Andrew Elliot Bernstein

This is an appeal from a motion judge's decision denying an anti-SLAPP motion brought by the appellant, Brooke Dietrich, under s. 137.1 of the Courts of Justice Act.

The respondent, 40 Days for Life, an anti-abortion organization, sued Dietrich for defamation, internet harassment, fraud, breach of contract, inducing breach of contract, and civil conspiracy, following her TikTok videos encouraging disruption of their prayer vigils and online operations.

The motion judge found that 40 Days for Life's claims for defamation, internet harassment, and conspiracy had substantial merit and no valid defence, and that the public interest in continuing the action outweighed the public interest in protecting Dietrich's expression.

The Court of Appeal upheld the motion judge's decision, finding no reviewable error in her assessment of the merits of the claims (specifically defamation and conspiracy) or in her public interest balancing.

The Court emphasized that Dietrich's expression, which encouraged disruption and interference with 40 Days for Life's operations, was of low value and not the type of counter-speech protected by anti-SLAPP legislation.

The appeal was dismissed with costs.

The parties disputed the wording of the formal order dismissing the proceeding.

The respondent, Canadian National Railway Company (CN), sought to include a recital stating that the applicants had made a formal admission that only three specific bylaws were relied upon for injunctive relief, despite initially listing over 50.

The applicants opposed this, intending to argue on appeal that they did not solely rely on those three bylaws.

The court declined to supplement its reasons or explain its understanding of the proceedings beyond its original decisions, signing CN's draft order without the requested recital.

The appellant infringed a patent held by the respondents for metallocene linear low-density polyethylenes (thin but strong plastics).

Following a liability finding, a reference judge awarded the respondents an accounting of profits equal to the appellant's actual revenue minus actual full costs, and also awarded springboard profits — profits earned post-patent-expiry causally attributable to infringement during the patent period.

The majority dismissed the appeal, holding that an accounting of profits requires disgorgement of all profits causally attributable to the invention using a three-step framework; the appellant's concession that no non-infringing option existed precluded reduction of the award; and springboard profits are legally permissible and factually supported.

Côté J. dissented, arguing the differential profit approach should have been available and the matter remitted to the Federal Court.

Three cross-appeals arose from the interpretation of a 1985 environmental indemnity granted by the Province of Ontario to former pulp mill owners, their successors and assigns, in the context of the settlement of mercury contamination litigation brought by two First Nations.

The majority held that the indemnity did not cover first party regulatory compliance orders, as the motion judge made palpable and overriding factual errors, and the indemnity, properly read as a whole, was intended to cover only third party pollution claims.

The appeal of the Province was allowed; the appeals of the corporate successors were dismissed.

The dissent (Côté, Brown and Rowe JJ.) would have dismissed the Province's appeal and allowed the appeal of Resolute, concluding the indemnity covered the Director's remediation order, that the fettering doctrine did not render the indemnity unenforceable, and that Resolute — as Great Lakes' corporate successor — was entitled to the indemnity's protection, but Weyerhaeuser was not, as neither an assignee nor a corporate successor of Great Lakes or Reed.

Three cross-appeals arose from the interpretation of a 1985 environmental indemnity granted by the Province of Ontario to former pulp mill owners, their successors and assigns, in the context of the settlement of mercury contamination litigation brought by two First Nations.

The majority held that the indemnity did not cover first party regulatory compliance orders, as the motion judge made palpable and overriding factual errors, and the indemnity, properly read as a whole, was intended to cover only third party pollution claims.

The appeal of the Province was allowed; the appeals of the corporate successors were dismissed.

The dissent (Côté, Brown and Rowe JJ.) would have dismissed the Province's appeal and allowed the appeal of Resolute, concluding the indemnity covered the Director's remediation order, that the fettering doctrine did not render the indemnity unenforceable, and that Resolute — as Great Lakes' corporate successor — was entitled to the indemnity's protection, but Weyerhaeuser was not, as neither an assignee nor a corporate successor of Great Lakes or Reed.

This is a costs endorsement following the certification of a class action.

The plaintiffs, having succeeded in certifying their action, sought substantial costs totaling over $368,000.

The court significantly reduced the requested amount, disallowing costs related to scheduling, a companion motion in Quebec, and expert fees/counsel time for experts at the certification stage.

The court found that the defendant's opposition to certification was modest and did not constitute a "full attack" warranting such extensive costs at that stage.

The final award was $84,500 plus HST in partial indemnity costs and $27,119.34 in disbursements.

This proposed class action alleged that Bell Mobility Inc. breached the privacy rights of its data service customers by using their personal information for its "Relevant Advertising Program" (RAP) without consent.

The plaintiffs sought certification of the class action.

The court certified the action, including all pleaded causes of action (contract, waiver of tort, negligence, breach of confidence, intrusion upon seclusion, consumer protection legislation, and Quebec civil law claims) and common issues.

The court rejected the defendant's argument that some claims were redundant and made the class proceeding unmanageable, affirming that it is not the judge's role at certification to pare down properly pleaded causes of action.

The decision also addressed the availability and methodology for aggregate damages.

The appellant, Georgian Properties Corporation, appealed a summary judgment that reduced the principal amounts owing under two vendor take-back mortgages given by the respondent condominium corporation to the developer.

The mortgages related to HVAC service units and unsold parking and storage units.

The motion judge found the developer's revised disclosure documents infringed the Condominium Act and that both transactions were oppressive.

The principal amounts were reduced to reflect fair market value.

The Court of Appeal upheld the motion judge's findings regarding insufficient disclosure and oppression, dismissing the appeal and cross-appeal.

The Canadian National Railway Company (CNR) moved to stay an application brought by the Regional Municipality of Halton and its constituent municipalities (Halton) concerning the applicability of provincial and municipal laws to CNR's proposed intermodal rail hub in Milton.

Halton's application sought declarations on constitutional division of powers issues, arguing that provincial and local laws of general application should apply to the federal undertaking.

CNR contended the application was premature and interfered with an ongoing federal environmental assessment process.

The court granted CNR's motion to stay Halton's application, finding that while the constitutional issues were not hypothetical, the federal environmental review panel was mandated to consider local concerns and impacts, and allowing the application to proceed would be an unwarranted intrusion into the federal process and an inefficient use of judicial resources.

The stay is temporary, pending the completion of the federal environmental assessment and the Minister's decision.

The Court allowed the appeal and held that an Internet service provider may recover reasonable costs required to comply with a Norwich order, but not costs tied to obligations already imposed by the statutory notice and notice regime under ss. 41.25 and 41.26 of the Copyright Act.

Because the record did not permit a proper allocation between recoverable and non-recoverable work, the matter was remitted to the motion judge to determine the reasonable quantum, with Rogers permitted to adduce fresh evidence.

Following a prior decision staying the action in favour of arbitration, the defendants sought costs of the motion.

The defendants claimed $61,538.71 all-inclusive, while the plaintiff argued that fees should fall in the range of $25,000.

The court reviewed the billing approach, including reliance on the principle that partial indemnity costs may reflect a percentage of actual billing rates, and assessed the reasonableness of the work performed and hourly rates claimed.

Applying the reasonableness standard and the factors in Rule 57.1 of the Rules of Civil Procedure, the court concluded the work appeared excessive in the circumstances.

The court fixed fees and disbursements at a reduced amount payable by the plaintiff.

The accused was charged with assault with a weapon and assault causing bodily harm after striking the complainant on the head with a broomstick during a confrontation inside a residence.

The defence argued that the accused acted in self-defence, asserting that the complainant possessed a pocket knife and posed a threat.

The trial judge rejected this version of events, finding the defence witness unreliable and concluding there was no credible evidence that the complainant had a weapon or acted aggressively.

Applying the principles governing self-defence and the air of reality test, the court found that none of the essential elements of self-defence were supported by the evidence.

The Crown proved beyond a reasonable doubt that the accused intentionally struck the complainant with the broomstick, causing bodily harm.

The Court considered whether a patent specification for erectile-dysfunction treatment satisfied disclosure obligations under s. 27(3) of the Patent Act where cascading claims ended with two individual compounds but did not identify the tested effective compound.

The Court held sufficiency must be assessed on the specification as a whole and not by isolating a single surviving claim under s. 58.

Because a skilled person would need further testing to determine which claimed compound worked, the specification did not enable successful use of the invention from the disclosure alone.

The appeal was allowed, the prohibition order was set aside, and the patent was held invalid for insufficient disclosure.

The plaintiff sought certification of a proposed class action alleging copyright infringement against a legal publisher that reproduced lawyers’ court documents within an electronic research database without express permission.

The defendants argued the claim conflicted with the open court principle, lacked common issues, and would be unmanageable due to questions of originality, authorship, client participation, and solicitor‑client privilege.

The court held that the certification threshold is procedural and low under the Class Proceedings Act, 1992, and that several systemic questions about the defendant’s conduct and defences, including fair dealing, implied consent, and public policy, were capable of common resolution.

Although issues such as authorship, ownership, and damages would require individual determinations, the court concluded these did not preclude certification.

The proposed class was narrowed to lawyers and paralegals in private practice, and the action was certified with modified common issues.