Kiran Patel

Rogers appealed a partial arbitral award regarding its distribution agreement with Glentel, which it co-owns with Bell.

The arbitrator had ruled that Rogers could not require Glentel to offer a Rogers Bank credit card bundled with telecommunications services, nor pay incremental commissions for it, as it was not an 'ancillary service' under the agreement.

The Superior Court determined that the appellate standard of review applies to statutory appeals under the Arbitration Act, 1991, following Vavilov.

Applying this standard, the court found no extricable errors of law or palpable and overriding errors in the arbitrator's contractual interpretation or jurisdictional scope.

The appeal was dismissed.

Rogers Communications Inc. brought an unopposed motion for a sealing order and to file a redacted record in its appeal of a confidential arbitration award involving BCE Inc. and Glentel Inc. The court dismissed the motion, finding that Rogers failed to meet the strict test for limiting the open court principle set out in Sherman Estate.

The court held that merely treating agreements as confidential in a private arbitration does not establish a serious risk to an important public interest justifying a sealing order in a public court proceeding.

The parties attended a case conference to schedule a 40-day trial for a construction dispute commenced in 2015.

The court noted that there were ongoing interlocutory motions regarding productions and pleadings, and no expert reports had been delivered.

The court declined to fix a trial date, holding that an action with ongoing interlocutory matters is not ready for trial, and directed the parties to return to trial scheduling court once the outstanding matters and expert reports are completed.

The moving party brought a motion for leave to appeal an earlier order.

The Divisional Court dismissed the motion for leave to appeal and awarded costs of $5,000 to the responding party.

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.

In the context of CCAA proceedings for Sears Canada, the Monitor brought a motion to enforce a settlement agreement with several former landlords regarding the valuation of their claims.

The landlords disputed the Monitor's calculation of their claims under the agreed Landlord Claim Formula and sought disclosure of the underlying calculations.

The court held that the landlords were entitled to the disclosure and could dispute the calculations, but only using the sources permitted by the formula.

Additionally, the court ordered one landlord, Primaris, to repay $10,000 it had unilaterally withheld for legal fees when returning a mistaken payment.

The appellant, a manufacturer and supplier of touchscreens, appealed a trial judgment finding it liable for breach of implied conditions under the Sale of Goods Act.

The trial judge found that touchscreens supplied to the respondent, a manufacturer of mobile display terminals, were defective due to poor lamination caused by the appellant's subcontractor.

The trial judge awarded damages of $355,193.49 to the respondent for replacement costs, labour, and shipping, offset against outstanding invoices.

The appeal court upheld the trial judgment on both liability and damages, finding no palpable and overriding error and rejecting all four grounds of appeal.

Catalyst Capital Group Inc. attempted to acquire VimpelCom Ltd.'s interest in Wind Mobile Corp. but negotiations failed.

During negotiations, a junior analyst employed by Catalyst left to work for West Face Capital Inc., a member of a consortium that subsequently acquired Wind.

Catalyst sued the former employee and West Face for breach of confidence and other claims (the Moyse Action).

The trial judge dismissed the action, finding that no confidential information was communicated and that Catalyst suffered no detriment because its own refusal to agree to a break fee and its insistence on regulatory concessions made the deal impossible.

Catalyst then commenced a second action against the consortium members and others alleging breach of confidence, conspiracy, and inducing breach of contract.

The motion judge dismissed the second action as barred by issue estoppel, cause of action estoppel, and as an abuse of process.

The Court of Appeal upheld the dismissal, finding that Catalyst was attempting to relitigate factual findings from the first action and that it could have advanced all claims in the first proceeding.

The plaintiff (ADM) sued the defendant (DW) for unpaid invoices relating to touchscreens.

DW counterclaimed for damages, alleging the touchscreens were defective.

ADM argued DW spoliated evidence by replacing the touchscreens before ADM could test them.

The court dismissed the spoliation argument, finding DW replaced the screens to mitigate damages and satisfy customers, not to affect litigation.

The court found ADM breached the implied conditions of fitness and merchantable quality under the Sale of Goods Act, as the touchscreens suffered from a manufacturing defect causing the cover sheets to collapse.

DW was awarded damages for replacement costs, labour, shipping, and engineering, less a set-off for ADM's unpaid invoices.

The plaintiff successfully moved for certification of a national class action and sought costs of $69,088.48 on a partial indemnity basis.

The defendant argued the costs should be reduced to $35,000 in fees because it had achieved some success in reducing the class size and shaping the common issues.

The court rejected the defendant's argument, holding that distributive costs awards are generally to be avoided and the defendant's measure of success did not warrant diminishing a fair costs claim.

The court awarded the plaintiff the full amount claimed.

The plaintiff brought a motion to certify a national class action for settlement purposes and to approve a settlement with the defendant software developer.

The action concerned a security defect in preloaded software on laptop computers that allegedly intercepted web traffic.

The court found that the criteria for certification under the Class Proceedings Act, 1992 were met.

The court also approved the settlement of $151,547 CAD and cooperation terms, finding it fair, reasonable, and in the best interests of the class.

The plaintiff brought a motion to certify a national class action against Lenovo (Canada) Inc. and Superfish Inc. regarding the pre-installation of Visual Discovery software on certain laptop computers.

The plaintiff alleged the software contained a security defect and unlawfully transmitted private information.

The court found that the claims for breach of the implied condition of merchantability, intrusion upon seclusion, and breach of provincial privacy laws satisfied the cause of action criterion.

The court modified the proposed class definition to exclude indirect purchasers and certain computer models, and refined the common issues.

The action was certified as a class proceeding.

In a proposed class action, the plaintiff moved under Rule 49 to enforce an alleged settlement with one of the defendants, Superfish Inc., prior to certification.

Counsel for Superfish requested an adjournment to obtain instructions.

The court granted the adjournment, noting that a Rule 49 motion to enforce a settlement in a proposed class action cannot proceed pre-certification.

The motion was adjourned to allow the plaintiff to properly constitute the motion by bringing it alongside a motion for certification.

The Estate of Frank Calderone brought a motion seeking leave to amend its crossclaim against Joseph Calderone to introduce new allegations of fraud and fraudulent concealment related to a family business syndicate (CBS).

The court dismissed the motion, finding that the new claims were statute-barred under the Limitations Act, 2002, as the Estate failed to exercise reasonable diligence to discover the claims by December 2011.

The court also addressed ancillary requests, granting partial production of documents from PricewaterhouseCoopers LLP, adjourning the request for documents from McMillan LLP, granting leave to examine non-party David Young (a lawyer), and ruling on various refusals from Joseph Calderone's examination for discovery.

The action was assigned to case management.

The defendant Lenovo brought a motion under Rule 21.01(1)(b) to strike the plaintiff's class action claim in its entirety, arguing that none of the advanced causes of action could succeed.

The plaintiff had initially advanced five causes of action: breach of contract, implied condition of merchantability, intrusion upon seclusion, breach of provincial privacy laws, and negligence (the negligence claim was withdrawn).

The court granted the motion in part, striking the breach of contract claim, but dismissed the motion regarding the claims for implied condition of merchantability, intrusion upon seclusion, and breach of provincial privacy laws, finding them arguable and not plain and obvious to fail.

No costs were awarded due to divided success.

The applicant, U.S. Steel Canada Inc. (USSC), sought approval for a second key employee retention plan (KERP 2), while a group of unions and representative counsel (Moving Parties) sought an order to terminate the suspension of other post-employment benefits (OPEBs).

The court granted the KERP 2 motion, finding it fair and reasonable for business stability and restructuring efforts.

The OPEB motion was denied, as the court found no fundamental improvement in USSC's profitability to warrant OPEB reinstatement, and that USSC's proposed one-time contribution of $2.7 million to a transition fund for retired employees appropriately balanced competing interests during the ongoing sales and investor solicitation process (SISP).

In a Companies' Creditors Arrangement Act (CCAA) proceeding, the applicant, U.S. Steel Canada Inc., sought an extension of the stay of proceedings, authorization and approval of a second amending and extension agreement for DIP financing, and approval of a second key employee retention plan (KERP).

United States Steel Corporation (USS) sought a shorter stay period.

The court granted the applicant's motion to extend the stay of proceedings to November 30, 2016, finding the applicant acted in good faith and with due diligence, and that a shorter, court-imposed deadline was not necessary or useful at that time.

The court also authorized and approved the Second Extension Agreement for DIP financing, noting its importance as a cash buffer and for maintaining business stability.

Motions regarding post-employment benefit plans and KERP were adjourned or granted separately.

The applicant, U.S. Steel Canada Inc. (USSC), brought a motion seeking approval of a claims process for the identification and determination of intellectual property claims asserted by United States Steel Corporation (USS) against USSC within ongoing CCAA proceedings.

USSC argued the process was necessary to provide clarity for potential purchasers in its Sales and Investment Process (SISP) and facilitate a going concern bid.

USS opposed, arguing the process was impractical and burdensome.

The court granted the motion, subject to certain excisions from the claim form, finding the process beneficial for the restructuring and for maximizing recoveries for stakeholders, and that it had the authority under section 11 of the CCAA to do so.

The defendants brought a motion to quash the plaintiff's motion for certification of a common law misrepresentation claim, arguing that the court was functus officio, the motion was res judicata, or it constituted an abuse of process.

The court granted the defendants' motion, finding that the preferability of a stand-alone common law misrepresentation claim had already been determined and rejected in a prior certification decision.

This prior determination, which was not appealed, barred re-litigation of the issue under the doctrines of issue estoppel or abuse of process.

However, the court allowed the plaintiff to bring a motion under s. 7 of the Class Proceedings Act, 1992, to continue the action as an opt-in joinder proceeding for class members with significant claims.

The applicant, U.S. Steel Canada Inc., sought an extension of the stay of proceedings under the Companies’ Creditors Arrangement Act (CCAA) to July 28, 2016.

United States Steel Corporation (USS) opposed, seeking a shorter extension and the imposition of conditions for disclosure of Phase II bids and an updated liquidation analysis.

The court granted the extension as requested by the applicant, finding that the applicant acted in good faith and with due diligence, and that a longer stay furthered the prospect of a successful restructuring.

The court denied USS's requests for a shorter extension and conditions, deeming them premature and potentially detrimental to the restructuring process, and found insufficient evidence of value destruction.