Geoffrey B. Shaw

The plaintiff brought a proposed class action against numerous pharmaceutical manufacturers and distributors regarding the marketing and sale of opioids in Canada.

The defendants moved to strike the statement of claim for failing to disclose a reasonable cause of action, and one defendant, Pro Doc Limitée, moved to dismiss the action against it for lack of jurisdiction.

The court granted Pro Doc's jurisdiction motion, finding no real and substantial connection to Ontario.

The court struck the claims against the distributor defendants without leave to amend, finding no viable cause of action.

The court found that while there were viable causes of action against the manufacturer defendants for breach of the Competition Act, negligent misrepresentation, fraudulent misrepresentation, and failure to warn, the plaintiff's pleading was defective.

The court struck the claims against the manufacturer defendants with leave to amend to join representative plaintiffs for each defendant group and to comply with the rules of pleading.

The applicant, Competition Motors Limited (CML), sought to set aside an arbitral award from an Appeal Panel under the National Automobile Dealer Arbitration Program (NADAP) Rules, pursuant to sections 46(1)3 and 6 of the Arbitration Act, 1991.

CML argued the Appeal Panel exceeded its jurisdiction by applying an incorrect standard of review (correctness on facts without deference, akin to a de novo hearing) when reversing an initial arbitral decision that found Toyota Canada Inc. (TCI) unreasonably withheld consent to CML's dealership sale.

The court dismissed CML's application, finding that the issue raised was not one of true jurisdiction under s. 46(1)3, and even if it were, the Appeal Panel acted within its mandate by interpreting and applying the NADAP Rules' unique correctness standard for both law and fact, which allows for a re-evaluation of evidence to reach a "better" conclusion without conducting a full de novo trial.

The court also dismissed the procedural fairness argument as it was contingent on the jurisdictional claim.

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 moving parties brought a motion for leave to appeal the order of Parayeski J. dated September 23, 2020.

The Divisional Court dismissed the motion and awarded costs to the responding parties fixed at $2,126.89.

The defendants moved for leave to appeal an order dismissing their motion for a stay on the basis of lack of jurisdiction.

The Divisional Court dismissed the motion for leave to appeal, noting that an order dismissing a jurisdiction motion for a stay is a final order.

Final orders of the Superior Court of Justice must be appealed to the Court of Appeal for Ontario, not the Divisional Court.

Following a jurisdiction motion where the defendant insurers successfully argued that the court lacked jurisdiction over the proposed class actions, the insurers sought costs of approximately $620,000.

The court found this request preposterous and excessive, fixing costs payable by the plaintiffs to the 13 non-settling insurers at $28,000 on a partial indemnity basis.

The costs payable by the government regulator to the plaintiffs were settled at $12,500.

The plaintiffs filed proposed class actions against 15 auto insurers and the provincial regulator, FSCO, alleging improper deduction of HST from statutory accident benefits.

The defendant insurers brought motions to dismiss the actions for lack of jurisdiction, arguing the Licence Appeal Tribunal (LAT) has exclusive jurisdiction over such disputes.

The court agreed, dismissing the actions against the insurers and refusing to approve two early settlements, as the claims fell squarely within the LAT's exclusive jurisdiction under s. 280 of the Insurance Act.

However, the court found it had jurisdiction to hear the claims against FSCO for regulatory negligence, as those allegations did not directly concern benefit entitlements or amounts.

This decision addresses an application for leave to appeal an arbitrator's decision and a cross-application to enforce arbitral awards.

The central issue was whether a franchisee is entitled to damages under section 7(2) of the Arthur Wishart Act (Franchise Disclosure), 2000 (AWA) for misrepresentation in a disclosure document voluntarily provided by a franchisor, but not legally required under section 5 of the AWA.

The court found that the arbitration agreement's "final, conclusive and binding" language excluded a right of appeal.

Even if leave to appeal were possible, the court was not satisfied that the importance of the matters at stake justified an appeal.

The court upheld the arbitrator's decision, finding it reasonable and correct, that section 7(2) of the AWA only applies to misrepresentations in disclosure documents *required* by section 5, not those voluntarily provided, especially for commercially sophisticated franchisees.

Consequently, the application for leave to appeal was dismissed, and the application to enforce the arbitral awards was granted.

Appeal from a Superior Court judgment dismissing an appeal of an arbitrator's preliminary award.

The franchisor appealed the arbitrator's determination that the limitation period for arbitration had not expired.

The dispute arose from a franchisee's notice of rescission of a franchise agreement based on alleged non-disclosure by the franchisor.

The central issue was whether a mediation requirement in the franchise agreement constituted a precondition to arbitration that suspended the running of the two-year limitation period under the Limitations Act, 2002.

The arbitrator severed the requirement that mediation occur in Delaware, finding it contrary to the Arthur Wishart Act, and determined that the limitation period commenced only after mediation was deemed completed.

The Court of Appeal upheld the arbitrator's decision, applying a reasonableness standard of review.

On appeal from a motion judge's decision, the franchisor appealed the finding that the franchise agreement had been validly rescinded under section 6(2) of the Arthur Wishart Act (Franchise Disclosure), 2000, and the dismissal of its cross-motion for damages.

The franchisee cross-appealed certain ancillary issues.

The Court of Appeal found in favour of the franchisor on all issues.

This costs endorsement addresses the allocation of costs for both the underlying motions for summary judgment and the appeal.

The appellants (franchisor and related entities) appealed a motion judge's decision that the respondents (franchisee and principals) validly rescinded a franchise agreement under section 6(2) of the Arthur Wishart Act (Franchise Disclosure), 2000.

The motion judge found the franchise disclosure document (FDD) was so inadequate as to amount to no disclosure because it failed to include the terms of the head lease and did not provide cost estimates for converting an existing restaurant to an ASWR outlet.

The Court of Appeal allowed the appeal, finding that while the FDD may have contained deficiencies, these were not so serious as to amount to a complete lack of disclosure.

The court distinguished the case from prior jurisprudence by noting the franchise agreement contained collaborative site selection and opt-out provisions that protected the franchisee's ability to make an informed decision.

The court awarded damages to the franchisor for unpaid construction invoices and the head lease deposit, less any benefits derived from operating the franchise.

Self-represented long-term disability beneficiaries sought leave to appeal a sanction order from the Superior Court of Justice in the Nortel Networks CCAA proceedings.

The applicants challenged their binding status under the 2009 Representation Order for Disabled Employees and the 2010 Employee Settlement Agreement.

The Court of Appeal dismissed the motion for leave to appeal, finding that the stringent test for leave in CCAA proceedings was not met.

The proposed appeal lacked merit, the applicants were bound by the settlement agreement, and further delays in the protracted litigation were to be avoided.

The court also rejected a late-filed notice of constitutional question challenging sections 6(1) and 11 of the CCAA.

This is a costs judgment following a successful appeal by the respondent.

The respondent sought partial indemnity costs of $28,029.42, while the applicants argued for no costs or a limit of $12,000.

The court awarded the respondent the full amount requested, considering factors under Rule 57.01(1) of the Rules of Civil Procedure and section 131 of the Courts of Justice Act.

The decision emphasized the respondent's success, the significant importance and complexity of the legal issues, and the reasonableness of counsel's hourly rates and time expended.

The plaintiffs, a franchisee and its principals, moved for partial summary judgment seeking rescission of a franchise agreement due to alleged failures of disclosure under the Arthur Wishart Act (Franchise Disclosure), 2000.

The defendants brought a cross-motion for summary judgment to dismiss the claim.

The court found that the franchisor's disclosure document was egregiously deficient, specifically lacking a materially complete form of lease (including the head lease) and proper cost estimates for a conversion-type franchise.

The court rejected arguments that disclosure was impossible due to an undetermined location or that franchisee sophistication waived disclosure obligations.

The deficiencies amounted to a failure to provide a disclosure document, entitling the franchisee to rescission under s. 6(2) of the AWA.

The court also determined which corporate defendants were "franchisor's associates" and dismissed claims for misrepresentation and breach of good faith due to lack of focused argument.

All damages issues were referred to a Master.

This decision addresses a costs award following the dismissal of a franchisee class action against Pet Valu Canada Inc. The court awarded costs to the defendant on a partial indemnity basis, adjusting senior counsel's hourly rate to align with the Grid.

The defendant's motion to hold a non-party, Robert Rodger (the plaintiff company's sole shareholder), jointly and severally liable for these costs was dismissed.

The court found that the defendant failed to satisfy the three-step test for non-party costs, specifically by not demonstrating that the plaintiff company was a "man of straw" or a sham.

The plaintiff was awarded $10,000 in costs for successfully defending the non-party liability motion, which was deducted from the defendant's overall award.

The applicant franchisees sought leave to appeal an order that refused to restrain the franchisor from terminating their franchise agreements and granted an injunction restraining the franchisees from continuing to operate.

The court applied the test for leave to appeal under Rule 62.02(4)(b) of the Rules of Civil Procedure.

Finding no good reason to doubt the correctness of the motion judge's decision and no matters of general or public importance, the court denied leave to appeal and awarded costs to the respondent franchisor.

The franchisor appealed a motion judge's decision finding it breached the duty of fair dealing under s. 3 of the Arthur Wishart Act by failing to disclose that it did not receive significant volume rebates.

The motion judge had read language into a certified common issue without notice to the parties.

The Court of Appeal allowed the appeal, finding the motion judge erred by effectively amending the common issue and by concluding that the alleged non-disclosure constituted a breach of the duty of fair dealing in the performance of the franchise agreement.

The plaintiff's cross-appeal regarding the dismissal of its motion to add a new common issue was dismissed.

The appellant franchisor appealed a declaration that a clause in its franchise agreements requiring a general release as a condition of assignment was void and unenforceable under s. 11 of the Arthur Wishart Act.

The Court of Appeal held that while the clause was not void ab initio, it was unenforceable because it required a release of statutory claims.

The Court declined to apply notional severance to read down the clause to apply only to non-statutory claims, finding that doing so would subvert the protective purpose of the Act and invite franchisors to draft overly broad releases.

In this franchise class proceeding, the plaintiff moved to amend its pleading to add a new common issue alleging failures to disclose the franchisor's purchasing power and the insignificant nature of supplier volume discounts.

The court held there was no tenable basis for a generalized purchasing-power allegation, but found an arguable and in part compelling complaint concerning the non-disclosure of the virtual non-existence of meaningful volume discounts, particularly under s. 3 of the Arthur Wishart Act.

The motion to amend was nevertheless dismissed because, in the unusual procedural circumstances, allowing the amendment after the summary judgment hearing would cause non-compensable prejudice to the defendant.

The court then answered deferred common issues by holding that the franchisor had breached its s. 3 duty of good faith and fair dealing in failing to disclose whether significant volume rebates were received, and the amounts received, retained, or shared, while reserving damages for further submissions.

In a certified franchise class action alleging price maintenance and breaches of franchise law, the representative plaintiffs sought court approval of a proposed settlement under the Class Proceedings Act, 1992.

The settlement provided $275,000 to reimburse class counsel disbursements and required class members to release all claims relating to the purchase, sale, distribution, promotion, or marketing of supplies.

The court held that although the settlement outcome was otherwise reasonable given the weak prospects of success and litigation risks, the release clause was overbroad because it could bar future claims unrelated to the existing alleged misconduct.

The judge found that approving such a release would unfairly deprive class members of potential future claims.

The court therefore refused to approve the settlement.