Peter Frederick Cowan Howard

The court addressed two pretrial motions: one seeking to stay a counterclaim based on abuse of process due to delayed disclosure of a cooperation agreement, and another seeking leave for third-party discovery.

The motion to stay was dismissed, as the immediate disclosure rule for settlement agreements was found not to apply to agreements with non-parties.

The motion for third-party discovery was granted, with the court finding the non-party's evidence critical and that the cooperation agreement constituted a constructive refusal to provide information, making a pretrial examination necessary for trial fairness.

The plaintiffs sought to enforce an "Outline of Terms of Settlement" reached during mediation, arguing it constituted a binding agreement.

The defendants contended that the Outline was not intended to be enforceable and lacked essential terms.

The court found that the Outline did not objectively reflect a mutual intention to create a binding agreement and that numerous material issues, including debt reallocation, minority shareholder rights, and tax implications of asset transfers, remained unresolved.

The court dismissed the motion, emphasizing that it cannot create a contract for parties where essential terms are missing.

The Plaintiffs (Bondfield Construction Company Limited and Zurich Insurance Company Ltd.) brought a motion to stay summary judgment motions initiated by PricewaterhouseCoopers LLP (PwC) in complex professional negligence actions against auditors, which also involved significant fraud allegations and discoverability issues.

The court, acting as case management judge, granted the stay, determining that full documentary and oral discoveries were essential to ensure a fair and efficient process.

The decision highlighted the complexity of the case, the substantial damages sought, the allegations of long-standing fraudulent activities, and the potential for inconsistent findings if the summary judgment motions proceeded on a limited record.

The court emphasized the flexibility of judges in case-managed matters and the necessity of a comprehensive record for a just adjudication of limitation period issues.

The defendants in two related actions sought orders to compel the plaintiffs, Andrew Stronach and Selena Stronach, to undergo medical examinations to assess their mental capacities for the purpose of determining if litigation guardians were required.

The court dismissed the motion against Selena Stronach, finding insufficient evidence to rebut the presumption of capacity.

The motion against Andrew Stronach was dismissed without prejudice, as the court found it premature and suggested other discovery avenues should be pursued first.

The court also declined to order production of video recordings of Andrew's examination for discovery.

The appellants appealed a motion judge's decision striking out portions of their statements of defence.

The impugned pleadings referred to documents and communications from a judicial mediation, which the motion judge found were prima facie protected by settlement privilege.

The Divisional Court dismissed the appeal, holding that the motion judge correctly applied Rule 25.11 of the Rules of Civil Procedure.

The court affirmed that the respondents had not waived settlement privilege and that the justice of the case did not require an exception to allow the appellants to plead the privileged information to defend against breach of fiduciary duty claims.

The moving parties sought leave to appeal from the decision of Cavanagh J. dated August 26, 2021.

The Divisional Court granted the motions for leave to appeal and awarded costs in the agreed amount of $20,000 payable by the responding parties.

A case management teleconference was scheduled to settle a schedule for the exchange of appeal materials and to schedule an expedited appeal date.

The plaintiffs, Andrew and Selena Stronach, brought motions to strike out portions of the defendants' Fresh as Amended Statements of Defence under Rule 25.11 of the Rules of Civil Procedure.

The plaintiffs argued that the impugned pleadings improperly referenced documents and communications that were subject to settlement privilege arising from a confidential judicial mediation.

The defendants argued that the plaintiffs had waived privilege or that an exception applied based on the justice of the case.

The court found that the mediation was subject to settlement privilege, the plaintiffs had not waived the privilege, and no exception applied.

The court granted the motions to strike the pleadings relating to the mediation.

The court also struck out portions of one defendant's pleading as scandalous, but dismissed a motion to require another defendant to reinstate a withdrawn admission.

The plaintiff brought a motion to certify a class action against Toyota for settlement purposes regarding defective Takata airbag inflators.

The court reviewed the five-part test under section 5 of the Class Proceedings Act, 1992, noting that the criteria may be less rigorously applied in a settlement context.

Finding that all criteria were satisfied, the court granted the motion, certified the action for settlement purposes, and approved the notice plan and appointment of administrators.

This appeal concerns an auditor's liability action arising from the Bernard Madoff Ponzi scheme.

The appellants, three Fairfield feeder funds incorporated in the British Virgin Islands, invested in Madoff's company and suffered losses when the fraud was revealed in December 2008.

The funds sued PricewaterhouseCoopers for breach of contract and negligence in auditing their financial statements for 2006 and 2007, claiming damages of approximately $2.5 billion.

The motion judge granted summary judgment dismissing the action on the basis that no damages were suffered, applying the Livent damages methodology.

The appellants appealed on five grounds, all involving findings of fact or mixed fact and law regarding the calculation of damages.

The Court of Appeal dismissed the appeal, finding no palpable and overriding errors in the motion judge's analysis.

The plaintiff sought leave to bring a statutory misrepresentation class action under Part XXIII.1 of the Securities Act against MDC Partners Inc. and its former executives.

The plaintiff alleged that the defendants made material misrepresentations by failing to disclose an SEC subpoena, an internal investigation into executive expenses, and other accounting issues.

The court dismissed the motion for leave, finding that none of the alleged omissions or misstatements were material facts that would have significantly altered the total mix of information available to a reasonable investor, particularly given that the company's auditors never withdrew their clean audit opinions or required a restatement of financial statements.

In a negligence appeal arising from an auditor’s failure to detect corporate fraud, the Court applied the Anns/Cooper framework to pure economic loss claims for negligent misrepresentation and negligent performance of a service.

The Court held that liability must be confined to losses that fall within the purpose of the defendant’s undertaking and the plaintiff’s reasonable reliance.

It found no recoverable loss tied to services provided for investment solicitation, but upheld liability for losses flowing from a negligent statutory audit prepared for shareholder oversight.

The appeal was allowed in part, and damages were reduced to reflect only losses causally connected to the statutory audit.

The plaintiff brought a proposed class action for secondary market misrepresentation against the defendants under the Ontario Securities Act and common law.

The defendants brought motions to restrict the class to Canadians who purchased shares on the TSX, arguing that the Ontario court was forum non conveniens for Canadians who purchased on NASDAQ, and that American law should apply to those claims.

The court dismissed the motions, finding that the defendants failed to show that the U.S. was a clearly more appropriate forum, and that the statutory cause of action under the Ontario Securities Act applies extra-territorially to Canadian purchasers on foreign exchanges.

Class counsel brought a motion for approval of their legal fees and disbursements following the settlement of a securities class proceeding for $29.5 million.

Counsel sought $5.9 million in fees based on a contingency agreement.

The court reviewed the factors for approving class counsel fees, noting the early settlement and the high hourly rates docketed.

The court reduced the requested fee, approving $2.775 million plus HST as fair and reasonable compensation for the risk assumed and results achieved, along with full recovery of disbursements.

The plaintiff moved for approval of a $29.5 million settlement in a securities class action against the defendants for alleged misrepresentations in continuous disclosure documents regarding mortgage origination practices.

The settlement also resolved a companion Ontario Securities Commission proceeding.

The court found the settlement fair, reasonable, and in the best interests of the class, noting the significant litigation risks, the complex damages calculations, and the immediate business implications for the corporate defendant.

The court also approved the Distribution Protocol, Notice Plan, and Claim Form, with minor modifications to extend the deficiency rectification period.

The defendants, an auditing firm, brought a motion for summary judgment to dismiss a $5 billion negligence claim arising from their audits of feeder funds that invested in the Bernard Madoff Ponzi scheme.

The plaintiffs alleged that the auditors failed to discover the fraud, causing the funds to remain invested and suffer massive losses.

The court granted summary judgment, finding that the plaintiffs failed to prove any damages.

Applying the plaintiffs' own damages formula, the court concluded that the funds actually benefited from the delayed discovery of the fraud due to net withdrawals and the exclusion of fictitious profits and unasserted liabilities.

In a certified class proceeding regarding a franchise dispute, the plaintiff sought to bring a motion for partial summary judgment on the issue of whether the defendant was a franchisor under the Arthur Wishart Act.

The defendant opposed, arguing that all issues should proceed to the scheduled common issues trial.

The court held that permitting a partial summary judgment motion would not be proportionate, expeditious, or cost-effective, as it risked creating multiple final judgments and appeal routes.

The court exercised its power under section 12 of the Class Proceedings Act to prohibit the plaintiff from proceeding with the motion, directing that all issues be determined at the common issues trial.

The applicants, leading designers and manufacturers of sports equipment, applied for protection under the Companies' Creditors Arrangement Act (CCAA) due to a liquidity crisis.

The court granted the Initial Order, approving DIP financing facilities, payment of pre-filing amounts to critical suppliers, and the continued use of a transfer pricing model.

The court also approved an administrative charge, but limited it to exclude fees for US Chapter 11 proceedings or class action defense, and approved an intercompany charge to protect Canadian creditors.

The appellants appealed decisions of the Ontario Securities Commission finding that they engaged in insider trading after receiving material non-public information from an administrative assistant at an investment bank.

The Commission relied on circumstantial evidence, including the proximity of telephone calls to highly profitable trades.

The Divisional Court dismissed the appeals, holding that the Commission's inferences were reasonable and that the use of compelled examination transcripts was procedurally fair.

The Court also upheld the sanctions, which included trading bans, administrative penalties, and disgorgement orders.

The applicant sought leave to appeal an order dismissing his motion for interim possession of an Irish sport horse.

The parties had a dispute over the ownership of the horse, with the applicant claiming sole ownership and the respondent claiming a one-third interest based on a partnership agreement.

The motions judge had dismissed the interim possession motion due to competing credibility issues that needed to be resolved at trial.

The Divisional Court dismissed the motion for leave to appeal, finding no conflicting decisions or reason to doubt the correctness of the motions judge's order.

The appellants brought a motion to stay a trial judgment of $84.75 million and a subsequent appellate order pending their application for leave to appeal to the Supreme Court of Canada.

The court applied the RJR-MacDonald test, finding that the proposed appeal raised serious issues of public importance regarding an auditor's duty of care.

The court found that immediate enforcement of the judgment would cause irreparable harm and that the balance of convenience favoured the appellants, who had offered acceptable security for the judgment through liability insurance and currency hedge contracts.

The motion for a stay was granted.