Andrew B. Matheson

The court determined the costs for seven different motions in a complex commercial action involving Mareva injunctions and proprietary claims.

Applying the principles from Boucher and Rule 57.01, the court awarded partial indemnity costs to the successful parties on each motion, balancing divided success and the reasonableness of the amounts claimed.

In total, the plaintiffs were ordered to pay net costs to various defendants, while some defendants were ordered to pay costs to the plaintiffs for motions where the plaintiffs were successful.

The Divisional Court remitted a matter back to the Superior Court to determine whether disclosing the identities of third-party funders paying the living expenses of the Aljabri defendants posed a risk to their personal safety.

The defendants adduced unchallenged evidence that the Saudi regime had previously targeted the family and associates of the lead defendant following a 2017 palace coup.

The court found a material risk that disclosure to the plaintiffs could lead to the information reaching the Saudi government, jeopardizing the funders' safety.

The court ordered that the identities remain disclosed on a counsels' eyes only basis and not be provided to the plaintiffs.

The plaintiffs brought a motion seeking a declaration that the defendant waived litigation privilege over a 'Proffer' document provided to the Attorney General of Canada for national security vetting under s. 38 of the Canada Evidence Act.

The court held that while the document was created for the dominant purpose of litigation, the defendant's stated intention of using it to promote trial efficiency constituted a waiver of privilege vis-à-vis the trial judge.

The court ordered the unredacted Proffer to be provided to the judge and established a comprehensive trial protocol, including the appointment of amicus curiae and advance vetting of sensitive evidence, to balance national security concerns with trial fairness.

The appellant, a teacher, was found to have committed professional misconduct and sexual abuse by sending inappropriate Facebook messages to a former student.

Under the Ontario College of Teachers Act, 1996, this finding resulted in the mandatory revocation of his teaching certificate.

The appellant appealed, arguing that the mandatory revocation provisions unjustifiably infringed his freedom of expression under s. 2(b) of the Charter, and that the Discipline Panel erred in its evidentiary rulings and by failing to conduct a Doré analysis.

The Divisional Court dismissed the appeal, upholding the Panel's finding that the infringement of the appellant's freedom of expression was justified under s. 1 of the Charter to protect vulnerable students from sexual abuse.

The decision addresses a motion by Saad Aljabri, Mohammed Aljabri, and various corporate defendants to vary Mareva orders freezing their worldwide assets, seeking the release of frozen funds to pay legal fees.

The court grants the motion for all moving parties except Dreams International Advisory Services Ltd., finding that the Mareva Defendants have shown they lack access to other assets or reliable third-party funding, and that a variation is necessary to ensure a fair trial.

The court dismisses the motion by Dreams, finding insufficient evidence that it lacks access to other funds.

The decision reviews the legal test for varying Mareva orders and applies a balancing of interests, including the merits of the case, the complexity of the litigation, and the conduct of the parties.

Dr. Musson faced four counts of sexual assault and sexual touching of a person under 16.

He brought an application for a stay of proceedings, alleging a violation of his Section 11(b) Charter right to be tried within a reasonable time.

The court found the total delay of 683 days exceeded the presumptive ceiling of 547.5 days.

The court found no defence-caused delay.

While an unexpected Crown leave of absence (11 days) was an exceptional circumstance, the significant delay (175 days) caused by the Crown's unlawful disclosure of youth records was not considered exceptional, as it was foreseeable and unavoidable, and the Crown did not act proactively to remedy it.

Consequently, the court found the delay unreasonable and stayed all four counts against Dr. Musson.

This motion concerned an application by the accused, Robert Scott Musson, under section 123 of the Youth Criminal Justice Act (YCJA) for access to and production of two sets of youth records: one related to an alleged "stranger assault" in 1997 and another related to a break and enter at Dr. Musson's home in 1998, involving the complainant A.L. and witness L.W. The court dismissed access to the 1997 "stranger assault" records, finding that a police caution constituted an extrajudicial measure under the YCJA, making section 119(4) applicable and precluding access.

For the 1998 break and enter records, the court found that Dr. Musson met the test under section 123 of the YCJA for access, demonstrating a valid and substantial interest and necessity in the interest of justice.

However, due to the nature of the allegations against Dr. Musson (sexual offences), the court ruled that the Mills regime applied, requiring a separate application under section 278.3 of the Criminal Code for actual production of these records, which were ordered to remain under seal.

The plaintiffs brought a motion to certify the action as a class proceeding for settlement purposes against TD, RBC, Credit Suisse, and Deutsche Bank in a case alleging a conspiracy to fix prices in the futures exchange market.

The court found that the criteria for certification under section 5(1) of the Class Proceedings Act, 1992 were met and granted the motion, approving the settlement agreements and the plan of dissemination.

The plaintiff brought a motion for leave to amend its statement of claim to add allegations of secret commissions and intentional interference with economic relations, and to disqualify the defendants' counsel from acting for a proposed new defendant.

The defendants brought a cross-motion for case management and a timetable.

The court denied the contested amendments without prejudice, finding the plaintiff failed to plead full particulars as required by Rule 25.06(8).

The court also dismissed the motion to disqualify counsel, finding no clear evidence of a conflict of interest.

Case management was denied, but a timetable was ordered.

Costs of $10,000 were awarded to the defendants.

The plaintiff sought leave under s. 138.8 of the Ontario Securities Act to commence an action for secondary market misrepresentation against Pretium Resources Inc. and Robert A. Quartermain.

The plaintiff alleged that the defendants failed to disclose material facts regarding conflicting expert opinions on the validity of a mineral resource estimate for the Brucejack Project, leading to a significant drop in share price.

The court granted leave, finding that the plaintiff established a reasonable possibility of success at trial.

The court determined that the concerns raised by Strathcona Mineral Services, a respected mining consultant, were material facts that a reasonable investor would consider important, despite Pretium's belief that the data was unreliable.

Furthermore, the court found a reasonable possibility that the defendants would not be able to establish the "no reasonable grounds to believe" branch of their reasonable investigation defense under s. 138.4(6) of the OSA.

The plaintiff, Enbridge Pipelines Inc., sought costs on a partial indemnity basis following a successful motion for an interlocutory injunction.

The defendants, Todd Williams and Wayne Hill, did not submit any costs submissions.

The court considered the factors under subrule 57.01(1) of the Rules of Civil Procedure and section 131(1) of the Courts of Justice Act, emphasizing the principles of indemnity, reasonable expectation of costs, and proportionality.

Given the defendants' failure to dispute the plaintiff's claim, the court found the amount claimed to be reasonable and proportionate.

Costs were awarded severally, with Mr. Williams ordered to pay $18,387.81 and Mr. Hill $7,000.00.

Enbridge Pipelines Inc. sought an interim and interlocutory injunction to prevent Todd Williams and Wayne Hill from interfering with its pipeline maintenance work in the Hamilton, Ontario area.

The defendants asserted Aboriginal treaty harvesting rights under the Nanfan Treaty of 1701 as justification for their actions.

The court granted the injunction, finding that Enbridge established a strong prima facie case of trespass and irreparable harm, and that the balance of convenience favored Enbridge.

The court rejected the defendants' argument that a duty to consult and accommodate Aboriginal claims was a precondition for granting an injunction sought by a private party, emphasizing that self-help remedies are not condoned.

Following a successful motion by the defendants to prevent the plaintiffs from using extra-jurisdictional procedures to acquire documents from non-parties, the defendants sought partial indemnity costs of $75,365.38.

The plaintiffs argued for reduced costs of $15,000, citing the novelty and public interest of the issue under section 31 of the Class Proceedings Act, 1992.

The court rejected the plaintiffs' argument, finding the issue was not legally novel in a way that justified denying costs and noting the plaintiffs' conduct was improper.

The court awarded the defendants their costs as claimed.

The appellant physician appealed a penalty decision of the Discipline Committee of the College of Physicians and Surgeons of Ontario revoking his medical license.

The Committee found he engaged in unwanted touching of hospital employees and coercive sexual activity with a 17-year-old camp counsellor.

The Divisional Court dismissed the appellant's motion to adduce fresh evidence and upheld the penalty, finding the revocation was a reasonable outcome given the serious nature of the misconduct, the need to protect the public, and the lack of evidence regarding the risk of future misconduct.

The appellant appealed convictions for assault, unlawful confinement, and breach of recognizance arising from allegations made by a complainant in a former intimate relationship.

Although the court rejected the argument that the trial verdict was unreasonable, it admitted as fresh evidence the complainant's later trial testimony giving a materially different account of the incident.

Applying the Palmer framework and recantation authorities, the court held that the later sworn evidence had substantial impeachment value on the decisive issue of credibility.

The appeal was allowed and a new trial was ordered.

The applicant pipeline company sought an urgent ex parte interim and interlocutory injunction restraining unknown protesters from trespassing on a valve installation site required for pipeline infrastructure work.

Protesters had occupied the site to oppose the reversal of oil flow in a major pipeline project, delaying scheduled construction and causing economic disruption.

The court accepted that the applicant had proprietary rights through an easement and that trespass ordinarily supports injunctive relief, but emphasized that political protest engages Charter values and that protesters should have an opportunity to be heard.

Balancing property rights, economic harm, and freedom of expression, the court granted a short-term ex parte injunction due to the difficulty of identifying or serving protesters.

The injunction was limited in duration and required the applicant to return to court on notice if it sought continuation of the order.

The plaintiffs moved for security for costs under Rule 56.01(1)(d) on the basis that the defendant corporation was a shell entity with insufficient assets to satisfy a costs award.

The defendant resisted the motion by arguing that its counterclaim substantially overlapped with the main action and that the dispute would likely be stayed in favour of arbitration.

The court held that the counterclaim introduced significant new issues beyond those in the main action, including additional claims for accounting, dividends, and alleged financial misconduct, thereby increasing the plaintiffs’ litigation costs.

Applying the two‑part test for security for costs, the court found good reason to believe the defendant was a shell corporation and that the defendant failed to adduce evidence to rebut the presumption or demonstrate why security should not be ordered.

Security for costs was therefore granted and costs of the motion were awarded to the plaintiffs.

The three accused, former senior executives of Nortel Networks Corporation, were charged with two counts of fraud over $5,000.

The Crown alleged that they deliberately misrepresented Nortel's financial results by manipulating accrued liability balances to meet earnings targets and trigger bonus payments.

The court conducted a detailed review of Nortel's accounting practices, the use of accrued liabilities, and the restatements of its financial results.

The court found that the Crown failed to prove beyond a reasonable doubt that the accused deliberately misrepresented the financial results or that the financial statements were materially misstated.

The accused were found not guilty on both counts.

The applicants, minority shareholders of MI Developments Inc. (MID), brought applications under sections 104 and 127 of the Securities Act alleging that MID failed to comply with Multilateral Instrument 61-101 (MI 61-101) by not obtaining minority shareholder approval for a series of related party transactions with Magna Entertainment Corp. (MEC).

The transactions included loans, loan extensions, and debtor-in-possession financing.

The Ontario Securities Commission dismissed the applications, finding that section 104 does not apply to related party transactions.

While the Commission permitted the applications under section 127, it concluded that MID was entitled to rely on the downstream transaction exception and the market capitalization exemption under MI 61-101.

The Commission also found no prima facie case of insider trading in connection with a related trust transaction.

The appellant physicians, who performed cosmetic surgery without formal surgical residency, were investigated by the College of Physicians and Surgeons of Ontario for potential professional misconduct or incompetence.

The College sought to have investigators observe their surgical practices, which the appellants refused, arguing the governing legislation did not authorize compelled observation.

The Court of Appeal upheld the Divisional Court's decision, finding that the power to 'inquire into and examine the practice' under s. 76(1) of the Health Professions Procedural Code encompasses the direct observation of a member's practice, particularly to protect the public interest.