Linda Rothstein

The appellants, representing a class of Ontario Shoppers Drug Mart franchisees, appealed a summary judgment decision regarding their entitlement to Professional Allowances paid by generic drug manufacturers.

The Court of Appeal upheld the motion judge's findings that Shoppers breached the 2002 franchise agreement by retaining the allowances, which constituted 'revenue', but did not breach the 2010 agreement, which explicitly allowed Shoppers to retain such concessions.

The Court also upheld the application of a rolling limitation period and the refusal to award aggregate damages due to the idiosyncratic nature of the profit-sharing model.

However, the Court allowed the appeal regarding the quantification of damages, finding that Shoppers breached its duty of good faith by arbitrarily allocating $129 million as out-of-province rebates to avoid sharing the funds with Ontario franchisees, bringing the total Professional Allowances received to $1.084 billion.

In this certified class action, the plaintiff franchisees (Associates) brought a motion for summary judgment against the franchisor, Shoppers Drug Mart, alleging breaches of contract, breaches of the duty of good faith, and unjust enrichment regarding various fees and the retention of Professional Allowances paid by generic drug manufacturers.

Shoppers brought a cross-motion for summary judgment to dismiss the claims, arguing they lacked merit and were statute-barred.

The court dismissed the claims regarding the Optimum Fee and Shoppers Charges, finding no breach of contract or bad faith.

The court also dismissed the unjust enrichment claim for Professional Allowances but found that Shoppers breached the 2002 Associates Agreement (but not the 2010 Agreement) by failing to remit Professional Allowances to the Associates.

The court held that aggregate damages were not viable and directed that the surviving breach of contract and distribution centre claims proceed to individual issues trials, subject to limitation periods.

The plaintiffs sought judicial approval of a $100 million settlement in a class action regarding hidden foreign exchange fees in registered accounts, along with approval of class counsel's legal fees and representative plaintiff honoraria.

The court approved the settlement as fair and reasonable.

However, the court declined to approve the requested $25 million in legal fees based on a straight-line 25% contingency, finding that in a 'mega-fund' settlement, a multiplier and percentage cross-check must be used to avoid a windfall and maintain the integrity of the profession.

The court approved $20 million in legal fees, plus disbursements and taxes, and approved the requested honoraria for the representative plaintiffs.

The plaintiffs brought a class action alleging that the defendant financial institutions breached their trust and fiduciary duties by failing to disclose markup fees charged on foreign currency conversions in registered accounts.

The parties brought cross-motions for summary judgment on the common issues, and the defendants moved for decertification.

The court found that the defendants breached the trust agreements by failing to disclose the amount of the markup fees.

The court ordered an accounting of profits to be determined at a reference, emphasizing the need to deter fiduciary misconduct.

The court dismissed the plaintiffs' claims for an elevated interest rate and punitive damages, and dismissed the defendants' motion to decertify the class action.