Irving Marks

This appeal concerned a certified class action against Ford Motor Company regarding allegedly false or misleading fuel consumption estimates on EnerGuide labels and in marketing materials for 2013 and 2014 vehicles.

The class action alleged breaches of the federal Competition Act and provincial consumer protection legislation.

The Court of Appeal upheld the motion judge's dismissal of the class action, finding that Ford complied with mandatory federal guidelines for fuel consumption testing (2-Cycle Test) and that the representations were not false or misleading.

The court also addressed the "credulous and inexperienced consumer" standard, noting its applicability varies by statute, and found no deceptive non-disclosure.

This certified class action concerned allegations of misleading advertising by Ford regarding fuel consumption estimates on EnerGuide labels for 2013 and 2014 model year vehicles, claiming breaches of the federal Competition Act and provincial consumer protection statutes.

Both parties brought cross-motions for summary judgment.

The court dismissed the plaintiff's claims, finding no contravention of the Competition Act due to Ford's compliance with federal guidelines and a lack of evidentiary support for a misleading general impression.

While provincial consumer protection laws allow for non-disclosure claims, the court found no legal obligation for Ford to provide additional disclosures (a "Second Label") beyond the EnerGuide Label and the referenced Fuel Consumption Guide, as there was no evidence that car buyers were deceived.

The defendants' cross-motion for summary judgment, dismissing the class action, was granted.

At a case conference for a certified class action claiming $1.5 billion for understated fuel consumption, both parties had brought summary judgment motions.

Given the complexity of the case, which involves nearly two dozen expert witnesses and significant technical data, the court endorsed the parties' proposal to proceed with a 4-week hybrid trial rather than a 'trial in a box' summary judgment motion.

A case conference was held in a class action proceeding to address procedural matters.

The court approved the agreed-upon Notice Plan for the Notice of Certification.

Additionally, the court set a timetable for the plaintiff's upcoming summary judgment motion, granting the defendants until June 15, 2020, to serve their responding materials due to the complexity of the damages calculation and multijurisdictional analysis required.

The plaintiff sought certification of a class action against Ford Motor Company and related entities, alleging false, misleading, or deceptive representations regarding the fuel consumption of 2013 and 2014 model year vehicles.

The claim, for $1.5 billion, was based on violations of the Competition Act and the Consumer Protection Act, asserting that Ford understated fuel consumption by using an outdated 2-Cycle Test instead of the more accurate 5-Cycle Test.

The court certified the action, finding that the pleadings disclosed viable causes of action, there was an identifiable class, common issues existed, a class proceeding was the preferable procedure, and the representative plaintiff was suitable.

The appellants appealed the dismissal of their motion for summary judgment seeking to have the respondents' action declared statute-barred under the Limitations Act, 2002.

The critical issue was whether the respondent lender, Trez Capital, had knowledge of the appellants' ownership interest in the project corporations prior to the expiration of the two-year limitation period.

The motion judge conducted a mini-trial on the disputed question of what was disclosed during a September 13, 2013 telephone call between the respondent's representative and Trez's representative.

The motion judge preferred the evidence of Trez's representative and found that the appellants' ownership interest was not disclosed during that call, thereby rejecting the limitation defence.

The appellants appealed on multiple grounds, including that the motion judge made findings beyond what was necessary to determine the motion, made palpable and overriding errors of fact, and erred in law regarding the limitations period analysis.

The defendants appealed a Master's decision refusing to discharge a certificate of pending litigation (CPL) on their property.

The plaintiff had commenced an action for specific performance of an agreement of purchase and sale.

The defendants argued that the plaintiff's subsequent purchase of a nearby property negated the uniqueness of their property.

The court upheld the Master's decision, finding no error of law in her assessment of uniqueness or her reliance on an affidavit from the plaintiff's ex-husband explaining the purpose of the second property.

The court concluded there remained a triable issue regarding the plaintiff's interest in the land and that the balance of convenience favoured maintaining the CPL.

This endorsement corrects factual errors in a previous endorsement dated May 24, 2017, regarding specific dates of telephone calls and property management appointments.

It also grants the plaintiffs' request for an order dismissing the limitations defence of the Bernstein defendants, which was an oversight in the prior decision.

Dr. Stanley Bernstein and his companies moved for summary judgment to dismiss claims of fraud, conspiracy, and oppression brought by Trez Capital Limited Partnership and others, arguing the action was statute-barred under the Limitations Act, 2002.

The central issue was whether a telephone call on September 13, 2013, provided Trez with sufficient notice of a claim to start the limitation period.

The court conducted a mini-trial on the limitation issue, weighing conflicting evidence regarding the content of the call.

The court found that Trez was not put on sufficient notice and that, even if it had been, a proceeding would not have been an appropriate means to seek remedy until the extent of loss from property sales by a receiver was known.

The motion for summary judgment was dismissed.

The moving party brought a motion to vary a prior judgment to permit a company to accept a new, higher offer to purchase a commercial property.

The parties had previously signed minutes of settlement agreeing to sell the property to a tenant based on a revived earlier offer.

The moving party argued the new offer constituted new facts discovered after the judgment under Rule 59.06(2)(a).

The court dismissed the motion, finding the new offer was solicited before the settlement became binding and did not constitute new facts.

The court emphasized the finality principle and held the parties to their freely negotiated bargain.

A condominium corporation sought an equitable lien and priority over a registered mortgage for substantial unpaid common expense arrears relating to numerous units.

The corporation argued that the unit owner had been unjustly enriched by failing to pay common expenses and that the court should grant equitable relief or revive the statutory condominium lien that had expired.

The court held that the Condominium Act, 1998 provides a comprehensive statutory scheme governing liens for common expenses and that courts cannot create an equitable lien where the statute occupies the field.

Even if such a lien existed, it would not take priority over the previously registered mortgage under the Land Titles Act.

The court further held that a purchaser or mortgagee is entitled to rely on the representations contained in a status certificate and is not required to investigate beyond it.

The motion seeking priority or revival of the lien was dismissed.

The moving parties sought dismissal of a will challenge brought by a beneficiary alleging lack of testamentary capacity and undue influence in relation to two wills.

The court held that the claim was barred by the two‑year limitation period under the Limitations Act, 2002 because the claimant knew or ought to have known of the material facts shortly after the testator’s death yet commenced proceedings more than two years later.

The claimant had received substantial benefits under the wills and actively participated in estate administration, including sale of assets and receipt of distributions.

The court further held that the doctrines of estoppel by convention and estoppel by representation independently barred the challenge because the parties had proceeded on the shared assumption that the wills were valid and the estate trustees relied on that assumption in administering the estate.

The will challenge was therefore dismissed.

In complex estate and commercial litigation arising from estate planning transactions and a will that effectively disinherited family members, the plaintiffs sought leave to further amend their statement of claim to add allegations of knowing assistance in breach of trust and fiduciary duty against an accountant and additional particulars against other defendants.

Several defendants opposed the amendment on the basis of prejudice and limitation periods under the Limitations Act, 2002.

The court held that under Rule 26.01 of the Rules of Civil Procedure leave to amend should be granted unless non-compensable prejudice would result, and that disputes about discoverability and limitation periods should be determined by the trial judge on a full evidentiary record.

As discoveries were ongoing and trial remained more than a year away, any prejudice could be addressed through costs.

Leave to amend was granted with costs awarded to certain defendants for prejudice arising from the amendments.

Following dismissal of the plaintiff’s $4.5 million action alleging that corporate sponsors of a soccer association owed a duty to ensure adequate insurance coverage for players, the court determined the issue of costs.

The successful defendants sought substantial partial indemnity costs following a Rule 21 motion that terminated the claim at an early stage.

The court held that while the defendants were entitled to significant costs, the hours claimed by counsel were excessive and involved duplication of work.

Considering the factors under Rule 57.01 of the Rules of Civil Procedure, the court reduced the requested amounts and fixed reasonable costs payable to the successful defendants.

Following dismissal of summary judgment motions brought by certain defendants, the court addressed costs.

Although the plaintiff and a defendant successfully opposed the motions, the court found the issues were close calls and that it had not been unreasonable for the moving defendants to bring the motions.

Substantial or elevated indemnity costs were rejected as no reprehensible misconduct was established.

Applying the reasonableness factors under Rule 57.01(1) of the Rules of Civil Procedure, the court fixed partial indemnity costs for both successful parties and ordered that those costs be payable in the cause.

The defendant landlord brought a Rule 21.01(b) motion to strike portions of an amended statement of claim alleging breach of an implied contractual duty of good faith in relation to the termination of a commercial lease.

The plaintiff tenant alleged it was promised 18 months’ notice to vacate but received significantly less, asserting that the landlord’s conduct breached an implied duty of honest and good faith performance.

The court held that Canadian jurisprudence does not recognize an implied duty of good faith that would impose additional obligations inconsistent with the express terms of a commercial lease.

Accepting the pleaded facts as true, the alleged conduct did not defeat the purpose of the lease and could not sustain a claim for breach of an implied duty of good faith.

The impugned paragraphs were struck for disclosing no reasonable cause of action, with leave to amend.

The plaintiff sought certification of a proposed class proceeding against a financial institution relating to losses arising from a fraudulent investment scheme involving a tooth whitening promotion.

Earlier reasons had found that the criteria under s. 5 of the Class Proceedings Act, 1992 were satisfied except for the requirement that the representative plaintiff adequately represent the class.

The court had concerns regarding the plaintiff’s health following a stroke and his ability to perform the role.

After further medical evidence was filed, including expert neurological evidence confirming no cognitive impairment, the court accepted that the plaintiff could adequately represent the class and that the litigation plan addressed communication with class members and management of damages.

The court concluded that the statutory criteria were met and certified the proceeding as a class action.

The plaintiff sought certification of a proposed class action arising from an alleged investment fraud involving monies deposited into bank accounts held at the defendant bank.

Earlier reasons had found the certification criteria satisfied except for the adequacy of the litigation plan under s. 5(1)(e)(ii) of the Class Proceedings Act, 1992.

After filing a revised litigation plan addressing communication with class members, management of damages, and procedural issues including a jury notice, the court determined the deficiencies had been remedied.

The court approved revised common issues and concluded the statutory requirements for certification were met.

The proceeding was certified as a class action and a representative plaintiff was appointed.

The defendants, corporate sponsors of a soccer organization, brought a motion under rules 21.01(1)(b) and 25.11 of the Rules of Civil Procedure to strike a negligence claim arising from a catastrophic soccer injury.

The plaintiff alleged the sponsors had a duty of care to ensure that the organization maintained adequate insurance coverage for players.

The court held that mere financial sponsorship and advertising relationships do not create a proximate relationship giving rise to a duty of care to participants.

The pleadings failed to establish reliance, proximity, or control over the event or insurance arrangements.

The statement of claim disclosed no reasonable cause of action and was struck.

The plaintiff sought to certify a class action against the Bank of Montreal (BMO) arising from a $77 million Ponzi scheme perpetrated by Salim Damji.

The plaintiff alleged that BMO knowingly assisted in Damji's breach of trust, knowingly received fraudulent funds, and was negligent in its receipt of these funds.

The court granted leave to bring the certification motion and found that the plaintiff met the first four criteria for certification under s. 5(1) of the Class Proceedings Act.

However, the court found the representative plaintiff's health issues and deficiencies in the litigation plan rendered the final criterion unsatisfied.

The certification motion was adjourned for 30 days to allow the plaintiff to address these deficiencies.