Mark A. Gelowitz

The representative plaintiff in two companion class actions against the Tim Hortons franchisor sought approval of a settlement agreement and class counsel fees.

The settlement included a $10 million payment toward local marketing initiatives, $2 million for legal costs, and significant non-monetary benefits valued at over $25 million, including governance changes and the revocation of restrictive clauses.

The court found the settlement to be fair, reasonable, and in the best interests of the class, noting it achieved access to justice, judicial economy, and behaviour modification.

The court also approved the fee requests for the litigation funder and class counsel, finding them to be within a zone of reasonableness.

The appellant, Canadian Home Publishers Inc., appealed a judgment that dissolved the limited partnership upon the death of its sole limited partner, David Colville-Reeves, and awarded his estate a 50 percent share in the residual assets of the partnership.

The Court of Appeal allowed the appeal, finding that the application judge erred in importing the residual distribution provision from section 44 of the Partnerships Act into the Limited Partnerships Act.

The court held that a limited partner's rights are strictly defined under the Limited Partnerships Act and do not include participation in residual assets upon dissolution.

The limited partner is entitled only to their share of profits and return of their capital contribution.

The plaintiffs, Iris Technologies Inc. and ICE Wireless Inc., commenced an action against TELUS Communications Company for breach of contract and unlawful interference with economic relations.

TELUS brought a motion to temporarily stay the action, arguing that the court lacked jurisdiction or was not the appropriate forum, as the core dispute fell within the exclusive jurisdiction of the Canadian Radio-Television and Telecommunications Commission (CRTC).

The court granted a temporary stay, finding that the factual and legal underpinnings of the civil action and the CRTC proceedings were the same, and the predicate misconduct concerned matters within the CRTC's specialized expertise.

The plaintiff, a Tim Hortons franchisee, brought motions for certification of two class actions against the franchisor, The TDL Group Corp., for the purposes of a tentative settlement.

The first action concerned the use of the Ad Fund, and the second concerned the formation of a franchisee association.

The defendant consented to certification.

The court applied the criteria under section 5 of the Class Proceedings Act, 1992, noting that the requirements need not be as rigorously applied in a settlement context.

All five certification requirements were found to be met, including disclosure of a cause of action, identifiable classes (current and former franchisees), common issues, preferability of a class proceeding, and an adequate representative plaintiff with a litigation and notice plan.

The court ordered certification of both actions as class proceedings.

The plaintiffs and a defendant by counterclaim, Mr. Sauro, brought motions to strike portions of the statement of defence and counterclaim.

The plaintiffs sought to strike paragraphs alleging ulterior motive and financial mismanagement.

The court struck the paragraphs pleading motive as frivolous and vexatious, but retained those pleading causation.

Mr. Sauro sought to strike the counterclaim against him, arguing it was improperly constituted as a counterclaim rather than a third-party claim.

The court agreed, finding Mr. Sauro was not a necessary and proper party to the counterclaim against the plaintiffs, and struck the counterclaim against him.

The defendant Dream Office Real Estate Investment Trust ("Dream REIT") moved to strike the plaintiff Europro (Kitchener) Limited Partnership's claim against it, arguing improper lumping of defendants and failure to disclose reasonable causes of action for breach of contract, negligent/intentional misrepresentation, negligence, or unjust enrichment.

Europro conceded the breach of contract claim but maintained the others.

The court dismissed the motion, finding that the claims for misrepresentation, negligence, and unjust enrichment were sufficiently pleaded, and that grouping the Dream defendants was not problematic in this context.

This costs endorsement followed two related motions where the defendants largely succeeded in striking claims under Rule 21, terminating claims against all defendants except The TDL Group.

The court awarded costs to the successful defendants, finding no reason to depart from the usual practice that the unsuccessful side pays.

Despite the plaintiffs' arguments that the hourly rates and overall costs requested were excessive, the court found them within the norm for large firm litigation given the magnitude of the claims.

The court exercised its discretion to slightly reduce the requested costs, awarding $44,000 to the defendants in the 152 Action and $40,000 to the defendants in the Walker Action, acknowledging that the defendants were not 100% successful in dismissing the actions without leave to amend.

This decision addresses a motion to strike various claims in two proposed class actions brought by Tim Hortons franchisees against the franchisor, The TDL Group Corp. (TDL), and related corporate and individual defendants.

The claims included breach of trust, fiduciary duties, oppression remedy under the Canada Business Corporations Act (CBCA) and British Columbia Business Corporations Act (BCBCA), conversion, breach of contract (including implied duty of good faith), and statutory duties under the Arthur Wishart Act (fair dealing and right of association).

The court struck out most claims against the non-TDL defendants without leave to amend, finding a lack of material facts to support them or privity of contract.

Several claims against TDL, including breach of trust, fiduciary duties, CBCA oppression, and conversion, were also struck without leave.

Claims for breach of contract (including good faith) and statutory duty of fair dealing (s. 3 Wishart Act) against TDL were struck with leave to amend for particulars.

The claim for breach of the right of association (s. 4 Wishart Act) against TDL survived.

The court deferred the issue of declaratory relief and ordered the plaintiffs to serve amended statements of claim within 30 days, failing which the pleadings would be struck in their entirety.

The applicants, minority shareholders of Deciem Beauty Group Inc., brought an urgent oppression application under the Canada Business Corporations Act seeking various interim orders against Deciem, Integridad Inc., Pasquale Cusano, and Brandon Truaxe.

The motion sought to remove Mr. Truaxe from Deciem's board, officer, and employee roles, appoint an interim CEO, define the board composition, prohibit Truaxe's interference with business operations and electronic systems, amend the unanimous shareholders agreement, and appoint PriceWaterhouseCoopers LLP to investigate allegations of criminal activity and Deciem's financial condition.

The court found a triable issue of oppression, irreparable harm to Deciem, and that the balance of convenience favored granting the injunction, given Truaxe's erratic and destructive behavior that brought the company to the brink of disaster.

The plaintiffs brought a motion for certification of a class action, approval of a $1 million settlement agreement, and approval of class counsel's fees and disbursements.

The action alleged misrepresentations in WesternOne Inc.'s public documents regarding a construction project.

The court granted the motion, certifying the action, approving the settlement as fair and reasonable given the litigation risks, and fixing class counsel's fees and disbursements.

The net settlement fund, after deductions, was directed to the Access to Justice Fund via a cy-près payment due to the impracticality and uneconomical nature of direct distribution to individual class members.

The applicant, Canadian Home Publishers Inc. (general partner), and the respondents, estate trustees of David Colville-Reeves (sole limited partner), sought conflicting determinations regarding the entitlement to profits and residual assets of Canadian Home Publishers (CHP), a limited partnership.

The court determined that CHP was dissolved upon David's death because his executors did not become substituted limited partners without consent or prior authorization.

Consequently, CHP must be wound up, and its residual assets are to be distributed equally between the general partner (Lynda Reeves, owner of CHP Inc.) and David's Estate, as per the Partnerships Act.

The court dismissed the respondents' promissory estoppel argument, finding no formal representation or detrimental reliance, and doubted its applicability against mandatory statutory provisions.

Sapient Canada Inc. appealed a trial judgment awarding damages to Atos (successor to Siemens) for wrongful termination of a subcontract involving data conversion and application management support services for an Enbridge software implementation project.

Sapient sought to reduce damages from $6,291,680 to $1,510,738.89, arguing the trial judge erred in: (1) failing to apply the minimum performance principle from Hamilton v. Open Window Bakery Ltd.; (2) misinterpreting the termination for convenience formula; and (3) misinterpreting a limitation of liability clause.

The Court of Appeal found the trial judge erred in failing to apply the minimum performance principle to data conversion services damages, reducing the award by $1,344,275 to $4,947,405.

The court upheld the trial judge's interpretation of the termination for convenience formula and the limitation of liability clause.

Costs were remitted to the trial judge for reconsideration.

The appellant appealed a motion judge's decision interpreting a shareholders' agreement regarding the purchase rights of shares held jointly by a deceased shareholder and his spouse.

The appellant argued that shares held jointly with right of survivorship should not be subject to purchase options upon the shareholder's death, and that the respondent, as a non-founder, had no right to acquire founder's shares.

The Court of Appeal upheld the motion judge's interpretation, finding that Article 2.7 of the agreement required jointly-held shares to be treated as owned by the deceased shareholder for all purposes of the agreement, including purchase options.

The court also found that when the respondent became the sole surviving shareholder, he was entitled to exercise his option to purchase all remaining shares.

Commercial List trial arising from the wrongful termination of a subcontract in a large SAP IS-U implementation project.

The court held that the prime contractor wrongfully terminated the subcontract for cause, because alleged deficiencies in data conversion, reconciliation, and AMS did not amount to material incurable breaches and, in any event, earlier breaches had been affirmed.

The court further held that delay to Go-Live was multi-causal and could not be attributed solely to the subcontractor, with project management failures by the prime contractor bearing overall responsibility.

Lost profits for the AMS portion were recoverable because the limitation clause did not exclude direct expectation damages under the subcontract.

The plaintiff recovered substantial damages, while the defendant succeeded only in part on a limited counterclaim for specific breaches, unpaid invoices, and a contractual late-delivery penalty.

The defendants brought a motion to strike the plaintiff's consolidated fresh as amended statement of claim without leave to amend.

The claim arose from the procurement process for the Pan/ParaPan American Games Athletes' Village, where the plaintiff alleged it was wrongfully excluded from participating in the winning bid's financing.

The court struck several claims, including breach of the term sheet, breach of fiduciary duty, unjust enrichment, and a novel 'public law claim', without leave to amend.

Claims for breach of an oral agreement and misfeasance in public office were struck with leave to amend.

Claims for fraudulent and negligent misrepresentation against the private defendants and the Crown agency were allowed to stand.

The defendants moved to strike the plaintiff's consolidated fresh as amended statement of claim without leave to amend.

The action arose from the procurement process for the Pan/ParaPan American Games Athletes' Village, where the plaintiff alleged it was wrongfully excluded from participating in the winning bid's financing.

The court struck several claims, including breach of the term sheet, breach of fiduciary duty, and unjust enrichment against the Crown, without leave to amend.

The claim for breach of an oral agreement was struck with leave to amend to provide better particulars.

The claims for fraudulent and negligent misrepresentation against the private defendants and Infrastructure Ontario were allowed to proceed.

The applicant alleged that the respondent insurance company discriminated against him on the basis of race when it determined he was 100% liable for an automobile accident.

The Tribunal held a summary hearing to determine if the application had a reasonable prospect of success.

The Tribunal found that the applicant provided no evidence beyond his own subjective suspicion to link the liability determination to his race.

The application was dismissed for having no reasonable prospect of success.

The applicant, a minority shareholder, sought standing to bring an application under section 127 of the Securities Act to delay a special meeting and require corrective disclosure in a management information circular regarding a related party transaction.

The respondent brought a motion to deny standing.

The Commission granted the motion and denied standing, finding that the application raised no novel issues, the alleged disclosure deficiencies had already been widely debated in the market, and intervening at a late stage would unduly interfere with the justified expectations of market participants.

The appellant appealed a motion judge's decision striking her application for declaratory relief as an abuse of process.

The appellant alleged that State Farm wrongly transmitted her confidential medical information outside Ontario without consent.

The Court of Appeal upheld the motion judge's finding that the application was duplicative of the appellant's pending action for statutory accident benefits and circumvented the comprehensive dispute resolution schemes under the Insurance Act and PIPEDA.

The appeal and a motion to adduce fresh evidence were dismissed.

The defendants in a securities class action brought a motion to transfer the proceeding from Windsor to Toronto.

The plaintiffs opposed the transfer.

The court considered the factors under Rule 13.1.02 of the Rules of Civil Procedure.

While the plaintiffs' choice of venue was found to be reasonable, the court concluded that the defendants established that Toronto was a significantly better venue, given that a substantial part of the damages were sustained there, the subject matter was located there, and it was more convenient for the parties, witnesses, and counsel.

The motion for a change of venue was granted.