Thomas Sloan Heintzman

The appeal concerned whether retail Internet service providers, when providing end-users with Internet access to requested programming, carry on broadcasting undertakings under the Broadcasting Act.

The court held that the statutory terms, read in light of the Act’s language and policy objectives, do not capture entities that merely provide a transmission mode without selecting, originating, or packaging content.

Prior authorities on transmission and conduit functions were treated as consistent with this interpretation, while precedent involving content control by cable licensees was distinguished.

The appeal was dismissed, confirming that access-providing Internet service providers are not broadcasting undertakings in this context.

The defendants brought a motion to strike out the plaintiffs' statement of claim, which alleged breach of a settlement agreement, civil conspiracy, and interference with economic relations arising from the defendants' implementation of new real estate rules that effectively prohibited the plaintiffs' flat-fee brokerage model.

The court dismissed the motion, finding that the plaintiffs had properly pleaded all necessary elements for breach of contract, predominant purpose conspiracy, unlawful means conspiracy, and interference with economic relations.

The court held that it was not plain and obvious that the claims would fail, and that the individual defendants could be held personally liable despite being officers or directors of the corporate defendants, as the pleadings alleged they acted maliciously, outside their authority, and for their own personal business interests.

The appellant insurers appealed an order requiring them to pay 90 per cent of the respondents' defence costs under a directors' and officers' liability insurance policy.

The dispute centered on whether Endorsement 3 of the policy applied to allocate defence costs for 'Hybrid Proceedings' that involved both covered and uncovered conduct, despite the claims not being made during the 2001 policy period.

The Court of Appeal dismissed the appeal, finding that the policy's definition of 'Claim' was not time-limited and that Endorsement 3 applied to allocate 90 per cent of the defence costs to the covered loss.

The appellant, a real estate broker, created a website that provided the public with direct access to the Toronto Real Estate Board's (TREB) MLS Database.

TREB suspended the appellant's access without notice, arguing he breached the Authorized User Agreement (AUA).

The trial judge found the appellant breached the AUA by not confining his use of the database to exclusive and internal use, and that TREB was justified in suspending access without notice.

The Court of Appeal upheld the trial judge's interpretation of the AUA and dismissed the appeal.

The applicants, minority shareholders of MI Developments Inc. (MID), brought applications under sections 104 and 127 of the Securities Act alleging that MID failed to comply with Multilateral Instrument 61-101 (MI 61-101) by not obtaining minority shareholder approval for a series of related party transactions with Magna Entertainment Corp. (MEC).

The transactions included loans, loan extensions, and debtor-in-possession financing.

The Ontario Securities Commission dismissed the applications, finding that section 104 does not apply to related party transactions.

While the Commission permitted the applications under section 127, it concluded that MID was entitled to rely on the downstream transaction exception and the market capitalization exemption under MI 61-101.

The Commission also found no prima facie case of insider trading in connection with a related trust transaction.

The appellants, former directors and officers, sought a declaration that their insurer was obligated to pay 90 or 100 per cent of their defence costs for civil and regulatory proceedings arising from conduct in 2001 and 2003.

The insurer had been paying 50 per cent, arguing the policy only covered the 2001 conduct.

The application judge dismissed the application.

On appeal, the Court of Appeal found the policy's allocation provisions ambiguous when read with the definition of 'Loss'.

Because the factual record was insufficient to resolve the ambiguity or determine if the doctrine of contra proferentem applied, the Court allowed the appeal and directed a new hearing on the allocation issue.

The respondent sought costs of a one-day appeal on a substantial indemnity basis in the amount of $76,138.70.

The court found no basis for substantial indemnity costs as there was no misconduct by the appellant.

The court also found the 193.7 hours claimed by the respondent's four lawyers to be excessive for a case of moderate complexity.

Costs were fixed at $25,000 inclusive of GST and disbursements.

The appellant Registrar appealed a Board decision granting a liquor licence to the respondent nightclub.

The appellant argued the Board failed to properly consider the past conduct of the respondent's principal and the public interest concerns of local residents.

The Divisional Court dismissed the appeal, finding that the Board applied the correct legal tests, properly weighed the evidence, and provided adequate reasons for its conclusions.

The applicant brought a motion to stay a Board decision granting a liquor license to a large nightclub pending appeal.

The applicant argued that the influx of patrons would jeopardize public safety in the entertainment district.

The court applied the RJR-Macdonald test and found a serious issue to be tried, but concluded the applicant failed to establish irreparable harm, as the safety concerns were speculative and subject to other regulatory regimes.

The balance of convenience favoured the respondent due to substantial financial investments.

The motion for a stay was dismissed.

The appellants appealed a motion judge's decision dismissing their motion to stay or dismiss the respondent's action on the basis of forum non conveniens.

The appellants argued that the motion judge misplaced the evidentiary burden by failing to require the respondent to show why the action should be heard in Ontario, given an exclusive jurisdiction clause favouring Quebec or New York.

The Court of Appeal dismissed the appeal, finding that while the motion judge may have erred in principle regarding the burden of proof under the forum selection clause, order and fairness overwhelmingly favoured Ontario as the appropriate forum due to the existence of multiple related proceedings already before the Ontario courts.

The appellant, a university student, was suspended by the President of York University for alleged misconduct without a hearing.

The appellant sued the President and the University, pleading misfeasance in a public office.

The defendants successfully moved to strike the claim on the basis that the President was not a public officer.

On appeal, the Court of Appeal held that it was not plain and obvious that the tort of misfeasance in a public office is restricted to public officers subject to the Charter.

The appeal was allowed and the claim was permitted to proceed.

The respondent collective society sought to impose copyright liability on Internet Service Providers (ISPs) for music downloaded in Canada from foreign countries.

The Supreme Court of Canada held that ISPs acting merely as conduits for information communicated by others are protected from liability under s. 2.4(1)(b) of the Copyright Act.

The Court also ruled that the creation of temporary 'cache' copies for technical reasons of economy and efficiency falls within this protection.

Furthermore, the Court determined that the Copyright Act applies to international Internet transmissions that have a real and substantial connection to Canada, rejecting the view that a communication only occurs in Canada if it originates from a server located within the country.

The parties reached a settlement on the appeal from the judgments of Justice Susan E. Greer.

The Court of Appeal ordered that the $1.5 million held in trust pursuant to a prior order be transferred forthwith to Goldman Sloan in trust pending further order, and that necessary consents be filed to give effect to the Minutes of Settlement.

The defendant sought leave to appeal a decision dismissing its motion to stay or dismiss the action on the basis of jurisdiction and forum non conveniens.

The defendant argued that the motion judge failed to apply the correct principles regarding forum selection clauses as recently set out by the Supreme Court of Canada.

The Divisional Court found that the motion judge had correctly applied the principles, noting that the burden on the plaintiff to show strong cause only arises once the jurisdiction clause is found to be binding, which the motion judge did not find.

The motion for leave to appeal was dismissed.

The defendant franchisor moved for leave to appeal an order certifying a class proceeding brought by franchisees regarding the withholding of rebates.

The defendant argued that the proposed representative plaintiffs had a conflict of interest with other class members who had different economic arrangements with the franchisor and feared disruption of their businesses.

The court granted leave to appeal, finding that the issue of whether the representative plaintiffs could fairly and adequately represent the class without conflict was open to serious debate and of general importance to the development of class action law.

The appellants, minority shareholders of a Manitoba broadcasting corporation, brought an action in Ontario seeking an oppression remedy under the Canada Business Corporations Act against the majority shareholder and its affiliates.

The motions judge stayed the action, finding Ontario lacked jurisdiction and that Manitoba was the convenient forum.

On appeal, the Court of Appeal held that the motions judge erred in applying the real and substantial connection test to defendants present in Ontario, and found that Ontario did have jurisdiction over all defendants, including the extra-provincial defendant.

However, the Court upheld the stay on the basis that Manitoba was clearly the more convenient forum, as the dispute primarily concerned the internal management of a Manitoba corporation.

The appellants appealed a judgment declaring that the sale of Hydro One shares by the Crown contravened s. 48(1) of the Electricity Act.

Before the appeal was heard, the government withdrew the public offering and enacted new legislation repealing s. 48(1) and expressly authorizing the sale of the shares.

The Court of Appeal dismissed the appeal as moot, finding that the legal and factual foundation of the dispute had disappeared and that the circumstances did not justify an exception to the general rule against hearing moot appeals.

The appellant, a sales representative, breached its fiduciary duty to the respondent manufacturer by failing to disclose an equity interest in a customer.

The respondent terminated the agreement upon discovering the breach two years later.

The trial judge declared that the respondent owed no further commissions to the appellant, finding that the respondent would have terminated the agreement earlier had it known of the breach.

The Court of Appeal upheld this equitable remedy, preventing the appellant from profiting from its non-disclosure.

However, the Court allowed the appeal regarding costs, finding that the appellant's conduct, while a serious breach, was not reprehensible enough to justify costs on a solicitor and client scale.

The Crown appealed a motions judge's decision refusing leave to amend its statement of defence and counterclaim in a breach of contract action regarding a software development project.

The Crown sought to add claims for negligent misrepresentation, professional negligence, and conspiracy against the plaintiff, and to add two related foreign corporate entities as defendants by counterclaim.

The Court of Appeal allowed the appeal, finding that the motions judge erred in concluding the tort claims were barred by the contract's entire agreement clause and in applying a 'presumptive refusal' rather than 'presumptive approval' test for amending pleadings.

The appellant municipality sought to enforce Ontario's building code and development charge regime against a massive redevelopment project at a federally owned international airport operated under long-term leases.

The court held that the entire redevelopment, including terminals, runways, utilities, and air navigation facilities, fell within Parliament's exclusive jurisdiction over aeronautics and also formed part of a federal undertaking, such that provincial laws directly regulating building design, permits, and development charges were constitutionally inapplicable under interjurisdictional immunity.

The court further held that provincial land and property development legislation could not apply to the federal Crown's continuing property interest in leased airport lands.

Ancillary claims based on the ground lease, common law compensation, and refusal of fire services were rejected, with the municipality directed to pursue the statutory grant-in-lieu regime instead.