Megan Keenberg

The Cash Store Financial Services Inc. operated a payday loan business from 2002 until it sought CCAA protection in April 2014.

The company's estate sued its auditor KPMG LLP and counsel Cassels Brock & Blackwell LLP, alleging negligence and breach of fiduciary duty.

The plaintiff claimed that the defendants knew or ought to have known that Cash Store was misrepresenting its business as a broker when it was actually a direct lender bearing credit risk, and that this misrepresentation caused a deepening of insolvency from late 2011 until the CCAA filing in 2014.

The plaintiff sought damages ranging from $119 million to $177 million, plus disgorgement of legal fees.

The court dismissed all claims against both defendants, finding that Cash Store was properly characterized as a broker during the relevant period, that the defendants met applicable professional standards, and that the plaintiff failed to prove causation and damages.

The court also found the claims were statute-barred.

The applicants sought to compel Voreon Inc. to comply with a 2016 Settlement Agreement requiring the transfer of shares in Eminence Living Inc. and Higher Living Development Inc. The court reviewed the complex business history, the terms of the Settlement Agreement, and the impact of ongoing related proceedings, including the PSA Action and the Kayzan Distribution Application.

The court determined that the relief sought could not be granted at this time due to the unresolved status of these related proceedings and ordered that the application be heard contemporaneously with or immediately following the PSA Action.

Costs were awarded to Voreon.

The appellant brought a simplified procedure action against Kia Canada Inc. related to his purchase of a Kia Sorento in 2016.

The action was dismissed at trial, with the trial judge finding no breach of contract or the Sale of Goods Act, and that the appellant failed to prove compensable damages.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error in the trial judge's factual findings or credibility assessments.

The court agreed that the appellant failed to prove compensable damages, noting his lost wages claim contradicted his declared income and he failed to lead evidence regarding any loss on the sale of the vehicle.

The defendants brought a motion for leave to appeal the order of Mirza J. dated June 6, 2023.

The Divisional Court allowed the motion for leave to appeal.

Costs were fixed at $5,000, with the ultimate determination of costs left to the panel hearing the appeal.

The applicants brought a motion for leave to appeal an order of the lower court.

The Divisional Court dismissed the motion for leave to appeal and awarded costs to the respondent in the amount of $5,000.

The plaintiff purchased a new Kia Sorento and subsequently claimed it had several defects, including a malfunctioning passenger seat warmer and adaptive cruise control.

He brought an action against the manufacturer and dealership for breach of contract and breach of the Sale of Goods Act, seeking rescission and damages.

The court dismissed the action, finding no breach of contract as the warranty covered the defects and the manufacturer eventually repaired them.

The court also found no breach of the Sale of Goods Act, as the vehicle was of merchantable quality and reasonably fit for its purpose, evidenced by the plaintiff driving it for over 170,000 kilometres.

The moving party, a director and disputed shareholder of the defendant corporation, sought leave under s. 246 of the Business Corporations Act to defend an action brought by the plaintiff for unpaid project management fees.

The motion was opposed by the plaintiff and other shareholders of the defendant corporation.

The court dismissed the motion, finding that the moving party failed to establish that he was acting in good faith or that defending the action was in the best interests of the corporation, given the disproportionate costs of litigation, the risks of an increased claim, and the opposition from other stakeholders.

This costs endorsement followed a successful motion by the defendants to transfer an action from Perth to Oshawa.

The court found the defendants' requested costs of over $12,000 to be excessive for a straightforward, in-writing motion within a Simplified Procedure action.

The court awarded all-inclusive costs of $2,500, payable by the plaintiff to the defendants.

The defendants moved for an order transferring this action from Perth to Oshawa, arguing Oshawa was a significantly better venue due to the contract being entered there, vehicle servicing in Durham Region, and witness locations.

The plaintiff opposed, citing inconvenience for his family witnesses in the East Region.

The court applied Rule 13.1.02(2)(b) of the Rules of Civil Procedure holistically, finding Oshawa significantly better given the transaction's nexus, service locations, and defendant witness locations, despite the plaintiff's current residence.

The motion was granted, transferring the action to Oshawa.

The defendants, KPMG, Canaccord Genuity Corp., and Cassels Brock & Blackwell LLP, brought motions for summary judgment to dismiss actions initiated by 1511419 Ontario Inc. (formerly The Cash Store Financial Services Inc.) on the grounds that the claims were statute-barred by the two-year limitation period.

The actions related to professional services provided concerning a January 2012 loan purchase and note offering.

The court dismissed the motions, finding that there were genuine issues requiring a trial regarding the discoverability of the claims, given the complex factual pattern, allegations of professional negligence, and the limited evidentiary record presented.

The plaintiffs brought a motion to certify a proposed shareholder class action arising from the successful joint take-over bid for Baffinland Iron Mines Corporation.

The plaintiffs asserted claims for circular misrepresentation, insider trading, oppression, and unjust enrichment.

The court found that the plaintiffs met the requirements for certification under s. 5 of the Class Proceedings Act.

The court excluded compulsory acquisition security holders from the class definition but included secondary market sellers.

The court also held that the oppression claims raised common issues and that a class action was the preferable procedure.

The plaintiff, a shell company representing substantial commercial creditors, conceded it lacked sufficient assets to cover the defendants' costs if unsuccessful in three complex commercial actions seeking over $150 million in damages.

The plaintiff also failed to demonstrate impecuniosity.

The defendants sought over $10 million in security for costs.

The court, finding the merits of the underlying claims neutral for the purpose of the motion, determined it was fair and just for the plaintiff to post security.

An initial aggregate sum of $1.6 million was ordered to be paid into court, staged across the three actions, with further amounts to be determined later.

The defendant, KPMG LLP, moved for an order relieving former directors of the plaintiff, Cash Store, from a contractual obligation not to cooperate with KPMG in the ongoing litigation.

This obligation was contained in an undisclosed side letter agreement that formed part of a global settlement under the CCAA.

The court found that because the side letter was not disclosed to creditors, KPMG, or the court during the CCAA plan approval process, Cash Store lacked the authority to enter into the impugned term.

Consequently, the court held that the prohibition against communicating with KPMG was not binding on the former directors, and the motion was granted.

The applicant general partner sought a declaration that a third‑party offer to purchase limited partnership units was not bona fide and was a sham designed to trigger right‑of‑first‑refusal provisions in a partnership agreement.

The applicant argued the offer was structured to allow a particular limited partner to obtain sufficient units to gain a veto over extraordinary resolutions requiring 75% approval.

The court considered the legal test for bona fide offers in the context of rights of first refusal, including whether the offer was made in good faith, genuine, and not a sham.

The court held that the offer was a legitimate third‑party offer at a reasonable price and that the evidence did not establish an absence of bona fides.

The application for a declaration was dismissed.

In a CCAA proceeding, the Applicants (Hollinger Inc. et al.) sought approval of settlement agreements with their former auditors (KPMG) and lawyers (Torys).

The Non-Settling Defendants, including Conrad Black and David Radler, opposed the settlements, arguing the court lacked jurisdiction and that the included third-party releases and bar orders would deprive them of procedural rights to discovery.

The court held it had jurisdiction under the CCAA to manage litigation as a corporate asset.

The court approved the Pierringer-style settlements, finding that the procedural rights of the Non-Settling Defendants could be adequately protected through active case management and the application of the principle of proportionality in discovery.

The moving parties sought a stay of proceedings relating to a sealing order in a CCAA proceeding pending the determination of their application for leave to appeal to the Supreme Court of Canada.

The motion judge dismissed the request, finding that the CCAA judge was better placed to assess the stay, and that the moving parties failed to demonstrate irreparable harm or that the balance of convenience favoured a stay.

The motion was dismissed with costs awarded to the responding party.

The appellants appealed a sealing order that redacted the amounts to be paid under two proposed settlement agreements in a CCAA proceeding.

The appellants argued the sealing order unjustifiably infringed the open court principle.

The Court of Appeal dismissed the appeal, finding that litigation settlement privilege applied to the settlement agreements until approved by the court.

The court held that the sealing order was a minimal intrusion on the open court principle, the requirement to sign a confidentiality agreement did not impose an undue burden, and the respondents did not waive privilege by complying with the court order.