Renée Zatzman

The plaintiffs sued CIBC and Belzberg for breach of contract or negligence after a direct market access (DMA) system malfunctioned, causing significant error trades and the eventual shutdown of their hedge fund.

The court found CIBC prima facie liable, determining that Belzberg employees acted as CIBC's apparent agents when they negligently caused the malfunction.

The court rejected CIBC's broad contractual exclusion of liability for direct damages but upheld the exclusion for lost profits.

The plaintiffs were awarded direct trading losses, with no reduction for mitigation or contributory negligence, and punitive damages were denied.

This motion addressed outstanding refusals and undertakings in two related actions: a breach of warranty claim by Orbcomm Inc. against Randy Taylor Professional Corporation following an acquisition, and a defamation claim by former SkyWave officers against Orbcomm.

The court ruled on several discovery issues, ordering Orbcomm to provide specific information and answers to questions, but upholding litigation privilege for an expert's instruction letter and denying early identification of trial documents.

The court also set out a process for the defendant to seek leave for extended discovery.

The defendants brought a motion for security for costs against the plaintiff, a real estate brokerage, which admitted having insufficient assets in Ontario to cover a potential costs award, though its shareholders were not impecunious.

The court, applying a holistic approach under Rule 56.01(1) of the Rules of Civil Procedure, determined that it was just to order security for costs.

The plaintiff's claim was found to be arguable but not demonstrated to have a good chance of success on the merits.

The court granted the motion, ordering the plaintiff to post $60,000 for one group of defendants and $45,000 for another, covering the pleading and discovery stages, and awarded motion costs to the successful defendants.