Marie-Andrée Vermette

The plaintiff moved under Rule 39.02(2) for leave to file affidavits with additional documents after cross-examinations in support of a summary judgment motion to enforce a foreign restitution order.

Applying the Divisional Court framework for late evidence, the court held that although the proposed documents were relevant, the plaintiff failed to provide an adequate explanation for not filing them earlier and had made a strategic choice to confront the defendant with the documents on cross-examination instead of proving them by affidavit.

The court further held that admissibility cannot be ignored in the Rule 39.02(2) analysis, even if the ultimate ruling is left to the motion judge.

Leave was refused, and the court indicated the proposed evidence would have been inadmissible hearsay in any event.

No costs were awarded.

The applicant sought judicial review of a decision by the Horse Racing Appeal Panel, which had overturned the applicant's decision to waive a horse's disqualification following a positive drug test.

The applicant argued the standard of review was correctness as it involved a true question of jurisdiction.

The Divisional Court held the standard of review was reasonableness, as the Panel was interpreting its home statute.

The Court found the Panel's conclusion that it had jurisdiction to hear the appeal was reasonable and dismissed the application for judicial review.

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 court approved the class action distribution plan, which allocated proceeds proportionally based on prior wind-down payments, and the class counsel's retainer agreement, fees, and disbursements.

The court also approved honourariums for the representative plaintiff and another instrumental class member.

A dispute regarding priority between General Motors' security interest and Class Counsel's first charge was noted for a subsequent decision.

This decision addresses two post-appeal issues: the costs of administering a class action settlement and the final quantification of damages.

The court ordered the defendant, Cassels Brock & Blackwell LLP, to pay reasonable administration costs.

For damages, following directions from the Court of Appeal, the court adopted the defendant's mathematical approach, awarding $28,745,304.00 to the plaintiff, Trillium Motor World Ltd., rejecting the plaintiff's proposed higher amounts based on proportional mathematical approaches or alleged enhanced bargaining power.

The applicants, engaged in combating government corruption in Malaysia, sought a Norwich Pharmacal order to compel financial institutions to produce confidential information about a Canadian real estate group.

The applicants suspected the group was funded by proceeds of foreign corruption and contemplated a private criminal prosecution for money laundering and receipt of proceeds of crime.

The court dismissed the application, holding that the applicants lacked reasonable grounds to believe an indictable offence had been committed, and that it would be inappropriate to use the court's inherent civil jurisdiction to bypass the careful balance struck by Parliament in the Criminal Code for criminal investigations and private prosecutions.

This is a motion to vary the Court of Appeal's decision in a solicitor's negligence case.

The moving party sought to clarify the trial judge's discretion regarding the final quantification of damages and the process for calculating the damages award, subject to a ceiling of $36.9 million.

The respondent opposed the motion.

The Court of Appeal dismissed the motion, finding that the moving party could not bring itself within the applicable rules permitting reconsideration of appellate decisions, and that it was not in the interests of justice to invoke the court's narrow jurisdiction to reconsider.

This appeal concerns a class action by General Motors of Canada Limited (GMCL) dealers against the law firm Cassels Brock & Blackwell LLP for breach of fiduciary and contractual duties.

During the 2009 financial crisis, Cassels represented three potentially conflicting clients: the Saturn Dealers, Industry Canada (regarding GMCL bailout financing), and GMCL dealers generally regarding a potential restructuring or insolvency.

The trial judge found that Cassels breached its duties by failing to disclose the conflict of interest with Industry Canada to the dealers and by failing to provide proper advice regarding Wind-Down Agreements (WDAs) offered by GMCL.

The dealers lost the opportunity to negotiate collectively for better compensation.

The Court of Appeal upheld the liability findings but reduced the damages award from $45 million to approximately $41 million (subject to further calculation regarding class composition).

This appeal arises from the 2009 General Motors of Canada bailout and the termination of franchise dealerships.

The franchisor offered Wind-Down Agreements to 240 dealers, providing payment in exchange for comprehensive releases of all claims, including those under the Arthur Wishart Act.

The dealers were required to obtain independent legal advice before signing.

A class action was subsequently brought by terminated franchisees claiming breaches of statutory rights.

The trial judge found the releases valid under the Tutor Time exception to section 11 of the Wishart Act, as they constituted settlements of known and existing claims entered into with legal advice.

The trial judge also held that covenants not to sue and indemnity provisions were void for public policy reasons but were severable from the release.

The Court of Appeal upheld both the validity of the releases and the severance of the covenant not to sue.

The respondents, a corporation and four individual shareholders, sued the Crown for damages arising from two theories of liability: forced incorporation and failure to enforce.

Under the forced incorporation theory, the respondents alleged that Crown misconduct forced them to incorporate their partnership, resulting in tax liability they would have avoided as Indians under section 87 of the Indian Act.

Under the failure to enforce theory, they alleged the Crown failed to properly implement an anti-smuggling initiative, causing them to compete unfairly against unlicensed contraband manufacturers.

The Crown appealed a motion judge's decision refusing to strike the claims.

The Court of Appeal dismissed the forced incorporation appeal, allowing it to proceed to trial, but allowed the failure to enforce appeal in part by striking the fiduciary duty claims while permitting the negligence and misfeasance claims to proceed.

The applicant sought to set aside an order quashing its application for judicial review of a renewable energy approval for a wind project.

The motions judge had quashed the application on the grounds of prematurity because the applicant had appealed the approval to the Environmental Review Tribunal.

The Divisional Court dismissed the motion to set aside, agreeing that the application was premature as the administrative appeal process under the Environmental Protection Act had not yet been completed.

The applicant brought an application for judicial review of the Director's issuance of a renewable energy approval, while simultaneously pursuing an appeal before the Environmental Review Tribunal (ERT).

The respondents brought a motion to quash the judicial review application on the basis of prematurity.

The court granted the motion and quashed the application, applying the doctrine of exhaustion.

The court found that the ERT had the power to provide an effective remedy (revocation of the approval) and there were no exceptional circumstances justifying early recourse to the courts.

The parties appeared on a motion to settle the terms of a judgment following a class action trial.

The court resolved three disputes between the plaintiff and the defendant law firm regarding the wording of the judgment.

The court held that the judgment should include a mechanism allowing for a potential reduction of the $45 million aggregate damages award, as the court had mistakenly assumed all 181 class members had retained the law firm.

The court also clarified that class members only needed to return a participation form or funding to create a retainer, and that this had to be done prior to the waiver of the Acceptance Threshold Condition.

Following a 41-day trial where the plaintiff succeeded against one defendant (Cassels) but failed against another (GMCL), the court determined the costs awards.

The plaintiff was awarded partial indemnity costs against Cassels, apportioned at 40% of fees and 50% of disbursements to reflect the divided success of the action.

GMCL sought substantial indemnity costs against the plaintiff, arguing the plaintiff made unfounded allegations of misconduct.

The court rejected this, finding the allegations were not reprehensible, and awarded GMCL partial indemnity costs, subject to a 10% reduction for duplication between its two law firms.

The plaintiff was also awarded costs for successfully defending GMCL's counterclaim.

In this certified franchise class action arising from the 2009 automotive restructuring, the representative plaintiff alleged that the franchisor breached statutory duties of fair dealing, disclosure, and association when it issued wind-down agreements to affected dealers on short notice, and also alleged that class counsel acted in conflict and failed to protect the dealers' interests.

The court held that the franchisor did not breach its obligations under the Arthur Wishart Act or analogous provincial legislation, found the wind-down release enforceable as a settlement of existing and fully known claims, and dismissed the claim against the franchisor as well as the franchisor's counterclaim.

The court further held that the law firm retained for the dealer group had in fact entered into a solicitor-client relationship with the contributing dealers, that its retainer extended to pre-filing restructuring issues, and that it breached fiduciary, contractual, and tort duties by acting despite an undisclosed conflict with Industry Canada, failing to address the steering committee's internal conflict, and maintaining an unreasonable wait-and-see approach.

Applying a loss-of-chance analysis, the court found that the class lost a real and significant opportunity to negotiate collectively for higher wind-down payments and awarded aggregate damages of $45 million against the law firm.

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.