Timothy H. Gilbert

The appellants appealed an order dismissing their action as an abuse of process.

The motion judge found that the appellants could have raised their allegation of being specifically targeted in prior judicial review proceedings regarding the FIT program.

The Court of Appeal upheld the decision, confirming that the abuse of process doctrine applies to issues that could have been determined in earlier administrative processes, and found no error in the motion judge's refusal to exercise her discretion to allow the action to proceed.

The appellants, a bank and its assignee, appealed a trial judgment finding they improperly used the respondent developer's confidential business information during the assignment of a defaulted loan, causing a lost opportunity.

The Court of Appeal allowed the appeal, holding that the bank had an unqualified right to assign the debt.

Furthermore, the Court found that the trial judge erred in awarding damages based on a 'lost opportunity' theory that was neither pleaded nor supported by the evidence.

The cross-appeal by the respondent was dismissed, and the action against the appellants was dismissed in its entirety.

The appellant challenged an order striking its amended statement of claim alleging that brand-name pharmaceutical manufacturers and a related generic seller marketed pseudo-generic drugs through misleading origin representations and anti-competitive pricing practices.

The Court of Appeal held that the pleading could support a claim under s. 52 of the Competition Act, as well as related tort claims for unlawful interference with economic relations and conspiracy, because the alleged false statement of origin could have been made to promote a business interest and in a material respect.

The court agreed, however, that the double ticketing claim under s. 54 of the Competition Act and the Business Practices Act allegations were not viable on the pleaded facts.

The court also held that it was not plain and obvious that the Food and Drugs Act claim against the generic seller must fail.

The appeal was allowed in part with costs to the appellant.

In a winding-up of a charitable corporation facing extensive institutional abuse claims, the liquidator sought appellate clarification on whether assets allegedly held on special purpose charitable trusts were shielded from tort creditors whose claims arose elsewhere within the charity’s operations.

The court held that Canadian law recognizes no charitable immunity from tort liability and rejects any trust-fund theory that would immunize charitable assets from execution.

In the winding-up context, all assets of the charitable corporation, whether beneficially owned or held on trust for charitable purposes, were available to satisfy legitimate tort claims.

The court also struck out a paragraph of the order suggesting it was not intended to affect related British Columbia proceedings, while confirming that the British Columbia court remained free to make its own factual findings on ownership issues.