Andrea Campbell

Porter Airlines and Nieuport Aviation disputed the calculation of terminal fees at Billy Bishop Airport under a Licence Agreement.

Porter argued it could pay fees based on a variable daily slot allocation and claimed force majeure due to the COVID-19 pandemic to excuse non-payment.

Nieuport argued fees were based on a fixed, recurring number of daily slots and counterclaimed for unpaid fees.

The court held that the Licence Agreement required payment based on a fixed number of recurring daily slots.

The court also found that the COVID-19 pandemic did not trigger the force majeure clause to excuse Porter's payment obligations.

Porter was ordered to pay over $131 million in damages for unpaid terminal fees, while Nieuport's recourse under a guarantee was limited to specified aircraft.

The appellants (Fortress and its principals) appealed a motion judge's decision dismissing their defamation and breach of contract claims against the respondent, Ben Rabidoux, under section 137.1 of the Courts of Justice Act.

The motion judge found that Rabidoux's tweets related to matters of public interest and that the appellants failed to demonstrate that the harm caused was sufficiently serious to outweigh the public interest in protecting freedom of expression.

The appellants also sought leave to appeal the costs award on a full indemnity basis.

The Court of Appeal dismissed the main appeal, upheld the full indemnity costs award, and varied the costs order only to add HST.

The appellants appealed the motion judge's order striking their statement of claim without leave to amend on grounds of being time-barred and constituting an abuse of process.

The Court of Appeal found that while most of the claims were properly struck as statute-barred under the Limitations Act, 2002, the motion judge erred by not separately considering paragraph 39 of the statement of claim, which alleged a new claim arising from the dissolution of a corporate defendant in 2013.

The court allowed the appeal in part, setting aside the order with respect to paragraph 39 and remitting the matter for further consideration.

The defendant, Ben Rabidoux, brought a motion to dismiss a defamation and breach of contract action initiated by the plaintiffs, Fortress Real Developments Inc., Fortress Real Capital Inc., Jawad Rathore, and Vince Petrozza.

The motion was brought under Ontario's anti-SLAPP legislation, s. 137.1 of the Courts of Justice Act, alleging the action was a "gag proceeding" arising from expressions relating to matters of public interest.

The court found that Rabidoux's tweets, concerning OSC violations, syndicated mortgages, and condo developments related to the plaintiffs' business, constituted matters of public interest.

The burden then shifted to the plaintiffs to demonstrate substantial merit, no valid defence, and sufficiently serious harm outweighing the public interest in protecting expression.

The court found the plaintiffs failed to provide credible and compelling evidence of specific damages, noting that other public comments and regulatory issues were more likely sources of reputational harm.

Consequently, the action against Rabidoux was dismissed.

The court declined to award punitive damages due to lack of quantification submissions.

The plaintiff commenced an action in 1989 alleging the defendants dumped coal tar waste that migrated onto its property.

After 25 years of litigation, the defendants moved to dismiss the action for delay under Rule 24 of the Rules of Civil Procedure.

The court found that while the initial 14 years of delay were excusable due to collaborative settlement efforts, the plaintiff's failure to advance the litigation after 2003 was inordinate and inexcusable.

The court held that the plaintiff failed to rebut the strong presumption of prejudice, as it had not preserved the evidence of key witnesses who had since passed away.

The motion was granted and the action was dismissed.