Frank Marrocco

In an application alleging misleading advertising under ss. 74.01(1)(a) and (b) of the Competition Act regarding claims of fewer dropped calls by a wireless provider, the court addressed discovery disputes involving communications between the Competition Bureau and industry participants.

The respondents sought disclosure of communications between the applicant and several wireless competitors, as well as internal investigative notes.

The court held that public interest privilege did not apply to communications with two competitors that had publicly promoted their role in the investigation, and ordered disclosure of communications occurring before litigation became the dominant purpose.

However, documents created after litigation was contemplated were protected by litigation privilege.

Communications involving another competitor and internal notes relating to discussions with a federal department remained protected by public interest privilege.

In an application alleging misleading advertising under s. 74.01(1)(b) of the Competition Act, the respondents sought leave to call eight expert witnesses despite the five‑expert limit imposed by s. 7 of the Canada Evidence Act.

The applicant opposed the request, arguing that some expert evidence was duplicative and that certain proposed opinions concerning the “general impression” of advertisements were inadmissible.

The court held that the proposed expert evidence was not unnecessarily duplicative and would not unduly prolong the hearing.

The court also determined that the admissibility of portions of the challenged expert evidence, including survey evidence and analysis of advertisements, could be addressed during trial if relied upon.

Leave was therefore granted to the respondents to call eight expert witnesses.

Following a medical negligence trial in which the plaintiffs were unsuccessful in establishing a causal connection between breaches of the standard of care and a patient’s death following a caesarean section, the defendant hospital sought costs of $272,000.

The plaintiffs included the deceased’s spouse and minor children represented by a litigation guardian.

Although the plaintiffs had declined a settlement offer and the defendants had succeeded at trial, the court exercised its discretion under s. 131 of the Courts of Justice Act to deny a costs award.

Considering the plaintiffs’ circumstances, the public nature of the defendant institution, and broader access to justice concerns, the court held that imposing the full costs sought would be inequitable.

The plaintiff sought indemnification for deposit refunds paid to purchasers after a registered home builder entered agreements to construct homes despite lacking a valid registration under the Ontario New Home Warranties Plan Act.

The court found the builder fundamentally breached twenty-two Agreements of Purchase and Sale by contracting without legal capacity to construct the homes.

As a result, purchasers were entitled to statutory deposit refunds under s. 14 of the Act.

The court rejected arguments that certain payments were loans rather than deposits and held that the indemnitor’s personal indemnity obligation was not reduced by a separate surety bond.

Judgment was granted for the refunded deposits, administrative fees, and statutory interest.

The accused brought a pre‑trial motion seeking particulars requiring the Crown to specify the alleged misrepresentations, fraudulent conduct, and false accounting entries underlying charges relating to financial reporting of a public corporation.

The motion relied on s. 587 of the Criminal Code, arguing that the indictment lacked sufficient detail for the preparation of a defence.

The court reviewed the extensive investigations, disclosure, and related regulatory proceedings already known to the accused and concluded that they were aware of the case they had to meet.

The court held that the areas of dispute were sufficiently delineated and that further particulars were unnecessary for trial fairness or evidentiary rulings.

The application for particulars was dismissed.

Following a complex insurance dispute involving alleged arson and the destruction of artwork, the court determined the appropriate costs payable by the insurer to the plaintiff after two trials.

The court reviewed legal fees from multiple law firms and reduced several claimed amounts where work was unrelated to the litigation or where hourly rates were excessive for counsel’s level of experience.

Expert witness fees for an appraisal report valuing destroyed artwork were also scrutinized, with the court reducing the claimed preparation time and attributing only two‑thirds of the report’s cost to the litigation because part of the work related to the insurance proof of loss requirement.

The court rejected a claim for contractual interest of 2% per month on the expert’s fees but awarded prejudgment interest at the average annual statutory rate.

The defendant’s partial success on a punitive damages claim did not justify a reduction in the plaintiff’s costs.