Harvey T. Strosberg

In a proposed class action arising from a train derailment, the defendants communicated directly with several putative class members during the pre‑certification stage and offered individual settlements in exchange for releases.

The plaintiffs sought disclosure of the releases, rescission of the settlements, and an order preventing further communications between the defendants and putative class members.

The court held that there was no evidence of misconduct or breach of the Rules of Professional Conduct because the communications were sent by the defendants rather than their counsel and there was no proof the defendants knew the recipients were represented.

However, to preserve the integrity of the proposed class proceeding, the court ordered disclosure of the releases and required the defendants to provide class counsel with copies of any future correspondence seven days before distribution while prohibiting communication with putative class members known to be represented.

Rescission of the settlements was refused due to the absence of evidence supporting grounds such as misrepresentation, duress, or unconscionability.

The defendants brought a motion seeking a second instalment of security for costs totaling approximately $894,960 in complex civil litigation involving a $100 million claim.

The court considered the plaintiffs’ financial circumstances, including the corporate plaintiff’s lack of assets and the impecuniosity of two individual plaintiffs.

Balancing the security for costs rule, an earlier order requiring $125,000 security, and access to justice concerns, the court held that requiring the large additional amount requested would be unjust.

However, recognizing the importance of a damages report for mediation and pre‑trial, the court ordered a limited additional payment of $25,000 as security for costs.

The defendants were granted liberty to seek further security should the plaintiffs’ financial circumstances change.

The appellants sought costs for their unsuccessful appeal against the dismissal of a summary judgment motion, arguing the appeal was necessary to establish that the motion judge's observations were obiter.

The Court of Appeal rejected this argument, noting the law was already well-established, and awarded costs to the respondents.

The respondents claimed $120,000, but the court fixed costs at $75,000 inclusive of disbursements and GST, finding the claimed amount excessive for a one-day appeal.

The defendants appealed a motion judge's decision refusing to stay an Ontario multi-jurisdictional class action in favour of a similar Saskatchewan class action that had been certified earlier.

The defendants argued that the principles of comity and full faith and credit constitutionally required the Ontario court to defer to the Saskatchewan certification order.

The Divisional Court dismissed the appeal, holding that the motion judge was not bound to stay the proceeding, particularly given a prior Ontario carriage decision that found the plaintiffs' counsel in the Saskatchewan action unsuitable to represent a national class.

The court also found that permitting two overlapping multi-jurisdictional class actions to proceed did not constitute an abuse of process.

The defendants sought leave to appeal an order certifying a class action regarding a defective medical product.

The defendants argued that the pleadings did not satisfy section 5(1)(a) of the Class Proceedings Act and that the litigation plan improperly provided for a reference to determine individual issues under section 25.

The Divisional Court denied leave to appeal, finding no conflicting decisions or reason to doubt the correctness of the certification judge's decision, and emphasizing the deference owed to judges managing class proceedings.

The defendants in a class action regarding payday loans appealed the dismissal of their renewed motion to stay the proceeding based on arbitration clauses in the loan agreements.

They argued that recent Supreme Court of Canada decisions changed the law, entitling them to a stay despite their previous unsuccessful stay motion.

The Court of Appeal dismissed the appeal, holding that the doctrine of issue estoppel applied.

The court exercised its discretion against allowing relitigation, finding that the plaintiffs' reliance on the prior determination and the advanced stage of the litigation outweighed the defendants' loss of the right to arbitrate.

The testator bequeathed his shares in a family business to his sister.

A brother challenged the bequest, arguing it violated a shareholders' agreement restricting share transfers.

The trial judge found the bequest null and void.

On appeal, the Court of Appeal held that contractual obligations do not constrain a person's ability to bequeath property by will.

Under section 67(2) of the Business Corporations Act, the estate trustees are entitled to be treated as registered security holders.

While the estate trustees are bound by the shareholders' agreement and cannot immediately distribute the shares without compliance, this does not render the bequest void.

The appeal was allowed.

The appellants appealed the dismissal of their motion to certify a class action against the respondent bank for allegedly charging undisclosed and unauthorized fees on foreign currency credit card transactions.

The motion judge had refused certification on the basis that compensatory damages could not be determined on a class-wide basis, as it would require individual assessments of how each cardholder would have behaved had the fees been disclosed.

The Court of Appeal allowed the appeal, finding that the motion judge erred in applying a tort-like approach to assessing damages for breach of contract.

The Court held that an aggregate assessment of damages was possible under section 24 of the Class Proceedings Act, 1992, and that a class proceeding was the preferable procedure.

The plaintiff commenced a proposed class action in Ontario against Money Mart and its American parent company, Dollar Financial, alleging they charged criminal interest rates on pay-day loans.

Dollar Financial appealed a motion judge's decision dismissing its motion to set aside service ex juris and stay the action for lack of jurisdiction.

The Court of Appeal dismissed the appeal, finding a good arguable case against Dollar Financial based on alter ego, conspiracy, and unjust enrichment theories.

Applying the Muscutt factors, the Court held there was a real and substantial connection between Dollar Financial and Ontario, giving the Ontario court jurisdiction.

The defendants appealed the dismissal of their motion to stay a proposed class action in favour of arbitration.

The plaintiff brought a motion to quash the appeal, arguing it was precluded by s. 7(6) of the Arbitration Act.

The Court of Appeal granted the motion to quash, finding that the motions judge's decision was interlocutory because she deferred the final determination of whether the dispute should be arbitrated to the certification stage of the class proceeding.

As the order was not final, s. 7(6) of the Arbitration Act applied to bar the appeal.

The appellants appealed a trial judgment dismissing their claim for adverse possession of a parking space between 1984 and 1995.

The Court of Appeal noted disagreement with the trial judge's definition of adverse possession but upheld the result, finding no palpable and overriding error in the trial judge's rejection of the appellants' evidence regarding the extent of their use of the space.

The appeal was dismissed with costs fixed at $7,500.

The appellants appealed a trial judgment dismissing their claims regarding interests in an estate under the doctrine of mutual wills, constructive trust, and as beneficiaries of a family trust.

The trial judge found no agreement to execute mutual wills and upheld the trustee's encroachment on the trust in favour of another beneficiary, finding it was done in good faith to protect family businesses.

The Court of Appeal dismissed the appeal, holding that the trial judge's detailed findings of fact and credibility assessments were well supported by the evidence and no palpable and overriding error was demonstrated.

The appellant appealed an order granting summary judgment that dismissed his claim against Linamar for intentional interference with economic relations.

The Court of Appeal allowed the appeal, finding that the record contained evidence of actions and documents involving Linamar such that it could not be said there was no genuine issue for trial.

The summary judgment was set aside, and costs of the appeal were fixed at $10,000.

The appellants appealed an order interpreting Articles 5 and 8.09 of a Companies' Creditors Arrangement Act plan of compromise.

The Court of Appeal dismissed the appeal, finding that the motion judge's interpretation was reasonable, fostered a fair and efficient administration of the plan, and was entitled to deference given his familiarity with the complex negotiating process.

A claim for rectification advanced for the first time on appeal was also dismissed for lack of an evidentiary basis.

The appellants, minority shareholders of a Manitoba broadcasting corporation, brought an action in Ontario seeking an oppression remedy under the Canada Business Corporations Act against the majority shareholder and its affiliates.

The motions judge stayed the action, finding Ontario lacked jurisdiction and that Manitoba was the convenient forum.

On appeal, the Court of Appeal held that the motions judge erred in applying the real and substantial connection test to defendants present in Ontario, and found that Ontario did have jurisdiction over all defendants, including the extra-provincial defendant.

However, the Court upheld the stay on the basis that Manitoba was clearly the more convenient forum, as the dispute primarily concerned the internal management of a Manitoba corporation.

The deceased, knowing he was terminally ill, secretly transferred his business assets and the matrimonial home to his children to defeat his wife's equalization claim under the Family Law Act.

After his death, the wife elected to take an equalization payment rather than her legacy under the will and sought to set aside the transfers under the Fraudulent Conveyances Act.

The Court of Appeal upheld the trial judge's decision setting aside the transfers, finding that the wife qualified as a 'creditor or other' under the Fraudulent Conveyances Act because she had an imminent right to apply for equalization at the time of the transfers.

The Court confirmed that the Family Law Act does not oust the operation of the Fraudulent Conveyances Act.

The defendants in a proposed class action appealed a motions judge's decision refusing to compel the proposed plaintiffs to answer questions about an alternative compensation scheme.

The Divisional Court held that 'procedure' in s. 5(1)(d) of the Class Proceedings Act includes alternative dispute resolution methods outside the court system.

However, the court dismissed the appeal, finding that whether an alternative method is preferable is an objective determination for the motions judge, and little is gained by asking the proposed plaintiffs for their opinion on the matter.

The appellants challenged a municipal resolution passed by the City of Sarnia authorizing a judicial inquiry into certain land transactions involving the former Town of Clearwater.

The appellants argued that the resolution was vague, lacked particularity, and was a colourable attempt to conduct a substitute police investigation, thereby infringing the federal criminal law power.

The Supreme Court of Canada dismissed the appeal, holding that the resolution was validly enacted under s. 100(1) of the Municipal Act, as it was directed at matters of municipal good governance and public business.

The Court also upheld the quashing of summonses issued to city officials, finding that the subjective intent of individual councillors was irrelevant to the validity of the resolution.

Following the dismissal of a human rights complaint alleging discrimination in dental services on the basis of handicap (AIDS), the respondent sought costs under s. 40(6) of the Human Rights Code.

The Board of Inquiry found that the complainant acted in bad faith by being untruthful about central matters, including the respondent's offer to treat him at the end of the day.

While the Commission did not act in bad faith, it failed to adequately investigate the complaint or seek professional medical advice regarding treatment protocols.

The combination of the complainant's bad faith and the Commission's investigative failures caused undue hardship to the respondent.

Costs were awarded to the respondent on a solicitor-client basis, up to a maximum of $80,000.

The complainant, a person living with AIDS, alleged that the respondent dentist discriminated against him by refusing or delaying dental treatment because of his handicap.

The Board of Inquiry found that AIDS is a handicap under the Human Rights Code.

However, the Board concluded that the respondent did not refuse treatment but merely postponed it to the end of the day.

The Board held that the postponement was justified under section 16 of the Code because proper dental procedure for an AIDS patient required consultation with a physician and a deeper cleaning performed by the dentist rather than a hygienist, which could not be accommodated during the originally scheduled appointment without undue hardship.