Jeremy James Devereux

This endorsement addresses the costs of a successful motion brought by the defendants, CleanDesign Income Corp., CleanDesign Power Systems Inc., and Mark Lerohl, to remove the plaintiff's counsel, Fogler Rubinoff, due to a conflict of interest.

The court, having granted the motion to remove counsel, considered the parties' written submissions on costs.

Applying Rule 57.01 and the principle of indemnity, the court found that the successful defendants were entitled to costs.

Despite the plaintiff's arguments regarding the narrow grounds of success, conflicting caselaw, and the defendants' alleged contribution to complexity and higher fees, the court determined a fair and reasonable cost award.

The defendants brought a motion to disqualify the plaintiff's counsel, Fogler Rubinoff, citing a conflict of interest due to the firm's prior representation of the defendants.

The plaintiff argued no conflict existed, no confidential information was at risk, and the motion was tactical.

The court found that the firm owed a duty of loyalty to its former client, Clean Power, and that the current action, particularly concerning restrictive covenants, was sufficiently related to the prior retainer.

The court dismissed arguments of delay or tactical motive and ordered Fogler Rubinoff removed as counsel.

Bombardier Inc. appealed a decision by Associate Justice Jolley that largely dismissed Bombardier's request for a further and better affidavit of documents from Triple-K Consult Ltd. Bombardier sought documents related to an audit, which it claimed was a precondition to commission payments.

The appeal judge upheld the Associate Justice's findings, determining that Bombardier had not established the relevance or existence of most requested documents, distinguishing between documents relevant to the audit process and those relevant to the litigation's core defence of non-compliance with the audit.

The appeal was dismissed, and costs were awarded to Triple-K Consult Ltd.

The Superior Court of Justice approved identical third-party funding agreements in four related class actions against major Canadian banks.

The actions allege that the banks charged duplicative non-sufficient funds fees on single dishonoured pre-authorized debits.

The court, applying Section 33.1 of the Class Proceedings Act, 1992, found the agreements to be fair and reasonable, noting the staged success fee was comparable to or more advantageous than the Class Proceedings Fund levy.

The court confirmed the agreements preserved plaintiff control over litigation, ensured the funder's financial capacity for adverse costs, and included appropriate confidentiality and deemed undertaking provisions.

The defendants took no position on the motions.

This motion concerned the substitution of a representative plaintiff in a class action alleging underpayment of vacation and public holiday pay on variable compensation by RBC General Insurance Company and Aviva General Insurance Company.

The original proposed representative plaintiff, Deval Trivedi, was found to be statute-barred against Aviva General.

The plaintiff sought to substitute Binay Saroop as the representative plaintiff against Aviva General and to amend the statement of claim.

The court found that Saroop met the 'some basis in fact' test to rebut the statutory presumption regarding the limitation period and did not have a disqualifying conflict of interest, thus being an adequate representative plaintiff.

The motion to substitute Saroop and amend the claim was granted.

This is a remand from the Supreme Court of Canada to the Ontario Court of Appeal concerning the award of incentive plan-related damages in a wrongful dismissal action.

The Supreme Court remanded the case for disposition in accordance with Matthews v. Ocean Nutrition Canada Ltd. The majority of the Court of Appeal affirmed its original decision, finding that the employee, Mr. Manastersky, was not entitled to additional damages beyond his vested interest in the Mezzanine Carried Interest Plan (CIP) because the plan's terms did not entitle him to annual payments or future investment periods.

The court held that RBC Dominion Securities Inc. had paid Mr. Manastersky all to which he was entitled at common law.

Feldman J.A. dissented, arguing that the trial judge's original decision, which awarded additional damages, correctly applied the legal principles affirmed in Matthews, emphasizing the requirement for "absolutely clear and unambiguous" language to limit an employee's common law right to compensation.

The defendants, RBC Insurance Agency Ltd. and Aviva General Insurance Company, sought to schedule a motion to stay an individual action and remove plaintiff's counsel due to an alleged conflict of interest, prior to the certification motion for a proposed class action.

The plaintiff, Kabir Singh, opposed this scheduling, arguing these issues should be determined at the certification hearing.

The court, applying section 12 of the Class Proceedings Act, 1992, found that hearing the conflict and stay issues before certification would ensure a fair and expeditious determination, preventing potential delays and issues with adequacy of representation if a conflict were found later.

The court ordered the defendants' motion to be heard before the certification motion.

The defendants, RBC Insurance Agency Ltd. and Aviva General Insurance Company, brought a motion to strike various paragraphs from the plaintiff's Amended Statement of Claim, alleging no reasonable cause of action or insufficient particulars.

The plaintiff claimed constructive dismissal, misrepresentation, Human Rights Code violations, and malicious investigation.

The court struck paragraphs related to malicious investigation, misrepresentation, Human Rights Code violations, and negligent infliction of mental suffering, but granted leave to amend for all.

Allegations of common employer and certain paragraphs pleading evidence were allowed to remain.

The court emphasized that pleadings define the scope of discovery and that leave to amend should generally be granted at this stage.

The defendants, Aviva General Insurance Company and RBC Insurance Agency Ltd., sought directions to schedule Aviva General's proposed summary judgment motion before the certification hearing in a class action.

The plaintiff, Kabir Singh, opposed this sequencing request.

The court dismissed the defendants' request, finding that the summary judgment motion would not dispose of the entire proceeding, would require a full evidentiary record, and would likely lead to delays, increased costs, and potential interlocutory appeals, thus not promoting judicial efficiency or settlement.

This is a costs endorsement following an appeal from a trial judgment.

The appellants (RBC Dominion Securities Inc. and Royal Bank of Canada) achieved mixed success on appeal: the court unanimously dismissed their appeal regarding the foreign exchange methodology award, but a majority allowed their appeal regarding the carried interest plan damages award, reducing the principal judgment from $1,144,181.50 to $190,789.

The parties disagreed on the treatment of the trial costs award of $100,000 in light of the appeal disposition.

The appellants sought reduction to $40,000, while the respondent sought to maintain the award or reduce it to no less than $75,000.

The court reduced the award to $80,000, considering that the respondent succeeded on four main issues at trial, with no appeal taken on two issues, and only divided success on the two issues that were appealed.

Appeal of wrongful dismissal damages award.

Employer terminated employee without cause and conceded entitlement to 18 months' notice.

Trial judge awarded damages for lost opportunity to earn carried interest plan entitlements during notice period and for foreign exchange methodology differences.

Appellate court allowed appeal in part, setting aside damages for lost carried interest opportunities but upholding foreign exchange award.

Key issue: whether employee entitled to damages for incentive compensation under plan that employer had contractual right to terminate, where plan was integral to employee's compensation package.

This is a costs endorsement following an appeal from orders of the Superior Court of Justice.

The appeal involved four consolidated actions concerning personal liability of corporate directors and officers in the context of real estate development and mortgage transactions.

The Court of Appeal upheld the motion judge's conclusions on the legal issue of personal liability based on pleaded allegations and legal principles.

The costs decision addresses the appropriate costs awards for the successful and unsuccessful parties across the multiple appeals.

Four consolidated class actions brought by small investors who invested in syndicated mortgages promoted by Fortress Real Capital Inc. and Fortress Real Developments Inc. The investors alleged misrepresentation, breach of fiduciary duty, breach of contract, and negligence.

The motion judge struck claims against individual respondents Jawad Rathore and Vincenzo Petrozza, and dismissed claims to enforce syndicated mortgages against Empire Pace (1088 Progress) Ltd. and ADI Developments entities.

The appellants appealed.

The Court of Appeal upheld the dismissal of personal claims against Rathore and Petrozza but reversed the dismissal of mortgage enforcement claims against Empire Pace and ADI, finding that the motion judge erred in applying Rule 21 to matters requiring evidentiary findings regarding contract interpretation and disclosure.

The appellants (Fortress and its principals) appealed a motion judge's decision dismissing their defamation and breach of contract claims against the respondent, Ben Rabidoux, under section 137.1 of the Courts of Justice Act.

The motion judge found that Rabidoux's tweets related to matters of public interest and that the appellants failed to demonstrate that the harm caused was sufficiently serious to outweigh the public interest in protecting freedom of expression.

The appellants also sought leave to appeal the costs award on a full indemnity basis.

The Court of Appeal dismissed the main appeal, upheld the full indemnity costs award, and varied the costs order only to add HST.

RBC Dominion Securities and Royal Bank of Canada Europe sued Crew Gold Corporation for a Success Fee under an investment banking engagement letter.

The parties' dispute centered on whether RBC was entitled to a Success Fee following an unanticipated takeover of Crew by Severstal, in which RBC played no role.

The trial judge found that a causal link between RBC's services and the transaction was required for the Success Fee to be payable, and dismissed RBC's action.

On appeal, RBC argued the trial judge committed extricable errors of law in interpreting the Agreement.

The Court of Appeal upheld the trial judge's decision, finding that the Agreement contemplated RBC's involvement in the transaction process and that the Success Fee was meant to reward RBC for its success in completing a transaction through its financial advisory services.

The defendant, Ben Rabidoux, brought a motion to dismiss a defamation and breach of contract action initiated by the plaintiffs, Fortress Real Developments Inc., Fortress Real Capital Inc., Jawad Rathore, and Vince Petrozza.

The motion was brought under Ontario's anti-SLAPP legislation, s. 137.1 of the Courts of Justice Act, alleging the action was a "gag proceeding" arising from expressions relating to matters of public interest.

The court found that Rabidoux's tweets, concerning OSC violations, syndicated mortgages, and condo developments related to the plaintiffs' business, constituted matters of public interest.

The burden then shifted to the plaintiffs to demonstrate substantial merit, no valid defence, and sufficiently serious harm outweighing the public interest in protecting expression.

The court found the plaintiffs failed to provide credible and compelling evidence of specific damages, noting that other public comments and regulatory issues were more likely sources of reputational harm.

Consequently, the action against Rabidoux was dismissed.

The court declined to award punitive damages due to lack of quantification submissions.

RBC Dominion Securities Inc. and Royal Bank of Canada Europe Limited (collectively "RBC") sued Crew Gold Corporation ("Crew") for a success fee under a financial advisory agreement.

RBC argued that the fee was payable for third-party share purchases that resulted in a change of control of Crew, even without RBC's direct involvement.

Crew contended that the agreement required its involvement in any transaction triggering the fee and that the fee was contingent on RBC's provision of financial advisory services.

The court interpreted the contract as requiring a causal link between RBC's activities and the completed transaction.

Finding no ambiguity in the contract language, and considering the factual matrix, the court concluded that the third-party open market transactions were not within the contemplation of the parties when the agreement was executed.

RBC's action was dismissed.

The Bank of Montreal moved for summary judgment to dismiss an action brought by The Midas Investment Corporation, which alleged negligence by the Bank in allowing fraudulent account activity.

Midas claimed the Bank was negligent in opening and operating an account used by two individuals, Kavanaugh and Commisso, to defraud Midas of over $3 million, arguing the Bank should have been put on inquiry due to irregularities, thus disentitling it from relying on the indoor management rule.

The court dismissed the motion for summary judgment, finding a genuine issue requiring a trial regarding whether the Bank was put on inquiry by inconsistencies in corporate documentation and account activity, and noting incomplete document production and the absence of expert evidence.

Motion seeking court approval of a proposed settlement and class counsel fees in a securities class proceeding.

The action alleged that a forestry company and its officers issued materially misleading financial statements and prospectus disclosures, contrary to Canadian generally accepted accounting principles, which artificially inflated share prices.

The claims included negligence, negligent misrepresentation, and statutory causes of action under the Securities Act and the Canada Business Corporations Act.

After arm’s‑length negotiations and mediation, the parties reached a $1.9 million settlement funded by the defendants’ insurer.

The court held the settlement was fair, reasonable, and in the best interests of the class, and approved both the settlement and reduced contingency fees.

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.