Joel Wiesenfeld

Following certification of a class proceeding concerning foreign exchange transactions in registered accounts, the plaintiffs sought substantial indemnity costs based on an unaccepted offer to settle made prior to the certification motion.

The defendants argued the outcome of the certification motion was less favourable than the offer and disputed the amount of fees and disbursements claimed.

The court held that the result of the certification motion was as favourable as the plaintiffs’ offer within the meaning of Rule 49.10 and that the defendants’ objections were overly technical.

Certain fees and disbursements were reduced, but the court concluded the remaining amounts were fair and reasonable in light of the work required for the certification motion.

Substantial indemnity costs were awarded from the date of the offer to settle.

The plaintiffs brought a motion for certification of a proposed class action against the defendants regarding foreign currency conversions in registered accounts.

The plaintiffs alleged that the defendants charged undisclosed, unnecessary, and unauthorized foreign exchange fees when converting foreign currency to Canadian dollars in RRSPs and other registered accounts.

The court found that the plaintiffs met all five criteria for certification under section 5 of the Class Proceedings Act, 1992, including disclosing causes of action for breach of contract, breach of fiduciary duty, and unjust enrichment.

The action was certified as a class proceeding.

The moving party defendants sought leave to appeal a motions judge's refusal to strike out the plaintiff's claims for 'knowing assistance of breach of fiduciary duty' and 'assisting or facilitating breach of contract' in a proposed class action arising from investments in a hedge fund.

The Divisional Court granted leave to appeal, finding that there were conflicting decisions regarding the existence of the tort of assisting breach of contract, and good reason to doubt the correctness of the decision regarding knowing assistance of breach of fiduciary duty given the plaintiff was not a client of the defendants.

The issues were deemed to be of general importance to the investment industry.

The appellants, a stockbroker and two brokerage firms, appealed a trial judgment finding them liable for negligence and breach of contract resulting in the respondents' investment losses.

The trial judge found the broker engaged in unauthorized trading and the firms failed to supervise him or warn the clients.

The respondents cross-appealed the dismissal of their claims for loss of opportunity and punitive damages.

The Court of Appeal dismissed both the appeal and the cross-appeal, upholding the trial judge's findings on liability, apportionment, mitigation, and costs.

The moving party brought a motion for leave to intervene as a friend of the court in an appeal involving stock broker liability.

The court applied the test for intervention and found that the proposed intervention would not make a useful contribution to the resolution of the appeal, as the issues in the main appeal were essentially fact-driven and the intervention was not supported by any of the parties.

The motion for intervenor status was dismissed with costs.

The appellant, an unauthorized dealer, sold genuine Seiko watches lawfully acquired from outside the authorized Canadian distribution network.

The respondent, the authorized Canadian distributor, obtained a permanent injunction at trial preventing the appellant from advertising or selling Seiko watches in Canada, arguing that the sale of the watches without the authorized warranty and point-of-sale service constituted passing off.

The Supreme Court of Canada allowed the appeal and struck out the injunction, holding that neither the classic nor the extended tort of passing off applies where a vendor sells identical, lawfully acquired goods under their original trademark, provided there is no misrepresentation to the public.