Michael Schafler

The defendants, NSR Toronto and Dapeng Wang, brought a motion to strike the plaintiffs' claims against them for breach of contract, unjust enrichment, oppression, and conspiracy.

The court found that neither moving defendant was a party to the underlying contract, precluding the breach of contract and derivative claims.

The court also held that the oppression remedy under the OBCA did not apply to a BC corporation, and the conspiracy claims lacked the requisite clarity and precision.

The motion was granted, and the claims against the moving defendants were struck without leave to amend.

Following a successful motion by the defendants to stay the plaintiffs' action on the basis of jurisdiction simpliciter and forum non conveniens, the court determined the quantum of costs.

The defendants sought partial indemnity costs totaling over $260,000.

The court found the requested amounts excessive given the length and complexity of the hearing, and ordered the plaintiffs to pay $50,000 to Israel and $36,000 to CTCC, inclusive of disbursements and HST.

The plaintiffs, Argentine citizens, brought an action in Ontario against the State of Israel and its Canadian fiscal agent, seeking to recover proceeds from two bonds issued by Israel in the name of their great-uncle's estate.

The defendants brought a motion to stay the proceeding, arguing that Ontario lacked jurisdiction simpliciter or, alternatively, that Israel was the more appropriate forum.

The court granted the motion, finding that the presumptive connecting factors to Ontario were weak and rebutted, as the core of the dispute involved contracts formed and torts allegedly committed outside of Ontario.

Furthermore, the court held that even if it had jurisdiction, it would decline to exercise it because Israel was clearly the more appropriate forum based on the location of witnesses, applicable law, and enforcement considerations.

Following a partially successful certification motion in a privacy breach class action, the plaintiffs sought costs of $532,162.17.

The court found the requested amount excessive and unreasonable due to over-litigating, over-staffing, and over-docketing.

Noting the plaintiffs' mixed success and last-minute changes to their case that prejudiced the defendants, the court reduced a reasonable starting point of $160,000 by half, awarding the plaintiffs $80,000 all-inclusive.

The moving parties sought an urgent interlocutory injunction to prevent the respondent from selling securities in a real estate development project pursuant to a put option agreement, or alternatively, an order freezing the sale proceeds under Rule 45.02.

The court found that while the moving parties might suffer irreparable harm if the proceeds were repatriated out of Canada, the balance of convenience favoured the respondent, who had a valid third-party offer and faced an impending mortgage expiry.

The court also held that the sale proceeds did not constitute a specific fund under Rule 45.02 as the moving parties' claim was essentially for damages.

The motion was dismissed, with leave to renew if the current sale transaction failed to close.

The plaintiffs brought a motion to certify a class action against Nissan following a data breach where an unknown employee accessed and stole the personal information of thousands of customers, demanding a ransom.

The court found that the plaintiffs satisfied the certification requirements under s. 5(1) of the Class Proceedings Act.

The court certified common issues relating to vicarious liability for the tort of intrusion upon seclusion, negligence, aggregate damages, and punitive damages, while narrowing the proposed class definition.

The defendant successfully repelled the plaintiffs' motion for an interlocutory injunction and sought its costs of the motion payable forthwith.

The parties agreed to fix the quantum of costs at $150,000.

The court departed from the general rule that a successful defendant on an interlocutory injunction motion is presumptively entitled to costs payable forthwith, noting that the plaintiffs only sought a permanent injunction at trial and there were factual issues regarding the defendant's conduct.

The court fixed the costs at $150,000 but reserved the issue of entitlement to the trial judge.

The representative plaintiff in a securities class action sought court approval of an $11 million settlement agreement, a plan of distribution, and class counsel fees.

The action alleged that the defendants misrepresented the development costs of a mining project.

The court found the settlement to be fair, reasonable, and in the best interests of the class, noting the significant litigation risks, including proving liability and overcoming statutory liability caps under the Securities Act.

The court also approved the plan of distribution, the appointment of the claims administrator, and class counsel's fee request of $2.75 million (25% of the settlement) plus disbursements, finding them fair and reasonable given the results achieved and risks assumed.

Following the dismissal of an application to set aside an international arbitral award, the court determined the appropriate scale of costs.

The court initially considered awarding substantial indemnity costs to deter baseless challenges to an arbitrator's impartiality.

However, acknowledging that the applicant raised a novel point of law regarding an arbitrator's conflict of interest involving past firms, the court gave the applicant the benefit of the doubt.

Costs were awarded to the respondents on a partial indemnity basis, fixed at $55,000.

The applicant sought to set aside an arbitral award, arguing that the arbitrator's failure to conduct a conflict search with his former law firm, which had acted for the underwriters of the project and a company whose CFO was a witness, created a reasonable apprehension of bias.

The court found it had jurisdiction to hear the challenge under Article 34 of the Model Law.

However, the court dismissed the application, holding that the connection between the arbitrator and his former firm's clients was too remote to establish a reasonable apprehension of bias, and that an arbitrator who has left a law firm does not have a duty to investigate potential conflicts with that former firm.

In a certified class proceeding arising from a failed public company and alleged negligent audits, both sides brought refusals motions concerning answers and undertakings given during examinations for discovery.

The plaintiffs alleged that the auditors negligently prepared audit reports relied upon by lenders in extending a $1.5‑billion credit facility, while the auditors denied any duty of care and advanced additional defences.

The court reviewed the permissible scope of discovery under the Rules of Civil Procedure and the Class Proceedings Act, 1992, emphasizing relevance, materiality, proportionality, and recognized categories justifying refusals.

Applying those principles, the court ruled on numerous disputed questions, ordering some answers and upholding others as unanswerable, irrelevant, disproportionate, or privileged.

Costs of the refusals motions were ordered to be in the cause.

In a certified class proceeding arising from a failed public company and alleged negligent audits, both sides brought refusals motions concerning answers and undertakings given during examinations for discovery.

The plaintiffs alleged that the auditors negligently prepared audit reports relied upon by lenders in extending a $1.5‑billion credit facility, while the auditors denied any duty of care and advanced additional defences.

The court reviewed the permissible scope of discovery under the Rules of Civil Procedure and the Class Proceedings Act, 1992, emphasizing relevance, materiality, proportionality, and recognized categories justifying refusals.

Applying those principles, the court ruled on numerous disputed questions, ordering some answers and upholding others as unanswerable, irrelevant, disproportionate, or privileged.

Costs of the refusals motions were ordered to be in the cause.