Terrence J. O’Sullivan

This endorsement addresses a procedural issue arising from the defendant's attempt to seek an order in Family Court to consolidate a civil action with a Family Law Proceeding, despite prior case management orders in the civil action deferring consideration of such a motion.

The court found the defendant's action to be improper and in non-compliance with its orders, directing the defendant to withdraw the consolidation relief sought in the Family Law Proceeding.

The decision emphasizes the importance of adhering to case management directions and preventing forum shopping between different court lists.

The plaintiff brought a motion to reinstate a professional negligence action that had been administratively dismissed and dormant for over two years.

The defendants brought a cross-motion to dismiss the action for delay under Rule 48.14.

The court found that although there was a two-year unexplained delay, the defendants suffered no non-compensable prejudice and had not demonstrated any urgency in moving the case along.

The court allowed the plaintiff's motion, reinstated the action, and dismissed the defendants' cross-motion.

The Ontario Securities Commission approved a settlement agreement between Staff and Home Capital Group Inc. (HCG) and three of its former executives.

The respondents admitted to misleading investors by failing to timely disclose the termination of several brokers and brokerages due to falsified loan applications, which caused a decline in mortgage originations.

The settlement included a $10 million payment by HCG for the benefit of a proposed class action, $500,000 in costs, and administrative penalties totaling $2 million against the individual respondents, who were also reprimanded and prohibited from acting as directors or officers of reporting issuers for varying periods.

The plaintiffs moved to add Chevron Canada Capital Company (CCCC) as a party defendant to their action seeking to enforce an Ecuadorian judgment against Chevron Corporation.

The court dismissed the motion, finding that the proposed amendment was not legally tenable and disclosed no cause of action against CCCC, as the court had previously ruled that Chevron Canada's corporate veil could not be pierced.

Furthermore, the court found no basis for jurisdiction over CCCC, a Nova Scotia company with no assets or operations in Ontario, and noted that Rule 17.02(o) regarding necessary parties had been repealed.

The Steering Committee, an unincorporated group of physicians and scientists, sought to intervene in a joint hearing of motions concerning the allocation of actuarially unallocated funds from the 1986-1990 Hepatitis C Settlement Agreement.

The Committee proposed allocating funds to its "National HCV Initiative" which aimed to benefit all Canadians with HCV, not just class members.

The court dismissed the intervention request, finding that the Steering Committee was a stranger to both the Settlement Agreement and the underlying litigation, lacking privity of contract or any substantive right to participate in the administration of the settlement.

In a Commercial List costs decision following a summary judgment motion in a shot-gun buy/sell dispute, two defendants who had obtained dismissal of the action against them sought substantial indemnity costs.

The court rejected substantial indemnity because no offers to settle had been made and the allegations of conspiracy and misappropriation were peripheral to the core contractual dispute.

Applying Rule 57 and proportionality principles, the court reduced the claimed partial indemnity amount to reflect the moving parties’ subordinate role on the motion and to exclude fees of non-record corporate and estates solicitors.

The moving parties were awarded all-inclusive partial indemnity costs of $91,400 payable within 30 days.

The moving party brought a motion under Rule 57.07 of the Rules of Civil Procedure seeking to hold opposing counsel personally liable for litigation costs allegedly caused by misconduct, including advancing false evidence, suppressing documents, and encouraging clients to give perjured testimony.

The court conducted a detailed review of the history of the litigation and the governing principles for imposing personal cost liability on counsel.

While the court found that counsel had made some serious litigation errors, including failing to properly list privileged documents in an affidavit of documents and mishandling document preservation, it held that the conduct did not cause costs to be incurred without reasonable cause within the meaning of Rule 57.07.

The court emphasized the adversarial nature of civil litigation, the extreme caution required before awarding costs personally against lawyers, and the availability of procedural remedies to address discovery issues.

The motion was dismissed.

Pharmacy and retailer appellants challenged provincial regulations that barred private-label generic drugs from formulary listing and interchangeable designation.

The Court reaffirmed that delegated legislation is presumed valid and is ultra vires only if inconsistent with statutory purpose or outside delegated authority.

It held the regulations aligned with the legislative scheme aimed at reducing prescription drug costs and promoting transparent pricing while maintaining safety.

The measures were rationally connected to preventing circumvention of rebate and allowance restrictions through affiliated manufacturers.

The appeal was dismissed.

In the context of ongoing inspection, receivership, and bankruptcy proceedings involving multiple corporations and a charitable foundation, counsel for the foundation sought a suspension of all proceedings pending determination of a contempt motion brought by the receiver against the foundation’s lawyer.

The moving party argued that the contempt allegation created a professional conflict of interest that would impair counsel’s ability to continue representing the client.

The receiver amended its motion to remove the requested contempt remedy against counsel, while reserving the right to bring such a motion in the future.

The court held that because the contempt relief against counsel had been removed, there was no present basis to suspend the proceedings.

Potential future contempt proceedings were insufficient to justify delaying the matters.

On a Commercial List motion, the moving party sought an order under Rule 57.07 of the Rules of Civil Procedure requiring a former solicitor for the opposing parties to personally pay costs of the action on a substantial indemnity basis.

The hearing was scheduled to proceed but the respondent sought an adjournment due to medical issues following recent cardiovascular surgery.

The court granted the adjournment but addressed the issue of costs thrown away resulting from the late notice of the health issue.

The court held that parties must promptly communicate medical conditions that may affect scheduled hearings to reduce unnecessary costs.

Partial indemnity costs of $10,000 were ordered payable by the respondent to compensate the moving party for preparation costs rendered useless by the last‑minute adjournment.

The defendants brought motions for summary judgment to dismiss the plaintiffs' action arising from a shotgun buy-sell offer in a partnership dispute.

The plaintiffs claimed the offer was invalid, and alleged breach of contract, breach of fiduciary duty, and oppression.

The court found that the shotgun buy-sell offer was valid and complied with the partnership agreement.

The court also dismissed the claims for breach of fiduciary duty and oppression, finding that the defendants were entitled to exercise their contractual rights.

However, the court directed a trial on three specific breach of contract issues relating to closing arrangements and the calculation of net earnings.

The applicants, who own and operate pharmacies in Ontario, challenged the validity of provincial regulations that prohibited 'private label' generic drugs from being designated as interchangeable or listed for public reimbursement.

The Divisional Court held that the regulations were ultra vires the Ontario Drug Benefit Act and the Drug Interchangeability and Dispensing Fee Act.

The Court found that the enabling statutes authorized the imposition of conditions, not absolute prohibitions, and that the ban on private label products was extraneous to the legislative purpose of controlling drug costs.

The regulations were declared invalid and of no force and effect.

The appellant, RBC Dominion Securities, sued its former branch manager and several investment advisors who left en masse to join a competitor, Merrill Lynch.

The trial judge found the branch manager breached his implied contractual duty of good faith by orchestrating the departure, and awarded substantial damages for loss of profits.

The trial judge also awarded damages against the investment advisors for unfair competition during the notice period.

The Court of Appeal overturned these awards.

The Supreme Court of Canada allowed the appeal in part, reinstating the damages against the branch manager for breach of good faith, but upholding the Court of Appeal's decision that the investment advisors were not liable for unfair competition during the notice period.

The appellant appealed a summary judgment declaring that the parties had entered into a binding and enforceable settlement agreement.

The agreement required the appellant to deliver a final version of a DVD in exchange for an additional $10,000 payment.

The Court of Appeal dismissed the appeal, finding no genuine issue for trial, as the appellant's counsel had clearly and unequivocally accepted the offer via email.

The court also rejected arguments of economic duress and repudiation.

The appellant brought a motion seeking an extension of time to review an order requiring it to post $250,000 in security for costs.

The appellant argued that the extension was necessary because the original judge indicated he would remain seized of the matter while the appellant attempted to arrange security.

The Court of Appeal granted the extension of time but upheld the original order, finding the judge was entitled to conclude that $250,000 was an appropriate amount for security.

The appellant was granted a further period to post the security.

Ardagh PLC, an unsuccessful bidder in a court-approved sale process under the CCAA, sought leave to appeal the order approving the sale of Consumers Packaging Inc.'s assets to Owens-Illinois, Inc. The Court of Appeal refused leave, noting that leave to appeal in CCAA proceedings should be granted sparingly and not where it would prejudice the restructuring.

The court also noted that an unsuccessful bidder generally lacks standing to challenge a sale approval order.