M. Philip Tunley

The appellant real estate developers sought judicial review of a decision by the Ontario Energy Board (OEB) regarding a cost-sharing dispute with an electricity distributor.

The Divisional Court dismissed the application for lack of jurisdiction, finding the OEB had merely provided an opinion and had not exercised a statutory power of decision.

The Court of Appeal allowed the appeal, holding that the OEB's interpretation of the Distribution System Code to resolve the parties' complaint constituted a final, binding decision under its exclusive statutory jurisdiction.

As such, the decision was of a sufficiently public character to attract public law remedies, including certiorari, and constituted the exercise of a statutory power of decision under the Judicial Review Procedure Act.

The Court of Appeal for Ontario dismissed Enbridge Gas Inc.'s appeal, upholding the Divisional Court's finding that the 1957 franchise agreement between Enbridge and the County of Essex had not expired under the rule against perpetuities.

The court found that the Ontario Energy Board (OEB) erred in law by misapplying the rule against perpetuities, focusing on the duration of the right rather than the vesting of the interest.

The court also held that the Divisional Court was not bound by its earlier decision in Dawn-Euphemia and that the OEB could not impose a new franchise agreement unless the existing one had lapsed or was about to lapse.

The court granted the defendants' motion to strike the Amended Statement of Claim in its entirety, with leave to amend, on the grounds that it amounted to an abuse of process and was time-barred by the 15-year ultimate limitation period under the Limitations Act, 2002.

The claim, brought by G. Scott Paterson against the Royal Bank of Canada and others, alleged a campaign of defamation and economic interference culminating in regulatory proceedings by the Ontario Securities Commission.

The court found that the claim sought to re-litigate issues already settled by the OSC and that Paterson was aware of the essential facts giving rise to his claim well before the expiry of the limitation period.

The applicant, West Whitby Landowners Group Inc., sought leave to appeal a Divisional Court decision that dismissed their judicial review application against the Ontario Energy Board (OEB) and Elexicon Energy Inc. The Divisional Court had found it lacked jurisdiction over the OEB's opinion on cost allocation, deeming it not a statutory power of decision affecting legal rights, and that certiorari was unavailable.

The Court of Appeal granted leave to appeal, clarifying the test for leave to appeal from the Divisional Court.

The court emphasized that the key consideration for granting leave is the impact the decision will have on the development of Ontario's jurisprudence, particularly in administrative and public law, moving away from a rigid checklist approach.

The applicant, West Whitby Landowners Group Inc. (WWLG), brought an application seeking the court to decide a dispute with Elexicon Energy Inc. regarding the classification and funding of a municipal electrical substation.

This followed an opinion from the Ontario Energy Board (OEB) siding with Elexicon and the Divisional Court's dismissal of WWLG's judicial review application.

The respondents, Elexicon and the OEB, brought a motion to dismiss WWLG's application.

The court dismissed WWLG's application, finding it constituted an abuse of process as it attempted to relitigate a matter already determined by the OEB, and further, that the OEB had exclusive jurisdiction over the subject matter concerning compliance with the Distribution System Code.

The plaintiff sought to amend his 13-year-old Statement of Claim to add a claim under section 15 of the Charter and to include Department of Justice (DOJ) employees as impugned actors.

The defendants opposed, citing prejudice due to delay and arguing the DOJ claim was not legally recognizable.

The court granted leave to add the section 15 Charter claim, finding it was not a new cause of action or that any limitation period was not plain and obvious.

However, the court dismissed the request to add DOJ employees, holding that lawyers acting in their professional capacity for the Crown are generally not personally liable for Charter breaches, distinguishing this from the role of Crown prosecutors in criminal cases.

This endorsement addresses the costs of appeals and a cross-appeal that were previously dismissed.

The appellants proposed an aggregate payment of $300,000 as partial indemnity costs.

The respondents sought higher amounts, with one group seeking full indemnity.

The court found the amounts sought by the respondents to be reasonable and proportionate, noting cooperation among counsel and no duplication of effort.

The court awarded specific partial indemnity costs to each respondent group, totaling $549,082.93.

This is a complex set of appeals concerning anti-SLAPP motions.

The appellants (Catalyst parties) appealed the dismissal of two of their actions (Defamation and Wolfpack actions) and the dismissal of their partial anti-SLAPP motion against a counterclaim.

The court dismissed all appeals, upholding the motion judge's findings that the Catalyst parties' actions were strategic attempts to silence critics, lacked substantial merit against some respondents, and that the public interest in protecting expression outweighed the public interest in continuing the proceedings.

The court also upheld the costs awards against the Catalyst parties, emphasizing the deterrent purpose of anti-SLAPP legislation against abusive litigation.

The Court of Appeal heard two appeals concerning defamation actions dismissed under s. 137.1 of the Courts of Justice Act (anti-SLAPP legislation).

The motion judge had dismissed the actions, finding no valid defence in one case and a potentially valid defence in the other, and in both cases, the public interest in protecting expression outweighed the harm to the plaintiffs.

The Court of Appeal dismissed both appeals, upholding the dismissal of the defamation actions.

However, it allowed the cross-appeals on costs, finding that the motion judge erred in not awarding full indemnity costs to the successful defendants, as the actions bore the hallmarks of SLAPP lawsuits.

Following the dismissal of the plaintiff's defamation action under the anti-SLAPP provisions of the Courts of Justice Act, the court determined the appropriate scale and quantum of costs.

The court declined to award full indemnity costs, finding that the plaintiff was not a powerful entity using litigation to intimidate a vulnerable opponent and that the claim had substantial merit.

Applying a modest discount for the defendants' delay in bringing the motion, the court awarded the defendants $75,000 in costs on a partial indemnity scale.

The defendants, a national broadcaster and its employees, brought a motion to dismiss the plaintiff's defamation action under the anti-SLAPP provisions of the Courts of Justice Act.

The plaintiff, a student travel company, alleged that the defendants' reporting on the death of a student during a trip was defamatory.

The court found that the expression related to a matter of public interest and that the plaintiff failed to show there was no valid defence, specifically the defence of fair comment.

The court also found the balance of harms favoured protecting the expression, and dismissed the action.

The defendant, having been successful in the underlying action regarding its right to rebroadcast a 1984 interview, sought partial indemnity costs.

The plaintiff argued the defendant should be deprived of costs due to morally offensive conduct in rebroadcasting the program, which posed a safety risk to the plaintiff.

The court found no morally offensive behaviour, noting the defendant acted responsibly by removing the interview once alerted to the plaintiff's concerns.

The court awarded the defendant partial indemnity costs of $9,042.04, holding that sympathy for the plaintiff's situation is not a basis to refuse costs.

Al Jazeera Media Network brought a motion under section 137.1(3) of the Courts of Justice Act to dismiss a defamation action commenced by Rebel News Network Ltd. as a strategic lawsuit against public participation (SLAPP).

Rebel News alleged three defamatory statements in an internet article and YouTube video published by Al Jazeera.

The court found that Al Jazeera satisfied its initial burden that the proceeding arose from an expression relating to a matter of public interest.

The burden then shifted to Rebel News to show substantial merit, no valid defence, and that the harm suffered outweighed the public interest in protecting the expression.

The court found Rebel News established substantial merit for its defamation claim.

However, Rebel News failed to show that Al Jazeera had no valid defence, specifically regarding the defence of responsible communication on matters of public interest, as the record raised credibility issues precluding a "deep dive" into the evidence at this stage.

Furthermore, Rebel News failed to provide specific evidence of harm and causation, leading the court to conclude that the public interest in free expression and public debate outweighed the public interest in permitting the action to continue.

Consequently, Al Jazeera's motion was granted, and the action was dismissed.

The plaintiffs, Ezra Levant and Rebel News Network Ltd., commenced a defamation action against Brendan Demelle and The Narwhal News Society.

Demelle brought a motion under section 137.1 of the Courts of Justice Act to dismiss the action as a strategic lawsuit against public participation (SLAPP).

The court found that Demelle's expression related to a matter of public interest.

While the plaintiffs established grounds to believe their defamation claim had substantial merit and that Demelle had no valid defences (justification, fair comment, responsible communication), they failed to provide sufficient evidence of specific harm suffered as a direct result of Demelle's publication.

Consequently, the court dismissed the plaintiffs' action, as they did not clear the threshold of showing harm and causation required for the public interest in continuing the proceeding to outweigh the public interest in protecting the expression.

A former police informant, John Doe (previously Cecil Kirby), sued the Canadian Broadcasting Corporation (CBC) for breach of contract, breach of privacy, and negligence after the CBC rebroadcast a 1984 interview in 2015.

The plaintiff alleged an oral agreement that the interview would only be shown once.

The CBC moved for summary judgment, asserting the written contract granted them full rights to the content and denying any oral agreement.

The court granted summary judgment, finding no admissible evidence to support the alleged oral agreement and that the written contract provided lawful justification for the rebroadcast, thereby dismissing all claims.

The appellants (Roustan/RINC) appealed a trial decision that found Grant Thornton LLP (GT) breached a contract but awarded no damages for share losses, dismissing their action.

GT cross-appealed on costs.

The Court of Appeal dismissed both the appeal, finding no palpable and overriding errors in the trial judge's causation analysis or refusal to award various damages (lost opportunity, share loss, special, nominal), and the cross-appeal, upholding the trial judge's costs award as not an error in principle or plainly wrong.

This costs endorsement followed a prior decision where the plaintiffs' action for breach of contract was dismissed due to a lack of proven damages, despite a finding of breach.

The court determined that the defendant, Grant Thornton LLP (GT), was the more successful party, notwithstanding some mixed success, as the plaintiffs' claims for breach of fiduciary duty and defamation were dismissed outright, and no remedy flowed from any of the plaintiffs' findings.

The defendant's offer to settle did not meet the requirements of Rule 49.10(2)(b), thus no costs consequences flowed from its non-acceptance.

Applying the "fair and reasonable" principle for fixing costs and considering Rule 57.01 factors, including the moderate complexity and the $10 million claim, the court awarded GT partial indemnity costs in the all-inclusive amount of $175,000.00.

Following the release of trial reasons finding the defendant breached its contract but awarding no damages, the plaintiffs brought a motion under Rule 59.06 to amend the reasons.

The plaintiffs sought nominal damages, special damages, damages for the purchase of new shares, and damages for loss of chance.

The court dismissed all claims, finding that nominal damages were inappropriate where general damages were unproven, special damages lacked causal link, and the other claims were either already disposed of or not raised at trial.

The Plaintiffs brought a refusals motion seeking answers to questions refused during the examinations for discovery of the Attorney General of Canada's representatives.

The questions pertained to information gathered during inquiries into the torture of Canadian citizens by foreign governments, the adoption of non-party inquiry testimony, production of in camera inquiry transcripts, and underlying evidence for allegations made against the Plaintiffs.

The court analyzed each refusal discretely, rejecting a global proportionality argument, and ordered some questions to be answered while upholding refusals for others, particularly those asking the AGC to adopt non-party testimony.

The media applicants brought an application for a declaration that the police practice of impersonating journalists for criminal investigation and surveillance of public protests violates s. 2(b) of the Charter.

The court found no evidence that plainclothes officers engaging in surveillance held themselves out as journalists.

The court held that the evidentiary record did not support a finding that the practice of plainclothes surveillance in the presence of media had a chilling effect on news gathering.

The application was dismissed.