Frederick Paul Morrison

Following an appeal, the Court of Appeal considered written submissions regarding the costs of the motion before the lower court.

The Court ordered that the costs of the motion be remitted to the motion judge for reconsideration in light of the appellate reasons.

Following the dismissal of the plaintiff's motion to certify a class action regarding copyright in land surveyors' plans, the parties could not agree on costs.

The successful defendant sought approximately $496,000, while the plaintiff argued for no costs or a maximum of $80,000, citing the novel point of law and public interest involved.

The court found that while the case raised a novel point of law, it did not involve a matter of public interest.

Applying the principles for fixing costs on a certification motion, the court awarded the defendant $200,000 inclusive of fees, disbursements, and taxes.

The plaintiffs in a proposed class action appealed a motion judge's decision striking out several claims from their statement of claim against an insurer regarding the sale and administration of universal life insurance policies.

The Court of Appeal allowed the appeal in part, reinstating the claims for breach of the duty of good faith and fair dealing, breach of contract, and deceit and fraud, finding it was not plain and obvious these claims would fail.

The court upheld the striking of allegations concerning releases because the plaintiffs failed to request specific relief for those who signed them.

The plaintiff surveying firm sought certification of a proposed class action alleging that the operator of Ontario’s electronic land registry system infringed surveyors’ copyright in registered plans of survey by scanning, storing, and selling digital copies through online portals.

The motion was brought under s. 5 of the Class Proceedings Act, 1992.

The court held that although a cause of action for copyright infringement was adequately pleaded (with the exception of allegations based on “translation” into digital formats), the plaintiff failed to satisfy the remaining certification criteria.

The proposed class definition was merits‑based and there was no evidence that two or more persons wished to pursue the claim.

The court also found that the proposed common issues were largely individualized, particularly regarding ownership of copyright and consent, and that a class proceeding would not be the preferable procedure.

The plaintiffs in a proposed class action sought orders to have a motion for approval of a third party financing and indemnity agreement heard without notice to the defendant, in camera, and with the documents sealed.

They argued that disclosure would compromise solicitor-client privilege and litigation strategy.

The court dismissed the motion, holding that the defendant is affected by the funding agreement and entitled to notice and participation.

The court further held that third party funding agreements are not privileged, or if they are, the privilege is waived when applying for court approval.

The open court principle requires the funding motion to be heard publicly, though the court provided specific procedural directions for the future motion.

The defendants sought leave to appeal an interlocutory order of the case management judge, who directed that the plaintiffs' motion for class certification be heard prior to the defendants' motion for summary judgment.

The Divisional Court dismissed the motion for leave to appeal, finding no conflicting decisions and no reason to doubt the correctness of the case management judge's discretionary decision regarding the timing of procedural motions.

The respondent commenced arbitral proceedings against the appellant.

The arbitrator ordered the respondent to post security for costs.

The respondent successfully applied to the Superior Court to set aside the arbitrator's order.

The appellant appealed to the Court of Appeal.

The Court of Appeal allowed the appeal, holding that the application judge lacked jurisdiction under the Arbitration Act, 1991 to review the arbitrator's procedural order for security for costs, as it was neither an award nor a ruling on the arbitrator's jurisdiction to conduct the arbitration.

The appellants sought costs for their unsuccessful appeal against the dismissal of a summary judgment motion, arguing the appeal was necessary to establish that the motion judge's observations were obiter.

The Court of Appeal rejected this argument, noting the law was already well-established, and awarded costs to the respondents.

The respondents claimed $120,000, but the court fixed costs at $75,000 inclusive of disbursements and GST, finding the claimed amount excessive for a one-day appeal.

The defendants in a class action regarding payday loans appealed the dismissal of their renewed motion to stay the proceeding based on arbitration clauses in the loan agreements.

They argued that recent Supreme Court of Canada decisions changed the law, entitling them to a stay despite their previous unsuccessful stay motion.

The Court of Appeal dismissed the appeal, holding that the doctrine of issue estoppel applied.

The court exercised its discretion against allowing relitigation, finding that the plaintiffs' reliance on the prior determination and the advanced stage of the litigation outweighed the defendants' loss of the right to arbitrate.

The appellants appealed an order of the motions judge which concluded that there was no real and substantial connection to support jurisdiction and that jurisdiction should be declined on the ground of forum non conveniens.

The Court of Appeal dismissed the appeal, agreeing with the motions judge's cogent and persuasive reasons and finding no grounds to interfere with the result.

The defendants, eight major financial institutions, successfully defended an appeal of a decision denying certification of a class action regarding mortgage contracts.

The defendants sought their costs of the appeal.

The plaintiffs argued that no costs should be awarded, asserting the proceeding was a test case and involved a matter of public interest under section 31(1) of the Class Proceedings Act.

The Divisional Court rejected the plaintiffs' arguments, finding the case was not a test case, did not raise a novel point of law, and was not a matter of public interest, but rather involved individual commercial mortgage contracts.

The court awarded the defendants modified partial indemnity costs fixed at $20,000 per defendant.

The appellants appealed the dismissal of their motions to certify eight separate class proceedings against various financial institutions.

The claims alleged that the respondents incorrectly interpreted mortgage provisions regarding partial prepayment rights and early discharge penalties.

The Divisional Court upheld the motion judge's decision, finding that the pleadings failed to disclose a cause of action as they relied on implied terms not supported by the express language of the mortgages.

The court also agreed that the proposed classes were overly broad, individual issues overwhelmed any common issues, and a class proceeding would be unmanageable and not the preferable procedure.

The appellant tenant appealed a trial judgment awarding the respondent landlord damages for the cost of restoring commercial premises at the end of a tenancy.

The Court of Appeal upheld the trial judge's finding that a 1999 consolidation lease did not eliminate the tenant's repair obligations from earlier leases.

The court also upheld the assessment of damages for floor, electrical, and HVAC repairs as supported by the evidence.

However, the court allowed the appeal in part, finding that an administration fee for loss of rent was not supported by the wording of the lease.

The appellants obtained loans from the respondent financial institutions to purchase mutual funds based on the advice of their financial advisors.

When the investments failed to perform, the appellants faced margin calls and suffered losses.

They sued the financial institutions, alleging negligence and breach of fiduciary duty for failing to advise them of the risks associated with the loans.

The motion judge granted summary judgment dismissing the claims against the financial institutions.

The Court of Appeal upheld the decision, finding that the relationship between a bank and its customer is generally that of debtor and creditor, and there were no special circumstances or exceptional relationships to give rise to a duty of care or a fiduciary duty to advise the borrowers.

The plaintiff commenced a proposed class action in Ontario against Money Mart and its American parent company, Dollar Financial, alleging they charged criminal interest rates on pay-day loans.

Dollar Financial appealed a motion judge's decision dismissing its motion to set aside service ex juris and stay the action for lack of jurisdiction.

The Court of Appeal dismissed the appeal, finding a good arguable case against Dollar Financial based on alter ego, conspiracy, and unjust enrichment theories.

Applying the Muscutt factors, the Court held there was a real and substantial connection between Dollar Financial and Ontario, giving the Ontario court jurisdiction.

The defendants appealed the dismissal of their motion to stay a proposed class action in favour of arbitration.

The plaintiff brought a motion to quash the appeal, arguing it was precluded by s. 7(6) of the Arbitration Act.

The Court of Appeal granted the motion to quash, finding that the motions judge's decision was interlocutory because she deferred the final determination of whether the dispute should be arbitrated to the certification stage of the class proceeding.

As the order was not final, s. 7(6) of the Arbitration Act applied to bar the appeal.

The appellants, construction lien claimants, appealed a decision holding that the proceeds of a court-approved asset sale by a company under CCAA protection did not constitute trust funds under ss. 7 and 9 of the Construction Lien Act.

The Court of Appeal dismissed the appeals, finding that the statutory prerequisites for a trust were not met, as the sale proceeds were not 'received by' or 'in the hands of' the owner, but were instead paid to a court-appointed monitor and stood in substitution for the company's fully secured assets.

The respondents, a tobacco farmer and his company, were found by the Ontario Flue-Cured Tobacco Growers' Marketing Board to have engaged in the unlawful sale of tobacco outside the quota system.

The Board cancelled their tobacco quota.

The Agriculture, Food and Rural Affairs Appeal Tribunal substantially confirmed the Board's decision.

On judicial review, the Divisional Court quashed the decisions, applying a correctness standard of review and finding errors of law, including a reasonable apprehension of bias.

The Board and the Tribunal appealed.

The Court of Appeal allowed the appeal, holding that the Divisional Court erred by failing to apply the pragmatic and functional approach, which dictated a reasonableness standard of review.

The Court of Appeal found the Tribunal's factual findings and application of the standard of proof were reasonable, and that no reasonable apprehension of bias was established.

However, the Court found the Tribunal's penalty decision unreasonable because it upheld the Board's penalty without explaining why it did so despite making different factual findings.

The matter was remitted to the Tribunal to reconsider the penalty.

The appellants appealed an order striking out their proposed class action statements of claim for oppression against the respondents.

The claims alleged that a recapitalization plan was oppressive to minority shareholders.

The Court of Appeal dismissed the appeal, finding the claims failed to disclose a reasonable cause of action because the prospectus explicitly warned of the financial risks, the recapitalization plan benefited the company by preventing immediate collapse, and the appellants failed to plead any specific loss or damage.

The applicants sought judicial review of a decision by the Agriculture, Food and Rural Affairs Appeal Tribunal, which upheld the cancellation of their tobacco production quota for alleged illegal sales.

The Divisional Court quashed the decisions of both the Board and the Tribunal, finding that the Tribunal failed to apply the required standard of clear and convincing proof for quasi-criminal allegations and relied on insufficient evidence.

The Court also found a reasonable apprehension of bias because an adjudicator from the initial Board hearing testified as a prosecution witness before the Tribunal.