Steven G. Frankel

The appellants brought actions in Ontario against Barrick Gold Corporation for alleged human rights abuses committed by Tanzanian police at a mine in Tanzania.

The motion judge dismissed the actions for lack of jurisdiction and alternatively stayed them on the basis of forum non conveniens, finding Tanzania to be the clearly more appropriate forum.

On appeal, the appellants argued the motion judge erred in his forum non conveniens analysis by misapprehending the location of Barrick's head office, applying the wrong evidentiary standard, and failing to properly assess the risk of unfairness in Tanzania.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error in the motion judge's discretionary weighing of factors, particularly given that the vast majority of witnesses and evidence were located in Tanzania.

The defendant, Barrick Gold Corporation, brought a motion to dismiss or permanently stay two companion actions, arguing that the Ontario Superior Court lacked jurisdiction or, alternatively, that Tanzania was the more appropriate forum under the doctrine of forum non conveniens.

The plaintiffs alleged injuries and deaths at a Tanzanian mining site, caused by the Tanzanian Police Force, for which they claimed Barrick was responsible due to negligent oversight.

The court found that Ontario lacked jurisdiction simpliciter, as the real and substantial connection to the litigation was in Tanzania, not Ontario, thereby rebutting the presumption of presence-based jurisdiction.

The court also determined that even if jurisdiction existed, Tanzania would be the clearly more appropriate forum due to the location of key witnesses and evidence, the inability to compel Tanzanian police witnesses in Ontario, and the adequacy of the Tanzanian common law legal system.

The actions were dismissed.

The appellants, several local governments, appealed the dismissal of their application for declarations and injunctions against Canadian National Railway Company (CN) regarding the construction of an intermodal hub.

The appellants sought to compel CN to comply with over 65 provincial and municipal laws.

The application judge dismissed the application, finding that the majority of the claims lacked a factual foundation and were premature, and that the three specific bylaws at issue impaired the core of the federal railway undertaking under the doctrine of interjurisdictional immunity.

The Court of Appeal upheld the decision, confirming that the construction and operation of the intermodal hub is a vital part of a federal railway undertaking and that the municipal bylaws requiring official plan amendments impaired this core federal power.

The appeal and the application for leave to appeal costs were dismissed.

The appellants, proposed representative plaintiffs in a class action, appealed a motion judge's decision regarding leave to pursue claims against Barrick Gold Corporation for alleged misrepresentations under the Ontario Securities Act.

The appeal concerned the denial of leave for certain misrepresentation allegations related to Barrick's capital expenditure budget and production schedule, and the identification of public correction dates.

The Court of Appeal dismissed the appeal, affirming the motion judge's finding that there was no reasonable possibility of success for the additional misrepresentation claims and that the earlier public disclosure fully corrected the alleged misrepresentations, thereby limiting the class period.

Rogers Communications Canada Inc. sought an interlocutory injunction and a sealing order against TELUS Communications Inc. The core dispute revolved around whether Rogers' customers, when roaming on the TELUS network, should display "Rogers-EXT" or "TELUS" as the network identifier (NID).

Rogers argued for maintaining the "Rogers-EXT" status quo pending arbitration, while TELUS contended that an expired agreement required "TELUS" display.

The court characterized the injunction sought as mandatory, requiring Rogers to demonstrate a strong prima facie case.

The court found that the NID issue was subject to issue estoppel due to a prior arbitration decision and that Rogers failed to establish a strong prima facie case or irreparable harm.

Consequently, the motion for injunctive relief was dismissed.

The motion for a sealing order for confidential materials, which was unopposed, was granted.

The parties disputed the wording of the formal order dismissing the proceeding.

The respondent, Canadian National Railway Company (CN), sought to include a recital stating that the applicants had made a formal admission that only three specific bylaws were relied upon for injunctive relief, despite initially listing over 50.

The applicants opposed this, intending to argue on appeal that they did not solely rely on those three bylaws.

The court declined to supplement its reasons or explain its understanding of the proceedings beyond its original decisions, signing CN's draft order without the requested recital.

The respondent requested a correction to a costs endorsement, noting the judge had mistakenly written the fee total instead of the all-inclusive total of fees, taxes, and disbursements.

The applicants objected, arguing the endorsement was clear and the issue should be raised on cross-appeal since an appeal had already been commenced.

The court corrected the transposition error, amending the costs award to the intended all-inclusive amount of $2,288,314.57, noting the Court of Appeal would prefer the corrected outcome over a cross-appeal about a typo.

In a supplementary decision on a motion for leave to commence a secondary market securities class action, the court considered whether certain disclosures constituted public corrections of alleged misrepresentations made by the defendants in February and March 2012 regarding a mining project's capital expenditure budget and schedule.

The court found a reasonable possibility that the plaintiffs could prove the July 2012 disclosure was a partial public correction, but rejected subsequent disclosures in November 2012 and April 2013 as public corrections.

Leave was granted to proceed with the misrepresentation claims against the corporate defendant and two individual certifying officers.

The plaintiffs sought leave under the Securities Act to commence a class action against Barrick Gold Corporation and certain officers/directors for alleged misrepresentations in public disclosures concerning the Pascua-Lama mining project.

The court dismissed most of the alleged misrepresentations due to a lack of precision in pleading and insufficient credible evidence, particularly regarding accounting and contingent liability claims, and October 2011, May 2012, November 2012, and March 2013 capex/scheduling claims.

However, the court found a reasonable possibility of success for certain capex budget and scheduling misrepresentations made in February and March 2012, but required further submissions on the issue of public correction for these.

Claims against two individual defendants were dismissed due to their tenure or lack of evidence.

The Court of Appeal for Ontario issued a costs endorsement following its decision on an appeal concerning leave to proceed under the Ontario Securities Act.

The appellants had challenged the motion judge's denial of leave for certain alleged financial misrepresentations.

The Court of Appeal found the motion judge erred in principle on this central issue, remitting it for redetermination.

As the appellants were substantially successful on the appeal, they were awarded $60,000 in all-inclusive costs for the appeal.

The costs of the original motion for leave were deferred to the judge determining the remitted issue.

The appellants, proposed representative plaintiffs in a securities class action, appealed a motion judge's order that granted leave for one misrepresentation claim but denied leave for others under the Ontario Securities Act.

The primary issues on appeal concerned the motion judge's approach to determining "public correction" of alleged misrepresentations, particularly by assuming falsity and applying a narrow textual analysis without considering market context.

The Court of Appeal found that the motion judge erred in principle by not engaging in a reasoned consideration of evidence regarding how alleged public corrections would be understood in the secondary market.

The Court remitted the issues of leave for capital expense/scheduling and accounting/financial reporting misrepresentations back to the lower court for redetermination, while upholding the denial of leave for certain environmental misrepresentations due to chronology issues.

Following a successful defence in a wrongful dismissal trial, the defendant sought costs of approximately $750,000.

The plaintiff argued for $500,000.

The court considered the factors under Rule 57.01, noting that while the electronic trial was efficient, both sides engaged in overkill and over-representation.

The court reduced the defendant's claimed fees slightly and awarded costs of $725,651.30 on a partial indemnity basis.

The plaintiff, a former Senior Vice-President and Chief Financial Officer of Royal Group, Inc., sued for wrongful dismissal, claiming approximately $6.6 million in damages.

The defendant employer argued cause for dismissal based on the plaintiff's involvement in two instances of serious misconduct: the "Vaughan West land flip" and the misappropriation of a "Premdor warrant." Both involved the plaintiff's participation in schemes where senior officers, including himself, made secret profits at the corporation's expense and failed to disclose these conflicts of interest to the independent board of directors.

The court found that the plaintiff, as a fiduciary and senior employee, breached his duties of loyalty, honesty, candour, and fidelity by facilitating the usurpation of corporate opportunities, taking corporate funds without proper authority, and actively participating in deceptive practices, including back-dating documents for tax purposes.

The court dismissed the plaintiff's action, concluding that his conduct constituted just cause for summary dismissal, emphasizing the strictness of fiduciary duties in public corporations.

The applicant, a former Director of Business Development, sought payment of outstanding severance and a 2013 bonus following his termination without cause.

The respondent admitted the severance was due but requested a payment plan due to financial difficulties, and argued the bonus was subject to Board approval which was never given.

The court rejected the respondent's request for a payment plan for severance, citing that an employer's financial status is irrelevant to wrongful dismissal claims.

The court also found the bonus was properly authorized by the CEO, as per the employment agreement and termination letter, and the "indoor management rule" applied.

The application was granted for both severance and bonus.

This costs endorsement follows the dismissal of applications by Belokon, Entes, Sistem, and Stans (the "Applicants") to recognize and enforce arbitral awards against the Kyrgyz Republic (the "Republic"), and to declare an exigible ownership interest of the Republic in Centerra Gold Inc. shares held by Kyrgyzaltyn JSC.

The Republic and Kyrgyzaltyn (the "Respondents") sought costs.

The court awarded costs on a partial indemnity basis, rejecting claims for full or substantial indemnity.

It also determined that costs should be payable on a several, not joint and several, basis due to the unrelated nature of the Applicants and the court-directed common issue hearing.

The court limited the costs award to the common issue hearing, excluding prior jurisdiction motions or general recognition application costs, and considered previous compensation for materials.

The applicants sought a declaration that the Kyrgyz Republic held an exigible ownership interest in shares of Centerra Gold Inc. registered in the name of its wholly-owned subsidiary, Kyrgyzaltyn JSC, to enforce arbitral awards.

The court dismissed the applications, finding that the Agreement on New Terms (ANT) unambiguously established Kyrgyzaltyn JSC as the beneficial owner of the shares, not the Republic.

The court rejected arguments based on contract interpretation under New York law and trust principles under Canadian law, emphasizing the separate legal personality of the subsidiary and the lack of evidence for an ownership interest or trust.

The applicant sought to extend an ex parte Mareva injunction freezing certain shares of a Canadian mining company and associated dividend payments pending enforcement of an international arbitration award.

The award, issued under ICSID Additional Facility Rules, required a foreign state to pay damages for unlawful expropriation.

The moving party argued that shares nominally held by a state‑owned enterprise were beneficially owned by the state and risked being moved beyond the reach of enforcement.

The court found a strong prima facie case that the shares were held for the benefit of the state and that there was a real risk of dissipation or removal of assets.

The Mareva injunction was extended for 90 days and the associated dividend payments ordered held in trust.

The applicant sought an ex parte interim order restraining a state-owned entity from obtaining share certificates for millions of shares in a Canadian mining company and from dealing with those shares pending enforcement of an arbitral award recognized by the Ontario court.

The applicant had previously obtained an order recognizing and enforcing a foreign arbitration award against a foreign state and alleged that shares held by a state-owned corporation were beneficially owned by the state and could be seized to satisfy the judgment.

Evidence suggested that steps were being taken to transfer the share certificates out of the jurisdiction, potentially frustrating enforcement.

The court found that there were reasonable grounds to believe the shares were assets of the state or held for its benefit and that there was a real risk they would be removed from Ontario.

Applying balance of convenience and public policy considerations, the court granted a temporary freezing order over a portion of the shares and related dividend proceeds.