Kirsten T. Crain

In this class action damages trial arising from negligent facilitation of frequent trading in retail mutual funds, the court held that dilution caused by time zone arbitrage should be quantified using the Next Day NAV method rather than the profits method.

The court rejected the argument that prior OSC settlements conclusively compensated investors, found that objective trading characteristics and circumstantial evidence were sufficient to identify time zone arbitrage, and declined to require direct evidence of each trader’s subjective motivation.

Additional timer accounts were included for one defendant outright and for the other subject to specified filters, and the class definition was amended accordingly to exclude those market timers from recovery.

The court awarded principal damages of $60.48 million against one remaining defendant, plus further amounts for qualifying additional accounts, and $37,900,659.63 against the other, with simple prejudgment interest at 2.8% from commencement of the action.

Following the dismissal of the applicant's motion for a stay and the granting of the respondents' motion to strike, the parties could not agree on costs.

The respondents sought partial indemnity costs.

The applicant argued that no costs should be awarded as this was public interest litigation.

The court held that the public interest nature of the case did not exempt the applicant from costs rules, especially given the voluminous record and the significant economic interests at stake.

The court fixed costs at $35,000 for the proponent and $12,500 for the City, payable by the applicant.

The applicant sought a stay of a zoning bylaw amendment that permitted a Battery Energy Storage System (BESS) in Ottawa, pending its application for judicial review.

The respondents opposed the stay and moved to strike portions of the application and the applicant's affidavit evidence.

The court dismissed the motion for a stay, finding that while there was a serious issue to be tried, the applicant failed to demonstrate irreparable harm and the balance of convenience favoured the respondents.

The court granted the motion to strike in part, striking the challenge to the Municipal Support Resolution as statute-barred, striking portions of the application that impermissibly sought reasonableness review of the bylaw, and striking several affidavits and portions of affidavits that contained impermissible opinion evidence from unqualified laypersons.

The defendants brought a motion to compel the plaintiffs to answer questions refused on discovery and fulfill an undertaking regarding legal advice the plaintiffs received from another lawyer.

The plaintiffs argued the information was protected by solicitor-client privilege.

The court found that the plaintiffs had put their state of mind and reliance in issue in their claim for solicitors' negligence and breach of fiduciary duty, thereby implicitly waiving privilege over communications with their other lawyer regarding the transactions at issue.

The court ordered the plaintiffs to answer the questions and produce the unredacted invoice as unconditionally undertaken.

The City of Ottawa appealed a remittal decision that found various provisions of a 1981 Agreement and related contracts governing golf course lands to be inoperative.

The Court of Appeal had previously struck down conveyancing provisions in the agreement for violating the rule against perpetuities.

The application judge held that without these provisions, the remaining obligations to operate a golf course in perpetuity fundamentally altered the parties' original bargain and were therefore inoperative.

The Court of Appeal dismissed the appeal, agreeing that the removal of the conveyancing provisions frustrated the balance of the agreement, rendering all provisions relating to the golf course lands void.

The respondents brought a medical malpractice action after the plaintiff suffered a severe brain injury from a cardiac arrest during a caesarean section.

The trial judge found the primary obstetrician (Dr. Padmore), the anesthesiologist (Dr. Jamensky), and the hospital liable for negligence.

On appeal, the Court of Appeal allowed the appeals of Dr. Padmore and the hospital, finding the trial judge erred in his legal causation analysis regarding their respective pre-delivery acts and omissions.

The Court dismissed Dr. Jamensky's appeal, upholding the trial judge's findings that he breached the standard of care by prematurely converting the patient to a general anesthetic and that this negligence caused the cardiac arrest.

Dr. Jamensky was held solely liable for the agreed $12 million in damages.

This decision addresses the impact of a Court of Appeal ruling that declared certain contingent property interests in a 1981 development agreement void for perpetuities.

The Superior Court was remitted to determine which other provisions of the 1981 Agreement and related contracts were affected and rendered inoperative.

The court found that the voided sections fundamentally altered the original bargain, which included a path for the evolution and potential redevelopment of the golf course lands, not a perpetual obligation to operate a golf course.

Consequently, several provisions related to the golf course's perpetual operation, sale, right of first refusal, and redevelopment path were declared inoperative.

The 40% open space principle was largely maintained but its application to golf course redevelopment was clarified.

The moving party hospital sought to compel the responding party physician to answer questions and produce documents regarding his financial income on cross-examination.

The physician had applied for a stay of the hospital's decision to suspend his privileges, alleging irreparable harm to his professional reputation and status, but not financial loss.

The court dismissed the motion, finding that the financial information was not relevant to the issues on the stay motion because the physician was not relying on financial harm to meet the RJR-MacDonald test.

The respondent hospital brought a motion to compel the applicant physician to answer questions and produce documents regarding his financial income, which he had refused during cross-examination.

The cross-examination occurred in the context of the physician's motion to stay the hospital's decision to suspend his privileges.

The court dismissed the motion, finding that the physician did not allege financial harm in his stay motion, relying instead on loss of professional satisfaction and reputation.

Therefore, the financial information sought was irrelevant to the issues of irreparable harm and balance of convenience.

This appeal concerned the application of the rule against perpetuities to land development agreements.

ClubLink Corporation ULC appealed a lower court decision that upheld perpetual obligations to operate a golf course or convey the land to the City of Ottawa.

The Court of Appeal found that the contractual provisions requiring conveyance of the golf course lands to the City, or reconveyance back to the original owner, created contingent interests in land.

As these interests did not vest within the 21-year perpetuity period, they are void and unenforceable.

The court clarified that the expectation of a contingency materializing is not a factor in determining if an interest in land is created.

The appeal was allowed, and the relevant sections of the 1981 Agreement were declared void.

The court, on its own motion, considered dismissing the plaintiff's action under sub-rule 2.1.01 of the Ontario Rules of Civil Procedure for being frivolous, vexatious, and an abuse of process.

Despite being given notice and a 15-day period to provide written submissions, the plaintiff failed to respond.

Consequently, the action was dismissed.

The defendant lawyer brought a requisition under Rule 2.1 of the Rules of Civil Procedure to dismiss the plaintiff's action as frivolous, vexatious, or an abuse of process.

The plaintiff's claim arose from an aborted real estate transaction and alleged that the defendant lawyer was involved in the issuance of a municipal order to comply.

The court found that the defendant lawyer owed no duty of care to the plaintiff vendor and that the action appeared frivolous on its face.

The court ordered a stay of the proceeding and directed the Registrar to issue a notice to the plaintiff that the court is considering dismissing the action.

The plaintiff, 2Source Manufacturing Inc., sued the defendants for fraudulent misrepresentation, deceit, conspiracy, unlawful interference with economic relations, and breach of the Competition Act, alleging they were misled about the renewal of a Supply Agreement.

The defendants moved for summary judgment to stay the action, relying on a forum selection clause (FSC) in the Supply Agreement that mandated New York courts.

The court interpreted the FSC broadly to cover claims "in pith and substance contractual" even if framed in tort or statute.

It found 2Source's claims to be contractual in nature, arising from the performance, termination, or renewal of the Supply Agreement.

The court also found no "strong cause" to deny the stay, as 2Source failed to demonstrate fraud, inability of the New York court to hear the claim, or public policy frustration.

The motion for a stay of proceedings was granted.

The defendants moved to quash the plaintiffs' appeal from a Master's decision, arguing that the Superior Court of Justice lacked jurisdiction and that the appeal should be heard by the Divisional Court.

The plaintiffs contended that the Courts of Justice Act was inapplicable due to their Indigenous status and sought an adjournment, which was denied.

The court granted the defendants' motion, quashing the appeal on jurisdictional grounds, and awarded full indemnity costs to the successful defendants due to the unmeritorious nature of the appeal route chosen by the plaintiffs.

The defendants brought a motion to strike various portions of the plaintiff's statement of claim, which alleged misleading advertisement, misleading description under the Trade-marks Act, tort of unlawful means, copyright infringements, and conspiracy.

The court considered whether the pleadings disclosed a reasonable cause of action under Rule 21.01(1)(b) and whether they were scandalous, frivolous, or vexatious under Rule 25.11.

The court struck certain paragraphs related to direct statutory breaches and s. 36(1) of the Competition Act and s. 7(d) of the Trade-marks Act (with leave to amend for the latter two), but preserved allegations concerning false and misleading representations, the tort of unlawful means, and conspiracy, finding them relevant and sufficiently pleaded.

The applicant, Best Theratronics Limited, sought leave to appeal to the Divisional Court from an interlocutory order denying an injunction that would compel the respondent, Canadian Nuclear Laboratories Limited (CNL), to continue supplying irradiated cobalt.

The motion judge had applied the three-part test for injunctions, finding a serious issue to be tried but concluding that irreparable harm was not substantiated and the balance of convenience favoured CNL due to the applicant's substantial payment arrears.

The court, applying Rule 62.02(4) of the Rules of Civil Procedure, found no conflicting decisions on the issues pertaining to injunctions in supply agreements and no good reason to doubt the correctness of the motion judge's discretionary order.

The court also noted the applicant's failure to expedite the pending arbitration.

Consequently, the motion for leave to appeal was dismissed.

The defendants successfully defeated the plaintiff's motion for an injunction regarding the processing and delivery of radioactive Cobalt-60.

The defendants sought costs of $69,000 on a partial indemnity basis, while the plaintiff argued for $25,000 or deferral to arbitration.

The court considered the complexity of the technical and legal issues, the high value of the goods involved, and the urgency of the motion.

The court fixed costs payable by the plaintiff to the defendants at $45,000 for fees and $6,000 for disbursements on a partial indemnity scale.

The plaintiff sought an interlocutory injunction preventing the defendants from terminating a cobalt irradiation services agreement and requiring continued supply of irradiated Cobalt‑60 pending arbitration.

The defendants terminated the agreement after the plaintiff failed to pay approximately $4 million in overdue invoices despite a contractual requirement that invoices be paid within 30 days.

Applying the RJR‑MacDonald test, the court held that although a limited serious issue existed regarding whether providing only 30 days’ notice to cure default complied with the duty of good faith, the plaintiff failed to demonstrate irreparable harm and the balance of convenience strongly favoured the defendants.

The court found that cancer treatment supply would not be disrupted because the product could be sourced elsewhere and existing supplies remained usable.

The motion for an injunction was denied.

The self-represented plaintiff brought a motion seeking leave to amend a notice of action and extend the time to file and serve a statement of claim arising from alleged medical negligence following a bicycle accident.

The plaintiff had failed to file a statement of claim within the time required by the Rules of Civil Procedure and sought relief after receiving an administrative dismissal notice.

The court considered the principles governing extensions of time under the Rules of Civil Procedure, including whether the extension would advance the just resolution of the dispute without causing prejudice to the defendants.

Despite the delay and the potential expiry of limitation periods, the court found that an extension would not cause unfair prejudice and would promote the just resolution of the dispute.

The court granted extensions to file and serve the statement of claim while leaving limitation and statutory notice issues to be determined later.

The appellant appealed a decision of the Consent and Capacity Board confirming her incapacity to make decisions regarding admission to a care facility.

The appellant argued the Board misapprehended evidence about her medication levels, ignored helpful evidence, and improperly focused on her best interests rather than her capacity.

The Divisional Court applied a reasonableness standard of review and dismissed the appeal, finding that the Board properly applied the statutory test for capacity.

The court held that the appellant's inability to understand the need for medication and supervision, and her lack of insight into her condition, supported the Board's finding of incapacity.