Peter R. Jervis

The plaintiffs in a certified class proceeding alleging secondary market misrepresentation brought a motion for the production of documents from the defendant SNC, including a Negotiated Resolution Agreement between SNC and the World Bank regarding bribery allegations.

The court dismissed the motion, finding that the documents were protected by settlement privilege.

The court held that the World Bank's sanctions procedures constituted 'litigation' for the purposes of the privilege, that the communications were intended to be confidential, and that their purpose was to effect a settlement.

The court declined to create a public policy exception to the privilege and found no waiver of the privilege by SNC.

The appellants, representing members of a church congregation who voted to leave the Anglican Diocese of Huron due to theological differences, appealed a trial decision declaring that the diocese held the church property and a charitable foundation in trust for the static parish, not the departing members.

The Court of Appeal dismissed the appeal, affirming that 'parish' refers to a static entity that continues in perpetuity regardless of changes in membership, and that the departing members could not take the property with them.

The Court also allowed the diocese's cross-appeal on costs, finding that the costs judge erred in ordering each party to bear its own costs to promote harmony, and awarded $100,000 in costs to the diocese.

Following dismissal of a motion seeking to have the respondent held in contempt of a prior court order concerning possession and transport of a killer whale, the court was required to determine costs.

Both parties sought substantial or full indemnity costs exceeding $250,000, with the moving party also claiming significant U.S. legal fees incurred in related foreign litigation.

The court reaffirmed that the successful party on a contempt motion is presumptively entitled to costs but retains discretion to depart from that result where warranted.

The court declined to award costs against the successful responding party or deny it costs, finding the moving party had failed to meet the high burden of proving contempt beyond a reasonable doubt but had nonetheless brought the motion reasonably.

Costs were awarded to the respondent on a partial indemnity basis in the amount of $100,000 inclusive of disbursements and tax.

The defendants moved to dismiss the plaintiff's action for abuse of process and breach of a court order requiring attendance at discovery and production of documents, or alternatively to strike a notice on title and compel further productions.

The plaintiff cross-moved to extend the time for discovery after his visa to enter Canada was refused.

The Master found the plaintiff's failure to attend discovery was explained and his document production, while deficient, showed substantial compliance.

The Master dismissed the motion to dismiss the action and the motion to strike the notice on title, finding no abuse of process and lacking jurisdiction to strike the notice.

The plaintiff was granted an extension for discovery but ordered to post security and provide a further and better affidavit of documents.

The plaintiffs sought leave under Part XXIII.1 of the Securities Act and certification of a proposed class proceeding alleging secondary market misrepresentation by a public issuer and its directors and officers in continuous disclosure documents.

They also requested approval to discontinue common law negligent misrepresentation and oppression remedy claims in favour of the statutory cause of action.

The court held that the plaintiffs met the statutory leave test by demonstrating good faith and a reasonable possibility of success at trial.

It further concluded that discontinuance of the common law and oppression claims would not prejudice class members because the statutory claim avoided reliance issues and certification difficulties.

The action was certified as a class proceeding, with identifiable class members, common issues, and a preferable procedure established.

The moving parties brought a motion to quash a motion for leave to appeal from a decision of the Divisional Court.

The Divisional Court had previously set aside an order finding a violation of the Municipal Conflict of Interest Act.

The Court of Appeal held that under sections 11(2) and 15 of the Municipal Conflict of Interest Act, the decision of the Divisional Court is final and there is no right of appeal to the Court of Appeal.

The motion for leave to appeal was quashed.

The plaintiffs sought leave under s. 138.3 of the Securities Act and certification under the Class Proceedings Act to pursue a class action against CIBC and its senior officers for alleged secondary market misrepresentations concerning CIBC's exposure to the U.S. residential mortgage market.

The court found that the plaintiffs met the test for leave and certification for the statutory claim.

However, applying the Court of Appeal's recent decision in Sharma v. Timminco Limited, the court held that the statutory claim was time-barred because leave was not obtained within the three-year limitation period under s. 138.14 of the Securities Act.

Consequently, both motions were dismissed.

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.

The appellant commenced a proposed class action asserting a statutory cause of action under s. 130 of the Securities Act for misrepresentations in a prospectus.

The motion judge found the claim was barred by the limitation period in s. 138 of the Securities Act and was not saved by the suspension of limitation periods in s. 28 of the Class Proceedings Act.

The Court of Appeal upheld the decision, finding that a prior class action appeal did not encompass the s. 130 claim, meaning the suspension of the limitation period ended when the time to appeal the dismissal of that specific claim expired.

The plaintiffs brought a proposed class action against mutual fund managers for permitting market timing, which allegedly caused losses to long-term investors.

The defendants had previously entered into settlement agreements with the Ontario Securities Commission (OSC) regarding the same conduct.

The motion judge dismissed the certification motion, finding the OSC proceedings were the preferable procedure.

The Divisional Court allowed the plaintiffs' appeal.

The Court of Appeal dismissed the defendants' appeal, holding that the OSC proceedings were regulatory and lacked participatory rights for investors, and therefore did not fulfill the access to justice goals of the Class Proceedings Act.

The class action was deemed the preferable procedure.

The respondent loaned a killer whale to the appellant under a Breeding Loan Agreement.

The respondent later gave notice to terminate the agreement, but the appellant refused to return the whale, arguing the termination right was qualified by a prior Interchange Agreement and extrinsic evidence.

The application judge found the Breeding Loan Agreement was a clear, unambiguous, stand-alone contract permitting termination without cause.

The Court of Appeal upheld this decision, finding no ambiguity that would allow the admission of extrinsic evidence and concluding the termination provision was not commercially unreasonable.

The appellants appealed a trial judgment that found them liable for a $15,653 breach of contract committed by the main defendant, Nicholas Bulut, and awarded substantial indemnity costs against all defendants without hearing submissions.

The Divisional Court allowed the appeal, finding no legal basis in contract, corporate veil piercing, or unjust enrichment to hold the other defendants liable for Nicholas Bulut's breach.

The Court also set aside the trial judge's costs award due to a breach of procedural fairness and natural justice, as the trial judge refused to hear submissions.

The Court substituted its own costs order, awarding the appellants partial indemnity costs from the date of their Rule 49 offer to settle.

The appellants, minority shareholders of Asbestos Corporation Limited, commenced an action in Ontario in 1987 for an oppression remedy and other relief following the takeover of the corporation by the Province of Quebec.

The appellants did not pursue the Ontario action until 2003, after exhausting five other proceedings in different forums.

The motion judge dismissed the action for delay and, in the alternative, stayed it on the basis of forum non conveniens and abuse of process.

The Court of Appeal upheld the motion judge's decision, finding no error in her conclusions that the delay was inexcusable, Quebec was the more appropriate forum, and the attempt to relitigate issues already decided elsewhere constituted an abuse of process.

The appellants brought a class action for prospectus misrepresentation under s. 130(1) of the Ontario Securities Act.

The respondent company made an initial public offering with a prospectus containing a sales forecast.

Before the offering closed, internal analysis showed sales lagging due to unseasonably warm weather, but this was not disclosed.

The Supreme Court of Canada held that the company had no obligation to disclose the intra-quarterly results because they did not amount to a 'material change' under the Act.

The Court also held that the Business Judgment Rule does not apply to statutory disclosure obligations.

The appeal was dismissed with costs.

The applicant, an intervener in the court below, brought a motion to be added as a party under Rule 18(5) of the Rules of the Supreme Court of Canada in order to seek leave to appeal.

The underlying judgment declared that a child could have three parents.

None of the original parties or the Attorney General sought to appeal the decision.

The Supreme Court of Canada dismissed the motion, holding that the applicant lacked a specific personal interest in the outcome of the litigation and failed to meet the test for public interest standing.

The appellants obtained loans from the respondent financial institutions to purchase mutual funds based on the advice of their financial advisors.

When the investments failed to perform, the appellants faced margin calls and suffered losses.

They sued the financial institutions, alleging negligence and breach of fiduciary duty for failing to advise them of the risks associated with the loans.

The motion judge granted summary judgment dismissing the claims against the financial institutions.

The Court of Appeal upheld the decision, finding that the relationship between a bank and its customer is generally that of debtor and creditor, and there were no special circumstances or exceptional relationships to give rise to a duty of care or a fiduciary duty to advise the borrowers.

The appellants sought costs of the appeal and trial on a partial indemnity basis following their success.

The respondent argued for no costs, asserting the class proceeding raised a novel point of law and involved a matter of public interest.

The Court of Appeal rejected this argument, finding the litigation was a commercial dispute between sophisticated actors involving established principles.

The court awarded costs of the appeal fixed at $100,000 plus GST to both the individual and corporate appellants, along with disbursements, and ordered trial costs to be assessed on a partial indemnity basis.

The appellants appealed a trial judgment finding them liable for prospectus misrepresentation under s. 130(1) of the Securities Act.

The trial judge had held that the appellants had a continuing obligation to disclose poor intra-quarterly financial results before the closing of their initial public offering, and that their failure to do so rendered an implied representation of objective reasonableness in their financial forecast false.

The Court of Appeal allowed the appeal, holding that the Act distinguishes between material facts and material changes, and imposes no continuing obligation to disclose material facts after a prospectus receipt is issued.

The Court further held that the trial judge erred in implying a representation of objective reasonableness and in failing to apply the business judgment rule to management's assessment of the forecast.

The plaintiff appealed a costs award following a nine-day trial regarding a broker's failure to carry out trading instructions.

The trial judge had awarded the plaintiff solicitor-client costs from the date of an offer to settle, but reduced the claimed amount of $182,183 to $50,000, finding it excessive.

The Court of Appeal allowed the appeal, holding that the trial judge erred by effectively applying party and party principles to a solicitor-client costs award without analyzing what conduct by the plaintiff contributed to the trial's length.

The Court fixed the trial costs at $155,000.

The moving party brought a motion for leave to intervene as a friend of the court in an appeal involving stock broker liability.

The court applied the test for intervention and found that the proposed intervention would not make a useful contribution to the resolution of the appeal, as the issues in the main appeal were essentially fact-driven and the intervention was not supported by any of the parties.

The motion for intervenor status was dismissed with costs.