Ilan Ishai

The defendants brought a motion to strike the plaintiff's claim for restitution for unjust enrichment and disgorgement of profits, and a motion to bifurcate the trial on liability and damages.

The plaintiff alleged the defendants breached a settlement agreement regarding the market entry date of a generic drug.

The court dismissed the motion to strike, finding the pleaded facts were capable of supporting the restitutionary claims.

The court granted the motion to bifurcate, finding exceptional circumstances justified separating the liability issues from the complex quantification of damages.

The moving parties, acting as foreign representatives and trustees in bankruptcy, brought a motion for contempt against the responding party for failing to attend an examination as ordered.

The responding party brought a motion for the presiding judge to recuse herself, alleging a reasonable apprehension of bias based on the moving parties' submissions regarding the bankrupt's character.

The court dismissed the recusal motion, finding no objective basis for bias.

The court then granted the contempt motion, finding beyond a reasonable doubt that the responding party intentionally failed to comply with a clear and unequivocal order to attend the examination.

The responding party was given 10 days to purge his contempt.

The moving party sought a stay of an order requiring him to produce documents and attend an examination in a foreign main bankruptcy proceeding, pending his father's application in Hong Kong to annul the underlying bankruptcy order.

The court determined the order was interlocutory and applied the RJR-Macdonald test.

The court dismissed the motion, finding no serious issue to be tried, no irreparable harm to the moving party, and that the balance of convenience favoured the trustees.

The applicant sought a stay of production and examination orders pending his application for leave to appeal to the Supreme Court of Canada.

The applicant's father was adjudged bankrupt in Hong Kong, and foreign representatives obtained recognition of the Hong Kong bankruptcy proceeding in Ontario.

The applicant challenged the procedural regularity of the initial recognition order, arguing the bankrupt was not given proper notice.

The Court of Appeal granted a conditional stay, requiring the applicant to produce specified documents and file an affidavit of full production by October 9, 2019, with sealed documents to remain sealed pending the Supreme Court's disposition of the leave application.

Following the dismissal of a motion brought by the representative plaintiffs in a settlement-approved class action, the defendants sought costs of $17,840 on a partial indemnity basis, requesting they be paid personally by class counsel.

Class counsel argued that awarding costs against them personally would undermine access to justice.

The court held that the defendants' request for costs against class counsel personally was improper, as class counsel was not a party and had committed no misconduct.

However, the court also rejected class counsel's access to justice arguments, finding that the representative plaintiffs, as the losing parties, were responsible for costs in the normal course.

Costs of $17,840 were awarded to the defendants, payable by the representative plaintiffs.

In a class action settlement regarding Volkswagen diesel vehicles, the plaintiffs brought a motion seeking production of data relating to VW's investigation of post-repair lag and surge issues, and an extension of the claims deadline.

The plaintiffs argued that the Settlement Agreement required disclosure of this data to allow class members to make informed decisions.

The court dismissed the motion, finding that the lag/surge issue was a safety concern outside the ambit of the Settlement Agreement's provisions on reduced performance.

Consequently, the court held it had no jurisdiction under the settlement to order production of the data or to extend the claims deadline.

Appellants brought a proposed class action alleging that respondents conspired to divide the beer market contrary to section 45(1) of the Competition Act through a Framework Agreement signed in 2000, and that a surcharge levied by Brewers Retail on licensees violated the Liquor Control Act.

The motion judge dismissed the action on the basis that the regulated conduct defence was available to the respondents.

The Liquor Control Act authorized the impugned conduct.

The Ontario legislature subsequently enacted retroactive amendments in 2015 to remove any doubt that the conduct was authorized.

The Court of Appeal upheld the dismissal, finding that the regulated conduct defence insulated the respondents from liability and that retroactive legislation could provide authorization for the defence.

Aviva Canada Inc. brought a motion for directions regarding the timing of its answers to undertakings, seeking to defer disclosure until the defendants, Hubio Solutions Inc. and Ingenie (Canada) Inc., provided their answers to questions ordered answered.

Aviva alleged that Hubio had taken an obstructionist approach during discovery and that there was a significant risk of Hubio tailoring its evidence if Aviva disclosed first.

The Master found a significant overlap in the information sought by both parties concerning pre-agreement representations and accepted the risk of tailoring.

The Master also criticized Hubio's conduct during discovery and its delay in contacting former employees.

The motion was granted in part, allowing Aviva to defer answers to undertakings related to pre-agreement meetings and discussions until Hubio provided its ordered answers, with a simultaneous exchange date set.

Other undertakings were to be answered forthwith.

This addendum corrects an error in a previous costs decision (2018 ONSC 4862) regarding the amount of costs requested by Brewers Retail Inc. The original decision mistakenly stated Brewers Retail requested $600,000 on a partial indemnity basis, when the correct amount, based on an amended bill of costs, was $744,396.42, all inclusive, comprising fees, HST, and disbursements.

The court confirmed the costs award subject to this correction.

Following the dismissal of the plaintiffs' proposed class action on summary judgment, the successful defendants sought costs on a partial indemnity basis totalling approximately $2.3 million.

The plaintiffs and the Class Proceedings Fund argued that the costs should be reduced to $600,000 in the aggregate, asserting that the case was not complex, was in the public interest, raised novel points of law, and that a large costs award would have a chilling effect on class actions.

The court rejected these arguments, finding that the litigation was primarily commercial, involved complex issues, and that the normal costs rules should apply.

The court awarded the defendants their requested costs, subject to a reduction of one expert witness's fee.

The court approved the $31.2 million in legal fees, disbursements, and taxes agreed upon by class counsel and the defendants (Volkswagen Group Canada Inc. et al.) following the $2.1 billion "dieselgate" class action settlement.

The fees were deemed reasonable and separate from the class members' recovery, ensuring the settlement remained generous and in the best interests of the class.

The plaintiffs in a class proceeding brought a motion to determine whether a 'loan forgiveness' benefit under a settlement agreement was triggered.

The benefit was payable if there was no Approved Emissions Modification (AEM) by June 15, 2017.

The US EPA approved a fix on May 19, 2017, but it was not implemented in Canada until June 23, 2017.

The court held that the definition of AEM, which required the fix to be 'implementable in Canada', meant available within a reasonable time, not immediately available.

Therefore, the AEM existed by the deadline and the loan forgiveness benefit was not triggered.

The appellant appealed from a motion judge's order striking his pleading and dismissing his action as frivolous, vexatious, and an abuse of process.

The appellant had previously brought an action in contract against the respondents claiming they had guaranteed a $30,000 short-term loan.

That action was dismissed on summary judgment and the appeal was dismissed.

One month later, the appellant brought a new action arising from the same facts but framed in tort, alleging misrepresentation, fraud, and deceit.

The respondents moved to strike the second action as an abuse of process on the basis of res judicata.

The motion judge found the tort action was based on the same facts as the dismissed contract action and that the appellant should have included all causes of action in the original pleading.

The Court of Appeal upheld the motion judge's decision and dismissed the appeal with costs.

The plaintiffs, Wendell and Linda Allen, brought a motion for court approval of a settlement in a certified class action against The Manufacturers Life Insurance Company ("Manulife").

The class action alleged Manulife failed to provide proper adjustment notices for TermPlus life insurance policies, leading to insufficient premiums and negative accumulation amounts for policyholders.

Manulife investigated, acknowledged errors, and sought to resolve the issue.

The proposed settlement, valued between $1.59 million and $2.03 million, aimed to restore approximately 170 class members to the position they would have been in had proper notices been received, often providing 100% recovery without deductions for fees.

The court found the settlement fair, reasonable, and in the best interests of the class, granting the motion for approval.

The defendants moved to strike the plaintiff's action as frivolous, vexatious, or an abuse of process under Rule 21.01(3)(d), and sought to prevent further actions without leave under section 140 of the Courts of Justice Act.

The court found the current action to be an attempt to relitigate issues previously decided by Perrell J. and upheld on appeal, applying the doctrine of res judicata.

The plaintiff's argument of new facts and legal theories was rejected, as the underlying factual basis was the same and could have been raised with reasonable diligence in the prior action.

The court dismissed the plaintiff's action, finding it frivolous, vexatious, and an abuse of process, and declined to exercise discretion to allow relitigation.

The appellant, author of a book, alleged that the respondents illegally reproduced and sold unauthorized copies of his work, claiming primary and secondary copyright infringement.

The respondents successfully moved for summary judgment, with the motion judge finding no evidence that they had published, handled, distributed, or offered for sale any infringing copies.

On appeal, the appellant argued the motion judge failed to apprehend key evidence and was biased.

The Court of Appeal dismissed the appeal, finding the motion judge's factual conclusions were supported by the evidence and that the hearing was fair and impartial.

In CCAA proceedings involving a payday lending enterprise, class members in Ontario consumer class actions moved for approval of three settlement agreements forming part of a broader global resolution of litigation involving the debtor companies, their directors and officers, and related parties.

The settlements resolved certain class claims and partially resolved a third‑party lender claim, providing more than $10 million in recovery with potential participation in future litigation proceeds.

The court applied established settlement approval factors including likelihood of success, litigation risks, counsel recommendations, absence of objections, and arm’s‑length negotiations.

The court concluded that the settlements were fair, reasonable, and in the best interests of the class and the restructuring process.

Following the dismissal of a copyright infringement action on summary judgment, the successful corporate defendants sought costs of the motions and the broader action.

The self‑represented plaintiff, who was also a qualified lawyer, argued that no costs should be awarded due to his modest means and good faith prosecution of the claim.

The court applied the normative Ontario approach that costs follow the event and are generally awarded on a partial indemnity basis under s. 131 of the Courts of Justice Act and Rule 57.01 of the Rules of Civil Procedure.

The court held that financial hardship was not established and that the plaintiff, as an experienced lawyer, understood the risks of adverse costs.

Applying reasonableness and proportionality principles, the court fixed costs at $50,000 for one defendant and $70,000 for the other.

The appellant brought a motion for summary judgment against the respondents on an alleged guarantee of a $30,000 loan.

The motions judge dismissed the motion and granted the respondents' cross-motion for summary judgment, dismissing the action against them.

On appeal, the Court of Appeal upheld the motions judge's findings that there was no agreement to guarantee the loan and that, in any event, an oral guarantee would be unenforceable under section 4 of the Statute of Frauds.

The appeal was dismissed.

The plaintiff alleged copyright infringement relating to the distribution and online listing of his book.

The defendants moved for summary judgment under Rule 20, arguing there was no evidence they had printed, distributed, or sold infringing copies and that any online listing occurred outside Canada.

The court held that the evidentiary record established the defendants never possessed or sold copies of the book and that the online listing did not create a sufficient connection to Canada to engage the Copyright Act.

The court also found no evidence supporting claims of secondary infringement or infringement of moral rights.

As there was no genuine issue requiring a trial, the defendants were entitled to summary judgment.