J. Thomas Curry

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 appellant, Venmar Ventilation Inc., appealed a trial judgment finding it liable for negligent design after a ventilator motor caught fire and destroyed the respondents' home.

The trial judge found Venmar liable for failing to incorporate adequate thermal protection in its ventilator design, but dismissed claims against the motor manufacturer, Fasco, finding it owed no duty of care and was contractually indemnified by Venmar.

The Court of Appeal upheld the trial judge's findings on liability, negligent design, and contractual indemnity.

However, the Court allowed Fasco's cross-appeal on costs, finding the trial judge erred by failing to consider the contractual indemnity provision when assessing the scale and quantum of costs, and remitted the costs issue back to the trial judge.

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 moving parties brought a motion for leave to appeal an order dated July 15, 2022.

The Divisional Court dismissed the motion for leave to appeal.

In the absence of a costs outline, costs were fixed at a reduced amount of $2,500 payable to the responding parties.

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.

The appellants, The Bank of New York Mellon Corporation and CIBC Mellon Global Securities Services Company, sought an order staying a lower court judgment pending appeal.

They argued that the application judge's amendments to his reasons for judgment created a reasonable apprehension of bias.

The motion judge, Lauwers J.A., dismissed the motion, finding that the appellants failed to demonstrate a real likelihood or probability of bias.

The court applied the three-part test for a stay (serious issue, irreparable harm, balance of convenience) and the overarching interests of justice, concluding that a stay was not warranted.

Leave was granted to file a Supplementary Notice of Appeal.

The Respondents brought a motion seeking the recusal of the presiding judge and a declaration of mistrial, alleging a reasonable apprehension of bias.

The allegations stemmed from the judge's conduct and rulings in three prior decisions related to the ongoing application, specifically claiming predisposition towards the Applicant, disparagement of the Respondents, and insinuation into the appeal process.

The Court dismissed the motion, finding that, when viewed realistically and in full context, the judge's actions did not give rise to a reasonable apprehension of bias.

The decision emphasized that adverse rulings, even if potentially erroneous, do not equate to bias and should be addressed through the appeal process.

Costs were awarded to the Applicant.

The applicant sought to vary a previous judgment regarding contract beneficiaries and liability for knowing receipt.

The court declined to change the finding on beneficiaries (para 19) as it was an intentional commercial interpretation.

The court did remove an erroneous finding of breach of contract against CIBC Mellon, but declined to substitute it with a finding of knowing receipt, as that relief was not sought in the initial application.

The court granted the applicant's request to introduce evidence of damages related to data sharing by all custodial entities of Mellon Financial Corporation at the time of the agreement, despite the previous finding that those entities were entitled to receive the data.

The applicant, Serenity Valley P. Lawn Management Inc., sought to assess the legal accounts of the respondent law firm, Lenczner Slaght Royce Smith Griffin LLP, under sections 3 or 9 of the Solicitors Act.

Serenity, as a third-party payor, argued for an assessment based on "special circumstances" including alleged pressure to pay and insufficient fee details.

The court dismissed the application, ruling that Serenity was not the law firm's client (precluding assessment under s. 3) and failed to demonstrate "special circumstances" under s. 9.

The court emphasized that Serenity was a sophisticated party, represented by counsel, who had contractually agreed to pay reasonable legal fees and signed a release, and did not protest the fees or reserve rights despite receiving detailed information.

The court also found no evidence that the legal fees were excessive given the complexity of the enforcement litigation.

Tallman Truck Centre Limited appealed an order staying its action against K.S.P. Holdings Inc. The stay was imposed because Tallman failed to immediately disclose a settlement agreement with the co-defendant, Secure Capital Advisors Inc., which fundamentally altered Secure's adversarial position to a cooperative one with Tallman.

The Court of Appeal dismissed Tallman's appeal, affirming that such agreements, regardless of type (Mary Carter or Pierringer-type), require immediate disclosure as they change the litigation landscape.

The court reiterated that failure to immediately disclose constitutes an abuse of process, for which a stay of proceedings is the only appropriate remedy, regardless of intent or perceived prejudice.

This is an appeal from a summary judgment order where the motion judge found that a personal guarantee was a continuing guarantee applicable to a subsequent amended loan agreement.

The appellants, the personal guarantors, argued that the guarantee was not continuing and that the latest loan agreement extinguished their obligations.

The Court of Appeal for Ontario dismissed the appeal, affirming that the guarantee was a continuing one and that the liabilities under the final loan agreement were "in connection with" the previous agreement, thereby maintaining the guarantors' liability.

The court also upheld the deferential standard of review for contractual interpretation.

The Court of Appeal heard a motion to review a single motion judge's order that dismissed requests to expedite an appeal and waive the requirement to file a formal liability order.

The panel upheld the motion judge's decision not to expedite the appeal, finding no error in principle or misapprehension of evidence.

However, the panel varied the order to relieve the moving parties from the obligation of filing a formal liability order to perfect their appeal, noting that the liability order was a final order.

The motion was otherwise dismissed, and costs were fixed to be awarded to the successful party on the appeal.

The appellant, Stericycle ULC, appealed an order dismissing its application for a declaration that it, rather than Daniels Sharpsmart Canada Limited, was the primary supplier for Provincial Health Services Authority (PHSA) under a public tendering process.

Stericycle argued that the application judge erred in contract interpretation, allowing impermissible bid repair, and failing to properly apply the duty of good faith.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error in the application judge's interpretation of the "Six Month Provision" or the contract start date.

The court also found no breach of the duty of good faith or honest performance by HealthPRO or PHSA, as their actions were consistent with the contract's purpose and Stericycle's reasonable expectations.

The appellants moved to expedite their appeal of a liability decision and to be relieved from filing a formal order, arguing that an early appeal could render a subsequent damages trial unnecessary.

The respondent opposed, contending that the appeal should not be scheduled until the damages trial was adjudicated, allowing for a single, comprehensive appeal.

The court dismissed the motion, emphasizing the principle of judicial economy and the ordinary practice of pursuing a single appeal encompassing both liability and damages.

The court found that fragmenting the appeal would likely delay the overall administration of justice and that any potential costs thrown away could be addressed in a costs award.

The appellant, 2161907 Alberta Ltd., appealed a lower court decision that found it had wrongfully terminated agreements with the respondent, 11180673 Canada Inc., and acted in bad faith, ordering payment of a $2 million branding fee.

The dispute arose when 216 refused to fund 111's rent, leading 111 to threaten not to open its cannabis store. 216 terminated the license agreement, citing a "threat to cease carrying on business." The Court of Appeal upheld the lower court's finding that 216's termination was invalid, interpreting the "threat" clause objectively in context.

However, the Court of Appeal set aside the finding of bad faith, clarifying that an incorrect belief in a valid termination right, even if motivated by a desire to end the relationship, does not automatically constitute bad faith when there is no knowing misrepresentation or deliberate creation of the breach.

The appeal regarding the sublease termination was dismissed as practically resolved.

The appellants, triplets born with serious disabilities, appealed the dismissal of their negligence claim against a physician who prescribed a fertility drug to their mother pre-conception.

They alleged the physician failed to provide informed consent and prescribed a contraindicated medication.

The Court of Appeal, in a majority decision, dismissed the appeal, affirming that a physician does not owe a duty of care to a future child for alleged negligence occurring pre-conception, citing policy concerns regarding conflicting duties and women's autonomy.

The dissenting judge argued that the allegation of a contraindicated drug could distinguish the case and warrant a full trial to determine if a novel duty of care exists.

The respondents in the underlying application (BNY) brought a motion to adjourn a damages trial until after the disposition of their pending appeal on liability, to adduce further evidence, and to settle the form of judgment on liability.

The court had previously found BNY liable for breach of contract and ordered a viva voce trial on damages due to the complexity of the record.

The court dismissed the motion, finding that an adjournment would effectively impose a bifurcation not agreed to by the parties, contrary to Rule 6.1.01, and that the balance of convenience favoured proceeding with the damages trial to allow a single appeal on both liability and damages.

The court also declined to allow new evidence or settle the form of judgment at this stage.