Andrew Elliot Bernstein

The appellant and respondent reached a settlement in a copyright infringement class action, which the motion judge refused to approve.

The appellant appealed the refusal to the Court of Appeal.

The Court of Appeal quashed the appeal, holding that an order refusing to approve a class action settlement is an interlocutory order, not a final order, because the litigation continues and the merits of the case remain to be determined.

Therefore, jurisdiction to hear the appeal lies with the Divisional Court, with leave, rather than the Court of Appeal.

In a certified copyright infringement class action, the representative plaintiff sought court approval of a proposed settlement under the Class Proceedings Act, 1992.

The settlement would have required the defendant to fund a $350,000 cy‑près trust for public interest litigation, modify copyright notices, and receive non‑exclusive copyright licences from class members for court documents included in its legal database.

Individual class members would receive no monetary compensation, while class counsel sought $825,000 in fees.

The court held that the settlement was not fair, reasonable, or in the best interests of the class, emphasizing that it provided minimal benefit to class members while requiring them to grant valuable licences and releases.

The motions for settlement approval and counsel fee approval were dismissed.

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 defendants moved to stay the plaintiff's action on the basis that the dispute was subject to an arbitration agreement contained in a Share and Asset Purchase Agreement.

The plaintiff had commenced an action claiming oppressive conduct regarding the calculation of EBITDA, which affected the purchase price of the remaining shares.

The court found that it was arguable the dispute fell within the arbitration clause, which covered disputes over any amount shown in an EBITDA report.

The action was stayed pending the arbitrator's determination of jurisdiction and the merits.

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.

Following an appeal, the intervener Working Families Coalition (Canada) Inc. sought costs of the appeal.

The intervener had been granted leave to intervene before the Divisional Court on the condition that it would not seek costs and no costs would be awarded against it.

The Court of Appeal dismissed the request, finding that the intervener was bound by the original order and that allowing it to seek costs after learning the appeal's outcome would be fundamentally unfair to the appellants.

No costs were awarded to the intervener.

The appellants sought judicial review of the Chief Electoral Officer's decision not to report an alleged contravention of the Election Finances Act to the Attorney General, and his decision to register a third party during the 2007 provincial election.

The Divisional Court dismissed the application, finding the first decision was not subject to judicial review and the second was moot.

The Court of Appeal upheld the Divisional Court's decision, concluding that the Chief Electoral Officer's actions did not determine legal rights and were analogous to a police officer refusing to lay a charge.

The Court also found no error in the Divisional Court's discretionary decision to dismiss the third-party registration issue on grounds of mootness.

The defendants sought leave to appeal a decision certifying a class action under the Class Proceedings Act.

The court applied the test for leave to appeal under Rule 62.02 of the Rules of Civil Procedure.

Finding no conflicting decisions and no reason to doubt the correctness of the motions judge's decision, the court dismissed the application for leave to appeal with costs.

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.

A freelance author brought a class proceeding alleging copyright infringement arising from newspaper publishers' republication of articles in electronic databases and CD-ROM archives.

The Court held that databases presenting articles as decontextualized individual works did not reproduce the publishers' collective newspaper work and therefore infringed freelance authors' copyrights absent consent, but that the CD-ROM product sufficiently preserved the linkage to daily editions and was a valid reproduction of the newspaper.

The Court further held that only exclusive licences require writing under the Copyright Act, and that staff writers should not have been included in the class because they had no cause of action unless they had exercised their statutory right to restrain publication.

The appeal was dismissed and the cross-appeal allowed only with respect to the CD-ROMs.

The appellant, a freelance author, wrote articles published in The Globe and Mail.

The newspaper subsequently placed these articles in electronic databases (Info Globe Online, CPI.Q, and CD-ROM).

The appellant sued for copyright infringement.

The Court of Appeal held that the databases did not constitute a 'newspaper or similar periodical' and did not reproduce a substantial part of the newspaper's collective work.

The court also found that the oral licence granted by the appellant did not convey a proprietary interest and thus did not need to be in writing.

The appeal and cross-appeal were dismissed.

In an addendum to judgment regarding costs of an appeal, the respondents sought costs totaling $132,145.72.

The appellants opposed, seeking a stay of costs for one insolvent respondent, arguing for the application of the pre-2002 party and party costs regime, and challenging the hourly rates of junior counsel.

The Court of Appeal dismissed the stay request, held that the new costs grid under O. Reg. 284/01 applies retrospectively to services rendered before January 1, 2002, and reduced the hourly rates for certain junior counsel.

Total costs of $122,998.02 were awarded to the respondents on a partial indemnity basis.

The appellants, holders of debentures issued by BCED, appealed a trial judgment finding that a series of corporate reorganizations and asset transfers did not breach a successor obligor clause in the trust indenture.

The clause prohibited BCED from transferring 'all or substantially all' of its assets unless the transferee assumed the debenture debt.

The Court of Appeal dismissed the appeal, holding that the asset transfers did not meet either the quantitative or qualitative threshold to constitute 'all or substantially all' of BCED's assets.

The Court also found that a subsequent guarantee and foreclosure did not constitute a prohibited 'transaction' under the trust indenture, as the indenture expressly permitted BCED to incur and secure senior indebtedness.

The appellant contractor sought judicial review of an Ontario Labour Relations Board decision upholding a union grievance.

The appellant alleged a breach of natural justice because a draft decision dismissing the grievance was changed to uphold it after a full board meeting.

The Supreme Court of Canada dismissed the appeal, holding that institutional consultation does not breach natural justice provided it is limited to questions of policy and law, and the adjudicators remain free to decide.

The Court found no evidence that factual matters were improperly discussed at the full board meeting, and the change in the decision concerned a matter of law and policy regarding the abandonment of bargaining rights.

The respondent was appointed as a Commissioner of the Public Utilities Board, holding office during good behaviour until age 70.

The provincial government subsequently passed legislation restructuring the Board and abolishing the respondent's position without providing compensation.

The respondent sued for damages for breach of contract.

The Supreme Court of Canada held that the employment relationship between the Crown and a senior civil servant is contractual.

While the legislature has the power to eliminate the position, it cannot escape the financial consequences of breaching the employment contract without explicit statutory language extinguishing the right to compensation.

The appeal was dismissed, affirming the award of damages equivalent to two and one-half years of salary plus pension benefits.