Peter Griffin

In a certified class action arising from the termination of automobile dealerships following the 2009 automotive industry restructuring, the plaintiff brought a Rule 30 motion seeking production of documents withheld on the basis of solicitor‑client privilege by a non‑party dealers’ association.

The court reviewed 211 disputed documents in camera to determine whether they constituted privileged legal advice or merely legal information.

Applying the distinction between general legal information and particularized legal advice concerning rights, duties, or liability, the court found that many communications concerned general information about potential bankruptcy proceedings under the CCAA rather than legal advice.

Of the documents reviewed, 60 were held to be privileged while the remainder were ordered produced.

The decision clarifies the analytical distinction between legal advice and legal information for purposes of solicitor‑client privilege in document production disputes.

Following the dismissal of two Rule 30 motions brought by the defendants seeking production of allegedly privileged documents in a certified class proceeding, the court determined the appropriate costs award.

Although the court agreed that solicitor-client privilege had been expressly waived during cross-examinations, the motions were dismissed because the legal advice received by an individual class member was irrelevant to the certified common issues.

On the costs issue, the court rejected the defendants’ submission that success was divided and held that the responding party was substantially successful.

Applying the factors in Rule 57.01(1) and the guidance from the Court of Appeal in Boucher, the court fixed a fair and reasonable costs award below the amount claimed.

Costs of $20,000 all-inclusive were awarded to the responding party, divided equally between the two defendants.

In a certified class action involving former automobile dealers whose franchises were terminated during the 2009 automotive industry restructuring, the defendants sought production of documents relating to legal advice the representative plaintiff received from its own lawyer when signing wind‑down agreements.

The moving parties argued that solicitor‑client privilege had been waived and that the advice was relevant to issues such as causation and damages.

The court held that although privilege regarding advice about the wind‑down agreement had been expressly waived during earlier cross‑examination, relevance for discovery in a class proceeding prior to the common issues trial is confined to the certified common issues.

Because the certified issues focused on the defendants’ conduct under provincial franchise legislation and alleged professional duties, and did not require examination of the individual legal advice received by class members, the requested documents were not relevant at this stage.

The motions to compel production were therefore dismissed.

In CCAA restructuring proceedings, shareholder class action plaintiffs sought to limit the scope of a stay of proceedings so that certification, leave, and amendment motions in related Ontario and Quebec securities class actions could proceed against auditors, underwriters, and former directors.

The court applied the established test for lifting a CCAA stay, considering relative prejudice, balance of convenience, and the merits.

Given the pending appeal concerning whether shareholder claims constituted “equity claims” under the Companies’ Creditors Arrangement Act and the imminent creditor meeting regarding a proposed plan of arrangement, the court found that maintaining the stay temporarily would avoid prejudice and promote orderly proceedings.

The court held that the balance of convenience favoured maintaining the stay so that the auditors and underwriters could focus on the appeal and restructuring process.

The motion to limit the stay was dismissed without prejudice to renewal after the creditor meeting.

In a CCAA proceeding, the Applicants (Hollinger Inc. et al.) sought approval of settlement agreements with their former auditors (KPMG) and lawyers (Torys).

The Non-Settling Defendants, including Conrad Black and David Radler, opposed the settlements, arguing the court lacked jurisdiction and that the included third-party releases and bar orders would deprive them of procedural rights to discovery.

The court held it had jurisdiction under the CCAA to manage litigation as a corporate asset.

The court approved the Pierringer-style settlements, finding that the procedural rights of the Non-Settling Defendants could be adequately protected through active case management and the application of the principle of proportionality in discovery.

The plaintiff brought a motion to approve a settlement of a representative action under Rule 10.01(3) of the Rules of Civil Procedure concerning governance and alleged improprieties in transactions involving the outsourcing and reassumption of real estate asset management by a pension plan.

After extensive litigation, mediation, documentary disclosure, and a neutral fact‑finding process, a report concluded that the transactions were commercially reasonable and that no wrongdoing occurred, although transparency concerns had arisen.

The settlement recognized governance reforms implemented during the litigation and provided for dismissal of the action with reimbursement of the representative plaintiff’s legal costs.

Applying principles analogous to settlement approval under the Class Proceedings Act, the court found the settlement fair, reasonable, and in the best interests of the represented persons.

The settlement was approved and the action dismissed.

In CCAA proceedings, the applicant sought an order declaring that shareholder class action claims alleging losses from the purchase or sale of its securities constituted “equity claims” under s. 2 of the Companies’ Creditors Arrangement Act.

The applicant also sought a determination that indemnity and contribution claims advanced by auditors and underwriters in relation to those shareholder actions were likewise equity claims.

The court held that shareholder claims alleging losses from trading in the company’s securities fall squarely within the statutory definition of equity claims and are subordinated to creditor claims.

Indemnification and contribution claims arising from those shareholder actions were also characterized as equity claims because their nature derives from the underlying shareholder claims.

However, the court left open the possibility that claims for defence costs might not necessarily be equity claims depending on the outcome of the underlying litigation.

Following a complex insurance dispute involving alleged arson and the destruction of artwork, the court determined the appropriate costs payable by the insurer to the plaintiff after two trials.

The court reviewed legal fees from multiple law firms and reduced several claimed amounts where work was unrelated to the litigation or where hourly rates were excessive for counsel’s level of experience.

Expert witness fees for an appraisal report valuing destroyed artwork were also scrutinized, with the court reducing the claimed preparation time and attributing only two‑thirds of the report’s cost to the litigation because part of the work related to the insurance proof of loss requirement.

The court rejected a claim for contractual interest of 2% per month on the expert’s fees but awarded prejudgment interest at the average annual statutory rate.

The defendant’s partial success on a punitive damages claim did not justify a reduction in the plaintiff’s costs.