Ilan Ishai

In this putative securities class action arising from alleged misconduct by the former CEO of Endeavour Mining, the plaintiffs moved for an order requiring defendants to deliver statements of defence and produce insurance information by November 21, 2025.

The defendants opposed both requests, arguing that no statement of defence is required before leave to proceed is granted under the Securities Act, and that insurance information disclosure is premature.

The court dismissed both aspects of the motion, finding that prior to OSA leave being granted, the statutory claim is a nullity and therefore no defence is required, and that insurance disclosure is premature absent settlement discussions or leave being granted.

The plaintiff sought certification of a class action against Volkswagen and Audi entities regarding diesel vehicles fitted with a defeat device to subvert emissions testing.

The Divisional Court had previously remitted the certification motion back to the Superior Court to rehear the balance of the certification motion, apart from the questions of harm and methodology for measuring damages.

The court certified the class action, finding that the pleadings disclosed causes of action for misrepresentation, breach of the Competition Act, breach of the Canadian Environmental Protection Act, and breach of certain provincial consumer protection statutes.

Claims for breach of warranty and unjust enrichment were struck.

The court certified several common issues but declined to certify issues requiring proof of individual reliance or disgorgement.

This case involved a contractual dispute over a settlement agreement between pharmaceutical companies GSK and Pharmascience.

GSK claimed a stipulated payment from Pharmascience, alleging that a third-party generic manufacturer (Teva) had triggered a payment clause by entering the Canadian market.

The central issue was the interpretation of the term 'sale of its valacyclovir product in the Canadian market' within an exception clause, specifically whether it referred to ex-factory sales or downstream sales.

The court found that the term objectively meant ex-factory sales, considering the commercial context, the parties' control over sales, and the agreement's overall purpose.

Since Teva's ex-factory sales ceased within the 60-day period stipulated in the exception, the exception applied, and no payment was owed by Pharmascience.

The court dismissed GSK's action.

The plaintiff and several defendants brought cross-motions to compel answers to undertakings, questions taken under advisement, and refusals from examinations for discovery.

The underlying action involves allegations by the plaintiff that the defendants engaged in a plan to cause financial harm and confer unlawful benefits upon their departure from the organization.

The court applied principles of relevance and proportionality, ordering the parties to answer certain questions and fulfill specific undertakings while upholding refusals for questions that were irrelevant, disproportionate, or improper.

The plaintiff in a proposed class action brought a motion for a declaration that the defendants were contractually precluded from opposing his motion for leave to appeal a decision denying class certification.

The parties had previously entered into a Litigation and Mediation Process Agreement which stated that no party would oppose a motion for leave to appeal an order disposing of all or a portion of the claim.

The court interpreted the agreement and found that the certification decision disposed of a portion of the claim, meaning the defendants were bound by their agreement not to oppose the leave to appeal motion.

Andrew Henry Ting sought to set aside a single judge's decision denying leave to appeal a civil contempt finding related to his father's foreign bankruptcy.

The Court of Appeal for Ontario dismissed the motion, holding that a panel generally lacks jurisdiction to review a single appellate judge's decision on leave to appeal under s. 193(e) of the Bankruptcy and Insolvency Act, and even if jurisdiction existed, the motion lacked merit as the original decision was sound.

The applicant, Gregory Zentner, sought certification of a class action against GFA World and related entities, alleging fraud and misappropriation of charitable donations.

The defendants brought a cross-motion for summary judgment to dismiss the claim on limitation grounds.

The court dismissed Zentner's motion for certification, finding that the pleadings did not disclose a cause of action because the donations were unencumbered gifts, meaning donors did not suffer a compensable loss recoverable through civil action.

The court also found insufficient factual basis for common issues, particularly regarding reliance and causation.

However, the defendants' summary judgment motion was also dismissed, as there remained a genuine issue requiring a trial concerning when Zentner discovered, or reasonably ought to have discovered, the material facts of his claim for limitation purposes.

The plaintiffs in two related class actions sought approval of their retainer agreements and Class Counsel's legal fees following a settlement.

The court found the retainer agreements complied with the Class Proceedings Act and were understood by the representative plaintiffs.

The court also approved the negotiated collective fee of $1,989,507.91 for Class Counsel across Canada, finding the 1.1 multiplier reasonable given the results achieved, the risks involved, and the extensive work performed.

The plaintiff sought to certify a class action on behalf of pre-disclosure owners and lessees of Volkswagen and Audi diesel vehicles containing 'defeat devices'.

The plaintiff alleged they paid a premium for a 'clean diesel' feature they did not receive.

The court dismissed the motion for certification, finding that the plaintiff failed to provide any evidence of a compensable loss or a plausible methodology to measure the alleged loss on a class-wide basis, as required under section 5(1) of the Class Proceedings Act.

An application for leave to appeal a contempt finding was dismissed.

The contempt finding arose from the applicant's failure to attend an examination in aid of a foreign bankruptcy proceeding.

The Court of Appeal found that the proposed appeal did not raise issues of general importance to bankruptcy/insolvency practice or the administration of justice, lacked prima facie merit, and would unduly hinder the progress of the bankruptcy proceedings.

The issues raised included a refused recusal motion and the requirement of personal service for contempt proceedings.

The plaintiffs sought costs of $354,759.57 following a certification motion in a class action regarding allegedly defective water pumps in Ford vehicles.

The defendants argued that each party should bear their own costs due to the plaintiffs' limited success, as only one of fifteen causes of action was certified and the class size was significantly reduced.

The defendants also sought costs for their successful preliminary motion to strike evidence.

The court awarded the defendants $16,612.70 for the preliminary motion.

For the certification motion, the court found that a reduction in the plaintiffs' costs was justified to discourage overinclusive class membership, awarding the plaintiffs $197,750 in fees payable forthwith and $97,537.56 in disbursements payable in the cause.

This is a motion to quash an appeal brought by Andrew Henry Ting against two orders made in the bankruptcy proceedings of his father, James Henry Ting.

The orders included an enforcement of a Hong Kong letter of request for production and examination, and a subsequent contempt finding and penalty for non-compliance.

The appellant argued he had a right of appeal under s. 193(a) of the Bankruptcy and Insolvency Act (BIA) on the basis that the point at issue involved "future rights," specifically procedural fairness regarding a recusal request.

The Court of Appeal held that the orders were subject to BIA appeal routes and that issues of procedural fairness engage present, not future, rights.

Consequently, the appeal was quashed.

In a proposed class action regarding allegedly defective water pumps in Ford vehicles, the defendants brought a preliminary motion to strike portions of an affidavit filed by the plaintiffs' proposed class counsel.

The affidavit attached unverified online complaints from a U.S. database.

The court granted the motion to strike, finding that the complaints were inadmissible hearsay and that their prejudicial effect outweighed any minimal probative value they might have had for imputing knowledge of the defect to the defendants.

The plaintiffs sought to certify a $1.1 billion class action against Ford Motor Co. alleging that certain vehicles contained a defective internal water pump that could cause catastrophic engine failure.

The court analyzed the claims under the Class Proceedings Act, 1992.

Applying the Supreme Court's decision in Maple Leaf Foods, the court struck the claims for pure economic loss for class members whose water pumps had not yet failed, finding no imminent danger.

The court also refused to certify the breach of contract, consumer protection, and unjust enrichment claims.

The court certified the action solely for design negligence for class members who actually experienced a water pump failure resulting in property damage or personal injury.

Two competing class counsel groups sought carriage of a proposed class action against the Province of Ontario regarding COVID-19 outbreaks in long-term care homes.

The Nisbet Action proposed suing Ontario solely for its several liability to avoid third-party claims and expedite certification.

The Robertson Action proposed a conventional joint and several liability approach, expecting third-party claims between Ontario and long-term care operators.

The court granted carriage to the Robertson Action, finding that the several liability approach offered no early-stage advantage and would create significant disadvantages in later-stage litigation, including potential unfairness to the defendant and risks of unrecovered losses for class members.

The defendants brought a motion to strike the plaintiff's claim for restitution for unjust enrichment and disgorgement of profits, and a motion to bifurcate the trial on liability and damages.

The plaintiff alleged the defendants breached a settlement agreement regarding the market entry date of a generic drug.

The court dismissed the motion to strike, finding the pleaded facts were capable of supporting the restitutionary claims.

The court granted the motion to bifurcate, finding exceptional circumstances justified separating the liability issues from the complex quantification of damages.

The applicant sought a stay of production and examination orders pending his application for leave to appeal to the Supreme Court of Canada.

The applicant's father was adjudged bankrupt in Hong Kong, and foreign representatives obtained recognition of the Hong Kong bankruptcy proceeding in Ontario.

The applicant challenged the procedural regularity of the initial recognition order, arguing the bankrupt was not given proper notice.

The Court of Appeal granted a conditional stay, requiring the applicant to produce specified documents and file an affidavit of full production by October 9, 2019, with sealed documents to remain sealed pending the Supreme Court's disposition of the leave application.

Following the dismissal of a motion brought by the representative plaintiffs in a settlement-approved class action, the defendants sought costs of $17,840 on a partial indemnity basis, requesting they be paid personally by class counsel.

Class counsel argued that awarding costs against them personally would undermine access to justice.

The court held that the defendants' request for costs against class counsel personally was improper, as class counsel was not a party and had committed no misconduct.

However, the court also rejected class counsel's access to justice arguments, finding that the representative plaintiffs, as the losing parties, were responsible for costs in the normal course.

Costs of $17,840 were awarded to the defendants, payable by the representative plaintiffs.

In a class action settlement regarding Volkswagen diesel vehicles, the plaintiffs brought a motion seeking production of data relating to VW's investigation of post-repair lag and surge issues, and an extension of the claims deadline.

The plaintiffs argued that the Settlement Agreement required disclosure of this data to allow class members to make informed decisions.

The court dismissed the motion, finding that the lag/surge issue was a safety concern outside the ambit of the Settlement Agreement's provisions on reduced performance.

Consequently, the court held it had no jurisdiction under the settlement to order production of the data or to extend the claims deadline.

Appellants brought a proposed class action alleging that respondents conspired to divide the beer market contrary to section 45(1) of the Competition Act through a Framework Agreement signed in 2000, and that a surcharge levied by Brewers Retail on licensees violated the Liquor Control Act.

The motion judge dismissed the action on the basis that the regulated conduct defence was available to the respondents.

The Liquor Control Act authorized the impugned conduct.

The Ontario legislature subsequently enacted retroactive amendments in 2015 to remove any doubt that the conduct was authorized.

The Court of Appeal upheld the dismissal, finding that the regulated conduct defence insulated the respondents from liability and that retroactive legislation could provide authorization for the defence.