Brandon Kain

The parties entered into a contract in 1999 for the provision of market pricing data.

The appellant, a custodial bank, redistributed the data to its numerous affiliates without authorization.

The respondent discovered the breach in 2016 and sued.

The trial judge found the appellant breached the contract and awarded damages based on a rateable approach, but also awarded damages for sharing data with a specific affiliate.

On appeal, the Court of Appeal upheld the liability finding, concluding the contract only authorized the appellant itself to access the data.

The Court also upheld the trial judge's decision to change his unentered judgment and rejected the appellant's limitations defence.

On damages, the Court struck the award relating to the specific affiliate as double compensation but otherwise upheld the damages assessment, including an adverse inference drawn against the appellant for spoliation of evidence.

The plaintiffs brought a motion to certify a class action against the manufacturers of the antidepressant Celexa, alleging it is a teratogen that causes congenital malformations.

The plaintiffs proposed common issues regarding general causation (whether Celexa is or may be teratogenic) and duty to warn.

The court dismissed the certification motion, finding that the proposed common issues failed to satisfy the commonality requirement under s. 5(1)(c) of the Class Proceedings Act, as they would not advance the litigation without individual trials for each specific congenital malformation.

The court also found that a class proceeding was not the preferable procedure due to the overwhelming number of complex individual issues.

Cineplex and Cineworld entered into an Arrangement Agreement for Cineworld to acquire Cineplex for $2.8 billion.

Following the outbreak of the COVID-19 pandemic and mandated theatre closures, Cineplex deferred payments to landlords and suppliers to manage liquidity.

Cineworld terminated the agreement, alleging Cineplex breached the ordinary course covenant.

The court found that Cineplex's cash management measures were commercially reasonable and did not breach the agreement, noting that the pandemic risk was allocated to Cineworld under the Material Adverse Effect clause.

Cineworld's termination was a repudiation, and Cineplex was awarded $1.24 billion in damages for lost synergies and transaction costs.

The respondents in the underlying application (BNY) brought a motion to adjourn a damages trial until after the disposition of their pending appeal on liability, to adduce further evidence, and to settle the form of judgment on liability.

The court had previously found BNY liable for breach of contract and ordered a viva voce trial on damages due to the complexity of the record.

The court dismissed the motion, finding that an adjournment would effectively impose a bifurcation not agreed to by the parties, contrary to Rule 6.1.01, and that the balance of convenience favoured proceeding with the damages trial to allow a single appeal on both liability and damages.

The court also declined to allow new evidence or settle the form of judgment at this stage.

The plaintiffs moved for an interlocutory injunction to prohibit the Independent Electricity System Operator (IESO) from enforcing the deemed terminations of 34 Feed-In Tariff (FIT) contracts and discontinuing payments.

The court found that the motion was an impermissible collateral attack on prior court orders that had deemed the contracts terminated.

Furthermore, the plaintiffs sought a mandatory injunction but failed to establish a strong prima facie case, as the issues of termination had been decided in prior litigation.

The court also found the plaintiffs' evidence of irreparable harm to be speculative.

The motion for an interlocutory injunction was dismissed.

The plaintiffs brought a motion to certify a class action against the manufacturers and marketers of the antipsychotic drugs Abilify and Abilify Maintena, alleging negligence, failure to warn, and conspiracy regarding the risk of impulse control disorders.

The defendants opposed certification and brought a motion to stay the proceeding as an abuse of process, citing a parallel authorized class action in Québec.

The court found that the plaintiffs met all the criteria for certification under section 5(1) of the Class Proceedings Act, including establishing a plausible methodology for proving general causation.

The court dismissed the defendants' stay motion, finding that the Ontario action was not an abuse of process despite the last-minute amendments to the Québec claim that mirrored the Ontario pleading.

The plaintiffs brought a motion to certify a class action against the manufacturers of the antidepressant Celexa (citalopram), alleging the drug caused congenital malformations when ingested by pregnant women and that the defendants failed to warn of this risk.

The court found that while the pleadings disclosed a cause of action and there was an identifiable class, the proposed common issue regarding the duty to warn lacked commonality because the risk of birth defects varied widely and individual causation issues would dominate.

The court concluded a class proceeding was not the preferable procedure due to the inevitability of complex individual trials, and dismissed the certification motion.

The successful defendants in a proposed class action sought costs of $1,000,455.22 on a partial indemnity basis following a dispositive jurisdiction motion.

The unsuccessful plaintiff argued that no costs should be awarded because the case raised novel and important issues regarding the jurisdictional reach of Ontario courts over foreign defendants in securities matters, or alternatively, that the costs claimed were excessive.

The court rejected the plaintiff's arguments, finding that the litigation was entrepreneurial rather than altruistic, and that the issues were not novel in a way that justified departing from the normal loser-pays rule.

The court concluded that the defendants' costs, including substantial expert witness fees, were fair, reasonable, and within the reasonable expectations of the plaintiff given the $8 billion value of the claim.

The defendants were awarded their costs as requested.

The plaintiff brought a proposed global class action under the Class Proceedings Act, 1992 against a foreign holding company and its former employee, alleging misrepresentations in the secondary market regarding anti-money laundering compliance and Libor/Euribor manipulation.

The defendants brought a motion to dismiss or stay the action for lack of jurisdiction simpliciter or on the basis of forum non conveniens.

The plaintiff brought a cross-motion for a declaration that the corporate defendant was a 'responsible issuer' under the Securities Act.

The court found that the corporate defendant did not carry on business in Ontario and rebutted any presumptive connecting factors, concluding that the court lacked jurisdiction simpliciter.

Furthermore, the court held that even if jurisdiction existed, Ontario was forum non conveniens.

The statutory claims were dismissed and the common law claims were stayed.

VMedia sought a declaration that its new internet retransmitting service, which simultaneously retransmits over-the-air television signals, does not infringe Bell's copyrights in CTV programming.

VMedia argued it was entitled to a compulsory license under section 31 of the Copyright Act because it operated under its Broadcast Distribution Undertaking licenses rather than the CRTC's New Media Exemption Order.

The court found that VMedia's service is delivered and accessed over the internet, meaning it operates under the Exemption Order and is statutorily excluded from the compulsory licensing regime.

VMedia's application was dismissed, and Bell's counter-application for a declaration of copyright infringement and a permanent injunction was granted.

The plaintiffs brought a proposed class action alleging a global price-fixing conspiracy by the defendants regarding airfreight shipping services.

The defendants brought a motion to stay the action as it related to absent foreign claimants, arguing the court lacked jurisdiction simpliciter.

The court granted the motion, finding that the real and substantial connection test should not be applied to establish jurisdiction over absent foreign claimants, as an Ontario judgment would not be recognized abroad, offending principles of order, fairness, and comity.

Alternatively, the court held that even if jurisdiction existed, it would decline it on the basis of forum non conveniens.

The Crown and Ontario First Nations entered into a revenue sharing agreement requiring the Crown to appoint a First Nations representative to the board of directors of the Ontario Lottery and Gaming Corporation (OLG).

When no appointment was made, First Nations sought arbitration.

The Crown and OLG moved to strike the claim, arguing the appointment was protected by Crown prerogative and non-justiciable.

The arbitration panel dismissed the motion and also allowed First Nations to withdraw its claim against OLG.

The Crown and OLG appealed both decisions.

The Superior Court dismissed the appeals, holding that the Crown prerogative could not be used to avoid a declaration that a contract had been breached, and that OLG was not a necessary party to the arbitration.

The moving parties sought a stay of an arbitration proceeding pending appeals from arbitration panel decisions concerning jurisdiction and party participation.

The dispute arose from an agreement granting the respondent First Nations partnership a right to have a nominee appointed to the board of the Ontario Lottery and Gaming Corporation.

The moving parties argued the arbitration panel lacked jurisdiction due to the Crown prerogative over appointments and that the exclusion of the corporation from the arbitration violated natural justice.

Applying the tripartite test for a stay from RJR‑MacDonald, the court found serious issues on appeal regarding jurisdiction, irreparable harm to the public interest if arbitration proceeded prematurely, and that the balance of convenience favoured the moving parties.

The court therefore stayed the arbitration pending determination of the appeals.

The plaintiffs brought a motion to certify a class action against the defendants, the manufacturers of the antipsychotic drug Seroquel.

The plaintiffs alleged that Seroquel caused various health risks, including weight gain and diabetes, and that the defendants were negligent in their design, testing, marketing, and failure to warn, particularly regarding off-label uses.

The court dismissed the certification motion, finding that the plaintiffs failed to satisfy any of the criteria under section 5(1) of the Class Proceedings Act.

The statement of claim was found to be fundamentally deficient, failing to disclose a valid cause of action.

Furthermore, the court found no identifiable class, a lack of common issues capable of being assessed in common, that a class action was not the preferable procedure, and that the proposed representative plaintiffs were unsuitable.