Paul M. Perell

The defendant brought a motion to set aside a default judgment in a debt collection action arising from a loan advanced for a real estate purchase abroad.

The court considered the established factors governing relief from default judgment, including promptness of the motion, explanation for the default, and whether the defendant had an arguable defence on the merits.

Although the court accepted that the motion was brought with some explanation for the procedural default, it found that the proposed defences lacked an air of reality.

The defendant admitted borrowing the funds and partially repaying the loan, and the alleged criminal interest and limitation period defences were unsupported because the plaintiffs sought only repayment of principal and the defendant had acknowledged the debt within the limitation period.

The motion to set aside the default judgment was dismissed and the cross‑motion for summary judgment was rendered moot.

In a proposed class action concerning alleged misrepresentations in a vending machine distributorship program, the plaintiffs sought leave to file an additional affidavit after cross-examinations had already been completed on a pending summary judgment motion.

The evidence came from a principal of a co-defendant who had entered into a cooperation agreement with the plaintiffs and purported to provide evidence supporting the existence of a partnership or franchisor’s associate relationship.

The court considered Rule 39.03(2) of the Rules of Civil Procedure, which restricts the filing of additional affidavits after cross-examinations without leave.

Although the court found the plaintiffs had not demonstrated that the evidence was previously unavailable and expressed concerns about the cooperation agreement and procedural fairness, it ultimately granted leave because the moving defendant would suffer no prejudice and preferred that the evidentiary record be complete.

Costs were awarded to the opposing party in any event of the cause.

In a certified class proceeding alleging a price-fixing conspiracy in the market for DRAM (dynamic random access memory) devices contrary to Part IV of the Competition Act and related torts, the representative plaintiffs sought court approval of a negotiated settlement with one defendant.

The settlement required the settling defendant to pay $5.75 million for the benefit of class members in Ontario, British Columbia, and Québec and to provide extensive cooperation in the ongoing litigation against non-settling defendants.

The agreement also included a bar order preventing contribution and indemnity claims against the settling defendant while permitting discovery cooperation and proportional liability determinations at trial.

Applying established class action settlement approval principles, the court concluded the settlement was fair, reasonable, and in the best interests of the class.

The settlement approval order was granted.

In long‑running multi‑jurisdictional litigation involving petroleum joint ventures, the respondents brought motions seeking dismissal of a new application, addition of parties to an existing reference proceeding, and a declaration that the opposing party was a vexatious litigant.

The court held that the applicant’s attempt to abandon an earlier oppression application and restart proceedings through a related corporation constituted an abuse of process.

The court set aside the notice of abandonment, dismissed the new application as res judicata, and added the corporation and an additional entity as parties to the reference so that outstanding accounting and valuation issues could proceed.

The request to declare the individual litigant vexatious was denied, although procedural orders were imposed to complete the reference before a Master.

In a proposed securities class action alleging secondary market misrepresentation by a publicly traded company and several of its officers and directors, the plaintiff brought a motion for substituted service of pleadings on two individual defendants who had not been personally served.

One defendant’s whereabouts were uncertain in Québec and the other, a Canadian citizen ordinarily resident in Québec, was incarcerated in Switzerland while criminal proceedings were ongoing.

The court considered Rules 16.04 and 17.05 of the Rules of Civil Procedure and the interaction with the Hague Convention on service abroad.

It held that the rule prohibiting substituted service where Hague Convention service is required did not apply because the defendant’s ordinary residence and connection to Canada justified service under the general rule.

The court concluded that the proposed methods of service through counsel were reasonably likely to bring the proceedings to the defendants’ attention.

After a summary judgment motion and cross‑motion in a commercial dispute over advertising contracts, the court addressed the scale and quantum of costs.

The defendants had successfully obtained dismissal of certain claims and argued that their prior offer to settle was more favourable than the eventual outcome.

They also argued that the plaintiff’s tactical allegation of fraud justified punitive costs.

The court held that the declined offer to settle and the unsupported fraud allegations justified costs on a substantial indemnity basis.

Costs were awarded to the successful defendants, including a separate amount payable forthwith to two defendants whose claims were dismissed.

The plaintiff sought certification of a proposed national class action alleging that a prescription smoking‑cessation drug caused neuropsychiatric adverse events and that the manufacturer breached its duty to warn consumers and physicians.

The court considered the certification criteria under the Class Proceedings Act, 1992, including whether there was some basis in fact for the proposed common issues and whether a class proceeding was the preferable procedure.

The court held that there was some basis in fact for a duty to warn claim against the Canadian manufacturer based on expert and anecdotal evidence of adverse psychiatric events.

The proposed class definition and common issues were amended to focus on specific neuropsychiatric symptoms and the adequacy of product monograph warnings between 2007 and 2010.

The proceeding was certified against the Canadian manufacturer but not against the U.S. parent company, whose involvement lacked a factual basis.

A motion was brought to enforce a settlement agreement under which a shareholder allegedly agreed to sell his one‑third interest in a corporation to the other shareholders.

The moving party sought summary enforcement of the settlement.

The responding party argued the settlement should not be enforced due to alleged fraudulent misrepresentations regarding the corporation’s financial condition and tenancy prospects.

The court held that a motion to enforce a settlement applies the same test as summary judgment and found that numerous genuine issues of fact required a trial.

The motion to enforce the settlement was dismissed and the original application was converted into an action to allow the disputed issues to proceed to trial.

The plaintiffs sought disclosure of a settlement agreement entered into between multiple defendants and a third party in a civil action arising from a professional hockey assault.

The settlement resolved cross-claims and contained a proportional sharing arrangement for any judgment or settlement with the plaintiffs.

The moving parties asserted settlement privilege and appealed a master's order compelling disclosure.

The court held that settlement privilege, whether class-based or case-by-case, admits exceptions where disclosure is necessary to preserve the integrity of the adversarial process.

Because the agreement changed the adversarial orientation of the litigation, immediate disclosure to the non-settling parties and the court was required.

The respondent automobile carrier brought an application seeking a declaration that the applicant automobile manufacturer breached a contract governing delivery routes for vehicle shipments.

The applicant brought a counter‑motion seeking to convert the application into an action on the basis that the dispute raised significant factual controversies, including issues of economic duress, contractual interpretation, and the doctrine of good faith in requirements contracts.

The court held that the dispute involved contested facts and credibility issues that could not properly be resolved on an application record.

The court further noted that the law relating to good faith and requirements contracts was developing and that a fuller evidentiary record was necessary.

The application was therefore converted into an action.

The appellant appealed an Ontario Court of Justice order made after an uncontested family trial that imputed income to him and required payment of child support, while the respondent brought a cross‑appeal seeking retroactive child support and full indemnity costs.

The appellate court found that the uncontested trial proceeded without proper service or notice to the appellant despite an upcoming scheduled hearing and unresolved disclosure issues.

The court held that fundamental procedural fairness requires that a litigant receive notice and an opportunity to be heard before a final order affecting legal rights is made.

Because the order was obtained ex parte without justification, it was set aside and the matter directed to proceed to trial.

Interim support and disclosure orders were imposed to move the matter forward.

Following a successful application concerning the disposition of funds held in trust, the court addressed the costs payable to a responding party that had been unsuccessful on the merits but was entitled to costs under the terms of the earlier order.

The party sought costs on a substantial indemnity basis or alternatively on a partial indemnity basis, while the opposing party argued that only partial indemnity costs were appropriate and challenged the hourly rates claimed.

The court held that substantial indemnity costs were not justified but accepted the reasonableness of the partial indemnity hourly rates claimed.

However, the total amount sought was considered higher than the reasonable expectations of the party exposed to the costs award.

The court therefore fixed an all-inclusive costs award on a reduced partial indemnity basis.

The moving parties in a proposed securities misrepresentation class proceeding sought court approval of a third‑party litigation funding agreement prior to certification.

The proposed agreement provided that the funder would pay certain disbursements and indemnify the plaintiffs against adverse costs in exchange for a capped commission from any settlement or judgment.

The court considered the developing law on litigation funding, including concerns about champerty and maintenance, and confirmed that such agreements are not categorically unlawful but require judicial approval.

Finding that the agreement preserved counsel’s independence, protected defendants through security for costs, and promoted access to justice, the court approved the funding arrangement.

The plaintiff brought a motion to enforce an alleged settlement arising from a dispute between joint investors in a Toronto property held partly in trust.

The moving party argued that email exchanges and communications between the parties and their lawyers confirmed an agreement for the purchase of the respondent’s interest for $97,000.

The court held that the correspondence demonstrated ongoing negotiations rather than a concluded agreement and that the parties intended any settlement to be formalized through a written agreement of purchase and sale.

Essential terms—including refinancing the mortgage, discharge of liability, and a closing date—remained unresolved.

The court concluded that no binding settlement had been reached and dismissed the motion.

The plaintiff moved for summary judgment to recover amounts allegedly owed under advertising contracts for the use of two billboard locations.

The defendants resisted and brought a cross-motion seeking summary judgment dismissing claims for fraudulent and negligent misrepresentation, breach of collateral warranty, and an oppression remedy.

The court held that although the plaintiff established unpaid invoices, the defendant’s equitable set-off defence arising from alleged misrepresentation regarding rights to a billboard location created a genuine issue requiring a trial.

However, the court found no genuine issue requiring trial on the plaintiff’s tort and oppression claims and granted summary judgment dismissing those claims.

The matter proceeds to trial on the contractual dispute and equitable set-off issues.

The plaintiff brought a motion for summary judgment seeking payment of $45,000 arising from a taxi licence sale transaction handled by the defendant, a lawyer.

The defendant cross-moved for dismissal, arguing he acted as a gratuitous bailee and that the plaintiff's claim was barred by the doctrine of ex turpi causa due to alleged tax avoidance.

The court weighed credibility under Rule 20.04 of the Rules of Civil Procedure and found the defendant’s evidence unreliable while accepting the plaintiff’s account.

The court held the defendant was acting as counsel in the transaction and was obligated to account for purchase funds that he failed to remit.

The defences of bailment and illegality were rejected, and summary judgment was granted to the plaintiff.

In a proposed securities class action concerning alleged misrepresentations in the prospectus and registration statement for a July 2010 initial public offering, the plaintiff sought court approval to discontinue the action against several underwriter defendants.

Approval was required under s. 29 of the Class Proceedings Act, 1992.

The discontinuance followed a standstill agreement that allowed the claims to be discontinued without costs while tolling limitation periods and preserving the plaintiffs’ ability to revive claims if recovery from vendor defendants became materially less likely.

The court found the discontinuance would not prejudice the proposed class and could reduce litigation costs and potential adverse costs exposure.

Approval was granted and leave was also granted to deliver a Fresh as Amended Statement of Claim.

The defendant employer brought a motion for summary judgment seeking dismissal of a wrongful dismissal action, arguing that an employment agreement limiting termination compensation was enforceable.

The employee resisted the motion relying on the changed substratum doctrine, asserting that promotions and increased responsibilities had fundamentally altered the employment relationship and nullified the contractual notice limitation.

The court held that, although the doctrine had not been expressly pleaded, the pleadings and affidavit evidence raised the issue sufficiently for the purposes of the motion.

Applying the summary judgment framework, the court found that genuine issues requiring a trial existed regarding whether the employee’s responsibilities and status had materially changed.

The motion for summary judgment was dismissed and the action was permitted to proceed to trial.

In a proposed class action alleging a conspiracy among DRAM manufacturers to fix prices, the plaintiffs brought a motion to certify the action for settlement purposes against one defendant following a settlement agreement.

The settlement required the defendant to pay $5.75 million for the benefit of class members in Ontario, British Columbia, and Québec.

The court considered the certification requirements under s. 5(1) of the Class Proceedings Act, 1992 and determined that the criteria for certification were satisfied.

The court also approved the proposed notice and notice plan, which aligned with a similar approval in British Columbia.

The motion was unopposed and the orders were granted as requested.

The plaintiff moved on the eve of trial for leave to amend its statement of claim and to add a new defendant alleged to have perpetrated a fraud involving a mortgage loan and bank draft transaction.

The proposed amendments also sought to introduce new allegations of conspiracy and fraud against existing defendants.

The court held that while the proposed new defendant was a proper and potentially necessary party to the litigation, the amendments asserting conspiracy against the existing defendants constituted new causes of action that were statute‑barred and inadequately pleaded.

The court permitted joinder of the new defendant with limited amendments alleging direct fraud but refused the broader conspiracy amendments against the existing defendants.

The motion was therefore granted only in part.