James S.S. Holtom

The defendants brought two motions to amend their pleadings in an action for "section 8" damages under the Patented Medicines (Notice of Compliance) Regulations.

The proposed amendments sought to introduce a defence based on the ex turpi causa doctrine, arguing that the plaintiff's alleged non-infringing alternative (NIA) would infringe a third-party patent, thus making hypothetical sales unlawful and precluding damages.

The plaintiff opposed, arguing the amendments were not tenable and would cause non-compensable prejudice.

The court, applying Rule 26.01, found the proposed amendments raised tenable legal arguments, distinguishing and interpreting relevant case law on NIAs and the ex turpi causa doctrine.

The court also found that any prejudice to the plaintiff could be compensated by costs or an adjournment.

The motions to amend the pleadings were granted.

The applicants, Midwest Amusement Park, LLC and Dr. R.C. Samanta Roy Institute of Science & Technology, Inc., brought motions for summary judgment in two separate fraud actions (2008-action and 2010-action) against Robert Cameron and Cameron Motorsports Inc. The 2008-action concerned fraudulent inducement to purchase go-karts, leading to a U.S. judgment against Midwest Amusement.

The 2010-action involved fraudulent inducement into a loan and business agreement, including fabricated documents and a $175,000 (USD) advance payment, followed by egregious retaliatory conduct by Cameron, causing reputational and economic harm.

The court lifted the stay of proceedings against Cameron Motorsports (due to bankruptcy) as the claim was for fraud, which is not discharged by bankruptcy.

Summary judgment was granted in both actions, finding Cameron and Cameron Motorsports liable for deceit, fraudulent misrepresentation, and obtaining property by false pretenses.

Damages were awarded for direct losses, damages at large for reputational harm and abuse, and punitive damages for the malicious and high-handed conduct.

The applicant, Best Theratronics Limited, sought leave to appeal to the Divisional Court from an interlocutory order denying an injunction that would compel the respondent, Canadian Nuclear Laboratories Limited (CNL), to continue supplying irradiated cobalt.

The motion judge had applied the three-part test for injunctions, finding a serious issue to be tried but concluding that irreparable harm was not substantiated and the balance of convenience favoured CNL due to the applicant's substantial payment arrears.

The court, applying Rule 62.02(4) of the Rules of Civil Procedure, found no conflicting decisions on the issues pertaining to injunctions in supply agreements and no good reason to doubt the correctness of the motion judge's discretionary order.

The court also noted the applicant's failure to expedite the pending arbitration.

Consequently, the motion for leave to appeal was dismissed.

The defendants successfully defeated the plaintiff's motion for an injunction regarding the processing and delivery of radioactive Cobalt-60.

The defendants sought costs of $69,000 on a partial indemnity basis, while the plaintiff argued for $25,000 or deferral to arbitration.

The court considered the complexity of the technical and legal issues, the high value of the goods involved, and the urgency of the motion.

The court fixed costs payable by the plaintiff to the defendants at $45,000 for fees and $6,000 for disbursements on a partial indemnity scale.

The plaintiff sought an interlocutory injunction preventing the defendants from terminating a cobalt irradiation services agreement and requiring continued supply of irradiated Cobalt‑60 pending arbitration.

The defendants terminated the agreement after the plaintiff failed to pay approximately $4 million in overdue invoices despite a contractual requirement that invoices be paid within 30 days.

Applying the RJR‑MacDonald test, the court held that although a limited serious issue existed regarding whether providing only 30 days’ notice to cure default complied with the duty of good faith, the plaintiff failed to demonstrate irreparable harm and the balance of convenience strongly favoured the defendants.

The court found that cancer treatment supply would not be disrupted because the product could be sourced elsewhere and existing supplies remained usable.

The motion for an injunction was denied.