Sam Dukesz

The appellants appealed the dismissal of their motion to stay class proceedings and individual actions against them.

They argued they were entitled to a stay because they did not receive timely disclosure of a partial settlement between the plaintiffs and a co-defendant.

The Court of Appeal dismissed the appeal, holding that the strict partial settlement disclosure rule does not apply to class proceedings, which are governed by the settlement approval regime in the Class Proceedings Act.

The court found the appellants received timely disclosure and were not prejudiced.

The appellant challenged orders in bankruptcy proceedings including standing rulings, estate consolidation, and treatment of approved claims.

The court found no right of appeal under s. 193(a) or (c) of the BIA, declined leave under s. 193(e), and held the appellant had not timely invoked available statutory claim-challenge mechanisms.

The appeal was dismissed.

The decision concerns the certification and approval of a partial settlement in a class action regarding business interruption insurance for dentists, specifically Aviva’s “Triple Guard” policies marketed by CDSPI.

The court certified the class action for settlement purposes as against CDSPI and approved the settlement, finding that all statutory criteria were met and that the settlement was fair and reasonable.

The court also dismissed Aviva’s motion for a stay, holding that disclosure of the settlement was timely and that Aviva’s rights were not prejudiced by the settlement or its timing.

This endorsement addresses a scheduling dispute in a class action involving dentists who purchased insurance policies brokered by CDSPI Advisory Services Inc. and issued by Aviva companies.

The plaintiffs sought to adjourn upcoming motions for settlement approval and a stay of proceedings, pending an anticipated Court of Appeal decision in Thrive Capital Management Ltd. et al v. Noble 1324 Queen Inc. et al., which may reconsider the principles in Handley Estate v. DTE Industries Limited regarding partial settlements.

The court declined to adjourn, emphasizing the need for timely resolution and noting that new procedural rules (Rule 49.14) would be in force for the scheduled hearing.

This decision concerns a motion for production of documents in two companion actions involving allegations of auditor negligence and failure to detect fraud at Bondfield Construction Company Ltd. The plaintiffs sought production of the "Bowen Memo" and related documents from PricewaterhouseCoopers LLP (PwC), who claimed solicitor-client and litigation privilege.

The court found that the documents were not privileged, as they were not created for the purpose of seeking legal advice or in contemplation of litigation, and ordered their production without redaction.

The court considered whether documents prepared by PricewaterhouseCoopers LLP (PwC), including the "Bowen Memo" and related materials, were protected by solicitor-client or litigation privilege in the context of a dispute over the transition of audit responsibilities from PwC to Deloitte for Bondfield Construction Company Limited.

The court found that the documents were not privileged and ordered their production, as the dominant purpose of their creation was not for seeking legal advice or in contemplation of litigation, but rather to summarize audit procedures.

The Trustee, KSV Restructuring Inc., sought substantive consolidation of the estates of ProEx Logistics Inc., Guru Logistics Inc., and 1542300 Ontario Inc., as well as authorization to accept claims by Paul Randhawa and to approve the Trustee’s reports.

The court granted substantive consolidation and approved the Trustee’s reports, but declined to authorize the Trustee’s acceptance of Paul’s claims, holding that the Bankruptcy and Insolvency Act provides a comprehensive code for the allowance and disallowance of claims, and that equity owners such as Rana Randhawa have no standing to challenge the Trustee’s decision to accept a claim.

The decision also addresses the effect of outstanding costs awards on standing and the finality of proceedings.

This appeal concerned the interpretation of a "life of mine" supply contract for sodium cyanide used in gold mining.

The appellants, Kinross Gold Corporation and its subsidiaries, sought a declaration that their contract with the respondent, Cyanco Company, LLC, for liquid sodium cyanide did not prevent them from sourcing solid sodium cyanide elsewhere.

The trial judge dismissed Kinross's action, concluding that the contract obligated Kinross to purchase sodium cyanide exclusively from Cyanco if the mines were operating and required liquid sodium cyanide.

The Court of Appeal upheld the trial judge's decision, finding no extricable error of law or palpable and overriding error in the interpretation of the contract, the consideration of surrounding circumstances, the application of related contracts principles, or the assessment of commercial reasonableness.

The appeal was dismissed with costs awarded to the respondent.

Following the dismissal of the plaintiffs' action at trial, the defendant sought costs on a full indemnity scale pursuant to a contractual provision in the parties' agreement.

The plaintiffs argued that the provision did not apply to declaratory relief and did not explicitly state 'full indemnity'.

The court held that the contractual language allowing recovery of 'all reasonable costs' entitled the defendant to full indemnity costs.

However, the court declined to award costs for the defendant's U.S. counsel, finding their involvement was not reasonably required for the Ontario litigation.

The court awarded the defendant its Canadian counsel's fees and disbursements in full, totaling $2,192,609.12, finding the amount reasonable and proportionate given the high stakes of the commercial dispute.

This case conference addressed the content and costs of the notice to be sent to class members following certification of a class action against an insurer.

The defendant insurer objected to the proposed notice content, which encouraged class members to submit claims, arguing it was improper advocacy.

The insurer also challenged the scope of notice distribution (to brokers and on its website) and sought to avoid notice costs.

The court approved the plaintiff's proposed notice content, finding it consistent with the insurer's own position on claim submission and the purpose of class notice.

The court denied the request for the insurer to post the notice on its website but ordered the insurer to provide policyholder and broker contact information.

The court further ordered that the costs of disseminating the notice, including administrator fees, be shared equally between the class and the insurer, citing the insurer's blanket denial of coverage as a factor.

The moving parties brought a motion for leave to appeal an unreported order of the motion judge dated May 8, 2023.

The Divisional Court dismissed the motion for leave to appeal in a brief endorsement.

Costs of $20,000 were awarded to the responding parties.

This case concerns the contractual interpretation of a "Life of Mine" supply agreement for liquid sodium cyanide between Kinross (as buyer) and Cyanco (as seller).

Kinross sought a declaration that the agreement did not preclude it from sourcing solid sodium cyanide from other suppliers and converting it to liquid for its mining operations.

The court dismissed Kinross's claim, finding that such an action would conflict with the agreement's terms, which established Cyanco as the sole supplier of liquid sodium cyanide required by Kinross's mines for their operations.

The court emphasized reading the contract as a whole, giving words their ordinary meaning, and considering commercial reasonableness.

The Plaintiffs (Bondfield Construction Company Limited and Zurich Insurance Company Ltd.) brought a motion to stay summary judgment motions initiated by PricewaterhouseCoopers LLP (PwC) in complex professional negligence actions against auditors, which also involved significant fraud allegations and discoverability issues.

The court, acting as case management judge, granted the stay, determining that full documentary and oral discoveries were essential to ensure a fair and efficient process.

The decision highlighted the complexity of the case, the substantial damages sought, the allegations of long-standing fraudulent activities, and the potential for inconsistent findings if the summary judgment motions proceeded on a limited record.

The court emphasized the flexibility of judges in case-managed matters and the necessity of a comprehensive record for a just adjudication of limitation period issues.

The defendant, Aviva Insurance Company of Canada, brought a motion to stay the action on the basis of forum non conveniens, arguing that Manitoba was the more appropriate forum.

The plaintiff, Altea Active Club Inc., opposed the motion.

The court found that while Ontario had jurisdiction simpliciter, Manitoba was clearly the more appropriate forum given the location of the plaintiff's business operations, the negotiation and administration of the insurance policy in Manitoba, the origin of the factual matters (Manitoba's COVID-19 shutdown order), and the application of Manitoba law to the insurance contract.

The motion to stay the action was granted.

The applicant and respondent, two brothers, were involved in an arbitration regarding the separation of their trucking businesses.

The arbitrator appointed an inspector to investigate the respondent's conduct and potential unequal benefits.

On this motion, the court affirmed the arbitrator's jurisdiction to appoint an inspector for parties to the arbitration agreement.

The court also appointed an investigative receiver to sell the business and investigate the respondent's transactions, including those involving a non-party, Motion Transport Ltd. The applicant's proposed receiver was appointed due to a potential conflict with the respondent's choice.