Daniel S. Murdoch

The plaintiff was successful in resisting the defendants' motion to stay this proposed class action and sought costs on a partial indemnity basis.

The defendants argued the costs should be reduced by the amount spent cross-examining a lawyer from a parallel British Columbia action who intervened on their own initiative.

The court agreed, finding the defendants did not solicit the affidavit and should not bear the costs of the cross-examination, awarding the plaintiff $33,500 in costs.

The appellants appealed the dismissal of their motion to stay class proceedings and individual actions against them.

They argued they were entitled to a stay because they did not receive timely disclosure of a partial settlement between the plaintiffs and a co-defendant.

The Court of Appeal dismissed the appeal, holding that the strict partial settlement disclosure rule does not apply to class proceedings, which are governed by the settlement approval regime in the Class Proceedings Act.

The court found the appellants received timely disclosure and were not prejudiced.

In this certified class action concerning business interruption insurance claims related to COVID-19 and civil authority orders, the plaintiffs moved on consent for approval of a Notice of Proposed Settlement and a Pre-Approval Notice Plan.

The court approved the notice and plan, finding them informative and consistent with the prior successful certification notice program.

The court also ordered that the action be treated as a Class Proceedings matter despite retaining a Commercial List file number.

The plaintiffs in this certified class action moved on consent for approval of a Notice of Proposed Settlement and a Pre-Approval Notice Plan.

The court found the proposed Notice appropriately informative and the pre-approval plan for dissemination consistent with the successful certification notice program.

The motion was granted, and the Notice of Proposed Settlement and the Pre-approval Notice Plan were approved.

In a CCAA restructuring involving a remote iron ore mining operation facing an immediate cash crisis before a narrow seasonal shipping window, the applicants sought approval of interim debtor-in-possession financing and a super-priority charge.

Competing secured creditor groups proposed rival DIP facilities, but the court approved the Crown lender’s DIP for the interim bridge period only, emphasizing the urgent need for operational stability, the monitor’s support, and the limited prejudice given the de novo rehearing scheduled within weeks.

The court added consultation, consent, and information protections to preserve a level playing field for the competing DIP proponents before the full return motion.

The stay of proceedings was extended, authority was granted to pay certain critical pre-filing suppliers with the monitor’s consent, and the sealing request was adjourned.

In the context of CCAA proceedings, the Monitor sought directions on the interpretation of a litigation funding agreement and the approved Plan of Arrangement regarding the distribution of funds released from security for costs.

The successful defendants in related litigation argued the funds should be paid to them to satisfy outstanding costs awards.

The court rejected this interpretation, finding the plain wording of the agreements required the funds to be treated as Subsequent Cash on Hand for the benefit of Secured Noteholders.

The court also declined to approve the Monitor's historical activities, noting the expiry of limitation periods rendered such approval unnecessary, but granted the Monitor's discharge.

The defendants brought a motion under section 5(6) of the Class Proceedings Act, 1992 to stay a proposed global securities class action in Ontario in favour of a similar proposed class action in British Columbia.

The Ontario action alleged statutory secondary market misrepresentation and common law negligent misrepresentation regarding the defendants' artificial intelligence products.

The court considered the objectives and factors under section 5(7) of the Act, noting that the Ontario action was more advanced, had a more streamlined pleading, and that the corporate defendant was a well-resourced telecommunications company capable of litigating in multiple jurisdictions.

The court concluded that the objectives of judicial economy and ensuring justice for all parties favoured allowing the Ontario action to proceed.

The motion for a stay was dismissed.

This is a costs decision following the respondent's successful appeal of orders certifying an action as a class proceeding and granting leave to proceed under the Securities Act.

The respondent sought $120,000 in total costs ($20,000 for the Divisional Court leave to appeal motion and $50,000 for each of two appeals to the Court of Appeal).

The court awarded $70,000 in total costs ($20,000 for the leave to appeal and $50,000 for the appeals), finding that while there were technically two separate appeals, the issues and arguments were inextricably bound together in substance.

The Cash Store Financial Services Inc. operated a payday loan business from 2002 until it sought CCAA protection in April 2014.

The company's estate sued its auditor KPMG LLP and counsel Cassels Brock & Blackwell LLP, alleging negligence and breach of fiduciary duty.

The plaintiff claimed that the defendants knew or ought to have known that Cash Store was misrepresenting its business as a broker when it was actually a direct lender bearing credit risk, and that this misrepresentation caused a deepening of insolvency from late 2011 until the CCAA filing in 2014.

The plaintiff sought damages ranging from $119 million to $177 million, plus disgorgement of legal fees.

The court dismissed all claims against both defendants, finding that Cash Store was properly characterized as a broker during the relevant period, that the defendants met applicable professional standards, and that the plaintiff failed to prove causation and damages.

The court also found the claims were statute-barred.

This appeal concerns the certification of a class proceeding and the granting of leave to proceed with a secondary market misrepresentation claim under the Securities Act.

The respondent, a former shareholder of Akumin Inc., sought to certify a class action on behalf of purchasers of Akumin securities (common shares and secured notes) alleging misrepresentations in financial statements and seeking relief under both statutory provisions and common law negligence.

The appellants challenged both the leave order and the certification order, arguing that certain disclosures did not constitute "public corrections" that an efficient market requirement applied to secondary market claims, and that common law negligence claims should not be certified alongside statutory claims.

The Court of Appeal upheld the motion judge's decisions, clarifying the law on public corrections, rejecting an efficient market requirement, and confirming that common law claims can be certified alongside statutory claims.

The court considered whether a 2024 capital call made by the general partner of a real estate development limited partnership was valid under the partnership agreements and the Limited Partnerships Act.

The applicant, Dream Impact, argued the call was invalid and that it had not defaulted, or, alternatively, that any default was cured by other partners' contributions.

The court found the capital call was valid, Dream Impact defaulted by not contributing, but that after the other partners funded Dream Impact’s share and its interest was diluted, there was no continuing default.

The applicant’s put notice was found invalid.

The court found that Empire Steel Inc. breached its sublease with AZZ Galvanizing Canada Limited by overcharging for hydro, contrary to the contractual requirement to pass on only the actual cost of utilities.

Empire’s attempt to justify the overcharges by reference to alternative agreements and a retroactive TMI reconciliation was rejected as lacking credibility and good faith.

The court awarded AZZ $418,876 for hydro overcharges, subject to a $20,000 set-off for outdoor storage, and dismissed all other counterclaims and crossclaims.

The plaintiff, Mohammad Reza Kamrani-Ghadjar, sought to discontinue his class action against Cidel Trust Company and Neo International Investments Ltd. in a securities misrepresentation case involving Anaergia Inc. The court approved the discontinuance with prejudice, finding no prejudice to the class or defendants, and ordered that notice be given to class members.

The court also granted procedural orders regarding factum length and amended the litigation timetable.

The moving parties sought leave to appeal a decision granting the responding party leave to commence an action under s. 138.8 of the Securities Act.

The Divisional Court granted leave to appeal, identifying specific questions regarding whether the motions judge erred in holding that the Court of Appeal erred in a previous decision, and whether such an error rendered the decision unsafe.

Costs of the motion were fixed at $20,000, payable in the discretion of the appeal panel.

The plaintiff, Mohammad Reza Kamrani-Ghadjar, seeking leave to represent a class in a securities class action, served an affidavit from a lawyer, Lon Michael Kirsh.

The defendants, Anaergia Inc., Andrew Benedek, and Hani El-Kaissi, moved to strike the affidavit, arguing it contained inadmissible opinion evidence.

After the plaintiff served a revised affidavit removing opinions, the defendants moved again to strike it, alleging irrelevance and immateriality.

The court dismissed the defendants' motion, finding the affidavit contained permissible observations of voluminous public filings rather than inadmissible opinions.

However, the court ordered the plaintiff to pay $10,000 in costs thrown away to the defendants due to the initial inadmissible affidavit.

The plaintiff brought a motion for leave to commence a secondary market securities class action under Part XXIII.1 of the Securities Act against Akumin Inc., its directors and officers, and its auditor, Ernst & Young LLP, and for certification of the action under the Class Proceedings Act.

The claims arose from alleged misrepresentations in Akumin's financial statements that were later restated.

The court granted leave against the Akumin defendants, finding a reasonable possibility of success at trial regarding the alleged misrepresentations and public corrections.

However, the court denied leave against the auditor, EY, finding insufficient evidence that the auditor's statements were material or publicly corrected.

The court certified the action as a global class proceeding against the Akumin defendants, rejecting arguments to exclude American purchasers from the class.

This appeal concerned the interpretation of a "life of mine" supply contract for sodium cyanide used in gold mining.

The appellants, Kinross Gold Corporation and its subsidiaries, sought a declaration that their contract with the respondent, Cyanco Company, LLC, for liquid sodium cyanide did not prevent them from sourcing solid sodium cyanide elsewhere.

The trial judge dismissed Kinross's action, concluding that the contract obligated Kinross to purchase sodium cyanide exclusively from Cyanco if the mines were operating and required liquid sodium cyanide.

The Court of Appeal upheld the trial judge's decision, finding no extricable error of law or palpable and overriding error in the interpretation of the contract, the consideration of surrounding circumstances, the application of related contracts principles, or the assessment of commercial reasonableness.

The appeal was dismissed with costs awarded to the respondent.

Following the dismissal of the plaintiffs' action at trial, the defendant sought costs on a full indemnity scale pursuant to a contractual provision in the parties' agreement.

The plaintiffs argued that the provision did not apply to declaratory relief and did not explicitly state 'full indemnity'.

The court held that the contractual language allowing recovery of 'all reasonable costs' entitled the defendant to full indemnity costs.

However, the court declined to award costs for the defendant's U.S. counsel, finding their involvement was not reasonably required for the Ontario litigation.

The court awarded the defendant its Canadian counsel's fees and disbursements in full, totaling $2,192,609.12, finding the amount reasonable and proportionate given the high stakes of the commercial dispute.

This case conference addressed the content and costs of the notice to be sent to class members following certification of a class action against an insurer.

The defendant insurer objected to the proposed notice content, which encouraged class members to submit claims, arguing it was improper advocacy.

The insurer also challenged the scope of notice distribution (to brokers and on its website) and sought to avoid notice costs.

The court approved the plaintiff's proposed notice content, finding it consistent with the insurer's own position on claim submission and the purpose of class notice.

The court denied the request for the insurer to post the notice on its website but ordered the insurer to provide policyholder and broker contact information.

The court further ordered that the costs of disseminating the notice, including administrator fees, be shared equally between the class and the insurer, citing the insurer's blanket denial of coverage as a factor.

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.