Marie-Andrée Vermette

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.

The defendant moved for additional security for costs in complex commercial litigation involving a proposed wind energy project.

The corporate plaintiffs admitted they had no material assets in Ontario and argued that they were impecunious and unable to raise funds.

The court held that impecuniosity requires full financial disclosure showing that the corporation, its shareholders, creditors, and other potential beneficiaries cannot raise funds to post security.

The evidence showed significant undisclosed financial resources and potential funding sources among shareholders and related parties, and the plaintiffs failed to meet their evidentiary burden.

Exercising its discretion under Rule 56.01(d) of the Rules of Civil Procedure, the court ordered additional security for costs in the amount of $350,000.

Following a successful appeal that set aside a Norwich order, the Court of Appeal issued an addendum to explicitly set aside the underlying December Order.

The Court also determined the costs of the proceedings below.

Departing from the general rule that costs follow the event, the Court ordered that no costs be awarded to any party for the Superior Court proceedings, citing the appellants' shifting legal positions, the unsettled nature of the law regarding Norwich orders, and the underlying conduct of the appellants.

The respondent obtained a Norwich order for pre-action discovery against the appellants to investigate alleged fraudulent conveyances and misrepresentations following a failed corporate acquisition.

The appellants appealed the order.

The Court of Appeal allowed the appeal and set aside the Norwich order, finding that the motion judge erred in principle by failing to consider whether the pre-action discovery was necessary.

The Court held that the respondent already possessed sufficient information to formulate a pleading and that the extraordinary equitable remedy of a Norwich order was not required.

The plaintiffs brought an action including a claim for oppression under the Canada Business Corporations Act (CBCA) alongside eight other causes of action.

The defendant obtained an order for security for costs from a master, which was upheld by a Superior Court judge.

The plaintiffs sought leave to appeal to the Court of Appeal under s. 249(2) of the CBCA, arguing the CBCA governed the appeal route.

The defendant moved to quash the application, arguing the proper route was to the Divisional Court under the Rules of Civil Procedure.

The Court of Appeal granted the motion to quash, finding that the core of the action was not an oppression claim and the plaintiffs had already initiated the appeal process under the civil rules.

The appellants appealed a trial judgment which found that although the respondent lawyers were negligent, their negligence caused no actual loss to the appellants.

The appellants argued the trial judge ignored evidence that settlement funds were a loan from their mother.

The Court of Appeal found no palpable and overriding error in the trial judge's conclusion that there was no credible evidence of a loan, and that the appellants would have proceeded with the settlement regardless of the lawyers' negligence.

The appeal was dismissed.

The applicant, a child with severe autism, sought judicial review of a Special Education Tribunal decision affirming his placement in a Primary Autism Pilot Project rather than an Intensive Behavioural Intervention (IBI) program.

The applicant argued the Tribunal erred in finding the requested IBI program was medical treatment rather than education, and in failing to apply the Charter and Human Rights Code.

The Divisional Court dismissed the application, finding the Tribunal's decision was reasonable and supported by the evidence that the pilot project was appropriate for the applicant's needs.

The appellant appealed a decision refusing to intervene in his removal as a Trustee of a pension fund pending investigations of alleged misconduct.

The Court of Appeal dismissed the appeal, agreeing with the application judge that there was no evidence the remaining trustees were likely to act contrary to the best interests of the plan members or that the appellant's removal would prejudice the members.

The court confirmed that the evidence did not meet the threshold of demonstrating a likelihood of abuse of discretion.

The applicants sought costs of $120,000 on a partial indemnity basis following a successful judicial review application.

The respondents argued that $30,000 was appropriate.

Applying the overriding principle of reasonableness from Boucher, the Divisional Court considered factors including the length of the hearing, the complexity of the issues, the voluminous record, and duplication of effort by applicants' counsel.

The court fixed costs at $60,000.

The applicants, parents of children with severe disabilities, applied for additional special needs funding from the Ministry of Community, Family and Children's Services.

They submitted detailed proposals but were awarded only a fraction of their requests without any explanation, criteria, or opportunity to respond.

The applicants sought judicial review of these decisions.

The Divisional Court held that the Minister's funding decisions under the Child and Family Services Act are statutory and subject to judicial review.

The court found that the Ministry breached its duty of procedural fairness by failing to provide criteria, reasons, or an opportunity to be heard.

The decisions were quashed and referred back to the Minister for reconsideration.

The appellant, a housing co-operative resident receiving social assistance, filed a human rights complaint alleging discrimination based on a rent calculation condition in the co-op's operating agreement with the Canada Mortgage and Housing Corporation (CMHC).

The Board of Inquiry added CMHC as a respondent, but the Divisional Court quashed the order.

On appeal, the Court of Appeal held that the condition was a valid exercise of the federal spending power under s. 91(1A) of the Constitution Act, 1867.

The Court applied the doctrine of interjurisdictional immunity, concluding that the provincial Human Rights Code must be read down so as not to apply to the core of the federal spending power, thereby exempting CMHC and the impugned condition from the Code's application.

The applicants sought judicial review of the government's alleged failure to allocate adequate resources to fund treatment for autistic children, raising both administrative and constitutional arguments under ss. 7 and 15 of the Charter.

The Divisional Court declined to hear the constitutional arguments on a piecemeal basis, noting that a fuller record was being developed in related litigation (Wynberg and Deskin).

The court adjourned the constitutional issues pending the outcome of those cases and proceeded to hear only the administrative law issues.

The appellant, executor of the estate of John F. McLennan, appealed a decision ordering the discharge of a collateral mortgage and the payment of approximately $5.7 million in property sale proceeds to the estate of John K. McLennan.

The appellant argued that a 1996 assignment agreement transferred both the collateral mortgage and the deceased's personal guarantee to the father's estate.

The Court of Appeal upheld the lower courts' findings that the assignment agreement only transferred the collateral mortgage, which was worthless without the underlying debt and personal guarantee.

The appeal was dismissed.

The responding party sought leave to appeal a Divisional Court decision regarding a human rights complaint against a housing co-operative and a federal crown corporation.

In support of her leave application, she filed affidavits to demonstrate the public importance of the legal issues.

The moving party brought a motion to strike the affidavits.

The Court of Appeal held that while affidavit evidence on public importance cannot be filed as of right, the court may grant leave to file such evidence if it is factual and relevant.

The court struck out specific paragraphs containing legal opinions but allowed the remainder of the affidavits to be filed.