Derek D. Ricci

The appellant sought an order declaring that it had properly commenced an arbitration by written demand dated October 6, 2017.

The arbitration clause in the insurance contract allowed the insured to select the venue and procedural laws of Bermuda or one of London, Toronto, or Vancouver under the English Arbitration Act of 1996.

The appellant argued that while the Act was incorporated by reference, its procedural provisions were excluded for arbitrations outside the UK, and that the UNCITRAL Rules would apply instead.

The Court of Appeal disagreed, finding that the plain wording of the contract required that where Toronto was the seat chosen, the arbitration be conducted in accordance with the procedural laws set out in the Act.

The Court also declined to determine whether the arbitration had been properly commenced, reserving that question to the arbitrators.

The plaintiffs in a proposed class action alleging a price-fixing conspiracy regarding packaged bread sought court approval of a third-party litigation funding agreement with Bentham.

The defendants largely did not object, except regarding a clause allowing Bentham to satisfy any security for costs order via an undertaking rather than paying into court.

The court found the funding agreement necessary for access to justice, fair and reasonable to the class, and approved the agreement, including the provision allowing an undertaking for security for costs.

The applicant applied for an order to resolve an insurance policy dispute by arbitration at JAMS offices in Toronto.

The respondent argued that the arbitration should be conducted under the English Arbitration Act and that the applicant had not properly commenced the arbitration.

The court found that its jurisdiction to intervene only arises if there is a failure of the parties to agree on the appointment procedure.

Since the applicant had not followed the agreed procedure by making a proper written request and appointing its arbitrator, the court declined to intervene and dismissed the application.

The defendants sought leave to appeal an order granting certification of a class action regarding allegedly defective hip implants.

The defendants argued that the motion judge's approach to evidence on commonality conflicted with other decisions and that there was good reason to doubt the correctness of the certification order.

The Divisional Court dismissed the motion for leave to appeal, finding no conflicting decisions and no reason to doubt the correctness of the motion judge's application of the 'some basis in fact' standard for certification.

The appellant purchased properties and executed vendor take back mortgages and a development agreement, paying land transfer tax on the total amount including the development milestones.

The development milestones were never met, the agreement was terminated, and the mortgages were discharged.

The appellant sought a refund of the land transfer tax paid on the development amounts.

The court dismissed the appeal, finding that the obligations under the development agreement formed an integral part of the consideration given on closing, and the contingent nature of the liability did not exclude it from the value of consideration under the Land Transfer Tax Act.

Following his criminal conviction for fraud relating to the Greyhawk Millenium investment fund, Staff of the Ontario Securities Commission sought permanent market bans against the respondent under s. 127(10) of the Securities Act.

The Commission found that the respondent's conviction arose from a course of conduct related to securities, as the investments met the test for an investment contract.

While the respondent's misconduct caused significant losses and involved falsified documents, the Commission noted his full cooperation and genuine remorse as mitigating factors.

The Commission ordered permanent bans on the respondent acting as a registrant, investment fund manager, or promoter, but limited the trading and director/officer bans to 10 years with exceptions allowing him to provide for his family.

Following the successful certification of a class action concerning metal-on-metal hip implants, the plaintiff sought costs of $584,288 on a partial indemnity basis.

The court applied its established approach to certification costs, reducing the hourly rates to comply with the Rules Committee Grid.

The court further reduced the fees by 50 percent because class counsel spent an inordinate amount of time unnecessarily litigating the merits of the action.

Disbursements were also reduced, as an expensive expert report was deemed not essential for certification.

Ultimately, the court fixed costs at $200,000 payable forthwith and $65,000 in the cause.

The plaintiff sought certification of a proposed class proceeding alleging that large‑head metal‑on‑metal hip implants designed and distributed by the defendants were defective and caused injury.

The defendants contested certification primarily on the basis that the proposed common issues lacked sufficient commonality and that a class proceeding was not the preferable procedure.

The court applied the “some basis in fact” standard under s. 5 of the Class Proceedings Act, 1992 and held that the plaintiff had adduced sufficient evidence of product defect and class‑wide commonality to support most proposed common issues.

The court found that negligence, duty of care, breach of standard of care, medical monitoring costs, and punitive damages issues could proceed on a class‑wide basis, subject to certain amendments.

The action was certified as a class proceeding with most proposed common issues approved.

This was a costs decision following a pre-certification production motion in a proposed class proceeding involving hip implant products.

The court had previously dismissed most of the defendants' production request as too broad, while requiring limited additional product identification information relevant to the certification criterion under s. 5(1)(e) of the Class Proceedings Act, 1992.

Treating the plaintiff as 90 percent successful on the motion, the court held that the plaintiff's $15,000 request was too high and the defendants' proposed $3,480 was too low.

Costs were fixed at $7,500 all-inclusive, payable forthwith by the defendants.

In a proposed class action concerning allegedly defective metal-on-metal hip implants, the defendants brought a motion for the pre-certification production of the representative plaintiff's medical records.

The court formulated a clear rule for Ontario that pre-certification production of medical records will only be ordered if the defendant can show the documentation is relevant to one or more of the certification requirements under section 5(1) of the Class Proceedings Act.

The court dismissed the defendants' broad request for all hip-related medical records as irrelevant to the certification issues, but granted a narrow request for records identifying the specific products implanted, as this was relevant to the plaintiff's suitability as a representative plaintiff.

The Ontario Securities Commission held a sanctions hearing for a respondent who admitted to trading without registration and illegal distribution of securities in relation to a Ponzi scheme.

While Staff sought a disgorgement order of $207,641 and an administrative penalty of $50,000, the Commission declined to impose monetary sanctions.

The Commission found that the respondent was unaware the investment was a Ponzi scheme, was genuinely remorseful, and had no ability to pay due to her age and financial circumstances.

Non-monetary sanctions, including a 15-year trading ban, were imposed.

In a securities class proceeding under the Class Proceedings Act, 1992 and the Securities Act, the plaintiffs sought certification for settlement purposes against certain underwriters, approval of three settlements totalling approximately $10.85 million, approval of counsel fees, and approval of a proposed plan of allocation.

The court held that the settlements were fair, reasonable, and in the best interests of the class and approved them, along with counsel fees and the appointment of an administrator.

However, the court rejected the parties’ proposed distribution plan because it excluded class members who purchased shares on the day of the corrective disclosure from any compensation.

Exercising its authority to determine the plan of allocation, the court varied the distribution plan to include those purchasers and approved the modified plan as fair and reasonable.

The appellants sought to commence proceedings against the Russian respondents in Ontario and attempted to serve them in Russia under the Hague Convention.

The Russian government refused service citing sovereignty and national security.

The appellants brought a motion in Ontario to dispense with or validate service under rules 16.04 and 16.08.

The Court of Appeal held that rule 17.05(3), which incorporates the Convention, is a complete code for service on foreign defendants in contracting states, and Ontario courts have no discretion to substitute, dispense with, or validate service where the Convention applies.

The appellants, high-stakes gamblers who lost approximately $2.1 million playing roulette, sued the casino operators and the provincial gaming regulator.

They alleged that the casino's practice of removing a 'floating ball' from the roulette wheel and calling a 'no-spin' was an unapproved rule of play, rendering the games illegal under the Criminal Code and entitling them to the return of their losses via unjust enrichment.

The Court of Appeal dismissed the appeal, holding that the floating ball practice was not a rule of play requiring regulatory approval, as it did not impact the fairness or integrity of the game.

Furthermore, even if the games were illegal, the casino operators had a juristic reason for enrichment based on their reasonable reliance on the legality of the games, and the regulator owed no private duty of care to the gamblers.

Following the dismissal of actions and the granting of summary judgment to casino operators and a gaming regulator, the court determined costs.

The plaintiffs had claimed approximately $14 million alleging illegality in casino roulette operations and unjust enrichment.

The court held that partial indemnity was the appropriate scale, rejecting claims for substantial indemnity and also declining the plaintiffs’ submission that no costs should be awarded due to alleged illegality.

Applying the factors in Rule 57.01 and appellate guidance on reasonable and proportionate costs, the court fixed reduced lump-sum costs awards.

The casino defendants were awarded $110,000 and the regulator $60,000.

Multiple plaintiffs who were high-limit roulette players alleged that a casino operated illegal roulette games by allowing dealers to remove “floating balls” before they landed in a numbered slot, contrary to approved rules of play under Ontario gaming regulations.

They sought $7.5 million in damages and restitution of approximately $2.1 million lost gambling, asserting tort, contract, statutory misrepresentation, and unjust enrichment claims.

The defendants moved for summary judgment dismissing the actions and enforcing unpaid gambling loans.

The court held that even if the “floating ball” practice was not an approved rule of play and could have rendered certain spins unlawful, the unjust enrichment claim failed because the casino returned all wagers whenever a spin was stopped, meaning there was no enrichment and no corresponding deprivation.

With no viable damages evidence and no triable issues, summary judgment was granted and the defendants also succeeded on their collection counterclaims.

The plaintiffs commenced an action in Ontario against Russian defendants and attempted to serve them in Russia pursuant to the Hague Service Convention.

The Russian Ministry of Justice refused to facilitate service, citing sovereignty or security concerns under Article 13 of the Convention.

The plaintiffs obtained an order from a Master validating service under Rule 16.08 of the Rules of Civil Procedure.

The defendants appealed.

The Superior Court of Justice allowed the appeal, holding that Rule 17.05(3) implements the Convention's exclusive methods for service in a contracting state, precluding the application of Rules 16.04 and 16.08 to substitute or validate service.

Following a merits decision finding that Coventree Inc. and its senior officers, Geoffrey Cornish and Dean Tai, failed to disclose material changes in breach of the Securities Act, the Ontario Securities Commission held a hearing to determine sanctions and costs.

The Commission emphasized the fundamental importance of timely disclosure to the integrity of capital markets.

While noting mitigating factors such as the respondents' lack of intent to mislead and their cooperation with Staff, the Commission imposed significant administrative penalties to achieve specific and general deterrence.

Coventree was ordered to pay a $1 million penalty and $250,000 in costs, while Cornish and Tai were each ordered to pay a $500,000 penalty and were prohibited from acting as directors or officers of a reporting issuer for one year.

The applicants, minority shareholders of MI Developments Inc. (MID), brought applications under sections 104 and 127 of the Securities Act alleging that MID failed to comply with Multilateral Instrument 61-101 (MI 61-101) by not obtaining minority shareholder approval for a series of related party transactions with Magna Entertainment Corp. (MEC).

The transactions included loans, loan extensions, and debtor-in-possession financing.

The Ontario Securities Commission dismissed the applications, finding that section 104 does not apply to related party transactions.

While the Commission permitted the applications under section 127, it concluded that MID was entitled to rely on the downstream transaction exception and the market capitalization exemption under MI 61-101.

The Commission also found no prima facie case of insider trading in connection with a related trust transaction.

The appellant Rogers acquired Call-Net and subsequently terminated the respondent real estate broker's services without cause.

The broker sued for commission based on a termination clause that provided for payment based on work completed.

The trial judge awarded $800,000, representing 40% of the projected commission for a 10-year lease mandate.

On appeal, Rogers argued the trial judge misinterpreted the contract's termination and compensation clauses and improperly relied on subjective intentions.

The Court of Appeal dismissed the appeal, finding the trial judge correctly interpreted the contract based on objective surrounding circumstances and the clear wording of the termination clause.

The broker's cross-appeal seeking a higher commission percentage was also dismissed.