Don Jack

The moving party defendants brought a Rule 21 motion to strike the plaintiff's claims for oppression and breach of fiduciary duty on the basis that they were statute-barred.

The plaintiff argued that the claims were not statute-barred and that a Rule 21 motion was inappropriate for determining limitation issues.

The court found that the plaintiff discovered the factual foundation for its claims in the fall of 2017 during related estate litigation, but did not commence the action until December 2019, beyond the two-year limitation period.

The court held that this was a rare case where discoverability was not in issue, making a Rule 21 motion appropriate.

The motion was granted and the statement of claim was struck.

The plaintiff sued his former family lawyer for professional negligence arising from the drafting of a marriage contract.

He alleged the solicitor failed to advise him about a potential 'downside' or catastrophic change clause that would have protected him if his wealth declined during the marriage.

After the marriage ended, the contract was enforced and the plaintiff paid substantial sums to his spouse, which he claimed constituted damages caused by negligent legal advice.

The court found the solicitor had adequately explained the operation of the Family Law Act and equalization and met the standard of care of a reasonably competent solicitor.

The court also held that even if negligence had been established, the plaintiff failed to prove causation or damages, including claims relating to lost investment opportunities.

Shareholder plaintiffs commenced an action alleging that directors and officers of a publicly traded corporation engaged in improper transactions and that certain third parties knowingly assisted in those transactions.

The moving defendants sought to strike the statement of claim, arguing that the claim improperly sought recovery for losses suffered by the corporation and therefore required leave to proceed as a derivative action under s. 246 of the Ontario Business Corporations Act.

The court held that the plaintiffs’ claim, which sought disgorgement of funds to the corporation, was fundamentally derivative in nature and could not proceed as an oppression claim in the circumstances of a large publicly traded corporation.

The court distinguished appellate authority permitting overlap between oppression and derivative remedies in closely held corporations.

The statement of claim was struck without prejudice to the plaintiffs applying for leave to bring a derivative action.

Following the dismissal of its application for the enforcement of letters rogatory, the applicant argued that no costs should be awarded because the application raised novel issues of law.

The court rejected this argument, finding that the applicant was a commercial entity pursuing its own private interests in foreign litigation, not a public interest litigant.

The court awarded partial indemnity costs to the successful respondent but reduced the quantum claimed from $32,647.71 to $18,189.46, noting that the respondent had already received a substantial costs award on an earlier, nearly identical application.

The applicant, an American pharmaceutical company, sought to enforce amended letters rogatory issued by a United States District Court to compel testimony and documentary evidence from the respondent, a federal Crown corporation, for use in foreign litigation.

The respondent opposed the application, arguing that it enjoyed Crown immunity.

The court held that the presumption of Crown immunity under s. 17 of the federal Interpretation Act prevented the enforcement of letters rogatory against a Crown agent, as the provincial Evidence Act does not bind the federal Crown.

Furthermore, the court found that the applicant failed to satisfy the legal standard for enforcing letters rogatory, as the evidence sought was not necessary for trial and had already been obtained through an Access to Information Act request.

The application was dismissed.