J. Kenneth McEwan

The applicant sought a declaration for payment of over $4 million in "Take-or-Pay Fees" and unpaid invoices from a contract manufacturing agreement, alleging the respondent failed to meet minimum order volumes.

The respondent argued the matter was unsuitable for an application under Rule 14.05(3)(d) due to material facts in dispute, the enforceability of a potential penalty clause, and the impact of the COVID-19 pandemic.

The court agreed with the respondent, converting the application into an action for trial, finding that the dispute involved complex factual issues, including potential contract modification, estoppel, and frustration, which required discoveries and a fulsome record.

The representative plaintiff, Fanshawe College, sought to amend the class definition in a certified class proceeding alleging price-fixing of LCD panels.

Two amendments were proposed: a broad "all purchasers' amendment" to include all direct and indirect purchasers, and an "alternative amendment" to expand the list of named OEMs and distributors.

The court denied the "all purchasers' amendment" finding it an abuse of process as it attempted to re-litigate an issue previously abandoned and decided by the certification judge.

However, the court granted the "alternative amendment" as it was specifically contemplated by the certification judge and the claims were not found to be time-barred.

The appellant brought a motion to strike portions of the respondents' factums, arguing they raised issues beyond the scope of the appeal.

The respondents brought a cross-motion to consolidate their Divisional Court appeal with the appellant's Court of Appeal appeal.

The Court of Appeal dismissed the motion to strike, finding the respondents were entitled to raise additional arguments to sustain the lower court's order.

The Court granted the motion to consolidate, noting overlapping issues regarding the discoverability rule under the Competition Act and overlapping evidence.

The plaintiff moved for leave to file a fresh as amended statement of claim in a proposed class proceeding alleging price-fixing of large panel LCD products.

The amendment sought to add a new named plaintiff and revise the pleading to include LCD panels as a separate defined category.

The court held the amendments were substantive, not cosmetic, because they expanded the action to a wider range of products and a larger putative class.

The proposed added plaintiff was not already within the pleaded class definition, so the tolling provision in s. 28(1) of the Class Proceedings Act did not suspend its limitation periods.

The motion was dismissed.

Direct and indirect purchasers sought certification of a class action alleging unlawful price-fixing of high-fructose corn syrup and pass-through overcharges.

The majority held indirect purchasers may in principle sue, but certification failed for that group because there was no evidentiary basis that at least two members could self-identify as having purchased affected products during the class period.

It also held the direct purchasers’ constructive trust claim was plain and obvious to fail for lack of proprietary nexus and inadequacy of monetary remedy.

The appeal by the proposed indirect purchaser class was dismissed and the respondents’ cross-appeal was allowed.

Dissenting reasons would have found an identifiable class and certified the indirect purchaser claims.

The appellants, Ontario limited partnerships, mistakenly believed that fees paid to non-resident film studios were deductible and remitted withholding taxes to the Canada Revenue Agency (CRA) on their behalf.

When the CRA later denied the deductions, meaning no withholding tax was actually owed, the appellants sued the CRA in unjust enrichment to recover the remitted funds.

The Court of Appeal affirmed the dismissal of the action, holding that under the Income Tax Act, any overpayment is owed only to the non-residents, not the remitting party.

Furthermore, Part XIII of the Act provides a complete procedural code for the return of withholding taxes, granting exclusive jurisdiction to the Tax Court of Canada.

A lawyer (Strother) advised his client (Monarch) that its tax-shelter business was dead due to new tax rules.

Later, Strother learned of a potential workaround and agreed to help a former Monarch executive (Darc) obtain a tax ruling for a new company (Sentinel) in exchange for a personal financial interest in Sentinel's profits.

Strother did not disclose this to Monarch, which remained a client of his firm (Davis).

The Supreme Court of Canada held that Strother breached his fiduciary duty of loyalty to Monarch by acquiring a personal financial interest in a competitor that conflicted with his duty to provide candid advice to Monarch.

Strother was ordered to disgorge his profits from Sentinel for the period he remained at Davis.

Davis was held vicariously liable for Strother's breach under s. 12 of the Partnership Act, despite being innocent of the breach.