Michael J.P. O’Brien

The appellant purchased a condominium unit under an agreement of purchase and sale in a building that subsequently entered receivership.

The receiver sought to disclaim the purchase agreement to maximize asset recovery.

The appellant opposed the disclaimer, relying on a supplementary agreement with the developer and its president.

The motion judge found the supplementary agreement unenforceable due to an entire agreement clause in the subsequent purchase agreement and granted the disclaimer order.

The appellant appealed on three grounds: that the motion judge failed to apply the Tercon test for entire agreement clauses, failed to consider public policy, and erred in applying the disclaimer test regarding equities.

The Court of Appeal dismissed the appeal, finding the motion judge properly conducted the Tercon analysis, identified no overriding policy reason to override the contractual terms, and correctly applied the disclaimer test by considering all circumstances and concluding the equities did not support preferring the appellant's claim over other creditors.

The Applicants, Apollo Technology Capital Corporation and Nobul Technologies Inc., sought orders regarding the conduct of the upcoming annual general meeting (AGM) of MediPharm Labs Corp., including the appointment of an independent chair, the appointment of TSX Trust as scrutineer, and a declaration regarding the validity of their Dissident Circular.

The Court declined to grant the requested relief, finding no evidence of impropriety or unfairness in the process established by MediPharm’s by-laws and confirming that the issues raised could be addressed after the AGM if necessary.

The court considered whether the Receiver could disclaim an agreement of purchase and sale for a condominium unit, where the purchaser (Berry) claimed entitlement to specific performance and an equitable interest in the unit.

The Receiver, supported by the senior secured creditor, sought to maximize recovery for creditors.

The court found that Berry had not paid the full purchase price, that the supplementary and "as is, where is" agreements were not enforceable, and that the equities did not support a preference for Berry over other creditors.

The Receiver was authorized to disclaim the agreements.

The Noble Defendants brought a motion to dismiss or stay the action, alleging abuse of process due to the plaintiffs' failure to immediately disclose a settlement agreement (the "Bowen Agreement") with co-defendant David Bowen.

The court found that the plaintiffs failed to disclose key terms of the Bowen Agreement, which changed the adversarial dynamic between the plaintiffs and Bowen, thus constituting an abuse of process.

Despite the judge's personal reservations about the Noble Defendants' conduct, the court was bound by Court of Appeal jurisprudence to stay the action.

The motion to stay was granted.

The plaintiff sought certification of a proposed securities class action under the Ontario Securities Act, alleging misrepresentation by the defendants regarding the value of Cronos Group Inc. shares.

The defendants opposed certification and brought a forum non conveniens motion to stay claims of non-Canadian shareholders who purchased shares on the NASDAQ exchange, arguing these shareholders were already covered by a parallel U.S. class action.

The court granted certification for the proposed class, including U.S. shareholders, and dismissed the defendants' forum non conveniens motion, emphasizing Ontario's jurisdiction and the policy of access to justice.

The appellant sought leave to bring a class action against Cronos Group Inc. and others for alleged misrepresentations in public filings.

The motion judge dismissed the leave and certification motions, characterizing the claim as alleging thousands of separate misrepresentations and finding insufficient evidence of individual materiality.

The Court of Appeal found this characterization erroneous, holding that the claim alleged one central misrepresentation regarding inflated revenues.

The Court determined there was a reasonable possibility of success, given the admitted misrepresentations, subsequent corrections, and share price drops, despite conflicting expert evidence on causation.

The appeal was allowed, leave granted, and the certification issue remitted to the Superior Court.

The accused was charged with dangerous operation of a motor vehicle causing death under s. 249(4) of the Criminal Code.

On April 21, 2018, the accused was operating a 2017 Toyota on the Queen Elizabeth Highway when his vehicle collided with the left centre concrete median, resulting in the death of his passenger.

The Crown relied on evidence of excessive speed (174 km/h in a 100 km/h zone), operation on a gravel shoulder with bald tires, and full acceleration while on the shoulder.

The defence argued the accused was cut off and that evidence of racing was unreliable.

The court found the accused guilty, determining his manner of driving constituted a marked departure from the standard of care expected of a reasonable person in the circumstances.

The defendants sought summary judgment in a medical negligence action, proposing to address causation and standard of care.

The case management judge, applying the Hryniak v. Mauldin framework, assessed whether the proposed motion, requiring a mini-trial with extensive viva voce expert evidence, would be proportionate, timely, and affordable.

Given the complexity of competing medical opinions on delayed diagnosis and the effectiveness of antiviral treatment, the anticipated length of the mini-trial (7-10 days), and the unlikelihood of resolving all triable issues, the judge concluded that the motion would not meet the goals of efficient dispute resolution.

Consequently, the defendants' proposed summary judgment motion was denied, and the scheduled motion dates were vacated, with the judge remaining seized to schedule an early trial.

Thelma Rycroft died of septic shock after a gastroscopy performed by Dr. Dean Chen.

Her spouse and son brought an action for negligence, alleging inadequate pre-operative preparation and negligent continuation of the procedure despite retained food in her stomach, leading to aspiration pneumonia.

The court found Dr. Chen liable for breaching the standard of care by failing to instruct Mrs. Rycroft on an extended clear liquid diet and by proceeding with the gastroscopy after encountering food and liquid in her stomach.

The court concluded that Dr. Chen's negligence caused Mrs. Rycroft's death and awarded damages to her spouse and son under the Family Law Act, along with OHIP's subrogated claim.

The defendants, having successfully obtained a temporary stay of two securities misrepresentation actions (a class action and an individual action), sought costs on a partial indemnity scale.

The plaintiffs objected, arguing the costs were excessive, success was divided, and the defendants should adhere to the Costs Grid.

The court awarded the Palladium Defendants $25,000 and KPMG LLP $20,000, all inclusive, finding these amounts reflected the fair and reasonable expectations of the unsuccessful litigants, considering the complexity and importance of the underlying motion, while acknowledging the plaintiffs' partial success in reducing the requested amounts.