Vlad A. Calina

The appellants sought certification of a proposed class action on behalf of approximately 15,000 Canadian major junior hockey players from 1975 to the present, alleging systemic abuse including physical and sexual assaults, bullying, harassment, and hazing.

The class action named 78 defendants across four major junior hockey leagues and sought to hold the leagues and teams liable for systemic negligence in failing to adopt and enforce effective abuse-prevention policies.

The motion judge denied certification, finding the action unmanageable due to its unprecedented scope and complexity, and that no viable litigation plan had been presented.

The appellants appealed on three grounds: that they had disclosed a viable cause of action, that common issues existed, and that the class action was the preferable procedure.

The Court of Appeal dismissed the appeal, finding that while the appellants had viable claims and the motion judge applied an overly stringent test to the common issues requirement, the action was unmanageable and therefore not the preferable procedure.

The court emphasized that the proposed class action was far broader and more complex than previous systemic negligence class actions, involving 78 defendants across 13 jurisdictions, events spanning 50 years, and complex conflicts-of-law issues.

The appellants' attempt to fundamentally alter their case on appeal by dropping 74 defendants was rejected as impermissible.

The Insurers brought a motion for a declaration that the "Prior Acts Exclusion" in their Directors and Officers (D&O) insurance policies barred coverage for a claim asserted against Just Energy's D&Os.

The claim, filed by a representative plaintiff in a class action, sought unpaid wages and benefits from a period prior to Just Energy's Companies’ Creditors Arrangement Act (CCAA) filing.

The court found the Prior Acts Exclusion to be clear and unambiguous.

It determined that the exclusion applied to acts or omissions committed by anyone prior to the CCAA filing date, and that this interpretation was consistent with the commercial context of the policies, which were intended to cover post-filing D&O liability during insolvency.

The court concluded that applying the exclusion did not nullify the policy's main purpose or contradict the reasonable expectations of the parties.

The Insurers' motion was granted, and the representative plaintiff's request for relief against the Insurers was denied.

This decision concerns a motion to quash an appeal of a "Transition Order" that converted a proposed class action into multiple joinder actions.

The moving parties (defendants) argued the Transition Order was interlocutory and thus appealable only to the Divisional Court with leave.

The responding parties (plaintiffs) contended the order was final in some aspects or, alternatively, so interrelated with other appeals (refusal of class certification and dismissal of action against certain parties) that the Court of Appeal should hear it under s. 6(2) of the Courts of Justice Act.

The Court of Appeal denied the motion to quash, finding a significant interrelationship between the appeals, which meant leave would have inevitably been granted, allowing the Court of Appeal to assume jurisdiction.

The appellants, small and mid-size businesses, appealed a class action decision regarding business interruption insurance claims stemming from the COVID-19 pandemic.

They sought coverage for revenue losses, arguing that the presence of SARS-CoV-2 or civil authority orders constituted "physical loss or damage" to their property under their insurance policies.

The Court of Appeal upheld the trial judge's finding that neither the virus's presence nor the civil authority orders met the "physical loss or damage" criteria for business interruption coverage.

The appeal was dismissed, and costs were awarded to the respondents.

This decision concerns Phase 4 of a motion to settle a Section 7 Order under the Class Proceedings Act, 1992.

The original proposed class action, brought by former and current major junior hockey players alleging abuse, was not certified.

The Section 7 Plan aims to transition the proposed class action into up to 60 individual joinder actions.

The court approved Version 4 of the Draft Section 7 Plan, which outlines procedures for notice, opt-in, commencement of actions, case management, and discovery.

A key contentious issue resolved in this phase concerned the staying of third-party claims until the completion of the main actions.

This decision is Phase 3 of a motion to settle a Section 7 Order under the Class Proceedings Act, 1992.

The court is finalizing the Draft Section 7 Plan, which facilitates the transition of a proposed class action, previously denied certification, into up to 60 individual joinder actions against various hockey leagues and teams.

The plan addresses notice dissemination, the approval of contingency fee agreements, the management of third-party claims by staying them under Rule 29.09 of the Rules of Civil Procedure, and the potential for severance of actions.

The court also proposes a consensual settlement track for modest claims as an alternative to litigation.

The plaintiff, Dr. Darryl Gebien, sought court approval for a Third-Party Funding Agreement with Omni Bridgeway Ltd. for a proposed class action against numerous pharmaceutical companies regarding the opioid crisis.

Several defendants objected to specific provisions of the agreement, including those related to amendments, assignments, attornment, costs enforcement, termination procedures, accrued costs, and confidentiality.

The court found that while the agreement generally met the requirements for approval, several of the defendants' objections, particularly concerning comprehensive attornment by Omni Bridgeway Ltd. and the broad confidentiality provisions, were "genuinely meaningful" and required resolution.

The motion for approval was adjourned to allow the parties to address these issues, with the court emphasizing that it is not its role to draft the agreement.

The Court of Appeal for Ontario issued an endorsement regarding a request to vary a trial costs award.

Following a successful appeal and cross-appeal by the Respondents (plaintiffs/defendants by counterclaim), they sought to vary the trial costs award, arguing entitlement to a higher scale due to beating a Rule 49 settlement offer.

The Appellants (defendants/plaintiffs by counterclaim) opposed this request.

The Court declined to vary its decision, noting that the Respondents had not appealed or sought leave to appeal the trial costs, nor had they raised the issue in their notices of cross-appeal or in their submissions on costs.

The appellants (defendants at trial) appealed a trial judgment that found them in breach of contract for failing to sell a car dealership to the respondent (plaintiff at trial) and awarded $5 million in damages in lieu of specific performance.

The Court of Appeal dismissed the appeal, affirming the trial judge's finding that a binding agreement on essential terms had been reached between the parties, despite the absence of a formal written document.

The court also upheld the trial judge's calculation of damages, which reflected the lost opportunity based on the difference between the respondent's offer and a higher third-party offer accepted by the appellants.

The Court of Appeal dismissed appeals by two groups of appellants (Varma/Madra and Palihapitiya) and allowed a cross-appeal by the respondents.

The case involved corporate malfeasance, breach of fiduciary duty, breach of contract, knowing assistance, and conspiracy related to the establishment of a competing fund (Annex Fund) and the undervalued sale of a technology company (Xtreme Labs), including the concealment of an equity interest in Hatch Labs (Tinder).

The trial judge's findings of liability for damages and disgorgement were largely upheld, and the disgorgement amount was increased on cross-appeal to serve a stronger deterrent purpose.

The court affirmed that directors of a corporate general partner can owe fiduciary duties directly to a limited partnership.

The respondent sought costs of $85,885.03 on a partial indemnity basis following the applicant's unsuccessful application for leave to appeal an arbitral award.

The applicant argued costs should be capped at $40,000.

The court considered the factors under Rule 57.01, noting the issues were of moderate complexity and the parties' costs outlines were similar.

After making a slight reduction for duplication of work and excessive time spent by lead counsel, the court awarded the respondent costs of $79,000 all-inclusive.

The applicant sought leave to appeal an arbitral award concerning the interpretation of "Appraised Value" in a long-term commercial ground lease.

The dispute centered on whether the appraised value should be based on a mixed-use residential/commercial development or a mixed-use office/commercial shopping centre, considering zoning bylaws and current use.

The arbitrator had ruled in favor of the respondent.

The applicant alleged three extricable errors of law: failure to consider binding legal authority (official plan vs. zoning bylaw), failure to apply principles of contractual interpretation, and error in excluding expert reports.

The court found that the Ground Lease, which stipulated awards were "final and binding," governed the arbitration, not a separate arbitration agreement.

It further determined that the alleged errors were questions of mixed fact and law, not extricable errors of law, and that the expert reports were properly excluded as they did not assist in contractual interpretation.

Consequently, the application for leave to appeal was dismissed.

The plaintiff, Vrancor Development Group Inc., brought a motion for leave to issue a certificate of pending litigation (CPL) against a property in Burlington, Ontario.

Vrancor alleged an oral joint venture agreement with the defendants, Marko Juricic, Brooklyn Contracting Inc., and Laurentian Business Centre Ltd., for the property's development, claiming breach of trust and fiduciary duty when the defendants closed on the property without Vrancor and transferred title to a company controlled by Juricic.

The defendants contended that discussions never materialized into a binding agreement.

Applying the test for CPLs, the court found a triable issue regarding Vrancor's claimed interest in the land, noting that the CPL would preserve the status quo given Vrancor's claim for a proprietary interest rather than monetary damages.

The plaintiff, Akelius Canada Ltd., sought a world-wide Mareva injunction against the defendants, 2436196 Ontario Inc. and B’Nai Fishel Corporation, to protect its ability to recover damages arising from an aborted sale of eight apartment buildings.

The plaintiff claimed $45,000,000 in its Statement of Claim, but sought an injunction for $56,564,318 based on the increased value of the properties.

The court applied the five principles for Mareva injunctions from Chitel et al v. Rothbart et al, finding that the plaintiff established a strong prima facie case and a risk of asset removal given the defendants' sale of the properties and refusal to disclose the location of proceeds.

However, the court rejected the plaintiff's requested injunction amount, noting that the Statement of Claim did not include a claim for post-closing property value increase and that the valuation was inappropriate.

The injunction was granted for $690,631.38, representing professional fees incurred, plus fixed costs of $25,000 payable by the defendants.

The plaintiff brought a motion seeking disclosure of financial statements, property appraisals, and an asset purchase agreement (Timbercreek APA) from the defendants, as well as information regarding whether the defendants sought legal advice concerning the discharge of mortgages.

The court largely granted the plaintiff's requests for financial and appraisal documents, and for inspection of the Timbercreek APA, finding them relevant to damages.

However, the court denied disclosure of the substance of legal advice, affirming solicitor-client privilege, but ordered disclosure of whether legal advice was sought, as this was relevant to the defendants' claim of taking all reasonable steps.

The defendants were successful on a motion for security for costs against the foreign corporate plaintiff and sought partial indemnity costs of approximately $18,000.

The plaintiff argued for a reduced amount of $10,000, claiming divided success and excessive time spent.

The court rejected the plaintiff's arguments, finding the defendants were entirely successful and the delegation of work between junior and senior counsel was appropriate for the complex motion.

Applying the factors under Rule 57.01, the court fixed the defendants' costs at $15,000 all-inclusive.

This is a costs endorsement following a Rule 21 motion brought by Cams Atlas, LLC ("Cams") to dismiss counterclaims by Water Exchange, Inc. ("Water") and Tech Sonic International, Inc. ("Tech").

Cams' motion against Water was granted after Water conceded the point, but only after Cams had fully prepared.

Cams' motion against Tech was dismissed, as Tech's counterclaim was closely related to its defense.

The court found Tech entitled to costs for successfully defending the contentious part of the motion, while Cams was entitled to some costs against Water for the late concession.

The judge fixed costs, ordering Cams to pay Tech $16,000, inclusive of fees, disbursements, and HST, after considering the complexity, importance of issues, and reasonable expectations of the parties.

The defendants brought a motion for security for costs against the non-resident plaintiff, CAMS Atlas, LLC.

The plaintiff had obtained a New York default judgment against one of the defendants, Water Exchange, Inc., which was recognized in Ontario.

The plaintiff argued it would be unjust to order security for costs, alleging a complex web of interrelationships among the defendants that should make them all liable for the judgment.

The court declined to pierce the corporate veil at this preliminary stage, finding it would be premature and wrong in law.

The plaintiff was ordered to post $75,000 as security for costs.

Zayo Inc. brought a motion seeking an order for FTI Consulting Canada Inc., as Monitor for the Primus Entities, to pay Zayo $1,228,799.81 from asset sale proceeds.

This amount represented pre-CCAA filing arrears owed to Zayo under contracts assigned to Birch Communications Inc. Zayo argued the consent process for assignment was not transparent or fair, alleging it was misled into consenting without realizing it could have leveraged Section 11.3(4) of the CCAA to demand full payment of arrears.

The court dismissed the motion, finding the consent process fair and transparent, noting Zayo's sophistication and lack of due diligence.

The court also found that granting the order would cause prejudice to secured lenders and Birch, as it would require varying existing orders and disrupt a closed transaction.

The Cetero Group brought a motion seeking entitlement to a $298,243 tax refund (carry-back refund) held by PricewaterhouseCoopers Inc. (PWC), as receiver of PRACS Institute Canada B.C. Ltd. The Cetero Group argued the refund was not validly assigned to PRACS, that PWC would be unjustly enriched, and that they were entitled to the refund through legal or equitable set-off due to PRACS's failure to pay under an operation support agreement.

The court found the carry-back refund was validly assigned to PRACS under an asset purchase agreement, providing a juristic reason for PWC's retention, thus defeating the unjust enrichment claim.

Furthermore, the court determined that neither legal nor equitable set-off applied, as the refund was not a debt owing by BA to PRACS, and the cross-claim for unpaid invoices was not sufficiently connected to the refund to warrant equitable set-off.

The motion was dismissed.