Lisa Parliament

The plaintiff in a proposed class action concerning failed syndicated mortgage investments brought a motion to lift a stay of proceedings and dismiss the action against the ADI Defendants.

A settlement had been reached in a related action (the FAAN Action) providing over $18.3 million to the investors, representing over 91% of the principal owed by the ADI Defendants.

The court found the settlement fair and reasonable, and approved the dismissal of the class action against the ADI Defendants without costs, as there was no prejudice to the putative class members.

The defendant, Olympia Trust Company, brought a consent motion to dismiss third-party proceedings against ADI Developments (Link) Inc., ADI Development Group Inc., and Tariq Adi.

The motion was brought after the plaintiff's main action against Olympia Trust was dismissed and a comprehensive settlement agreement resolving claims against the ADI Defendants was approved.

The court granted the motion, dismissing the third-party proceedings with prejudice and without costs, as the basis for the third-party claim was obviated and the dismissal was on consent.

The defendant Roberts Bros.

Sheet Metal Contractors Ltd. (RBSMC) brought a motion to set aside a noting in default and permit the filing of a statement of defence and crossclaim.

The court declined to sign the requested order because RBSMC failed to comply with Rule 37.12.1(3) of the Rules of Civil Procedure, which requires a notice of non-opposition from all responding parties for an "unopposed" motion to proceed in writing.

The court emphasized that co-defendants are also affected parties, particularly when crossclaims are contemplated, and their formal non-opposition is necessary, unlike the simpler procedure under Rule 19.03(2) which relies solely on plaintiff consent.

The court provided guidance on alternative procedural routes for RBSMC to pursue the motion.

The moving party, Watts Water Technologies Inc., brought a motion for leave to appeal the order of Sanderson J. dated March 16, 2021.

The Divisional Court dismissed the motion for leave to appeal and awarded costs to the responding party in the fixed amount of $5,000.

The plaintiffs brought a motion for judicial approval of 13 discrete auto part class action settlements with the HIAMS, Mitsuba, NGK, and Sumitomo Riko defendants, totaling approximately $14.8 million.

The court found that each of the proposed settlements fell within a zone of reasonableness, noting that the Canadian settlement amounts were proportionate to related American settlements.

The court also approved class counsel's request for a 25 percent contingency fee, plus disbursements and taxes, finding it presumptively valid.

This is a costs endorsement following an appeal from orders of the Superior Court of Justice.

The appeal involved four consolidated actions concerning personal liability of corporate directors and officers in the context of real estate development and mortgage transactions.

The Court of Appeal upheld the motion judge's conclusions on the legal issue of personal liability based on pleaded allegations and legal principles.

The costs decision addresses the appropriate costs awards for the successful and unsuccessful parties across the multiple appeals.

Four consolidated class actions brought by small investors who invested in syndicated mortgages promoted by Fortress Real Capital Inc. and Fortress Real Developments Inc. The investors alleged misrepresentation, breach of fiduciary duty, breach of contract, and negligence.

The motion judge struck claims against individual respondents Jawad Rathore and Vincenzo Petrozza, and dismissed claims to enforce syndicated mortgages against Empire Pace (1088 Progress) Ltd. and ADI Developments entities.

The appellants appealed.

The Court of Appeal upheld the dismissal of personal claims against Rathore and Petrozza but reversed the dismissal of mortgage enforcement claims against Empire Pace and ADI, finding that the motion judge erred in applying Rule 21 to matters requiring evidentiary findings regarding contract interpretation and disclosure.

Following a successful pleadings motion that struck the claims against the Adi Developments defendants without leave to amend, the defendants sought partial indemnity costs of approximately $65,000.

The plaintiff argued the amount was excessive and suggested $22,000.

The court rejected the plaintiff's argument that the defendants' costs should be limited by the plaintiff's own expected costs or the costs awarded to other defendants.

The court fixed the costs payable to the Adi Developments defendants at $50,000 all inclusive.

The plaintiff brought a proposed class action concerning investments in a syndicated mortgage for a land development project.

The Adi Development Defendants brought a motion to strike the Statement of Claim and dismiss the action against them.

Relying on reasons released simultaneously in a related action, the court held that the sealed contract rule prevented the plaintiff from suing to enforce the syndicated mortgage because he was not a party to it.

The motion was granted, and the claims against the Adi Development Defendants were struck out without leave to amend.

The tenants under two long-term ground leases appealed a majority arbitration award determining the fair market value of the lands for rent re-set purposes.

The court upheld the arbitrators' finding that the freehold interest, not the leasehold interest, was to be valued.

However, the court found the arbitrators erred in law by including the potential value of a freehold residential condominium project in the valuation, as a prior Divisional Court decision between the parties established that development potential unavailable to the tenants due to legal restrictions must be excluded.

Finding that issue estoppel applied to this prior determination, the court set aside the arbitration award and ordered a new hearing.

The moving party sought leave to appeal a prior order certifying a class proceeding under the Class Proceedings Act.

It argued that the certification judge erred in finding the pleadings disclosed a cause of action and in determining that common issues existed, particularly regarding an alleged duty of a custodial trustee to warn investors about an investment scheme.

The court held that the certification judge properly applied the test under the Class Proceedings Act and that it was not plain and obvious the claim had no chance of success.

The alleged “super-added duty” was properly characterized as part of the broader tort duty of care that could arise depending on factual findings at trial.

The court also rejected arguments that the certification process or authorities relied upon created conflicting jurisprudence warranting appellate review.

The plaintiffs sought certification of a price‑fixing class action for settlement purposes against certain chocolate manufacturers and approval of a settlement with one defendant.

The action alleged a conspiracy to fix, maintain, or stabilize prices of chocolate confectionery products in Canada, contrary to competition law.

The court considered the requirements for certification under the Class Proceedings Act, 1992 and approved certification for settlement purposes, noting that common issues and preferable procedure criteria were satisfied.

The court further approved a $5.3 million settlement with the settling defendant, including cooperation provisions and a most‑favoured‑nation clause, finding the compromise fair, reasonable, and in the best interests of the class.

An interim class counsel fee award of $800,000 inclusive of disbursements and tax was approved, subject to possible adjustment depending on future settlements.

The defendant, Terex Corporation, sought leave to appeal an order dismissing its motion for summary judgment.

The plaintiffs sued for injuries sustained in a forklift accident, alleging that Terex assumed the product liabilities of the original manufacturer through an asset contribution agreement and a share purchase agreement.

Terex argued that the doctrine of privity of contract prevented the plaintiffs from relying on the agreements and that successor liability did not apply.

The Divisional Court found no reason to doubt the correctness of the motion judge's conclusion that there was a genuine issue for trial regarding successor liability, particularly under the express assumption theory.

The motion for leave to appeal was dismissed.

The appellant employer appealed a trial judgment finding it wrongfully dismissed the respondent employee, who suffered from chronic fatigue syndrome.

The trial judge awarded 15 months' notice, a 9-month Wallace extension, $500,000 in punitive damages, and a costs premium.

The Court of Appeal upheld the findings of wrongful dismissal, the notice period, and the Wallace extension, finding the employer's order to meet with its doctor unreasonable and its conduct in termination high-handed.

However, the Court reduced the punitive damages to $100,000, finding the trial judge made palpable errors of fact regarding the duration and scope of the employer's misconduct, and reduced the costs premium.

The appellant challenged the authority of the City of Toronto to enact a by-law regulating the use of pesticides within the city under s. 130 of the Municipal Act, 2001.

The motion judge upheld the by-law.

On appeal, the Court of Appeal affirmed that the broad and purposive approach to interpreting municipal powers applies to s. 130.

The court found that the by-law was enacted for purposes related to the health, safety, and well-being of inhabitants, and did not conflict with federal or provincial pesticide legislation.

The appeal was dismissed.