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.

The appellants, shareholders in two deadlocked corporations, sought a stay of a winding-up order pending appeal and leave to introduce fresh evidence.

The court dismissed the motion for fresh evidence, finding it irrelevant because the appellants had not requested an adjournment or objected to proceeding without cross-examinations before the application judge.

The court also denied the stay, applying the RJR-MacDonald test, concluding there was no serious issue to be tried, no irreparable harm as funds would be held in trust, and the balance of convenience favoured the respondent who sought to end the corporate deadlock.

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.

The defendant accountant sought leave to appeal an order granting the plaintiffs leave to amend their statement of claim to add a new claim against him.

The defendant argued the new claim was statute-barred and that the motion judge erred in leaving the issue of discoverability to the trial judge without requiring sufficient evidence from the plaintiffs.

The Divisional Court dismissed the application for leave to appeal, finding no conflicting decisions and no good reason to doubt the correctness of the motion judge's order, as the jurisprudence establishes that factual disputes regarding discoverability on a Rule 26.01 motion should generally be left to the trial judge.

The court determined costs following the abandonment of a motion seeking to invalidate a mortgage registered against a Toronto property.

The moving party sought partial indemnity costs exceeding $12,000 after the applicants abandoned the motion.

The court held that the moving party was not entitled to recover costs incurred after a certain date because continuing to prepare materials was unreasonable while settlement discussions were ongoing and no hearing date had been set.

Considering the dockets and the proportionality of the work performed, the court found the claimed amount excessive.

Applying the factors under Rule 57.01 of the Rules of Civil Procedure, the court awarded reduced partial indemnity costs of $5,000.

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.

The appellant was rendered a paraplegic during a soccer game organized by the Ontario Soccer Association (OSA).

He sued the OSA's corporate sponsors, alleging they had a duty to ensure adequate insurance coverage for players.

The motion judge struck the statement of claim for disclosing no reasonable cause of action.

The Court of Appeal dismissed the appeal, finding no relationship of sufficient proximity between the appellant and the corporate sponsors to ground a duty of care.

The Court of Appeal for Ontario issued a costs endorsement following an appeal.

The respondent, Metropolitan Toronto Condominium Corporation No. 1352, was awarded costs of $30,000 on a partial indemnity basis.

The respondent Tarion Warranty Corporation was also awarded costs of $11,000, as the appellant was unsuccessful in seeking relief against it.

The Bank of Montreal sought leave to appeal a decision certifying two related class actions arising from a Ponzi scheme perpetrated by a bank customer.

The Bank argued that the motions judge erred in finding that the pleadings disclosed causes of action in knowing assistance and negligence, relying on section 437 of the Bank Act and the Anns test for duty of care.

The Bank also challenged the finding that the claims raised common issues.

The Divisional Court dismissed the motion for leave to appeal, finding no good reason to doubt the correctness of the motions judge's conclusions that it was not plain and obvious the claims would fail and that there was some basis in fact for the common issues.

The appellants appealed the dismissal of a Rule 21 motion seeking to strike a condominium corporation’s action arising from alleged construction defects, including sanitary sewer failures and exterior cladding water penetration.

The court held that although Tarion’s warranty denial decisions were judicial and final for issue estoppel purposes, applying issue estoppel would work an injustice given the consumer protection purpose of the Ontario New Home Warranties Plan Act, the permissive language of the tribunal appeal provisions, the procedural limits of Tarion proceedings, and the advantage of resolving all claims in one forum.

The court further held that the civil action was not an impermissible collateral attack, that Tarion could be sued for payment from the guarantee fund, that the sanitary sewer allegations were not plainly outside the definition of major structural defect, and that the EIFS limitation argument failed.

The appeal was dismissed.