Rebecca Wise

In a certified class action regarding whether document reviewers were employees or independent contractors, the plaintiff moved for a further and better affidavit of documents.

The court reviewed 11 categories of requested documents.

The court ordered the production of the defendant's insurance policy under Rule 30.02(3), but dismissed the remaining requests, noting that a party has no obligation to create documents that do not exist, and that requests for privileged communications and judicial inspection were premature or improper.

Following the successful certification of a class action against Deloitte, the substituted representative plaintiff sought costs of $480,170.08 on a partial indemnity basis.

Deloitte argued the costs should be significantly reduced due to the narrowing of the claim, the disqualification of the initial representative plaintiff, and alleged over-lawyering.

The court rejected Deloitte's argument that there was divided success, but agreed the claimed amount was excessive.

Applying the factors under Rule 57.01(1), the court reduced the counsel fee and awarded the plaintiff costs fixed at $353,790.88 all-inclusive.

The applicant, Amarna Associates Inc., sought a declaration that it had validly exercised its right of dissent as a shareholder of Partners Value Investments Inc. (PVI) in connection with a plan of arrangement.

PVI contended that only shareholders registered as of the record date for voting were entitled to exercise dissent rights.

The court found that the Interim Order and the Plan, which incorporated section 185 of the Business Corporations Act (Ontario) with modifications, did not impose a record date requirement for dissent rights.

The court emphasized that the plain meaning of "registered holder" referred to registration at the time of exercising dissent rights, and PVI's own circular supported re-registration after the record date for this purpose.

The application was granted, confirming Amarna's valid exercise of dissent rights, and costs were awarded to Amarna on a partial indemnity basis.

The Ad Hoc Committee of Purchasers of the Applicants' Securities moved for approval of a settlement agreement and plan of allocation in the context of CCAA proceedings involving Cash Store Financial Services and related entities.

The settlement provided for a payment of $13,779,167 by the defendants to resolve allegations of false and misleading statements regarding financial results.

The court approved the settlement and the associated third-party releases, finding them fair, reasonable, and consistent with the purpose of the CCAA.

The motion to approve the plan of allocation was adjourned on consent.

In CCAA proceedings involving a payday lending enterprise, class members in Ontario consumer class actions moved for approval of three settlement agreements forming part of a broader global resolution of litigation involving the debtor companies, their directors and officers, and related parties.

The settlements resolved certain class claims and partially resolved a third‑party lender claim, providing more than $10 million in recovery with potential participation in future litigation proceeds.

The court applied established settlement approval factors including likelihood of success, litigation risks, counsel recommendations, absence of objections, and arm’s‑length negotiations.

The court concluded that the settlements were fair, reasonable, and in the best interests of the class and the restructuring process.

The appellants sought to amend their statement of claim in a securities class action to add further particulars of wrongful conduct underlying their misrepresentation claims against the corporate respondent.

The motion judge denied leave for most of the amendments, finding they constituted discrete misrepresentation claims requiring fresh leave under s. 138.8(1) of the Securities Act, and were statute-barred under s. 138.14(1).

The Court of Appeal upheld the motion judge's decision, with one limited exception permitting the appellants to plead a narrower omission allegation relating to previously pleaded facts.

The defendant employer brought a motion under Rule 21.01(1)(b) of the Rules of Civil Procedure to strike the plaintiff’s statement of claim without leave to amend.

The self-represented plaintiff alleged statutory violations including the Criminal Code, the Canadian Charter of Rights and Freedoms, the Human Rights Code, the Employment Standards Act, and privacy legislation, seeking substantial damages for termination and alleged harassment.

The court found the pleading failed to disclose any reasonable cause of action, lacked material facts, and consisted largely of a lengthy and incoherent compilation of correspondence.

The alleged statutory breaches did not create independent civil causes of action and the Charter did not apply to private litigation.

The court concluded the pleading was radically defective and incapable of being cured by amendment.

The parties brought cross-motions to compel answers to questions refused during examinations for discovery in an action alleging negligence, breach of fiduciary duty, and breach of contract against an investment advisor and his firm.

The Master ordered the defendants to answer questions regarding the advisor's qualifications and the firm's legal position on vicarious liability, but found questions about the advisor's personal finances and other clients irrelevant.

The Master ordered the plaintiffs to answer questions regarding the calculation of their claimed damages and the factual basis for their allegations regarding loan arrangements and unsuitable investments, rejecting the argument that these questions were improper requests for particulars.

In this proposed securities class action arising from the collapse of a public issuer, the plaintiffs sought leave under Part XXIII.1 of the Securities Act and certification of claims on behalf of purchasers of notes and shares in the primary and secondary markets.

Subject to one contested issue concerning former noteholders who had assigned their notes during the class period, the motions were unopposed or proceeded on consent.

The court granted leave and certified the action, holding that the substantive dispute over whether assigned noteholder claims vested in transferees under New York law should be postponed until after certification.

The court found it procedurally preferable and fair to defer that merits issue until after a defence was delivered, thereby avoiding interlocutory delay in a large and complex class proceeding.

The appellant appealed a Master's order dismissing her action for delay.

The action had been struck from the trial list due to the inaction of her first lawyer, and a subsequent motion to restore it was delayed by her second lawyer, who concealed his neglect from her.

On appeal, the Divisional Court admitted fresh evidence detailing the second lawyer's neglect.

The court found the Master made reversible errors by inferring intentional delay without considering the appellant's instructions to her lawyers, and by presuming prejudice due to the expiry of a limitation period.

Applying the conjunctive test from Nissar, the court held the appellant had an acceptable explanation for the delay (solicitor negligence) and the defendants suffered no non-compensable prejudice.

The appeal was allowed and the action restored to the trial list.

The plaintiffs sought certification of a proposed class action against a pharmaceutical manufacturer regarding the oral contraceptives Yasmin and YAZ.

The proposed class included Ontario residents prescribed and using the drugs prior to November 30, 2011, and derivative claimants under the Family Law Act.

The plaintiffs alleged negligence in the design, testing, marketing, and warning associated with the drospirenone component, claiming it posed greater risks than other oral contraceptives.

The court held that the pleadings disclosed viable causes of action, that the proposed class and common issues were sufficiently defined, and that a class proceeding was the preferable procedure under the Class Proceedings Act, 1992.

Certification was granted with certain modifications to the class definition and litigation plan.

The defendants brought a motion under Rule 39.03 of the Rules of Civil Procedure to compel the plaintiffs’ former lawyers to attend examinations as witnesses in aid of a motion to dismiss a 20‑year‑old action for delay.

The plaintiffs had filed affidavits attributing the delay in prosecuting the claim to the inaction and failures of their previous counsel.

The court held that the former lawyers were likely to possess relevant evidence concerning the causes of the delay and whether it was intentional or inexcusable.

By blaming their lawyers and placing the communications and conduct of counsel at issue, the plaintiffs were found to have waived solicitor‑client privilege to the extent necessary to permit examination.

The court ordered four former lawyers to attend examinations under Rule 39.03, quashed the summons against one lawyer, and directed that the examinations occur after cross‑examinations on the plaintiffs’ affidavits.

The plaintiff brought a motion for leave to amend his statement of claim and to continue a stay of enforcement of a summary judgment obtained by the defendants in a related mortgage action.

The proposed amendments included allegations of forged documents by a former employee of the defendants in connection with investment transactions.

The court granted leave to amend, holding that limitation issues could be pleaded by the defendants and that the allegations were not clearly irrelevant or barred by res judicata.

However, applying Rule 20.08 of the Rules of Civil Procedure, the court declined to continue a full stay of the prior judgment, finding only a tenuous connection between the investment claim and the mortgage debt, uncertainty about the merits and damages of the plaintiff’s claim, and potential prejudice to the defendants.

The stay was partially lifted, requiring payment of $400,000 toward the judgment.

Following dismissal of a commercial action, the successful defendant sought substantial indemnity costs after making a Rule 49 offer to settle.

The court held that where a defendant’s settlement offer involves payment and the action is dismissed entirely, Rule 49 does not automatically permit substantial indemnity costs.

Relying on appellate authority limiting earlier jurisprudence, the court concluded substantial indemnity costs are only appropriate where egregious conduct is demonstrated.

While the defendant’s legal rates were reasonable, the court found some time spent excessive.

Applying the factors in Rule 57.01, the court fixed a reduced partial indemnity costs award including disbursements.