Peter H. Griffin

The appellant commenced an action against the respondents for default in payment of fees.

One of the respondents successfully moved to stay the action under s. 7 of the Arbitration Act, 1991, with the motion judge applying the competence-competence principle to defer the jurisdictional issue to the arbitrator.

The appellant appealed the stay.

The Court of Appeal dismissed the appeal, holding that the competence-competence principle applies to the Arbitration Act, 1991, and that s. 7(6) of the Act bars an appeal from a decision granting a stay on the basis that the arbitrator should determine their own jurisdiction.

The applicants brought a motion for the production of documents subject to solicitor-client privilege relating to the negotiation of a tax indemnification provision in an agreement.

The applicants sought rectification of the agreement, arguing the parties had a common understanding that was mistakenly omitted.

The respondent relied on affidavits from its principal and its former legal counsel to assert its intention regarding the provision.

The court held that by relying on these affidavits, which implicitly put the respondent's state of mind and legal advice in issue, the respondent had waived solicitor-client privilege.

The court ordered reciprocal disclosure of all solicitor-client communications relating to the negotiation of the agreement.

The appellant, MasterCard, sought to stay an Ontario action brought by the respondent, Aldo, on the basis of a New York forum selection clause contained in agreements to which Aldo was not a party.

Aldo's claims arose from a cybercrime attack and subsequent data security assessments imposed by MasterCard and collected by Moneris.

The Court of Appeal upheld the motion judge's decision dismissing the stay, finding that Aldo's claims were direct tort claims rather than subrogated contractual claims.

The Court declined to apply the 'closely related' doctrine to bind Aldo to the forum selection clause, as it was not foreseeable that the clause would apply to its claims.

The appellants appealed a partial summary judgment that found a shotgun buy-sell offer valid and enforceable despite minor non-compliance with the partnership agreement.

The offer contained two alternatives, one compliant and one non-compliant.

The Court of Appeal held that strict compliance with a shotgun buy-sell provision is required, but strict compliance is not perfect compliance.

The inclusion of a non-compliant alternative did not render the offer unenforceable because a compliant alternative was also included.

The court upheld the motion judge's decision to enforce the compliant alternative and award damages for the non-compliant elements.

Following certification of a class proceeding alleging unpaid overtime by investment advisors, the court determined the appropriate costs award arising from the certification motion.

The plaintiff sought $575,000 in partial indemnity costs while the defendant argued the award should not exceed $315,000.

The court outlined a structured methodology for certification-motion costs awards emphasizing transparency, historical averages, proportionality, and the Rule 57.01(1) factors.

After reducing the claim for excess fees and disbursements and considering historical cost award data and comparable cases, the court fixed costs at $290,000 all-inclusive payable by the defendant to the plaintiff.

The applicants moved for the appointment of an Inspector as receiver/manager over 31 jointly owned commercial real estate corporations.

The court found significant evidence of oppressive conduct by the respondents, including the unauthorized placement of mortgages, misappropriation of funds for personal use, co-mingling of bank accounts, and failure to maintain proper books and records.

Concluding that the applicants' interests required protection and that the respondents had breached their contractual obligations, the court held it was just and convenient to appoint the receiver/manager.

Following certification of a class action concerning an allegedly negligent tax opinion related to a timeshare charitable donation program, the court was required to determine costs of the certification motion after the Court of Appeal reversed the motion judge and certified the action.

The plaintiff sought more than $355,000 including substantial indemnity costs based on an unaccepted offer to settle.

The court rejected substantial indemnity costs, finding the offer tactical and unlikely to be accepted given a serious limitation defence.

Exercising discretion, the court awarded partial indemnity costs totaling $298,582.71, with $150,000 payable in the cause and the remainder payable forthwith.

No costs were ordered against certain third parties who had limited participation in the certification motion.

Cross-motions arose from disputes between joint investors in multiple commercial real estate development projects.

The respondents sought a stay of the applicants’ claims in favour of arbitration based on a mediation/arbitration clause in the project agreements.

The court held that the arbitration clause was narrowly drafted and applied only to disagreements regarding management and completion of projects, not to alleged breaches of express contractual provisions.

Evidence suggested unauthorized refinancing, diversion of funds, and failure to provide required financial reporting.

The court declined to stay the action, appointed an inspector under s. 161 of the Ontario Business Corporations Act to investigate the affairs of the owner corporations, and granted injunctive relief enforcing contractual restrictions on property dealings.

The appellant appealed a summary judgment order regarding the ownership of assets.

The Court of Appeal found no error in the motion judge's conclusion, based on pleadings, correspondence, and subsequent conduct, that the parties intended to hold the assets 50% for each other regardless of legal ownership.

The appeal was dismissed with costs fixed at $11,000.

In CCAA proceedings involving the Nortel group, the joint administrators of certain European, Middle Eastern, and African debtor entities brought a motion under Rule 30.10 of the Rules of Civil Procedure seeking production of documents from a non‑party accounting firm relating to transfer pricing arrangements and intellectual property development.

The court reviewed the governing principles for non‑party production, including the requirement that such orders be granted only in exceptional circumstances and where it would be unfair to require the moving party to proceed to trial without the documents.

The court found that many of the requested documents had already been communicated to the client and were likely produced through existing discovery processes.

For documents not communicated to the client, the moving party failed to demonstrate their importance or any evidentiary gap justifying exceptional production.

The court concluded that proceeding to trial without the requested materials would not be unfair and dismissed the motion with costs.

The defendant brought a motion seeking production of invoices issued by the plaintiff to a third party for consulting services during a period when the plaintiff was also billing the defendant.

The plaintiff resisted production on the basis that the documents were irrelevant and not within his possession or control.

The court held that the requested invoices had potential relevance to the interpretation of the parties’ contractual billing arrangement and could inform whether the plaintiff customarily billed on a fixed-fee basis.

The court concluded that, had the documents remained in the plaintiff’s possession, they would have been producible and directed that the plaintiff not object to the third party producing the documents.

Costs were reserved to the trial judge but fixed at $3,000.

The plaintiff, a former investment advisor, sought to certify a class action against his former employer for unpaid overtime under the Employment Standards Act.

The employer argued that investment advisors fall within the managerial or greater benefit exemptions.

The court found that the plaintiff met all five prerequisites for certification under section 5(1) of the Class Proceedings Act, 1992, including that the applicability of the exemptions could be determined as common issues.

The motion for certification was granted.

The plaintiff, a former investment advisor, sought to certify a class action against the defendant for unpaid overtime under the Employment Standards Act.

The defendant argued that investment advisors were exempt from overtime provisions due to their managerial character or because their compensation provided a greater benefit.

The court found that the plaintiff met all five prerequisites for certification under s. 5(1) of the Class Proceedings Act, 1992, including that the applicability of the exemptions could be determined as common issues.

The motion for certification was granted.

The applicants moved to remove Davies Ward Phillips & Vineberg LLP as counsel for a corporation involved in a shareholder dispute.

The court considered whether a unanimous shareholders’ agreement required unanimous director approval for the law firm’s retainer and whether conflicts of interest existed under the Business Corporations Act and common law principles.

The court held that the applicant director was conflicted regarding the company’s defence of litigation he initiated and therefore unanimity was not required for that retainer.

However, the court found the law firm’s concurrent involvement in both litigation against the director and negotiations with a third party supplier created a practical and legal conflict affecting corporate advice.

The retainer relating to the negotiations was therefore improper.

The moving parties (class action plaintiffs) brought a motion to quash appeals filed by the respondent objectors.

The court found that the appellants did not have a right of appeal under s. 30(3) of the Class Proceedings Act because they were not parties to the class proceeding.

Furthermore, they did not meet the requirements of s. 30(5) as they had not obtained leave to act as a representative party for an appeal from a judgment on common issues or an aggregate assessment.

The appeals were quashed and the motion to act as representative plaintiff was dismissed.

The appellant former directors and officers of Look Communications Inc. sought advance funding for their legal costs to defend an action brought against them by the corporation for breach of fiduciary duty.

The corporation resisted the claims under s. 124(4) of the Canada Business Corporations Act, arguing the appellants had not acted in good faith.

The application judge refused advance funding, finding the corporation had established a strong prima facie case of bad faith regarding equity cancellation payments and legal retainers.

The Court of Appeal dismissed the appeal, confirming that s. 124(4) applies to actions brought by the corporation and that the strong prima facie case standard is the appropriate test for denying advance funding.

Invesco sought leave to appeal orders sanctioning a Plan of Compromise and Reorganization under the CCAA and approving a settlement that released Ernst & Young LLP from claims arising from its auditing of Sino-Forest Corporation.

The Court of Appeal denied leave, finding that the proposed appeals failed to meet the stringent test for leave in CCAA proceedings.

The appeal of the Sanction Order was moot, and the issues regarding the third-party release in the Settlement Order were governed by the court's prior decision in ATB Financial.

This is a costs endorsement following an appeal.

The Court of Appeal ordered no costs of the appeal against the third party.

The costs of the certification motion were remitted to the motion judge to be dealt with in light of the Court's reasons.

The respondent was ordered to pay the appellant's costs of the appeal on a partial indemnity basis in the amount of $50,000 for fees and $10,000 for disbursements, plus applicable taxes.

In a national class action by terminated GM dealers against GMCL and their counsel, Cassels Brock & Blackwell (CBB), CBB brought third party claims against out-of-province local lawyers who provided independent legal advice to the dealers.

The out-of-province third parties brought motions to stay or dismiss the claims for lack of jurisdiction or forum non conveniens.

The court dismissed the motions, finding that the Ontario court had jurisdiction under the fourth Van Breda presumptive connecting factor because the Wind-Down Agreements, which required the independent legal advice, were made in Ontario and were sufficiently connected to the dispute.

The court also found Ontario to be the most appropriate forum.

The defendant insurer brought a motion to stay a civil action on the basis that the dispute was subject to an arbitration agreement under a broker/agent agreement.

The plaintiff argued it was not a party to the arbitration agreement, having signed only a later addendum for limited purposes.

The court applied the principle that where it is arguable a dispute falls within an arbitration agreement, the matter should be referred to arbitration and the arbitral tribunal should determine jurisdiction.

The court found it was arguable that the plaintiff had become a party to the underlying agreement and its arbitration clause through the addendum and its own pleadings alleging breach of that agreement.

The action against the moving defendant was therefore stayed in favour of arbitration.