Michael James Statham

Following the dismissal of two Rule 30 motions brought by the defendants seeking production of allegedly privileged documents in a certified class proceeding, the court determined the appropriate costs award.

Although the court agreed that solicitor-client privilege had been expressly waived during cross-examinations, the motions were dismissed because the legal advice received by an individual class member was irrelevant to the certified common issues.

On the costs issue, the court rejected the defendants’ submission that success was divided and held that the responding party was substantially successful.

Applying the factors in Rule 57.01(1) and the guidance from the Court of Appeal in Boucher, the court fixed a fair and reasonable costs award below the amount claimed.

Costs of $20,000 all-inclusive were awarded to the responding party, divided equally between the two defendants.

In a certified class action involving former automobile dealers whose franchises were terminated during the 2009 automotive industry restructuring, the defendants sought production of documents relating to legal advice the representative plaintiff received from its own lawyer when signing wind‑down agreements.

The moving parties argued that solicitor‑client privilege had been waived and that the advice was relevant to issues such as causation and damages.

The court held that although privilege regarding advice about the wind‑down agreement had been expressly waived during earlier cross‑examination, relevance for discovery in a class proceeding prior to the common issues trial is confined to the certified common issues.

Because the certified issues focused on the defendants’ conduct under provincial franchise legislation and alleged professional duties, and did not require examination of the individual legal advice received by class members, the requested documents were not relevant at this stage.

The motions to compel production were therefore dismissed.

The proposed representative plaintiff in a class proceeding alleged misrepresentations by the defendant, Canadian Solar Inc., in its secondary market disclosure.

The defendant's shares traded only on the NASDAQ exchange, not in Canada.

The defendant appealed a motion judge's finding that it was a 'responsible issuer' under s. 138.1 of the Securities Act.

The Court of Appeal dismissed the appeal, holding that the definition of 'responsible issuer' does not require the issuer's securities to be publicly traded in Canada, provided the issuer has a real and substantial connection to Ontario.

The appellants appealed a trial judgment declaring that a lease agreement for a municipal solid waste demonstration plant expired on January 28, 2003, and ordering the third party to indemnify the respondent municipality.

The Court of Appeal upheld the trial judge's interpretation that the automatic three-year extension was triggered when the facility first accepted waste, not when it was fully completed.

The Court also upheld the finding that the third party was bound by an indemnity undertaking contained in its proposal, which was incorporated into the agreement between its wholly-owned subsidiary and the municipality.

The Toronto Transit Commission (TTC) brought an urgent application to the Ontario Labour Relations Board for a cease and desist order regarding an unlawful strike by the Amalgamated Transit Union that shut down public transit.

The Board Chair held a teleconference hearing at 5:30 a.m. without the Union's participation, granting the order.

Later that day, a Vice-Chair reconsidered the decision, limiting each side's presentation time, and upheld the order.

The Union applied for judicial review, arguing a denial of procedural fairness and natural justice.

The Divisional Court dismissed the application, finding that the Board had broad discretion to abridge its procedures and that the urgent circumstances justified the expedited process and limited presentation time.

The appellant bank appealed a decision dismissing its motion to reappoint a trustee in bankruptcy and annulling a bankruptcy order, as well as the substantial indemnity costs awarded against it.

The Court of Appeal found no error in the trial judge's conclusion that there were no unrealized or undistributed assets under s. 41(11) of the Bankruptcy and Insolvency Act, noting the bank failed to adduce evidence that certain appraisals would have altered property valuations.

The Court also upheld the substantial indemnity costs orders, finding the trial judge acted within his discretion.

The appeal was dismissed with costs fixed at $15,000.

The Minister of Revenue appealed a trial decision that allowed an automobile dealership to exclude its wholesale financial liabilities for new vehicles from its paid-up capital as 'current accounts payable' under the Corporations Tax Act.

The Minister also appealed the trial judge's award of solicitor and client costs to the dealership.

The Divisional Court dismissed the tax appeal, finding no error in the trial judge's interpretation of the legislation or assessment of expert accounting evidence.

However, the Court allowed the costs appeal, reducing the award to a party and party scale because there was no finding of reprehensible conduct by the Minister to justify solicitor and client costs.

The defendants in a libel action appealed a Master's decision dismissing their motion to compel production of documents and examination for discovery of a non-party investigator.

The investigator had been hired by the plaintiff employer to interview employees regarding the same allegations that formed the basis of the libel action.

The Divisional Court allowed the appeal, finding that the interview notes were relevant to the defendants' plea of justification and were not protected by privilege under the Wigmore criteria.

The court concluded it would be unfair to require the defendants to proceed to trial without discovery of the non-party.