J. Thomas Curry

The applicant college sought declarations and permanent injunctions against corporate and individual respondents alleged to have falsely held themselves out as statutory regulators, operated a competing registration and certification scheme, engaged in unauthorized traditional Chinese medicine practice, and used protected titles contrary to the governing health-professions legislation.

The respondents attempted to renew a constitutional challenge to the registration regime on discrimination grounds, but the court held that issue estoppel barred re-litigation of issues already decided by the Divisional Court.

On the evidentiary record, the court found breaches of the Traditional Chinese Medicine Act, 2006, the Regulated Health Professions Act, 1991, and the Code.

Declaratory relief and permanent injunctive relief were granted, with costs to be addressed separately.

The appellant lawyer appealed a decision of the Law Society Appeal Panel finding him guilty of professional misconduct for incivility during a criminal trial.

The Appeal Panel had reduced his penalty to a one-month suspension and $200,000 in costs.

The Divisional Court dismissed the appeal, finding that the Law Society has jurisdiction to discipline lawyers for in-court conduct without intruding on judicial independence.

The Court articulated the test for when incivility becomes professional misconduct, requiring that the conduct undermines or has the potential to undermine the proper administration of justice.

The Court found the Appeal Panel's application of the test and the resulting penalty and costs orders to be reasonable.

The Law Society's cross-appeal regarding the evidentiary use of prior judicial comments was also dismissed.

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.

The appellant, Korea Data Systems (USA), Inc., was successful on a complex motion heard by the Court of Appeal for Ontario.

The court awarded the appellant costs fixed at $25,000, inclusive of disbursements and taxes, to be paid jointly by the Trustee and Christina Chiang.

The plaintiff sought to appeal a costs order arising from a fraudulent conveyance action.

The motion judge had ordered the plaintiff to pay the defendant's costs and refused to allow a set-off for the amount the defendant owed the plaintiff.

The defendant argued leave to appeal was required under s. 133(b) of the Courts of Justice Act.

The Court of Appeal held that leave was not required because the refusal of a set-off had a substantive effect on the plaintiff's legal rights, extending beyond mere entitlement to and quantum of costs.

The court also declined to order security for costs and directed that the costs appeal be heard with the main appeal.

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 statutory regulator of traditional Chinese medicine in Ontario sought interim and interlocutory injunctions restraining several corporate and individual respondents from falsely holding themselves out as statutory regulators and from engaging in the unauthorized practice of traditional Chinese medicine and acupuncture.

The evidence demonstrated that the corporate respondents operated a registration and certification scheme that purported to authorize practitioners and used names and representations suggesting statutory authority.

The court found breaches of s. 34 of the Regulated Health Professions Act, 1991 and other provisions governing protected titles and controlled acts.

Applying the statutory injunction framework under s. 87 of the Health Professions Procedural Code, the court held that proof of continued statutory breach justified interim injunctive relief in the public interest.

The motion for interim and interlocutory injunctions was granted pending the hearing of the application.

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.

The Commissioner of Competition brought an application against Rogers and Chatr alleging that their advertising claims of 'fewer dropped calls than new wireless carriers' and 'no worries about dropped calls' were false, misleading, and made without adequate and proper testing, contrary to the Competition Act.

The court found that the applicant failed to prove the claims were false or misleading.

However, the court found that the respondents failed to conduct adequate and proper testing in certain cities prior to launching the advertising campaign, thereby engaging in reviewable conduct under s. 74.01(1)(b).

The court also dismissed the respondents' constitutional challenges, finding that s. 74.01(1)(b) is a justified limit on freedom of expression and that the administrative monetary penalty does not engage s. 11 of the Charter.

The appellant, Barclays Bank PLC, appealed a trial judgment finding its Notice of Early Termination of a complex asset-backed commercial paper transaction invalid and the respondent Devonshire Trust's Notice of Early Termination valid.

The Court of Appeal upheld the trial judge's findings that Barclays' notice was invalid due to its fraudulent misrepresentation, bad faith, and the principle that a party cannot benefit from its own wrong, as Barclays' failure to make liquidity payments contributed to Devonshire's insolvency.

The Court also upheld the validity of Devonshire's notice.

However, the Court allowed the appeal in part regarding the calculation of Barclays' Settlement Amount, substituting a figure of $264 million for the trial judge's $12,000 valuation, subject to deductions for mitigation.

The Niagara Escarpment Commission applied for judicial review of a Joint Board decision granting conditional approval to Walker Aggregates Inc. to develop a quarry in the Niagara Escarpment Plan area.

The applicant argued the Board failed to properly apply the Niagara Escarpment Plan, improperly delegated approval of an Adaptive Management Plan to the Minister of Natural Resources, and erred in assessing noise impacts.

The Divisional Court dismissed the application, finding the Board's decision reasonable, as it correctly applied the relevant planning documents, did not improperly delegate its authority, and reasonably assessed environmental and noise impacts.

The appellants, former officers of Coventree Inc., appealed a decision of the Ontario Securities Commission finding that they authorized, permitted, or acquiesced in Coventree's failure to disclose material changes in its business, contrary to section 75 of the Securities Act.

The Commission had found that changes to credit rating criteria and a subsequent disruption in the asset-backed commercial paper market constituted material changes requiring immediate disclosure.

The Divisional Court applied a reasonableness standard of review, concluding that the Commission applied the correct legal tests, based its findings on sufficient evidence, and reasonably exercised its public interest jurisdiction in sanctioning the appellants.

The appeals were dismissed.

The plaintiffs, twin brothers born prematurely who developed cerebral palsy, sued their mother's obstetrician for negligence.

The trial judge found the obstetrician breached the standard of care by failing to assess the mother when she reported leaking fluid, resulting in a failure to administer a full course of antenatal corticosteroids (ACS).

The trial judge concluded this failure caused the twins' cerebral palsy and awarded damages.

The obstetrician appealed the causation finding.

The Court of Appeal dismissed the appeal, with the majority holding that the trial judge made no palpable and overriding error in applying a robust and pragmatic approach to the expert evidence and concluding that the failure to administer ACS caused the injuries.