Tom Arndt

The moving parties sought a panel review to set aside a motion judge's order requiring them to pay security for costs within 30 days, failing which their appeal would be dismissed.

The Court of Appeal found no legal error or misapprehension of material evidence in the motion judge's discretionary decision, agreeing that the appeal lacked merit and the justice of the case supported the order.

The motion to set aside the order, and an alternative request for an extension of time to post security, were dismissed.

The respondents and third parties brought a motion for security for costs against the appellants pending an appeal of a summary judgment order in a mortgage enforcement action.

The motion judge found that the appeal had a low prospect of success and that the appellants were unlikely to pay a costs award, satisfying the 'other good reason' requirement under Rule 61.06(1)(c).

The court ordered the appellants to post security for costs, though the amount for the plaintiff was reduced as a party should not have to give security simply to defend an order obtained below.

On January 8, 2020, Ukraine International Airlines flight PS752 was shot down by Iranian air defence missiles shortly after takeoff from Tehran, killing all 176 persons aboard.

The trial judge found that UIA breached the standard of care by failing to conduct a proper security risk assessment in accordance with ICAO 10084 (Risk Assessment Manual for Civil Aircraft Operations Over or Near Conflict Zones).

Specifically, UIA failed to access necessary and available information, failed to conduct a hazard identification and safety assessment, and failed to communicate with the flight commander before departure.

As a result, UIA's liability under the Montreal Convention was unlimited rather than capped at approximately $235,000 per passenger.

The appellate court dismissed UIA's appeal, finding no palpable and overriding error in the trial judge's findings of fact or mixed fact and law.

The court granted summary judgment in favour of World Financial Solutions Inc. for possession and sale of a Toronto property under a collateral mortgage, dismissing the defences, counterclaim, and third party claims of 2573138 Ontario Ltd. and Marguerite Alfred.

The court found the mortgage was in default, rejected arguments of co-venturer status, conspiracy, and improper sale, and ordered a reference for accounting of sale proceeds.

The decision clarifies the application of summary judgment principles in mortgage enforcement and the limits of technical and equitable defences.

The plaintiff, 2724050 Ontario Inc., brought a motion seeking the appointment of an inspector under section 161 of the Ontario Business Corporations Act (OBCA) to investigate the defendants, BAS Sports Group Inc., Reid Acton, and Bob Acton Sports Ltd. The defendants opposed this motion and brought a cross-motion for the appointment of a business valuator.

The court found that the parties had irreconcilable differences and needed to separate.

The plaintiff's motion for an inspector was dismissed, as the court found no prima facie evidence of oppression or deceit by the defendants, and noted the plaintiff's "unclean hands" due to non-payment of purchase price instalments and deceptive use of the "Beast" brand for their own separate business.

The defendants' cross-motion for a business valuator was granted, with the court ordering a valuation under section 207 of the OBCA to determine the fair market value of the shares.

The appellants sought to appeal an order from the Superior Court of Justice that directed the deletion of their third-party claim registered on title under the Land Titles Act.

The Court of Appeal, on its own initiative, raised the question of jurisdiction.

After hearing submissions, the court concluded that it lacked jurisdiction to hear the appeal, as section 27 of the Land Titles Act specifies that appeals from orders made by a judge under that Act lie to the Divisional Court.

Consequently, the appeal was quashed.

The moving parties sought leave to appeal the decision of Akazaki J. dated August 12, 2024.

The Divisional Court dismissed the motion for leave to appeal and awarded costs to the responding parties.

The plaintiffs brought actions against Ukraine International Airlines (UIA) under the Montreal Convention following the shoot-down of Flight PS752 by Iranian military surface-to-air missiles shortly after takeoff from Tehran.

UIA admitted the shoot-down was an 'accident' under the Convention, making it strictly liable, but sought to limit its liability by proving it was not negligent in allowing the flight to depart.

The Superior Court of Justice found that UIA failed to meet the standard of care for a reasonable airline operating in or near a conflict zone, as it did not conduct a proper security threat risk assessment or any safety risk assessment, and failed to gather available intelligence or brief the flight commander.

The court held that UIA failed to prove its negligence did not cause the passengers' deaths or that the harm was too remote, resulting in unlimited liability for the airline.

The appellants abandoned their appeal on the eve of the hearing.

The decision addresses the issue of costs arising from the abandoned appeal.

The appellants argued against a costs award, citing an offer to settle.

The respondents, specifically the Estate of YYY and XXX, sought costs on a full or substantial indemnity basis, alleging the appeal constituted an abuse of process.

The court rejected both arguments, finding the offer to settle did not preclude a costs award and that the appeal, despite its procedural history, was not an abuse of process.

The respondents Estate of YYY and XXX were awarded $30,000 in all-inclusive costs from the appellants.

The moving parties, class action plaintiffs, brought a motion for leave to appeal an order of Glustein J. dated December 6, 2022.

The Divisional Court dismissed the motion for leave to appeal and awarded costs of $5,000 to the responding parties.

The plaintiff brought a motion for leave to appeal an order dated May 24, 2023.

The Divisional Court granted leave to appeal with costs of $5,000 payable in the discretion of the appeal panel.

The court also amended previous orders to state that the order will cease to have effect if the defendant pays the Canadian dollar equivalent of €3,266,122.45 into court as security.

The Court of Appeal for Ontario heard a motion to quash an appeal regarding the appointment of a litigation administrator.

The moving parties argued that the appointment was an interlocutory order and therefore not appealable to the Court of Appeal.

The responding parties contended that the order became final because it was joined with a final order validating a provisional opt-out form.

The Court found that the appointment of a litigation administrator is an interlocutory order, distinct from decisions made under that authority.

Consequently, the appeal from the order appointing the litigation administrator was quashed, while the appeal concerning the opt-out form remained.

The moving parties (Fibracast Ltd., Anaergia Inc., Anaergia Services, LLC, Benedek Companies, LLC, and Diana Benedek) brought a motion to strike out parties, claims, and pleadings from Waterspin S.r.l.'s amended defence and counterclaim.

The underlying dispute arose from a Distributor Agreement between Fibracast and Waterspin.

Waterspin's counterclaim included broad allegations of enterprise liability against related corporate entities and personal liability against a corporate officer, as well as expansive product liability, misrepresentation, and defamation claims.

The court granted the motion to strike, finding that Waterspin failed to plead sufficient material facts to pierce the corporate veil or establish enterprise liability.

The court also struck out the overly broad product liability claims, declaratory relief, misrepresentation claims, and defamation claims for failing to meet pleading requirements, granting leave to amend only in specific, limited circumstances.

This decision concerns a motion to certify a class proceeding arising from the downing of Ukraine International Airlines Flight PS752.

The court granted certification of the action but made significant modifications to the proposed terms of the Certification Order, Notice of Certification, Litigation Plan, and Opt-out Form.

Key modifications included extending the opt-out period to align with the Montreal Convention limitation period, removing requirements for court approval for minors/incapable persons and estate representatives to opt out, and deleting a proposed anonymity provision.

The court also restricted the disclosure of telephone numbers for notice distribution.

Two competing groups of plaintiffs sought carriage of a proposed class action against the Islamic Republic of Iran and Ukraine International Airlines arising from the downing of Flight PS752.

The Arsalani plaintiffs relied on the commercial activity exception to state immunity, while the Gorji plaintiffs relied on the terrorist activity exception.

The court awarded carriage to the Arsalani plaintiffs, finding their funding agreement, fee structure, counsel experience, and inclusion of the airline as a defendant from the outset made their action in the best interests of the class.

The Gorji and Zarei actions were stayed.

The representative plaintiff in two companion class actions against the Tim Hortons franchisor sought approval of a settlement agreement and class counsel fees.

The settlement included a $10 million payment toward local marketing initiatives, $2 million for legal costs, and significant non-monetary benefits valued at over $25 million, including governance changes and the revocation of restrictive clauses.

The court found the settlement to be fair, reasonable, and in the best interests of the class, noting it achieved access to justice, judicial economy, and behaviour modification.

The court also approved the fee requests for the litigation funder and class counsel, finding them to be within a zone of reasonableness.

The plaintiff, a Tim Hortons franchisee, brought motions for certification of two class actions against the franchisor, The TDL Group Corp., for the purposes of a tentative settlement.

The first action concerned the use of the Ad Fund, and the second concerned the formation of a franchisee association.

The defendant consented to certification.

The court applied the criteria under section 5 of the Class Proceedings Act, 1992, noting that the requirements need not be as rigorously applied in a settlement context.

All five certification requirements were found to be met, including disclosure of a cause of action, identifiable classes (current and former franchisees), common issues, preferability of a class proceeding, and an adequate representative plaintiff with a litigation and notice plan.

The court ordered certification of both actions as class proceedings.

The plaintiffs, Tim Hortons franchisees, brought a motion for approval of a third-party litigation funding agreement with Galactic TH Litigation Funders LC in their proposed class action against the franchisor.

The court applied the multi-part test from Houle, finding the agreement necessary for access to justice, substantively meaningful, fair and reasonable, and protective of the defendant's interests.

The court also found the funder would not be overcompensated.

The funding agreement and budget were approved.

This costs endorsement followed two related motions where the defendants largely succeeded in striking claims under Rule 21, terminating claims against all defendants except The TDL Group.

The court awarded costs to the successful defendants, finding no reason to depart from the usual practice that the unsuccessful side pays.

Despite the plaintiffs' arguments that the hourly rates and overall costs requested were excessive, the court found them within the norm for large firm litigation given the magnitude of the claims.

The court exercised its discretion to slightly reduce the requested costs, awarding $44,000 to the defendants in the 152 Action and $40,000 to the defendants in the Walker Action, acknowledging that the defendants were not 100% successful in dismissing the actions without leave to amend.

This decision addresses a motion to strike various claims in two proposed class actions brought by Tim Hortons franchisees against the franchisor, The TDL Group Corp. (TDL), and related corporate and individual defendants.

The claims included breach of trust, fiduciary duties, oppression remedy under the Canada Business Corporations Act (CBCA) and British Columbia Business Corporations Act (BCBCA), conversion, breach of contract (including implied duty of good faith), and statutory duties under the Arthur Wishart Act (fair dealing and right of association).

The court struck out most claims against the non-TDL defendants without leave to amend, finding a lack of material facts to support them or privity of contract.

Several claims against TDL, including breach of trust, fiduciary duties, CBCA oppression, and conversion, were also struck without leave.

Claims for breach of contract (including good faith) and statutory duty of fair dealing (s. 3 Wishart Act) against TDL were struck with leave to amend for particulars.

The claim for breach of the right of association (s. 4 Wishart Act) against TDL survived.

The court deferred the issue of declaratory relief and ordered the plaintiffs to serve amended statements of claim within 30 days, failing which the pleadings would be struck in their entirety.