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 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 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 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 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.

The plaintiffs sought an interlocutory injunction to restrain the defendant from selling an independent medical examinations business to a competitor.

The plaintiffs argued the defendant breached a contractual duty of good faith by failing to negotiate a sale with them and by not offering a right to match the competitor's offer.

The court dismissed the motion, finding no serious issue to be tried as the defendant had fulfilled its limited obligation to offer a first right of negotiation and was not required to provide a right to match.

The court also found the balance of convenience favoured the defendants.

Following dismissal of a motion by the Crown to strike a negligence and negligent misrepresentation claim arising from a government procurement process for school bus services, the court determined the appropriate costs award.

The plaintiffs sought substantial indemnity costs while the Crown argued for a lower partial indemnity award.

Applying Rule 57 of the Rules of Civil Procedure and the fairness principles from Boucher, the court held that the motion, although unsuccessful, was not wholly devoid of merit and therefore did not justify substantial indemnity costs.

The court also rejected the Crown’s submission that HST should not be included in a costs award against it.

Partial indemnity costs of $39,897 inclusive of disbursements and HST were awarded to the plaintiffs.