Michael David Schafler

Enbridge Gas Distribution Inc. appealed a decision of the Ontario Energy Board that disallowed the recovery of $11 million in costs related to new pipeline routes.

The Board had found that Enbridge did not act prudently in incurring the costs, but Enbridge argued the Board erred by using hindsight in its prudence analysis.

The Divisional Court allowed the appeal, finding that while hindsight can be used to rebut the presumption of prudence, the Board committed an error of law by considering hindsight factors in the actual prudence analysis.

The decision was quashed and remitted to a differently constituted tribunal.

The Special Committee of Financial Models Company Inc. applied for orders under sections 104(1) and 127(1) of the Securities Act to cease-trade a take-over bid by a significant shareholder, Katotakis.

The Special Committee alleged the bid did not comply with Part XX of the Act and was contrary to the public interest because it relied on locked-up shares to meet minority approval thresholds for a follow-on transaction and improperly relied on a valuation exemption.

The Ontario Securities Commission dismissed the application, finding no technical breach of Rule 61-501 and no abuse of the capital markets, as the transaction was not artificial and did not defeat the reasonable expectations of shareholders given the prior disclosure of the shareholder agreement.

The appellant, a major shareholder of Financial Models Company, moved for a stay of a Commercial List decision and an injunction preventing other shareholders from tendering their shares to a competing take-over bid by Linedata Services S.A., pending an expedited appeal.

The motion judge had ruled that the appellant's acceptance of a sell offer was invalid under the Securities Act and that the other shareholders could include a 'superior proposal' condition.

The Court of Appeal granted the stay and injunction, finding that the balance of convenience favoured the appellant, who provided an undertaking as to damages, and ordered an expedited appeal.

The appellants, two major gas distributors in Ontario, appealed a decision of the Divisional Court upholding the Gas Distribution Access Rule (GDAR) issued by the Ontario Energy Board.

The GDAR permitted gas vendors to determine how customers are billed for gas commodity sales and distribution services.

The appellants argued the Board lacked jurisdiction under the Ontario Energy Board Act to make such billing rules and failed to follow the required rule-making process.

The Court of Appeal held that the standard of review for subordinate legislation is correctness.

Applying this standard, the Court found that the Board had ample jurisdiction to make the billing provisions, as they regulated an important part of the gas distribution business.

The Court also found the Board complied with the statutory notice and comment process.

The appeal was dismissed.

The appellants appealed an order dismissing their motion for certification of a class proceeding and striking certain paragraphs of their statement of claim.

The proposed class action alleged negligence and negligent/reckless misrepresentation by the respondent auditors in connection with financial statements relied upon by lenders who advanced over US$1 billion.

The Divisional Court allowed the appeal in part, finding that the motions judge erred in striking the claim for reckless misrepresentation and in concluding that a class proceeding was not the preferable procedure.

The court upheld the striking of claims by assignor lenders and claims against individual partners and employees.

The matter was referred back to a class proceedings judge.

Following an appeal, the court received written submissions regarding the quantum of costs.

The court rejected the appellant's argument that the appeal involved a novel issue of law or public interest, but agreed that the respondents' claimed costs were excessive.

Costs were fixed on a partial-indemnity basis at $15,000 payable to each of the two respondent groups.

The appellant, an investor who purchased shares in the secondary market, sought to certify a class proceeding against the issuer, underwriters, and auditors for negligent misrepresentation in a prospectus.

The motions judge dismissed the action, finding the pleadings failed to disclose a reasonable cause of action as they did not establish a special relationship giving rise to a duty of care.

The Court of Appeal upheld the dismissal, agreeing that the pleadings lacked material facts to support a duty of care owed to secondary market purchasers by the auditors or underwriters.

The defendants appealed an order directing that a certification motion in a class proceeding be heard in Hamilton based on the balance of convenience.

The Divisional Court allowed the appeal, holding that rule 37.03 of the Rules of Civil Procedure applies to determine the venue of a certification motion and that section 12 of the Class Proceedings Act, 1992 does not oust that rule.

The court further held that the balance of convenience is not the proper test for granting leave under rule 37.03(4) to hear a motion elsewhere.