Paul J. Bates

The appellants, franchisors of a vape store chain, appealed an application judge's decision ordering them to pay $100,000 to the respondents, former franchisees, pursuant to Minutes of Settlement.

The appellants argued the respondents breached the settlement by continuing to use proprietary store designs and branding.

The Court of Appeal dismissed the appeal, finding no error in the application judge's interpretation of the agreements or his factual finding that the respondents' store design was sufficiently distinct to avoid customer confusion.

This is an appeal from a summary judgment dismissing the appellants' action as statute-barred.

The appellants, a former employee and his investment corporation, sued the respondents for breach of a post-retirement compensation agreement, claiming a permanent 3% interest in a partnership.

The motion judge found the claims statute-barred under the Limitations Act, 2002, ruling that a single breach with continuing consequences occurred, not a series of breaches giving rise to a rolling limitation period.

The motion judge also found the request for declaratory relief was, in substance, a claim for compensatory relief and therefore also statute-barred.

The Court of Appeal upheld the motion judge's decision, dismissing the appeal.

The appellant appealed a Superior Court decision that dismissed her action for lack of subject matter jurisdiction and struck her pleadings as frivolous, scandalous, and vexatious.

The core of her claim concerned how her insurer handled her statutory accident benefits claims, alleging a conspiracy with healthcare practitioners to stage examinations and produce false reports, and breach of privacy.

The Court of Appeal affirmed the motion judge's finding that the Licence Appeal Tribunal has exclusive jurisdiction over disputes related to statutory accident benefits under s. 280 of the Insurance Act, regardless of how the claims are framed.

The Court also upheld the denial of leave to amend pleadings and dismissed the appeal regarding costs due to procedural non-compliance and lack of error in principle.

The plaintiff brought motions for approval of a class action settlement, plan of distribution, and class counsel fees in a securities class action alleging goodwill misrepresentation.

The court approved the settlement of US$3.65 million, finding it fair and reasonable given the significant risks of the litigation, including the primary market claims being potentially statute-barred and the defendants' dwindling insurance proceeds.

The court also approved the plan of distribution, the appointment of the settlement administrator and referee, and class counsel's 33% contingency fee of $1,353,246.25.

The plaintiff brought a motion to discontinue a proposed class action against Olympia Trust Company regarding a syndicated mortgage loan investment.

The plaintiff had subsequently commenced an Omnibus Action against the same defendant on behalf of investors in 54 projects, which included the claims from the immediate action.

The court granted the motion to discontinue the action without costs and without requiring notice to putative class members, finding that the immediate action was redundant and the class members' interests were protected by the Omnibus Action.

The plaintiff brought a motion for leave to proceed with a secondary market securities class action under the Securities Act and a motion for certification under the Class Proceedings Act.

The claim alleged that the defendant cannabis company and its directors made thousands of misrepresentations regarding revenue recognition, which were later corrected in restated financial statements.

The court dismissed the motion for leave, finding no reasonable possibility that the plaintiff could prove the alleged misrepresentations had a material impact on the share price.

Consequently, the court also dismissed the certification motion, as the pleadings failed to disclose a viable cause of action for the remaining common law and oppression claims.

The plaintiff brought a class action alleging that the defendant mining company made secondary market misrepresentations by failing to disclose the negative opinions of one of its mining consultants regarding a mineral resource estimate.

On cross-motions for summary judgment, the court dismissed the action, finding that the consultant's opinions were unsolicited, inexpert, premature, and based on unreliable data.

The court held that the defendants were not obliged to disclose unreliable information, meaning there was no omission of a material fact.

In the alternative, the court found that the defendants satisfied the reasonable investigation defence under the Securities Act.

A case conference was held to determine the sequencing and scheduling of proceedings leading up to the leave and certification motions.

The parties agreed on consent to have both motions heard at the same time and established a timetable for the exchange of materials, cross-examinations, and factums, with hearing dates set for June 7-9, 2021.

The plaintiff in a proposed securities class action sought an "exclusivity order" to prevent other actions on the same subject matter from being commenced in Ontario without leave of the court.

The defendants did not object.

The court denied the request, emphasizing that Ontario's established procedure for managing competing class actions involves a "carriage motion" once rival claims emerge, rather than a pre-emptive exclusivity order.

The court distinguished the Federal Court's "inclusivity order" in Heyder v. Canada (Attorney General) as not overriding Ontario's endorsed approach.

The plaintiffs brought two motions: one alleging Ford's non-compliance with an approved class action settlement regarding exhaust odours in 2011-2015 Ford Explorers, and another seeking additional class counsel fees.

The court dismissed the non-compliance motion, finding no evidence that Ford breached its good faith obligations or that class members were deprived of proper repairs.

For the fees motion, the court awarded a modest additional amount of $75,000 plus HST, finding the initial request for $1.2 million excessive given the limited actual financial benefits to the class members from the settlement's reimbursement program.

The plaintiff moved to certify a proposed class action against TD Asset Management Inc. (TDAM) alleging that TDAM improperly paid "trailing commissions" to discount brokers for "service and advice" that was not provided, thereby wasting Mutual Fund assets and causing investor losses.

The court granted certification for claims of breach of trust, breach of fiduciary duty, disallowance of improper expenses under s. 23.1 of the Trustee Act, and prospectus misrepresentation.

However, claims for knowing assistance, knowing receipt, and unjust enrichment were struck as analytically unworkable or lacking a proper basis in fact.

The court affirmed the plaintiff's standing as a unitholder to sue the trustee and manager, and found the class definition and common issues suitable for certification, reiterating that certification is a low hurdle not concerned with the merits.

The appellants appealed the dismissal of their motion to certify a class action against the manufacturer of the drug Celexa, alleging a failure to warn that the drug is a teratogen.

The Divisional Court found that the motion judge made palpable and overriding errors by concluding the appellants had abandoned general causation as a common issue and by analyzing the duty to warn in isolation from general causation.

The appeal was allowed, the decision set aside, and the certification motion was remitted to be heard afresh by another judge.

The plaintiff appealed a decision declining to certify a negligent misrepresentation class action against underwriters of a secondary public offering.

A statutory misrepresentation claim against the issuer had already been certified on consent.

The Divisional Court allowed the appeal, finding the certification judge erred in concluding that a class proceeding was not the preferable procedure.

The Court held that resolving the common issues of duty of care, truth of the representation, and negligence in a single proceeding would significantly advance the claims, promote judicial economy, and improve access to justice compared to individual actions.

Appellants brought a proposed class action alleging that respondents conspired to divide the beer market contrary to section 45(1) of the Competition Act through a Framework Agreement signed in 2000, and that a surcharge levied by Brewers Retail on licensees violated the Liquor Control Act.

The motion judge dismissed the action on the basis that the regulated conduct defence was available to the respondents.

The Liquor Control Act authorized the impugned conduct.

The Ontario legislature subsequently enacted retroactive amendments in 2015 to remove any doubt that the conduct was authorized.

The Court of Appeal upheld the dismissal, finding that the regulated conduct defence insulated the respondents from liability and that retroactive legislation could provide authorization for the defence.

The appellant successfully appealed a summary judgment in a class proceeding.

The motion judge had found that the auditor owed a duty of care to the investor clients of Buckingham Securities regarding the audit of Form 9 reports filed with the Ontario Securities Commission.

The Court of Appeal reversed this decision, finding no duty of care was owed despite the auditor's negligence.

The appeal addressed the application of the Anns/Cooper test for establishing duty of care.

The court awarded the successful appellant costs on a partial indemnity basis.

The plaintiff brought a motion to set aside an order quashing its appeal of a decision that refused to certify class action claims against certain defendants while certifying claims against others.

The Divisional Court held that under section 30 of the Class Proceedings Act, where an action is certified against some defendants but not others, the plaintiff requires leave to appeal the refusal.

Applying binding appellate authority, the court found that allowing an appeal as of right would unduly delay the certified proceeding.

The motion was dismissed.

A class action was brought against an auditor for negligently auditing Form 9 reports filed with the Ontario Securities Commission that falsely confirmed a securities dealer's compliance with segregation and minimum capital requirements.

The dealer subsequently failed and investors lost millions.

The motion judge granted summary judgment for the class, finding the auditor owed a duty of care.

The Court of Appeal reversed, holding that no duty of care existed because there was insufficient proximity between the auditor and the class members.

The class members never saw or knew of the Form 9 reports, made no representations to them, and the interposition of the OSC and the dealer between the auditor and the class rendered the relationship too remote.

This is the third appeal in a class action arising from the acquisition of London Life by Great-West Life.

The class alleged that participating policy account (PAR) transactions violated the Insurance Companies Act.

The trial judge found breaches and awarded class counsel fees of $16.4 million with a first charge over the $56.43 million returned to PAR accounts, awarded $4 million in partial indemnity costs to the class, and imposed a levy in favour of the Law Foundation of Ontario.

The appellants challenged the class counsel fees, costs award, and levy.

The majority upheld all trial judge decisions, while the dissent argued that no monetary award was made to the class and therefore no charge could attach to the PAR accounts.

This addendum corrects an error in a previous costs decision (2018 ONSC 4862) regarding the amount of costs requested by Brewers Retail Inc. The original decision mistakenly stated Brewers Retail requested $600,000 on a partial indemnity basis, when the correct amount, based on an amended bill of costs, was $744,396.42, all inclusive, comprising fees, HST, and disbursements.

The court confirmed the costs award subject to this correction.

Following the dismissal of the plaintiffs' proposed class action on summary judgment, the successful defendants sought costs on a partial indemnity basis totalling approximately $2.3 million.

The plaintiffs and the Class Proceedings Fund argued that the costs should be reduced to $600,000 in the aggregate, asserting that the case was not complex, was in the public interest, raised novel points of law, and that a large costs award would have a chilling effect on class actions.

The court rejected these arguments, finding that the litigation was primarily commercial, involved complex issues, and that the normal costs rules should apply.

The court awarded the defendants their requested costs, subject to a reduction of one expert witness's fee.