Timothy Martin Lowman

Following the dismissal of an application to enforce a letter rogatory from a U.S. court against a non-party, the court determined the issue of costs.

The respondent successfully resisted the application by demonstrating it had searched its records and that the request was overly broad and premature.

The court found the respondent acted reasonably and did not thwart a legitimate inquiry.

Costs were awarded to the respondent on a partial indemnity scale, fixed at $32,053.03.

The applicant, Cisco Systems Inc., sought to enforce a Letter Rogatory from a U.S. District Court against N. Harris Computer Corporation, a non-party in the U.S. patent litigation, to obtain documents and depositions.

Harris resisted the order, arguing it was burdensome and unnecessary, and that the evidence could be obtained from a party to the U.S. litigation (Video Solutions).

The court declined to enforce the order at this time, finding it premature, but ordered Harris to preserve legacy records and allowed Cisco to renew the application with further evidence after certain steps are taken in the U.S. litigation.

The plaintiff brought an action for copyright infringement against several foreign corporate entities, alleging their animated film infringed his copyright in a short film of the same name.

The Master stayed the action against six defendants for lack of jurisdiction but allowed it to proceed against three others.

On appeal, the Divisional Court found the Master erred by failing to consider the evidence and misapplying the test for carrying on business.

Applying the real and substantial connection test, the Court held that Ontario has jurisdiction over all defendants except two, as there was a good arguable case that the other defendants committed copyright infringement in Ontario or the claim was in respect of property in Ontario.

The appellant sought an order declaring that it had properly commenced an arbitration by written demand dated October 6, 2017.

The arbitration clause in the insurance contract allowed the insured to select the venue and procedural laws of Bermuda or one of London, Toronto, or Vancouver under the English Arbitration Act of 1996.

The appellant argued that while the Act was incorporated by reference, its procedural provisions were excluded for arbitrations outside the UK, and that the UNCITRAL Rules would apply instead.

The Court of Appeal disagreed, finding that the plain wording of the contract required that where Toronto was the seat chosen, the arbitration be conducted in accordance with the procedural laws set out in the Act.

The Court also declined to determine whether the arbitration had been properly commenced, reserving that question to the arbitrators.

The applicant applied for an order to resolve an insurance policy dispute by arbitration at JAMS offices in Toronto.

The respondent argued that the arbitration should be conducted under the English Arbitration Act and that the applicant had not properly commenced the arbitration.

The court found that its jurisdiction to intervene only arises if there is a failure of the parties to agree on the appointment procedure.

Since the applicant had not followed the agreed procedure by making a proper written request and appointing its arbitrator, the court declined to intervene and dismissed the application.

The appellant appealed the dismissal of its motion to stay or dismiss an Ontario action commenced by the respondent.

The appellant relied on a forum selection clause in a Confidentiality Agreement designating Pennsylvania courts.

The motion judge had found the agreement unenforceable for lack of consideration because the respondent provided services through a corporate entity.

The Court of Appeal allowed the appeal, finding that the Consulting and Confidentiality Agreements must be read together as a composite whole, and that the mutual promises regarding access to and protection of proprietary information constituted valid consideration.

The cross-appeal was dismissed, and the Ontario action was stayed.

The respondent chiropractor commenced treating his cohabiting partner as a patient.

The discipline committee found him guilty of professional misconduct by sexual abuse under the Health Professions Procedural Code, which mandates a five-year licence revocation for sexual intercourse with a patient.

The Divisional Court set aside the decision, ruling that the committee must determine whether the sexual activity arose out of the spousal relationship or the professional-patient relationship.

The Court of Appeal allowed the College's appeal, holding that the Code requires no such inquiry; the offence is complete upon the concurrence of a sexual relationship and a health care professional-patient relationship.

The appellant chiropractor appealed a Discipline Committee finding of professional misconduct and mandatory revocation of his registration for sexually abusing a patient.

The appellant and the complainant had a pre-existing intimate and sexual relationship before she became his patient.

The Divisional Court found the Committee's decision unreasonable because it failed to properly consider whether the sexual relationship arose out of the pre-existing spousal relationship rather than the professional-patient relationship, misinterpreting the concept of 'incidental' treatment.

The appeal was allowed and the matter remitted for a new hearing.

The appellant, an unauthorized distributor, imported genuine Côte d'Or and Toblerone chocolate bars into Canada.

The respondent, the exclusive Canadian distributor, registered the logos on the wrappers as copyrighted artistic works and sued the appellant for secondary infringement under s. 27(2)(e) of the Copyright Act to prevent parallel importation.

The Supreme Court of Canada allowed the appeal, holding that the respondent could not use copyright law to prevent the importation of the chocolate bars.

The Court found that an exclusive licensee cannot sue the owner-licensor for copyright infringement, meaning there was no hypothetical primary infringement to ground a claim for secondary infringement.

Furthermore, the incidental presence of copyrighted logos on the wrappers did not bring the chocolate bars themselves within the protection of the Copyright Act.

The moving party sought leave to appeal a decision of the Ontario Municipal Board that approved Official Plan and zoning by-law amendments permitting a mixed residential and commercial development on adjacent lands.

The moving party argued the Board erred in law by failing to apply the 2005 Provincial Policy Statement, exceeded its jurisdiction by extending the re-designation to intervening properties, and breached natural justice by refusing to admit late noise evidence.

The Divisional Court dismissed the motion, finding no good reason to doubt the correctness of the Board's decision on any point of law, and awarded costs to the responding parties.

The appellants appealed the dismissal of their action for battery and breach of good faith against their insurer and an independent chiropractor.

The appellant alleged she suffered a vertebrobasilar artery injury due to an unconsented procedure during an independent chiropractic examination arranged by her insurer.

The Court of Appeal upheld the trial judge's finding that the appellant failed to prove the chiropractor performed the alleged procedure.

The Court also found that the appellant had impliedly consented to the examination by attending without objection, and that the insurer's failure to inform her she could refuse attendance did not vitiate this consent or constitute a breach of good faith.