Larry P. Lowenstein

The plaintiffs brought a motion to certify the action as a class proceeding for settlement purposes against TD, RBC, Credit Suisse, and Deutsche Bank in a case alleging a conspiracy to fix prices in the futures exchange market.

The court found that the criteria for certification under section 5(1) of the Class Proceedings Act, 1992 were met and granted the motion, approving the settlement agreements and the plan of dissemination.

Indigenous peoples from Ecuador obtained a US$9.5 billion judgment against Chevron Corporation for environmental devastation caused by oil exploration.

After failing to enforce the judgment in the United States due to findings of fraud by the plaintiffs' counsel, they sought to enforce it in Ontario against Chevron Canada, a seventh-level subsidiary.

The motion judge dismissed the claim, finding that Chevron Canada's shares and assets were not exigible under the Execution Act and that the corporate veil should not be pierced.

The appellants appealed, arguing both that the Execution Act permitted seizure of Chevron Canada's assets and that the corporate veil should be pierced in the interests of justice.

The Court of Appeal dismissed the appeal on the merits but reduced the costs award, recognizing the litigation as public interest litigation.

Indigenous Ecuadorian villagers obtained a US$9.5 billion judgment against Chevron Corporation in Ecuador for environmental pollution.

They sought to enforce the judgment in Ontario against Chevron Corporation and its seventh-level indirect subsidiary, Chevron Canada.

The motion judge granted an order requiring the plaintiffs to post security for costs of approximately $942,951 before the appeal could proceed.

The appellants moved to vary this order.

The Court of Appeal set aside the security for costs order, finding that the motion judge erred in principle by failing to conduct a holistic analysis of the justness of the order in all circumstances.

The court emphasized that security for costs orders must be just and should not be used as a litigation tactic to prevent cases from being heard on their merits.

The Ecuadorian plaintiffs sought to enforce a judgment of approximately 9.5 billion dollars from an Ecuadorian court against Chevron Corporation and its subsidiary, Chevron Canada Limited, in Ontario.

Following the Supreme Court of Canada's affirmation of Ontario's jurisdiction to hear the enforcement action, the motion judge granted summary judgment in favor of Chevron and Chevron Canada, dismissing the plaintiffs' claims on the basis of separate corporate personality.

The plaintiffs appealed.

Chevron and Chevron Canada brought a motion for security for costs.

The court held that security for costs was warranted because the plaintiffs were ordinarily resident outside Ontario, had not demonstrated impecuniosity, and had not established a good chance of success on appeal.

The court rejected the plaintiffs' argument that a new approach to security for costs should apply to foreign judgment enforcement actions, finding that comity does not require foreign litigants to be treated more favorably than domestic litigants.

The plaintiffs sought leave to appeal a motion judge's decision that refused to strike out several paragraphs of the defendant's statement of defence.

The underlying action involved the recognition and enforcement of a $9.5 billion Ecuadorian judgment.

The defendant pleaded defences of fraud, public policy, and lack of natural justice, alleging the foreign judgment was ghostwritten and obtained through bribery.

The Divisional Court dismissed the motion for leave to appeal, finding no conflicting decisions and no good reason to doubt the correctness of the motion judge's order, as the pleaded defences were recognized in law and not plainly and obviously bound to fail.

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 plaintiffs moved to add Chevron Canada Capital Company (CCCC) as a party defendant to their action seeking to enforce an Ecuadorian judgment against Chevron Corporation.

The court dismissed the motion, finding that the proposed amendment was not legally tenable and disclosed no cause of action against CCCC, as the court had previously ruled that Chevron Canada's corporate veil could not be pierced.

Furthermore, the court found no basis for jurisdiction over CCCC, a Nova Scotia company with no assets or operations in Ontario, and noted that Rule 17.02(o) regarding necessary parties had been repealed.

The plaintiffs sought to enforce a US$9.5 billion Ecuadorian judgment against Chevron Corporation and its seventh-level indirect subsidiary, Chevron Canada Limited.

The defendants moved for summary judgment to dismiss the claim against Chevron Canada, arguing it was a separate legal entity not liable for the judgment.

The plaintiffs argued Chevron Canada's assets were exigible under the Execution Act or that the corporate veil should be pierced.

The court granted summary judgment dismissing the claim against Chevron Canada, finding the Execution Act does not override corporate separateness and there was no basis to pierce the corporate veil absent allegations of wrongdoing by the subsidiary.

The plaintiffs also moved to strike Chevron's statement of defence.

The court struck defences relating to retroactive legislation and international law, but permitted defences alleging the Ecuadorian judgment was procured by fraud, bribery, and a denial of natural justice to proceed to trial.

The appellants were awarded costs of the motion before the Superior Court on consent.

The respondents were ordered to pay $30,000 inclusive of disbursements and taxes, in addition to the costs awarded to the appellants in the appeal.

The appellants, General Motors dealers in the Greater Toronto Area, sued GMCL and its US parent company, GM US, alleging breaches of the duty of good faith and fair dealing under the Arthur Wishart Act and at common law.

The motion judge struck the claim against GM US under Rule 21, finding it was neither a party to the franchise agreement nor a franchisor's associate.

The Court of Appeal allowed the appeal, holding that the determination of whether GM US was a franchisor's associate or owed a duty of fair dealing required a full factual record and should not be dismissed at the pleadings stage.

The applicant, a minority shareholder, sought standing to bring an application under section 127 of the Securities Act to delay a special meeting and require corrective disclosure in a management information circular regarding a related party transaction.

The respondent brought a motion to deny standing.

The Commission granted the motion and denied standing, finding that the application raised no novel issues, the alleged disclosure deficiencies had already been widely debated in the market, and intervening at a late stage would unduly interfere with the justified expectations of market participants.

In a securities class action arising from the collapse of a forestry company, the plaintiffs sought approximately $2.6 million in costs following certification and leave motions brought under the Class Proceedings Act, 1992 and the Securities Act.

Several defendants argued that costs should not be awarded because the plaintiffs had already recovered legal expenses through settlements with other defendants and because the claimed costs were excessive.

The court held that the plaintiffs were largely successful but not entirely successful due to an unresolved assignment issue affecting certain class members.

The court also ruled that disbursements could not be recovered again because they had already been indemnified through settlements.

Exercising its discretion, the court ordered a hybrid costs award: part payable immediately and part payable in the cause.

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.

In this proposed securities class action arising from the collapse of a public issuer, the plaintiffs sought leave under Part XXIII.1 of the Securities Act and certification of claims on behalf of purchasers of notes and shares in the primary and secondary markets.

Subject to one contested issue concerning former noteholders who had assigned their notes during the class period, the motions were unopposed or proceeded on consent.

The court granted leave and certified the action, holding that the substantive dispute over whether assigned noteholder claims vested in transferees under New York law should be postponed until after certification.

The court found it procedurally preferable and fair to defer that merits issue until after a defence was delivered, thereby avoiding interlocutory delay in a large and complex class proceeding.

The appellant appealed from an order dismissing its motion to stay or dismiss a proposed Ontario class proceeding for secondary market misrepresentation under Part XXIII.1 of the Securities Act.

The respondent, an Ontario resident, had purchased the issuer's shares on the New York Stock Exchange, and a parallel securities proceeding based on substantially the same alleged misrepresentations was already underway in the United States.

The court held that Ontario had jurisdiction simpliciter because the alleged statutory tort was committed in Ontario where disclosure documents were required to reach Ontario shareholders.

However, applying comity-based forum non conveniens principles, the court concluded Ontario should decline jurisdiction over foreign-exchange claims because the U.S. and U.K. regimes tie jurisdiction to the place of trading, parallel proceedings already existed, and Ontario jurisdiction would be opportunistic in light of negligible Canadian trading.

The plaintiffs sought an interlocutory injunction to restrain the defendant from selling an independent medical examinations business to a competitor.

The plaintiffs argued the defendant breached a contractual duty of good faith by failing to negotiate a sale with them and by not offering a right to match the competitor's offer.

The court dismissed the motion, finding no serious issue to be tried as the defendant had fulfilled its limited obligation to offer a first right of negotiation and was not required to provide a right to match.

The court also found the balance of convenience favoured the defendants.

The appellant, Inco Limited, appealed a costs order awarding it $1,766,000 following its successful defence of a class action at the Court of Appeal.

Inco argued it was entitled to over $5.3 million and that the trial judge erred by reducing its legal fees and applying a 50 per cent discount under s. 31(1) of the Class Proceedings Act.

The Court of Appeal dismissed the appeal, finding no error in principle in the trial judge's determination that the environmental tort class action raised novel points of law and involved matters of public interest.

The court upheld the trial judge's methodical and reasonable costs analysis.

An Ontario resident brought a proposed securities class action against a U.K. issuer alleging secondary market misrepresentation under Part XXIII.1 of the Securities Act following the Deepwater Horizon oil spill.

The defendant moved to stay the action in part, arguing Ontario lacked jurisdiction over claims of investors who purchased securities on foreign exchanges and that the matter should proceed in U.S. or U.K. courts.

The court held that the statutory cause of action under s. 138.3 constitutes a statutory tort presumptively connected to Ontario where an Ontario investor is deemed to have relied on the misrepresentation.

The legislation did not restrict claims to purchases on Ontario exchanges, and the defendant failed to rebut the presumptive connecting factor.

The court further found the defendant did not establish that foreign courts were clearly more appropriate forums.

The plaintiff class, comprising salaried and executive retirees of General Motors of Canada Limited (GMCL), brought a class action alleging that GMCL breached its contracts by reducing post-retirement health care and life insurance benefits.

On motions for partial summary judgment, the court held that the reservation of rights clauses in the benefit documents for salaried employees were ambiguous and did not clearly permit GMCL to reduce benefits after the employees had retired.

Applying principles of contractual interpretation, including contra proferentem and the duty of good faith, the court found GMCL breached its contracts with the salaried retirees, including new hires and early retirees.

However, the court found that the reservation of rights clause for executive retirees was clear and unambiguous, allowing GMCL to reduce their benefits.

The appellants, auditors and underwriters of Sino-Forest Corporation, appealed an order declaring that their claims for contribution and indemnity against Sino-Forest were 'equity claims' under the Companies' Creditors Arrangement Act (CCAA).

The claims arose from proposed shareholder class actions alleging misrepresentation.

The Court of Appeal dismissed the appeal, holding that the definition of 'equity claim' in s. 2(1) of the CCAA focuses on the nature of the claim rather than the identity of the claimant.

The court found that the appellants' claims for contribution and indemnity were clearly connected to the shareholders' equity claims and thus fell within the expansive statutory definition.