Ian C. Matthews

A payment processing company appealed sanctions imposed after it was found in civil contempt for repeatedly obstructing a court-ordered audit obtained by mandatory injunction under a commercial services agreement.

The appellant argued the penalties were disproportionate, challenged the direction to pay audit costs into court, and sought leave to appeal the contempt-motion costs order.

The Court of Appeal dismissed the appeal, holding the arguments depended on unappealed factual findings that the appellant intentionally obstructed the audit and that no basis existed to interfere with the sanctions or the costs order.

The court allowed the cross-appeal, holding that r. 60.11(6) of the Rules of Civil Procedure is not confined to cases where the officer or director has already been found personally in contempt, and remitted the issue of joint and several liability of the sole officer and director for redetermination.

Two consolidated appeals concerning the interpretation of leave provisions in certification orders for class actions relating to trailing commissions paid to mutual fund managers.

The appellants (mutual fund managers) argued that new class actions commenced by different plaintiffs on behalf of different classes should have required leave under the certification orders because they related to the same subject matter.

The motion judge and Court of Appeal held that the leave requirement applied only to proceedings by the certified class members and parties to the original actions, not to new plaintiffs seeking to represent different classes.

The court dismissed the appeals, affirming that the leave provisions were limited in scope to the parties and class members bound by the original certification orders.

The Court of Appeal for Ontario considered a motion by Peoples Trust Company (PTC) to partially lift the automatic stay of a penalty order requiring PSP Services Inc. (PSP) to pay $1,998,612.07 into court, pending appeal.

The court reviewed the context and the three-part test for lifting a stay, finding that all factors weighed in favour of granting the motion.

The stay was lifted, and PSP was ordered to pay the funds into court.

Costs were set at $7,500.

The Court of Appeal for Ontario granted the moving party, M.H., several orders following the administrative dismissal of O.K.'s family law appeal.

The court awarded costs for motions, declared the costs awards to be "support orders" under the Family Responsibility and Support Arrears Enforcement Act, 1996, and directed the issuance and enforcement of support deduction orders.

The decision clarifies the enforceability of costs awards as support orders and the process for their enforcement through the Family Responsibility Office.

The plaintiff, an acquirer bank, sought an interlocutory mandatory injunction to enforce its contractual right to audit the defendant, a payment operator, after the defendant terminated their agreement and invoked a de-conversion process.

The defendant brought a cross-motion for a mandatory injunction requiring the plaintiff to release funds it had moved from settlement accounts to reserve accounts, alleging breach of trust.

The court granted the plaintiff's motion, finding a strong prima facie case that the audit right survived during de-conversion and that the loss of the right constituted irreparable harm.

The defendant's cross-motion was dismissed as it failed to establish a strong prima facie case or irreparable harm, and there was no basis to find the settlement accounts were trust funds.

The Applicant, a dissenting shareholder, sought costs on a full indemnity basis after successfully obtaining an order fixing the fair value of his shares.

The court had previously ordered the Respondent to pay $63,000 for the shares.

The Applicant argued that the Respondent failed to comply with s. 185(15) of the Ontario Business Corporations Act (OBCA) by offering zero for the shares, which would trigger full indemnity costs under s. 185(21).

The court found that the Respondent's offer of zero, accompanied by an explanation, did comply with s. 185(15) and therefore, the costs consequences of s. 185(21) were not triggered.

The court awarded costs on a partial indemnity scale, fixing them at $99,951.75, after considering the factors in Rule 57.01 of the Rules of Civil Procedure, the complexity of the case, and the proportionality of the costs claimed relative to the amount at issue.

The plaintiffs appealed the dismissal of their motion to certify a class action against several discount brokers regarding the receipt of mutual fund trailing commissions.

The motion judge had found no basis in fact for the core proposed common issue of whether the receipt of such commissions contravened applicable Canadian securities law prior to their explicit prohibition in 2022.

The Divisional Court dismissed the appeal, finding that the motion judge correctly applied the 'some basis in fact' test, properly concluded that all pleaded causes of action relied on the allegation of illegality, and appropriately held the plaintiffs to their strategic concession that the entire action would fail if the core issue was not certified.

The moving party sought leave to appeal an order of Justice Barbara Conway dated September 16, 2023.

The Divisional Court dismissed the motion for leave to appeal.

Costs were fixed at $4,500 payable by the moving party to the respondent.

The Court of Appeal for Ontario heard a motion to quash an appeal.

The underlying order, which was the subject of the appeal, concerned the validity of service on the appellant.

The Court determined that orders relating to the validity of service are interlocutory, and therefore, the Court of Appeal lacked jurisdiction to hear the appeal.

The motion to quash was allowed, and the appeal was quashed.

The Court noted that the appellant should not be prejudiced by the delay in bringing the matter before the Divisional Court, and counsel for the respondent agreed not to object to a timely extension of time for a motion for leave to appeal in the Divisional Court.

The plaintiffs brought a motion to certify a class action against seven discount brokers, alleging that their receipt of mutual fund trailing commissions prior to the 2022 prohibition was illegal.

The court found that the plaintiffs failed to satisfy the 'some evidence' requirement to show that the practice contravened applicable Canadian securities law.

The evidence filed by the plaintiffs themselves demonstrated that the practice, while controversial, was not illegal before the regulatory amendments took effect.

The motion for certification was dismissed.

The plaintiffs in two putative class actions sought leave to discontinue one action entirely and partially discontinue the second against all but one defendant group.

This procedural step aimed to streamline the proceedings by converting omnibus actions into separate class proceedings against distinct defendant groups.

The defendants did not oppose the requests.

The court granted leave for both discontinuances, recognizing the efficiency gains.

The plaintiff hospital brought an action against the defendant contractor for damages resulting from an over-humidification event that damaged operating room equipment.

The plaintiff alleged the defendant failed to properly install an air handling unit by omitting a required interlock between the supply fan and humidifier.

The defendant argued the damage was caused by hospital staff manually overriding the system.

The court found the defendant liable for breach of contract due to the installation deficiency and failure to train hospital staff, awarding the plaintiff full damages of $908,345.13.

The moving party brought a motion for leave to appeal an order of the Superior Court of Justice.

The Divisional Court dismissed the motion for leave to appeal and awarded costs to the responding party in the amount of $5,000.

The moving parties, Her Majesty the Queen in Right of Ontario and the Ontario Lottery and Gaming Corporation, brought a motion for leave to appeal the order of Emery J. dated January 29, 2021.

The Divisional Court dismissed the motion for leave to appeal and awarded costs to the responding parties fixed at $2,500.

The plaintiff brought a motion to certify a class action against BMO Investments Inc. on behalf of investors who held BMO Mutual Funds through discount brokers.

The plaintiff alleged that BMO Investments improperly paid trailing commissions to discount brokers out of mutual fund assets, despite discount brokers providing no investment advice.

The court found that the plaintiff's claims for breach of trust, breach of fiduciary duty, breach of contract, breach of the Trustee Act, prospectus misrepresentation, and unjust enrichment all disclosed viable causes of action.

The court certified the class action, including a common issue for aggregate damages, and set the class end date as the date of the certification order.

The plaintiffs brought a motion for the production of a Cooperation and Common Interest Agreement between the defendants.

The plaintiffs sought the agreement to support their argument that the defendants mounted a joint defence, which would affect the apportionment of costs following summary judgment motions.

After reviewing the agreement in camera, the court dismissed the motion, finding that the document was protected by privilege.

The defendants brought a motion for leave to appeal an order made by Madam Justice L.C. Sheard on April 6, 2020.

The Divisional Court dismissed the motion for leave to appeal and awarded costs to the plaintiffs in the amount of $4,000.

The defendant in a proposed class action regarding mutual fund trailing commissions sought a direction that its proposed summary judgment motion be heard concurrently with the plaintiff's certification motion.

The court dismissed the request, finding that the summary judgment motion would require significant responding evidence, lengthy cross-examinations, and would increase expense and delay.

The court held that hearing the certification motion first would be more efficient and could narrow the issues for any subsequent summary judgment motion.

The plaintiffs, standardbred horse breeders, sued Ontario and the Ontario Lottery and Gaming Corporation (OLG) for breach of contract, negligence, and negligent misrepresentation following the cancellation of the Slots at Racetrack Program (SARP).

The defendants moved for summary judgment to dismiss the action, and the plaintiffs cross-moved for summary judgment on liability.

The court held that the Crown Liability and Proceedings Act (CLPA) retroactively extinguished the plaintiffs' tort claims because the cancellation of SARP was a policy decision made in good faith.

However, the court found that the 1998 Letter of Intent establishing SARP was a binding contract.

Applying the principled exception to the doctrine of privity, the court held that the plaintiffs had standing to enforce the contract.

The court granted summary judgment to the plaintiffs against Ontario for breach of contract, finding that Ontario breached an implied term to provide reasonable notice of termination.

The action against OLG was dismissed.

The defendants brought a motion under Rule 21.01(1)(a) and (b) to strike portions of the plaintiffs' Amended Amended Statement of Claim.

The claims at issue included breach of trust, misappropriation, defalcation, and relief under the Bankruptcy and Insolvency Act (BIA) and Assignments and Preferences Act (APA), as well as interim relief.

The court dismissed the motion to strike the breach of trust, misappropriation, and defalcation claims, finding they were not plainly obvious to fail.

However, claims for declaratory relief under the BIA and claims under the APA were struck as premature, as were claims relying on an unproclaimed section of the Construction Act.

The court also dismissed the defendants' request for a declaration that deposits were forfeited, deeming it a mixed question of fact and law unsuitable for determination at the pleadings stage.