Eliot N. Kolers

The applicant sought final declarations of remaining indebtedness against the respondents following the liquidation of real estate project securities by a court-appointed receiver.

The respondents raised several defences, including the expiry of limitation periods, alleged obstruction of a retail unit sale, bad faith, and failure to exhaust recourse.

The court dismissed all defences, finding the claims were brought within the limitation period due to acknowledgments and waivers, and that the respondents failed to raise any genuine issue requiring a trial.

The application was granted, and judgment was ordered against the respondents for the shortfall amounts totaling approximately $36 million.

The defendants moved to strike the plaintiffs' fresh-as-amended statement of claim, which primarily asserted an unwritten partnership between the parties in connection with two Toronto-area real estate development projects.

The court found the alleged partnership was unsupported by the pleaded facts, noting the parties had created multiple corporate and limited partnership entities with express no-partnership and entire agreement clauses.

All causes of action — breach of fiduciary duty, duty of good faith, tortious interference with economic relations, breach of contract, and oppression — were struck as disclosing no reasonable cause of action.

Leave to amend was denied, and the respondents' cross-motions to convert the parallel application to an action and consolidate the proceedings were also dismissed.

The appellants, FedEx, appealed an order certifying a class proceeding brought by the respondent, who alleged FedEx charged undisclosed and unsolicited customs brokerage fees in breach of the Consumer Protection Act.

FedEx argued the claim disclosed no cause of action, lacked common issues, and had an overly broad class definition.

The Court of Appeal dismissed the appeal, finding that the pleadings disclosed a reasonable cause of action, the systemic nature of the billing practices raised common issues, and the class definition appropriately included claims that might face limitation or jurisdictional defences, which are better addressed at trial.

This is a costs decision following the respondent's successful appeal of orders certifying an action as a class proceeding and granting leave to proceed under the Securities Act.

The respondent sought $120,000 in total costs ($20,000 for the Divisional Court leave to appeal motion and $50,000 for each of two appeals to the Court of Appeal).

The court awarded $70,000 in total costs ($20,000 for the leave to appeal and $50,000 for the appeals), finding that while there were technically two separate appeals, the issues and arguments were inextricably bound together in substance.

This appeal concerns the certification of a class proceeding and the granting of leave to proceed with a secondary market misrepresentation claim under the Securities Act.

The respondent, a former shareholder of Akumin Inc., sought to certify a class action on behalf of purchasers of Akumin securities (common shares and secured notes) alleging misrepresentations in financial statements and seeking relief under both statutory provisions and common law negligence.

The appellants challenged both the leave order and the certification order, arguing that certain disclosures did not constitute "public corrections" that an efficient market requirement applied to secondary market claims, and that common law negligence claims should not be certified alongside statutory claims.

The Court of Appeal upheld the motion judge's decisions, clarifying the law on public corrections, rejecting an efficient market requirement, and confirming that common law claims can be certified alongside statutory claims.

The Ontario Securities Commission sought the appointment of a receiver over the assets of Traders Global Group Inc. and related entities based on allegations of fraud and unregistered securities trading.

The receiver was appointed in January 2024.

More than nineteen months later, the respondents brought a motion to discharge the receiver, and the receiver sought directions regarding disclosure of data to the Commission.

The court found that significant changes in circumstances had occurred since the appointment, including the dismissal of related U.S. proceedings due to misconduct by CFTC staff whose evidence had supported the receivership appointment, the discovery of a Nova Scotia decision that undermined the novelty of the Commission's legal theory, and substantial delay in the investigation without issuance of an Application for Enforcement Proceeding.

The court granted the respondents' alternative request to vary the appointment order, reducing the frozen assets from tens of millions to $10 million in escrow, while retaining the receiver to administer the escrow and act as intermediary for data disclosure.

The court also confirmed the receiver's authority to share non-privileged data with the Commission under the appointment order.

The defendants moved to strike the plaintiffs' amended statement of claim on the ground that it discloses no reasonable cause of action.

The court found that the plaintiffs failed to adequately plead the existence of a partnership relationship between the individual plaintiff and the defendants, failed to plead the material facts necessary to establish breach of contract claims with the required clarity and precision, and failed to plead the essential elements of various tort claims including tortious interference with economic interests, breach of fiduciary duty, breach of duty of good faith, unjust enrichment, conspiracy, negligence, and negligent misrepresentation.

The court granted the motion to strike and struck out the amended statement of claim, but granted leave to amend within 45 days.

The decision concerns the certification and approval of a partial settlement in a class action regarding business interruption insurance for dentists, specifically Aviva’s “Triple Guard” policies marketed by CDSPI.

The court certified the class action for settlement purposes as against CDSPI and approved the settlement, finding that all statutory criteria were met and that the settlement was fair and reasonable.

The court also dismissed Aviva’s motion for a stay, holding that disclosure of the settlement was timely and that Aviva’s rights were not prejudiced by the settlement or its timing.

The decision concerns an application under section 192 of the Canada Business Corporations Act (CBCA) for approval of a plan of arrangement by The Cannabist Company Holdings (Canada) Inc. and 16834434 Canada Inc., opposed by Murchinson Ltd. (on behalf of certain noteholders).

The court granted the final order approving the arrangement, which restructures the company’s senior notes, and dismissed Murchinson’s related oppression application.

The reasons address the fairness and reasonableness of the arrangement, the appropriateness of third-party releases, and the standing of Murchinson to bring an oppression claim.

The moving party brought a motion for leave to appeal an order dated January 18, 2024.

The Divisional Court dismissed the motion for leave to appeal.

As the responding parties did not provide a cost outline, the court made no order as to costs.

The court approved a $500 million settlement in a national class action concerning a price-fixing conspiracy in the packaged bread market, resolving claims against Loblaw Companies Limited and related entities.

The settlement includes a substantial damages payment, a distribution protocol for class members, and a cooperation agreement by Loblaw to assist in ongoing litigation against non-settling defendants.

The court also approved class counsel fees and the payout to a third-party funder, finding the settlement fair, reasonable, and in the best interests of the class.

The moving parties sought leave to appeal a decision granting the responding party leave to commence an action under s. 138.8 of the Securities Act.

The Divisional Court granted leave to appeal, identifying specific questions regarding whether the motions judge erred in holding that the Court of Appeal erred in a previous decision, and whether such an error rendered the decision unsafe.

Costs of the motion were fixed at $20,000, payable in the discretion of the appeal panel.

The Plaintiffs brought a motion to reconsider a previous certification ruling that dismissed the action against Maple Leaf Foods Inc. (MLF) in a class action alleging price-fixing.

The Plaintiffs sought to certify the action against MLF, presenting new evidence including a Second Information to Obtain (ITO), MLF's annual reports, Canada Bread's Agreed Statement of Facts (ASF) from a criminal proceeding, and emails from Canada Bread's files.

MLF opposed the motion and brought cross-motions to exclude the new evidence and strike the Plaintiffs' amended claims.

The court dismissed the Plaintiffs' motion, finding that the 'new evidence' was either not new, inadmissible hearsay, or did not substantively alter the lack of a viable cause of action against MLF.

The court emphasized the principle of finality in litigation, stating that a certification dismissal for lack of cause of action is a final order and cannot be revisited without meeting a strict test for new evidence (Sagaz test), which was not met here.

The court also granted MLF's motion to exclude the evidence and strike the amended statements of claim against MLF.

The plaintiff moved for certification of a class action against FedEx, alleging undisclosed and unsolicited fees for customs clearance services (Advancement Fee and Clearance Entry Fee) in violation of the Consumer Protection Act (CPA) and unjust enrichment.

The plaintiff, a non-commercial purchaser, received an invoice for these fees after being promised "free shipping" believing them to be government levies.

The court found that the claim disclosed viable causes of action under the CPA, including unsolicited services and unfair practices, and unjust enrichment.

It rejected FedEx's arguments regarding agency, territorial reach of the CPA, and the sufficiency of website disclosures.

The court also found the proposed class identifiable, common issues present, and a class action to be the preferable procedure given the small individual claims and the goals of judicial economy, access to justice, and behaviour modification.

The action was certified.

The appellant sought to certify a class proceeding alleging a price-fixing conspiracy in the Canadian canned tuna market.

The motion judge dismissed the certification motion, finding a failure to plead material facts for a reasonable cause of action and an insufficient evidentiary basis for common issues.

The Court of Appeal upheld the dismissal, agreeing that the claim lacked material facts to support a Canadian conspiracy and that there was no sufficient factual basis for the proposed common issues, particularly given the distinct Canadian and U.S. tuna markets.

The court also confirmed its jurisdiction to hear the appeal, as the lower court's order effectively ended the proceeding.

In Companies’ Creditors Arrangement Act (CCAA) proceedings, LoyaltyOne, Co. and its Monitor sought a declaration that a Tax Matters Agreement (TMA) was not binding or was void as a transfer at undervalue (TUV), and sought to disclaim the TMA to secure a $96 million tax refund.

Bread Financial Holdings, Inc. (formerly ADS) cross-moved to set aside the disclaimer, asserting its entitlement to the refund under the TMA.

The court ruled that LoyaltyOne was bound by the TMA, the TMA was not void as a TUV, and the disclaimer was not approved.

The court found it premature to determine the specific nature of Bread's rights to the refund.

Mithaq Canada Inc. applied to the Capital Markets Tribunal to cease trade a private placement by Aimia Inc., arguing it was an abusive defensive tactic designed to thwart Mithaq's take-over bid.

Mithaq also sought to set aside a decision of the Toronto Stock Exchange (TSX) that conditionally approved the private placement without requiring shareholder approval.

Aimia brought a cross-application to deny Mithaq the use of the 5% exemption for share purchases.

The Tribunal dismissed both applications.

It found that Aimia had a serious and immediate need for financing, and the private placement was negotiated largely before Mithaq's bid became imminent.

Although the private placement altered the bid dynamics, it was not clearly abusive.

The Tribunal also found no grounds to interfere with the TSX's decision, as the TSX did not err in principle and there was no compelling new evidence.

Finally, the Tribunal declined to alter the minimum tender condition or deny Mithaq the 5% exemption, finding no exceptional circumstances or lack of good faith.

The Ontario Securities Commission applied to appoint a receiver over the property of the respondents, who allegedly engaged in a fraudulent foreign exchange trading scheme.

The respondents had collected over USD $310 million in registration fees from customers who believed they were trading in a live market, when in fact they were trading in a simulated environment controlled by the respondents.

The court found a prima facie case of fraud and determined that appointing a receiver was appropriate for the due administration of Ontario securities law to manage and preserve approximately USD $90 million in frozen assets.

Tacora Resources Inc. sought an amended and restated initial order (ARIO) and a solicitation order under the Companies’ Creditors Arrangement Act (CCAA) to facilitate its restructuring, including approval for a $75 million debtor-in-possession (DIP) financing facility from Cargill.

An ad hoc group of senior noteholders (AHG) opposed the Cargill DIP facility, alleging a flawed process and material prejudice, and brought a cross-motion for approval of their own competing DIP proposal.

The court found that Tacora's Board exercised reasonable business judgment in selecting the Cargill DIP facility, which was financially superior and less prejudicial to creditors overall than the AHG's proposal.

The court dismissed the AHG's cross-motion, finding no evidence of improper conduct by Cargill or the Board, and granted Tacora's requested ARIO and Solicitation Order, including approval of the Cargill DIP facility, an extended stay period, a Key Employee Retention Plan (KERP), and a sealing order for KERP details.

The plaintiff brought a motion to certify two proposed class actions alleging a price-fixing conspiracy in the Canadian canned tuna market.

The plaintiff alleged that the defendants conspired to fix prices of canned tuna sold in Canada, relying on findings from US antitrust proceedings.

The court dismissed the certification motion, finding no basis in fact that the alleged conspiracy existed in Canada.

The court held that the plaintiff failed to satisfy the cause of action, common issues, and preferable procedure criteria, as the market structure and participants in Canada were different from those in the US, and the plaintiff's expert evidence was based on incorrect factual assumptions.