Kris Borg-Olivier

Following a judgment allowing the plaintiffs' action, the parties made written submissions on costs and prejudgment interest.

The parties settled the issue of costs for $6,680,632.45.

On the issue of prejudgment interest, the court determined the start dates for the calculation of interest for each plaintiff.

The court declined to exercise its discretion to average the interest rate or to award compound interest, finding no unusual or special circumstances to justify departing from the presumptive statutory scheme.

The court also declined to reduce the period for calculating interest based on the plaintiffs' conduct.

The applicant, TD Waterhouse, brought a motion seeking to appoint an implementation monitor to oversee the repatriation of its data from the respondent, EIS, and to amend a prior mandatory injunction.

TD Waterhouse alleged that EIS breached their agreement by commingling backup data and failing to report an attempted data breach.

The court found a technical breach regarding the commingled backup CDs but no breach regarding the thwarted cyberattack.

The court declined to appoint an implementation monitor or reduce the applicant's costs for data repatriation, finding such remedies unwarranted.

However, the court amended the injunction to require the respondent to continue providing transition services until 12 months after the data repatriation is complete.

The appellant challenged a trial judgment holding him personally liable on an unsecured line of credit, arguing that the facility was entered on behalf of several corporations and that the trial judge committed multiple factual processing errors.

The Court of Appeal applied the palpable and overriding error standard and held that, although the trial judge failed to address some evidence concerning the rarity of such unsecured personal lending and the borrower's recorded net worth, those errors were not sufficiently significant to vitiate the core factual finding.

The court accepted that the documentary record, account statements, banking records, and post-agreement conduct amply supported the conclusion that the facility was a personal line of credit.

The appeal was dismissed, with costs to the respondent.

The respondent lawyer brought a motion for further disclosure of all communications between the Law Society and its external investigative counsel.

The Law Society argued the communications were irrelevant or protected by solicitor-client privilege.

The Tribunal dismissed the motion, finding that not all communications were potentially relevant.

Furthermore, the Tribunal held that the external counsel was retained to conduct a regulatory investigation, not to provide legal advice, meaning the communications were not generally protected by solicitor-client privilege, though specific communications involving legal advice would remain privileged.

The appellant sought to enforce a Chilean arbitral award in Ontario against the respondent, a non-party to the arbitration, arguing the respondent assumed the judgment debtor's liabilities through an Italian spin-off agreement.

The motion judge stayed the enforcement application on the basis of forum non conveniens, finding that the threshold issue of liability must be determined first and that Italy was the clearly more appropriate forum.

The Court of Appeal dismissed the appeal, holding that the motion judge did not err in severing liability from enforcement, applying the forum non conveniens doctrine, or granting a temporary stay pending the resolution of Italian proceedings.

TD Waterhouse Canada Inc. sought the return of its data held by Electronic Imaging Systems Corporation following termination of their service agreement.

EIS demanded payment of $2.50 per image (totalling over $460 million) for the return of 180 million records.

The court determined that the document restore fee applied only to day-to-day requests during the agreement term, not to mass data repatriation upon termination.

The court found that the Transition provisions of the agreement governed the return of data on termination.

The court granted a mandatory injunction requiring EIS to return the data, conditioned on TD Waterhouse paying EIS commercially reasonable compensation on a quantum meruit basis for the services rendered in repatriating the data.

The plaintiffs, shareholders and creditors in Mobilicity, a wireless telecommunications company, sued the federal government for negligence and negligent misrepresentation arising from the 2008 AWS spectrum auction.

The plaintiffs alleged that Industry Canada represented that spectrum licences acquired at auction would be transferable to incumbent carriers after a five-year moratorium, and that they relied on this representation to invest approximately $250 million in equity and $95 million in debt to capitalize Mobilicity and bid for spectrum licences.

The plaintiffs further alleged that in 2013, the government unilaterally changed the transfer framework to prohibit transfers to incumbents, and in 2014-2015 interfered with Mobilicity's sales process through threats, media manipulation, and regulatory delay.

The court found the government liable for negligence and negligent misrepresentation, holding that it owed a duty of care to the plaintiffs based on specific representations made to induce investment, and that it breached that duty through the implementation of the 2013 Transfer Framework and subsequent interference in the sales process.

The court awarded damages based on a "but for" analysis, calculating what the plaintiffs would have earned in alternative investments had they not relied on the government's representations.

The Court of Appeal for Ontario allowed in part the appeal of Westmount-Keele Limited in a solicitor’s negligence action against Nicholas C. Tibollo and his professional corporation.

The court found that the trial judge erred in declining to award damages for certain legal fees and elevator repairs, and varied the judgment to include these amounts.

The court otherwise upheld the trial judge’s findings regarding lost opportunity damages, property taxes, and other claims, finding no palpable and overriding error.

The appeal was allowed in part, and costs were awarded to the appellant.

The respondent, Webuild S.P.A., brought a motion to stay an application by Sociedad Concesionaria Metropolitana De Salud S.A. (SCMS) to enforce a Chilean arbitral award in Ontario.

The award was originally against Astaldi S.p.A., and SCMS sought to enforce it against Webuild, arguing Webuild assumed Astaldi's liabilities through an Italian restructuring proceeding.

Webuild contended that the threshold issue of liability assumption under Italian law should be determined in Italy.

The court granted Webuild's motion for a temporary stay, finding Italy to be the forum non conveniens for this complex issue, citing the need to avoid conflicting judgments and costly duplication of resources across multiple jurisdictions.

The plaintiffs brought a motion under Rule 32.01 of the Rules of Civil Procedure seeking an order to permit their consultant to conduct a Phase Two Environmental Site Assessment of a property.

The plaintiffs argued the assessment was necessary to determine if the property was contaminated, which was relevant to their claims of misrepresentation by the defendants regarding the property's environmental status and to the remedies sought (specific performance with abatement or return of deposit).

The defendants opposed, arguing the plaintiffs had waived an environmental condition in the agreement of purchase and sale and that the motion was delayed and an abuse of process.

The court granted the plaintiffs' motion, finding the inspection necessary and probative for the trier of fact, noting no prejudice to the defendants, and deeming the delay not unreasonable.

The court also provided directions for the parties to agree on a timetable for the inspection, mediation, and trial, and on the terms of the inspection.

The Attorney General of Canada sought to reconsider a mid-trial ruling on solicitor-client privilege, requesting leave to file a new affidavit to support their claim.

The plaintiffs opposed this request.

The court declined to exercise its discretion to revisit the ruling, emphasizing the importance of finality in trial proceedings and noting that the issue had been fully argued previously.

The Attorney General was directed to forthwith produce the unredacted documents as per the original ruling.

During a complex commercial trial, an evidentiary dispute arose regarding the reading in of examination for discovery transcripts under Rule 31.11.

The defendant sought to introduce additional excerpts from its own witnesses' discoveries to qualify the plaintiffs' read-ins, and also sought to read in discovery evidence of the plaintiffs' witnesses who had already testified.

The court allowed some of the qualifying read-ins that directly explained the original answers but excluded others.

The court largely dismissed the defendant's request to read in the plaintiffs' discovery evidence, finding that doing so after the witnesses had testified without putting the evidence to them in cross-examination violated the rule in Browne v. Dunn and caused trial unfairness.

During a complex commercial trial involving the auction of wireless spectrum licences, the plaintiffs challenged the defendant's assertion of solicitor-client privilege over redacted portions of nine documents.

The defendant argued the challenge required leave under Rule 48.04 as the action had been set down for trial.

The court held that a trial judge has broad discretion to order production of non-privileged documents at any time under Rule 30.04(5) without leave, but would have granted leave in the interests of justice regardless.

After inspecting the unredacted documents, the court found that while some redactions properly protected legal advice, others merely reflected policy discussions or operational decisions that referenced legal risks, which do not attract privilege.

The defendant was ordered to produce the improperly redacted portions.

The defendants brought a motion to discharge a Certificate of Pending Litigation (CPL) registered against their property, arguing that the plaintiffs failed to make full and fair disclosure on the ex parte motion to obtain the CPL, that there was no triable issue regarding the plaintiffs' claim to an interest in the property, and that equitable factors favored discharge.

The plaintiffs opposed, arguing delay and disputing the defendants' grounds.

The court dismissed the defendants' motion, finding that the defendants' extensive delay in bringing the motion was sufficient grounds for dismissal.

The court further found that the plaintiffs had made full and fair disclosure and that there was a triable issue regarding the plaintiffs' claim for specific performance, with equitable factors favoring the plaintiffs.

The plaintiff sought damages from the defendant, Economical Mutual Insurance Company, alleging a breach of contractual duty of honest performance in the denial of a mutual homeowners insurance policy.

The plaintiff claimed entitlement to a payment received by mutual policyholders during the company's demutualization process.

The court found that the plaintiff's application material did not meet the defendant's underwriting standards for a mutual policy, specifically regarding a two-family dwelling with a rented basement suite.

The court dismissed the plaintiff's claim, finding no breach of the contractual duty of honest dealings.

This is an appeal from a Superior Court order upholding an arbitral award of $29.2 million in favour of All Communications Network of Canada, Co. (ACN) against Planet Energy Corp. (Planet).

Planet sought to set aside the award, arguing it was unable to present its case due to denied discovery rights and that the award violated public policy by contravening the Energy Consumer Protection Act, 2010 (ECPA).

The Court of Appeal dismissed the appeal, finding that the application judge applied the correct standard of review and that Planet failed to demonstrate a breach of procedural fairness or that the award offended public policy.

The applicant, Derek Van Doorn, brought a motion under section 10 of the Arbitration Act, 1991, seeking the court's appointment of an arbitrator to resolve an underlying law firm partnership dispute with the respondent, Loopstra Nixon LLP.

The partnership agreement mandated arbitration but lacked a procedure for arbitrator appointment.

The court considered three candidates proposed by the parties and ultimately appointed The Honourable Frank J.C. Newbould, K.C., finding him to be the best candidate given his extensive adjudicative and arbitral experience, particularly in law firm partnership disputes.

The plaintiff lawyer sued the defendant client for unpaid legal fees and included privileged communications in the statement of claim.

The defendant moved to strike the privileged paragraphs, arguing he had not waived solicitor-client privilege.

The court held that a client's refusal to pay legal fees does not constitute an implied waiver of privilege.

However, the court declined to strike the pleadings, finding that the plaintiff was entitled to include privileged information necessary to advance the claim.

To protect the privilege, the court ordered the file sealed.

Appeal from a preliminary arbitral award in a dispute arising from a lawyer's departure from a law firm and the transfer of numerous former client files.

The appellant argued that solicitor undertakings and contingency fee agreements, rather than the departure clause in the respondent's employment agreement, should govern the firm's entitlement to fees.

The court held that the undertakings were rejected and, in any event, merged into the settlement agreement, and that the respondent remained an employee when he left the firm.

The arbitrator made no reviewable legal error in concluding that the employment agreement departure clause governed the fee split issue.

The appeal was dismissed.

The applicants sought leave under s. 246 of the Business Corporations Act to bring a derivative action on behalf of the respondent corporation against its landlord for wrongful termination of a commercial lease and lockout.

The applicants also sought an interim mandatory injunction restoring access to the premises.

The court found that the landlord likely breached the Commercial Tenancy Act's moratorium on evictions related to the Canada Emergency Rent Subsidy.

The court granted leave for the derivative action and issued an interim order restoring the corporation's access to the premises.