Morris Cooper

The plaintiff moved for relief from the deemed undertaking rule to permit use of discovery evidence outside the civil proceedings, both to make a securities-regulatory complaint against one defendant and to report alleged perjury by another defendant to police and Crown counsel.

Applying the exceptional-circumstances and superior-public-interest framework from Juman v. Doucette, the court held that relief from the undertaking requires a sufficient evidentiary record, including the relevant documents or transcripts, to support at least a prima facie case.

The evidence relating to alleged securities violations was speculative and unsupported by the actual records said to substantiate the misconduct.

The evidence relating to alleged perjury consisted of improper affidavit assertions without the underlying transcripts or documentary contradictions.

The motion was dismissed in its entirety.

The plaintiffs successfully defended an appeal from a certification order and sought substantial indemnity costs, arguing the defendant's conduct was part of a litigation strategy to obfuscate and delay.

The Divisional Court rejected this argument, finding no reprehensible conduct to justify substantial indemnity costs.

The court awarded the plaintiffs partial indemnity costs fixed at $35,000, finding the defendant's costs outline of approximately $34,400 to be a more reasonable reflection of the work required for two half-day hearings.

The plaintiffs, aboriginal persons removed from their homes by Ontario child welfare authorities and placed with non-aboriginal families, brought a proposed class action against Canada for breach of fiduciary duty and negligence.

Canada appealed the dismissal of its motion to strike the statement of claim and the certification of the class action.

The Divisional Court dismissed the appeal, finding it was not plain and obvious that the claims for breach of fiduciary duty and negligence disclosed no reasonable cause of action, given Canada's unique relationship with aboriginal peoples and its delegation of child welfare responsibilities to Ontario.

The appellant settled and abandoned its appeal on liability and damages, proceeding only on the issues of costs and pre-judgment interest against two respondents.

The Court of Appeal refused leave to appeal the trial judge's costs decisions, finding no error in principle in declining to award costs of the first trial or substantial indemnity costs of the second trial.

However, the Court allowed the appeal regarding pre-judgment interest, which had been inadvertently omitted below, awarding interest at 4 percent from the date of conversion.

Following dismissal of a motion seeking to remove the plaintiffs’ solicitors of record, the court addressed costs.

Applying the discretion under s.131(1) of the Courts of Justice Act and Rule 57.01 of the Rules of Civil Procedure, the court considered proportionality and the surrounding circumstances.

Although the plaintiffs were the successful party, the motion had been dismissed without prejudice and the defendant’s timing argument was not improper or vexatious.

Relying on the fairness principles articulated in appellate authority, the court fixed costs at a reasonable amount rather than the full costs incurred.

The appellant appealed a Superior Court judgment recognizing an international commercial arbitral award in favour of the respondent.

The Court of Appeal dismissed the appeal, finding no error in the application judge's reasons.

Although the appellant's proposed fresh evidence met the Palmer test for admission, the Court found it unnecessary to consider it to reach its conclusion.

Costs of $7,000 were awarded to the respondent.

The defendant, the Attorney General of Canada, sought leave to appeal a decision certifying a class action and dismissing a motion to strike the amended statement of claim.

The class action was brought on behalf of Aboriginal children removed from their homes and placed in non-Aboriginal homes in Ontario between 1965 and 1984.

The Divisional Court granted leave to appeal, finding good reason to doubt the correctness of the certification judge's reliance on a 1965 Agreement that was not pleaded as the basis for the alleged fiduciary duty and duty of care, and noting the matter was of sufficient importance.

A dispute arose from the administration and eventual sale of a rental property held in trust where one party held legal title as trustee for himself and another beneficiary.

The trustees failed to maintain financial records over a 13‑year period, leading both sides to rely on competing accounting experts to reconstruct profits.

The trial judge accepted the respondent’s expert report and awarded damages for breach of trust, aggravated damages, and substantial indemnity costs.

On appeal, the Court of Appeal held that the trial judge erred in relying on the respondent’s expert because the assumptions about rental income were inconsistent with the evidence.

The court reassessed damages directly on the record, reducing the award and costs, while upholding aggravated damages and allowing the cross‑appeal of the solicitor on the basis that no duty of care or fiduciary duty was owed to the beneficiary.

The defendant franchisor brought a motion to remove the plaintiffs’ solicitors of record on the basis that the firm had previously represented the plaintiffs in negotiating the franchise agreement and would likely be a necessary witness at trial.

The plaintiffs argued the motion was premature because documentary discovery and examinations for discovery had not yet occurred and it had not been established that counsel would be a material witness.

The court held that removing counsel of choice at a pre‑trial stage should occur only in the clearest of cases.

Given the early stage of the litigation and the possibility that discovery might eliminate the need to call counsel as a witness, the court concluded that the motion was premature.

Following a re-hearing of a class action certification motion relating to the ‘Sixties Scoop’, the court addressed costs after granting certification and dismissing the federal Crown’s motion to strike.

The plaintiffs sought substantial indemnity costs, but the court held that such costs require reprehensible or outrageous conduct and were not justified.

Applying a partial indemnity scale and reviewing historical certification-motion cost awards, the court found the plaintiffs’ request modest given the complexity of the litigation and the work spanning both the original and rehearing motions.

The court fixed costs at an all-inclusive amount reflecting fairness to the losing party and proportionality to comparable certification proceedings.

The appellant's proposed wind power project was cancelled by the Ontario government during an election campaign.

The appellant sued for damages, alleging misfeasance in public office, claiming the government acted in bad faith for electoral expediency and specifically targeted the appellant to cripple it financially.

The motion judge struck the statement of claim.

On appeal, the Court of Appeal allowed the claim for misfeasance in public office to proceed, but only on the narrow basis that the government's conduct was specifically targeted to injure the appellant financially.

The court held that core policy decisions based on electoral expediency do not constitute bad faith for the purposes of misfeasance in public office.

The defendants brought a motion to stay the plaintiffs’ civil action on the basis of an arbitration clause contained in a shareholders agreement executed as part of a share purchase transaction.

The plaintiffs alleged misrepresentations inducing the share purchase and sought declarations regarding share value, rescission of the transaction, and damages including wrongful dismissal.

The court held that the dispute was not clearly outside the scope of the arbitration clause, which broadly applied to disputes relating to interpretation or implementation of the shareholders agreement.

Applying s. 7(1) of the Arbitration Act, 1991 and appellate guidance on deference to arbitration agreements, the court stayed the claims that arguably required interpretation of the shareholders agreement.

The wrongful dismissal claim arising from a separate employment agreement was not stayed.

The plaintiffs brought a motion to certify a class action against the Federal Crown regarding the 'Sixties Scoop', alleging breach of fiduciary duty and negligence for funding provincial child welfare services that placed on-reserve aboriginal children in non-aboriginal homes without protecting their cultural identity.

The Federal Crown brought a cross-motion to strike the pleadings under Rule 21.

The court dismissed the motion to strike, finding it was not plain and obvious that the claims would fail, given the evolving nature of aboriginal law.

The court granted the certification motion, revising the class definition and common issues to focus specifically on the impact of the 1965 Canada-Ontario Welfare Services Agreement.

In a Commercial List case conference concerning potential refusals motions, the court addressed whether interlocutory motions to compel answers to refused discovery questions should be scheduled.

The case management judge emphasized the court’s inherent jurisdiction and the proportionality principles in the Rules of Civil Procedure to control litigation and allocate scarce judicial resources.

The court held that a Commercial List case management judge may decline to schedule refusals motions and instead direct that, if a refusal later proves improper at trial, an adverse inference may be drawn against the refusing party.

Such directions may bind the parties at trial unless the trial judge determines otherwise to prevent injustice.

In a complex commercial fraud and negligence action involving multiple defendants, the court issued a case conference memorandum addressing the status of discovery, mediation, expert reports, and pre‑trial procedure.

The court directed timelines for completion of undertakings and remaining examinations for discovery.

It encouraged the parties to consider avoiding refusals motions due to limited judicial resources and proposed an alternative approach allowing trial judges to address refused questions if necessary.

The parties were instructed to advise the court whether they would forego refusals motions or proceed with them.

The court also directed the parties to contact a judge to schedule a lengthy trial and to return for a further case conference if mediation failed.

The applicant sought recognition and enforcement in Ontario of an international arbitral award issued in New York requiring the respondent to pay over USD $3.5 million.

The respondent argued the application was premature because it was commenced within the three‑month period for setting aside an award under the UNCITRAL Model Law and that enforcement would be contrary to public policy due to ongoing regulatory proceedings before the U.S. Securities and Exchange Commission.

The court held that the relevant inquiry is whether the award is binding at the time of the enforcement hearing, not when the application was commenced.

As no application to set aside or suspend the award was pending and the regulatory proceeding did not undermine the arbitral decision, there was no basis under Article 36 of the Model Law to refuse recognition or enforcement.

The award was recognized and enforced in Ontario.

The defendants brought a motion seeking to enforce the plaintiff’s undertaking as to damages given in support of an ex parte Mareva injunction that froze their assets for nine days.

They argued that the injunction caused them to lose a commercial transaction and sought an inquiry to determine damages.

The court considered jurisprudence emphasizing the strong presumption that a party giving an undertaking as to damages should ordinarily be held to it unless special circumstances exist.

The court concluded that special circumstances were present, including the defendants’ conduct in the underlying litigation and the absence of persuasive evidence that the injunction caused compensable losses.

The motion to enforce the undertaking and order an inquiry into damages was dismissed.

The parties made costs submissions following an appeal.

Given the divided success of the parties, the Court of Appeal ordered that there be no costs awarded for the motion for leave to appeal or the appeal.

In a Commercial List case conference, the court addressed procedural issues arising during case management of complex banking litigation.

A related action commenced by another party against the plaintiff bank had not been disclosed at an earlier case conference, prompting the court to require an explanation and direct counsel to attend a further appointment to address potential motions and case coordination.

The court also addressed discovery disputes, including requests to examine additional representatives and disagreements about whether discovery rights had been exhausted.

Timetables were set for written motion materials regarding discovery disputes, interrogatories, expert reports, and a forensic accounting report.

The court emphasized the importance of transparency in case management and minimizing interlocutory motions in complex litigation.

The applicant brought a motion to compel compliance with outstanding orders, for contempt, and to strike the respondent's Answer and Claim following chronic non-compliance with financial disclosure obligations.

The court found that the respondent had failed to purge his previous contempt and imposed a $300,000 penalty.

Due to the respondent's ongoing failure to comply with court orders and the Family Law Rules, the court struck his Answer and Claim, limiting his future participation in the proceedings, and awarded full indemnity costs to the applicant.