William C. McDowell

The appellants, Subway, appealed the dismissal of their $210 million defamation action against the Canadian Broadcasting Corporation (CBC) under an anti-Strategic Litigation Against Public Participation (SLAPP) motion (s. 137.1 of the Courts of Justice Act).

The action arose from a CBC Marketplace report alleging Subway's chicken products contained only 50% chicken DNA.

The Court of Appeal found that the motion judge erred in applying a higher standard for the "no valid defence" test and in weighing the public interest.

The Court determined that Subway had established grounds to believe CBC had no valid defence of responsible communication and that the public interest in allowing the action to proceed outweighed the public interest in protecting the expression, given the significant reputational and financial harm alleged and the lack of urgency in disseminating unverified information.

The appeal was allowed, and the defamation action against CBC was permitted to continue.

This appeal addressed the application of Ontario's anti-SLAPP legislation (s. 137.1 of the Courts of Justice Act) to a negligence claim.

Subway sued Trent University for negligence and defamation after Trent's testing of Subway's chicken products was featured on a CBC "Marketplace" broadcast.

The motion judge dismissed Trent's anti-SLAPP motion, finding the negligence claim did not arise from an expression.

The Court of Appeal allowed Trent's appeal, holding that the negligence claim did arise from an expression related to a matter of public interest.

Furthermore, the Court found that Subway's negligence claim lacked substantial merit because no duty of care existed between Trent and Subway, as there was no undertaking of responsibility by Trent in favour of Subway, nor any reliance by Subway on Trent's services or statements.

The motion judge's order was set aside, and Subway's negligence claim was dismissed.

The appellant sought to sell 15 gas stations in Ontario and Quebec, requiring the assignment of leases and credit/debit card agreements.

The respondent refused to consent to the assignments unless the appellant agreed to a five-year contract extension.

The application judge found the refusal unreasonable for the leases but dismissed the application entirely due to Quebec choice of law and forum selection clauses in some leases.

The Court of Appeal allowed the appeal, holding that the judge erred by not granting relief for the Ontario stations, by failing to apply the strong cause test to depart from the forum selection clauses, and by not finding that the duty of good faith precluded the respondent from unreasonably withholding consent to the credit/debit card agreements.

Parkland Fuel Corporation sought $88,282 in costs after successfully defending an application brought by Quickie Convenience Stores Corp. Quickie argued for no costs or a 50% reduction, citing divided success on legal issues and Parkland's late presentation of jurisdictional arguments.

The court found Parkland largely successful in the application's overall outcome, but acknowledged Quickie's partial success on one issue (compliance with first notice and offer obligations) and considered Parkland's delayed jurisdictional arguments.

Ultimately, the court awarded Parkland $52,900 in partial indemnity costs, representing a 20% reduction from their claimed amount.

The defendants brought an anti-SLAPP motion under s. 137.1 of the Courts of Justice Act to dismiss a defamation action brought by the plaintiffs.

The defamation claim arose from an article published by the defendants, insolvency professionals, commenting on public receivership proceedings.

The court found that the defendants' expression related to a matter of public interest.

The plaintiffs failed to demonstrate that their claim had substantial merit or that the defendants had no valid defence, particularly regarding the defence of justification (truth) and responsible communication.

The court also found that the plaintiffs did not provide sufficiently credible evidence of serious harm to outweigh the public interest in protecting the defendants' freedom of expression.

The motion was granted, and the action was dismissed.

The court determined costs following two anti-SLAPP motions under s. 137.1 of the Courts of Justice Act.

The defendant broadcaster, having successfully dismissed the defamation claim against it, was awarded costs on a full indemnity basis, though the requested amount was reduced to $500,000 plus disbursements due to the motion's excessive complexity.

The plaintiff, having successfully defeated the defendant university's novel anti-SLAPP motion regarding a negligence claim, was awarded partial indemnity costs of $222,000, as the university's motion lacked the characteristics of a true SLAPP suit.

The applicant, a former Auditor General for the City of Oshawa, brought an application for judicial review seeking to quash a 2013 City Council resolution and expunge an investigator's report.

The application was commenced more than five years after the resolution was passed.

The Divisional Court dismissed the application for delay, finding the delay was lengthy, lacked a reasonable explanation, and caused prejudice to the City given the one-year statutory limitation period for quashing municipal resolutions.

The defendants, CBC and Trent University, brought anti-SLAPP motions under s. 137.1 of the Courts of Justice Act to dismiss the plaintiffs' $210 million defamation and negligence action.

The action arose from a Marketplace report alleging the plaintiffs' chicken sandwiches contained only 50% chicken based on DNA tests conducted by Trent University.

The court granted CBC's motion, finding that while the defamation claim had substantial merit, CBC had a valid defence of responsible communication and the public interest in protecting investigative journalism outweighed the plaintiffs' private harm.

The court dismissed Trent University's motion, holding that the negligence claim regarding faulty laboratory testing did not arise from an expression relating to a matter of public interest and was therefore not subject to dismissal under the anti-SLAPP provisions.

This endorsement from a case conference addresses scheduling issues in a complex action, particularly concerning examinations for discovery and contemplated motions.

Due to a change in counsel for the main defendant, CBC, discoveries were adjourned.

CBC's new counsel seeks further disclosure, which the plaintiffs state is largely held by a third-party contractor.

The court suggests scheduling a "double motion" for production if necessary.

Additionally, the court emphasizes the need for CBC to promptly decide and bring any contemplated anti-SLAPP motion under section 137.1 of the Courts of Justice Act, citing Court of Appeal guidance that such motions should be brought at an early stage.

The court defers rescheduling discoveries until these motions are resolved.

An appeal from a trial judgment in which the trial judge found that an employee, who held the position of Assistant Vice President of Campus Services and Building Operations, had misappropriated nearly one million dollars from York University through various fraudulent schemes between 2007 and 2009.

The employee was terminated without cause and paid a severance package of $696,166 with mutual releases after vehemently denying any wrongdoing.

York subsequently discovered the full extent of the misconduct and sued to rescind the severance agreement and recover the stolen funds.

The trial judge found that the employee had fraudulently misrepresented his innocence and that the claim was not barred by the limitations period.

The appeal was dismissed.

The plaintiff, Nathan Jacobson, brought an action against his former lawyer, Steven Skurka, alleging coercion into a guilty plea and negligence during U.S. criminal proceedings.

Skurka moved for summary judgment, arguing that Jacobson's action raised no triable issues and was statute-barred.

The court found no credible evidence of coercion or negligence, noting Jacobson's self-serving testimony and failure to provide expert evidence for professional negligence claims.

While the court determined the action was not statute-barred, this finding did not alter the outcome.

The motion for summary judgment was granted, and Jacobson's claim was dismissed.

The applicants, several humane societies, challenged the governance model of the respondent provincial animal welfare society.

After the respondent successfully resisted the application following a membership vote, the parties sought costs.

The applicants argued they should be shielded from costs as public interest litigants.

The court rejected this argument, finding the dispute was primarily about internal governance and control rather than a matter of public importance.

The court apportioned costs based on the stages of litigation and ordered the applicants (excluding one that withdrew) to pay $100,000 in costs to the respondent.

York University sought security for costs of an appeal brought by Michael Markicevic, who was found at trial to have defrauded York of over $1.8 million and made fraudulent conveyances of property.

Markicevic appealed on two grounds: the validity of a mutual release signed upon his termination and whether York's claims were statute-barred.

The motion judge ordered security for costs of $75,000 under Rule 61.06(1)(c), finding that while the appeal was not frivolous and vexatious, the unchallenged findings of fraud and asset dissipation constituted compelling "other good reason" to order security despite Markicevic's impecuniosity.

The applicants sought a Norwich Order against the respondent university to obtain documents and information regarding DNA testing of the applicants' chicken products.

The testing was featured in a media broadcast that the applicants alleged was defamatory.

The court dismissed the application, finding that the applicants had already identified the prospective defendants and could obtain the necessary information through the normal discovery process in their existing or planned litigation against the broadcaster and the university.

However, the court ordered the university to preserve the relevant evidence.

The Court dismissed Google’s appeal and upheld a worldwide interlocutory injunction requiring de-indexing of websites used to sell products in breach of court orders.

The majority held courts may grant global injunctive relief against a non-party where necessary to prevent ongoing irreparable harm and where balance of convenience favours relief.

The dissent agreed jurisdiction existed but would have refused the order as effectively final, insufficiently proven effective, and available alternatives remained.

The respondents brought a motion to prohibit the applicant's lawyers from acting, alleging a conflict of interest due to confidential information shared with a lawyer associated with the applicant's firm prior to the current retainer.

The court dismissed the motion, finding that the respondents had voluntarily and intentionally disclosed the purportedly confidential information in their public motion record and during cross-examination.

This disclosure was deemed a waiver of any privilege and confidentiality, thereby negating the basis for the conflict of interest claim.

The court also dismissed the request to seal the motion record.

The defendant in a civil action for sexual assault brought a motion seeking a declaration that he had not breached the deemed undertaking rule (Rule 30.1.01) or, alternatively, an order to exempt certain documents from it.

The defendant's civil counsel had provided the plaintiff's compelled documentary productions, including sensitive medical and counselling records, to his criminal defence counsel for use in parallel criminal proceedings to impeach the plaintiff's credibility, without prior notice or court directions.

The court dismissed the motion, holding that the impeachment exception in Rule 30.1.01(6) is not automatic and requires parties to seek directions from the civil court, ordinarily on notice to the producing party, before using discovery evidence for impeachment in another proceeding.

The court found that the defendant had breached the deemed undertaking.

Three mothers sought judicial review of decisions made by the Motherisk Commission regarding their child protection cases.

The court first ruled that the mandatory publication ban under s. 45(8) of the Child and Family Services Act prevented the media from publishing the mothers' names, even with their consent.

The court then dismissed one application as moot because the applicant had already received a favourable ruling from the Commissioner.

The remaining two applications were dismissed as premature because the applicants had not yet exhausted the internal reconsideration processes available before the Commission.

Following a trial where the plaintiff university successfully proved that the defendants engaged in fraudulent activities and breached their fiduciary duties, the parties could not agree on costs.

The court awarded the plaintiff full indemnity costs against the primary defendants who orchestrated the fraud, and partial indemnity costs against the defendants involved only in fraudulent conveyances.

No costs were awarded for earlier motions due to divided success.

The parties agreed on the costs of the appeal.

The Court of Appeal ordered the appellants to pay the respondent costs fixed at $30,000 on a partial indemnity scale, inclusive of disbursements and taxes.