Ryan A. Morris

The appellants, an unsuccessful bidder and a dissenting shareholder, sought a stay of an order approving a plan of arrangement by which NordStar Capital LP would acquire Torstar Corporation, pending their appeal.

The Divisional Court dismissed the motion for a stay, finding that the appellants failed to establish a serious issue for appeal, irreparable harm, or that the balance of convenience favoured a stay.

The court noted that the appellants lacked standing, the hearing process was fair, and the board acted reasonably in rejecting the unsolicited offer in light of hard lock-up agreements.

Torstar Corporation sought court approval for a plan of arrangement to sell all its shares to NordStar Capital LP for $0.74 per share.

The arrangement was overwhelmingly approved by shareholders.

Competing bidder CMMH and dissenting shareholder Patrick Collins objected, alleging inadequate disclosure and a flawed bidding process due to hard lock-up agreements.

The court found the arrangement had a valid business purpose, the process was conducted in good faith with professional advice, and the objections were resolved fairly.

The court emphasized the weight given to the shareholder vote and the Board's business judgment, particularly in uncertain times, and approved the arrangement.

This is an appeal from a certification judge's order refusing to certify an investor class action and dismissing the action on the basis that the pleadings did not disclose a reasonable cause of action.

The proposed class action arose from the dramatic collapse of a derivatives-based exchange-traded fund (ETF) managed by the respondent, Horizons ETFS Management (Canada) Inc., which lost almost 90% of its value overnight.

The appellant, Graham Wright, alleged negligence and misrepresentations in the prospectus under s. 130 of the Securities Act.

The certification judge dismissed both claims.

The Court of Appeal allowed the appeal in part, finding that the negligence claim did disclose a reasonable cause of action.

For the s. 130 Securities Act claim, the Court found it did not disclose a reasonable cause of action as pleaded but granted leave to amend the statement of claim to assert the purchase of 'Creation Units', remitting the matter to the certification judge for further determination of certification criteria.

The plaintiff sought to certify a class action against the manager of a complex, passively managed exchange-traded fund (ETF) after the fund's value collapsed, causing significant losses to retail investors.

The plaintiff alleged common law negligence for designing and selling a risky product and failing to actively manage it, as well as a statutory claim under s. 130 of the Securities Act for misrepresentations.

The court dismissed the certification motion and the action, finding it plain and obvious that the pleadings disclosed no reasonable cause of action.

The court held that the negligence claim was an unprecedented attempt to recover pure economic loss for a 'shoddy' financial product, and that the statutory claim for ETF trading properly falls under the secondary market liability provisions of Part XXIII.1 (s. 138.3), not the primary market provisions of s. 130.

The appellants appealed a decision refusing to certify a class action and dismissing claims against three respondents on the basis that the claims disclosed no reasonable cause of action under s. 5(1)(a) of the Class Proceedings Act, 1992.

The appellants conceded that the motion judge made no error in law but challenged his application of the principles relating to the duty of care to the facts.

The Court of Appeal upheld the motion judge's decision, finding his reasons correct and concluding that the appellants had pleaded no reasonable cause of action against the respondents.

The court also found no error in the motion judge's assessment of costs.

The appellant appealed orders from the Superior Court of Justice regarding a stock option agreement dispute.

The motion judge found that even if the appellant had terminated the respondent's consultant status, the appellant breached its obligation under Quebec law to execute the contract in good faith by failing to ensure the respondent retained a qualifying status under the stock option agreement that would have entitled him to exercise irrevocable stock options or to consider alternative arrangements.

The Court of Appeal upheld the motion judge's decision, finding no error in applying Quebec law and granting the appropriate remedy under Quebec law.

The appeal was dismissed with costs fixed at $25,000.00 all inclusive.

The applicants sought a declaration that the respondent's proposed mandatory conversion of outstanding convertible preferred shares would contravene its Articles of Continuance.

The central issue was the interpretation of the "Liquidity Condition" within the Mandatory Conversion Provision, specifically whether the average daily trading volume should be restricted to the Toronto Stock Exchange (TSX) alone or include all trading reported in the TSX Composite index (which aggregates trading from TSX and alternative trading platforms).

The court, applying principles of statutory and contractual interpretation, found that the Liquidity Condition should include all transactions reported in the TSX Composite, thereby dismissing the applicants' request for a declaration and their related oppression claim.

Following a finding that the defendant breached its duty of good faith by refusing to allow the plaintiff to exercise stock options, the court had to determine the appropriate remedy.

The parties' experts disagreed on whether Quebec law required specific performance or damages.

The court appointed an independent expert, former SCC Justice Louis LeBel, who concluded that specific performance was the appropriate remedy under Quebec law.

The court rejected the defendant's argument that Ontario law should apply as the lex fori, finding that the choice of remedy was substantive and governed by the lex causae (Quebec law).

The plaintiff was awarded specific performance and partial indemnity costs.

Following the dismissal of a class action certification motion against the defendant Olympia Trust Company, the court determined the appropriate quantum of costs.

Olympia Trust sought $67,395.96 based on an indemnification agreement, or alternatively $45,387.80 on a partial indemnity basis.

The plaintiffs argued for $20,000.

The court declined to enforce the indemnification agreement within the class proceeding costs determination and awarded Olympia Trust $40,000 on a partial indemnity basis.

An insured brought an action against international insurers for breach of an insurance contract.

The insurers moved to stay the action and refer the dispute to arbitration in London, England pursuant to an arbitration clause in the policy.

The motion judge dismissed the stay motion, finding that the "Action Against Insurer" endorsement provided an alternative method of dispute resolution allowing domestic court proceedings.

The appellate court reversed, holding that the arbitration clause was mandatory and the sole method of dispute resolution, and that the "Action Against Insurer" clause was a service of suit provision that did not conflict with the arbitration clause.

The court also clarified that the Model Law on International Commercial Arbitration applies to agreements providing for arbitration of certain disputes, not only those providing for arbitration as the sole method of dispute resolution.

The defendant, Olympia Trust Company, was successful on a pleadings motion in four proposed class actions and sought costs of approximately $61,000 on a substantial indemnity basis or $41,000 on a partial indemnity basis.

The plaintiffs argued the claim was excessive and suggested $20,000.

The court rejected the plaintiffs' arguments that the defendant's costs should be limited by the plaintiffs' own costs expectations or access to justice concerns.

The court awarded costs to the defendant fixed at $35,000 all inclusive on a partial indemnity basis.

The defendant, Olympia Trust Company, brought motions to strike the plaintiffs' statements of claim in four proposed class actions concerning syndicated mortgage investments.

The court found that the statements of claim were ill-organized, prolix, unclear, and contravened the rules of pleading by including evidence, immaterial allegations, and argumentative statements.

The court struck out the statements of claim in their entirety against all defendants but granted the plaintiffs leave to deliver fresh as amended statements of claim.

The defendants brought a motion to stay the plaintiff's action based on a mandatory arbitration clause in the base trade credit insurance policy.

The plaintiff opposed the motion, relying on a Canadian endorsement that permitted an action against the insurer in Canada and stated that endorsements prevail in the event of a conflict.

The court found that the contract, read as a whole, provided alternative methods for dispute resolution and that the endorsement prevailed over the base policy's arbitration clause.

The motion to stay the action was dismissed.

The defendant sought leave to appeal an order dismissing its motion for partial summary judgment regarding a share option claim.

The motion judge had granted the plaintiffs partial summary judgment on the claim, applying Quebec law to find the defendant breached its duty of good faith.

The Divisional Court dismissed the motion for leave to appeal, finding no conflicting decisions and no good reason to doubt the correctness of the motion judge's decision, which was based on factual findings and expert evidence on Quebec law.

The defendants brought a motion to quash the plaintiff's motion for certification of a common law misrepresentation claim, arguing that the court was functus officio, the motion was res judicata, or it constituted an abuse of process.

The court granted the defendants' motion, finding that the preferability of a stand-alone common law misrepresentation claim had already been determined and rejected in a prior certification decision.

This prior determination, which was not appealed, barred re-litigation of the issue under the doctrines of issue estoppel or abuse of process.

However, the court allowed the plaintiff to bring a motion under s. 7 of the Class Proceedings Act, 1992, to continue the action as an opt-in joinder proceeding for class members with significant claims.

The Court addressed three securities class action appeals on whether limitation periods for statutory secondary-market misrepresentation claims are suspended before leave is granted, and on related nunc pro tunc, special circumstances, leave-threshold, and certification issues.

The CIBC and IMAX appeals were dismissed, while the Celestica appeal was allowed.

The plaintiffs brought a motion compelling production of certain investigative documents, including an internal “Incident Bulletin” and employee witness statements, arising from a petrochemical facility shutdown allegedly caused by repair work performed by the defendants.

The defendants asserted solicitor‑client and litigation privilege and sought orders requiring the plaintiffs to destroy copies of the documents already in their possession.

The court held the defendants failed to establish that the documents were created for the dominant purpose of litigation or for obtaining legal advice, finding instead that they were generated primarily for operational investigation and business relationship management.

In any event, the court found that the defendants voluntarily disclosed the documents to the plaintiffs through a senior manager with ostensible authority, constituting waiver of any privilege.

The plaintiffs’ motion for production of the documents was granted and the defendants’ motion asserting privilege was dismissed.

The plaintiffs brought a motion for certification of a class proceeding and for leave to proceed with statutory claims for misrepresentation under the Securities Act against Celestica Inc. and its former executives.

The plaintiffs alleged misrepresentations regarding a 2005 restructuring, inventory, revenue, and GAAP compliance.

The court granted leave and certified the class action solely with respect to the alleged misrepresentations about the 2005 restructuring, finding a reasonable possibility of success.

Leave and certification were denied for the inventory, revenue, and GAAP claims due to a lack of evidentiary foundation.

The court also declined to certify the common law negligent misrepresentation claim, finding it did not satisfy the preferable procedure criterion.

In three related securities class action appeals, the court reconsidered whether a statutory secondary-market misrepresentation claim under s. 138.3 of the Securities Act is time-barred unless leave is obtained within the s. 138.14 limitation period.

The court overruled Timminco and held that, for purposes of s. 28 of the Class Proceedings Act, 1992, the statutory claim is asserted when the representative plaintiff pleads the statutory cause of action, the supporting facts, and an intention to seek leave within a timely commenced class proceeding.

The court also upheld the motion judge's interpretation of the s. 138.8 leave standard as screening out hopeless claims, while holding that the Green certification decision erred in failing to consider certifying common negligent misrepresentation issues other than reliance.

The plaintiffs' appeal in Green was allowed in part and the defendants' appeals in Silver and Celestica were dismissed.

The defendants brought a motion under Rule 59.06(1) of the Rules of Civil Procedure to amend a previously issued and entered order arising from a Rule 21 motion in a proposed securities class action.

The original order dismissed the defendants’ motion to strike claims under Part XXIII.1 of the Securities Act but failed to reflect the judge’s reasoning that the special circumstances doctrine permitted leave to be granted nunc pro tunc despite the expiry of the statutory limitation period.

The court held that the omission of this conclusion from the formal order was an oversight and that Rule 59.06(1) permits amendment where the order does not accurately express the court’s manifest intention as reflected in the reasons for decision.

The court rejected arguments that the requested amendment was premature or an improper reconsideration of the earlier ruling.

The order was amended to include the finding regarding the special circumstances doctrine.