Adam Goldenberg

A reference to the Court of Appeal for Ontario concerning whether legal online gaming and sports betting would remain lawful under the Criminal Code if users were permitted to participate in games and betting involving individuals outside of Canada.

The majority (Tulloch C.J.O., Gillese, Hourigan and Dawe JJ.A.) answered affirmatively, finding that section 207(1)(a) of the Criminal Code permits Ontario to conduct and manage a lottery scheme with international pooled liquidity, provided Ontario continues to conduct and manage the Ontario-based aspects of the scheme in accordance with provincial law.

The majority rejected the application of the real and substantial connection test and distinguished the Earth Future decisions.

Van Rensburg J.A. dissented, arguing that the Proposed Model would contravene the Criminal Code because it would require Ontario to conduct and manage aspects of the lottery scheme outside Ontario's territorial boundaries, contrary to the plain meaning of "in that province" in section 207(1)(a).

In this putative securities class action arising from alleged misconduct by the former CEO of Endeavour Mining, the plaintiffs moved for an order requiring defendants to deliver statements of defence and produce insurance information by November 21, 2025.

The defendants opposed both requests, arguing that no statement of defence is required before leave to proceed is granted under the Securities Act, and that insurance information disclosure is premature.

The court dismissed both aspects of the motion, finding that prior to OSA leave being granted, the statutory claim is a nullity and therefore no defence is required, and that insurance disclosure is premature absent settlement discussions or leave being granted.

The plaintiff sought an extension of the set down deadline and directions on scheduling a motion to compel the defendant to produce additional documents, arguing these were required by a prior production order.

The court found the plaintiff's motion was out of time, as the parties had agreed to a timetable for all pre-trial motions, and the plaintiff had not acted within those deadlines.

The court emphasized the importance of case management and procedural fairness, but held that the plaintiff had ample opportunity to bring the motion and declined to grant leave for it to proceed.

This endorsement from a case conference addressed several procedural issues in a complex litigation involving Indigenous land claims.

The court provided directions regarding preparatory materials for upcoming out-of-court expert examinations, including the appointment of a hybrid commissioner and deadlines for expert report summaries and legal arguments.

The court also addressed a dispute regarding the scope of cross-examination of an expert witness, directing the parties to narrow issues concerning adversity of interest before seeking further judicial determination.

Finally, the court confirmed the appointment of a pre-trial judge and scheduled the next case conference.

The Court of Appeal for Ontario heard motions for leave to adduce evidence and for a confidentiality order in the context of a reference regarding the legality of an online provincial lottery scheme permitting international play.

The court granted leave to the Attorney General of British Columbia and the Canadian Lottery Coalition Members to file their proposed evidence, finding it potentially helpful for the reference panel.

The court dismissed the Canadian Gaming Association's motion for a confidentiality order, ruling that alleged reputational harm was a private interest insufficient to override court openness, especially as the information was largely public.

The defendant's anti-SLAPP motion to dismiss the plaintiffs' defamation action was unsuccessful.

This decision addresses the plaintiffs' request for costs.

Despite a statutory presumption against costs for unsuccessful anti-SLAPP motions under s. 137.1(8) of the Courts of Justice Act, the court exercised its discretion to award partial indemnity costs to the plaintiffs.

The court found that the original lawsuit did not exhibit the characteristics of strategic litigation against public participation (SLAPP) and the impugned expression was not public interest speech.

Considering factors under Rule 57.01 of the Rules of Civil Procedure, including the complexity and importance of the issues, the court awarded $10,000 in costs to the plaintiffs, reducing the amount claimed due to concerns about the hours spent and the number of lawyers involved.

This endorsement from a case conference addresses procedural issues in a complex litigation, specifically disputes regarding the admissibility of expert reports and estimates of trial length.

The court noted progress in resolving these issues and scheduled a further case conference to revisit them and receive an update on an expert witness's health.

This endorsement from a case conference addresses several procedural issues in a complex litigation.

It sets a timetable for a forthcoming motion by the Attorney General of Canada regarding the taking of evidence from certain witnesses before trial.

The court also noted Ontario's expected late delivery of expert reports, discussed the parties' differing estimates for trial length and scheduled a follow-up conference, and provided guidance on addressing concerns about trial presentation software (CaseLines).

The appellant contested the denial of statutory accident benefits following a 2010 automobile accident, bringing simultaneous proceedings before the Divisional Court by way of statutory appeal on questions of law and judicial review on questions of fact and mixed fact and law.

The courts below held that, where there is a limited statutory right of appeal, judicial review should only be exercised in exceptional or rare cases.

The Supreme Court of Canada held this was an error: a circumscribed statutory right of appeal on questions of law does not restrict the availability of judicial review on questions of fact or mixed fact and law, and the Strickland framework does not support imposing a heightened threshold for judicial review in such circumstances.

The Court further found that the LAT adjudicator's reconsideration decision was unreasonable because he failed to consider the effect of the reinstatement of income replacement benefits on the validity of the initial denial and failed to have regard to relevant tribunal jurisprudence on the point.

The appeal was allowed and the matter remitted to the LAT adjudicator for reconsideration.

This costs endorsement followed a partial success on appeal where the appellant, Justice of the Peace Lauzon, had her appeal from the merits decision dismissed but her appeal from the disposition decision allowed, resulting in a reprimand and 30-day suspension instead of removal from office.

While the parties agreed on costs for the appeal, Divisional Court, and leave motion, they disagreed on the costs of the original hearing before the Hearing Panel.

The appellant sought full reimbursement for these hearing costs, arguing her appeal success effectively overruled the reasons for their previous reduction.

The Court of Appeal dismissed this request, finding that the appellant had not sought leave to appeal the Divisional Court's decision on the Hearing Panel's costs recommendation, nor had she demonstrated any reversible error.

The court concluded that the partial success on appeal did not affect the reasonableness of the Hearing Panel's original costs recommendation, and therefore made no order regarding those costs.

This appeal concerns a share-purchase transaction under a unanimous shareholders' agreement (USA) that went awry.

The appellants, Leeder Automotive Inc. and 2786818 Ontario Inc., sought to compel the respondent, Douglas Warwick, to sell his shares.

The application judge dismissed their application, finding that Leeder had repudiated the share-purchase agreement by failing to comply with the USA's valuation provisions.

On appeal, the Court of Appeal affirmed the application judge's finding of repudiation, although it corrected her legal error by clarifying that the share-purchase transaction constituted a standalone contract capable of repudiation, rather than merely an implementation of the USA.

The Court found that Leeder's failures to obtain an independent real estate appraisal and to prepare financial statements in accordance with GAAP, including the improper exclusion of a significant settlement, amounted to fundamental breaches, justifying the respondent's acceptance of repudiation.

The appeal was dismissed.

The plaintiffs sought costs following a successful 25-day medical malpractice trial where they "beat" a Rule 49 offer.

The defendants proposed a lower costs amount.

The court awarded the plaintiffs $3 million in costs, finding their request consistent with similar complex medical malpractice cases and justified by the defendants' conduct, which unnecessarily lengthened the proceeding and increased the plaintiffs' legal work.

The court considered factors under Rule 57.01, including the complexity of the case, the plaintiffs' complete success, and the defendants' late disclosure and attempts to introduce contradictory evidence.

The Attorney General of Canada brought a motion seeking leave to examine three expert witnesses before trial.

The parties largely resolved the motion, leaving the court to adjudicate the quantum of interim costs payable by Canada to the plaintiff (Six Nations of the Grand River Band of Indians) and the costs of the motion.

The court awarded the plaintiff $150,000 in interim costs to indemnify for financial prejudice due to duplicated work and early incurred expenses from the pre-trial examinations.

The court declined to award costs for the motion itself, finding that all parties had compromised their positions and no exceptional circumstances warranted a costs award.

The plaintiffs in two medical negligence actions appealed a decision dismissing their motions to compel production of documents and answers to discovery questions related to hospital quality of care reviews.

The Associate Justice had found the information irrelevant and protected by common law quality assurance privilege.

On appeal, the court found the documents and questions to be relevant but upheld the Associate Justice's conclusion that a common law evidentiary privilege (Wigmore test) applied to the quality assurance communications, and that the Quality of Care Information Protection Act, 2016 (QCIPA) did not abrogate this common law privilege.

The appeals were dismissed.

The plaintiff suffered a catastrophic brain bleed and traumatic brain injury during an elective multi-step medical intervention for an asymptomatic brain AVM.

The plaintiff brought a medical negligence action against the treating physicians, alleging a failure to obtain informed consent.

The Superior Court of Justice found that the physicians failed to adequately disclose the cumulative risks of the multi-step procedure, the likelihood of requiring surgical resection, and the risks of conservative management.

The court concluded that a reasonable person in the plaintiff's position would not have proceeded with the intervention had they been properly informed, and held the physicians liable for the plaintiff's injuries.

The plaintiffs in a medical malpractice action brought a motion to exclude the defendants' expert witness, a vascular neurosurgeon and interventional neuroradiologist, on the basis of bias.

The court conducted a voir dire and reviewed the expert's reports, past testimony, and relationship with the defendant physicians.

The court found that the expert was not impartial, acted as an advocate, failed to disclose his professional and personal relationship with one of the defendants, and assumed the defendants' evidence was credible while ignoring the plaintiffs' evidence.

The court concluded that the expert was unable and unwilling to comply with his duty to the court and excluded his evidence in its entirety.

The plaintiffs in two medical negligence actions brought refusals motions seeking production of information and documents from hospital case reviews and morbidity and mortality rounds.

The defendants argued the information was irrelevant and protected by common law quality assurance privilege.

The court dismissed the motions, finding the information irrelevant as it involved hindsight and potential remedial measures.

Furthermore, the court held that the Quality of Care Information Protection Act, 2004 did not abrogate common law privilege, and the communications satisfied the Wigmore criteria for protection.

The plaintiffs moved for an interlocutory injunction to prohibit the Independent Electricity System Operator (IESO) from enforcing the deemed terminations of 34 Feed-In Tariff (FIT) contracts and discontinuing payments.

The court found that the motion was an impermissible collateral attack on prior court orders that had deemed the contracts terminated.

Furthermore, the plaintiffs sought a mandatory injunction but failed to establish a strong prima facie case, as the issues of termination had been decided in prior litigation.

The court also found the plaintiffs' evidence of irreparable harm to be speculative.

The motion for an interlocutory injunction was dismissed.

The plaintiff brought motions to approve a $10 million national settlement in a class action regarding PayPal's foreign currency conversion practices, and to approve class counsel fees and a representative plaintiff honorarium.

The court found the settlement fair, reasonable, and in the best interests of the class, noting the significant litigation risks and the efficient direct-deposit distribution protocol.

The court also approved class counsel's 25% contingency fee request and awarded a $10,000 honorarium to the representative plaintiff for his exceptional efforts in initiating the litigation.