Corporate/Commercial Law - ONCA

The appellant sought to certify a global class action against an Ontario accounting firm for auditor's negligence regarding a clean audit report used in a US private placement.

The motion judge denied certification, finding no real and substantial connection to Ontario for the foreign investors and concluding that joinder was preferable to a class proceeding.

The Divisional Court upheld this decision.

The Court of Appeal allowed the appeal, holding that the motion judge erred by mischaracterizing the claim as being about the foreign financing rather than the Ontario-based audit, and by failing to properly conduct the comparative access to justice analysis required for the preferable procedure criterion.

The action was certified as a class proceeding.

The appellants appealed a summary judgment granting the respondent over $2.2 million for unpaid commercial leases of forestry equipment.

The appellants argued the respondent was not the proper assignee, disputed the amount owing, and claimed equipment malfunctions excused payment.

The Court of Appeal dismissed the appeal, upholding the motion judge's findings that the respondent was the assignee, the debt calculation was correct, and broad exclusion clauses in the leases precluded the equipment malfunction defence.

The court also quashed the respondent's cross-appeal regarding a stay of execution for lack of jurisdiction.

The moving party sought to lift a stay of proceedings previously granted by the Court of Appeal on the basis of forum non conveniens.

Following the stay, the moving party's attempt to pursue a class action in the United States for pre-explosion misrepresentations was dismissed on procedural grounds, and the responding party conceded the claim was governed by Ontario law.

The Court of Appeal found these new developments constituted facts arising after the order that justified lifting the stay to avoid an injustice, allowing the moving party to proceed with the claim in Ontario.

The appellant appealed a trial judgment finding it breached an oral contract to pay a 5% commission on balloon sales to a retail chain.

The appellant argued the trial judge made palpable and overriding errors in fact-finding and improperly relied on discovery evidence.

The Court of Appeal dismissed the appeal, finding the trial judge's conclusions were amply supported by the record and the improper admission of discovery evidence caused no substantial wrong.

The respondent's cross-appeal regarding a pre-trial costs order was allowed, as the trial judge lacked authority to alter the motion judge's order.

The appellant appealed a trial judgment finding she was unjustly enriched by receiving a $200,000 share of a winning lottery ticket.

The respondent, a former employee, had contributed to the ticket before leaving his job, while the appellant joined the workplace lottery pool after the ticket was purchased.

The Court of Appeal upheld the trial judge's finding that the ticket was co-owned by the original contributors and rejected the appellant's argument that the pool constituted an ongoing partnership under the Partnerships Act.

The appeal was dismissed.

The appellants appealed a summary judgment finding they had entered into a settlement agreement to pay the respondent for a load of carrots.

The appellants argued there was no consensus ad idem on the monthly payment rate.

The Court of Appeal upheld the motion judge's finding that an implied agreement had been reached based on the parties' post-negotiation conduct.

On cross-appeal, the Court found the motion judge erred by allowing the appellants' counterclaim to proceed, holding that the settlement of the main action implied an obligation to release the counterclaim.

The appellants, former employees whose employment was terminated following a corporate restructuring, appealed the dismissal of their application for supplementary retirement benefits under a supplementary executive retirement plan (SERP).

Following a partial wind-up of the registered pension plan, the appellants became entitled to statutory 'grow-in' benefits, allowing them to retire at age 55 with unreduced pensions.

The dispute centered on whether the SERP's formula required excluding these grow-in benefits when calculating their supplementary entitlement.

The Court of Appeal upheld the application judge's interpretation, which relied on expert actuarial evidence to conclude that the SERP's proviso mandated the exclusion of grow-in benefits from the base calculation but not from the deduction of earned registered benefits, resulting in a nil supplementary entitlement.

The appellants appealed a trial judgment finding them liable for breach of contract and inducing breach of contract regarding a commercial restaurant lease.

The trial judge found the appellants unreasonably refused consent to a sublease and maliciously induced a tenant to breach her contract to punish the respondent for unrelated litigation.

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

The appellant appealed a decision awarding damages to the respondents for breach of a lease agreement and improper sale of a vehicle under the Repair and Storage Liens Act.

The application judge had found the notice of sale deficient, improperly served, and waived, and that the sale was not commercially reasonable.

The Court of Appeal found the application judge misapprehended the evidence and erred in law.

The notice complied with the Act, was properly served by registered mail, and was not waived by an incomplete compromise agreement.

Furthermore, the appellant had no obligation to repair the vehicle before sale, and the sale price was commercially reasonable.

The appeal was allowed and the application dismissed.

The appellant landlord appealed a motion judge's decision deducting an amount from its claimed relief for a defaulting tenant.

The Court of Appeal allowed the appeal, finding that the landlord provided unchallenged evidence of hiring a commercial real estate agent to re-let the premises, thereby taking reasonable steps to mitigate its loss.

The judgment was varied to award the full amount claimed.

The appellant appealed a trial judge's order regarding the distribution of funds following the breakdown of a business relationship involving a proposed land development.

The Court of Appeal found no basis to interfere with the trial judge's factual findings and distribution of funds.

The court also declined to admit fresh evidence regarding a water heater purchase, as it would not have changed the result.

The appeal was dismissed with costs awarded to the respondents.

The appellants appealed a judgment imposing constructive trusts over certain properties, arguing the matter was too complex for a motion and that the motion judge erred in accepting the Inspector's tracing methodology.

The Court of Appeal dismissed the appeal, finding the motion judge correctly applied the legal principles of constructive trust based on the appellants' fraud and misappropriation of funds, and properly appreciated the extensive evidentiary record.

The receiver of the appellant appealed a motion judge's interpretation of an accounts receivable insurance policy with the respondent insurer.

The motion judge found that buyers' claims for set-off against amounts owing to the appellant constituted a 'dispute' under clause 7 of the policy, which deferred the insurer's liability to pay claims.

The Court of Appeal upheld the decision, finding no ambiguity in the clause and confirming that a dispute is not restricted to claims arising out of the unpaid shipment of goods.

The appeal was dismissed.

The appellant, a permanent golfing member of a share capital social club, sought to transfer to a social membership category while retaining his Class B voting share.

The club's board adopted a policy requiring members transferring out of permanent golfing categories to resign, thereby cancelling their voting shares, and reapply.

The appellant argued this policy unlawfully varied his share rights under the Corporations Act.

The court held that the policy did not vary share rights, as the appellant could keep his share by remaining in his current category, and the policy was a reasonable exercise of the board's authority.

The court also determined that the appeal properly lay to the Divisional Court, reconstituting itself to dismiss the appeal.

The appellant appealed a trial judgment finding him liable on a guarantee for unpaid rent under a commercial lease.

The appellant argued that documents were tampered with, the trial judge was biased, and a breach of the lease's exclusivity provision relieved him of his obligation.

The Court of Appeal dismissed the appeal, finding no evidence of tampering or bias, and agreeing with the trial judge that any breach of the exclusivity provision was independent of the obligation to pay rent and the guarantee.

The appellant appealed a summary judgment decision that found no arguable issue for trial regarding its claims for equitable and legal set off.

The Court of Appeal upheld the motion judge's findings that the equitable set off claims lacked the requisite close connection, and the legal set off claims were either for unliquidated damages or factually complex amounts not readily ascertainable.

The appeal was dismissed with costs awarded to the respondent.

The appellant appealed an order enforcing an international arbitration award, arguing it was denied procedural fairness when the application proceeded in its absence.

The appellant had previously terminated its solicitors' retainer and indicated an intent to follow different channels.

The Court of Appeal dismissed the appeal and the motion to adduce fresh evidence, finding no adequate record to support the procedural fairness claim.

The court noted that the appropriate procedure to raise the issue is a motion to set aside the order under Rule 38.11 in the Superior Court.

The appellants, trustees of a pension fund, sought leave under the Securities Act and certification under the Class Proceedings Act for a $4 billion class action against Kinross Gold Corporation for alleged misrepresentations regarding two gold mines.

The motion judge dismissed the motion, finding no reasonable possibility of success for the statutory claims due to flawed expert evidence, and consequently denied certification for the common law claims.

The Court of Appeal upheld the decision, confirming the motion judge's assessment of the leave test and concluding that a class action was not the preferable procedure for the remaining common law negligent misrepresentation claims due to the need for individualized inquiries into reliance.

The appellant tenant appealed a ruling that a commercial lease and its right of first refusal were properly terminated by the respondent landlord.

The landlord had unconditionally accepted a third-party offer to purchase the leased premises without first notifying the tenant or allowing it to match the offer, and then purported to terminate the lease.

The Court of Appeal allowed the appeal, holding that the landlord was obliged to inform the tenant of the offer and afford it an opportunity to match before unconditionally accepting the third-party offer.

The court ordered the landlord to enter into an agreement of purchase and sale with the tenant on the same terms.

The appellant landlord appealed a decision dismissing its application for a declaration that the respondent tenant's installation of an ATM violated the permitted use clause of their commercial lease.

The lease restricted the premises to use as a fast-food restaurant.

The application judge found the ATM was a business tool to keep costs low and did not change the purpose of the premises.

The Court of Appeal applied the deferential standard of review for contractual interpretation established in Sattva, finding no error of law or mixed fact and law, and dismissed the appeal.