George Grant Boyd Aitken

The defendant brought a motion following a trial to seal certain exhibits to protect litigation privilege related to a separate class proceeding.

The plaintiffs opposed the motion.

The court noted that litigation privilege exists for the benefit of the plaintiff class in the separate proceeding, and therefore class counsel should have the opportunity to waive or defend it.

The motion was adjourned to be brought back with formal notice to class counsel.

Following a trial where the plaintiffs were awarded $328,396.82 for breach of contract, the parties made submissions on costs.

The plaintiffs sought costs of approximately $500,000, while the defendant sought costs from the date of its Rule 49 offer.

The court noted that the plaintiffs' costs were driven by multiple unmeritorious causes of action and that the defendant's offer triggered the costs consequences of Rule 49.10(2).

Balancing the plaintiffs' partial success against the defendant's offer and the plaintiffs' unreasonable litigation conduct, the court exercised its discretion to award no costs to either party.

The plaintiff, a former law student, conceived the idea of using a class proceeding to resolve the issue of unpaid royalties to unlocatable musicians.

She brought the idea to the Canadian Internet Policy and Public Interest Clinic (CIPPIC) at the University of Ottawa, which formed a consortium with class counsel.

The plaintiff and CIPPIC entered into an agreement guaranteeing her 5% of the counsel fees awarded.

The plaintiff later sued the university for $3.5 million, alleging breach of copyright, breach of fiduciary duty, and unjust enrichment, arguing she was entitled to a larger share.

The court dismissed the tort and equitable claims, finding no breach of copyright or fiduciary duty, and upheld the written agreement as binding and reasonable.

The plaintiff was awarded $328,396.82, representing her agreed 5% share of the counsel fees.

This decision addresses the costs of a previously dismissed motion brought by 256613 Ontario Inc. (the Owner) to strike and discharge construction liens registered by GTA General Contractors Ltd. and Karar Al-Najari (the Contractors).

The Contractors, having successfully defended the Owner's motion, sought costs on a substantial indemnity scale.

The court, considering the complexity and importance of the liens but noting the Contractors' unsuccessful argument regarding the interlocutory nature of the Owner's motion, awarded costs on a partial indemnity scale in the amount of $6,700, including HST and disbursements.

John Przybytek, having successfully obtained an order to discharge an invalid and unconscionable mortgage, sought substantial indemnity costs against 3002071 Canada Inc., 1457563 Ontario Inc., and lawyer Claude-Alain Burdet personally.

The court awarded costs against 3002071 Canada Inc. only, on a substantial indemnity basis, for fees and disbursements incurred up to March 11, 2019, totaling $16,570.00.

The request for costs against Mr. Burdet personally was denied, as the court found that the applicant's own counsel's firm had engaged in similar problematic conduct regarding a second mortgage, creating an ironic basis for the argument.

Following a successful application to discharge a mortgage, the applicant sought costs on a substantial indemnity basis, including a request for costs against the respondent's lawyer personally under Rule 57.07(1).

The court noted that the respondent's lawyer had not been given a reasonable opportunity to make representations as required by Rule 57.07(3).

The court issued directions giving the applicant the option to withdraw the request or confirm it, in which case the respondent's lawyer would be given an opportunity to request a hearing and retain counsel.

The owner of a condominium unit brought a motion under section 47 of the Construction Lien Act to discharge two construction liens registered by the contractor and subcontractor, arguing they were not preserved or perfected in time.

The lien claimants argued the motion required leave under section 67(2) and that genuine issues for trial existed regarding the date of substantial performance.

The court held that leave was not required because the motion sought final relief.

However, the court dismissed the motion, finding the owner failed to establish that there was no genuine issue for trial regarding the date of substantial performance, abandonment, and whether the parties agreed to continued performance of the contract.

The applicant sought to discharge a $50,000 mortgage registered against his property by the respondent.

The respondent, operated by the son of the applicant's former lawyer, brought a counter-application seeking repayment of various loans.

The court declined to join the proceedings, finding the counter-application required a trial.

On the main application, the court found the mortgage was invalid and unconscionable because there was no contract for debt, the applicant was unaware of the mortgage, and there was an undisclosed relationship between the applicant's lawyer and the lender.

The mortgage was ordered discharged and the counter-application was converted into a separate action.

This endorsement addresses procedural issues arising from a "counter-application" filed by the respondent and a joint applicant.

The court clarified that "counter-applications" do not exist under the Rules of Civil Procedure, but treated the filing as an irregularity in commencing a new application.

The hearing was adjourned, and orders were made regarding the filing of cross-examination transcripts, confirmation forms, and crucially, that the "counter-application" would not be heard unless the applicant's sister, Helen Butt, was properly served due to her potential interest in the relief sought.

The applicant, a commercial tenant, sought relief from forfeiture, an order compelling arbitration, and rent abatement after the respondent landlord issued a notice to quit upon the expiration of their lease.

The court found that relief from forfeiture was unavailable because the lease had expired by its terms, not due to a breach or default by the tenant.

The court also determined that the parties had abandoned their agreement to arbitrate by failing to appoint an arbitrator within the stipulated timeframe.

Consequently, the claims for arbitration and rent abatement, which was an issue for arbitration, were dismissed.

In an application for certification where the BACU sought to displace the IUBAC as the bargaining agent for bricklayers employed by Kvaerner Jaddco, the Board addressed several preliminary issues.

The Board determined the appropriate bargaining unit, permitted the withdrawal of a related grievance, and dismissed allegations regarding the order of names on the ballot and forced membership card signing.

However, the Board found that due to a series of administrative and logistical errors by the Board and the parties, employees did not receive adequate notice of the initial representation vote.

Consequently, the Board ordered a second representation vote to be held.

The Board determined the status of the Brick and Allied Craft Union of Canada (BACU) following a dispute with the International Union of Bricklayers and Allied Craftworkers (IUBAC).

The IUBAC had purported to revoke the charters of the Ontario Provincial Council (OPC) and several locals.

The BACU claimed it was the transformed OPC or its successor.

The Board found that the BACU could not be the successor to the OPC because the revocation of charters was deemed ineffective under section 147(5) of the Labour Relations Act once a complaint was filed.

Furthermore, the BACU did not meet the statutory definition of an Employee Bargaining Agency.

However, the Board concluded that the BACU and its locals (except Locals 6, 7, and 25) had taken the necessary steps to constitute themselves as independent trade unions within the meaning of section 1(1) of the Act.