James Gotowiec

The applicants, dissident shareholders engaged in a proxy contest, sought a hearing and review of a Toronto Stock Exchange (TSX) decision that conditionally approved the issuance of shares by Eco Oro Minerals Corp. to certain shareholders without requiring a shareholder vote.

The TSX permitted an accelerated closing of the share issuance just days before the record date for a requisitioned shareholder meeting.

The Ontario Securities Commission conducted a de novo review, finding that the TSX overlooked material evidence regarding the proxy contest and erred in its interpretation of 'materially affect control.' The Commission set aside the TSX decision, concluding that the share issuance materially affected control and required shareholder approval.

To remedy the improper issuance, the Commission ordered Eco Oro to hold a shareholder vote to either ratify or reverse the share issuance, cease-traded the new shares pending the vote, and prohibited the new shares from being voted at the upcoming meeting.

In a complex scenario involving competing national class proceedings against Toyota Canada Inc. concerning premature vehicle frame rust, the plaintiffs in one action (the Toronto action) brought a motion to transfer two other identical actions (Ottawa and London) to Toronto.

The plaintiffs in the Ottawa action opposed the transfer.

The court determined that the transfer motion was a proxy for a carriage motion and that deciding venue before carriage and consolidation would be premature.

The court adjourned the venue transfer motion and directed that a carriage motion proceed, seizing itself of the matter to ensure efficient resolution and avoid judicial delay.

The plaintiffs brought a motion to approve class action settlements with the Sumitomo and GS Electech defendants regarding alleged price-fixing of automotive wire harness systems, electronic control units, and heating control panels.

The court found the settlements, totaling $11 million for Sumitomo and $120,000 for GS Electech, to be fair, reasonable, and in the best interests of the class, noting they fell within a zone of reasonableness compared to U.S. settlements and potential damages.

The court also approved class counsel's 25% contingency fee and disbursements.

The plaintiffs brought motions for settlement approval and fee approval in several class actions alleging price-fixing in the automotive parts industry.

The court certified the actions against Yazaki and Chiyoda for settlement purposes.

The court approved settlements with Yazaki and Chiyoda totaling over $11 million, noting that class counsel provided supplementary evidence demonstrating that the settlement amounts fell within the zone of reasonableness.

The court also approved class counsel's 25 percent contingency fee request.

The plaintiff sought to certify a securities class action against BlackBerry and its former executives for alleged misrepresentations in financial statements relating to smartphone revenue recognition.

The defendants did not oppose certification except regarding the inclusion of Nasdaq purchasers in a 'global class'.

The court certified the class action for TSX purchasers, finding the requirements of s. 5(1) of the Class Proceedings Act were met, and adjourned the 'global class' issue to be determined on a future forum non conveniens motion.

The representative plaintiff in a proposed national class action alleged that multiple manufacturers conspired to fix prices of polyurethane foam and carpet underlay products.

The plaintiff brought a motion seeking court approval of several negotiated settlement agreements with numerous defendants totaling approximately $29.28 million for the benefit of the class, along with cooperation provisions to assist claims against remaining defendants.

An objector argued that the settlements should not be approved until a distribution protocol and damages analysis were finalized.

The court held that settlement approval can properly occur before approval of a distribution protocol and that the negotiated settlements were fair, reasonable, and in the best interests of the class given the complexity, litigation risk, and absence of meaningful objections.

The settlements were therefore approved.

The plaintiff sought leave under s. 138.8 of the Securities Act to pursue a statutory secondary market misrepresentation claim arising from the defendant issuer’s accounting treatment of smartphone sales.

The motion concerned whether the issuer’s use of sell‑in revenue recognition for a newly launched product violated GAAP and whether a later news release constituted a public correction of the alleged misrepresentation.

The court held that the plaintiff had presented credible expert evidence establishing a reasonable possibility that the accounting treatment materially misstated revenues.

The court further articulated principles governing the “public correction” requirement under s. 138.3 and concluded that the issuer’s subsequent disclosure of a shift to sell‑through accounting and a large inventory charge was reasonably capable of revealing the alleged earlier misrepresentation.

Leave to proceed with the statutory claim was therefore granted.

The plaintiff brought a motion to certify a proposed class proceeding for settlement purposes and to approve a settlement agreement with certain defendants alleged to have participated in a conspiracy to fix prices in the cathode ray tube (CRT) industry.

The settlement provided for a payment of $4.15 million and additional non‑monetary cooperation.

The court held that the action met the certification requirements under s. 5(1) of the Class Proceedings Act, 1992 for settlement purposes and that the settlement was fair, reasonable, and in the best interests of the class.

The plaintiff also sought approval of contingency fees, disbursements, and taxes pursuant to the retainer agreement.

The court found the requested fees and disbursements reasonable given the complexity and risks of the litigation.

The appellants, representing former Barbados participating policyholders of Manulife, brought a class action for negligence.

They claimed Manulife owed them a duty of care to protect their interests when it transferred their policies to another insurer in 1996, three years before Manulife demutualized and distributed $9 billion to its participating policyholders.

The trial judge dismissed the action, finding that while harm was foreseeable, policy reasons negated a duty of care.

The Court of Appeal dismissed the appeal, holding that the claim was for pure economic loss and did not fall within established categories.

The Court found no prima facie duty of care because the relationship lacked sufficient proximity, as the policyholders had no legally recognized right to share in a future demutualization at the time of the transfer, and the governing legislation permitted Manulife to terminate the relationship.

The appellant, Jetport Inc., appealed a Master's order regarding discovery refusals in three related actions arising from an aviation insurance coverage dispute.

The court allowed the appeal in part, ordering the respondent insurer to answer questions about its course of conduct with other insureds regarding policy exemptions, finding them relevant to the pleadings.

The court also relieved the appellant from answering a question about claims against other third parties, as it was not relevant to mitigation.

However, the court upheld the Master's order requiring the appellant to answer questions about whether its employee sought legal advice from in-house counsel regarding a pilot clause, finding that disclosing the fact of such discussions did not breach solicitor-client privilege.

The appellants appealed a decision setting aside a stay of proceedings granted by a Justice of the Peace.

The Court of Appeal dismissed the appeal, finding that while the officer's conduct might have justified a finding of abuse of process, a stay of proceedings was not the only remedy available.

The court emphasized that a stay is a prospective remedy of last resort, and lesser remedies, such as disregarding the officer's testimony or addressing disclosure issues, were sufficient to remove any prejudice.

The plaintiff franchisor brought a motion for default judgment against former franchisees for defamation.

Following the termination of their franchise agreements, the defendants engaged in a widespread campaign of making false and defamatory statements about the plaintiff to suppliers, landlords, competitors, and the media.

The defendants failed to defend the action and were noted in default.

The court granted default judgment, finding the statements were defamatory and made with malice.

The court awarded $425,000 in general damages, $75,000 in punitive damages, and granted a permanent injunction restraining the defendants from publishing further defamatory statements.

The plaintiffs, representing a class of Barbados participating policyholders, brought an action against Manulife following the transfer of their policies to Life of Barbados (LOB) in 1996 and Manulife's subsequent demutualization in 1999.

The plaintiffs claimed that Manulife owed them a duty of care and a fiduciary duty to protect their rights to participate in the demutualization.

The court found that while it was reasonably foreseeable that Manulife would demutualize, no duty of care or fiduciary duty was owed to the plaintiffs because their rights as policyholders were lawfully extinguished by the transfer agreement, which was approved by regulators in Barbados and Canada.

The action was dismissed.