James D.G. Douglas

This case concerns the contractual interpretation of a "Life of Mine" supply agreement for liquid sodium cyanide between Kinross (as buyer) and Cyanco (as seller).

Kinross sought a declaration that the agreement did not preclude it from sourcing solid sodium cyanide from other suppliers and converting it to liquid for its mining operations.

The court dismissed Kinross's claim, finding that such an action would conflict with the agreement's terms, which established Cyanco as the sole supplier of liquid sodium cyanide required by Kinross's mines for their operations.

The court emphasized reading the contract as a whole, giving words their ordinary meaning, and considering commercial reasonableness.

The plaintiffs brought a class action against mutual fund managers for allowing certain investors to engage in frequent short-term trading (market timing/time zone arbitrage), which allegedly diluted the returns of long-term unitholders.

The court found that the defendants owed a duty of care to the funds and breached the standard of care by failing to prevent, and actively facilitating, frequent short-term trading contrary to their prospectuses.

However, the court dismissed the claim for breach of fiduciary duty, finding no bad faith or dishonesty.

The matter was directed to proceed to a damages trial.

The plaintiffs brought a motion to certify a class action against seven discount brokers, alleging that their receipt of mutual fund trailing commissions prior to the 2022 prohibition was illegal.

The court found that the plaintiffs failed to satisfy the 'some evidence' requirement to show that the practice contravened applicable Canadian securities law.

The evidence filed by the plaintiffs themselves demonstrated that the practice, while controversial, was not illegal before the regulatory amendments took effect.

The motion for certification was dismissed.

The plaintiffs in two putative class actions sought leave to discontinue one action entirely and partially discontinue the second against all but one defendant group.

This procedural step aimed to streamline the proceedings by converting omnibus actions into separate class proceedings against distinct defendant groups.

The defendants did not oppose the requests.

The court granted leave for both discontinuances, recognizing the efficiency gains.

The appellants appealed two awards from a sole arbitrator in a commercial arbitration regarding a failed real estate project.

The first award granted partial summary judgment dismissing claims related to loan advances as time-barred.

The second award increased the amount of security for costs.

The Superior Court held that the standard of review for commercial arbitrations remains reasonableness under Sattva, as Vavilov did not overrule it in this context.

The court found the arbitrator's decisions on both the limitation period and the security for costs were reasonable and correct, and dismissed the appeals.

The plaintiff brought a motion to certify a class action against BMO Investments Inc. on behalf of investors who held BMO Mutual Funds through discount brokers.

The plaintiff alleged that BMO Investments improperly paid trailing commissions to discount brokers out of mutual fund assets, despite discount brokers providing no investment advice.

The court found that the plaintiff's claims for breach of trust, breach of fiduciary duty, breach of contract, breach of the Trustee Act, prospectus misrepresentation, and unjust enrichment all disclosed viable causes of action.

The court certified the class action, including a common issue for aggregate damages, and set the class end date as the date of the certification order.

The defendant in a proposed class action regarding mutual fund trailing commissions sought a direction that its proposed summary judgment motion be heard concurrently with the plaintiff's certification motion.

The court dismissed the request, finding that the summary judgment motion would require significant responding evidence, lengthy cross-examinations, and would increase expense and delay.

The court held that hearing the certification motion first would be more efficient and could narrow the issues for any subsequent summary judgment motion.

Catalyst Capital Group Inc. attempted to acquire VimpelCom Ltd.'s interest in Wind Mobile Corp. but negotiations failed.

During negotiations, a junior analyst employed by Catalyst left to work for West Face Capital Inc., a member of a consortium that subsequently acquired Wind.

Catalyst sued the former employee and West Face for breach of confidence and other claims (the Moyse Action).

The trial judge dismissed the action, finding that no confidential information was communicated and that Catalyst suffered no detriment because its own refusal to agree to a break fee and its insistence on regulatory concessions made the deal impossible.

Catalyst then commenced a second action against the consortium members and others alleging breach of confidence, conspiracy, and inducing breach of contract.

The motion judge dismissed the second action as barred by issue estoppel, cause of action estoppel, and as an abuse of process.

The Court of Appeal upheld the dismissal, finding that Catalyst was attempting to relitigate factual findings from the first action and that it could have advanced all claims in the first proceeding.

The Plaintiffs in a class action sought leave to examine second corporate representatives for AIC Limited and CI Mutual Funds Inc., and to examine non-party witnesses, pursuant to Rules 31.03 and 31.10 of the Rules of Civil Procedure.

The court dismissed the motions, finding that the Plaintiffs had not demonstrated that satisfactory answers could not be obtained from the initial representatives or that it would be unfair to proceed to trial without further examinations.

The court emphasized that Ontario's discovery rules generally envision a single examination per party, with the representative obliged to inform themselves and provide information based on knowledge, information, and belief, including through undertakings.

The liquidator of LWP Capital Inc. brought a motion for declaratory relief regarding a dispute over a working capital adjustment following the sale of its special crops division to the respondent.

The applicant argued the respondent was estopped from disputing the preliminary closing working capital and that the dispute resolution mechanism in the Asset Purchase Agreement was not properly engaged.

The court dismissed the motion, finding no estoppel and holding that the dispute over the net realizable value of the inventory properly triggered the expert determination process under the agreement.

The applicant, a customer of a bankrupt securities firm, sought to establish a claim against the bankrupt estate's general fund for post-bankruptcy increases in the value of liquidated foreign futures contracts.

The court held that while Part XII of the Bankruptcy and Insolvency Act does not preclude a customer from making a claim against the general fund as an ordinary creditor, the applicant only had a provable claim for contracts that vested in the trustee on the date of bankruptcy, not for those liquidated prior to bankruptcy due to subagent insolvency.

The court also dismissed the applicant's request for an equitable priority over other general creditors.