Ian W. Thompson

Three defendants each brought motions to compel the plaintiff railway company to answer questions refused on examination for discovery in an action arising from a 2020 train derailment involving a tanker car with a defective wheelset.

The court assessed relevance and proportionality of the requested questions, ordering the plaintiff to answer 4 of 12 questions sought by the railway manufacturer, 1 of 9 sought by the tanker car owner, and 3 of 4 sought by the shipper.

Costs followed the divided success, with the tanker car owner ordered to pay $5,000 to the plaintiff and the plaintiff ordered to pay $7,500 to the shipper.

The decision grants the motion of Saad Khalid S. Al Jabri for leave to issue a commission and letters of request to obtain evidence from witnesses outside Ontario for use at trial.

The court finds that the anticipated evidence of the proposed witnesses is material to issues in the action, and that the request is bona fide.

The ruling addresses the test for issuing commissions and letters of request, emphasizing the importance of a fair and full trial, and applies the test to several categories of proposed witnesses, including alleged co-conspirators, foreign officials, and counterterrorism experts.

This decision addresses a motion by the plaintiffs for production and directions regarding claims of privilege over thousands of documents and answers to questions refused on discovery in a complex, multi-party commercial litigation.

The court reviews the legal principles governing solicitor-client privilege, litigation privilege, and common interest privilege, and applies them to various categories of documents and questions.

The court provides detailed directions on the production of documents, the sufficiency of evidence to support privilege claims, and the process for resolving ongoing disputes about privilege.

This is a costs endorsement following the dismissal of the plaintiffs' contempt motion against two defendants, Saad Aljabri and Mohammed Aljabri.

The plaintiffs had sought a contempt order for alleged breaches of a Mareva Order, with potential sanctions including striking defences and default judgments for billions of dollars.

The defendants, as successful parties, sought substantial indemnity costs.

The court declined to award substantial indemnity costs, finding the plaintiffs' conduct was not reprehensible, scandalous, or outrageous, nor did they pursue the motion for an improper tactical advantage.

The court awarded partial indemnity costs to the defendants for the contempt motion.

Additionally, the court fixed costs for several preliminary motions, with mixed success for the parties, rejecting a "distributive costs" approach for the contempt motion itself but fixing costs for each preliminary motion separately.

The plaintiffs moved to compel the defendants, Saad Aljabri and Mohammed Aljabri, to produce law firm trust ledgers and to answer certain questions from examinations.

The court held that trust ledgers are presumptively protected by solicitor-client privilege and that the plaintiffs failed to rebut this presumption.

The court further concluded that the "crime/fraud" exception to solicitor-client privilege does not apply to civil wrongs, including civil fraud, following the principle of horizontal stare decisis.

Consequently, the motion to compel production of trust ledgers was dismissed.

The motion to compel Mohammed Aljabri to answer undertakings and other questions was allowed, subject to redactions for privileged information in bank statements.

The plaintiffs, a group of private companies, brought a motion seeking to find Dr. Saad Aljabri and his son, Mohammed Aljabri, in contempt of court for allegedly breaching a Mareva Order.

The plaintiffs claimed the defendants used assets frozen under the Mareva Order to pay for legal and living expenses, arguing that a purported gift of assets from Dr. Aljabri to Mohammed before the order was a fiction.

The defendants contended that the Mareva Order did not clearly apply to the gifted assets and that the gift was valid.

The court dismissed the plaintiffs' motion, finding that they failed to prove beyond a reasonable doubt that the Mareva Order clearly and unequivocally applied to the purportedly gifted assets, or that Dr. Aljabri retained an interest in or control over them.

The court emphasized the high standard of proof (beyond a reasonable doubt) required for civil contempt and that findings from prior civil proceedings (e.g., 'badges of fraud' on a balance of probabilities) do not shift the burden of proof in quasi-criminal contempt proceedings.

This motion concerned a request for a stay pending appeal of a judgment secured by Lithium Royalty Corporation (LRC) after a bifurcated liability hearing in a breach of contract action.

The moving parties (Orion entities) sought a full stay of the underlying action and their appeal.

The court dismissed the motion for a full stay of the underlying action but granted a partial stay against two specific respondents, Bellatrix Ltd. and Orion Mine Finance (Master) Fund I LP, preventing enforcement actions without leave, due to the apparent strength of their appeals regarding corporate separateness.

The court also ordered a stay of the appeal itself (COA-23-CV-1029) pending the conclusion of the underlying trial to promote judicial efficiency and avoid multiplicity of proceedings.

The defendant brought a motion to strike a paragraph in the plaintiff's reply that referenced a Transportation Safety Board (TSB) investigation into a train derailment.

In response, the plaintiff brought a cross-motion to amend the paragraph.

The court granted the motion to strike and dismissed the motion to amend, finding that the proposed amendment did not meet the requirements for a reply, pleaded evidence rather than material facts, and was scandalous and prejudicial as it improperly implied wrongdoing based on the mere existence of a TSB investigation.

The defendants brought a motion for leave to appeal an order of King J. dated February 1, 2023.

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

This is a costs endorsement following a successful motion by Infinitus (defendant) to stay an action brought by Justmark (plaintiff) due to an arbitration clause.

The court also addressed costs for earlier motions dismissed by consent, where Infinitus Innovations (a related entity) was involved.

The court fixed partial indemnity costs for Infinitus Innovations for the January motions at $35,000 and for Infinitus for the stay motion at $19,500.

The court rejected Justmark's arguments to defer costs to arbitration or for substantial indemnity costs, emphasizing that substantial indemnity is reserved for rare cases of sanctionable behavior.

The defendants brought a motion to stay the plaintiff's breach of contract action on the basis of an arbitration clause requiring disputes to be arbitrated in Hong Kong.

The plaintiff argued the arbitration clause was inoperative because the defendants had waived their right to arbitrate through uncooperative conduct.

The court found no waiver, as there was no evidence the defendants had an unequivocal and conscious intention to abandon their right to arbitrate.

The action was stayed and the parties were referred to arbitration.

The plaintiff in a price-fixing class action sought approval of a settlement with the sole individual defendant.

The settlement provided no monetary compensation but required the defendant to provide extensive cooperation, including an evidentiary proffer, interviews, document exchange, and trial testimony.

The court approved the settlement under s. 29 of the Class Proceedings Act, finding it fair, reasonable, and in the best interests of the class, as the defendant's inside information offered significant strategic value against the remaining corporate defendants.

The plaintiffs in a price-fixing class action regarding electrolytic capacitors moved for court approval of a $5.9 million settlement with the Panasonic defendants, as well as approval of class counsel fees and disbursements.

The court found the settlement, which included significant cooperation from the settling defendants, to be fair, reasonable, and in the best interests of the class.

The court also approved the retainer agreements and the requested class counsel fees of $1,487,500 (25% of the settlement) and disbursements of $141,866.96, noting the complexity and risk of the litigation.

The plaintiff in a class action alleging a price-fixing conspiracy regarding film capacitors moved for approval of a settlement with the Panasonic defendants and for approval of class counsel fees.

The court found the $1.35 million settlement, which included valuable cooperation from the settling defendants, to be fair and reasonable despite being heavily discounted from the estimated exposure.

The court also approved the requested class counsel fees of 25% of the settlement, but ordered the payment to be split into two installments to incentivize counsel to advance the litigation more expeditiously.

The defendant, Integral Development LLC, moved to set aside a default judgment of $8.05 million arising from a failed commercial real estate transaction.

The defendant argued it had a plausible excuse for failing to defend the action and an arguable defence on the merits, specifically that a condition in the agreement of purchase and sale was never met.

The court applied the five-factor test for setting aside a default judgment and found that the defendant's excuse was plausible and its defence had an air of reality.

The court exercised its discretion to set aside the default judgment, allowing the defendant to defend the claim on its merits.

The applicant, 2303757 Ontario Inc. ("230"), sought forfeiture of a $200,000 deposit held in trust by Bratty's LLP following a failed real estate transaction.

The respondent, 2149589 Ontario Inc. ("214"), claimed entitlement to the funds, arguing they were its money, paid without its full authorization, and that 230 was not a bona fide purchaser for value without notice.

The court found that the funds constituted a deposit subject to the Agreement of Purchase and Sale (APS), that 230 became a bona fide purchaser for value without notice when the agreement terminated due to the buyer's breach, and that 230 acquired an absolute interest in the funds at that time, regardless of whether they were physically in its hands.

The application for forfeiture was granted.

The applicant sought to stay the tax sale of his commercial condominium due to property tax arrears, claiming he was entitled to tax relief for sickness or extreme poverty.

The respondent municipality brought a cross-motion to dismiss the application based on a prior settlement agreement.

The court found that the parties had reached a binding settlement to dismiss the application without costs.

Furthermore, the court held that the applicant's underlying claim for tax relief fell within the exclusive jurisdiction of the Assessment Review Board, and the applicant failed to meet the test for an interlocutory injunction.

The application was dismissed.

The union filed a grievance asserting that Privacy Officers employed by the Workplace Safety and Insurance Board should be included in the 'all employee' bargaining unit.

The employer argued they should be excluded under the Crown Employees Collective Bargaining Act due to a conflict of interest arising from their duties, which involve privacy compliance, investigating privacy breaches, and advising management.

The Grievance Settlement Board found that the Privacy Officers do not exercise managerial functions or act in a confidential capacity regarding labour relations.

Their duties do not create a conflict of interest with being members of the bargaining unit.

The grievance was allowed, and the Privacy Officers were included in the bargaining unit.

The union filed a grievance regarding whether Privacy Officers employed by the Workplace Safety and Insurance Board are members of the bargaining unit.

Following a hearing, the arbitrator issued a bottom-line decision finding that the five persons currently employed as Privacy Officers are Crown employees and are included in the bargaining unit under the collective agreement's recognition clause.

Written reasons were to follow.

The applicant filed a duty of fair representation complaint against the union, seeking compensation for a specific period following an arbitration award.

At the consultation hearing, the union undertook to remit the compensation issue back to the arbitrator, and the employer agreed not to object.

Based on these undertakings, the Board adjourned the application sine die for a period not exceeding one year.