Paul J. Davis

Aurora Cannabis Inc. launched a hostile take-over bid for CanniMed Therapeutics Inc., conditional on CanniMed abandoning its proposed acquisition of Newstrike Resources Ltd. Aurora applied to the Ontario Securities Commission and the Financial and Consumer Affairs Authority of Saskatchewan for exemptive relief to shorten the 105-day minimum deposit period for its bid and to cease-trade CanniMed's newly adopted shareholder rights plan.

CanniMed and its Special Committee brought cross-applications seeking to prohibit Aurora from using the 5% exemption for market purchases and to declare Aurora and certain locked-up shareholders as joint actors.

The panels held a joint hearing and determined that the 105-day minimum deposit period should not be shortened, as the Newstrike transaction was not an alternative transaction that extinguished shareholder interests.

The panels declined to prohibit Aurora from using the 5% exemption and found insufficient evidence that Aurora and the locked-up shareholders were acting jointly or in concert.

However, the panels found that Aurora had received material non-public information about CanniMed's acquisition plans, giving it a tactical advantage, and ordered Aurora to amend its take-over bid circular and news releases to disclose these circumstances.

Finally, the panels cease-traded CanniMed's shareholder rights plan, finding it to be an impermissible defensive tactic that interfered with the established take-over bid regime.

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 applicants, dissident shareholders engaged in a proxy contest, sought a hearing and review of a Toronto Stock Exchange (TSX) decision that conditionally approved the issuance of shares by Eco Oro Minerals Corp. to certain shareholders without requiring a shareholder vote.

The TSX permitted an accelerated closing of the share issuance just days before the record date for a requisitioned shareholder meeting.

The Ontario Securities Commission conducted a de novo review, finding that the TSX overlooked material evidence regarding the proxy contest and erred in its interpretation of 'materially affect control.' The Commission set aside the TSX decision, concluding that the share issuance materially affected control and required shareholder approval.

To remedy the improper issuance, the Commission ordered Eco Oro to hold a shareholder vote to either ratify or reverse the share issuance, cease-traded the new shares pending the vote, and prohibited the new shares from being voted at the upcoming meeting.

The appellant sought leave to bring a class action for secondary market misrepresentation under the Securities Act, alleging the respondent company's public disclosures overstated mining resources and inflated its share price.

The motion judge dismissed the leave application and the certification motion, finding the appellant's expert evidence was completely undermined by the respondent's evidence.

On appeal, the appellant argued the motion judge applied an overly strict test by weighing the evidence.

The Court of Appeal dismissed the appeal, holding that the statutory leave test requires a reasoned consideration and weighing of all evidence proffered by both parties to ensure the action has a reasonable possibility of success.

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 appellant subcontractor appealed a motion judge's decision dismissing its claim for payment for extra work performed on two construction projects.

The contract required written authorization for any changes or extras.

The appellant argued that the respondent general contractor waived this requirement by verbally requesting the extra work and signing purchase orders confirming the work was done.

The majority of the Divisional Court dismissed the appeal, finding no palpable and overriding error in the motion judge's conclusion that the respondent's conduct did not amount to an unequivocal and conscious decision to abandon its right to rely on the strict terms of the contract.

A dissenting judge would have allowed the appeal, finding that the respondent's pattern of requesting extra work outside the scope of the contract constituted waiver by conduct.

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, diagnosed with paranoid schizophrenia, appealed a decision confirming her incapacity to consent to treatment and her involuntary status.

The Consent and Capacity Board found she lacked insight into her condition and could not appreciate the reasonably foreseeable consequences of refusing antipsychotic medication.

The Superior Court upheld the Board's decision.

On further appeal, the Court of Appeal found the Board's decision was reasonable and supported by the evidence, dismissing the appeal.

The appellant appealed from orders striking his statement of claim against seven respondents without leave to amend and setting aside a noting in default against one respondent.

The motions judge found the claims, which included allegations of torture and invasion of privacy, to be frivolous, vexatious, an abuse of process, and lacking any reasonable cause of action.

The Court of Appeal dismissed the appeal, finding no basis to interfere with the decision to set aside the noting in default and agreeing that the pleadings were properly struck under Rules 21.01(1)(b) and 25.11(b) of the Rules of Civil Procedure.

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.

The applicant sought a temporary cease trade order against an insider bid made by the respondent, alleging the respondent failed to obtain a formal valuation as required by MI 61-101.

The applicant argued the respondent possessed undisclosed material information, specifically confidential power purchase agreement pricing and wind speed data.

The Commission found the applicant failed to provide prima facie evidence that the information was material, noting the applicant's own Directors' Circular stated there was no undisclosed material information.

The Commission dismissed the request for a temporary cease trade order and granted the respondent's cross-motion to dismiss the application.

The union applied for certification and filed unfair labour practice complaints alleging that the employer discharged a union supporter and engaged in a pervasive campaign of interference during an organizing drive.

The Board found that the discharge was motivated by a bona fide belief of theft, not anti-union animus, and that the employer's frequent written communications fell within the bounds of free speech.

However, the Board held that the employer breached the Act by prohibiting union solicitation on company property during an employee's vacation, promising to clear discipline records, removing last names from schedules, and granting an unprecedented Christmas bonus as an inducement.

The Board concluded these violations were not so serious as to prevent the ascertainment of employees' true wishes under section 8.