James S.F. Wilson

This appeal concerns the applicable test for determining jurisdiction over absent foreign claimants (AFCs) in a class action involving allegations of conspiracy to fix prices of air freight shipping services for shipments from or to Canada between 2000 and 2006.

The motion judge had rejected the real and substantial connection test and held that jurisdiction could only be established if AFCs were present in Ontario or had consented to the court's jurisdiction.

The motion judge also declined to exercise jurisdiction on the basis of forum non conveniens.

The Court of Appeal allowed the appeal, holding that the real and substantial connection test applies to class actions involving AFCs and that jurisdiction may be established where there is a real and substantial connection between the subject matter and Ontario, common issues exist between representative plaintiffs and AFCs, and procedural safeguards of adequate representation, notice, and opt-out rights are provided.

The court also found that forum non conveniens did not apply as no clearly more appropriate forum existed.

The Tribunal issued an order regarding the scope of the continuation of a hearing concerning appeals of a Renewable Energy Approval for a wind facility.

The Tribunal had previously found that the project would cause serious and irreversible harm to plant life, animal life, or the natural environment.

In this order, the Tribunal determined that the Approval Holder would be permitted to adduce additional evidence regarding proposed remedies to address the identified harm.

The Tribunal also clarified the tests, considerations, and onus of proof applicable under section 145.2.1(4) of the Environmental Protection Act for the remedy phase of the hearing.

The moving party corporation sought leave to appeal an order dismissing its motion to set aside or stay an interim payment order requiring it to advance legal fees to a former officer facing criminal charges in the United States.

The moving party argued that a recent jury verdict of guilty in the US constituted sufficient evidence of mala fides to overcome the indemnification obligation.

The Divisional Court dismissed the motion for leave to appeal, finding no conflicting decisions and no reason to doubt the correctness of the motion judge's decision, as the US verdict had not yet been entered as a final judgment and the risk of non-repayment did not constitute irreparable harm.

The Alliance to Protect Prince Edward County brought a motion to stay a Renewable Energy Approval for a wind power project pending the disposition of its appeal.

The moving party argued that vegetation clearing and site preparation would cause irreparable harm to the threatened Blanding's Turtle and its habitat.

Applying the RJR-MacDonald test, the Environmental Review Tribunal found that there was a serious issue to be tried, that irreparable harm would ensue to the spring foraging habitat of the Blanding's Turtle, and that the balance of convenience favoured the moving party.

The Tribunal granted the stay in part, halting vegetation clearing in identified spring foraging habitat.

The moving party sought leave to amend its claim in a simplified procedure action to add allegations that it had been misled in relation to a gas supply agreement, in addition to an existing electricity supply agreement claim.

The responding defendants argued the proposed amendment was clearly statute-barred, but the court held it was not in a position on the motion record to determine discoverability and found the trial judge would be better suited to assess that issue.

Leave to amend was granted, the addition of a further defendant was permitted on consent, and the responding defendants were granted a further two hours of discovery flowing from the amendments.

On costs, the court applied proportionality and fixed motion costs to the moving party at $1,695, while also recognizing amendment-related costs in favour of Planet Energy, resulting in a net payment by the plaintiff of $3,161.

The applicant sought leave to appeal an interlocutory order that consolidated his application for the sale of a jointly owned property under the Partition Act with ongoing oppression remedy actions involving his former business associates.

The court dismissed the motion for leave to appeal, finding no good reason to doubt the correctness of the consolidation order, as the property dispute was sufficiently connected to the broader business dispute, and the matter was not of general importance.

Following a prior decision staying the action in favour of arbitration, the defendants sought costs of the motion.

The defendants claimed $61,538.71 all-inclusive, while the plaintiff argued that fees should fall in the range of $25,000.

The court reviewed the billing approach, including reliance on the principle that partial indemnity costs may reflect a percentage of actual billing rates, and assessed the reasonableness of the work performed and hourly rates claimed.

Applying the reasonableness standard and the factors in Rule 57.1 of the Rules of Civil Procedure, the court concluded the work appeared excessive in the circumstances.

The court fixed fees and disbursements at a reduced amount payable by the plaintiff.

The defendants moved to stay the plaintiff's action on the basis that the dispute was subject to an arbitration agreement contained in a Share and Asset Purchase Agreement.

The plaintiff had commenced an action claiming oppressive conduct regarding the calculation of EBITDA, which affected the purchase price of the remaining shares.

The court found that it was arguable the dispute fell within the arbitration clause, which covered disputes over any amount shown in an EBITDA report.

The action was stayed pending the arbitrator's determination of jurisdiction and the merits.

In a securities class proceeding under the Class Proceedings Act, 1992 and the Securities Act, the plaintiffs sought certification for settlement purposes against certain underwriters, approval of three settlements totalling approximately $10.85 million, approval of counsel fees, and approval of a proposed plan of allocation.

The court held that the settlements were fair, reasonable, and in the best interests of the class and approved them, along with counsel fees and the appointment of an administrator.

However, the court rejected the parties’ proposed distribution plan because it excluded class members who purchased shares on the day of the corrective disclosure from any compensation.

Exercising its authority to determine the plan of allocation, the court varied the distribution plan to include those purchasers and approved the modified plan as fair and reasonable.