Congratulations to Blaneys’ very own Reeva Finkel and Brendan Jones for the outcome they achieved for our client Hydro One Remote Communities Inc., in 1401380 Ontario Limited (Wilderness North Air) v. Hydro One Remote Communities Inc. The Court allowed our client’s appeal in part by enforcing the contract’s limitation of liability clause, thereby reducing the judgment against our client from over $2.7 million to only $50,000. The Court dismissed Wasaya’s appeal and left in place the finding that Wasaya was liable for inducing breach of contract.
In David v. Loblaw Companies Limited, the Court held that the prior refusal to certify the bread price-fixing class action against Maple Leaf on the no cause of action ground had been a final determination with res judicata effect, barring the representative plaintiffs’ attempt to revive the claims through amended pleadings or by invoking the Class Proceedings Act, 2002. The Court confirmed that the Rules of Civil Procedure do not permit amendments to circumvent a final order and that any discretion not to apply res judicata in court proceedings was limited and not engaged here.
In Robson v. Fedex, a proposed class action alleged that FedEx misrepresented its brokerage fees as government-imposed taxes and charged consumers for unsolicited customs services. The Court upheld certification of the class action, finding the pleadings disclosed viable claims under Ontario consumer protection legislation and that the legality of FedEx’s standardized billing practices could be determined on a class-wide basis. The class definition properly constituted all Canadian consumers since 2016, notwithstanding jurisdictional and limitation period arguments, which were to be determined at later stages of the proceeding.
In West Whitby Landowners Group Inc. v. Elexicon Energy Inc., the Court allowed an appeal from the Divisional Court’s dismissal of a judicial review application for lack of jurisdiction. The Court held that the Ontario Energy Board’s letters, in the absence of a hearing, constituted a binding decision resolving the parties’ dispute under s. 105 of the Ontario Energy Board Act and interpreting the Distribution System Code under the Board’s exclusive authority in s. 19. The Court held the decision was of a sufficiently public character to attract judicial review and was both amenable to certiorari under s. 2(1)1 of the Judicial Review Procedure Act and an exercise of a “statutory power of decision” affecting legal rights under ss.1 and 2(1)2. Since the Court only decided that the Divisional Court did have jurisdiction to hear the judicial review application and did not address the merits of the judicial review application itself, it appears that the matter will need to be remitted to the Divisional Court to decide the matter on the merits.
Sorrentino v. Certas Home and Auto Insurance Company is a dispute about whether SABS should be paid to retrofit the home of a 92-year old insured’s daughter to allow the insured to live with her daughter rather than in a long-term care facility. The insurers obtained an extension of time to file leave materials until after the reasons for decision of the Divisional Court are released. However, its motion to stay the order of the Divisional Court requiring it to pay for the retrofit was dismissed. Even though there was a risk the insurer might not recover the cost of the retrofit if it succeeded on the appeal, the balance of convenience favoured the insured, who was 92 and in ill-health and who may never get the benefit of the SABS before the appeal was determined.
In The Innkeepers S.R.L. v. Enthusiast Gaming Holdings Inc., the Court lifted a r. 63.01(1) automatic stay of an order requiring a purchaser of a video game company to pay the vendors €855,155 (the minimum earn‑out it had effectively conceded) pending determination of the underlying application over disputed earn‑out calculations under a share purchase agreement. Applying the r. 63.01(5) test, the Court found that the vendors faced a serious risk of non‑payment given the purchaser’s precarious financial position, drafted protective terms securing repayment if the appeal were successful, and deemed the underlying appeal of insufficient merit to outweigh the justice of paying the earn-out at this stage.
In Proex Logistics Inc. (Re), the Court dismissed an appeal after granting leave under s. 193(e) of the BIA to decide the issues on their merits. The Court confirmed that the Trustee alone determines the value of proofs of claim filed under the BIA. The appellant filed no timely proof of claim or challenge to the Trustee’s valuation of any claim under s. 135(5). That, and the fact he had unpaid costs orders and there was evidence of dissipation of assets meant he had no standing under s. 37 or s. 135 of the BIA.
In M.E. v. Children’s Aid Society of Toronto, the Court dismissed M.E.’s request for leave to file a notice of appeal from the dismissal of her action for delay, finding her proposed appeal frivolous and repeating the same deficiencies that had led to a prior leave restriction.
In Lau v. Tao, the Court upheld the trial judge’s equalization and property findings, except for a minor agreed upon correction.
Other topics covered included security for costs of an appeal.