Eric S. Block

The defendants/plaintiffs by counterclaim, Canopy Growth Corporation and Canopy Hemp Corporation ("Canopy"), brought a motion seeking preliminary relief in relation to pending summary judgment motions.

Canopy sought an order adjourning the summary judgment motions, establishing a discovery plan, ordering specific document production, and examinations of non-parties.

The plaintiff and defendants by counterclaim opposed the motion.

The court, applying the principles from Hryniak v. Mauldin, found that the summary judgment motions were not simple questions of law and contractual interpretation and that Canopy required some evidence to respond fairly.

The court ordered specific document production from the defendants by counterclaim and examinations of non-parties Vic Neufeld and John Cervini under Rule 39.03, but declined to order a full discovery plan or affidavits of documents.

The court also clarified its lack of jurisdiction to adjourn a judge's summary judgment motion or vary a judge's timetable.

The plaintiff, Jooli Park, brought a motion for certification of a class action against Samyang Foods Co. for settlement purposes, approval of a settlement agreement with Samyang, dismissal of the action against the non-settling defendants (Nongshim, Ottogi, Korea Yakult, and Paldo), approval of class counsel fees and disbursements, payment of an honorarium to Park, and cy-près distribution of remaining settlement funds.

The court granted all requested relief except for the honorarium to Park, finding that her contributions were not exceptional enough to warrant it.

The settlement with Samyang was approved, and the action against the non-settling defendants was dismissed without costs, considering the increased litigation risks after an unsuccessful jury trial in a related US class action.

The plaintiffs sought court approval for a class action settlement and allocation plan concerning a Hepatitis A contamination recall of frozen fruit.

The court approved the $3,000,000 settlement, finding it fair, reasonable, and in the best interests of the class, considering the arm's length negotiations, lack of significant objections, and risks of continued litigation.

The plan allocated funds across four categories: purchasers, immunized members, bodily injury members, and family members/health insurers.

The plaintiffs, three Russian cyclists, sued the World Anti-Doping Agency (WADA) and Richard McLaren for damages related to their exclusion from the 2016 Olympic Games.

The defendants brought Rule 21 motions to dismiss or permanently stay the proceeding for lack of jurisdiction and abuse of process, and to strike the statement of claim against McLaren.

The court found that resolving the jurisdictional issues would require extensive fact-finding, including assessing conflicting expert opinions and credibility, which exceeds the scope of a Rule 21 motion.

Consequently, the Rule 21.01(3) motions were ordered to be reconstituted as Rule 20 summary judgment motions or a trial of issues, and McLaren's Rule 21.01(1)(b) motion was deferred.

The plaintiff, a commercial corn grower, brought a proposed class action against the defendants, manufacturers of genetically modified corn seeds (Agrisure), alleging negligence and breach of the Competition Act.

The plaintiff claimed that North American corn prices fell due to China's rejection of corn shipments containing unapproved Agrisure, causing economic loss to non-Agrisure farmers.

The defendants moved to strike the claim under Rule 21, arguing no duty of care existed for pure economic loss.

The court granted the motion, finding that while the claim was framed in misrepresentation, the plaintiff's reliance on the defendants' alleged undertaking not to introduce Agrisure without global approvals was unreasonable, as commingling was inevitable and preventing it would require withholding the product from the domestic market, which had regulatory approval.

The court also noted the risk of indeterminate liability and the illogical elevation of foreign approvals over domestic ones.

The appellants, representative plaintiffs in a proposed class action, appealed an order approving a third-party litigation funding agreement subject to conditions.

The motion judge had imposed conditions to protect the class members from overcompensation of the funder and to prevent the funder from improperly interfering with the litigation.

The Divisional Court dismissed the appeal, finding no error in principle and that the motion judge's exercise of discretion was not clearly wrong.

The plaintiffs sought judicial approval of two settlement agreements in class actions alleging price-fixing in the automotive parts industry.

The first settlement with T.Rad was for $1,167,452, and the second with S-Y Systems was for $50,000.

The court found both settlements to be fair, reasonable, and in the best interests of the class, noting they fell within a zone of reasonableness.

The settlements and requested legal fees were approved.

The plaintiff brought a medical malpractice action against two anaesthetists after experiencing intra-operative awareness during a robotic-assisted laparoscopic hysterectomy.

Due to the plaintiff's malignant hyperthermia, the defendants used Total Intravenous Anaesthesia (TIVA) rather than inhaled anaesthetic gases.

The court found that the supervising anaesthetist met the standard of care.

However, the court found that the primary anaesthetist breached the standard of care by administering an inadequate infusion rate of Propofol, particularly after significantly reducing the nitrous oxide levels.

The court concluded that this breach caused the plaintiff's intra-operative awareness.

The defendant, TK Holdings Inc., moved to strike paragraphs from the statements of claim in five proposed products liability class actions.

The impugned paragraphs contained apologies made by Takata executives in Japan and the District of Columbia, which the defendant argued were inadmissible under Ontario's Apology Act, 2009.

The plaintiffs contended that the Act did not apply extraterritorially and that a contextual analysis was required to distinguish apologies from admissible admissions.

The court granted the motion, holding that pleading evidence, such as apologies or admissions, rather than material facts, was improper under the Rules of Civil Procedure.

Additionally, the court determined that the Apology Act, being a statute about the law of evidence (procedural law), applied as the law of the forum, rendering evidence of apologies inadmissible for determining fault or liability.

The appellant sought leave under s. 138.8 of the Securities Act to commence an action against the respondent bank for misrepresentations in a corporate circular and prospectus.

The appellant alleged the bank was a 'promoter' and an 'influential person' who knowingly influenced the release of the documents.

The motion judge dismissed the application, finding the appellant failed to offer a plausible interpretation of 'promoter' and lacked sufficient evidence.

The Court of Appeal upheld the decision, confirming that a promoter must play a vital or leading role in the organization or reorganization of an issuer, and that providing conventional banking or advisory services is insufficient.

Following dismissal of a securities class action leave motion under s. 138.8 of the Securities Act, the successful defendant sought substantial partial indemnity costs.

The plaintiff argued that the case raised a novel legal issue and that no costs should be awarded under s. 31(1) of the Class Proceedings Act, 1992.

The court rejected this characterization, finding the claim to be a conventional secondary market misrepresentation action and concluding that the leave motion lacked merit.

Applying the Civil Rules Committee Grid rates and reducing certain disbursements, the court fixed costs at $170,000 all-inclusive payable by the plaintiff.

The plaintiff sought leave under Part XXIII.1 of the Securities Act to advance a secondary market misrepresentation claim against a lender to an insolvent issuer following the issuer's collapse.

Applying the Supreme Court's Theratechnologies screening standard, the court held that the plaintiff failed to provide both a plausible interpretation of the promoter provisions and sufficient evidence showing a reasonable possibility of success at trial.

The court found that conventional banking, financial advisory, underwriting, and lending activities, even if essential to the transaction, did not amount to taking the initiative in founding, organizing, or substantially reorganizing the issuer's business.

The court also found insufficient evidence that the defendant knowingly influenced the release of the impugned disclosure documents.

Leave was denied.

The appellant municipality appealed the dismissal of its application for judicial review of a ministerial order prohibiting public access to certain Crown lands adjacent to Bala Falls for safety reasons.

It argued that the site was subject to a protected portage under s. 65(4) of the Public Lands Act and that s. 3 required the frontage to be set aside for recreational and access purposes.

The court held that s. 28 of the Public Lands Act is not subject to ss. 3 or 65(4), and that the minister's decision to restrict access was reasonable given the public safety concerns.

The court also held that the common law right of navigation does not include a right to portage over another's land.

The appeal was dismissed with costs to each respondent.

The moving parties sought leave to appeal a joint and several costs order of $247,566.14 made against them following the respondent's successful motion to appoint a receiver.

The Divisional Court dismissed the motion for leave to appeal, finding no reason to doubt the correctness of the motions judge's decision to award costs jointly and severally, including against the individual moving party personally.

The court held that the motions judge properly exercised his discretion and that the stringent test for granting leave to appeal a costs order was not met.

The defendants sought leave to appeal a decision granting the plaintiffs leave to pursue claims under Part XXIII.1 of the Securities Act and certifying the action as a class proceeding.

The plaintiffs alleged the corporate defendant misrepresented its equity market risk by failing to disclose its decision to abandon hedging and reinsurance of guaranteed products.

The Divisional Court dismissed the motion for leave to appeal, finding no good reason to doubt the correctness of the motion judge's conclusions that the plaintiffs had a reasonable possibility of success at trial and that the common law misrepresentation claims were suitable for certification alongside the statutory claims.

The moving parties sought an order restraining a private investigator from disclosing or assisting others in disclosing documents and information obtained through the discovery process in related civil litigation.

The investigator, who was not a party to the action, had obtained thousands of documents produced on discovery and had disseminated some of them to third parties, including media outlets, and moved the documents outside the jurisdiction.

The court considered the scope and purpose of the deemed undertaking rule under Rule 30.1.01 of the Rules of Civil Procedure and authorities recognizing that the rule protects discovery material from collateral use.

It held that the court has jurisdiction to restrain third parties who knowingly obtain and use discovery documents contrary to the rule.

Given the investigator’s deliberate conduct in soliciting and disseminating the documents and attempting to evade court authority, a restraining order was warranted.

Following the appointment of a receiver over corporate defendants’ books and records in a commercial dispute involving alleged fraud and breach of agreements, the court determined the quantum of costs payable to the successful plaintiff.

The plaintiff sought partial indemnity costs exceeding $298,000, including substantial disbursements for forensic accounting services.

The defendants challenged the reasonableness of the fees and argued certain expert-related disbursements were not recoverable.

The court held that detailed cost outlines rather than docket production were sufficient, emphasized that costs must be fair and reasonable to the unsuccessful party under Rule 57.01(1), and confirmed that expert forensic accounting fees were recoverable.

Costs were fixed at $180,000 plus HST for fees and $67,566.14 for disbursements, payable jointly and severally by the defendants.

The plaintiff moved for the appointment of a receiver over the books and records of several corporate defendants following loans exceeding USD $111 million for casino and gaming ventures in Jamaica and the Dominican Republic.

The defendants failed to provide required financial reporting, access to records, and audited statements despite contractual obligations and prior court orders.

Evidence indicated possible fraudulent reporting, significant discrepancies in financial information, and unexplained diversion of approximately $50 million to related entities.

The court held that the defendants had repeatedly obstructed access to records and that the circumstances justified the equitable appointment of a receiver to secure and review corporate books and records.

The motion was granted.

Following certification of a securities class action, the court determined the appropriate costs award arising from the leave and certification motions.

The moving parties sought more than $1.18 million in fees and disbursements on a partial indemnity basis.

The court emphasized the need for transparency, proportionality, and historical benchmarking when assessing certification-motion costs under Rule 57.01(1).

After adjusting excessive hourly rates and disbursements, and considering historical averages for comparable certification motions, the court fixed costs at $467,234 payable forthwith, with an additional $100,000 in disbursements payable in the cause.

The Township of Muskoka Lakes brought an application for judicial review to stop the Ministry of Natural Resources from leasing Crown lands to Swift River Energy Limited for the construction of a hydro-electric facility.

The Township argued that the Ministry's decision to issue a Notice under s. 28 of the Public Lands Act prohibiting public access to the lands was unreasonable and an attempt to thwart portage and public access rights.

The Divisional Court dismissed the application, finding that the Ministry's decision was reasonable given the public safety concerns associated with the site, where two drownings had previously occurred.

The court also noted that a lease of Crown lands does not constitute a disposition under s. 65(4) of the Act.