Kimberly E. Potter

The court considered whether documents prepared by PricewaterhouseCoopers LLP (PwC), including the "Bowen Memo" and related materials, were protected by solicitor-client or litigation privilege in the context of a dispute over the transition of audit responsibilities from PwC to Deloitte for Bondfield Construction Company Limited.

The court found that the documents were not privileged and ordered their production, as the dominant purpose of their creation was not for seeking legal advice or in contemplation of litigation, but rather to summarize audit procedures.

This decision concerns a motion for production of documents in two companion actions involving allegations of auditor negligence and failure to detect fraud at Bondfield Construction Company Ltd. The plaintiffs sought production of the "Bowen Memo" and related documents from PricewaterhouseCoopers LLP (PwC), who claimed solicitor-client and litigation privilege.

The court found that the documents were not privileged, as they were not created for the purpose of seeking legal advice or in contemplation of litigation, and ordered their production without redaction.

This case involved two applications concerning a family business dispute.

Arif Al-Ali (father) sought declarations that Anwar Al-Ali (son) breached his duties under a Continuing Power of Attorney for Property (POA) and committed corporate oppression by wrongfully transferring shares and removing the father from corporate positions in Poppa Corn Corporation.

Anwar Al-Ali (son) brought a cross-application seeking specific performance or damages related to an agreement for 50% of Poppa Corn shares in exchange for work in Romania.

The court found that the son breached his fiduciary duties under the POA and that his actions constituted corporate oppression.

The court also determined that the son was not entitled to the shares as he had already been compensated in cash for his work in Romania, and his cross-application was statute-barred.

The father's alleged oppression of the son was dismissed.

The applicant, Prospector PTE.

Ltd., sought recognition and enforcement of two foreign arbitral awards rendered by an International Chamber of Commerce tribunal in the United Kingdom against the respondent, CGX Energy Inc. CGX Energy Inc. opposed enforcement, arguing procedural unfairness because it was allegedly denied the opportunity to fully present its case regarding its counterclaim.

The court found that CGX Energy Inc. failed to meet the narrow test for procedural unfairness required to refuse enforcement under the International Commercial Arbitration Act, 2017, and the UNCITRAL Model Law.

The court also applied issue estoppel, noting that the same procedural unfairness argument had already been dismissed by the UK High Court.

The application for recognition and enforcement was granted.

The plaintiff in a certified class action brought a refusals motion seeking to compel answers to questions refused during cross-examinations on the defendants' affidavits of documents.

The court dismissed the motion in its entirety, finding that the questions regarding the scope of documentary production, missing documents, and search terms were premature and irrelevant because the parties had not yet settled a discovery plan.

The court held that the scope of documentary discovery must be determined on the pending discovery plan motion before the adequacy of the affidavits of documents could be assessed.

In a certified class action regarding allegedly defective MINI Cooper vehicles, the defendants brought a motion seeking a declaration that the German defendant, BMW-AG, could produce documents using a 'layered approach' to comply with European and German privacy laws (GDPR).

This approach involved initially redacting all personal data.

The plaintiff opposed, arguing that Ontario's Rules of Civil Procedure required unredacted production.

The court held that the relevance scrutiny inherent in the Rules of Civil Procedure satisfies the 'Legitimate Interests Exception' under the foreign privacy laws.

The court ordered BMW-AG to produce documents in accordance with a modified Rule 30.03, allowing redactions only for privileged information and personal data that is not relevant to any issue in the action.

The Plaintiffs (Bondfield Construction Company Limited and Zurich Insurance Company Ltd.) brought a motion to stay summary judgment motions initiated by PricewaterhouseCoopers LLP (PwC) in complex professional negligence actions against auditors, which also involved significant fraud allegations and discoverability issues.

The court, acting as case management judge, granted the stay, determining that full documentary and oral discoveries were essential to ensure a fair and efficient process.

The decision highlighted the complexity of the case, the substantial damages sought, the allegations of long-standing fraudulent activities, and the potential for inconsistent findings if the summary judgment motions proceeded on a limited record.

The court emphasized the flexibility of judges in case-managed matters and the necessity of a comprehensive record for a just adjudication of limitation period issues.

The plaintiff, having successfully certified a class action against BMW, sought substantial indemnity costs for the certification motion, totaling $367,210.28.

BMW proposed a costs award between $225,000 and $285,000.

The court awarded the plaintiff $300,000 on a partial indemnity basis, inclusive of fees, disbursements, and HST.

The court declined to award substantial indemnity costs, finding that Rule 49 (Offer to Settle) is an ill fit for certification motions and that defendants are entitled to resist certification without incurring punitive costs, provided their conduct does not unnecessarily lengthen proceedings.

The court also largely rejected BMW's arguments of overbilling by class counsel.

The plaintiff brought a motion to certify a class action against the defendants regarding alleged defects in the power steering systems of certain Mini Cooper vehicles.

The plaintiff alleged the defects could cause a dangerous loss of power steering or a vehicle fire.

The defendants admitted the power steering system was defective but denied it posed an unreasonable safety risk or caused fires.

The court found that the plaintiff had pleaded a viable cause of action in negligence and met the 'some basis in fact' standard for the remaining certification criteria, including an identifiable class, common issues, preferable procedure, and representative plaintiff.

The certification motion was granted.

The defendants sought costs following their success on two interlocutory motions in a proposed class action: the dismissal of the plaintiff's motion for document production and the granting of the defendants' motion to strike inadmissible affidavit evidence.

The plaintiff argued for a significantly reduced costs award, citing divided success and the novelty of the production issue.

The court rejected the plaintiff's arguments, finding no divided success and that the defendants' costs were reasonable and proportionate.

Costs were fixed at $35,000 all inclusive, payable to the defendants in any event of the certification motion.

The defendants in a proposed class action regarding allegedly defective power steering in MINI Cooper vehicles brought a preliminary motion to strike portions of an affidavit filed by the plaintiff for the certification motion.

The impugned evidence consisted of charts compiling consumer complaints from a US regulatory database.

The court granted the motion, finding the evidence to be inadmissible multiple-level hearsay.

The court held that even on the lower 'some basis in fact' standard applicable to certification motions, evidence must meet usual admissibility criteria, and the prejudicial effect of the 400 pages of complaints outweighed any probative value.

In a proposed class action regarding allegedly defective power steering in MINI Cooper vehicles, the plaintiff moved under Rule 30.04(2) of the Rules of Civil Procedure to inspect documents referenced in the defendants' statement of defence.

The defendants refused, arguing the requests were for non-specific documents and were premature given the pending certification motion.

The court dismissed the motion, holding that the right to inspect under Rule 30.04(2) is not absolute and the court retains discretion under Rule 30.04(5) to refuse production based on disproportionality and untimeliness.

The court found the plaintiff's request was an improper attempt to obtain pre-certification documentary discovery without showing relevance to the certification criteria.

This appeal concerns an auditor's liability action arising from the Bernard Madoff Ponzi scheme.

The appellants, three Fairfield feeder funds incorporated in the British Virgin Islands, invested in Madoff's company and suffered losses when the fraud was revealed in December 2008.

The funds sued PricewaterhouseCoopers for breach of contract and negligence in auditing their financial statements for 2006 and 2007, claiming damages of approximately $2.5 billion.

The motion judge granted summary judgment dismissing the action on the basis that no damages were suffered, applying the Livent damages methodology.

The appellants appealed on five grounds, all involving findings of fact or mixed fact and law regarding the calculation of damages.

The Court of Appeal dismissed the appeal, finding no palpable and overriding errors in the motion judge's analysis.

An employer was convicted of breaching sections 25(1)(c) and 25(2)(a) of the Occupational Health and Safety Act after a maintenance electrician was injured when a large shipping door fell on him while he was performing electrical checks on the door mechanism.

The employer appealed both convictions, arguing that the worker was merely inspecting rather than performing maintenance work, and that the employer had exercised due diligence through policies and training.

The appellate court dismissed the appeal, finding that the worker's electrical checks constituted work triggering the blocking requirement, that the workers were sent to an unfamiliar area without supervision, and that the employer failed to establish the due diligence defence.

The defendants moved to stay or dismiss an Ontario action for lack of jurisdiction and on the basis of forum non conveniens.

The dispute concerned whether a letter constituted a binding agreement requiring the transfer of wireless spectrum licences to the plaintiff.

The court held that Ontario had jurisdiction simpliciter because there was a good arguable case that the contract was made in Ontario and that the action concerned licences constituting personal property located in Ontario.

The defendants failed to rebut the presumptive connecting factors or demonstrate that California was clearly the more appropriate forum.

The motion to stay or dismiss was therefore refused.