Justin Manoryk

This decision addresses an application by several media organizations for virtual access to a high-profile murder trial, invoking the open court principle.

The court reviews the constitutional and statutory foundations of open courts, the discretion of judges to permit or deny virtual access, and the practical realities facing media coverage.

Ultimately, the court finds that while the open court principle does not require virtual access, it may be granted at the court’s discretion in light of modern realities and the decline of local news coverage.

The applicant, Jack Densmore, facing sexual assault and voyeurism charges, sought disclosure of journalistic records from The Hamilton Spectator related to the complainant and other witnesses.

The Spectator, supported by the Crown, objected, claiming journalistic privilege under the Journalistic Sources Protection Act (JSPA) and the Canada Evidence Act (CEA), and arguing the Mills regime applied.

The court analyzed the applicability of the JSPA (CEA branch), Mills, and O'Connor regimes, and the Vice Media framework.

The court found that the journalistic records were privileged under the JSPA (CEA branch) as the sources were promised anonymity, and the applicant failed to demonstrate reasonable necessity or that the public interest in disclosure outweighed the public interest in preserving confidentiality.

Alternatively, the court found the Mills regime applied, and the applicant failed to establish the records were likely relevant or necessary in the interests of justice.

Consequently, the application for disclosure was dismissed.

The Toronto Star and journalist Morgan Bocknek appealed a Superior Court decision refusing to quash a subpoena for journalistic notes related to an interview with a sexual assault complainant.

The subpoena was sought by the accused, Bruce Timothy Cavey, under s. 278.3 of the Criminal Code for potential prior inconsistent statements.

The Court of Appeal dismissed the appeal, affirming the application judge's discretionary decision not to grant certiorari, finding that the trial judge was the appropriate forum to address issues of journalistic privilege and relevance within the s. 278 application process.

The Applicants, licensed cannabis producers, sought court approval and sanction of their second amended and restated plan of compromise and arrangement under the CCAA.

The Plan aimed to implement a settlement framework for multiple securities class actions arising from the Applicants' illegal cannabis growing operations.

While the court found the Allocation and Distribution Scheme reasonable and rejected KPMG's complaint about being excluded from voting, it refused to sanction the Plan.

The court held that the Plan's provisions regarding the assignment of claims against KPMG and the Judgment Reduction Provision in the Bar Order were not fair and reasonable to the non-settling defendants, as they failed to limit the non-settling defendants' liability to several liability.

The defendant brought a motion under Rule 21.01(1)(b) to strike out claims for damages for conspiracy made in the plaintiff's statement of claim.

The defendant argued that the Competition Act precludes conspiracy allegations relating to price maintenance, that directing minds cannot conspire with their corporation, that the principle of merger precludes the claims, and that special damages were not properly pleaded.

The court dismissed the motion, finding that the law on price maintenance conspiracy is unsettled, the directing minds' alleged conduct was tortious in itself, the principle of merger applies at trial rather than the pleadings stage, and pleading the same special damages for both substantive wrongs and conspiracy is sufficient.

The applicant, Cronos Group Inc., sought a declaration that it had a contractual right to exercise an Optional Extension Period (OEP) under its Excess Directors’ and Officers’ Liability Policy issued by the respondent, Assicurazioni Generali S.P.A., and that it successfully exercised this right.

The respondent denied coverage, arguing the OEP was not incorporated into the Excess Policy and the premium paid was insufficient.

The court found that the OEP was incorporated into the Excess Policy by reference to the Primary Policy, as it was not explicitly excluded.

The court also determined that the applicant's calculation and payment of the OEP premium, based on twice the original policy premium, was commercially reasonable and consistent with prior representations.

The application was granted, declaring the OEP right enforceable and the premium calculation valid.

The Plaintiffs sought costs after successfully certifying a class action and dismissing a stay motion.

The court awarded the Plaintiffs $700,000 in all-inclusive costs, comprising $366,149.88 in disbursements and $333,850.12 in fees.

The court emphasized the discretionary nature of costs, the importance of certification motions in class actions, and the need for unsuccessful parties to provide their own bills of costs for comparison.

A portion of the costs ($30,000) was specifically allocated to two defendants (Bristol-Myers and Otsuka) for the stay motion, which the third defendant (Lundbeck) did not participate in.

The plaintiffs brought a motion to certify a class action against the manufacturers and marketers of the antipsychotic drugs Abilify and Abilify Maintena, alleging negligence, failure to warn, and conspiracy regarding the risk of impulse control disorders.

The defendants opposed certification and brought a motion to stay the proceeding as an abuse of process, citing a parallel authorized class action in Québec.

The court found that the plaintiffs met all the criteria for certification under section 5(1) of the Class Proceedings Act, including establishing a plausible methodology for proving general causation.

The court dismissed the defendants' stay motion, finding that the Ontario action was not an abuse of process despite the last-minute amendments to the Québec claim that mirrored the Ontario pleading.

The appellant, a real estate development company, appealed a summary judgment dismissing its action against the respondents regarding a request for proposals for the redevelopment of Toronto waterfront property.

The appellant's proposal was disqualified for listing an ineligible person as an advisor.

When the appellant requested reconsideration, the sponsors declined to rescind the disqualification.

The appellant argued the sponsors owed a duty of fairness in the reconsideration process and that the fairness monitor was inadequately involved.

The Court of Appeal dismissed the appeal, finding no unfairness in the reconsideration process on a factual basis, without deciding the legal question of whether a duty of fairness was owed.

The defendant manufacturer brought a motion for partial summary judgment to dismiss claims of negligent manufacturing, failure to warn, and breach of implied warranty arising from an incident where a police officer was accidentally struck in the head by a TASER electrical weapon fired by his partner.

The court dismissed the motion, finding that the issues were inextricably linked to the conceded trial issue of negligent design.

The court also declined to strike an affidavit sworn by plaintiffs' counsel, ruling it was admissible as 'evidence about evidence' to demonstrate the record that would be available at trial.

The plaintiff condominium corporation brought a motion to set aside a registrar's order dismissing its construction deficiency action for delay.

The action, which sought $5,000,000 in damages primarily related to elevator issues, was dismissed after the plaintiff inadvertently missed the set down deadline.

The court applied the test from H.B. Fuller Company v. Rogers, finding that the plaintiff adequately explained the delay, moved promptly to set aside the order, and demonstrated that the failure was inadvertent.

Crucially, the court found no significant prejudice to the defendants, as the case relied heavily on documentary evidence which had been preserved.

The motion was granted and the dismissal order was set aside.

Vista owned a shopping mall and leased space to Zellers, which operated a retail store.

Zellers notified Vista in February 2004 of its intention to cease operations in May 2004, although the lease did not terminate until April 2005.

Vista sued, claiming Zellers was obliged under "continuous use" clauses in the lease to operate until the lease ended.

The trial judge found that Zellers was entitled to close when it did, interpreting the continuous use obligation as qualified by the hours of operation clause.

The Court of Appeal reversed, holding that the continuous use obligation in sections 8.01 and 8.05 was not overridden by the hours of operation clause in section 8.01.1, and that Zellers breached its obligation by closing prematurely.