Kevin O’Brien

The plaintiffs brought an urgent motion to extend the time permitted for cross-examinations of the defendants' affiants on pending anti-SLAPP motions.

The defendants had filed 14 affidavits across four separate motions.

The court found that limiting the plaintiffs to the statutory seven hours would prevent meaningful cross-examination and that it was in the interests of justice to extend the time to 15 hours.

Tacora Resources Inc. sought an interpleader order to deposit mining royalty payments into court due to competing instructions from two groups claiming control over the payee, 1128349 B.C. Ltd. The application judge dismissed the application, finding no 'adverse claims' and a lack of jurisdiction, but issued an unrequested interim order directing payment to one group's counsel.

The Court of Appeal allowed the appeal, holding that the competing instructions constituted adverse claims under Rule 43, the Ontario court had jurisdiction, and the interim order was improperly granted.

Tacora was permitted to pay the royalties into court pending resolution of the corporate control dispute.

The applicant, an Ontario company operating a mine in Newfoundland, sought an interpleader order under Rule 43 to pay quarterly royalties into court.

The applicant faced conflicting demands regarding payment due to a corporate governance dispute over the parent company of the creditor, which was being litigated in the Cayman Islands and British Columbia.

The court dismissed the application, finding that Rule 43 is unavailable when the court lacks jurisdiction to determine the underlying dispute over corporate control.

However, the court granted interim relief allowing the applicant to pay the funds to the creditor's counsel in trust for 90 days to permit the commencement of interpleader proceedings in the appropriate forum.

The Town of Ajax sought an order requiring the respondents to demolish and remove above-grade construction carried out without a building permit at 599 Kingston Road West, Ajax.

The respondents acknowledged the unpermitted construction but resisted demolition, arguing they should be allowed to continue obtaining the requisite Record of Site Condition (RSC).

The property had a history of soil contamination from its prior use as an automotive facility.

The respondents had entered into a Conditional Building Permit Agreement allowing only below-grade work pending RSC approval, but proceeded to construct above-grade elements without authorization.

Despite multiple warnings, stop work orders, and a mandatory injunction, construction continued.

The court found the respondents' conduct was a calculated decision by an experienced developer to circumvent regulatory requirements and ordered demolition as the only appropriate remedy to enforce building code compliance and protect public safety.

Corus Entertainment Inc. sought a declaration that Rogers Communications Inc. could not remove one of Corus's television channels from its existing packages, citing affiliation agreements and regulatory "standstill" provisions under the Broadcasting Distribution Regulations.

Corus also sought an interlocutory injunction to prevent the channel's removal pending a CRTC decision and a sealing order for confidential information.

The court dismissed the application for a declaration, finding that the affiliation agreement granted Rogers the broad right to create and modify television packages, which included the right to remove channels.

The court also dismissed the interlocutory injunction, holding that the CRTC had exclusive jurisdiction over regulatory matters and that Corus failed to demonstrate irreparable harm.

Finally, the sealing order was denied as the information was not deemed confidential under the "open court" principle, and the test for sealing orders was not met.

The plaintiff general contractor sued the Toronto Transit Commission (TTC) and other owners for approximately $193 million in damages arising from the delayed construction of the Steeles West Subway Station.

The project was delayed by 1,047 days due to incomplete designs, utility issues, and numerous changes directed by the TTC.

The court found the TTC responsible for the delay and awarded the plaintiff damages for extended contract performance, acceleration costs, underfunded change directives, and unpaid notices of intent to claim.

The court dismissed the plaintiff's attempt to flow through subcontractor claims where liquidating agreements had extinguished the plaintiff's liability.

The TTC's counterclaim for liquidated damages was dismissed as a penalty.

The plaintiff was granted a construction lien for $57,697,627.06.

The Plaintiffs moved to strike the Defendant GuestLogix Inc.'s defence or compel a further and better Affidavit of Documents, arguing deficiencies including the deponent's lack of direct knowledge.

GuestLogix cross-moved for a further affidavit from the Plaintiffs and to dispense with the requirement for a signed affidavit.

The court dismissed the Plaintiffs' motion, finding GuestLogix's affidavit, sworn by an insurer's representative, to be appropriate given the company's prior CCAA sale and lack of original personnel.

The court also found GuestLogix had complied with its production obligations.

The Defendant's cross-motion was satisfied as the Plaintiffs had delivered the requested documents.

Costs were awarded to the Defendant.

The defendants in a proposed opioid class action moved to dismiss the proceeding for delay under s. 29.1 of the Class Proceedings Act, 1992.

In response, the plaintiff brought a cross-motion for a nunc pro tunc timetable order and commenced parallel proceedings in Manitoba.

The parties reached a settlement wherein the competing motions were dismissed without costs, the Manitoba proceedings would be discontinued, and the Ontario action would be deemed commenced on October 2, 2020, making it subject to the amended certification test under the Smarter and Stronger Justice Act, 2020.

The court approved the settlement and issued the consent orders.

The appellants, a fertility doctor and her professional corporation, appealed the dismissal of their action against a former colleague for breach of fiduciary duty and unjust enrichment regarding a government funding application.

The Court of Appeal dismissed the appeal, finding no palpable and overriding errors in the trial judge's factual findings.

The court upheld the trial judge's conclusions that no fiduciary duty existed due to the absence of an undertaking to act in the beneficiary's best interests, and that there was a juristic reason for any enrichment because the funding application was made honestly and in accordance with the parties' agreement at the time.

The Ontario Court of Appeal allowed an appeal concerning the enforcement of a Letter of Request (LoR) from a U.S. court.

The LoR sought confidential financial and valuation documents from Matvil Corp., a non-party, to assist Actava TV, Inc.'s damages expert in a U.S. action using a "yardstick" method.

The Court found that the application judge erred in her relevance and public policy analyses, and failed to adequately consider Canadian sovereignty.

The requested information was deemed overly broad, speculative, and not directly relevant to the material issues in the U.S. action, and its disclosure would be contrary to Canadian public policy given the sensitive nature of the data and the inadequacy of protective orders.

This decision is an assessment of costs following an Order dismissing the plaintiff's motion with costs to the defendant.

The unrepresented plaintiff objected to the assessment on the basis of financial hardship, but the Assessment Officer held that financial circumstance is irrelevant to an assessment of costs already awarded.

The Assessment Officer reviewed the defendant's bill of costs under Tariff B of the Federal Courts Rules, allowing the claimed units for preparation and post-judgment services, but reducing the units claimed for the appearance to reflect the actual time spent plus a reasonable allowance for videoconference set-up.

The defendant's bill of costs was assessed and allowed at $2,118.75.

The appellant sought to bring a Canadian class action against the respondent BP p.l.c. for securities misrepresentations.

His 2019 amended statement of claim, which introduced a claim for fraudulent misrepresentation, was struck out by the motion judge as statute-barred under the Limitations Act, 2002.

This appeal addressed four key issues: the elements of a "claim" for fraudulent misrepresentation under the Limitations Act, the appropriateness of the motion judge's factual findings regarding discoverability based on U.S. litigation, whether the fraudulent misrepresentation claim was a new claim or an alternative theory, and the propriety of deciding a limitations issue on a Rule 21.01(1)(a) motion.

The Court of Appeal dismissed the appeal, finding that while the motion judge erred in his discoverability analysis and reliance on U.S. pleadings, the fraudulent misrepresentation claim was indeed a new, statute-barred claim, and the limitations issue was appropriately decided on a Rule 21.01(1)(a) motion due to undisputed facts.

In a class action for secondary market misrepresentation, the court approved a $1.275 million settlement, the proposed distribution plan, class counsel's fees of $357,000 plus disbursements, and an honorarium of $15,000 for the representative plaintiff.

The settlement was deemed fair, reasonable, and in the best interests of the class, considering the high risks and complexities of the litigation and the limited recovery range due to a CCAA order.

The court emphasized the need for exceptional contribution to justify a representative plaintiff's honorarium, which was found to be present in this case.

The plaintiff, Alex M. Bodnarchuk, brought a consent motion to certify a class action for settlement purposes and to obtain leave to proceed with a secondary market misrepresentation claim under the Ontario Securities Act against Guestlogix Inc., Brett Proud, and Patrick Leung.

The action alleged misrepresentations and omissions regarding credit facilities and financial covenants.

The parties reached a settlement of $1,275,000.

The court granted leave, finding the action was brought in good faith and had a reasonable possibility of success for settlement purposes.

The court also certified the action as a class proceeding for settlement purposes, finding all criteria under the Class Proceedings Act, 1992 were met.

The order approved the settlement notices and procedures for opt-outs and objections, and set a date for the settlement approval hearing.

The plaintiff, Catalyst Capital Group Inc., appealed a motion judge's decision to strike out several of its claims against Dundee Kilmer Developments Limited Partnership (DKD), Infrastructure Ontario (IO), and the Crown.

The claims arose from Catalyst's exclusion from financing the 2015 Pan/ParaPan American Games Athletes' Village project.

The Court of Appeal allowed the appeal in part, reinstating Catalyst's claims against DKD for breach of a funding term sheet, breach of fiduciary duty, and unjust enrichment/quantum meruit.

However, the court upheld the striking of unjust enrichment/quantum meruit claims against IO and the Crown, the public law duty claim against IO and the Crown, and the misrepresentation claim against the Crown, finding them either statute-barred, lacking direct benefit, or precluded by statutory immunity.

The plaintiffs and defendants were fertility doctors who worked together at a clinic for many years.

When the Ontario government announced public funding for fertility procedures, the defendant applied for and received funding for her new clinic, using historical data from both doctors' practices.

The plaintiff, who ultimately chose not to join the new clinic, sued for breach of fiduciary duty and unjust enrichment, claiming she was cut out of the funding.

The court dismissed the claims, finding no per se or ad hoc fiduciary duty existed, as the defendant did not undertake to forsake her own interests.

The court also found a juristic reason for any enrichment, as the plaintiff autonomously chose not to join the new clinic or negotiate an agreement to access the funding.

In the alternative, damages were assessed at $2,578,050.

The appellant corporation appealed a judgment fixing the fair value of its shares at 30.4 cents per share under s. 185 of the Business Corporations Act.

The appellant argued the application judge erred by valuing the corporation on a going concern basis rather than a liquidation basis, by adjusting the cash flow forecast based on a three-month delay for alternative refinancing, and by failing to account for dilution from convertible debt.

The Divisional Court dismissed the appeal, finding that the application judge's valuation involved fact-specific judgment calls that were entitled to deference and revealed no errors of law.

The defendant brought a motion to strike the plaintiff's claim for fraudulent misrepresentation as statute barred under the Limitations Act, 2002, and to dismiss the proposed class action.

The plaintiff had commenced a proposed class action for secondary market misrepresentations following the Deepwater Horizon oil spill.

The court found that the plaintiff discovered his claim by 2010, but did not plead fraudulent misrepresentation until 2019.

The court held it was plain and obvious the claim was statute barred and struck it.

As the plaintiff was disqualified from being a representative plaintiff for the remaining truncated statutory claims, the entire action was dismissed.

This is a costs endorsement on appeal from a Superior Court decision.

The appellant, Bondfield Construction Company Limited, appealed from orders of Justice E.M. Morgan dated March 28, 2018 and May 29, 2018.

The respondents, The Globe and Mail Inc. and associated journalists, had brought a motion.

The Court of Appeal addressed whether CCAA proceedings against Bondfield precluded the court from addressing cost issues relating to the appeal.

The court found no reason to depart from the presumption in section 137.1(8) regarding costs on the motion, resulting in no order as to costs.

However, regarding costs on the appeal, the court awarded costs to Bondfield in the amount of $8,000, inclusive of disbursements and relevant taxes, noting that the jurisprudential landscape had shifted significantly between the motion and the appeal.

Bondfield Construction Company Limited appealed the dismissal of its defamation action against The Globe and Mail Inc. under section 137.1 of the Courts of Justice Act (anti-SLAPP provision).

The motion judge had dismissed the action, finding that Bondfield failed to meet the requirement to show that the defendants had "no valid defence whatsoever." The Court of Appeal allowed the appeal, holding that the motion judge had misinterpreted the statutory threshold.

The correct test requires the plaintiff to show only that a reasonable trier could conclude that the defendant did not have a valid defence, not that the defendant has no defence whatsoever.

The court found that Bondfield met this lower threshold regarding the defences of fair comment and responsible communication.

On the public interest balancing analysis, the court found that the case had none of the hallmarks of a classic SLAPP suit and should proceed to trial on its merits.