Peter N. Mantas

This is a costs endorsement on appeal from a Superior Court judgment.

The appellants achieved substantial success on the appeal.

The Court of Appeal awarded the appellants $15,000 in costs of the appeal including taxes and disbursements.

The trial judge's costs order was set aside and the issue of trial costs was remitted to the trial judge for fresh assessment after damages on the mainstream agreement have been determined.

The appellants, Cana International Distributing Inc. and Micheline Ciolli, appealed a trial judgment dismissing their claim for breach of an exclusive distribution agreement with Standard Innovation Corporation for the distribution of the We-Vibe product.

The appellants claimed separate agreements existed for both the mainstream retail market and the adult industry market.

The trial judge found no binding agreements existed.

The Court of Appeal allowed the appeal in part, finding that a binding mainstream agreement was reached when the parties signed a term sheet in counterpart in August-September 2009, and that the trial judge made palpable and overriding errors of fact and an extricable error of law in finding otherwise.

The Court upheld the trial judge's finding that no adult industry agreement was reached.

The Court also dismissed the appellants' arguments regarding quantum meruit and qualified privilege defences.

The accused appealed convictions for firearms and drug trafficking offences, challenging production orders used to obtain historical text messages from a telecommunications provider.

The Court held the accused had standing under s. 8 of the Charter because he had a reasonable expectation of privacy in the electronic conversation records.

The majority concluded that seizure of already sent and received messages from provider storage was lawfully authorized by the production order regime and did not require a Part VI wiretap authorization.

A dissent would have treated acquisition of those messages as requiring Part VI authorization and would have excluded the evidence under s. 24(2).

The plaintiff, a distributor, sued the defendant, a manufacturer of adult sex toys, for breach of three purported exclusive distribution agreements.

The court dismissed the plaintiff's claims, finding that the parties were merely negotiating and had never reached a binding consensus ad idem on the essential terms.

The defendant counterclaimed for defamation and other torts based on a complaint the plaintiff's principal sent to Health Canada alleging safety defects in the defendant's products.

The court granted the counterclaim for defamation and injurious falsehood, finding the statements were false, defamatory, and made with the intent to harm the defendant's reputation and business.

The defendant was awarded $50,000 in general damages.

The applicants, who were candidates or official agents in the 42nd Federal General Election, applied for an extension of time to file their election returns under s. 477.68 of the Canada Elections Act.

The returns were filed late due to various reasons including health issues, delays by auditors, and the demands of the campaign.

The court found that the failure to file the returns on time was not deliberate, nor was it the result of a failure to exercise due diligence.

The court granted the requested extensions of time for all applicants.

During an ongoing trial, one of the self-represented defendants, Stacey McAlpine, was absent due to a medical emergency and upcoming hip replacement surgeries.

The defendants sought an adjournment of the trial for at least six months.

The court, noting the lack of formal notice and detailed medical evidence, issued procedural orders.

These orders required Stacey McAlpine to provide medical documentation for his absence, make reasonable efforts to reschedule his surgeries and pre-operative appointments, and, if pursuing the adjournment, provide formal notice, evidence, and a written summary to the plaintiff's counsel and the court.

The motion for an adjournment was itself adjourned to a specific date for further consideration.

The defendant, a Trustee in Bankruptcy, brought a motion for summary judgment to dismiss an action brought by the plaintiffs.

The plaintiffs claimed the Trustee breached a confidentiality agreement by publicly disseminating an arbitration decision that found against them on several bankruptcy-related claims.

The Trustee argued the confidentiality agreement did not extend to the decision itself and that it had an obligation to inform other creditors.

The court found that genuine issues requiring a trial existed, particularly regarding the interpretation of the confidentiality clause in the Mini-Trial Agreement, the scope of the Trustee's obligations, and the assessment of damages.

The motion for summary judgment was dismissed.

In this criminal jury trial ruling, the accused sought to have the defence of mistake of fact put to the jury on bid-rigging charges under s. 47(2) of the Competition Act.

The court held that whether the RFPs were calls for bids or tenders was a question of fact, not law, and applied the air of reality test to determine whether the defence should be left with the jury.

On the totality of the evidence, including uncertainty in the procurement documents and witness evidence, the court found an evidentiary foundation for an honest mistaken belief.

The jury was therefore permitted to consider the mistake of fact defence in relation to the nature of the RFPs.

In a criminal prosecution alleging bid-rigging and conspiracy arising from multiple federal government IT procurement processes, the Crown moved for a similar fact ruling permitting the jury to use evidence on one count across other counts against the same accused.

Applying the governing similar fact evidence framework, the court held that such evidence is presumptively inadmissible unless its probative value outweighs its prejudicial effect and it is sufficiently connected to a live issue.

The court found minimal moral prejudice because the jury had already heard the impugned evidence, but concluded that significant differences among the three groups of procurements reduced the probative value of using the evidence across all procurements.

The motion was therefore granted only in part, limited to the CBSA RFPs and subject to further submissions after the defence evidence.

Accused charged with bid‑rigging and conspiracy challenged the constitutionality of s. 69(2) of the Competition Act, which deemed certain documents and records found in possession of a “participant” to constitute prima facie proof of knowledge and related facts.

The applicants argued the provision created evidentiary and legal presumptions that effectively shifted the burden of proof onto the accused, contrary to the presumption of innocence under ss. 7 and 11(d) of the Charter.

The court held that the section required the trier of fact to accept knowledge of documents as proven and could compel the accused to respond before the Crown proved guilt beyond a reasonable doubt.

The provision therefore infringed the presumption of innocence and fundamental justice and was not justified under s. 1 of the Charter.

Section 69(2) was declared of no force or effect in criminal proceedings, though its use in Competition Tribunal proceedings was unaffected.

The appellants were substantially successful on their appeal, which resulted in a new trial on certain issues.

They sought costs of $52,994.52 on a partial indemnity basis.

The respondent argued for a reduced amount of $25,000 due to divided success.

The Court of Appeal agreed the appellants were substantially successful but applied a minor reduction for divided success, fixing costs at $45,000 all-inclusive.

The costs of the first trial were remitted to the judge hearing the new trial.

The appellants sold their business to the respondent under a Share Purchase Agreement that included an initial payment and potential Earn-Out Payments based on future earnings (EBIAT).

The trial judge found that revenues from a specific project were excluded from the EBIAT calculation and that the earnings threshold was not met.

The Court of Appeal allowed the appeal, holding that the trial judge erred in law by interpreting the contract's calculation provision in isolation rather than reading the agreement as a whole.

The Court also found the trial judge made palpable and overriding errors in assessing the expert financial evidence regarding revenue deferral, and ordered a new trial solely on whether the earnings threshold was met.

The defendants brought a motion to strike portions of the plaintiffs’ statement of claim or alternatively for further particulars.

The claim alleged copyright infringement, misappropriation of trade secrets, interference with contractual relations, unjust enrichment, and misappropriation of goodwill relating to software and a business method used in contact centre management.

The court held that the pleading of copyright infringement was deficient because it failed to plead the chain of title and did not clearly identify the copyrighted works or the assignment or grant of rights required under the Copyright Act.

That portion of the claim was struck with leave to amend.

The remaining causes of action were sufficiently pleaded and the request for further particulars was dismissed.

The defendants moved under s. 106 of the Courts of Justice Act to stay the copyright portion of an action until the foreign copyright owners were added as parties or consented to be bound by the court’s decision.

The motion turned on whether, under s. 41.23(2)(c) of the Copyright Act, the interests of justice required the copyright owners to be parties where the plaintiffs were licensees and contractual representatives of those owners.

The court held that the plaintiffs had authority, and in one case a contractual obligation, to enforce the copyright owners’ rights and that the owners were aware of the litigation but chose not to participate.

The court also noted the defendants’ significant delay in bringing the motion and the advanced stage of the proceedings.

It concluded that the interests of justice did not require the copyright owners to be added as parties and dismissed the motion.

The appellant, a former federal cabinet minister, sued the prime minister, his staff, and other officials for defamation, conspiracy, and other torts after she was removed from Cabinet and the Conservative Party caucus amid allegations of misconduct.

The motion judge struck the statement of claim, finding the claims non-justiciable due to Crown prerogative and parliamentary privilege, and that the alleged defamatory statements were either not capable of being defamatory or were protected by absolute privilege.

The Court of Appeal upheld the striking of the claims against all defendants except one Member of Parliament, finding her public statements had a possible defamatory meaning that should be determined at trial.

The appellants appealed the dismissal of their application for certiorari of a preliminary inquiry judge's decision committing them to stand trial for bid rigging and conspiracy.

They argued that the Requests for Proposals were not calls or requests for bids or tenders under s. 47 of the Competition Act because they did not result in a contractual entitlement to perform services.

The Court of Appeal dismissed the appeal, finding there was some evidence upon which a properly instructed trier of fact could conclude that the procurement process created a bidding contract and that the appellants had made bids in response to a call or request for bids or tenders.

The court determined costs following civil proceedings between the parties.

On consent, the plaintiffs were ordered to pay the defendant $107,998.61 in legal fees inclusive of GST and HST.

The court also ordered payment of disbursements in accordance with the defendant’s Bill of Costs, subject to reductions required under Tariff A of the Rules of Civil Procedure.

Hotel expenses were reduced to conform with Tariff A s. 21(3), and witnesses’ travel and parking expenses were ordered recalculated under Tariff A s. 21(2)(c), with all other disbursements approved.

Following the striking of a statement of claim alleging conspiracy, defamation, misfeasance in public office, and related torts against numerous defendants, the court determined the quantum of costs payable on the successful pleadings motion.

Multiple defendant groups sought more than $205,000 in partial indemnity fees and over $20,000 in disbursements.

Applying Rule 57.01 of the Rules of Civil Procedure and the fairness principles articulated in Boucher, the court considered duplication of effort among separately represented defendants with similar interests.

The court concluded that substantial overlap existed between certain defendants’ legal work and therefore limited recovery to a single set of costs for those parties.

Reduced costs totalling $108,000 in fees plus $10,560 in disbursements were awarded, subject to HST.

Former shareholders of a technology company sought payment of earn‑out amounts under a Share Purchase Agreement following the purchaser’s acquisition of their company.

They argued that profits from a large engineering project should have been included in the calculation of EBIAT for purposes of triggering the earn‑out thresholds and that revenue had been improperly deferred.

The court held that the project did not meet the contractual requirements for inclusion because the earnings were not attributable exclusively to design services using the acquired company’s unique intellectual property and the project had not been awarded specifically due to that IP.

The court also preferred the defendant’s accounting evidence and found no improper revenue deferral affecting the threshold calculations.

Accordingly, the plaintiffs failed to establish entitlement to the earn‑out payment.

The court addressed a motion and cross‑motion seeking directions concerning the forensic review and discovery of electronic information stored on an external hard drive belonging to a former employee accused of misappropriating confidential information and competing with his former employer.

Disputes arose regarding who should conduct the review, how privileged material should be handled, and whether backup files on the drive should be examined.

The court held that the defendant must review potentially privileged communications with former counsel and produce those relating to advice about the enforceability of a restrictive covenant, over which privilege had been waived.

The court also authorized further forensic analysis of backup files by an independent expert and ordered transparency regarding prior searches conducted by the plaintiff’s counsel.

Costs of the forensic work were ordered to be borne by the plaintiff but recoverable in the cause.