Marie-Andree Vermette

The applicant, a secured creditor, applied to adjudge the respondent bankrupt and sought a declaration that its perfected security interest under the Personal Property Security Act took priority over class counsel's first charge under the Class Proceedings Act regarding a $3 million costs award.

The court adjudged the respondent bankrupt and found the costs award was the respondent's property.

However, the court held that the first charge under the Class Proceedings Act is essentially a solicitor's lien, which is exempt from the Personal Property Security Act.

Therefore, class counsel's charge takes priority over the applicant's secured claim.

The representative plaintiff appealed an order of a Master dismissing a motion for production of communications between a distressed company and its financial advisor and between the company and government actors.

The court considered whether solicitor‑client privilege extended to communications with a financial advisor who might have served as a CCAA monitor, and whether common interest privilege protected communications with federal and provincial governments during restructuring negotiations.

The court held that the financial advisor’s role was integral to the legal advice provided and that the communications were subject to solicitor‑client privilege.

The court also upheld the Master’s finding that communications shared with governments during negotiations to secure restructuring funding were protected by common interest privilege.

Finding no palpable and overriding error in the Master’s factual determinations, the appeal was dismissed.

In a class proceeding involving claims by automobile dealers, the plaintiff moved to add punitive, exemplary, and aggravated damages as an additional common issue against a defendant law firm.

Although the proposed question concerning entitlement to punitive damages had some commonality, the court held that punitive damages could not be appropriately determined at the common issues stage because causation and compensatory damages had not been certified and would require individualized assessments.

The court emphasized the doctrinal link between compensatory damages and punitive damages and concluded that the degree of misconduct could not be meaningfully assessed until the defendant's liability and related third-party claims were resolved.

As a result, the proposed question was not a preferable procedure under s. 5(1)(d) of the Class Action Proceedings Act, 1992.

The motion was dismissed, though the court noted that punitive damages could still be addressed later in the proceedings under the court’s broad management powers.

In a certified class action arising from the termination of automobile dealerships following the 2009 automotive industry restructuring, the plaintiff brought a Rule 30 motion seeking production of documents withheld on the basis of solicitor‑client privilege by a non‑party dealers’ association.

The court reviewed 211 disputed documents in camera to determine whether they constituted privileged legal advice or merely legal information.

Applying the distinction between general legal information and particularized legal advice concerning rights, duties, or liability, the court found that many communications concerned general information about potential bankruptcy proceedings under the CCAA rather than legal advice.

Of the documents reviewed, 60 were held to be privileged while the remainder were ordered produced.

The decision clarifies the analytical distinction between legal advice and legal information for purposes of solicitor‑client privilege in document production disputes.

Following the dismissal of two Rule 30 motions brought by the defendants seeking production of allegedly privileged documents in a certified class proceeding, the court determined the appropriate costs award.

Although the court agreed that solicitor-client privilege had been expressly waived during cross-examinations, the motions were dismissed because the legal advice received by an individual class member was irrelevant to the certified common issues.

On the costs issue, the court rejected the defendants’ submission that success was divided and held that the responding party was substantially successful.

Applying the factors in Rule 57.01(1) and the guidance from the Court of Appeal in Boucher, the court fixed a fair and reasonable costs award below the amount claimed.

Costs of $20,000 all-inclusive were awarded to the responding party, divided equally between the two defendants.

The plaintiffs sought damages arising from the termination of a memorandum of understanding and a subsequent agreement relating to the proposed development of an 80 MW wind energy project on the defendant's industrial lands.

The court held that both documents were largely agreements to agree and therefore unenforceable with respect to the broader development and lease arrangements.

However, the documents imposed limited binding obligations, including a requirement to provide 60 days’ notice before termination of the memorandum and an obligation to allow access for wind measurement under the second agreement.

The defendant breached those obligations by terminating immediately and preventing continued wind testing.

Claims for fiduciary duty, breach of confidence, unjust enrichment, partnership, and loss of chance damages were rejected.

In a certified class action involving former automobile dealers whose franchises were terminated during the 2009 automotive industry restructuring, the defendants sought production of documents relating to legal advice the representative plaintiff received from its own lawyer when signing wind‑down agreements.

The moving parties argued that solicitor‑client privilege had been waived and that the advice was relevant to issues such as causation and damages.

The court held that although privilege regarding advice about the wind‑down agreement had been expressly waived during earlier cross‑examination, relevance for discovery in a class proceeding prior to the common issues trial is confined to the certified common issues.

Because the certified issues focused on the defendants’ conduct under provincial franchise legislation and alleged professional duties, and did not require examination of the individual legal advice received by class members, the requested documents were not relevant at this stage.

The motions to compel production were therefore dismissed.