David J. Spence

The defendant brought a third-party records application seeking use of force reports, training materials, and policy documents from the Ontario Provincial Police regarding the use of force and conducted energy weapons.

The Crown and police opposed the application on different grounds.

The court found that the policies governing use of force and conducted energy weapons were likely relevant to the issue of whether the arresting officer's conduct was reasonable, but training materials were not likely relevant as the officer's actions must be evaluated on their own merits.

The court ordered production of the policies to the court for determination of whether they should be disclosed to the defendant.

The liquidator of LWP Capital Inc. brought a motion for declaratory relief regarding a dispute over a working capital adjustment following the sale of its special crops division to the respondent.

The applicant argued the respondent was estopped from disputing the preliminary closing working capital and that the dispute resolution mechanism in the Asset Purchase Agreement was not properly engaged.

The court dismissed the motion, finding no estoppel and holding that the dispute over the net realizable value of the inventory properly triggered the expert determination process under the agreement.

Livent Inc., through its special receiver, sued its former auditor, Deloitte & Touche, for negligence and breach of contract in failing to detect a massive fraud perpetrated by Livent's senior management.

The trial judge found Deloitte negligent in its conduct of the 1997 audit and awarded Livent $118 million in damages.

Deloitte appealed, arguing that the ex turpi causa and corporate identification doctrines barred the claim, and that its negligence did not cause the losses.

Livent cross-appealed the trial judge's refusal to award damages for the 1996 audit and the 25% reduction for contingencies.

The Court of Appeal dismissed both the appeal and cross-appeal, holding that the ex turpi causa doctrine could not shield an auditor from liability for failing to detect the very fraud it was engaged to uncover, and that Deloitte's negligence was the proximate cause of Livent's increased liabilities.

The plaintiffs in a proposed Ontario class action brought a motion seeking mandatory and restrictive injunctions against a class action administrator, class counsel in a certified Alberta class proceeding, and a defendant manufacturer.

The motion arose after an Alberta class action concerning allegedly defective oral contraceptives proceeded to certification and settlement discussions, while the Ontario action had been discontinued as a class proceeding and converted into a joinder action for claimants opting out of the Alberta case.

The plaintiffs objected to a letter sent by the Alberta action administrator suggesting that opt-out forms might have been submitted without the recipients’ knowledge.

The court criticized the language of the letter and the involvement of opposing counsel in its drafting but held that no actual harm had occurred and that the Ontario court lacked jurisdiction over several of the actors.

The motion for injunctive relief was dismissed.

The appellants, selling shareholders in a family business, appealed the dismissal of their action for breach of fiduciary duty and oppression against the non-selling shareholders and the corporation's professional advisors.

The trial judge had utilized a 'hybrid' trial model following a failed summary judgment motion.

The Court of Appeal dismissed the appeal, finding that the appellants were precluded from challenging the hybrid trial model as they had not appealed the initial trial management order.

Furthermore, the Court upheld the trial judge's finding that no fiduciary duty was owed during the share redemption negotiations, as the relationship between the parties was highly adversarial and marked by distrust.

The substantial indemnity costs award of nearly $2.5 million was also upheld.

During a Commercial List case conference in a complex multi‑party commercial dispute, the court addressed ongoing discovery and production issues among numerous defendants and third parties.

The court directed timelines for outstanding undertakings and warned that unresolved production disputes would require formal motions before a Master.

The court emphasized counsel’s obligation to cooperate in resolving discovery issues and indicated that failure to do so could result in elevated or full indemnity costs.

Additional guidance was provided regarding potential motions for non‑party examinations and production of partnership financial statements.

The court scheduled a further case conference and noted that the matter would not proceed to trial as early as previously anticipated due to outstanding discovery issues.

During a Commercial List case management conference in a complex multi‑party securities and investment dispute, the court issued procedural directions governing ongoing litigation steps.

The court addressed the potential settlement motion involving certain defendants, confirmed the status of examinations for discovery, and ordered timelines for answering undertakings.

The judge provided structured options for handling refusals motions and warned that costs may be assessed per refusal to discourage unnecessary motions.

Additional directions were given regarding the timing of expert reports, a possible future summary judgment motion, and scheduling of the next case management conference.