Lawrence E. Thacker

The Trustee of the Alexander Morris Sharpe Trust sought the court's advice and directions on whether legal fees for David and Natasha Sharpe could be paid from the trust, which was established for the "sole and exclusive" benefit of their minor son, Alexander Morris Sharpe.

The Office of the Children's Lawyer opposed, arguing the trust language was clear and restrictive.

The court ruled that the trust funds could not be used to pay the legal fees, as such payments would not be for the "sole and exclusive" benefit of the minor beneficiary, even if there was a collateral benefit.

This is an appeal from a motion judge's decision dismissing the plaintiffs' motion to amend their pleadings in a class action alleging a multi-bank conspiracy to fix gold and silver prices and engage in 'spoofing'.

The motion judge had found the proposed amendments time-barred or improper for joinder.

The Court of Appeal allowed the appeal, finding that the motion judge erred in law by treating amendments as new causes of action when they were alternative theories based on existing facts, and by misapplying the 'actual knowledge' standard for limitation periods.

The Court also found a palpable and overriding error in the motion judge's assessment of JP Morgan's joinder, concluding that the CFTC order did not preclude conspiratorial spoofing allegations.

The amendments were allowed, with the possibility for some respondents to plead a limitations defence at trial.

The plaintiffs moved for an interlocutory injunction to prevent the defendant from terminating an agreement for the supply of water and wastewater treatment services.

The defendant had threatened to terminate the services on 60 days' notice unless the plaintiffs paid a massive retroactive price increase.

The court found that the injunction was prohibitory, but that the plaintiffs had met the higher standard of a strong prima facie case regardless.

The court held that the defendant's use of the termination clause to extort a unilateral price increase was a strong prima facie breach of the duty of good faith performance.

Finding irreparable harm and a balance of convenience favouring the plaintiffs, the court granted the injunction for nine months to allow the plaintiffs to build their own water recycling facilities.

The Ontario Securities Commission (OSC) brought a motion seeking an order for the issuance of Letters of Request in Commissions under section 152 of the Securities Act.

The OSC required evidence from two individuals, one residing in British Columbia and one in Massachusetts, USA, for a proceeding before the Capital Markets Tribunal concerning Bridging Finance Inc. and its respondents.

The respondents did not oppose the motion.

The court granted the order, finding that the proposed witnesses had relevant evidence and that the Letters of Request and Commissions accorded with Rule 34.07(2) of the Rules of Civil Procedure.

This appeal addresses the role of "public correction" in secondary market misrepresentation class actions under s. 138.3 of the Securities Act.

The appellant sought leave to pursue a statutory remedy, which the motion judge denied by requiring a discrete and identifiable public correction that explicitly revealed the misrepresentation.

The Court of Appeal, following its own decision in *Barrick OCA*, found that the motion judge applied an unduly onerous standard for public correction.

The Court clarified that public correction does not require "facial symmetry" with the misrepresentation and must be understood in context by the secondary market.

The appeal was allowed, and the leave motion remitted for redetermination.

The plaintiffs sued the defendants for defamation over negative online reviews regarding window installation.

Faced with an anti-SLAPP motion, the plaintiffs attempted to discontinue the action.

The court held that the statutory stay under s. 137.1(5) of the Courts of Justice Act was triggered when the defendants delivered a requisition to attend Civil Practice Court, rendering the discontinuance ineffective.

Applying the Pointes framework, the court found the reviews related to a matter of public interest, the plaintiffs failed to show there were no valid defences, and the action was a SLAPP suit brought for an improper purpose.

The action was dismissed, and the plaintiffs were ordered to pay $164,186.76 in full indemnity costs and $2,500 in damages.

The Osgoode Investor Protection Clinic sought leave to intervene as a friend of the court in an appeal concerning the interpretation of the Securities Act, specifically "public corrections" and the test for leave for secondary market misrepresentation claims.

The appellant took no position, while the respondents opposed the motion.

The court dismissed the motion, finding that the Clinic's proposed arguments essentially mirrored those of the appellant and that its close relationship with the appellant's counsel undermined the appearance of impartiality required for a "friend of the court," thus failing to demonstrate a useful contribution without causing injustice or imbalance.

The defendants brought a motion to compel the plaintiff to serve a further and better affidavit of documents, specifically seeking the production of her counsel's entire litigation file.

The defendants argued the file was relevant to quantifying damages, which they claimed was an essential element of the plaintiff's bad faith action against her insurer.

The court dismissed the motion, finding that a claim for punitive damages arising from a breach of the duty of good faith does not require proof of a distinct monetary loss.

Consequently, the requested documents were deemed irrelevant to the matters in issue.

The plaintiff, a shareholder of the corporate defendant, sought leave to commence a secondary market misrepresentation claim under the Securities Act following the collapse of a tailings storage facility at the defendant's mine.

The plaintiff alleged that the defendant knew or ought to have known of the facility's compromised structural stability and failed to disclose it.

The court dismissed the motion for leave, finding that the plaintiff failed to establish a public correction of the alleged misrepresentation.

The press release issued by the defendant merely stated that the facility had breached and the cause was unknown, which did not indicate that any previous disclosure was untrue or misleading.

The plaintiff brought a motion to compel the defendants to serve a further and better affidavit of documents in an action for punitive damages based on an alleged breach of the duty of good faith by her insurer.

The plaintiff argued that the defendants' Schedule 'B' improperly grouped privileged documents without listing them and omitted relevant communications between the insurer and the tortfeasors.

The court found that the plaintiff had satisfied the evidentiary burden to show relevant documents may have been omitted and ordered the defendants to produce a further and better affidavit of documents.

The applicant, Maryam Rezaee, brought a motion for a mandatory injunction to restore her as manager of a hospitality business, alleging that a corporate restructuring which transferred control to her son, Raymond Zar, was unenforceable due to *non est factum* and constituted oppression.

She also sought alternative prohibitory injunctions.

The respondent, Raymond Zar, brought a cross-motion to remove an existing interim order preventing property encumbrance, arguing non-disclosure of independent legal advice during the *ex parte* application for that order.

The court dismissed Maryam's motion for both mandatory and prohibitory injunctions, finding she did not meet the "strong prima facie case" standard for mandatory relief or the "irreparable harm" standard for either.

The court also dismissed Zar's cross-motion, thereby maintaining the interim order pending the resolution of the Certificates of Pending Litigation motion.

The plaintiffs sued the defendants for breach of a royalty agreement and promissory note following the winding-up of an investment fund.

The court found the defendants breached the royalty agreement by discontinuing payments after the fund's termination, as the agreement provided for a "proportionate continuation" of royalties if a significant amount of unitholders reinvested in successor funds.

However, the court rejected claims of bad faith and the necessity of an Independent Review Committee (IRC) referral for the winding-up decision.

Damages were awarded based on a modified calculation of the proportionate continuation of royalties, significantly less than sought by the plaintiffs.

The Vria Parties (defendants by counterclaim) moved to strike the Fresh as Amended Statement of Defence and Counterclaim against them, arguing it disclosed no reasonable cause of action or was frivolous/vexatious.

The court dismissed the motion, finding it was procedurally barred because the Vria Parties had already filed a defence to the original counterclaim, which contained the same causes of action.

The court also found the motion was not brought promptly, as required for Rule 21.01 motions, especially in a complex, case-managed proceeding.

Joyce Bernstein, the successful plaintiff in a class action certification motion against Peoples Trust Company and Peoples Card Services LLP, sought costs of $146,492.72.

Peoples Trust disputed the amount, arguing for divided success due to a reduced class period based on limitation periods, and proposed $120,000 with a portion payable in the cause.

The court awarded the full amount sought by Bernstein but ordered $10,000 of it to be payable in the cause.

The court found no divided success on the certification motion itself but deemed the plaintiff's failure to concede the limitation period issue as conduct that unnecessarily lengthened proceedings, warranting a small portion of costs to be payable in the cause as a salutary message against over-pleading in class actions.

The plaintiff condominium corporation sued the adjacent property owner for damages to its easement rights due to the defendant's failure to maintain a shared retaining wall, pleading negligence and nuisance.

The defendant, third parties (Development Engineering (London) Limited, Aviva Insurance Company of Canada), and fourth party (Atkinson, Davies Inc.) brought motions for summary judgment to dismiss the claims.

The court found no common law, statutory, contractual, or equitable duty for the servient tenement (defendant) to repair the wall, especially since the defendant was not responsible for its initial collapse.

Consequently, the plaintiff's claims were dismissed.

The court also found that the defendant, third parties, and fourth party were not concurrent tortfeasors, thus precluding claims for contribution and indemnity under the Negligence Act.

The plaintiffs brought a motion seeking a declaration of oppression and the appointment of an inspector under ss. 161 and 248 of the OBCA to investigate the defendants' companies involved in two condominium development projects.

The court dismissed the motion, finding that the plaintiffs lacked standing under s. 161 as they were not beneficial shareholders, and failed to establish a prima facie case of oppression under s. 248.

The court also held that appointing an inspector was inappropriate as the costs would significantly outweigh the benefits, and the plaintiffs already had access to extensive financial information.

The defendants brought a motion to dismiss the plaintiff's action for delay, which arose from a 2001 commercial transaction where the plaintiff sued the defendants for alleged negligence in securing deferred payments.

The court analyzed the periods of delay, finding that much of the delay was attributable to both parties or solely to the defendants.

The sole period of delay attributable to the plaintiff (16 months) was not deemed inordinate or inexcusable.

The defendants failed to demonstrate actual prejudice or rebut the presumption of prejudice, as any memory deterioration occurred before the relevant delay period, and the defendants themselves had not taken steps to preserve evidence.

The motion was dismissed, and costs were awarded to the plaintiff.

The moving party and respondent entered into a joint venture to develop condominiums.

After the moving party's family assets were frozen, he transferred his shares in the project companies to the respondent to allow the respondent to secure financing, executing a document styled as a 'trust agreement'.

The moving party later brought a motion seeking the return of the shares, arguing the agreement created a bare trust that could be collapsed under the rule in Saunders v. Vautier.

The court dismissed the motion, finding the document was a contractual agreement rather than a trust, and that the rule in Saunders v. Vautier would not apply regardless because the moving party did not have absolute beneficial ownership of the shares.

The defendant brought a motion to stay the Ontario action on the basis that the court lacked jurisdiction and that Quebec was the more appropriate forum.

The court applied the presumptive connecting factors from Club Resorts Ltd. v. Van Breda and concluded that the defendant carried on business in Ontario through its involvement in developing and commercializing a titanium dioxide extraction process and its ownership interest in the patent-holding company.

The court therefore found a real and substantial connection sufficient to ground jurisdiction.

On the forum non conveniens analysis, although certain factors slightly favoured Quebec, most were neutral and the defendant failed to demonstrate that Quebec was clearly the more appropriate forum.

The plaintiff’s chosen forum was not displaced and the stay was refused.

The respondent automobile carrier brought an application seeking a declaration that the applicant automobile manufacturer breached a contract governing delivery routes for vehicle shipments.

The applicant brought a counter‑motion seeking to convert the application into an action on the basis that the dispute raised significant factual controversies, including issues of economic duress, contractual interpretation, and the doctrine of good faith in requirements contracts.

The court held that the dispute involved contested facts and credibility issues that could not properly be resolved on an application record.

The court further noted that the law relating to good faith and requirements contracts was developing and that a fuller evidentiary record was necessary.

The application was therefore converted into an action.