Laura M. Wagner

The plaintiff moved for leave to amend its statement of claim to add a third party as a defendant in an action concerning environmental contamination.

The proposed defendant opposed the motion, arguing the claim was statute-barred.

The court found that the plaintiff had actual knowledge of the material facts giving rise to a plausible inference of liability against the proposed defendant more than two years before bringing the motion.

Consequently, the limitation period had expired, and the motion to add the party was dismissed.

The defendants (Trinity Development Group Inc., Trinity Albert LP, and John Ruddy) brought a motion to compel Capital Sports Management Inc. (CSMI) and Eugene Melnyk to produce documents related to the work of Gowling WLG LLP for RendezVous LeBreton Group (RLG) and the LeBreton Project.

Trinity argued that Gowlings was jointly retained by CSMI and Trinity in relation to the RLG joint venture, or that common interest privilege applied, or that CSMI had waived privilege.

CSMI contended that Gowlings acted solely for CSMI.

The court found that a joint retainer existed between Gowlings, CSMI, and Trinity for the RLG and LeBreton Project from July 23, 2015, to November 23, 2018, based on objective evidence including Gowlings' representation of RLG to third parties, shared instructions, and shared payment of fees.

The court also noted that CSMI's pleading of a fiduciary relationship with Trinity was inconsistent with its claim of privilege.

The motion to compel production was granted, requiring CSMI to produce the requested documents in unredacted form.

RageOn Inc., an online retailer using Shopify's platform, sought an interim injunction to restore its access to Shopify's services after Shopify terminated their agreement.

Shopify terminated the agreement due to RageOn's repeated violations of its Acceptable Use Policy (AUP), which prohibits hateful content and content associated with terrorist organizations.

RageOn argued the termination was premature, the breaches were not material, and Shopify acted in bad faith.

The court applied the modified RJR-MacDonald test for mandatory interlocutory injunctions, requiring RageOn to demonstrate a strong prima facie case.

The court found RageOn failed to show a strong likelihood of success on the merits, failed to demonstrate irreparable harm, and that the balance of convenience did not favour granting the injunction.

Consequently, RageOn's motion was dismissed.

The appellant, a medical doctor who prepares impairment assessments for insurers in motor vehicle accident claims, sued the respondent, a lawyer and OTLA president-elect, for libel following an email posted to the OTLA Listserv.

The email alleged that the respondent had altered medical reports and misrepresented expert opinions in a catastrophic impairment arbitration.

The motion judge dismissed the action under section 137.1 of the Court of Justice Act (Anti-SLAPP legislation), finding that although the expression related to a matter of public interest, the plaintiff failed to meet the merits threshold and the harm was outweighed by the public interest in protecting the expression.

The Court of Appeal allowed the appeal, finding that the motion judge erred in his application of sections 137.1(4)(a) and (b), and that the plaintiff had met his onus on both provisions.

The court also rejected constitutional challenges under sections 7 and 15 of the Canadian Charter of Rights and Freedoms.

The Association of Professional Engineers of Ontario appealed a Discipline Committee decision dismissing allegations against a member and his professional corporation.

The Committee found it lacked jurisdiction over the corporation's conduct prior to it obtaining a Certificate of Authorization, and dismissed allegations against the member regarding failure to complete contracted work due to insufficient evidence.

The Divisional Court dismissed the appeal, holding that the Committee's interpretation of its home statute regarding pre-licensure jurisdiction was reasonable and correct, and its factual findings regarding the scope of the contract were reasonable and entitled to deference.

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

The appellants achieved substantial success on the appeal.

The Court of Appeal awarded the appellants $15,000 in costs of the appeal including taxes and disbursements.

The trial judge's costs order was set aside and the issue of trial costs was remitted to the trial judge for fresh assessment after damages on the mainstream agreement have been determined.

The appellants, Cana International Distributing Inc. and Micheline Ciolli, appealed a trial judgment dismissing their claim for breach of an exclusive distribution agreement with Standard Innovation Corporation for the distribution of the We-Vibe product.

The appellants claimed separate agreements existed for both the mainstream retail market and the adult industry market.

The trial judge found no binding agreements existed.

The Court of Appeal allowed the appeal in part, finding that a binding mainstream agreement was reached when the parties signed a term sheet in counterpart in August-September 2009, and that the trial judge made palpable and overriding errors of fact and an extricable error of law in finding otherwise.

The Court upheld the trial judge's finding that no adult industry agreement was reached.

The Court also dismissed the appellants' arguments regarding quantum meruit and qualified privilege defences.

The plaintiff Ontario corporation sued the defendant Northern Ireland corporation for breach of contract regarding the delivery of a waste recycling facility.

The defendant moved to stay the action, arguing lack of jurisdiction or forum non conveniens based on a forum selection clause in its standard terms and conditions.

The court found it had jurisdiction simpliciter due to a real and substantial connection to Ontario.

However, the court stayed the action, finding that the plaintiff was bound by the forum selection clause and failed to show strong cause why it should not be enforced.

The appellants appealed a summary judgment decision regarding a software licensing dispute.

The motion judge found that the respondent breached the licence agreement and infringed copyright by using the software on operating systems other than AIX, but did not breach the agreement by using it on multiple servers.

The Court of Appeal upheld the motion judge's interpretation of the contract, finding no server restriction but confirming the AIX operating system restriction.

However, the Court allowed the respondent's cross-appeal in part, finding that the motion judge erred in dismissing the estoppel defence regarding the AIX restriction, and directed that the estoppel issue proceed to trial alongside the limitation defence and damages.

In this costs endorsement following a summary judgment ruling on liability in a software licence and copyright dispute, the plaintiffs sought partial indemnity costs of both the motion and the action to date.

The court held it was premature to award costs of the motion because the action had been bifurcated by the plaintiffs and the defendant had an outstanding monetary offer to settle the entire action, engaging the potential costs consequences of Rule 49.10(2).

The court declined to award action costs at this stage and deferred entitlement to motion costs until after the damages trial.

It nevertheless fixed the plaintiffs' partial indemnity costs of the summary judgment motion at $280,000 inclusive, should those costs later be awarded.

On a summary judgment motion in a software licensing dispute, the court interpreted a licence agreement governing enterprise use of document conversion software.

The court held that the agreement did not impose a one-server-per-licence restriction, but it did restrict use to the AIX platform and to association with IBM's CMOD database.

The moving parties obtained declarations that use outside those limits breached the licence and infringed copyright under the Copyright Act.

Estoppel and limitation defences based on technical support knowledge did not raise a genuine issue requiring a trial on liability.

Damages were directed to a trial rather than a reference.