John E. Callaghan

This endorsement addresses the costs of appeals and a cross-appeal that were previously dismissed.

The appellants proposed an aggregate payment of $300,000 as partial indemnity costs.

The respondents sought higher amounts, with one group seeking full indemnity.

The court found the amounts sought by the respondents to be reasonable and proportionate, noting cooperation among counsel and no duplication of effort.

The court awarded specific partial indemnity costs to each respondent group, totaling $549,082.93.

The Ontario Superior Court of Justice heard unopposed applications by the Joint Committee in the national Hepatitis C class actions (Parsons and Kreppner) to allocate approximately $160 million in "Excess Capital" from the settlement fund.

The Joint Committee proposed four recommendations to increase various benefits for approved class members and family members, including lump sum payments, loss of guidance/care/companionship awards, lost pension benefits, and loss of services rates.

The court granted the application, finding the proposed allocations reasonable, non-discriminatory, and consistent with the settlement agreement's purpose of bridging compensatory gaps.

This is a complex set of appeals concerning anti-SLAPP motions.

The appellants (Catalyst parties) appealed the dismissal of two of their actions (Defamation and Wolfpack actions) and the dismissal of their partial anti-SLAPP motion against a counterclaim.

The court dismissed all appeals, upholding the motion judge's findings that the Catalyst parties' actions were strategic attempts to silence critics, lacked substantial merit against some respondents, and that the public interest in protecting expression outweighed the public interest in continuing the proceedings.

The court also upheld the costs awards against the Catalyst parties, emphasizing the deterrent purpose of anti-SLAPP legislation against abusive litigation.

The moving parties sought leave to appeal the February 12, 2021 decision of McEwen J. The Divisional Court dismissed the motion for leave to appeal and awarded costs of $5,000 to the respondents.

The defendants in a complex defamation action brought motions for the production of documents related to 'Project Maple Tree', an operation undertaken by foreign investigative agents (including Black Cube) retained by the plaintiffs.

The plaintiffs asserted solicitor-client and litigation privilege over the documents.

The court held that it had jurisdiction to hear the motions despite the stay provision in s. 137.1(5) of the Courts of Justice Act.

The court rejected the claims of solicitor-client privilege, finding the third-party investigators were not essential to the solicitor-client relationship.

The court also rejected the claims of litigation privilege for the vast majority of the documents, finding their dominant purpose was not legitimate litigation and that the 'Blank exception' applied because the agents engaged in improper conduct, including pretext stings on a former judge and opposing party employees.

The applicant First Nation sought judicial review of decisions by the Ontario Lottery and Gaming Corporation and the Minister of Finance regarding the modernization of gaming in Ontario, specifically the decisions to tender and bundle a gaming zone that included the applicant's reserve.

The Divisional Court dismissed the application, finding that the impugned decisions were policy and commercial in nature and therefore not justiciable.

The court also found no bad faith, no denial of procedural fairness, and no breach of the duty to consult.

Furthermore, the court granted the respondents' motion to dismiss the application for excessive and unexplained delay that caused prejudice.

Catalyst Capital Group Inc. attempted to acquire VimpelCom Ltd.'s interest in Wind Mobile Corp. but negotiations failed.

During negotiations, a junior analyst employed by Catalyst left to work for West Face Capital Inc., a member of a consortium that subsequently acquired Wind.

Catalyst sued the former employee and West Face for breach of confidence and other claims (the Moyse Action).

The trial judge dismissed the action, finding that no confidential information was communicated and that Catalyst suffered no detriment because its own refusal to agree to a break fee and its insistence on regulatory concessions made the deal impossible.

Catalyst then commenced a second action against the consortium members and others alleging breach of confidence, conspiracy, and inducing breach of contract.

The motion judge dismissed the second action as barred by issue estoppel, cause of action estoppel, and as an abuse of process.

The Court of Appeal upheld the dismissal, finding that Catalyst was attempting to relitigate factual findings from the first action and that it could have advanced all claims in the first proceeding.

This is a costs endorsement following a successful motion by the defendants to strike out the plaintiffs' statement of claim, with leave to amend.

The defendants sought costs on a substantial indemnity scale, arguing the claims were baseless and important to their reputations.

The court denied substantial indemnity costs, finding no reprehensible conduct by the plaintiffs.

Instead, the court awarded costs on a partial indemnity scale to both groups of defendants, fixing specific amounts for fees and disbursements, emphasizing that costs are not a mechanical exercise and must be fair and reasonable for the unsuccessful party.

The plaintiff brought a motion to proceed with examinations for discovery in the main action separately from the third party claim.

The main action involved allegations of negligence against environmental consultants for failing to identify contamination prior to the plaintiff's purchase of the property.

One defendant issued a third party claim against previous owners, causing significant delays in scheduling discoveries.

The court granted the motion, finding no overlap in liability issues between the main and third party claims, and held that the plaintiff should not be prejudiced by further delays caused by the third party proceedings.

The plaintiffs brought a motion to approve a US$90 million settlement of a class action against the defendant auditors for alleged negligence and misrepresentation in auditing a company's financial statements.

The court considered the significant litigation risks, the defences advanced, and the depletion of the defendants' insurance coverage.

Finding the settlement fair, reasonable, and in the best interests of the class, the court approved the settlement.

The court also approved class counsel's contingency fee request of approximately $21.9 million, noting the substantial risk undertaken and the successful result achieved after 17 years of litigation.

The appellant, a debt collector, was laid off when the respondent lost its contract with Capital One.

The respondent subsequently received a $6.675 million settlement from Capital One.

The appellant brought a class action alleging the respondent breached employment contracts by failing to pay commissions on the settlement payment.

The motion judge granted summary judgment dismissing the class action.

The Court of Appeal upheld the dismissal, finding that the motion judge did not err in interpreting the Commission Agreement as requiring employees to exceed a "breakeven" financial target to earn commissions, which laid-off employees could not satisfy.

The court also found no error in the motion judge's interpretation of the Settlement Agreement and upheld the use of summary judgment as an appropriate procedure.

Bombardier Transportation Canada Inc. (BTC) sought an interlocutory injunction to prevent Metrolinx (MTX) from terminating a $770 million contract for light rail vehicles (LRVs) due to alleged material default, pending the completion of a mandatory dispute resolution process.

BTC also sought to remove the Engineer, Jeffrey Rankin, for alleged partiality.

The court found that the contract's dispute resolution process applied to MTX's right to terminate for material default.

Applying the RJR-MacDonald test, the court determined there was a serious issue to be tried, BTC would suffer irreparable harm (loss of reputation, future business, supply chain disruption, and employee expertise), and the balance of convenience favored maintaining the status quo.

The court granted the interlocutory injunction, prohibiting MTX from terminating the contract until the Dispute Review Board (DRB) ruled on the default, and ordered the injunction to be nunc pro tunc to stay cure periods.

The issue of the Engineer's impartiality was referred to the DRB.

This is a costs endorsement on appeal from a partial summary judgment motion.

The appellants (lenders) and respondents (Deloitte) agreed on the quantum of costs for both the motion below and the appeal but disagreed on timing of payment.

The respondents argued costs should remain in the cause based on an alleged agreement that no money change hands on interlocutory motions until final resolution.

The Court of Appeal rejected this argument, finding it inconsistent with the respondents' own prior positions and earlier costs orders in the litigation.

The court determined that the motion judge erred in granting partial summary judgment and that costs should be fixed and payable immediately.

The appellants, a syndicate of lenders, sued the respondent auditors for negligent and reckless misrepresentation after advancing funds to a company based on audited financial statements that failed to disclose a massive accounting fraud.

The motion judge granted partial summary judgment dismissing the lenders' negligence claim, finding that the spectre of indeterminate liability negated the auditors' prima facie duty of care.

The Court of Appeal allowed the appeal, holding that partial summary judgment was inadvisable in the context of the litigation as a whole due to the real risk of duplicative or inconsistent findings at the upcoming trial on the remaining claims.

The plaintiff brought a proposed class action alleging a price-fixing conspiracy in the LCD industry, asserting claims in civil conspiracy and under s. 36 of the Competition Act.

The defendants appealed the dismissal of their summary judgment motion regarding limitation periods, while the plaintiff appealed the denial of leave to amend its statement of claim to add a direct purchaser.

The Court of Appeal held it lacked jurisdiction to hear the defendants' appeal on the civil conspiracy limitation issue as the order was interlocutory and leave was not granted.

The Court affirmed that the discoverability principle applies to the limitation period in s. 36(4)(a)(i) of the Competition Act.

The Court also allowed the plaintiff's appeal, granting leave to amend the statement of claim, and confirmed that it is not plain and obvious that a breach of s. 45 of the Competition Act cannot serve as the unlawful means for a civil conspiracy claim.

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.

Following a successful partial summary judgment motion, the defendants sought costs of $700,000 plus disbursements payable forthwith.

The plaintiffs argued costs should be in the cause.

The court agreed with the plaintiffs that costs should be in the cause, as the trial was imminent and the trial judge would be in the best position to allocate liability for costs.

The court clarified that the costs would be in the cause of the specific plaintiff's action, not the consolidated action involving a receiver.

Lenders brought a class proceeding alleging negligent misrepresentation by auditors in connection with audited financial statements relied upon when extending a large syndicated loan.

The defendants moved for partial summary judgment dismissing the negligent misrepresentation claim on the basis that no duty of care was owed to the lending syndicate.

Applying the principles from Hercules Managements Ltd. v. Ernst & Young, the court held that auditors generally owe duties to the corporation and its shareholders but not to third-party lenders due to concerns about indeterminate liability.

Although the auditors knew lenders would likely review the statements, they did not know the identity of the lenders nor prepare the audits for the specific lending transaction.

The court concluded the circumstances did not negate indeterminate liability and no duty of care arose.

The moving party brought a motion to quash an appeal from an order dismissing a motion for summary judgment.

The moving party conceded that the order did not preclude the responding party from advancing its arguments regarding s. 36(4) of the Competition Act or abuse of process as substantive defences at trial, and agreed not to advance an argument of res judicata.

Based on this concession that the order was interlocutory rather than final, the Court of Appeal quashed the appeal and awarded costs to the moving party.

The Attorney General of Ontario appealed a motion judge's decision that allowed an Ontario supervisory judge to sit outside the province with judges from British Columbia and Quebec to hear motions regarding a national class action settlement, without requiring a video link to an Ontario courtroom.

The Court of Appeal held that while superior courts have the inherent jurisdiction to conduct hearings outside their home province, the open court principle under section 135 of the Courts of Justice Act requires a video link to a reasonably accessible Ontario courtroom.

The appeal was allowed to amend the order to require a video link.