Karin Sachar

This appeal arises from the 2009 General Motors of Canada bailout and the termination of franchise dealerships.

The franchisor offered Wind-Down Agreements to 240 dealers, providing payment in exchange for comprehensive releases of all claims, including those under the Arthur Wishart Act.

The dealers were required to obtain independent legal advice before signing.

A class action was subsequently brought by terminated franchisees claiming breaches of statutory rights.

The trial judge found the releases valid under the Tutor Time exception to section 11 of the Wishart Act, as they constituted settlements of known and existing claims entered into with legal advice.

The trial judge also held that covenants not to sue and indemnity provisions were void for public policy reasons but were severable from the release.

The Court of Appeal upheld both the validity of the releases and the severance of the covenant not to sue.

Following the successful certification of a class action regarding transvaginal mesh devices, the plaintiffs sought costs of $900,000 on a partial indemnity basis.

The certification motion was heard in two phases, with the first phase adjourned to allow the plaintiffs to gather additional evidence.

The court found that the plaintiffs were the successful party and entitled to costs.

However, recognizing that the defendants should not have to pay for the plaintiffs' 'education' from the first phase unless the defendants are ultimately found culpable, the court awarded $425,000 payable forthwith (accounting for a $25,000 deduction for an abandoned motion) and $450,000 payable in any event of the cause.

This decision concerns a resumed certification motion for a proposed class action against Boston Scientific Ltd. and Boston Scientific Corporation regarding transvaginal mesh medical devices.

The plaintiffs, Susan and Darin Vester, alleged negligent design and failure to warn.

Following an initial adjournment due to a lack of common issues, new expert evidence was presented demonstrating a "some-basis-in-fact" for common issues related to the degradation of the polypropylene mesh (HGX-030-01) and the inadequacy of warnings in the Directions For Use (DFU).

The court found that the new evidence sufficiently identified a discrete defect common to all devices and a plausible medical theory of harm, satisfying the common issues and preferable procedure criteria.

The motion to certify the class action was granted.

The moving party sought to lift a stay of proceedings previously granted by the Court of Appeal on the basis of forum non conveniens.

Following the stay, the moving party's attempt to pursue a class action in the United States for pre-explosion misrepresentations was dismissed on procedural grounds, and the responding party conceded the claim was governed by Ontario law.

The Court of Appeal found these new developments constituted facts arising after the order that justified lifting the stay to avoid an injustice, allowing the moving party to proceed with the claim in Ontario.

The applicant alleged that the respondent insurance company discriminated against him on the basis of race when it determined he was 100% liable for an automobile accident.

The Tribunal held a summary hearing to determine if the application had a reasonable prospect of success.

The Tribunal found that the applicant provided no evidence beyond his own subjective suspicion to link the liability determination to his race.

The application was dismissed for having no reasonable prospect of success.

The appellant appealed a motion judge's decision striking her application for declaratory relief as an abuse of process.

The appellant alleged that State Farm wrongly transmitted her confidential medical information outside Ontario without consent.

The Court of Appeal upheld the motion judge's finding that the application was duplicative of the appellant's pending action for statutory accident benefits and circumvented the comprehensive dispute resolution schemes under the Insurance Act and PIPEDA.

The appeal and a motion to adduce fresh evidence were dismissed.

The plaintiffs sought certification of a proposed national class action alleging negligent design and failure to warn in relation to transvaginal mesh medical devices used to treat stress urinary incontinence and pelvic organ prolapse.

The court held that the pleadings disclosed viable causes of action and that the proposed class definition satisfied the identifiable class requirement under the Class Proceedings Act, 1992.

However, the plaintiffs failed to establish some-basis-in-fact for common issues, particularly because no specific design defect in the polypropylene mesh or common inadequacy in the warnings across nine different products was identified.

The evidence demonstrated significant variation among the devices, their uses, and potential complications, undermining commonality.

The certification motion was therefore adjourned under s. 5(4) of the Act to allow the plaintiffs an opportunity to amend their materials and provide further evidence supporting common issues.

Following dismissal of an application alleging privacy breaches and misrepresentations relating to the transfer of insurance assets and insured persons’ information, the court determined the appropriate costs award.

The unsuccessful applicant argued that no costs should be awarded because the matter raised issues of public interest and the law regarding enforcement of privacy rights was uncertain.

The court rejected those submissions, noting the seriousness of the allegations and the prior finding that the proceeding constituted an abuse of process.

Considering the factors under Rule 57.01 of the Rules of Civil Procedure and the respondents’ reduced claim for costs, the court exercised its discretion to award a fixed amount.

Costs were ordered payable to the respondents.

In this certified franchise class action arising from the 2009 automotive restructuring, the representative plaintiff alleged that the franchisor breached statutory duties of fair dealing, disclosure, and association when it issued wind-down agreements to affected dealers on short notice, and also alleged that class counsel acted in conflict and failed to protect the dealers' interests.

The court held that the franchisor did not breach its obligations under the Arthur Wishart Act or analogous provincial legislation, found the wind-down release enforceable as a settlement of existing and fully known claims, and dismissed the claim against the franchisor as well as the franchisor's counterclaim.

The court further held that the law firm retained for the dealer group had in fact entered into a solicitor-client relationship with the contributing dealers, that its retainer extended to pre-filing restructuring issues, and that it breached fiduciary, contractual, and tort duties by acting despite an undisclosed conflict with Industry Canada, failing to address the steering committee's internal conflict, and maintaining an unreasonable wait-and-see approach.

Applying a loss-of-chance analysis, the court found that the class lost a real and significant opportunity to negotiate collectively for higher wind-down payments and awarded aggregate damages of $45 million against the law firm.

The moving parties (insurers) brought a motion to strike out an application seeking declaratory relief regarding alleged breaches of privacy and insurance legislation.

The responding party had commenced multiple other proceedings, including a tort claim, an accident benefits claim, and complaints to regulatory bodies.

The court granted the motion to strike, finding that the application was an abuse of process because declaratory relief would serve no practical purpose and the governing statutes provided their own mandatory procedures for resolving the disputes.

The representative plaintiff appealed an order of a Master dismissing a motion for production of communications between a distressed company and its financial advisor and between the company and government actors.

The court considered whether solicitor‑client privilege extended to communications with a financial advisor who might have served as a CCAA monitor, and whether common interest privilege protected communications with federal and provincial governments during restructuring negotiations.

The court held that the financial advisor’s role was integral to the legal advice provided and that the communications were subject to solicitor‑client privilege.

The court also upheld the Master’s finding that communications shared with governments during negotiations to secure restructuring funding were protected by common interest privilege.

Finding no palpable and overriding error in the Master’s factual determinations, the appeal was dismissed.

In a large commercial dispute arising from a subcontract on an SAP implementation project, the plaintiffs sought an order imposing a discovery plan and requiring further documentary production from the defendant.

The defendant had initially produced substantially fewer documents and later disclosed that thousands of additional documents from a project repository had not been produced due to inadvertence.

The court addressed the role of proportionality in electronic discovery under the Rules of Civil Procedure and emphasized that discovery must be proportionate to the issues and costs of the litigation.

The court ordered additional electronic searches and production from selected custodians and directed restoration and review of backup data using specified search parameters.

The defendant’s cross‑motion seeking reciprocal additional production from the plaintiffs was dismissed.