Joseph Cosentino

Multiple motions arose in more than 45 construction lien actions concerning five related solar farm projects across Eastern Ontario.

The plaintiff sought transfer and consolidation of numerous lien actions, while the general contractor sought reduction of security posted to vacate liens under the Construction Lien Act.

The court declined full consolidation, instead designating “main actions” for each project and implementing procedural directions to coordinate litigation efficiently while avoiding administrative burdens associated with transferring and merging dozens of proceedings.

The court partially granted the motion to reduce security where duplicate or inflated lien claims were conceded, while adjourning the balance pending further negotiations and analysis of holdback exposure and overlapping claims.

The court determined the costs of a motion regarding the liability of the defendant 430 to various lien claimants in a construction lien reference.

The defendant 430 had settled with one lien claimant who had carriage of the motion, but the court found 430 remained liable for the costs incurred by other lien claimants who contributed to the motion.

The court fixed costs at $93,500 on a partial indemnity basis and apportioned the award among the contributing lien claimants based on their financial and counsel time contributions.

Seven generic drug manufacturers sought judicial review of a decision by the Executive Officer of the Ontario Public Drug Programs to designate Apotex's product, Apo-Lisinopril, as a benefit under the Ontario Drug Benefit Formulary.

The applicants argued that Apotex could not meet the supply pre-condition at the time of its application due to a patent injunction.

The Divisional Court dismissed the application, finding that the Executive Officer correctly interpreted the regulations to require a prospective assessment of the manufacturer's capability to supply the product to meet anticipated demand, rather than requiring sufficient inventory on hand at the moment of application.

The applicants sought leave to bring an application for judicial review before a single judge of the Superior Court pursuant to s. 6(2) of the Judicial Review Procedure Act, arguing urgency.

The matter concerned the proposed designation of Apotex Inc.'s version of Lisinopril as a benefit under the Ontario Drug Benefit Act.

The respondent Minister opposed the application, arguing the urgency was self-created and economic loss was insufficient.

The court granted leave, finding the potential economic loss significant and the applicants' prior inaction not fatal.

The Lieutenant Governor in Council, Minister of Health, and Attorney General of Ontario appealed a Divisional Court order quashing a regulation that removed Apo-Flavoxate as an interchangeable drug product under the Drug Interchangeability and Dispensing Fee Act (DIDFA).

The Court of Appeal allowed the appeal, finding that the de-listing was accomplished by a regulation enacted by the LGIC pursuant to s. 14(1.1) of the DIDFA, which grants broad power to remove designations in the public interest.

The Court held that the rules of procedural fairness do not apply to public bodies exercising legislative functions, and the regulation was not outside the statutory purpose.

The appellant appealed a trial judgment regarding a construction subcontract, arguing the trial judge erred in failing to find the contract unambiguously required the respondent to pay for aluminum door hardware.

The Court of Appeal dismissed the appeal, finding the contract was ambiguous and the trial judge was entitled to rely on parol evidence, including a fax from the appellant's representative, to conclude the appellant was responsible for payment.

A cross-appeal regarding re-testing was also dismissed as there was evidence to support the trial judge's conclusion.

Costs of $7,000 were awarded to the respondent.

Apotex Inc. sought judicial review of the Respondents' decision to remove the designation of its generic drug, Apo-Flavoxate, as an interchangeable drug product under the Drug Interchangeability and Dispensing Fee Act (DIDFA) and to delist it from the Comparative Drug Index.

The Divisional Court found that the decision to delist the drug under DIDFA was not rationally connected to the decision to delist it as an eligible benefit under the Ontario Drug Benefit Act.

The majority held that the circumstances surrounding the decision constituted a denial of natural justice and quashed the regulation, restoring the drug's interchangeable status.

A dissenting opinion would have upheld the decision as a valid exercise of public interest discretion.

The Minister of Health and Genpharm appealed a decision granting judicial review that quashed the extension of a cut-off date for generic drug submissions to the Ontario Drug Benefit Formulary.

The application judge had found the process procedurally unfair and ordered a new cut-off date, resulting in all five competing generic drug companies having their products listed.

The Court of Appeal dismissed both appeals as moot, finding that the new Formulary had already been published, the legal landscape had changed, and Genpharm's proposed future action for damages did not justify hearing the appeal on the merits.