Vivien E. Milat

Following a judgment allowing the plaintiffs' action, the parties made written submissions on costs and prejudgment interest.

The parties settled the issue of costs for $6,680,632.45.

On the issue of prejudgment interest, the court determined the start dates for the calculation of interest for each plaintiff.

The court declined to exercise its discretion to average the interest rate or to award compound interest, finding no unusual or special circumstances to justify departing from the presumptive statutory scheme.

The court also declined to reduce the period for calculating interest based on the plaintiffs' conduct.

The plaintiffs, shareholders and creditors in Mobilicity, a wireless telecommunications company, sued the federal government for negligence and negligent misrepresentation arising from the 2008 AWS spectrum auction.

The plaintiffs alleged that Industry Canada represented that spectrum licences acquired at auction would be transferable to incumbent carriers after a five-year moratorium, and that they relied on this representation to invest approximately $250 million in equity and $95 million in debt to capitalize Mobilicity and bid for spectrum licences.

The plaintiffs further alleged that in 2013, the government unilaterally changed the transfer framework to prohibit transfers to incumbents, and in 2014-2015 interfered with Mobilicity's sales process through threats, media manipulation, and regulatory delay.

The court found the government liable for negligence and negligent misrepresentation, holding that it owed a duty of care to the plaintiffs based on specific representations made to induce investment, and that it breached that duty through the implementation of the 2013 Transfer Framework and subsequent interference in the sales process.

The court awarded damages based on a "but for" analysis, calculating what the plaintiffs would have earned in alternative investments had they not relied on the government's representations.

The moving parties, Her Majesty the Queen in Right of Ontario and the Ontario Lottery and Gaming Corporation, brought a motion for leave to appeal the order of Emery J. dated January 29, 2021.

The Divisional Court dismissed the motion for leave to appeal and awarded costs to the responding parties fixed at $2,500.

The plaintiffs sought leave to amend their statement of claim to significantly increase the damages claimed (from $60 million to $662 million) and to elaborate on the theoretical basis for these damages, including through the application of unjust enrichment.

This motion followed a prior summary judgment that established Ontario's liability for breach of contract, with damages to be assessed.

The defendant, Ontario, opposed the amendments, arguing they were barred by res judicata (issue and cause of action estoppel), abuse of process, and constituted a collateral attack, particularly concerning the unjust enrichment claim which was subject to a pending appeal.

The court granted leave for most amendments, finding no non-compensable prejudice.

It clarified that while the unjust enrichment claim as a cause of action was under appeal and could not be bolstered, the amendments could be used to plead theories of damages for the existing contract claim.

The plaintiffs brought a motion for the production of a Cooperation and Common Interest Agreement between the defendants.

The plaintiffs sought the agreement to support their argument that the defendants mounted a joint defence, which would affect the apportionment of costs following summary judgment motions.

After reviewing the agreement in camera, the court dismissed the motion, finding that the document was protected by privilege.

The plaintiffs, standardbred horse breeders, sued Ontario and the Ontario Lottery and Gaming Corporation (OLG) for breach of contract, negligence, and negligent misrepresentation following the cancellation of the Slots at Racetrack Program (SARP).

The defendants moved for summary judgment to dismiss the action, and the plaintiffs cross-moved for summary judgment on liability.

The court held that the Crown Liability and Proceedings Act (CLPA) retroactively extinguished the plaintiffs' tort claims because the cancellation of SARP was a policy decision made in good faith.

However, the court found that the 1998 Letter of Intent establishing SARP was a binding contract.

Applying the principled exception to the doctrine of privity, the court held that the plaintiffs had standing to enforce the contract.

The court granted summary judgment to the plaintiffs against Ontario for breach of contract, finding that Ontario breached an implied term to provide reasonable notice of termination.

The action against OLG was dismissed.

The defendant, Her Majesty The Queen in Right of Ontario, brought a motion to stay an order dated August 4, 2017.

Following the Divisional Court's dismissal of Ontario's motion for leave to appeal on October 3, 2017, the Superior Court of Justice dismissed the motion to stay as moot.

Costs of the motion were reserved to the disposition of the defendants' motions for summary judgment.