Lara Jackson

This is a costs endorsement following the release of reasons in an appeal.

The respondents advised that the court had misapprehended the appellants' oral costs submissions regarding quantum.

The parties were permitted to provide further written submissions on the costs issue.

The court affirmed its costs order for the appeal but altered the costs of the motion below, reducing the amounts payable by Bank of Montreal and Toronto Dominion Bank.

The plaintiff, representing a class of non-golfing and non-member shareholders of a golf and country club, brought a motion for summary judgment alleging that the club's board of directors engaged in oppressive conduct by selling treasury shares at reduced prices to attract new members.

The plaintiff argued this diluted shareholder equity and violated their reasonable expectations.

The Superior Court of Justice dismissed the class action, finding that the board's decision was a reasonable exercise of business judgment aimed at ensuring the club's financial viability.

The court held that the shareholders did not have a reasonable expectation that shares would only be sold at a specific minimum price, and the board fairly considered the interests of all stakeholders.

The appellants sought to add Toronto Dominion Bank and Bank of Montreal as defendants to an existing class action alleging a secret conspiracy to manipulate the foreign exchange market.

The motion judge dismissed the motion on the basis that the claim against the respondents was statute-barred under the Limitations Act, 2002.

The Court of Appeal allowed the appeal, finding that the motion judge erred by establishing too high an evidentiary threshold and by finding that the respondents' identities could have been discovered with reasonable diligence without proper evidentiary foundation.

The court held that the appellants provided a reasonable explanation for why they could not have identified the respondents before the limitation period expired, and that the issue of due diligence should be determined on a summary judgment motion or at trial.

The plaintiff sought leave to bring a statutory misrepresentation class action under Part XXIII.1 of the Securities Act against MDC Partners Inc. and its former executives.

The plaintiff alleged that the defendants made material misrepresentations by failing to disclose an SEC subpoena, an internal investigation into executive expenses, and other accounting issues.

The court dismissed the motion for leave, finding that none of the alleged omissions or misstatements were material facts that would have significantly altered the total mix of information available to a reasonable investor, particularly given that the company's auditors never withdrew their clean audit opinions or required a restatement of financial statements.

The applicants, engaged in combating government corruption in Malaysia, sought a Norwich Pharmacal order to compel financial institutions to produce confidential information about a Canadian real estate group.

The applicants suspected the group was funded by proceeds of foreign corruption and contemplated a private criminal prosecution for money laundering and receipt of proceeds of crime.

The court dismissed the application, holding that the applicants lacked reasonable grounds to believe an indictable offence had been committed, and that it would be inappropriate to use the court's inherent civil jurisdiction to bypass the careful balance struck by Parliament in the Criminal Code for criminal investigations and private prosecutions.

Following the dismissal of the plaintiffs' motion to add BMO and TD as defendants to a class action regarding an alleged price-fixing conspiracy, BMO and TD sought their costs on a partial indemnity basis.

The plaintiffs argued that no costs should be awarded because the issue of discoverability in conspiracy claims was novel, or alternatively, that the costs claimed were excessive.

The court rejected the plaintiffs' arguments, finding that the issue was not legally novel and the costs claimed were reasonable, especially given the plaintiffs' own estimated costs.

BMO was awarded $99,724.96 and TD was awarded $95,908.69.

The plaintiffs in a class action alleging a price-fixing conspiracy in the foreign exchange market brought a motion to amend their statement of claim to add BMO and TD as defendants.

The proposed defendants argued the claims were statute-barred under the Limitations Act, 2002.

The plaintiffs claimed they only discovered the involvement of BMO and TD after receiving a proffer of evidence from a settling defendant.

The court dismissed the motion, finding that the plaintiffs failed to exercise reasonable diligence to discover the claims against BMO and TD before the expiry of the limitation period.

The plaintiff brought a proposed class action for secondary market misrepresentation against the defendants under the Ontario Securities Act and common law.

The defendants brought motions to restrict the class to Canadians who purchased shares on the TSX, arguing that the Ontario court was forum non conveniens for Canadians who purchased on NASDAQ, and that American law should apply to those claims.

The court dismissed the motions, finding that the defendants failed to show that the U.S. was a clearly more appropriate forum, and that the statutory cause of action under the Ontario Securities Act applies extra-territorially to Canadian purchasers on foreign exchanges.

In a proposed class action alleging price-fixing in the foreign exchange market, the plaintiffs sought to add BMO and TD as defendants.

BMO and TD argued the claims were statute-barred.

On cross-examination for the joinder motion, the plaintiffs' deponent refused to answer questions about a settlement proffer from another defendant, which the plaintiffs claimed was the source of discovering the claims against BMO and TD.

BMO and TD brought a motion to compel answers.

The court ordered the deponent to answer the questions, finding that the evidence was relevant to rebutting the presumption of discovery under the Limitations Act, 2002, and that any privilege attaching to the proffer had been waived when the plaintiffs voluntarily relied on it.

The plaintiff moved for judgment to enforce a settlement with Coca-Cola Bottling Company regarding short-term disability benefits.

The dispute centered on the scope of the release demanded by Coca-Cola, which sought to include all future benefits, including group health and pension benefits, arguing it was part of a global settlement.

The court found that the settlement was solely for short-term disability benefits and not a global settlement, thus the broader release was not contemplated or negotiated.

The plaintiff's motion was granted.

The plaintiff, a non-golfing shareholder, brought a motion to certify a class action alleging oppression against North Halton Golf and Country Club Limited.

The defendant brought a cross-motion for summary judgment, arguing the claim was time-barred.

The court dismissed the defendant's summary judgment motion, finding that recent share pricing decisions constituted discrete acts of oppression within the limitation period.

The court granted the plaintiff's motion for certification, confirming that a class proceeding can be used for oppression remedies and that the commonality requirement was met despite differing individual expectations regarding remedies.

In a contested shareholder proxy fight arising from a requisitioned special meeting, the applicants sought court supervision over meeting procedures under the Business Corporations Act, including appointment of an independent chair and invalidation of the management proxy form.

The court held that an independent chair would not be imposed absent evidence of demonstrated impropriety or a likelihood the proposed chair would act unfairly, and speculation about associations with incumbent management was insufficient.

The court also declined to invalidate the current proxy, finding it reflected the requisitioned resolutions, did not conflict with the governing statute or securities requirements, and better avoided voter confusion.

Issues relating to compliance of the dissident slate with the corporation's by-laws and proxy inspection logistics were left to be addressed in context if necessary after the meeting.

Following a trial judgment awarding over $16 million to the plaintiff in a commercial dispute, the court determined the appropriate costs award and prejudgment interest.

The court held that although the plaintiff’s Rule 49 offer was served slightly outside the formal timing requirements, it could still be considered under Rules 57.01 and 49.13.

Substantial indemnity costs were awarded from the date of the settlement offer and for work responding to a serious trading‑manipulation allegation later abandoned by the defendant.

However, the court found the plaintiff’s claimed hours excessive and reduced the requested fees.

The court fixed total fees at $1,400,000 inclusive of taxes, allowed disbursements of $191,813, and awarded prejudgment interest at the statutory rate from the date the cause of action arose.

The plaintiff, a junior oil and gas exploration company, sued the defendant underwriter for breach of a 'bought deal' engagement letter.

The defendant failed to close the transaction, arguing the letter was merely an agreement to agree and relying on 'out clauses' due to a drop in oil prices.

The court found the engagement letter was a binding contract and that the defendant could not rely on the out clauses, as it had not negotiated an underwriting agreement and the drop in oil prices did not constitute a material adverse change or disaster.

The plaintiff was awarded over $16 million in damages, representing the difference between the contract price and the replacement financing price, plus interim loan costs.

During the first week of trial, the defendant moved to amend its statement of defence and counterclaim to add new factual allegations and a mitigation defence relating to transactions undertaken by the plaintiff after the alleged breach of a share purchase agreement.

The court considered whether the proposed amendments disclosed a tenable defence, including arguments that damages should be assessed at the date of trial due to the plaintiff’s claim for specific performance and that subsequent transactions mitigated any losses.

The court held that damages for breach of contract would normally be assessed at the date of breach and that the proposed allegations concerning the plaintiff’s later transactions were irrelevant to the proper measure of damages.

The proposed amendments concerning the Red Willow transaction and complete mitigation did not raise a tenable defence and were refused.

A mining corporation sought an interlocutory injunction preventing major shareholders from voting their shares or soliciting proxies in an upcoming shareholder meeting, alleging breach of a confidentiality agreement and misuse of confidential information obtained during a site visit.

The dissident shareholders also sought declaratory and injunctive relief relating to the conduct of the shareholder meeting under the Business Corporations Act.

The court applied the RJR‑MacDonald test and held that while the corporation established a strong prima facie case that confidential information had been received, it demonstrated only a weak case that the information had been misused.

The balance of convenience favoured allowing the proxy contest to proceed.

The court also declined to interfere in advance with the conduct of the shareholders’ meeting, emphasizing corporate autonomy absent demonstrated impropriety.