William G. Horton

PreMD retained Ogilvy Renault to manage its patent portfolio.

Ogilvy negligently failed to pay maintenance fees, causing two US patents to lapse.

PreMD's business ultimately failed, though the trial judge found the failure was due to lack of regulatory approval and market acceptance, not the lapsed patents.

The trial judge awarded PreMD $1,063,069 in reliance damages and mitigation expenses, rejecting claims for lost profits and broader reliance damages.

PreMD appealed, seeking $14.4 million in reliance damages for pre-contractual and post-contractual expenses.

Ogilvy cross-appealed the damages calculation and costs award.

The Court of Appeal dismissed both the appeal and cross-appeal, upholding the trial judge's findings that the additional expenses claimed by PreMD were not caused by the breach and would not have been recouped even if the patents had been maintained.

The appellant brought a proposed class proceeding alleging the respondent bank received interest on cash advances in violation of the criminal interest rate provisions of the Criminal Code.

The motion judge refused to certify the action, finding that restitution and breach of contract claims lacked common issues and that a class proceeding was not the preferable procedure.

The Divisional Court affirmed.

The Court of Appeal allowed the appeal and certified the class proceeding, holding that sections 23 and 24 of the Class Proceedings Act could be used to assess and distribute aggregate damages, thereby resolving the common issues problem.

The Court also found that a class proceeding was the preferable procedure to achieve judicial economy, access to justice, and behaviour modification.

Following the dismissal of the plaintiff's appeal from a decision refusing certification of a proposed class proceeding, the respondent sought costs of the appeal.

The Divisional Court declined to award costs, agreeing with the motions judge that the case involved a novel question of law regarding the interpretation of s. 347 of the Criminal Code and was a matter of public interest.

The court found that in these circumstances, the appellant should not be penalized with costs despite being unsuccessful.

The appellant appealed the dismissal of a motion to certify a class proceeding against the respondent bank.

The proposed class action alleged that the respondent received interest on cash advances at a criminal rate, in violation of s. 347(1)(b) of the Criminal Code, and sought restitutionary, declaratory, and injunctive relief.

The Divisional Court dismissed the appeal, upholding the motions judge's findings that the restitutionary claims did not raise common issues and that a class proceeding was not the preferable procedure for resolving the claims for declaratory and injunctive relief.

The plaintiff sued the defendant law firm for negligence after the expiry of the statutory limitation period, pursuant to a tolling agreement.

The defendant then commenced third party proceedings for contribution and indemnity against the third party accountants.

The third parties successfully moved for summary judgment dismissing the claim against them because the statutory limitation period between the plaintiff and the third parties had expired.

The Court of Appeal dismissed the defendant's appeal, holding that section 8 of the Negligence Act applies to all contribution claims and requires the main action to be commenced within the applicable statutory limitation period, which was not done here.

A probationary employee was discharged shortly after returning from maternity leave.

The collective agreement provided that probationary employees could be discharged at the sole discretion of the employer and such discharge was not subject to grievance procedures.

The employee filed a grievance alleging discriminatory discharge.

The Supreme Court of Canada held that the substantive rights and obligations of the Human Rights Code and other employment-related statutes are implicitly incorporated into all collective agreements.

Therefore, an arbitrator has the jurisdiction to hear a grievance alleging discriminatory discharge, even for a probationary employee.

In a complex family business dispute, the respondents moved to lift the automatic stay of substantial money judgments pending appeal, or alternatively for interim costs or security for costs.

The appellants brought a cross-motion to stay certain mandatory tracing orders pending appeal.

The Court of Appeal dismissed both motions.

The court found the appeals were not devoid of merit and the respondents failed to establish sufficient hardship or risk of asset dissipation to justify lifting the stay.

The court also found the appellants failed to demonstrate irreparable harm to justify staying the mandatory tracing orders.

The appellants, including a golf course developer and the Royal Bank, appealed a trial judgment finding them liable to a class of 169 club-member investors.

The investors had provided letters of credit to secure memberships, which were drawn down by the developer and applied to a Royal Bank construction loan before the contractual conditions for draw down were met.

The Court of Appeal upheld the trial judge's findings that the developer breached its contract and fiduciary duties by drawing on the funds prematurely.

The Court also upheld the finding that the Royal Bank was liable for knowing receipt of trust funds, as it was unjustly enriched and failed to make adequate inquiries despite knowing the conditions for draw down were unmet.

The appeal was dismissed, and the awards for restitution, punitive damages, and compound interest were affirmed.

A probationary employee was discharged shortly after returning from maternity leave and filed a grievance alleging discrimination based on family status.

The collective agreement precluded probationary employees from grieving a discharge, but the board of arbitration found it had jurisdiction under the Labour Relations Act to apply the Human Rights Code.

The Divisional Court quashed this decision.

On appeal, the Court of Appeal allowed the appeal, holding that the Employment Standards Act prohibits dismissing an employee for taking pregnancy leave and makes this prohibition enforceable under the collective agreement, prevailing over any conflicting terms.

The appellants challenged a stay of their Ontario action arising from commercial loans financing a hotel, casino and beach club project in the Turks and Caicos Islands.

The Court of Appeal held that while the alleged tortious conduct of bank officers in Toronto created a substantial connection to Ontario, the overall circumstances established a more real and substantial connection to the foreign jurisdiction.

The court upheld the motion judge's conclusion that the foreign forum was the more natural, convenient and appropriate forum, given the governing law clause, administration of the loans, attornment to foreign proceedings, witness location, and risk of inconsistent findings.

The appeal was dismissed with costs.

The appellants appealed the refusal to set aside an international commercial arbitration award under the UNCITRAL Model Law as incorporated by Ontario statute.

They argued that the arbitral procedure offended public policy and that they had been unable to present their case because of limited disclosure of agreements and the absence of foreign witnesses.

The court held that the tribunal's procedure did not offend local principles of justice and fairness in a fundamental way and that the appellants had not been deprived of an adequate opportunity to present their case.

The appeal was dismissed with costs.