Andrew Richard Carlson

The plaintiff appealed the dismissal of its motion for a declaration that the defendant was in contempt of court for failing to preserve electronic records.

The defendant moved to quash the appeal to the Court of Appeal for lack of jurisdiction, arguing the order was interlocutory.

The Court of Appeal granted the motion to quash, holding that an order dismissing a contempt motion is interlocutory because the merits of the case remain to be determined, and therefore the appeal lies to the Divisional Court with leave.

Following the dismissal of motions seeking an interlocutory voting injunction, an imaging order, and a contempt order, the court determined the appropriate costs award.

The unsuccessful moving party argued that most costs should be deferred to trial because the evidence overlapped with issues to be litigated on the merits.

The court rejected this submission, applying the principle that a successful defendant resisting interlocutory injunctive relief is generally entitled to costs payable forthwith.

After considering factors under Rule 57.01 of the Rules of Civil Procedure, including the high stakes of the motions, the absence of legal complexity, and certain conduct contributing to the contempt motion, the court fixed reduced partial indemnity costs for each successful defendant.

The moving party sought three forms of relief in a commercial dispute involving alleged misuse of confidential information: an interlocutory injunction preventing a shareholder from voting its 35% interest in a telecommunications company, an order authorizing forensic imaging and review of the defendants’ corporate servers and devices, and a finding of contempt for alleged breach of a prior consent order.

The court held that the requested voting injunction could not be granted because the moving party failed to provide the mandatory undertaking as to damages under Rule 40.03 of the Rules of Civil Procedure and failed to demonstrate irreparable harm or a favourable balance of convenience.

The requested imaging order was refused because there was no evidence that the responding party had failed to comply with its document production obligations or attempted to conceal or destroy electronic evidence.

The contempt motion also failed because the alleged acts—deleting personal browsing history and installing software capable of secure deletion—did not establish beyond a reasonable doubt that relevant information had been intentionally destroyed in breach of the consent order.

The Commissioner of Competition brought an application against Rogers and Chatr alleging that their advertising claims of 'fewer dropped calls than new wireless carriers' and 'no worries about dropped calls' were false, misleading, and made without adequate and proper testing, contrary to the Competition Act.

The court found that the applicant failed to prove the claims were false or misleading.

However, the court found that the respondents failed to conduct adequate and proper testing in certain cities prior to launching the advertising campaign, thereby engaging in reviewable conduct under s. 74.01(1)(b).

The court also dismissed the respondents' constitutional challenges, finding that s. 74.01(1)(b) is a justified limit on freedom of expression and that the administrative monetary penalty does not engage s. 11 of the Charter.