Geoffrey Hunnisett

The appellant, a foreign trustee based in Liechtenstein, appealed the dismissal of its motions to stay or dismiss two actions for lack of jurisdiction simpliciter or forum non conveniens.

The actions alleged that the principals of Bridging Finance Inc. misappropriated funds and transferred them to a trust managed by the appellant.

The Court of Appeal upheld the motion judge's finding that Ontario had jurisdiction simpliciter because the tort of fraud was committed in Ontario and contracts connected to the dispute were made in Ontario.

The appellant failed to rebut these presumptive connecting factors, and the appeal was dismissed.

The representative plaintiffs, on behalf of a class of Ontario franchisees, sought production of documents from the defendants (Shoppers Drug Mart Inc. and Shoppers Drug Mart (London) Ltd.) to support a “bottom-up” damages assessment for individual class members under section 25 of the Class Proceedings Act, 1992.

The Court of Appeal had previously found Shoppers liable for breach of contract and duty of good faith, and ordered that damages be determined through an individual issues process.

The defendants opposed production on grounds of proportionality, prematurity, and lack of expert evidence.

Justice Glustein granted the motion, ordering production of the requested documents for all class members subject to the 2002 Associate Agreement for the relevant years, finding the request reasonable and proportionate in light of the litigation’s scope and the evidence before the court.

This decision concerns motions by the Receiver for Bridging Finance Inc. and by BlackRock Funds to lift the stay of proceedings against Gary Man Kin Ng, a bankrupt, and to validate service of a Statement of Claim.

The court granted both motions, finding that the actions for fraud and fraudulent misrepresentation against Ng would not be discharged in bankruptcy, involved sufficient complexity, and required Ng as a necessary party.

The court also validated service of the Statement of Claim on Ng and the Ng Entities, as Ng had actual notice.

The decision reviews the legal test for lifting a bankruptcy stay and the requirements for validating service.

This decision addresses three motions in the receivership of the Bridging Funds: (1) the Receiver’s motion for an interim distribution to unitholders, (2) approval of a settlement with the BlackRock Parties, and (3) the unitholders’ motion for a constructive trust.

The court approved the interim distribution but required a sufficient reserve for the disputed Cerieco claim until its final determination.

The BlackRock settlement was approved.

The constructive trust motion was deferred pending resolution of the Cerieco claim.

The decision provides detailed guidance on the treatment of creditor and unitholder claims in a complex receivership under the Securities Act.

The appellants, representing a class of Ontario Shoppers Drug Mart franchisees, appealed a summary judgment decision regarding their entitlement to Professional Allowances paid by generic drug manufacturers.

The Court of Appeal upheld the motion judge's findings that Shoppers breached the 2002 franchise agreement by retaining the allowances, which constituted 'revenue', but did not breach the 2010 agreement, which explicitly allowed Shoppers to retain such concessions.

The Court also upheld the application of a rolling limitation period and the refusal to award aggregate damages due to the idiosyncratic nature of the profit-sharing model.

However, the Court allowed the appeal regarding the quantification of damages, finding that Shoppers breached its duty of good faith by arbitrarily allocating $129 million as out-of-province rebates to avoid sharing the funds with Ontario franchisees, bringing the total Professional Allowances received to $1.084 billion.

The appellant appealed the dismissal of a certification motion for a proposed class action against a car rental company.

The proposed class consisted of branch managers who alleged they were misclassified as managers and improperly denied overtime pay.

The Divisional Court dismissed the appeal, upholding the motion judge's findings that the claims lacked sufficient commonality due to the substantial variability in the job functions and duties actually performed by the proposed class members across different branch locations.

The court also upheld the motion judge's refusal to certify aggregate damages and the finding that British Columbia class members had no cause of action.

The plaintiff brought a motion to certify a class action against a car rental company, alleging systemic misclassification of branch managers and seeking unpaid overtime.

The court dismissed the certification motion, finding that the proposed common issues regarding misclassification could not be resolved on a class-wide basis due to significant variability in the actual job functions performed by managers across different branch locations.

The court also rejected the plaintiff's proposed methodologies for calculating aggregate damages, which relied on computer log-in data and anonymous crowdsourced internet reviews.

Following the dismissal of the plaintiffs' franchise claims under the simplified procedure, the successful defendant sought partial indemnity costs of $145,670.

The plaintiffs argued this amount was disproportionate to the $100,000 at issue and suggested $35,000.

The court applied the factors under Rule 57.01(1), emphasizing proportionality and the reasonable expectations of the unsuccessful party.

The court fixed the defendant's partial indemnity costs at $65,000, finding the amount claimed by the defendant to be disproportionate to what was at stake in the simplified procedure action.

This costs endorsement followed two related motions where the defendants largely succeeded in striking claims under Rule 21, terminating claims against all defendants except The TDL Group.

The court awarded costs to the successful defendants, finding no reason to depart from the usual practice that the unsuccessful side pays.

Despite the plaintiffs' arguments that the hourly rates and overall costs requested were excessive, the court found them within the norm for large firm litigation given the magnitude of the claims.

The court exercised its discretion to slightly reduce the requested costs, awarding $44,000 to the defendants in the 152 Action and $40,000 to the defendants in the Walker Action, acknowledging that the defendants were not 100% successful in dismissing the actions without leave to amend.

The appellants were awarded costs of the motion before the Superior Court on consent.

The respondents were ordered to pay $30,000 inclusive of disbursements and taxes, in addition to the costs awarded to the appellants in the appeal.

The appellants, General Motors dealers in the Greater Toronto Area, sued GMCL and its US parent company, GM US, alleging breaches of the duty of good faith and fair dealing under the Arthur Wishart Act and at common law.

The motion judge struck the claim against GM US under Rule 21, finding it was neither a party to the franchise agreement nor a franchisor's associate.

The Court of Appeal allowed the appeal, holding that the determination of whether GM US was a franchisor's associate or owed a duty of fair dealing required a full factual record and should not be dismissed at the pleadings stage.

On motions to strike in a franchise dispute arising from the post-bankruptcy restructuring of an automotive manufacturer, the court dismissed the entire claim against the U.S. parent entities and struck discrete allegations against the Canadian franchisor.

The court held that a franchisor’s associate is not liable under s. 3 of the Arthur Wishart Act unless it is also a party to the relevant franchise agreement, and further found the pleadings did not satisfy the statutory definition of franchisor’s associate.

The court also held that the pleadings did not justify piercing the corporate veil to impose contractual liability on the parent companies.

Allegations concerning misuse of government bailout funds and the defendants’ preference of their own interests were struck as irrelevant, scandalous, and abusive.

Leave to amend was refused.

The defendant brought a motion to remove the plaintiffs' counsel, arguing that a settlement agreement from prior litigation prohibited the counsel from acting for certain plaintiffs in this action.

The defendant also sought to strike portions of the statement of claim, alleging a breach of the deemed undertaking rule regarding a disputed document.

The plaintiffs brought a cross-motion to set a timetable.

The court dismissed the defendant's motion, finding that the current claims did not arise directly from the restructuring covered by the settlement agreement and that the deemed undertaking rule did not apply to documents incorporated into a settlement agreement.

The court granted the plaintiffs' cross-motion and imposed a case management timetable.