David William Kent

In a copyright appeal, the Court considered whether pre-existing sound recordings embedded in film and television soundtracks remain subject to equitable remuneration under s. 19 of the Copyright Act when the soundtrack accompanies a cinematographic work.

Applying modern statutory interpretation, the Court held that the soundtrack exclusion in the definition of sound recording captures pre-existing recordings in that context.

The Court found this reading consistent with the legislative scheme, parliamentary intent, and international obligations under the Rome Convention.

As a result, the proposed tariffs could not be certified for performances or communications of recordings when accompanying cinematographic works.

In a certified class proceeding alleging a price-fixing conspiracy in the market for DRAM (dynamic random access memory) devices contrary to Part IV of the Competition Act and related torts, the representative plaintiffs sought court approval of a negotiated settlement with one defendant.

The settlement required the settling defendant to pay $5.75 million for the benefit of class members in Ontario, British Columbia, and Québec and to provide extensive cooperation in the ongoing litigation against non-settling defendants.

The agreement also included a bar order preventing contribution and indemnity claims against the settling defendant while permitting discovery cooperation and proportional liability determinations at trial.

Applying established class action settlement approval principles, the court concluded the settlement was fair, reasonable, and in the best interests of the class.

The settlement approval order was granted.

In a proposed class action alleging a conspiracy among DRAM manufacturers to fix prices, the plaintiffs brought a motion to certify the action for settlement purposes against one defendant following a settlement agreement.

The settlement required the defendant to pay $5.75 million for the benefit of class members in Ontario, British Columbia, and Québec.

The court considered the certification requirements under s. 5(1) of the Class Proceedings Act, 1992 and determined that the criteria for certification were satisfied.

The court also approved the proposed notice and notice plan, which aligned with a similar approval in British Columbia.

The motion was unopposed and the orders were granted as requested.

The appellant, a user of the drug Paxil, brought a proposed class action against the respondent pharmaceutical companies alleging abuse of process, conspiracy, and waiver of tort.

The appellant claimed the respondents misused the Notice of Compliance proceedings under the Patent Act to delay the entry of a cheaper generic equivalent into the market, forcing consumers to pay supra-competitive prices.

The motion judge struck the statement of claim, finding it disclosed no viable cause of action.

The Court of Appeal upheld the decision, concluding that the appellant was not a party to the legal process initiated by the respondents, the respondents' predominant purpose was to advance their own economic interests rather than injure the appellant, and there was no predicate wrongdoing to support a waiver of tort claim.

The plaintiff sought to appeal a final decision dismissing his $750 million action to the Divisional Court, relying on inherent jurisdiction.

The defendants moved to quash the appeal on the grounds that the Divisional Court lacked jurisdiction over final orders exceeding $50,000, the plaintiff had exhausted his appeals at the Court of Appeal, and the proceeding was an abuse of process.

The court granted the motion to quash, finding it lacked jurisdiction and noting the plaintiff and his counsel's relentless pursuit of a settled matter and failure to pay previous costs awards constituted an abuse of process.

Costs of $5,000 were awarded against the plaintiff and his counsel personally.

Following the dismissal of the appellant's appeal, the court received written submissions regarding costs.

Given the complexity of the matter and the significant amount at issue, the successful respondent was awarded costs of the appeal fixed at $23,623.26 on a partial indemnity scale, inclusive of disbursements and GST.

The appellant insurer appealed a summary judgment ordering it to pay 80 percent of the defence costs incurred by the respondent's directors and officers in a class action for prospectus misrepresentation.

The insurer argued that a pollution exclusion clause in the directors' and officers' liability policy excluded coverage because the class action arose following a tailings dam collapse and the release of toxic waste.

The Court of Appeal dismissed the appeal, upholding the motion judge's finding that the exclusion clause applied to pollution losses rather than all losses connected to a pollution-related claim, and that the allocation endorsement was properly applied since the claims involved both covered and uncovered losses.

The defendant sought leave to appeal a decision dismissing its motion to stay or dismiss the action on the basis of jurisdiction and forum non conveniens.

The defendant argued that the motion judge failed to apply the correct principles regarding forum selection clauses as recently set out by the Supreme Court of Canada.

The Divisional Court found that the motion judge had correctly applied the principles, noting that the burden on the plaintiff to show strong cause only arises once the jurisdiction clause is found to be binding, which the motion judge did not find.

The motion for leave to appeal was dismissed.

The appellants appealed an order refusing to enjoin the respondents from pursuing a motion in the United States to access testimony and documents obtained through the US discovery process.

The Court of Appeal dismissed the appeal, finding no comity concerns or overriding policy issues that would warrant an injunction.

The Court held that the respondents were legitimately attempting to gather evidence in a foreign jurisdiction according to its rules, and that the US judge was in the best position to determine whether and how to vary the protective order.

The applicant association sought judicial review of a decision by the Canadian Milk Supply Management Committee refusing to expand a special milk class permit program to include cheese used in fresh pizzas.

The applicant argued the decision was administrative and breached procedural fairness.

The Divisional Court held it had jurisdiction to hear the application but dismissed it on the merits.

The court found the Committee's decision was legislative and policy-oriented, not administrative, and therefore did not attract a duty of procedural fairness.

The court concluded the applicant was given sufficient opportunity to make its views known and no breach of fairness occurred.

The defendants appealed an order dismissing their motion to enjoin the plaintiffs from seeking access to discovery evidence in parallel U.S. anti-trust litigation.

The defendants argued that the plaintiffs were attempting to circumvent Ontario's discovery rules by obtaining discovery in the U.S. before certification of the class action.

The Divisional Court dismissed the appeal, finding that the plaintiffs were merely seeking passive access to evidence already discovered in the U.S. litigation, rather than actively conducting discovery.

The court held that such evidence gathering does not offend Ontario's discovery rules or the implied undertaking rule, and that the U.S. court should determine whether to grant access under its own protective order.

The appellants appealed a judgment confirming a Master's report on an accounting of music royalties for the song 'When I Am With You'.

The Court of Appeal dismissed the corporate publisher's appeal regarding the calculation of co-publishing revenues and prejudgment interest.

However, the Court allowed the appeal of the corporation's directing mind, finding no basis to pierce the corporate veil and hold him personally liable.

The Court also allowed the respondents' cross-appeal, finding that performing rights royalties should be included in the calculation of co-publishing revenues based on the plain meaning of the agreement and the parties' prior conduct.