Kent E. Thomson

The appellants brought actions in Ontario against Barrick Gold Corporation for alleged human rights abuses committed by Tanzanian police at a mine in Tanzania.

The motion judge dismissed the actions for lack of jurisdiction and alternatively stayed them on the basis of forum non conveniens, finding Tanzania to be the clearly more appropriate forum.

On appeal, the appellants argued the motion judge erred in his forum non conveniens analysis by misapprehending the location of Barrick's head office, applying the wrong evidentiary standard, and failing to properly assess the risk of unfairness in Tanzania.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error in the motion judge's discretionary weighing of factors, particularly given that the vast majority of witnesses and evidence were located in Tanzania.

The appellants, small and mid-size businesses, appealed a class action decision regarding business interruption insurance claims stemming from the COVID-19 pandemic.

They sought coverage for revenue losses, arguing that the presence of SARS-CoV-2 or civil authority orders constituted "physical loss or damage" to their property under their insurance policies.

The Court of Appeal upheld the trial judge's finding that neither the virus's presence nor the civil authority orders met the "physical loss or damage" criteria for business interruption coverage.

The appeal was dismissed, and costs were awarded to the respondents.

NWG Investments Inc. appealed the motion judge's dismissal of its 2014 action for delay, which stemmed from events in 2007-2008.

The motion judge found the delay inordinate, inexcusable, and prejudicial.

NWG challenged only the finding of prejudice.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error in the motion judge's assessment of prejudice, which included factors like document availability, witness relevance, and memory.

The court reiterated the plaintiff's obligation to move an action expeditiously and rejected the argument that the decision rewarded defendants for "lying in the weeds."

The appellants, several local governments, appealed the dismissal of their application for declarations and injunctions against Canadian National Railway Company (CN) regarding the construction of an intermodal hub.

The appellants sought to compel CN to comply with over 65 provincial and municipal laws.

The application judge dismissed the application, finding that the majority of the claims lacked a factual foundation and were premature, and that the three specific bylaws at issue impaired the core of the federal railway undertaking under the doctrine of interjurisdictional immunity.

The Court of Appeal upheld the decision, confirming that the construction and operation of the intermodal hub is a vital part of a federal railway undertaking and that the municipal bylaws requiring official plan amendments impaired this core federal power.

The appeal and the application for leave to appeal costs were dismissed.

The appellants, proposed representative plaintiffs in a class action, appealed a motion judge's decision regarding leave to pursue claims against Barrick Gold Corporation for alleged misrepresentations under the Ontario Securities Act.

The appeal concerned the denial of leave for certain misrepresentation allegations related to Barrick's capital expenditure budget and production schedule, and the identification of public correction dates.

The Court of Appeal dismissed the appeal, affirming the motion judge's finding that there was no reasonable possibility of success for the additional misrepresentation claims and that the earlier public disclosure fully corrected the alleged misrepresentations, thereby limiting the class period.

The defendants brought a motion to dismiss the plaintiff's $1.2 billion action for delay under Rule 24.01 of the Rules of Civil Procedure.

The action, alleging fraudulent and negligent misrepresentation regarding a 2007 mining transaction, was commenced in Ontario in 2014 but remained at the pleadings stage.

The court found the delay of over eight years to be inordinate and inexcusable, rejecting the plaintiff's explanations regarding replacement of counsel, the pandemic, and health issues.

The court concluded that the delay caused actual prejudice to the defendants due to faded memories, the death of a key witness, and the potential loss of documentary evidence, thereby risking a fair trial.

The action was dismissed.

The parties disputed the wording of the formal order dismissing the proceeding.

The respondent, Canadian National Railway Company (CN), sought to include a recital stating that the applicants had made a formal admission that only three specific bylaws were relied upon for injunctive relief, despite initially listing over 50.

The applicants opposed this, intending to argue on appeal that they did not solely rely on those three bylaws.

The court declined to supplement its reasons or explain its understanding of the proceedings beyond its original decisions, signing CN's draft order without the requested recital.

Following the approval of a Plan of Arrangement under the Canada Business Corporations Act, the successful applicant sought costs against the objecting creditors.

The objectors argued the applicant was disentitled to costs for failing to request them initially and that the quantum sought was excessive.

The court rejected the disentitlement argument, finding the objectors had notice that costs would be addressed in writing.

The court awarded $100,000 in costs, reducing the requested amount for proportionality, and ordered the costs payable jointly and severally by the objectors as they had pursued a common strategy.

The respondent requested a correction to a costs endorsement, noting the judge had mistakenly written the fee total instead of the all-inclusive total of fees, taxes, and disbursements.

The applicants objected, arguing the endorsement was clear and the issue should be raised on cross-appeal since an appeal had already been commenced.

The court corrected the transposition error, amending the costs award to the intended all-inclusive amount of $2,288,314.57, noting the Court of Appeal would prefer the corrected outcome over a cross-appeal about a typo.

The applicant mining company sought a final order approving a Plan of Arrangement under the Canada Business Corporations Act to sever ties with the Kyrgyz Republic following the state's seizure of its flagship mine.

Two unsecured judgment creditors of the Republic objected, seeking to enforce their arbitral awards against the Republic's shares in the applicant or garnish payments under the Arrangement.

The court approved the Arrangement, finding it met the statutory requirements, had a valid business purpose, and was fair and reasonable.

The court held the creditors lacked standing to oppose the Arrangement and that garnishment was inappropriate as it would result in double jeopardy.

This motion concerned an application by Tower-EBC G.P./S.E.N.C. (TEBC) to enforce two arbitral awards (a Partial Final Award on liability and damages, and a Final Award on costs) against Baffinland Iron Mines Corporation and Baffinland Iron Mines LP (BIM).

BIM raised several defenses, including a pending application to set aside or appeal the awards, which had previously been dismissed by the court.

The court granted TEBC's application to enforce both awards, confirming the awarded amounts for damages and costs, with a condition regarding the transfer of equipment title and excluding "applicable taxes" as not provided for in the original arbitral awards.

Pre-judgment interest was maintained as per the Tribunal's award.

The applicants, Baffinland Iron Mines LP and Baffinland Iron Mines Corporation (BIM), sought to set aside an arbitration award of over $70 million and a subsequent costs award in favour of the respondent, Tower-EBC G.P./S.E.N.C. (TEBC), pursuant to s. 46 of the Arbitration Act, 1991, and for leave to appeal under s. 45(1) of the Act.

The court dismissed BIM's application, finding no grounds to set aside the award for lack of jurisdiction or procedural unfairness, and further held that the arbitration agreement precluded an appeal from the Tribunal's decision.

The plaintiff commenced an action regarding a stream of royalty payments from a mine in Guatemala.

The defendants brought motions to strike the claim.

In response, the plaintiff delivered an amended statement of claim.

The defendants moved to declare the amended claim a nullity, arguing it could not be amended without leave in the face of a motion to strike.

The plaintiff brought a cross-motion for leave to amend.

The court held that while leave is required to amend a claim in the face of a motion to strike, the motion for leave should be heard first.

The court granted the plaintiff leave to amend, finding that the proposed amendments were not time-barred, did not withdraw admissions, and were sufficiently particularized.

The Court of Appeal for Ontario issued a costs endorsement following its decision on an appeal concerning leave to proceed under the Ontario Securities Act.

The appellants had challenged the motion judge's denial of leave for certain alleged financial misrepresentations.

The Court of Appeal found the motion judge erred in principle on this central issue, remitting it for redetermination.

As the appellants were substantially successful on the appeal, they were awarded $60,000 in all-inclusive costs for the appeal.

The costs of the original motion for leave were deferred to the judge determining the remitted issue.

The moving parties, subcontractors on a mining project, sought leave to intervene in an application brought by the project owners to set aside an arbitral award in favour of the general contractor.

The arbitral award included damages for the subcontractors' lost profits and standby charges.

The court dismissed the motion to intervene, finding that the subcontractors' financial interest in the outcome did not constitute a legal interest in the subject matter of the proceeding, which concerned the construction of the contracts between the owners and the general contractor.

The court also held that the subcontractors would not make a useful contribution to the issues on the application.

The appellants, proposed representative plaintiffs in a securities class action, appealed a motion judge's order that granted leave for one misrepresentation claim but denied leave for others under the Ontario Securities Act.

The primary issues on appeal concerned the motion judge's approach to determining "public correction" of alleged misrepresentations, particularly by assuming falsity and applying a narrow textual analysis without considering market context.

The Court of Appeal found that the motion judge erred in principle by not engaging in a reasoned consideration of evidence regarding how alleged public corrections would be understood in the secondary market.

The Court remitted the issues of leave for capital expense/scheduling and accounting/financial reporting misrepresentations back to the lower court for redetermination, while upholding the denial of leave for certain environmental misrepresentations due to chronology issues.

The defendants in a complex defamation action brought motions for the production of documents related to 'Project Maple Tree', an operation undertaken by foreign investigative agents (including Black Cube) retained by the plaintiffs.

The plaintiffs asserted solicitor-client and litigation privilege over the documents.

The court held that it had jurisdiction to hear the motions despite the stay provision in s. 137.1(5) of the Courts of Justice Act.

The court rejected the claims of solicitor-client privilege, finding the third-party investigators were not essential to the solicitor-client relationship.

The court also rejected the claims of litigation privilege for the vast majority of the documents, finding their dominant purpose was not legitimate litigation and that the 'Blank exception' applied because the agents engaged in improper conduct, including pretext stings on a former judge and opposing party employees.

This addendum corrects an error in a previous costs decision (2018 ONSC 4862) regarding the amount of costs requested by Brewers Retail Inc. The original decision mistakenly stated Brewers Retail requested $600,000 on a partial indemnity basis, when the correct amount, based on an amended bill of costs, was $744,396.42, all inclusive, comprising fees, HST, and disbursements.

The court confirmed the costs award subject to this correction.

Following the dismissal of the plaintiffs' proposed class action on summary judgment, the successful defendants sought costs on a partial indemnity basis totalling approximately $2.3 million.

The plaintiffs and the Class Proceedings Fund argued that the costs should be reduced to $600,000 in the aggregate, asserting that the case was not complex, was in the public interest, raised novel points of law, and that a large costs award would have a chilling effect on class actions.

The court rejected these arguments, finding that the litigation was primarily commercial, involved complex issues, and that the normal costs rules should apply.

The court awarded the defendants their requested costs, subject to a reduction of one expert witness's fee.

This is a costs decision on appeal from a trial judgment dismissing the appellant's action.

The respondents were entirely successful on appeal and sought costs on a partial indemnity basis.

West Face Capital Inc. sought $250,000 in costs while Brandon Moyse sought $149,905.18.

The appellant argued for reduced costs amounts.

The Court of Appeal awarded West Face $200,000 and Moyse $100,000, both inclusive of disbursements and HST, considering the respondents' complete success, the nature of the appeal involving a large record and detailed factual re-litigation, and costs thrown away due to an unnecessary adjournment.