D. Lynne Watt

The College of Family Physicians of Canada (CFPC) sought a court order validating its by-laws and articles, which had been amended over a decade without compliance with the Canada Not-for-profit Corporations Act (CNCA) due to erroneous legal advice.

The court found that the CFPC had failed to hold required separate class votes for membership changes, rendering its constating documents improperly enacted.

The Resident Doctors of Canada, while generally supporting the application, sought restoration of voting rights for family medicine residents.

The court held that section 288(4) of the CNCA provided broad remedial powers to validate the documents and to reclassify family medicine residents as voting members.

The application was granted, validating the CFPC’s by-laws and articles nunc pro tunc and restoring voting rights to family medicine residents.

The appellants challenged the Federal Court of Appeal's decision setting aside the Copyright Board of Canada's tariff determination, which had held that s. 2.4(1.1) of the Copyright Act created a separate compensable 'making available' right triggering royalties both when works are made available online and again when downloaded or streamed.

The majority held that the Board's interpretation violated the principle of technological neutrality and was inconsistent with the text, structure, and purpose of the Act; correctness was the applicable standard of review as concurrent first instance jurisdiction between courts and the Board constitutes a sixth category of correctness review.

Section 2.4(1.1) was interpreted as clarifying only that s. 3(1)(f) applies to on-demand streams and that a work is performed as soon as it is made available for on-demand streaming, with Canada's obligations under art. 8 of the WIPO Copyright Treaty satisfied through a combination of existing performance, reproduction, and authorization rights.

The concurring minority would have applied a reasonableness standard but agreed the Board's decision was unreasonable for disregarding binding precedent and the principle of technological neutrality.

Appeal dismissed.

The applicants, minority co-owners of two commercial properties, sought relief from alleged oppressive conduct, breach of trust, and breach of fiduciary duty by the majority co-owners and property managers following a cash call.

The court found that the respondents' failure to provide timely and meaningful access to financial records unfairly disregarded and prejudiced the applicants' interests under section 248 of the Business Corporations Act.

However, the court dismissed claims regarding management fees, financing, and conflicts of interest, and found no breach of trust or fiduciary duty.

The court ordered specific terms for future financial disclosure and governance but declined to order a forced buy-out of the applicants' interests.

Costs for the disclosure motion were awarded to the applicants on a substantial indemnity basis.

The Supreme Court of Canada allowed the appeal and held that section 13(1)(b) of British Columbia’s Human Rights Code can apply to discriminatory conduct by a co-worker who is not the complainant’s employer or superior, if the conduct has a sufficient nexus to the employment context.

The majority adopted a contextual test focused on workplace integration, location of conduct, and workplace impact, and restored the tribunal’s jurisdiction to hear the complaint.

Concurring reasons emphasized established human rights principles and workplace impact, while the dissent would have limited section 13(1)(b) to employer-employee or analogous relationships.

The parties were unable to agree on costs following a prior decision.

The defendants, seeking costs on a full or substantial indemnity basis, submitted a Bill of Costs lacking dates, descriptions of work, and dockets.

The court found the defendants were entitled to costs but required them to submit a proper Bill of Costs in accordance with Form 57A of the Rules of Civil Procedure, supported by dockets.

The plaintiff, who argued the time spent was excessive, was also given the option to submit their own Bill of Costs and dockets.

The appellants, a Canadian citizen and several foreign corporations, appealed the dismissal of their motion to stay an action brought against them in Ontario for misappropriation of proprietary information.

They argued the Ontario court lacked jurisdiction or should decline it on the basis of forum non conveniens.

The Court of Appeal upheld the motion judge's finding that the contracts were made in Ontario, establishing a real and substantial connection.

The Court also affirmed that the appellants failed to discharge their burden of proving China was a more appropriate forum, noting that China does not recognize breach of fiduciary duty, a key cause of action pleaded.

Following the dismissal of an appeal under the Building Code Act, the successful respondents sought costs.

The appellant argued no costs should be awarded or they should be limited to $10,000.

The Divisional Court found no reason to depart from the general rule that successful parties are entitled to partial indemnity costs, but found the amounts sought excessive.

The court awarded partial indemnity costs of $15,000 to the Township and Kopp, and $7,500 to Lystek.

The moving parties sought partial summary judgment to enforce payment obligations under a promissory note issued pursuant to a settlement agreement resolving a joint venture development dispute.

The responding parties argued the note was security for the broader agreement and alleged misrepresentations concerning project budgets, indicating they intended to commence an action in deceit.

The court held that the note could not be considered independently of the settlement agreement and that the allegations raised potential issues requiring a fuller evidentiary record.

Applying the principles in Combined Air regarding premature summary judgment motions, the court found it appropriate to stay the motion to permit the responding parties to commence a deceit action and develop the record.

The stay was granted subject to strict timelines, with partial costs awarded to the moving parties for delay attributable to the responding parties.

The defendants brought a motion to set aside a default judgment in a construction lien proceeding under the Construction Lien Act.

The court applied both the Rules of Civil Procedure and the statutory requirements under the Act, which require promptness, a reasonable explanation for the failure to defend, and evidence supporting a genuine defence.

The defendants demonstrated a viable defence alleging incomplete and deficient work and potential set-off exceeding the lien claim.

Although the defendants’ conduct regarding service and delay was criticized, the court found there was always an intention to defend and little prejudice to the plaintiff because security had been paid into court.

The default judgment and noting of default were set aside and the defendants were granted time to deliver a defence.

In a copyright tariff appeal concerning online music services, the Court addressed whether on-demand transmissions over the Internet constitute communication to the public by telecommunication under the Copyright Act.

The Court held that individual user-initiated streaming transmissions are not private in character when viewed as repeated transmissions to members of the public, and therefore remain within the communication right.

In light of the companion ruling on downloads, the download issue was moot and the appeal succeeded only to that extent.

The Court further held that correctness applied to the legal question under the statutory scheme, while a concurrence preferred reasonableness deference to the specialized tribunal.

The appeal concerned whether downloading a video game containing musical works over the Internet engages the communication right under s. 3(1)(f) of the Copyright Act in addition to reproduction rights.

A majority held that applying a separate communication tariff to permanent downloads would offend technological neutrality because downloading a durable copy is functionally equivalent to purchasing a copy in physical form.

The majority interpreted the communication right as historically tied to performance-based activity and set aside the tariff certification as applied to downloads.

The dissent would have treated communication and reproduction as distinct independent rights both engaged by Internet downloads.

The appellants appealed the dismissal of their action for misfeasance in public office against the Alcohol and Gaming Commission of Ontario.

The appellants argued the trial judge applied the wrong test and failed to find recklessness or wilful blindness in the respondents' handling of a licence transfer application.

The Court of Appeal dismissed the appeal, finding the trial judge correctly applied the test for misfeasance in public office and his factual findings negating malice and recklessness were supported by the record.

The respondents' cross-appeal on damages and trial costs was also dismissed.