Patrick Daniel Flaherty

The defendants, three major tobacco manufacturers, appealed a motion judge's decision dismissing their motion for summary judgment.

The plaintiffs, tobacco growers, brought class actions alleging the defendants breached agreements by paying lower export prices for tobacco that was subsequently smuggled back into Canada.

The defendants argued the claims were statute-barred as the plaintiffs knew or ought to have known of the claims more than six years prior.

The motion judge found a genuine issue for trial regarding when the plaintiffs discovered the defendants' complicity in the smuggling.

The Divisional Court dismissed the appeal, finding no palpable and overriding error in the motion judge's conclusion that the defendants' involvement in smuggling was an essential element of the claim and that its discoverability required a trial.

The plaintiff, Husky, brought an action against its founder, Robert Schad, his new company Athena, and others, alleging misuse of confidential information relating to injection molding machines.

Husky claimed that Athena accessed confidential information from Husky machines placed at a third-party facility (Niigon) and used it to develop competing machines.

The defendants argued the claims were statute-barred, that most issues were settled during prior negotiations, and that no confidential information was misused.

The court dismissed Husky's claims, finding they were statute-barred as Husky knew of the material facts more than two years before commencing the action.

The court also found that the commercially available machines were not confidential, and that Athena did not make material use of any confidential information from the prototype machines.

Athena's counterclaim for abuse of process and injurious falsehood was also dismissed for lack of evidence.

The defendant tobacco companies brought motions for summary judgment to dismiss the plaintiffs' proposed class actions as statute-barred.

The plaintiffs alleged the defendants breached their contracts by participating in smuggling duty-free tobacco back into Canada, avoiding higher domestic prices.

The defendants argued the plaintiffs knew or ought to have known of the alleged smuggling long before commencing the actions in 2009 and 2010.

The court dismissed the motions, finding a genuine issue requiring a trial regarding when the plaintiffs discovered the constituent elements of their claims, particularly given the defendants' consistent denials of involvement in smuggling.

The appellant appealed a Master's order dismissing her action for delay.

The action had been struck from the trial list due to the inaction of her first lawyer, and a subsequent motion to restore it was delayed by her second lawyer, who concealed his neglect from her.

On appeal, the Divisional Court admitted fresh evidence detailing the second lawyer's neglect.

The court found the Master made reversible errors by inferring intentional delay without considering the appellant's instructions to her lawyers, and by presuming prejudice due to the expiry of a limitation period.

Applying the conjunctive test from Nissar, the court held the appellant had an acceptable explanation for the delay (solicitor negligence) and the defendants suffered no non-compensable prejudice.

The appeal was allowed and the action restored to the trial list.

The plaintiff's action was struck from the trial list and subsequently dismissed by a Master due to the inaction of her former counsel.

The plaintiff's second lawyer failed to advise her of the dismissal or her right to appeal.

Upon retaining new counsel, the plaintiff brought a motion to extend the time to file a Notice of Appeal of the Master's order.

The Divisional Court granted the motion, finding that the delay was attributable to the plaintiff's former counsel and that extending the time would not prejudice the defendants, in accordance with the principle that matters should be determined on their merits.

The plaintiff franchisor brought a motion for default judgment against former franchisees for defamation.

Following the termination of their franchise agreements, the defendants engaged in a widespread campaign of making false and defamatory statements about the plaintiff to suppliers, landlords, competitors, and the media.

The defendants failed to defend the action and were noted in default.

The court granted default judgment, finding the statements were defamatory and made with malice.

The court awarded $425,000 in general damages, $75,000 in punitive damages, and granted a permanent injunction restraining the defendants from publishing further defamatory statements.