Mark A. Gelowitz

The defendants brought a motion to transfer a securities class action from Windsor to Toronto under Rule 13.1.02 of the Rules of Civil Procedure.

The plaintiffs alleged misrepresentations in a prospectus related to the financing of a workforce accommodation complex.

The court conducted a holistic balancing of the factors under Rule 13.1.02(2).

Although the plaintiffs' choice of venue was deemed reasonable, the court found that Toronto was a significantly better venue because a substantial part of the damages were sustained there, the subject matter was more closely connected to Toronto, and it was more convenient for the parties, counsel, and witnesses.

The motion for a change of venue was granted.

Following dismissal of an application alleging privacy breaches and misrepresentations relating to the transfer of insurance assets and insured persons’ information, the court determined the appropriate costs award.

The unsuccessful applicant argued that no costs should be awarded because the matter raised issues of public interest and the law regarding enforcement of privacy rights was uncertain.

The court rejected those submissions, noting the seriousness of the allegations and the prior finding that the proceeding constituted an abuse of process.

Considering the factors under Rule 57.01 of the Rules of Civil Procedure and the respondents’ reduced claim for costs, the court exercised its discretion to award a fixed amount.

Costs were ordered payable to the respondents.

The appellant appealed a decision implying a contractual obligation to disclose financial information to the respondent, enabling the respondent to determine whether to exercise an option to acquire up to a 20% interest in a limited partnership.

The Court of Appeal dismissed the appeal, finding that the application judge correctly applied the business efficacy test.

The Court held that the option right would be illusory without the implied right to disclosure, and that implying such a term was necessary to give business efficacy to the parties' agreement.

The plaintiffs brought a consent motion to certify a securities class action for settlement purposes, approve a $12.5 million settlement, and approve class counsel fees of $3,437,500.

The action involved allegations of misrepresentation and failure to make timely disclosure regarding mining operations.

Despite earlier dismissals of certification and leave motions, the parties reached a settlement while a leave application to the Supreme Court of Canada was pending.

The court found the settlement fair and reasonable given the litigation risks, certified the action for settlement purposes, and approved the requested counsel fees.

The moving parties (insurers) brought a motion to strike out an application seeking declaratory relief regarding alleged breaches of privacy and insurance legislation.

The responding party had commenced multiple other proceedings, including a tort claim, an accident benefits claim, and complaints to regulatory bodies.

The court granted the motion to strike, finding that the application was an abuse of process because declaratory relief would serve no practical purpose and the governing statutes provided their own mandatory procedures for resolving the disputes.

The appellants, trustees of a pension fund, sought leave under the Securities Act and certification under the Class Proceedings Act for a $4 billion class action against Kinross Gold Corporation for alleged misrepresentations regarding two gold mines.

The motion judge dismissed the motion, finding no reasonable possibility of success for the statutory claims due to flawed expert evidence, and consequently denied certification for the common law claims.

The Court of Appeal upheld the decision, confirming the motion judge's assessment of the leave test and concluding that a class action was not the preferable procedure for the remaining common law negligent misrepresentation claims due to the need for individualized inquiries into reliance.

Trustees of a pension fund sought certification of a securities class action and leave to proceed with statutory secondary‑market misrepresentation claims under Part XXIII.1 of the Ontario Securities Act.

The proposed class alleged that a mining company and its officers misrepresented the value and prospects of two West African mines and failed to timely record a goodwill impairment.

The court analyzed the leave test requiring a “reasonable possibility of success at trial” and concluded that the plaintiffs’ theory relied on flawed expert analysis and speculative assumptions regarding drilling results and impairment triggers.

The alleged low‑grade ore misrepresentation was found to be semantically inaccurate, and an alleged schedule misrepresentation had not been pleaded.

Leave to proceed under the Securities Act was therefore refused, and certification was denied, though the individual common law negligence claim could continue.

The representative plaintiffs in a proposed securities class action sought court approval of a third party litigation funding agreement after the Ontario Class Proceedings Fund declined funding and class counsel declined to indemnify against adverse costs.

The funder agreed to indemnify the plaintiffs for adverse costs in exchange for a fixed percentage of any net recovery.

The court reviewed the developing jurisprudence on litigation funding in class proceedings and articulated guiding principles for approval, including requirements that the agreement not impair the solicitor‑client relationship, not undermine the representative plaintiff’s control of the litigation, and be fair and reasonable to the class.

The court also held that such agreements must be disclosed and approved by the court and may require security for costs.

Finding the agreement necessary to facilitate access to justice and fair to the class, the court approved the funding arrangement.

The plaintiffs sought an interlocutory injunction requiring the franchisor to reinstate them in control of a pharmacy during a contractual management period following notice that the franchise relationship would not be renewed.

The dispute arose under an associate agreement governed by the Arthur Wishart Act and included interpretation of provisions allowing the franchisor to assume management control during the final 60 days before expiry.

The court held the requested relief was a mandatory injunction requiring the plaintiffs to demonstrate a strong prima facie case.

The plaintiffs failed to establish even a serious issue to be tried, as the agreement clearly permitted the franchisor to assume management upon expiry by effluxion of time.

Claims of irreparable harm were speculative and the balance of convenience favoured the franchisor.

The plaintiffs, franchisees of Shoppers Drug Mart, brought a proposed class action alleging breach of contract, breach of the duty of good faith, unjust enrichment, and breach of fiduciary duty regarding the franchisor's retention of rebates and professional allowances, and its practices regarding cost recovery fees, budgeting, and inventory.

The defendants brought a Rule 21 motion to strike the claims for disclosing no reasonable cause of action.

The court struck the claims for rebates, breach of fiduciary duty, interference with association, and duty of disclosure, finding them untenable based on the clear language of the franchise agreements.

However, the court allowed the claims regarding professional allowances, cost recovery fees, budgeting practices, and inventory practices to proceed, finding it was not plain and obvious they would fail.

The appellants, including the Minister of Agriculture of Guyana and a state-owned company, appealed the dismissal of their motion to dismiss a defamation claim on the grounds of state immunity.

The motion judge found that the Minister's statements, made in the context of an ongoing trademark dispute, fell within the commercial activity exception under s. 5 of the State Immunity Act.

The Court of Appeal upheld the decision, applying the contextual approach from Kuwait Airways Corp. v. Iraq, and concluded that the statements promoted Guyana's brand and disparaged a competitor, thus constituting commercial activity.

The corporation sought an order approving a proposed arrangement to collapse its dual-class share structure by purchasing for cancellation all outstanding Class B shares for consideration comprising 9 million newly issued Class A shares and US$300 million in cash.

The application judge approved the arrangement.

The opposing shareholders appealed, arguing the application judge erred in finding the arrangement fair and reasonable.

The Divisional Court dismissed the appeal, holding that the application judge correctly applied the BCE test.

The corporation was not required to demonstrate with certainty that the benefits of the arrangement would offset the costs, but only a reasonable prospect of clearly identified benefits.

The affirmative vote of the Class A shareholders was important evidence supporting the fairness of the arrangement.

The applicant insurer sought leave to appeal an order that reopened a dismissed class action certification motion to allow the plaintiffs to file fresh expert evidence.

The motion judge had previously dismissed the certification motion because the plaintiffs' expert evidence was inadmissible.

The motion judge then allowed the motion to be reopened, finding that the strict test for fresh evidence from Sagaz did not apply to procedural motions under the Class Proceedings Act.

The Divisional Court granted leave to appeal, finding good reason to doubt the correctness of the motion judge's decision and conflicting decisions regarding the application of the principle of finality to procedural orders.

Sunrise REIT initiated an auction process to sell its assets, requiring interested parties, including Ventas and HCPI, to sign confidentiality and standstill agreements.

Ventas submitted the winning bid, and Sunrise signed a purchase agreement containing a 'fiduciary out' clause allowing it to consider superior unsolicited proposals, but also requiring it to enforce existing standstill agreements.

HCPI subsequently submitted a higher bid.

The Court of Appeal upheld the application judge's ruling that the purchase agreement obliged Sunrise to enforce HCPI's standstill agreement, thereby precluding Sunrise from considering HCPI's bid, as it was not a 'bona fide' proposal due to the breach of the standstill agreement.

The appellant appealed a decision dismissing his application to require Goldcorp Inc. to obtain shareholder approval for a transaction with Glamis Gold Ltd. The appellant argued the transaction was an 'arrangement' under s. 182 of the Business Corporations Act.

The Divisional Court dismissed the appeal, upholding the application judge's finding that s. 182 is facilitative, not mandatory, and that Goldcorp did not 'propose' an arrangement.

The court found the transaction was an issuance of shares and a vertical short-form amalgamation exempt from shareholder approval.

Sears Holdings Corporation appealed a decision of the Ontario Securities Commission regarding its insider bid for Sears Canada Inc. The OSC had found that Holdings failed to comply with disclosure obligations, entered into agreements that contravened the Securities Act, and engaged in abusive and coercive conduct.

The Divisional Court dismissed the appeal, holding that the standard of review for OSC decisions interpreting its constituting statute is reasonableness simpliciter, and that the OSC's findings and remedies were reasonable.

The appellant brought a motion for summary judgment to enforce its security in convertible subordinated debentures against the respondent Brookfield, a wholly owned subsidiary of the issuer BCED.

The motion was dismissed, and the appellant appealed.

The Court of Appeal upheld the motion judge's interpretation of the trust indenture, finding that the term 'Company' in Article VII, section 7.01 referred only to BCED and its successors, not its wholly owned subsidiaries.

The appeal was dismissed.

In the context of Air Canada's CCAA restructuring, the appellant sought leave to appeal an order approving an equity investment agreement with Trinity Time Investments Limited and denying an adjournment to consider a competing proposal.

The Court of Appeal dismissed the motion for leave, finding no error in the supervising judge's decision to approve the agreement, which contained a 'fiduciary out' clause allowing the board to consider superior proposals.

The court held that the test for leave to appeal in CCAA proceedings—requiring serious and arguable grounds of real and significant interest—was not met.

Following an appeal where success was divided, the court issued an endorsement on costs.

The court ordered that no costs of the appeal be awarded to either party.

Furthermore, the court declined to clarify its reasons, directing the parties to settle the order in accordance with Rule 59.04 of the Rules of Civil Procedure.

In an addendum to judgment regarding costs of an appeal, the respondents sought costs totaling $132,145.72.

The appellants opposed, seeking a stay of costs for one insolvent respondent, arguing for the application of the pre-2002 party and party costs regime, and challenging the hourly rates of junior counsel.

The Court of Appeal dismissed the stay request, held that the new costs grid under O. Reg. 284/01 applies retrospectively to services rendered before January 1, 2002, and reduced the hourly rates for certain junior counsel.

Total costs of $122,998.02 were awarded to the respondents on a partial indemnity basis.