Paul J. Davis

The representative plaintiffs, on behalf of a class of Ontario franchisees, sought production of documents from the defendants (Shoppers Drug Mart Inc. and Shoppers Drug Mart (London) Ltd.) to support a “bottom-up” damages assessment for individual class members under section 25 of the Class Proceedings Act, 1992.

The Court of Appeal had previously found Shoppers liable for breach of contract and duty of good faith, and ordered that damages be determined through an individual issues process.

The defendants opposed production on grounds of proportionality, prematurity, and lack of expert evidence.

Justice Glustein granted the motion, ordering production of the requested documents for all class members subject to the 2002 Associate Agreement for the relevant years, finding the request reasonable and proportionate in light of the litigation’s scope and the evidence before the court.

The court considered costs arising from the adjournment of a motion to remove Osler, Hoskin & Harcourt LLP as counsel of record for the Defendants.

The adjournment was necessitated by privilege issues raised in the Plaintiff’s reply affidavit, which referenced potentially privileged communications.

The Defendants sought full or substantial indemnity costs, arguing the adjournment was predictable and should not have required a full day’s hearing.

The court found that while the Plaintiff’s position had little merit, it was not taken in bad faith or with egregious conduct.

Costs were awarded to the Defendants on a partial indemnity scale in the amount of $66,658.81.

The plaintiffs in a certified class action brought a motion seeking an order to provide official notice to class members regarding the outcome of common issues summary judgment motions, despite pending appeals and cross-appeals.

The defendants objected, arguing that such notice would confuse class members and disputed the sharing of information and costs.

The court granted the plaintiffs' motion, finding that providing notice was necessary to protect the interests of the class members and that the defendants' concerns about confusion were unfounded.

The court emphasized the fiduciary responsibility of class counsel to report to class members throughout the litigation.

The Court of Appeal for Ontario heard a motion to quash a motion for leave to appeal.

The underlying dispute arose from a commercial arbitration where the arbitrator made a preliminary ruling on jurisdiction over a counterclaim.

The Superior Court reversed this ruling.

The Court of Appeal granted the motion to quash, holding that under section 17(9) of the Arbitration Act, 1991, there is no right of appeal from a court's decision reviewing an arbitrator's preliminary jurisdictional ruling, distinguishing it from an appeal of an award.

The Representative Plaintiff in a certified class action sought court approval for a $4.2 million settlement with the defendant auditor, approval of Class Counsel's contingency fees and disbursements, and an honorarium for the Representative Plaintiff.

The court approved the settlement, finding it fair, reasonable, and in the best interests of the class, considering the litigation risks and protracted nature of the case.

Class Counsel's fees and disbursements, and the Representative Plaintiff's honorarium, were also approved.

The plaintiffs, Iris Technologies Inc. and ICE Wireless Inc., commenced an action against TELUS Communications Company for breach of contract and unlawful interference with economic relations.

TELUS brought a motion to temporarily stay the action, arguing that the court lacked jurisdiction or was not the appropriate forum, as the core dispute fell within the exclusive jurisdiction of the Canadian Radio-Television and Telecommunications Commission (CRTC).

The court granted a temporary stay, finding that the factual and legal underpinnings of the civil action and the CRTC proceedings were the same, and the predicate misconduct concerned matters within the CRTC's specialized expertise.

The applicant, Cassie Hodge, brought a motion for court approval of a class action settlement, class counsel's legal fees, and an honorarium for herself.

The class action alleged that the respondents, Gary Neinstein and Neinstein & Associates LLP, breached the Solicitors Act and fiduciary duties by charging additional costs and excessive disbursements in motor vehicle personal injury claims.

After extensive litigation and mediation, the parties reached a settlement.

The court approved the settlement as fair, reasonable, and in the best interests of the class, considering the litigation risks.

Class counsel's fee request of $1.0 million plus HST was approved, and an honorarium of $10,000 for the representative applicant was approved, reduced from the requested $20,000, acknowledging her extraordinary contribution.

The respondent in matrimonial litigation moved to have the former case management judge recuse himself due to a reasonable apprehension of bias.

The new case management judge dismissed the motion, finding it premature and pointless as the former judge was not scheduled for future involvement.

The court determined the respondent had an ulterior motive to revisit prior rulings and that the motion constituted an abuse of process, contrary to the Family Law Rules' objectives of saving time and expense.

A class action appeal concerning copyright ownership in plans of survey registered or deposited in Ontario's electronic land registry system (ELRS).

The appellant land surveyors claimed that Teranet Inc., which operated the ELRS, infringed their copyright by digitizing, storing, and copying their survey plans.

The motion judge granted summary judgment dismissing the action, finding that copyright in registered or deposited plans belonged to the Province of Ontario under section 12 of the Copyright Act.

The Court of Appeal affirmed this decision, holding that the provincial land registration scheme gave the Crown complete control over registered plans, and that the Crown's publication of those plans through the ELRS occurred under the Crown's direction or control, thereby vesting copyright in the Crown.

The plaintiffs in a proposed product liability class action concerning defective cardiac defibrillators moved for approval of a third-party litigation funding agreement with Bentham IMF Capital Inc. The proposed agreement featured a novel hybrid retainer and a contingency fee structure heavily favouring the funder.

The court found that while third-party funding was necessary for access to justice, the proposed agreement was potentially champertous due to the uncapped and disproportionate reward to the funder, and it improperly interfered with the plaintiffs' litigation autonomy.

The court conditionally approved the agreement, subject to the parties amending it to make the funder's contingency fee and any termination of the agreement subject to court approval, and removing clauses that interfered with the lawyer-client relationship.

The Crown sought an adjournment of a constitutional challenge brought by the Canadian Civil Liberties Association (CCLA) against administrative segregation provisions in the Corrections and Conditional Release Act.

The Crown argued for deference to Parliament due to pending legislative amendments (Bill C-56) and a new administrative policy.

The CCLA opposed the adjournment.

The court refused the adjournment, finding that the CCLA's constitutional challenge addressed aspects of the existing Act that would remain unaltered by the proposed amendments, thus rendering the adjournment unnecessary and not a matter of disrespect to the legislative process.

The defendant, TK Holdings Inc., moved to strike paragraphs from the statements of claim in five proposed products liability class actions.

The impugned paragraphs contained apologies made by Takata executives in Japan and the District of Columbia, which the defendant argued were inadmissible under Ontario's Apology Act, 2009.

The plaintiffs contended that the Act did not apply extraterritorially and that a contextual analysis was required to distinguish apologies from admissible admissions.

The court granted the motion, holding that pleading evidence, such as apologies or admissions, rather than material facts, was improper under the Rules of Civil Procedure.

Additionally, the court determined that the Apology Act, being a statute about the law of evidence (procedural law), applied as the law of the forum, rendering evidence of apologies inadmissible for determining fault or liability.

The plaintiff, Keatley Surveying Ltd., brought a class action against Teranet Inc., alleging copyright infringement for scanning, copying, and making available online plans of survey registered in Ontario's electronic land registry system.

Both parties moved for summary judgment on common issues, primarily concerning whether copyright in the plans belonged to the Province of Ontario under s. 12 of the Copyright Act upon registration or deposit.

The court held that while copyright subsisted in the plans, it belonged to the Province of Ontario pursuant to s. 12 of the Copyright Act, as a result of their registration or deposit in the land registry office, which transferred ownership of the property, including copyright, to the Crown.

Consequently, Teranet, acting under license from the province, did not infringe copyright.

The defendant's motion for summary judgment was granted, and the class action was dismissed.

The appellant appealed a decision of the Consent and Capacity Board confirming her attending physician's finding that she was incapable of consenting to treatment with antipsychotic medications.

The appellant argued the Board misapplied the statutory test for capacity, lacked evidentiary support, and relied on uncorroborated evidence.

The Superior Court of Justice dismissed the appeal, finding the Board correctly applied the test from Starson v. Swayze, and its conclusion that the appellant lacked insight into her condition and could not appreciate the consequences of treatment was reasonable and supported by the record.