J. Thomas Curry

The appellant, a lawyer, appealed a finding of professional misconduct by the Law Society Appeal Panel related to his uncivil in-court conduct during a lengthy securities fraud trial.

The appellant argued that trial judges, not the Law Society, should oversee in-court conduct and that the Appeal Panel's test for incivility failed to protect zealous advocacy.

The Court of Appeal held that the reasonableness standard of review applied to the Appeal Panel's decision.

The Court found that the Law Society has the statutory authority to discipline lawyers for in-court incivility, independent of a trial judge's actions.

The Court upheld the Appeal Panel's test for incivility and its finding that the appellant's repeated, unfounded allegations of prosecutorial misconduct constituted professional misconduct.

The appeal was dismissed.

The appellant, Sky Solar, appealed an arbitration award dismissing its claim for indemnification against the respondent, Marnoch, for losses resulting from fires caused by failed electrical transformers.

The arbitrator found that Marnoch was not liable under the contractual warranties because Sky Solar had chosen the transformers and did not rely on Marnoch's skill and judgment.

The Superior Court of Justice applied the reasonableness standard of review and upheld the arbitrator's decision, finding no extricable errors of law and concluding that the arbitrator's interpretation of the contract and decision not to determine the liability of a non-party manufacturer were reasonable.

The appellant, representative plaintiff in a proposed class action by unit holders of a real estate investment trust, appealed a motion judge's decision striking a knowing assistance claim against the respondents.

The claim alleged the respondents assisted a trustee in a breach of trust by concealing a conflict of interest in a property transaction.

The Court of Appeal allowed the appeal, finding the motions judge erred by failing to generously construe the pleadings and by concluding that the respondents' alleged suppression of information and active participation could not amount to knowing assistance.

The claim was found to be legally plausible.

The Court dismissed the appeal and held that Ontario’s permit-suspension enforcement mechanism is constitutionally inoperative to the extent it enforces a bankruptcy-provable toll debt discharged under s. 178(2) of the Bankruptcy and Insolvency Act, because it creates an operational conflict and frustrates Parliament’s financial rehabilitation purpose.

The plaintiff, a unit-holder in a real estate investment trust (REIT), brought a proposed class action alleging that the REIT's former CEO and trustees breached their fiduciary duties and duties of trust by entering into an undisclosed related-party transaction.

On a bifurcated certification motion to determine if the pleadings disclosed a reasonable cause of action under s. 5(1)(a) of the Class Proceedings Act, the court struck the breach of fiduciary duty claims, finding that the defendants owed duties to the REIT but not to the unit-holders.

However, the court allowed the breach of trust claims against the trustees and the knowing assistance claim against the former CEO to proceed, while striking the knowing assistance claims against the vendor and the vendor's solicitors.

The court issued supplementary reasons to clarify when the two-year limitation period begins to run for claims arising from unpaid Highway 407 toll invoices.

The dispute concerned whether the limitation period commenced when the debtor’s vehicle permit expired during licence plate denial or when the debtor was first placed into licence plate denial under the Highway 407 Act.

The court held that the limitation period begins when the Registrar places the debtor’s licence plate into licence plate denial.

This interpretation avoids allowing the toll operator to control when the limitation period begins and is consistent with the statutory collection scheme and the principles underlying limitation periods.

The court therefore confirmed that the limitation period in the case began on the date the licence plate was placed into denial.

The appellant sought to recover funds allegedly stolen by a fraudster and then paid as restitution to an earlier victim, advancing tracing, knowing receipt, and unjust enrichment claims against an individual respondent.

The Court of Appeal majority held there was no basis to interfere with the trial judge’s exclusion of substantive hearsay statements from the fraudster, and no palpable and overriding error in the finding that a CAD$150,000 restitutionary payment was not traced on a balance of probabilities to the appellant’s funds.

As to a separate CAD$40,000 payment, the majority held that even assuming tracing into the corporate respondent’s account, there was no basis for imposing personal liability on the individual respondent because the corporate tax debt paid was not his personal liability at the time.

The appeal was dismissed with costs, over a dissent that would have allowed the claim for CAD$190,000.

The appellant creditor sought a declaration that the bankrupt's judgment debt survived his discharge from bankruptcy under s. 178(1)(d) of the Bankruptcy and Insolvency Act.

The trial judge dismissed the claim, finding that the bankrupt owed no fiduciary duty to the appellant, even though he had breached a fiduciary duty to a third party.

The Court of Appeal dismissed the appeal, confirming that s. 178(1)(d) applies only if the bankrupt owed a fiduciary duty directly to the creditor seeking the declaration.

The respondent, having been successful on the appeal, sought costs on a partial indemnity basis.

The appellant argued that no costs should be awarded because the appeal involved an issue of public importance, or alternatively, that costs should be reduced to reflect divided success on the issues.

The Court of Appeal rejected both arguments, finding the issue was not truly novel and declining to make a distributive costs award.

The respondent was awarded costs of $83,875.85.

The applicant College sought costs following its successful motion and application for permanent injunctive relief against the respondents, who were restrained from holding themselves out as regulators or qualified practitioners of traditional Chinese medicine.

The respondents argued they were advancing a public interest constitutional challenge and lacked the ability to pay.

The court found the respondents were attempting to re-litigate issues already decided against them in a previous Divisional Court proceeding, making public interest costs protection inapplicable.

Applying the principles of proportionality and fairness, the court fixed costs payable to the applicant at $75,000, reduced from the $161,066.96 claimed.

The appellant orthopedic surgeon appealed a trial judgment finding him liable for medical malpractice after the respondent developed compartment syndrome following the application of a full circumferential cast.

The trial judge had strongly criticized the appellant's counsel for reviewing and discussing draft reports with their expert witnesses, ruling that such practices were improper under the 2010 amendments to Rule 53.03.

The Court of Appeal held that the trial judge erred in law, confirming that consultation between counsel and expert witnesses is essential and protected by litigation privilege absent a factual foundation of improper influence.

The Court also found the trial judge erred by using expert reports not in evidence to contradict viva voce testimony.

However, the Court concluded these errors did not cause a substantial wrong or miscarriage of justice, as the respondent's expert evidence was overwhelmingly stronger.

The appeal was dismissed.

Following a trial where the Toronto Transit Commission (TTC) was found not liable for a streetcar accident involving a four-year-old child, the TTC sought its costs of the proceeding.

The court declined to award costs to the TTC, noting that the child could not be at fault and that the TTC, as a public service, should bear the costs of defending such claims where the injured party is not at fault.

The court also declined to award costs for the TTC's counterclaim against the child's parents, resulting in no order as to costs for any party.

In advance of a scheduled sanction hearing for contempt findings, the trustee in bankruptcy and two contemnors moved for broad production of documents arising from related litigation in California involving the respondent corporation.

The moving parties sought depositions, financial statements, and additional litigation materials, arguing the information was relevant to their ability to answer or mitigate prior contempt findings and the sanctions to be imposed.

The court applied the relevance standard previously articulated for the sanction hearing and declined to grant a sweeping production order that would effectively retry the foreign proceedings.

Limited production was ordered, including five deposition transcripts of a key corporate officer and financial statements of the respondent corporation.

Requests for additional documents concerning alleged “straw sale” transactions were refused.

A four-year-old boy ran across a street mid-block and was struck by a TTC streetcar.

The plaintiffs sued the TTC and the streetcar operator for negligence.

Under s. 193(1) of the Highway Traffic Act, the defendants bore the onus of proving they were not negligent.

After hearing extensive expert evidence on accident reconstruction, perception-reaction times, and streetcar braking mechanics, the court concluded that the child ran into the streetcar's path too late for the operator to avoid the collision.

The defendants successfully rebutted the presumption of negligence, and the action was dismissed.

The applicant sought remedies under Part VII.1 of the Competition Act after the respondents advertised that their wireless service had fewer dropped calls than competitors without conducting adequate and proper testing beforehand.

The court previously found the respondents engaged in reviewable conduct under s. 74.01(1)(b) for making an untested performance claim, although the applicant failed to prove the claim was false or misleading under s. 74.01(1)(a).

In determining remedies, the court assessed proportionality and the factors in s. 74.1(5), including market reach, financial position, and the fact that later testing substantiated the claim.

The court held that post-claim substantiation does not excuse the statutory requirement for prior testing but is relevant to penalty quantum.

An administrative monetary penalty of $500,000 was imposed, while the request for a 10‑year prohibition order was denied.

The Superintendent of Bankruptcy appealed a decision allowing 407 ETR to enforce pre-bankruptcy toll debts against a discharged bankrupt by directing the Registrar of Motor Vehicles to refuse to renew the bankrupt's vehicle permit under s. 22(4) of the Highway 407 Act.

The Court of Appeal found no operational conflict between the provincial legislation and s. 178(2) of the Bankruptcy and Insolvency Act, as dual compliance was possible.

However, the Court held that s. 22(4) of the Highway 407 Act frustrated the federal legislative purpose of providing a discharged bankrupt with a financial 'fresh start'.

Consequently, the doctrine of federal paramountcy applied, rendering s. 22(4) inoperative to the extent that it thwarted the fresh start purpose of the BIA.

The court addressed scheduling for submissions regarding the appropriate penalty in a proceeding brought by the Commissioner of Competition against telecommunications companies.

The parties appeared to establish timelines for written submissions and oral argument on penalty.

The court set deadlines for the applicant’s submissions, the respondents’ responding submissions, and the applicant’s reply.

Dates were also scheduled for oral argument concerning the penalty to be imposed.

The defendants moved to stay or dismiss an Ontario action for lack of jurisdiction and on the basis of forum non conveniens.

The dispute concerned whether a letter constituted a binding agreement requiring the transfer of wireless spectrum licences to the plaintiff.

The court held that Ontario had jurisdiction simpliciter because there was a good arguable case that the contract was made in Ontario and that the action concerned licences constituting personal property located in Ontario.

The defendants failed to rebut the presumptive connecting factors or demonstrate that California was clearly the more appropriate forum.

The motion to stay or dismiss was therefore refused.

In an application alleging misleading advertising under s. 74.01(1)(b) of the Competition Act, the respondents sought leave to call eight expert witnesses despite the five‑expert limit imposed by s. 7 of the Canada Evidence Act.

The applicant opposed the request, arguing that some expert evidence was duplicative and that certain proposed opinions concerning the “general impression” of advertisements were inadmissible.

The court held that the proposed expert evidence was not unnecessarily duplicative and would not unduly prolong the hearing.

The court also determined that the admissibility of portions of the challenged expert evidence, including survey evidence and analysis of advertisements, could be addressed during trial if relied upon.

Leave was therefore granted to the respondents to call eight expert witnesses.

In an application alleging misleading advertising under ss. 74.01(1)(a) and (b) of the Competition Act regarding claims of fewer dropped calls by a wireless provider, the court addressed discovery disputes involving communications between the Competition Bureau and industry participants.

The respondents sought disclosure of communications between the applicant and several wireless competitors, as well as internal investigative notes.

The court held that public interest privilege did not apply to communications with two competitors that had publicly promoted their role in the investigation, and ordered disclosure of communications occurring before litigation became the dominant purpose.

However, documents created after litigation was contemplated were protected by litigation privilege.

Communications involving another competitor and internal notes relating to discussions with a federal department remained protected by public interest privilege.