Caitlin E. Milne

Following the successful dismissal of the plaintiffs' defamation action under the anti-SLAPP provisions of the Courts of Justice Act, the moving parties (defendants) sought full indemnity costs totalling over $1.1 million.

The court awarded full indemnity costs as requested, subject to a reduction for the costs of non-active counsel, clerks, or students.

The court also apportioned liability, finding one plaintiff jointly and severally liable only for costs related to the OMA dispute, while the other plaintiff was solely liable for costs related to the COVID-19 dispute.

The applicant, a defendant in a Small Claims Court defamation action regarding a Google review, brought a motion to transfer the action to the Superior Court of Justice.

The transfer was sought solely to enable the applicant to bring an anti-SLAPP motion under section 137.1 of the Courts of Justice Act, which the Court of Appeal previously ruled is unavailable in Small Claims Court.

The court dismissed the motion, finding that the unavailability of a section 137.1 motion does not mean the action cannot be justly and fairly resolved in Small Claims Court, and that the traditional factors for transfer were not met.

The plaintiff, a former Minister of State, brought a motion to compel answers to questions refused during the examination for discovery of the defendants, a lawyer and his law firm.

The defendants had refused to answer questions based on solicitor-client privilege and parliamentary privilege.

The court held that asserting privilege was not a collateral attack on a previous order refusing to strike the claim.

The court upheld the assertion of parliamentary privilege regarding testimony before a parliamentary committee.

However, the court found the assertion of solicitor-client privilege to be overbroad and ordered the defendants to answer certain questions that did not reveal privileged communications.

The appellant was tried for offences related to spousal abuse and applied for a stay of proceedings on the basis that his right to be tried within a reasonable time under s. 11(b) of the Charter had been infringed.

The trial judge included the period between the end of evidence and argument and the release of the stay decision in calculating total delay, found the net delay exceeded the Jordan presumptive ceiling, and granted the stay.

The Court of Appeal set aside the stay, holding that under R. v. K.G.K. that period should not be counted, bringing total delay below 30 months.

The Supreme Court of Canada affirmed the Court of Appeal, finding the appellant had not established that the remaining 29.25 months of delay was markedly longer than reasonable in the broader context of the trial.

The plaintiffs brought a proposed class action on behalf of prisoners and their families, alleging that Bell Canada and Ontario charged unconscionable rates for collect calls from provincial correctional facilities.

The plaintiffs sought certification, while the defendants brought cross-motions to stay the action, arguing the Canadian Radio-television and Telecommunications Commission (CRTC) had exclusive jurisdiction.

The Superior Court of Justice struck the plaintiffs' claims for an ultra vires tax and breach of the Telecommunications Act, finding it plain and obvious they could not succeed.

The court permanently stayed the remaining claims, concluding that the pith and substance of the dispute concerned telecommunications rates, which fall squarely within the specialized jurisdiction and remedial authority of the CRTC.

Various creditors of 1671379 Ontario Inc. and Manuel Elkind brought motions to determine priority status for garnishment payments owed by the City of St. Catharines and Region of Niagara under a Brownfield Tax Increment Based Incentive Grant Program Agreement (BTIG).

The primary dispute was between MCAP Financial Corporation, which held a registered and perfected security interest under the Personal Property Security Act (PPSA), and Assignment Credit Corp. (ACC), which claimed priority based on an assignment of a prior judgment.

The court found that MCAP's security interest, including the proceeds of the BTIG, maintained its priority status despite being reduced to a shortfall judgment.

The court dismissed ACC's claim for priority, finding that its assigned interest was subject to MCAP's prior perfected security and that ACC's claim should be limited to $400,000 as per a "Side Deal" in a previous endorsement.

The defendant sought to schedule an anti-SLAPP motion under s. 137.1 of the Courts of Justice Act in a Small Claims Court action.

The court, relying on the Ontario Court of Appeal's decision in Laurentide Kitchens Inc. v. Homestars Inc., ruled that anti-SLAPP motions are incompatible with the summary procedures and objectives of the Small Claims Court, regardless of whether they are heard by a deputy judge, administrative judge, or a Superior Court judge sitting as a Small Claims Court judge.

Consequently, the anti-SLAPP motion was not scheduled.

Instead, the court scheduled a motion to transfer the existing Small Claims Court action to the Superior Court of Justice, allowing the defendant to pursue the anti-SLAPP relief in the appropriate forum.

The plaintiffs, two physicians, brought a $12 million defamation action against over 20 defendants, including other physicians, journalists, and media organizations.

The claims arose from two main disputes: an internal Ontario Medical Association (OMA) dispute and public criticism of the plaintiffs' controversial tweets regarding COVID-19, in which they opposed vaccines and lockdowns and promoted hydroxychloroquine.

The defendants brought anti-SLAPP motions under s. 137.1 of the Courts of Justice Act.

The court found that the defendants' expressions related to matters of public interest and that the plaintiffs failed to show their claims had substantial merit or that the defendants lacked valid defences, such as fair comment and qualified privilege.

The court also found that the public interest in protecting the defendants' expressions far outweighed any harm suffered by the plaintiffs.

The action was dismissed against all defendants.

This is a costs endorsement following successful summary judgment motions by the defendants.

The court determined the scale and amount of costs payable by the plaintiffs to the defendants.

The defendants sought substantial indemnity costs based on their offers to settle, which proposed dismissal of the action without costs.

The court found that such offers, while relevant, do not automatically attract substantial indemnity costs, and awarded partial indemnity costs, considering factors like success, complexity, amounts at stake, and litigation conduct.

In a proposed class action regarding the rates charged for collect calls made by prisoners in Ontario correctional facilities, the plaintiffs brought a motion to strike portions of an affidavit sworn by an employee of the defendant telecommunications company.

The plaintiffs argued the affiant was improperly giving expert opinion evidence.

The court dismissed the motion, finding that the affiant was providing factual evidence regarding the regulatory framework and the operation of the telephone system, not expert opinion.

The plaintiffs, who held a right of first refusal (ROFR) over certain wind farm assets, sued the vendor and the third-party purchaser, alleging they conspired to artificially inflate the purchase price allocation of the ROFR assets to discourage the plaintiffs from exercising their rights.

The plaintiffs sought damages for breach of the duty of good faith, breach of fiduciary duty, conspiracy, and inducing breach of contract.

On cross-motions for summary judgment, the court dismissed the plaintiffs' claims, finding that the vendor acted in good faith and the purchaser was entitled to act in its own commercial self-interest.

The court held that a difference in valuation or a strategic bid allocation does not, without more, constitute a breach of the duty of good faith or an intent to eviscerate the ROFR.

Following a 14-day trial on an application to pass accounts where the applicant trustees were ordered to repay $150,531.14 to the trust, the respondent sought $567,157.64 in substantial indemnity costs.

The court found the respondent was the successful party and entitled to costs.

However, the court declined to award enhanced costs, finding that while the applicants failed to keep proper records and created documents to reconstruct the accounts, their conduct was not reprehensible or scandalous.

The court also found the respondent's costs claim was disproportionate and unreasonable due to over-lawyering and unreasonable litigation conduct.

The court awarded the respondent $90,000 in costs inclusive of disbursements and taxes.

Following the dismissal of the applicant's application and motion for leave to file fresh evidence, the parties made written submissions on costs.

The respondent sought substantial indemnity costs of $110,654, arguing the applicant's conduct was reckless and the application meritless.

The court found the applicant's conduct did not rise to the egregious level required for substantial indemnity costs and awarded partial indemnity costs.

The court declined to award costs for the fresh evidence motion, finding the respondent's evidence was confusing and undisclosed.

The applicant was ordered to pay $50,000 in all-inclusive costs.

The applicant developer sought declarations and mandatory orders alleging the respondent municipality breached a Costs Sharing Agreement by failing to construct municipal services with sufficient capacity for a proposed high-density residential development.

The municipality argued the application was premature because the proposed development was not permitted under current zoning and capacity studies were ongoing.

The court dismissed the application, finding it premature and lacking practical utility, as the meaning of 'full development' in the agreement could not be determined while zoning appeals and municipal processes were still pending.

A motion to admit fresh evidence was also dismissed.

The applicant, an immigration lawyer, sought judicial review of Legal Aid Ontario's decision to remove him from its immigration and refugee panel due to billing irregularities.

The applicant argued the decision was unreasonable and procedurally unfair because he was denied an oral hearing.

The Divisional Court dismissed the application, finding the decision maker's reliance on admitted billing errors to establish a pattern of violations was reasonable.

The court also held that the administrative nature of the decision and the statutory scheme did not require an oral hearing, as the decision was based on admitted facts rather than credibility findings.

The applicants, parents and trustees of a trust established for their son following a serious brain injury, applied to pass their accounts.

The trust received $418,675.25 over 17 years, but the trustees administered it entirely in cash and lacked receipts for most disbursements.

The court found that the trustees failed to keep proper records and included fictitious loans and unpaid services in the accounts.

While some expenses were allowed, the trustees failed to account for $165,531.14.

After deducting $15,000 for trustee compensation, the court ordered the trustees to repay $150,531.14 to the trust.

The Crown appealed a Superior Court order staying charges against three respondents (two brothers and their mother) due to unreasonable delay under s. 11(b) of the Canadian Charter of Rights and Freedoms.

The trial judge had calculated the delay at 32 months, exceeding the 30-month Jordan ceiling.

The Court of Appeal found that the trial judge erred in law by including the period from the end of evidence and argument until the stay decision in the Jordan ceiling calculation, based on the Supreme Court's decision in R. v. K.G.K. Correcting this error reduced the net delay to 29.25 months, falling below the ceiling.

The Court also found no error in the trial judge's characterization of other delay periods and concluded that the delay was not unreasonable, even if below the ceiling.

The appeal was allowed, the stay order was set aside, and the matter was remitted to the trial judge to release the verdict.

The appellant employer was convicted on appeal of an offence under the Occupational Health and Safety Act following a workplace fatality.

Before sentencing, the appellant brought an application for a stay of proceedings under s. 11(b) of the Charter, which the appeal judge summarily dismissed.

The Court of Appeal held that while the appeal judge had jurisdiction to hear the Charter application, he did not err in exercising his discretion to summarily dismiss it, as constitutional issues should only be raised for the first time on appeal in exceptional circumstances where there is no prejudice to the parties.