Jacqueline Dais-Visca

The plaintiffs, shareholders and creditors in Mobilicity, a wireless telecommunications company, sued the federal government for negligence and negligent misrepresentation arising from the 2008 AWS spectrum auction.

The plaintiffs alleged that Industry Canada represented that spectrum licences acquired at auction would be transferable to incumbent carriers after a five-year moratorium, and that they relied on this representation to invest approximately $250 million in equity and $95 million in debt to capitalize Mobilicity and bid for spectrum licences.

The plaintiffs further alleged that in 2013, the government unilaterally changed the transfer framework to prohibit transfers to incumbents, and in 2014-2015 interfered with Mobilicity's sales process through threats, media manipulation, and regulatory delay.

The court found the government liable for negligence and negligent misrepresentation, holding that it owed a duty of care to the plaintiffs based on specific representations made to induce investment, and that it breached that duty through the implementation of the 2013 Transfer Framework and subsequent interference in the sales process.

The court awarded damages based on a "but for" analysis, calculating what the plaintiffs would have earned in alternative investments had they not relied on the government's representations.

The defendants brought a motion seeking dismissal of the actions due to the plaintiffs' alleged breach of court orders regarding privileged documents.

In the alternative, they sought removal of the plaintiffs' counsel and an increase in security for costs.

The court denied the motion, finding that there were reasonable excuses for the alleged breach of the Crown Privilege Order and that no likely prejudice was suffered by the defendants.

The request for increased security for costs was also denied, as it would be unjust to the plaintiffs and there was no evidence of their inability to pay.

The moving party brought a motion for leave to appeal an order dated October 26, 2022.

The Divisional Court reviewed the written materials submitted by the parties.

The motion for leave to appeal was dismissed, with costs awarded to the responding party in the amount of $5,000.

The appellants appealed an order dismissing their motion for summary judgment, arguing for the first time that the Ontario Superior Court lacked subject matter jurisdiction under s. 21(1) of the Crown Liability and Proceedings Act.

The respondent alleged that Canadian officials in Ottawa and consular staff in Egypt and Sudan actively facilitated the illegal removal of his daughter from Egypt to Ontario.

The court held it had jurisdiction to hear the new issue on appeal and found a good arguable case that the claim arose in Ontario, primarily because the issuance of a temporary passport by officials in Ottawa was the essential act that enabled the removal.

The appeal was dismissed.

The defendant appealed the dismissal of its motion for summary judgment.

The defendant argued that the dispute resolution clause in the construction contract extinguished the plaintiff's right to bring a court action because the plaintiff failed to deliver a Notice of Dispute within 15 days of the defendant's decision.

The Divisional Court dismissed the appeal, finding a genuine issue requiring a trial as to whether the defendant satisfied the condition precedent of 'consultation and co-operation' before rendering its decision, which would trigger the 15-day deadline.

The defendant brought a motion for summary judgment to dismiss the plaintiff's action for negligence, misfeasance in public office, conspiracy, intentional infliction of emotional distress, and breach of section 7 of the Charter.

The plaintiff alleged that Canadian consular officials facilitated the kidnapping of his daughter by his ex-wife from Egypt to Canada.

The court dismissed the motion, finding that genuine issues requiring a trial existed regarding whether the defendant owed a duty of care, whether its actions constituted protected consular services, and whether the plaintiff's Charter rights were breached.

During a case conference, the plaintiffs sought to regularize the late delivery of their motion records for upcoming cross-motions.

The defendants opposed, citing the plaintiffs' continued disregard of court orders and the plaintiffs' counsel's recent administrative suspension.

As the parties could not agree on a procedural path, the case management judge granted leave for the parties to bring meta-motions regarding the late filing and admissibility of the evidence, and vacated the scheduled hearing date for the main cross-motions.

The moving party sought leave to appeal an order denying summary judgment.

The Divisional Court granted leave to appeal on the question of whether the dispute resolution clause (GC8) in the contract between the parties extinguished the responding party's right to bring a court action.

Costs of the motion were fixed at $5,000 and reserved to the panel hearing the appeal.

The appellant creditor appealed a decision upholding the Trustee's disallowance of its unsecured claim in the bankruptcy.

The claim was based on a promissory note and subsequent agreement, but no payments or acknowledgments had been made for over two years prior to the bankruptcy, rendering it statute-barred under the Limitations Act, 2002.

The court held that a statute-barred claim, being unenforceable at law, is not a claim to which the bankrupt is 'subject' under section 121(1) of the Bankruptcy and Insolvency Act, and is therefore not provable in bankruptcy.

The appeal was dismissed.

The defendant, the Attorney General of Canada, moved for summary judgment to dismiss the plaintiff's $2,000,000 action for breach of contract, quantum meruit, and unjust enrichment.

The plaintiff, a contractor, sought additional payment for delays and increased costs incurred during a window replacement project at a maximum-security penitentiary.

The court granted the motion and dismissed the action, finding that the plaintiff failed to comply with the mandatory dispute resolution and notice provisions under the general contract after the government rejected its claim.

The plaintiffs brought a motion to compel the defendants to answer fifteen refusals from examinations for discovery and written interrogatories.

The underlying action involves an environmental investigation.

The court reviewed each refusal, upholding several on the basis of solicitor-client privilege, proportionality, and sufficient prior answers, while ordering the defendants to answer others, including clarifying transcript discrepancies and conducting specific email searches.

The motion was granted in part.

The defendants brought a motion to compel the plaintiffs to answer questions refused on discovery and for a declaration that the plaintiffs waived solicitor-client privilege over legal advice received from their former counsel.

The defendants argued privilege was waived through the plaintiffs' pleadings of duress, their discovery evidence, and by publicly filing documents in a separate small claims court action against the counsel.

The court held that the plaintiffs did not waive privilege in this action because they did not put the legal advice in issue or rely on it for their claims.

While privilege was waived over the publicly filed documents, those documents were deemed irrelevant to the current action.

The court also ruled on several other discovery refusals, upholding some and ordering answers or redactions for others.

The plaintiff, H.R. Doornekamp Construction Ltd., and the defendant, Attorney General of Canada, both brought motions for summary judgment concerning a construction contract dispute.

Doornekamp sought partial summary judgment on liability for additional concrete work, arguing that a specific contract clause (GC6.4.3) constituted a "separate code" for payment, bypassing general dispute resolution (GC8).

Canada sought dismissal of Doornekamp's claim, arguing it was extinguished due to non-compliance with GC8 notice provisions, or alternatively, that genuine issues required a trial regarding the applicability of GC6.4.3 and the quantity of work.

The court found genuine issues requiring a trial regarding whether Doornekamp properly invoked GC6.4.3 and whether Canada's conduct affected Doornekamp's rights, particularly concerning the duty of honest performance and potential variation of contract terms by conduct.

Both motions for summary judgment were dismissed, with the court emphasizing the rarity and challenges of partial summary judgment.

The appellant appealed the dismissal of his personal claims by the motion judge in two actions against the Attorney General of Canada and individuals employed by Environment Canada.

The motion judge had ordered security for costs of $230,000 on a joint and several basis.

When the second instalment of $130,000 was not paid by the deadline, the motion judge dismissed the appellant's personal claims while granting the corporate plaintiffs an extension to post the security.

The Court of Appeal found this was a reversible error, holding that the motion judge failed to apply the same balancing exercise to the appellant as he did to the corporate plaintiffs, and that the factual inference that the appellant no longer wished to pursue his claim was not supported by the record.

The defendants moved to dismiss four actions due to the plaintiffs' failure to post security for costs and other alleged breaches of interlocutory orders.

The plaintiffs cross-moved to vary or rescind the security for costs order or, alternatively, for an extension of time.

The court dismissed Patrick Whitty's claims in two actions and granted the corporate plaintiffs an extension until October 31, 2018, to post the outstanding security.

Despite initial inclination that the defendants were more successful, the disclosure of a reasonable offer to settle by the plaintiffs altered the assessment.

The court found both sides engaged in "expensive overkill" by seeking excessive relief instead of agreeing to a reasonable mid-ground.

Consequently, the court ordered that each party bear their own costs for the motions.

The defendants moved to dismiss four proceedings due to the plaintiffs' failure to post $130,000 security for costs as required by a prior order.

The plaintiffs cross-moved to vary the security for costs order or, alternatively, seek an extension of time.

The court dismissed Patrick Whitty's personal actions, finding he had indicated a lack of interest in proceeding personally by declining to post further security.

For the corporate plaintiffs, the court denied the motion to vary the security for costs order, finding no significant change in circumstances or a gap between ordered security and likely costs.

However, recognizing the overall goal of fair dispute resolution, the court granted the corporate plaintiffs a final extension until October 31, 2018, to post the outstanding security, emphasizing that failure to comply would result in dismissal without further notice.

The appellants (Iran and related entities) appealed orders of the Superior Court of Justice recognizing and enforcing U.S. judgments obtained by victims of terrorism against Iran for its sponsorship of terrorist attacks.

The respondents sought to enforce these judgments in Ontario under the Justice for Victims of Terrorism Act (JVTA) and amendments to the State Immunity Act (SIA).

Iran challenged the recognition and enforcement of the judgments on multiple grounds, including arguments regarding state immunity, the temporal scope of the JVTA, proof requirements, limitation periods, jurisdiction, public policy, diplomatic immunity, and the appropriateness of costs awards.

The Court of Appeal dismissed Iran's appeal, save for judgments arising from terrorist attacks that occurred prior to January 1, 1985, which could not be enforced under the JVTA.

The plaintiffs sought leave to appeal an interlocutory order that dismissed their motion for additional documentary production from the Crown, upheld claims of solicitor-client privilege between a Crown prosecutor and Environment Canada investigators, and allowed the Crown to claw back inadvertently disclosed privileged documents.

The Divisional Court dismissed the motion for leave to appeal, finding no good reason to doubt the correctness of the motion judge's decisions, which properly applied principles of proportionality and solicitor-client privilege.

The court also found that the proposed appeal did not involve matters of general importance, as the issues were specific to the parties.

The parties sought costs following a series of motions concerning document production and privilege.

The plaintiffs had been unsuccessful on all their motions, including an attempt to set aside prior orders based on unproven allegations of fraud against the Crown.

The Crown and another defendant, Sandra Antoniani, were successful in their respective motions.

The court awarded partial indemnity costs to Antoniani in the amount of $25,635.80.

The court awarded the Crown $25,000 in partial indemnity costs for its clawback motion and $45,000 in substantial indemnity costs for responding to the plaintiffs' motions, noting the plaintiffs' unproven allegations of fraud and unnecessary prolongation of the proceedings.

The plaintiffs sued the Crown and others for misfeasance in public office and defamation related to regulatory charges.

The plaintiffs moved for further document disclosure, arguing the Crown's production was deficient compared to documents released under the Access to Information Act.

The Crown moved to claw back privileged documents inadvertently disclosed under the Act.

The court dismissed the plaintiffs' motions, finding that the different criteria for civil discovery and access to information requests explained the discrepancy in document volume.

The court upheld the Crown's claims of solicitor-client privilege over communications between the prosecutor and regulatory investigators, and found that the inadvertent disclosure did not constitute a waiver of privilege.

The plaintiffs were ordered to return and destroy the privileged documents.