James Bunting

The appellants, FedEx, appealed an order certifying a class proceeding brought by the respondent, who alleged FedEx charged undisclosed and unsolicited customs brokerage fees in breach of the Consumer Protection Act.

FedEx argued the claim disclosed no cause of action, lacked common issues, and had an overly broad class definition.

The Court of Appeal dismissed the appeal, finding that the pleadings disclosed a reasonable cause of action, the systemic nature of the billing practices raised common issues, and the class definition appropriately included claims that might face limitation or jurisdictional defences, which are better addressed at trial.

The appellant landlord sought to expand a shopping centre to accommodate a new LCBO store, which required reconfiguring 36 parking spaces.

The respondent grocery store tenant successfully applied for a permanent injunction, with the application judge finding the tenant had a leasehold proprietary interest in the common parking area.

On appeal, the Court of Appeal held that the application judge erred in law, as the tenant lacked exclusive possession of the parking area.

Assuming the tenant held an easement, the Court found no substantial interference with the tenant's rights, as the reconfiguration did not significantly reduce available spaces and the tenant had no contractual right to specific spots.

The appeal was allowed and the injunction set aside.

The defendant brought an anti-SLAPP motion to dismiss the plaintiff's defamation action.

The plaintiff sued the defendant over several videos posted online that allegedly implicated the plaintiff in a conspiracy to assassinate the spiritual leader of the Gonabadi Sufis in Iran.

The court found that while the defendant's expression related to a matter of public interest, the plaintiff's defamation claim had substantial merit and the defendant's defences of justification and qualified privilege lacked a real prospect of success.

The court concluded that the public interest in permitting the action to continue outweighed the public interest in protecting the expression, as truth and justice favoured a trial on the merits.

The motion was dismissed.

The defendant Google LLC moved for summary judgment to dismiss a defamation action brought by a daycare business and its owner.

The plaintiffs alleged that defamatory and fake reviews were posted on Google's 'Local Reviews' platform by the other defendants.

Google argued it was a passive intermediary and not a publisher of the third-party content.

The court dismissed the motion, finding genuine issues of fact and law requiring a trial, particularly regarding whether Google became a publisher by failing to remove the reviews after receiving notice of their defamatory nature.

The plaintiffs were also granted leave to bring a motion to amend their Statement of Claim.

On a certification motion in a proposed national class action concerning online travel and accommodation booking websites, the moving parties alleged misleading search result, discount, and urgency practices under the Competition Act, consumer protection statutes across Canada, and unjust enrichment.

The court held the pleaded statutory and restitutionary claims were legally deficient, including because the remedies pursued were unavailable, reliance and compensatory loss were not properly established where required, and several provincial and territorial claims were not properly pleaded.

The court also held there was no some basis in fact that two or more class members suffered compensable harm, as the alleged injury was disappointment from not choosing psychologically or economically preferable accommodation.

Aggregate damages and punitive damages were not certifiable common issues, and a class proceeding was not the preferable procedure.

The plaintiffs in a class proceeding sought approval of the long-form and short-form notices to be distributed to affected class members following a previously approved settlement.

The court approved the notices, finding them to be in plain language and clear regarding participation and opt-out procedures.

The court also permitted the notices to be distributed in English only, as the defendant only provided services in English.

The plaintiff brought a motion to enjoin unidentified defendants (John Doe and Jane Doe) from posting defamatory online reviews and to require the removal of existing reviews.

The court granted the injunction against the unidentified authors.

Additionally, the court set aside its previous injunction and Norwich Order against Google after the parties jointly submitted that Google had not been properly served by email under Rule 16.01.

A new consent order regarding Google's disclosure of the reviewers' identities was issued.

The plaintiff brought a motion to certify a class action against the manufacturers of COLD-FX products, alleging that representations that the products were 'proven by science' or 'clinically proven' to reduce cold and flu symptoms were false and misleading.

The court found that the plaintiff met all the requirements for certification under section 5 of the Class Proceedings Act.

The court held that the claims under the Consumer Protection Act, the Competition Act, and for unjust enrichment disclosed valid causes of action, as reliance is not required for these claims.

The court certified the class and the proposed common issues against Bausch Health Canada Inc. and Valeant Canada LP, finding that a class proceeding was the preferable procedure.

The plaintiffs in a proposed consumer protection and competition law class action sought court approval of a third-party funding agreement with Harbour Fund IV.

The plaintiffs, who are of modest means, required the funding to prosecute the action against several large travel booking companies.

The court applied the four-factor test for third-party funding and found the agreement was not champertous, was necessary for access to justice, and adequately protected the defendants' interests.

The motion was granted and the funding agreement was approved.

The respondent, Google Canada, brought a motion in writing on consent to dismiss the application against it and to dismiss the applicant's motion to add proposed respondents.

The court adjourned the motion, finding several procedural deficiencies.

Specifically, the underlying application and motion were previously stayed and the stay had not been lifted, the moving party failed to provide necessary evidence or copies of the originating processes, and there was no basis to proceed without notice to the other named respondents.

The plaintiffs, three Russian cyclists, sued the World Anti-Doping Agency (WADA) and Richard McLaren for damages, alleging they were falsely implicated in a state-sponsored doping scheme and wrongfully excluded from the 2016 Rio Olympic Games.

The defendants moved for summary judgment to dismiss the action on the grounds that the Court of Arbitration for Sport (CAS) had exclusive jurisdiction and that the action was an abuse of process.

The Superior Court of Justice granted the motion, finding that the essential character of the dispute fell within the broad arbitration clauses of the Olympic Charter and the athletes' entry forms.

The court also held that the action was an abuse of process as the plaintiffs were attempting to re-litigate a dispute they had already brought before the CAS.

The plaintiff sued the defendant over disputed online advertising charges billed to its credit card.

The defendant moved to stay the action based on a forum selection clause in its terms of service requiring disputes to be litigated in California.

The plaintiff brought a cross-motion to add the credit card company as a defendant and amend its claim.

The court dismissed the motion to add the credit card company, finding the claim premature as the plaintiff must first prove its claim against the defendant.

The court granted the defendant's motion to stay the action, holding that the forum selection clause was valid, enforceable, and not unconscionable, and that the plaintiff failed to show strong cause to avoid it.

The moving defendants sought an order that further particulars of an injurious falsehood counterclaim be disclosed only subject to an undertaking limiting use of the information to the litigation.

The court held that the demanded particulars were material facts that had to be pleaded and filed, and were therefore subject to the open court principle.

The deemed undertaking rule did not apply to pleadings, public interest privilege did not extend to protect sources of private litigants, and there was no gap in the Rules warranting use of inherent jurisdiction.

The motion was dismissed and costs of $5,000 were awarded to the responding plaintiff.

The applicant sought remedies under Part VII.1 of the Competition Act after the respondents advertised that their wireless service had fewer dropped calls than competitors without conducting adequate and proper testing beforehand.

The court previously found the respondents engaged in reviewable conduct under s. 74.01(1)(b) for making an untested performance claim, although the applicant failed to prove the claim was false or misleading under s. 74.01(1)(a).

In determining remedies, the court assessed proportionality and the factors in s. 74.1(5), including market reach, financial position, and the fact that later testing substantiated the claim.

The court held that post-claim substantiation does not excuse the statutory requirement for prior testing but is relevant to penalty quantum.

An administrative monetary penalty of $500,000 was imposed, while the request for a 10‑year prohibition order was denied.

Bell Canada brought an application to strike two arbitration proceedings commenced by Plan Group Inc. (PGI) and its predecessor partnership.

PGI brought a motion to stay the application in favour of arbitration.

The court found that the first arbitration was a nullity because it was commenced by a dissolved partnership that no longer existed.

The court also found that the second arbitration was statute-barred under the Limitations Act, 2002, as the arbitration agreement did not contain clear and express language contracting out of the statutory limitation period.

The court declined to stay the application, finding that the issues were questions of law appropriate for summary judgment under the Arbitration Act, 1991.

The application was granted and the motion to stay was dismissed.