Jeremy James Devereux

The defendant brought a motion to remove the plaintiff's counsel from either the proposed class action or the plaintiff's related individual wrongful dismissal action due to a conflict of interest, and to temporarily stay the individual action.

The court found that counsel's duty of commitment to the plaintiff in the individual action conflicted with the sui generis duty owed to the proposed class members, as the actions shared overlapping issues regarding common employment and vacation pay calculation.

The court ordered counsel removed from one of the actions and temporarily stayed the individual action pending the certification motion.

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.

In four proposed class actions concerning investments in syndicated mortgages for land development projects, the defendants brought motions to strike the plaintiffs' statements of claim.

The court struck out the claims against the individual directors and officers of the corporate defendants without leave to amend, finding that the pleadings failed to allege any independent tortious conduct or separate identity of interest from the corporations.

The statements of claim against the remaining defendants were struck out in their entirety with leave to deliver fresh as amended statements of claim.

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.

Following the dismissal of a Rule 21 motion seeking to strike a defamation action, the court determined the appropriate costs order.

The moving party had attempted to use Rule 21 to establish that a defence of privilege would succeed, which the court previously held to be an improper use of the rule.

The successful plaintiffs sought costs payable immediately under Rule 57.03(1), while the moving party requested costs in the cause on the basis that the defence might ultimately succeed at trial.

The court held that the motion represented a procedural misstep but that fairness required a moderated approach.

Costs of $24,187.37 were awarded to the plaintiffs in any event of the cause.

The defendant brought a motion under Rule 21.01(1)(a) and Rule 21.01(3)(d) of the Rules of Civil Procedure seeking dismissal of a defamation action commenced by developers of a condominium project.

The defendant argued that the alleged statements were protected by absolute or qualified privilege and that the claim was frivolous, vexatious, or an abuse of process.

The court held that Rule 21 cannot be used by a defendant to prove the success of a defence such as privilege; rather, the rule is intended to determine whether a plaintiff’s claim is plainly and obviously untenable in law.

The motion also failed because the defendant provided no evidentiary record supporting the abuse-of-process argument.

The court dismissed the motion and allowed the defamation action to proceed.

The plaintiff condominium owner sought certification of a class action arising from allegedly defective balcony railings at a Toronto condominium complex.

After a railing detached and fell, engineering reports concluded the guard-rail assemblies did not comply with the applicable Ontario Building Code, requiring removal and replacement of all balcony railings and resulting in extended restrictions on balcony use.

The proposed class consisted of persons who owned, rented, or resided in units whose balconies were inaccessible during the remediation period.

The court held that the pleadings disclosed viable causes of action in negligence and breach of contract, that an identifiable class and common issues existed, and that a class proceeding was the preferable procedure with an adequate representative plaintiff.

Certification under the Class Proceedings Act, 1992 was therefore granted.

The plaintiff moved for leave to amend a statement of claim arising from alleged investment fraud by an advisor and alleged supervisory failures by institutional defendants.

Some amendments were granted on consent and some were withdrawn.

The court granted the contested amendments, holding they pleaded material facts rather than evidence, were relevant to negligence and punitive damages allegations, and were proportionate despite increasing the scope and complexity of discovery and trial.

Leave was also granted for a further particular of alleged negligence.

Bryan Andrew Vickers applied to the Ontario Securities Commission for a hearing and review of an IIROC hearing panel decision that suspended and fined him for failing to adequately supervise a registered representative.

Vickers argued the IIROC panel erred by basing its sanctions on a Guidance Note that was not included in the Agreed Statement of Facts.

The Commission found that the IIROC panel erred in law by considering the unadmitted Guidance Note and that its reasons were inadequate.

The application was granted and the matter was remitted to a newly-constituted IIROC hearing panel for reconsideration.

Following a trial where the plaintiffs were awarded $134,000 in damages against their investment advisors for negligence, the court determined the appropriate costs award.

The court found that the plaintiffs' subsequent settlement correspondence did not constitute valid Rule 49 offers, meaning they were only entitled to partial indemnity costs.

Applying the principle of proportionality, the court fixed the plaintiffs' costs at $195,000.

The court further held that the individual employee defendants, while proper parties, were not necessary parties, and therefore ordered the employer to bear the sole responsibility for paying the plaintiffs' costs, declining to make any costs orders against or in favour of the individual employees.