Daniel S. Murdoch

The Plaintiff, AZZ Galvanizing Canada Limited, brought a motion to compel discovery responses from the Defendants, Empire Steel Inc. and 1340614 Ontario Inc. (IBT).

The motion primarily concerned the disclosure of hydro cost allocation and subtenant information (Issue 14) by Empire.

While the initial motion was broad, issues were narrowed by agreement, and IBT's portion was adjourned due to counsel's unavailability.

The court found in favour of the Plaintiff on Issue 14, compelling Empire to provide the requested information.

This endorsement addresses the costs of that motion.

The court awarded partial indemnity costs of $16,094.69 to the Plaintiff, finding them largely successful.

The court rejected Empire's arguments for costs against the Plaintiff, citing improper submissions and the lack of novelty in the legal issues.

The costs were deemed fair, reasonable, and proportionate given the complexity and importance of the issues.

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 proposed representative plaintiffs sought leave under s. 138.8 of the Securities Act to commence a secondary market misrepresentation claim against Maxar Technologies Inc. and its directors/officers, alleging failures to properly impair assets and recognize revenue under IFRS.

The court excluded the plaintiffs' expert evidence on IFRS due to lack of qualifications and impartiality, and struck portions of their reply evidence as impermissible case-splitting.

Relying on the defendants' admitted expert evidence, the court found no credible evidence that Maxar's financial statements contained material misrepresentations.

The motion for leave was dismissed as there was no reasonable possibility of success at trial, and the related certification motion was consequently dismissed.

The defendants in a certified class action regarding COVID-19 business interruption insurance claims brought a motion seeking joint adjudication and common case management of common questions across approximately 79 overlapping proceedings.

The motion was opposed by several plaintiffs in individual actions who wished to proceed independently.

The court dismissed the motion, affording deference to a prior case management decision that declined to stay the individual actions, and finding that forcing joint adjudication would inappropriately undermine the plaintiffs' right to opt out of the class proceeding and cause undue delay.

Following the dismissal of the plaintiff's motions for leave to assert a statutory cause of action under the Securities Act and for certification of a class proceeding, the successful defendants sought costs of $363,184 on a partial indemnity basis.

The plaintiff argued for a reduced award of $250,000, citing the novelty and public interest of the case under s. 31(1) of the Class Proceedings Act, 1992.

The court agreed that the case raised a novel point of law and involved a matter of public interest, justifying a reduction in the costs award.

Costs were fixed at $285,000 all-inclusive.

The plaintiff brought a motion to add three additional representative plaintiffs during a certification hearing for a class action regarding COVID-19 business interruption insurance claims.

The court found that the original plaintiff, Nordik Windows Inc., had an arguable cause of action and was a suitable representative plaintiff.

The court also found that the three proposed additional plaintiffs—Hangar9 Studios Inc., Cash and Carry Inc., and Real Food for Real Kids Inc.—had viable causes of action and met the requirements under s. 5(1)(e) of the Class Proceedings Act.

The class action was fully certified with all four as representative plaintiffs.

The plaintiff sought leave to assert a statutory cause of action for secondary market misrepresentation under the Securities Act and to certify a class action against SNC-Lavalin and its directors.

The plaintiff alleged that SNC failed to timely disclose a material change when it was informed by the Public Prosecution Service of Canada that it would not be invited to negotiate a remediation agreement regarding criminal charges.

The court dismissed the motions, finding that the communication was not a 'change' in the business, operations, or capital of SNC, and therefore not a 'material change' requiring immediate disclosure.

The court also declined to certify the common law negligent misrepresentation claim, as reliance would be an individual issue and the statutory claim was not viable.

The plaintiffs brought motions to certify three proposed class actions against Aviva Insurance for the blanket denial of coverage for COVID-19-related business loss claims.

The claims focused on 'restricted access' and 'negative publicity' coverage provisions in Aviva's standard-form policies.

The court found that the requirements for certification under the Class Proceedings Act were met, noting the commonality of the standard-form policies and the identical denial letters.

The two Lerners Actions were certified, and the Nordik Action was conditionally certified pending a motion regarding the representative plaintiff.

The Quebec Plaintiffs and the Defendants brought motions for leave to appeal an order of Belobaba J. dated November 21, 2019.

The Divisional Court dismissed both motions for leave to appeal.

Costs of $2,500 were ordered payable by each of the moving parties to the responding Ontario Plaintiffs.

This endorsement followed the twelfth case management conference, addressing the progression of the action towards trial.

The court noted the completion of pleadings and examinations for discovery.

A key issue was the non-compliance of one defendant with a previous cost order of $44,000.

The plaintiffs, prioritizing trial scheduling, reserved their right to seek remedies for non-compliance.

The court issued specific directions for trial readiness, including deadlines for expert reports, filing of the Trial Record, and a certification form for setting pre-trial and trial dates.

Parties were also directed to confer on adopting a summary trial format versus an ordinary trial.

The plaintiffs in a Quebec class action and the defendants brought motions to stay a parallel Ontario class action alleging securities misrepresentations.

The moving parties argued the Ontario action was duplicative and an abuse of process.

The court dismissed the motions, finding that the Ontario action was more comprehensive and not duplicative of the Quebec action when it was filed.

The court held that issues of preferability between parallel multi-jurisdictional class actions are better addressed at the certification stage rather than through a pre-certification stay motion for abuse of process.

At the eleventh case management conference in this action, the plaintiffs sought an expedited trial date and an order for a summary trial under Rule 76.12.

The defendants opposed the summary trial process and sought time to complete discoveries and deliver responding expert reports.

The court declined to order a summary trial at this stage but established a timetable for the delivery of amended pleadings, completion of discoveries, and exchange of expert reports, with the next case management conference scheduled for January 2020.

The defendants brought motions to strike the plaintiffs' claims for fraudulent and negligent misrepresentation regarding the purchase of a condominium unit, arguing that the unit was purchased by a corporation rather than the plaintiffs personally.

The court dismissed the motions on two grounds.

First, the motions were brought after an inordinate and unexplained delay, contrary to rules 2.02 and 21.02.

Second, on the merits, it was not plain and obvious that the plaintiffs' claims in their personal capacity as prospective purchasers and intended occupants would fail, nor was it plain and obvious that they lacked legal capacity to bring the claims.

The plaintiffs in a class action sought court approval for a settlement agreement with certain defendants, class counsel fees and disbursements, and honorariums for the representative plaintiffs.

The settlement amount was $37 million.

The court approved the settlement, finding it fair and reasonable given the litigation risks, including dissolved corporate entities and limitations issues.

The court also approved the 30% contingency fee for class counsel and $50,000 honorariums for each representative plaintiff, recognizing their exceptional involvement and exposure to costs.

Catalyst Capital Group Inc. attempted to acquire VimpelCom Ltd.'s interest in Wind Mobile Corp. but negotiations failed.

During negotiations, a junior analyst employed by Catalyst left to work for West Face Capital Inc., a member of a consortium that subsequently acquired Wind.

Catalyst sued the former employee and West Face for breach of confidence and other claims (the Moyse Action).

The trial judge dismissed the action, finding that no confidential information was communicated and that Catalyst suffered no detriment because its own refusal to agree to a break fee and its insistence on regulatory concessions made the deal impossible.

Catalyst then commenced a second action against the consortium members and others alleging breach of confidence, conspiracy, and inducing breach of contract.

The motion judge dismissed the second action as barred by issue estoppel, cause of action estoppel, and as an abuse of process.

The Court of Appeal upheld the dismissal, finding that Catalyst was attempting to relitigate factual findings from the first action and that it could have advanced all claims in the first proceeding.

The defendants, KPMG, Canaccord Genuity Corp., and Cassels Brock & Blackwell LLP, brought motions for summary judgment to dismiss actions initiated by 1511419 Ontario Inc. (formerly The Cash Store Financial Services Inc.) on the grounds that the claims were statute-barred by the two-year limitation period.

The actions related to professional services provided concerning a January 2012 loan purchase and note offering.

The court dismissed the motions, finding that there were genuine issues requiring a trial regarding the discoverability of the claims, given the complex factual pattern, allegations of professional negligence, and the limited evidentiary record presented.

The defendants, Ted Slightham and Tatiana Doubovsky, sought to schedule motions under Rule 21.01 to dismiss the action against them, arguing the Fresh as Amended Statement of Claim did not plead a reasonable cause of action or that the plaintiffs lacked legal capacity.

The plaintiffs, Walter Zuppinger and Min Yan, opposed, arguing the motions were untimely and would cause delay.

The court, exercising its gatekeeping function in a case-managed action, determined that granting the defendants' request to advance these motions was proportionate, efficient, and timely given the significant change in the action following a partial settlement.

The court provided detailed case management directions for the scheduling and conduct of the motions, reserving substantive assessment to the motions judge.

The plaintiffs, Arlene Stevenson and Mira Melien, brought a motion for certification of a class action against Mazda Motor Corporation, Mazda Canada Inc., and Subaru Canada Inc. for settlement purposes, along with approval of the notice plan, and appointment of administrators.

The class action concerned alleged economic loss arising from Takata airbag inflators in Mazda and Subaru vehicles.

The court found that all criteria for certification under the Class Proceedings Act, 1992 were satisfied, even with a less rigorous application in the settlement context.

The motion was granted, certifying the action for settlement purposes and approving the related relief.

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.

The defendants brought a motion to strike the plaintiff's claims for conspiracy to injure and intentional interference with economic relations.

The plaintiff, former CEO of a company in receivership, alleged the defendants conspired to breach contracts to harm him personally.

The court struck the conspiracy claim because it failed to explain how the corporate defendant would agree to act against its own interests.

The court also struck the intentional interference claim because a prior release agreement meant the third-party company had no actionable civil wrong against the defendants.

Both claims were struck with leave to amend.