Christoph Pike

TD Waterhouse Canada Inc. sought the return of its data held by Electronic Imaging Systems Corporation following termination of their service agreement.

EIS demanded payment of $2.50 per image (totalling over $460 million) for the return of 180 million records.

The court determined that the document restore fee applied only to day-to-day requests during the agreement term, not to mass data repatriation upon termination.

The court found that the Transition provisions of the agreement governed the return of data on termination.

The court granted a mandatory injunction requiring EIS to return the data, conditioned on TD Waterhouse paying EIS commercially reasonable compensation on a quantum meruit basis for the services rendered in repatriating the data.

This endorsement addresses the question of costs for the applications below, following an appeal decision (2023 ONCA 524) where the Court of Appeal found the application judge erred in granting an injunction against the appellants (Cowie et al.) based on a band council resolution.

The original injunction was granted to Hiawatha First Nation to prohibit construction of a gas station.

Although the appellants were successful on appeal, no costs were awarded for the appeal itself due to their concession regarding the applicability of a new Land Code.

The application judge had awarded Hiawatha First Nation $235,000 in costs.

This endorsement reduces that award to $117,500, all-inclusive, considering the conduct of both parties and the appellants' socially responsible concession.

This appeal addressed whether a Band Council Resolution (BCR) could be enforced as a by-law under the Indian Act.

Hiawatha First Nation sought a permanent injunction to stop three of its members from building a gas station on the reserve, relying on a BCR that imposed a moratorium on new businesses.

The application judge granted the injunction, treating the BCR as a by-law.

The Court of Appeal found that a BCR is distinct from a by-law and does not have the force of law to create rights and duties for band members or third parties under the Indian Act.

The court emphasized that law-making authority under the Indian Act, particularly when affecting proprietary rights, requires adherence to specific by-law formalities.

Consequently, the appeal was allowed, and the injunction based on the BCR was set aside.

The appellants, holding unsatisfied judgments against a disbarred lawyer, appealed the dismissal of their motion to compel payment from the lawyer's insurer (LawPRO).

The core issues were the interpretation of the insurance policy's aggregate limit for dishonest lawyer coverage and whether LawPRO reasonably expended funds on defence and investigation, thereby exhausting the limit.

The Court of Appeal upheld the motion judge's findings that the $500,000 limit was an aggregate limit and that LawPRO's expenditures were reasonable, dismissing the appeals.

Dr. Thirlwell, a psychiatrist, sought a stay of a Divisional Court order that upheld an interim order by the College of Physicians and Surgeons of Ontario (CPSO).

The ICRC's interim order imposed terms on Thirlwell's registration, including a prohibition on issuing vaccine exemptions and a requirement to consent to OHIP inquiries, due to concerns about her providing improper medical exemption letters for cash.

The Divisional Court dismissed Thirlwell's judicial review application, finding the OHIP term reasonable for patient protection.

Thirlwell moved for a stay of the Divisional Court order pending her motion for leave to appeal to the Court of Appeal.

The Court of Appeal denied the stay, finding no serious question to be tried and that the public interest in patient safety and confidence in the College's disciplinary system outweighed Thirlwell's personal interests.

Hiawatha First Nation applied for a permanent injunction to restrain three of its members from constructing a gas station on the reserve.

The band argued the construction violated the Indian Act, a band by-law requiring building permits, a band resolution imposing a moratorium on new businesses, and environmental legislation.

The court found that the building permit by-law and environmental legislation did not apply, and that the proposed business structure did not violate the Indian Act.

However, the court held that the band resolution imposing a moratorium was an enforceable by-law.

The court granted an injunction restraining construction while the moratorium remains in effect and until the proponents comply with all applicable laws.