Kimberly E. Potter

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.

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 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 applicants brought a motion for costs following a successful hearing under the Mining Act, alleging the respondent's conduct was unreasonable, frivolous, and vexatious.

The applicants argued that the respondent's failure to call witnesses, aggressive cross-examination, and overall hearing strategy warranted a costs award.

The Tribunal dismissed the motion, finding that while the respondent's strategy was unsuccessful, it did not rise to the level of serious misconduct or bad faith required under Rule 23 of the OLT Rules of Practice and Procedure to justify a discretionary costs award.

The applicants brought an application to appoint an independent firm of chartered accountants to resolve disputes over an earn-out calculation under a share purchase agreement.

The respondent opposed, arguing the disputes involved questions of contractual interpretation that must be decided by the courts, and brought a cross-application for a declaration to that effect.

The court interpreted the dispute resolution clause and concluded that the parties intended for any unresolved matters in dispute, including those requiring contractual interpretation, to be referred to the independent firm acting as an expert.

The applicants' application was granted and the respondent's cross-application was dismissed.

The appellant appealed a case management judge's order permitting the foreign corporate respondent to redact irrelevant personal data from its documentary productions to comply with European and German privacy laws (GDPR and BDSG).

The Divisional Court upheld the redaction protocol, finding the motion judge had jurisdiction to craft a procedural compromise that balanced Ontario discovery obligations with international comity and foreign privacy laws.

However, the court granted the appeal solely to remove an unwarranted requirement that the respondent obtain leave before filing its affidavit of documents.

The appellant appealed a decision of the Ontario Land Tribunal which rescinded a previous order requiring the respondents to contribute over $2 million toward mining development expenses.

The Tribunal had found that an oral agreement between the parties' predecessors established the respondents' interest as a 'free carried, perpetual, non-contributing' interest.

The Divisional Court dismissed the appeal, finding no extricable error of law or palpable and overriding error in the Tribunal's assessment of the evidence and conclusion that a binding oral agreement existed.

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 brought a motion for leave to appeal an order dated November 16, 2022.

The Divisional Court granted the motion for leave to appeal and ordered the respondents to pay the moving party agreed costs of $5,000.

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 applicant, a former audit partner, sought judicial review of a decision by the Appeal Committee of the Chartered Professional Accountants of Ontario, which upheld a finding of professional misconduct against him.

The misconduct related to his failure to obtain sufficient and appropriate audit evidence regarding assets held by a service organization involved in the Madoff fraud.

The Divisional Court dismissed the application, finding that the disciplinary committees reasonably applied the codified auditing standards (U.S. GAAS) and did not reverse the onus of proof or apply an incorrect standard of practice.

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.

The plaintiff in a certified class action concerning Mercedes-Benz BlueTEC diesel vehicles moved for further directions regarding the schedule for a partial summary judgment motion on liability issues.

The court had previously set a one-year timeline for this motion and directed immediate discovery.

Despite the defendants' resistance, alleging an "artificially accelerated" discovery schedule without providing supporting evidence, the court reaffirmed its earlier directions.

The judge emphasized the importance of expeditious determination in class actions and the case management judge's role in setting timelines, confirming the summary judgment motion for December 2019 and setting discovery completion by mid-November 2019. interesting_citations_summary: > This decision underscores the broad authority of a class action case management judge to manage proceedings, including setting firm schedules for summary judgment motions and discovery, as supported by *ALS Society v Windsor*.

It highlights that such motions on liability issues are often the pivotal "merits" hearing in complex product liability class actions.

The court also clarifies that parties challenging judicial directions on timelines must provide evidentiary support for their assertions, rather than mere resistance. final_judgement: > The plaintiff's motion for summary judgment on liability issues was confirmed to proceed the week of December 16, 2019.

Counsel were directed to continue "meet and confer" discussions to ensure all relevant discovery is completed by mid-November 2019.

The defendants could re-attend for further directions if insurmountable difficulties arose.

Costs submissions were invited if parties could not agree. winning_degree_applicant: 1 winning_degree_respondent: 5 judge_bias_applicant: 3 judge_bias_respondent: 3 year: 2019 decision_number: 1591 file_number: "CV-16-550271-CP" source: "https://www.canlii.org/en/on/onsc/doc/2019/2019onsc1591/2019onsc1591.html" cited_cases: legislation: - title: "Class Proceedings Act, 1992, S.O. 1992, c. 6, s. 12" url: "https://www.ontario.ca/laws/statute/92c06#s12" case_law: - title: "Kalra v. Mercedes Benz, 2017 ONSC 3795" url: "https://www.canlii.org/en/on/onsc/doc/2017/2017onsc3795/2017onsc3795.html" - title: "Trillium v. General Motors of Canada et al, 2012 ONSC 5960" url: "https://www.canlii.org/en/on/onsc/doc/2012/2012onsc5960/2012onsc5960.html" - title: "Fehr v. Sun Life Assurance Co. of Canada, 2014 ONSC 2183" url: "https://www.canlii.org/en/on/onsc/doc/2014/2014onsc2183/2014onsc2183.html" - title: "ALS Society v Windsor, 2015 ONCA 572" url: "https://www.canlii.org/en/on/onca/doc/2015/2015onca572/2015onca572.html" keywords: - Class action - Motion for directions - Summary judgment - Discovery schedule - Case management - Product liability - Mercedes-Benz - BlueTEC diesel - Emission control areas_of_law: - Civil Procedure - Class Actions --- # Court File and Parties **COURT FILE NO.:** CV-16-550271-CP **DATE:** 20190315 **SUPERIOR COURT OF JUSTICE – ONTARIO** **RE:** YOGESH KALRA, Plaintiff / Moving Party **AND:** MERCEDES BENZ CANADA INC., DAIMLER AG, MERCEDES BENZ USA LLC and MERCEDES BENZ FINANCIAL SERVICES CANADA CORPORATION, Defendants / Responding Parties Proceeding under the Class Proceedings Act, 1992 **BEFORE:** Justice Edward P. Belobaba **COUNSEL:** Peter Griffin, Brian Kolenda, Kirk Baert and James Sayce for the Plaintiff Steven Rosenhek, Vera Toppings and Kimberly Potter for the Defendants **HEARD:** In writing ## Motion for Directions [1] The plaintiff moves for further directions in this class action.

The action was certified as a class proceeding in June 2017.

See [Kalra v. Mercedes Benz, 2017 ONSC 3795](https://www.canlii.org/en/on/onsc/doc/2017/2017onsc3795/2017onsc3795.html). [2] The focus of the class action is the Mercedes-Benz line of BlueTEC diesel automobiles.

The allegation is that the BlueTEC vehicles contain a defect or a “defeat device” that turns off the emission control system when the ambient air temperature drops below 10 degrees Celsius (50 degrees Fahrenheit).

If this is true, this means that the defendants’ BlueTEC vehicles are emitting high (and illegal) levels of nitrogen oxide pollution for the majority of time that they are being driven on Canadian roads.

See [Kalra v. Mercedes Benz, 2017 ONSC 3795, at para. 2](https://www.canlii.org/en/on/onsc/doc/2017/2017onsc3795/2017onsc3795.html#par2).

The defendants deny any such defeat device and look forward to the adjudication of the certified common issues. [3] In February 2018, the defendants advised that they would be bringing a motion for partial summary judgment dismissing the claim as against three of the four defendants (i.e. the off-shore and financial services defendants) and dismissing three of the 14 certified common issues.

However, no further material was delivered in this regard. [4] In December 2018 the plaintiff delivered a draft partial summary judgment motion for the adjudication of the 10 of the 14 certified common issues that deal with liability. [5] At a case conference in December 2018, having resumed my role as case management judge, I directed that the plaintiff’s summary judgment motion be heard in one year’s time, specifically the week of December 16, 2019.

I also directed that the discovery process should commence immediately and if there were any disagreements in the ongoing “meet and confer” discussions about the timing or content of the discovery plan, counsel could re-attend before me. [6] At a case conference in January, 2019 I reminded counsel by way of a further direction that “the requisite discoveries needed to be completed in sufficient time so as not to disturb the December 16, 2019 motion date.” [7] I made these directions to ensure the “fair and expeditious determination” of the class action before me.

This is in accordance with [Section 12 of the Class Proceedings Act, 1992, S.O. 1992, c. 6](https://www.ontario.ca/laws/statute/92c06#s12).

In my experience as a class action judge, the real “merits” hearing in a document-heavy, product liability case such as this, is the partial summary judgment motion for the adjudication of the liability issues.

The liability issues are at the heart of the class action.

If the plaintiff fails on liability that ends the matter; if the plaintiff prevails on liability and the action is not settled, the aggregate or individual damages issues can then be addressed under ss. 24 or 25 of the CPA.

I have found that the liability issues can almost always be adjudicated summarily. [8] Given that it is the defendant in these document-heavy cases that typically holds a disproportionate amount of the evidence, I directed that some measure of discovery begin immediately.

The directed discovery must obviously be limited to productions and questions that are relevant to the issues on the summary judgment motion, that is, to the ten liability issues.

See [Trillium v. General Motors of Canada et al, 2012 ONSC 5960, at paras. 15-16](https://www.canlii.org/en/on/onsc/doc/2012/2012onsc5960/2012onsc5960.html); [Fehr v. Sun Life Assurance Co. of Canada, 2014 ONSC 2183, at para. 54](https://www.canlii.org/en/on/onsc/doc/2014/2014onsc2183/2014onsc2183.html). [9] The direction that the summary judgment motion be heard in December, 2019 reflected my experience that this was generally more than enough time for the completion of the discovery task.

It was also based on the fact that that the defendants did not suggest otherwise or offer any evidence to the contrary. [10] The Court of Appeal made clear in [ALS Society v Windsor, 2015 ONCA 572](https://www.canlii.org/en/on/onca/doc/2015/2015onca572/2015onca572.html) that the directions made thus far are the kinds of directions that fall squarely within the job-description of the class action case management judge: The case management judge is entitled to give directions as to when certain steps should be accomplished and as to what motions may be brought, and when.

The case management judge may prohibit motions from being brought before certain steps have been accomplished and may make orders as to the sequencing of motions.

The case management judge is also entitled to determine the order in which some issues are addressed.

He or she is entitled, but not required, to determine whether some issues are amenable to summary judgment and to schedule the proceedings accordingly.

See [ALS Society v Windsor, 2015 ONCA 572, at para. 71](https://www.canlii.org/en/on/onca/doc/2015/2015onca572/2015onca572.html#par71). [11] The defendants, however, continue to offer a level of resistance that, frankly, is difficult to understand.

They say that the one-year time post for the plaintiff’s summary judgment motion unjustifiably imposes “an artificially accelerated or abbreviated discovery schedule.” They say this even though they have provided no evidence in support of this assertion.

Absent such evidence (which may still be tendered by the defendants provided this is done on a timely basis) I can only re-affirm my earlier Direction, albeit revised as follows: ## Direction (i) The plaintiff’s motion for summary judgment on the liability issues shall proceed as scheduled the week of December 16, 2019; (ii) Counsel shall continue their “meet and confer” discussions about the delivery schedule in the discovery plan in good faith and in an effort to ensure that all relevant discovery is completed by the middle of November, 2019 so that the scheduled hearing date of December 16, 2019 is not compromised; (iii) If the defendants encounter any insurmountable difficulties in adhering to the time-posts set out herein, they may re-attend before me for further directions; (iv) If the parties cannot agree on an appropriate costs award for this motion in writing, I would be pleased to receive brief written submissions – from the plaintiff within 14 days and from the defendants within 14 days thereafter. --- Justice Edward P. Belobaba Date: March 15, 2019

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.