Linda R. Rothstein

The defendants moved to strike the plaintiff's claim for abuse of process, arguing that the prior decision in Leavens v. Schwartz (the "Shotgun Decision") had finally disposed of the matter.

The plaintiff sought to challenge a buy/sell transaction that had been enforced by the court, alleging that the defendants had engaged in a secret investment arrangement with third-party financiers without disclosure.

The court found that the claim constituted an abuse of process because the underlying subject matter was identical to the prior proceeding, the issues could have been raised before the prior judge, and the plaintiff was essentially seeking to undo a final court decision with which he was dissatisfied.

The court struck the claim without leave to amend.

This decision concerns a class action brought by victims and families of the 2018 Danforth Avenue shooting against Smith & Wesson Corp., alleging negligence for failing to implement authorized user technology in its handguns.

The Court of Appeal for Ontario held that the plaintiffs’ negligence claim should proceed as a class action, finding that the claim disclosed a reasonable cause of action and that the certification judge erred by applying a merits-based test at the certification stage.

The court struck the strict liability and public nuisance claims, holding that Canadian law does not recognize such claims against product manufacturers in these circumstances.

The representative plaintiffs, on behalf of a class of Ontario franchisees, sought production of documents from the defendants (Shoppers Drug Mart Inc. and Shoppers Drug Mart (London) Ltd.) to support a “bottom-up” damages assessment for individual class members under section 25 of the Class Proceedings Act, 1992.

The Court of Appeal had previously found Shoppers liable for breach of contract and duty of good faith, and ordered that damages be determined through an individual issues process.

The defendants opposed production on grounds of proportionality, prematurity, and lack of expert evidence.

Justice Glustein granted the motion, ordering production of the requested documents for all class members subject to the 2002 Associate Agreement for the relevant years, finding the request reasonable and proportionate in light of the litigation’s scope and the evidence before the court.

The applicant, Vivian Dubrofsky, sought interim injunctive relief under section 248(3) of the Business Corporations Act (Ontario) to restrain her mother, Maryka Weisz, from withdrawing funds from Art Tile Limited except for ordinary course expenses, pending final disposition.

The court dismissed the motion, finding that while there was a serious issue to be tried and the applicant met the evidentiary threshold, she failed to establish irreparable harm.

The court ordered that the Westmore Property not be encumbered and that certain trust funds remain in trust, but otherwise dismissed the requested relief.

The court considered costs arising from the adjournment of a motion to remove Osler, Hoskin & Harcourt LLP as counsel of record for the Defendants.

The adjournment was necessitated by privilege issues raised in the Plaintiff’s reply affidavit, which referenced potentially privileged communications.

The Defendants sought full or substantial indemnity costs, arguing the adjournment was predictable and should not have required a full day’s hearing.

The court found that while the Plaintiff’s position had little merit, it was not taken in bad faith or with egregious conduct.

Costs were awarded to the Defendants on a partial indemnity scale in the amount of $66,658.81.

The Plaintiff brought a motion to remove Osler, Hoskin & Harcourt LLP as counsel for the Defendants in a proposed investors' class action, citing conflicts of interest and allegations of professional misconduct stemming from Osler's extensive prior roles with the now-insolvent Wayland Group Corp. and its former directors.

The motion was adjourned because the Plaintiff's supplementary affidavit introduced serious new allegations and referenced potentially privileged documents received inadvertently.

The court ordered the Plaintiff to identify and describe the privileged documents in a new affidavit, allowing the Defendants to file supplementary materials and conduct cross-examinations.

The court emphasized the necessity of addressing privilege issues properly, despite the resulting delay and expense.

The Law Society of Ontario (LSO) brought an application for an interlocutory injunction to prevent Metrolinx from removing mature trees and commencing construction of a subway station on the historic Osgoode Hall site.

The LSO argued that Metrolinx's actions required municipal approval under s. 33(1) of the Ontario Heritage Act.

The court dismissed the application, finding no serious issue to be tried because s. 33(1) does not apply to neighboring property owners or to prescribed public bodies like Metrolinx, which are governed by a separate statutory regime.

The court also found that the balance of convenience favoured allowing the critical public transit project to proceed.

The appellant, Glassdoor Inc., appealed a motion judge's order denying its anti-SLAPP motion under s. 137.1 of the Courts of Justice Act to dismiss a defamation action.

The action stemmed from an anonymous critical employee review posted on Glassdoor's website about the respondent, Echelon Environmental Inc. The appellant argued the review related to a matter of public interest.

The Court of Appeal upheld the motion judge's finding that the review, concerning private complaints about a company providing specialized services to a small number of customers, did not relate to a matter of public interest.

The appeal was dismissed, and leave to appeal the costs order was also dismissed.

This is a costs endorsement following the dismissal of the plaintiffs' motion for recusal of the case management judge.

The plaintiffs alleged actual and perceived bias, which the court found to be unsubstantiated.

The defendants sought substantial or partial indemnity costs for their opposition to the recusal motion.

The court awarded the defendants partial indemnity costs, finding their participation necessary and appropriate, and rejected the plaintiffs' arguments for no costs based on access to justice or financial hardship without evidentiary support.

The court declined to award substantial indemnity costs as a reprimand for unsubstantiated bias allegations, emphasizing that costs awards should be reasonable and not punitive.

The plaintiffs filed affidavits containing confidential information about a minor child (Student Q) and her family, breaching a prior confidentiality order (Penny Order).

The defendants and Student Q's family successfully moved to have these affidavits removed/redacted.

This endorsement addresses the costs of that motion.

The court found the plaintiffs' conduct reprehensible and deserving of reprimand, rejecting their arguments of inadvertence and access to justice without evidence of impecuniosity.

Substantial indemnity costs were awarded to Student Q's family, and reduced costs to the defendants, totaling $41,633.44, payable by the plaintiffs.

The court issued supplementary reasons regarding a motion for disclosure of non-parties to whom the plaintiffs had disseminated unredacted litigation documents identifying minor defendants.

Despite the plaintiffs' failure to provide submissions and their stated intent to seek leave to appeal, the court proceeded to decide the outstanding issue.

The court found that the plaintiffs had breached an interim publication ban and engaged in a strategy to release minor defendants' identities to the press.

To ameliorate the harm and ensure the efficacy of the publication ban, the court ordered the plaintiffs to disclose under oath the names and contact details of all recipients of the identifying documents.

The appellant wife sought damages for conspiracy against her husband and his family, alleging they diverted business proceeds to reduce her support payments.

The motion judge granted partial summary judgment dismissing the conspiracy claim and awarded substantial costs against the wife.

On appeal, the Court of Appeal found that the motion judge erred by improperly bifurcating issues, misapplying the tort of conspiracy in the family law context, and making palpable factual errors regarding critical evidence.

The Court emphasized that the tort of conspiracy is a valuable tool to deter non-disclosure and ensure collectibility of judgments in family law.

The appeal was allowed, the partial summary judgment and associated costs orders were set aside, and a new trial was ordered before a different judge.

The defendants and the non-party family of Student Q brought a motion to remove and/or redact certain affidavits and exhibits filed by the plaintiffs, citing breaches of a prior confidentiality order (the "Penny Order") protecting minor children's identities and confidential school records.

The court found that the plaintiffs' affidavits contained information identifying Student Q and other minor students, and that the confidential school records required enhanced protection.

The court granted the defendants' primary relief, striking the main affidavit and ordering its removal, imposing strict protocols for future filings, and directing the plaintiffs to retrieve and destroy copies of the affidavit disseminated to non-parties.

The court heard urgent motions to seal the file and ban publication of minor parties' identities in a bullying lawsuit.

The plaintiffs, Mother Doe and Jane Doe, initially sought broad protection but then released unredacted pleadings to the press, identifying the minor defendants.

The court found the plaintiffs' conduct reprehensible, rejecting their late-filed affidavits and expunging other materials.

Applying the Dagenais/Mentuck test, the court granted a publication ban protecting minors' names, school attendance dates, and family details, but allowed publication of ages, grade levels, and general details of alleged bullying and harm, as these were deemed not to identify the minors to the general public.

Substantial indemnity costs were awarded against the plaintiffs due to their abusive litigation tactics and breaches of court orders.

The plaintiffs brought an urgent motion for the recusal of the case management judge, Kimmel J., alleging actual and perceived bias.

The grounds for recusal included a perceived racist attack by opposing counsel against the plaintiff Mr. Rogerson, the judge's alleged annoyance with the plaintiffs and their counsel, making orders beyond jurisdiction, and adopting an investigative role.

The judge dismissed the motion, finding no compelling evidence of actual bias or a reasonable apprehension of bias.

The court emphasized that subjective perceptions of bias are insufficient and that the high burden on the moving party to demonstrate a real likelihood of bias was not met.

The judge also noted that displeasure with a ruling or judicial admonishment for non-compliance does not constitute grounds for recusal, and that litigants are not entitled to choose their judge.

The defendants brought an urgent motion to remove, redact, and seal affidavits and exhibits filed by the plaintiffs to protect the confidentiality of minor students.

The plaintiffs brought a cross-motion for the case management judge's recusal, which was dismissed.

The plaintiffs then sought an adjournment of the defendants' motion due to late filings.

The court granted the adjournment on the condition that the entire court file be sealed temporarily, balancing the urgency of protecting minors' privacy interests against the open court principle, particularly given the operational constraints imposed by the COVID-19 pandemic.

The plaintiffs sought to dismiss the defendants' proposed motion as not urgent, frivolous, vexatious, or an abuse of process under Rule 2.1.01(2) of the Rules of Civil Procedure.

The court reviewed the plaintiffs' arguments and found that the defendants' motion was urgent and not frivolous on its face.

The judge rejected the plaintiffs' request for dismissal, ruling that the motion met the requirements of the Notice to the Profession and was to be heard on its merits.

An online retailer of prescription eyewear based in British Columbia appealed an application judge's decision that found it was in breach of Ontario's Regulated Health Professions Act by dispensing prescription eyewear to Ontario customers without involving Ontario-licensed health care providers.

The Court of Appeal allowed the appeal, finding that the application judge erred in determining that sufficient constitutional connection existed between the respondent's online sales and Ontario's regulatory scheme.

The court held that while delivery of prescription eyewear falls within the continuum of dispensing activities, the mere delivery of product ordered online and processed in compliance with British Columbia's regulatory regime does not establish sufficient connection to apply Ontario's controlled act provisions to an out-of-province supplier.

The court emphasized that the discrete act of delivery has primarily a commercial aspect rather than a health care one, and that applying Ontario's legislation would effectively grant a monopoly over the importation of prescription eyewear into Ontario.

The Children's Lawyer for Ontario appealed a Divisional Court decision upholding an Information and Privacy Commissioner's order that the Ministry of the Attorney General (MAG) had custody or control of the Children's Lawyer's litigation records relating to child clients, and therefore such records were subject to freedom of information access requests under FIPPA.

The Court of Appeal allowed the appeal, holding that the Children's Lawyer operates independently from MAG with respect to her core functions of representing children, and therefore MAG does not have custody or control of child client records.

The court emphasized the importance of confidentiality in the Children's Lawyer-child relationship to the proper functioning of the legal system and the best interests of children.

Following a successful motion by non-parties to set aside an ex parte Anton Piller order, the court addressed the issue of costs.

The successful non-parties sought substantial indemnity costs, arguing that the order should never have been obtained and that their legal expenses were reasonable given the urgency and intrusiveness of the order.

The applicants opposed substantial indemnity costs and argued that the matter had been overworked and that no misconduct justified enhanced costs.

The court held that although the Anton Piller order had been set aside, there was no intentional or improper conduct in obtaining the ex parte order that would justify substantial indemnity costs.

Costs were therefore awarded on a partial indemnity basis.