Eliot N. Kolers

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 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 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.

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.

The plaintiff, PPI Management Inc., sought to extend a Mareva injunction against the defendant Tianrui Li, freezing a Guaranteed Investment Certificate (GIC) alleged to be proceeds of a fraudulent scheme.

Li argued the initial injunction lacked foundation, that PPI made material non-disclosures, and that her evidence explained her actions, denying knowledge or involvement in the fraud.

The court found PPI established a strong prima facie case of Li's implication through recklessness or willful blindness, and a serious risk of asset dissipation.

The court dismissed Li's arguments regarding non-disclosure and continued the Mareva injunction until the final disposition of the underlying action, with costs awarded to the plaintiff on a partial indemnity basis.

The appellant, a creditor of the Kyrgyz Republic, appealed the dismissal of its garnishment motion against Centerra Gold Inc., seeking to garnish a $50 million intercompany payment made by Centerra to its subsidiary, Kumtor Gold Company CJSC (KGC), as part of a court-approved plan of arrangement.

The appellant argued that the Kyrgyz Republic was the alter ego of KGC due to de facto appropriation.

The Court of Appeal dismissed the appeal, finding no reversible error in the application judge's determination that Centerra had not lost all control over KGC and was not deprived of all economic benefits, and that KGC remained a separate corporate entity.

Following the approval of a Plan of Arrangement under the Canada Business Corporations Act, the successful applicant sought costs against the objecting creditors.

The objectors argued the applicant was disentitled to costs for failing to request them initially and that the quantum sought was excessive.

The court rejected the disentitlement argument, finding the objectors had notice that costs would be addressed in writing.

The court awarded $100,000 in costs, reducing the requested amount for proportionality, and ordered the costs payable jointly and severally by the objectors as they had pursued a common strategy.

The applicant mining company sought a final order approving a Plan of Arrangement under the Canada Business Corporations Act to sever ties with the Kyrgyz Republic following the state's seizure of its flagship mine.

Two unsecured judgment creditors of the Republic objected, seeking to enforce their arbitral awards against the Republic's shares in the applicant or garnish payments under the Arrangement.

The court approved the Arrangement, finding it met the statutory requirements, had a valid business purpose, and was fair and reasonable.

The court held the creditors lacked standing to oppose the Arrangement and that garnishment was inappropriate as it would result in double jeopardy.

This application concerned the interpretation of a dispute resolution clause in a Share Purchase Agreement (SPA) regarding the calculation of a post-closing working capital adjustment.

The core issue was whether the purchaser, Rester Ontario Investments Inc., was permitted to provide narrative written submissions to an independent accountant in response to the vendor's, Elad Canada Operations Inc., dispute notice.

The court determined that the interpretation of the SPA was a matter for the court, not the independent accountant.

It ruled that narrative submissions were permissible, provided they did not alter the original calculations, and set page limits for both Rester's submissions and Elad's reply.

The applicant, Centerra Gold Inc., sought a permanent injunction against its former director, Tengiz Bolturuk, for breaching his fiduciary duties and duty of confidentiality.

Bolturuk, nominated by the Kyrgyz Republic's state-owned corporation, was found to have secretly orchestrated the takeover of Centerra's Kumtor gold mine by the Kyrgyz Republic while still a director, disclosing confidential information and subsequently becoming the External Manager of the seized mine.

The court found that Bolturuk's actions constituted a clear usurpation of corporate opportunity and a flagrant breach of his duties, rejecting his justifications.

The court affirmed its jurisdiction over a former director for breaches stemming from their position and found damages to be an inadequate remedy.

Bolturuk's cross-motion to set aside an interim injunction was dismissed.

The permanent injunction was granted, and substantial indemnity costs were awarded against Bolturuk.