Frank N. Marrocco

The defendants appealed an interlocutory order denying the production of certain medical records.

The motion judge had refused production based on the assumption that the individual whose records were sought had cerebral palsy and could not serve as a proper comparator.

On appeal, counsel clarified that there was no conclusive diagnosis of cerebral palsy.

The Divisional Court allowed the appeal and ordered production, noting that the trial judge retains the discretion to exclude evidence if its prejudicial effect outweighs its probative value.

The applicant, a payday lender, brought an application for judicial review challenging the validity of amendments to a regulation under the Payday Loans Act, 2008.

The amendments redefined the total cost of borrowing to include directly or indirectly connected amounts, required lenders to provide cash for unused balances on devices, and prohibited the sale of third-party services in connection with payday loans.

The applicant argued that the government breached its legitimate expectations by failing to provide a 45-day consultation period and that the amendments were ultra vires.

The Divisional Court dismissed the application, holding that the doctrine of legitimate expectations does not apply to the exercise of legislative powers and that the amendments were intra vires as they aligned with the consumer protection purpose of the Act.

The court addressed scheduling for submissions regarding the appropriate penalty in a proceeding brought by the Commissioner of Competition against telecommunications companies.

The parties appeared to establish timelines for written submissions and oral argument on penalty.

The court set deadlines for the applicant’s submissions, the respondents’ responding submissions, and the applicant’s reply.

Dates were also scheduled for oral argument concerning the penalty to be imposed.

The appellants appealed the dismissal of an unopposed motion for summary judgment.

The Divisional Court found that the facts put forward by the plaintiffs entitled them to the relief claimed, and the defendants did not contest those facts or oppose the motion.

Finding no genuine issue requiring a trial, the court granted summary judgment and awarded costs for the motion, leave to appeal, and the appeal.

The applicant union sought judicial review of an arbitrator's decision upholding an employee's termination for failing to maintain equipment and falsifying records.

The union argued it was denied procedural fairness because the arbitrator based the decision on willful neglect rather than deliberate sabotage.

The Divisional Court dismissed the application, finding that the employer had clearly argued willful neglect before the arbitrator and the union had ample opportunity to respond.

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.

The Commissioner of Competition brought an application against Rogers and Chatr alleging that their advertising claims of 'fewer dropped calls than new wireless carriers' and 'no worries about dropped calls' were false, misleading, and made without adequate and proper testing, contrary to the Competition Act.

The court found that the applicant failed to prove the claims were false or misleading.

However, the court found that the respondents failed to conduct adequate and proper testing in certain cities prior to launching the advertising campaign, thereby engaging in reviewable conduct under s. 74.01(1)(b).

The court also dismissed the respondents' constitutional challenges, finding that s. 74.01(1)(b) is a justified limit on freedom of expression and that the administrative monetary penalty does not engage s. 11 of the Charter.

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 applicant sought writs of certiorari and mandamus to quash a Justice of the Peace's decision refusing to issue process against a police officer for a private prosecution.

The applicant also sought to prohibit his own upcoming criminal trial.

The Superior Court of Justice dismissed the applications, finding no jurisdictional error by the Justice of the Peace, who properly considered the applicant's evidence and concluded there was no rational inference of criminal intent.

The court further noted that even if there were jurisdictional error, it would decline to issue the writs as there was no reasonable prospect of conviction.

The plaintiffs brought a medical malpractice action following the death of a mother from postpartum hemorrhage and disseminated intravascular coagulation (DIC) hours after a caesarean section.

The plaintiffs alleged that the nurses, anaesthesiologist, and obstetricians breached the standard of care by failing to recognize and treat the bleeding earlier.

The court found that while the anaesthesiologist breached the standard of care by delaying notification to the obstetricians of the patient's deteriorating condition, this delay did not cause the patient's death.

The court concluded that even if the decision to operate had been made earlier, the patient would still have developed DIC and the fatal blockage would not have been prevented.

The action was dismissed without costs.

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 three accused, former senior executives of Nortel Networks Corporation, were charged with two counts of fraud over $5,000.

The Crown alleged that they deliberately misrepresented Nortel's financial results by manipulating accrued liability balances to meet earnings targets and trigger bonus payments.

The court conducted a detailed review of Nortel's accounting practices, the use of accrued liabilities, and the restatements of its financial results.

The court found that the Crown failed to prove beyond a reasonable doubt that the accused deliberately misrepresented the financial results or that the financial statements were materially misstated.

The accused were found not guilty on both counts.

The plaintiffs sought to enforce a California judgment of approximately (US)$17 million against the defendant Jay Chiang and sought a declaration that the debt survives his bankruptcy discharge under s. 178(1)(d) of the BIA.

The plaintiffs also brought a second action alleging that Jay Chiang and numerous family members engaged in fraudulent conveyances and a conspiracy to hide assets and frustrate collection efforts.

The court enforced the California judgment in the amount of (US)$9,678,832 but declined to declare that the debt survives bankruptcy, finding no fiduciary duty was owed to the plaintiffs.

The court found Jay Chiang liable for fraudulent conveyances and conspiracy, but dismissed the claims against most of the other family members, finding they were unwitting conduits used by Jay Chiang.

During a criminal fraud trial involving former corporate executives, the Crown sought disclosure of lawyers’ interview notes created while representing two accused during internal corporate investigations.

The defence asserted litigation privilege over handwritten and typed notes taken by counsel and assisting lawyers during interviews conducted by investigators retained by the corporation’s audit committee.

The court held that the notes were created for the dominant purpose of anticipated litigation, including regulatory proceedings and civil actions, and therefore attracted litigation privilege.

None of the recognized exceptions to litigation privilege were established.

The court ruled that the privileged notes were not producible, though counsel-witnesses could review their own notes to refresh memory without waiving privilege.

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.