Peter M. Jacobsen

Following a successful motion by the defendants to strike the plaintiff's Statement of Claim with leave to amend, the defendants sought substantial indemnity costs of $51,710.82.

The court found no basis for substantial indemnity costs and considered the partial indemnity claim of $34,100.37 excessive due to over-lawyering.

Taking into account the plaintiff's recent termination and lack of severance, the court fixed costs at $15,000 on a partial indemnity basis, payable in the cause.

The defendants brought a motion to strike the plaintiff's statement of claim, which alleged wrongful/constructive dismissal, negligence, harassment, discrimination, and intentional infliction of mental suffering against his former employer, the NHLPA, its insurer, and several individual employees.

The court struck the 62-page statement of claim in its entirety for failing to plead material facts concisely and for pleading evidence and irrelevant facts.

The court dismissed the action against the insurer and all individual defendants except one manager, finding no reasonable cause of action against them.

The plaintiff was granted leave to amend his claim to properly plead constructive/wrongful dismissal, negligence, and human rights violations against the NHLPA, and intentional infliction of mental suffering against the one manager.

This is a costs endorsement following a successful appeal by the defendants.

The appellants were entitled to costs on a full indemnity basis for the motion and proceedings below, with Corus Entertainment Inc. awarded $30,000 and the McSloy appellants awarded $30,000, both inclusive of taxes and disbursements.

On the appeal itself, the appellants were successful and entitled to costs on a partial indemnity basis, with Corus awarded $15,000 and the McSloy appellants awarded $15,000, both inclusive of disbursements and taxes.

The request for damages under section 137.1(9) of the Courts of Justice Act was denied.

An incumbent city councillor sued his political opponent and members of her campaign team, along with a local radio station, for defamation arising from statements made during a municipal election campaign.

The defendant candidate had referenced the plaintiff's dated sexual assault conviction and characterized it as consistent with a pattern of bullying and intimidation.

The motion judge dismissed the defendants' motion to dismiss under section 137.1 of the Courts of Justice Act.

The Court of Appeal allowed the appeal and dismissed all claims, finding that the defendants' expressions related to a matter of public interest and that the plaintiff failed to demonstrate sufficient harm to outweigh the public interest in protecting freedom of expression during an election campaign.

This endorsement addresses the costs arising from a successful summary judgment motion by the defendants against the self-represented plaintiff.

The defendants sought $35,359.11 in costs, comprising partial indemnity until their offer to settle and substantial indemnity thereafter.

The court, while noting the defendants' offer was not Rule 49 compliant, exercised its discretion under Rule 57 and Rule 49 to award substantial indemnity costs from the date of the offer due to the plaintiff's unacceptable conduct, bad faith dealings, and persistent disregard for court rules despite extensive litigation experience.

The court ultimately awarded the defendants $25,000 in all-inclusive costs.

The plaintiff, a rap artist, sued a radio host and broadcaster for copyright infringement, theft, and negligence after they played an 18-second clip of his song during an interview.

The defendants brought a motion for summary judgment.

The court granted the motion, finding that the defendants had complied with the Copyright Act by paying the required SOCAN royalties, precluding any claim for infringement or theft.

The court also dismissed the negligence claim for lack of evidence of damages and found that, in any event, the parties had previously reached a binding settlement agreement via email.

This endorsement lifts a stay on a previous decision released on April 21, 2017, after the parties confirmed that no appeal was contemplated.

The materials in question are now permitted to be released to the parties and the public as outlined in the original decision.

The applicants, a consortium of media organizations, sought to lift sealing orders and prevent a publication ban on judicial authorizations, including a search warrant, related to an investigation into Vice-Admiral Mark Norman for allegedly leaking cabinet confidential information.

Vice-Admiral Norman and the Crown argued for a publication ban to protect his fair trial rights, while interveners (Chantier Davie Canada Inc. and Federal Fleet Services Inc.) sought to maintain sealing orders for commercially sensitive pricing data.

Applying the Dagenais/Mentuck test, the court found no serious risk to the proper administration of justice or fair trial rights from extensive publicity, noting that jurors are presumed capable of impartiality and that the alleged misconduct did not create an "unshakable stigma." The court also considered the impact of social media on the efficacy of publication bans.

The application to lift sealing orders and deny a publication ban was largely granted, with the exception of specific commercial pricing information from the interveners and uncontested redactions for cabinet confidentiality and third-party personal information.

The applicant, an 80-year-old man with advanced-stage aggressive lymphoma, brought a preliminary motion for confidentiality orders in his application for physician-assisted death under the Carter framework.

He sought orders allowing him, his family, and his physicians to proceed anonymously, a publication ban on identifying information, and a sealing order for the application record, proposing to file a redacted version for the public.

The media respondents opposed the anonymity of the physicians and requested a 'counsel's eyes only' review of the unredacted record.

The court granted the motion, finding that the applicant's proposal struck the appropriate balance between the open court principle and the need to protect the privacy and dignity of the applicant, as well as the public interest in not deterring physicians from participating in such applications.

The moving parties (respondents in a judicial review application) brought a motion to strike twelve affidavits filed by the responding parties.

The underlying application challenged a university tribunal's decision to suspend several tenured professors for workplace harassment.

The court struck the affidavit of an expert witness because it improperly opined on Ontario law.

However, the court declined to strike the remaining affidavits, finding that the evidence regarding the pre-hearing investigation, hearing process, and post-hearing impacts was relevant to the responding parties' procedural fairness arguments and should be assessed by the panel hearing the judicial review.

Media organizations applied for access to previously sealed informations to obtain (ITOs) relating to a production order and search warrant issued during a criminal investigation.

The accused sought continuation of a publication ban, arguing that publication of intercepted communications referenced in the ITOs would compromise his right to a fair trial on an extortion charge.

Applying the Dagenais/Mentuck test, the court held that the accused failed to demonstrate a real and serious risk to trial fairness, given existing publicity, the passage of time before trial, jury instructions, and the challenge for cause process.

A third party mentioned in the ITOs argued that publication would damage his reputation, but the court held that third parties generally lack standing to seek publication bans absent exceptional circumstances.

The court concluded that the open court principle prevailed and lifted the remaining publication bans.

Media organizations applied for access to and the ability to publish the contents of an Information to Obtain supporting a search warrant in a major police investigation.

The Provincial Crown and an accused sought a publication ban on references to non-consensual intercepted private communications, arguing protection of the wiretap regime and fair trial rights.

Applying the Dagenais/Mentuck test, the court held that generalized concerns about the wiretap regime and speculative risks to a future jury trial were insufficient to justify restricting openness.

The court emphasized the strong presumption of open courts and the public interest in scrutiny of judicial authorizations and police investigations.

Balancing the competing interests, the court concluded that the salutary effects of a publication ban did not outweigh the significant deleterious effects on freedom of expression and public accountability.

The accused was charged with stunt racing contrary to s. 172(1) of the Highway Traffic Act for driving at 161 km/h in a 100 km/h zone on Highway 401, exceeding the speed limit by 61 km/h.

The Crown relied on Lidar speed detection evidence from a trained officer.

The defence challenged the accuracy of the Lidar reading and suggested the officer's vehicle was moving when the reading was taken.

The court found stunt racing to be a strict liability offence with a due diligence defence available.

The Crown proved the essential elements beyond a reasonable doubt, and the accused failed to establish the due diligence defence on a balance of probabilities.

The accused was convicted.

Media organizations applied for access to portions of a sealed information to obtain (ITO) used to secure a search warrant in a criminal investigation.

The Crown had released a version with extensive edits, including redactions relating to innocent third parties.

Applying the open court principle and the Dagenais/Mentuck test under s. 487.3 of the Criminal Code, the court held that the Crown failed to establish a serious risk to the administration of justice justifying continued secrecy.

Assertions that the redacted material constituted non‑essential narrative or could harm innocent persons were unsupported by evidence.

The court ordered disclosure of the redacted material subject to limited exceptions for personal identifiers, certain references involving the mayor’s spouse, and portions potentially affecting the accused’s fair trial rights.

Media organizations sought certiorari to review and set aside a decision refusing access to a sealed information to obtain (ITO) used to obtain search warrants in a large criminal investigation.

The Crown argued that disclosure was prohibited by s. 193 of the Criminal Code because the ITO contained references to non-consensual wiretap interceptions.

The court held that s. 193 is an offence-creating provision and does not govern public access to court materials; instead, access to a sealed ITO is governed by s. 487.3 of the Criminal Code informed by the Dagenais/Mentuck test and the open court principle.

Alternatively, even if s. 193 applied, the disclosure fell within the exception in s. 193(2)(a) because an ITO constitutes evidence given in a criminal proceeding.

The prior order denying access was set aside and the applicants were permitted to proceed with their application to vary or terminate the sealing order.

Media organizations applied under section 487.3(4) of the Criminal Code to unseal and publish portions of an Information to Obtain (ITO) a search warrant in Project Traveller proceedings.

The court had previously ordered the unsealing of a heavily redacted version with a publication ban.

The accused sought to maintain restrictions on publication regarding: (1) evidence adduced at bail hearings, (2) criminal antecedents, and (3) references to a prior search warrant.

The court declined to rule on bail hearing evidence, continued the publication ban on criminal antecedents, and lifted the ban on prior warrant references except for the name of the individual searched.

Media organizations sought to unseal search warrant Information to Obtain (ITO) documents and related judicial authorizations from Project Traveller, a major criminal investigation.

The Crown sought to maintain certain redactions based on investigative technique privilege and wiretap disclosure restrictions under s. 193 of the Criminal Code.

The court ordered the unsealing of the May 31, 2013 ITO in its current redacted form with a temporary publication ban pending further submissions from counsel for the accused.

The court also ordered the Crown to provide redacted copies of remaining Project Traveller ITOs within 30 days of completing Stinchcombe disclosure to the accused, with a detailed chart explaining redactions.

Media organizations sought an order to terminate or vary a sealing order issued by Justice Marin on May 31, 2013, which sealed documents relating to search warrants executed by the Toronto Police Service between May 31 and June 14, 2013.

The Crown sought a six-month adjournment to vet the Information to Obtain (ITO) before disclosure.

The court found the Crown's proposed timeline unreasonable and contrary to the open court principle protected by the Charter.

The court ordered the Crown to provide a redacted version of the May 31 ITO on a counsel-only basis by August 27, 2013, with a return hearing scheduled for no later than September 12, 2013.

Media applicants sought access to a medical letter filed at the sentencing of Eric Newman (now known as Luka Magnotta) in 2005 on fraud charges.

The letter, from Rouge Valley Medical Centre, addressed Newman's mental health and psychiatric issues.

Newman opposed release, citing concerns about his fair trial rights in relation to serious criminal charges he faced in Montreal in 2012.

The court applied the open courts principle and the Dagenais-Mentuck test, ultimately granting the media's application for access to the letter.

The appellant intended to bring a class action for secondary market misrepresentation under the Securities Act against confidential sources quoted in a newspaper article about a leveraged buyout.

The appellant sought a Norwich order to compel the journalist and newspaper to disclose the sources' identities.

The Court of Appeal dismissed the appeal, holding that while the appellant met the threshold for a Norwich order, the respondents satisfied the Wigmore test for journalist-source privilege.

The public interest in protecting the confidential sources outweighed the public interest in the appellant's weak proposed action.