Geoffrey B. Shaw

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.

Following the certification of a class action on behalf of franchisees against a franchisor, a group of franchisees opposed to the action waged a campaign encouraging others to opt out.

The motion judge invalidated the opt-out notices received after the campaign began, finding the campaign coercive and misleading.

The Court of Appeal allowed the appeal, holding that the motion judge erred in drawing an inference of intimidation without direct evidence and in holding the opposing franchisees to a standard of objectivity.

The communications amounted to acceptable intra-class debate, and the opt-out notices were reinstated.

Following a two‑day motion concerning interim relief in an estate-related civil action, both parties sought costs after investing substantial legal resources in preparing and arguing the motion.

The court determined that most of the legal work related to investigating the merits of the underlying claims and would be more appropriately treated as costs in the cause.

However, the moving party achieved limited success by obtaining interim recovery of personal property and a certificate of pending litigation relating to land.

The court therefore awarded modest partial costs for those aspects of the motion while declining to award the broader costs sought by either side.

Additional submissions regarding an alleged lien on the vehicle were refused, and security in the amount of $35,000 was ordered to be paid into court pending resolution of the action.

The plaintiff in a class proceeding moved to quash the appeals of the defendant and non-party franchisees, arguing the order appealed from was interlocutory.

The order in question invalidated certain opt-out coupons but granted those class members a further opportunity to opt out after a final disposition on the merits.

The Court of Appeal held the order was final because it deprived the defendant of a binding judgment against all putative class members and of a limitations defence.

The motions to quash were dismissed.

In a certified class action alleging price maintenance and conspiracy by a franchisor and its designated food supplier, the parties brought reciprocal motions regarding refusals on examinations for discovery.

The court applied the principles of relevance, materiality, and proportionality, emphasizing that the action was certified based on a 'top-down' systemic approach rather than a 'bottom-up' product-by-product analysis.

The court largely upheld the refusals, finding many questions to be irrelevant, disproportionate, or inconsistent with the certified common issues, while ordering a small number of questions to be answered.

The plaintiff brought a motion in a dependant’s relief action under the Succession Law Reform Act seeking interim support from the deceased’s estate, interim possession of a residence, and possession of a motor vehicle allegedly gifted inter vivos by the deceased.

The court held that the plaintiff failed to establish a prima facie entitlement to support because the evidence did not demonstrate cohabitation for three years or otherwise satisfy the definition of “spouse” under the Act, nor did she establish financial need.

Interim possession of the residence was also refused because the property was owned by a family trust and there was no statutory or injunctive basis to grant exclusive possession.

However, the plaintiff established a strong prima facie case that the deceased gifted her a BMW vehicle, supported by a signed transfer and recorded statements.

The court ordered interim preservation of the vehicle and permitted the plaintiff to elect between possession with security, estate possession with security, or sale with proceeds paid into court.

Following a successful motion setting aside opt-out notices in a class proceeding, the court determined the appropriate costs award.

The moving party sought costs after establishing that the opt-out process had been corrupted by a coordinated campaign that undermined the integrity of the class action.

The respondents argued for no costs or for their own recovery, relying on allegations that certain claims had been withdrawn and that the motion raised novel issues.

The court held that the motion was critical to preserving the integrity of the opt-out process and that the moving party was substantially successful.

Costs were fixed at $60,000, payable jointly and severally by the defendant and the respondent franchisees.

In a certified franchise class action concerning alleged failure to share supplier rebates, the representative plaintiff sought to set aside opt-out notices after a franchisee group launched a campaign encouraging class members to opt out.

The campaign included a coordinated telephone blitz and a public website listing franchisees who opted out while disseminating misleading information about the litigation and class counsel.

The court found that the communications exerted pressure on franchisees and undermined the fairness and integrity of the opt-out process.

Concluding that the process had been subverted by misinformation and intimidation, the court exercised its supervisory authority under the Class Proceedings Act to invalidate opt-out notices submitted after the campaign began.

The plaintiffs sought leave to appeal a cost award made by the motions judge following the certification of their class proceeding.

The plaintiffs argued the motions judge ignored established principles, such as costs following the event and the reasonable expectations of the unsuccessful party, and improperly applied the principle of access to justice to the defendants.

The Divisional Court found that the motions judge properly exercised his discretion, considering all relevant factors and principles, and that there was no conflicting decision.

The motion for leave to appeal was dismissed.

The respondents sought costs of $77,362 for the motion for leave to appeal, the motion to expedite the appeals, and the appeals.

The Court of Appeal noted that the arguments were similar to those advanced before the motion judge and the Divisional Court.

The Court fixed the respondents' costs on a partial indemnity scale at $45,000, inclusive of disbursements and taxes, payable by the appellants.

The appellants, a restaurant franchisor and its food distributor, appealed a Divisional Court decision certifying a class action brought by former franchisees.

The franchisees alleged the appellants engaged in a price maintenance scheme, civil conspiracy, and breach of contract by charging exorbitant prices for supplies.

The Court of Appeal upheld the certification, finding that the motion judge erred by focusing too heavily on the individual nature of damages and failing to recognize that the breach of the Competition Act, conspiracy, and breach of contract claims constituted valid common issues.

The court also affirmed that aggregate damages provisions under the Class Proceedings Act could potentially be utilized at trial.

The moving parties (defendants) sought to set aside an order dismissing their motion for an extension of time to file a notice of appeal.

The appeal had been deemed abandoned under rule 61.14(2) after the moving parties failed to file the notice within ten days.

The Court of Appeal found no error in the motion judge's discretionary decision, agreeing that the moving parties failed to demonstrate a firm intention to appeal within the time period and failed to provide an adequate explanation for the delay.

The motion was dismissed with costs.

The appellant franchisees appealed the dismissal of their motion to certify a class proceeding against the respondent franchisor and distributors.

The appellants alleged price maintenance under the Competition Act, civil conspiracy, and breach of contract regarding mark-ups and sourcing fees for supplies.

The Divisional Court allowed the appeal, finding the motion judge erred in principle by focusing exclusively on the individualized nature of damages and failing to recognize that the breach of the Competition Act, breach of contract, and the fact of loss were common issues.

The Court conditionally certified the class action, concluding it was the preferable procedure to achieve judicial economy, access to justice, and behaviour modification.

The appellant franchisor and respondent franchisee entered into two consecutive franchise agreements.

The franchisee rescinded the second agreement under the Arthur Wishart Act due to the franchisor's failure to provide a disclosure document, and brought an action for rescission and damages.

The franchisor moved to stay the action based on an arbitration clause in the agreements.

The motion judge dismissed the stay motion and granted partial summary judgment for rescission.

On appeal, the Court of Appeal held that the claims fell within the arbitration clause and that the failure to provide a disclosure document did not render the arbitration agreement invalid under the Arbitration Act.

The appeal was allowed, the summary judgment set aside, and the action stayed.

The plaintiff franchisor sued the defendant franchisees for breach of contract.

The motion judge struck large portions of the defendants' statement of defence and stayed portions of their counterclaim, finding the defence pleadings unnecessary for a 'reasonable defence' and the counterclaim duplicative of an intended class action.

The Court of Appeal allowed the appeal, holding that a defendant is entitled to plead any relevant material facts of at least marginal probative value, and that it was premature to stay the counterclaim based on an uncertified class action to which the defendants were not parties.

Following an appeal where the appellant achieved partial success against multiple respondents, the Court of Appeal determined the appropriate costs awards.

Recognizing the divided success at both the motions and appellate levels, the court ordered the appellant to pay costs for the motions below, while ordering certain respondents to pay costs for the appeal.

The court accounted for the multiplicity of counsel and the novelty of the appellant's arguments in fixing the amounts.

The appellant, former Commissioner of the Canadian Football League, appealed an order striking out his statement of claim against the CFL, its member clubs, and various individuals.

The claim alleged breach of confidence, negligent misrepresentation, breach of contract, defamation, injurious falsehood, and interference with contractual relations arising from his hiring and subsequent dismissal.

The Court of Appeal allowed the appeal in part, finding that while the statement of claim was prolix and contained evidence rather than material facts, certain causes of action for negligent misrepresentation, breach of contract, and defamation were viable.

The Court struck the entire pleading but granted the appellant leave to deliver a fresh amended statement of claim for the surviving causes of action.

The appellant, former Commissioner of the Canadian Football League, sued the League's member clubs and various individuals for almost $19 million following his dismissal.

The defendants successfully moved to strike out most of the statement of claim.

On appeal, the Court of Appeal upheld the striking of the claims for breach of confidence, injurious falsehood, and intentional interference with contractual relations.

However, the Court allowed the appeal in part, permitting certain claims for negligent misrepresentation and defamation to proceed against specific defendants, subject to the delivery of a fresh amended statement of claim to cure pleading deficiencies.

The appellant school board appealed a trial judgment finding an implied agreement to provide reasonable notice of non-renewal for a 20-year transportation contract.

The respondents cross-appealed the finding that they had received overpayments based on the contract's payment formula.

The Court of Appeal dismissed both the appeal and the cross-appeal, finding that the trial judge's conclusions on the implied term of notice, the calculation of overpayments, and the dismissal of other claims were well-supported by the evidence.