J. Thomas Curry

The representative plaintiffs in a class action alleging a price-fixing conspiracy for packaged bread sought to amend their pleadings and the Certification Order to add Maple Leaf Foods Inc. as a certified defendant.

The original Certification Order had refused certification against Maple Leaf on the basis that the pleadings disclosed no cause of action against it, and this decision was not appealed.

The Court of Appeal upheld the motion judge's dismissal of the motion, finding that the original refusal to certify was a final order that gave rise to res judicata.

The court held that the Class Proceedings Act does not permit relitigation of matters finally decided, and the motion judge did not err in refusing to exercise his limited discretion to bypass res judicata.

The appellant appealed a judgment awarding over one million dollars in damages to the respondents for personal injuries sustained in a motor vehicle accident.

The trial judge discharged the jury after finding that defence counsel breached the rule in Browne v. Dunn by failing to cross-examine the plaintiff on a significant piece of evidence regarding fluid leaking from his ear, which was later introduced through expert witnesses.

The trial judge found the breach irreparably tainted the jury and proceeded with a bench trial, ultimately accepting the plaintiff's evidence and rejecting the defendant's malingering theory.

The Court of Appeal upheld all aspects of the trial judge's decision, including the finding of a Browne v. Dunn breach, the discharge of the jury, the qualification of a treating physician as an expert witness, and the damages award.

The Court of Appeal for Ontario considered a motion by Barbara Lang-Newlands regarding the operation of the automatic stay under rule 63.01 of the Rules of Civil Procedure following a family law trial judgment.

The court addressed whether certain monetary awards (post-separation adjustments) should be characterized as support and thus exempt from the stay, and whether the stay should be lifted or maintained on various payments pending appeal.

The court declined to recharacterize the payments as support, but exercised its discretion to lift the stay on Ian Newlands' obligation to pay post-separation adjustments, given the risk that Barb would not recover the funds if the stay remained.

The court ordered Barb to pay Ian the net difference and expedited the appeal.

The appellants, owners of a dental clinic, appealed the dismissal of their action against a former independent contractor dentist who left to start his own practice.

The appellants alleged conversion, improper solicitation of patients and employees, appropriation of confidential information, and breach of fiduciary duty.

The Court of Appeal dismissed the appeal, upholding the trial judge's findings that the dentists carried on independent practices, the departing dentist only contacted his own patients to fulfill professional obligations, and the patient information accessed was not confidential.

The court also rejected claims regarding breach of fiduciary duty and the contractual duty of good faith.

This costs endorsement followed a decision on an appeal and cross-appeal.

Given the divided success of the parties on both the appeal and cross-appeal, the Court of Appeal ordered that each party bear its own costs.

The parties entered into a contract in 1999 for the provision of market pricing data.

The appellant, a custodial bank, redistributed the data to its numerous affiliates without authorization.

The respondent discovered the breach in 2016 and sued.

The trial judge found the appellant breached the contract and awarded damages based on a rateable approach, but also awarded damages for sharing data with a specific affiliate.

On appeal, the Court of Appeal upheld the liability finding, concluding the contract only authorized the appellant itself to access the data.

The Court also upheld the trial judge's decision to change his unentered judgment and rejected the appellant's limitations defence.

On damages, the Court struck the award relating to the specific affiliate as double compensation but otherwise upheld the damages assessment, including an adverse inference drawn against the appellant for spoliation of evidence.

This appeal concerned a dispute over the purchase and sale of a luxury home, where the purchaser sought rescission of the Agreement of Purchase and Sale due to fraudulent misrepresentation and latent defect.

The motion judge granted partial summary judgment for rescission and equitable damages against the seller.

The appellants (seller and co-defendants) argued errors in the finding of fraudulent misrepresentation, latent defect, and the appropriateness of partial summary judgment given a pending conspiracy claim.

The Court of Appeal dismissed the appeal, affirming the motion judge's finding of fraudulent misrepresentation based on the seller's failure to disclose safety risks and false representations, and upheld the partial summary judgment, finding no risk of inconsistent findings between corporate and personal liability for fraud.

The appellants (defendant doctors) appealed a trial judgment finding them liable for failing to obtain informed consent for a multi-step medical treatment plan that resulted in catastrophic brain injury to the plaintiff.

The appeal addressed the nature and extent of a physician's duty to obtain informed consent, on which physicians this duty rests, sufficiency of reasons, evidentiary issues (including expert witness exclusion), and costs.

The Court of Appeal dismissed the appeal, upholding the trial judge's findings that all three appellant doctors failed to provide adequate disclosure regarding the cumulative risks of the treatment plan, and that the plaintiff would not have proceeded had he been properly informed.

Leave to appeal costs was refused.

The Court of Appeal for Ontario issued a costs endorsement following an appeal where the trial judge's liability finding was upheld, but the damages award was set aside for a new hearing.

Due to divided success on appeal, the parties agreed to bear their own appeal costs.

The court varied the trial judge's costs order, reducing the amount payable by the appellant to the respondent by one-third (from $251,706.10 to $167,804.07), reflecting the partial success on appeal and the uncertainty regarding the original offer to settle.

The costs of the new damages hearing were left to the discretion of the presiding judge.

The appellant (vendor) appealed a trial judgment finding it breached an Agreement of Purchase and Sale (APS) for development lands and awarding the respondent (purchaser) over $11 million in lost expected profits.

The Court of Appeal upheld the trial judge's finding of liability, confirming the vendor's breach for wrongly asserting the purchaser failed to pay a further deposit and that the purchaser was ready, willing, and able to close without tendering.

However, the Court allowed the appeal on damages, ruling that the trial judge erred by departing from the normal measure of damages for real estate breaches (difference between contract price and market value on closing date).

The Court clarified that the remoteness test determines the *type* of loss, not the *measure*, and that market value inherently accounts for development potential.

A new hearing was ordered to assess damages using the normal measure.

The County of Simcoe appealed a trial judgment finding it 100% liable for catastrophic injuries sustained by Melinda Wasylyk in a motor vehicle accident caused by hazardous road conditions.

The County argued the trial judge erred in finding the road in disrepair, in her causation analysis, and in finding no contributory negligence.

The Court of Appeal dismissed the appeal, upholding the trial judge's findings that the road was in disrepair due to ice and snow, that these conditions caused the accident, and that the plaintiff was not contributorily negligent, deferring to the trial judge's factual assessments.

The plaintiff moved to disqualify Norton Rose Fulbright LLP (NRF) from acting as lawyers of record for the K2 defendants.

The plaintiff argued that it was a current client of NRF for patent applications, and that NRF's representation of the K2 defendants in this litigation, which involved allegations that the plaintiff's core technology did not exist, created a disqualifying conflict of interest.

The court found that the two mandates were substantially related and that the bright line rule applied, rendering the advance waiver in NRF's engagement letter ineffective.

The motion to disqualify NRF was granted.

The moving parties sought to strike two expert reports and their references from the appeal book and compendium (ABCO) and the responding party's factum, arguing they were not evidence at trial.

The court, citing precedent, found that while the reports were not formally entered as exhibits, they were provided to the trial judge as aides memoire and should have been marked as lettered exhibits, thus forming part of the appeal record.

The motion was allowed in part, directing the responding party to amend the descriptions of the reports in the ABCO and factum to clearly state their non-evidentiary status.

Canada Bread Company Limited pleaded guilty to four counts of price-fixing under the Competition Act.

The offences involved agreements with Weston Food Canada Inc. to increase wholesale fresh commercial bread prices, impacting millions of consumers.

The court accepted a joint submission for a total fine of $50 million, allocated across the four counts.

The decision considered aggravating factors such as high planning and coordination, and mitigating factors including the company's cooperation with the Competition Bureau, change in ownership, and implementation of a compliance program.

The court emphasized denunciation and deterrence as primary sentencing objectives, ensuring the fine was significant enough to eliminate profit and not merely a "cost of doing business."

This motion concerned the approval of class counsel fees, disbursements, and a representative plaintiff honorarium following the settlement of two national class proceedings (2012 and 2016 Actions) against various defendants, including Apple Inc., for an alleged eBook price-fixing conspiracy.

The aggregate settlement amount was $15,175,000.

Class Counsel sought $2.7 million in fees (25% of the Apple settlement, adjusted for Quebec) and $43,669.39 in disbursements, plus a $5,000 honorarium for the representative plaintiff.

The court addressed whether the Class Proceedings Act is a complete code for fee approval, the applicability of the Solicitors Act and its regulations regarding costs and disbursements in "all-in" settlements, and the treatment of notional cost contributions and administration costs.

The court found that the Solicitors Act provisions regarding costs and disbursements should apply harmoniously to class proceedings.

It ruled that disbursements should be deducted from the gross settlement amount, and a notional contribution to costs ($500,000) should be applied before calculating counsel fees.

Settlement administration costs were deemed not a disbursement incurred by counsel.

The court approved class counsel fees of $2,450,000 plus taxes, disbursements of $43,669.39 plus taxes, and an honorarium of $2,500 for the representative plaintiff.

The plaintiff, StorageVault Canada Inc., brought a motion for the issuance of certificates of pending litigation (CPLs) against the defendants concerning seven parcels of land.

StorageVault alleged a binding agreement for the purchase of these properties, seeking specific performance.

The defendants opposed, arguing no binding agreement existed and that specific performance was not an appropriate remedy.

The court dismissed the motion, finding no triable issue regarding a breach of contract or the availability of specific performance, as the draft agreements were non-binding, the alleged agreement was not capable of performance due to third-party approvals and rights of first refusal, and the properties were not unique, making damages an adequate remedy.

The equities were found to favour the defendants.

The plaintiffs brought a motion to certify a class action against seven discount brokers, alleging that their receipt of mutual fund trailing commissions prior to the 2022 prohibition was illegal.

The court found that the plaintiffs failed to satisfy the 'some evidence' requirement to show that the practice contravened applicable Canadian securities law.

The evidence filed by the plaintiffs themselves demonstrated that the practice, while controversial, was not illegal before the regulatory amendments took effect.

The motion for certification was dismissed.

During a trial of an issue on damages arising from an application, the applicant objected to numerous pieces of viva voce evidence introduced by the respondents.

The court had previously directed that the damages trial proceed on the closed record as it existed when the application was initially argued.

The court applied a bright-line test, ruling that any evidence not actually found in the underlying application record was inadmissible to prevent trial by ambush.

The court sustained the majority of the applicant's objections, rejecting the respondents' arguments that the new evidence was merely a permissible amplification of the existing record or a necessary response to the applicant's expert.

The plaintiffs, minority shareholders, brought a motion for a mandatory interlocutory injunction seeking reinstatement to the board of directors and an order compelling the corporation to declare dividends.

The plaintiffs had previously sued the corporation and majority shareholders for $7.5 million for conspiracy, fraud, and oppression.

The court dismissed the request for mandatory injunctions, finding the plaintiffs did not establish a strong prima facie case for reinstatement due to their conflict of interest, nor for an immediate dividend distribution while the corporation's liability in the lawsuit remained undetermined.

However, the court granted a non-mandatory injunction preserving the status quo by prohibiting the corporation from expending funds outside the ordinary course of business.