Ilan Ishai

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.

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 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.

The self-represented plaintiff brought a motion for summary judgment against a mortgage brokerage and two of its brokers for an allegedly unpaid short-term loan made to facilitate a real estate transaction.

The plaintiff claimed the brokers orally agreed to be borrowers and guarantors.

The defendant brokers brought a cross-motion for summary judgment dismissing the action against them.

The court applied the Hryniak framework and used its fact-finding powers under Rule 20 to determine that the plaintiff's version of events was implausible and unsupported by documentation.

The court found no contractual relationship existed between the plaintiff and the brokers, and noted that any oral guarantee would be unenforceable under the Statute of Frauds.

The plaintiff's motion was dismissed and the defendants' cross-motion was granted, dismissing the action against them.

The plaintiff moved for judgment against a defendant who had been noted in default after his statement of defence was struck and he failed to participate in the litigation process.

The action arose from a failed agreement of purchase and sale for a ski resort property valued at $16 million, where the purchasing corporation and its shareholders failed to complete the transaction.

The court granted leave under Rule 48.04(1) of the Rules of Civil Procedure to bring the motion despite the matter having been set down for trial, finding a substantial and unexpected change in circumstances due to the defendant’s post‑trial-setting default and non-participation.

Because the defendant was noted in default, the allegations in the statement of claim were deemed admitted.

The court accepted the plaintiff’s appraisal evidence and awarded damages for breach of contract and misrepresentation.

Following certification of a pension-related class proceeding, the plaintiff sought partial indemnity costs of over $210,000 for the certification motion.

The defendants conceded entitlement to costs but argued the claimed amount was excessive and opposed joint and several liability.

Applying the principles governing certification motion costs, including those articulated in Pearson v. Inco Ltd., the court determined that the plaintiff’s claimed costs were somewhat excessive and unsupported in part.

The court fixed fair and reasonable partial indemnity costs at $175,000 inclusive of disbursements and taxes.

The defendants were not held jointly and severally liable; instead, four groups of defendants were ordered to each pay an equal share.

The plaintiff sought to certify a class action on behalf of members of the Eastern Canada Car Carriers Pension Plan against the plan's trustees, administrative agent, and actuaries.

The plaintiff alleged that the defendants negligently or in breach of trust granted early retirement benefits when the plan had ongoing solvency issues, leading to a reduction in benefits for plan members.

The court found that the pleadings disclosed causes of action in negligence and breach of trust, the class was identifiable, there were common issues, a class proceeding was the preferable procedure, and the representative plaintiff was suitable.

The motion for certification was granted.