Brandon Michael Kain

During a legal strike, graduate student teaching assistants engaged in picketing and protests.

Following the strike, the university disciplined them under the Student Code of Conduct.

The students sought judicial review, arguing that under the Back to Class Act and the Labour Relations Act, a labour arbitrator had exclusive jurisdiction over discipline related to strike activities.

The Divisional Court agreed and quashed the university tribunal's decision.

The Court of Appeal dismissed the university's appeal, confirming that the specific, strike-ending legislation mandated that any dispute concerning discipline for activities during the strike be determined through grievance arbitration.

The appellant utility company appealed an Ontario Energy Board decision allocating 38% of Future Tax Savings to ratepayers.

The savings arose from a departure tax paid by the appellant when the Province sold shares in its parent company.

A Review Panel had previously found the original allocation flawed because the departure tax was a real cost borne by the utility, not ratepayers, and directed a rehearing.

The Rehearing Panel upheld the original allocation by applying a reasonableness standard rather than reconsidering the matter.

The Divisional Court held the Rehearing Panel erred in law by applying the wrong test, quashed the decision, and remitted the matter to a new panel with directions to apply the 'benefits follow costs' principle, meaning the tax savings should benefit the shareholders who bore the cost.

The Plaintiffs sought costs after successfully certifying a class action and dismissing a stay motion.

The court awarded the Plaintiffs $700,000 in all-inclusive costs, comprising $366,149.88 in disbursements and $333,850.12 in fees.

The court emphasized the discretionary nature of costs, the importance of certification motions in class actions, and the need for unsuccessful parties to provide their own bills of costs for comparison.

A portion of the costs ($30,000) was specifically allocated to two defendants (Bristol-Myers and Otsuka) for the stay motion, which the third defendant (Lundbeck) did not participate in.

A case management teleconference was held to schedule three motions for leave to appeal a decision of Morgan J. The Divisional Court set a timetable for the exchange of motion materials and directed that the motions proceed in writing before a single panel.

The court also provided detailed instructions for the creation of an electronic drop box, the formatting of electronic documents, and the filing of factums and compendiums in light of the COVID-19 suspension of ordinary court operations.

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 appellants appealed the dismissal of their motion to certify a class action against the manufacturer of the drug Celexa, alleging a failure to warn that the drug is a teratogen.

The Divisional Court found that the motion judge made palpable and overriding errors by concluding the appellants had abandoned general causation as a common issue and by analyzing the duty to warn in isolation from general causation.

The appeal was allowed, the decision set aside, and the certification motion was remitted to be heard afresh by another judge.

The appellants challenged a CRTC order prohibiting simultaneous substitution during the Super Bowl, issued pursuant to s. 9(1)(h) of the Broadcasting Act.

The majority held that the applicable standard of review was correctness given the statutory appeal mechanism in s. 31(2) of the Act, and that the CRTC's authority under s. 9(1)(h) is limited to issuing mandatory carriage orders requiring television service providers to carry specific channels on specified terms — it does not confer a general power to impose conditions on the carriage of programming services outside that context.

Because the Final Order did not mandate carriage of any channel but merely imposed a condition on providers already carrying one, it exceeded the CRTC's delegated power.

The appeals were allowed and both the Final Decision and Final Order were quashed.

Abella and Karakatsanis JJ. dissented, finding reasonableness the applicable standard and the CRTC's interpretation of s. 9(1)(h) reasonable given its specialized expertise.

An appeal from a summary judgment decision concerning the entitlement of a wrongfully dismissed employee to exercise stock options and restricted share units during the reasonable notice period.

The employer argued that contractual language prevented vesting after dismissal, relying on precedent.

The court upheld the motion judge's finding that the employee was entitled to damages for lost opportunity to exercise awards that would have vested during the notice period, distinguishing the controlling precedent on the basis that the contractual language lacked sufficient clarity to unambiguously remove common law rights.

The employee's cross-appeal regarding damages calculation was also dismissed.

A corn grower who neither purchased nor planted genetically modified corn seed brought a proposed class action against the seed manufacturer for negligence, negligent misrepresentation, and breach of the Competition Act.

The manufacturer had commercialized the seed in North America before obtaining approval in China.

The seed's traits commingled with all North American corn, causing China to ban all North American corn imports, resulting in a market glut and price collapse.

The motion judge struck all claims.

The Court of Appeal allowed the appeal in part, reinstating the negligence claim for premature commercialization while upholding dismissal of the misrepresentation and Competition Act claims.

The plaintiff, a commercial corn grower, brought a proposed class action against the defendants, manufacturers of genetically modified corn seeds (Agrisure), alleging negligence and breach of the Competition Act.

The plaintiff claimed that North American corn prices fell due to China's rejection of corn shipments containing unapproved Agrisure, causing economic loss to non-Agrisure farmers.

The defendants moved to strike the claim under Rule 21, arguing no duty of care existed for pure economic loss.

The court granted the motion, finding that while the claim was framed in misrepresentation, the plaintiff's reliance on the defendants' alleged undertaking not to introduce Agrisure without global approvals was unreasonable, as commingling was inevitable and preventing it would require withholding the product from the domestic market, which had regulatory approval.

The court also noted the risk of indeterminate liability and the illogical elevation of foreign approvals over domestic ones.

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 appellant brought a proposed class action asserting statutory claims for secondary market misrepresentation under Part XXIII.1 of the Securities Act and common law negligent misrepresentation against a foreign banking corporation.

The motion judge dismissed the statutory claim and stayed the common law claim, finding that Ontario courts lacked jurisdiction simpliciter and that Ontario was forum non conveniens.

The Court of Appeal dismissed the jurisdiction appeal but allowed the costs appeal in part, reducing the costs award from $1,000,455.22 to $800,000.

The court held that the common law test for "real and substantial connection" applies to the definition of "responsible issuer" under the Securities Act, and that the defendant did not have such a connection to Ontario merely because the plaintiff accessed disclosure documents from his home computer in Ontario.

The appellants appealed an order of the Superior Court of Justice conditionally approving a third-party litigation funding agreement for a proposed class action.

The respondents moved to quash the appeal, arguing the order was interlocutory and thus only appealable to the Divisional Court with leave.

The Court of Appeal held that the conditional approval order was interlocutory, not final, because it did not finally dispose of the substantive rights of the parties.

The order merely conditioned approval on amendments to the funding agreement; failure to amend resulted in dismissal of the approval motion, not from the order itself.

The appeal was quashed.

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.

The Court considered an appeal arising during an indefinite strike by members of Les avocats et notaires de l’État québécois, where an adjournment request had been refused as part of an essential-services context.

By the hearing date, the strike had ended and a special statute had required a return to work.

The Court held the issue was moot and dismissed the appeal without costs.

It stated that dismissing the appeal did not endorse either the process used or the validity of the considerations identified by the Court of Appeal.

In a proposed pharmaceutical products liability class proceeding, the defendants moved for summary judgment before certification.

The plaintiffs alleged that a testosterone gel caused serious cardiovascular events, was improperly marketed for age-related low testosterone, and generated claims in negligence, failure to warn, unjust enrichment, waiver of tort, and pure economic loss.

The court held that although the evidence established an association and biological plausibility, it did not establish general causation on a balance of probabilities.

The court further held that an association may trigger a duty to warn, but any failure-to-warn claim still failed because causation was not proven.

The claims for unjust enrichment, waiver of tort, and pure economic loss also failed factually and legally, and the action was dismissed.

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 Court addressed three securities class action appeals on whether limitation periods for statutory secondary-market misrepresentation claims are suspended before leave is granted, and on related nunc pro tunc, special circumstances, leave-threshold, and certification issues.

The CIBC and IMAX appeals were dismissed, while the Celestica appeal was allowed.

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.