Jon Smithen

The plaintiffs brought a proposed class action alleging a global price-fixing conspiracy by the defendants regarding airfreight shipping services.

The defendants brought a motion to stay the action as it related to absent foreign claimants, arguing the court lacked jurisdiction simpliciter.

The court granted the motion, finding that the real and substantial connection test should not be applied to establish jurisdiction over absent foreign claimants, as an Ontario judgment would not be recognized abroad, offending principles of order, fairness, and comity.

Alternatively, the court held that even if jurisdiction existed, it would decline it on the basis of forum non conveniens.

In a motion relating to an application under the Building Code Act concerning the refusal of a building permit, the moving party sought production of the responding municipality’s expert engineer’s entire file and related communications.

The court considered the scope of implied waiver of litigation privilege where an expert affidavit has been served.

Applying authorities including Conceicao Farms Inc. v. Zeneca Corp. and Ebrahim v. Continental Precious Minerals Inc., the court held that waiver should be narrowly construed and that automatic production of an expert’s entire file is not required absent evidence raising concerns about the expert’s independence or authorship of the report.

As no such concerns existed and foundational information had already been produced, the request for full disclosure of the expert’s file was denied.

The court ordered limited re-attendance of witnesses for further cross-examination by video conference concerning new information arising from undertakings.

In a proposed class action alleging a price‑fixing conspiracy in the optical disc drive (ODD) market contrary to common law and s. 45 of the Competition Act, the plaintiff sought leave to amend the claim to add eighteen additional corporate defendants.

The defendants opposed the amendment on the basis that limitation periods under the Limitations Act and s. 36(4) of the Competition Act had expired.

The court held that at the pleadings amendment stage it was inappropriate to make definitive findings on discoverability or the expiry of limitation periods where the evidentiary record was incomplete.

Although the plaintiff’s evidence regarding due diligence was thin, the court concluded it would be unfair to refuse the amendment solely on the deficient record.

The motion was adjourned to permit the plaintiff to file additional evidence addressing discoverability and diligence.

The appellant cement manufacturer proposed substituting alternative fuel derived from post-recycling and post-composting materials for conventional fossil fuel.

The respondent municipality argued this constituted a new land use as a 'waste disposal area' under its zoning by-law, requiring an amendment.

The application judge agreed with the municipality.

On appeal, the Court of Appeal reversed, holding that the productive use of these materials as fuel in an existing cement manufacturing process does not constitute dumping, destroying, or storing waste, and therefore does not create a new land use.