Ryder Leigh Gilliland

Several major Canadian media companies brought an application challenging the constitutionality of ss. 119(1)(s) and 129 of the Youth Criminal Justice Act, arguing they unjustifiably infringe freedom of expression under s. 2(b) of the Charter by unduly limiting media access to youth court records and the ability to report on their contents.

The Superior Court found that both provisions infringe s. 2(b).

However, the court held that s. 119(1)(s), which requires the media to apply for access to records, is a reasonable limit saved by s. 1 given the pressing objective of protecting youth privacy.

Conversely, the court found that s. 129, which imposes a blanket ban on disclosing any information derived from youth records, is not minimally impairing and its deleterious effects outweigh its salutary benefits.

Section 129 was declared of no force and effect.

At a case conference, the plaintiff sought to abandon his summary judgment motion following extensive new documentary disclosure by the defendants, and instead proceed to trial.

The plaintiff also indicated an intention to amend his statement of claim and file a jury notice.

The defendants argued that the motion judge should remain seized as the trial judge or at least determine the costs of the abandoned motion.

The court held that the summary judgment motion would not proceed, directed further examinations on the newly produced documents, and deferred the issues of costs and whether the motion judge should be seized as the trial judge to a later formal motion.

The appellant, a retiree, posted comments on a community Facebook page accusing the respondent real estate developer of corrupt business tactics and bribery.

The developer sued for defamation, and the appellant brought an anti-SLAPP motion under s. 137.1 of the Courts of Justice Act to dismiss the action.

The motion judge dismissed the anti-SLAPP motion, allowing the defamation action to proceed.

On appeal, the Court of Appeal upheld the motion judge's decision, finding grounds to believe the defamation claim had substantial merit and that the appellant had no valid defence of fair comment, as the statements could be viewed as factual assertions and there was a basis to find malice.

The Court also upheld the finding that the likelihood of serious harm to the developer outweighed the public interest in protecting the expression.

However, the Court allowed the appeal on costs, reducing the motion judge's substantial indemnity costs award to partial indemnity.

The defendants brought a motion to dismiss the plaintiff foreign bank's civil action for fraud and breach of contract on the basis of issue estoppel and abuse of process, arguing that Iranian criminal courts had already declined to prosecute the individual defendant for the same conduct.

In the alternative, the defendants sought a stay based on forum non conveniens or an order for security for costs.

The court dismissed the motions based on issue estoppel, abuse of process, and forum non conveniens, finding that the Iranian criminal proceedings did not finally determine civil liability and that Ontario remained an appropriate forum.

However, the court granted the motion for security for costs, ordering the plaintiff to post $175,000 as it had no assets in Ontario or a reciprocating jurisdiction.

The plaintiff, a municipal politician, sued two journalists for unlawful means conspiracy, alleging they conspired with confidential CSIS sources to illegally leak and publish classified information portraying him as an agent of the Chinese government.

The journalists brought a motion to dismiss the action under the anti-SLAPP provisions of the Courts of Justice Act (s. 137.1).

The court granted the motion, finding that the articles related to matters of public interest (foreign interference).

The court held that the plaintiff failed to show the conspiracy claim had substantial merit, as there was no evidence the journalists agreed to anything beyond protecting their sources' identities, nor did they engage in unlawful conduct.

Furthermore, the public interest in protecting investigative journalism and confidential sources on matters of national security outweighed the harm suffered by the plaintiff.

This costs endorsement follows the plaintiffs' success in defeating an anti-SLAPP motion to dismiss their libel action.

The court considered whether to award costs to the successful plaintiffs, referencing the discretion provided by section 137.1(8) of the Courts of Justice Act.

Finding that the defendant's impugned words were designed to cause serious detriment to the plaintiffs and undermine their business, the court exercised its discretion to award costs.

The court settled on a compromise amount, ordering the defendant to pay the plaintiffs $89,000 in all-inclusive costs.

The court dismissed the defendant’s anti-SLAPP motion under section 137.1 of the Courts of Justice Act, finding that Facebook posts made by the defendant accusing the plaintiffs of corruption and bribery were not protected as fair comment.

The posts, which followed a controversial development approval in Niagara-on-the-Lake, were found to be based on falsehoods and reckless disregard for the truth, with the defendant admitting he had “no proof” for his accusations.

The court held that the harm to the plaintiffs’ reputation and business interests outweighed the public interest in protecting the defendant’s expression, and that the posts were motivated by an ulterior motive to thwart the plaintiffs’ development project.

The appellants, Gianni Evangelisti and Freedom Pools Inc., appealed a lower court order dismissing their application for an injunction to prevent the Canadian Broadcasting Corporation (CBC) from publishing a story about disputes with their customers.

The appeal raised grounds concerning the refusal of cross-examination, apprehension of bias, and dismissal of Charter claims.

The Court of Appeal found no error in the application judge's exercise of case management powers or the dismissal of the application on its merits, affirming that the conduct did not reflect bias.

The appeal was dismissed.

The media appellants sought full, unredacted access to youth court records concerning eight young persons accused of second-degree murder, arguing that the open court principle (Dagenais-Mentuck test) should grant them presumptive access.

The Youth Court and Superior Court granted only partial, redacted access, holding that the Youth Criminal Justice Act (YCJA) statutory scheme for record access (s. 119(1)(s)) takes precedence over the common law open court principle.

The YCJA requires applicants to demonstrate a "valid interest" and that access is "desirable in the interest of the proper administration of justice" balancing public interest with the young persons' heightened privacy rights and rehabilitation goals.

The Superior Court also declined to hear the appellants' constitutional challenge to the YCJA provisions, deeming the Youth Court the more appropriate forum.

The Court of Appeal dismissed the appeal, affirming that the YCJA's specific statutory regime for youth record access is a valid exception to the open court principle and that the media must meet its criteria via a formal application on notice.

It also upheld the discretion not to hear the constitutional challenge at the Superior Court level.

The applicants sought leave to appeal a decision dismissing their application to enjoin the CBC from broadcasting a report about their business, and requested an interim injunction pending appeal.

The Divisional Court dismissed the motion for leave to appeal for lack of jurisdiction, finding that the underlying order was a final order dismissing the entire application, meaning the appeal lies to the Court of Appeal for Ontario under s. 6(1)(b) of the Courts of Justice Act.

The Applicant successfully sought costs on a full indemnity basis after having the Respondent declared a vexatious litigant.

The Respondent requested deferral of the costs decision pending an appeal of the vexatious litigant finding, which the court denied.

The court awarded full indemnity costs of $60,888.36, inclusive of HST and disbursements, finding such an award appropriate given the vexatious nature of the Respondent's conduct and the importance of the application in curbing abusive proceedings.

The applicants sought an interim, interlocutory, and permanent injunction to prevent the Canadian Broadcasting Corporation from publishing a news story regarding alleged breaches of contract and customer complaints.

They also sought damages from former customers who spoke to the CBC.

The court dismissed the application, finding that the applicants failed to meet the high test for an injunction in defamation proceedings, particularly given the constitutional protection of freedom of expression.

The court also found that damages would be an adequate remedy and that the balance of convenience favored the respondents.

Costs were awarded on a full indemnity basis due to the improper and vexatious nature of the application, including the naming of former customers as respondents.

The applicant sought a declaration that the respondent was a vexatious litigant under section 140 of the Courts of Justice Act, along with an order prohibiting further proceedings without leave and requiring payment of outstanding costs.

The court reviewed the respondent's history of litigation, including persistent unsuccessful appeals, failure to pay costs, abusive conduct, and meritless applications.

The court found the respondent's conduct to be vexatious, abusive, and a drain on judicial resources, granting the applicant's request for a vexatious litigant declaration and associated relief.

This is a costs endorsement following the successful dismissal of a defamation action under anti-SLAPP provisions.

The defendants sought full indemnity costs, while the plaintiff argued for a reduced scale due to the defendants' delay in bringing the anti-SLAPP motion and their conduct.

The court, applying the framework from Levant v DeMelle, found that the plaintiff's action bore hallmark indicia of an anti-SLAPP suit, justifying the presumptive full indemnity costs.

The court dismissed the plaintiff's arguments regarding delay and conduct, finding the requested costs proportionate and reasonable.

The defendants brought a motion under section 137.1 of the Courts of Justice Act to dismiss the plaintiff's defamation action as an impermissible SLAPP suit.

The plaintiff, a former municipal councillor, sued the defendants over a newspaper column that suggested he had a conflict of interest regarding a municipal development project.

The court found that while the defamation claim had substantial merit and the defences of fair comment and responsible communication lacked a real prospect of success, the plaintiff failed to prove that the harm he suffered outweighed the public interest in protecting the political expression.

The motion was granted and the action was dismissed.

The media applicants sought certiorari to quash a Youth Court judge's decision regarding access to youth court records in a high-profile murder case, arguing the judge erred in applying the Dagenais/Mentuck/Sherman Estates test and requiring a formal application.

They also sought to bring a constitutional challenge to the Youth Criminal Justice Act's access provisions.

The court dismissed the certiorari application, finding the Youth Court judge correctly applied the test by balancing the open court principle with the YCJA's privacy protections for young persons, and that a formal application is required for media access under s. 119(1)(s)(ii).

The court also declined to hear the constitutional challenge, stating it should first be heard in Youth Court where a full record is available and which has exclusive jurisdiction over YCJA access issues.

The defendant, University of Ottawa, brought a motion to dismiss a proposed class action for delay under section 29.1 of the Class Proceedings Act, 1992.

The action, commenced in May 2018, was subject to a mandatory dismissal date of October 1, 2021, due to transition provisions, as no certification motion had been filed nor a timetable agreed upon or ordered.

The plaintiff argued that settlement negotiations constituted steps to advance the proceeding and that promissory estoppel applied.

The court found that settlement negotiations do not satisfy the statutory requirements and that there was no evidence to establish promissory estoppel.

The motion was granted, and the action was dismissed with costs.

The appellant, a creditor of the Kyrgyz Republic, appealed the dismissal of its garnishment motion against Centerra Gold Inc., seeking to garnish a $50 million intercompany payment made by Centerra to its subsidiary, Kumtor Gold Company CJSC (KGC), as part of a court-approved plan of arrangement.

The appellant argued that the Kyrgyz Republic was the alter ego of KGC due to de facto appropriation.

The Court of Appeal dismissed the appeal, finding no reversible error in the application judge's determination that Centerra had not lost all control over KGC and was not deprived of all economic benefits, and that KGC remained a separate corporate entity.

A group of media organizations applied under section 119 of the Youth Criminal Justice Act for access to the unredacted youth criminal court records of eight young persons charged with second degree murder.

The Crown and the young persons opposed the application, citing the young persons' heightened privacy interests and fair trial rights.

The court found that while the media had a valid interest in the records, granting access to the entire unredacted file at this early stage was not desirable in the interest of the proper administration of justice due to the risk of irreversible harm from inadvertent dissemination of private information.

The court granted partial access to redacted records, including the charging informations and bail release orders, with identifying information removed.

Following the approval of a Plan of Arrangement under the Canada Business Corporations Act, the successful applicant sought costs against the objecting creditors.

The objectors argued the applicant was disentitled to costs for failing to request them initially and that the quantum sought was excessive.

The court rejected the disentitlement argument, finding the objectors had notice that costs would be addressed in writing.

The court awarded $100,000 in costs, reducing the requested amount for proportionality, and ordered the costs payable jointly and severally by the objectors as they had pursued a common strategy.