Jasmine T. Akbarali

This decision concerns a carriage motion between two proposed securities class actions, Kennedy v. Akumin Inc. and Longair v. Akumin Inc., brought under the amended Class Proceedings Act, 1992.

The court applied the new s. 13.1 of the CPA, which mandates a focus on efficiency and likelihood of success in advancing class members' claims.

The Longair action proposed a broader class period, alleged more categories of misrepresentation, and named additional defendants, including the company's auditor.

The court found that the Longair action better advanced the goals of access to justice and behaviour modification by encompassing more viable claims and defendants, despite some reservations about the claim against the auditor.

Carriage was granted to the Longair action, and the Kennedy action was stayed.

The applicant, a surveillance services provider, sought an order compelling its insurers to provide a defence to an underlying action alleging criminal harassment, conspiracy, and negligence related to surveillance, and an automobile incident.

The applicant also sought reimbursement of defence expenses and the right to choose its own counsel.

The court found that the negligence claims related to surveillance were not derivative of intentional torts and triggered the Commercial General Liability (CGL) policy's duty to defend.

The court also found that the non-owned automobile (NOA) policy triggered a duty to defend for the auto claims, as the policy's language was broad and not limited to rental cars.

However, the court denied the applicant's request to choose its own counsel, affirming the insurers' contractual right to control the defence in the absence of a conflict of interest.

The appellant appealed an order of the Landlord and Tenant Board finding she was not a tenant and the Residential Tenancies Act did not apply.

She argued the Board erred in law and breached procedural fairness by refusing to allow her to play audio recordings of a witness.

The Divisional Court dismissed the appeal, holding that the Board's evidentiary ruling was discretionary and not a breach of procedural fairness, as the witness was present at the hearing, gave oral evidence, and was available for cross-examination on any prior inconsistent statements.

This motion addressed the proper penalty for the respondents' contempt of a consent order prohibiting illegal dumping and site alteration.

The court had previously found the respondents in contempt due to their bad faith, lack of credibility, and continued breaches even after warnings.

The decision considered proportionality, mitigating and aggravating factors, deterrence, denunciation, and the contemnors' ability to pay.

The court imposed a fine of $110,000 payable to the Provincial Treasurer and ordered the respondents to pay $140,000 in full indemnity costs to the applicant, finding their conduct deliberate and disrespectful.

The defendant 2603553 Ontario Inc. ('260') brought a motion for summary judgment to dismiss a fraudulent conveyance claim by the plaintiff, Vestacon Limited.

Vestacon cross-moved for a certificate of pending litigation.

The court granted 260's motion, finding no genuine issue requiring a trial regarding 260's knowledge of any fraudulent intent on the part of Huszti Investments.

The court concluded that the sale of the units by Huszti Investments to 260 was commercially reasonable and the proceeds were used to pay secured creditors.

Consequently, Vestacon's action against 260 was dismissed, and its cross-motion for a certificate of pending litigation was also dismissed.

The court awarded substantial indemnity costs of $85,000 to 260.

The applicant tenant sought a declaration that it had validly renewed its commercial lease and other relief.

The respondent landlord argued the tenant was in default.

The court applied the principle of estoppel by convention, finding a shared mistaken assumption regarding rent payments during the COVID-19 CECRA program, which prevented the landlord from relying on an alleged rent shortfall.

The court also granted relief from forfeiture for minor outstanding bank fees, noting the landlord's delayed demand for these fees.

The lease was declared validly renewed, and the landlord was ordered to pay the tenant's costs.

Following the dismissal of the plaintiff's motion for the production of documents prior to a leave motion under the Securities Act, the successful defendants sought their costs.

The court awarded partial indemnity costs to the corporate defendant and one individual defendant.

The court awarded substantial indemnity costs to the other individual defendant, finding that the plaintiff's conduct in pursuing the motion against him and making unfounded allegations of deliberate misconduct was unreasonable and warranted sanction.

The plaintiff was ordered to pay a total of $36,603.87 in costs.

The defendants brought a motion to strike paragraphs of the plaintiff's amended statement of claim that sought an oppression remedy against the individual directors under s. 248 of the Business Corporations Act.

The plaintiff, a former employee suing for wrongful dismissal, alleged the directors acted oppressively by withholding vacation pay and dismissing him.

The court found that the plaintiff's pleaded reasonable expectations were held in his capacity as an employee, not as a creditor, and that the oppression remedy cannot be used as a surrogate for a wrongful dismissal claim.

The court struck the impugned paragraphs without leave to amend and awarded the defendants $8,500 in costs.

The plaintiff, Business Development Bank of Canada, moved for summary judgment to enforce a personal guarantee against the defendant Kelly Ann Bovair.

Bovair resisted, arguing the guarantee failed for want of consideration or was unconscionable due to alleged misrepresentations by her spouse and co-defendant, Justin Carter, and the bank's failure to ensure independent legal advice.

The court granted summary judgment to the plaintiff, finding the guarantee valid and enforceable, as consideration flowed to the principal debtor, and the bank had no obligation to ensure independent legal advice given the lack of evidence it knew or should have known of fraud, misrepresentation, or undue influence.

The plaintiffs sought leave under the Securities Act to commence a class action against Barrick Gold Corporation and certain officers/directors for alleged misrepresentations in public disclosures concerning the Pascua-Lama mining project.

The court dismissed most of the alleged misrepresentations due to a lack of precision in pleading and insufficient credible evidence, particularly regarding accounting and contingent liability claims, and October 2011, May 2012, November 2012, and March 2013 capex/scheduling claims.

However, the court found a reasonable possibility of success for certain capex budget and scheduling misrepresentations made in February and March 2012, but required further submissions on the issue of public correction for these.

Claims against two individual defendants were dismissed due to their tenure or lack of evidence.

The proposed representative plaintiffs sought leave under s. 138.8 of the Securities Act to commence a secondary market misrepresentation claim against Maxar Technologies Inc. and its directors/officers, alleging failures to properly impair assets and recognize revenue under IFRS.

The court excluded the plaintiffs' expert evidence on IFRS due to lack of qualifications and impartiality, and struck portions of their reply evidence as impermissible case-splitting.

Relying on the defendants' admitted expert evidence, the court found no credible evidence that Maxar's financial statements contained material misrepresentations.

The motion for leave was dismissed as there was no reasonable possibility of success at trial, and the related certification motion was consequently dismissed.

The plaintiff in a putative class action for secondary market misrepresentation brought a motion for the production of documents referenced in the defendants' affidavits prior to serving his reply record.

Alternatively, the plaintiff sought to strike the portions of the affidavits referencing those documents.

The court dismissed the motion, holding that the plaintiff has no right to documentary discovery at the leave stage under section 138.8 of the Securities Act, and that the proper mechanism for production is through cross-examination after the reply is served.

The court also declined to strike the affidavits, noting that hearsay is permitted on motions.

This decision addresses a class action arising from a cyber breach of CarePartners' computer system.

The plaintiffs sought certification of the class for settlement purposes, approval of the settlement agreement, and approval of class counsel fees and honoraria for the representative plaintiffs.

The court granted all motions, certifying the class, approving a $3.44 million settlement fund, a 20% contingency fee for class counsel, and $5,000 honoraria for each representative plaintiff.

The judgment notably provides a detailed analysis and affirmation of the practice of awarding honoraria to representative plaintiffs in class actions, disagreeing with a recent decision that sought to end the practice, and outlining factors for assessing their quantum.

The applicant sought costs of $15,000 previously fixed by Kimmel J. relating to an injunction granted against the respondents for breaching COVID-19 public health orders.

The respondents argued they should be excused from paying costs as public interest litigants.

The court rejected this argument, finding that by choosing to disobey the law rather than challenge it directly, the respondents engaged in conduct harmful to the public interest.

The respondents were ordered to pay $15,000 in costs.

The plaintiff sought leave to commence a secondary market misrepresentation claim under the Securities Act and certification of a class proceeding against Wheaton Precious Metals Corp. and its officers.

The plaintiff alleged the defendants failed to disclose a material tax liability arising from a CRA audit regarding transfer pricing.

The court dismissed the motion for leave, finding no reasonable possibility of success at trial because the plaintiff's expert evidence was inadmissible or unreliable, and the defendants' disclosures accurately reflected management's reasonable assessment of the tax risk.

The court also declined to certify the common law and prospectus misrepresentation claims, finding a class proceeding was not the preferable procedure and the claims did not disclose a reasonable cause of action.

The plaintiffs in a class proceeding regarding universal life insurance policies brought a motion for a further and better affidavit of documents.

The plaintiffs sought production of 12 general categories of documents and several specific documents related to the defendant's repricing of the cost of insurance and administrative fees.

The court applied the principles of relevance and proportionality, granting production for some requests, such as internal communications regarding policyholder communications and documents related to the 'Maximum Premium' in death spiral situations, while dismissing others that were overly broad, irrelevant, or disproportionate.

Costs of $50,000 were awarded in the cause.

The plaintiff class sought approval of class counsel fees, disbursements, and honoraria for the representative plaintiff and another class member following a settlement in a privacy class action against SiriusXM.

The court approved the requested $75,000 in class counsel fees, finding them fair and reasonable given the risk undertaken and the time expended.

The court also approved $5,000 honoraria for the two class members due to their active involvement and exposure to costs risks.

However, the court reduced the requested disbursements from $75,000 to $55,657.36, rejecting class counsel's attempt to claim firm overhead as a disbursement.

The parties in a proposed class action reached a consortium agreement to seek certification of a national class in British Columbia.

A dispute arose over whether the Ontario action should be stayed permanently or conditionally.

The parties ultimately agreed to a consent order staying the action subject to further order of the court, but could not agree on costs.

The court found that both parties had credible arguments for being the successful party, as their positions were almost identical, and ordered each party to bear their own costs.

The defendants successfully moved to strike the plaintiff's claim, which included legally unfounded claims for Charter damages against individuals.

The defendants sought costs of $7,500 on a partial indemnity basis.

The court found the requested amount to be fair and reasonable given the serious allegations and the lack of clarity in the plaintiff's pleadings, which increased the time required to respond.

The plaintiff was ordered to pay $7,500 in costs.

Following the dismissal of the union's application for an interim injunction against the employer's mandatory COVID-19 vaccination policy, the employer sought partial indemnity costs of $34,146.11.

The union argued no costs should be awarded as the matter was of public interest and novel concern, or alternatively that costs should be capped at $10,000.

The court rejected the novelty argument, finding existing case law was adequate to resolve the issue.

After considering the factors under Rule 57.01, including the importance of the issues, the urgent timeline, and reasonable expectations, the court fixed costs at $27,000 payable by the union.