Emily Sherkey

A pharmaceutical distributor sued after a retailer terminated a long-term supply agreement based on a dispute over whether contractual negative financial impact compensation and earned term extensions continued beyond the initial term.

The court held that the compensation mechanism applied throughout the defined Term, including extensions, and that the retailer wrongfully terminated the agreement on March 31, 2021.

Applying the minimum performance doctrine, the court held that extensions earned before breach could not be unwound, but post-breach damages had to be assessed on the least burdensome mode of future contractual performance, limiting the term to December 31, 2022.

The plaintiff recovered NFI compensation, lost-profit damages to be calculated, and severance-based reliance damages, while claims for reclassified product margins, warehouse losses, transportation costs, vendor settlements, and enhanced prejudgment interest were denied.

On the counterclaim, the defendants recovered withheld OTC rebates and unused prepayment funds, but their transition-period lost-sales claim failed.

The appellant appealed the dismissal of its application to set aside an international arbitral award under NAFTA.

The arbitral tribunal had ordered the appellant to pay over $80 million in damages for revoking the respondents' gambling permit and shutting down their casinos without a valid regulatory reason.

The Court of Appeal dismissed the appeal, finding that the application judge applied the correct standard of review and properly concluded that there was no breach of procedural fairness in the tribunal's proceedings.

The applicants sought to appeal or set aside a Partial Final Award of an arbitrator that granted the respondents a 50% constructive trust interest in a commercial property adjacent to a jointly owned shopping centre.

The arbitrator had found an ad hoc fiduciary duty despite the Co-Tenancy Agreement explicitly excluding partnership and fiduciary obligations.

The Superior Court of Justice granted leave to appeal, finding that the arbitration agreement did not preclude appeals on questions of law.

The court set aside the relevant portions of the award, holding that the arbitrator committed extricable errors of law by ignoring the unambiguous exclusionary language of the agreement and exceeded his jurisdiction by deciding an unpleaded claim for an ad hoc fiduciary duty.

The defendant brought a motion for summary judgment to dismiss the plaintiff's claim that it held a perpetual and exclusive right to own, operate, and collect tolls from a viable international border crossing in the vicinity of the Ambassador Bridge.

The plaintiff sought declarations of rights granted under the Canadian Transit Company Act and, alternatively, compensation for infringement and expropriation.

The court dismissed the motion, finding that the interpretation of the statutory franchise rights granted under the CTC Act, including whether implicit rights of exclusivity were conferred, raised a genuine issue requiring trial.

Mexico sought to set aside an international arbitral award rendered under NAFTA Chapter 11 in which an arbitral tribunal found Mexico liable for breaching the fair and equitable treatment standard and ordered Mexico to pay damages of approximately USD $80.9 million to American investors who operated casinos in Mexico.

Mexico alleged that the tribunal denied it a full and fair opportunity to present its defense by: (1) denying production of certain documents Mexico characterized as "key documents"; and (2) failing to address Mexico's argument regarding the availability of judicial review remedies in Mexican courts.

The court dismissed Mexico's application, finding that the arbitral proceedings were comprehensive and fair, that Mexico's document production denials were reasonable exercises of tribunal discretion, and that Mexico's failure to receive explicit reference to a minor argument did not constitute procedural unfairness.

The applicants sought to set aside a NAFTA Chapter 11 arbitral tribunal's damages award, arguing the tribunal exceeded its jurisdiction, breached procedural fairness, and rendered an award contrary to Canadian public policy.

The tribunal had previously found Canada breached its NAFTA obligations regarding an environmental assessment for a proposed quarry, but in the damages phase, awarded only $7 million USD for the lost opportunity of a fair assessment rather than the $440 million claimed for lost profits.

The Superior Court of Justice dismissed the application, finding the tribunal correctly applied the international law standard of proof, did not breach natural justice in its procedural rulings regarding expert reports, and rendered a decision that was not contrary to public policy.

The Russian Federation appealed an interlocutory decision that denied its request to adduce fresh evidence on an application to set aside an arbitral tribunal's interim award on jurisdiction.

The Divisional Court allowed the appeal, holding that an application to challenge a tribunal's jurisdiction under Article 16 of the UNCITRAL Model Law is a hearing de novo, not a deferential review.

Consequently, the parties are entitled as of right to adduce evidence that was not before the arbitral tribunal.

Following a successful trial where the plaintiff recovered a $1.5M fee and defeated a counterclaim, the plaintiff sought costs of $680,152.55.

The defendant argued the plaintiff's offer to settle was served 1.5 hours late and thus did not trigger the mandatory cost consequences of Rule 49.10.

The court applied a holistic approach under Rule 49.13, finding the offer provided adequate time to assess risk in an all-or-nothing case.

The court exercised its residual discretion and awarded the plaintiff its requested costs.

The case involved a claim by Scotia Capital Inc. against Aphria Inc. for an "Independence Fee" under an engagement letter for financial advisory services in defending a hostile takeover bid, and a counterclaim by Aphria for defamation related to Scotia's discontinuation of analyst coverage.

The court found that Scotia successfully defended Aphria against the takeover bid, entitling it to the Independence Fee.

The court dismissed Aphria's defense arguments of lack of causality and repudiation.

The court also dismissed Aphria's counterclaim for defamation, finding no evidence that the discontinuation of coverage lowered Aphria's reputation or caused economic loss.

The moving party, The Russian Federation, brought a motion for leave to appeal the decision of Penny J. The Divisional Court granted the motion for leave to appeal, with costs fixed at $7,500 payable in the discretion of the panel deciding the appeal.

The parties were directed to schedule the delivery of appeal materials and a case management teleconference.

The United Mexican States applied to set aside a partial arbitral award on jurisdiction in a NAFTA Chapter 11 investor-state dispute.

The applicant argued the arbitral tribunal lacked jurisdiction because certain claimants failed to provide a timely notice of intent under Article 1119 and failed to provide proper consent under Article 1121.

The Superior Court of Justice dismissed the application, finding the tribunal was correct in concluding that the procedural defects related to admissibility rather than jurisdiction, and that the applicant's consent to arbitrate was not conditioned on strict compliance with Article 1119.

The court also found no jurisdictional error in the tribunal's treatment of submissions from the USA and Canada.

The applicant sought to set aside an arbitral tribunal's interim award on jurisdiction under Articles 16 and 34 of the UNCITRAL Model Law.

In support of its application, the applicant filed new expert evidence that was not before the arbitral tribunal.

A previous judge had ruled that the new evidence was admissible as of right.

The hearing judge reconsidered this interlocutory ruling and held that he had the authority to do so.

The court concluded that fresh evidence in an application to set aside an arbitral tribunal's award on jurisdiction under the Model Law may not be introduced as of right.

Instead, a party must obtain leave by satisfying the test for fresh evidence established in R. v. Palmer.

This is a costs endorsement following the certification of a class action.

The plaintiffs, having succeeded in certifying their action, sought substantial costs totaling over $368,000.

The court significantly reduced the requested amount, disallowing costs related to scheduling, a companion motion in Quebec, and expert fees/counsel time for experts at the certification stage.

The court found that the defendant's opposition to certification was modest and did not constitute a "full attack" warranting such extensive costs at that stage.

The final award was $84,500 plus HST in partial indemnity costs and $27,119.34 in disbursements.

A commercial cold storage lease dispute concerning the interpretation of an energy cost pass-through clause and the tenant's right to renew.

The tenant failed to pay claimed increased energy costs, which the landlord characterized as a default preventing lease renewal.

The application judge found the tenant in breach and declined to grant relief from forfeiture due to lack of due diligence.

On appeal, the tenant challenged only the relief from forfeiture decision, arguing the wrong legal test was applied.

The appellate court upheld the decision, confirming that relief from forfeiture in lease renewal contexts requires a narrower test than the standard three-pronged approach, and that the tenant must demonstrate diligent efforts to comply with lease terms.

This proposed class action alleged that Bell Mobility Inc. breached the privacy rights of its data service customers by using their personal information for its "Relevant Advertising Program" (RAP) without consent.

The plaintiffs sought certification of the class action.

The court certified the action, including all pleaded causes of action (contract, waiver of tort, negligence, breach of confidence, intrusion upon seclusion, consumer protection legislation, and Quebec civil law claims) and common issues.

The court rejected the defendant's argument that some claims were redundant and made the class proceeding unmanageable, affirming that it is not the judge's role at certification to pare down properly pleaded causes of action.

The decision also addressed the availability and methodology for aggregate damages.

The court issued additional reasons for judgment to quantify the amounts owed by the Applicant, McRae Cold Storage Inc., to the Respondent, Nova Cold Logistics ULC, under a commercial lease, following a previous judgment.

The undisputed amounts for energy surcharges, interest, and costs totaled $168,104.10, which were ordered to be released from trust.

The entitlement to holdover rent, totaling $212,199.09, remained contingent on the outcome of McRae's appeal of the original judgment.

The defendants sought to schedule a further motion for summary judgment on the Monopolies Act issue, having previously failed on a Rule 21 motion concerning the same claim.

The court denied the request, emphasizing that partial summary judgment is rarely appropriate in complex litigation, especially when recent amendments to pleadings have re-opened other significant issues, such as patent validity.

The judge concluded that the case should proceed to a single trial on all issues to avoid fragmented litigation and multiple appeals, which would prolong the proceedings and consume vast judicial resources.

The applicant, McRae Cold Storage Inc., sought a declaration that it was not in default of its lease agreement with the respondent, Nova Cold Logistics ULC, and that it had properly exercised its option to renew the lease.

The dispute arose from McRae's refusal to pay increased energy costs passed through by Nova, based on differing interpretations of an "Energy Provision" in the lease.

The court interpreted the Energy Provision, found McRae in default for non-payment, and consequently ruled that McRae was not entitled to exercise its renewal option.

Relief from forfeiture was also denied due to McRae's lack of diligence in remedying the default.

The court ordered McRae to pay holdover rent and costs.

Following the dismissal of an application to enforce Letters of Request from a US court, the court determined the costs payable by the applicants.

Pursuant to a prior consent order, the applicants were ordered to pay $260,888.72 for the respondents' reasonable direct costs of collecting and producing documents, which included third-party vendor fees and legal review time.

The court also awarded the respondents $75,000 in partial indemnity costs for successfully defending the application, finding the amount reasonable and proportional given the importance and stakes of the cross-border litigation.

A utility company and rural municipality disputed cost-sharing for gas pipeline relocation necessitated by municipal drainage works.

The utility sought 35% cost contribution from the municipality under a franchise agreement, while the municipality argued the utility should bear the full cost under section 26 of the Drainage Act.

The application judge held that section 26 of the Act overrode the franchise agreement's cost-sharing provisions.

The Court of Appeal allowed the appeal, holding that the Act does not prohibit contracting out of its cost-allocation provisions and that the franchise agreement's cost-sharing mechanism applies to drainage works undertaken by the municipality.