Markus F. Kremer

This decision concerns a motion for pre-approval of a settlement in a national class action alleging price fixing in the packaged bread market in Canada.

The Ontario plaintiffs reached a $500 million settlement in principle with several defendants, including Loblaw Companies Limited and George Weston Limited, subject to court approval in both Ontario and Quebec.

The court approved the notice plan, opt-out and objection procedures, and the appointment of a settlement administrator, and set a hearing date for final approval.

The order amends the class definition and certification for settlement purposes only, and provides for the administration and notice of the settlement to class members.

In Companies’ Creditors Arrangement Act (CCAA) proceedings, LoyaltyOne, Co. and its Monitor sought a declaration that a Tax Matters Agreement (TMA) was not binding or was void as a transfer at undervalue (TUV), and sought to disclaim the TMA to secure a $96 million tax refund.

Bread Financial Holdings, Inc. (formerly ADS) cross-moved to set aside the disclaimer, asserting its entitlement to the refund under the TMA.

The court ruled that LoyaltyOne was bound by the TMA, the TMA was not void as a TUV, and the disclaimer was not approved.

The court found it premature to determine the specific nature of Bread's rights to the refund.

The Court of Appeal for Ontario heard motions to quash an appeal of a class certification order in a price-fixing conspiracy case involving packaged bread.

The plaintiffs (appellants) argued the certification order, which defined the class, effectively dismissed claims of excluded persons and was thus a final order appealable under the Courts of Justice Act.

The defendants (moving parties) contended it was a certification order governed by the Class Proceedings Act (CPA) and that, under the CPA's transitional provisions, the appeal should lie to the Divisional Court with leave.

The court found the certification order was a procedural order, not a final one, as it did not decide the ultimate merits of any claim.

Consequently, the appeal provisions of the CPA applied.

Furthermore, the court determined that the pre-2020 amendments to the CPA governed the appeal because the original proceeding was commenced before the amendments came into force.

The appeal to the Court of Appeal was therefore quashed.

The appellant, Marvin Rubner, appealed a lower court decision that found no binding settlement agreement had been reached between him and his brother, Joseph Rubner, regarding their real estate business interests.

The application judge had concluded that Joseph's counsel had limited authority to negotiate only the minutes of settlement, not the "Deal Points," and that Marvin's counsel was aware of this limitation.

The Court of Appeal dismissed the appeal, affirming that the application judge's interpretation of the agreement and application of the test for ostensible authority were questions of mixed fact and law, reviewable only for palpable and overriding error, which was not demonstrated.

This is a costs endorsement following an appeal from orders of the Superior Court of Justice.

The appeal involved four consolidated actions concerning personal liability of corporate directors and officers in the context of real estate development and mortgage transactions.

The Court of Appeal upheld the motion judge's conclusions on the legal issue of personal liability based on pleaded allegations and legal principles.

The costs decision addresses the appropriate costs awards for the successful and unsuccessful parties across the multiple appeals.

Four consolidated class actions brought by small investors who invested in syndicated mortgages promoted by Fortress Real Capital Inc. and Fortress Real Developments Inc. The investors alleged misrepresentation, breach of fiduciary duty, breach of contract, and negligence.

The motion judge struck claims against individual respondents Jawad Rathore and Vincenzo Petrozza, and dismissed claims to enforce syndicated mortgages against Empire Pace (1088 Progress) Ltd. and ADI Developments entities.

The appellants appealed.

The Court of Appeal upheld the dismissal of personal claims against Rathore and Petrozza but reversed the dismissal of mortgage enforcement claims against Empire Pace and ADI, finding that the motion judge erred in applying Rule 21 to matters requiring evidentiary findings regarding contract interpretation and disclosure.

The appellants, survivors and family members of victims of the Rana Plaza building collapse in Bangladesh in 2013, brought a class action against Loblaws and Bureau Veritas seeking damages for negligence, vicarious liability, and breach of fiduciary duty.

The motion judge dismissed the action on the basis that Bangladeshi law applied (not Ontario law), the claims were statute-barred under Bangladesh's one-year limitation period, and the claims disclosed no reasonable cause of action.

The Court of Appeal upheld the dismissal on all grounds.

The court also addressed a costs appeal, reducing the costs award by 30% to reflect the public interest component of the claims.

The plaintiffs brought a Rule 21 motion seeking a declaration that Rouge Valley Health System was estopped from denying liability for various statutory and common law causes of action, based on an Order from the Information and Privacy Commissioner (PHIPA Order HO-013).

The court dismissed the motion, exercising its discretion under the doctrines of issue estoppel and abuse of process.

It found that applying issue estoppel would be procedurally and substantively unfair given the magnitude of the class action ($400 million) against a public institution, and the informal, discretionary nature of the administrative tribunal's proceedings, which focused on its privacy law mandate rather than complex civil law.

The court also noted that such an application would be inimical to the due administration of justice by discouraging settlements with the Commissioner.

The Court of Appeal for Ontario considered whether a 1985 indemnity provided by the Province of Ontario to Great Lakes and Reed covered the costs of complying with a 2011 Director's Order requiring remedial work at an abandoned mercury waste disposal site near Dryden, Ontario.

The motion judge had granted summary judgment in favour of Weyerhaeuser and Resolute, finding both were entitled to indemnification.

The appellate court was divided.

The majority (Brown and Lauwers JJ.A.) held that the 1985 indemnity did cover the costs of complying with the Director's Order, but found that Resolute had no legal interest in the indemnity because Bowater had assigned the full benefit to Weyerhaeuser in 1998.

The majority remitted the issue of Weyerhaeuser's rights as assignee to the trial court.

Justice Laskin dissented, arguing the 1985 indemnity covered only third-party pollution claims, not first-party regulatory compliance costs.

This case concerns the interpretation of a 1985 indemnity agreement granted by the Province of Ontario to Great Lakes Forest Products Limited (now Resolute FP Canada Inc.) and its successors and assigns, regarding mercury contamination.

Weyerhaeuser Company Limited, a subsequent owner of the property, and Resolute sought indemnity from the Province for costs incurred complying with a 2011 environmental remediation order issued by the Ministry of the Environment.

The court granted summary judgment, finding that the indemnity's broad language covered statutory claims by provincial agencies and that the fettering doctrine did not apply to this business agreement.

Weyerhaeuser was also found to be able to rely on the indemnity as a successor or assignee.

The defendant bank sought leave to appeal to the Divisional Court from an order certifying a class proceeding arising from unauthorized access to customer information by a bank employee.

The proposed appeal challenged the class definition, the certification of a waiver of tort claim, and the certification of claims for non‑pecuniary damages in negligence and contract without proof of psychiatric injury.

The court held that the certification judge had applied the correct low threshold applicable at the pleadings and certification stage and that the bank had not shown conflicting authority or good reason to doubt the correctness of the order under Rule 62.02(4) of the Rules of Civil Procedure.

The court further held that the class definition was not impermissibly over‑inclusive and that the waiver of tort issue met the “some basis in fact” standard for certification.

Leave to appeal was therefore refused.

A school board sought court approval of a proposed methodology to distribute approximately $1.7 million received following the windup of a group insurance trust.

The plan allocated a portion to future benefit premium reserves and distributed the remainder to non‑union employees enrolled in the insurance policies as of June 30, 2006, using a banding system based on years of participation.

An objector representing former employees argued that excluding individuals who ceased enrollment before that date was unreasonable because they had contributed premiums to the trust.

The court held that the board had broad discretion under the court‑approved trust windup terms and that basing distribution on enrollment as of June 30, 2006 was rational because that same metric determined the board’s share of the surplus.

The court also found it reasonable to consider administrative costs and data limitations in designing the methodology.

The proposed distribution methodology was approved.