asserting that the Insurance Companies Act provided adequate alternative remedies for stakeholders.

The Divisional Court dismissed the appeal, holding that the motions judge made no error in principle and reasonably concluded that a class proceeding offered juridical advantages, including case management, access to justice through contingency fees, and judicial supervision of remedies.

The appellants appealed an order striking paragraphs of their statements of defence without leave to amend.

The Court of Appeal held that while the paragraphs were properly struck for improperly relying on set-aside Commission findings and lacking clarity, the motion judge erred in refusing leave to amend.

The appeal was allowed in part to grant the appellants leave to amend their statements of defence.

The applicant witnessed an alleged unprovoked assault by a police officer and filed a public complaint under the Police Services Act.

The Ontario Civilian Commission on Police Services refused to process the complaint, finding the applicant was not 'directly affected' by the conduct.

The Divisional Court overturned this decision, but the Court of Appeal allowed the Commission's appeal, holding that 'directly affected' requires a personal and individual interest, not merely a general interest, and thus a mere witness lacks standing to bring a public complaint.

The applicant witnessed a police officer use excessive force against a woman and filed a complaint under the Police Services Act.

The Ontario Civilian Commission on Police Services refused to deal with the complaint, finding the applicant was not 'directly affected' by the conduct.

On judicial review, the Divisional Court held that the standard of review was correctness and that the applicant, as a firsthand witness who was disturbed by the incident, was 'directly affected' within the meaning of the Act.

The application was granted and the complaint remitted to the Chief of Police.

The appellant brokerage firm suspended all activity in the respondents' accounts pursuant to a contractual refusal clause, citing concerns over the principal's criminal record and potential regulatory scrutiny.

The trial judge found the refusal clause ambiguous, implied a requirement for reasonable notice, and awarded damages to the respondents for disrupted transactions.

The Court of Appeal allowed the appeal, holding that the refusal clause was unambiguous and permitted the broker to refuse instructions without notice when acting in good faith for its own protection.

The court found that implying a notice requirement contradicted the plain language of the agreement and the commercial reality of a broker's gatekeeper function.

The damages award was set aside.

The appellants, two major gas distributors in Ontario, appealed a decision of the Divisional Court upholding the Gas Distribution Access Rule (GDAR) issued by the Ontario Energy Board.

The GDAR permitted gas vendors to determine how customers are billed for gas commodity sales and distribution services.

The appellants argued the Board lacked jurisdiction under the Ontario Energy Board Act to make such billing rules and failed to follow the required rule-making process.

The Court of Appeal held that the standard of review for subordinate legislation is correctness.

Applying this standard, the Court found that the Board had ample jurisdiction to make the billing provisions, as they regulated an important part of the gas distribution business.

The Court also found the Board complied with the statutory notice and comment process.

The appeal was dismissed.

The appellant corporation issued share certificates as part of a stock roll program, representing them as fully paid when they were not.

A third party pledged one of these certificates to the respondent bank as collateral for a loan.

When the borrower defaulted, the bank sought to realize on the shares, but the appellant refused to acknowledge the bank as the valid owner.

The trial judge found the bank was a good faith purchaser and granted an oppression remedy.

The Court of Appeal dismissed the appeal, holding that the bank was a good faith purchaser, the appellant was estopped from denying the validity of the certificate, and the restriction on transfer did not prevent the transfer to the bank.

The court also dismissed the third-party claim against a credit union for vicarious liability.

The appellant, representing unsecured noteholders, sought leave to appeal orders approving a CCAA reorganization plan for the GT Group of Companies.

The appellant argued the plan was unfair because it excluded the parent company, required the parent to transfer assets to subsidiaries, and deprived noteholders of rights to sue.

The Court of Appeal dismissed the application for leave, finding the asset transfer complaint illusory as the assets would be lost to secured creditors anyway, and the loss of rights to sue unsubstantiated.

The Court also noted the appellant's delay and failure to propose an alternative plan.

The appeal arose from a trial judgment rescinding an agreement of purchase and sale for vacant land marketed as a residential building lot when the vendors knew that obtaining a building permit was uncertain at best.

The Court of Appeal upheld the trial judge's findings that the purchasers reasonably relied on misrepresentations that the property was a building lot and that obtaining a permit would not be a problem.

The court rejected the argument that the statements concerned only a future event, holding that the representation related to an existing fact about the nature of the property.

Leave to appeal costs was granted on the cross-appeal, but the costs appeal was dismissed and the trial costs award on a party-and-party basis was left undisturbed.