Matthew R. Law

The plaintiffs, shareholders and creditors in Mobilicity, a wireless telecommunications company, sued the federal government for negligence and negligent misrepresentation arising from the 2008 AWS spectrum auction.

The plaintiffs alleged that Industry Canada represented that spectrum licences acquired at auction would be transferable to incumbent carriers after a five-year moratorium, and that they relied on this representation to invest approximately $250 million in equity and $95 million in debt to capitalize Mobilicity and bid for spectrum licences.

The plaintiffs further alleged that in 2013, the government unilaterally changed the transfer framework to prohibit transfers to incumbents, and in 2014-2015 interfered with Mobilicity's sales process through threats, media manipulation, and regulatory delay.

The court found the government liable for negligence and negligent misrepresentation, holding that it owed a duty of care to the plaintiffs based on specific representations made to induce investment, and that it breached that duty through the implementation of the 2013 Transfer Framework and subsequent interference in the sales process.

The court awarded damages based on a "but for" analysis, calculating what the plaintiffs would have earned in alternative investments had they not relied on the government's representations.

The Attorney General of Canada sought to reconsider a mid-trial ruling on solicitor-client privilege, requesting leave to file a new affidavit to support their claim.

The plaintiffs opposed this request.

The court declined to exercise its discretion to revisit the ruling, emphasizing the importance of finality in trial proceedings and noting that the issue had been fully argued previously.

The Attorney General was directed to forthwith produce the unredacted documents as per the original ruling.

The parties to a putative class action agreed to discontinue the action with prejudice, as similar claims were being pursued in a proposed class proceeding in British Columbia.

The court approved the discontinuance pursuant to s. 29(1) of the Class Proceedings Act, 1992, and dispensed with the requirement to give notice to the class, noting the early stage of the proceeding and the continuation of the claims in British Columbia.

During a complex commercial trial involving the auction of wireless spectrum licences, the plaintiffs challenged the defendant's assertion of solicitor-client privilege over redacted portions of nine documents.

The defendant argued the challenge required leave under Rule 48.04 as the action had been set down for trial.

The court held that a trial judge has broad discretion to order production of non-privileged documents at any time under Rule 30.04(5) without leave, but would have granted leave in the interests of justice regardless.

After inspecting the unredacted documents, the court found that while some redactions properly protected legal advice, others merely reflected policy discussions or operational decisions that referenced legal risks, which do not attract privilege.

The defendant was ordered to produce the improperly redacted portions.

The moving parties sought leave to appeal three orders of Morgan J. The Divisional Court dismissed the motion for leave to appeal and awarded costs to the respondent in the amount of $35,500.

The Plaintiff, Nordik Windows Inc., was successful in a certification motion and related motions.

This endorsement addresses the costs for these motions, which involved two rounds of hearings due to a recusal by the initial judge.

The court determined the appropriate costs, considering the re-usable work from the first hearing and the work for the second hearing, ultimately awarding the Plaintiff $1,000,000.00 in all-inclusive costs.

This case concerns a re-hearing of a certification motion for a class action against Aviva Insurance Company of Canada, Aviva General Insurance Company, and Aviva Canada Inc. regarding business interruption insurance claims arising from the COVID-19 pandemic.

The plaintiff, Nordik Windows Inc., sought to certify a class of businesses whose claims were denied or not submitted due to the defendants' alleged blanket denial policy.

The defendants brought cross-motions for summary judgment against Nordik and a declaration concerning the tolling of the limitation period.

The court certified the class action, dismissed the defendants' summary judgment and limitation tolling motions, and allowed the addition of three new representative plaintiffs (Cash and Carry Inc., Hangar9 Studios Inc., and Real Food for Real Kids Inc.).

The decision addresses the adequacy of the representative plaintiff, the identifiable class, and the common issues, particularly regarding notice requirements and the interpretation of insurance policy clauses in the context of pandemic-related business closures.

The moving parties brought a motion to extend the time to bring a motion for leave to appeal from a decision of Chalmers J. dated June 28, 2021, and for leave to appeal.

The Divisional Court granted the extension of time but dismissed the motion for leave to appeal, awarding costs of $5,000 to the responding party.

The plaintiff brought a motion to add three additional representative plaintiffs during a certification hearing for a class action regarding COVID-19 business interruption insurance claims.

The court found that the original plaintiff, Nordik Windows Inc., had an arguable cause of action and was a suitable representative plaintiff.

The court also found that the three proposed additional plaintiffs—Hangar9 Studios Inc., Cash and Carry Inc., and Real Food for Real Kids Inc.—had viable causes of action and met the requirements under s. 5(1)(e) of the Class Proceedings Act.

The class action was fully certified with all four as representative plaintiffs.

The plaintiffs brought motions to certify three proposed class actions against Aviva Insurance for the blanket denial of coverage for COVID-19-related business loss claims.

The claims focused on 'restricted access' and 'negative publicity' coverage provisions in Aviva's standard-form policies.

The court found that the requirements for certification under the Class Proceedings Act were met, noting the commonality of the standard-form policies and the identical denial letters.

The two Lerners Actions were certified, and the Nordik Action was conditionally certified pending a motion regarding the representative plaintiff.

The plaintiff real estate law firm sought an interlocutory injunction to prevent the defendants from terminating its access to 'Conveyancer', a mission-critical software platform.

The defendants had terminated access after learning the plaintiff was developing a competing software product.

Applying the RJR MacDonald test, the court found a serious issue to be tried regarding a prior commitment not to terminate and good faith dealings.

The court also found the plaintiff would suffer irreparable harm from the inability to close transactions, and the balance of convenience favoured the plaintiff.

The injunction was granted until the plaintiff transitioned to its new software or December 31, 2021.

The plaintiffs moved to remove the defendant's designated representative for examination for discovery, Peter Hill, due to an irreconcilable conflict of interest.

Hill had a lucrative consulting contract with one of the incumbent telecommunications providers whose conduct was central to the action, and his contract required him to prefer his client's interests.

The court found that Hill's contractual obligations and his evasive testimony during discovery demonstrated a preference for the incumbent's interests over his duties as a witness, rendering him a demonstrably unsatisfactory representative.

The motion was granted, and Hill was ordered to be replaced by Kelly Gillis or another suitable witness.

The Estate Trustee During Litigation (ETDL) for the estate of Elias Gefen brought a motion seeking payment of his significant fees and disbursements from disputed estate assets, a priority charge on these assets, and permission for interim payments.

The motion was supported by Harry Gefen and the estate of Yehuda Gefen, and opposed by Henia Gefen, Harvey Gefen, and a non-party co-tenant.

The court found that the ETDL was entitled to payment from the 'Property Interest' (disputed assets) and a charge on it, interpreting the original appointment order broadly to include assets with contingent estate interests.

The court denied the ETDL's request to further mortgage the properties to raise funds, citing potential adverse effects on non-parties.

The ETDL was granted the right to make interim payments from available distributions, subject to a final passing of accounts.

Costs were awarded against the opposing parties personally and the balance from the Estate.

The defendant Casboro Industries Limited brought a motion for security for costs against the plaintiff AAD Investments Inc. under Rule 56.01(1)(d).

The court applied a two-step test, finding that the defendant met its initial onus by demonstrating the plaintiff was a corporation with insufficient assets in Ontario to cover an adverse cost order.

The plaintiff failed to rebut this, as its affidavit evidence regarding assets was found to be materially misleading and false, and it did not establish impecuniosity or a high chance of success.

The court granted the motion, ordering the plaintiff to post $150,000 in security for costs in instalments and pay $23,000 in costs for the motion.

The appellant, a lawyer, appealed a finding of professional misconduct by the Law Society Appeal Panel related to his uncivil in-court conduct during a lengthy securities fraud trial.

The appellant argued that trial judges, not the Law Society, should oversee in-court conduct and that the Appeal Panel's test for incivility failed to protect zealous advocacy.

The Court of Appeal held that the reasonableness standard of review applied to the Appeal Panel's decision.

The Court found that the Law Society has the statutory authority to discipline lawyers for in-court incivility, independent of a trial judge's actions.

The Court upheld the Appeal Panel's test for incivility and its finding that the appellant's repeated, unfounded allegations of prosecutorial misconduct constituted professional misconduct.

The appeal was dismissed.

The defendant sought leave to appeal an order dismissing a motion to strike or stay an amended statement of claim.

The underlying action alleged that government representations induced the plaintiffs to invest in a telecommunications company and that subsequent government conduct destroyed the value of the investment, causing significant losses.

The moving party argued the claim was derivative in nature and that several pleaded causes of action disclosed no reasonable cause of action.

The court held that the stringent test for leave to appeal under Rule 62.02(4)(b) was not met because there was no reason to doubt the correctness of the motion judge’s decision.

Although the pleadings raised novel and important legal issues, they were not plainly and obviously doomed to fail and should proceed on a full evidentiary record.

During an ongoing civil trial involving dealership market allocation disputes, the defendant sought permission to rely on a second supplemental expert report and to introduce maps and charts derived from previously discovered market study data.

The plaintiff argued the late expert report constituted trial by ambush and violated prior scheduling orders.

The court held that the supplemental expert opinion properly responded to new expert evidence and newly discovered data introduced during the proceedings, and its admission would not cause unfair prejudice.

The court also permitted the introduction of charts and maps derived from historical data for explanatory purposes, while refusing to authorize a new expert report from a non-designated witness responding to the opposing expert.

On a summary judgment motion arising from a licensing agreement for milk with specified DHA and Omega3 content, the moving party sought payment of outstanding invoices and dismissal of a counterclaim alleging fraudulent and negligent misrepresentation, deceit, fraudulent concealment, and breach of contract.

The responding party alleged that the moving party knew the milk could not be used to market cheese as “Omega3 Cheese” after regulatory scrutiny, but adduced no evidence proving such knowledge or any actionable representation.

Applying the post-Hryniak summary judgment framework, the court held the debt claim was established and that the counterclaim rested on unsupported allegations rather than evidence of a triable issue.

Summary judgment was granted for the unpaid amount plus prejudgment interest, the counterclaim was dismissed, and costs were awarded on a partial indemnity basis.

Following a complex motion involving amendments to a statement of claim and issues relating to government funding of a transportation consortium’s defence, the court addressed costs among multiple parties.

The moving plaintiffs were successful in obtaining leave to amend their claim and to add the provincial government as a defendant, but were unsuccessful in obtaining litigation funding from the government.

The court applied the principles under Rule 57.01 of the Rules of Civil Procedure, emphasizing that costs must be fair and reasonable rather than reflective of actual legal fees incurred.

Costs of $150,000 were awarded to the plaintiffs payable by the Crown for the successful amendment issues, while the Crown was awarded $61,950 payable by the plaintiffs for the unsuccessful funding request.

The issue of the defendant consortium’s costs relating to funding was deferred to the trial judge or a future judicial review.

The plaintiffs, seven private school bus operators, brought a motion to amend their statement of claim and add the Ministry of Education as a party defendant in their action against a student transportation consortium regarding the use of Requests for Proposals (RFPs) for procurement.

The plaintiffs also sought an order declaring the Ministry's funding of the consortium's legal costs ultra vires and an interim costs funding order for their own legal fees.

The court granted leave to amend the pleadings and add the Ministry as a defendant, finding no non-compensable prejudice and that the Ministry was a necessary party given its role in directing the RFP process.

The court adjourned the issue of the consortium's funding to the trial judge, noting it required judicial review.

The court dismissed the plaintiffs' request for interim costs funding, finding they had not established impecuniosity.