Evan Thomas

The accused was charged with impaired operation of a motor vehicle contrary to s. 253(1)(a) of the Criminal Code following a collision in a parking lot.

The Crown proceeded only on the impaired charge.

Evidence established that the accused collided with a parked vehicle, exhibited inappropriate behaviour at the scene, failed an approved screening device, and displayed signs of intoxication during police custody.

The defence challenged the admissibility of certain statements under the Charter and argued that post-arrest behaviour should not be considered due to the time elapsed.

The court found the accused guilty, holding that the totality of evidence, including observations at the scene, the collision itself, the accused's bizarre behaviour in police custody, and video evidence from the police station, established impairment beyond a reasonable doubt.

The defendant franchisor appealed a motion judge's refusal to transfer the venue of a franchise dispute from Hamilton to Kitchener.

The defendant argued the motion judge erred by not requiring the plaintiffs' chosen venue to have a rational connection to the claim, relying on the Siemens decision.

The Divisional Court dismissed the appeal, clarifying that motions to change venue require a holistic application of the factors in Rule 13.1.02(2) of the Rules of Civil Procedure.

The court found no error in the motion judge's balancing of the factors and affirmed that a plaintiff's choice of venue, even if lacking a strong rational connection, may be upheld if the defendant fails to demonstrate that a transfer is desirable in the interests of justice.

The defendant franchisor sought leave to appeal an interlocutory order dismissing its motion to transfer the action from Hamilton to Kitchener.

The defendant argued that leave should be granted under Rule 62.02(4)(a) due to conflicting decisions regarding the proper test for venue transfers under Rule 13.1.02(2)(b).

The court found that there were indeed conflicting lines of cases in Ontario—specifically the 'Siemens' threshold approach versus the 'Hallman' holistic approach—and granted leave to appeal to the Divisional Court to resolve the inconsistency.

The defendant franchisor sought leave to appeal an interlocutory order dismissing its motion to transfer the venue of a franchise dispute from Hamilton to Kitchener.

The moving party argued that leave should be granted under Rule 62.02(4)(a) because there are conflicting decisions in Ontario regarding whether a plaintiff's choice of venue must have a rational connection to the action before the court engages in a holistic balancing of factors under Rule 13.1.02(2)(b).

The court agreed that two conflicting lines of cases exist (the Siemens threshold approach versus the Hallman holistic approach) and granted leave to appeal to the Divisional Court to provide appellate guidance on the issue.

The defendant franchisor brought a motion to change the venue of a franchise dispute from Hamilton to Kitchener under Rule 13.1.02(2) of the Rules of Civil Procedure.

The action alleged breach of contract, negligence, bad faith, misrepresentation, and disclosure failures under the Arthur Wishart Act in relation to a franchise relationship.

The defendant argued that most defence witnesses were located in the Kitchener-Waterloo area and that Hamilton had no connection to the events.

The court applied a holistic analysis of the Rule 13.1.02 factors and held that the moving party bears the onus of demonstrating that the proposed venue is significantly more desirable in the interests of justice.

The court concluded that Hamilton was a rational and reasonable venue located between the parties and that the defendant failed to show Kitchener was significantly better.

Following the dismissal of two Rule 30 motions brought by the defendants seeking production of allegedly privileged documents in a certified class proceeding, the court determined the appropriate costs award.

Although the court agreed that solicitor-client privilege had been expressly waived during cross-examinations, the motions were dismissed because the legal advice received by an individual class member was irrelevant to the certified common issues.

On the costs issue, the court rejected the defendants’ submission that success was divided and held that the responding party was substantially successful.

Applying the factors in Rule 57.01(1) and the guidance from the Court of Appeal in Boucher, the court fixed a fair and reasonable costs award below the amount claimed.

Costs of $20,000 all-inclusive were awarded to the responding party, divided equally between the two defendants.

In a certified class action involving former automobile dealers whose franchises were terminated during the 2009 automotive industry restructuring, the defendants sought production of documents relating to legal advice the representative plaintiff received from its own lawyer when signing wind‑down agreements.

The moving parties argued that solicitor‑client privilege had been waived and that the advice was relevant to issues such as causation and damages.

The court held that although privilege regarding advice about the wind‑down agreement had been expressly waived during earlier cross‑examination, relevance for discovery in a class proceeding prior to the common issues trial is confined to the certified common issues.

Because the certified issues focused on the defendants’ conduct under provincial franchise legislation and alleged professional duties, and did not require examination of the individual legal advice received by class members, the requested documents were not relevant at this stage.

The motions to compel production were therefore dismissed.

The plaintiffs, franchisees of Shoppers Drug Mart, brought a proposed class action alleging breach of contract, breach of the duty of good faith, unjust enrichment, and breach of fiduciary duty regarding the franchisor's retention of rebates and professional allowances, and its practices regarding cost recovery fees, budgeting, and inventory.

The defendants brought a Rule 21 motion to strike the claims for disclosing no reasonable cause of action.

The court struck the claims for rebates, breach of fiduciary duty, interference with association, and duty of disclosure, finding them untenable based on the clear language of the franchise agreements.

However, the court allowed the claims regarding professional allowances, cost recovery fees, budgeting practices, and inventory practices to proceed, finding it was not plain and obvious they would fail.

The defendants brought a motion for summary judgment seeking dismissal of claims arising from a logistics services agreement.

The plaintiff alleged contractual entitlement to shortfall penalties, negligent misrepresentation, and breach of a duty of good faith.

The court held that the contract expressly barred shortfall penalties for periods shorter than a full fiscal year and refused to imply a term to allow recovery.

The court also dismissed the pre‑contractual misrepresentation claim based on an entire agreement clause and struck the good faith claim for failing to identify a contractual term performed in bad faith.

However, summary judgment was refused for alleged misrepresentations made during the contractual relationship, as factual disputes regarding falsity, reliance, and damages required a trial.

The defendants moved for leave to appeal an order certifying a class action brought by the plaintiff franchisee.

The defendants challenged the certification of several common issues relating to GMCL's alleged breach of statutory duties and Cassels Brock & Blackwell LLP's alleged negligence and breach of contract.

The Divisional Court granted leave to appeal in part.

Leave was granted regarding the common issues of whether GMCL failed to disclose material facts and interfered with the right to associate, as these required individual inquiries.

Leave was also granted regarding the claims against the law firm, as there was conflicting authority on whether loss of chance requires proof that the plaintiff would have acted differently but for the breach.

Leave was denied for the remaining issues, and a request to stay the action against the law firm was refused.