Jill Dougherty

Seven spirits suppliers brought an application challenging the enforceability of section 14 of the LCBO's standard purchase order Terms and Conditions — a "most favoured customer" no-price-discrimination clause — after the LCBO assessed approximately $35.9 million in chargebacks by way of set-off for breaches of the provision.

The applicants raised multiple grounds: ultra vires, statutory illegality, restraint of trade, unenforceable penalty/unconscionable forfeiture, waiver, estoppel by convention, bad faith, and unjust enrichment.

The court rejected all grounds, holding that section 14 falls squarely within the LCBO's statutory mandate to buy and sell liquor as a wholesaler and retailer, is not prohibited by statute, does not restrain trade, is not an unenforceable penalty, was not waived, and was not the subject of a shared assumption with suppliers that it would not be enforced.

The application was dismissed.

The Saugeen Ojibway Nation (SON) brought two actions against the Crown and several municipalities.

In the Aboriginal Title Claim, SON sought a novel declaration of Aboriginal title to a large portion of the submerged lands in Lake Huron and Georgian Bay.

The court dismissed this claim, finding that while SON had a spiritual connection to the water and relied on fishing, they did not establish sufficient and exclusive physical occupation of the claimed submerged lands at the time of British sovereignty in 1763.

In the Treaty Claim, SON alleged that the Crown breached Treaty 45½ (1836) by failing to protect the Bruce Peninsula from settler encroachments, and breached duties during the negotiation of Treaty 72 (1854).

The court found that the Crown breached the honour of the Crown by failing to diligently fulfill its promise to protect the Peninsula from squatters, and by inappropriate conduct during the August 1854 treaty negotiations.

However, the court dismissed the claims for breach of fiduciary duty.

The court also declared that Treaty 72 did not extinguish SON's harvesting rights, which continue on unsold lands and on sold lands where the use is not incompatible with harvesting.

Property-specific remedies and defences were deferred to a second phase of the trial.

The plaintiffs, a group of affiliated wine manufacturers and retailers, brought an action against the LCBO, the AGCO, and the Crown challenging the 'Made Policy', which regulates where wineries can sell their products.

The parties brought six competing motions, including motions to strike pleadings, motions for summary judgment, and a motion regarding the late disclosure of a tolling agreement between the defendants.

The court dismissed the plaintiffs' motion to strike the defendants' pleadings over the tolling agreement, finding it did not alter the expected adversarial landscape.

The court struck significant portions of the plaintiffs' statement of claim against the LCBO and AGCO, particularly allegations relating to pre-2001 conduct that had been settled in prior litigation, and claims for intentional interference with economic relations.

The Crown's motion for summary judgment was granted, dismissing the action against it.

The AGCO's and the plaintiffs' respective motions for summary judgment were dismissed, as the complex factual matrix and allegations of bad faith required a trial.

The plaintiffs appealed an order of a Master upholding numerous refusals made during Rule 39.03 examinations of non-party witnesses.

The examinations related to interlocutory motions concerning the late disclosure of a tolling agreement between the defendants.

The plaintiffs alleged 14 errors of fact and law, primarily challenging the Master's findings on litigation privilege, common interest privilege, and the scope of permissible questions for Rule 39.03 witnesses.

The Superior Court of Justice dismissed the appeal, finding no palpable and overriding errors of fact or errors of law, and affirming that the documents and communications surrounding the tolling agreement were protected by privilege.

The applicant, a small craft distillery, applied for a declaration that the markup imposed by the LCBO on spirits sold at its on-site retail store was an unconstitutional tax under the Constitution Act, 1867.

The court dismissed the application, finding that the markup was a proprietary charge levied by the LCBO as the owner and commercial supplier of the spirits.

Alternatively, the court held that the markup was a contractual term freely agreed to by the applicant in exchange for the authorization to sell its products.

A case conference was held to manage the scheduling of the defendants' outstanding motions to strike and for summary judgment, as well as the plaintiffs' proposed cross-motion and summonses to witness.

The court established a timetable for the delivery of affidavits of documents, notices of cross-motion, and the scheduling of motions to quash the summonses.

The court emphasized the need for efficient scheduling and discouraged the strict enforcement of procedural rights that would cause unnecessary delay.