Matthew Ian Milne-Smith

The appellants appealed the motion judge's decision to strike paragraph 25 of their statement of claim, which alleged that the respondent West Face distributed a defamatory report to unnamed third parties whose identities were known to West Face.

The appellants had already established a prima facie case of defamation by alleging publication to named persons at a specified time and place.

The Court of Appeal held that the motion judge erred in striking the paragraph, finding that the appellants had demonstrated they were proceeding in good faith with a prima facie case and were not on a fishing expedition.

The court allowed the appeal and set aside the order striking paragraph 25.

In a proposed national class action alleging price-fixing in the foreign exchange market, the plaintiffs obtained an ex parte subpoena in the United States under 28 U.S.C. §1782 to compel pre-certification discovery from a non-party, Bloomberg LP.

The defendants brought a motion to enjoin the plaintiffs from taking any steps in furtherance of the subpoena without authorization from the Ontario court.

The court granted the motion, finding that the plaintiffs had circumvented Ontario's rules and jurisprudence regarding the discovery of non-parties and pre-certification discovery in class actions.

The court held that it has jurisdiction to control its own process and regulate the examination of non-parties for an Ontario action.

The plaintiffs brought a proposed class action alleging that the defendant financial institutions conspired to fix prices in the foreign exchange (FX) market.

The plaintiffs reached settlement agreements with three groups of defendants (Goldman Sachs, JPMorgan, and Citi) totaling $39.25 million.

The plaintiffs moved for an order certifying the action as a class proceeding for settlement purposes against these settling defendants and approving the notice plan.

The court found that the criteria for certification under section 5 of the Class Proceedings Act, 1992 were satisfied and granted the order.

The applicant, an Indigenous person, sought an urgent interim and interlocutory injunction to restrain the broadcast and display of the Cleveland Indians' team name and 'Chief Wahoo' logo during the American League Championship Series in Toronto, pending human rights complaints.

The court found there was a serious issue to be tried regarding whether the name and logo constituted discrimination in the provision of a service.

However, the court dismissed the application because the applicant failed to establish irreparable harm, noting the delay in bringing the application, and found the balance of convenience favoured the respondents due to the material prejudice of last-minute broadcast and uniform changes.

The plaintiffs brought a class action alleging that numerous financial institutions conspired to manipulate the foreign exchange market.

The plaintiffs reached early settlements with three groups of defendants (UBS, BNP, and Bank of America) totaling $15,950,000.

The plaintiffs sought court approval of the settlements and Class Counsel's fee request.

The court approved the settlements, finding them fair, reasonable, and in the best interests of the class, particularly given the litigation risks and the value of the settling defendants' cooperation.

The court also approved Class Counsel's fee request of $3,987,500 plus disbursements.

The moving party, Zayo Inc., previously had its motion dismissed.

The motion sought an order for the Monitor to pay Zayo $1,228,799.81 from the proceeds of the sale of the applicants' assets.

In this costs endorsement, Zayo argued that costs are not the norm in CCAA proceedings.

The court disagreed, finding this to be an exceptional case where the normal rule of costs should apply, as the real opponents (the secured lenders and the purchaser) were not insolvent.

The court awarded costs against Zayo, fixing them at $30,000 each for Primus and BMO, and $20,000 each for Birch and the Monitor.

Zayo Inc. brought a motion seeking an order for FTI Consulting Canada Inc., as Monitor for the Primus Entities, to pay Zayo $1,228,799.81 from asset sale proceeds.

This amount represented pre-CCAA filing arrears owed to Zayo under contracts assigned to Birch Communications Inc. Zayo argued the consent process for assignment was not transparent or fair, alleging it was misled into consenting without realizing it could have leveraged Section 11.3(4) of the CCAA to demand full payment of arrears.

The court dismissed the motion, finding the consent process fair and transparent, noting Zayo's sophistication and lack of due diligence.

The court also found that granting the order would cause prejudice to secured lenders and Birch, as it would require varying existing orders and disrupt a closed transaction.

On a rule 21.01 pleadings appeal, estates alleged that a problem gambler stole estate funds and lost substantial sums at casinos operated by the respondent.

The majority held it was not plain and obvious that the claims in knowing receipt, unjust enrichment, and negligence were bound to fail, given allegations that the casino knew of the gambler's addiction, knew problem gamblers sometimes steal to fund gambling, and accepted unusually large gambling losses without inquiry.

The court held the motion judge failed to consider whether juristic reasons for enrichment could be vitiated by unconscionability and held Ontario law did not definitively foreclose a duty of care to victims of problem gamblers.

The appeal was allowed, the motion to strike was dismissed, and the action was permitted to proceed.

The plaintiffs in a proposed class action regarding beer pricing and market allocation in Ontario sought leave under s. 29 of the Class Proceedings Act to discontinue the action against the LCBO and treat it as an unnamed co-conspirator.

The court dismissed the motion as premature, finding that the discontinuance should occur, if at all, only after the close of pleadings, as the remaining defendants had not yet filed statements of defence and might assert cross-claims or third-party claims against the LCBO.

The court also found the evidentiary record inadequate to justify discontinuance.

Mid-Bowline Group Corp. applied under s. 182 of the OBCA for approval of a plan of arrangement to sell WIND Mobile to Shaw Communications for $1.6 billion.

The Catalyst Capital Group Inc. opposed the plan, asserting a constructive trust claim over shares held by West Face Capital Inc., alleging misuse of confidential information.

The court found the plan of arrangement fair and reasonable, as it allowed the sale to proceed while preserving Catalyst's right to pursue its claims against West Face for profits and tracing.

The court rejected Catalyst's demand for a full trial, citing the need for a timely resolution, and ordered an expedited four-day hearing for the constructive trust issue.

The moving party sought an extension of time to bring a motion for leave to appeal two interlocutory orders: an order dismissing a request for forensic imaging of the responding parties' servers and devices, and an order dismissing a contempt motion.

The Divisional Court dismissed the motion for an extension of time, finding that the moving party failed to adequately explain its lengthy delay in pursuing the correct appeal route.

Furthermore, the court concluded that the proposed appeals lacked merit, as the motions judge correctly applied the legal tests for forensic imaging and civil contempt, and there was no good reason to doubt the correctness of the orders.

The plaintiffs were successful at trial, receiving an award of over $2.2 million USD based on findings of active misrepresentations and material non-disclosures by the defendants.

The plaintiffs sought full indemnity costs of $960,432.26, while the defendants argued for substantial indemnity costs of $500,000.

The court found that the defendants' continued deceit during the litigation and trial constituted reprehensible conduct justifying an extraordinary award.

The court awarded the plaintiffs full indemnity costs in the fixed amount of $960,432.26.

Following the dismissal of motions seeking an interlocutory voting injunction, an imaging order, and a contempt order, the court determined the appropriate costs award.

The unsuccessful moving party argued that most costs should be deferred to trial because the evidence overlapped with issues to be litigated on the merits.

The court rejected this submission, applying the principle that a successful defendant resisting interlocutory injunctive relief is generally entitled to costs payable forthwith.

After considering factors under Rule 57.01 of the Rules of Civil Procedure, including the high stakes of the motions, the absence of legal complexity, and certain conduct contributing to the contempt motion, the court fixed reduced partial indemnity costs for each successful defendant.

Following dismissal of a civil action against a casino operator arising from a fraudster gambling stolen funds, the defendant sought partial indemnity costs of the action.

The plaintiffs argued the case raised a novel legal issue and that awarding costs would unfairly compound the losses already suffered through the fraud.

The court considered the access to justice principles discussed in Boucher v. Public Accountants.

In the circumstances, the court exercised its discretion to decline awarding costs.

No costs were ordered despite the defendant’s success in the underlying action.

The moving party sought three forms of relief in a commercial dispute involving alleged misuse of confidential information: an interlocutory injunction preventing a shareholder from voting its 35% interest in a telecommunications company, an order authorizing forensic imaging and review of the defendants’ corporate servers and devices, and a finding of contempt for alleged breach of a prior consent order.

The court held that the requested voting injunction could not be granted because the moving party failed to provide the mandatory undertaking as to damages under Rule 40.03 of the Rules of Civil Procedure and failed to demonstrate irreparable harm or a favourable balance of convenience.

The requested imaging order was refused because there was no evidence that the responding party had failed to comply with its document production obligations or attempted to conceal or destroy electronic evidence.

The contempt motion also failed because the alleged acts—deleting personal browsing history and installing software capable of secure deletion—did not establish beyond a reasonable doubt that relevant information had been intentionally destroyed in breach of the consent order.

Various parties brought motions seeking reconsideration or clarification of a prior joint allocation decision determining the distribution of $7.3 billion in escrow among debtor estates in multinational insolvency proceedings.

The moving parties argued that aspects of the allocation methodology—including treatment of bond guarantee claims, certain asset sale proceeds, intercompany claims, tax claims, and settled claims—required amendment or clarification.

The court reiterated that reconsideration is an exceptional remedy and rejected most requests because the issues either had been addressed at trial or could have been raised earlier.

Limited clarification was granted regarding the treatment of bondholder claims against guarantors and recognition of certain court‑approved settled pre‑filing claims that had been paid.

Other requested clarifications or amendments were denied.

The defendant casino operator moved under rule 21.01 to strike a claim brought by estate plaintiffs whose funds had been fraudulently obtained and then lost through gambling.

Applying the Anns/Cooper framework, the court held the pleadings did not disclose sufficient proximity to establish a duty of care to problem gamblers, and therefore no derivative duty to the plaintiffs.

The unjust enrichment, conversion, and knowing receipt claims were also untenable because the defendant had valid gambling contracts with the gamblers, was a bona fide purchaser without notice, and had no obligation to investigate the source of patrons' funds.

The action was dismissed without leave to amend.

In a joint cross-border insolvency trial concerning the allocation of approximately $7.3 billion in lockbox funds from the sale of global business lines and residual intellectual property, the court interpreted the Master R&D Agreement as an operating transfer-pricing document that granted limited licence rights but did not govern post-insolvency allocation.

The court rejected both the position that one Canadian debtor owned all sale proceeds by virtue of legal title and the position that the EMEA debtors jointly owned all intellectual property by operation of law.

Applying unjust enrichment principles and the broad remedial jurisdiction available in CCAA proceedings, the court held that a just result required a pro rata allocation among debtor estates based on allowed claims.

The court further directed that duplicate claims be counted only once for allocation purposes, that intercompany claims be included, and that interim distribution proposals be brought forward.

The appellants sought to certify a class action against the Ontario Lottery and Gaming Corporation on behalf of problem gamblers who had signed self-exclusion forms but were subsequently permitted to enter gambling venues and suffered losses.

The action alleged breach of contract, negligence, and occupiers' liability.

The Court of Appeal upheld the lower courts' decisions denying certification, finding that the claims required highly individualized inquiries into each class member's vulnerability, gambling history, and personal autonomy.

The court concluded that a class proceeding was not the preferable procedure as the common issues would not significantly advance the litigation.

Two appeals were brought from the decision of a Claims Officer in insolvency proceedings under the Companies’ Creditors Arrangement Act concerning disputed landlord claims arising from leases originally entered in 1979.

One appellant challenged the Claims Officer’s jurisdiction to permit an amendment to a proof of claim and argued that the landlord failed to provide clear and timely notice of an intention to seek prospective damages following lease repudiation.

The other appellant argued that its claim was wrongly disallowed on the basis that notice of its intention to claim damages was untimely and prejudicial to the assignor tenant.

The court held that the Claims Officer had jurisdiction under the claims order to permit amendments and determine procedural matters and that the notice given by one landlord was sufficient.

The court also held that the second landlord’s delayed notice, after entering into a new lease in mitigation, prejudiced the assignor and justified disallowance of its claim.

Both appeals were dismissed.