Joseph Groia

The appellant, Dov Markowich, appealed the dismissal of his motion for leave to bring a statutory cause of action against Lundin Mining Corporation under the Securities Act for alleged failure to disclose a material change, and for certification of a class action.

The motion judge dismissed both.

The Court of Appeal found the motion judge erred by adopting an overly narrow interpretation of "change in the business, operations or capital" and by resolving evidentiary conflicts prematurely.

The Court clarified that "change" should be interpreted broadly, and its magnitude is relevant to materiality, not to whether a change occurred.

The appeal was allowed, leave was granted for the statutory cause of action, and the issue of class certification was remitted to the Superior Court.

The plaintiffs in a proposed class action sought a mid-certification motion adjournment to introduce new expert evidence, arguing a gap in their existing evidence regarding the class members' stake in the litigation.

The defendants opposed, characterizing the request as a fundamental re-conceptualization of the claim.

The court granted the adjournment, finding that the proposed new evidence would indeed necessitate a significant re-do of the case, including potential amendments to pleadings and common issues, and possibly a redefinition of the class.

Due to the substantial prejudice caused to the defendants by this shift, the court ordered the plaintiffs to pay costs thrown away.

Following an appeal, the Court of Appeal for Ontario issued a costs endorsement.

The appellants were ordered to pay the respondent's costs of the appeal, fixed at $27,689.52 inclusive of HST on a partial indemnity scale.

The plaintiffs sued their former lawyer and his law firm for professional negligence, breach of contract, and breach of fiduciary duty arising from the sale of their business.

The plaintiffs alleged the lawyer failed to properly advise them on the definitions and objection provisions in the share purchase agreement, resulting in a lower purchase price.

The court found that the action was not statute-barred but dismissed the claims on the merits.

The court held that the lawyer met the standard of care by explicitly advising the sophisticated plaintiff to obtain independent accounting advice on the business terms, which the plaintiff failed to do.

The court also found no breach of contract or fiduciary duty, and concluded that the plaintiffs failed to prove their damages or causation.

The appellants appealed the dismissal of their anti-SLAPP motion, which sought to dismiss a defamation counterclaim brought by the respondent.

The motion judge found that the respondent had suffered sufficient harm and that the public interest in permitting the counterclaim to continue outweighed the public interest in protecting the appellants' expression, noting the strategic nature of the motion.

The Court of Appeal dismissed the appeal, holding that the motion judge made no reviewable errors in inferring harm from the serious allegations or in conducting the weighing exercise.

The court also upheld the motion judge's discretionary award of partial indemnity costs to the respondent.

This decision concerns the costs arising from the dismissal of the plaintiff's motion for leave to commence a secondary market securities class action and to certify the action.

The defendants sought substantial indemnity costs, while the plaintiff argued for partial indemnity and a discount due to the alleged novel and public interest nature of the litigation.

The court awarded partial indemnity costs of $693,805.39, finding no basis for substantial indemnity as there was no reprehensible conduct or unproven fraud allegations.

The court also rejected the argument for a discount under s. 31(1) of the Class Proceedings Act, concluding that the issues were not novel or of broad public interest, particularly as they had been previously litigated.

A minor deduction was made for online research disbursements.

The applicants sought leave to appeal an arbitral award that dismissed their claims against former employees for breach of a non-solicitation clause and breach of confidence.

The applicants alleged the arbitrator committed several errors of law, including finding that responding to a Request for Proposal did not constitute solicitation and failing to find a breach of confidence.

The court dismissed the motion for leave to appeal, finding that the alleged errors were either questions of mixed fact and law or not errors of law, and would not significantly affect the rights of the parties.

The plaintiff sought leave to bring a statutory secondary market misrepresentation claim under the Securities Act and to certify a class action for both statutory and common law negligent misrepresentation claims.

The claims arose from the defendant mining company's alleged failure to immediately disclose a pit wall instability and subsequent rock slide at its Chilean copper mine.

The court dismissed the motion for leave, finding no reasonable possibility of success that the events constituted a 'change' to the company's business, operations, or capital, as they were inherent mining risks managed in the ordinary course.

The court also dismissed the certification motion for the common law claim, holding that individual issues of reliance made a class proceeding unmanageable and not the preferable procedure.

The appellant, Detour Gold Corporation, brought an unopposed motion for leave to file a five-page reply factum.

The Court of Appeal granted the motion, using the opportunity to critique the current appellate rules that necessitate such motions.

The judge advocated for an automatic right to file brief reply factums to enhance written advocacy, improve judicial preparation, and reduce unnecessary litigation costs, highlighting a procedural gap in both civil and criminal appellate rules.

The moving defendants brought a motion for summary judgment to enforce a settlement agreement reached with the plaintiffs.

The plaintiffs argued the settlement lacked certainty and that the court should exercise its discretion not to enforce it, particularly because one plaintiff was a party under disability.

The court found that an objective reading of the communications between counsel established a binding agreement to settle.

The court also found the settlement was in the best interests of the party under disability and declined to exercise its discretion to set aside the agreement, noting the plaintiffs' remedy for any alleged bad advice lay against their former counsel.

The motion to enforce the settlement was granted.

The applicant sought a review of an IIROC hearing panel decision that ordered his merits hearing to proceed electronically by videoconference due to the COVID-19 pandemic.

The applicant argued that IIROC lacked jurisdiction to change the hearing mode over his objection and that the IIROC Rules entitled him to an in-person oral hearing.

The Ontario Securities Commission upheld the IIROC decision, finding that the IIROC Rules permit a hearing panel to choose the hearing mode and that a videoconference hearing satisfies a respondent's entitlement to attend and be heard 'in person'.

The Professional Centre brought a motion for summary judgment against The Ottawa Hospital concerning the interpretation of parking provisions in a 49-year lease and related Memorandum of Agreement.

The Professional Centre alleged breaches regarding the availability of 250 parking spaces, remittance of revenue from 40 parking spaces, and unauthorized use of encroaching parking spaces and an access road.

The Hospital denied any breach, asserting it exercised contractual discretion in good faith.

The court dismissed all of the Professional Centre's claims, finding no breach of the lease, that the Hospital had an implied easement over the access road, and that the Professional Centre failed to prove damages, including a high vacancy rate, were caused by the alleged parking issues.

The defendants sought leave to appeal an order granting the plaintiffs leave to amend their statement of claim, arguing the new claims were statute-barred.

The Divisional Court dismissed the motion for leave to appeal, clarifying that because the motions judge did not finally dispose of the limitations defence, the order was interlocutory.

The defendants remain free to plead the limitations defence in response to the amended claim at trial.

The appellant, a former senior compliance manager at Toronto-Dominion Bank (TD Bank), appealed the dismissal of her application for lack of standing.

She sought to uncover and remedy alleged regulatory infractions and trust breaches by TD Bank in its mutual fund administration, claiming unjust enrichment and wrongful dismissal.

The motion judge dismissed her application, finding she lacked standing.

The Court of Appeal dismissed the appeal, affirming that the court's inherent jurisdiction to supervise trusts does not negate standing requirements, that the private interest standing test (requiring a personal and direct interest) was correctly applied, and that the appellant failed to plead facts establishing such standing, including as a constructive trustee.

The court also rejected the argument that public interest standing principles should inform private interest standing or that her whistleblower status conferred standing for private litigation.

Marian Carroll, a former TD employee, brought an application seeking an order to compel The Toronto-Dominion Bank and its subsidiaries (TD Waterhouse Private Investment Counsel Inc. and TD Asset Management Inc., as Trustees of the TD Mutual Funds Trust and TD Private Funds Trust) to pass their accounts, alleging misconduct and breaches of trust.

The Respondents moved to strike the application for lack of standing.

The court found that Carroll lacked private interest standing as she was not a beneficiary or unitholder and had no direct financial interest in the trusts.

The court also rejected public interest standing, concluding that the application was not a reasonable and effective means to bring the matter before the court, given other available avenues for beneficiaries and regulatory bodies.

The Respondents' motion to strike was granted, and Carroll's application was dismissed with costs.

During a merits hearing, the Chair of the Panel was announced as the incoming Acting Chair and CEO of the Ontario Securities Commission.

The Panel raised the issue of whether this created a reasonable apprehension of bias, given the Chair's future management responsibilities over Staff.

After receiving submissions, the Panel concluded that a reasonable and informed person might perceive a bias in favour of Staff.

The Chair recused himself from the remainder of the merits hearing and a pending disclosure motion, and the hearing proceeded with the remaining two Panel members.

The plaintiff, Tracks & Wheels Equipment Brokers Inc., sought summary judgment for specific performance of options to purchase real property.

The defendant, KKP Investments Inc., brought a cross-motion to dismiss or stay the action as an abuse of process and for payment of rent.

The court dismissed the plaintiff's motion for partial summary judgment due to the risk of duplicative or inconsistent findings with a related "Main Action" and because it was not advisable in the context of the litigation as a whole.

The defendant's motion to dismiss or stay was also dismissed, as the court found the plaintiff's new action was a matter of form over substance given prior settlement attempts.

The defendant's request for interim rent was withdrawn.

Both actions were ordered to be tried together.

The respondent brought a motion to halt a section 127 enforcement proceeding, alleging that the Ontario Securities Commission lacked jurisdiction due to institutional bias.

The respondent argued that the Commission's overlapping functions as policy-makers, adjudicators, and board members, particularly regarding the allocation of funds received from a prior settlement agreement, created a reasonable apprehension of bias.

The Commission dismissed the motion, finding that the overlapping functions were statutorily authorized by the Securities Act and did not go beyond what was permitted.

The Commission also found no evidence to overcome the presumption of impartiality or to justify interfering with Staff's discretion in choosing the venue for enforcement.

The respondent in an Ontario Securities Commission proceeding brought a motion to strike certain paragraphs of an affidavit and factum filed by Staff on an upcoming jurisdiction motion, arguing the paragraphs were irrelevant.

The Commission dismissed the motion to strike, holding that Rule 25.11 of the Rules of Civil Procedure provides an appropriate guideline for striking evidence in Commission proceedings, and that irrelevance alone is insufficient to warrant striking evidence on a preliminary motion.

The relevance of the impugned evidence is best determined by the panel hearing the main motion after the evidence develops in cross-examination.

The plaintiffs in a class action sought court approval for a settlement agreement with certain defendants, class counsel fees and disbursements, and honorariums for the representative plaintiffs.

The settlement amount was $37 million.

The court approved the settlement, finding it fair and reasonable given the litigation risks, including dissolved corporate entities and limitations issues.

The court also approved the 30% contingency fee for class counsel and $50,000 honorariums for each representative plaintiff, recognizing their exceptional involvement and exposure to costs.