Philip Underwood

The Financial Services Regulatory Authority of Ontario (FSRA) appealed a Superior Court decision that dismissed its motion to stay a class proceeding initiated by Brewers Retail Inc. and a committee of pension plan members.

The class proceeding sought court approval of a comprehensive settlement regarding pension indexing issues, including amendments to the pension plan and trust, and compensation for known and unknown plan members.

FSRA argued that the Financial Services Tribunal (FST) had exclusive jurisdiction over these matters under the Pension Benefits Act (PBA) and the Financial Services Tribunal Act, 2017 (FSTA).

The Court of Appeal upheld the motion judge's finding that the Superior Court had concurrent jurisdiction, noting that neither the FSTA nor the PBA contained clear and unequivocal language ousting the court's inherent equitable jurisdiction to approve settlements and vary trusts.

The court affirmed that the class proceeding was the preferable procedure, as the FST lacked the power to approve the settlement or vary the pension trust, and the class action provided the necessary finality for all affected plan members.

The Applicants, minority shareholders, sought to enforce a "shotgun" buy/sell provision in a unanimous shareholders agreement (USA) against the Respondent, the majority shareholder.

The Respondent failed to exercise his option to buy or sell within the stipulated 15-day period, arguing the Applicants' buy/sell notice was invalid due to alleged threats of mass resignation by management, bad faith, oppression, and breach of implied terms.

The court found the buy/sell notice strictly complied with the USA and rejected the Respondent's arguments, finding no evidence of unlawful threats or breaches of duty.

The court also denied the Respondent's request to convert the application into a trial and consolidate it with a separate action, emphasizing the purpose of buy/sell provisions for expeditious resolution.

The application was granted, deeming the Respondent to have accepted the offer to sell his shares.

The Regional Municipality of York brought a motion for a limited permanent sealing order on consent over proprietary information submitted by two bidders during a competitive procurement process for public transportation services.

The court applied the three-part test from Sherman Estate and found that court openness posed a serious risk to the important public interest of maintaining the integrity of future procurement processes.

The court granted the sealing order, concluding that the benefits of protecting the commercially sensitive information outweighed the negative effects on court openness.

The applicant, who lost a municipal school trustee election by a single vote, sought a recount under s. 58 of the Municipal Elections Act.

The court distinguished between undervotes and overvotes/adjudicated ballots.

While dismissing the request for a recount of the 258 undervotes due to their common nature and lack of specific evidence of error, the court found objective grounds to doubt the result based on a single overvote and an unknown number of adjudicated mail-in ballots.

Consequently, a narrow recount was ordered for the overvote and adjudicated ballots to ensure fairness and avoid disenfranchising voters, given the extremely close margin.

The court awarded full indemnity costs against the plaintiffs after dismissing their claims, which were found to be statute-barred, subject to res judicata and issue estoppel, abuses of process, and collateral attacks.

The claims were deemed devoid of merit and repetitive of earlier unsuccessful actions.

The court emphasized that the claims should never have been brought, especially for a third time, and that the plaintiffs' conduct, including unsubstantiated allegations, delaying tactics, and unrealistic settlement offers, warranted the highest scale of costs.

The plaintiff, StorageVault Canada Inc., brought a motion for the issuance of certificates of pending litigation (CPLs) against the defendants concerning seven parcels of land.

StorageVault alleged a binding agreement for the purchase of these properties, seeking specific performance.

The defendants opposed, arguing no binding agreement existed and that specific performance was not an appropriate remedy.

The court dismissed the motion, finding no triable issue regarding a breach of contract or the availability of specific performance, as the draft agreements were non-binding, the alleged agreement was not capable of performance due to third-party approvals and rights of first refusal, and the properties were not unique, making damages an adequate remedy.

The equities were found to favour the defendants.

The applicant sought judicial review of the respondent municipality's decision to award a transit operations and maintenance contract to a competing bidder.

The applicant argued that the successful bidder's proposal was non-compliant with the Request for Proposals because it included a subcontractor who was already the contractor for another transit division, allegedly violating a one-contractor-per-division rule.

The Divisional Court dismissed the application, finding that the municipality's interpretation of the RFP—that the restriction applied only to contractors, not subcontractors—was reasonable and that the procurement process was fair and transparent.

A case conference was held to address the scheduling of several outstanding motions after the plaintiffs dismissed their counsel.

The court rescheduled the motions to the week of November 7, 2022, to be heard virtually.

The hearing of the motions was marked peremptory against the plaintiffs and their corporate entities, giving them time to retain new counsel without further delaying the proceedings.

This is an appeal from a summary judgment concerning the interpretation of a Share Purchase Agreement (SPA) and related employment agreements.

The dispute arose after the appellants (purchasers of a business) furloughed one of the respondents (sellers/employees) due to the COVID-19 pandemic, which the respondents asserted was a constructive dismissal.

The SPA included an "Accelerated Provision" for a capital payment if an employee was terminated without cause, and an "Unprofitable Quarter Provision" allowing termination for cause without penalty.

The motion judge found constructive dismissal without cause, triggering the Accelerated Provision.

The Court of Appeal dismissed the appeal, upholding the motion judge's interpretation that the appellants had not exercised their option to terminate for cause under the Unprofitable Quarter Provision, and that their actions constituted a termination without cause, thereby triggering the payment.

The court emphasized deference to the motion judge's contractual interpretation and rejected arguments of commercial absurdity.

A case conference was held to address multiple related actions.

On consent, the claims against Shahzad Siddiqui and Borden Ladner Gervais LLP were dismissed with prejudice and without costs.

The court directed counsel to confer regarding the potential release of individual defendants and established a timetable for scheduling upcoming dispositive motions.

A case conference was held to manage multiple related proceedings.

Counsel for the plaintiffs indicated a recommendation for the plaintiffs to agree to dismissals without costs in most cases, except potentially the claim against Grant Thornton LLP Canada, which requires leave to proceed.

The court directed that a new class action issued by one of the plaintiffs be case managed together with the existing matters.

Counsel were directed to advise on dismissals or agree on a timetable for dispositive motions by a specified date.

The Financial Services Regulatory Authority of Ontario (FSRAO) applied for an order under s. 140 of the Courts of Justice Act to declare Mohan Joy Kurian a vexatious litigant and prohibit him from commencing further proceedings without leave.

The application stemmed from Kurian's six-year campaign of persistent, groundless litigation and complaints against his former credit union, Alterna Savings and Credit Union/Quintefirst Credit Union (Intervenor), and FSRAO, including multiple dismissed lawsuits and unpaid costs.

The court found Kurian's conduct to be vexatious, marked by abuse of process, harassment, and disrespect for the administration of justice, and granted the order, with the exception of one ongoing action against a former business partner.

Costs were awarded to FSRAO and Alterna.

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 applicants (Sellers) and respondents (Purchasers) disputed the process for valuing shares under a shareholders agreement following the termination of the Sellers' employment.

The Sellers applied to appoint their preferred arbitrator and argued for a full arbitration under the Arbitration Act, 1991.

The Purchasers cross-applied to appoint their preferred arbitrator, seeking a streamlined valuation process and a court declaration on the valuation date.

The court held that the agreement contemplated a formal arbitration under the Act, not merely a valuation.

The court declined to determine the valuation date, leaving it to the arbitrator under the competence-competence principle, and ordered the parties to select a neutral third-party arbitrator.

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.

Loan Away Inc. appealed a motion judge's order that stayed its application against Facebook, Inc. The original application sought injunctive relief and damages after Facebook suspended Loan Away's advertising.

The stay was granted based on a forum selection clause in Facebook's Terms of Service, which mandated disputes be resolved in California under California law.

Loan Away also challenged the motion judge's refusal to adjourn the stay motion.

The Court of Appeal dismissed the appeal, affirming that the motion judge properly exercised discretion in denying the adjournment and correctly applied the two-step test for enforcing forum selection clauses in a commercial context, finding Loan Away failed to demonstrate "strong cause" to override the clause.

The moving parties, Her Majesty the Queen in Right of Ontario and the Ontario Lottery and Gaming Corporation, brought a motion for leave to appeal the order of Emery J. dated January 29, 2021.

The Divisional Court dismissed the motion for leave to appeal and awarded costs to the responding parties fixed at $2,500.

The moving party, former counsel for the applicant, brought a motion for a charging order pursuant to section 34 of the Solicitors Act for unpaid legal fees.

The applicant opposed the motion, arguing there was no evidence to justify the order.

The court applied the three-part test for a charging order and found that the property was preserved through the law firm's instrumentality and that the applicant had no intention of paying the outstanding fees.

The motion was granted and costs were awarded to the moving party.

The plaintiffs sought to schedule an urgent motion for an interlocutory injunction to compel the closure of schools to in-person learning in York Region due to COVID-19, prior to commencing a formal proceeding.

Several unions and school boards sought to intervene.

The court scheduled the injunction motion conditionally, requiring the plaintiffs to formally commence an action or application first.

The court declined to schedule the intervention motions on an urgent basis, finding it would be unfair to the responding parties given the tight timeline.