Eric S. Block

Rogers Communications Inc. brought an unopposed motion for a sealing order and to file a redacted record in its appeal of a confidential arbitration award involving BCE Inc. and Glentel Inc. The court dismissed the motion, finding that Rogers failed to meet the strict test for limiting the open court principle set out in Sherman Estate.

The court held that merely treating agreements as confidential in a private arbitration does not establish a serious risk to an important public interest justifying a sealing order in a public court proceeding.

The plaintiffs moved for declarations that a law-firm partner had withdrawn from an interjurisdictional partnership, or alternatively for dissolution under the Partnerships Act, together with mandatory and injunctive relief over electronic devices, files, and trust-account records.

The motion arose from an alleged unilateral alteration of a class action settlement agreement that redirected class counsel fees and from broader allegations of self-dealing, lack of transparency, and withheld client files.

The court held the motion was, in substance, an attempt to obtain final relief akin to summary judgment before pleadings had closed, while material facts remained hotly disputed and related fee issues were simultaneously before the Alberta court.

Although the record raised concerns about possible fiduciary breaches, the court found a full trial was required and also found insufficient evidence of irreparable harm and no balance of convenience favouring effectively final injunctions.

The motion was dismissed.

The Toronto-Dominion Bank (TD) brought a motion under Rule 5.05 to sever certain allegations advanced by Tarion Warranty Corporation (Tarion) into two separate actions.

Tarion, along with Carlo and Dino Taurasi, opposed the motion.

TD argued that Tarion's negligence claim (related to a cheque kiting scheme) and its claim to set aside a settlement agreement as a fraudulent conveyance were discrete and temporally separate.

The court dismissed the motion, finding no undue complexity, delay, or prejudice, and that the claims arose from the same series of transactions with significant factual overlap, promoting the convenient administration of justice and avoiding multiplicity of proceedings.

The plaintiff, Dr. Darryl Gebien, sought court approval for a Third-Party Funding Agreement with Omni Bridgeway Ltd. for a proposed class action against numerous pharmaceutical companies regarding the opioid crisis.

Several defendants objected to specific provisions of the agreement, including those related to amendments, assignments, attornment, costs enforcement, termination procedures, accrued costs, and confidentiality.

The court found that while the agreement generally met the requirements for approval, several of the defendants' objections, particularly concerning comprehensive attornment by Omni Bridgeway Ltd. and the broad confidentiality provisions, were "genuinely meaningful" and required resolution.

The motion for approval was adjourned to allow the parties to address these issues, with the court emphasizing that it is not its role to draft the agreement.

The self-represented defendant brought a motion for leave to appeal the order of Conway J. dated December 7, 2022.

The Divisional Court dismissed the motion for leave to appeal and awarded costs to the responding plaintiff in the amount of $5,000.

The plaintiff brought a motion to discontinue a proposed class action in Ontario regarding illnesses allegedly caused by the herbicide Gramoxone.

The plaintiff, a resident of British Columbia, preferred to proceed as a class member in a parallel action in British Columbia.

The defendants opposed the discontinuance, arguing it was a tactical move to avoid litigating in Ontario.

The court granted the discontinuance with prejudice, finding no prejudice to putative class members and noting that the defendants' concerns could be addressed through costs.

The court awarded the defendants costs of $71,807.32 on a partial indemnity scale.

The defendants in a proposed opioid class action moved to dismiss the proceeding for delay under s. 29.1 of the Class Proceedings Act, 1992.

In response, the plaintiff brought a cross-motion for a nunc pro tunc timetable order and commenced parallel proceedings in Manitoba.

The parties reached a settlement wherein the competing motions were dismissed without costs, the Manitoba proceedings would be discontinued, and the Ontario action would be deemed commenced on October 2, 2020, making it subject to the amended certification test under the Smarter and Stronger Justice Act, 2020.

The court approved the settlement and issued the consent orders.

The plaintiff brought a motion to certify a class action for settlement purposes, approve a $105,000 settlement, and approve class counsel fees and a representative plaintiff honorarium.

The class action alleged that the defendants misclassified event staffing workers as independent contractors rather than employees, depriving them of minimum employment standards.

The court certified the action for settlement purposes, finding the criteria under s. 5(1) of the Class Proceedings Act were met.

The court approved the settlement as fair and reasonable given the significant risk of non-recovery due to the corporate defendant ceasing operations.

Class counsel fees of $50,454.50 plus disbursements were approved, and the representative plaintiff was awarded a $4,000 honorarium.

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 plaintiff sought certification of a national class proceeding on behalf of Canadian corn growers alleging negligent premature commercialization of genetically modified corn seed containing the MIR-162 trait before Chinese import approval was obtained.

The court held that the action satisfied the cause of action, common issues, preferability, and representative plaintiff requirements, and that there was some basis in fact for loss, causation, and a proposed aggregate damages methodology despite competing expert evidence.

The court rejected arguments that the class was unsupported for lack of proof of loss, that limitations issues defeated certification, and that individualized damages questions barred certification.

Certification was granted, subject to refinement of the class definition and amendment of one proposed common issue.

The motion concerned the terms of a judicially supervised sale of a limited partnership or its underlying real estate asset, following the respondent's failure to complete a purchase of the applicant's interest as previously ordered by the court.

Key contentious issues included whether the sale should be limited to arm's-length purchasers, the composition and disclosure of a "Floor Amount" (minimum sale price), the applicant's right to a credit bid, the consequences if the Floor Amount was not met, and the appropriate prejudgment interest rate.

The court ruled that both parties could participate in the bidding, the Floor Amount should not include the respondent's capital contributions but should include the applicant's post-default development costs, the Floor Amount should not be disclosed to bidders, and prejudgment interest should be 12% due to the respondent's conduct.

The court also granted a temporary sealing order for the file and reasons until the sale was completed.

Following the dismissal of the defendant insurers' motion to temporarily stay 17 individual actions pending the determination of certification in a class proceeding, the successful plaintiffs sought costs on a partial indemnity scale.

The plaintiffs requested $86,589, which the court found excessive for a relatively simple stay motion.

Applying the factors in Rule 57.01(1) and considering proportionality, the court fixed costs at $35,000 all-inclusive, payable by the defendant insurers.

The defendant insurers brought a motion to temporarily stay 17 individual actions for COVID-19 business interruption losses pending the certification of a related class action.

The court dismissed the motion, finding that while there was overlap in issues and facts, staying the individual actions would cause significant injustice and prejudice to the plaintiffs, who had legitimate reasons for pursuing their claims individually and expeditiously.

The applicant and respondent were partners in a joint venture to develop a condominium.

The applicant exercised a shotgun buy/sell provision, and the respondent elected to purchase the applicant's interest.

The respondent failed to close, arguing that the COVID-19 pandemic and resulting economic downturn frustrated the contract and prevented it from obtaining financing.

The court rejected the frustration defence, finding that economic downturns and restrictive lending are inherent risks that do not radically alter the contractual obligations.

The court granted the application and ordered specific performance, noting that damages would be an inadequate remedy.

This motion concerned the winding-up of Maple Bank GmbH.

The Liquidator sought approval for a Fourth Interim Distribution, a reduction in the reserve held, and approval of the Fourteenth Report of the Liquidator and its activities.

Additionally, the Liquidator sought approval for a Data Custodian Order.

There was no opposition to the requested relief, with Canada Revenue Agency's pending claim being addressed by a maintained reserve.

The court granted the motion, approving the distribution, the reduction in reserve, the Liquidator's report and activities, and the Data Custodian Order.

Following a successful appeal, the appellants sought costs of the proceedings in the Superior Court on a partial indemnity basis.

The respondents contested a disbursement for the appellants' expert witness on damages, arguing the expert's evidence was rejected by the application judge as a mere mathematical exercise.

The Court of Appeal agreed with the respondents, finding that disallowing the disbursement did not amount to an improper distributive costs order, and that the expert evidence provided no value as it consisted only of basic calculations using publicly available share prices.

Costs were awarded to the appellants excluding the expert disbursement.

The appellants appealed the dismissal of their application for damages arising from the respondent's refusal to honour the exercise of stock options.

The options were granted under a consulting agreement with a two-year term but specified a five-year exercise period.

The respondent argued the options expired six months after the consulting agreement ended, relying on an incorporated stock option plan.

The Court of Appeal allowed the appeal, finding the application judge erred in contractual interpretation.

The specific five-year exercise period in the grant took priority over the general termination provision in the incorporated plan.

Damages were awarded to the appellants in the amount of $2,820,000.

The plaintiffs, three Russian cyclists, sued the World Anti-Doping Agency (WADA) and Richard McLaren for damages, alleging they were falsely implicated in a state-sponsored doping scheme and wrongfully excluded from the 2016 Rio Olympic Games.

The defendants moved for summary judgment to dismiss the action on the grounds that the Court of Arbitration for Sport (CAS) had exclusive jurisdiction and that the action was an abuse of process.

The Superior Court of Justice granted the motion, finding that the essential character of the dispute fell within the broad arbitration clauses of the Olympic Charter and the athletes' entry forms.

The court also held that the action was an abuse of process as the plaintiffs were attempting to re-litigate a dispute they had already brought before the CAS.

A corn grower who neither purchased nor planted genetically modified corn seed brought a proposed class action against the seed manufacturer for negligence, negligent misrepresentation, and breach of the Competition Act.

The manufacturer had commercialized the seed in North America before obtaining approval in China.

The seed's traits commingled with all North American corn, causing China to ban all North American corn imports, resulting in a market glut and price collapse.

The motion judge struck all claims.

The Court of Appeal allowed the appeal in part, reinstating the negligence claim for premature commercialization while upholding dismissal of the misrepresentation and Competition Act claims.

The applicant, a former CEO of Aphria Inc., sought damages for the company's refusal to honor his stock options and, in the alternative, relief from forfeiture.

The court found that the stock options had expired according to the terms of the Aphria Incentive Stock Option Plan, which was incorporated by reference into the applicant's agreements.

Furthermore, the applicant was found to have breached a non-competition agreement by leasing land to a medical marijuana producer during the restricted term.

Consequently, the court dismissed the application, denying both the claim for damages and the request for equitable relief from forfeiture due to the applicant's breach of the non-competition agreement.