Teagan Markin

The appellant real estate developers sought judicial review of a decision by the Ontario Energy Board (OEB) regarding a cost-sharing dispute with an electricity distributor.

The Divisional Court dismissed the application for lack of jurisdiction, finding the OEB had merely provided an opinion and had not exercised a statutory power of decision.

The Court of Appeal allowed the appeal, holding that the OEB's interpretation of the Distribution System Code to resolve the parties' complaint constituted a final, binding decision under its exclusive statutory jurisdiction.

As such, the decision was of a sufficiently public character to attract public law remedies, including certiorari, and constituted the exercise of a statutory power of decision under the Judicial Review Procedure Act.

A reference to the Court of Appeal for Ontario concerning whether legal online gaming and sports betting would remain lawful under the Criminal Code if users were permitted to participate in games and betting involving individuals outside of Canada.

The majority (Tulloch C.J.O., Gillese, Hourigan and Dawe JJ.A.) answered affirmatively, finding that section 207(1)(a) of the Criminal Code permits Ontario to conduct and manage a lottery scheme with international pooled liquidity, provided Ontario continues to conduct and manage the Ontario-based aspects of the scheme in accordance with provincial law.

The majority rejected the application of the real and substantial connection test and distinguished the Earth Future decisions.

Van Rensburg J.A. dissented, arguing that the Proposed Model would contravene the Criminal Code because it would require Ontario to conduct and manage aspects of the lottery scheme outside Ontario's territorial boundaries, contrary to the plain meaning of "in that province" in section 207(1)(a).

Binance Holdings Limited appealed orders from the Divisional Court and Ontario Securities Commission regarding an investigation into Binance's operations in Ontario.

The Commission had issued a summons demanding production of documents and communications relating to alleged violations of the Securities Act.

Binance challenged the summons as unconstitutionally overbroad under section 8 of the Canadian Charter of Rights and Freedoms.

The Court of Appeal allowed the appeal in part, finding that the Divisional Court erred in declining to judicially review the Charter arguments and that the summons was an unreasonable seizure because it lacked a reasonable foundation to believe the demanded documents were relevant to the investigation.

The applicant, West Whitby Landowners Group Inc., sought leave to appeal a Divisional Court decision that dismissed their judicial review application against the Ontario Energy Board (OEB) and Elexicon Energy Inc. The Divisional Court had found it lacked jurisdiction over the OEB's opinion on cost allocation, deeming it not a statutory power of decision affecting legal rights, and that certiorari was unavailable.

The Court of Appeal granted leave to appeal, clarifying the test for leave to appeal from the Divisional Court.

The court emphasized that the key consideration for granting leave is the impact the decision will have on the development of Ontario's jurisprudence, particularly in administrative and public law, moving away from a rigid checklist approach.

The defendant, Chartered Professional Accountants of Ontario (CPAO), sought summary judgment to dismiss the plaintiff's claim for misfeasance in public office and breach of fiduciary duty, arguing the claim was statute-barred by the Limitations Act.

The plaintiff, an aspiring accountant, alleged CPAO manipulated his Common Final Examination (CFE) results, leading to his deregistration.

The court found that the plaintiff's claim was discoverable on November 27, 2020, when he received his CFE results, and his subsequent appeal of the deregistration decision did not toll the limitation period as it was not an adequate alternative remedy for challenging the exam results.

The plaintiff failed to rebut the statutory presumption of discoverability.

Consequently, the defendant's motion for summary judgment was granted, and the plaintiff's action was dismissed as being out of time.

The moving party, Binance Holdings Limited, sought an order under ss. 6(2) and (3) of the Courts of Justice Act to join two appeals: one to the Divisional Court from an OSC decision and another to the Court of Appeal from a Divisional Court decision.

Binance argued the appeals were "in the same proceeding" and combining them would serve the administration of justice.

The Ontario Securities Commission opposed, arguing the appeals were distinct and combining them would cause delay and bypass appellate hierarchy.

The court granted the motion, finding the appeals were in the same proceeding due to identical parties, facts, legal issues, and legal origin (investigation order and summons).

The court also found that combining the appeals would allow for a full and final resolution of the jurisdictional issue, mitigate the risk of inconsistent findings, and secure a just, expeditious, and least expensive determination of the issues.

The applicant, West Whitby Landowners Group Inc. (WWLG), brought an application seeking the court to decide a dispute with Elexicon Energy Inc. regarding the classification and funding of a municipal electrical substation.

This followed an opinion from the Ontario Energy Board (OEB) siding with Elexicon and the Divisional Court's dismissal of WWLG's judicial review application.

The respondents, Elexicon and the OEB, brought a motion to dismiss WWLG's application.

The court dismissed WWLG's application, finding it constituted an abuse of process as it attempted to relitigate a matter already determined by the OEB, and further, that the OEB had exclusive jurisdiction over the subject matter concerning compliance with the Distribution System Code.

The Court of Appeal for Ontario heard motions for leave to adduce evidence and for a confidentiality order in the context of a reference regarding the legality of an online provincial lottery scheme permitting international play.

The court granted leave to the Attorney General of British Columbia and the Canadian Lottery Coalition Members to file their proposed evidence, finding it potentially helpful for the reference panel.

The court dismissed the Canadian Gaming Association's motion for a confidentiality order, ruling that alleged reputational harm was a private interest insufficient to override court openness, especially as the information was largely public.

Following the dismissal of the applicants' challenge to Western University's COVID-19 vaccine mandate, the university sought partial indemnity costs of $97,721.11.

The applicants argued no costs should be awarded as the case was public interest litigation.

The court rejected this argument, finding the case lacked the exceptional nature required to deviate from the usual costs rules, and noted the applicants were backed by a litigation fund.

The court awarded the university costs fixed at $75,000.

The applicant students sought declaratory and permanent injunctive relief against the respondent university's COVID-19 Vaccination Policy, arguing that the collection of proof of vaccination violated s. 38(2) of the Freedom of Information and Protection of Privacy Act (FIPPA).

The court found that the university's broad statutory powers authorized the Policy as a 'lawfully authorized activity' and that the collection of proof of vaccination was 'necessary' to properly administer and enforce the mandate.

The application was dismissed.

The applicant underwriters sought a declaration that the respondent issuer, Aphria Inc., was required to pay their ongoing legal fees in defending a proposed securities class action.

The class action alleged that the underwriters engaged in market manipulation prior to a prospectus offering.

Aphria argued that the indemnity in the underwriting agreement did not cover intentional wrongdoing.

The court held that the plain language of the indemnity clause required Aphria to pay defence costs for any claims arising from the underwriters' professional services, subject only to an exclusion if a court makes a final, non-appealable determination of fraud or willful misconduct.

As no such determination had been made, the application was granted.

Following a successful motion by the defendant to strike the plaintiff's statement of claim with leave to amend, the court determined the appropriate costs award.

The moving party sought over $43,000 on a partial and substantial indemnity basis, relying on an offer to settle.

The court found the offer to settle was less favourable than the outcome because it did not contemplate leave to amend, and thus awarded costs on a partial indemnity scale.

Applying the factors under Rule 57.01, the court fixed costs payable by the plaintiff to the moving party at $23,969.22.

The moving defendants brought a motion for security for costs against the corporate plaintiff in an action arising from a failed joint venture to develop LeBreton Flats.

The court found there was good reason to believe the plaintiff had insufficient assets to satisfy a costs award, as its liabilities exceeded its assets.

The plaintiff failed to demonstrate sufficient exigible assets, relying instead on future revenue streams which the court found inadequate.

The court concluded it was just to order security for costs, noting the moving defendants were minor players facing significant expenses and the plaintiff's controlling shareholder would otherwise be shielded from costs liability.

The plaintiff was ordered to post security in instalments.

The corporate defendant brought a motion to strike the plaintiff's statement of claim against it for disclosing no reasonable cause of action and to dismiss the oppression remedy claims for lack of jurisdiction.

The plaintiff alleged breach of an oral agreement for equity in a visual effects studio, conversion, fraudulent misrepresentation, and oppression.

The court found the plaintiff failed to plead any material facts establishing that the corporate defendant owed obligations under the agreement or engaged in wrongful conduct.

The statement of claim was struck with leave to amend, and the oppression claims were dismissed as the court lacked jurisdiction over the discontinued corporation.

The applicants, former officers of the respondent corporation, brought applications for advance funding of their legal fees to defend an action alleging complex commercial fraud.

The applications were brought pursuant to the corporation's Unanimous Shareholders Agreement and section 124 of the Canada Business Corporations Act.

The court applied the strong prima facie case test to determine if advance funding should be denied due to bad faith.

The court dismissed the application of the former CEO, finding a strong prima facie case of fraud had been established against him in a related Mareva injunction motion.

The court granted the application of the former COO, as the evidence did not establish a strong prima facie case of fraud against him.

The plaintiffs brought a motion for a Mareva injunction (asset freezing order) against several defendants, alleging a complex commercial fraud involving misappropriated funds, illicit acquisition fees, and kickbacks across multiple real estate development projects.

While the court found a strong prima facie case of fraud against the defendant Lee regarding his receipt of concealed acquisition fees, it found no such case against the other responding defendants.

Ultimately, the court dismissed the motion against all defendants because the plaintiffs failed to establish a real risk of asset dissipation, irreparable harm, or that the balance of convenience favoured granting the extraordinary remedy.