Leora Jackson

This is a costs endorsement following the dismissal of an appeal.

The Court of Appeal for Ontario awarded all-inclusive costs of $200,000 to the successful respondent, Ontario First Nations (2008) Limited Partnership, against the appellants, Ontario Lottery and Gaming Corporation and Her Majesty the Queen in right of Ontario.

The decision considered that this was the second level of appeal, the issues involved, and the respondent's success.

This is an appeal from a Superior Court decision upholding an arbitration award.

The arbitration panel found that Ontario and OLG breached a Gaming Revenue Sharing and Financial Agreement with the First Nations Partnership by unilaterally stopping payments of non-gaming revenue and complimentary services ("Comps") after outsourcing non-gaming amenities.

The Court of Appeal dismissed the appeals, affirming the lower court's decision that the Agreement was breached and the damages awarded were appropriate.

The court declined to rule on the standard of review for commercial arbitration decisions post-Vavilov, finding the outcome would be the same under either standard, and also declined to address the "honour of the Crown" doctrine as it was not determinative.

The defendants in a complex defamation action brought motions for the production of documents related to 'Project Maple Tree', an operation undertaken by foreign investigative agents (including Black Cube) retained by the plaintiffs.

The plaintiffs asserted solicitor-client and litigation privilege over the documents.

The court held that it had jurisdiction to hear the motions despite the stay provision in s. 137.1(5) of the Courts of Justice Act.

The court rejected the claims of solicitor-client privilege, finding the third-party investigators were not essential to the solicitor-client relationship.

The court also rejected the claims of litigation privilege for the vast majority of the documents, finding their dominant purpose was not legitimate litigation and that the 'Blank exception' applied because the agents engaged in improper conduct, including pretext stings on a former judge and opposing party employees.

The applicant target company sought specific performance of a share purchase agreement after the respondent purchaser refused to close, citing the COVID-19 pandemic.

The purchaser alleged breaches of the Material Adverse Effect (MAE), ordinary course, amortization event, and access to information covenants.

The court found that while the pandemic threatened earnings, it fell within the MAE's emergency carveout and did not disproportionately affect the target.

The target's pandemic responses, including branch access changes and accounting adjustments, were within the ordinary course of business for an economic downturn.

The court ordered specific performance of the agreement.

The appellants, Ontario Lottery and Gaming Corporation and Ontario, appealed an arbitration decision that found they breached the Gaming Revenue Sharing and Financial Agreement (GRSFA) by ceasing to share certain non-gaming and complimentary revenues with the respondent, Ontario First Nations (2008) Limited Partnership.

The Superior Court of Justice dismissed the appeal, holding that the standard of review for commercial arbitrations remains reasonableness post-Vavilov.

The court found the arbitration panel's contractual interpretation was reasonable, firmly rooted in the agreement's text and surrounding circumstances, and that the honour of the Crown doctrine was correctly applied to the government-to-government agreement.

Various defendants brought motions to strike the plaintiffs' statement of claim, which alleged civil conspiracy, defamation, intentional interference with economic relations, and unjust enrichment.

The court struck the claims for defamation, intentional interference with economic relations, and unjust enrichment against all applicants.

The civil conspiracy claim against one individual defendant (Moez Kassam) was struck, but the conspiracy claims against the remaining Anson Corporate Defendants, Adam Spears, Sunny Puri, ClaritySpring Inc., Nathan Anderson, Richard Molyneux, and Darryl Levitt were allowed to proceed.

The court also clarified that 'whistleblower' complaints to the Ontario Securities Commission are subject to absolute privilege and do not constitute the commencement of legal proceedings for the tort of abuse of process.