David Rosenfeld

The applicants, shareholders of TD Bank, sought leave under section 334 of the Bank Act to bring a derivative action in Delaware on behalf of TD Bank's U.S. subsidiary regarding anti-money laundering failures.

The court dismissed the application, finding that the Bank Act does not permit an Ontario court to grant leave for a derivative action to be commenced in a foreign jurisdiction.

Furthermore, the court held that even if it had jurisdiction, leave would not be granted because the proposed action did not appear to be in the best interests of the bank, given the board's reasonable business judgment and the potential prejudice to the bank in other ongoing litigation.

Costs endorsement following the appeal reasons reported at 2025 ONCA 861.

The respondents on appeal were the more successful parties, having succeeded entirely on one issue and partially on the second, where the court substituted a temporary stay for the motion judge's dismissal.

The court discounted both the motion judge's costs award and the agreed appeal costs by 25% to reflect the divided success, resulting in costs of $18,750 for both the motion and the appeal, inclusive of disbursements and HST.

The appeal concerned whether claims arising from strike picketing by a unionized employer and related non-unionized corporate affiliates belonged in labour arbitration or in the Superior Court.

Applying Weber, the court held that the unionized employer’s claims arose from the collective agreement and were within the labour arbitrator’s exclusive subject-matter jurisdiction.

Applying Bisaillon, the court held that the arbitrator lacked personal jurisdiction over the non-party corporate affiliates, so their claims could not be dismissed for want of jurisdiction.

However, to prevent parallel litigation from undermining arbitration, the court ordered a temporary stay of the non-party claims pending completion of the labour arbitration and any related judicial review period.

This is a costs decision following a successful summary judgment motion.

The defendants, represented by Dave Griffiths and others, succeeded in having the action dismissed based on the ultimate limitation period.

The court considered the parties' bills of costs, the complexity and importance of the case, and the lack of detail in the bills.

Ultimately, the court fixed costs at $80,000, all-inclusive, in favour of the defendants, finding this amount fair, reasonable, and proportionate in the circumstances.

The court granted the defendants' motion to dismiss the plaintiffs’ action as statute-barred under the 15-year ultimate limitation period in the Limitation Act, 2002.

The plaintiffs, Bruce G. Johnston and Judith A. Walker, claimed wrongful expulsion from their union and denial of full pension benefits.

The court found that all material facts were known or discoverable by 1994/95, and the ultimate limitation period had expired long before the action was commenced in 2021.

The court also rejected arguments based on concealment, breach of contract, unjust enrichment, and the expulsion being void ab initio.

The defendant union moved to dismiss the plaintiff's action for lack of jurisdiction and abuse of process, arguing that the claims, including discrimination, wrongful dismissal, defamation, and breach of contract, fell under the exclusive jurisdiction of the Ontario Labour Relations Board (OLRB) or a labour arbitrator, and had already been adjudicated by the OLRB.

The plaintiff, a union member, alleged improper termination by his employer and the union's failure in its duty of fair representation, asserting that his claims involved human rights issues beyond the OLRB's jurisdiction.

The court dismissed the action, finding that the essential character of the dispute arose from the collective agreement and the union's duty of fair representation, which are exclusively within the OLRB's jurisdiction, and that the action constituted an abuse of process as it sought to relitigate issues already determined by the OLRB.

The plaintiffs brought an action for damages resulting from alleged property interference and a blockade during a lawful strike by the defendant union.

Both parties brought summary judgment motions regarding the appropriate forum for the dispute.

The Superior Court held that it lacked jurisdiction, finding that the dispute arose from a labour dispute covered by a retroactive collective agreement.

The court dismissed the plaintiffs' motion and granted the defendants' motion, ruling that the Ontario Labour Relations Board is the proper forum.

This decision concerns the approval of a class action settlement and class counsel's fees related to pension indexing benefits for members of the Brewer’s Retail, Inc. Pension Plan.

The dispute revolved around whether indexing constituted a protected pension benefit under the Pension Benefits Act.

The settlement provides for a 0.9% annual adjustment to pension benefits for pre-2010 service, with a specific fund allocated for certain class members requiring a claims process.

The court found the settlement to be fair, reasonable, and in the best interests of the class, noting it was the result of arm's-length negotiations and avoided the "all or nothing" risk of litigation.

Class counsel's fees and disbursements were also approved as fair and reasonable, representing a significant reduction from their dockets and a modest percentage of the total settlement value.

The appellants moved for a stay pending appeal of an order made under s. 7 of the Class Proceedings Act, 1992, which directed the continuation of a proposed class action as individual actions following the refusal of certification.

The respondents argued the Court of Appeal lacked jurisdiction to grant the stay, asserting the appeal properly lay to the Divisional Court.

The motion judge held that until a panel quashes the appeal, the court has jurisdiction under r. 63.02(1)(b) of the Rules of Civil Procedure to grant a stay.

Given the respondents consented to a stay in principle, the court granted the stay of the s. 7 order but declined to stay the certification and dismissal orders.

The Financial Services Regulatory Authority of Ontario (FSRA) appealed a Superior Court decision that dismissed its motion to stay a class proceeding initiated by Brewers Retail Inc. and a committee of pension plan members.

The class proceeding sought court approval of a comprehensive settlement regarding pension indexing issues, including amendments to the pension plan and trust, and compensation for known and unknown plan members.

FSRA argued that the Financial Services Tribunal (FST) had exclusive jurisdiction over these matters under the Pension Benefits Act (PBA) and the Financial Services Tribunal Act, 2017 (FSTA).

The Court of Appeal upheld the motion judge's finding that the Superior Court had concurrent jurisdiction, noting that neither the FSTA nor the PBA contained clear and unequivocal language ousting the court's inherent equitable jurisdiction to approve settlements and vary trusts.

The court affirmed that the class proceeding was the preferable procedure, as the FST lacked the power to approve the settlement or vary the pension trust, and the class action provided the necessary finality for all affected plan members.

The plaintiffs in two proposed class actions sought leave to discontinue their actions under section 29(1) of the Class Proceedings Act, 1992.

The decision to discontinue was based on elevated litigation risks due to newly disclosed facts in the defendants' Statement of Defence and the inability to secure third-party funding.

The parties entered into a discontinuance agreement, which included the defendants paying $225,000 for the plaintiffs' counsel's disbursements, no release of individual claims, and no costs sought by the defendants.

The court granted leave to discontinue, finding no prejudice to the putative class, especially given that no class notice had been disseminated and a Notice Plan was in place to inform those who had registered for updates.

In a CCAA proceeding, the court considered supplementary written submissions regarding the appropriateness of differential consideration offered to unsecured creditors in the proposed Plan.

The court accepted the applicants' submission that the fairness of the differential consideration, which involves providing shares to Term Loan Lenders and cash to General Unsecured Creditors, should be determined at the Sanction Hearing rather than at the Meetings Order stage, given the low threshold for a Meetings Order and the presence of conflicting expert reports.

The Applicants sought an Authorization Order and Meetings Order under the CCAA.

The primary issues in dispute concerned the voting rights and classification of Litigation Claimants, which included uncertified U.S. class actions, a certified Ontario class action, and Texas mass tort claims.

The court held that the Litigation Claimants are creditors entitled to vote, but restricted them to one vote per action to prevent them from overriding other stakeholders on numerosity grounds.

The court also ordered summary proceedings to value their claims rather than accepting the Applicants' proposal to value them at $1.

Finally, the court declined to place the Term Loan Lenders in a separate class from other unsecured creditors, finding sufficient commonality of legal interests.

At a case conference in a securities class action, the plaintiffs sought to amend their pleading to add a secondary market claim, which requires leave to proceed under the Securities Act.

The defendants argued the motion to amend should be heard first as a preliminary matter, while the plaintiffs argued it should be heard together with the motions for leave to proceed and certification.

The court ordered that all three motions be heard together to avoid litigation by installment and potential separate appeals.

This is a costs endorsement following a judgment certifying a class action settlement.

The Financial Services Regulatory Authority (FSRA) intervened to oppose the certification and sought a stay, but was entirely unsuccessful on the merits.

The court considered costs submissions from Brewers Retail Inc. (Applicant), the Committee representing the proposed class of pensioners (Respondents), and FSRA (Intervenor).

The court denied FSRA's request for costs, finding its intervention caused additional costs for other parties.

The court awarded Brewers Retail Inc. $159,000 and the Committee $51,000, both inclusive of disbursements and HST, to be paid by FSRA, finding their efforts necessary and reasonable given FSRA's strenuous opposition.

The applicant employer sought to certify a class action on consent for settlement purposes regarding a long-standing dispute over pension plan indexing amendments.

The provincial pension regulator, FSRA, intervened to oppose the settlement and sought to stay the court proceedings in favour of a regulatory hearing before the Financial Services Tribunal.

The court granted FSRA leave to intervene but dismissed the stay motion, finding it had jurisdiction to adjudicate the pension dispute and that a class proceeding was the preferable procedure to achieve finality for all known and unknown plan members.

The action was certified as a class proceeding.

The applicant moved for an order declaring the respondents in breach of a settlement agreement concerning the Canadian Thalidomide Survivors Support Program.

The applicant argued that the decision letters rejecting claims under the program provided inadequate reasons, as they relied on an opaque diagnostic algorithm.

The Federal Court dismissed the motion, holding that the settlement agreement required reasons but did not establish a standard for the quality or adequacy of those reasons.

The Court noted that the applicant's complaints should be addressed through judicial review of individual decisions rather than as a breach of the settlement agreement.

The plaintiff sought court approval of a $12 million settlement in a class action alleging systemic negligence and breach of fiduciary duty by the provincial government resulting in physical and sexual abuse at the Child and Parent Resource Institute (CPRI).

Despite objections from some class members regarding the lack of a direct apology and the adequacy of compensation, the court approved the settlement, finding it fell within the zone of reasonableness established in similar institutional abuse class actions.

The court also approved class counsel's legal fees of $2.75 million and honoraria for the representative plaintiffs.

This decision addresses a rehearing on class counsel's legal fees and the calculation of the Class Proceedings Fund (CPF) levy in a class action settlement.

The court approved the 25% contingency fee, finding it fair and reasonable based on the risk incurred and results achieved, despite an earlier judge's concerns about the settlement's modesty.

The court also determined that the CPF levy should be calculated on the total amount class members were entitled to receive ($10.2 million), rather than the amount actually paid out ($7.5 million), aligning with the settlement agreement and O. Reg. 771/92.

The plaintiff, Haidar Omarali, brought a motion for summary judgment on 13 certified common issues in a class action against Just Energy Group Inc., Just Energy Corp., and Just Energy Ontario LP.

The core issues concerned whether the defendants' 8000 sales agents were employees or independent contractors under the Employment Standards Act, 2000, and if employees, whether they were exempt as outside salespersons or fell within the "route salesperson" exception.

The court found diametrically conflicting evidence regarding the level of control exercised by the defendants over the sales agents, raising serious credibility issues and requiring substantial clarification.

Due to these evidentiary conflicts, the insufficiency of evidence to make class-wide determinations, and the preclusion of a "mini-trial" approaching the dimensions of a full trial by s. 34(3) of the Class Proceedings Act, the motion for summary judgment was dismissed.

All 13 common issues were directed to proceed to a focused trial.