David Rankin

In a constitutional compliance review arising from Robinson-Superior Treaty augmentation litigation, the moving parties challenged both the Crown's engagement process and the compensation amount set after negotiations failed.

The court held that although aspects of engagement, including late disclosure of reliance on per-capita benchmarking against a related treaty settlement, caused serious relational harm, the reviewing role required deference to a range of honourable discretionary outcomes.

Applying a sui generis review framework grounded in honour of the Crown and reconciliatory justice, the court concluded the Crown's ultimate compensation determination of $3.6 billion plus agreed costs was justified in the legal and factual context.

The court therefore declined to intervene in the compensation decision while also addressing allocation issues between federal and provincial Crown responsibility in the reasons.

This is a motion by Gary Curtis to review an order of a judge of the Court of Appeal for Ontario that provided directions for the perfection of an appeal brought by The Bank of Nova Scotia (BNS).

The original order dispensed with immediate filing of the order under appeal, required BNS to file a draft order for deemed perfection, and set a timeline for Mr. Curtis's factum.

Mr. Curtis argued he was prejudiced and that the motion judge erred in the directions and costs award.

The Court of Appeal panel found no error in principle or unreasonable result, dismissing Mr. Curtis's motion to review, but granted him an extension of time to file his responding materials and perfect his cross-appeal.

The appellant appealed the dismissal of two separate actions (2017 and 2020) against the Bank of Nova Scotia and its officers/employees.

The 2017 action was dismissed for inadequate pleadings and as an abuse of process.

The 2020 action was dismissed as a replication of the 2018 dismissed action and an abuse of process.

The appellant also raised an argument of reasonable apprehension of bias against the motion judge in the 2017 action due to a past partnership.

The Court of Appeal upheld both dismissals, finding no error in the motion judges' analyses, including the rejection of the bias argument, and dismissed both appeals with costs to the respondent.

Ontario brought a motion to adjourn the Stage Three trial of a complex treaty rights claim sine die, pending the Supreme Court of Canada's decision on the appeal of Stage One and Stage Two.

The plaintiffs, interveners, and Canada opposed the motion.

The court applied the test for an adjournment, balancing the interests of the parties and the administration of justice.

The court found that the risk of proceeding was manageable, while the prejudice to the plaintiffs and the administration of justice caused by further delay would be significant.

The motion to adjourn was dismissed.

Aroland First Nation and Ginoogaming First Nation sought partial summary judgment for a declaration that the Crown's duty to consult under s. 35 of the Constitution Act, 1982, is triggered by ongoing invasive testing (integrity digs and hydrostatic testing) on established natural gas pipelines traversing their traditional territories.

The defendants opposed, arguing no duty to consult or that the matter was unsuitable for partial summary judgment.

The court dismissed the motion, concluding that the issue could not be fairly and justly decided through partial summary judgment due to the need for a careful, incremental approach to Aboriginal law, disputed facts regarding adverse impact, significant overlap with broader issues of duty scope and breach, and the novelty of the case.

The plaintiffs moved to add Chevron Canada Capital Company (CCCC) as a party defendant to their action seeking to enforce an Ecuadorian judgment against Chevron Corporation.

The court dismissed the motion, finding that the proposed amendment was not legally tenable and disclosed no cause of action against CCCC, as the court had previously ruled that Chevron Canada's corporate veil could not be pierced.

Furthermore, the court found no basis for jurisdiction over CCCC, a Nova Scotia company with no assets or operations in Ontario, and noted that Rule 17.02(o) regarding necessary parties had been repealed.

Following a prior decision approving class counsel fees in a class proceeding settlement, class counsel sought clarification regarding the calculation of the fee award, treatment of consulting law firm fees, application of taxes, and comments regarding disclosure of a fee sharing agreement.

The court acknowledged that an arithmetic error had occurred in the original calculation and corrected the award by applying a 10% reduction to the claimed counsel fee before adding disbursements.

The court clarified that consulting law firms were to be paid from the approved counsel fee rather than treated as additional disbursements and confirmed that applicable taxes were payable in addition to the approved amount.

The court also addressed concerns about disclosure of the fee sharing agreement, reiterating that failure to fully disclose the agreement’s substance was a mistake despite counsel’s intentions.

Representative plaintiffs in a proposed national competition law class action sought court approval of partial settlement agreements with three defendants, approval of contingency fee agreements with class counsel, and approval of counsel fees and disbursements.

The court approved settlements totaling $13.63 million with Bank of America, Capital One, and Citigroup and found the agreements fair, reasonable, and in the best interests of the class under the Class Proceedings Act, 1992.

The court also approved the contingency fee agreements but scrutinized a separate fee‑sharing agreement between class counsel and a rival law firm that had commenced competing class actions.

The judge held that the fee‑sharing agreement required court approval, was not fair or reasonable to class members, and may constitute champerty or maintenance.

Class counsel’s requested fee was reduced by 10%, and the court ordered that no payment be made to the rival firm under the unauthorized agreement.

The plaintiffs brought a motion to certify a proposed class proceeding for settlement purposes against a credit card network defendant in a competition law action alleging conspiracy to fix merchant discount and interchange fees for Visa and MasterCard credit card transactions.

The claims included alleged breaches of the Competition Act, tortious conspiracy, intentional interference with economic interests, and unjust enrichment.

The court considered the certification criteria under s. 5(1) of the Class Proceedings Act, 1992 and held that the pleadings disclosed a cause of action, an identifiable class was established, common issues existed, and a class proceeding was the preferable procedure with an adequate representative plaintiff.

The court noted that certification for settlement purposes still requires satisfaction of the statutory criteria, though the analysis may be less strict given the settlement context.

Certification was granted as against the settling defendant and the proposed notice and notice plan were approved.