Eliezer Karp

The appellant sought to bring a Canadian class action against the respondent BP p.l.c. for securities misrepresentations.

His 2019 amended statement of claim, which introduced a claim for fraudulent misrepresentation, was struck out by the motion judge as statute-barred under the Limitations Act, 2002.

This appeal addressed four key issues: the elements of a "claim" for fraudulent misrepresentation under the Limitations Act, the appropriateness of the motion judge's factual findings regarding discoverability based on U.S. litigation, whether the fraudulent misrepresentation claim was a new claim or an alternative theory, and the propriety of deciding a limitations issue on a Rule 21.01(1)(a) motion.

The Court of Appeal dismissed the appeal, finding that while the motion judge erred in his discoverability analysis and reliance on U.S. pleadings, the fraudulent misrepresentation claim was indeed a new, statute-barred claim, and the limitations issue was appropriately decided on a Rule 21.01(1)(a) motion due to undisputed facts.

The respondents moved to dismiss an oppression application commenced in 2009 for delay, lack of corporate authority, and alternatively sought security for costs.

The court found that the applicants were not principally responsible for the delay, as the respondents had brought a motion in 2009 that they never set down for a hearing.

The court dismissed the assigned claims from a corporate applicant that lacked authority to sue, but allowed the personal claims of the individual applicants to proceed.

The motion for security for costs was dismissed.

The Ontario Securities Commission appointed a receiver over Money Gate Mortgage Investment Corporation.

The appellant, a shareholder in a company that granted a second mortgage to Money Gate, challenged the validity of the mortgage on a motion for advice and directions brought by the receiver.

The motion judge summarily determined that the mortgage was valid and ordered the sale proceeds paid to the receiver.

The Court of Appeal dismissed the appeal, holding that the motion judge had the authority to decide the matter summarily by analogy to summary judgment rules, and correctly found no genuine issue requiring a trial.

The applicant, a retail appliance store, sought a declaration that it was permitted to remain open for in-person shopping during the COVID-19 grey lockdown stage in Toronto and Peel.

The applicant argued it qualified as an essential business under O. Reg 82/20, either as a 'hardware store' or as part of the construction supply chain.

The court dismissed the application, finding that the legislature intended the term 'hardware store' to be given its conventional, everyday meaning, which does not include a store exclusively selling home appliances.

The court rejected the applicant's attempt to stretch the plain language of the regulation.

The applicant, a home appliance retailer, sought an interim injunction to allow its showrooms to remain open despite being ordered to close under Covid-19 public health regulations.

The applicant argued it qualified as an essential 'hardware store' and would suffer irreparable financial harm if closed during the busy December retail season.

The court dismissed the request for interim relief, finding that while there was a serious issue to be tried and potential irreparable harm, the balance of convenience favoured the respondents.

The court held that the public interest in enforcing public health measures to prevent the spread of Covid-19 outweighed the applicant's private economic interests at this preliminary stage.

The defendants brought a motion to enforce a costs order made by the Supreme Court of Canada.

The Supreme Court had ordered that the parties bear their own costs in the Superior Court, based on a misdescription of the procedural history as involving two separate motions (one for certification, one for a stay).

The Superior Court interpreted the Supreme Court's ruling to mean that the plaintiff must repay the costs associated with the stay of proceedings argument, but could retain the costs awarded for the certification motion, which was not appealed to the Supreme Court.

The plaintiff was ordered to repay $12,180 to the defendants.

The appellant husband appealed an order for the partition and sale of the jointly owned matrimonial home.

The property was sold prior to the hearing of the appeal.

The Divisional Court found the appeal was moot and declined to exercise its discretion to hear it.

The court awarded the respondent wife full indemnity costs of $20,000, finding the husband's conduct in pursuing the appeal and opposing the sale amounted to bad faith litigation.

This case conference endorsement addressed three scheduling matters in ongoing class action litigation: an upcoming motion regarding costs ordered by the Supreme Court of Canada, a motion to revise the certification order, and the discovery plan and schedule.

The court established a specific timeline for the costs motion and examinations for discovery, and scheduled a further case conference to review progress on the certification amendment motion.

A case management endorsement providing procedural directions for an upcoming appeal hearing before the Divisional Court.

The court scheduled the appeal to be heard via Zoom videoconference and provided detailed instructions for the electronic filing of materials, factums, and compendiums.

The appellant sought an interim stay of an order directing the sale of a matrimonial home pending his appeal.

The court applied the RJR-MacDonald test and found no irreparable harm to the appellant, as he could purchase another home and had been out of the property for nearly three years.

The court also found that the balance of convenience favoured the respondent due to the appellant's delay in seeking the stay and the risk of losing a pending $3.91 million offer in a volatile real estate market.

The request for an interim stay was denied.

The MGMIC Receiver sought a declaration that a second mortgage on Dovercourt Road was valid and enforceable, allowing distribution of sale proceeds to MGMIC investors.

The non-party A13MG argued the mortgage was invalid due to lack of shareholder consent and alleged fraud by MGMIC's directors.

The court found the mortgage valid, citing evidence of consent through email exchanges and the "Indoor Management Rule" under the OBCA.

The court also held that even if invalid, an equitable mortgage would exist to prevent injustice to innocent investors.

A13MG's fraud action was deemed a nullity due to failure to obtain leave.

The plaintiff appealed a decision declining to certify a negligent misrepresentation class action against underwriters of a secondary public offering.

A statutory misrepresentation claim against the issuer had already been certified on consent.

The Divisional Court allowed the appeal, finding the certification judge erred in concluding that a class proceeding was not the preferable procedure.

The Court held that resolving the common issues of duty of care, truth of the representation, and negligence in a single proceeding would significantly advance the claims, promote judicial economy, and improve access to justice compared to individual actions.

A case conference was held following a Supreme Court of Canada decision that limited the class to personal users of the defendants' cell phone services.

The defendants intended to bring motions to enforce a costs ruling and revisit the certification order.

The plaintiff sought to proceed with examinations for discovery, while the defendants preferred to wait until after their motions were heard.

The court ordered that the discovery process proceed in tandem with the motions, as the issues raised by the defendants were primarily legal and would not significantly impact the scope of discoveries.

The defendant brought a motion to strike the plaintiff's claim for fraudulent misrepresentation as statute barred under the Limitations Act, 2002, and to dismiss the proposed class action.

The plaintiff had commenced a proposed class action for secondary market misrepresentations following the Deepwater Horizon oil spill.

The court found that the plaintiff discovered his claim by 2010, but did not plead fraudulent misrepresentation until 2019.

The court held it was plain and obvious the claim was statute barred and struck it.

As the plaintiff was disqualified from being a representative plaintiff for the remaining truncated statutory claims, the entire action was dismissed.

The plaintiffs brought a motion for an interlocutory Mareva injunction to freeze $200,000 from a property sale, alleging fraudulent misrepresentation and breach of fiduciary duty by the responding parties.

The court dismissed the motion, finding that the plaintiffs, as shareholders, lacked standing to claim directly for corporate losses.

Furthermore, the plaintiffs failed to establish a strong prima facie case of fraudulent misrepresentation or breach of fiduciary duty, as they could not prove direct inducement, reliance, or specific losses.

The court also found no evidence of irreparable harm or that the balance of convenience favored granting the injunction, nor sufficient evidence of asset dissipation.

The parties disagreed on whether the judge should sign an order dismissing the plaintiff's prior certification and leave motions, or wait for the plaintiff's "motion for reconsideration." The plaintiff argued that signing the order might render the court functus officio, potentially precluding the reconsideration motion.

The defendant argued that the pronouncement of judgment was final and the order should be issued without delay.

The court decided to sign the order, issuing a fiat for its issuance and entry, clarifying that this decision did not determine the functus officio or abuse of process issues, which would be addressed in the context of the plaintiff's omnibus reconsideration motion.

Nobilis Health Corp. sought costs after successfully defending a class action certification motion and leave application brought by Vince Cappelli.

Nobilis requested $200,000 in partial indemnity fees and $311,696.39 in disbursements, primarily for three expert reports.

Cappelli did not oppose the fees but challenged the disbursements as excessive and duplicative.

The court found the expert evidence necessary and critical, despite some overlap, and deemed the disbursements fair and reasonable given the litigation risk.

Costs were awarded to Nobilis as requested, with the Class Proceedings Fund ultimately responsible for payment.

The applicant wife sought leave to amend her pleadings for a second time to include a constructive trust claim on the matrimonial home.

This motion was brought late in the litigation process, after the respondent husband had already agreed not to rely on separation agreements for trial.

The court dismissed the applicant's motion, finding that allowing the amendment would cause significant, non-compensable prejudice to the respondent due to the late stage of litigation, the need for additional facts and disclosure, and the inevitable delay of the trial.

The court emphasized the importance of fair notice and diligent pursuit of claims under the Family Law Rules.

The plaintiff sought leave under s. 138.8(1) of the Securities Act to bring a statutory cause of action for secondary market misrepresentation against the defendant corporation, and to certify the action as a class proceeding.

The plaintiff alleged that the defendant made material misrepresentations in its financial statements, which were later restated.

The court dismissed the motion for leave, finding that the plaintiff had no reasonable possibility of success because the specific misrepresentations pleaded were not material to a reasonable investor, and the alleged corrective disclosure did not relate to the pleaded misrepresentations.

Consequently, the certification motion was also dismissed.

A class action was brought against a telecommunications provider on behalf of approximately two million Ontario residents who alleged they were overcharged through an undisclosed call-rounding practice.

The class consisted of both consumers (protected from arbitration by the Consumer Protection Act, 2002) and non-consumer business customers bound by a mandatory arbitration clause in standard form contracts.

The majority held that s. 7(5) of the Arbitration Act, 1991 does not grant the court discretion to refuse to stay claims that are dealt with in an arbitration agreement, and that the first precondition under s. 7(5)(a) was not met because the sole matter in dispute — alleged overbilling — was dealt with in the arbitration agreements.

The business customer claims were therefore stayed, as only the consumers benefited from the Consumer Protection Act's override of the arbitration clause.

Four judges dissented, holding that s. 7(5) confers a discretion to allow the entire proceeding including arbitrable claims to continue in court where it would be unreasonable to separate them.