Geoff Hunnisett

The decision addresses motions by First Trust Management AG, as Trustee of The Salus Rete Trust, to stay or dismiss two related actions on the basis that Ontario lacks jurisdiction or is not a convenient forum.

The court finds that the claims are adequately pleaded, that Ontario has jurisdiction simpliciter based on several presumptive connecting factors (including contracts made in Ontario and torts committed in Ontario), and that Ontario is the most appropriate and convenient forum for the actions.

The motions are dismissed.

The defendant trustee of a Liechtenstein trust moved to stay or dismiss two related Ontario actions alleging fraud and misappropriation of funds, arguing that Ontario lacked jurisdiction or was an inconvenient forum.

The plaintiffs resisted the motions, asserting that the funds used to settle the trust originated from Ontario and were transferred in breach of fiduciary duties.

The court found that Ontario had jurisdiction simpliciter because contracts connected to the dispute were executed in Ontario and the underlying torts of misappropriation occurred within the province.

The court also declined to stay the actions on the basis of forum non conveniens, concluding that Ontario was the most appropriate and efficient forum to resolve the claims.

The plaintiffs in a certified class action brought a motion seeking an order to provide official notice to class members regarding the outcome of common issues summary judgment motions, despite pending appeals and cross-appeals.

The defendants objected, arguing that such notice would confuse class members and disputed the sharing of information and costs.

The court granted the plaintiffs' motion, finding that providing notice was necessary to protect the interests of the class members and that the defendants' concerns about confusion were unfounded.

The court emphasized the fiduciary responsibility of class counsel to report to class members throughout the litigation.

In this certified class action, the plaintiff franchisees (Associates) brought a motion for summary judgment against the franchisor, Shoppers Drug Mart, alleging breaches of contract, breaches of the duty of good faith, and unjust enrichment regarding various fees and the retention of Professional Allowances paid by generic drug manufacturers.

Shoppers brought a cross-motion for summary judgment to dismiss the claims, arguing they lacked merit and were statute-barred.

The court dismissed the claims regarding the Optimum Fee and Shoppers Charges, finding no breach of contract or bad faith.

The court also dismissed the unjust enrichment claim for Professional Allowances but found that Shoppers breached the 2002 Associates Agreement (but not the 2010 Agreement) by failing to remit Professional Allowances to the Associates.

The court held that aggregate damages were not viable and directed that the surviving breach of contract and distribution centre claims proceed to individual issues trials, subject to limitation periods.

This decision addresses a motion to strike various claims in two proposed class actions brought by Tim Hortons franchisees against the franchisor, The TDL Group Corp. (TDL), and related corporate and individual defendants.

The claims included breach of trust, fiduciary duties, oppression remedy under the Canada Business Corporations Act (CBCA) and British Columbia Business Corporations Act (BCBCA), conversion, breach of contract (including implied duty of good faith), and statutory duties under the Arthur Wishart Act (fair dealing and right of association).

The court struck out most claims against the non-TDL defendants without leave to amend, finding a lack of material facts to support them or privity of contract.

Several claims against TDL, including breach of trust, fiduciary duties, CBCA oppression, and conversion, were also struck without leave.

Claims for breach of contract (including good faith) and statutory duty of fair dealing (s. 3 Wishart Act) against TDL were struck with leave to amend for particulars.

The claim for breach of the right of association (s. 4 Wishart Act) against TDL survived.

The court deferred the issue of declaratory relief and ordered the plaintiffs to serve amended statements of claim within 30 days, failing which the pleadings would be struck in their entirety.

In this certified franchise class action arising from the 2009 automotive restructuring, the representative plaintiff alleged that the franchisor breached statutory duties of fair dealing, disclosure, and association when it issued wind-down agreements to affected dealers on short notice, and also alleged that class counsel acted in conflict and failed to protect the dealers' interests.

The court held that the franchisor did not breach its obligations under the Arthur Wishart Act or analogous provincial legislation, found the wind-down release enforceable as a settlement of existing and fully known claims, and dismissed the claim against the franchisor as well as the franchisor's counterclaim.

The court further held that the law firm retained for the dealer group had in fact entered into a solicitor-client relationship with the contributing dealers, that its retainer extended to pre-filing restructuring issues, and that it breached fiduciary, contractual, and tort duties by acting despite an undisclosed conflict with Industry Canada, failing to address the steering committee's internal conflict, and maintaining an unreasonable wait-and-see approach.

Applying a loss-of-chance analysis, the court found that the class lost a real and significant opportunity to negotiate collectively for higher wind-down payments and awarded aggregate damages of $45 million against the law firm.