Gavin S. MacKenzie

The plaintiffs brought a motion for the production of a memorandum detailing a conversation between the defendants' former counsel and their expert witness, Dr. Grafius.

The defendants claimed the memorandum was protected by litigation privilege.

The Court of Appeal held that rule 31.06(3) of the Rules of Civil Procedure must be interpreted broadly, requiring the disclosure of all foundational information for a testifying expert's report.

The court ordered the production of the memorandum, finding that litigation privilege does not protect the foundational information of an expert called to testify at trial.

The appellants appealed a costs award of $610,700.85 granted to the respondents following a successful class action certification motion.

The appellants argued the award was excessive, failed to reflect reasonable expectations, and was inconsistent with prior certification motion costs.

The Divisional Court dismissed the appeal, finding that the motion judge properly exercised his discretion, applied the overriding principle of reasonableness, and appropriately reduced the respondents' claimed costs by 40 percent to account for duplication and overkill.

The court emphasized the high level of deference owed to a case-management judge in complex class proceedings.

The applicant, a Justice of the Peace, sought judicial review of an Order in Council removing him from office following a public inquiry.

The inquiry commissioner found that the applicant had engaged in a pattern of misconduct, including denying due process and abusing judicial power in three separate incidents.

The Divisional Court applied a reasonableness standard of review and upheld the commissioner's findings, concluding that it was reasonable to hold a justice of the peace to the same high standard of conduct as a judge.

The application for judicial review was dismissed.

The defendants sought leave to appeal a costs award of approximately $600,000 granted to the plaintiffs following a successful class action certification motion.

The motion judge's award was significantly higher than any previously awarded for a certification motion.

The Divisional Court granted leave to appeal, finding that the correctness of the order was open to serious debate because the motion judge did not appear to consider the overall reasonableness of the award or the reasonable expectations of the paying party.

The court also found the issue to be of sufficient public importance, as such a high costs award could impact the development of class action law and raise access to justice concerns.

The appellants' solicitors obtained an Anton Piller order and inadvertently seized documents protected by solicitor-client privilege.

The respondents moved to disqualify the appellants' solicitors.

The motion judge dismissed the motion, but the Divisional Court allowed the appeal and disqualified the solicitors.

On further appeal, the Court of Appeal established a new test for disqualification in cases of inadvertent disclosure: whether there is a real risk that opposing counsel will use the privileged information to the prejudice of the moving party, and whether that prejudice cannot realistically be overcome by a remedy short of disqualification.

The appeal was allowed and the matter remitted to the motion judge to apply the correct test.

Bell Canada appealed a taxation order confirming costs awarded by the CRTC to public interest interveners in a rate hearing.

Bell argued that because the interveners received government funding or were represented by retained counsel, they did not actually incur expenses, and thus the award violated the principle of indemnification.

The Supreme Court of Canada dismissed the appeal, holding that while the word 'costs' carries a general connotation of indemnification, the CRTC is not bound by the strict rules applicable in courts and may take a broad view to encourage informed public participation.

The appellant challenged a municipal by-law requiring public garages to erect a fence or plant a hedge along property lines not adjacent to a street.

The municipality enacted the by-law under its authority to license and regulate public garages.

The Supreme Court of Canada held that the requirement was an invalid restriction on land use rather than a valid regulation of the licensed business, as it related to esthetic considerations and external appearance rather than the character or conduct of the business.

The appeal was allowed and the impugned provision was struck down as ultra vires.