Gillian Blythe Dingle

The plaintiffs, Andrew and Selena Stronach, brought motions to strike out portions of the defendants' Fresh as Amended Statements of Defence under Rule 25.11 of the Rules of Civil Procedure.

The plaintiffs argued that the impugned pleadings improperly referenced documents and communications that were subject to settlement privilege arising from a confidential judicial mediation.

The defendants argued that the plaintiffs had waived privilege or that an exception applied based on the justice of the case.

The court found that the mediation was subject to settlement privilege, the plaintiffs had not waived the privilege, and no exception applied.

The court granted the motions to strike the pleadings relating to the mediation.

The court also struck out portions of one defendant's pleading as scandalous, but dismissed a motion to require another defendant to reinstate a withdrawn admission.

The plaintiffs, Andrew and Selena Stronach, sought leave to amend their respective statements of claim in two related actions concerning the management of the Stronach family business and trusts.

The defendants, including Belinda Stronach, opposed the amendments on several grounds, primarily arguing that references to a May 2020 Agreement were barred by settlement privilege.

The court found that the defendants failed to prove the May 2020 Agreement was intended to be kept confidential, and alternatively, that any privilege had been waived or an exception applied.

The court also rejected arguments that the amendments improperly withdrew admissions or were scandalous and vexatious.

Leave to amend the pleadings was granted.

The applicant target company sought specific performance of a share purchase agreement after the respondent purchaser refused to close, citing the COVID-19 pandemic.

The purchaser alleged breaches of the Material Adverse Effect (MAE), ordinary course, amortization event, and access to information covenants.

The court found that while the pandemic threatened earnings, it fell within the MAE's emergency carveout and did not disproportionately affect the target.

The target's pandemic responses, including branch access changes and accounting adjustments, were within the ordinary course of business for an economic downturn.

The court ordered specific performance of the agreement.

The parties sought a consent adjournment of a fixed trial date in a 19-year-old breach of contract action.

The parties had repeatedly failed to comply with court-ordered timetables for discoveries and expert reports.

The court expressed dismay at the inordinate delay and multiple breaches of court orders.

Although reluctant, the court granted the adjournment because the case was not ready for trial without expert reports, but set a peremptory trial date and a strict timetable for the remaining steps.

The plaintiff appealed a decision declining to certify a negligent misrepresentation class action against underwriters of a secondary public offering.

A statutory misrepresentation claim against the issuer had already been certified on consent.

The Divisional Court allowed the appeal, finding the certification judge erred in concluding that a class proceeding was not the preferable procedure.

The Court held that resolving the common issues of duty of care, truth of the representation, and negligence in a single proceeding would significantly advance the claims, promote judicial economy, and improve access to justice compared to individual actions.

The defendants brought a motion for summary judgment to dismiss the plaintiff's claim regarding the unauthorized discharge of a mortgage held in his self-directed RRSP.

The court found that the plaintiff's claim against the third-party mortgagors was statute-barred under the Real Property Limitations Act, meaning the plaintiff suffered no recoverable loss from the defendants' actions.

Alternatively, the court found that the plaintiff had actually agreed to the discharge in 2007.

The action was dismissed, but the successful defendants were denied costs due to their failure to properly document the discharge and inform the plaintiff.

The plaintiff, a land developer, brought a motion for leave to issue a certificate of pending litigation (CPL) over one of the defendant's properties, 5318 Stouffville Road, based on a right of first refusal (ROFR) in a development management agreement.

The defendant opposed the motion, arguing the ROFR had terminated, was void for vagueness, or was not triggered as the property was part of a larger package.

The court found that while the plaintiff raised a triable issue regarding the ROFR, it failed to demonstrate the uniqueness of the land or that damages would be an inadequate remedy.

Considering the defendant's advanced age and reliance on the property for retirement, the court concluded that the harm to the defendant from a CPL outweighed the harm to the plaintiff, whose losses could be compensated by damages.

The motion for leave to issue a CPL was dismissed.

The plaintiff brought a motion to set aside an order quashing its appeal of a decision that refused to certify class action claims against certain defendants while certifying claims against others.

The Divisional Court held that under section 30 of the Class Proceedings Act, where an action is certified against some defendants but not others, the plaintiff requires leave to appeal the refusal.

Applying binding appellate authority, the court found that allowing an appeal as of right would unduly delay the certified proceeding.

The motion was dismissed.

The plaintiff sought to appeal an order that certified a class proceeding against some defendants but dismissed the certification motion against the defendant underwriters, allowing those claims to proceed individually.

The underwriters brought a motion to quash the appeal, arguing that leave to appeal was required under s. 30(2) of the Class Proceedings Act.

The plaintiff argued it had an appeal as of right under s. 30(1).

The Divisional Court held that because a class proceeding was certified and the claims against the underwriters were not dismissed on the merits but merely directed to proceed individually, the order was procedural and leave to appeal was required.

The motion to quash was granted.

However, the court granted the plaintiff's cross-motion for an extension of time to seek leave to appeal, finding the proposed appeal had some merit.

The plaintiffs appealed a Master's order dismissing their motion to set aside an administrative dismissal of their action against their investment advisors.

The action had been dismissed for delay after plaintiffs' counsel, who was suffering from severe health issues, failed to meet a set-down deadline and was unaware of the dismissal order for nearly two years.

The Divisional Court allowed the appeal, finding the Master made palpable and overriding errors of fact by concluding the delay was deliberate and that the plaintiffs had abandoned the action.

Applying a contextual approach, the Court held that the minimal prejudice to the defendants was outweighed by the severe prejudice to the plaintiffs of losing their right of action due to their counsel's inadvertence.

The plaintiff sought to certify a class action against a mining corporation, its executives, and its underwriters for misrepresentations in a short form prospectus related to a secondary public offering.

The corporate defendants consented to certification of the statutory misrepresentation claims.

However, the underwriters opposed certification of the common law negligent misrepresentation and negligence claims against them.

The court certified the action against the corporate defendants but dismissed the certification motion against the underwriters, finding that a class proceeding was not the preferable procedure due to the inevitability of individual trials on reliance and damages, and that the negligence claim failed to disclose a reasonable cause of action as it was subsumed by the negligent misrepresentation claim and did not establish a novel duty of care.

The appellant appealed the dismissal of his action for delay.

The action against the respondents was commenced in 2004 alleging wrongful disclosure of confidential financial information by an employee of Canada Permanent Trust Company to the RCMP during a criminal investigation.

By 2016, the action had not progressed beyond the pleading stage despite being subject to a common timetable with another related action (the RCMP Action).

The motion judge found the delay inexcusable, attributing it to the appellant's decision to prioritize the RCMP Action over the Canada Permanent Action.

The motion judge also found that a fair trial was no longer possible due to the death of a key witness.

The Court of Appeal upheld the dismissal, finding the motion judge's analysis was well-supported by evidence and that the appellant's failure to advance the action over 12 years, despite court orders for joint case management, constituted inexcusable delay.

The plaintiffs, Joseph and Anna Iacolucci, brought a motion to set aside a Registrar's dismissal order dated November 20, 2013, and to set a fresh timetable for their action against TD Waterhouse Canada Inc. and Carrie Anderson.

The action, commenced in 2007, alleged breach of contract, negligence, negligent misrepresentation, and breach of fiduciary duty related to investment losses.

The court dismissed the motion, finding that the plaintiffs failed to provide an adequate explanation for the inordinate delay of over six years, that the failure to meet the set-down deadline was not due to inadvertence, that the motion to set aside the dismissal was not brought promptly, and that the defendants suffered actual prejudice due to lost documents and faded memories.

The court emphasized the need to enforce timelines and the unfairness to the defendants in resurrecting the action after such significant delay and abandonment.

An appeal from a Superior Court of Justice decision was settled prior to judgment.

The Court of Appeal dismissed the appeal with no costs awarded to either party.

The defendants (Underwriters) sought leave to appeal an interlocutory order that allowed the plaintiff to amend its claim to add the Underwriters as defendants in a class action and admitted the plaintiff's expert evidence.

The Divisional Court dismissed the motion for leave to appeal, finding no good reason to doubt the correctness of the motions judge's decision regarding the admissibility of the expert evidence and the finding that the Underwriters would not suffer non-compensable prejudice by being added as parties.

The plaintiff brought a motion to strike the defendants' reply factum filed on a motion for leave to appeal.

The Divisional Court held that under Rule 61.03.1(11), a reply factum is only permitted where a new issue is raised by the responding party, not merely to provide a different perspective or reinforce points already made.

Finding that the reply factum addressed issues central to the leave motion rather than new issues, the court ordered the reply factum struck from the record.

The plaintiffs, having successfully appealed the dismissal of their class action as time-barred and obtained certification and leave to proceed, sought costs on a partial indemnity basis for the certification and leave motions.

The defendants argued for a significant reduction, citing an "indulgence" (nunc pro tunc order), costs for required steps, limitation period issues, expert reports, divided success, and comparable cases.

The court rejected the defendants' arguments, emphasizing the extraordinary nature of the case, the public interest in access to justice for complex class actions, and the substantial success achieved by the plaintiffs.

The court awarded the plaintiffs the full amount of costs claimed, $2,679,277.82, payable by the Canadian Imperial Bank of Commerce.

The plaintiff, LBP Holdings Ltd., brought a motion in a proposed securities class action to add the defendant's underwriters (Cormark Securities Inc. and Dundee Securities Limited) as party defendants following the original defendant's bankruptcy.

The plaintiff sought to assert five claims: primary market statutory, secondary market statutory, common law negligence, common law negligent misrepresentation, and unjust enrichment.

The court granted leave to add the underwriters for the common law negligence and negligent misrepresentation claims, finding them tenable.

However, the primary market statutory claim was time-barred, and the secondary market statutory claim was untenable as underwriters were not considered "experts" under Part XXIII.1 of the Securities Act.

The unjust enrichment claim was also dismissed as legally untenable due to a valid contractual basis for fees and the principle against shareholder derivative actions for corporate wrongs.

The plaintiff sued the defendants for negligence and breach of fiduciary duty regarding the transfer of shares.

The defendants pleaded that the plaintiff failed to mitigate her damages by not seeking a court order to freeze the account.

The plaintiff claimed she relied on her solicitor's advice.

The defendants then brought a third-party claim against the solicitor for contribution and indemnity under the Negligence Act.

The motion judge struck out the third-party claim as disclosing no cause of action.

The Court of Appeal dismissed the appeal, holding that a defendant cannot claim contribution from a plaintiff's solicitor for advice given regarding the mitigation of damages caused by the defendant's own wrong.