Graham Splawski

The court approved a proposed settlement and certified the action for settlement purposes under the Class Proceedings Act, 1992.

The class consists of approximately 100 investors in a failed real estate limited partnership project.

The settlement restores the class members’ proportionate interest in the property, now with greater development density and less debt, and is considered generous.

The court found the settlement fair, reasonable, and in the best interests of the class, and approved class counsel’s fees.

The action will continue only as between the defendants for unresolved crossclaims.

The Court of Appeal for Ontario dismissed an appeal by Denver Davis from two orders: one staying a proposed class action against Amazon in favour of arbitration, and the other dismissing the motion for certification of the class action.

The class action alleged Amazon was liable for breach of employment contracts, breach of good faith, unjust enrichment, and negligence, and sought damages on behalf of approximately 73,000 delivery workers.

The court held that the motion judge did not err in finding that Amazon was not a common employer of the delivery associates (DAs) employed by third-party logistics companies, and that the requirements for certification were not met.

The appeal was dismissed and costs awarded to the respondents.

The Court of Appeal for Ontario dismissed Binance's appeal from the certification of a class action brought by Canadian investors who purchased cryptocurrency derivatives through Binance.

The court upheld the motion judge’s finding that the claim disclosed reasonable causes of action under both the Securities Act and at common law, and that the requirements for certification under the Class Proceedings Act were met.

The court rejected Binance’s arguments regarding the statutory and common law causes of action, the commonality of issues, and the appropriateness of class-wide remedies, finding no reversible error in the motion judge’s analysis.

The defendants in several related class actions brought motions for summary judgment, arguing that the plaintiffs' actions were statute-barred by limitation periods or were a nullity for failing to obtain leave to commence.

The court adjourned the limitation period motions, finding they overlapped with common issues in earlier certified class actions.

The court dismissed the motions based on the leave requirement, interpreting the certification orders' leave provisions as applying only to competing class actions representing the same class members, not to actions by different classes arising from the same factual matrix.

The appellant, Binance Holdings Limited, appealed a motion judge's order dismissing its motion for a stay of proceedings in favour of arbitration.

The underlying dispute involved a proposed class action by purchasers of cryptocurrency derivatives against Binance for alleged violations of the Ontario Securities Act.

The motion judge had found the arbitration clause void due to public policy and unconscionability, and that exceptions to the competence-competence principle applied, allowing the court to decide the validity of the arbitration clause.

The Court of Appeal dismissed the appeal, affirming the motion judge's decision that the arbitration clause was inaccessible and unconscionable, effectively insulating Binance from meaningful challenge, and that the court properly exercised jurisdiction over the validity of the arbitration agreement.

The plaintiffs sought certification of a class action against Binance for illegal sales of cryptocurrency derivative products without registration or prospectus, contrary to the Ontario Securities Act and common law.

The court granted certification, finding a recognizable cause of action, an identifiable class, and common issues suitable for class-wide determination, including liability and remedies like rescission and aggregate damages.

The court rejected the defendants' arguments regarding the mechanical impossibility of rescission and the unfeasibility of aggregate damages, noting a lack of factual basis for their claims of user-to-user contracts.

The plaintiffs commenced a proposed class action against Binance for selling crypto derivatives products without filing a prospectus, contrary to the Securities Act.

Binance brought a motion to stay the action in favour of arbitration in Hong Kong, relying on an arbitration agreement in its online terms of service.

The court dismissed the motion, finding the arbitration agreement void ab initio as contrary to public policy and unconscionable, given the disproportionate cost of arbitration in Hong Kong compared to the average investor's claim and the inequality of bargaining power in the standard form 'click' contract.

In a proposed employment law class action, Amazon successfully resisted certification and obtained a stay for certain claims.

Amazon sought approximately $2.0 million in costs, while the plaintiff, Denver Davis, argued for an award of around $400,000.

The court, applying principles of reasonableness and access to justice in class proceedings, awarded Amazon costs on a partial indemnity basis of $750,000, finding both parties' requested amounts to be unreasonable.

The decision emphasized that costs should reflect what an unsuccessful party could reasonably expect to pay, not necessarily the successful party's actual costs, and acknowledged the public interest element in the plaintiff's claim.

This endorsement addresses the sequencing of motions in a series of related class actions.

The 2018 plaintiffs sought a temporary stay of the 2022 actions.

The defendants proposed hearing the stay motion concurrently with their summary judgment motions, citing limitation period defenses.

The 2022 plaintiffs argued for their certification motion to proceed if the stay was delayed.

The court, acting as case management judge, directed that the motion to stay be heard first, finding no significant efficiencies in combining it with the summary judgment motions and stating that certification motions should only proceed after summary judgment motions are determined.

The plaintiff sought court approval for a Litigation Funding Agreement (LFA) to fund a class action against the defendants.

The court examined the LFA under section 33.1 of the Class Proceedings Act, 1992, assessing whether it was in the best interests of the class, furthered access to justice, was not champertous, and did not interfere with the lawyer-client relationship.

The court found the LFA fair, reasonable, and compliant with statutory requirements, noting the funder's financial capacity and undertaking for costs.

The motion was granted, and an order was also made designating class counsel and precluding similar actions without notice and leave.

The plaintiffs brought a class action against mutual fund managers for allowing certain investors to engage in frequent short-term trading (market timing/time zone arbitrage), which allegedly diluted the returns of long-term unitholders.

The court found that the defendants owed a duty of care to the funds and breached the standard of care by failing to prevent, and actively facilitating, frequent short-term trading contrary to their prospectuses.

However, the court dismissed the claim for breach of fiduciary duty, finding no bad faith or dishonesty.

The matter was directed to proceed to a damages trial.

The plaintiffs in two putative class actions sought leave to discontinue one action entirely and partially discontinue the second against all but one defendant group.

This procedural step aimed to streamline the proceedings by converting omnibus actions into separate class proceedings against distinct defendant groups.

The defendants did not oppose the requests.

The court granted leave for both discontinuances, recognizing the efficiency gains.

The plaintiff in a securities class action brought a motion to discontinue the action against the underwriter defendants and to unconditionally certify the primary market misrepresentation claim against the remaining corporate and individual defendants.

The action had been stalled due to an appeal regarding the disclosure of prospectus purchasers needed to find a representative plaintiff against the underwriters.

The court approved the discontinuance under section 29 of the Class Proceedings Act, 1992, finding it was in the best interests of the class to avoid further delay and proceed against the remaining defendants, who were jointly and severally liable and financially capable of satisfying a judgment.

The plaintiff brought a proposed class action against Aphria Inc., its directors/officers, and several underwriters, alleging misrepresentations in both the primary and secondary markets regarding two corporate acquisitions.

The plaintiff sought leave to discontinue certain claims, leave to assert secondary market claims under the Securities Act, and certification of the class action.

The court granted the discontinuances and leave for the secondary market claims, certifying them on consent.

For the primary market claims against the underwriters, the court held that the 'Ragoonanan Principle' still applies in Ontario, meaning a representative plaintiff must have a direct cause of action against each defendant.

Since the plaintiff only purchased shares in the secondary market, it could not represent primary market purchasers.

However, the court conditionally certified the primary market claims, giving class counsel 100 days to recruit an eligible representative plaintiff who purchased shares in the prospectus offering.

This appeal concerned an option agreement granting a right of first refusal for land.

The appellant, 864773 Ontario Inc., purported to exercise its option to purchase the property for $10 million, arguing it was a "like amount" to a third-party offer of $15.3 million, considering alleged development costs.

The application judge found the offer invalid.

The Court of Appeal dismissed the appellant's appeal, affirming that the $10 million offer was not a "like amount" to the $15.3 million offer, particularly in the absence of expert evidence to support the claimed adjustments for development costs.

The court also allowed the respondents' cross-appeal to vary the judgment language to facilitate the sale to the third party.

The appellant, Marvin Rubner, appealed a lower court decision that found no binding settlement agreement had been reached between him and his brother, Joseph Rubner, regarding their real estate business interests.

The application judge had concluded that Joseph's counsel had limited authority to negotiate only the minutes of settlement, not the "Deal Points," and that Marvin's counsel was aware of this limitation.

The Court of Appeal dismissed the appeal, affirming that the application judge's interpretation of the agreement and application of the test for ostensible authority were questions of mixed fact and law, reviewable only for palpable and overriding error, which was not demonstrated.

The respondent brought a motion to stay an application commenced by the applicant to set aside a Notice to Arbitrate.

The core issue was whether the parties had reached a binding settlement agreement regarding a family business dispute.

The court found that the applicant's counsel only had authority to negotiate comprehensive minutes of settlement, not to bind the applicant to the material terms or 'deal points' proposed by the respondent.

As there was no mutual intention to agree, no binding settlement was reached.

The motion for a stay and the application to appoint an arbitrator were dismissed, and the application to set aside the Notice to Arbitrate was granted.

The respondent, Andritz va Tech Hydro Limited, brought a motion for summary judgment seeking to dismiss the applicant's, Stonequest Management Inc., claim for outstanding utility payments on the grounds that it was statute-barred by the Limitations Act, 2002, or alternatively, the Real Property Limitations Act.

The court applied the test for summary judgment from Hyrniak v. Mauldin and found that the claim was discovered no later than December 9, 2013, making the action, commenced on December 22, 2015, outside the two-year limitation period under the Limitations Act.

The court also determined that the six-year limitation period under the Real Property Limitations Act did not apply, as utility costs, even if designated as "additional rent" in the lease, do not fall within the objective meaning of "rent" for the purposes of that Act, following Pickering Square Inc. v. Trillium College Inc. Consequently, the applicant's claim was statute-barred, and the respondent's motion for summary judgment was granted, dismissing the action.

The respondent, 1034179 BC Ltd., brought a motion to stay an application by Real Crowd Capital Inc. in Ontario, arguing that Ontario lacked jurisdiction and that British Columbia was the more convenient forum.

The application concerned a claim for commissions under an Engagement Letter for securing real estate financing.

The Master determined that she had jurisdiction to decide both jurisdiction simpliciter and forum non conveniens.

The Master found that the contract was formed in Ontario, establishing a real and substantial connection, and that the respondent failed to rebut this presumption.

Furthermore, the Master concluded that British Columbia was not clearly the more convenient forum, considering factors such as the location of parties, witnesses, applicable law, and litigation costs.

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

Catalyst Capital Group Inc. attempted to acquire VimpelCom Ltd.'s interest in Wind Mobile Corp. but negotiations failed.

During negotiations, a junior analyst employed by Catalyst left to work for West Face Capital Inc., a member of a consortium that subsequently acquired Wind.

Catalyst sued the former employee and West Face for breach of confidence and other claims (the Moyse Action).

The trial judge dismissed the action, finding that no confidential information was communicated and that Catalyst suffered no detriment because its own refusal to agree to a break fee and its insistence on regulatory concessions made the deal impossible.

Catalyst then commenced a second action against the consortium members and others alleging breach of confidence, conspiracy, and inducing breach of contract.

The motion judge dismissed the second action as barred by issue estoppel, cause of action estoppel, and as an abuse of process.

The Court of Appeal upheld the dismissal, finding that Catalyst was attempting to relitigate factual findings from the first action and that it could have advanced all claims in the first proceeding.