Emilie Dillon

The appellants, founders of International Capital Management Inc., sold their client portfolio to Optimize Inc. in 2017 through referral and non-competition agreements.

The agreements provided that Optimize would pay fees to ICM, but could demand repayment if more than 15% of the transferred assets were subsequently moved to entities associated with the Sanchez brothers.

When the appellants' associated firm, T.I.P. Wealth Manager Inc., received over 15% of the transferred assets, Optimize terminated the agreements and demanded repayment of all fees paid.

The motion judge granted summary judgment in favor of Optimize, finding no genuine issue for trial regarding the 15% threshold and characterizing the fee repayment clause as an enforceable forfeiture clause rather than an unenforceable penalty.

The appellants appealed, challenging both the summary judgment finding and the characterization of the remedy clause.

The Court of Appeal dismissed the appeal, finding no error in the motion judge's analysis.

This is an appeal from a motion judge's decision dismissing the plaintiffs' motion to amend their pleadings in a class action alleging a multi-bank conspiracy to fix gold and silver prices and engage in 'spoofing'.

The motion judge had found the proposed amendments time-barred or improper for joinder.

The Court of Appeal allowed the appeal, finding that the motion judge erred in law by treating amendments as new causes of action when they were alternative theories based on existing facts, and by misapplying the 'actual knowledge' standard for limitation periods.

The Court also found a palpable and overriding error in the motion judge's assessment of JP Morgan's joinder, concluding that the CFTC order did not preclude conspiratorial spoofing allegations.

The amendments were allowed, with the possibility for some respondents to plead a limitations defence at trial.