Kent E. Thomson

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.

This supplementary endorsement clarifies the scope of a previous endorsement regarding a motion for leave to commence a derivative action.

The court clarified that its prior decision assumed, without deciding, the arguable case for the causes of action and did not consider arguments regarding whether the derivative action was in the corporation's interest or brought in good faith, thereby preserving the parties' ability to advance these positions on appeal.

Following a successful motion by the defendants to prevent the plaintiffs from using extra-jurisdictional procedures to acquire documents from non-parties, the defendants sought partial indemnity costs of $75,365.38.

The plaintiffs argued for reduced costs of $15,000, citing the novelty and public interest of the issue under section 31 of the Class Proceedings Act, 1992.

The court rejected the plaintiffs' argument, finding the issue was not legally novel in a way that justified denying costs and noting the plaintiffs' conduct was improper.

The court awarded the defendants their costs as claimed.

The applicant filed a human rights complaint alleging discrimination based on ancestry, colour, and ethnic origin regarding the use of the Cleveland baseball team's name and "Chief Wahoo" logo during games and broadcasts in Ontario.

The Tribunal issued a Notice of Intent to Defer the application pending another proceeding.

The Tribunal determined that deferral was not appropriate because an injunction application had already been decided and a related federal human rights complaint raised jurisdictional issues that needed to be resolved first.

The Tribunal issued directions and a schedule for the parties to make submissions on the preliminary jurisdictional issues.

The applicant, an Indigenous person, sought an urgent interim and interlocutory injunction to restrain the broadcast and display of the Cleveland Indians' team name and 'Chief Wahoo' logo during the American League Championship Series in Toronto, pending human rights complaints.

The court found there was a serious issue to be tried regarding whether the name and logo constituted discrimination in the provision of a service.

However, the court dismissed the application because the applicant failed to establish irreparable harm, noting the delay in bringing the application, and found the balance of convenience favoured the respondents due to the material prejudice of last-minute broadcast and uniform changes.

The court issued a costs endorsement following the dismissal of the main action.

West Face Capital Inc. was awarded substantial indemnity costs of $1,239,965 due to the plaintiff's unfounded allegations of soliciting and misusing confidential information, which impugned West Face's integrity and honesty.

Brandon Moyse was awarded partial indemnity costs of $339,500.18, despite also facing integrity-damaging allegations, because he had destroyed evidence at the outset of the litigation, albeit without intent to destroy relevant evidence.

The court found the plaintiff's allegations against West Face and Moyse to be serious and unsubstantiated, justifying higher costs for West Face, while Moyse's conduct warranted a reduction to partial indemnity.

The plaintiff, Catalyst Capital Group Inc., brought an action against Brandon Moyse and West Face Capital Inc. for alleged misuse of confidential information regarding WIND Mobile Inc. and spoliation of documents.

Catalyst claimed Moyse, a former analyst, provided confidential information to West Face, which West Face then used to acquire an interest in WIND.

The court assessed the evidence, including witness credibility, and found no direct evidence of information transfer.

The court also examined the elements of breach of confidence and spoliation.

The action was dismissed in its entirety, with the defendants entitled to costs.

Two consortia of law firms appealed a carriage dispute over a multi-billion dollar securities class action against Barrick Gold Corporation.

The motion judge awarded carriage to the Rochon consortium, preferring their broader claims and more extensive preparation over the Koskie consortium's streamlined approach.

The Court of Appeal dismissed the appeal, finding no error in principle in the motion judge's application of the Vitapharm factors.

The Court affirmed that the ultimate question on a carriage motion is which action is more likely to advance the interests of the class, and the motion judge's exercise of discretion in balancing the relevant factors is entitled to considerable deference.

The defendants sought leave to appeal an order granting certification of a class action regarding allegedly defective hip implants.

The defendants argued that the motion judge's approach to evidence on commonality conflicted with other decisions and that there was good reason to doubt the correctness of the certification order.

The Divisional Court dismissed the motion for leave to appeal, finding no conflicting decisions and no reason to doubt the correctness of the motion judge's application of the 'some basis in fact' standard for certification.

The plaintiff, Husky, brought an action against its founder, Robert Schad, his new company Athena, and others, alleging misuse of confidential information relating to injection molding machines.

Husky claimed that Athena accessed confidential information from Husky machines placed at a third-party facility (Niigon) and used it to develop competing machines.

The defendants argued the claims were statute-barred, that most issues were settled during prior negotiations, and that no confidential information was misused.

The court dismissed Husky's claims, finding they were statute-barred as Husky knew of the material facts more than two years before commencing the action.

The court also found that the commercially available machines were not confidential, and that Athena did not make material use of any confidential information from the prototype machines.

Athena's counterclaim for abuse of process and injurious falsehood was also dismissed for lack of evidence.

The parties appeared on a motion to settle the terms of a judgment following a class action trial.

The court resolved three disputes between the plaintiff and the defendant law firm regarding the wording of the judgment.

The court held that the judgment should include a mechanism allowing for a potential reduction of the $45 million aggregate damages award, as the court had mistakenly assumed all 181 class members had retained the law firm.

The court also clarified that class members only needed to return a participation form or funding to create a retainer, and that this had to be done prior to the waiver of the Acceptance Threshold Condition.

Following a 41-day trial where the plaintiff succeeded against one defendant (Cassels) but failed against another (GMCL), the court determined the costs awards.

The plaintiff was awarded partial indemnity costs against Cassels, apportioned at 40% of fees and 50% of disbursements to reflect the divided success of the action.

GMCL sought substantial indemnity costs against the plaintiff, arguing the plaintiff made unfounded allegations of misconduct.

The court rejected this, finding the allegations were not reprehensible, and awarded GMCL partial indemnity costs, subject to a 10% reduction for duplication between its two law firms.

The plaintiff was also awarded costs for successfully defending GMCL's counterclaim.

Following the successful certification of a class action concerning metal-on-metal hip implants, the plaintiff sought costs of $584,288 on a partial indemnity basis.

The court applied its established approach to certification costs, reducing the hourly rates to comply with the Rules Committee Grid.

The court further reduced the fees by 50 percent because class counsel spent an inordinate amount of time unnecessarily litigating the merits of the action.

Disbursements were also reduced, as an expensive expert report was deemed not essential for certification.

Ultimately, the court fixed costs at $200,000 payable forthwith and $65,000 in the cause.

The plaintiffs in a proposed class action regarding beer pricing and market allocation in Ontario sought leave under s. 29 of the Class Proceedings Act to discontinue the action against the LCBO and treat it as an unnamed co-conspirator.

The court dismissed the motion as premature, finding that the discontinuance should occur, if at all, only after the close of pleadings, as the remaining defendants had not yet filed statements of defence and might assert cross-claims or third-party claims against the LCBO.

The court also found the evidentiary record inadequate to justify discontinuance.

Mid-Bowline Group Corp. applied under s. 182 of the OBCA for approval of a plan of arrangement to sell WIND Mobile to Shaw Communications for $1.6 billion.

The Catalyst Capital Group Inc. opposed the plan, asserting a constructive trust claim over shares held by West Face Capital Inc., alleging misuse of confidential information.

The court found the plan of arrangement fair and reasonable, as it allowed the sale to proceed while preserving Catalyst's right to pursue its claims against West Face for profits and tracing.

The court rejected Catalyst's demand for a full trial, citing the need for a timely resolution, and ordered an expedited four-day hearing for the constructive trust issue.

The moving party sought an extension of time to bring a motion for leave to appeal two interlocutory orders: an order dismissing a request for forensic imaging of the responding parties' servers and devices, and an order dismissing a contempt motion.

The Divisional Court dismissed the motion for an extension of time, finding that the moving party failed to adequately explain its lengthy delay in pursuing the correct appeal route.

Furthermore, the court concluded that the proposed appeals lacked merit, as the motions judge correctly applied the legal tests for forensic imaging and civil contempt, and there was no good reason to doubt the correctness of the orders.

The plaintiff sought certification of a proposed class proceeding alleging that large‑head metal‑on‑metal hip implants designed and distributed by the defendants were defective and caused injury.

The defendants contested certification primarily on the basis that the proposed common issues lacked sufficient commonality and that a class proceeding was not the preferable procedure.

The court applied the “some basis in fact” standard under s. 5 of the Class Proceedings Act, 1992 and held that the plaintiff had adduced sufficient evidence of product defect and class‑wide commonality to support most proposed common issues.

The court found that negligence, duty of care, breach of standard of care, medical monitoring costs, and punitive damages issues could proceed on a class‑wide basis, subject to certain amendments.

The action was certified as a class proceeding with most proposed common issues approved.

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.

This was a costs decision following a pre-certification production motion in a proposed class proceeding involving hip implant products.

The court had previously dismissed most of the defendants' production request as too broad, while requiring limited additional product identification information relevant to the certification criterion under s. 5(1)(e) of the Class Proceedings Act, 1992.

Treating the plaintiff as 90 percent successful on the motion, the court held that the plaintiff's $15,000 request was too high and the defendants' proposed $3,480 was too low.

Costs were fixed at $7,500 all-inclusive, payable forthwith by the defendants.

On motions to strike in a franchise dispute arising from the post-bankruptcy restructuring of an automotive manufacturer, the court dismissed the entire claim against the U.S. parent entities and struck discrete allegations against the Canadian franchisor.

The court held that a franchisor’s associate is not liable under s. 3 of the Arthur Wishart Act unless it is also a party to the relevant franchise agreement, and further found the pleadings did not satisfy the statutory definition of franchisor’s associate.

The court also held that the pleadings did not justify piercing the corporate veil to impose contractual liability on the parent companies.

Allegations concerning misuse of government bailout funds and the defendants’ preference of their own interests were struck as irrelevant, scandalous, and abusive.

Leave to amend was refused.