John Pirie

The appellant, a corporate officer and sole director, appealed a judgment finding him personally liable for civil fraud arising from his company's failure to deliver 3 million NIOSH certified N95 masks during the COVID-19 pandemic to a Quebec hospital network, after receiving over US$11 million in advance payment.

The Court of Appeal dismissed the appeal, holding that the trial judge applied the correct threshold for recklessness in finding civil fraud and that the law clearly supports personal liability of officers and directors for fraudulent conduct, without needing to assess whether the conduct was "tortious in itself" or exhibited a "separate identity or interest."

Following the dismissal of the defendants' motion on the basis of forum non conveniens, the Litigation Trust and the Class sought costs.

The court awarded the Class $6,000 on a partial indemnity basis for maintaining a watching brief.

The court awarded the Litigation Trust full indemnity costs of $208,590.73, finding that the defendants' motion was captured by the Standstill Agreement between the parties, which provided for full indemnity costs in the event of a breach.

The plaintiff sued the defendant appraisers for professional negligence after an arbitrator rejected their real estate appraisal, resulting in the plaintiff receiving a lower buyout price for its property interest.

The defendants brought a third party claim against the plaintiff's former lawyers, alleging the lawyers negligently represented the plaintiff during the arbitration and caused the losses.

The lawyers moved to strike the third party claim, arguing it merely alleged a failure to mitigate and was barred by issue estoppel.

The defendants cross-moved to amend the claim and add another law firm as a third party.

The court struck the portions of the third party claim that amounted to a failure to mitigate the initial loss caused by the appraisal.

However, the court allowed the broader claims regarding the lawyers' negligent representation at the arbitration to proceed, finding they disclosed a tenable cause of action.

The court also granted the defendants leave to add the proposed third parties.

The plaintiffs brought a motion for further document production, including an independent search of a defendant's emails, and costs thrown away due to a trial adjournment.

The defendants brought motions for leave to amend a statement of defence and for production of settlement agreements between the plaintiffs and other defendants.

The court dismissed the plaintiffs' discovery motion, finding they had declared readiness for trial despite knowing of the alleged document deficiencies.

The defendants' motion for production of settlement agreements was granted in part, with individual settlement amounts ordered redacted.

Following a motion where the plaintiff was successful, the court considered costs submissions.

The plaintiff sought substantial indemnity costs based on a settlement offer, which the court rejected.

Applying the factors in the Rules of Civil Procedure and Boucher, the court awarded the plaintiff partial indemnity costs of $22,500, in accordance with the parties' prior agreement on the quantum for partial indemnity costs.

Following a Rule 21 motion where the defendants successfully struck the plaintiff's pleading but the plaintiff was granted leave to amend, the parties made written submissions on costs.

The defendants sought to defer costs, while the plaintiff sought costs based on a pre-motion offer to settle that proposed an amended pleading and a no-costs or costs-in-the-cause disposition.

The court noted the defendants' basic but divided success and the plaintiff's reasonable settlement offer, ultimately ordering that the costs of the motion be in the cause.

Following the dismissal of the action against certain brokerage defendants on a motion for partial summary judgment, those defendants sought substantial indemnity costs of the action and the motion.

The court reaffirmed the principle that costs generally follow the event and held that the successful defendants were entitled to their costs from the plaintiff.

Although the defendants had made several settlement offers, the court determined that partial indemnity costs were appropriate rather than substantial indemnity.

The court assessed reasonable costs for the summary judgment motion and the remaining litigation steps, reducing claimed hours where the defendants had played a limited or watching role.

Total costs were fixed at $60,000 plus HST for fees and $5,249.87 for disbursements, payable by the plaintiff.

Insurance brokers brought a motion for partial summary judgment seeking dismissal of a negligence claim alleging failure to obtain adequate insurance coverage for a commercial property.

The plaintiff had pleaded that the brokers failed to secure sufficient coverage and failed to advise regarding a co‑insurance clause.

The court found the documentary email record demonstrated the insured provided specific instructions regarding coverage and did not rely on the brokers to assess insurance needs.

The plaintiff also failed to adduce expert evidence establishing breach of the standard of care and could not demonstrate any loss caused by the brokers because the insurance coverage ultimately exceeded the repair costs.

Finding no genuine issue requiring a trial, the court granted summary judgment dismissing the action against the broker defendants.

A lawyer sought enforcement of an indemnity agreement executed by former clients in relation to claims arising from the release of disputed trust funds.

After a third-party action was commenced against the lawyer, his professional insurer settled the claim for $100,000 and sought reimbursement under the indemnity agreement.

The respondents argued the settlement was improvident and unreasonable.

The court held that the settlement was reasonable in the circumstances, particularly given the uncertainty of a pending Rule 21 motion and the risks of continued litigation involving a multi‑million‑dollar claim.

The respondents were found jointly and severally liable to reimburse the amounts paid under the indemnity agreement.

A receiver was appointed over a fraudulent investment scheme where the deposits of 24 investors were commingled.

The receiver sought directions on how to distribute the remaining funds, which had a significant shortfall.

One group of investors argued for a pro rata distribution based on original contributions, while another argued for the Lowest Intermediate Balance Rule (LIBR).

The court held that LIBR is the general rule for resolving competing claims to commingled funds unless it is unworkable.

Finding that the receiver could practically calculate the LIBR distributions, the court ordered the funds to be distributed according to LIBR.

The moving parties in a proposed securities misrepresentation class proceeding sought court approval of a third‑party litigation funding agreement prior to certification.

The proposed agreement provided that the funder would pay certain disbursements and indemnify the plaintiffs against adverse costs in exchange for a capped commission from any settlement or judgment.

The court considered the developing law on litigation funding, including concerns about champerty and maintenance, and confirmed that such agreements are not categorically unlawful but require judicial approval.

Finding that the agreement preserved counsel’s independence, protected defendants through security for costs, and promoted access to justice, the court approved the funding arrangement.

In a proposed securities class action alleging misrepresentations in the primary and secondary markets, the plaintiffs sought an order compelling defendants to deliver statements of defence and requested that the certification motion be heard together with a leave motion under s. 138.8 of the Securities Act.

The defendants opposed delivering defences before certification and sought a sequence of motions beginning with the leave motion, followed by Rule 21 motions and then certification.

The court held that pleadings should generally be completed before certification and that ordering the delivery of a statement of defence was not contrary to law or due process.

However, the court limited the requirement to defendants who filed affidavits under s. 138.8(2) of the Securities Act, while permitting other defendants to plead voluntarily without losing the ability to bring Rule 21 motions.

The court further ordered that the leave motion and certification motion be heard together to avoid delay, inefficiency, and serial appeals.