Ian Matthews

The court considered the appropriate penalty for PSP Services Inc.'s contempt of court for failing to cooperate with an audit as required by contract and court orders.

The court found repeated, prolonged, and unremedied contempt, and ordered the appointment of Ernst & Young as investigative receiver, required PSP to pay increased audit costs into court, and awarded substantial indemnity costs to Peoples Trust Company.

This costs endorsement addresses the aftermath of a motion to strike the defendants’ statement of defence for failure to attend examinations for discovery.

The court had previously dismissed the motion to strike but awarded the plaintiffs partial costs thrown away.

The parties could not agree on costs, and both made written submissions.

The court ultimately found that, given the divided result and the defendants’ prior waiver of costs, each party should bear its own costs of the motion.

The respondent, Framatome Canada, moved to quash the appellant's appeal of an associate judge's order regarding document production, arguing the order was interlocutory and brought in the wrong court.

The appellant cross-moved to transfer the appeal to the Superior Court of Justice.

The court agreed that the underlying order was interlocutory and that it lacked jurisdiction to hear the appeal.

However, rather than dismissing the appeal, the court granted the cross-motion to transfer the matter to the Superior Court of Justice.

Costs of both motions were reserved to the judge hearing the appeal.

The plaintiff, Peoples Trust Company, brought a motion for a finding that the defendant, PSP Services Inc., was in contempt of court for failing to comply with court orders requiring cooperation with an audit and the deconversion process following the termination of their Acquiring Services and Sponsorship Agreement.

The court found that PSP intentionally frustrated and delayed the audit process, failed to comply with orders to provide documentation, and did not cooperate with the deconversion process.

The court found PSP liable for civil contempt, declined to appoint an investigative receiver at this stage, and reserved the issue of penalty and costs to a later hearing.

The plaintiffs brought a motion to strike the defendants' statement of defence and for costs thrown away after the defendants failed to attend scheduled examinations for discovery.

The court found that the defendants' non-attendance was due to their former counsel's inadvertent misunderstanding of the schedule, rather than a deliberate flouting of a court order.

The motion to strike was dismissed, as the draconian remedy was not warranted and the defendants offered to cure the default.

However, the court awarded the plaintiffs $15,823.77 in costs thrown away for the wasted preparation time and disbursements related to the missed examinations.

The defendants in several related class actions brought motions for summary judgment, arguing that the plaintiffs' actions were statute-barred by limitation periods or were a nullity for failing to obtain leave to commence.

The court adjourned the limitation period motions, finding they overlapped with common issues in earlier certified class actions.

The court dismissed the motions based on the leave requirement, interpreting the certification orders' leave provisions as applying only to competing class actions representing the same class members, not to actions by different classes arising from the same factual matrix.

The applicant, Framatome Canada, brought a motion seeking disclosure and production of company documents retained by the respondent, William Cooper, after his termination, along with a list of retained files, re-attendance for cross-examination, and leave to amend its notice of application.

Cooper opposed, arguing the motion was an abuse of process and that he had an agreement to retain the documents.

The court granted Framatome Canada's motion, finding the documents relevant for testing Cooper's assertions and that the motion was not an abuse of process.

The plaintiff in a certified class action moved to amend the class definition to extend the class period from May 18, 2021, to May 31, 2022.

The defendant opposed, arguing that claims of proposed new class members accruing after the original certification date were statute-barred and not tolled by s. 28 of the Class Proceedings Act, 1992.

The court granted the plaintiff's motion to amend the class definition, finding that while s. 28 does not toll limitation periods for claims accruing after certification for individuals who were not putative class members at the time of certification, the issue of discoverability for these new members should be left to the individual issues phase of the proceeding.

The court also approved the proposed notice plan.

The plaintiff brought a motion seeking the recognition and enforcement of a foreign arbitral award issued by CIETAC against the defendant for over $233 million CAD.

The defendant argued the motion constituted an improper partial summary judgment because the plaintiff's action also included a second stage seeking declarations against the defendant's wife regarding Ontario real properties.

The court recognized the arbitral award, finding no grounds to refuse enforcement under the International Commercial Arbitration Act, 2017, and held that partial summary judgment was appropriate as the recognition issue was discrete and would not cause delay or risk inconsistent findings.

The plaintiffs brought motions seeking a further and better affidavit of documents, a monetary sanction for repeated breaches of court-ordered discovery deadlines and an agreed discovery plan, and an order striking the defendants' responding affidavit.

The court declined to strike the affidavit, holding that even if parts of it engaged settlement privilege concerns, the plaintiffs had not shown the criteria under rule 25.11 were met.

The court granted a further and better affidavit of documents under rule 30.06(b), finding the negotiated discovery plan and the production record established that relevant documents likely existed and had been omitted.

The court also imposed an $8,500 sanction for breaches of court orders and fixed motion costs at $30,000 all inclusive payable to the plaintiffs.

The applicant, a dissenting shareholder, sought a declaration that he owned 900,000 shares in a junior mining company prior to its amalgamation, and an order fixing the fair value of those shares.

The respondent argued the applicant's shareholdings were limited by an Anti-Dilution Agreement.

The court found the applicant was the registered holder of 900,000 shares and had a statutory right to dissent under s. 185 of the OBCA, unconstrained by the contractual agreement for the purpose of valuation.

The court fixed the fair value of the shares at $0.07 per share based on expert evidence of comparable junior mining companies.

The applicant's claim for oppression was dismissed.

The defendant brought a motion to dismiss the proposed class proceeding for delay under s. 29.1 of the Class Proceedings Act, 1992.

The plaintiff argued that an exchange of emails between counsel constituted an agreed timetable, or alternatively, that the court should exercise discretion to refuse the dismissal.

The court found that no timetable was agreed upon or filed with the court, and that the mandatory dismissal provision must be applied as written.

The motion was granted, the action was dismissed, and the plaintiff was ordered to pay costs.

The plaintiffs sought leave to amend their statement of claim to significantly increase the damages claimed (from $60 million to $662 million) and to elaborate on the theoretical basis for these damages, including through the application of unjust enrichment.

This motion followed a prior summary judgment that established Ontario's liability for breach of contract, with damages to be assessed.

The defendant, Ontario, opposed the amendments, arguing they were barred by res judicata (issue and cause of action estoppel), abuse of process, and constituted a collateral attack, particularly concerning the unjust enrichment claim which was subject to a pending appeal.

The court granted leave for most amendments, finding no non-compensable prejudice.

It clarified that while the unjust enrichment claim as a cause of action was under appeal and could not be bolstered, the amendments could be used to plead theories of damages for the existing contract claim.

Following a successful motion by the defendant to strike the plaintiff's statement of claim with leave to amend, the court determined the appropriate costs award.

The moving party sought over $43,000 on a partial and substantial indemnity basis, relying on an offer to settle.

The court found the offer to settle was less favourable than the outcome because it did not contemplate leave to amend, and thus awarded costs on a partial indemnity scale.

Applying the factors under Rule 57.01, the court fixed costs payable by the plaintiff to the moving party at $23,969.22.

The defendants brought a motion seeking dismissal or stay of certain claims, setting aside service on individual defendants, and striking specific pleadings.

The court struck claims made by trust plaintiffs (with leave to add trustees), unjust enrichment claims (with leave to amend), breach of trust claims (with leave to amend), and pleadings regarding pre-contractual representations (with leave to amend).

Crucially, the oppression remedy claims against all defendants were struck without leave due to a lack of jurisdiction, as neither corporate defendant was governed by the OBCA, and service on the individual defendants was set aside.

The plaintiffs were granted 30 days to amend their Statement of Claim for the claims struck with leave.

The corporate defendant brought a motion to strike the plaintiff's statement of claim against it for disclosing no reasonable cause of action and to dismiss the oppression remedy claims for lack of jurisdiction.

The plaintiff alleged breach of an oral agreement for equity in a visual effects studio, conversion, fraudulent misrepresentation, and oppression.

The court found the plaintiff failed to plead any material facts establishing that the corporate defendant owed obligations under the agreement or engaged in wrongful conduct.

The statement of claim was struck with leave to amend, and the oppression claims were dismissed as the court lacked jurisdiction over the discontinued corporation.

The plaintiffs brought a motion for a Mareva injunction (asset freezing order) against several defendants, alleging a complex commercial fraud involving misappropriated funds, illicit acquisition fees, and kickbacks across multiple real estate development projects.

While the court found a strong prima facie case of fraud against the defendant Lee regarding his receipt of concealed acquisition fees, it found no such case against the other responding defendants.

Ultimately, the court dismissed the motion against all defendants because the plaintiffs failed to establish a real risk of asset dissipation, irreparable harm, or that the balance of convenience favoured granting the extraordinary remedy.

VMedia sought a declaration that its new internet retransmitting service, which simultaneously retransmits over-the-air television signals, does not infringe Bell's copyrights in CTV programming.

VMedia argued it was entitled to a compulsory license under section 31 of the Copyright Act because it operated under its Broadcast Distribution Undertaking licenses rather than the CRTC's New Media Exemption Order.

The court found that VMedia's service is delivered and accessed over the internet, meaning it operates under the Exemption Order and is statutorily excluded from the compulsory licensing regime.

VMedia's application was dismissed, and Bell's counter-application for a declaration of copyright infringement and a permanent injunction was granted.

This costs decision followed a successful certification motion in a proposed class proceeding.

The moving party sought substantial indemnity costs after the date of a Rule 49 offer, arguing that the certification result met or exceeded the offer terms.

The court accepted that submission, adjusted counsel hourly rates to conform with the costs grid, removed a legal research disbursement, reviewed comparable historical certification costs awards, and fixed fair and reasonable costs at $175,000 all-inclusive.

After deducting prior costs awarded to the responding parties on a refusals motion, the court ordered payment of $161,500 forthwith.

On a certification motion in a proposed overtime class action against a federally regulated trucking employer, the court held that the claim was not framed as a misclassification case requiring individualized overtime entitlement determinations, but as a systemic challenge to the employer’s overtime policies, practices, and record-keeping.

Applying the s. 5(1)(c) commonality requirement under the Class Proceedings Act, 1992, the court found some basis in fact for most proposed common issues, including contractual incorporation of overtime obligations, alleged systemic avoidance of overtime, good faith duties, negligence-based record-keeping duties, unjust enrichment, the effect of an Assurance of Voluntary Compliance, class-wide liability, aggregate damages, and punitive damages.

The court refused to certify issues that depended on individual proof of actual overtime entitlement or that were too broad or unnecessary.

The action was certified as a class proceeding.