Paul J. Davis

The plaintiffs requested an urgent case conference after the hospital defendants unexpectedly delivered a summary judgment motion and sought to have it heard concurrently with the scheduled class action certification motion.

The plaintiffs argued there was insufficient time in the existing timetable to respond.

Applying section 4.1 of the Class Proceedings Act, 1992, the court held it was compelled to order the summary judgment motion to be heard concurrently with the certification motion, as it could dispose of the proceeding in whole or in part.

A further case conference was ordered to revise the timetable.

The plaintiff brought motions for court approval of a $1.95 million settlement agreement and class counsel fees in a class action against BMO Trust Company and BMO InvestorLine Inc. The action alleged the defendants excessively withheld taxes on RRIF withdrawals.

The court approved the settlement, finding it fair and reasonable given the significant litigation risks, including a statutory bar defence under the Income Tax Act.

The court also approved a cy-près distribution of the net settlement funds to HelpAge Canada, as direct distribution to class members was deemed impractical and disproportionately costly.

Class counsel's 30% contingency fee and disbursements were approved as fair and reasonable.

The plaintiffs, former and current Home Financing Advisors at Scotiabank, brought a motion to certify a class action alleging the bank failed to properly pay vacation and statutory holiday pay on their commission earnings as required by the Canada Labour Code.

Scotiabank argued its compensation model was all-inclusive and adequately disclosed, and brought a preliminary motion to strike portions of the plaintiffs' expert report.

The court granted the motion to strike portions of the expert report that went beyond the expert's mandate.

However, the court found the plaintiffs met all criteria under s. 5(1) of the Class Proceedings Act, including demonstrating some basis in fact that the compensation documents were confusing and inconsistent.

The action was certified as a class proceeding.

The representative plaintiffs, on behalf of a class of Ontario franchisees, sought production of documents from the defendants (Shoppers Drug Mart Inc. and Shoppers Drug Mart (London) Ltd.) to support a “bottom-up” damages assessment for individual class members under section 25 of the Class Proceedings Act, 1992.

The Court of Appeal had previously found Shoppers liable for breach of contract and duty of good faith, and ordered that damages be determined through an individual issues process.

The defendants opposed production on grounds of proportionality, prematurity, and lack of expert evidence.

Justice Glustein granted the motion, ordering production of the requested documents for all class members subject to the 2002 Associate Agreement for the relevant years, finding the request reasonable and proportionate in light of the litigation’s scope and the evidence before the court.

The court considered costs arising from the adjournment of a motion to remove Osler, Hoskin & Harcourt LLP as counsel of record for the Defendants.

The adjournment was necessitated by privilege issues raised in the Plaintiff’s reply affidavit, which referenced potentially privileged communications.

The Defendants sought full or substantial indemnity costs, arguing the adjournment was predictable and should not have required a full day’s hearing.

The court found that while the Plaintiff’s position had little merit, it was not taken in bad faith or with egregious conduct.

Costs were awarded to the Defendants on a partial indemnity scale in the amount of $66,658.81.

Riot Platforms, Inc., the largest shareholder of Bitfarms Ltd., applied to the Capital Markets Tribunal for an order under s. 127(1) of the Securities Act to cease trade a shareholder rights plan adopted by Bitfarms.

The plan featured a 15% trigger, which was below the 20% threshold established in the take-over bid regime.

Riot did not allege a contravention of Ontario securities law but argued the plan was contrary to the public interest.

The Tribunal clarified the standard for intervening without a contravention, holding that an applicant must demonstrate the conduct undermines clearly discernible animating principles of securities law in a real and substantial way, with a public dimension.

The Tribunal found that the 15% trigger undermined the predictability and certainty of the take-over bid regime.

As Bitfarms failed to demonstrate exceptional circumstances justifying the departure from the 20% threshold, the Tribunal concluded it was in the public interest to cease trade the plan.

The appellants, representing a class of Ontario Shoppers Drug Mart franchisees, appealed a summary judgment decision regarding their entitlement to Professional Allowances paid by generic drug manufacturers.

The Court of Appeal upheld the motion judge's findings that Shoppers breached the 2002 franchise agreement by retaining the allowances, which constituted 'revenue', but did not breach the 2010 agreement, which explicitly allowed Shoppers to retain such concessions.

The Court also upheld the application of a rolling limitation period and the refusal to award aggregate damages due to the idiosyncratic nature of the profit-sharing model.

However, the Court allowed the appeal regarding the quantification of damages, finding that Shoppers breached its duty of good faith by arbitrarily allocating $129 million as out-of-province rebates to avoid sharing the funds with Ontario franchisees, bringing the total Professional Allowances received to $1.084 billion.

The plaintiffs in a certified class action brought a motion seeking an order to provide official notice to class members regarding the outcome of common issues summary judgment motions, despite pending appeals and cross-appeals.

The defendants objected, arguing that such notice would confuse class members and disputed the sharing of information and costs.

The court granted the plaintiffs' motion, finding that providing notice was necessary to protect the interests of the class members and that the defendants' concerns about confusion were unfounded.

The court emphasized the fiduciary responsibility of class counsel to report to class members throughout the litigation.

In this certified class action, the plaintiff franchisees (Associates) brought a motion for summary judgment against the franchisor, Shoppers Drug Mart, alleging breaches of contract, breaches of the duty of good faith, and unjust enrichment regarding various fees and the retention of Professional Allowances paid by generic drug manufacturers.

Shoppers brought a cross-motion for summary judgment to dismiss the claims, arguing they lacked merit and were statute-barred.

The court dismissed the claims regarding the Optimum Fee and Shoppers Charges, finding no breach of contract or bad faith.

The court also dismissed the unjust enrichment claim for Professional Allowances but found that Shoppers breached the 2002 Associates Agreement (but not the 2010 Agreement) by failing to remit Professional Allowances to the Associates.

The court held that aggregate damages were not viable and directed that the surviving breach of contract and distribution centre claims proceed to individual issues trials, subject to limitation periods.

The Court of Appeal for Ontario heard a motion to quash a motion for leave to appeal.

The underlying dispute arose from a commercial arbitration where the arbitrator made a preliminary ruling on jurisdiction over a counterclaim.

The Superior Court reversed this ruling.

The Court of Appeal granted the motion to quash, holding that under section 17(9) of the Arbitration Act, 1991, there is no right of appeal from a court's decision reviewing an arbitrator's preliminary jurisdictional ruling, distinguishing it from an appeal of an award.

The plaintiffs sought judicial approval of a $100 million settlement in a class action regarding hidden foreign exchange fees in registered accounts, along with approval of class counsel's legal fees and representative plaintiff honoraria.

The court approved the settlement as fair and reasonable.

However, the court declined to approve the requested $25 million in legal fees based on a straight-line 25% contingency, finding that in a 'mega-fund' settlement, a multiplier and percentage cross-check must be used to avoid a windfall and maintain the integrity of the profession.

The court approved $20 million in legal fees, plus disbursements and taxes, and approved the requested honoraria for the representative plaintiffs.

The plaintiffs brought a motion for approval of a class action settlement regarding alleged securities misrepresentations by Colt Resources, Inc. The court approved the $950,000 settlement, finding it fair and reasonable given the litigation risks and the statutory liability limits under the Securities Act.

The court also approved the Plan of Allocation, the notice plan, a $5,000 honorarium for each representative plaintiff due to their exceptional efforts in initiating the claim, and class counsel fees of $300,000 plus disbursements.

The appellant architect appealed a finding of professional misconduct by the OAA Discipline Committee.

The Committee found the architect in a conflict of interest under s. 43(1)(f) of the Regulation because he provided millwork drawings for a renovation project while also owning a company that submitted a quote for the work.

The appellant argued the provision only applied to formal tendering processes creating a Contract A/Contract B scenario.

The Divisional Court dismissed the appeal, holding that the Committee correctly interpreted 'tenders or bids' to include informal competitive bidding processes, consistent with the plain meaning of the words and the public interest purpose of the legislation.

The plaintiff brought motions to approve a $10 million national settlement in a class action regarding PayPal's foreign currency conversion practices, and to approve class counsel fees and a representative plaintiff honorarium.

The court found the settlement fair, reasonable, and in the best interests of the class, noting the significant litigation risks and the efficient direct-deposit distribution protocol.

The court also approved class counsel's 25% contingency fee request and awarded a $10,000 honorarium to the representative plaintiff for his exceptional efforts in initiating the litigation.

In a certified class action by franchisees against Shoppers Drug Mart regarding the retention of professional allowances, the plaintiffs brought a discovery motion seeking to compel answers to refused questions, to examine three non-party former employees, and to obtain documentary production from two non-party generic drug manufacturers.

The court dismissed the motion, finding that the defendants had already provided sufficient information to allow the plaintiffs to argue their case, and that further discovery would be irrelevant and disproportionate.

The court ordered a limited search for documents related to 'over and above' amounts but otherwise denied the relief sought.

The Representative Plaintiff in a certified class action sought court approval for a $4.2 million settlement with the defendant auditor, approval of Class Counsel's contingency fees and disbursements, and an honorarium for the Representative Plaintiff.

The court approved the settlement, finding it fair, reasonable, and in the best interests of the class, considering the litigation risks and protracted nature of the case.

Class Counsel's fees and disbursements, and the Representative Plaintiff's honorarium, were also approved.

The plaintiffs brought a class action alleging that the defendant financial institutions breached their trust and fiduciary duties by failing to disclose markup fees charged on foreign currency conversions in registered accounts.

The parties brought cross-motions for summary judgment on the common issues, and the defendants moved for decertification.

The court found that the defendants breached the trust agreements by failing to disclose the amount of the markup fees.

The court ordered an accounting of profits to be determined at a reference, emphasizing the need to deter fiduciary misconduct.

The court dismissed the plaintiffs' claims for an elevated interest rate and punitive damages, and dismissed the defendants' motion to decertify the class action.

The plaintiffs, Iris Technologies Inc. and ICE Wireless Inc., commenced an action against TELUS Communications Company for breach of contract and unlawful interference with economic relations.

TELUS brought a motion to temporarily stay the action, arguing that the court lacked jurisdiction or was not the appropriate forum, as the core dispute fell within the exclusive jurisdiction of the Canadian Radio-Television and Telecommunications Commission (CRTC).

The court granted a temporary stay, finding that the factual and legal underpinnings of the civil action and the CRTC proceedings were the same, and the predicate misconduct concerned matters within the CRTC's specialized expertise.

The applicant, Cassie Hodge, brought a motion for court approval of a class action settlement, class counsel's legal fees, and an honorarium for herself.

The class action alleged that the respondents, Gary Neinstein and Neinstein & Associates LLP, breached the Solicitors Act and fiduciary duties by charging additional costs and excessive disbursements in motor vehicle personal injury claims.

After extensive litigation and mediation, the parties reached a settlement.

The court approved the settlement as fair, reasonable, and in the best interests of the class, considering the litigation risks.

Class counsel's fee request of $1.0 million plus HST was approved, and an honorarium of $10,000 for the representative applicant was approved, reduced from the requested $20,000, acknowledging her extraordinary contribution.

The respondent in matrimonial litigation moved to have the former case management judge recuse himself due to a reasonable apprehension of bias.

The new case management judge dismissed the motion, finding it premature and pointless as the former judge was not scheduled for future involvement.

The court determined the respondent had an ulterior motive to revisit prior rulings and that the motion constituted an abuse of process, contrary to the Family Law Rules' objectives of saving time and expense.