Paul H. Le Vay

The applicant, a former Senior Manager, Compliance, sought court advice and direction regarding claims for solicitor-client privilege asserted by the Toronto-Dominion Bank and its subsidiaries over documents and information in her possession.

The applicant had previously initiated a wrongful dismissal claim and sent whistleblower reports to regulators using internal Bank documents.

The Bank asserted privilege over certain materials and applied redactions.

The court found that the documents and information in the applicant's possession were subject to solicitor-client privilege and should be returned or redacted.

The court also denied the applicant's request for her litigation counsel to review the privileged materials, finding no "absolute necessity" and rejected arguments that the privilege belonged to trust beneficiaries or was negated by a future crimes/fraud exception.

The application was dismissed in its entirety, and costs were awarded to the Bank.

In a CCAA proceeding, the Monitor sought leave to appeal an order dismissing its motion for a declaration that funds swept into a UK bank account were subject to a statutory trust under the Construction Lien Act.

The CCAA judge had found the funds were irreconcilably commingled and could not be traced.

The Court of Appeal refused to admit fresh evidence and denied leave to appeal, finding the proposed appeal was not prima facie meritorious and the decision was fact-specific and consistent with established jurisprudence regarding tracing.

David W. Fickel sought leave to appeal from a motion judge's order that stayed the execution of a summary judgment for payment on a promissory note, pending the final resolution of the main action.

The motion judge had granted summary judgment to Fickel on the promissory note but stayed its execution due to the interconnectedness of the claims arising from the same share purchase agreement.

The court dismissed the motion for leave to appeal, finding no reason to doubt the correctness of the motion judge's discretionary decision to grant a stay under Rule 20.08, and that the proposed appeal did not involve matters of general or public importance beyond the immediate parties.

The representative plaintiff in a class action sought costs following a successful second motion under s. 5(1)(a) of the Class Proceedings Act and a subsequent consent certification.

The court awarded the plaintiff partial indemnity costs of $31,089 for the contested motion.

For the balance of the certification motion, the court ordered a hybrid costs award because the defendants did not communicate their consent in a timely fashion, fixing costs at $65,235, with one-third payable forthwith and two-thirds payable in the cause.

The moving party sought leave to appeal an interlocutory order holding that a class action statement of claim disclosed a viable cause of action for knowing assistance in breach of trust.

The motion judge had struck a claim for breach of fiduciary duty but allowed the knowing assistance claim to proceed under the test applicable to Rule 21 and s. 5(1)(a) of the Class Proceedings Act.

Applying Rule 62.02(4)(b), the court considered whether there was reason to doubt the correctness of the order and whether the proposed appeal raised matters of general importance beyond the interests of the parties.

The court held that the proposed appeal concerned only the application of well‑established pleading principles and did not raise issues of broader legal significance.

Leave to appeal was therefore denied.

The plaintiff, a unit-holder in a real estate investment trust (REIT), brought a proposed class action alleging that the REIT's former CEO and trustees breached their fiduciary duties and duties of trust by entering into an undisclosed related-party transaction.

On a bifurcated certification motion to determine if the pleadings disclosed a reasonable cause of action under s. 5(1)(a) of the Class Proceedings Act, the court struck the breach of fiduciary duty claims, finding that the defendants owed duties to the REIT but not to the unit-holders.

However, the court allowed the breach of trust claims against the trustees and the knowing assistance claim against the former CEO to proceed, while striking the knowing assistance claims against the vendor and the vendor's solicitors.

In a bifurcated class action certification motion, the court considered whether unit-holders of a publicly traded real estate investment trust had pleaded viable causes of action arising from an allegedly conflicted property transaction that was later rescinded, causing a sharp drop in unit value.

The court held it was plain and obvious that officers and trustees did not owe fiduciary duties directly to unit-holders in the circumstances pleaded, and struck the fiduciary duty claims.

However, the breach of trust claims against certain trustees, grounded in the declaration of trust and the arguable ability of unit-holders to sue for dishonest or negligent breach of trustee obligations, were allowed to proceed.

The knowing assistance claim survived only against the former CEO, while similar claims against the vendor parties and their solicitors were struck for failure to plead active assistance in the trustee's breach.

Certification was dismissed as against the vendor parties and their solicitors.

The appellant law firm performed collection work for the respondent bank under a written agreement.

Following the termination of the agreement, the parties disputed the interpretation of a provision regarding invoicing for services performed up to the termination date.

The motion judge agreed with the respondent's interpretation and granted summary judgment dismissing the action.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error or extricable question of law in the motion judge's interpretation of the contract.

The court also held that the general duty of honesty in contractual performance recognized in Bhasin v. Hrynew did not affect the interpretation.

The appellants appealed a decision certifying a class action regarding the Bre-X gold mine fraud.

The motion judge had restricted the common issues to conspiracy and fraud, declining to certify negligent misrepresentation as a common issue, and limited the class to shareholders who held shares on the date the possible fraud was publicly disclosed.

The Divisional Court dismissed the appeal, agreeing that negligent misrepresentation claims require individual inquiries into reliance and causation, making a class action not the preferable procedure for those claims.

The court also upheld the temporal restriction on the class, as shareholders who sold before the disclosure date could not have suffered losses caused by the misrepresentations.