Jean-Marc Leclerc

The Applicants (YESCO, Young, Wardle) brought a motion for summary judgment to dismiss a counterclaim filed by the Respondents (226 Ontario Inc., Goldlust).

The counterclaim alleged breach of contract, breach of the Arthur Wishart Act (Franchise Disclosure), and negligent misrepresentation, primarily concerning YESCO's alleged failure to develop a "National Accounts" program as promised in the franchise agreement and disclosure document.

The court dismissed the motion for summary judgment on limitations grounds, finding that the "appropriate means" test under the Limitations Act, 2002, was not met as the Respondents were reasonably relying on the franchisor's ongoing ameliorative efforts.

The court also dismissed the motion for summary judgment on the substantive merits of the breach of contract and Wishart Act claims, citing significant factual disputes and the risk of duplicative findings with the main action.

However, the court granted summary judgment dismissing the negligent misrepresentation claims, holding that an "entire agreement" clause in the franchise agreement barred such claims, given the commercial sophistication of the parties.

This decision addresses a costs award following the dismissal of a franchisee class action against Pet Valu Canada Inc. The court awarded costs to the defendant on a partial indemnity basis, adjusting senior counsel's hourly rate to align with the Grid.

The defendant's motion to hold a non-party, Robert Rodger (the plaintiff company's sole shareholder), jointly and severally liable for these costs was dismissed.

The court found that the defendant failed to satisfy the three-step test for non-party costs, specifically by not demonstrating that the plaintiff company was a "man of straw" or a sham.

The plaintiff was awarded $10,000 in costs for successfully defending the non-party liability motion, which was deducted from the defendant's overall award.

The plaintiffs brought a motion to certify a class action against several manufacturers of lithium-ion batteries, alleging a price-fixing conspiracy that artificially inflated prices for direct and indirect purchasers in Canada.

The court certified the action solely for the statutory cause of action under section 36 of the Competition Act.

The court excluded 'umbrella purchasers' (those who bought from non-defendants) from the class, finding it plain and obvious they lacked a cause of action due to indeterminate liability and lack of restitutionary basis.

The court also declined to certify the common law claims for unlawful means conspiracy and unjust enrichment, holding that they were precluded by the comprehensive statutory scheme of the Competition Act.

The remaining certification criteria were met for the statutory claim.

The plaintiffs brought a proposed class action alleging a price-fixing conspiracy regarding lithium ion batteries.

Two foreign defendants, NEC Corporation and NEC Tokin Corporation, brought a motion to stay or dismiss the action against them for lack of jurisdiction simpliciter.

The court granted the motion, finding that the plaintiffs failed to establish a good arguable case that the moving defendants carried on business in Ontario or committed the tort of conspiracy in Ontario, as there was no evidence that their batteries reached Ontario through normal channels of trade or that they participated in acts causing damage in Ontario.

Following the dismissal of a $200 million class action on summary judgment, the successful defendant sought costs of $154,000 on a partial indemnity basis.

The plaintiff and the Law Foundation of Ontario argued for a maximum of $60,000, citing the brevity of the hearing and the novelty and public interest of the issues under section 31(1) of the Class Proceedings Act.

The court rejected the public interest argument but acknowledged some novelty in the interpretation of the Gift Card Regulation.

Costs were fixed at $110,000 all-inclusive, payable by the plaintiff.

In a certified franchise class action alleging price maintenance and breaches of franchise law, the representative plaintiffs sought court approval of a proposed settlement under the Class Proceedings Act, 1992.

The settlement provided $275,000 to reimburse class counsel disbursements and required class members to release all claims relating to the purchase, sale, distribution, promotion, or marketing of supplies.

The court held that although the settlement outcome was otherwise reasonable given the weak prospects of success and litigation risks, the release clause was overbroad because it could bar future claims unrelated to the existing alleged misconduct.

The judge found that approving such a release would unfairly deprive class members of potential future claims.

The court therefore refused to approve the settlement.

The appellant appealed a Master's partial summary judgment decision that declined to award the balance of the appellant's claim for financing and legal fees related to an HST dispute on a commercial property sale.

The Master had found that a trial was necessary to determine whether the appellant acted reasonably in refusing to provide an invoice dated as requested by the CRA, which led to the additional costs.

The Superior Court of Justice applied the standard of review from Hryniak v. Mauldin, finding no palpable and overriding error in the Master's decision, and dismissed the appeal.

The plaintiff vendor brought a motion for summary judgment under Rule 20 of the Rules of Civil Procedure seeking recovery of interest, penalties, legal fees, and financing costs arising from the defendant purchaser’s failure to promptly remit HST payable under an agreement of purchase and sale for land.

After the Canada Revenue Agency reassessed the transaction and imposed HST liability on the plaintiff, the plaintiff paid the tax along with associated interest and penalties.

The court held there was no genuine issue requiring a trial regarding the interest and penalties because they directly resulted from the defendant’s failure to timely fulfill its contractual obligation to remit HST.

However, the court found a genuine issue requiring a trial regarding the remaining claimed damages, including legal and financing costs, as these may have been avoidable if the plaintiff had provided an invoice requested by the defendant and the CRA.

Partial summary judgment was granted for the interest and penalties only.

Following a certification decision in a proposed consumer class action concerning prepaid phone cards, the court determined the appropriate costs award.

The moving party sought over $204,000 in partial indemnity costs after succeeding on certification of most proposed common issues.

The court reviewed the costs outline, reduced counsel hourly rates to align with the Rules Committee’s Information to the Profession, and removed an excessive research disbursement.

Considering Rule 57.01 factors, historical certification-motion cost averages, and proportionality principles tied to access to justice under the Class Proceedings Act, the court fixed costs at $150,000 all-inclusive payable forthwith by the defendants.

The plaintiff brought a motion to certify a class action against Bell Mobility regarding the expiry dates on pre-paid phone cards.

The plaintiff alleged breach of contract, breach of the Gift Card Regulation under the Consumer Protection Act, unjust enrichment, and unfair practices.

The court found that the pleadings disclosed causes of action for breach of contract and unjust enrichment, but not for unfair practices.

The court certified the action as a class proceeding, appointed the plaintiff as the representative, created a sub-class for consumer-users, and certified five common issues.

In a certified class action alleging price maintenance and conspiracy by a franchisor and its designated food supplier, the parties brought reciprocal motions regarding refusals on examinations for discovery.

The court applied the principles of relevance, materiality, and proportionality, emphasizing that the action was certified based on a 'top-down' systemic approach rather than a 'bottom-up' product-by-product analysis.

The court largely upheld the refusals, finding many questions to be irrelevant, disproportionate, or inconsistent with the certified common issues, while ordering a small number of questions to be answered.

In a certified franchise class action concerning alleged failure to share supplier rebates, the representative plaintiff sought to set aside opt-out notices after a franchisee group launched a campaign encouraging class members to opt out.

The campaign included a coordinated telephone blitz and a public website listing franchisees who opted out while disseminating misleading information about the litigation and class counsel.

The court found that the communications exerted pressure on franchisees and undermined the fairness and integrity of the opt-out process.

Concluding that the process had been subverted by misinformation and intimidation, the court exercised its supervisory authority under the Class Proceedings Act to invalidate opt-out notices submitted after the campaign began.

The plaintiffs sought court approval of a settlement agreement resolving complex litigation and related bankruptcy proceedings arising from the collapse of Lehman Brothers.

The dispute concerned ownership and recovery of investment fund assets held by the prime broker at the time of its insolvency, including securities subject to re-hypothecation and claims advanced in multiple jurisdictions.

The court considered the fairness and reasonableness of the settlement, including its impact on investors and the risks and delays associated with continued litigation and cross-border enforcement.

Relying on principles reflected in the Bankruptcy and Insolvency Act and the court’s jurisdiction under the Courts of Justice Act, the court concluded that the compromise was fair and reasonable.

The court approved the settlement and issued vesting orders in relation to assets conveyed under the agreement.