Jill M. Knudsen

The plaintiffs brought an omnibus motion for certification, settlement approval, and class counsel fee approval in a class action against a vending machine distributor and a vendor of candies.

The action alleged misrepresentation and breach of the statutory duty of fair dealing under the Arthur Wishart Act.

Following the dismissal of the action against the candy vendor and the dissolution of the vending machine distributor, the parties agreed to a settlement distributing the remaining trust funds pro rata among class members.

The court certified the action for settlement purposes, approved the settlement as fair and reasonable, and approved class counsel's reduced fee request.

Franchisee plaintiffs commenced a proposed class proceeding alleging that the franchisor breached disclosure obligations and interfered with franchisees’ statutory right to associate under the Arthur Wishart Act (Franchise Disclosure), 2000 after converting exclusive territories to non‑exclusive territories.

The franchisor moved to stay the action based on arbitration clauses contained in the franchise agreements.

The plaintiffs argued the statutory right to associate under the Arthur Wishart Act encompassed the right to pursue a class action and therefore invalidated the arbitration clause.

The court held that the Act does not manifest legislative intent to override arbitration agreements and that s. 7 of the Arbitration Act, 1991 requires enforcement of such clauses absent explicit statutory intervention.

Applying Seidel v. TELUS Communications Inc., the court concluded the disputes must proceed by arbitration and stayed the proposed class proceeding.

Following the dismissal of a motion seeking interim relief compelling a plaintiff to disentangle its business from that of the defendants, the court addressed the issue of costs.

The responding party sought substantial indemnity costs relying on Rule 49.10(1) of the Rules of Civil Procedure based on an earlier offer to settle proposing dismissal of the motion without costs.

The court held that the rule did not apply in the circumstances because the motion had been brought by the defendants and the offer did not trigger the cost consequences claimed.

Exercising discretion under Rule 57.03 and considering concessions made during the motion and the broader context of the dispute, the court fixed costs of $15,000 payable in the cause.