Raphael Tony Eghan

The moving party, Canadian National Railway Company, brought a motion for leave to appeal the order of Gordon J. dated April 26, 2022.

The Divisional Court dismissed the motion for leave to appeal and awarded costs of $5,000 to the responding parties.

This class action, initiated in 2017 following a 2015 train derailment, faced a motion by Canadian National Railway Company (CN) for dismissal due to delay under section 29.1(1) of the Class Proceeding Act, 1992.

CN argued that no certification motion was pending, nor was there a court-ordered timetable for advancement by the October 1, 2021, deadline.

The plaintiffs contended that the court had established a timetable through prior case management conference endorsements, which included steps like environmental assessments and subsequent case management conferences.

The court found that the ordered environmental assessment and subsequent case management conferences constituted "steps required to advance the proceeding" and thus a valid timetable under the Act.

Consequently, the motion to dismiss for delay was refused.

The appellants obtained a default judgment against Grocery Dayton for $980,200 after discontinuing their action against Wakefern Food Corporation.

Upon discovering Grocery Dayton was not a legal entity, the appellants moved to amend the judgment to add Wakefern as a judgment debtor, arguing Grocery Dayton was merely an alias for Wakefern.

The motion judge dismissed the motion, finding insufficient evidence that the two were the same entity.

The Court of Appeal upheld the dismissal, agreeing there was insufficient evidence and that it would be unfair to add Wakefern without allowing it to defend the action on its merits.

However, the Court exercised its jurisdiction to set aside the discontinuance against Wakefern.

The defendants brought a motion for summary judgment to dismiss the plaintiff's claim for damages arising from an alleged breach of contract and negligence related to a billboard lease.

The parties had agreed to terminate the lease in 2009, but the defendants did not remove the sign until 2013.

The plaintiff claimed various damages, including lost revenue and property damage, but failed to provide sufficient evidence.

The court found that both parties contributed to the delay but held the defendants liable for the value of uncashed rent cheques tendered during the delay period.

Judgment was granted to the plaintiff for $8,854.30.

The applicant physician sought a declaration that the hospital board's decision to revoke his privileges mid-term was automatically stayed pending his appeal to the Health Professions Appeal and Review Board, pursuant to s. 25(1) of the Statutory Powers Procedure Act (SPPA).

The Divisional Court granted the declaration, finding that the hospital's by-laws and a prior agreement created a legitimate expectation that the applicant was entitled to a formal hearing.

Because a hearing was required 'otherwise by law', the SPPA applied, triggering the automatic stay provision.

The parties consented to fix costs in the amount of $89,972.43.

The court ordered that the costs be payable within two weeks of the respondent deciding not to appeal, or within two weeks of an order dismissing the respondent's appeal if leave is granted.

If the respondent successfully appeals, costs will be determined by the Court of Appeal.

In a competition class proceeding alleging price‑fixing in the static random access memory (SRAM) industry, the plaintiff sought court approval of a national settlement reached with certain defendants and approval of interim class counsel fees.

The settlement required the settling defendants to pay $1.5 million for the benefit of settlement class members across Ontario, British Columbia, and Québec, and to provide cooperation in the ongoing litigation against remaining defendants.

The court applied established class action settlement approval principles, assessing fairness, reasonableness, and the best interests of the class.

Finding the settlement well‑investigated, negotiated at arm’s length, and beneficial to class members given the risks of continued litigation, the court approved the settlement and the requested class counsel fees.

In a proposed class action alleging a price‑fixing conspiracy in the optical disc drive (ODD) market contrary to common law and s. 45 of the Competition Act, the plaintiff sought leave to amend the claim to add eighteen additional corporate defendants.

The defendants opposed the amendment on the basis that limitation periods under the Limitations Act and s. 36(4) of the Competition Act had expired.

The court held that at the pleadings amendment stage it was inappropriate to make definitive findings on discoverability or the expiry of limitation periods where the evidentiary record was incomplete.

Although the plaintiff’s evidence regarding due diligence was thin, the court concluded it would be unfair to refuse the amendment solely on the deficient record.

The motion was adjourned to permit the plaintiff to file additional evidence addressing discoverability and diligence.

Application for a final order approving a corporate plan of arrangement under s. 182 of the Ontario Business Corporations Act.

The proposed transaction involved the acquisition and division of assets of the corporation among related entities, with shareholders receiving a combination of cash and shares.

The court reviewed the governing framework established in BCE Inc. v. 1976 Debentureholders, requiring that the transaction constitute an arrangement, comply with statutory and court-ordered procedures, be proposed in good faith, and be fair and reasonable.

Evidence showed overwhelming shareholder approval, provision of dissent rights, and oversight by an independent special committee with fairness advice.

The court concluded the arrangement had a valid business purpose and fairly balanced the interests of affected stakeholders.

The Ontario Energy Board brought a motion to quash two summonses issued by the appellant to a Board member and the Board's external counsel.

The appellant sought to examine them in aid of a motion to adduce fresh evidence on appeal, alleging a reasonable apprehension of bias because the external counsel's firm had represented the appellant's competitors and was a member of an industry association.

The Divisional Court quashed both summonses, finding that the proposed lines of inquiry were irrelevant to the objective test for a reasonable apprehension of bias.

The court also analyzed testimonial immunity under s. 10 of the Ontario Energy Board Act, 1998, deliberative secrecy, and solicitor-client privilege, finding multiple additional grounds to quash the Board member's summons and partial grounds to quash the external counsel's summons.