Alex Smith

A lawyer and human rights advocate sued for defamation after a charitable organization published articles accusing him of supporting terrorists.

The plaintiff had met with the father of an alleged Palestinian terrorist, expressed sympathy for the father whose home was demolished, and posted about the matter on social media.

The defendant moved to dismiss the action as a SLAPP (Strategic Litigation Against Public Participation) under section 137.1 of the Courts of Justice Act.

The motion judge dismissed the action, finding the defendant had valid defences of fair comment, justification, and qualified privilege.

The Court of Appeal allowed the appeal, finding the motion judge erred in applying the wrong legal standard and that the plaintiff had met his burden under section 137.1(4)(a)(ii) by showing a reasonable trier could conclude none of the defences would succeed.

The court also found the balancing test under section 137.1(4)(b) favoured the plaintiff.

The plaintiffs brought a motion to extend the time for service of their statement of claim and to validate service, after serving the claim approximately six months past the deadline.

The defendants opposed the motion, arguing the delay was tactical and prejudiced their ability to defend the action.

The court applied the test from Rowland v. Wright Medical Technology Canada Ltd., finding that the plaintiffs met their onus to demonstrate no prejudice resulted from the brief delay, as relevant documents were preserved and witnesses remained available.

The motion was granted, service was validated, and the plaintiffs were awarded costs of $10,000.

Kristine Jill Hill was found in contempt of a June 28, 2017 order.

This endorsement addresses the sentencing, which included a joint submission, and the quantum of full indemnity costs to be paid by Ms. Hill as part of her sentence.

The court considered principles of reasonableness, indemnity, and factors under Rule 57.01 of the Courts of Justice Act.

The court found the matter complex, noted unnecessary steps taken by the defendants, and ultimately awarded the plaintiffs the requested costs of $320,899.64.

The applicant political party brought an application and motion for an interlocutory injunction against the respondent member and his campaigns, alleging unauthorized use of the party's confidential membership list to send emails criticizing the party leader.

The respondents brought a cross-motion to dismiss the application under the anti-SLAPP provisions of the Courts of Justice Act.

The court granted the anti-SLAPP motion, finding that the proceeding arose from expression on a matter of public interest (political debate), the applicant failed to show its claims had substantial merit and no valid defence existed, and the public interest in protecting the expression outweighed the public interest in allowing the proceeding to continue.

The action was dismissed.

The moving parties brought a motion to quash the responding parties' appeal of an order requiring interim payments pending a phase two trial.

The moving parties argued the order was interlocutory, or alternatively, made under the Ontario Business Corporations Act, meaning jurisdiction lay with the Divisional Court.

The Court of Appeal dismissed the motion, finding the order was final as it determined minimum payment amounts and rejected certain deductions.

The Court also held the underlying relief was rooted in common law and equity, not the OBCA, giving the Court of Appeal jurisdiction.

The plaintiff, a former associate lawyer, brought a motion to consolidate her wrongful dismissal action against her former employer with a subsequent libel action against the employer and their legal counsel.

The libel action arose from comments made by the employer's counsel to a legal publication regarding the wrongful dismissal pleadings.

The court dismissed the motion to consolidate, finding that doing so would likely force the defendants' counsel to step down due to conflicts of interest and risk breaching solicitor-client privilege.

Instead, the court ordered a stay of the libel action pending the resolution of the wrongful dismissal action.

Following the settlement and abandonment of an application for judicial review regarding the Crown's duty to consult, the interveners and the respondent Ontario Power Authority sought costs against the applicants.

The Divisional Court dismissed the requests for costs.

The court held that interveners typically do not receive costs and that imposing costs on First Nations in disputes concerning constitutional rights and reconciliation would inappropriately deter such claims.

The court also denied costs to the Ontario Power Authority, noting it played a secondary role and the Crown itself did not seek costs.

The appellant utility appealed a Divisional Court decision affirming an Ontario Energy Board order that reclassified $22 million in FT-RAM revenues from utility earnings to gas supply cost reductions.

The appellant argued this was an unauthorized departure from their Incentive Regulation Mechanism Agreement and constituted impermissible retroactive ratemaking.

The Court of Appeal dismissed the appeal, finding that the revenues were generated on a planned basis contrary to the regulatory principle inherent in the agreement, and that because the revenues were brought forward for disposition and the utility failed to disclose its planned activities, the funds were encumbered and subject to further disposition by the Board without offending the rule against retroactive ratemaking.

The applicant sought to be relieved from paying costs under the public interest principle after its application was dismissed.

The Divisional Court declined to deprive the respondents of costs, noting that while the applicant had no pecuniary interest, the application was without legal basis given clear and recent precedent.

The applicant was ordered to pay partial indemnity costs of $10,000 to each of the respondents.

East Durham Wind, LP moved to be added as a party or intervener in an application for judicial review concerning a Renewable Energy Approval for its wind project.

The applicant opposed the motion, while the respondent Ministry consented.

The court granted East Durham Wind party intervener status under Rule 13.01, finding it had a direct economic interest and could make a useful contribution.

The court also granted the moving party's request to conditionally transfer the proceeding from Brampton to Toronto to facilitate an expedited hearing before the scheduled start of project construction.

The defendant tobacco companies brought motions for summary judgment to dismiss the plaintiffs' proposed class actions as statute-barred.

The plaintiffs alleged the defendants breached their contracts by participating in smuggling duty-free tobacco back into Canada, avoiding higher domestic prices.

The defendants argued the plaintiffs knew or ought to have known of the alleged smuggling long before commencing the actions in 2009 and 2010.

The court dismissed the motions, finding a genuine issue requiring a trial regarding when the plaintiffs discovered the constituent elements of their claims, particularly given the defendants' consistent denials of involvement in smuggling.

The Crown applied for a mistrial after the trial judge engaged in an off‑the‑record conversation with the officer‑in‑charge about matters related to the case following the release of guilty verdicts but before sentencing.

The judge acknowledged the conversation occurred in chambers without counsel present and related to a website mentioned in the evidence, though no information about the complainant had been obtained.

While the judge maintained the ability to disregard any information received, the court concluded that the conversation created a reasonable apprehension of bias affecting the perceived fairness of the process.

Given that the court was not functus officio regarding counts awaiting sentence, the judge exercised the authority to vacate the adjudications of guilt prior to sentencing.

A mistrial was ordered and the guilty findings were set aside.

In complex estate and commercial litigation arising from estate planning transactions and a will that effectively disinherited family members, the plaintiffs sought leave to further amend their statement of claim to add allegations of knowing assistance in breach of trust and fiduciary duty against an accountant and additional particulars against other defendants.

Several defendants opposed the amendment on the basis of prejudice and limitation periods under the Limitations Act, 2002.

The court held that under Rule 26.01 of the Rules of Civil Procedure leave to amend should be granted unless non-compensable prejudice would result, and that disputes about discoverability and limitation periods should be determined by the trial judge on a full evidentiary record.

As discoveries were ongoing and trial remained more than a year away, any prejudice could be addressed through costs.

Leave to amend was granted with costs awarded to certain defendants for prejudice arising from the amendments.

The appellant utility company appealed a decision of the Ontario Energy Board that reclassified $22 million in earnings from a transportation risk alleviation mechanism as 'gas transportation costs' rather than 'utilities revenue'.

The appellant argued this constituted impermissible retroactive ratemaking.

The Divisional Court dismissed the appeal, finding that the standard of review was reasonableness and that the Board had the authority under section 36 of the Ontario Energy Board Act to ensure rates were just and reasonable, particularly given the appellant's lack of disclosure regarding the nature of the revenues.

The interveners, H20 Power Limited Partnership and Resolute FP Canada Inc., were granted leave to intervene on restrictive terms.

Both the interveners and the applicants sought costs against each other for the motion.

The court found that success was divided, as neither party achieved their primary position.

Applying the general rule that interveners are not awarded costs and costs are not awarded against them, the court made no order as to costs.

The moving party, a declared vexatious litigant, brought a motion to set aside an order dismissing his request for a stay of a Superior Court order.

The respondents brought a cross-motion to quash the motion on the basis that the moving party failed to obtain leave from the Superior Court before initiating further proceedings.

The Court of Appeal found the moving party's motion was moot as his appeal had already been dismissed for delay.

The Court granted the cross-motion, quashed the moving party's motion as an abuse of process, and ordered that he may not bring any further proceedings in the Court of Appeal without leave.

The appellant appealed the sentence imposed by the Superior Court of Justice.

The Court of Appeal considered the gravity of the offences, the appellant's high degree of moral blameworthiness, his failure to address a long-standing alcohol problem, his failure to comply with court orders, and his criminal record.

The Court concluded that while the global sentence was substantial, it was not manifestly excessive.

Leave to appeal was granted, but the appeal against sentence was dismissed.

The appellant appealed his convictions for sexual assault and assault, arguing that the trial judge erred in the jury charge regarding reasonable doubt, the definition of assault, the theory of the defence, and the failure to give a limiting instruction on a prior consistent statement.

The Court of Appeal dismissed the appeal, finding that the charge substantially complied with the Lifchus standard for reasonable doubt and adequately stated the law on assault.

The Court also held that the trial judge adequately put the defence's position to the jury and that a limiting instruction on the prior consistent statement was unnecessary because the defence relied on it.

The appellant was convicted of three bank robberies based primarily on eyewitness identification evidence and a statement obtained following his arrest.

He appealed his convictions.

The Court of Appeal found that the trial judge made several fatal errors in instructing the jury on eyewitness identification, including stating that stress is a neutral factor and endorsing an in-court experiment.

The Court also noted that the trial judge failed to adequately consider the investigating officer's failure to tape record the appellant's statement.

The appeal was allowed, the convictions were quashed, and a new trial was ordered.