The decisions below represent all Commercial List matters published on CanLII in the last year. This list will be updated every week.
Decisions
Keep up to date on the latest Commercial List decisions.
Decisions
- keywords: Bankruptcy and insolvency — Court‑approved sale — CCAA, s. 36(3) — Whether the proposed sale satisfies the statutory criteria — Monitor’s Second Report and creditor consultation considered — Effects on stakeholders and going‑concern value assessed — Market testing and consideration fairness evaluated — Approval of asset realisation out of the ordinary course — Sale approved | Bankruptcy and insolvency — Reverse vesting order — Harte Gold Corp. (Re), 2022 ONSC 653 — Is a reverse vesting order necessary and appropriate in the circumstances? — Economic result at least as favourable as viable alternatives — Stakeholders not worse off compared to liquidation — Value for permits, licences and intangibles preserved — Reverse vesting order approved | Bankruptcy and insolvency — Sales process — SISP and Stalking Horse — Was the SISP fair, transparent, and value‑maximising? — Pre‑filing marketing and 45‑day window reviewed — Monitor’s supervision and recommendations accepted — Competitive process without superior bid validating consideration — Robust process aligned with CCAA objectives — SISP and Stalking Horse structure approved
CanLII | Feb 5, 2026
- keywords: Bankruptcy and insolvency — CCAA distributions — Liquidating CCAA proceeding — Whether distribution by the Monitor under extended powers is fair and reasonable — Approval of Eleventh Report and professional fees, including counsel — Holdback for final administrative costs proposed — Distribution to unsecured creditors authorised — Same entity to make distributions without conversion — Distribution and fees approved | Taxation — Representative liability — Statutory withholding obligations — Whether the Monitor can be exempted from Income Tax Act s. 159, Excise Tax Act s. 270, EI Act s. 86, CPP s. 23 and provincial tax laws — No basis in evidence or law to grant exemption — Paramountcy and inapplicability not established — Revisit on notice to taxation authorities — Exemption refused | Bankruptcy and insolvency — Stays — CCAA supervision — Whether the stay of proceedings should be extended in a liquidating CCAA — Monitor carrying the proceeding in good faith and with due diligence — Conversion to receivership or bankruptcy declined as wasteful — Fair and reasonable to extend the stay as sought by the Monitor — Stay extended
CanLII | Jan 30, 2026
- keywords: Contracts — Debtor and creditor — Allocation of payments — Must debtor plainly and irrevocably allocate at time of payment — Emails insufficient to show allocation to consent judgment — Creditor may allocate absent debtor appropriation per Waisman and Colautti — Late debtor direction ineffective — Non-party payor acting as agent gains no greater rights — Creditor’s October allocation upheld — Allocation by creditor confirmed | Contracts — Penalty clauses — Liquidated damages — Is the Critical Information Delay Fee an unenforceable penalty — Per document and weekend charges not a genuine pre‑estimate of loss — Extravagant and unconscionable compared to conceivable loss, Dunlop, Peachtree applied — Clause purporting to bar penalty defence ineffective — Allocation to the fee invalid — Penalty clause void | Contracts — Indemnity and receivables — Allocation of payment — Whether allocation to legal fees and receivables valid without precise quantums — Solicitors Act permits later assessment though fees due — Receivables collected but unpaid admitted — Allocation stands subject to adjustment on assessment if reduced — Allocation to legal fees and receivables upheld | Professional responsibility — Solicitors’ fees — Assessment — Whether third party under Solicitors Act s. 9 entitled to assessment — Summaries adequate to protect privilege and permit review, Plazavest followed — Request to assess used to stall payment — No triable issue on reasonableness shown — Referral to assessment refused — Judgment on fees granted
CanLII | Jan 30, 2026
- keywords: Procedure — Costs on motions — Interlocutory pleadings motion, Rule 57.03 — Whether to award costs to the successful moving party on a motion to strike — Presumptive entitlement to partial indemnity considered — Effect of success characterised as pyrrhic — Costs linked to ultimate trial success — Costs fixed at $20,000, payable in the cause | Procedure — Costs fixation versus deferral — Rule 57.03 discretion, Sea Vision Marine — Should costs be fixed now or deferred to trial — Framework for postponing disposition of motion costs — Distinction between costs in the cause and conditional entitlement — Approach adapted to justice of the case — Costs fixed now with entitlement contingent on trial outcome | Procedure — Scale and quantum of costs — Proportionality, Boucher — What partial indemnity scale and amount are reasonable — Excessive expenditures for technical pleadings motion reduced — Reasonableness assessed against complexity and efficiency — Partial indemnity fixed globally for fairness and affordability — Partial indemnity costs fixed at $20,000 | Procedure — Success on motions — Pleadings and particulars, striking with leave — Whether limited success justifies a costs award — Practical impact of amendments and particulars weighed — Success recognised but tempered by tactical nature and over-pleading — Entitlement conditioned on defendants’ ultimate success at trial — Costs fixed at $20,000, payable in the cause
CanLII | Jan 12, 2026
- keywords: Procedure — Slip rule — Rule 59.06(1) accidental slip or omission — Did the order fail to reflect the judge’s manifest intention? — Joint and several costs against “the Respondents” accurately memorialised Steele J.’s reasons — Rule confined to clerical errors per Celestica and Paper Machinery — Attempt to reargue merits impermissible — Motion dismissed | Procedure — Variation after new facts — Rule 59.06(2)(a) facts arising or discovered after order — Do later enforcement steps or alleged representations justify varying costs? — No settlement or estoppel proven — Notice of Examination continued enforcement, not a new fact — Affidavit evidence undermined on cross‑examination — No basis to vary order — Motion dismissed | Procedure — Costs — Personal liability of parties — Can costs be imposed without piercing the corporate veil? — Parties to proceedings personally liable for costs under s. 54 Arbitration Act, 1991 and s. 131 Courts of Justice Act — Joint and several costs against multiple respondents affirmed, citing Chippewas — Jurisdictional challenge abandoned — Motion dismissed
CanLII | Jan 7, 2026
- keywords: Bankruptcy and insolvency — Companies’ Creditors Arrangement Act — Sale approval and RVO — Whether the going concern transaction and reverse vesting order should be approved under s. 36 — Soundair and Harte Gold factors applied — Related party considerations under s. 36(4) satisfied — Robust SISP, Monitor support, going concern preserved, superior consideration — Approval and Reverse Vesting Order granted | Bankruptcy and insolvency — Companies’ Creditors Arrangement Act — Third party releases — Should releases be approved consistent with s. 5.1(2) and Lydian factors — Scope limited, fraud and wilful misconduct excluded — Contributions of directors, advisors, DIP lender, Monitor to restructuring established — Benefits to creditors and debtor demonstrated — Releases approved | Bankruptcy and insolvency — Companies’ Creditors Arrangement Act — Stay extension — Whether stay should be extended under s. 11.02 — Good faith and due diligence established — Adequate liquidity shown by updated cash flow forecast — Monitor support noted, necessity to finalize transaction and close CCAA proceedings — Stay extended | Procedure — Court records — Sealing orders — Should confidential bid summaries, liquidation analysis, and insurance coverage details be sealed — Sherman Estate test applied — Commercially sensitive information, risk to realisation if transaction fails, minimal prejudice to stakeholders, narrow scope — Sealing order granted
CanLII | Jan 2, 2026
- keywords: Procedure — Ex parte motions — Full and fair disclosure — Rule 39.01(6), rule 37.14 — Did failure to disclose material facts justify setting aside the amendment order? — Hogg v. Wealthsimple applied to the heavy onus — Omission of related litigation history found material — Order obtained without full disclosure set aside — Motion granted | Procedure — Service of motions — Motions without notice — Rule 37.07(2) — Whether service of the amendment motion was unnecessary where the order affected the Defendants — Requirement to serve parties affected by the order emphasized — No basis for proceeding ex parte identified — Motion should have been on notice — Order set aside | Limitation periods — Discoverability — Amendment adding a party — Limitations Act, 2002, s. 5 — Were prior Federal Court pleadings and history material to limitation defences and prejudice on amendment? — Morrison v. Barzo and Austin v. Overs considered — Non-disclosure might have affected tenability and prejudice analysis — Materiality established — Order set aside | Procedure — Discretion — Remedies on breach of disclosure duty — Rule 37.14 — Should the court decline to set aside the ex parte order despite non-disclosure? — General rule that orders obtained without full disclosure are set aside reaffirmed — Vigneault v. Brosseau applied — Efficiency concerns rejected — Discretion not exercised — Order set aside
CanLII | Dec 23, 2025
- keywords: Procedure — Arbitration — Jurisdiction — Arbitration Act, 1991, s. 46(1)3 — Did the arbitrator exceed his authority by considering non‑CICBV compliant reports? — Scope of arbitration agreement in Schedule C, methodology unrestricted — Alectra Utilities and Mensula Bancorp applied — Issue decided was properly before the arbitrator — Set‑aside for excess of jurisdiction refused — Application dismissed | Procedure — Arbitration — Waiver and timeliness — Arbitration Act, 1991, ss. 4(1), 17(5) — Whether applicants waived objections by participating without timely jurisdictional objection — Knowledge of alleged non‑compliance and consent to admissibility — Competence‑competence engaged and not invoked — Failure to object within a reasonable time — Waiver found — Application dismissed | Procedure — Arbitration — Procedural fairness — Arbitration Act, 1991, ss. 19, 46(1)6 — Was procedural fairness denied when the arbitrator elicited a valuation opinion at the end of evidence? — Opportunity to respond not sought — Ability to ask further questions or reply evidence — Baker, Vento Motorcycles and Aquanta cited — No unfairness established — Application dismissed | Procedure — Arbitration — Reasons and methodology — Final‑offer arbitration and brief reasons requirement — Whether reasons opaque or arbitrator improperly used his own calculations — Consideration of scenarios based on evidence from PwC and KSV — Paras. 20, 31, 32 explained chain of reasoning — No cherry‑picking found — Reasons adequate, award intelligible — Application dismissed
CanLII | Dec 22, 2025
- keywords: Bankruptcy and insolvency — Stays of proceedings — BIA s. 69(1) — Whether statutory stay barred possession after termination under PPSA Part V — Status quo at filing and ownership versus enforcement remedy — Termination effective and redemption period expired before NOI — Leased Equipment not debtor’s property — Stay inapplicable — Possession motion granted | Bankruptcy and insolvency — Stays of proceedings — Lifting stay — Tests under s. 69.4 BIA and s. 11 CCAA — Whether material prejudice to lessor as owner with sole right of possession — Debtor’s continued use post‑termination and evasion of repossession considered — Distinction from other equipment financiers — Stay lifted on discretionary analysis | Bankruptcy and insolvency — CCAA — Director guarantor stay — Jurisdiction — Do ss. 11.03(2) and 11.04 preclude a stay in favour of a director guarantor — Scope of court’s discretion under s. 11 and CJA s. 106 — Cannapiece distinguished, Pride Group and Balboa followed — Exceptional and contextual relief available — Jurisdiction confirmed | Bankruptcy and insolvency — CCAA — Director guarantor stay — Discretion — Whether to continue Personal Guarantor Stay given restructuring needs — Century Services and Callidus baseline considerations — Monitor support, good faith and due diligence found — Tolling of limitation periods and duration until sanction or refusal — Personal Guarantor Stay continued
CanLII | Dec 22, 2025
- keywords: Statutory interpretation — Business Corporations — OBCA, s. 154(1)(b) — Whether s. 154 requires an AGM within six months of year end — Interpretation of “period ended not more than six months before the annual meeting” — Rejection of interim-statement reading — Reliance on 1184760 Alberta v. Falconbridge and horizontal stare decisis, R. v. Sullivan — AGM must be within six months — Interpretation confirmed | Business associations — Corporate governance — OBCA remedies, s. 106, s. 253 — Whether the court may order an AGM where statutory requirements cannot be met — Impracticability to call or conduct meeting addressed — Compliance order available to regularise meeting mechanics — Authority recognised and combined under ss. 106 and 253 — Power to make such orders as court deems fit — Jurisdiction confirmed | Business associations — Corporate governance — Annual general meeting timing and disclosure — What order should be made regarding AGM date and audited financial statement delivery — Shareholders’ right to audited financial statements recognised — Board’s business judgment considered, BCE cited — Balancing holiday timing and 21‑day goal — Meeting to proceed December 31 with audited financials by December 23 — Order granted | Procedure — Costs — Indemnity for participation — Whether participating former officer should receive full indemnity costs — Contribution helpful to focus issues and legal bases — Engagement treated analogously to misadministration cases — Reasonableness to be fixed if disputed — Full indemnity costs ordered
CanLII | Dec 18, 2025
- keywords: Civil liability — Unjust enrichment — Juristic reason — Is unjust enrichment available where merger agreement provides a juristic reason and rescission is not pleaded? — Overlap with misrepresentation claims identified — Pleading held insufficient without rescission or invalid juristic reason — Words “and unjust enrichment” and related paragraph struck — Pleading struck with leave to amend | Civil liability — Misrepresentation — Future statements — Can projections and statements of future intention constitute actionable misrepresentations as implicit statements of present fact? — Opinions and sales puffery distinguished from objective fact — Range of acceptable opinion applied to forecasts — Certain paragraphs alleging future promises and vague projections struck with leave to amend — Allegations partly struck with leave to amend | Procedure — Pleadings — Motions to strike — Do the statements of claim, read generously with particulars, plead the requisite elements of fraudulent and negligent misrepresentation? — Technical sufficiency found, but clarity lacking — Particulars to be incorporated and narrative simplified — Leave granted to amend, actions not dismissed — Motion to strike otherwise dismissed | Procedure — Standing — Derivative claims — Should post‑transaction misconduct and contractual allegations be struck, and do the plaintiffs lack standing to assert corporate claims? — Plaintiffs concede no claims for post‑transaction misconduct — Corporate harm not pursued in personal actions — Contract‑dressed misrepresentation paragraphs struck without leave — Other paragraphs maintained as particulars — Portions struck without leave, balance maintained
CanLII | Dec 15, 2025
- keywords: Bankruptcy and insolvency — CCAA — Sale approval — Companies' Creditors Arrangement Act, s. 36 — Did the Court have jurisdiction to approve a sale of assets and should the Transaction be authorised? — Soundair Principles referenced — Auction process approved, Successful Bid only bid — Consideration fair and reasonable — Sale approved | Bankruptcy and insolvency — CCAA — Public interest considerations — Balancing maximising recoveries with stewardship of culturally significant asset — Whether donation to Public Custodians with public access is appropriate — Extensive consultations including First Nations, Métis and Inuit representatives — Proceeds exceed appraised value, more beneficial than bankruptcy — Transaction approved | Bankruptcy and insolvency — CCAA — Stay of proceedings — Companies' Creditors Arrangement Act, s. 11.02 — Whether circumstances, good faith and due diligence justify extending the stay — No opposition, requirements satisfied per 11th Report — Stay extended to a specified date — Stay extended | Bankruptcy and insolvency — CCAA — Court officers — Whether the Monitor’s Reports and activities should be approved — Activities consistent with mandate and accretive to progress — Policy reasons for approving reports in CCAA proceedings noted — Target Canada cited, Hudson’s Bay Company Re cited — Reports and activities approved
CanLII | Dec 11, 2025
- keywords: Bankruptcy and insolvency — WURA proceedings — Third‑party releases — Whether CCAA third‑party release framework applies under WURA — Analogous principles from Companies’ Creditors Arrangement Act considered — Lydian International (Re), Green Relief (Re) cited, with references to Kitchener Frame (Re) and Xplore (Re) — Releases limited, excluding gross negligence, wilful misconduct or fraud — Releases appropriate and approved | Bankruptcy and insolvency — WURA proceedings — Discharge and termination — Approval of Liquidator’s Fourth to Eighth Reports and fees — Whether termination of proceedings and discharge of Liquidator and Employee Representative Counsel appropriate — Activities consistent with mandate and prior orders — Fees reasonable, future costs for remaining tasks approved — Discharge and Termination Order issued, motion granted
CanLII | Dec 3, 2025
- keywords: Bankruptcy and insolvency — CCAA sales process approval — Nortel factors and s. 36 CCAA — Should the Court approve the Charter Auction Process under the CCAA applying Nortel and s. 36 considerations? — Benefit to the whole economic community and broader community considered — Soundair Principles referenced — No bona fide reason to object — Monitor support and lender support — Approval granted | Bankruptcy and insolvency — Sale process mechanics — Qualification of stalking horse bid — Should the Joint Bid be approved as a Qualified Bid within the Auction? — Irrevocable commitment and minimum opening bid confirmed — Shared public custodianship model outlined — Safeguards to keep the Charter in Canada — Court satisfied and qualification approved — Joint Bid approved as Qualified Bid | Bankruptcy and insolvency — Public interest considerations — Cultural Property Export and Import Act — How should the Auction balance maximization of recoveries with cultural significance and export restrictions? — Required permanent donation to Canadian public institutions — Public access, preservation and consultation requirements mandated — Typical SISP not appropriate — Tailored Charter Auction Process approved — Auction process with cultural safeguards approved
CanLII | Nov 28, 2025
- keywords: Civil liability — Restitution — Money paid under mistake of fact — Whether repayment of a pre-existing debt constitutes good consideration — Application of B.M.P. Global, Arrow, Saskatoon v. Doe, Simms — Funds remained frozen and did not discharge any debt — Bona fide purchaser for value without notice not established — Funds ordered returned | Civil liability — Restitution — Change of position — Does change of position bar recovery where funds remain frozen? — No consideration given and no detrimental reliance established — Enquiries in B.M.P. Global applied — Fraud proceeds directly traced to forged instruments — Change of position defence rejected — Funds ordered returned | Trusts — Constructive trust — Knowing receipt — Must innocent recipients return funds once aware of fraud? — Holmes v. Amlez applied — Property received innocently but obligation to restore arises on knowledge — Funds in recipient accounts remained frozen following notice — Proprietary claim to fraud proceeds recognised — Funds ordered returned
CanLII | Nov 28, 2025
- keywords: Bankruptcy and insolvency — CCAA, s. 32 — Disclaimer of pre‑construction agreements — Whether disclaimer of condominium sale agreements should be approved — Legal priorities and value maximisation considered, Constantine Enterprises v. Mizrahi cited — Resale at higher market prices under luxury hotel brand — Preference to purchasers avoided — Disclaimers essential to maximise recoveries for Senior Secured Lenders — Disclaimers approved | Bankruptcy and insolvency — CCAA, s. 11 — Plan implementation — Should the Deposit Return Protocol and CSA Plan Reconfiguration be approved? — Jurisdiction to approve integrated relief confirmed — Early Purchase Opportunity described — Aviva and Tarion support deposit refunds with interest — Incremental proceeds projected to exceed $200 million — Monitor’s Reports and activities found appropriate — CSA Plan and DRP approved | Contracts — Remedies — Specific performance — Is specific performance of existing condominium sale agreements appropriate? — No legal or equitable title under CSAs, only contractual rights — Units under disclaimed CSAs not yet built or reconfigured — Contractual subordination to prior mortgages acknowledged — Deposits refundable with interest under DRP — Specific performance refused | Procedure — Court records — Sealing orders — Should confidential appendices be sealed under Courts of Justice Act, s. 137(2)? — Sierra Club and Sherman Estate tests applied — Market pricing analyses, disclosure would distort sales process — Temporary sealing until further order directed, comeback clause noted — Filing of sealed materials ordered — Sealing order granted
CanLII | Nov 23, 2025
- keywords: Procedure — Interlocutory injunctions — Prohibitive vs mandatory relief — Whether the order restrains termination or compels performance — Merits threshold under RJR-MacDonald applied where relief preserves contractual status quo — Canadian Broadcasting Corp. considered on characterisation — Serious issue to be tried standard determined to govern — Interlocutory injunction granted | Procedure — Interlocutory injunctions — Irreparable harm — Whether loss of the Canadian Digital Verification Business constitutes irreparable harm — Loss of reputation and customers from decommissioning of R13 inferred — Hypothetical security concerns insufficient — Monetary valuation not an adequate remedy per Molson — Undertaking as to damages given — Interlocutory injunction granted | Procedure — Interlocutory injunctions — Balance of convenience — Does the balance favour maintaining the status quo pending Arbitration? — Contractual right to seek injunctive relief weighed — Theoretical security risk to respondents versus concrete harm to applicant — Strategic bargaining leverage not decisive — Expedited arbitration proposed — Interlocutory injunction granted | Contracts — Breach — Performance of services — Whether End-of-Life Notices and threatened decommissioning contravene the MOSA — No termination for convenience before expiry and no Change Process implemented — Express covenant not to wilfully refuse SecureKey Services absent non-payment — Continuation of services required pending Arbitration — Application granted and injunction issued
CanLII | Nov 20, 2025
- keywords: Procedure — Costs — Partial indemnity calculation — Appropriate percentage to calculate partial indemnity costs — Application of Rule 57.01(1) factors, complexity and stakes — Whether 60% is hard and fast or adjustable — Discretion to adjust within usual range confirmed — Partial indemnity set at 65% given complexity and reputational stakes — Costs fixed | Procedure — Costs — Offers to settle — Whether offers engaged Rule 49.10 consequences — April 12, 2024 multi‑defendant offer assessed, Rule 49.13 considered — April 17, 2025 Cassels offer accepted as triggering substantial indemnity — Mid‑trial offer by KPMG not engaging Rule 49.10 — Rule 49 consequences applied to increase scale — Substantial indemnity awarded | Procedure — Costs — Scale based on conduct — Whether unproven allegations impugning professional integrity justify elevated costs — Serious allegations of counselling circumvention without evidentiary support — Reputational litigation warrants higher scale where unproved — Substantial indemnity appropriate for law firm throughout — Substantial indemnity costs awarded | Procedure — Costs — Indemnity principle and funding — Whether security for costs or litigation funding limits constrain award — Security held and litigation funding undertaking described — Indemnity principle governs costs fixing, funding arrangements irrelevant — Quantum not limited by funding cap or insurance — Costs payable as fixed
CanLII | Nov 18, 2025
- keywords: Bankruptcy and insolvency — Receivership — Priority of creditors — Lien claims stayed by receivership orders — Risk of creditors not being paid in insolvency proceedings — Balancing cost-saving measures with statutory requirements — Should lien claims be deferred until asset realization is complete? — Court discretion to defer or address claims based on creditor priority and statutory compliance | Construction — Lien claims — Limitation periods — Section 37 of the Construction Act — Lien claims not set down for trial within two years due to receivership stays — Should lien claims be dismissed for non-compliance with statutory timelines? — Legislative intent to resolve lien claims expeditiously balanced against insolvency realities | Civil procedure — Creative judicial solutions — Lien Regularization Orders — Balancing statutory compliance with practical realities — Can courts implement alternative processes to preserve lien claims during insolvency? — Judicial discretion to streamline lien claim processes without undermining statutory intent | Construction — Legislative intent — Expeditious resolution of lien claims — Competing public policy goals — Does the Construction Act’s intent to resolve lien claims quickly override insolvency cost-saving measures? — Balancing statutory timelines with practical insolvency considerations | Construction — Statutory compliance — Balancing form and substance — Judicial discretion to remedy technical non-compliance — Can courts recognize bona fide efforts to comply with statutory requirements under the Construction Act? — Avoiding undermining statutory intent while addressing practical challenges
CanLII | Nov 14, 2025
- keywords: Business associations — Shareholder disputes — Arbitration clauses — Unanimous shareholder agreement (USA) — Estate trustee challenging arbitration clause in USA — Whether the USA binds the estate trustee as an heir or legal representative — Whether arbitration clause applies to disputes involving corporate governance and shareholder rights — Framework for staying proceedings under section 7(1) of the Arbitration Act, 1991 — Mandatory stay granted where arbitration agreement exists and statutory exceptions do not apply | Contracts — Arbitration agreements — Validity of arbitration clause — Allegations of forgery — Forensic evidence suggesting signatures on USA and related documents were not genuine — Whether the court must determine validity of arbitration agreement or refer the issue to arbitration — Competence-competence principle — Court satisfied there is an arguable case that the USA exists — Arbitration Act, 1991, s. 7(1) | Civil procedure — Stay of proceedings — Technical requirements for mandatory stay — Arbitration agreement binding on heirs and estate trustees — Whether court proceedings involve matters subject to arbitration — Whether Moving Parties acted with undue delay in seeking stay — Court finds no clear case of undue delay — Arbitration Act, 1991, s. 7(1), s. 7(2) | Civil procedure — Statutory exceptions to stay — Invalidity of arbitration agreement — Undue delay — Oppressive conduct — Multiplicity of proceedings — Whether exceptions under section 7(2) of the Arbitration Act, 1991, apply — Court finds no clear case of invalidity or undue delay — Oppressive conduct and involvement of non-parties insufficient to refuse stay | Civil procedure — Multiplicity of proceedings — Partial stay of application — Whether claims involving non-parties to arbitration agreement should proceed in court — Court lacks discretion to refuse stay for claims subject to arbitration — TELUS Communications Inc. v. Wellman applied — Arbitration Act, 1991, s. 7(5)
CanLII | Nov 14, 2025
- keywords: Civil procedure — Anti-SLAPP motions — Dismissal of defamation claims — Application of section 137.1 of the Courts of Justice Act — Whether the defendants' motion to dismiss the plaintiffs' libel action should be granted — Framework for anti-SLAPP motions, including public interest, substantial merit, valid defences, and harm balancing — Courts of Justice Act, R.S.O. 1990, c. C.43, s. 137.1 | Securities — Proxy contests — Public interest in corporate governance — Whether the April 29 Letter addressing proxy solicitation and shareholder communications relates to a matter of public interest — Management and governance of publicly traded corporations as matters of public interest — Courts of Justice Act, R.S.O. 1990, c. C.43, s. 137.1(3) | Statutory interpretation — Defamation claims — Substantial merit threshold — Whether the plaintiffs' evidence establishes grounds to believe the defamation claim has substantial merit — Interpretation of section 137.1(4)(a)(i) of the Courts of Justice Act — Evidentiary foundation and real prospect of success required to meet the threshold | Evidence — Valid defences — Qualified privilege, fair comment, responsible communication, and truth — Whether the defendants established valid defences to the defamation claim — Plaintiffs' failure to provide evidence refuting the defences — Application of section 137.1(4)(a)(ii) of the Courts of Justice Act | Torts — Defamation — Balancing harm and public interest — Whether the harm alleged by the plaintiffs outweighs the public interest in protecting the defendants' expression — Plaintiffs' failure to demonstrate serious harm caused by the April 29 Letter — Application of section 137.1(4)(b) of the Courts of Justice Act
CanLII | Nov 12, 2025
- keywords: Business associations — Plans of arrangement — Interim order under OBCA s. 182(5) — Whether the interim order should be granted — Purpose is to set the wheels in motion for the application process — Parameters for holding a shareholder meeting to consider a special resolution — Director notified and not appearing — Commercial List Model Order followed — Interim order granted | Statutory interpretation — OBCA s. 182 — Definition of arrangement — Whether reasonable grounds exist to regard the transaction as an arrangement — Exchange of securities for money under s. 182(1)(f) — Authorities considered including Innvest REIT — Proposed transaction is an arrangement within the meaning of the OBCA — Application proceeds to vote — Arrangement status confirmed | Procedure — Shareholder meeting — Notice and mechanics — Are the proposed notice, record date and Meeting Materials appropriate at the interim stage — Distribution in accordance with National Instrument 54-101 — Dissent rights and participation by security holders preserved — Parameters for calling and conducting the meeting established — Interim order for meeting and notice issued | Business associations — Corporate governance — Fairness at interim stage — Is there sufficient indication of fairness to proceed — Court not required to undertake detailed fairness analysis — Special Committee recommendation and fairness opinion considered — Premium to trading prices noted — Matter to return for final approval hearing — Interim order granted
CanLII | Nov 10, 2025
- keywords: Intellectual property — Copyright infringement — Territoriality of copyright law — Unauthorized reproduction of copyrighted works — Use of copyrighted content in AI model training and commercial products — Does the Ontario Superior Court of Justice have subject matter jurisdiction over copyright claims involving extraterritorial conduct? — Ontario Superior Court has inherent jurisdiction unless ousted by legislation — Copyright Act, R.S.C. 1985, c. C-42, ss. 3, 27, 89 | Civil procedure — Jurisdiction simpliciter — Real and substantial connection — Internet-based activities — Crawling, scraping, and reproduction of data — Contracts with Ontario-based users — Do the defendants have sufficient connection to Ontario to establish in personam jurisdiction? — Presumptive connecting factors under Van Breda framework satisfied for six defendants | Civil procedure — Forum non conveniens — Comparative convenience of Ontario and U.S. forums — Application of Canadian copyright law and Ontario contract law — Avoidance of multiplicity of proceedings — Should the Ontario Superior Court decline jurisdiction in favour of the United States? — Defendants failed to demonstrate that the U.S. is a clearly more appropriate forum
CanLII | Nov 7, 2025
- keywords: Business associations — Corporate governance — Board of directors — Contempt motion — Dispute over management of publicly traded company — Whether founder and shareholder breached court order restraining participation in management — Whether shareholder voting actions violated court order — Framework for determining contempt in corporate governance disputes | Securities — Contempt of court — Clarity of court orders — Whether June 19 Order was sufficiently clear and unequivocal to ground a finding of contempt — Declaratory versus coercive orders — Test for clarity under Carey v. Laiken, 2015 SCC 17 | Evidence — Knowledge of court orders — Actual knowledge of court orders as a requirement for contempt — Whether Ms. Zhou and Ms. Wu had actual knowledge of the June 19 Order — Application of Carey v. Laiken, 2015 SCC 17 | Securities — Breach of court orders — Intentionality — Whether Ms. Zhou’s actions, including correspondence with the SEC and interference with counsel, amounted to intentional breaches of court order — Whether shareholder voting actions constituted breaches — Test for intentionality under Carey v. Laiken, 2015 SCC 17 | Civil procedure — Contempt discretion — Enforcement of court orders — Whether the court should exercise discretion to decline a finding of contempt — Contempt as a remedy of last resort — Application of Carey v. Laiken, 2015 SCC 17
CanLII | Nov 5, 2025
- keywords: Business associations — Corporate restructuring — Preliminary Interim Order — Section 192 of the CBCA — Applicants sought a Preliminary Interim Order to facilitate a proposed arrangement and stay of proceedings — Does the arrangement serve a valid business purpose and meet the requirements of section 192? — Court granted the Preliminary Interim Order to preserve the status quo and enable the applicants to finalize the Recapitalization Transaction | Civil procedure — Interim relief — Stay of proceedings — Applicants sought a stay of rights and remedies against entities involved in the arrangement — Was the stay necessary to maintain stability and prevent jeopardizing enterprise value? — Stay granted to provide breathing room for finalizing the Recapitalization Transaction and to maintain the status quo | Securities — Corporate arrangements — Solvency and impracticability — Proposed arrangement involved exchange of securities and debt restructuring — Did the arrangement meet the statutory requirements under section 192 of the CBCA, including solvency and impracticability? — Court found a reasonable basis to conclude the requirements were satisfied at this stage | Bankruptcy and insolvency — Corporate restructuring — Preservation of enterprise value — Applicants argued that the stay and Preliminary Interim Order were critical to avoid jeopardizing the company’s financial stability — Was the order necessary to facilitate the Recapitalization Transaction? — Court granted the order to ensure stability and maintain enterprise value | Statutory interpretation — Section 192(4) of the CBCA — Extension of stay to non-applicant affiliates — Applicants sought to extend the stay to non-applicant affiliates due to their functional integration and guarantees — Should the stay apply to non-applicant affiliates? — Court held that section 192(4) permits such extensions in appropriate circumstances
CanLII | Nov 4, 2025
- keywords: Bankruptcy and insolvency — Companies' Creditors Arrangement Act (CCAA) — Reopening proceedings — Setting aside prior orders — Allegations of fraud, misrepresentation, and procedural unfairness — Collateral attack on prior orders — Whether motion is frivolous or vexatious — Threshold for reopening CCAA proceedings — Importance of respecting incremental orders in CCAA process — Rule 56.01(e) of the Rules of Civil Procedure — Test for frivolous or vexatious litigation | Civil procedure — Security for costs — Rule 56.01 of the Rules of Civil Procedure — Criteria for granting security for costs — Ordinarily resident outside Ontario — Insufficient assets in Ontario — Balancing fairness, efficiency, and access to justice — Whether security for costs would be unjust — Quantum and form of security — Elevated scale of costs due to allegations of fraud — $400,000 security ordered | Evidence — Monitor's reports — Acceptance of court-appointed Monitor's reports as evidence — Role of Monitor in CCAA proceedings — Whether Monitor's reports require sworn affidavit evidence — Reliance on Monitor's Fifth Report — Precedent from Intercity Realty Inc. v. PricewaterhouseCoopers Inc. and Farber v. Goldfinger — Court's discretion to accept Monitor's reports as evidence
CanLII | Oct 28, 2025
- keywords: Bankruptcy and insolvency — Companies' Creditors Arrangement Act (CCAA) — Lease assignments — Competing stakeholder interests — Insolvent tenant seeking lease assignments to a new party — Monitor's refusal to approve transaction — Whether lease assignments should be approved under section 11.3 of the CCAA — Balancing interests of creditors and landlords — Extraordinary discretion under section 11.3 — Assignments denied due to inability of assignee to meet obligations — CCAA, R.S.C. 1985, c. C-36, s. 11.3 | Lease — Assignment of leases — Anchor tenant leases in major shopping malls — Landlords opposing assignment to new tenant — Whether landlords can be compelled to accept a new tenant under section 11.3 of the CCAA — Assignee's financial and operational viability questioned — Long-term lease obligations and renewal terms — Assignments denied due to lack of demonstrated ability to perform obligations — CCAA, R.S.C. 1985, c. C-36, s. 11.3 | Contracts — Anti-deprivation rule — Ipso facto clauses — Ivanhoe Cambridge leases — Whether section 3.05(A) of leases violates anti-deprivation rule or section 34 of the CCAA — Conditional reversion of lease terms based on tenant's insolvency — Distinction between conditions precedent and conditions subsequent — No existing rights removed upon insolvency — Clauses upheld as enforceable — CCAA, R.S.C. 1985, c. C-36, s. 34 | Civil procedure — Sealing orders — Confidential appendix to Monitor's report — Request to seal bid summaries during lease monetization process — Whether sealing order is necessary to protect integrity of sale process — Balancing open court principle with commercial confidentiality — Temporary sealing order granted — Courts of Justice Act, R.S.O. 1990, c. C.43, s. 137(2) | Bankruptcy and insolvency — Monitor's powers — FILO Agent's motion for expanded Monitor powers — Request to replace management with Monitor oversight — Allocation of costs in CCAA proceedings — Whether costs of lease transaction should be borne by specific creditors or purchaser — Extraordinary relief denied — Monitor's role reaffirmed — CCAA, R.S.C. 1985, c. C-36, s. 11
CanLII | Oct 24, 2025
- keywords: Business associations — Shareholder disputes — Buy/sell agreements — Unanimous shareholders agreement — Senior management team — Financing arrangements — Convertible secured debt — Whether the plaintiff’s claim alleging breach of duties and oppression should be struck as an abuse of process — Doctrine of abuse of process applied to preclude re-litigation of issues already decided or that could have been raised in prior proceedings | Civil procedure — Abuse of process — Issue estoppel — Cause of action estoppel — Plaintiff’s claim alleging breach of duties and oppression — Whether the claim is frivolous, vexatious, or an abuse of process — Finality of litigation — High bar for striking pleadings — Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rr. 25.11(c), 21.01(3)(d) | Contracts — Buy/sell agreements — Unanimous shareholders agreement — Duty of honest and good faith performance — Whether defendants were obligated to disclose financing arrangements with third parties in the context of a buy/sell agreement — No fiduciary duty between shareholders in a buy/sell mechanism — Aronowicz v. Emtwo Properties Inc. applied | Civil procedure — Abuse of process — Fraud or dishonesty — New evidence — Whether the court should decline to apply the abuse of process doctrine due to alleged fraud or new evidence — No obligation to disclose financing arrangements under buy/sell agreements — No injustice in applying abuse of process doctrine
CanLII | Oct 17, 2025
- keywords: Bankruptcy and insolvency — Deepening insolvency — Causation — Damages — Plaintiff alleged that defendants' negligence caused the deepening of Cash Store's insolvency between 2011 and 2014 — Whether the deepening insolvency theory of damages is recognized in Canadian law — Court found no breach of duty and insufficient evidence to establish causation or damages — Limitations Act applied to bar claims | Professional responsibility — Auditors — Standard of care — KPMG LLP audited Cash Store's financial statements — Allegations of failure to detect misstatements and mischaracterization of Cash Store's business model — Whether KPMG breached its duty of care under GAAP and GAAS — Court found KPMG met the required standard of care and dismissed the claim | Professional responsibility — Lawyers — Fiduciary duty — Cassels Brock & Blackwell LLP advised Cash Store on regulatory compliance and public disclosures — Allegations of negligence and conflict of interest due to dual roles of a partner — Whether Cassels breached its professional or fiduciary duties — Court found no breach and dismissed the claim | Civil procedure — Limitations — Discoverability — Claims against KPMG LLP and Cassels Brock & Blackwell LLP filed in November 2014 — Whether claims were statute-barred under the Limitations Act — Court found claims were discoverable by August 2012 and dismissed them as time-barred | Securities — Financial disclosures — Restatements — Cash Store restated financial statements for 2011 and 2012 due to overvaluation of Loan Portfolio — Allegations that defendants failed to ensure accurate disclosures — Court found no evidence of reliance or causation linking defendants' actions to alleged damages
CanLII | Oct 14, 2025
- keywords: International law — International arbitration — UNCITRAL Model Law — Procedural fairness — Alleged denial of document production requests — Alleged failure to address judicial review argument — Standard for setting aside international arbitral awards — Does the denial of document production requests or failure to address arguments justify setting aside the award? — High threshold for judicial intervention in international arbitration awards under the International Commercial Arbitration Act, 2017 | Evidence — Document production — Relevance and materiality — Tribunal's discretion in granting or denying document requests — Allegations of illegality in casino operations — Did the denial of certain document requests deprive the applicant of a fair opportunity to present its case? — Tribunal's decisions on document production must meet standards of fairness, proportionality, and materiality | Statutory interpretation — UNCITRAL Model Law — International Commercial Arbitration Act, 2017 — Procedural fairness — Tribunal's obligation to provide reasons — Does a tribunal's failure to explicitly address every argument constitute a failure to provide reasons? — Tribunals are not required to address every argument explicitly if the decision reflects consideration of the issues | Evidence — Clean hands doctrine — Allegations of illegality and mismanagement — Tribunal's rejection of hearsay evidence — Did the tribunal's treatment of the clean hands doctrine and related evidence breach procedural fairness? — Tribunal's findings must be based on a fulsome consideration of evidence and arguments | Civil procedure — Judicial review — Standard for setting aside arbitral awards — Procedural fairness — Limited jurisdiction of courts to intervene in international arbitration — What is the threshold for judicial intervention in arbitral awards? — Courts will only intervene in cases of extreme departures from procedural fairness that offend basic notions of morality and justice
CanLII | Oct 8, 2025
- keywords: Arbitration — Enforcement of arbitral awards — Comeback Provision — Application to enforce paragraph 7 of an arbitral award under s. 50 of the Arbitration Act — Whether the Court is required to enforce the Comeback Provision — Court required to enforce arbitral awards unless exceptions under s. 50(7) apply — Arbitration Act, S.O. 1991, c. 17, s. 50(1), (3) | Statutory interpretation — Arbitration Act — Exceptions to enforcement of arbitral awards — Whether Comeback Provision falls within s. 50(7) exceptions — Provision limited to sale process of property and consented to by parties — Narrow interpretation of s. 50(7) exceptions — Arbitration Act, S.O. 1991, c. 17, s. 50(7)
CanLII | Oct 8, 2025
- keywords: Bankruptcy and insolvency — Receivership — Distribution of funds — Receiver appointed under s. 101 of the Courts of Justice Act to manage assets of a fraudulent real estate brokerage — Should the Receiver be discharged after completing its duties? — Court oversight of receivership proceedings — Approval of Receiver's activities, fees, and final discharge | Statutory interpretation — Appointment Order — Interpretation of court orders — Whether funds held by the Receiver form part of the property of the Insured for the benefit of all creditors — Court declined to look behind the plain wording of the Appointment Order — Courts of Justice Act, R.S.O. 1990, c. C.43 | Civil procedure — Approval of Receiver's reports and fees — Receiver sought approval of its First Report, activities, and fees, including a Fee Accrual for future work — Whether the Receiver acted reasonably and in good faith — Standard for court approval of Receiver's fees and activities | Insurance — Subrogation — Assignment of claims — Insurer sought to assert subrogated and assigned claims against funds held by the Receiver — Whether an insurer can recover from its own insured under subrogation or assignment — Common law prohibition against subrogation claims against insureds — Policy rationale for consumer protection under mandatory insurance frameworks | Property — Equitable distribution — Consumer claims — Court directed equitable participation of all Consumers with claims against the Insured in the distribution of funds — Whether a side agreement between certain creditors can override equitable principles — Receiver to revise Proposed Distribution to include all known Consumers
CanLII | Oct 6, 2025
- keywords: Bankruptcy and insolvency — Companies' Creditors Arrangement Act (CCAA) — Tolling orders — Limitation periods — Jurisdiction under section 11 of the CCAA to grant tolling orders — Relief sought to prevent expiry of limitation periods during Stay Period — Court satisfied that tolling order advances policy and remedial objectives of the CCAA — Jurisdiction to toll limitation periods affirmed — Section 11 of the CCAA provides broad discretion to grant relief | Civil procedure — Tolling orders — Limitation periods — Stay of proceedings — Risk of limitation periods expiring during Stay Period in CCAA proceedings — Tolling order sought to avoid disruption and distraction caused by lift stay motions — Relief unopposed and supported by stakeholders — Tolling order granted to stabilize proceedings and maximize value for creditors and stakeholders | Statutory interpretation — Companies' Creditors Arrangement Act (CCAA) — Section 11 — Broad discretion to grant relief — Tolling orders for limitation periods affecting CCAA debtors and related parties — Court relied on precedents affirming jurisdiction to toll limitation periods under section 11 — Tolling order consistent with policy objectives of the CCAA — Precedents cited include Century Services Inc. v. Canada (Attorney General), 2010 SCC 60, and Canada v. Canada North Group Inc., 2021 SCC 30
CanLII | Oct 1, 2025
- keywords: Business associations — Shareholder rights — Conditional share grants — Whether shares granted to the plaintiff were conditional on remaining in the family business and acting in its best interests — No documentary evidence of conditions attached to share grants — Plaintiff found to own shares outright — Naneff v. Con-Crete Holdings Ltd. applied | Labour and employment — Termination for cause — Fraudulent invoicing scheme — Whether the plaintiff’s dishonest conduct justified termination for cause — Plaintiff admitted to authorizing fraudulent invoices and misappropriating funds — Termination upheld as proportionate response to breach of trust — McKinley v. BC Tel test applied | Evidence — After-acquired cause — Admissibility of videotapes — Allegations of voyeurism by the plaintiff — Whether videotapes discovered post-termination were genuine and admissible — Court found insufficient evidence to authenticate tapes — No weight given to videotapes in determining after-acquired cause | Torts — Fiduciary duties — Civil deceit and conversion — Fraudulent invoicing scheme — Plaintiff breached fiduciary duties by embezzling over $500,000 from family businesses — Liability for civil deceit and conversion established — Equitable tracing and disgorgement of profits ordered — Bruno Appliance and Furniture, Inc. v. Hryniak applied | Bankruptcy and insolvency — Fraudulent conduct — Judgment surviving bankruptcy — Whether damages arising from fraud and breach of fiduciary duty survive bankruptcy discharge — Judgment declared non-dischargeable under s. 178 of the Bankruptcy and Insolvency Act
CanLII | Sep 29, 2025
- keywords: Business associations — Oppression remedy — Shareholder disputes — Valuation of shares — Estate Trustee alleged oppression under section 248 of the Business Corporations Act (Ontario) due to bad faith conduct and self-serving statements by the director — Whether the director violated reasonable expectations of the deceased shareholder — BCE Inc. v. 1976 Debentureholders test applied — No evidence of bad faith or breach of reasonable expectations — Application dismissed | Estates and trusts — Estate Trustee — Shareholder rights — Valuation of shares under a shareholders agreement following the death of a shareholder — Estate Trustee alleged undervaluation and lack of involvement in the valuation process — Whether the Estate Trustee’s reasonable expectations were violated — Shareholders agreement deemed binding and final — No entitlement to relief under oppression remedy | Contracts — Shareholders agreement — Valuation process — Principles of natural justice — Whether principles of natural justice apply to expert valuation under a shareholders agreement — Expert retained by corporation’s accountant to determine share value — Expert acted within contractual mandate — No breach of natural justice principles — Valuation deemed final and binding
CanLII | Sep 26, 2025
- keywords: Bankruptcy and insolvency — Companies' Creditors Arrangement Act — Art Collection Auction Procedures — Approval of auction process — Monitor's recommendation — Stakeholder consultation — No opposition from creditors — Should the court approve the proposed Art Collection Auction Procedures? — Approval granted under section 36 of the CCAA and Soundair Principles | Indigenous peoples — Cultural artifacts — Indigenous-origin items — Consultation with Indigenous communities — Donation to appropriate custodians — Exclusion of Indigenous artifacts from auction — Are the proposed procedures for Indigenous artifacts fair and appropriate? — Court satisfied with respectful and fair approach | Bankruptcy and insolvency — Section 36 of the CCAA — Sale of assets outside ordinary course of business — Soundair Principles — Factors for court approval — Does the proposed Art Auction Process Order satisfy section 36 and Soundair Principles? — Criteria met; sale process approved | Sale — Vesting of title — Auctioned items — Free and clear of encumbrances — No further court approval required — Should the court authorize vesting of title in buyers without further approval? — Order granted; process ensures efficacy and integrity
CanLII | Sep 25, 2025
- keywords: Business associations — Limited partnerships — Corporate authority — Dispute between limited partners and general partner regarding authority to commence litigation — Whether the Valera LP Action was properly authorized by the general partner’s board of directors — Interpretation of Limited Partnership Agreement and Shareholders Agreement — Whether default notices preclude voting rights — Proper remedy for technical deficiencies in corporate resolutions — Rules of Civil Procedure, R.R.O. 1990, Reg. 194, Rule 15.02(4) | Construction — Development management — Tarion Warranty Corporation claims — Dispute over responsibility for deficient notices and resulting costs — Whether development management fees are payable under the Development Management Agreement — Whether Tarion claims constitute project costs — Interpretation of contractual obligations under Development Management Agreement, Limited Partnership Agreement, and Shareholders Agreement | Civil procedure — Consolidation of proceedings — Whether Adi Application and Valera LP Action should be consolidated — Common questions of law and fact — Overlap of parties, witnesses, and evidence — Risk of inconsistent findings if proceedings are not consolidated — Rule 6.01(1) of the Rules of Civil Procedure — Section 138 of the Courts of Justice Act, R.S.O. 1990, c. C.43 | Civil procedure — Conversion of application into action — Whether Adi Application should be converted into an action — Disputed material facts, complex issues, and need for viva voce evidence — Factors considered for conversion under Rule 38.10 and Rule 1.04 of the Rules of Civil Procedure — Agreement of parties to conversion if consolidation is granted
CanLII | Sep 16, 2025
- keywords: Bankruptcy and insolvency — Appointment of receiver — Just and convenient standard — Application under section 243 of the Bankruptcy and Insolvency Act and section 101 of the Courts of Justice Act — Receiver appointed to preserve debtor’s assets, ensure continuity of critical services, and protect secured creditors’ interests — Test for appointing a receiver — Balancing interests of secured and unsecured creditors — Preservation of public interest in healthcare delivery — Governing principles for receivership orders | Civil procedure — Stay of proceedings — Ongoing litigation — Kitchener Proceedings — Whether stay of proceedings should apply to intellectual property and payment disputes — Receiver’s role in facilitating efficient resolution of disputes — Balancing efficiency and fairness in overlapping litigation and receivership — Governing principles for granting stays in receivership orders | Health — Continuation of critical healthcare services — Community Paramedicine Remote Patient Monitoring Program (CPRPM) — Enhanced Status Quo Arrangement — Receiver’s role in ensuring uninterrupted delivery of healthcare services — Risk to public health from service interruptions — Balancing public interest and creditor rights — Governing principles for healthcare-related receiverships | Intellectual property — Disputed ownership of intellectual property — Remote Patient Monitoring System (RPMS) — Receiver’s role in preserving and managing intellectual property pending resolution of disputes — Access to Amazon Web Services credentials — Safeguards against unauthorized use of intellectual property — Governing principles for intellectual property disputes in receiverships | Property — Secured versus unsecured creditors — Validity and priority of secured loans — General security agreements under the Personal Property Security Act — Recharacterization of loans as equity — Subordination of secured claims — Governing principles for determining creditor priorities in insolvency proceedings
CanLII | Sep 11, 2025
- keywords: Professional responsibility — Arbitrator disqualification — Reasonable apprehension of bias — Section 13(1) of the Arbitration Act, 1991 — Arbitrator disclosed a conflict involving a proposed expert witness who referred a separate litigation matter to the Arbitrator’s law firm — Did the Arbitrator’s conduct and subsequent reversal of position justify disqualification? — Governing test for reasonable apprehension of bias is objective and considers the informed and reasonable person standard | Evidence — Reasonable apprehension of bias — Arbitrator’s communications with expert witness — Disclosure timing — Arbitrator initially identified a “clear appearance of conflict” but later reversed position — Did the Arbitrator’s actions and communications contribute to a reasonable apprehension of bias? — Appearance of bias is as significant as actual bias — Governing principles from MDG Computers and Aroma Franchise | Civil procedure — Costs — Application for disqualification of Arbitrator — Applicant sought costs for both the challenge motion before the Arbitrator and the Application before the Court — Respondent argued costs should not be awarded due to the Applicant’s expert witness causing the issue — Should costs be awarded to the Applicant? — Costs awarded under section 131 of the Courts of Justice Act and rule 57.01
CanLII | Aug 31, 2025
- keywords: Bankruptcy and insolvency — Receiverships — Approval and vesting order — Section 243 of the BIA and s. 100 of the CJA — Should the Receiver’s sale be approved and assets vested free and clear? — Soundair principles applied, deference to court‑appointed officer — Third Eye Capital v. Dianor, vesting out interests in land — Sale of non‑core assets to fund remediation — Approval and vesting order granted | Security interests — Priority — Receiver’s Borrowings Charge — Miners’ liens — Must the Receiver escrow net proceeds pending lien determinations? — Super‑priority charge over all Encumbrances including liens — Proceeds to stand in place of assets, liens attach to proceeds — Redwater considered, escrow inconsistent with Receivership Order and remediation funding — Escrow condition refused | Bankruptcy and insolvency — Jurisdiction — Single proceeding model — Remittal — Should lien validity be remitted to the Supreme Court of Yukon? — National receivership under s. 243 of the BIA, locality of debtor factors — Lemare Lake cited, avoidance of multiplicity of proceedings — Prior finding of Ontario jurisdiction, remittal premature and inefficient — Remittal denied
CanLII | Aug 31, 2025
- keywords: Bankruptcy and insolvency — Fraudulent conveyance — Preference — Constructive trust — Secured claims — Creditor sought to enforce a mortgage discharged by court order — Was the mortgage a fraudulent conveyance or preference under the Fraudulent Conveyances Act and Assignments and Preferences Act? — Were holdback funds subject to a constructive trust? — Mortgage set aside as fraudulent conveyance and preference — Constructive trust denied due to lack of traceability and juristic reason | Property — Secured interest — Discharge of mortgage — Creditor argued that discharge of mortgage did not extinguish secured interest due to alleged false representations — Does the discharge of a mortgage extinguish the security interest even if based on alleged misrepresentation? — Discharge extinguishes security interest under Land Titles Act, R.S.O. 1990, c. L.5, s. 102(1)
CanLII | Aug 29, 2025
- keywords: Business associations — Joint ventures — Deadlock resolution — Condominium development project — Parties in a 50/50 joint venture unable to proceed due to irreparable breakdown in relationship — Court ordered separation mechanism under section 207 of the Business Corporations Act (Ontario) — Whether a shotgun buy-sell or a section 207 buyout is the appropriate remedy — Broad discretion of the court under section 248(3) to fashion remedies for oppression and deadlock | Construction — Condominium development — Joint venture — Deadlock in project management — Dispute over roles and responsibilities in a waterfront condominium project — Pandemic-related challenges exacerbating financial and operational issues — Whether the court should impose a mechanism to resolve the deadlock — Section 207 of the Business Corporations Act (Ontario) invoked to facilitate buyout | Statutory interpretation — Oppression remedy — Business Corporations Act (Ontario), section 248 — Allegations of oppressive conduct by both parties in a joint venture — Exclusion from decision-making, breach of shareholders' agreement, and attempts to gain leverage — Whether oppressive conduct by either party justifies court intervention — Interpretation of section 248 in the context of joint venture disputes | Property — Valuation of interests — Buyout under section 207 of the Business Corporations Act (Ontario) — Dispute over appropriate valuation method for determining buyout price — Competing valuation scenarios presented by expert reports — Court ordered midpoint valuation between competing scenarios to balance fairness — Section 207 used to resolve deadlock without requiring winding-up
CanLII | Aug 27, 2025
- keywords: Bankruptcy and insolvency — Companies' Creditors Arrangement Act — Approval of settlement agreements — Monitor sought approval of Surplus Sharing Agreement between Applicant and pension plan members — Whether the settlement was fair, reasonable, and consistent with the CCAA's purpose — Court approved the agreement, finding it balanced stakeholder interests and maximized creditor recoveries — Companies' Creditors Arrangement Act, R.S.C. 1985, c. C-36, s. 11 | Statutory interpretation — Pension Benefits Act — Surplus entitlement — Applicant sought declaration of entitlement to surplus in pension plans under section 79(3)(b) of the PBA — Whether court had jurisdiction to grant declaratory relief — Court held jurisdiction existed under both the CCAA and the PBA — Pension Benefits Act, R.S.O. 1990, c. P.8, ss. 77.11, 78.11, 79(3)(b) | Labour and employment — Pension plans — Surplus allocation — Representative Counsel negotiated settlement on behalf of pension plan members — Agreement allocated 45% of surplus to members and 55% to Applicant — Whether agreement was fair and reasonable — Court approved the allocation, finding it equitable and in compliance with statutory requirements — Pension Benefits Act, R.S.O. 1990, c. P.8 | Bankruptcy and insolvency — Stay of proceedings — Extension of stay — Monitor sought extension of stay to complete wind-down of CCAA proceedings — Whether extension was appropriate and in good faith — Court granted extension, finding it necessary to provide stability and facilitate surplus distribution — Companies' Creditors Arrangement Act, R.S.C. 1985, c. C-36, s. 11.02
CanLII | Aug 25, 2025
- keywords: Bankruptcy and insolvency — Class counsel fees — Insolvency proceedings — Approval of fees in CCAA context — Tobacco companies' insolvency — Mediated settlement under CCAA Plans — Should the court approve the requested fees for class counsel in the context of the CCAA proceedings? — Framework for approving fees in insolvency cases — Companies' Creditors Arrangement Act, R.S.C. 1985, c. C-36 | Civil procedure — Class actions — Contingency fee agreements — Lodestar method — Québec law — Framework for assessing reasonableness of class counsel fees — Should the court apply the lodestar method as a cross-check for contingency fees? — Article 593 of the Code of Civil Procedure, C.Q.L.R., c. C-25.01 | Bankruptcy and insolvency — Class member compensation — Québec Class Action Administration Plan — Reserve for compensation — Should a reserve be established from class counsel fees to ensure full compensation for class members? — Provisions of the Québec Class Action Administration Plan governing pro-rata reductions | Professional responsibility — Class counsel fees — Knight class action — Tobacco Producers' class action — Contingency fee agreements — Are the requested fees for Knight Class Counsel and Tobacco Producers' Class Counsel reasonable? — Standard for approving contingency fees in class actions | Professional responsibility — Honorarium for representative plaintiff — Knight class action — Should the court approve a $10,000 honorarium for the representative plaintiff in recognition of 22 years of service? — Standard for awarding honoraria in British Columbia class actions
CanLII | Aug 25, 2025
- keywords: Contracts — Termination of agreement — Data return — Interpretation of contractual provisions — Whether the $2.50 per image "document restore" fee applies to the mass repatriation of data upon termination of the Agreement — Agreement's structure and transition provisions analyzed — Commercial reasonableness and avoidance of absurdity in contract interpretation — Governing principles from Sattva Capital Corp. v. Creston Moly Corp. and other precedents applied | Obligations — Contractual obligations — Data ownership and return — Whether TD Waterhouse is obligated to pay EIS for the return of its data upon termination of the Agreement — Ownership of data established under the Agreement — Transition provisions requiring orderly migration of data — Court held that EIS is entitled to compensation on a quantum meruit basis for services rendered | Civil procedure — Injunctions — Mandatory injunction requiring return of data — Whether TD Waterhouse is entitled to an injunction compelling EIS to return its data — Test for mandatory injunctions from Labourers' International Union of North America, Local 183 v. Castellano applied — Injunction granted with conditions for quantum meruit compensation to EIS
CanLII | Aug 15, 2025
- keywords: Civil procedure — Sealing orders — Partial sealing order — Defendants sought to seal confidential commercial and technical information in connection with a jurisdiction motion — Should the court grant a partial sealing order to protect the defendants' confidential information? — Test for sealing orders under s. 137(2) of the Courts of Justice Act — Balancing confidentiality and open court principles — Order granted to protect competitively sensitive information | Commerce and industry — Confidential business information — Artificial intelligence — Defendants' confidential information included corporate structure, web crawling processes, and model training systems — Does disclosure of confidential information pose a serious risk to an important public interest? — Public interest in fair competition and confidentiality — Risk of unearned competitive advantage to competitors | Evidence — Confidentiality — Necessity and alternatives — Defendants argued no reasonable alternative measures could protect confidential information — Does the evidence support the necessity of a sealing order? — Evidence demonstrated confidentiality maintained and potential harm from disclosure — Protective measures deemed insufficient without sealing order | Constitution — Open court principle — Freedom of expression — Balancing confidentiality and public access — Does the proportionality test favor granting the sealing order? — Benefits of confidentiality outweighed minimal impact on open court principle — Public interest in fair competition and administration of justice upheld
CanLII | Aug 14, 2025
- keywords: Property — Fiduciary duties — Condominium directors — Breach of fiduciary duty — Statutory duties under Condominium Act, 1998 — Allegations of personal benefits — Did the directors breach their fiduciary duties by failing to act in the best interests of the condominium corporation? — Directors found to have acted in good faith and without fraudulent intent — Condominium Act, 1998, S.O. 1998, c. 19 | Torts — Knowing assistance — Breach of fiduciary duty — Joint and several liability — Did the defendants knowingly assist in the breach of fiduciary duties by the directors of the condominium corporation? — No evidence of fraudulent or dishonest conduct by directors — Defendants not liable for knowing assistance | Contracts — Easement release provisions — Condominium Act compliance — Contractual obligations — Was the condominium corporation required to release the easements under the easement release provisions? — Easements found unnecessary for the proper function of the condominium — Corporation contractually obligated to release easements | Property — Conflicts of interest — Disclosure obligations — Recusal — Did the directors fail to disclose conflicts of interest or recuse themselves from decisions involving personal or business interests? — Disclosure of unrelated business relationships made in Information Circular — No breach of statutory or fiduciary duties found | Property — Punitive damages — High-handed or malicious conduct — Reckless disregard for rights — Is the plaintiff entitled to punitive damages for alleged breaches of fiduciary duties? — No evidence of malicious or high-handed conduct — Punitive damages denied | Property — Counterclaim — Indemnification — Interference with development project — Should the counterclaim for indemnification and damages for interference with the Manziana project be allowed? — Counterclaim dismissed as not pursued at trial
CanLII | Aug 11, 2025
- keywords: Commerce and industry — Spectrum auctions — Regulatory framework — Transferability of spectrum licences — Government representations — New entrants in wireless market — Did the Government owe a duty of care to investors in spectrum auctions? — Framework for assessing duty of care owed by public authorities to private parties | Obligations — Negligence — Negligent misrepresentation — Duty of care — Breach of standard of care — Implementation of 2013 Transfer Framework — Interference with sales process — Did the Government’s actions cause harm to the Plaintiffs? — Principles governing liability for economic loss caused by public authorities | Bankruptcy and insolvency — CCAA proceedings — Sales process — Court-ordered mediation — Government interference — Mobilicity insolvency — Did the Government’s actions obstruct the sale of Mobilicity’s assets? — Role of regulators in insolvency sales processes | Contracts — Spectrum licences — Terms and conditions — Transferability — Breach of contract — Did the Government breach contractual obligations by amending licence terms? — Principles governing contractual liability of public authorities | Torts — Economic relations — Unlawful interference — Government conduct — Mobilicity sales process — Did the Government unlawfully interfere with the Plaintiffs’ economic relations? — Framework for establishing liability for intentional interference with economic relations
CanLII | Aug 6, 2025
- keywords: Securities — Receivership — Discharge or variation of receivership order — Prima facie case of fraud and misrepresentation — Discreditation of key evidence from U.S. proceedings — Passage of time without progress in investigation — Whether continuation of full receivership is justified — Balancing public interest and respondents' rights — Securities Act, R.S.O. 1990, c. S.5, s. 129 — Extraordinary remedy of receivership reconsidered in light of changed circumstances | Civil procedure — Receivership — Discharge motion — Alternative remedies — Respondents sought discharge of receivership or variation to freeze limited assets — Court ordered $10 million escrow fund and curtailed Receiver’s role — Balancing interests of capital markets and respondents — Whether less intrusive measures could preserve assets — Test for varying receivership orders under comeback clause of s. 129(8) of the Securities Act | Access to information — Receivership — Disclosure of data — Interpretation of paragraph 5(q) of Appointment Order — Receiver authorized to share non-privileged data with Ontario Securities Commission — Privilege protocol in place to safeguard solicitor-client privileged materials — Whether disclosure bypasses statutory protections under Securities Act — Court oversight of disclosure process — Balancing investigatory needs and respondents' rights
CanLII | Aug 5, 2025
- keywords: Bankruptcy and insolvency — Initial order — Stay of proceedings — Interim financing — Applicants sought initial order under the CCAA to stabilize operations and access DIP financing — Should the court grant the initial order, including a stay of proceedings? — CCAA, s. 11.02(1) — Purpose of initial stay to preserve status quo and prevent creditor enforcement actions | Bankruptcy and insolvency — Non-Applicant Related Parties — Extension of protections — Applicants sought to extend initial order protections to related entities integral to operations — Should the protections of the initial order extend to Non-Applicant Related Parties? — CCAA, s. 11 — Factors for extending stay to non-applicants include operational integration and restructuring necessity | Bankruptcy and insolvency — Pre-filing obligations — Critical suppliers — Applicants sought authorization to pay pre-filing obligations to critical suppliers to maintain operations — Should the court approve payment of pre-filing obligations? — CCAA, s. 11 — Payments limited to $500,000 with Monitor and lender consent | Bankruptcy and insolvency — DIP financing — Super-priority charge — Applicants sought approval of $3.3 million DIP financing with a super-priority charge — Should the court approve the DIP financing and charge? — CCAA, s. 11.2(1) — Terms of financing deemed fair and necessary for continued operations | Bankruptcy and insolvency — Lien Regularization Order — Continuing projects — Applicants sought LRO to manage lien claims on ongoing projects — Should the court approve the LRO? — CCAA, s. 11 — LRO preserves lien rights within a court-supervised framework to avoid project disruptions
CanLII | Aug 1, 2025
- keywords: Bankruptcy and insolvency — Companies' Creditors Arrangement Act — Lease monetization process — Approval of Monitor's reports and activities — Should the Court approve the Monitor's reports and activities under the CCAA? — Court approval ensures procedural certainty and protects stakeholders — Companies' Creditors Arrangement Act, R.S.C. 1985, c. C-36, s. 36 | Lease — Assignment and assumption of leases — Sale of assets outside the ordinary course of business — Should the Court approve the assignment and assumption of leases under the CCAA? — Court satisfied with fairness and transparency of lease monetization process — Companies' Creditors Arrangement Act, R.S.C. 1985, c. C-36, s. 36 | Civil procedure — Sealing orders — Confidential appendix to Monitor's report — Should the Court grant a sealing order for the confidential appendix? — Disclosure could impair integrity of future sales processes — Test from Sierra Club and Sherman Estate applied | Statutory interpretation — Stay of proceedings — Extension of stay under the CCAA — Should the stay of proceedings be extended? — Extension necessary to facilitate ongoing transactions and proceedings — Companies' Creditors Arrangement Act, R.S.C. 1985, c. C-36, s. 11.02 | Civil procedure — Case management — Royal Charter disposition motion — Should the Court issue a case management direction for the Royal Charter motion? — Direction ensures timely and comprehensive consideration of all issues — Public interest and stakeholder notice emphasized
CanLII | Jul 31, 2025
- keywords: Civil procedure — Pleadings — Motion to strike — Amended Statement of Claim — Defendants moved to strike the Amended Statement of Claim for disclosing no reasonable cause of action — Should the Amended Statement of Claim be struck out? — Rule 21.01(1)(b) of the Rules of Civil Procedure governs motions to strike pleadings for failure to disclose a reasonable cause of action | Civil procedure — Leave to amend — Plaintiffs granted leave to amend the Amended Statement of Claim — Should leave to amend be denied due to prejudice or delay? — Leave to amend should only be denied in the clearest of cases — South Holly Holdings Limited v. The Toronto-Dominion Bank, 2007 ONCA 456 | Obligations — Partnership — Existence of partnership — Plaintiffs alleged a partnership with Defendants in real estate projects — Does the Amended Statement of Claim sufficiently plead the existence of a partnership? — Partnership requires a business carried on in common with a view to profit — Backman v. Canada, 2001 SCC 10 | Contracts — Breach of contract — Privity of contract — Plaintiffs alleged breach of multiple contracts — Does the Amended Statement of Claim disclose a reasonable cause of action for breach of contract? — Plaintiffs must plead the existence of a valid contract, breach, and privity — Brown v. Belleville (City), 2013 ONCA 148 | Torts — Negligence — Negligent misrepresentation — Tortious interference with economic interests — Conspiracy — Plaintiffs alleged multiple torts, including negligence and conspiracy — Does the Amended Statement of Claim disclose reasonable causes of action for these torts? — Plaintiffs must plead material facts with clarity and precision to establish each tort — A.I. Enterprises Ltd. v. Bram Enterprises Ltd., 2014 SCC 12
CanLII | Jul 31, 2025
- keywords: Civil procedure — Mareva injunction — Variation of order — Defendant sought variation of Mareva Order to exclude future income or release funds for living expenses and debts — Defendant also sought removal of passport surrender requirement — Whether defendant met the test for variation of Mareva Order — Test from Waxman v. Waxman applied — Defendant failed to provide full and frank disclosure of assets and expenses — Mareva Order not varied | Evidence — Disclosure of assets — Defendant failed to disclose joint bank account and credit cards in sworn affidavit — Defendant unable to substantiate expenses or source of funds for international travel — Whether defendant satisfied the onus of proving no other assets available for living expenses — Adverse inference drawn due to lack of candour — Test from Waxman v. Waxman applied | Evidence — Passport surrender — Defendant sought removal of passport surrender requirement under Mareva Order — Court considered risk of asset dissipation and defendant’s inconsistent evidence regarding ties to Somalia and Saudi Arabia — Whether surrender of passport remains just and convenient — Test from Wayne Safety Inc. v. Gendelman applied — Passport surrender requirement upheld | Evidence — Norwich Order — Variation of order — Defendant sought removal of phone number from Norwich Order, claiming it belonged to his father — Plaintiff established defendant’s use of the phone number as a contact — Whether Norwich Order should be varied — Test from Alberta (Treasury Branches) v. Leahy applied — Norwich Order not varied; privacy concerns addressed through procedural safeguards
CanLII | Jul 28, 2025
- keywords: Business associations — Oppression remedy — Injunctive relief — Shareholder disputes — Condo development project — Dueling oppression applications under section 248 of the Business Corporations Act (Ontario) — Should the court grant interim relief to maintain the status quo pending the hearing of oppression applications? — Broad powers of the court under section 248(3) to rectify oppressive conduct | Contracts — Unanimous Shareholder Agreement (USA) — Breach of USA — Assignment of Senior Loan to a related entity of one shareholder without unanimous board approval — Does the assignment of the Senior Loan violate the USA's provisions requiring unanimous director approval for material contracts with related parties? — Interpretation of section 4.6(k) of the USA | Civil procedure — Injunctive relief — Balance of convenience — Irreparable harm — Application of the RJR-MacDonald test for interlocutory injunctions — Does the balance of convenience and irreparable harm favour granting the requested Standstill Terms? — Section 101 of the Courts of Justice Act | Statutory interpretation — Business Corporations Act (Ontario) — Section 248 — Scope of court's powers in oppression remedy cases — Can the court grant interim relief to maintain the status quo under section 248(3)? — Interpretation of statutory provisions governing oppression remedies
CanLII | Jul 24, 2025
- keywords: Bankruptcy and insolvency — Receivership — Creditor recovery process — Receiver's motion for approval of sale of inventory and conduct — Debtor's insolvency and objections to Receiver's Relief — Whether Receiver's proposed sale process maximizes recovery for creditors — Court's deference to Receiver's business judgment — Royal Bank of Canada v. Soundair Corp. principles applied | Lease — Commercial lease — Default under lease — Landlord's RFP process for new tenant — Whether Receiver's sale of inventory through Landlord's RFP process is appropriate — Debtor's objections to Landlord's control over assets — Lease and operating license tied to Landlord's consent — Bankruptcy and Insolvency Act, R.S.C., 1985, c. B-3, s. 84.1(5) | Sale — Sale of inventory — Receiver's proposed sale through Landlord's RFP process — Whether sale guarantees recovery at cost — Debtor's objections to sale process — Receiver's inability to market other assets — Soundair principles governing approval of sale process — Court approval of marketing method, not final sale | Civil procedure — Sealing orders — Confidential appendix to Receiver's First Report — Landlord RFP Document containing commercially sensitive information — Whether sealing order is necessary to protect fairness and integrity of RFP process — Test from Sherman Estate v. Donovan applied — Courts of Justice Act, R.S.O. 1990, c. C.43, s. 137(2)
CanLII | Jul 18, 2025
- keywords: Contracts — Arbitration — Procedural fairness — Natural justice — Application to set aside arbitral award under Article 34 of the Model Law — Whether the Arbitrator followed the agreed-upon procedure in the Asset Purchase Agreement (APA) — Whether the Arbitrator’s conduct violated principles of natural justice — Model Law on Commercial Arbitration, Article 34 — International Commercial Arbitration Act, 2017, S.O. 2017, c. 2, Sched. 5 | International law — Arbitration — Jurisdiction — Whether the dispute constituted an arbitration under the Model Law — Whether the Ontario Superior Court of Justice had jurisdiction to hear the application to set aside the arbitral award — Test for determining arbitration versus expert determination — Model Law on Commercial Arbitration, Article 34 — Sport Maska Inc. v. Zittrer, [1988] 1 S.C.R. 564 | Evidence — Procedural fairness — Filing of sworn declarations — Whether the Arbitrator breached the APA by accepting the Cascagnette Declaration — Whether the Arbitrator’s acceptance of the declaration denied the applicant an opportunity to respond — Whether the Arbitrator’s conduct violated natural justice — APA, s. 1.07(c)(iii) — Standard of review for procedural fairness under Article 34 of the Model Law | Sale — Purchase price adjustments — Earnout provisions — Whether the Arbitrator relied on new theories or issues not raised by the parties — Whether reliance on APA provisions not explicitly argued by the parties constituted a breach of natural justice — APA, ss. 1.07(a), 1.07(d), 1.08 | Evidence — Reasons for decision — Sufficiency of reasons — Whether the Arbitrator failed to provide adequate reasons for its determinations — Whether the Arbitrator’s reasons met the standard required under the APA and the Model Law — Contextual standard for reasons in arbitration — Sound Contracting Ltd. v. Campbell River, 2024 BCSC 933
CanLII | Jul 11, 2025
- keywords: Bankruptcy and insolvency — Recognition of foreign judgments — Israeli insolvency proceedings — Functionary appointed under Israeli law seeking enforcement of Israeli judgments in Ontario — Respondents opposing enforcement on grounds of public policy and abuse of process — Whether enforcement of foreign judgments is consistent with Canadian insolvency law — Principles of comity and surplus distribution under insolvency law — Enforcement granted — Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3 | Civil procedure — Enforcement of foreign judgments — Requirements for recognition — Finality, jurisdiction, and definite sum of money — Israeli judgments meeting criteria for enforcement in Canada — Respondents alleging double recovery and prior Canadian decisions addressing related issues — Whether enforcement constitutes abuse of process — Application of Beals v. Saldanha framework — Enforcement granted | International law — Public policy defence — Double recovery — Whether enforcement of Israeli judgments violates Canadian public policy — Respondents alleging prior recoveries satisfied losses — No evidence of recovery under Israeli judgments — Narrow application of public policy defence — Principles of comity and international enforcement of judgments — Defence rejected
CanLII | Jul 8, 2025
- keywords: Construction — Public-private partnerships — Light rail transit project — Project Agreement governing construction and maintenance of Finch West LRT — Whether Metrolinx required to retain an Operator under the Project Agreement — Interpretation of contractual obligations in public infrastructure projects — Principles of contractual interpretation, including commercial absurdity and business efficacy — Metrolinx required to engage an Operator to fulfill Operator Tasks under the Project Agreement | Contracts — Interpretation — Operator obligations — Whether the Operator Agreement must obligate the Operator to perform Operator Tasks as defined in the Project Agreement — Broad definition of Operator Tasks — Implied terms necessary to give business efficacy to the Project Agreement — Metrolinx required to ensure Operator Agreement aligns with Project Agreement obligations | Contracts — Breach — Train Operating and Services Agreement (TOSA) — Whether TOSA breached the Project Agreement by failing to require the Operator to perform Operator Tasks — Dispute resolution mechanisms under the Project Agreement — Specific disputes regarding Operator Tasks to be addressed on a case-by-case basis through contractual dispute resolution | Civil procedure — Applications versus actions — Conversion of application to action — Whether material facts in dispute justify converting application into action — No good reason to convert application where issues primarily involve contractual interpretation — Rule 14.05(3) of the Rules of Civil Procedure — Application allowed to proceed as filed
CanLII | Jul 4, 2025
- keywords: International law — Recognition and enforcement of foreign arbitral awards — New York Convention — Application of the Convention to arbitral awards rendered in Dubai International Financial Centre — Whether the arbitral award should be recognized and enforced despite objections regarding procedural rules and tribunal composition — Governing principles under the New York Convention, Article V | Statutory interpretation — Interpretation of arbitration agreements — Effect of Dubai Decree No. (34) on arbitration agreements referencing DIFC-LCIA Arbitration Rules — Whether the Decree replaced DIFC-LCIA Arbitration Rules with DIAC Arbitration Rules — Principles of Canadian law applied to interpret foreign legislation in the absence of evidence of foreign law | Civil procedure — Procedural fairness in arbitration — Allegations of compressed timelines and inability to retain counsel — Whether the arbitrator’s procedural decisions denied the respondent a fair hearing — Governing principles of procedural fairness in arbitration under the New York Convention
CanLII | Jul 3, 2025
- keywords: Bankruptcy and insolvency — Monitor's reports — Approval of activities — Applicants sought approval of the Monitor's 24th through 27th Reports and activities described therein — Should the Monitor's reports and activities be approved? — Approval granted as activities were consistent with the appointment order and accretive to the progress of the CCAA proceedings — Target Canada Co., (Re), 2015 ONSC 7574 applied | Bankruptcy and insolvency — Wind-Down Order — Reporting obligations — Applicants sought to amend the Wind-Down Order to reduce variance reporting frequency from bi-weekly to monthly — Should the reporting obligations be amended? — Amendment approved to reduce administrative burdens and professional fees while maintaining transparency | Bankruptcy and insolvency — Addition of Applicant — Claims process — Block 6 Holding Inc. — Applicants sought to add Block 6 as an Applicant and approve a restricted claims process and administration charge — Should Block 6 be added as an Applicant, and should the claims process and charge be approved? — Relief granted as Block 6 met statutory requirements under the CCAA and inclusion maximized stakeholder value | Bankruptcy and insolvency — Sale of property — French discharge order — Applicants sought approval of the sale of the 3550 Pitfield Property and a French discharge order for Québec land registry compliance — Should the sale and discharge order be approved? — Sale and discharge order approved as the transaction met section 36 CCAA factors and Soundair Principles | Bankruptcy and insolvency — Mediation — Cost allocation — Applicants sought approval of a Court-appointed mediator to resolve cost allocation issues among financiers — Should the mediation process and mediator be approved? — Mediation approved as it advanced the remedial purposes of the CCAA and minimized delays — 1057863 B.C. Ltd. (Re), 2022 BCSC 759 applied
CanLII | Jun 30, 2025
- keywords: Bankruptcy and insolvency — Receivership — Approval of Receiver’s activities, fees, and reports — Receiver’s activities conducted within the scope of the Appointment Order and Housing Services Act — Court satisfied with prudence and diligence of Receiver’s actions — Standard practice of periodic court approval of Receiver’s activities — Approval granted for Receiver’s fees and reports — Test for approval of court-appointed officer’s actions under inherent jurisdiction | Property — Housing co-operatives — Receivership — Approval of Receiver’s activities and fees — Receiver’s mandate to stabilize Co-op’s finances, governance, and operations — Receiver’s actions included urgent repairs, governance improvements, and financial management — Court satisfied with Receiver’s compliance with Appointment Order and Housing Services Act — Approval of Receiver’s activities and fees justified under relevant case law | Municipalities — Housing Services Act — Request for Expressions of Interest and Qualifications (RFEIQ) process — Receiver’s authority to propose RFEIQ process for transitioning Co-op out of receivership — Court approval of RFEIQ process limited to initial phases — Receiver directed to report back on progress — Court retains discretion to approve further steps — Test for approval of proposed processes in receivership context | Social welfare — Co-operative housing — Governance and management — Receiver’s authority to evaluate board candidates — Concerns about unresolved governance issues and triggering events — Receiver’s proposed RFEIQ process includes objective criteria for board candidacy — Court limits Receiver’s role in subjective evaluation of candidates — Court emphasizes importance of governance stability in transitioning Co-op out of receivership | Civil procedure — Court supervision of receivership — Restrictions on current Board’s ability to call meetings — Board prohibited from calling AGM or other meetings during RFEIQ process without court approval — Court’s discretion to impose procedural safeguards in receivership proceedings — Balancing stakeholder rights and procedural fairness in court-supervised processes
CanLII | Jun 30, 2025
- keywords: Business associations — Oppression remedy — Standing of complainants — Plaintiffs sought to advance oppression claims under section 248 of the OBCA against a corporate director in his personal capacity — Whether plaintiffs, as potential creditors, qualify as proper complainants under section 245(2)(c) of the OBCA — Court found plaintiffs did not meet the criteria for standing as complainants — Ontario Business Corporations Act, R.S.O. 1990, c. B.16, ss. 245, 248 | Securities — Oppression remedy — Standing of potential creditors — Plaintiffs claimed oppression based on alleged breaches of a Consultant Agreement and litigation initiated by the defendant — Whether plaintiffs, as potential creditors, qualify as complainants under section 245(2)(c) of the OBCA — Court held plaintiffs were not creditors at the time of the alleged oppression and lacked standing — Ontario Business Corporations Act, R.S.O. 1990, c. B.16, ss. 245, 248 | Civil procedure — Summary judgment — Rule 20.04(2)(a) — Defendant sought summary judgment to dismiss oppression claims against him in his personal capacity — Whether there was a genuine issue requiring a trial regarding plaintiffs' standing as complainants under the OBCA — Court granted summary judgment, finding no triable issue on standing — Rules of Civil Procedure, R.R.O. 1990, Reg. 194, Rule 20.04(2)(a)
CanLII | Jun 24, 2025
- keywords: Business associations — Shareholder disputes — Settlement agreements — Breakdown of business relationships — Disentanglement of business interests — Dispute over share transfer obligations under a Settlement Agreement — Whether the court can compel the transfer of shares in ELI and HLI — Settlement Agreement upheld as valid — Relief deferred pending resolution of related proceedings — Interconnected litigation involving multiple parties and claims | Contracts — Settlement agreements — Enforcement — Applicants sought to compel the transfer of shares under a Settlement Agreement — Whether the Settlement Agreement’s terms required the transfer of shares upon receipt of specified payments — Court held that prior decisions did not automatically compel share transfer — Relief deferred pending resolution of related proceedings — Settlement Agreement interpreted as binding but subject to conditions | Obligations — Pre-conditions to performance — Share transfer obligations under a Settlement Agreement — Whether mortgages placed on properties without consent impacted obligations under the Settlement Agreement — Respondent argued pre-conditions were not met due to mortgage issues — Court deferred relief pending resolution of related proceedings — Outstanding PSA Action and Kayzan Distribution Application raised concerns about share value and obligations | Civil procedure — Costs — Partial indemnity costs awarded — Applicants ordered to pay $60,000 in costs to the respondent — Costs awarded due to the court’s decision to defer relief pending resolution of related proceedings — Costs fixed inclusive of taxes and disbursements
CanLII | Jun 20, 2025
- keywords: Business associations — Corporate governance — Board of Directors — Constitution of the Board — Improperly convened meetings — Deficient notice — Shareholder approval requirements — Whether the Board of Directors of Visionary Holdings Inc. as of March 25, 2025, constitutes the lawful Board — Ontario Business Corporations Act, s. 122(1) — VHI By-Law No. 1, ss. 3.8, 4.4 — Court held that improperly convened meetings were void and confirmed the March 25, 2025 Board as lawful | Business associations — Investigation orders — Section 161 of the OBCA — Prima facie case of oppression — Allegations of fraud, stock manipulation, and breach of fiduciary duties — Whether an investigation order is appropriate — Test from Khavari v. Mizrahi applied — Court found prima facie evidence of oppressive conduct and ordered the appointment of an inspector | Business associations — Injunctions — Restraining participation in management — Fiduciary duties — Allegations of misconduct by a director — Whether Fan Zhou should be restrained from participating in the management of Visionary Holdings Inc. — Test from RJR-MacDonald Inc. applied — Court granted interlocutory injunction restraining Zhou from management pending investigation | Business associations — Shareholder actions — Super-majority voting rights — Restraint on shareholder actions — Whether 3888 Investment Group Limited should be restrained from removing directors during the investigation — Allegations of improper consolidation of voting power — Court restrained 3888 from taking action to change the Board of Directors pending further order
CanLII | Jun 19, 2025
- keywords: Civil procedure — Service of process — Foreign sovereign states — Validity of service through diplomatic channels under section 9(1)(c) and (2) of the State Immunity Act (SIA) — Whether service must comply with the Hague Service Convention under section 9(1)(b) of the SIA — Service deemed valid under SIA without mandatory compliance with the Convention — State Immunity Act, R.S.C., 1985, c. S-18, ss. 9(1), 9(2), 9(5) | International law — Hague Service Convention — Applicability to service on foreign sovereign states — Whether the Convention creates a mandatory hierarchy for service methods under section 9(1) of the State Immunity Act — Interpretation of Canada’s obligations under the Convention — Service through diplomatic channels preserved as an option under Canadian law — Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, 1965 | Statutory interpretation — State Immunity Act — Interpretation of section 9(1) — Whether “may” in section 9(1) creates a hierarchy of service methods — Legislative intent to preserve diplomatic channels as a valid service method — Modern principle of statutory interpretation applied — No mandatory priority for the Hague Service Convention under section 9(1)(b) | Evidence — Proof of service — Conclusive proof under section 14(2) of the State Immunity Act — Certificate issued by Global Affairs Canada confirming transmission of documents to the Republic of Argentina — Service deemed effective on October 23, 2024 — State Immunity Act, R.S.C., 1985, c. S-18, ss. 9(5), 14(2) | Civil procedure — Costs — Partial indemnity costs — Reasonableness and proportionality of costs claimed by the Applicants — Costs awarded to the Applicants in the amount of $79,672.35 — Rule 57 of the Rules of Civil Procedure applied
CanLII | Jun 18, 2025
- keywords: Civil procedure — Costs — Full indemnity scale — Successful parties sought full indemnity costs due to plaintiff’s conduct, including fabrication of evidence, breach of court orders, and refusal to accept reasonable settlement offers — Should costs be awarded on a full indemnity scale? — Rule 49.13 allows consideration of non-compliant offers in assessing costs — Full indemnity costs awarded to successful parties | Civil procedure — Costs — Partial indemnity scale — Corporate defendants argued for partial indemnity costs for certain entities — Should costs payable by corporate entities be assessed on a partial indemnity scale? — Costs for corporate entities assessed on a partial indemnity scale at 50% of full indemnity | Evidence — Costs — Excessive hours and rates — Plaintiff challenged the number of hours and hourly rates claimed by defendants’ counsel, citing overlap and unsuccessful motions — Should the court reduce costs due to alleged excesses? — Plaintiff’s failure to provide a comparative costs outline undermined arguments — Costs reduced for certain interlocutory motions and case conferences | Civil procedure — Costs — Offers to settle — Defendants relied on multiple offers to settle, including a Rule 49 offer, to justify full indemnity costs — Plaintiff failed to accept reasonable offers, including one withdrawn before trial — Does failure to accept reasonable offers justify full indemnity costs? — Court considered offers under Rule 49.13 and awarded full indemnity costs
CanLII | Jun 16, 2025
- keywords: Contracts — Validity of capital calls — Partnership agreements — Real estate development — Whether the 2024 Capital Call was valid under the Harlo Partnership Agreement — Capital call provisions in section 4.5 of the agreement — Interpretation of contractual terms in light of the factual matrix — Capital call deemed valid under the agreement's clear terms | Contracts — Default under partnership agreements — Failure to fund capital calls — Whether Dream Impact committed an Event of Default by not funding the 2024 Capital Call — Payment Default provisions in section 4.6 of the Harlo Partnership Agreement — Event of Default triggered by non-payment of called capital | Contracts — Put Notice validity — Disputes over major decisions — Whether Dream Impact's Put Notice was valid and binding — Interpretation of "Dispute" and "Major Decision" under the Harlo Partnership Agreement — Put Notice deemed invalid as no valid dispute existed regarding a major decision | Contracts — Continuing default — Dilution of partnership interest — Whether there is a continuing Event of Default after other partners funded Dream Impact's share under section 4.7 — Consequences of dilution under section 4.7 — No continuing Event of Default after dilution of Dream Impact's interest
CanLII | Jun 12, 2025
- keywords: Contracts — Privity of contract — Third-party rights — Non-party to a settlement agreement claiming rights under it — Whether the doctrine of privity of contract prevents a non-party from obtaining benefits or rights under the Kalber Settlement Agreement — Common law doctrine of privity and its exceptions — Bertrand v. Academic Medical Organization of Southwestern Ontario, 2024 ONCA 319 — Fraser River Pile & Dredge Ltd. v. Can-Drive Services Ltd., [1999] 1 S.C.R. 108 | Estates and trusts — Interpretation of settlement agreements — Disposition of estate property — Proper interpretation of the Kalber Settlement Agreement and its effect on the Special Shares of Kalber — Whether the agreement includes a disclaimer or renunciation of Brenda's interest in the Special Shares — Sattva Capital Corp v Creston Moly Corp, 2014 SCC 53 — Principles of contractual interpretation | Civil procedure — Costs — Fixing costs — Discretionary decision under s. 131 of the Courts of Justice Act — Factors considered in fixing costs, including result, complexity, and conduct of parties — Costs fixed at $65,000 inclusive of disbursements and HST — Balancing compensation of the successful party with fostering access to justice — Boucher v Public Accountants Council (Ontario) (2004), 71 O.R. (3d) 291 (C.A.)
CanLII | Jun 12, 2025
- keywords: Business associations — Corporate governance — Shareholder meetings — Appointment of independent chair — Applicants sought an independent chair for the AGM of a publicly traded corporation — Respondent proposed an alternative director as chair, citing compliance with corporate by-laws — Should the Court interfere with the corporate by-laws to appoint an independent chair? — Courts should not interfere with corporate governance absent evidence of impropriety — Ontario Business Corporations Act, R.S.O. 1990, c. B.16, ss. 106, 107 | Securities — Proxy battles — Scrutineer communications — Applicants requested that all communications between the scrutineer (TSX Trust) and the Respondent corporation be shared with them — Allegation of unfair advantage in proxy contest — Should the Court order disclosure of scrutineer communications? — No evidence of impropriety warranting interference with corporate by-laws — Ontario Business Corporations Act, R.S.O. 1990, c. B.16
CanLII | Jun 11, 2025
- keywords: Bankruptcy and insolvency — Appointment of receiver — Just or convenient standard — Application under section 243(1) of the Bankruptcy and Insolvency Act and section 101 of the Courts of Justice Act — Receiver appointed to preserve and maximize value for stakeholders — Test for appointing a receiver includes holistic consideration of property, creditor rights, and stakeholder interests — Governing principles from Freure Village and other precedents applied | Business associations — Joint ventures — Real estate joint venture — RioCan-HBC JV — Limited partnership interests — Secured creditors as fulcrum stakeholders — Whether the appointment of a receiver is necessary to manage complex corporate structures and protect stakeholder interests — Court’s discretion to appoint a receiver in joint venture disputes | Property — Secured financing — Receiver’s Borrowings Charge — Authorization for Receiver to borrow up to $20 million to fund operations and preserve assets — Secured creditors’ claims prioritized — Whether borrowing and charges are necessary to stabilize operations and protect secured creditors’ interests — Governing principles for secured financing in receivership | Civil procedure — Receivership costs — Allocation of costs against JV Properties — Mechanism for Priority Secured Lenders to terminate receivership in respect of their collateral — Whether proposed cost allocation and termination provisions are fair and reasonable — Court’s discretion to approve procedural mechanisms in complex receiverships | Lease — Commercial leases — Joint venture lease agreements — HBC disclaiming leases and ceasing rent payments — Impact on JV Entities’ ability to meet secured debt obligations — Whether receivership preserves leasehold interests and mitigates prejudice to landlords — Court’s role in balancing landlord and creditor interests in insolvency proceedings
CanLII | Jun 3, 2025
- keywords: Bankruptcy and insolvency — Asset purchase agreement — Sale of intellectual property — Approval of APA under section 36 of the CCAA — Soundair Principles — Business judgment rule — Whether the sale process was fair, reasonable, and transparent — Court approved the APA as the highest and best offer — Companies' Creditors Arrangement Act, R.S.C. 1985, c. C-36, s. 36 | Contracts — Asset purchase agreement — Intellectual property — Sale of Hudson's Bay trademarks and iconic stripes — Whether the APA with Canadian Tire Corporation should be approved — Court found the APA to be fair and reasonable — Companies' Creditors Arrangement Act, R.S.C. 1985, c. C-36, s. 36 | Civil procedure — Sealing orders — Confidential Appendix to the Fourth Report — Test for discretionary limits on court openness — Whether sealing order was necessary to protect the integrity of the sale process — Court granted sealing order to prevent disclosure of competing bids — Courts of Justice Act, R.S.O. 1990, c. C.43, s. 137(2) | Labour and employment — Wage Earner Protection Program Act — Terminated employees — Declaration under WEPPA to assist employees in accessing benefits — Whether the declaration was appropriate given the termination of most employees — Court issued declaration to minimize hardship for terminated employees — Wage Earner Protection Program Act, S.C. 2005, c. 47, s. 5 | Bankruptcy and insolvency — Termination of stay of proceedings — Receivership — JV Entities — Whether the stay of proceedings and CCAA proceedings for certain entities should be terminated — Court approved termination of stay and appointment of Receiver over JV Entities — Companies' Creditors Arrangement Act, R.S.C. 1985, c. C-36
CanLII | Jun 3, 2025
- keywords: Bankruptcy and insolvency — Authority of Monitor — Bankruptcy application — Monitor’s authority under section 36.1 of the Companies’ Creditors Arrangement Act (CCAA) — Whether further court authorization is required for the Monitor to bring a bankruptcy application — Monitor acting as a judgment creditor — Court authorization granted if necessary — Companies’ Creditors Arrangement Act, R.S.C., 1985, c. C-36, s. 36.1 | Bankruptcy and insolvency — Acts of bankruptcy — Ceasing to meet liabilities — Section 42(1)(j) of the Bankruptcy and Insolvency Act (BIA) — Debtor unable to pay judgment debts — No liquid assets, income, or access to credit — Test for ceasing to meet liabilities generally as they become due — Bankruptcy and Insolvency Act, R.S.C., 1985, c. B-3, s. 42(1)(j) | Bankruptcy and insolvency — Discretion to dismiss application — Section 43(7) of the BIA — Debtor’s claim of future ability to pay debts — Ownership of disputed assets subject to litigation — Future events insufficient to establish solvency — Court declines to exercise discretion to dismiss application — Bankruptcy and Insolvency Act, R.S.C., 1985, c. B-3, s. 43(7) | Bankruptcy and insolvency — Stay of application — Bona fide dispute — Section 43(10) of the BIA — No bona fide dispute between debtor and creditors — Dispute limited to third-party litigation — Credibility issues and uncertain outcome of pending litigation — Stay denied — Bankruptcy and Insolvency Act, R.S.C., 1985, c. B-3, s. 43(10) | Civil procedure — Mareva injunction — Post-judgment Mareva order — Risk of dissipation of assets — Test for continuing Mareva injunction in aid of execution — Debtor’s transfer of assets for nominal consideration — No undertaking as to damages required — Mareva order continued — Bankruptcy and Insolvency Act, R.S.C., 1985, c. B-3 — Tabrizi v. Majesty Development Group Inc., 2022 ONSC 2665
CanLII | Jun 3, 2025
- keywords: Civil procedure — Document production — Privilege claims — Plaintiffs sought production of the Bowen Memo and related documents from the Defendant auditor — Defendant claimed solicitor-client privilege and litigation privilege over the documents — Should the requested documents be produced? — Rule 30 of the Rules of Civil Procedure governs the production of relevant, non-privileged documents | Evidence — Solicitor-client privilege — Plaintiffs sought production of the Bowen Memo and related documents — Defendant claimed solicitor-client privilege, asserting the documents were prepared for legal counsel — Were the documents created for the purpose of seeking or receiving legal advice? — Solicitor-client privilege requires communication with counsel, confidentiality, and the purpose of legal advice | Evidence — Litigation privilege — Plaintiffs sought production of the Bowen Memo and related documents — Defendant claimed litigation privilege, asserting the documents were created in anticipation of litigation — Were the documents created for the dominant purpose of litigation? — Litigation privilege applies where the dominant purpose of a document is reasonably contemplated litigation | Evidence — Document production — Redactions — Plaintiffs argued that even if parts of the Bowen Memo were privileged, non-privileged portions should be produced — Should the documents be produced without redaction? — Non-privileged portions of documents must be disclosed under Rule 30 of the Rules of Civil Procedure
CanLII | May 30, 2025
- keywords: Civil procedure — Document production — Privilege claims — Plaintiffs sought production of documents, including the Bowen Memo and related drafts, from the Defendant auditor — Defendant claimed solicitor-client privilege and litigation privilege over the documents — Should the requested documents be produced? — Rules 30 and 29.2.03 of the Ontario Rules of Civil Procedure governing document production and proportionality | Evidence — Solicitor-client privilege — Communication with counsel — Plaintiffs sought production of the Bowen Memo, alleging it was not privileged — Defendant claimed the memo was prepared for legal counsel and marked "privileged and confidential" — Was the Bowen Memo created for the purpose of seeking or receiving legal advice? — Test for solicitor-client privilege from Descoteaux c. Mierzwinski, [1982] 1 SCR 860 | Evidence — Litigation privilege — Dominant purpose test — Plaintiffs argued the Bowen Memo was not created for litigation purposes — Defendant claimed the memo was prepared due to threats of litigation from Bondfield's CEO — Was the dominant purpose of the Bowen Memo related to reasonably contemplated litigation? — Principles from Blank v. Canada (Minister of Justice), 2006 SCC 39 | Evidence — Document redaction and production — Plaintiffs sought unredacted production of the Bowen Memo and related drafts — Defendant argued portions of the documents were privileged — Should non-privileged portions of the documents be produced without redaction? — Framework for partial production of documents under Ontario Rules of Civil Procedure
CanLII | May 30, 2025
- keywords: Business associations — Oppression remedy — Corporate governance — Injunctive relief — Plaintiffs sought to restrain the defendant from using corporate funds to pay legal fees in an oppression claim — Whether the plaintiffs met the test for injunctive relief under RJR-McDonald — Court dismissed the motion, finding no irreparable harm — Ontario Business Corporations Act, R.S.O. 1990, c. B.16, s. 248 | Civil procedure — Injunctive relief — RJR-McDonald test — Irreparable harm — Plaintiffs argued that the use of corporate funds to pay legal fees created litigation imbalance — Court found no irreparable harm as damages could be compensated monetarily — Injunction denied | Statutory interpretation — Ontario Business Corporations Act — Section 248 — Fairness principles — Plaintiffs sought interim relief under s. 248 based on fairness, arguing that corporate funds should not be used to fund the defendant’s legal fees — Court held that fairness did not override the traditional injunction test — Relief denied | Estates and trusts — Fiduciary duties — Corporate by-laws — Indemnification of legal fees — Plaintiffs challenged the defendant’s reliance on corporate by-laws for indemnification of legal fees, alleging oppressive conduct — Court deferred determination of indemnification rights to trial — No interim relief granted
CanLII | May 30, 2025
- keywords: Civil procedure — Privilege — Litigation privilege — Plaintiffs claimed litigation privilege over 282 documents listed in their Particularized Schedule B — Defendants sought production of documents for court inspection — Did the plaintiffs meet their onus to establish litigation privilege? — Plaintiffs established privilege on a balance of probabilities — Court declined to review documents absent sufficient evidence to displace privilege — Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rr. 30.04(6), 30.06(d) | Estates and trusts — Fiduciary duties — Oppression — Plaintiffs alleged oppressive conduct and breaches of fiduciary duty by estate trustee in managing estate assets — Plaintiffs claimed litigation privilege over communications related to estate investigations — Did the plaintiffs establish litigation privilege over documents related to estate management? — Litigation privilege established for communications from December 16, 2019, onward — Blank v. Canada (Minister of Justice), 2006 SCC 39 applied | Evidence — Privilege — Court inspection of documents — Defendants sought court inspection of privileged documents to challenge privilege claims — Should the court order production of documents for inspection? — Court declined to inspect over 280 documents absent evidence raising doubt about privilege claims — Rule 30.06 requires evidence, not speculation, to justify inspection — Alberta (Information and Privacy Commissioner) v. University of Calgary, 2016 SCC 53 applied
CanLII | May 30, 2025
- keywords: Business associations — Shareholders' rights — Shareholders' Agreement — Plaintiff sought financial documents from defendants under a Shareholders' Agreement — Defendants argued plaintiff was a beneficial shareholder and a "Defaulting Shareholder" — Does the Shareholders' Agreement entitle the plaintiff to the requested documents? — Shareholders' Agreement terms govern access to financial documents, and no implied limitation on rights for "Defaulting Shareholders" was found | Access to information — Financial records — Shareholders' rights — Plaintiff sought production of financial documents to understand the handling of his investment — Defendants did not dispute the relevance or proportionality of the documents — Is the plaintiff entitled to the production of financial documents? — Rules of Civil Procedure, r. 30.04(5), govern the production of relevant, non-privileged documents | Estates and trusts — Trust beneficiaries — Access to records — Plaintiff claimed entitlement to financial documents as a trust beneficiary — Defendants argued plaintiff lacked standing — Does a trust beneficiary have a proprietary right to access financial records? — Beneficiaries are entitled to records necessary to understand the handling of their investment | Civil procedure — Equitable relief — Clean hands doctrine — Defendants alleged plaintiff acted in bad faith and lacked clean hands — No evidence of improper purpose or bad faith was provided — Should the plaintiff be denied equitable relief for lack of clean hands? — Clean hands doctrine requires evidence of improper conduct; no such evidence was found | Civil procedure — Limitations Act — Statutory bar — Defendants argued plaintiff's request for documents was statute-barred under the Limitations Act, 2002 — Plaintiff contended he was unaware of any loss until payments ceased in 2024 — Is the plaintiff's request for documentation barred by the Limitations Act? — Limitation periods begin when the plaintiff knows or ought to know of the loss; no such knowledge was established
CanLII | May 29, 2025
- keywords: Business associations — Corporate governance — Directors' rights — Access to corporate records — Director sought access to books and records under section 144 of the OBCA — Whether a director has an unconditional right to inspect corporate records — Case law supports broad interpretation of "adequate accounting records" — Section 144 of the OBCA governs directors' rights to access corporate records | Access to information — Corporate records — Personal information — Whether PIPEDA prevents disclosure of Loan Agreements containing personal information to a director — PIPEDA does not impose an absolute prohibition on disclosure to directors — Disclosure required by law under section 144 of the OBCA — PIPEDA provisions interpreted as recommendations, not mandatory obligations | Access to information — Corporate governance — Improper purpose — Whether a director's request for access to corporate records can be denied for improper purpose — Allegations of improper purpose unsupported by evidence — Directors do not need to provide reasons for inspection under section 144 of the OBCA — Request for access found to be bona fide | Access to information — Timelines for compliance — Whether 60 days or 5 days is appropriate for providing access to corporate records — Court determined no additional time required as no new records needed to be created — Access to be provided within 5 days | Civil procedure — Costs — Fixing costs — Substantial indemnity basis — Whether costs should be awarded on a substantial indemnity basis — Court found no conduct warranting higher scale of costs — Costs fixed at $30,000 on a partial indemnity basis — Factors under Rule 57.01 considered
CanLII | May 29, 2025
- keywords: Statutory interpretation — Bank Act — Retail deposit accounts — Termination of banking relationship — Applicant sought reinstatement of retail deposit account under section 627.17 of the Bank Act — Does section 627.17 require a bank to maintain an account after opening, or does it only govern the initial opening? — Statutory interpretation principles applied — No legislative intent to alter common law right of banks to terminate accounts with reasonable notice | Statutory interpretation — Damages — Applicant sought damages for account closure under the Bank Act — Whether damages could be awarded for alleged breach of section 627.17 — Court found no breach of statutory obligation — Damages claim dismissed | Evidence — Norwich Order — Extraordinary relief — Applicant sought disclosure of information leading to account termination — Test for Norwich Orders applied — Bona fide claim required — Applicant failed to establish evidence of a wrongdoer — Request for Norwich Order dismissed
CanLII | May 26, 2025
- keywords: Civil procedure — Mareva injunction — Continuation of injunction — Plaintiff sought continuation of Mareva injunction against defendants — Defendants opposed continuation, arguing high threshold for extraordinary relief not met — Should the Mareva injunction be continued? — Test for Mareva injunction includes strong prima facie case, risk of dissipation, and irreparable harm — Injunction continued as criteria satisfied | Torts — Fraudulent misrepresentation — Prima facie case — Plaintiff alleged fraudulent misrepresentation by defendants in investment scheme — Defendants argued plaintiff accepted high-risk investment and failed due diligence — Has the plaintiff established a strong prima facie case of fraud? — Fraudulent misrepresentation established where false representation, knowledge, reliance, and loss proven | Contracts — Entire agreement clause — Fraudulent misrepresentation — Defendants argued entire agreement clause precluded reliance on representations outside contract — Can an entire agreement clause bar claims of fraudulent misrepresentation? — Entire agreement clauses do not preclude remedies for fraudulent misrepresentation | Evidence — Risk of dissipation — Bank records and asset disclosure — Plaintiff presented evidence of defendants' financial conduct, including asset dissipation and misrepresentation — Defendants argued no risk of dissipation — Is there a risk of dissipation of assets justifying the injunction? — Risk of dissipation inferred from evidence of fraudulent conduct and asset transfers
CanLII | May 23, 2025
- keywords: Bankruptcy and insolvency — Receivership — Appointment of receiver — Ontario Securities Commission sought appointment of receiver under section 129 of the Securities Act — Allegations of misuse of investor funds and diversion of equity among projects — Whether receivership is in the best interests of creditors and stakeholders — Broad discretion of courts under section 129 — Criteria for appointing a receiver — Ontario Securities Act, R.S.O. 1990, c. S.5, s. 129 | Securities — Investor protection — Misuse of funds — Ontario Securities Commission investigation into alleged diversion of investor equity for undisclosed purposes — Marketing materials and limited partnership agreements indicated single-purpose investments — Whether investor funds were improperly diverted among projects — Governing principles for appointing a receiver under section 129 of the Securities Act | Evidence — Evidentiary standard — Section 129 application — Whether the Ontario Securities Commission must establish a strong prima facie case or meet a lower threshold — Standard of “serious concerns” sufficient for interim protective measures — Comparison to evidentiary standards in other sections of the Securities Act — Ontario Securities Act, R.S.O. 1990, c. S.5, s. 129 | Civil procedure — Admissibility of evidence — Hearsay — Transcripts of investor interviews conducted by the Ontario Securities Commission — Whether transcripts are admissible for the truth of their contents — Non-hearsay purposes, including impeachment of witnesses — Restrictions under sections 16 and 17 of the Securities Act on disclosure of investigation materials — Ontario Securities Act, R.S.O. 1990, c. S.5, ss. 16, 17 | Property — Scope of receivership — Creditor rights — Whether certain properties should be excluded from the receivership order — Arguments by secured creditors for exclusion of specific properties — Risks of fragmented enforcement and lack of central oversight — Court’s discretion to include all properties to ensure coordinated administration — Ontario Securities Act, R.S.O. 1990, c. S.5, s. 129
CanLII | May 23, 2025
- keywords: Bankruptcy and insolvency — Corporate restructuring — Plan of arrangement — Liquidity challenges — Approval of arrangement under section 192 of the CBCA — Whether the arrangement satisfies statutory and court-mandated requirements, is proposed in good faith, and is fair and reasonable — Test for approval of arrangements under BCE Inc., Re and Concordia International Corp. (Re) — Arrangement approved as necessary to avoid insolvency and maximize stakeholder value | Business associations — Oppression remedy — Section 241 of the CBCA — Complainant’s reasonable expectations — Whether the company acted oppressively, unfairly prejudicially, or unfairly disregarded the complainant’s interests — Serial voting rights under the Existing Indenture — Use of CBCA arrangement provisions to override contractual terms — Oppression application dismissed as complainant’s expectations were not reasonable in the circumstances | Civil procedure — No action clause — Indenture provisions — Whether the "no action" clause in the Existing Indenture bars the complainant from bringing an oppression application — Interpretation of contractual clauses in the context of CBCA arrangements — Oppression application barred by the "no action" clause as claims were not for the equal and rateable benefit of all noteholders | Contracts — Breach of contract — Civil conspiracy — Whether the company breached the Existing Indenture or engaged in civil conspiracy with certain noteholders — Claims of breach of contract and civil conspiracy dismissed — Arrangement approved under section 192 of the CBCA overrides contractual non-compliance — No evidence of unlawful means to support civil conspiracy | Business associations — Releases and waiver provisions — Final order under section 192 of the CBCA — Scope of releases and waiver of defaults — Whether releases and waiver provisions are appropriate and necessary to prevent collateral attacks on the arrangement — Releases approved as essential to the restructuring and consistent with prior CBCA cases
CanLII | May 21, 2025
- keywords: Bankruptcy and insolvency — Receivership — Appointment of representative counsel — Investors in syndicated mortgages brokered by a regulated mortgage brokerage — Receiver appointed to administer the debtor’s estate — Should representative counsel be appointed to represent investors in the receivership proceedings? — Jurisdiction to appoint representative counsel under Rules of Civil Procedure and Courts of Justice Act — Factors considered in appointing representative counsel in insolvency proceedings | Securities — Syndicated mortgages — Investor protection — Allegations of wrongdoing by mortgage brokerage, including misappropriation of funds and irregularities in mortgage registration — Should representative counsel be appointed to protect the interests of investors in syndicated mortgages? — Court’s discretion to appoint representative counsel to avoid inefficiency and multiplicity of legal retainers | Professional responsibility — Competing applications for representative counsel — Two law firms proposed to represent investors in receivership proceedings — Which firm should be appointed as representative counsel? — Factors considered include experience, proposed approach, fee structure, and potential conflicts — Preference for firm offering upfront transparency and cost certainty | Civil procedure — Terms of court orders — Opt-out process for investors in representative counsel appointment — Are the terms of the order appointing representative counsel appropriate? — Court amends draft order to clarify opt-out timeline and ensure diverse representation on the investor committee — Representative counsel’s fees subject to court approval
CanLII | May 20, 2025
- keywords: Civil procedure — Summary judgment — Limitations Act, 2002 — Defendants moved for summary judgment to dismiss claims as statute-barred and lacking genuine issues for trial — Whether the claims against the defendant lawyer and corporation should proceed to trial — Test for summary judgment under Rule 20 of the Rules of Civil Procedure — Hryniak v. Mauldin framework applied | Evidence — Discoverability — Limitations Act, 2002 — Plaintiffs alleged breaches of fiduciary duty, negligence, and unjust enrichment — Whether plaintiffs had actual or constructive knowledge of material facts to trigger the limitation period — Grant Thornton LLP v. New Brunswick standard for plausible inference of liability applied | Obligations — Unjust enrichment — Payments to Heel Strike Corporation — Plaintiffs alleged unjust enrichment from mortgage advances — Defendants argued payments were loan repayments supported by evidence — Whether there was a genuine issue requiring a trial — Summary judgment granted for Heel Strike Corporation | Professional responsibility — Duty of care — Negligence — Plaintiffs alleged defendant lawyer owed duties to non-client Premiere Self Storage Inc. — Whether a duty of care existed for losses related to business interests and assets — No evidence of a solicitor-client relationship or duty to non-client — Summary judgment granted for the defendant lawyer
CanLII | May 16, 2025
- keywords: Evidence — Expert evidence — Admissibility — Mohan and White Burgess threshold — Whether the witness is properly qualified to opine on Canadian and U.S. GAAP and GAAS — Similarity of Canadian and U.S. standards accepted on current record — Gatekeeping and necessity considered — Remote but applicable audit experience sufficient — Expert permitted to testify — Reports not struck | Evidence — Expert evidence — Independence and impartiality — White Burgess duties of fairness, objectivity and non‑partisanship — Whether alleged advocacy warrants exclusion — Reports echoing pleadings and selective references probed on cross‑examination — Risks weighed against benefits — Threshold met despite concerns — Admissibility challenge rejected | Evidence — Expert evidence — Foundation and authorship — Collective opinion and reliance on non‑testifying contributors — Whether unidentified input renders reports inadmissible — Ability to cross‑examine proposed expert on sources and Canadian standards — Gatekeeper role exercised with caution — Concerns go to weight not admissibility — Reports admitted | Procedure — Trial management — Case‑splitting — Whether the reply report repeats arguments or adds opinions that should have been in the main report — Expert reports marked as exhibits by agreement subject to examination — Objections to be addressed as they arise at trial — Case‑splitting issue reserved — Determination deferred
CanLII | May 15, 2025
- keywords: Bankruptcy and insolvency — Stay of proceedings — Companies' Creditors Arrangement Act — Applicants sought an extension of the stay of proceedings to complete liquidation, lease monetization, and restructuring processes — Whether the stay extension was appropriate under section 11.02 of the CCAA — Court satisfied that Applicants acted in good faith and had sufficient liquidity — Stay extension granted to July 31, 2025 | Lease — Post-filing rent obligations — Landlord objections — Oxford Properties did not oppose the stay extension provided post-filing rent was paid — Whether the stay should apply to Non-Applicant Stay Parties — Court held that landlords could bring motions to lift the stay if rent was unpaid — Stay extended with conditions | Statutory interpretation — Distributions during CCAA proceedings — Applicants sought authorization to distribute funds to ABL and FILO Agents — Whether section 11 of the CCAA permits interim distributions outside a plan of arrangement — Court held that distributions were appropriate to minimize interest expenses and were supported by the Monitor — Distributions approved | Bankruptcy and insolvency — Creditor objections — Neiman Marcus Transaction — RioCan opposed distributions, citing insufficient analysis of prior transactions — Whether concerns about the Neiman Marcus Transaction justified delaying distributions — Court found no basis to delay distributions, as FILO Lenders provided new capital — Distributions approved without reservation of rights
CanLII | May 14, 2025
- keywords: Business associations — Shareholder disputes — Oppression remedy — Unanimous Shareholders Agreement (USA) — Plaintiff alleged oral agreement for equal division of shares in Bolt Technologies Incorporated — USA contained entire agreement and paramountcy clauses precluding reliance on prior representations — Did the USA foreclose the plaintiff’s claim for additional shares? — USA provisions upheld as binding and enforceable, precluding claims based on alleged oral agreements or representations | Contracts — Oral agreements — Shareholder expectations — Plaintiff alleged enforceable oral understanding to share equity equally — Defendant denied such agreement, relying on USA provisions — Was there an enforceable oral agreement or representation? — No enforceable oral agreement found; USA superseded any alleged prior understanding | Evidence — Credibility — Fabrication of evidence — Plaintiff produced a fabricated document purporting to confirm an oral agreement — Forensic evidence established forgery of defendant’s signature — Did the plaintiff’s conduct undermine his credibility and disentitle him to equitable relief? — Plaintiff’s fabrication of evidence and inconsistent testimony rendered his claims unreliable and barred equitable remedies under the clean hands doctrine | Obligations — Fiduciary duties — Misappropriation of confidential information — Plaintiff downloaded over 14,000 proprietary documents and engaged in competitive activities — Breach of fiduciary and contractual obligations under employment and shareholder agreements — Did the plaintiff’s actions constitute breaches of duty? — Plaintiff breached fiduciary and contractual duties; disgorgement of profits and punitive damages awarded | Torts — Punitive damages — Misconduct in litigation — Plaintiff fabricated evidence, breached fiduciary duties, and withheld material information — Are punitive damages warranted to deter and denounce such conduct? — Punitive damages of $100,000 awarded to reflect the court’s condemnation of the plaintiff’s misconduct and to deter similar behaviour
CanLII | May 7, 2025
- keywords: Bankruptcy and insolvency — Receivership — Disclaimer of agreements — Court-appointed Receiver seeking to disclaim pre-sale agreements, including agreements of purchase and sale, to maximize recovery for creditors — Does the Receiver have the authority to disclaim such agreements? — Test for disclaimer includes legal priorities, enhancement of asset value, and equitable considerations — Receiver authorized to disclaim agreements to maximize recovery for secured creditors | Property — Constructive trust — Equitable interest — Purchaser claiming equitable interest in property under a pre-sale agreement — Whether purchaser has a beneficial interest when the purchase price is not fully paid — Constructive trust requires full performance of contractual obligations — Purchaser not entitled to equitable interest or priority over secured creditors | Contracts — Entire agreement clause — Supplementary agreements — Whether a supplementary agreement or "as is, where is" agreement overrides a subsequent agreement of purchase and sale containing an entire agreement clause — Entire agreement clause precludes reliance on prior agreements — Supplementary agreement unenforceable due to termination by subsequent agreement | Sale — Purchase price adjustments — Upgrades and extras — Whether payments for upgrades and extras should be credited against the purchase price under a pre-sale agreement — Invoice for upgrades and extras found to be separate from the purchase price — Payments for upgrades not credited against balance owing | Bankruptcy and insolvency — Equities in receivership — Priority of secured creditors — Whether equities support a preference for a purchaser over secured creditors in a receivership proceeding — Purchaser’s claim based on undisclosed agreements and partial payments — Equities favour secured creditors and adherence to priority scheme in insolvency
CanLII | May 6, 2025
- keywords: Bankruptcy and insolvency — Receivership — Appointment of receiver — Public interest — Respondents consented to the appointment of B. Riley Farber Inc. as Receiver — Allegations of mismanagement, misappropriation of funds, and irregularities in mortgage administration — Should the Court appoint a receiver under the Mortgage Brokerages, Lenders and Administrators Act, 2006 and the Courts of Justice Act? — Test for appointing a receiver under s. 37 of the MBLAA and s. 101 of the CJA applied | Civil procedure — Mareva injunction — Freezing of assets — Consent of defendant — Mareva injunction sought against Mr. Sussman to prevent dissipation of assets — Defendant consented to the order — Should the Court grant a Mareva injunction, and under what terms? — Test for Mareva injunction from Sibley & Associates LP v. Ross applied | Estates and trusts — Trust property — Receivership charges — Extension of Receiver's Charge over trust assets — Receiver required to manage and preserve trust assets for the benefit of stakeholders — Should the Court extend the Receiver's Charge to trust assets held by the Respondents? — Discretion to extend receivership charges over trust property exercised sparingly per Ontario (Securities Commission) v. Consortium Construction Inc
CanLII | May 2, 2025
- keywords: Bankruptcy and insolvency — Receivership — Appointment of receiver — Terms of receivership order — Respondents consented to the appointment of B. Riley Farber Inc. as Receiver — Should the Receiver be appointed, and are the terms of the order appropriate? — Public interest and just or convenient standard under s. 37 of the MBLAA and s. 101 of the CJA — Court satisfied that receivership is necessary to protect stakeholders and investigate irregularities | Securities — Syndicated mortgages — Mismanagement and investor complaints — SMFI regulated under the MBLAA — Allegations of misappropriation, irregularities in mortgage registration, and investor funds misdirected — Should a court-supervised receivership process be implemented to address investor concerns? — Protection of public interest under the MBLAA and CJA | Civil procedure — Representative counsel — Motion to appoint representative counsel for SMFI investors — Short notice of motion service raised procedural concerns — Should the motion be granted, and what procedural safeguards apply? — Hearing adjourned to allow for proper notice and submissions — Urgency balanced with procedural fairness
CanLII | May 2, 2025
- keywords: Bankruptcy and insolvency — Companies' Creditors Arrangement Act (CCAA) — Appointment of Representative Counsel — Sale and Investment Solicitation Process (SISP) — Art Collection — Independent third-party evaluation — Should Representative Counsel be appointed to represent employees and retirees? — Should the Art Collection be removed from the SISP? — Broad discretion of the court under section 11 of the CCAA to balance stakeholder interests | Labour and employment — Representative Counsel — Employees and retirees — Vulnerable stakeholders — Pension and benefit entitlements — Should Representative Counsel be appointed to represent non-unionized employees and retirees? — Factors from CanWest Publishing Inc. (Re) and Nortel Networks Corporation (Re) applied — Holistic analysis of stakeholder vulnerability and efficiency in CCAA proceedings | Property — Art Collection — Cultural and historical significance — Royal Charter of 1670 — Auction process — Should the Art Collection be removed from the SISP and auctioned separately? — Compliance with Canadian heritage and cultural property laws — Engagement of Heffel Gallery Limited as auctioneer — Transparent and fair process for disposition of artifacts | Civil procedure — Appointment of Representative Counsel — Independent third-party evaluation — Process for selecting counsel — Should an independent third party evaluate proposals for Representative Counsel? — Appointment of Hon. Herman Wilton-Siegel to ensure fairness and independence — Rule 10.01 of the Rules of Civil Procedure and section 11 of the CCAA applied | Indigenous peoples — Cultural artifacts — First Nations interests — Assembly of Manitoba Chiefs — Stakeholder engagement — What considerations should govern the disposition of culturally significant artifacts? — Compliance with Canadian Cultural Property Export Control List — Balancing cultural, spiritual, and historical significance with other stakeholder rights
CanLII | May 1, 2025
- keywords: Bankruptcy and insolvency — Recognition of foreign orders — Companies' Creditors Arrangement Act (CCAA) — Confirmation Recognition and Termination Order — Recognition of US Confirmation Order and Plan — Should the Court recognize and enforce the US Confirmation Order and Plan in Canada? — Court satisfied that the Plan is fair, reasonable, and consistent with the CCAA — Broad discretion under section 49(1) of the CCAA to protect debtor property and creditor interests | Bankruptcy and insolvency — Creditor treatment — Third-party releases — Public policy — Plan provisions — Does the Plan comply with Canadian public policy and the principles of the CCAA? — Plan includes third-party releases, creditor treatment, and restructuring transactions — Court finds Plan consistent with CCAA principles and not contrary to public policy — Canadian courts recognize Chapter 11 plans with similar provisions | Bankruptcy and insolvency — Fees and disbursements — Information Officer — Approval of fees — Should the fees and disbursements of the Information Officer and its counsel be approved? — Fees assessed for reasonableness and value provided — Court satisfied fees are consistent with market rates and accretive to the progress of the proceedings — Approval granted under principles from Laurentian University and Re Nortel | International law — Comity — Recognition of foreign proceedings — Jurisdiction — Does the Court have jurisdiction to recognize the US Confirmation Order and approve the Plan? — Recognition consistent with principles of comity and legislative objectives of the CCAA — Court recognizes Chapter 11 as a foreign main proceeding under section 47 of the CCAA — Jurisdiction to grant relief under section 49(1) of the CCAA
CanLII | Apr 30, 2025
- keywords: Bankruptcy and insolvency — Receivership — Discharge of Receiver — Approval of fees and activities — Receiver sought discharge and approval of its fees and activities — Should the Receiver be discharged, and its fees and activities approved? — Discharge appropriate where Receivership transitions to CCAA proceedings — Fees and activities consistent with Appointment Order and market rates — Bank of Nova Scotia v. Diemer applied | Bankruptcy and insolvency — CCAA Initial Order — Appointment of Monitor and CRO — Insolvent companies sought CCAA protection and appointment of Monitor and CRO — Should the CCAA Initial Order be granted? — Relief appropriate where companies are insolvent and restructuring necessary — Monitor and CRO qualified and supported by stakeholders — Section 11 of the CCAA applied | Construction — Transaction approval — Court-approved sales process — Approval of Transaction with Tridel Builders Inc. for Project completion — Should the Transaction be approved? — Transaction maximizes value and ensures Project completion — Soundair Principles and Nortel factors applied | Civil procedure — Adjournment — Request for adjournment of motions — Château Yorkville Corp. sought adjournment to submit alternative proposal — Should the adjournment request be granted? — Adjournment denied to preserve integrity of sales process and avoid prejudice to stakeholders — Timelines and fairness considerations emphasized | Construction — Reconfiguration Plan — Changes to unit structure — Approval of Tridel Reconfiguration Plan reducing total units — Should the Reconfiguration Plan be approved? — Plan optimizes unit value and balances sales velocity — Minimal impact on schedule or municipal approvals — Section 11 of the CCAA applied | Bankruptcy and insolvency — Interim financing — DIP Credit Agreement and DIP Lenders' Charge — Approval of $615 million DIP financing for Project completion — Should the DIP Credit Agreement and Charge be approved? — Financing necessary to complete Project and supported by stakeholders — Section 11.2(4) of the CCAA applied | Bankruptcy and insolvency — Sealing order — Confidential sales process materials — Request for sealing order for commercially sensitive information — Should a sealing order be granted? — Sealing order appropriate to protect realization efforts and prevent prejudice — Sierra Club and Sherman Estate factors applied
CanLII | Apr 30, 2025
- keywords: Bankruptcy and insolvency — Recognition of foreign orders — Lease termination — Canadian Debtors subject to Chapter 11 proceedings in the U.S. Bankruptcy Court — Motion for recognition and enforcement of the Reimer Lease Termination Approval Order under the Companies' Creditors Arrangement Act (CCAA) — Whether the court should grant the Eighth Supplemental Order — Governing principles for recognition of foreign insolvency orders under subsection 49(1) of the CCAA | Statutory interpretation — Companies' Creditors Arrangement Act — Recognition of foreign orders — Subsection 49(1) of the CCAA — Whether the Reimer Lease Termination Approval Order meets the statutory requirements for recognition and enforcement in Canada — Interpretation of statutory provisions restricting the disposition of Canadian Debtors' property — Application of the CCAA to cross-border insolvency proceedings | Lease — Termination of leases — Transfer of property — Canadian Debtors party to real property leases in Alberta, Saskatchewan, and Manitoba — Lease Termination Agreement providing for termination of leases, surrender of premises, and transfer of assets — Whether the court should authorize the transfer of property and assignment of subleases notwithstanding restrictions in the Initial Recognition Order — Framework for court approval of lease-related transactions in insolvency proceedings | Contracts — Fairness and reasonableness of agreements — Lease Termination Agreement negotiated in good faith and at arm's length — Termination fee less than potential administrative expense claims and repair costs — Whether the Lease Termination Agreement is fair, reasonable, and in the best interests of the Canadian Debtors and their stakeholders — Principles governing court approval of agreements in insolvency contexts
CanLII | Apr 30, 2025
- keywords: Bankruptcy and insolvency — Companies' Creditors Arrangement Act (CCAA) — Real estate broker's entitlement to commission — Monitor's role in land restructuring — Disputes over commission claims in equity transactions — Whether commission claims can be resolved in the context of ongoing CCAA proceedings — Framework for resolving disputes in complex insolvency contexts | Contracts — Real estate brokerage agreements — AMSA and Listing Agreements — Whether AMSA provides for commission on equity transactions — Interpretation of "transaction" and "sale" under AMSA — Expiry of Listing Agreements and its impact on commission claims — Governing principles of contract interpretation in commercial contexts | Contracts — Holdover provisions — MSA holdover clause — Whether negotiations with Stelco during MSA term entitle broker to commission — Requirements for holdover provisions to apply — Evidence of ongoing negotiations or prospects under MSA — Application of holdover clauses in real estate brokerage contracts | Obligations — Unjust enrichment — Quantum meruit — Real estate broker's claim for commission in absence of contractual entitlement — Whether services provided enriched the client — Corresponding deprivation and juristic reason — Application of equitable principles in commercial disputes
CanLII | Apr 29, 2025
- keywords: Bankruptcy and insolvency — Appointment of receiver — Just or convenient standard — Applicant sought appointment of receiver under s. 101 of the Courts of Justice Act and s. 243 of the Bankruptcy and Insolvency Act — Whether appointment of a receiver was just or convenient in light of the circumstances — Test for appointing a receiver includes consideration of all relevant factors — Application dismissed as appointment was not just or convenient | Civil procedure — Receivership applications — Just or convenient standard — Applicant sought to enforce security agreements through appointment of a receiver — Whether the court should exercise its discretion to appoint a receiver — Court must consider the rights of all parties and balance potential prejudice — Appointment denied due to unresolved issues regarding the underlying debt | Contracts — Guarantees — Defenses to enforcement — Respondents alleged breach of duty of good faith by creditor in connection with amendments to APS — Whether bona fide defense to Guarantee precluded appointment of receiver — Breach of duty of good faith cannot be contracted out of — Existence of bona fide defense weighed against granting receivership order | Obligations — Duty of good faith — Creditor conduct — Creditor failed to oppose amendments to APS that reduced its recovery and shifted value to related party — Whether creditor’s conduct precluded appointment of receiver — Creditor’s inequitable conduct weighed against granting extraordinary remedy of receivership
CanLII | Apr 28, 2025
- keywords: Civil procedure — Leave to amend pleadings — Counterclaims — Rule 27.07(2) of the Rules of Civil Procedure — Counterclaim Plaintiffs sought leave to issue a counterclaim alleging abuse of process, conspiracy, and joint and several liability — Whether leave should be granted to amend pleadings — Court must assess prejudice, limitation periods, and tenability of claims — Leave denied due to non-compensable prejudice and untenable claims. | Torts — Abuse of process — Unlawful means conspiracy — Counterclaim Plaintiffs alleged abuse of process and conspiracy by Counterclaim Defendants, including malicious litigation and extrajudicial actions — Whether claims were statute-barred under the Limitations Act, 2002 — Ontario law applied, and claims were found to be statute-barred — No special circumstances rebutting presumption of prejudice. | Evidence — Proof of foreign law — Saudi law — Counterclaim Plaintiffs argued Saudi law applied to claims of abuse of process and conspiracy — No admissible evidence of Saudi law tendered — In absence of proof, Saudi law deemed same as Ontario law — Claims statute-barred under Ontario law. | International law — Jurisdiction — State immunity — Counterclaim sought to add Saudi officials and entities as defendants — Potential jurisdictional challenges, including state immunity, noted — Procedural complexity and delay in adding foreign parties considered in assessing prejudice — Leave to amend denied.
CanLII | Apr 25, 2025
- keywords: Civil procedure — Commission and letters of request — Foreign witnesses — Motion for leave to issue commission and letters of request to take evidence from witnesses outside Ontario — Whether the court should grant leave to facilitate a fair and full trial — Rule 34.07 of the Rules of Civil Procedure — Judicial discretion to ensure fairness in trial proceedings | Evidence — Materiality of evidence — Bona fide requests — Anticipated evidence of witnesses residing outside Ontario — Whether the evidence is material to relevant issues in the action — Test for granting commission and letters of request — Moore v. Bertuzzi, 2014 ONSC 1318 — Fair trial considerations | International law — Foreign courts — Enforcement of letters of request — Involvement of foreign judicial authorities in obtaining evidence — Whether the enforcement of letters of request affects trial fairness and efficiency — Procedural challenges in international evidence gathering | Constitution — Abuse of process — Political persecution — Allegations of abuse of process by a foreign state actor — Whether political persecution by a foreign state actor is a relevant defence in a civil fraud action — Relevance of abuse of process to the legitimacy of the action
CanLII | Apr 25, 2025
- keywords: Contracts — Dispute resolution — Earn-out provisions — Purchase and Sale Agreement (PSA) — Dispute over inclusion of limited partnership units in earn-out calculation — Should the dispute be referred to an independent accountant under the PSA? — Court held that the PSA's dispute resolution clause mandates referral of unresolved disputed items to an independent accountant, including disputes involving contractual interpretation | Sale — Earn-out entitlements — Development Payment Earn-Out Amounts — Triggering events under PSA — Dispute over whether limited partnership units constitute a "Development Payment" — Does the transaction trigger an earn-out payment? — Court found that the PSA's language and commercial context support referral of the dispute to an independent accountant | Obligations — Contractual interpretation — Parties' obligations under PSA — Dispute over whether respondents structured transactions to avoid earn-out payments — Does the PSA prohibit actions that reduce earn-out payments? — Court emphasized the importance of interpreting contracts to avoid commercial absurdity and ensure sound business principles | Statutory interpretation — Commercial agreements — Dispute resolution mechanisms — Interpretation of PSA provisions regarding independent accountant's jurisdiction — Should unresolved disputes involving contractual interpretation be referred to an accountant? — Court held that the PSA's language and intent support referral of all unresolved disputed items to an independent accountant
CanLII | Apr 25, 2025
- keywords: Construction — Commercial arbitration — Interpretation of project agreements — Appeal of arbitration award under Arbitration Act, 1991 — Four disputes arising from a public-private partnership (P3) project for highway construction and maintenance — Did the Tribunal err in interpreting the Project Agreement in relation to crossfall remediation, utility relocation, leased land consents, and defect rectification? — Principles of contractual interpretation applied to construction disputes | Contracts — Contractual interpretation — Public-private partnership (P3) agreements — Tribunal’s interpretation of Project Agreement challenged on appeal — Whether Tribunal failed to consider the Project Agreement as a whole — Whether Tribunal misapplied principles of contractual interpretation in four disputes — Standard of review for extricable questions of law in commercial arbitration appeals — Correctness standard applied to legal errors | Civil procedure — Standard of review — Commercial arbitration appeals — Whether the standard of review for extricable questions of law in commercial arbitration appeals is correctness or reasonableness — Application of Vavilov principles to statutory appeals under Arbitration Act, 1991 — Correctness standard applied to questions of law in contractual interpretation | Contracts — Crossfall remediation — Minor Deficiencies — Tribunal found crossfall remediation was outside the scope of the Project Agreement and constituted a Variation — Whether Tribunal erred in classifying crossfall issues as Minor Deficiencies — Tribunal’s findings on safety, drainage, and construction tolerances upheld — No extricable error of law identified | Contracts — Utility relocation and leased land consents — Zenway Boulevard and 407 ETR disputes — Tribunal found Contracting Authority responsible for securing rights to relocate utilities and obtaining consents for leased lands — Whether Tribunal erred in interpreting s. 14.1 and related provisions of the Project Agreement — Tribunal’s interpretation of risk allocation and access rights upheld
CanLII | Apr 17, 2025
- keywords: Bankruptcy and insolvency — Receivership — Discharge of Receiver — Approval of activities, fees, and statement of receipts and disbursements — Receiver sought discharge and approval of its activities and fees — Should the Receiver be discharged and its activities approved? — Court adjourned the motion to allow for a complete record and further submissions on the value of actions to the estate | Statutory interpretation — Receivership Order — Impact on pending actions — Applicant sought clarity on whether the Receiver's discharge would affect its ability to pursue two guarantee actions in Ontario — Does the discharge of the Receiver affect the Applicant's pending actions? — Court held that the discharge would not affect the Applicant's ability to pursue the actions | Bankruptcy and insolvency — Receivership — Unauthorized actions by debtor — CBJ commenced Alberta and Ontario actions without Receiver's consent or Court leave — Should the Court grant leave nunc pro tunc to CBJ to continue the Alberta action or discharge the Receiver to allow CBJ to carry on the action? — Court declined to grant leave or impose terms on the discharge | Business associations — Corporate authority — Breach of Receivership Order — CBJ commenced actions in breach of Receivership Order — Did CBJ's actions violate the Receivership Order, and what are the consequences? — Court emphasized the importance of compliance with Court orders and declined to regularize CBJ's unauthorized actions | Civil procedure — Adjournment of motion — Incomplete record — Receiver suggested adjournment to allow for further submissions on the value of actions to the estate — Should the motion for discharge of the Receiver be adjourned? — Court adjourned the motion to ensure a full and complete record
CanLII | Apr 14, 2025
- keywords: Bankruptcy and insolvency — Companies' Creditors Arrangement Act — Sale approval — Monitor sought approval of Secondary Credit Bid APAs under section 36 of the CCAA — Whether the transactions satisfied section 36(3) factors and Soundair Principles — Court held that the transactions were fair, reasonable, and beneficial to creditors — Section 36(5) not engaged as no purchasers were related to the Applicants — Relief granted under section 36 of the CCAA | Lease — Assignment of tenant leases — Monitor sought approval for assignment of leases under section 11.3 of the CCAA — Whether the factors under sections 11.3(3) and (4) were satisfied — Court found lease assignments appropriate given expedited timelines and lack of tenant restrictions on assignment — Relief granted under section 11.3 of the CCAA | Bankruptcy and insolvency — DIP financing — Allocation of costs — Monitor sought approval of Second DIP Allocation and Orderly Liquidation Mechanics — Whether allocation methodology and liquidation process were equitable and efficient — Court approved allocation consistent with prior orders and market practices — Nortel factors and section 36(3) criteria considered — Relief granted under sections 11 and 36 of the CCAA | Bankruptcy and insolvency — Stay of proceedings — Extension of stay — Monitor sought extension of stay to August 31, 2025, under section 11.02(2) of the CCAA — Whether extension was necessary and appropriate — Court found extension justified to complete transactions and liquidation process — No material prejudice to creditors — Relief granted under section 11.02(2) of the CCAA | Bankruptcy and insolvency — Monitor’s activities and fees — Approval of 12th Report — Monitor sought approval of its activities and fees for February 1 to March 31, 2025 — Whether fees and activities were reasonable and consistent with the Monitor’s mandate — Court approved fees and activities as reasonable and accretive to value maximization — Standard of reasonableness applied — Relief granted
CanLII | Apr 14, 2025
- keywords: Business associations — Corporate restructuring — Plan of arrangement — Section 192 of the Canada Business Corporations Act (CBCA) — Amalgamation and debt restructuring — Does the proposed arrangement meet the statutory requirements, including solvency, good faith, and impracticability of proceeding under other CBCA provisions? — Statutory prerequisites for approval of corporate arrangements under section 192 of the CBCA | Securities — Fairness of arrangement — Stakeholder interests — Voting results — Fairness opinion — Does the proposed plan of arrangement under section 192 of the CBCA meet the fairness and reasonableness test? — Factors for assessing fairness and reasonableness of corporate arrangements, including stakeholder approval and fairness opinions | Business associations — Releases — Scope of releases — Released Parties — Are the proposed releases in favour of the Released Parties appropriate under section 192(4) of the CBCA? — Judicial discretion to approve releases in corporate arrangements under section 192(4) of the CBCA | Civil procedure — Objections to arrangement — Stakeholder objections — Claims of default — Inadequate disclosure — Should objections raised by stakeholders, including claims of default and inadequate disclosure, affect the approval of the plan of arrangement? — Judicial consideration of stakeholder objections in corporate arrangement proceedings
CanLII | Apr 9, 2025
- keywords: Civil procedure — Contempt of court — Sanctions — Costs — Defendants found in contempt for failing to comply with court orders, including a Turnover Order — Plaintiffs sought full indemnity costs as a sanction — Should full indemnity costs be awarded as a sanction for contempt? — Rule 60.11(5) of the Rules of Civil Procedure — Factors for determining sanctions for contempt include proportionality, deterrence, and aggravating factors | Constitution — Charter breaches — Stay Motion — Plaintiffs breached Charter rights by failing to disclose evidence in a timely manner and splitting their case — Defendants sought substantial indemnity costs for the Stay Motion — Should substantial indemnity costs be awarded for Charter breaches? — Canadian Charter of Rights and Freedoms, s. 24(1) — Costs awarded to defendants on a substantial indemnity basis | Civil procedure — Costs — Set-off — Defendants sought to set off costs awarded for the Stay Motion against outstanding costs owed to plaintiffs from prior decisions — Plaintiffs argued against set-off due to lack of mutuality of debts — Can costs awarded for a Stay Motion be set off against prior costs awards? — Courts of Justice Act, R.S.O. 1990, c. C.43, ss. 96, 106, 111 | Civil procedure — Costs of hearing — February 28, 2025 hearing — Plaintiffs awarded full indemnity costs for the sanction hearing portion of the attendance — No costs awarded for other issues addressed at the hearing — What costs should be awarded for a hearing addressing sanctions, costs, and set-off considerations? — Costs fixed at $50,000 for the sanction hearing
CanLII | Apr 4, 2025
- keywords: Business associations — Shareholder disputes — Beneficial ownership — Applicant claimed 15% shareholding in corporation based on investment and work agreement — Respondents denied agreement and alleged repayment of investment — Credibility of witnesses central to dispute — Was the applicant entitled to 15% of the shares? — Enforceable agreement found — Oppression remedy granted under Ontario Business Corporations Act, s. 248 | Contracts — Formation of agreement — Oral and written agreements — Applicant alleged enforceable agreement for 15% shareholding in exchange for $100,000 investment and work — Respondents disputed terms and alleged repayment — Was there an enforceable agreement? — Court found essential terms agreed upon — February 2014 Agreement upheld as binding | Securities — Oppression remedy — Shareholder rights — Applicant sought oppression remedy for failure to issue shares and provide corporate documents — Respondents denied applicant’s shareholder status — Was the applicant entitled to relief under s. 248 of the Ontario Business Corporations Act? — Oppression remedy granted — Reasonable expectations of shareholder violated | Statutory interpretation — Limitations Act, 2002 — Discoverability of claims — Respondents argued claim for shares was statute-barred — Applicant claimed he was unaware of denial of shareholder status until 2024 — When was the claim discoverable? — Court held claim was not discoverable until respondents explicitly denied shareholder status — Claim not statute-barred
CanLII | Apr 4, 2025
- keywords: Business associations — Corporate arrangements — Shareholder approval — Proposed arrangement involving a corporation and its shareholders, optionholders, and other stakeholders — Unsolicited acquisition proposal received and countered by an amended arrangement agreement — Board of directors determined amended arrangement was in the best interests of the company — Settlement of motion on consent — Canada Business Corporations Act, R.S.C. 1985, c. C-44, s. 192 — Framework for court approval of corporate arrangements | Civil procedure — Settlement of motion — Consent dismissal — Parties agreed to dismiss the motion with prejudice and without costs — Court approved the settlement and dismissed the motion — Interim and interlocutory injunction vacated entirely — Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rr. 14.05(2), 14.05(3) | Rights and freedoms — Access to court records — Sealing orders — Whether a sealing order should be continued on a permanent basis — Temporary sealing order imposed to prevent market distortion during acquisition proposal — Court declined to continue sealing order, finding the justification no longer existed — Framework from Sierra Club and Sherman Estate applied — Open court principle upheld
CanLII | Apr 2, 2025
- keywords: Business associations — Corporate governance — Appointment of inspector — Related party transactions — Allegations of oppressive conduct — Financial mismanagement — Should an inspector be appointed under the Business Corporations Act (Ontario) to investigate the Pharmacies’ financial and business affairs? — Test for appointing an inspector under s. 161 of the OBCA — Prima facie case and appropriateness of investigation — Costs of investigation shared equally by the Pharmacies | Statutory interpretation — Business Corporations Act (Ontario) — Derivative actions — Leave to prosecute — Allegations of misappropriation of corporate funds — Should leave be granted under s. 246 of the OBCA to bring derivative actions on behalf of the Pharmacies and Woodbine Downs? — Best interests of the corporation — Test for granting leave under s. 246 of the OBCA | Contracts — Arbitration clauses — Shareholder agreements — Disputes between shareholders — Derivative actions — Do arbitration provisions in shareholder agreements preclude leave to prosecute derivative actions on behalf of the Pharmacies? — Scope of arbitration clauses — Waiver of arbitration rights through participation in litigation | Civil procedure — Costs — Allocation of costs — Inspector and derivative actions — Should the costs of the inspector and derivative actions be allocated among the parties? — Costs shared equally by the Pharmacies and Gerges — Costs allocation subject to adjustment based on outcome
CanLII | Apr 2, 2025
- keywords: Business associations — Corporate governance — Shareholder disputes — Interlocutory injunctions — Applicant sought to restrain respondent from withdrawing funds from corporation under section 248(3)(a) of the Business Corporations Act (Ontario) — Should the test for granting an injunction be "serious issue to be tried" or "strong prima facie case"? — Court applied "strong prima facie case" test for relief akin to Mareva injunctions — Business Corporations Act, R.S.O. 1990, c. B.16, s. 248(3)(a) | Civil procedure — Interlocutory injunctions — Test for granting — Applicant sought to restrain respondent from withdrawing funds from corporation — Did the applicant establish irreparable harm to justify the injunction? — Harm must be irreparable, not merely monetary — Court found no irreparable harm as corporate assets were held in trust or illiquid — Framework from RJR-MacDonald Inc. v. Canada (A.G.) applied | Property — Corporate assets — Restrictions on encumbrances — Applicant sought to prevent respondent from encumbering or withdrawing funds from corporate assets — Should restrictions be imposed on corporate property pending resolution of the dispute? — Court ordered that corporate property not be encumbered without consent or court order — Funds held in trust to remain pending further agreement or court order
CanLII | Apr 1, 2025
- keywords: Business associations — Corporate governance — Press releases — Acquisition Proposals — Superior Proposals — Board of directors — Whether press release should disclose the name of the submitting party and proposed share price — Court held that disclosure of both elements was required — Directions consistent with prior orders and the balance struck in earlier endorsements | Commerce and industry — Mergers and acquisitions — Disclosure obligations — Press releases — Whether disclosure of the submitting party’s identity and proposed share price in response to an Acquisition Proposal is required — Court held that such disclosure was necessary to ensure transparency and compliance with corporate governance standards | Securities — Regulatory compliance — National Instrument — Ontario Securities Commission — Capital markets regulation — Whether disclosure of submitting party’s identity and proposed share price aligns with National Instrument requirements — Court agreed with the Ontario Securities Commission’s position that disclosure was mandatory to ensure compliance with securities regulations
CanLII | Mar 31, 2025
- keywords: Bankruptcy and insolvency — Appointment of receiver — Just or convenient standard — Applicant sought appointment of a receiver under section 243 of the Bankruptcy and Insolvency Act and section 101 of the Courts of Justice Act — Respondents did not oppose the application — Is it just or convenient to appoint a receiver? — Factors considered holistically, including secured creditor rights, property preservation, and balance of convenience | Bankruptcy and insolvency — Deferral of receivership — Business operations — Applicant proposed deferring the effective date of the receivership to allow the Respondents to continue operating the business temporarily — Should the appointment of the receiver be deferred? — Court considered practical implications, including honoring existing contracts and minimizing disruption | Commerce and industry — Interim monitoring — Business as a going concern — Proposed Receiver agreed to act as Monitor on an interim basis to explore maintaining the business as a going concern — Can the proposed Receiver act as a Monitor? — Court approved interim monitoring to assess financial viability and potential sale as a going concern
CanLII | Mar 30, 2025
- keywords: Business associations — Corporate arrangements — Plan of arrangement — Shareholder vote — Dispute over unsolicited third-party proposal — Interim orders issued to address confidentiality, publication bans, and procedural issues — Should the court balance shareholder rights, corporate governance, and contractual obligations? — Canada Business Corporations Act, R.S.C. 1985, c. C-44, s. 192 | Civil procedure — Interim publication bans — Sealing orders — Commercially sensitive information — Application for interim relief to prevent disclosure of litigation and third-party proposal — Should the court grant a publication ban to protect market integrity and prevent prejudice? — Test for discretionary limits on court openness from Sherman Estate v. Donovan, 2021 SCC 25 | Contracts — Breach of arrangement agreement — Confidentiality agreements — Clean team agreements — Alleged breach of exclusivity provisions in arrangement agreement — Did the applicant breach Article 5 of the agreement by entering into an amended confidentiality agreement with a third party? — Interpretation of contractual obligations under arrangement agreements | Contracts — Injunctions — Superior Proposal — Right to match — Dispute over unsolicited third-party proposal — Should the court issue an injunction to prevent the applicant from accepting or proceeding with a third-party proposal alleged to be a Superior Proposal? — Governing principles for injunctive relief in corporate transactions | Administrative law — Securities regulation — Ontario Securities Commission — Notification of proceedings — Should the Ontario Securities Commission be notified of the application and play a role in addressing procedural and disclosure issues? — Jurisdiction and procedural fairness in corporate governance disputes
CanLII | Mar 29, 2025
- keywords: Bankruptcy and insolvency — Companies’ Creditors Arrangement Act — Restructuring Framework Agreement — Approval of RFA sought by debtor company — Stakeholder opposition, including landlords — Monitor’s role in oversight — Should the RFA be approved to facilitate restructuring? — Balancing interests of secured creditors and other stakeholders — Governing principles under the CCAA for approval of restructuring agreements | Statutory interpretation — Companies’ Creditors Arrangement Act — Court’s discretion under section 23(1) — Monitor’s obligations to oversee cash flow and report material variances — Should the court impose additional controls on the debtor company’s use of assets? — Interpretation of statutory provisions governing restructuring oversight | Lease — Landlord opposition to restructuring terms — Impact of RFA on lease agreements — Landlords argue no benefit to debtor company from RFA — Should the court approve terms affecting leaseholders? — Balancing landlord rights with restructuring objectives | Property — Secured creditors’ rights — Collateralized inventory sales — Lenders seek control over proceeds and cash flow — Should secured creditors have veto rights over asset use? — Court’s role in balancing creditor rights and restructuring goals | Obligations — Financial obligations under RFA — Mandatory distribution waterfall and cash collateralization — Are such obligations appropriate at this stage of restructuring? — Court’s discretion to impose financial controls on debtor company | Sale — Restrictions on restructuring transactions — Negative covenants in RFA limiting debtor’s ability to pursue alternative transactions — Should the court pre-authorize restrictions on sale processes? — Ensuring flexibility in the Sale and Investment Solicitation Process (SISP)
CanLII | Mar 29, 2025
- keywords: Civil procedure — Mareva injunction — Variation of orders — Frozen funds — Defendants sought variation of Mareva orders to release funds for legal expenses — Whether the court should vary the Mareva orders to permit release of frozen funds — Balancing competing interests of plaintiffs and defendants — Discretionary nature of variation orders — Framework from Credit Valley and Waxman applied | Evidence — Disclosure of assets — Defendants’ burden of proof — Whether defendants demonstrated no other assets available to pay legal expenses — Adverse inferences from refusal to disclose third-party funding details — Privilege upheld — Mareva orders freezing worldwide assets — Application of trust principles to commingled funds | Evidence — Source of frozen assets — Proprietary claims — Defendants’ onus to show assets not traceable to plaintiffs — Commingled funds and fungibility — Application of trust law principles — Trustee deemed to spend personal funds first — Defendants failed to establish non-proprietary source of frozen funds | Civil procedure — Balancing interests — Mareva injunction — Competing interests of plaintiffs and defendants — High-stakes litigation — Defendants’ right to meaningful participation in trial — Complexity of proceedings — Release of funds for legal representation — Proportionality of funds released relative to frozen assets | Civil procedure — Motion by Dreams International Advisory Services Ltd. — Separate relief sought to release frozen funds for legal expenses — Lack of evidence of precarious funding — Privilege over third-party funding details — Failure to meet burden of proof — Motion dismissed
CanLII | Mar 28, 2025
- keywords: Bankruptcy and insolvency — CBCA restructuring — Interim order — Plan of arrangement — Applicants sought approval of an interim order under section 192 of the CBCA to facilitate a restructuring plan — Should the interim order be granted to allow the plan to proceed to a vote and fairness hearing? — Interim orders are procedural and require sufficient indication of fairness to proceed — Canada Business Corporations Act, R.S.C. 1985, c. C-44, s. 192 | Business associations — Corporate restructuring — Good faith — Statutory requirements — Applicants proposed a plan of arrangement to address liquidity challenges and extend note maturities — Did the Applicants meet the statutory requirements under section 192 of the CBCA? — Evidence of good faith and impracticality of alternative methods satisfied statutory requirements — Canada Business Corporations Act, R.S.C. 1985, c. C-44, s. 192 | Securities — Voting classification — Commonality of interest — Senior Noteholders — Applicants proposed a single voting class for Senior Noteholders under the interim order — Is the classification of Senior Noteholders into one class appropriate? — Commonality of legal entitlements under the same indenture supports a single class — Canada Business Corporations Act, R.S.C. 1985, c. C-44, s. 192 | Civil procedure — Stay of proceedings — Limited stay — Interim order — Applicants sought a limited stay of proceedings to prevent actions that could disrupt the restructuring process — Should the limited stay of proceedings be approved? — Limited stay authorized under section 192(4) to protect the restructuring process — Canada Business Corporations Act, R.S.C. 1985, c. C-44, s. 192
CanLII | Mar 28, 2025
- keywords: Bankruptcy and insolvency — Stay of proceedings — Extension of stay — Stabilization of operations — Applicants sought extension of stay under the CCAA to facilitate restructuring processes — Whether the Applicants acted in good faith and with due diligence — Court satisfied that extension was necessary to maximize recovery for stakeholders — Companies’ Creditors Arrangement Act, R.S.C. 1985, c. C-36, s. 11.02 | Commerce and industry — Liquidation Sale — Lease Monetization Process — Sales and Investment Solicitation Process (SISP) — Approval of processes to maximize recovery for stakeholders — Liquidation of inventory and assets, marketing of leases, and solicitation of bids for restructuring or sale — Whether processes were reasonable and beneficial to creditors — Court approved processes as necessary and appropriate under the circumstances | Bankruptcy and insolvency — DIP Facility — Repayment of obligations — Improved liquidity — Applicants sought approval to repay outstanding DIP obligations due to robust sales and reduced need for financing — Whether repayment minimized costs and maximized recoveries — Court approved repayment to avoid unnecessary interest expenses and ensure efficient restructuring | Labour and employment — Key Employee Retention Plan (KERP) — Retention of critical employees — Approval of KERP to ensure stability during restructuring — Whether KERP was necessary and reasonable — Court approved KERP and corresponding charge to retain key employees essential to liquidation, lease monetization, and SISP | Bankruptcy and insolvency — Sealing order — Confidentiality of KERP details — Applicants sought sealing order to protect employee names and compensation — Whether sealing order met the test for limiting court openness — Court satisfied that confidentiality was necessary to prevent harm and approved sealing order under Sierra Club and Sherman Estate principles
CanLII | Mar 26, 2025
- keywords: Civil procedure — Jurisdiction simpliciter — Real and substantial connection — Ontario Superior Court of Justice — Foreign trustee — Misappropriation of funds in Ontario — Contracts connected to the dispute made in Ontario — Torts committed in Ontario — Presumptive connecting factors under Van Breda — Did the Trustee rebut the presumption of jurisdiction? — Ontario courts have jurisdiction over the Trustee based on real and substantial connection principles | Contracts — Governing law and forum clauses — Trust Deed executed in Ontario — Contracts connected to the dispute — Loan agreements made in Ontario — Misappropriation of funds traceable to Ontario contracts — Are contracts connected to the dispute sufficient to establish jurisdiction? — Contracts made in Ontario establish a presumptive connecting factor under Van Breda | Estates and trusts — Forum non conveniens — Trust governed by Liechtenstein law — Trustee domiciled in Liechtenstein — Equitable remedies sought in Ontario — Multiplicity of proceedings — Is Liechtenstein a clearly more appropriate forum? — Ontario is the convenient forum for resolving disputes involving the Trust | Evidence — Sufficiency of pleadings — Adequacy of claims against the Trustee — Jurisdictional analysis — Claims sufficiently pleaded to allow for jurisdictional determination — Do deficiencies in pleadings preclude jurisdictional analysis? — Pleadings meet the threshold for jurisdictional analysis under Ontario law
CanLII | Mar 24, 2025
- keywords: Civil procedure — Jurisdiction simpliciter — Real and substantial connection — Ontario Superior Court of Justice — Misappropriation of funds originating in Ontario — Trustee of Liechtenstein trust — Presumptive connecting factors — Contracts made in Ontario — Torts committed in Ontario — Rebuttal of presumptive factors — Does the Ontario court have jurisdiction over the Trustee? — Framework from Van Breda and Haaretz.com applied | Contracts — Connection to dispute — Trust Deed and related documents — Contracts made in Ontario — Misappropriation of funds — Loan agreements connected to Ontario — Trustee’s knowledge of Ontario origin of funds — Are contracts connected to the dispute sufficient to establish jurisdiction? — Van Breda principles governing contracts as connecting factors | Estates and trusts — Forum non conveniens — Liechtenstein trust — Governing law and forum clauses favouring Liechtenstein — Multiplicity of proceedings — Equitable remedies sought in Ontario — Is Liechtenstein a clearly more appropriate forum? — High standard for displacing plaintiff’s chosen forum under Van Breda | Evidence — Sufficiency of pleadings — Adequacy of claims against Trustee — Jurisdictional analysis — Allegations of knowing receipt and constructive trust — Are the pleadings sufficient to allow the court to assess jurisdiction? — Threshold for sufficiency of pleadings under Sparkasse and Rule 37.01
CanLII | Mar 24, 2025
- keywords: Civil procedure — Production motions — Privilege — Schedule B — Paragon sought a further and better Schedule B from Tamstu’s affidavit of documents, alleging gaps in the numerical sequence of document identification numbers — Whether gaps in document identification numbers justify further disclosure — Court found no evidence of missing documents or improper removal of privileged documents — Request for further and better Schedule B dismissed | Evidence — Privilege — Estate Litigation documents — Paragon sought production of documents from the Estate Litigation, including legal advice and communications — Whether documents were protected by privilege, including joint defence privilege — Court held that joint defence privilege did not apply and ordered production of certain documents not protected by privilege | Contracts — Waiver of solicitor-client privilege — Consulting Agreement — Paragon pleaded absence of legal advice and mistaken belief regarding the Consulting Agreement from 1978 to 2023 — Whether Paragon waived privilege over legal advice received during this period — Court found privilege waived for legal advice up to 2023 but not for 2023 legal advice specifically relied upon in pleadings | Evidence — Settlement privilege — Communications and documents exchanged in 2020–2021 — Tamstu sought production of communications, including the “Discussion Document,” claiming they were not protected by settlement privilege — Whether settlement privilege applied to pre-litigation commercial negotiations — Court found no settlement privilege applied to communications before May 6, 2021, as litigation was not contemplated at that time | Civil procedure — Costs — Divided success — Paragon and Tamstu each succeeded on material issues in their respective motions — Court awarded partial indemnity costs of $50,000 to Paragon and $75,000 to Tamstu, resulting in a net payment of $25,000 by Paragon to Tamstu
CanLII | Mar 24, 2025
- keywords: Bankruptcy and insolvency — Stay of proceedings — Restructuring under the Companies’ Creditors Arrangement Act (CCAA) — Applicants sought an extension of the stay of proceedings to continue good faith discussions with creditors and stakeholders — Should the stay of proceedings be extended? — Court satisfied that Applicants acted in good faith and had sufficient liquidity — Stay extended pursuant to sections 11.02(2) and (3) of the CCAA | Bankruptcy and insolvency — Directors’ Charge — Quantum increase — Applicants sought to increase the Directors’ Charge to $49,200,000 to reflect obligations related to HST remittances, payroll deductions, and employee liabilities — Should the quantum of the Directors’ Charge be increased? — Court approved increase as reasonable and supported by the Monitor — Sections 11.51 and 11.52 of the CCAA applied | Bankruptcy and insolvency — Priority of charges — Administration Charge, Directors’ Charge, and DIP Charge — Applicants proposed amendments to the relative priorities of charges under the Initial Order — Should the proposed amendments to charge priorities be approved? — Court approved amendments as appropriate and consistent with the DIP Term Sheet — Priority waterfall established for different categories of collateral | Bankruptcy and insolvency — Financial advisor engagement — Reflect Advisors, LLC — Applicants sought approval to engage Reflect Advisors, LLC as financial advisor and include it under the Administration Charge — Should the engagement of Reflect Advisors, LLC be approved? — Court approved engagement based on expertise and necessity for restructuring efforts — No increase to Administration Charge quantum — Section 11 of the CCAA applied
CanLII | Mar 19, 2025
- keywords: Bankruptcy and insolvency — Companies’ Creditors Arrangement Act (CCAA) — Debtor company — Jurisdiction — Applicant sought an Initial Order under the CCAA, including a stay of proceedings, DIP financing, and court-appointed Monitor — Does the applicant qualify as a “debtor company” under the CCAA, and does the court have jurisdiction to grant the requested relief? — CCAA, R.S.C. 1985, c. C-36, s. 9(1) | Bankruptcy and insolvency — Stay of proceedings — Liquidity crisis — Insolvency — Applicant sought a stay of proceedings to prevent creditors from enforcing rights and to stabilize operations — Should the court grant a stay of proceedings to provide the applicant with the necessary breathing space to restructure? — CCAA, R.S.C. 1985, c. C-36, s. 11.02(1) | Bankruptcy and insolvency — Interim financing — DIP Financing Facility — DIP Lender’s Charge — Applicant sought approval of a $1 million DIP Financing Facility and associated charge — Should the court approve the proposed DIP Financing Facility and the associated DIP Lender’s Charge? — CCAA, R.S.C. 1985, c. C-36, s. 11.2(4) | Bankruptcy and insolvency — Charges — Administration Charge — Directors’ Charge — Applicant sought approval of Administration and Directors’ Charges to secure professional fees and indemnify directors — Should the court approve the Administration Charge and Directors’ Charge as proposed by the applicant? — CCAA, R.S.C. 1985, c. C-36, ss. 11.51, 11.52 | Bankruptcy and insolvency — Monitor — Appointment of Monitor — Applicant proposed Richter Inc. as Monitor to oversee restructuring — Should the court appoint Richter Inc. as the Monitor in the CCAA proceedings? — CCAA, R.S.C. 1985, c. C-36, s. 11.7
CanLII | Mar 19, 2025
- keywords: Bankruptcy and insolvency — Sale of business assets — Appointment of Sales Officer — Deadlock among shareholders — Approval of Sale Process Order — Principles from Royal Bank of Canada v. Soundair Corp. — Whether the proposed Sale Process is fair, transparent, and commercially efficacious — Court’s discretion to approve sale processes in insolvency contexts | Sale — Sale Process Order — Ancillary relief — Approval of Sale Process for insurance policies and related assets — Non-solicitation order to protect purchaser’s investment — Whether restrictions on solicitation are reasonable and necessary — Framework for maximizing asset value in court-supervised sales | Business associations — Corporate governance — Deadlock among shareholders — Oppression remedy applications — Appointment of Sales Officer — Whether enhanced powers as receiver and manager are necessary — Court’s discretion to expand the mandate of court-appointed officers | Civil procedure — Preservation of assets — Transfer of funds and commissions to Sales Officer — Compliance with prior court orders — Whether additional orders are necessary to ensure timely and efficient administration of assets — Rule 63.01 and automatic stays in appeals | Insurance — Interim Broker — Appointment of Kingsmere Financial Services Inc. — Allegations of conflict of interest — Whether appointment undermines integrity of Sale Process — Court’s assessment of impartiality and fairness in court-supervised sales
CanLII | Mar 14, 2025
- keywords: Business associations — Shareholder disputes — Corporate governance — Allegations of misrepresentation and oppression — Plaintiff alleged negligent misrepresentation and oppressive conduct by corporate officers — Defendants denied claims and counterclaimed for abuse of process — Were the defendants' actions oppressive or unfairly prejudicial to the plaintiff's shareholder interests? — Framework for assessing oppression claims under BCE Inc. v. 1976 Debentureholders. | Obligations — Negligent misrepresentation — Share purchases — Plaintiff alleged reliance on misrepresentations regarding share value and uplisting to NASDAQ — Defendants argued public disclosures negated any misrepresentation — Was there a special relationship and reasonable reliance on the alleged misrepresentations? — Test for negligent misrepresentation from Queen v. Cognos Inc. applied. | Obligations — Reasonable reliance — Shareholder sophistication — Plaintiff was an accredited investor with legal and investment experience — Defendants argued reliance on alleged misrepresentations was unreasonable given public disclosures and disclaimers — Was the plaintiff's reliance on the alleged misrepresentations reasonable? — Reasonableness of reliance assessed under McKenna v. Gammon Gold Inc. | Securities — Oppression remedy — Executive compensation — Plaintiff alleged excessive compensation and related-party transactions unfairly disregarded shareholder interests — Defendants argued compensation was disclosed and approved by the board — Did the defendants' conduct violate the plaintiff's reasonable expectations as a shareholder? — Oppression remedy framework from BCE Inc. v. 1976 Debentureholders applied. | Civil procedure — Abuse of process — Counterclaim for reputational harm — Defendants alleged plaintiff's action was initiated for improper collateral purposes, including reputational damage — Plaintiff denied improper motives — Was the plaintiff's action an abuse of process? — Test for abuse of process from Harris v. Glaxosmithkline Inc. applied.
CanLII | Mar 13, 2025
- keywords: Bankruptcy and insolvency — Reverse vesting order — Sale of shares — Companies’ Creditors Arrangement Act (CCAA) — Approval of transaction — Monitor’s role — Harte Gold factors — Soundair principles — Whether reverse vesting structure is necessary — Economic result compared to alternatives — Stakeholder impact — Preservation of licences and permits — Governing rule under section 11 and section 36 of the CCAA | Bankruptcy and insolvency — Releases — Scope of releases — Lydian test — Appropriateness of releases in favour of parties involved in the transaction — Whether releases are necessary and contribute to the restructuring — Governing rule under CCAA jurisprudence | Bankruptcy and insolvency — Stay of proceedings — Extension of stay — Facilitation of transaction completion — Good faith and due diligence — Cash flow projections — Prejudice to creditors — Governing rule under section 11.02(2) of the CCAA | Civil procedure — Sealing order — Commercially sensitive information — Monitor’s report — Public interest in maximizing recovery — Integrity of sales process — Test under Sierra Club and Sherman Estate — Whether salutary effects outweigh deleterious effects
CanLII | Mar 10, 2025
- keywords: Bankruptcy and insolvency — CCAA proceedings — Insolvency criteria — Applicants unable to meet financial obligations as they become due — Imminent liquidity crisis — Total liabilities exceeding $1.1 billion — Relief sought under CCAA to stabilize operations and preserve value — Does the Applicants’ financial situation meet the insolvency threshold under the CCAA? — Definition of insolvency under the Bankruptcy and Insolvency Act applied | Statutory interpretation — Jurisdiction under CCAA — Ontario Superior Court of Justice — Determination of “chief place of business” — Majority of stores, employees, and head office located in Ontario — Does the Court have jurisdiction to grant relief under the CCAA? — Section 9(1) of the CCAA and precedent from Nordstrom Canada Retail, Inc. applied | Commerce and industry — Stay of proceedings — Extension to non-applicant parties — Suspension of rent payments — Stabilization of operations during restructuring — Should the stay of proceedings extend to non-applicant affiliates and suspend certain rent payments? — Broad discretion under sections 11 and 11.02 of the CCAA applied | Bankruptcy and insolvency — DIP financing — Approval of DIP Facility and DIP Charge — Urgent liquidity needs — Proposed DIP terms reasonable given financial challenges — Does the proposed DIP financing meet the criteria under section 11.2 of the CCAA? — Factors from CanWest Publishing Inc. and Crystallex applied | Bankruptcy and insolvency — Administration and Directors’ Charges — Pre-filing payments to critical suppliers — Approval of charges to secure professional fees and indemnify directors — Are the proposed charges and payments necessary to preserve operations and facilitate restructuring? — Sections 11.4, 11.51, and 11.52 of the CCAA applied
CanLII | Mar 10, 2025
- keywords: Business associations — Shareholder disputes — Oppression remedy — Canada Business Corporations Act (CBCA) — Disputes between directors and shareholders of a joint venture company — Allegations of oppression, breach of fiduciary duty, and misappropriation of corporate assets — Whether the consolidated application should proceed as an action — CBCA, s. 241 — Rules of Civil Procedure, r. 38.10 | Civil procedure — Conversion of application to action — Complexity of evidentiary record — Disputes requiring credibility findings — Whether the application judge can fairly and justly decide issues on a paper record — Test for converting an application to an action — Rules of Civil Procedure, r. 38.10 — Obolus v. International Seniors Community Care Inc., 2023 ONCA 708 | Civil procedure — Amendments to notice of application — Procedural fairness — Significant amendments to claims after affidavits delivered — Whether amendments justify conversion to an action — Rules of Civil Procedure, r. 26.02(a) — Impact of amendments on procedural framework | Contracts — Joint venture agreements — Validity and enforceability — Disputes over Participation Agreement and Business Agreement — Allegations of misrepresentation, non est factum, and failure of consideration — Claims for rescission, rectification, or variation of agreements — CBCA, s. 241(3)(h)
CanLII | Mar 6, 2025
- keywords: Bankruptcy and insolvency — Companies’ Creditors Arrangement Act (CCAA) — Sanctioning of plans — Global settlement — Tobacco Companies — $32.5 billion settlement — Allocation of funds to creditors, provinces, and territories — Approval of plans by creditors — Should the court sanction the CCAA Plans, including the allocation of the Global Settlement Amount? — Framework for sanctioning CCAA Plans under s. 6 of the CCAA | Bankruptcy and insolvency — Third-party releases — Scope of releases — Tobacco Companies and affiliates — Claims arising from tobacco-related harms — Are the third-party releases in the CCAA Plans fair, reasonable, and necessary for the global settlement? — Test for approving third-party releases under Metcalfe & Mansfield Alternative Investments II Corp | Civil procedure — Appointment of administrators — Oversight of CCAA Plans — Role of Monitors and Administrators — Implementation of compensation plans and Cy-près Foundation — Should the court approve the appointment of CCAA Plan Administrators? — Jurisdiction under s. 11 of the CCAA to facilitate plan implementation | Health — Cy-près Foundation — Indirect benefits for tobacco-related harms — $1 billion fund — Research and programs for tobacco-related diseases — Should the court approve the creation and mandate of the Cy-près Foundation? — Public interest considerations in CCAA proceedings | Health — Social stakeholders — Objections by Heart and Stroke Foundation and Canadian Cancer Society — Scope of releases — Mandate of Cy-près Foundation — Should objections by social stakeholders affect the sanctioning of the CCAA Plans? — Balancing creditor rights and public interest in restructuring proceedings
CanLII | Mar 6, 2025
- keywords: Bankruptcy and insolvency — Competing insolvency proceedings — Receivership vs. CCAA — Senior secured creditor seeking receivership to enforce security — Debtors seeking CCAA to preserve going concern value — Should the court grant the Receivership Application or continue the CCAA proceedings? — Factors considered include erosion of security, loss of confidence in management, and likelihood of successful restructuring — Court found receivership more appropriate in the circumstances | Rights and freedoms — Stakeholder interests in insolvency — Balancing creditor rights and broader stakeholder interests — Debtors argued for prioritizing social and economic impacts of liquidation — Senior secured creditor opposed further erosion of security — Can stakeholder interests override creditor rights in insolvency? — Court held creditor rights prevail absent exceptional circumstances | Civil procedure — Sealing orders — Insolvency proceedings — Debtors sought to seal confidential valuation information to protect sale process integrity — Should the court issue a sealing order? — Court granted limited sealing order to protect commercially sensitive information, balancing open court principle and confidentiality needs | Construction — Lien actions in insolvency — Stay of proceedings — Construction lien creditors sought to lift stay to continue lien action — Should the stay of proceedings be lifted? — Motion adjourned, with no immediate need to lift the stay
CanLII | Mar 4, 2025
- keywords: Business associations — Corporate restructuring — Interim orders — Plan of arrangement — Debt restructuring — Application under section 192 of the CBCA for approval of a plan of arrangement — Should the court grant an interim order to facilitate the proposed arrangement? — Section 192(4) of the CBCA authorizes the court to make interim orders to set the process in motion for a final approval hearing | Statutory interpretation — Canada Business Corporations Act — Solvency and fairness — Section 192 of the CBCA requires applicants to demonstrate solvency and fairness of the proposed arrangement — Do the Applicants meet the statutory requirements under section 192 of the CBCA? — Solvency requirement satisfied where at least one applicant is solvent or where applicants will be solvent post-arrangement | Business associations — Creditor voting — Classification of creditors — Commonality of interest — Should creditors be grouped into separate voting classes or treated as a single class for final approval? — Creditors should vote as a single class unless their rights are so dissimilar as to make consultation impossible — Canadian Airlines Corp. test applied | Securities — Early consent consideration — Fairness of incentives — Payment of early consent consideration to consenting noteholders — Is the payment of early consent consideration fair and reasonable? — Early consent consideration is appropriate where it incentivizes early voting without prejudice to other creditors — Valid purpose of increasing confidence in the plan | Civil procedure — Stay of proceedings — Limited stay to protect business operations — Should the court approve a limited stay of proceedings to facilitate the arrangement process? — Stay is appropriate where it prevents actions that could undermine the arrangement and is limited in time and scope — Section 192(4) of the CBCA authorizes such relief
CanLII | Mar 4, 2025
- keywords: Bankruptcy and insolvency — Companies’ Creditors Arrangement Act — Plan of compromise or arrangement — Allocation of working capital holdback — Monitors seeking court approval for amendments to CCAA Plans — Do the proposed amendments affect the rights of creditors or stakeholders? — Amendments approved as they do not materially affect Affected or Unaffected Creditors — Sections 6, 7, and 20.4(a) of the CCAA applied | Statutory interpretation — Companies’ Creditors Arrangement Act — Section 20.4(a) — Requirement for court approval of amendments to CCAA Plans — Whether amendments are substantive or administrative — Court satisfied that amendments are substantive and require approval — Framework for interpreting statutory provisions governing amendments to CCAA Plans | Civil procedure — Abuse of process — Objections by social stakeholders — Heart and Stroke Foundation opposing amendments to CCAA Plans — Whether objections constitute an abuse of process — Court finds objections improperly relitigate previously decided issues — Doctrine of abuse of process applied to promote judicial economy and integrity of court process
CanLII | Mar 3, 2025
- keywords: Bankruptcy and insolvency — Jurisdiction — Deferred Payments mechanism — Liquidity deficit — Pride Entities sought approval to apply Deferred Payments to fund working capital needs — Does the Court have jurisdiction under section 11 of the CCAA to approve the Deferred Payments mechanism? — Section 11 discretion exercised to further remedial objectives of the CCAA, balancing creditor claims and operational needs | Bankruptcy and insolvency — Interim distribution — DIP Lenders’ Charge — Priority of DIP Lenders’ Charge over pre-filing security interests — Should the Court approve the interim distribution of non-Vehicle PGL Net Proceeds to the DIP Lenders? — ARIO and DIP Term Sheet provisions upheld, requiring proceeds to be applied to DIP Obligations | Bankruptcy and insolvency — Purchase price adjustments — PGL Direct Costs — Holdback amounts — Monitor’s recommendations — Should the Court approve the purchase price adjustments, PGL Direct Costs, and holdback amounts? — Monitor’s recommendations approved as appropriate, unopposed, and necessary for the wind-down process | Bankruptcy and insolvency — Monitor’s activities — Approval of Reports — Stakeholder objections — Should the Court approve the activities of the Monitor as described in the 4th through 20th Reports? — Activities approved to advance proceedings, with no prejudice to future cost allocation or professional fee approvals
CanLII | Feb 28, 2025
- keywords: Securities — Receivership — Confidentiality obligations — Ontario Securities Commission sought appointment of a receiver under section 129 of the Securities Act — Protocol proposed to balance confidentiality under sections 16 and 17 with Respondents’ right to make full answer and defence — Should the court approve the protocol? — Protocol approved to ensure fairness and compliance with statutory confidentiality obligations | Civil procedure — Adjournment — Receivership application — Respondents requested adjournment due to evidentiary and scheduling issues — Ontario Securities Commission consented to adjournment with conditions — Should the court grant the adjournment? — Adjournment granted with interim monitorship remaining in place and no pending transactions allowed | Bankruptcy and insolvency — Receivership — Interim monitorship — Ontario Securities Commission applied for receivership under section 129 of the Securities Act — Interim monitor appointed pending hearing — Should the interim monitorship remain effective? — Interim monitorship extended pending the hearing on the merits | Evidence — Compelled evidence — Use in receivership proceedings — Section 18 of the Securities Act governs use of compelled testimony in prosecutions — Does section 18 apply to receivership proceedings under section 129? — Section 18 held inapplicable to receivership proceedings
CanLII | Feb 28, 2025
- keywords: Bankruptcy and insolvency — Companies’ Creditors Arrangement Act — Assignment agreements — Payment Amount disputes — DIP Facility repayment — Whether cash on hand should have been used to repay DIP Facility prior to Assignment Closing — Whether Payment Amount should be adjusted to reflect cash on hand — Court dismissed motion to vary Payment Amount — Companies’ Creditors Arrangement Act, R.S.C. 1985, c. C-36 | Statutory interpretation — Companies’ Creditors Arrangement Act — Interpretation of “all amounts outstanding” in DIP Facility repayment clause — Whether cash on hand should reduce outstanding DIP Facility amount — Court held that plain language of agreement governs — No evidence of mutual intention to repay DIP Facility with cash on hand — Governing principles of contractual interpretation from Earthco Soil Mixtures Inc. v. Pine Valley Enterprises Inc., 2024 SCC 20 | Contracts — Implied terms — Assignment agreements — Whether Court should imply a term requiring repayment of DIP Facility from cash on hand — Court held no implied term necessary to give business efficacy to agreement — No evidence of parties’ mutual intention to include such a term — Implied terms must not contradict express language of contract — Moulton Contracting Ltd. v. British Columbia, 2015 BCCA 89 applied
CanLII | Feb 28, 2025
- keywords: Bankruptcy and insolvency — Credit bid approval — Vesting order — Monitor’s role — Sale agreements — Court approval of Monitor’s recommendations — Should the court approve the credit bid approval and vesting order, including the sale agreements? — Approval granted based on compliance with CCAA principles and unopposed relief | Property — Secondary Credit Bid Process — Orderly Liquidation Plan — Mortgagees’ rights — Remaining Properties — Should the court approve the Secondary Credit Bid Process and Orderly Liquidation Plan, including the extension of the stay? — Approval granted to ensure orderly liquidation and maximize recovery for creditors | Bankruptcy and insolvency — Monitor’s reports and fees — Court oversight — Reasonableness of fees — Should the court approve the Monitor’s reports, activities, and fees, as well as the fees of its counsel? — Approval granted as fees and activities deemed reasonable and consistent with the appointment order | Statutory interpretation — CCAA jurisdiction — Sale process in absence of a plan — Section 11 of the CCAA — Does the court have jurisdiction under section 11 of the CCAA to approve the proposed sale process? — Jurisdiction confirmed based on compliance with Nortel Networks Corp. factors and section 36(3) of the CCAA | Sale — Credit bid mechanics — DIP Allocation — Purchaser obligations — Should the court approve the mechanics of the credit bid process, including deposits and escrow requirements? — Approval granted with conditions to ensure fairness and compliance with the Restructuring Term Sheet
CanLII | Feb 27, 2025
- keywords: Business associations — Share purchase agreements — Amalgamation — Privilege in corporate records — Whether privilege in solicitor-client communications is jointly held by the sellers and the companies in the Ellis Group — Whether the amalgamated company retains privilege in the emails after the transaction — Privilege passes to successor-in-title unless expressly retained in the agreement — Framework from NEP Canada ULC v. MEC OP LLC and Dente applied | Evidence — Solicitor-client privilege — Joint retainer — Whether a solicitor-client relationship existed between the lawyer and the companies in the Ellis Group — Factors for determining solicitor-client relationships — Joint privilege arises when parties consult a solicitor on matters of shared interest — Communications not privileged as between jointly represented parties | Contracts — Share purchase agreements — Privilege in corporate records — Whether the amalgamated company retains privilege in solicitor-client communications after the transaction — No clause in the SPA retaining privilege for the sellers — Privilege passes to the purchaser unless expressly retained — Governing principles from NEP Canada ULC v. MEC OP LLC and Dente applied | Civil procedure — Disqualification of counsel — Alleged improper access to privileged communications — Whether plaintiffs' counsel should be disqualified and documents destroyed — Framework from Celanese Canada Inc. v. Murray Demolition Corp. applied — No prejudice found as privilege was jointly held and plaintiffs acted promptly to restrict access to documents
CanLII | Feb 27, 2025
- keywords: Civil procedure — Discovery — Affidavits of documents — Schedule “B” — Plaintiffs sought detailed Schedule “B” listing documents over which privilege was claimed — Defendants directed to produce detailed Schedule “B” by specified date — Should the defendants be compelled to provide a detailed Schedule “B”? — Obligation to provide detailed privilege claims in discovery process | Evidence — Privilege — Solicitor-client privilege — Litigation privilege — Plaintiffs sought production of documents listed in Schedule “B” from Cadwalader, Wickersham & Taft LLP — Defendants claimed privilege over 17,497 documents — Should the court compel production or review exemplars to assess privilege claims? — Dominant purpose test for privilege claims | Evidence — Discovery — Refusals to answer questions — Plaintiffs challenged refusals during examinations for discovery — Defendants asserted privilege over questions related to living expenses, communications, and non-legal services — Are the defendants required to answer refused questions? — Contextual assessment of privilege claims | Evidence — Privilege — Third-party communications — Plaintiffs challenged privilege claims over documents involving financial advisors, corporate directors, and other third parties — Defendants argued third-party communications were privileged if essential to solicitor-client relationship — Are third-party communications protected by privilege? — Functional analysis of third-party roles in privilege claims | Evidence — Privilege — Redacted documents and audio recordings — Plaintiffs sought review of redacted records and audio recording produced by Dreams International Advisory Services Ltd. — Defendants asserted solicitor-client and common interest privilege — Should the court review redactions to determine validity of privilege claims? — Court’s role in reviewing privilege assertions for excessive claims
CanLII | Feb 26, 2025
- keywords: Bankruptcy and insolvency — Receivership — Interim distribution — Receiver’s motion for approval of interim distribution to Unitholders, including calculation methodology, reserves, and allocation of costs — Whether the Receiver’s proposed distribution methodology is fair and equitable — Court’s jurisdiction to authorize distributions in Securities Act receiverships — Approval granted with adjustments to reserves for disputed claims | Securities — Settlement approval — BlackRock Claim — Receiver’s motion to approve settlement of unjust enrichment claim and corresponding distribution to BlackRock Parties — Whether settlement is fair, reasonable, and consistent with the objectives of the Securities Act — Approval granted with seven-day objection period for stakeholders | Securities — Constructive trust — Unitholders’ motion for constructive trust over Bridging Funds — Whether a constructive trust should be imposed to prioritize Unitholder claims over creditor claims — Motion deferred pending final determination of Cerieco Claim — Constructive trust principles in Securities Act receiverships | Securities — Creditor priority — Cerieco Claim — Whether Cerieco Claim should be treated as a creditor claim with priority over Unitholder claims in interim distribution — Receiver’s proposed pari passu treatment rejected pending final determination of Cerieco Claim — Reserves adjusted to account for full value of disputed claim | Civil procedure — Receiver’s activities — Approval of Receiver’s reports and activities — Whether Receiver’s actions, including 24th Report and supplements, were reasonable and consistent with mandate — Approval granted — Policy considerations for periodic approval of Receiver’s activities in complex proceedings
CanLII | Feb 24, 2025
- keywords: Contracts — Earn-out provisions — Acceleration clauses — Interpretation of share purchase agreement (SPA) — Vendor claimed that sale and leaseback (SLB) transactions and factoring arrangement triggered full earn-out payment — Purchaser argued transactions were ordinary financing steps and not material to earn-out regime — Whether SLB transactions and factoring arrangement triggered full earn-out payment — Principles of contractual interpretation applied — Sattva Capital Corp. v. Creston Moly Corp. framework governing interpretation of commercial contracts | Obligations — Earn-out payments — Materiality — Vendor argued that sale of real property and customer accounts constituted sale of material assets under SPA — Purchaser contended "material" must relate to impact on earn-out regime — Whether "material" in section 3.10(12)(a) of SPA refers to assets material to earn-out performance — Commercial reasonableness and intent of parties considered | Civil procedure — Contractual interpretation — Entire agreement clause — Vendor objected to consideration of letter of intent (LOI) due to entire agreement clause in SPA — Purchaser argued LOI provided objective evidence of parties’ intentions — Whether surrounding circumstances, including LOI, could be considered in interpreting SPA — Ontario First Nations (2008) Limited Partnership v. Ontario Lottery and Gaming Corporation applied
CanLII | Feb 19, 2025
- keywords: Business associations — Shareholder disputes — Corporate governance — Allegations of unauthorized sale of corporate property and misappropriation of proceeds — Applicant sought Mareva injunction, preservation order, and production of documents — Whether respondent’s actions constituted fraud, conversion, or oppression — Test for equitable relief and clean hands doctrine — Application dismissed due to lack of evidence of dissipation of assets — Rule 45.02 requirements not met for preservation order | Civil procedure — Mareva injunction — Extraordinary relief — Applicant sought to freeze funds from sale of corporate property — Test for Mareva injunction includes strong prima facie case, risk of dissipation, and undertaking as to damages — Respondent’s agreement to hold funds pending court order negated risk of dissipation — Application dismissed — Sibley & Associates LP v. Ross, 2011 ONSC 2951 applied | Civil procedure — Preservation order — Rule 45.02 — Applicant sought preservation of funds from sale of corporate property — Test requires specific, identifiable fund and serious issue to be tried — Funds no longer existed as a readily identifiable fund due to disbursement — Application dismissed — Sadie Moranis Realty Corporation v. 1667038 Ontario Inc., 2012 ONCA 475 applied | Civil procedure — Production of documents — Applicant sought additional production of records to trace funds — Respondent argued production should follow normal procedural rules — Court declined to order production at this stage due to lack of supporting legal argument — Application dismissed | Civil procedure — Costs — Discretionary decision under s. 131 of the Courts of Justice Act — Factors considered include result, complexity, and conduct of parties — Costs fixed at $25,000 inclusive of disbursements and HST — Applicant ordered to pay costs within 30 days
CanLII | Feb 12, 2025
- keywords: Contracts — Governance agreements — Material Adverse Change (MAC) clauses — Interpretation of MAC clauses in governance agreements — Whether specific events enumerated in the MAC definition are standalone triggers or illustrative examples — Applicant argued that mandatory language “shall include” creates standalone triggers — Respondent argued that preconditions of material adversity and securities law requirements must also be met — Court held that enumerated events (A) and (B) are standalone triggers — Sattva Capital Corp. v. Creston Moly Corp. principles applied | Obligations — Contractual obligations — Governance agreements — Restrictions on shareholder rights — Whether a material change in senior management constitutes a Material Adverse Change (MAC) under the Governance Agreement — Court held that a material change in senior management, as defined, occurred due to the departure of eight out of ten senior managers — Restrictions on voting and acquisition rights under the Governance Agreement lifted | Evidence — Expert evidence — Governance agreements and MAC clauses — Expert evidence on typical duration and scope of restrictions in governance agreements — Disagreement between experts on whether MAC clauses in governance agreements require a “high bar” — Court relied on expert evidence and factual matrix to interpret the MAC clause — Evidence supported the conclusion that changes in senior management triggered a MAC
CanLII | Feb 10, 2025
- keywords: Bankruptcy and insolvency — Approval and vesting order — Monitor’s role — Stalking Horse Transaction Agreement — Transition Services Agreement — Should the court approve the sale of assets and the transition of services under the CCAA? — Factors under section 36 of the CCAA and Soundair Principles satisfied — Relief granted to facilitate restructuring and minimize service disruption | Contracts — Assignment of contracts — Counterparty consent — Section 11.3 of the CCAA — Should the court approve the assignment of contracts without counterparty consent? — Purchasers financially capable of performing obligations — Cure Costs to be paid — Assignments approved to ensure continuity of services | Bankruptcy and insolvency — Limited releases — Sealing order — Confidential report — Should the court grant limited releases and seal the Financial Advisor’s report? — Releases necessary for restructuring — Sealing order justified under Sierra Club and Sherman Estate principles — Relief granted to protect process integrity | Bankruptcy and insolvency — Monitor’s enhanced powers — Stay extension — Section 11.02 of the CCAA — Should the Monitor’s powers be expanded and the stay of proceedings extended? — Enhanced powers necessary for wind-down and transition — Stay extension ensures stability and liquidity — Relief granted to support restructuring | Sale — Sales process — Soundair Principles — Stalking Horse Transaction Agreement — Were the statutory requirements and Soundair Principles met in the sales process? — Reasonable process supported by Monitor — Best price obtained — No improvidence or unfairness — Sale approved under section 36 of the CCAA
CanLII | Jan 30, 2025
- keywords: Bankruptcy and insolvency — Receivership — Sale process — Reverse vesting order — Approval of sale transaction — Receiver’s Second Report — Fees of Receiver and counsel — Should the court approve the Receiver’s activities and fees, and the sale transaction involving a reverse vesting structure? — Soundair Principles and Harte Gold factors applied to ensure fairness and maximize recovery for stakeholders | Intellectual property — Reverse vesting structure — Transfer of intellectual property — Global patents — Should the court approve the transfer of intellectual property registered in 41 jurisdictions as part of a reverse vesting order? — Reverse vesting structure deemed necessary to preserve intellectual property and tax attributes integral to the transaction | Sale — Receivership — Sale process — Highest and best offer — Should the court approve the sale transaction as the best economic outcome for stakeholders? — Sale Process Approval Order followed, ensuring integrity and fairness in the process | Taxation — Tax attributes — Preservation of tax loss carry forwards and SRED credits — Should the court approve the reverse vesting structure to preserve tax attributes? — Reverse vesting structure upheld to maximize value for stakeholders and avoid unnecessary costs and delays | Civil procedure — Sealing order — Confidential materials — Should the court grant a sealing order for confidential transaction documents? — Sealing order granted under section 137(2) of the Courts of Justice Act to protect the integrity of the sale process and stakeholder recoveries
CanLII | Jan 29, 2025
- keywords: Bankruptcy and insolvency — Conversion of NOI to CCAA — Jurisdiction — Applicants sought to convert their NOI proceeding under the BIA to a CCAA proceeding — Whether the Applicants met the criteria under section 11.6(a) of the CCAA — Court satisfied that the continuation under the CCAA was consistent with its purposes — Governing principles from The Body Shop Canada Limited and Century Services Inc. applied | Bankruptcy and insolvency — Stay of proceedings — Priority charges — Applicants sought a stay of proceedings and approval of charges, including Administration, Directors’, KERP, and DIP Lenders’ Charges — Whether the proposed charges and stay extension were appropriate — Court satisfied that the charges met statutory requirements under sections 11.51 and 11.52 of the CCAA — CanWest Publishing Inc. and Jaguar Mining Inc. applied | Bankruptcy and insolvency — Key Employee Retention Plan (KERP) — Sealing order — Applicants sought approval of KERP and a sealing order for confidential KERP details — Whether the KERP and sealing order were appropriate — Court satisfied that the KERP met the factors in Grant Forest Products Inc. and that the sealing order was justified under section 137(2) of the Courts of Justice Act — Sierra Club and Sherman Estate applied | Sale — Liquidation of assets — Auction and liquidation services agreement — Applicants sought approval of the liquidation of the Pickering facility and the related auction agreement — Whether the liquidation and agreement were appropriate — Court satisfied that the liquidation would maximize value and reduce expenses — DEL Equipment Inc. and Nordstrom Canada Retail applied | Social welfare — Wage Earner Protection Program Act (WEPPA) — Termination of employees — Applicants sought recognition under WEPPA after terminating most employees — Whether the Applicants met the criteria under section 3.2 of the WEPPA Regulations — Court satisfied that the Applicants qualified for WEPPA protection
CanLII | Jan 29, 2025
- keywords: Bankruptcy and insolvency — Companies' Creditors Arrangement Act — Approval of asset purchase agreement — Related party transactions — Monitor's role — Approval of Rifco APA and AVO under section 36 of the CCAA — Compliance with section 36(3) and section 36(4) — Soundair Principles — Fiduciary out clause — Safeguards for related party transactions — Approval granted as beneficial to creditors and stakeholders | Contracts — Asset purchase agreements — Related party transactions — Rifco APA involving related parties — Fiduciary out clause permitting superior offers — Expense reimbursement clause — Approval under section 36 of the CCAA — Whether the APA terms and process were reasonable and fair — Monitor's recommendation supported by creditors | Statutory interpretation — Companies' Creditors Arrangement Act — Stay of proceedings — Extension of stay period under section 11.02(2) of the CCAA — Good faith and due diligence by the applicant — Sufficient liquidity during extension period — Stability and breathing room for closing transaction — Stay extension granted | Evidence — Monitor's reports — Third Report relied upon for approval of Rifco APA — Monitor's opinion on fairness and benefits of the transaction — Reasonableness of sale process — Consultation with creditors — Monitor's good faith efforts to secure best price and maintain process integrity
CanLII | Jan 29, 2025
- keywords: Business associations — Joint ventures — Disclosure and consultation rights — Plaintiff sought interlocutory injunction to enforce rights as 50% owner of joint venture — Relief granted in part, including disclosure of records and consultation on new development — Whether plaintiff entitled to costs of injunction motion — Governing principles for awarding costs in interim injunctions involving joint ventures | Civil procedure — Costs — Partial indemnity costs — Plaintiff sought partial indemnity costs of $198,507.01 for injunction motion — Defendants argued costs should be payable in the cause due to divided success — Whether costs should be awarded immediately or reserved for trial — Section 131 of the Courts of Justice Act, R.S.O. 1990, c. C.43 | Civil procedure — Costs — Divided success — Plaintiff succeeded on production and consultation orders but failed on borrowing order — Court deducted costs related to unsuccessful relief and discovery preparation — Costs fixed at $81,074.85 on partial indemnity basis — Rule 57.03 requiring motion judge to fix costs where familiarity with issues informs assessment | Civil procedure — Costs — Timing of payment — Costs of injunction motion ordered payable in the cause rather than immediately — Court considered interim nature of injunction and potential for plaintiff to not succeed at trial — Governing principles for timing of cost awards in interlocutory motions
CanLII | Jan 28, 2025
- keywords: Contracts — Share Purchase Agreement — Costs — Disputes regarding the enforcement of agreed-upon procedures under a Share Purchase Agreement — Whether the agreed costs of $60,000 should be reduced due to the Applicants' conduct or positions taken during the application process — Rule 57.01(1) and s. 131 of the Courts of Justice Act applied to determine costs | Evidence — Independent Auditor — Scope of mandate — Lack of clarity regarding the Independent Auditor's ability to consider past practices in determining EBITDA — Whether this lack of clarity warranted a reduction in costs — Court found that this issue justified a partial reduction in costs | Civil procedure — Costs — Partial indemnity costs — Determination of appropriate quantum of costs under Rule 57.01(1) and s. 131 of the Courts of Justice Act — Court fixed costs at $45,000, reflecting the Applicants' partial success and conduct during the application process
CanLII | Jan 28, 2025
- keywords: Bankruptcy and insolvency — Receivership — Settlement approval — Approval and Vesting Order (AVO) — Receiver sought approval of a settlement involving the sale of charges and indebtedness at a discount — Whether the settlement is fair, reasonable, and consistent with insolvency principles — Test for settlement approval in receivership proceedings — Soundair Principles and Maple Bank factors applied | Securities — Receivership — Approval of transactions — Sale of secured charges and indebtedness — Receiver entered into a Loan Purchase Agreement (LPA) as part of a settlement — Whether the transaction benefits stakeholders and aligns with the Securities Act — Court approved the transaction as fair and reasonable | Civil procedure — Sealing orders — Confidentiality of economic terms — Receiver sought a sealing order for the unredacted Loan Purchase Agreement (LPA) to protect sensitive financial information — Test for sealing orders under Sherman Estate v. Donovan — Court found disclosure posed a serious risk to stakeholder recovery and granted a limited sealing order
CanLII | Jan 27, 2025
- keywords: Bankruptcy and insolvency — Stay of proceedings — Extension of Stay Period — Applicants sought an extension of the Stay Period under the Companies’ Creditors Arrangement Act (CCAA) until August 29, 2025 — No opposition to the motion — Should the Stay Period be extended? — Applicants demonstrated good faith, due diligence, and sufficient cash flow to fund proceedings — Extension of Stay Period granted under the CCAA | Bankruptcy and insolvency — Monitor’s report — Approval of Monitor’s activities — Applicants sought approval of the Sixty-first Report of the Monitor and the activities described therein — Report detailed progress, including CRA clearance certificates for winding-up Geothermal Asset Owners — Should the Monitor’s report and activities be approved? — Monitor’s activities deemed reasonable and appropriate — Report and activities approved | Bankruptcy and insolvency — Fees and disbursements — Approval of professional fees — Applicants sought approval of fees and disbursements of the Monitor, Monitor’s counsel, and Applicant’s counsel — Fees supported by Fee Affidavits attached to the Sixty-first Report — Should the requested fees and disbursements be approved? — Fees and disbursements found reasonable in the circumstances — Approval granted
CanLII | Jan 27, 2025
- keywords: Bankruptcy and insolvency — Recognition and enforcement of foreign judgments — Israeli court judgments — Applicant sought recognition and enforcement of Israeli judgments in Ontario — Respondents opposed recognition and sought to introduce expert evidence on Israeli law — Whether the respondents' expert report was relevant to the recognition and enforcement application — Governing principles for recognition and enforcement of foreign judgments in Canada | Civil procedure — Rule 39 leave motion — Late delivery of expert evidence — Respondents sought leave under Rule 39.02(2) to file an expert report on Israeli law after cross-examination of the applicant — Whether leave should be granted — Test for granting leave under Rule 39.02(2) — Respondents failed to satisfy the criteria for leave, including relevance, prejudice, and explanation for delay | Evidence — Relevance of expert evidence — Respondents sought to rely on an expert report on Israeli law to support their position in a recognition and enforcement application — Whether the expert report was relevant to the issues in the application — Court found the expert report was not relevant as the applicant did not rely on Israeli law or advance arguments requiring proof of Israeli law | Civil procedure — Prejudice and procedural fairness — Non-compensable prejudice — Respondents' late delivery of expert evidence caused adjournment of the hearing — Court found that granting leave would result in procedural unfairness and non-compensable prejudice to the applicant — Importance of adhering to procedural rules to prevent case-splitting and ensure fairness
CanLII | Jan 24, 2025
- keywords: Business associations — Beneficial ownership — Corporate governance — Oppression remedy — Applicants sought recognition of equal beneficial ownership in the primary operating company and rectification of the share register — Did the applicants establish their beneficial ownership and reasonable expectations? — Oral agreements and contributions rebutting corporate records — Ontario Business Corporations Act, s. 248 | Business associations — Oppression — Removal of directors — Applicants removed as directors and officers of the primary operating company — Did the removal constitute oppression, unfair prejudice, or unfair disregard of their interests? — Reasonable expectations in closely held family businesses — Ontario Business Corporations Act, s. 248 | Property — Buy-out of shares — Real estate holding companies — Respondent sought a buy-out of his shares due to the breakdown in the relationship between the parties — Was a buy-out the appropriate remedy? — Just and equitable separation of interests in closely held corporations — Ontario Business Corporations Act, ss. 207, 248 | Property — Oppression — Removal of director — Respondent removed as a director of real estate holding companies — Did the removal constitute oppression, unfair prejudice, or unfair disregard of his interests? — Reasonable expectations of participation in governance — Ontario Business Corporations Act, s. 248 | Property — Remedies — Buy-out protocol — Parties agreed to a protocol for the buy-out of shares in real estate holding companies — Was the protocol fair and equitable? — Complete separation of interests to avoid further litigation — Ontario Business Corporations Act, ss. 207, 248
CanLII | Jan 21, 2025
- keywords: Property — Constructive trust — Unjust enrichment — Good conscience — Arbitrator awarded a 50% constructive trust interest in property to the respondent — Did the Arbitrator err in law by awarding a constructive trust based on good conscience alone? — Constructive trust may be imposed where unjust enrichment is established or where good conscience requires — Arbitration Act, 1991, S.O. 1991, c. 17 | Property — Limitation periods — Discoverability — Real Property Limitations Act — Claim for constructive trust in property — Did the Arbitrator err in law by finding the claim was not statute-barred? — Discoverability principle applied — Claim accrued when the applicant took steps to exclude the respondent from property management — Real Property Limitations Act, S.O. 2002, c. 24 | Property — Issue estoppel — Abuse of process — Prior litigation — Ownership of property — Did the Arbitrator err in law by failing to find the claim was barred by issue estoppel or abuse of process? — Prior litigation did not address the issue of ownership between the parties — No basis for issue estoppel or abuse of process | Civil procedure — Leave to appeal — Arbitration — Section 45(1) of the Arbitration Act, 1991 — Applicant sought leave to appeal arbitral award — Should leave to appeal be granted? — Leave granted only for questions of law — No extricable error of law found — Arbitration Act, 1991, S.O. 1991, c. 17
CanLII | Jan 20, 2025
- keywords: Bankruptcy and insolvency — Appointment of receiver — Just or convenient standard — Applicant sought appointment of receiver over real property under s. 243(1) of the Bankruptcy and Insolvency Act and s. 101 of the Courts of Justice Act — Respondents argued enforcement should be delayed due to related litigation — Whether appointment of receiver was just or convenient — Framework for appointing receivers under the BIA and CJA | Property — Enforcement of mortgage — Broader financing arrangements — Respondents argued mortgage was part of broader financing involving third parties and should be consolidated with related litigation — No evidence applicant was aware of broader financing agreements — Whether enforcement of mortgage should be delayed or consolidated — Court declined to consolidate or delay enforcement | Civil procedure — Affidavit evidence — Translation requirements — Applicant’s affidavits challenged for non-compliance with Rule 4.06(8) of the Rules of Civil Procedure — Evidence provided that affidavits were interpreted line by line to applicant — Whether affidavits should be disregarded — Rule 4.06(8) and Rule 2.01(1) applied to uphold affidavits | Property — Receivership order — Terms of order — Concerns raised regarding service on first mortgagee and inclusion of chattels — Applicant agreed to amend draft order to address concerns — Whether terms of receivership order were appropriate — Court directed parties to finalize terms or seek case conference
CanLII | Jan 20, 2025
- keywords: Civil procedure — Security for costs — Rule 56.04 — Plaintiffs sought to post security for costs via a third-ranking mortgage on real property — Defendants opposed the proposed form of security — Should the court approve the third-ranking mortgage as an acceptable form of security? — Governing principle: security must provide a ready source of funds to satisfy costs — Third-ranking mortgage deemed inadequate — Plaintiffs ordered to post security in cash or letter of credit | Property — Real property — Security for costs — Plaintiffs proposed a third-ranking mortgage on property as security — Property located in Collingwood, Ontario — Existing mortgages and high interest rates raised concerns about adequacy of security — Should the proposed third-ranking mortgage be accepted as security? — Court found insufficient evidence of net equity exceeding $500,000 — Third-ranking mortgage rejected as unreliable security | Evidence — Adequacy of evidence — Plaintiffs failed to provide sworn affidavits or current appraisals to support property valuation — Letters of opinion from real estate agents and outdated appraisals submitted — Did the Plaintiffs provide sufficient evidence to establish the adequacy of the proposed security? — Court held that unsworn and outdated evidence was insufficient — Plaintiffs failed to meet evidentiary burden
CanLII | Jan 17, 2025
- keywords: Bankruptcy and insolvency — Companies' Creditors Arrangement Act — Asset sales — Related party transactions — Jurisdiction under section 36 of the CCAA — Statutory and Soundair Principles — Did the court have jurisdiction to approve the sale of assets, including related party transactions? — Section 36(3) and (4) of the CCAA govern approval of asset sales, ensuring fairness and stakeholder benefit | Bankruptcy and insolvency — Remaining Securitized Assets Order — Deadlines for asset retrieval — Sale of unretrieved assets — Financial constraints of debtor — Should the court approve deadlines for retrieval and authorize sale of unretrieved assets? — Section 11 of the CCAA provides discretion to impose deadlines and authorize sales to advance proceedings | Bankruptcy and insolvency — Distribution of sale proceeds — Secured creditors — Lending Syndicate — Should the court approve the distribution of net sale proceeds to creditors? — Distribution orders ensure proceeds are allocated to entitled parties in accordance with priority rules under the CCAA | Bankruptcy and insolvency — Sealing orders — Commercial sensitivity — Monitor’s Confidential Appendix — Should a sealing order be granted to protect commercially sensitive information? — Section 137(2) of the Courts of Justice Act and Sierra Club principles justify sealing orders to protect integrity of future sales | Bankruptcy and insolvency — Cross-border proceedings — Reservation of rights — Mitsubishi’s opposition — Should the court reject Mitsubishi’s request to reserve rights regarding asset sale approval? — Reservation of rights undermines finality and efficiency of CCAA proceedings; objections must be raised at the approval hearing
CanLII | Jan 15, 2025
- keywords: Bankruptcy and insolvency — Trusteeship — Approval of settlement agreements — Trustee sought court approval of a Settlement and Mutual Release Agreement regarding syndicated mortgage loans and related projects — Should the court approve the Settlement Agreement and authorize the Trustee to perform it? — Settlement Agreement approved as it provided the best possible recovery for investors under the circumstances | Contracts — Settlement agreements — Approval by the court — Trustee entered into a Settlement and Mutual Release Agreement with other parties — Should the court approve the Settlement Agreement? — Court approved the Settlement Agreement, finding it appropriate and in the best interests of the investors | Securities — Syndicated mortgage loans — Investor recovery — Trustee proposed a distribution of funds to investors under the Settlement Agreement — Does the Settlement Agreement provide the best possible recovery for investors? — Settlement Agreement approved as it provided certainty and closure for investors, with no viable alternatives for better recovery
CanLII | Jan 14, 2025
- keywords: Bankruptcy and insolvency — Trustee’s reports and activities — Approval of fees and disbursements — Trustee sought approval of the 30th and 31st Reports and related activities — Trustee’s fees and disbursements for October 16, 2022, to November 30, 2024, reviewed — Should the Trustee’s reports and fees be approved? — Trustee’s actions consistent with mandate and reasonable in the circumstances — Approval granted | Securities — Syndicated mortgage loans — Distribution of recovered funds — Trustee sought authorization to distribute Fortress Holdback and Future Fortress Amounts to Investors — Exclusion of Fortress Real Developments Inc. and its principals due to prior payments and investor losses — Should the distribution plan be approved? — Distribution plan deemed equitable and appropriate — Authorization granted | Civil procedure — Sealing orders — Confidential exhibits — Trustee requested sealing of exhibits to Fee Affidavits — Exhibits contained commercially sensitive and privileged information — Should a sealing order be granted? — Test from Sierra Club and Sherman Estate satisfied — Sealing order necessary to prevent serious risk to commercial interests — Order granted
CanLII | Jan 14, 2025
- keywords: Practice and procedure — Sanction orders — Disclosure
CanLII | Dec 23, 2024
- keywords: Personal injuries — Commercial law — Practice — Class actions
CanLII | Dec 23, 2024
- keywords: Personal injuries — Commercial law — Practice — Class actions
CanLII | Dec 23, 2024
- keywords: Real property — Commercial law — Receivers — Sale process
CanLII | Dec 23, 2024
- keywords: Debtor and creditor — Receivers — Duties of receiver — Sale process
CanLII | Dec 18, 2024
- keywords: Labour law — Commercial law — Contract law — Interpretation
CanLII | Dec 16, 2024
- keywords: Bankruptcy and insolvency — Stay of proceedings — Courts of Justice Act, R.S.O. 1990, c. C.43, s. 137(2)
CanLII | Dec 14, 2024
- keywords: Corporations — Arrangements and compromises — Sale of assets
CanLII | Dec 13, 2024
- keywords: Commercial law — Practice — Trials — Corporations — Shares
CanLII | Dec 13, 2024
- keywords: Practice and procedure — Consolidation of actions — Jurisdiction — Factors in listing
CanLII | Dec 12, 2024
- keywords: Civil procedure — Severance of Claims
CanLII | Dec 12, 2024
- keywords: Practice — Judgments and orders — Enforcement — Mareva injunctions
CanLII | Dec 10, 2024
- keywords: Injunctions — Interlocutory injunctions
CanLII | Dec 10, 2024
- keywords: Injunction — Interlocutory injunction
CanLII | Dec 10, 2024
- keywords: Production of documents — Duty to disclose — Test for production
CanLII | Dec 9, 2024
- keywords: Commercial law — Corporations — Arrangements and compromises
CanLII | Dec 6, 2024
- keywords: Corporations — Sports corporations — Oppression — Reasonable expectations — Remedies
CanLII | Dec 4, 2024
- keywords: Civil procedure — Motions to strike — No reasonable cause of action — Rules of Civil Procedure — Rule 60.12
CanLII | Dec 4, 2024
- keywords: Corporate law — Companies' Creditors Arrangement Act | Trusts — Constructive trust — Unjust enrichment
CanLII | Dec 2, 2024
- keywords: Practice — Discovery of documents — Privilege — Litigation privilege — Canada Evidence Act
CanLII | Nov 29, 2024
- keywords: Real property — Bankruptcy and insolvency — Construction law — Priorities — Construction Act — R.S.O. 1990, c. C.30, s. 78, 243 — Fraudulent Conveyances Act — R.S.O. 1990, c. F.29 — Assignments and Preferences Act — R.S.O. 1990, c. A.31, s. 70 — Courts of Justice Act — R.S.O. 1990, c. C.43, s. 101 — R.S.O. 1990, c. C.30, s. 78(5), (6).
CanLII | Nov 28, 2024
- keywords: Contempt — Sentencing | Civil procedure — Costs — Solicitor and client costs
CanLII | Nov 28, 2024
- keywords: Corporate law — Commercial law — Practice — Pleadings — Limitation periods
CanLII | Nov 22, 2024
- keywords: Construction law — Builders’ liens — Priorities — Construction Act, s. 78(1), (2), (3), (4), (5), (6), 78(2), (8).
CanLII | Nov 21, 2024
- keywords: Civil procedure — Motions to settle — Notice of motion to remove counsel | Practice — Services — Substituted service
CanLII | Nov 18, 2024
- keywords: Bankruptcy and insolvency — Receivers — Appointments — Sale of assets
CanLII | Nov 18, 2024
- keywords: Contract law — Interpretation — Real property — Mortgages — Discharge — Courts of Justice Act — R.S.O. 1990, c. C.43, s. 101 — Mortgage Brokerage, Lenders and Administrators Act, 2006, S.O. 2006, c. 29, s. 34.
CanLII | Nov 15, 2024
- keywords: Practice — Motions — Judgments and orders — Res judicata — Issue estoppel
CanLII | Nov 14, 2024
- keywords: Construction law — Contract law — Interpretation — Arbitration
CanLII | Nov 14, 2024
- keywords: Practice — undertaking — Deemed undertaking — Rule 30.01(8)
CanLII | Nov 11, 2024
- keywords: Real property — Lis pendens — Cancellation — Fraud — Undue Influence
CanLII | Nov 11, 2024
- keywords: Commercial law — Corporations — Arrangements and compromises
CanLII | Nov 7, 2024
- keywords: Commercial law — Practice — Class actions
CanLII | Nov 7, 2024
- keywords: Bankruptcy and insolvency — Companies’ Creditors Arrangement Act (CCAA) — Stay of proceedings — Third-party guarantors — Restructuring process — Applicants sought to extend the stay of proceedings to a third-party guarantor (DAK) to prevent disruption to the sale and investment solicitation process (SISP) — Does the court have jurisdiction under section 11 of the CCAA to extend the stay to third-party guarantors? — Broad jurisdiction under section 11 to grant stays in appropriate circumstances | Contracts — Guarantees — Share Purchase Agreement (SPA) — Breach of contract — Arbitration — Canopy Growth Corporation alleged breaches of a Share Purchase Agreement and sought to proceed with arbitration against a third-party guarantor (DAK) — Does section 11.04 of the CCAA prohibit extending a stay to guarantors? — Section 11.04 clarifies the scope of section 11.02 but does not limit the court’s general powers under section 11 | Statutory interpretation — Companies’ Creditors Arrangement Act (CCAA) — Section 11.04 — Interaction with section 11 — Interpretation of statutory provisions — Does section 11.04 of the CCAA prohibit stays of proceedings against guarantors? — Section 11.04 does not impose a blanket prohibition but clarifies the scope of section 11.02 — Court retains discretion under section 11 to extend stays in appropriate cases | Civil procedure — Stays of proceedings — Third-party litigation — Single-proceeding model — Applicants argued that allowing arbitration against a third-party guarantor (DAK) would disrupt the restructuring process — Should the stay of proceedings be extended to DAK? — Court extended the stay to DAK to prevent distraction and ensure the success of the restructuring process
CanLII | Nov 6, 2024
- keywords: Business associations — Oppression remedy — Dysfunctional business relationship — Co-founders and equal shareholders in a real estate business — Allegations of misappropriation of funds and exclusion from management — Appointment of a monitor to oversee financial and operational affairs — Whether the appointment of a monitor is just and convenient under the Courts of Justice Act and Business Corporations Act — Balancing costs, disruption, and necessity — Legal framework for court-appointed officers in corporate disputes | Securities — Corporate governance — Financial reporting — Shareholder’s statutory right to audited financial statements — Business operating on “Notice to Reader” basis — Appointment of an auditor to prepare audited financial statements for 2021, 2022, and 2023 — Whether the cost of audits can exempt a corporation from its statutory duty — Sections 153 and 154 of the Business Corporations Act — Case law confirming mandatory nature of audited financial statements | Access to information — Shareholder rights — Allegations of selective and untimely provision of financial information — Appointment of a monitor to ensure transparency and equitable access to financial and operational data — Whether the appointment of a monitor is necessary to address informational imbalances — Role of monitors in facilitating compliance with statutory obligations under the Business Corporations Act | Civil procedure — Court-appointed officers — Legal tests for appointing monitors, auditors, and inspectors — Distinction between monitors, inspectors, and investigative receivers — Thresholds for prima facie case and irreparable harm — Balancing convenience and necessity — Application of section 101 of the Courts of Justice Act and section 161 of the Business Corporations Act — Tailoring remedies to specific corporate disputes
CanLII | Nov 6, 2024
- keywords: Broadcasting — Broadcasting contracts | Interlocutory injunctions
CanLII | Nov 5, 2024
- keywords: Commercial law — Corporations — Arrangements and compromises — Practice — Class actions
CanLII | Nov 4, 2024
- keywords: Commercial law — Contract law — Interpretation
CanLII | Nov 4, 2024
- keywords: Bankruptcy — Creditors and debtors — Sale of assets
CanLII | Nov 1, 2024
- keywords: Torts — Negligence — Duty of care — Pure economic loss
CanLII | Oct 29, 2024
- keywords: Bankruptcy and insolvency — Practice and procedure — Appeals — Motions — 114row — Bankruptcy and Insolvency Act, s. 37, s. 163, appeal dismissed.
CanLII | Oct 25, 2024
- keywords: Commercial law — Practice — Stay of proceedings
CanLII | Oct 22, 2024
- keywords: Civil procedure — Leave to amend pleadings — Limitation periods — Defendants sought leave to amend their Statement of Defence to add a counterclaim and new parties — Whether the proposed counterclaim was statute-barred under the Limitations Act or the Copyright Act — Rule 26.01 presumption of prejudice applied — Motion dismissed due to prejudice and delay — Rules of Civil Procedure, R.R.O. 1990, Reg. 194, Rules 26.01, 5.04(2) | Contracts — Breach of contract — Service agreements — Defendants alleged breach of Service Agreement by plaintiffs, including unlawful transfer of intellectual property — Whether the breach of contract claim was discoverable within the limitation period — Discoverability principle under Limitations Act applied — Claim found to have been discoverable in 2019 | Statutory interpretation — Limitation periods — Discoverability — Whether the two-year limitation period under the Limitations Act or the three-year limitation period under the Copyright Act applied to the counterclaim — Court held that the two-year limitation period applied as the claims were rooted in breach of contract — Limitations Act, 2002, S.O. 2002, c. 24, Sched. B; Copyright Act, R.S.C. 1985, c. C-42 | Intellectual property — Copyright infringement — Limitation periods — Defendants alleged copyright infringement and breach of the Copyright Act — Whether the claim was derivative of a breach of the Copyright Act or a breach of contract — Court found the claims flowed from breach of contract, not copyright infringement — Copyright Act, R.S.C. 1985, c. C-42, s. 43.1 | Civil procedure — Costs — Scale of costs — Successful party presumptively entitled to costs — Court awarded costs on a partial indemnity scale of $8500 to the plaintiffs — Costs fixed under Rule 57.03 — Courts of Justice Act, R.S.O. 1990, c. C.43, s. 131
CanLII | Oct 21, 2024
- keywords: Companies — Wind-down, Liquidity
CanLII | Oct 19, 2024
- keywords: Receivership — Sale of assets — Courts of Justice Act, s. 137(2)
CanLII | Oct 15, 2024
- keywords: Conflict of laws — Foreign judgments — Enforcement — Jurisdiction
CanLII | Oct 8, 2024
- keywords: Bankruptcy and insolvency — Reverse vesting orders (RVOs) — Approval of RVO for AgMedica transaction — Extraordinary relief — Preservation of cannabis licenses — Going-concern outcome — Secured creditors’ priority over deemed trust claims — Does the RVO satisfy the Harte Gold factors? — Framework for approving RVOs under the Companies’ Creditors Arrangement Act (CCAA) | Taxation — Deemed trusts — Source deductions — Crown’s priority claims under the Income Tax Act — Subordination to DIP lender and mortgagee claims — Does the CCAA allow deemed trust claims to be overridden by super-priority charges? — Application of Canada North Group Inc. principles to priority disputes | Statutory interpretation — Companies’ Creditors Arrangement Act — Section 6(3) and deemed trusts — Distinction between plans of arrangement and RVOs — Does the CCAA permit vesting out of source deduction claims in non-plan transactions? — Interpretation of statutory priorities under insolvency legislation | Bankruptcy and insolvency — Chief Restructuring Officer (CRO) — Appointment of CRO for GreenSeal business — Secured creditors’ control over operations — Risk to ongoing negotiations — Balancing creditor interests and business viability — Should the CRO be appointed to oversee GreenSeal’s restructuring? — Criteria for CRO appointments in insolvency proceedings | Civil procedure — Stay of proceedings — Extension of stay under the CCAA — Facilitation of AgMedica transaction and GreenSeal negotiations — Precarious financial position of GreenSeal — Should the stay be extended to allow for restructuring efforts? — Judicial discretion in granting stay extensions
CanLII | Oct 7, 2024
- keywords: Contract law — Real property — Mortgages — Disclosure — Civil procedure — Rules 20.04(2) and (2.1), 20.04(2.1)
CanLII | Oct 4, 2024
- keywords: Commercial law — Receivers — Sale of assets
CanLII | Oct 2, 2024
- keywords: Corporations — Arrangements and compromises — Business Corporations Act, s. 182
CanLII | Oct 1, 2024
- keywords: Judgments and orders — Enforcement — Interpretation
CanLII | Oct 1, 2024
- keywords: Commercial law — Corporations — Arrangements and compromises — Amount involved
CanLII | Sep 30, 2024
- keywords: Commercial law — Contract law — Interpretation
CanLII | Sep 27, 2024
- keywords: Companies — Winding-up — Canada Business Corporations Act
CanLII | Sep 26, 2024
- keywords: Commercial law — Corporations — Arrangements and compromises
CanLII | Sep 25, 2024
- keywords: Civil procedure — Vexatious litigant — Mareva Injunction — Setting aside — conseiller order
CanLII | Sep 25, 2024
- keywords: Stay — Application to lift — Orders — Abuse of process — Issue estoppel
CanLII | Sep 24, 2024
- keywords: Corporations — Arrangements and compromises — Canada Business Corporations Act
CanLII | Sep 24, 2024
- keywords: Bankruptcy — Receivership — Third party production — Production of documents
CanLII | Sep 23, 2024
- keywords: Contract law — Insurance — Interpretation — Exclusion clauses — Employment Standards Act
CanLII | Sep 20, 2024
- keywords: Civil litigation — Rules of Civil Procedure — Costs
CanLII | Sep 20, 2024
- keywords: Commercial law — Corporations — Shareholders — Meetings — Directors and officers
CanLII | Sep 17, 2024
- keywords: Injunctions — Interlocutory injunctions — Commercial Arbitration Act, S.O. 2017, c. 2, s. 5.
CanLII | Sep 12, 2024
- keywords: Business associations — Oppression remedy — Shareholder disputes — Breakdown of shareholder relationship — Defendant appropriated plaintiff’s shares without compensation — Did the defendant’s actions constitute oppressive conduct under section 241(2) of the CBCA? — Oppression remedy requires rectification of unfairly prejudicial conduct — Canada Business Corporations Act, s. 241(2) | Securities — Shareholder rights — Mandatory buy-out provisions — Validity of buy-out under Shareholders Agreement — Defendant failed to meet preconditions for mandatory buy-out — Was the purported exercise of the buy-out provision valid? — Mandatory buy-out invalid due to non-compliance with procedural requirements | Contracts — Shareholders Agreement — Breach of contractual provisions — Intellectual property and non-competition clauses — Did the defendant breach the Shareholders Agreement by disclosing intellectual property to a new entity? — Breach of Article 4.2 requires evidence of unauthorized disclosure of trade secrets | Securities — Personal liability — Oppression remedy — Defendant’s personal benefit from oppressive conduct — Should the defendant be personally liable for the oppressive conduct and required to purchase the plaintiff’s shares? — Personal liability imposed where director benefits from oppressive actions | Civil procedure — Remedies — Partial summary judgment — Oppression remedy and breach of contract claims — What is the appropriate remedy for the oppressive conduct and any breach of the Shareholders Agreement? — Partial summary judgment granted for liability; trial required to determine compensation and damages
CanLII | Sep 6, 2024
- keywords: Costs — Substantial Indemnity
CanLII | Sep 5, 2024
- keywords: Business associations — Joint ventures — Governance disputes — Management authority — Plaintiff seeking interlocutory injunctions to enforce rights as 50% owner of a joint venture — Dispute over consultation and consent for development, borrowing, and disclosure — Whether governance structure under joint venture agreement and subsequent agreements was breached — Test for interlocutory injunctions in joint venture disputes — RJR-MacDonald test applied to business associations | Access to information — Disclosure obligations — Joint venture agreement requiring production of books and records — Plaintiff seeking interlocutory injunction to compel production of information and records — Whether defendant complied with disclosure obligations — Offer to allow inspection of records at defendant’s office deemed insufficient — Strong prima facie case for production of existing records — Governing rule: Section 5.02 of the Joint Venture Agreement | Contracts — Future development — Plaintiff seeking interlocutory injunction to prevent new development without consent — Dispute over interpretation of 2012 Agreement requiring consent for “future development” — Whether agreement applies to development of existing properties — Strong prima facie case established for consent requirement for new development — Governing rule: Interpretation of contractual terms in light of factual matrix | Contracts — Borrowing authority — Plaintiff seeking interlocutory injunction to prevent further borrowing without consent — No express requirement for consent to borrowing in joint venture agreement — Oppression claims not meeting strong prima facie case standard — Balance of convenience favouring defendant’s management authority — Governing rule: Contractual authority for financing decisions | Civil procedure — Injunctions — Mandatory interlocutory injunctions — Standard of proof — Higher “strong prima facie case” standard applied to mandatory orders — Whether plaintiff established strong likelihood of success at trial — Balance of convenience and irreparable harm considerations — Governing rule: RJR-MacDonald test and principles from CBC v. Canada
CanLII | Sep 5, 2024
- keywords: gaining units — Companies' Creditors Arrangement Act
CanLII | Sep 3, 2024
- keywords: Contract law — Interpretation — Indemnity costs — Costs — Partial indemnity costs
CanLII | Aug 26, 2024
- keywords: Civil procedure — Motions — Timing and proportionality — Plaintiff sought further production and discovery on allegations of misconduct and cover-up by defendants — Defendants opposed on grounds of irrelevance, lack of evidence, and trial disruption — Should the court grant relief given the imminent trial and six-year litigation history? — Rule 29.2.03 proportionality factors and Rule 30.06 governing production and discovery requests | Evidence — Relevance — Discovery — Plaintiff alleged defendants withheld documents related to misconduct allegations — No evidence provided that requested documents existed — Does speculation justify further production or discovery? — Court applied principles from Maalouf v. Bayer Inc. and Rothmans Inc. to deny motion | Estates and trusts — Amendments to pleadings — Allegations of misconduct — Plaintiff sought to amend Statement of Claim to include new allegations of sexual misconduct and cover-up by trustees — Defendants argued amendments were untimely, lacked particulars, and fundamentally altered the scope of the action — Should leave to amend be granted? — Rule 26.01 and Rule 25.06(8) requirements for amendments and particulars
CanLII | Aug 21, 2024
- keywords: Construction law — Builders’ liens — Priorities — Construction Act, ss. 14 and 78
CanLII | Aug 20, 2024
- keywords: Bankruptcy and insolvency — Receivers — Claims process — Civil procedure — Standard of review — Companies' Creditors Arrangement Act — R.S.C. 1985, c. C-36 — Bankruptcy and Insolvency Act — R.S.C., 1985, c. B-3, s. 135 — Ontario Securities Commission v. Bridging Finance INC., 2024 — Rule 62.02 — Rules of Civil Procedure, R.R.O. 1990, Reg. 194, Rule 62.02.
CanLII | Aug 20, 2024
- keywords: Bankruptcy and insolvency — CBCA arrangements — Stay of proceedings — Interim Order — Reverse vesting order (RVO) — Should the court approve the Interim Order under s. 192(4) of the CBCA, including the RVO structure and voting mechanics? — Broad discretion under s. 192(4) of the CBCA to approve arrangements in financial distress — Fairness and reasonableness to be determined at the Final Approval Hearing | Contracts — Satellite service agreements — Stay of proceedings — Net Profit Payments — Should the Preliminary Interim Order be varied to require full contractual payments to Satellite Providers during the Stay period? — Court’s discretion to impose terms on critical suppliers under CBCA — No material non-disclosure found to justify varying the Stay | Business associations — Corporate restructuring — CBCA Plan of Arrangement — Procedural mechanics for voting — Should the Satellite Providers be entitled to vote on the CBCA Plan as unsecured creditors? — Voting rights limited to Secured Debtholders — Satellite Providers’ objections to be addressed at the Final Approval Hearing | Civil procedure — Voting mechanics — Class of creditors — Should unsecured creditors, including Satellite Providers, be allowed to vote on the CBCA Plan? — Court determined voting unnecessary for unsecured creditors — Opportunity to present objections at the Final Approval Hearing | Bankruptcy and insolvency — Stay of proceedings — Application for Bankruptcy Order — Should the Stay be lifted to allow Hughes to issue an Application for a Bankruptcy Order? — Request adjourned to Final Approval Hearing — Court encouraged parties to resolve concerns regarding potential preference or transaction at undervalue
CanLII | Aug 19, 2024
- keywords: Civil procedure — Preservation of property — Interim preservation of property | Civil procedure — Costs — Substantial indemnity costs
CanLII | Aug 13, 2024
- keywords: Commercial law — Practice — Pre-trial motions
CanLII | Aug 12, 2024
- keywords: Receivership — Construction law
CanLII | Aug 12, 2024
- keywords: Bankruptcy and insolvency — Companies' Creditors Arrangement Act — Approval and Reverse Vesting Order (RVO) — Third-party releases — Court approval of RVO under section 11 and section 36(3) of the CCAA — Whether RVO structure satisfies legal requirements — Justification for RVO to preserve debtor's operations and maximize stakeholder value — Framework for granting RVOs and third-party releases — Harte Gold (Re), 2022 ONSC 653 — Lydian International Limited (Re), 2020 ONSC 4006 | Natural resources — Mining permits and licenses — Preservation of permits and licenses under RVO structure — Whether RVO necessary to maintain regulatory approvals for mining operations — Impact of RVO on ongoing operations of debtor in highly regulated mining sector — Avoidance of delays and costs associated with transferring permits — Economic benefits of preserving mining rights and licenses | Taxation — Tax attributes — Preservation of $650 million in tax attributes under RVO structure — Whether RVO necessary to maintain tax attributes for prospective purchaser — Impact of tax attributes on transaction value — Avoidance of adverse tax consequences in alternative transaction structures — Court's jurisdiction under section 11 of the CCAA to approve RVO preserving tax benefits
CanLII | Aug 12, 2024
- keywords: Corporations — Arrangements and compromises — Preservation orders — Business Corporations Act
CanLII | Aug 9, 2024
- keywords: Commercial law — Corporations — Directors and officers
CanLII | Jul 31, 2024
- keywords: Bankruptcy and insolvency — Receivers — Powers — Standard of review
CanLII | Jul 22, 2024
- keywords: Debtor and creditor — Receivers — Appointments
CanLII | Jul 19, 2024
- keywords: Bankruptcy and insolvency — Administration orders — Conditional discharge
CanLII | Jul 19, 2024
- keywords: Companies — Winding-up — All shareholders must be opposed — Reasonable expectations — Remedies — Business Corporations Act
CanLII | Jul 19, 2024
- keywords: Bankruptcy — Receivers — Appointments — Bankruptcy and Insolvency Act, s. 243(1)
CanLII | Jul 17, 2024
- keywords: Bankruptcy and insolvency — Appointment of receiver — Just or convenient standard — Applicant sought appointment of receiver under section 243 of the BIA and section 101 of the CJA — Respondents opposed appointment, citing lack of urgency and potential conflict of interest — Is it just or convenient to appoint a receiver? — Holistic assessment of factors governing appointment of receivers, including irreparable harm, property preservation, and contractual rights | Property — Secured creditor rights — Vendor takeback mortgages — Applicant held first-priority mortgages over vacant real property — Respondents defaulted on payment obligations — Does the Applicant’s security sufficiently protect its rights without a receiver? — Court found no evidence of property depreciation or waste, and Applicant’s security interest remained intact | Bankruptcy and insolvency — Receiver conflict of interest — Proposed Receiver also appointed over adjacent lands — Respondents argued conflict due to overlapping interests in easements and restrictive covenants — Should the proposed Receiver be disqualified? — Court held that the same firm should not act as receiver for both properties due to potential conflicts | Civil procedure — Affidavit evidence — Procedural deficiencies — Respondents’ affidavit alleged to be improperly interpreted and prepared by counsel — Applicant sought to strike affidavit or accord it no weight — Should the affidavit be struck? — Court declined to rule on affidavit’s admissibility but noted procedural concerns
CanLII | Jul 16, 2024
- keywords: Commercial law — Practice — Interlocutory motions
CanLII | Jul 16, 2024
- keywords: Bankruptcy and insolvency — Sale of assets — Preferences — Contract law — Interpretation — Bankruptcy and Insolvency Act — R.S.C., 1985, c. B-3, s. 95 — Personal Property Security Act — R.S.O. 1990, c. P.10
CanLII | Jul 16, 2024
- keywords: Bankruptcy and insolvency — Provable claims — Liability of corporate entity — Fiduciary relationships — Bankruptcy and Insolvency Act — R.S.C. 1985, c. B-3, s. 178(1), s. 62(2.1), 68.
CanLII | Jul 10, 2024
- keywords: Practice and procedure — Contempt Motion — Stay of proceedings
CanLII | Jul 10, 2024
- keywords: Contract law — Taxation — Debtor-Creditor — Companies’ Creditors Arrangement Act — R.S.C. 1985, c. C-36
CanLII | Jul 10, 2024
- keywords: Commercial law — Contract law — Breach — Torts — Fraudulent misrepresentation
CanLII | Jul 9, 2024
- keywords: Construction law — Jurisdiction of the Court
CanLII | Jul 5, 2024
- keywords: Bankruptcy and insolvency — Companies' Creditors Arrangement Act (CCAA) — Security for costs — Claimant seeking damages and equitable relief in a CCAA proceeding — Whether Rule 56.01 of the Rules of Civil Procedure applies to claims within a CCAA proceeding — Supervising court's broad discretion under s. 11 of the CCAA — Application of Rule 56.01 to CCAA claims affirmed | Civil procedure — Security for costs — Non-residency and insufficient assets — Claimant ordinarily resident outside Ontario and balance-sheet insolvent — Whether security for costs should be ordered — Balancing fairness to litigants and access to justice — Rule 56.01(1)(a), (d) applied | Statutory interpretation — Rule 56.01 of the Rules of Civil Procedure — Application to CCAA claims — Whether a party against whom no direct relief is sought can be entitled to security for costs — Broad interpretation of "defendant" and "respondent" under Rule 56.01 — Rule 1.04(1) and (2) applied to ensure just and expeditious determination | Civil procedure — Quantum of security for costs — Determination of appropriate amount — Costs incurred and anticipated in expedited CCAA proceedings — Balancing protection for responding parties with fairness to claimant — Security ordered in amounts of $350,000 and $147,000 for respective parties — Rule 57.01 factors considered
CanLII | Jun 30, 2024
- keywords: Debtor-Creditor — Receivership — Bankruptcy and Insolvency Act
CanLII | Jun 28, 2024
- keywords: Bankruptcy — Priorities — Discharge — Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3, s. 243 — Courts of Justice Act, R.S.O. 1990, c. C.43, s. 101 — Land Titles Act, R.S.O. 1990, c. L.5, s. 78(4).
CanLII | Jun 26, 2024
- keywords: Arbitration — Awards — Enforcement | Contract law — Sale process
CanLII | Jun 24, 2024
- keywords: Business Corporations — Arrangements and compromises — Practice and procedure — Stay of proceedings
CanLII | Jun 21, 2024
- keywords: Debtor and creditor — Companies' Creditors Arrangement Act — R.S.C. 1985, c. C-36 — Canada Business Corporations Act
CanLII | Jun 20, 2024
- keywords: Civil procedure — Costs — Substantial indemnity costs — Plaintiffs entirely successful at trial — Defendants’ conduct, including unsubstantiated allegations of fraud and delayed disclosure, justified elevated costs — Should substantial indemnity costs be awarded, and what is the appropriate quantum? — Court awarded $1 million in substantial indemnity costs — Courts of Justice Act, R.S.O. 1990, c. C.43, s. 131; Rules of Civil Procedure, R.R.O. 1990, Reg. 194, Rule 57.01 | Civil procedure — Costs — Discounting costs — Defendants argued for reduced costs based on reasonable expectations and plaintiffs’ conduct — Plaintiffs’ success not mixed; no exceptional justification for discounting costs — Should plaintiffs’ costs be reduced? — Court declined to discount costs, finding $1 million award fair and reasonable | Evidence — Costs against non-parties — Plaintiffs sought costs against defendants’ principal and unidentified third-party funder — Allegations of abuse of process and fraud on the court not proven — Should costs be awarded against non-parties? — Court declined to pierce corporate veil or award costs against unidentified funder | Business associations — Limited Partnerships — Use of partnership funds — Plaintiffs sought direction prohibiting defendants from using Limited Partnership funds to pay costs — Should the court issue such a direction? — Court prohibited use of Limited Partnership funds to satisfy costs award, ensuring compliance with partnership agreements
CanLII | Jun 19, 2024
- keywords: Bankruptcy and insolvency — Foreign judgments — Recognition orders
CanLII | Jun 19, 2024
- keywords: Commercial law — Corporations — Arrangements and compromises
CanLII | Jun 18, 2024
- keywords: Business associations — Shareholder disputes — Oppression remedy — Appointed Sales Officer tasked with selling corporate assets — Shareholder deadlock leading to dissolution process for group benefits and life insurance brokers — Whether contested insurance policies are part of corporate property to be sold — Corporate governance and equitable remedies governing sale in disputes — Inclusion of transferred policies necessary under December 30, 2022 Appointment Order | Commerce and industry — Sale of business assets under judicial appointment — Dispute over transferred insurance policies — Ownership and inclusion of insurance policies transferred between corporate entities in ongoing litigation — PG Originating Policies improperly transferred by action of shareholder — Policies forming part of corporate valuation in sale process — Effect of client-initiated transfers considered on included assets — Appointment Order governs sale scope | Obligations — Fiduciary obligations — Shareholder conduct — Allegations of improper transfer of corporate assets — Whether a shareholder's unilateral actions breached duties under corporate agreements and court orders — Shareholder improperly excluded other stakeholders in decisions affecting insurance business operations — Conduct undermined equitable sale process under court order — Fiduciary duties in dissolution context | Civil procedure — Commercial List proceedings — Written record proceedings — Whether motion required trial due to factual disputes — Court jurisdiction to decide ownership and inclusion issues under r. 14.05 — No trial of an issue needed when adequate written record exists and contemporaneous evidence is available — Hryniak principles applied for fairness in efficiency of summary processes
CanLII | Jun 14, 2024
- keywords: Civil procedure — Pierringer agreement — Conditions
CanLII | Jun 13, 2024
- keywords: Bankruptcy and insolvency — Stay of proceedings — Corporations — Winding-up — Proposed Monitor
CanLII | Jun 13, 2024
- keywords: Bankruptcy — Receivers — Claims process — Disputed assets
CanLII | Jun 12, 2024
- keywords: Bankruptcy and insolvency — Court-appointed receiver — Approval of orders — Reconfiguration Plan, Letters of Credit Arrangement, Holdback Release, and SISP — Should the proposed orders maximize value for stakeholders and comply with the Bankruptcy and Insolvency Act? — Court’s discretion under s. 243(1)(c) of the Bankruptcy and Insolvency Act to approve processes and orders in insolvency proceedings | Construction — Reconfiguration Plan — Condominium project — Mid-construction reconfiguration of upper-level units to increase salability and maximize value — Should the reconfiguration of units and issuance of letters of credit for municipal requirements be approved? — Receiver’s mandate to maximize returns and ensure project viability | Construction — Holdback Release Order — Statutory holdbacks — Payment of holdbacks to subcontractors to facilitate new contracts and avoid construction delays — Should the release of holdback amounts be authorized? — Provincial Lien Legislation and conditions for holdback payments | Sale — Sale and Investment Solicitation Process (SISP) — Minimum Bid Threshold — Approval of SISP to solicit bids for a mid-construction condominium project — Should the SISP, including a $1.2 billion Minimum Bid Threshold, be approved despite objections? — Soundair Principles governing fairness, transparency, and efficacy of sales processes | Contracts — Subordinate creditors — Objections to SISP — Allegations of unfairness and breach of contractual obligations under Priority Agreements — Do objections from subordinate creditors warrant rejection or modification of the SISP? — Interpretation of contractual obligations under Priority Agreements and creditor hierarchy
CanLII | Jun 11, 2024
- keywords: Commercial law — Practice — Class actions — Stay of proceedings
CanLII | Jun 6, 2024
- keywords: Bankruptcy and insolvency — Corporate restructuring — Recapitalization Transaction — Arrangement under s. 192 of the CBCA — Preliminary Interim Order — Stay of Proceedings — Financial distress — Liquidity issues — Debt restructuring — Does the proposed Recapitalization Transaction meet the requirements of s. 192 of the CBCA? — Framework for corporate restructuring under the CBCA | Business associations — Corporate arrangements — Definition of “arrangement” under s. 192(1) of the CBCA — Exchange of secured debt for equity — Cancellation of existing equity interests — Impracticability of using other CBCA provisions — Does the proposed transaction constitute an “arrangement” under the CBCA? — Broad interpretation of “arrangement” in corporate restructuring | Civil procedure — Interim orders — Stay of Proceedings — Ex parte motion — Preservation of status quo — Prevention of creditor actions — Was the Preliminary Interim Order, including the Stay, appropriately granted? — Jurisdiction to grant stays under s. 192(4) of the CBCA | Statutory interpretation — Good faith — Valid business purpose — Reduction of indebtedness — Strengthening financial position — Did the Applicants demonstrate good faith in proposing the Recapitalization Transaction? — Test for good faith in corporate arrangements under s. 192 of the CBCA
CanLII | Jun 6, 2024
- keywords: Civil procedure — Costs — Motions
CanLII | Jun 4, 2024
- keywords: Fraud — Non-residents
CanLII | May 30, 2024
- keywords: Civil procedure — Costs — Substantial indemnity costs
CanLII | May 21, 2024
- keywords: Bankruptcy — Recognition order — Conflict
CanLII | May 17, 2024
- keywords: Administrative law — Standard of review — Correctness — Arbitration — Jurisdiction — Courts of Justice Act — R.S.O. 1990, c. C.43
CanLII | May 17, 2024
- keywords: Commercial law — Corporations — Arrangements and compromises
CanLII | May 15, 2024
- keywords: Arbitration — Recognition and enforcement of foreign awards — Rules of Civil Procedure — Summary judgment
CanLII | May 15, 2024
- keywords: Conflict of laws — Jurisdiction — Real and substantial connection — Forum non conveniens
CanLII | May 14, 2024
- keywords: Commercial law — Contract law — Interpretation
CanLII | May 8, 2024
- keywords: Corporations — Sale of business — Motion to approve sale of assets
CanLII | May 6, 2024
- keywords: Company law — Directors — Insolvency — Breach of fiduciary duty — Fraud — Business Corporations Act
CanLII | May 1, 2024
- keywords: Civil procedure — Mareva injunction — Extraordinary remedy — Defendants alleged to be removing or dissipating assets — Moving parties sought to freeze $50 million in assets in Ontario — Should a Mareva injunction be granted? — Six-part test for Mareva injunctions, including strong prima facie case, irreparable harm, and real risk of asset removal — Motion dismissed as moving parties failed to meet required elements, including intent to defeat creditors | Civil procedure — Mareva injunction — Intent to defeat creditors — Whether intent to shield assets from judgment is a necessary element of the test — Majority case law requires evidence of intent to defeat creditors or avoid judgment — Moving parties failed to demonstrate such intent — Extraordinary nature of Mareva injunction requires clear evidence of improper purpose | Civil procedure — Irreparable harm — Enforcement of judgment — Moving parties argued assets moved to offshore jurisdictions would be difficult to recover — Catalyst Parties maintained substantial assets in Ontario — No evidence of genuine risk of disappearance of assets — Difficulty in enforcing judgment outside Ontario does not constitute irreparable harm — Motion dismissed | Civil procedure — Balance of convenience — Mareva injunction — Moving parties sought to freeze limited assets — Catalyst Parties argued inconvenience of tying up assets outweighed speculative harm to moving parties — Substantial assets remained in Ontario — Balance of convenience favoured Catalyst Parties — Motion dismissed | Civil procedure — Urgency — Delay in seeking Mareva injunction — Moving parties aware of alleged risk of asset removal since 2022 — Motion brought in 2024 — Delay inconsistent with urgency required for Mareva injunction — Lack of compelling explanation for delay — Motion dismissed
CanLII | Apr 29, 2024
- keywords: Debtor and creditor — Stay of proceedings — Companies’ Creditors Arrangement Act
CanLII | Apr 26, 2024
- keywords: Commercial law — Corporations — Arrangements and compromises
CanLII | Apr 26, 2024
- keywords: Real estate — Commercial law — Practice — Stay of proceedings — Receivers
CanLII | Apr 24, 2024
- keywords: Estates and trusts — Trust interpretation — Use of trust funds — Legal fees — Trustee sought court direction on whether funds in the Alexander Morris Sharpe Trust (AMS Trust) could be used to pay legal fees of parents of the minor beneficiary — Trust terms required funds to be for the "sole and exclusive benefit" of the minor — Court held that trust funds could not be used for legal fees — Restrictive trust language precluded indirect benefits | Estates and trusts — Interpretation of "sole and exclusive benefit" — Trustee argued that paying legal fees indirectly benefited the minor beneficiary by protecting trust assets and emotional well-being — Office of the Children’s Lawyer opposed, citing restrictive trust language — Court found that indirect benefits to the minor did not satisfy the "sole and exclusive benefit" requirement — Trust language interpreted strictly | Professional responsibility — Legal fees — Reasonableness of fees — Court reviewed and approved legal fees incurred by David and Natasha Sharpe as reasonable under the consent preservation order — Fees deemed reasonable given the complexity and urgency of the legal matters — Issue of funding source for payment of fees remained unresolved
CanLII | Apr 22, 2024
- keywords: Commercial law — Corporations — Arrangements and compromises — Lifting stay
CanLII | Apr 22, 2024
- keywords: Sale of goods — Remedies — Arbitration — International Commercial Arbitration Act
CanLII | Apr 15, 2024
- keywords: Contracts — Interpretation of standard form contracts — Feed-in-Tariff (FIT) Program — Whether section 2.1(b) of FIT 1 Contracts requires IESO consent for modifications to features or specifications of Contract Facilities or Facilities — Court held that only material changes to features or specifications outlined in the Application or FIT Contract Cover Page require consent — Principles of contract interpretation applied to standard form agreements | Contracts — Renewable energy — Solar panel optimization — Whether increases in DC Capacity constitute material changes to features or specifications outlined in FIT 1 Contracts — Court found that DC Capacity and DC/AC ratio were not outlined features or specifications in the Application or FIT Contract Cover Page — Optimizations did not trigger consent requirements under section 2.1(b) | Contracts — Reasonableness of withholding consent — IESO withheld consent for solar panel Optimizations citing increased costs to ratepayers — Whether withholding consent was reasonable under FIT 1 Contracts — Court held that withholding consent would have been reasonable if Optimizations were Contract Facility Amendments, but they were not | Contracts — Remedies — Declaratory and monetary relief — Suppliers sought declarations that Optimizations did not require IESO consent and monetary relief for withheld FIT 1 Contract rates — Court granted declaratory relief and directed parties to agree on monetary relief — Suppliers entitled to FIT 1 Contract rates for increased AC outputs | Contracts — Duty of good faith — Allegations of bad faith — Whether Suppliers breached duty of good faith by implementing Optimizations without seeking IESO consent — Court found no breach of good faith as Suppliers acted in accordance with their interpretation of FIT 1 Contracts — No actionable wrong established
CanLII | Apr 12, 2024
- keywords: Arbitration — Awards — Setting aside — Preservation orders — Jurisdiction
CanLII | Apr 11, 2024
- keywords: Commercial law — Partnerships — Limited Partnerships
CanLII | Apr 10, 2024
- keywords: Bankruptcy and insolvency — Stay of proceedings — Extension of stay — Companies' Creditors Arrangement Act (CCAA) — Applicants sought extension of stay to June 30, 2024 to facilitate restructuring — Objections raised regarding lack of transparency and trust — Whether extension was necessary and appropriate — Court found extension necessary to maintain operations and ensure fairness — CCAA, ss. 11, 11.02(2), 11.02(3) | Bankruptcy and insolvency — Interim financing — Debtor-in-possession (DIP) financing — Approval of DIP facility and DIP Lenders’ Charge — $30 million DIP facility negotiated with Monitor and Chief Restructuring Officer — Whether terms were appropriate and necessary for restructuring — Court approved DIP facility and charge, finding no viable alternatives — CCAA, s. 11.2 | Bankruptcy and insolvency — Priority charges — Administration Charge, Directors’ Charge, Intercompany Advances Charge — Increases to Administration and Directors’ Charges proposed — Intercompany Advances Charge to secure intercompany transfers — Whether charges and priorities were appropriate — Court approved charges and priorities as necessary to maintain operations and fairness — CCAA, ss. 11.51, 11.52 | Bankruptcy and insolvency — Protocols — Governance Protocol, Real Estate Monetization Plan, Intercompany and Unsecured Claims Preservation Protocol — Protocols designed to ensure transparency, fairness, and orderly realization of assets — Whether protocols were appropriate — Court approved protocols as reasonable and necessary for restructuring | Bankruptcy and insolvency — Set-off — Prohibition on set-off of pre-filing obligations against post-filing obligations — Applicants sought prohibition to ensure clarity and fairness — Whether prohibition was appropriate — Court approved prohibition, finding it consistent with CCAA principles and necessary to prevent prejudice — CCAA, ss. 11, 11.02
CanLII | Apr 9, 2024
- keywords: Conflict of laws — Contract law — Choice of forum — Commercial arbitration — Rules 14.05(2), 38 — International Commercial Arbitration Act, 2017 — S.O. 2017, c. 2.
CanLII | Apr 8, 2024
- keywords: Employment law — Contract law
CanLII | Apr 5, 2024
- keywords: Commercial law — Bankruptcy — Receiving orders
CanLII | Apr 4, 2024
- keywords: Bankruptcy and insolvency — Anti-Sale Business Corporations Act — R.S.C. 1985, c. C-36 — Companies’ Creditors Arrangement Act — Sattva Capital Corp. v. Creston Moly CORP., 2014 Scc 53
CanLII | Apr 3, 2024
- keywords: Contract law — Real property — Mortgages — Enforcement — Receivership — Courts of Justice Act s 101
CanLII | Apr 3, 2024
- keywords: Contempt — Sentencing — Civil and criminal contempt — Costs
CanLII | Mar 28, 2024
- keywords: Stay of proceedings — Companies’ Creditors Arrangement Act
CanLII | Mar 28, 2024
- keywords: Practice — Stay of proceedings
CanLII | Mar 27, 2024
- keywords: Commercial law — Corporations — Arrangements and compromises
CanLII | Mar 26, 2024
- keywords: Commercial law — Conflict of laws — Foreign judgments
CanLII | Mar 25, 2024
- keywords: Commercial law — Corporations — Arrangements and compromises
CanLII | Mar 25, 2024
- keywords: Corporations — Shareholders — Remedies — Dissenting shareholders — Costs — Rule 49.13
CanLII | Mar 25, 2024
- keywords: Debtor and creditor — Receivers — Powers of receiver
CanLII | Mar 22, 2024
- keywords: Debtor and creditor — Receivers — Appointments
CanLII | Mar 21, 2024
- keywords: Rectification — Contract law — Pension benefits — Interpretation — Pension Benefits Act
CanLII | Mar 21, 2024
- keywords: Environment law — Receivership
CanLII | Mar 20, 2024
- keywords: Bankruptcy and insolvency — Plan of Compromise and Arrangement — Sanction and Vesting Order — Approval of Plan — Stay Period extension — Third-party releases — Compliance with statutory requirements — Should the Plan be approved as fair and reasonable? — Should the Stay Period be extended to June 28, 2024? — Are the third-party releases compliant with the CCAA? — Does the Plan meet all statutory requirements? — Framework for approval of CCAA plans
CanLII | Mar 20, 2024
- keywords: Bankruptcy and insolvency — Receivership — Approval and vesting order — Sale of property — Receiver sought court approval of agreement of purchase and sale (APS) for properties — Did the Receiver meet the Soundair test for approval of the sale? — Receiver’s marketing and sales process deemed robust and fair — Court granted approval and vesting order to close sale — Royal Bank v. Soundair, 1991 CanLII 2727 | Property — Right of redemption — Debtors sought to delay sale to redeem properties — Debtors failed to present sufficient evidence of imminent ability to redeem — Receiver’s sale process upheld despite imperfect communication — Does the right to redeem outweigh the integrity of the receivership process? — Court dismissed Debtors’ cross-motion to delay sale | Evidence — Sales process — Fairness and transparency — Receiver’s marketing efforts included MLS listing, outreach to developers, and multiple offers — Debtors alleged unfairness in process due to lack of notice of deadlines — Did the Receiver’s process meet the standards of fairness under Soundair? — Court found no unfairness or improvidence in the process | Civil procedure — Sealing order — Receiver sought sealing of appraisal, offer summary, and unredacted APS — Debtors did not oppose sealing request — Should a sealing order be granted to protect future realizations if sale fails? — Court granted sealing order pending closing or further order
CanLII | Mar 19, 2024
- keywords: Civil procedure — Documents — Production — Production from non-parties — Notice — Rule 30.10(1)
CanLII | Mar 18, 2024
- keywords: Commercial law — Contract law — Interpretation
CanLII | Mar 18, 2024
- keywords: Civil procedure — Asset examination — Undertakings — Refusal to answer questions — Defendant Mohammed Aljabri required to answer undertakings and questions from his asset examination, subject to redactions for privilege — Should the defendant be compelled to answer questions previously refused on grounds of relevance or privilege? — Framework for compelling answers in asset examinations | Evidence — Solicitor-client privilege — Trust ledgers — Plaintiffs sought production of trust ledgers from law firms representing defendants — Are trust ledgers presumptively protected by solicitor-client privilege? — Trust ledgers contain administrative information presumptively privileged unless rebutted — Supreme Court of Canada jurisprudence applied | Evidence — Solicitor-client privilege — Rebutting presumption — Plaintiffs argued trust ledgers contain aggregate information unrelated to confidential communications — Have plaintiffs rebutted the presumption of privilege? — Presumption not rebutted where disclosure risks revealing privileged communications | Evidence — Solicitor-client privilege — Crime/fraud exception — Plaintiffs alleged exception applies to civil fraud and breach of Mareva orders — Does the crime/fraud exception apply to civil fraud? — Exception limited to criminal conduct; civil fraud excluded under binding precedent | Evidence — Privileged information in bank records — Redaction — Plaintiffs sought unredacted bank records containing privileged information — Are bank records containing privileged information subject to redaction? — Privileged information in bank records remains protected and may be redacted before disclosure
CanLII | Mar 18, 2024
- keywords: Practice — Judgments and orders — Summary judgment — Rules of Civil Procedure, R.R.O. 1990, Reg. 194, Rule 20.
CanLII | Mar 15, 2024
- keywords: Contract law — Interpretation — Real property — Agreements of purchase and sale of land — Assignment
CanLII | Mar 13, 2024
- keywords: Jurisdiction — Real property — Mortgages — Mortgagees’ lien — Receivership — Courts of Justice Act — R.S.O. 1990, c. C.43, s. 101 — Bankruptcy and Insolvency Act — R.S.C., 1985, c. B-3, s. 187(5), appeal dismissed
CanLII | Mar 11, 2024
- keywords: Commercial law — Corporations — Arrangements and compromises
CanLII | Mar 8, 2024
- keywords: Bankruptcy and insolvency — Construction law
CanLII | Mar 7, 2024
- keywords: Practice — Stay of proceedings — Companies’ Creditors Arrangement Act
CanLII | Mar 6, 2024
- keywords: Civil procedure — Contempt of court — Mareva injunctions — Plaintiffs sought contempt orders against defendants for alleged breaches of Mareva Order — Should the court exercise discretion to decline a finding of contempt due to alleged non-compliance with disclosure obligations? — Discretion to decline contempt findings where injustice may result — Standard of proof for civil contempt is beyond a reasonable doubt | Property — Mareva injunctions — Scope of injunction — Whether Mareva Order clearly and unequivocally applied to assets purportedly gifted and transferred before the Order was made — Ambiguity in the Order’s application to transferred assets — Interpretation of Mareva Orders in light of external circumstances — Ambiguities resolved in favour of alleged contemnor | Evidence — Civil contempt — Proof of fraudulent transfer — Plaintiffs alleged that purported gift of assets was a fiction to conceal true ownership — Whether circumstantial evidence excluded all reasonable inferences inconsistent with fraud — Standard of proof for civil contempt requires proof beyond a reasonable doubt — Inferences must exclude plausible alternative explanations | Evidence — Civil contempt — Mens rea and actus reus — Whether defendant intentionally engaged in conduct breaching Mareva Order — Use of purportedly gifted assets for living and legal expenses — Active participation versus passive acquiescence — Standard of proof for intentional breach of court orders — Deliberate or reckless disobedience required
CanLII | Mar 5, 2024
- keywords: Civil procedure — Contempt — Order made in aid of execution — Motion to set aside
CanLII | Mar 4, 2024
- keywords: Commercial law — Receivers — Appointments — Powers
CanLII | Feb 29, 2024
- keywords: Bankruptcy — Creditors — Secured creditors
CanLII | Feb 29, 2024
- keywords: Commercial law — Conflict of laws — Forum conveniens
CanLII | Feb 29, 2024
- keywords: Commercial law — Receivers — Appointments — Bankruptcy — Actions
CanLII | Feb 28, 2024
- keywords: Bankruptcy and insolvency — Jurisdiction — Stay of proceedings — Application under the Companies’ Creditors Arrangement Act (CCAA) — Applicants insolvent and unable to meet obligations — Does the Court have jurisdiction to grant the requested relief, including a stay of proceedings? — Jurisdiction established under s. 9(1) of the CCAA based on the Applicants’ chief place of business in Ontario | Bankruptcy and insolvency — DIP financing — Approval of debtor-in-possession (DIP) Loan — Applicants facing liquidity crisis — DIP Loan required to fund operations during initial stay period — Should the Court approve the DIP Loan? — DIP Loan approved under s. 11.2(5) of the CCAA as necessary to preserve the status quo and ensure continued operations | Bankruptcy and insolvency — Appointment of Monitor — FTI Consulting Canada Inc. proposed as Monitor — Monitor’s role in stabilizing operations and protecting stakeholders — Should FTI be appointed as Monitor? — FTI appointed as Monitor under s. 11.7(2) of the CCAA | Bankruptcy and insolvency — Extension of stay — Non-Applicant Stay Parties — Highly integrated subsidiaries and tax attributes — Should the stay of proceedings be extended to Non-Applicant Stay Parties? — Stay extended to prevent uncoordinated enforcement actions and maximize value for stakeholders | Securities — Relief from reporting obligations — Applicants seek relief from securities filing requirements — Should relief from securities reporting obligations be granted? — Relief granted to avoid unnecessary expenses and personal liability for directors and officers
CanLII | Feb 28, 2024
- keywords: Bankruptcy and insolvency — Cross-border insolvency — Recognition of foreign orders — U.S. Bankruptcy Court’s Confirmation Order, Solicitation Order, and Amended KEIP Order — Should Canadian courts recognize foreign orders under the Companies’ Creditors Arrangement Act (CCAA)? — Recognition granted based on comity, equitable treatment of creditors, and compliance with Canadian law — Companies’ Creditors Arrangement Act, R.S.C. 1985, c. C-36, ss. 46, 47, 48, 49, 50 | International law — Comity — Cross-border insolvency — Recognition of U.S. court orders in Canadian proceedings — Should Canadian courts recognize U.S. court orders confirming a restructuring plan? — Recognition granted to promote cooperation and efficient administration of cross-border insolvencies — Canadian creditors treated equitably under the Plan | Civil procedure — Termination of proceedings — Dismissal of Canadian actions — Termination of stays and charges under the CCAA — Should Canadian actions against the Chapter 11 Debtors be dismissed and CCAA proceedings terminated? — Relief granted to implement the Plan and facilitate restructuring — Companies’ Creditors Arrangement Act, R.S.C. 1985, c. C-36, s. 49 | Business associations — Corporate restructuring — Authorization of corporate steps — Redemption and cancellation of equity interests — Should Canadian Debtors be authorized to implement corporate steps necessary to effectuate the Plan? — Authorization granted to maximize value and ensure compliance with the Plan — Companies’ Creditors Arrangement Act, R.S.C. 1985, c. C-36 | Bankruptcy and insolvency — Information Officer — Approval of activities, fees, and disbursements — Should the activities, fees, and disbursements of the Information Officer and its counsel be approved? — Approval granted as fair and reasonable, benefiting Canadian stakeholders and maximizing value
CanLII | Feb 27, 2024
- keywords: Stay of proceedings — Non-applicant debtor
CanLII | Feb 21, 2024
- keywords: Oppression — Business Corporations Act — R.S.O. 1990, c. B.16, s. 248
CanLII | Feb 20, 2024
- keywords: Civil procedure — Mareva injunction — Variation of injunction — Defendants sought access to frozen funds for legal fees, living expenses, and repayment of debts — Whether the defendants satisfied the Credit Valley test for varying a Mareva injunction — Balancing the interests of the plaintiff and defendants — Test from Canadian Imperial Bank of Commerce v. Credit Valley Institute of Business & Technology applied | Evidence — Disclosure of assets — Defendants required to demonstrate full disclosure of assets and liabilities to access frozen funds under a Mareva injunction — Defendants failed to provide credible evidence of their financial situation — Adverse inferences drawn from lack of transparency and incomplete disclosure — Test from Waxman v. Waxman applied | Property — Proprietary claims — Plaintiff alleged misappropriated funds were used to increase equity in the Ravel Property — Defendants argued property was purchased before alleged misappropriations — Whether plaintiff could trace funds into the property to establish a proprietary claim — Tracing principles from DBDC Spadina Ltd. v. Walton applied
CanLII | Feb 17, 2024
- keywords: Practice — Costs — Partial indemnity costs
CanLII | Feb 15, 2024
- keywords: Civil procedure — Costs — Calculations — Costs in the cause — Offers to settle — Rules of Civil Procedure, Rules 16.04, 49.02(1), 57.01(1)
CanLII | Feb 14, 2024
- keywords: Company law — Corporations — 550 — Anti-Dilution Agreement — Costs — Ontario Business Corporations Act
CanLII | Feb 12, 2024
- keywords: Mortgages — receivership — Appointment of receiver — Order fixing costs
CanLII | Feb 9, 2024
- keywords: Corporations — Winding-up — Vesting orders — Business Corporations Act, R.S.O. 1990, c. B.16, ss. 207, 248.
CanLII | Feb 9, 2024
- keywords: Civil procedure — Costs — Substantial indemnity scale — Plaintiffs sought costs of the November 17, 2023 motion on a substantial indemnity scale, alleging egregious conduct by Defendants — Court found allegations of misconduct unmerited and awarded costs on a partial indemnity scale — Rule 57.01(1) factors considered — Costs fixed at $200,000 | Civil procedure — Costs — Motion made without notice — Plaintiffs sought costs for materials used in a motion made without notice, arguing they were necessary for a de novo hearing — Court exercised discretion under Rule 57.03(3) to award costs for preparation of materials used in the motion | Civil procedure — Costs — Payment timeline — Plaintiffs sought costs to be paid within 30 days, while Defendants requested costs be in the cause — Court applied Rule 57.03(1) and ordered costs to be paid within 30 days, finding Plaintiffs substantially successful and expenses reasonable | Evidence — Fraud allegations — Plaintiffs alleged Defendants engaged in a multi-year fraudulent scheme and failed to disclose assets, including bank accounts — Court found Plaintiffs established a strong prima facie case but noted claims had not been finally adjudicated — Allegations of fraud denied by Defendants
CanLII | Feb 6, 2024
- keywords: Contract law — Interpretation — Costs — full indemnity costs
CanLII | Feb 5, 2024
- keywords: Corporations — Arrangements — Business Corporations Act, s. 182.
CanLII | Jan 30, 2024
- keywords: Commercial law — Receivers — Receivership proceedings
CanLII | Jan 30, 2024
- keywords: Contract law — Restrictive covenants — Injunctions
CanLII | Jan 29, 2024
- keywords: Bankruptcy — Creditors — Arrangements and compromises
CanLII | Jan 29, 2024
- keywords: Winding-up orders — Liquidator and Receiver — Priority of claims — Costs
CanLII | Jan 24, 2024
- keywords: Contract law — Rectification
CanLII | Jan 24, 2024
- keywords: Discovery — Examination for discovery — Limitation periods — Solicitor and client privilege — Waiver — Trustee Act
CanLII | Jan 24, 2024
- keywords: Civil procedure — Motion to set aside default judgment — Rules of Civil Procedure — Rules 16.03(1), 16.02(5), and 19.01
CanLII | Jan 19, 2024
- keywords: Commercial law — Corporations — Arrangements and compromises
CanLII | Jan 19, 2024
- keywords: Bankruptcy and insolvency — Companies’ Creditors Arrangement Act
CanLII | Jan 17, 2024
- keywords: Bankruptcy and insolvency — Practice and procedure — Costs — Entitlement to costs — Bankruptcy and Insolvency Act, s. 244
CanLII | Jan 16, 2024
- keywords: Bankruptcy and insolvency — Companies' Creditors Arrangement Act (CCAA) — Monitor's powers — Mareva Injunction — Fraudulent misappropriation of funds — Preservation of assets — Should a broader Mareva Injunction Order be granted to protect the assets of insolvent entities under CCAA? — Court's discretion to grant extraordinary relief to preserve assets for creditors and stakeholders | Civil procedure — Mareva Injunction — Risk of dissipation — Delay in bringing motion — Extraordinary remedy — Does delay in seeking a Mareva Injunction undermine the risk of dissipation or removal of assets? — Delay not fatal where cumulative concerns and evolving evidence justify urgency | Evidence — Fraud — Misrepresentation — Breach of fiduciary duty — Unjust enrichment — Strong prima facie case — Is there sufficient evidence to establish a strong prima facie case of fraud and misappropriation against the respondents? — Evidence of falsified financial statements, mischaracterized distributions, and shifting explanations supports the Monitor's claims | Evidence — Knowledge — Knowing assistance — Knowing receipt — Unjust enrichment — Should a Mareva Injunction be granted against a respondent with limited involvement in alleged misconduct? — Insufficient evidence of knowledge or willful blindness precludes a full Mareva Order but justifies asset disclosure | Civil procedure — Undertaking as to damages — Insolvency — Monitor's role — Should the Monitor be required to provide an undertaking as to damages in the context of a Mareva Injunction? — Court dispenses with undertaking requirement where the Monitor is insolvent and the case is strong
CanLII | Jan 16, 2024
- keywords: Civil procedure — Costs — Motions
CanLII | Jan 12, 2024
- keywords: Practice — Pre-trial procedures — Severance of issues
CanLII | Jan 10, 2024
- keywords: Civil — Practice — Evidence
CanLII | Jan 9, 2024
- keywords: Bankruptcy and insolvency — Companies' Creditors Arrangement Act — Reverse vesting order — Monitor's role — Should the court approve the Transaction Agreement and the reverse vesting order (RVO) structure under the CCAA? — RVO structure deemed appropriate in highly regulated industries to preserve licenses and permits — Sections 11 and 36 of the CCAA applied | Sale — Approval of sale process — Soundair Principles — Section 36(3) of the CCAA — Was the sale process reasonable and commercially fair? — Monitor conducted a court-approved sales process, including a stalking horse bid — Sale approved as the best available recovery for stakeholders | Contracts — Releases and indemnities — Scope of releases — Are the proposed releases for the Monitor, Purchasers, and other parties appropriate? — Releases granted to facilitate the transaction and avoid claims processes — Lydian factors applied to assess appropriateness of releases | Bankruptcy and insolvency — Fees and expenses — Monitor and Receiver — Should the court approve the fees and expenses of the Monitor, Receiver, and their legal counsel? — Fees deemed reasonable and substantiated by affidavits — Court approved fees as consistent with the Monitor's mandate | Bankruptcy and insolvency — Stay extension — Justification for extension — Is the extension of the stay period under the CCAA justified? — Stay extended to February 29, 2024, to allow transaction completion and residual matters — Cash flow forecasts confirmed sufficient liquidity
CanLII | Jan 5, 2024
- keywords: Civil procedure — Motions — Evidence at motion — Adjournments
CanLII | Jan 4, 2024
- keywords: Labour and employment — Constructive dismissal — Employment contract — Plaintiff alleged constructive dismissal due to toxic work environment and removal of job responsibilities — Defendant argued plaintiff voluntarily retired — Was the plaintiff constructively dismissed? — Test for constructive dismissal from Potter v. New Brunswick Legal Aid Services Commission applied — Plaintiff failed to prove substantial breach of employment contract — Plaintiff deemed to have retired | Labour and employment — Vacation pay — Accumulated vacation — Plaintiff claimed 22 weeks of unused vacation pay — Defendant argued vacation could not be carried forward without written approval — Was the plaintiff entitled to damages for unused vacation pay? — No evidence of a “use it or lose it” policy — Plaintiff awarded damages for 22 weeks of unused vacation | Labour and employment — Deferred bonuses — Bonus structure — Plaintiff claimed unpaid deferred bonuses for 2014 and 2015 — Defendant argued bonuses were contingent on continued employment — Was the plaintiff entitled to damages for unpaid deferred bonuses? — No evidence plaintiff agreed to forfeiture of deferred bonuses upon retirement — Plaintiff awarded damages for unpaid bonuses plus interest | Labour and employment — Stock options — Vesting upon retirement — Plaintiff claimed damages for lost value of stock options — Defendant argued unvested options expired upon termination — Was the plaintiff entitled to damages for lost stock options? — Oral agreement with supervisor confirmed options would vest upon retirement — Plaintiff awarded damages for lost stock options based on market value | Civil procedure — Counterclaim — Just cause defence — Defendant’s counterclaim dismissed by Court of Appeal under s. 137.1 of the Courts of Justice Act — Defendant sought to rely on counterclaim allegations to justify dismissal for cause — Could the defendant rely on dismissed counterclaim allegations? — Issue estoppel applied — Defendant precluded from relying on counterclaim allegations
CanLII | Jan 2, 2024
- keywords: Lease — Option to purchase — Appraisals — Compliance with lease terms — Tenant and landlord obtained appraisals to determine purchase price under option to purchase clause — Dispute over whether appraisals complied with fair market value requirements — Did both parties obtain compliant appraisals? — Both appraisals deemed compliant under Canadian Uniform Standards of Professional Appraisal Practice (CUSPAP) | Contracts — Option to purchase — Exercise of option — Tenant provided written notice to exercise option to purchase properties under leases — Landlords argued option was not properly exercised — Did the tenant properly exercise the option? — Tenant’s written notice complied with lease terms, creating a binding contract for sale | Contracts — Option to purchase — Tender of purchase price — Tenant tendered appraisal value and placed disputed amount in escrow — Landlords argued full tender was required — Did the tenant properly tender to close the transaction? — Tenant’s actions deemed sufficient to meet tender requirements under case law | Property — Specific performance — Remedy for breach of option to purchase — Tenant sought specific performance to compel sale of properties — Landlords argued damages were sufficient — Is specific performance the appropriate remedy? — Specific performance granted due to unique nature of properties and goodwill associated with tenant’s business operations
CanLII | Dec 22, 2023
- keywords: Securities fraud — R. 126.1(1)(b), Securities Act — R.S.O. 1990, c. S.5, s. 129
CanLII | Dec 21, 2023
- keywords: Corporate law — Contract law — Interpretation — Real property — Condominiums — Business Corporations Act — Section 185(1), Business Corporations Act
CanLII | Dec 21, 2023
- keywords: Corporations — Winding-up — Business Corporations Act — R.S.O. 1990, c. B.16, s. 207(1)(b)(iii), (iv)
CanLII | Dec 21, 2023
- keywords: Bankruptcy and insolvency — Priority of claims — Subordination clauses — Purchasers’ deposits — Secured creditors — Purchasers agreed to subordinate their interests to secured creditors in Pre-Sale Purchase Agreements — Does the subordination clause preclude Purchasers from asserting priority claims? — Subordination clauses enforceable under the Bankruptcy and Insolvency Act (BIA) priority scheme | Contracts — Pre-Sale Purchase Agreements — Subordination clauses — Purchasers’ deposits — Purchasers agreed to subordinate their interests to secured creditors — Does the subordination clause preclude Purchasers from asserting priority claims? — Subordination clauses upheld as binding contractual terms | Estates and trusts — Express trusts — Purchasers’ deposits — Early termination provisions — Agreements requiring deposits to be held in trust — Were express trusts created for Purchasers’ deposits under agreements with early termination provisions? — Certainty of intention, objects, and subject matter satisfied for express trusts | Bankruptcy and insolvency — Constructive trusts — Breach of express trust — Purchasers’ deposits — Imposition of constructive trust as a remedy — Can a constructive trust be imposed for breach of express trust or unjust enrichment in bankruptcy? — Constructive trust not imposed due to disruption of BIA priority scheme and lack of close causal connection to property | Statutory interpretation — Bankruptcy and Insolvency Act (BIA) — Priority scheme — Purchasers’ deposits — Constructive trust remedies — Does the BIA preclude the imposition of a constructive trust for Purchasers’ claims? — BIA priority scheme precludes constructive trust remedies absent extraordinary circumstances
CanLII | Dec 20, 2023
- keywords: Practice and procedure — Documents — Production — Solicitor client privilege — Documents held by non-parties — Rule 48.04
CanLII | Dec 16, 2023
- keywords: Real property — Commercial tenancies — Leases — Contract law — Breach
CanLII | Dec 15, 2023
- keywords: Contract law — Real property — Commercial easements — reciprocal easement agreements — Companies’ Creditors Arrangement Act — R.S.C. 1985, c. C-36 — Planning Act — R.S.O. 1990, c. P.13, s. 71.
CanLII | Dec 12, 2023
- keywords: Bankruptcy and insolvency — Notices of intention to enforce security — Notices of Sale — Enforcement — Bankruptcy and Insolvency Act — R.S.C. 1985, c. B-3, s. 244
CanLII | Dec 1, 2023
- keywords: Real property — Commercial law — Practice — Class actions — Corporations
CanLII | Nov 29, 2023
- keywords: Civil procedure — Discovery — Delays in production — Defendant failed to produce all relevant documents in a timely manner — Court ordered defendant to deliver a further and better affidavit of documents by December 19, 2023 — Should the court set firm dates for mediation or further case conferences given ongoing delays? — Court deferred setting firm dates due to uncertainties in representation and discovery timelines | Evidence — Affidavit of documents — Discovery obligations — Defendant located 11,000 emails and text messages relevant to litigation — Should the defendant be required to produce a further affidavit of documents? — Court ordered production of all relevant documents by December 19, 2023 | Professional responsibility — Withdrawal of counsel — Counsel for defendant indicated intent to withdraw from the record — Potential withdrawal may delay discovery and mediation timelines — What are the implications of counsel’s withdrawal on the litigation process? — Court deferred scheduling motion for withdrawal until after production deadline
CanLII | Nov 28, 2023
- keywords: Civil procedure — Motion for directions — Receivership — Application to piercing corporate veil
CanLII | Nov 28, 2023
- keywords: Practice — Costs — Motion for partial indemnity costs
CanLII | Nov 23, 2023
- keywords: Civil procedure — Documents — Disclosure — Production of documents — Relevance — Privilege
CanLII | Nov 17, 2023
- keywords: Civil procedure — Costs — Particular items — Disbursements — Experts’ fees
CanLII | Nov 15, 2023
- keywords: Commercial law — Arbitration — Awards — Judicial review
CanLII | Nov 14, 2023
- keywords: Real property — Leases — Interpretation — Construction law — Remedies
CanLII | Nov 10, 2023
- keywords: Commercial law — Receivers — Claims
CanLII | Nov 9, 2023
- keywords: Estates and trusts — Rectification of trust deeds — Drafting error — Trustees sought rectification of trust deeds to correct an error prohibiting the distribution of dividends from a family operating company to a corporate beneficiary — Does rectification apply to correct a written instrument that does not reflect the parties’ antecedent agreement? — Rectification granted to align trust deeds with the original agreement of the parties | Taxation — Rectification and tax consequences — CRA reassessed trusts based on erroneous trust deed provisions — Does rectification apply where correcting a drafting error would have tax implications? — Rectification allowed as it does not constitute retroactive tax planning — Canada (Attorney General) v. Fairmont Hotels Inc., 2016 SCC 56 | Statutory interpretation — Equitable remedies — Distinction between rectification and retroactive tax planning — Does rectification apply to correct a written instrument that fails to reflect the parties’ agreement, even if it impacts tax liability? — Rectification distinguished from retroactive tax planning — Canada (Attorney General) v. Collins Family Trust, 2022 SCC 26 | Evidence — Test for rectification — Four-part test from Fairmont Hotels — Did the applicants provide clear, convincing, and cogent evidence to satisfy the test for rectification? — Evidence from trustees, settlor, tax lawyers, and accountants demonstrated antecedent agreement — Rectification granted based on comprehensive and corroborated evidence
CanLII | Nov 7, 2023
- keywords: Bankruptcy and insolvency — Sales and Investment Solicitation Process (SISP) — Stalking Horse Offer — Approval of SISP under the Companies' Creditors Arrangement Act (CCAA) — Whether the SISP, including the Stalking Horse Offer, is fair, transparent, and commercially reasonable — Governing principles from Nortel Networks Corporation (Re) and CCM Master Qualified Fund v. Bluetip Power Technologies — SISP approved to maximize recovery for stakeholders | Contracts — Anti-deprivation rule — Unconscionability — Senior secured creditor’s quantum of obligations — Whether the calculation of obligations under Lease Transaction Documents violates the anti-deprivation rule or results in unconscionability — Supreme Court of Canada’s Chandos Construction Ltd. v. Deloitte Restructuring Inc. applied — Lease Transaction Documents upheld as valid and enforceable | Bankruptcy and insolvency — Break Fee Agreement — Bid Protections Charge — Approval of bid protections in the context of a stalking horse bid — Whether the Break Fee and Expense Reimbursement are reasonable — Bid protections within acceptable range of 1.8%–5% — Comparative analysis of bid protections in similar cases — Bid Protections Charge approved | Bankruptcy and insolvency — Unknown Contract Bar Process — Incomplete records of the Validus Entities — Whether the Unknown Contract Bar Process is appropriate to identify unknown contractual counterparties — Notice to counterparties through publication and direct communication — Process ensures fairness and transparency — Approved as necessary in the circumstances | Bankruptcy and insolvency — Receiver’s Borrowing Charge — Liquidity during stay extension — Whether the Receiver’s Borrowing Charge should be increased from $1 million to $1.5 million — Revised cash flow forecast supports increase — Stay extension to December 31, 2023, approved to facilitate SISP — Borrowing Charge increase granted
CanLII | Nov 2, 2023
- keywords: Civil procedure — Extension of time for service — Ex parte motions — Insufficient disclosure — Plaintiff obtained an ex parte order extending the time for service of the Statement of Claim — Defendants moved to set aside the order, alleging inadequate disclosure and prejudice — Should the ex parte order be set aside? — Rule 39.01(6) requiring full, true, and plain disclosure on ex parte motions | Professional responsibility — Duty of disclosure — Ex parte motions — Plaintiff’s counsel failed to disclose material facts, including the defendants’ regulatory investigation and willingness to accept service — Does failure to disclose material facts justify setting aside the ex parte order? — Heavy onus on moving party to ensure complete and accurate disclosure | Evidence — Regulatory admissions — Admissibility in civil proceedings — Defendants entered into a settlement agreement with the MFDA admitting breaches of regulatory rules — Plaintiff sought to rely on these admissions in the civil action — Are regulatory admissions prejudicial in subsequent litigation? — Hill v. Gordon-Daly Grenadier Securities applied | Torts — Prejudice to defendants — Regulatory settlement — Defendants alleged prejudice from admissions made in a regulatory settlement agreement during the extension period — Plaintiff argued no prejudice as the settlement was signed after service — Does prejudice arise from regulatory admissions impairing the defence in civil litigation? — Broader test for prejudice beyond unavailability of documents or witnesses
CanLII | Nov 2, 2023
- keywords: Bankruptcy — Receivers — Appointments
CanLII | Nov 1, 2023
- keywords: Corporations — Winding-up — Business Corporations Act — R.S.O. 1990, c. B.16, s. 207
CanLII | Oct 31, 2023
- keywords: Private international law — Conflict of laws — Foreign judgments — Enforcement
CanLII | Oct 31, 2023
- keywords: Bankruptcy and insolvency — DIP financing — Approval of Cargill DIP Facility — Priming charge — Companies’ Creditors Arrangement Act (CCAA) — Whether the Cargill DIP Facility satisfies the requirements under s. 11.2(4) of the CCAA — Consideration of prejudice to creditors, governance concerns, and ulterior motives — Court approval granted based on fairness, necessity, and stakeholder interests | Bankruptcy and insolvency — Solicitation Process — Approval of Solicitation Order — Immediate commencement of Solicitation Process — Whether the proposed process is fair, transparent, and commercially reasonable — Monitor’s recommendation and stakeholder consultation — Court approval granted to optimize value for stakeholders | Bankruptcy and insolvency — Alternative relief — Ad Hoc Group of Noteholders — Request for Chief Restructuring Officer (CRO) — Amendments to ARIO — Whether governance concerns justify appointment of CRO or changes to DIP terms — Court finds no justification for alternative relief — Requests dismissed | Bankruptcy and insolvency — Key Employee Retention Plan (KERP) — Approval of KERP and KERP Charge — Incentivizing key employees during restructuring — Whether the KERP is fair, reasonable, and necessary — Monitor’s support and proportionality of payments — Court approval granted to ensure operational stability | Bankruptcy and insolvency — Sealing order — Confidential schedule to KERP — Privacy of employee compensation information — Whether sealing order satisfies Sierra Club and Sherman Estate tests — Court grants sealing order to protect sensitive information and avoid employee distraction
CanLII | Oct 30, 2023
- keywords: Injunctions — Interlocutory injunctions — Preservation of property
CanLII | Oct 30, 2023
- keywords: Contract law — Real property — Joint venture agreements — Arbitration clause — Jurisdiction
CanLII | Oct 27, 2023
- keywords: Corporations — Arrangements — Business Corporations Act, s. 182
CanLII | Oct 24, 2023
- keywords: Commercial law — Corporations — Winding-up
CanLII | Oct 24, 2023
- keywords: Securities — Receivership — Powers of receiver — Investigation of corporate affairs — Receiver appointed under the Securities Act to protect investors’ interests — Whether the Receiver’s powers include reviewing corporate emails to investigate alleged improper dealings — Broad powers granted under Receivership Order, including fact-finding and examination of corporate affairs — Securities Act, R.S.O. 1990, c. S.5 — Receiver authorized to access emails for purposes of fulfilling its mandate | Evidence — Solicitor-client privilege — Corporate emails — Principal of Receivership Respondents claimed privilege over emails sent from corporate accounts — Whether solicitor-client privilege applies to corporate emails when no personal legal counsel was retained — Privilege rights belong to the corporation, not the individual — Receiver entitled to waive privilege for corporate emails under Receivership Order | Evidence — Solicitor-client privilege — Scope of privilege — Receiver’s access to corporate emails — Whether privilege can be asserted to prevent Receiver from accessing emails necessary for its investigation — Receiver steps into the shoes of the corporation and may waive privilege for corporate purposes — Solicitor-client privilege not applicable to personal claims without personal legal counsel | Civil procedure — Costs — Motion to compel release of emails — Receiver successful in motion to compel principal of Receivership Respondents to release emails — Costs awarded to Receiver fixed at $18,000 — Costs awarded to reflect the complexity of the motion and the Receiver’s entitlement to recover reasonable expenses
CanLII | Oct 23, 2023
- keywords: Bankruptcy and insolvency — Appointment of receiver — Secured creditor rights — Default on loan obligations — Application for appointment of receiver under section 243(1) of the Bankruptcy and Insolvency Act and section 101 of the Courts of Justice Act — Is it just or convenient to appoint a receiver? — Factors for appointing a receiver include irreparable harm, safeguarding assets, and maximizing recovery — Court-appointed receiver ensures transparency and stakeholder interests — Test from Bank of Nova Scotia v. Freure Village applied | Property — Sale of property — Competing sale transactions — Approval of Times Transaction over 281 Transaction — Factors for approving a sale in receivership include fairness, best price, and process integrity — Times Transaction offered higher purchase price and lower execution risk — Marketing process by Romspen deemed robust and transparent — Court declined to direct further sales process — Principles from Royal Bank of Canada v. Soundair Corp. applied | Property — Receivership sales process — Further marketing process — Whether a further sales and marketing process should be undertaken by the receiver — Property marketed extensively for over two years — Additional marketing unlikely to yield higher offers — Costs of delay and accruing interest weigh against further process — Court satisfied that existing process was fair and reasonable — Test from Montrose Mortgage Corp. v. Kingsway Arms Ottawa Inc. applied | Civil procedure — Sealing orders — Confidential commercial information — Application for sealing order for confidential exhibits and appendices — Whether court openness poses a serious risk to an important public interest — Test from Sherman Estate v. Donovan applied — Sealing order granted to protect sensitive commercial information and preserve stakeholder interests — Order limited in scope and duration
CanLII | Oct 19, 2023
- keywords: Bankruptcy and insolvency — Appointment of receiver — Financial defaults — Senior Secured Lenders seeking appointment of receiver under section 243 of the BIA and section 101 of the CJA — Borrower’s inability to repay obligations under credit facilities — Just and convenient test for receivership — Court-appointed receivership to stabilize project and maximize recovery for stakeholders — Framework for appointing a receiver under the BIA and CJA | Construction — Mixed-use development project — Delays and cost overruns — Borrower’s failure to complete construction of 85-storey tower — Disputes between stakeholders affecting project progress — Receiver’s role in overseeing construction and determining whether project should be sold or completed — Court’s consideration of project complexity and stakeholder interests | Contracts — Receivership Funding Credit Agreement (RFCA) — Approval of $315 million non-revolving term credit facility — Funding required to continue construction and stabilize project — Terms of RFCA compared to similar insolvency proceedings — Court’s jurisdiction under section 31(1) of the BIA to authorize borrowing and grant super-priority charge | Civil procedure — Receivership order — Stay of proceedings — Receiver’s Borrowings Charge — Protections for developer to ensure continuity of goods and services — Court’s discretion to grant relief under section 243(1)(c) of the BIA and section 101 of the CJA — Model Order of the Commercial List as guidance | Statutory interpretation — Jurisdiction under BIA and CJA — Expansive wording of section 243(1)(c) of the BIA — Court’s broad mandate in insolvency proceedings — Authority to approve funding, grant charges, and provide protections to stakeholders — Interpretation of statutory provisions to address complex insolvency scenarios
CanLII | Oct 18, 2023
- keywords: Commercial law — Corporations — Arrangements and compromises — Recognition orders
CanLII | Oct 16, 2023
- keywords: Intellectual property — Confidential information — Misuse of trade secrets — Plaintiff alleged defendants used confidential information to develop competing QDS Platform — Did the defendants breach confidentiality covenants or misuse confidential information? — Court found insufficient evidence to establish a strong prima facie case of misuse of confidential information — Confidentiality agreements and remedies for breach analyzed | Contracts — Injunctions — Breach of confidence — Plaintiff sought interlocutory injunction to restrain defendants from developing QDS Platform — Did the plaintiff meet the test for an interlocutory injunction? — Court applied RJR-MacDonald test and found no strong prima facie case or irreparable harm — Balance of convenience favoured defendants | Civil procedure — Security for costs — Corporate plaintiff with insufficient assets in Ontario — Defendants sought $335,000 in security for costs — Should security for costs be granted? — Court granted $121,000 in security for costs, balancing plaintiff’s financial position and merits of the case — Rules of Civil Procedure, r. 56.01(1)(d) | Civil procedure — Sealing orders — Confidentiality of provisional patent applications — Plaintiff sought partial sealing order to protect confidential information — Should the court grant a sealing order? — Court granted limited sealing order to protect patent process, balancing open court principle and commercial confidentiality — Sierra Club and Sherman Estate tests applied
CanLII | Oct 16, 2023
- keywords: Bankruptcy and insolvency — Recognition of foreign orders — Chapter 11 proceedings — Canadian Debtors — U.S. Bankruptcy Court orders — Second Supplemental Order — Should the court recognize and enforce U.S. Orders under section 49 of the CCAA? — Recognition granted to preserve the value of Canadian Debtors’ property and facilitate wind-down and sale efforts — Section 49(1) of the Companies’ Creditors Arrangement Act, R.S.C. 1985, c. C-36 | Evidence — Affidavit evidence — Information Officer’s report — Evidentiary basis for relief — Affidavit of Matthew A. Doheny and First Report of the Information Officer relied upon — Was the evidentiary basis sufficient to support the recognition of U.S. Orders? — Court satisfied with the evidentiary record supporting the motion | Civil procedure — Comity and public policy — Recognition of foreign orders — Principles of comity and cooperation between jurisdictions — Public policy exception under section 61(2) of the CCAA — Should the U.S. Orders be recognized under Canadian procedural law? — Public policy concerns not engaged — Recognition consistent with equitable treatment of stakeholders | Property — Protection of debtor’s property — Interests of creditors — Canadian Debtors’ property and business operations — Is the Second Supplemental Order necessary to protect the property and interests of creditors? — Court satisfied that the order is necessary to preserve value and protect creditors’ interests
CanLII | Oct 5, 2023
- keywords: Commercial law — Corporations — Arrangements and compromises
CanLII | Oct 5, 2023
- keywords: Oppression — Civil procedure — Vexatious litigants — “plain and obvious” test — Courts of Justice Act — R.S.O. 1990, c. C.43, s. 140
CanLII | Oct 4, 2023
- keywords: Bankruptcy and insolvency — Stay Period extension — Companies’ Creditors Arrangement Act (CCAA) — Applicants completed liquidation and wind-down of operations — Creditor claims resolution and plan of arrangement development — Monitor supports Stay Period extension — Should the Stay Period be extended to December 22, 2023? — Section 11 of the CCAA governs the court’s discretion to extend the Stay Period where Applicants act in good faith and with due diligence | Estates and trusts — Employee Trust — Termination and releases — Employee Trust created for Nordstrom Canada employees funded by U.S. parent — Trust purpose satisfied — Releases sought for Monitor, Trustee, and Settlor — Should the Employee Trust be wound up and releases granted? — Test for third-party releases in CCAA proceedings applied — Releases granted as rationally connected to wind-down and appropriately limited in scope | Bankruptcy and insolvency — Key Employee Retention Plan (KERP) — Termination of KERP charge — All KERP payments made to eligible employees — No further payments required — Should the KERP charge be terminated, released, and discharged? — Court grants termination of KERP charge as appropriate in the circumstances
CanLII | Oct 4, 2023
- keywords: Contract law — Forum conveniens — Settlements — Enforcement — Rule 31.10
CanLII | Oct 3, 2023
- keywords: Practice and procedure — Stay of proceedings — Certification
CanLII | Oct 3, 2023
- keywords: Torts — Defamation — Default judgment — Defendant noted in default for failing to respond to amended claim — Plaintiffs alleged coordinated defamatory campaign targeting professional reputation — Should the court grant default judgment for defamation? — Deemed admissions under Rule 19.02(1)(a) — Test for granting default judgment — Plaintiffs entitled to judgment for defamation based on deemed admissions and supporting evidence | Torts — Defamation — Injunctive relief — Permanent injunction — Plaintiffs sought to restrain defendant from publishing or republishing defamatory statements — Defendant’s conduct included persistent publication and evasion of service — Should the court issue a permanent injunction? — Injunction granted to prevent further harm and ensure compliance | Torts — Defamation — Damages — General damages — Prolonged defamatory campaign targeting plaintiffs’ professional reputation — Internet-based defamation with widespread dissemination — What is the appropriate quantum of general damages? — Court awarded $450,000 in general damages for defamation — Factors considered include mode of publication, malice, and professional harm | Civil procedure — Costs — Substantial indemnity costs — Plaintiffs sought costs for motion for default judgment — Defendant’s conduct included evasion of service and last-minute adjournment request — Should the court award substantial indemnity costs? — Costs of $45,000 awarded to plaintiffs — Factors include complexity, defendant’s conduct, and proportionality
CanLII | Oct 3, 2023
- keywords: Ccaa proceedings — Purpose and principles of CCAA
CanLII | Oct 3, 2023
- keywords: Practice — Stay of proceedings — Certification
CanLII | Oct 3, 2023
- keywords: Contracts — Telecommunications — Network identifier (NID) — Expiry of prior agreement — Whether the expiry of the NID Agreement precludes the imposition of new terms through injunctive relief — Court held that the expired agreement could not be extended or rewritten through an injunction — Principles of contractual interpretation and expiry of fixed-term agreements | Civil procedure — Injunctions — Interlocutory injunctions — Telecommunications dispute — Whether an interlocutory injunction should be granted to maintain the status quo regarding the display of a network identifier (NID) pending arbitration — Court held that the moving party failed to establish a strong prima facie case or irreparable harm — Test for injunctive relief under RJR-Macdonald Inc. v. Canada | Civil procedure — Irreparable harm — Telecommunications — Display of competitor’s network identifier (NID) — Whether displaying a competitor’s NID on roaming devices constitutes irreparable harm — Court found no irreparable harm as customer confusion could be clarified and any financial loss could be quantified — Application of irreparable harm principles in competitive markets | Civil procedure — Sealing orders — Confidential commercial information — Telecommunications agreements — Whether a sealing order should be granted to protect confidential materials in motion records — Court granted the sealing order, finding that disclosure posed a serious risk to important public interests, including confidentiality obligations under regulatory frameworks — Test for sealing orders under Sherman Estate v. Donovan
CanLII | Sep 28, 2023
- keywords: Civil procedure — Contempt — Sentencing
CanLII | Sep 27, 2023
- keywords: Business associations — Oppression remedy — Shareholder rights — Failure to pay redemption amount for preference shares — Whether failure to pay constitutes oppressive conduct under section 248 of the Ontario Business Corporations Act — Oppression remedy focuses on reasonable expectations of shareholders — Articles of Incorporation enforceable through oppression remedy — Court declined to make a finding of oppression but ordered payment of redemption amount | Securities — Preference shares — Redemption rights — Applicant delivered Notice of Election to redeem preference shares under Articles of Incorporation — Whether applicant entitled to redemption amount — Articles of Incorporation and section 32(2) of the Ontario Business Corporations Act govern redemption rights — Court ordered payment of $999,007.50 plus interest | Civil procedure — Stay of proceedings — Consolidation of applications — Respondents sought to stay or consolidate application with other pending proceedings — Whether application should be stayed pending resolution of Loans Action or other applications — Court declined stay, finding no prejudice to respondents and no justification for delay | Bankruptcy and insolvency — Solvency test — Redemption of shares — Respondents argued payment of redemption amount would render corporation insolvent — Solvency test under section 32(2) of the Ontario Business Corporations Act applied — Court found corporation solvent based on financial statements and rejected insolvency argument
CanLII | Sep 22, 2023
- keywords: Commercial law — Injunctions — Interim injunctions — Contract law — Interpretation
CanLII | Sep 21, 2023
- keywords: Insurance — Reinsurance — Retrocession agreements — Follow the settlements clause — Whether the defendant was contractually bound to follow the settlement under the Retrocession Agreement — Interpretation of follow the settlements clauses in reinsurance contracts — Governing principles of contract interpretation — Defendant required to follow the settlement under the Local Policy — Ontario law applied to interpret the Retrocession Agreement | Contracts — Reinsurance — Follow the settlements clause — Whether the defendant could challenge the settlement on the basis of improper or unbusinesslike steps — Settlement must be arguably within coverage and entered into in good faith and through proper and businesslike steps — Zurich’s investigation and settlement process found to meet the required standard | Insurance — Damages — Reimbursement of settlement payments and loss adjustment costs — Whether the plaintiff was entitled to recover damages from the defendant under the Retrocession Agreement — Plaintiff entitled to recover 99.89% of settlement payment and loss adjustment costs — Claim for loss adjustment costs not statute-barred under the Limitations Act, 2002 | Civil procedure — Limitations — Loss adjustment costs — Whether the plaintiff’s claim for loss adjustment costs was statute-barred — Limitation period begins when the plaintiff requests reimbursement from the defendant — Claim for loss adjustment costs not barred as it was made within two years of the reimbursement request | Insurance — Punitive damages — Whether punitive damages should be awarded for the defendant’s refusal to pay under the Retrocession Agreement — No evidence of deliberate or obstructive conduct by the defendant — Punitive damages not awarded
CanLII | Sep 21, 2023
- keywords: Commercial law — Corporations — Arrangements and compromises
CanLII | Sep 19, 2023
- keywords: Business associations — Limited partnerships — Removal and replacement of general partners — Validity of resolutions — Whether the Original General Partners were validly removed and replaced by the Tridelta General Partners under the Limited Partnership Agreements — Court upheld the validity of the Special Resolutions and Appointing Resolutions — Fiduciary duties and contractual obligations of general partners under limited partnership agreements | Contracts — Capital Calls — Validity of Capital Calls issued by Original General Partners — Whether the Capital Calls complied with the Limited Partnership Agreements — Capital Calls found invalid due to failure to meet preconditions, including lack of external financing attempts — Management Agreements with affiliates not duly authorized — Limited Partnership Agreements, Article 4.3(i), Article 8.9 | Obligations — Fiduciary duties — Breach of obligations by general partners — Failure to provide access to records, co-mingling of funds, and unauthorized agreements with affiliates — Whether breaches justified removal of general partners — Court found multiple breaches of fiduciary duties and obligations under Limited Partnership Agreements — Article 8.10 of Limited Partnership Agreements applied | Access to information — Disclosure obligations — Limited partners’ rights to access records — General partners’ failure to provide financial records, general ledgers, and bank statements — Whether failure to disclose constituted a breach of fiduciary duties — Court held that lack of transparency and refusal to disclose records breached Limited Partnership Agreements and statutory obligations under Limited Partnerships Act | Civil procedure — Counterclaims — Damages, defamation, and unjust enrichment — Whether counterclaims by Original General Partners were valid — Counterclaims dismissed due to lack of evidence and failure to establish unjust enrichment or defamation — Management Agreements found unauthorized and unenforceable
CanLII | Sep 18, 2023
- keywords: Civil procedure — Amendments to pleadings — Rule 26.02(a) — Whether amendments made as of right to an existing statement of claim are subject to the Limitations Act — Court declined to decide the applicability of the Limitations Act on a Rule 21 motion — Rule 21.01(1)(a) test for striking pleadings — Amendments allowed to proceed without prejudice to the defendant’s limitation defence — Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rr. 21.01(1)(a), 26.02(a) | Statutory interpretation — Limitations Act, 2002 — Interpretation of “proceeding” and “commencement” — Whether the addition of new claims to an existing statement of claim constitutes the commencement of a new proceeding under s. 4 of the Limitations Act — Court found it not plain and obvious that the Limitations Act applies to amendments made as of right — Principles of statutory interpretation applied | Construction — Subcontractor claims — Surety bonds — Amendments to pleadings adding claims for conspiracy and breach of fiduciary duty — Whether new claims arise from the same factual matrix as the original claim — Court found the amendments flowed from facts incorporated by reference in the original claim — Construction project disputes involving bid-rigging allegations | Torts — Conspiracy and breach of fiduciary duty — Amendments to pleadings — Whether new claims for conspiracy and breach of fiduciary duty constitute new causes of action or fundamentally different claims — Court declined to decide on the issue at the pleadings stage — Claims allowed to proceed subject to further determination of limitations defences
CanLII | Sep 18, 2023
- keywords: Practice and procedure — Anti-Slapp motions — Timeliness — Public interest — Courts of Justice Act
CanLII | Sep 13, 2023
- keywords: Securities — Investment management — Proceeds of crime — Application by investment manager to pay funds into court — Risk of contravening Criminal Code provisions on proceeds of crime — Whether court has inherent jurisdiction to grant relief in absence of statutory or rule-based authority — Balancing obligations under securities law and anti-money laundering legislation — Criminal Code, R.S.C. 1985, c. C-46, ss. 354, 462.31 | Civil procedure — Inherent jurisdiction — Payment of funds into court — No applicable statutory or rule-based provision — Whether inherent jurisdiction of the Ontario Superior Court of Justice permits payment into court to address risks of criminal liability — Principles of inherent jurisdiction from MacMillan Bloedel and other authorities — Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rr. 43, 72 | Criminal infractions — Proceeds of crime — Risk of contravening Criminal Code — Investment manager’s obligations under anti-money laundering laws — Whether continued management or return of funds constitutes a breach of ss. 354 or 462.31 of the Criminal Code — Balancing obligations to clients and compliance with anti-money laundering legislation — Criminal Code, R.S.C. 1985, c. C-46 | Estates and trusts — Supervisory jurisdiction over trusts — Payment of funds into court — Risk of forfeiture orders under foreign law — Whether funds held in discretionary investment accounts may constitute proceeds of crime — Supervisory jurisdiction to protect trustee from liability — Application of trust law principles to investment management agreements | Criminal procedure — Proceeds of Crime (Money Laundering) and Terrorist Financing Act — Disclosure of suspicious transaction reports — Whether service of application materials on affected parties violates section 8 of the Act — FINTRAC’s policy interpretation on disclosure — Balancing statutory obligations with procedural fairness — Proceeds of Crime (Money Laundering) and Terrorist Financing Act, S.C. 2000, c. 17, s. 8
CanLII | Sep 11, 2023
- keywords: Civil procedure — Temporary stay of proceedings — Appointment of investigative receiver — Related foreign proceedings — Application for stay pending U.S. District Court’s decision on pre-judgment attachment of assets — Avoidance of multiplicity of proceedings and duplication of judicial resources — Whether temporary stay would result in injustice to any party — Section 106 and 138 of the Courts of Justice Act — Framework for granting temporary stays in cases of overlapping foreign proceedings | International law — Comity — Jurisdiction of foreign courts — U.S. District Court proceedings concerning defaults under loan agreements governed by New York law — Substantial overlap of issues between Ontario and U.S. proceedings — Whether Ontario court should defer to U.S. court’s jurisdiction — Principles of comity and cooperation between jurisdictions | Statutory interpretation — Limited Partnerships Act — Record-keeping and disclosure obligations — Compliance with statutory requirements — Whether respondents Terralpa LP and Araterra Inversiones failed to maintain up-to-date records — Court’s jurisdiction to order compliance under section 34(2) of the Limited Partnerships Act — Relief unavailable in foreign proceedings | Evidence — Sealing orders — Protection of sensitive financial information — Exhibits containing confidential financial data filed in Ontario and U.S. proceedings — Whether sealing order satisfies the test in Sherman Estate v. Donovan — Public interest in confidentiality and comity between jurisdictions — Proportionality and limited scope of redactions
CanLII | Sep 6, 2023
- keywords: Contract law — Formation — Oral agreements — Standard of review
CanLII | Sep 6, 2023
- keywords: Insolvency — Companies’ Creditors Arrangement Act — R.S.C. 1985, c. C-36 — Securities Act — R.S.O. 1990, c. S.5
CanLII | Aug 29, 2023
- keywords: Business associations — Dissent rights — Fair value of shares — Application under section 185 of the Ontario Business Corporations Act to determine fair value of dissenting shareholders’ shares — Whether market evidence or discounted cash flow (DCF) analysis should be relied upon — Court determined fair value of shares at $1.50 per share — Ontario Business Corporations Act, R.S.O. 1990, c. B.16, s. 185 | Securities — Share valuation — Dissenting shareholders — Plan of arrangement — Whether the transaction price of $1.50 per share represents fair value — Court found no market distortion and relied on market evidence as the best indicator of fair value — Market evidence preferred over speculative DCF analysis — Ontario Business Corporations Act, R.S.O. 1990, c. B.16, s. 185 | Evidence — Expert evidence — Discounted cash flow (DCF) analysis — Competing expert reports on share valuation — Whether assumptions regarding production capacity and iron ore price forecasts were reasonable — Court rejected reliance on speculative assumptions in DCF analysis — Market evidence deemed more reliable than theoretical valuation methods | Civil procedure — Pre-judgment interest — Delay in proceedings — Whether dissenting shareholders are entitled to interest for the entire period from the valuation date to payment — Court awarded interest for the full period, including during a stay of proceedings, at the applicable pre-judgment interest rate — Ontario Business Corporations Act, R.S.O. 1990, c. B.16, s. 185(27)
CanLII | Aug 29, 2023
- keywords: Business associations — Shareholder disputes — Multi-jurisdictional corporate governance — Thai and Canadian shareholders' conflicts over cannabis business shares — Interference in governance, including dilution and oppressive conduct — Actions of directors and majority shareholders — Were corporate directors’ actions oppressive under the reasonable expectations of the minority shareholders? — Governing principles of corporate governance and director obligations to all shareholders | Contracts — Formation of a binding agreement — Sale of corporate shares — Agreement to agree versus meeting of minds — Multi-party exchange of terms through emails and negotiations — Did the parties reach a binding agreement for the sale of shares? — Objective, reasonable bystander test for enforceability based on consensus and adequacy of terms | Securities — Oppression remedy — Proposed rights offering — Dilution of minority shareholder interests — Issuance of new shares at below-market prices — Unfair disregard of minority shareholders’ financial stakes — Was a proposed rights offering oppressive under Ontario corporate law? — Oppression analysis in the context of shareholder dilution and inadequate corporate financing rationale
CanLII | Aug 25, 2023
- keywords: Civil procedure — Letters Rogatory — Enforcement — Ontario Evidence Act and Canada Evidence Act — Statutory preconditions for enforcement of foreign court requests — Discretionary factors including relevance, necessity, and burden — Whether production of documents imposes undue burden on non-party — Cost-sharing measures for compliance — Principles of international comity and mutual deference — Framework for enforcing Letters Rogatory under Ontario law | International law — Letters Rogatory — Cross-border discovery — Request from United States District Court for production of documents in Ontario — Whether foreign court’s request satisfies statutory preconditions under Ontario Evidence Act and Canada Evidence Act — Principles of international comity and respect for foreign judicial processes | Evidence — Relevance — Necessity — Non-party production — Whether requested documents are relevant to issues of falsity and scienter in U.S. securities litigation — Whether documents are necessary for trial and not otherwise obtainable from other sources — Ontario standard of “semblance of relevance” applied to foreign discovery requests | Civil procedure — Public policy — Enforcement of foreign court orders — Whether enforcement of Letters Rogatory contravenes public policy in Ontario or Canada — Safeguards for confidentiality and privilege in cross-border discovery — Balancing fairness to non-party respondents with principles of international cooperation
CanLII | Aug 24, 2023
- keywords: Civil procedure — Dismissal for delay — Rule 24.01 — Plaintiff’s action dismissed for inordinate and inexcusable delay — Action commenced in 2014, pleadings closed in 2015, no substantive steps taken since — Should the court exercise its discretion to dismiss the action for delay? — Test for dismissal under Rule 24.01(1)(c) — Balancing timely resolution of disputes with adjudication on merits | Torts — Fraudulent misrepresentation — Allegations of fraud in commercial transaction — Plaintiff alleged defendants failed to disclose risks of uranium mining moratorium — Delay in advancing fraud claims — Does the nature of fraud allegations impose a higher obligation to prosecute claims expeditiously? — Alberta Court of Appeal’s reasoning in fraud cases applied | Evidence — Prejudice from delay — Faded memories, death of witnesses, and loss of documents — Key witness deceased, corporate records unavailable — Can the plaintiff rebut the presumption of prejudice caused by inordinate delay? — Test for prejudice in delay cases — Importance of viva voce evidence in fraud allegations
CanLII | Aug 22, 2023
- keywords: Bankruptcy and insolvency — Receivership — Approval of Receiver’s conduct and fees — Discharge of Receiver — Receiver sought approval of its activities, fees, and disbursements, and discharge from its role — Should the Receiver’s conduct and fees be approved, and should it be discharged? — Approval granted as appropriate and unopposed — Bankruptcy and Insolvency Act, s. 243(1); Courts of Justice Act, s. 101 | Bankruptcy and insolvency — Costs — Personal liability for costs — Applicant sought $50,000 in costs, payable by Mr. Wu personally — Should Mr. Wu be personally liable for costs? — Mr. Wu’s conduct found to constitute abuse of process — Costs awarded against Mr. Wu personally — Bankruptcy and Insolvency Act, s. 197; Courts of Justice Act, s. 131 | Bankruptcy and insolvency — Abuse of process — Non-party liability for costs — Mr. Wu failed to comply with court orders and obstructed the receivership process — Does Mr. Wu’s conduct amount to an abuse of process? — Abuse of process found due to non-cooperation and failure to comply with court orders — Costs awarded against Mr. Wu personally | Civil procedure — Costs against non-parties — Jurisdiction — Court’s discretion to award costs against non-parties under Bankruptcy and Insolvency Act and Courts of Justice Act — Does the court have jurisdiction to award costs against a non-party? — Jurisdiction confirmed under s. 197 of the Bankruptcy and Insolvency Act and s. 131 of the Courts of Justice Act
CanLII | Aug 18, 2023
- keywords: Bankruptcy and insolvency — Appointment of receiver — Just and convenient standard — Applicant sought appointment of a full receiver under section 243 of the BIA and section 101 of the CJA — Respondents opposed full receivership but consented to interim receivership continuation — Is it just and convenient to appoint a full receiver? — Test for appointing a receiver includes consideration of all circumstances, particularly the rights of secured creditors and the nature of the property | Civil procedure — Receivership — Factors for appointing a receiver — Court considered factors such as irreparable harm, risk to secured creditors, preservation of property, and balance of convenience — Are these factors to be applied as a checklist or holistically? — Factors viewed holistically to determine whether appointment is just or convenient | Contracts — Financing commitment — Evidence of proposed financing — Respondents presented a financing commitment to avoid receivership — Commitment lacked certainty due to conditionality and absence of lender evidence — Does the financing commitment provide sufficient certainty to avoid receivership? — Court found significant uncertainty in the proposed financing, justifying receivership | Bankruptcy and insolvency — CCAA proceedings — Receiver’s authority — Applicant sought authorization for the receiver to commence CCAA proceedings — Court declined to grant such authority at this stage, finding it premature — Should the receiver be authorized to commence CCAA proceedings? — Court left the issue open for future consideration
CanLII | Aug 18, 2023
- keywords: Real property — Commercial law — Receivers — Appointments
CanLII | Aug 18, 2023
- keywords: Bankruptcy and insolvency — Companies’ Creditors Arrangement Act, R.S.C. 1985, c. C-36
CanLII | Aug 18, 2023
- keywords: Banks and banking — Application for approval of sale — S funding order
CanLII | Aug 11, 2023
- keywords: Barristers and solicitors — Relationship with client — Confidentiality — Removal of counsel of record
CanLII | Aug 10, 2023
- keywords: Contracts — Settlement agreements — Intention to create legal relations — Whether the "Outline of Terms of Settlement" was intended to create a legally binding and enforceable agreement — Objective assessment of parties’ intention based on language, context, and conduct — Court held that the Outline was not intended to be binding — Principles of contract formation applied | Contracts — Settlement agreements — Essential terms — Whether the "Outline of Terms of Settlement" resolved all essential terms required for a binding settlement — Disputes over material terms such as tax liabilities, shareholder rights, and debt reallocation — Court found unresolved essential terms precluded enforceability — Requirement for agreement on all essential terms | Civil procedure — Dispute resolution — Role of courts in settlement disputes — Whether the court can resolve disputes over essential terms left unresolved in the "Outline of Terms of Settlement" under the dispute resolution clause — Court held it cannot create a contract for the parties or resolve essential gaps — Limits of judicial intervention in settlement enforcement
CanLII | Aug 10, 2023
- keywords: Corporations — Arrangements — Business Corporations Act — R.S.O. 1990, c. B.16, s. 182
CanLII | Aug 9, 2023
- keywords: Bankruptcy and insolvency — Interim stay of proceedings — Cross-border insolvency — Application under Part IV of the Companies’ Creditors Arrangement Act (CCAA) — Canadian Debtors and Yellow Parent seeking interim stay in Canada to align with U.S. Chapter 11 proceedings — Should the court grant the interim stay? — Interim stay necessary to preserve value and facilitate orderly wind-down — Principles of comity and cooperation applied — Companies’ Creditors Arrangement Act, R.S.C. 1985, c. C-36 | Civil procedure — Jurisdiction — Stay of proceedings — Court’s authority under subsection 49(1) of the CCAA and section 106 of the Courts of Justice Act (CJA) — Can the court grant a stay of proceedings in favour of non-applicant debtor companies? — Jurisdiction upheld to ensure stability and maximize value for stakeholders — Courts of Justice Act, R.S.O. 1990, c. C.43 | International law — Comity and cooperation — Cross-border insolvency — Recognition of U.S. Chapter 11 proceedings in Canada — Is granting the interim stay consistent with principles of comity and cooperation? — Interim stay aligns with international insolvency practices and facilitates recognition of foreign main proceedings — Companies’ Creditors Arrangement Act, R.S.C. 1985, c. C-36, s. 52
CanLII | Aug 8, 2023
- keywords: Civil procedure — Mareva injunction — Variation of order — Defendants sought release of additional $125,000 for legal and accounting expenses — Plaintiffs opposed, citing lack of full disclosure and absence of material change in circumstances — Whether defendants met the four-part test from Credit Valley — Defendants failed to establish no other assets available or exhaustion of non-proprietary assets — Balancing of interests favoured plaintiffs — Test for varying Mareva injunction applied. | Evidence — Disclosure — Defendants failed to provide full and frank disclosure of assets and financial assistance from family and friends — Inconsistent evidence regarding sources of funds and expenditures — Adverse inferences drawn from lack of transparency — Defendants’ failure to account for plaintiffs’ funds undermined credibility — Waxman and Madan principles on disclosure in Mareva injunctions applied. | Civil procedure — Living expenses — Reduction of monthly living expenses under Mareva injunction — Defendants’ sons’ tuition and living costs funded by uncle — Plaintiffs sought reduction to zero; court reduced to $3,000 per month — Defendants failed to provide budget or accounting of current expenses — Balancing of interests under Credit Valley test favoured plaintiffs. | Property — Mareva injunction — Application to defendants’ sons — Defendants sought to vacate injunction as against sons, citing lack of evidence of wrongdoing or proprietary claims — Plaintiffs argued beneficial ownership of property at issue remained unresolved — Court declined to vacate injunction, finding no material change in circumstances — Certificate of pending litigation insufficient to protect plaintiffs’ interests. | Civil procedure — Costs — Plaintiffs largely successful on motions — Defendants sought costs to be paid from frozen funds — Court declined, applying Credit Valley test to costs issue — Plaintiffs awarded $50,000 in costs on partial indemnity basis — Costs principles under Rule 57.01 and s. 131 of the Courts of Justice Act applied.
CanLII | Aug 4, 2023
- keywords: Civil procedure — Motions — Evidence — Letters rogatory — Rules of Civil Procedure, Rule 34.07
CanLII | Jul 28, 2023
- keywords: Breach of contract — Commercial leases — Summary judgment
CanLII | Jul 21, 2023
- keywords: Commercial law — Practice — Orders
CanLII | Jul 20, 2023
- keywords: Bankruptcy and insolvency — Liquidation — Winding-up and Restructuring Act (WURA) — Liquidator’s authority — Approval of fees and disbursements — Liquidator sought approval of activities, fees, and disbursements up to June 30, 2023 — Should the Liquidator’s fees and disbursements be approved? — Approval granted as activities and fees deemed appropriate in complex proceedings under WURA | Sale — Asset sale — Clearco Transaction — Sale and solicitation process (SSP) — Liquidator sought approval of the Clearco Transaction involving the sale of credit facilities — Should the Clearco Transaction be approved under WURA? — Soundair Principles applied — Transaction approved as it maximized value for stakeholders | Civil procedure — Sealing orders — Confidential Appendices — Liquidator sought a sealing order over commercially sensitive information in the Third Report — Should a sealing order be granted? — Test from Sierra Club and Sherman Estate applied — Sealing order granted to protect stakeholders and process integrity | Contracts — Assignment of contracts — Liquidator’s authority under WURA — Liquidator sought approval to assign contracts as part of the Clearco Transaction — Does WURA authorize the assignment of contracts? — Court held WURA provides jurisdiction to assign contracts with consent of counterparties
CanLII | Jul 20, 2023
- keywords: Bankruptcy and insolvency — Recognition of foreign proceedings — Companies’ Creditors Arrangement Act (CCAA) — Application by Foreign Representative for recognition of Chapter 11 Cases as foreign main proceedings — Whether the Chapter 11 Debtors’ centre of main interests (COMI) is in the U.S. — Factors considered include management, financial integration, and operational consolidation — Chapter 11 Cases recognized as foreign main proceedings under sections 47–48 of the CCAA | International law — Recognition of foreign court orders — U.S. Court orders, including DIP Order and Plan Confirmation Order, sought to be recognized in Canada — Whether orders align with Canadian insolvency law and public policy — Orders found consistent with CCAA principles and granted full force and effect in Canada — Comity and cross-border insolvency principles applied | Civil procedure — Notice requirements — Foreign Representative requested dispensation of newspaper notice requirement under section 53(b) of the CCAA — Court declined to override mandatory publication requirement — Notice of foreign recognition order must be published as prescribed | International law — Debtor-in-possession financing — Recognition of DIP Order and DIP Charge over Canadian collateral — Whether recognition necessary to protect debtor’s property and creditors’ interests — DIP Facility provided liquidity for restructuring and operations — No material prejudice to Canadian stakeholders — DIP Order and DIP Charge recognized under section 49 of the CCAA
CanLII | Jul 18, 2023
- keywords: International law — Recognition and enforcement of foreign arbitral awards — International Commercial Arbitration Act, 2017 — Application to enforce arbitral awards rendered by the International Chamber of Commerce tribunal in Ontario — Whether arbitral awards must be recognized and enforced under the UNCITRAL Model Law and the New York Convention — Mandatory recognition unless limited exceptions apply — Narrow interpretation of exceptions — Ontario court’s discretion to enforce arbitral awards — International Commercial Arbitration Act, 2017, S.O. 2017, c. 2, Sched. 5 | Evidence — Procedural fairness — Arbitration — Allegation of procedural unfairness in arbitral proceedings — Respondent argued it was denied the opportunity to present evidence on counterclaim — Tribunal dismissed counterclaim as speculative due to lack of evidence — Whether tribunal’s conduct violated procedural fairness under the Model Law — High degree of deference to arbitral tribunal decisions — Standard for procedural unfairness under Article 34(2)(a)(ii) of the Model Law | Civil procedure — Issue estoppel — Application of issue estoppel to foreign court decisions — Whether respondent is barred from re-litigating issues already decided by the UK High Court — Requirements for issue estoppel: same question, final decision, same parties — UK High Court dismissed respondent’s procedural fairness challenge to arbitral awards — Ontario court applied issue estoppel to prevent re-litigation | International law — Public policy exception — Enforcement of foreign arbitral awards — Whether enforcement of arbitral awards would offend Ontario’s public policy — Public policy exception narrowly construed — Awards must not offend fundamental principles of justice and fairness — No evidence of procedural or substantive injustice in arbitration — Enforcement of awards upheld
CanLII | Jul 17, 2023
- keywords: Bankruptcy and insolvency — Receivership — Sale of assets — Approval and Vesting Order — Receiver sought approval of AMI Transaction and Bottom Line Transaction — Whether the Receiver adhered to Soundair Principles in conducting sale processes — Court granted approval, finding sufficient effort to obtain best price, fairness, and alignment with stakeholders’ interests — Royal Bank of Canada v. Soundair Corp., 1991 CanLII 2727 (ONCA) applied | Property — Sale of secured assets — Approval of AMI Transaction — Receiver sought approval to sell shares of a cannabis producer and related assets — Whether the sale represented the highest and best value for stakeholders — Court approved transaction, finding it superior to liquidation and preserving business value — Soundair Principles applied | Property — Sale of subsidiary assets — Approval of Bottom Line Transaction — Receiver sought authorization to sell assets of a railroad infrastructure company — Whether the sale maximized value for stakeholders and complied with Soundair Principles — Court approved transaction, finding no exceptional circumstances to override Receiver’s recommendation | Civil procedure — Sealing orders — Confidentiality of transaction terms — Receiver sought sealing of economic terms, third-party contracts, and employee information in sale agreements — Whether sealing orders satisfied Sherman Estate test — Court granted sealing orders, finding serious risk to public interest and proportionality of limitation on open court principle — Sherman Estate v. Donovan, 2021 SCC 25 applied | Securities — Receiver’s reports — Approval of Receiver’s activities — Receiver sought approval of Sixteenth, Supplement to Sixteenth, and Seventeenth Reports — Whether Receiver’s activities and decisions were reasonable and appropriate — Court approved reports, finding no adverse comments or objections
CanLII | Jul 17, 2023
- keywords: Debtor and creditor — Companies' Creditors Arrangement Act — R.S.C. 1985 c. C-36
CanLII | Jul 17, 2023
- keywords: Contracts — Notice provisions — Validity of Claim Certificate — Supplier Indemnity Claim — Escrow Agreement requiring notice by personal delivery, courier, or email — Registered mail not a valid delivery method under Escrow Agreement — Was the Claim Certificate validly delivered? — Strict adherence to contractual notice provisions required — Claim Certificate declared invalid under Escrow Agreement | Contracts — Timeliness of objection — Objection Certificate submitted after 30-day period — Whether objection period triggered by invalid Claim Certificate — Was the Objection Certificate timely? — Invalid Claim Certificate meant objection period never started — No breach of objection deadline | Contracts — Relief from forfeiture — Equitable considerations — Applicants sought relief for late objection due to counsel’s error — Whether relief from forfeiture should be granted — Relief from forfeiture analysis rendered moot by finding of invalid Claim Certificate | Civil procedure — Limitations Act, 2002 — Declaratory relief — Applicants amended application to challenge validity of Claim Certificate — Whether limitation period barred new declaration — No limitation period for declarations without consequential relief — Amended declaration allowed | Civil procedure — Estoppel — Applicants’ prior conduct — Whether applicants estopped from challenging validity of Claim Certificate — No clear admission of validity — No detrimental reliance by respondents — Estoppel not applicable
CanLII | Jul 13, 2023
- keywords: Contracts — Interpretation — Exclusivity provisions — Life of Mine term — Agreement for the supply of liquid sodium cyanide to mining operations — Whether the Agreement precludes the plaintiff from purchasing solid sodium cyanide from another supplier — Proper interpretation of exclusivity and purchase obligations — Principles of contractual interpretation from Sattva and surrounding circumstances — Agreement requires sole sourcing of liquid sodium cyanide from the defendant — Commercial reasonableness and sound business principles | Civil procedure — Declaratory relief — Discretionary remedy — Whether declaratory relief is appropriate in a contractual dispute — Real and live controversy between the parties — Practical utility of a declaration — Court has jurisdiction under Ontario law — Declaratory relief denied as the plaintiff’s interpretation of the Agreement was not accepted — Governing principles from SA v. Metro Vancouver Housing Corp. and Daniels v. Canada
CanLII | Jul 7, 2023
- keywords: Bankruptcy and insolvency — Companies’ Creditors Arrangement Act (CCAA) — Jurisdiction — Court’s supervisory role — Disputes concerning reciprocal easement agreements under a reconveyance agreement — Does section 11 of the CCAA provide the court with jurisdiction to resolve disputes and oversee the completion of agreements? — Broad remedial objectives of the CCAA — Court’s authority to ensure fair and efficient resolution of disputes | Property — Easements — Reciprocal easement agreements — Reconveyance Agreement under CCAA — Dispute over the enforceability of Article 4.1(m) — Does the court have jurisdiction to enforce or interpret reciprocal easement agreements under the CCAA? — Court’s supervisory role in ensuring compliance with reconveyance obligations | Contracts — Imposition of terms — DGAP Easement Agreement — Whether the court can impose contractual terms on parties without mutual consent — Does the CCAA allow the court to rewrite or impose terms in a contract? — General rule against judicial rewriting of contracts — Application of principles from Jedfro Investments and Century Services | Contracts — Interpretation — Reconveyance Agreement — Article 4.1(m) — Timing and enforceability of reciprocal easement agreements — Whether Article 4.1(m) constitutes an “agreement to agree” — Proper interpretation of contractual provisions in light of commercial efficacy — Guidance from Scanlon v. Castlepoint Development Corp | Civil procedure — CCAA proceedings — Impasse resolution — Court’s role in facilitating negotiations and ensuring timely completion of agreements — Steps to resolve disputes under the CCAA framework — Scheduling motions and case conferences to address outstanding issues — Balancing stakeholder interests and ensuring compliance with court orders
CanLII | Jul 6, 2023
- keywords: Representation — Contract law — Rectification
CanLII | Jul 4, 2023
- keywords: Bankruptcy and insolvency — Companies’ Creditors Arrangement Act — Sales and Investment Solicitation Process (SISP) — Approval of SISP proposed by Applicants — Whether SISP maximizes value for stakeholders — Monitor’s recommendation supporting SISP — Does the SISP foreclose alternative restructuring options? — Governing principles under ss. 11 and 36 of the CCAA — Soundair Principles applied to sales processes | Bankruptcy and insolvency — DIP financing — Approval of alternative DIP facility — Whether alternative DIP financing proposed by Green Acre Capital LP should replace existing DIP facility — Reasonableness of terms, including interest rate and exit fee — Disruption and instability caused by replacing DIP lender — Governing factors from Great Basin Gold Ltd. Re, 2012 BCSC 1459 | Sale — Stalking Horse Agreement — Inclusion in SISP — Whether Stalking Horse Agreement disadvantages stakeholders — Break fee and baseline price considerations — Monitor’s analysis of break fees in comparable cases — Whether Stalking Horse Agreement facilitates or restricts alternative transactions — Governing principles from Danier Leather Inc., Re, 2016 ONSC 1044 | Bankruptcy and insolvency — DIP financing — Reasonableness of terms — Break fee in existing DIP facility — Whether break fee is appropriate given the circumstances — Monitor’s review of break fees in CCAA and BIA proceedings — Whether terms of existing DIP facility maximize stakeholder value — Governing principles from CCM Master Qualified Fund v. blutip Power Technologies, 2012 ONSC 1750
CanLII | Jun 25, 2023
- keywords: Bankruptcy and insolvency — Cross-border insolvency — Recognition of foreign orders — Ontario Superior Court of Justice asked to recognize and enforce Interim DIP Order issued by U.S. Bankruptcy Court — Whether recognition and enforcement of the Interim DIP Order under section 49 of the CCAA is appropriate — Principles of comity and cooperation in cross-border insolvency proceedings — Companies’ Creditors Arrangement Act, R.S.C. 1985, c. C-36, s. 49 | Civil procedure — Cross-border insolvency — Motion for recognition of foreign orders — Whether the Ontario Superior Court of Justice should recognize and enforce the Interim DIP Order issued by the U.S. Bankruptcy Court — Service of motion materials and unopposed relief — Framework for recognition of foreign main proceedings under the CCAA — Companies’ Creditors Arrangement Act, R.S.C. 1985, c. C-36, s. 49 | Statutory interpretation — Companies’ Creditors Arrangement Act — Interim financing charges — Whether rollup of prepetition debt into post-petition super priority financing violates section 11.2(1) of the CCAA — Interpretation of section 49 in light of principles of comity and remedial objectives of the CCAA — Companies’ Creditors Arrangement Act, R.S.C. 1985, c. C-36, ss. 11.2(1), 49 | International law — Cross-border insolvency — Comity and cooperation — Whether the rollup of prepetition debt into post-petition super priority financing is consistent with Canadian law and jurisdiction under the CCAA — Coordination of international insolvency proceedings to ensure equal and fair treatment of creditors — Companies’ Creditors Arrangement Act, R.S.C. 1985, c. C-36, s. 49
CanLII | Jun 23, 2023
- keywords: Practice and procedure — Stay of proceedings — Extension of time
CanLII | Jun 22, 2023
- keywords: Civil procedure — Settlements — Enforcement — Presumption of enforcement of agreement — Rules of Civil Procedure — Rule 49.09
CanLII | Jun 22, 2023
- keywords: Corporations — Oppression — Scope of s. 182 of Business Corporations Act — R.S.O. 1990, c. B.16, s. 182.
CanLII | Jun 16, 2023
- keywords: Commercial law — Conflict of laws — Foreign judgments
CanLII | Jun 15, 2023
- keywords: Civil procedure — Mareva injunction — Extension of order — Fraud allegations — Plaintiff sought to extend Mareva Injunction Order freezing defendant’s GIC — Should the Mareva Injunction Order be extended until the final disposition of the underlying action? — Test for Mareva injunction applied, including strong prima facie case, irreparable harm, and risk of dissipation of assets | Evidence — Prima facie case — Fraudulent scheme — Defendant implicated in fraudulent scheme through circumstantial evidence — Did the plaintiff meet the test for a Mareva injunction, including demonstrating a strong prima facie case? — Inferences of fraud and recklessness sufficient to establish prima facie case | Evidence — Ex parte orders — Full and fair disclosure — Defendant alleged plaintiff failed to disclose material facts when obtaining Mareva Injunction Order — Did the plaintiff fail to make full and fair disclosure of material facts? — Rule 39.01(6) of the Rules of Civil Procedure applied; no material non-disclosures found | Civil procedure — Costs — Partial indemnity — Plaintiff awarded partial indemnity costs for Mareva injunction proceedings — Should the plaintiff be awarded costs for the Mareva injunction proceedings, and if so, on what scale? — Costs fixed at $75,000, payable in the cause
CanLII | Jun 15, 2023
- keywords: Business associations — Oppression remedy — Personal liability of directors and officers — Allegations of oppressive conduct by individual defendants in breach of fiduciary duties to a not-for-profit corporation — Whether individual defendants can be held personally liable for actions or inactions contributing to oppressive conduct — Test for personal liability under Wilson v. Alharayeri — Canada Not-for-Profit Corporations Act, S.C. 2009, c. 23, s. 253 | Civil procedure — Motions to strike — Rule 21.01(1)(b) — Whether oppression claims against individual defendants disclose a reasonable cause of action — High threshold for striking claims at the pleadings stage — Generous reading of pleadings required — Rules of Civil Procedure, R.R.O. 1990, Reg. 194, r. 21.01(1)(b) | Civil procedure — Abuse of process — Rule 25.11 — Allegations of tactical motives in naming individual defendants — Whether claims against individual defendants are frivolous, vexatious, or made for an improper purpose — Rules of Civil Procedure, R.R.O. 1990, Reg. 194, r. 25.11 | Statutory interpretation — Oppression remedy under Canada Not-for-Profit Corporations Act — Interpretation of section 253 — Reasonable expectations of members and directors — Whether pleaded facts meet statutory requirements for oppression remedy — Canada Not-for-Profit Corporations Act, S.C. 2009, c. 23, s. 253
CanLII | Jun 14, 2023
- keywords: Bankruptcy and insolvency — Stay of proceedings — Lifting stay — Applicant sought to lift stay under section 69.4 of the Bankruptcy and Insolvency Act to pursue a claim against bankrupt entities for damages caused by a fire — Whether lifting the stay is just and equitable — Governing principles for lifting a stay of proceedings under the Bankruptcy and Insolvency Act | Civil procedure — Stay of proceedings — Unopposed motion — Applicant served all parties, and both the bankrupt entities and the Trustee consented to the order — Whether procedural fairness was observed in lifting the stay — Court satisfied that all procedural requirements were met | Insurance — Prejudice to creditors — Proceeds of insurance — Whether lifting the stay prejudices the bankrupt entities or other creditors — Court found no prejudice as insurance proceeds, if any, would be available only to third parties, including the applicant, and not to all creditors | Evidence — Insurance policy applicability — Necessity of proving insurance coverage — Whether the applicant must establish the applicability of the insurance policy before lifting the stay — Court held that it is sufficient to show that the policy may possibly be available to satisfy the claim — Underlying civil action to determine applicability of the policy
CanLII | Jun 12, 2023
- keywords: Contract law — Breach of contract — Collective agreements — Civil procedure — Arbitration
CanLII | Jun 12, 2023
- keywords: Commercial law — Personal property security — Security interests
CanLII | Jun 8, 2023
- keywords: Bankruptcy and insolvency — Receivership — Approval of fees and disbursements — Receiver sought approval of fees and disbursements totaling $247,953.15 — Debtor opposed fees as unreasonable and sought a reduction — Were the fees and disbursements of the Receiver and its counsel fair and reasonable? — Factors from Bank of Nova Scotia v. Diemer applied — Fees and disbursements approved as fair and reasonable | Property — Receivership — Approval of Receiver’s activities — Receiver sought approval of Third Report and activities described therein — Debtor did not oppose approval of activities but challenged fees — Should the Third Report and activities of the Receiver be approved? — Court approved Third Report and activities as appropriate and consistent with mandate | Civil procedure — Costs — Costs of motion — Receiver sought costs of $18,569.72 on a partial indemnity basis — Debtor sought costs of $10,719.18 — Should the Receiver be awarded costs of the motion? — Receiver awarded $12,500 in costs, payable by the Debtor within 60 days
CanLII | Jun 6, 2023
- keywords: Commercial law — Practice — Trials — Consolidation
CanLII | Jun 5, 2023
- keywords: Insurance — Business interruption — Physical loss or damage — SARS-CoV-2 virus — Whether the presence of SARS-CoV-2 or its variants constitutes physical loss or damage to property under business interruption provisions — Interpretation of “physical loss or damage” as requiring tangible or concrete harm — SARS-CoV-2 does not alter or harm property — No coverage for economic loss absent physical damage | Insurance — Civil authority orders — Business interruption — COVID-19 pandemic — Whether civil authority orders issued due to SARS-CoV-2 cause physical loss or damage to property — Orders aimed at protecting human health, not addressing property damage — Loss of use of property does not constitute physical loss or damage — No coverage under business interruption provisions | Insurance — Exclusions — Business interruption — SARS-CoV-2 virus — Whether exclusions in property insurance policies apply to losses caused by SARS-CoV-2 or civil authority orders — Exclusions for contamination, loss of use, communicable disease, and governmental action — Exclusion analysis deferred due to negative findings on coverage issues
CanLII | Jun 5, 2023
- keywords: Bankruptcy and insolvency — Receivership — Substantive consolidation — Bridging SMA 2 LP — Whether substantive consolidation should apply to Bridging SMA 2 LP in the context of receivership proceedings — Factors for substantive consolidation include difficulty in segregating assets, co-mingling, and fairness to stakeholders — Court deferred decision on substantive consolidation pending resolution of distribution issues — Redstone test applied to assess fairness and prejudice | Securities — Receivership — Interim distributions — SMA 2 Unitholders sought further interim distribution of funds — Receiver opposed distribution as premature due to unresolved distribution issues — Whether SMA 2 Unitholders entitled to further interim distribution — Court deferred further distribution until substantive consolidation and distribution issues resolved — Deference given to Receiver’s recommendations | Civil procedure — Role of Receiver — Receivership proceedings — Receiver’s recommendations regarding timing of distributions and substantive consolidation — Receiver required to consider interests of all stakeholders — Court deferred to Receiver’s view that further analysis of distribution issues was necessary — Deference to Receiver’s recommendations upheld unless unreasonable
CanLII | Jun 5, 2023
- keywords: Bankruptcy and insolvency — Approval of transactions — Reverse vesting order (RVO) — Sale process — Should the court approve the Subscription Agreement and the proposed transactions, including the ARVO? — Court approved the transactions as fair, reasonable, and necessary to preserve the applicants’ business and licenses under the CCAA | Bankruptcy and insolvency — Releases — Directors, officers, and advisors — Should the court grant the requested releases in favour of the applicants’ directors, officers, employees, advisors, and other parties? — Releases approved as rationally connected to the restructuring and necessary to maximize creditor recovery under the CCAA | Civil procedure — Sealing orders — Confidentiality of bid information — Should the court grant a sealing order over the bid comparison chart in the Monitor’s Third Report? — Sealing order granted to preserve confidentiality and protect the integrity of the sales process under the CCAA | Bankruptcy and insolvency — Stay of proceedings — Extension of stay — Should the court extend the stay of proceedings to allow the applicants to implement the proposed transactions? — Stay extended to June 30, 2023, to facilitate the completion of the transactions and the applicants’ exit from the CCAA proceedings | Statutory interpretation — Companies’ Creditors Arrangement Act (CCAA) — Reverse vesting order (RVO) — Does the ARVO structure meet the requirements of fairness and reasonableness under the CCAA? — ARVO structure approved as necessary, fair, and reasonable, ensuring a going-concern outcome and compliance with CCAA objectives
CanLII | Jun 2, 2023
- keywords: Conflict of laws — Jurisdiction — Real and substantial connection — Forum non conveniens — Burden of proof — Rules of Civil Procedure, r. 17.02, 17.03(1),(2)
CanLII | Jun 1, 2023
- keywords: Contract law — Interpretation — Real property — Mortgages
CanLII | May 30, 2023
- keywords: Bankruptcy and insolvency — Receivership — Sale approval — Discharge and release — Receiver sought approval of sale agreement, activities, and discharge — Should the Receiver’s sale process and activities be approved, and should the Receiver be discharged? — Soundair Principles applied — Approval granted for sale, activities, and discharge upon filing of Receiver’s Certificate | Property — Receivership — Sale of real property — Receiver sought approval of sale of medical office buildings — Should the court approve the sale of the property under the Bankruptcy and Insolvency Act and the Courts of Justice Act? — Sale process adhered to court orders and protected stakeholders’ interests — Sale approved | Sale — Distribution of proceeds — Real estate commissions — Receiver sought approval to distribute sale proceeds and pay commissions — Should the Receiver’s distribution of proceeds and payment of commissions be approved? — Distribution motion supported by evidence and unopposed — Distribution and commission payment approved | Statutory interpretation — Excise Tax Act — Deemed trust for HST arrears — Receiver argued deemed trust did not apply to sale proceeds — Does the deemed trust for HST arrears apply to the sale proceeds? — Section 222(4) exception for prescribed security interests applied — Deemed trust found inapplicable | Bankruptcy and insolvency — Confidentiality — Sealing and unsealing orders — Receiver sought to seal and unseal confidential documents related to sale process — Should the court approve the sealing and unsealing of documents? — Sierra Club and Sherman Estate test met — Sealing and unsealing orders approved
CanLII | May 30, 2023
- keywords: Bankruptcy and insolvency — Companies’ Creditors Arrangement Act (CCAA) — Eligibility for CCAA protection — Applicant incorporated in Ontario with liabilities exceeding $5 million — Applicant insolvent and unable to meet obligations as they become due — Does the applicant meet the criteria for CCAA protection? — Section 2 of the CCAA and expanded insolvency concept under Stelco Inc. (Re) applied | Bankruptcy and insolvency — Stay of proceedings — Extension of stay to non-filing affiliates — Vertically integrated business structure — Non-filing affiliates critical to operations and restructuring — Would failure to extend the stay undermine the restructuring process? — Section 11.02(1) of the CCAA and case law on extending stays to affiliates applied | Bankruptcy and insolvency — Administration Charge — Securing fees and expenses of monitor and legal counsel — Proposed Administration Charge of $400,000 CAD — Is the Administration Charge necessary and reasonable in the circumstances? — Section 11.52 of the CCAA applied to grant the charge
CanLII | May 26, 2023
- keywords: Debtor and creditor — Receivers — Appointments — Bankruptcy and Insolvency Act
CanLII | May 25, 2023
- keywords: Bankruptcy and insolvency — Receivers — Appointments — General Security Agreement — R.S.C. 1985, c. G-5, s. 243.
CanLII | May 23, 2023
- keywords: Bankruptcy and insolvency — Companies’ Creditors Arrangement Act (CCAA) — Arbitration in insolvency proceedings — Monitor and foreign representative seeking determination of consulting fees under co-ownership agreement — Whether decision to set aside arbitral award constitutes an order under the CCAA — Leave to appeal required for orders incidental to CCAA proceedings — Companies’ Creditors Arrangement Act, R.S.C. 1985, c. C-36, s. 13 | Contracts — Arbitration — Jurisdiction of arbitrator — Arbitrator raising new issue during arbitration hearing — Whether arbitrator exceeded jurisdiction by deciding a matter not covered by arbitration agreement — Scope of arbitration agreement and terms of appointment — Arbitration Act, 1991, S.O. 1991, c. 17, s. 46(1)3 | Contracts — Procedural fairness — Evidence — Arbitrator refusing to admit evidence relevant to new issue raised during arbitration — Whether refusal to admit evidence resulted in procedural unfairness and breach of natural justice — Right to present a full case in arbitration — Arbitration Act, 1991, S.O. 1991, c. 17, s. 46(1)6 | Contracts — Setting aside arbitral award — Procedural fairness and jurisdiction — Application to set aside arbitral award for exceeding jurisdiction and procedural unfairness — Court ordering new arbitration before a different arbitrator — Arbitration Act, 1991, S.O. 1991, c. 17, s. 46 | Civil procedure — Appeals — Leave to appeal under CCAA — Whether decision to set aside arbitral award in CCAA proceedings requires leave to appeal — Orders incidental to CCAA restructuring proceedings — Companies’ Creditors Arrangement Act, R.S.C. 1985, c. C-36, s. 13
CanLII | May 19, 2023
- keywords: Bankruptcy and insolvency — Companies’ Creditors Arrangement Act — Stalking horse bid — Final Bidding Procedures — Approval of sales process — Applicant insolvent and unable to continue operations — Does the proposed sales process maximize recovery for stakeholders and ensure fairness? — Factors from CCM Master Qualified Fund v. Bluetip Power Technologies and Soundair Principles applied to assess fairness, transparency, and commercial efficacy of the process | Sale — Stalking horse bid — Asset Purchase Agreement (APA) — Approval of Stalking Horse APA as baseline bid — Does the Stalking Horse APA provide stability and incentivize competitive bids? — Stalking horse bid deemed highest and best initial offer — Court satisfied that process maximizes recovery for stakeholders and preserves going concern value — CCAA, s. 36 factors considered | Civil procedure — Sealing order — Confidential information — Disclosure schedules — Does court openness pose a serious risk to an important public interest? — Test from Sherman Estate v. Donovan applied — Confidentiality agreements and commercial harm considered — Sealing order granted to protect sensitive information while maintaining public access to majority of materials
CanLII | May 17, 2023
- keywords: Civil procedure — Evidence — Examination of witnesses — Rules of Civil Procedure — Rule 39.03
CanLII | May 17, 2023
- keywords: Civil procedure — Contempt of court — Sanctions — Respondents found in contempt of multiple court orders — Persistent non-compliance with disclosure and accounting obligations — Whether custodial sentence is appropriate to coerce compliance — Court imposed 30-day incarceration for one respondent, stayed pending compliance by a set deadline — Framework for imposing custodial sentences for civil contempt — Contempt sanctions must balance coercion, deterrence, and denunciation | Civil procedure — Adjournments — Contempt sentencing hearing — Respondents sought adjournment to allow further time for compliance with court orders — Applicants opposed adjournment, seeking immediate sanctions — Court granted limited adjournment with strict deadlines for compliance — Adjournments in contempt proceedings must consider fairness and the need to enforce court orders | Civil procedure — Costs — Contempt proceedings — Applicants sought full indemnity costs for contempt sentencing hearing — Respondents argued for reduced costs — Court awarded substantial indemnity costs of $30,000, apportioned 80% to one respondent and 20% to the other — Costs in contempt proceedings reflect seriousness of non-compliance and procedural fairness
CanLII | May 16, 2023
- keywords: Debtor and creditor — Assignments — Companies’ Creditors Arrangement Act
CanLII | May 15, 2023
- keywords: Corporations — Winding-up — Business Corporations Act
CanLII | May 12, 2023
- keywords: Contract law — Contracts of purchase and sale of goods — Statutory contracts — Remedies — Business Corporations Act — R.S.O. 1990, c. B.16, s. 207
CanLII | May 12, 2023
- keywords: Bankruptcy and insolvency — Companies’ Creditors Arrangement Act — Approval of transactions — Applicant sought approval of Canadian Tire Agreement and Winners Agreement under the CCAA — Monitor supported the transactions as fair and reasonable — Do the transactions maximize value for stakeholders and comply with section 36 of the CCAA? — Transactions approved as superior to bankruptcy outcomes — Companies’ Creditors Arrangement Act, R.S.C. 1985, c. C-36, s. 36 | Lease — Assignment of leases — Collingwood Lease and Barrhaven Lease — Applicant sought assignment of leases under section 11.3 of the CCAA — Monitor supported assignments as beneficial to creditors — Landlords did not oppose assignments — Do the assignments comply with section 11.3 of the CCAA? — Assignments approved as meeting statutory requirements — Companies’ Creditors Arrangement Act, R.S.C. 1985, c. C-36, s. 11.3 | Sale — Approval of agreements — Canadian Tire Agreement and Winners Agreement — Applicant argued agreements represented highest offers received during marketing process — Monitor agreed consideration was fair and reasonable — Should the agreements be approved under the CCAA? — Agreements approved as maximizing realizable value for stakeholders — Companies’ Creditors Arrangement Act, R.S.C. 1985, c. C-36 | Bankruptcy and insolvency — Stay of proceedings — Extension of Stay Period — Applicant sought extension of Stay Period to June 27, 2023, to complete liquidation and reconciliation — Monitor’s cash flow forecast demonstrated sufficient funds to continue operations — Is the extension necessary and appropriate? — Stay Period extended to facilitate wind-down process — Companies’ Creditors Arrangement Act, R.S.C. 1985, c. C-36
CanLII | May 12, 2023
- keywords: Injunctions — Mareva injunction — Variation — Jurisdiction
CanLII | May 10, 2023
- keywords: Personal property security — Priorities — Promissory notes — Personal Property Security Act
CanLII | May 10, 2023
- keywords: Costs — Liability — Testator’s fees and disbursements
CanLII | May 9, 2023
- keywords: Commercial law — Practice — Class actions
CanLII | May 9, 2023
- keywords: Companies — Winding-up — Construction of statutes — WEPP Act, s. 3.2
CanLII | May 8, 2023
- keywords: Bankruptcy and insolvency — Companies’ Creditors Arrangement Act (CCAA) — Approval of Securities Purchase Agreement (SPA) — Stakeholders’ exit from CCAA proceedings — Should the SPA be approved to allow monetization of the Land Vehicle and end litigation? — SPA approved as consistent with the CCAA’s purpose and beneficial to Stakeholders — Monitor and Stakeholders granted third-party releases — Broad discretion under CCAA to approve releases and facilitate resolution | Contracts — Securities Purchase Agreement (SPA) — Good faith negotiations — Whether the SPA was negotiated in good faith and consistent with the CCAA’s objectives — SPA negotiated at arm’s length and supported by Stakeholders — No evidence of bad faith by Stelco — Approval of SPA justified by benefits to Stakeholders and compliance with CCAA principles | Property — Reconveyance Agreement and DGAP Sale Agreement — Competing timelines — Should the Court impose a timetable for the completion of the Reconveyance Agreement and DGAP Sale Agreement before the SPA takes effect? — Court declined to impose timetable — SPA and DGAP Sale Agreement not mutually exclusive — Ongoing court supervision to ensure compliance with agreements | Obligations — Good faith under CCAA — Allegations of bad faith by Stelco — Did Stelco fail to act in good faith in fulfilling its obligations under the Reconveyance Agreement? — Court found no lack of good faith — Stelco entitled to act in self-interest within CCAA framework — Ongoing court supervision to address concerns | Civil procedure — Sealing order — Redacted portions of SPA — Should a sealing order be granted to protect sensitive commercial information? — Sealing order granted — Test from Sherman Estate v. Donovan applied — Confidentiality of commercial terms outweighed public interest in disclosure
CanLII | May 5, 2023
- keywords: Bankruptcy — Claims
CanLII | Apr 28, 2023
- keywords: Bankruptcy and insolvency — Fraudulent conveyances — Transfers at undervalue — Insolvent entity restructuring — Did the restructuring transactions breach provisions of the Bankruptcy and Insolvency Act, Assignments and Preferences Act, or Fraudulent Conveyances Act? — Governing principles for determining undervalue and statutory remedies under insolvency legislation | Business associations — Corporate restructuring — Related-party transactions — Insolvency impacts — Did Newco’s acquisition of Oldco’s assets circumvent obligations to creditors? — Judicial assessment of a professional partnership’s liabilities, restructuring motives, and connected parties’ involvement | Civil procedure — Summary judgment — No genuine issue requiring trial — Burden of proof in statutory remedies — Should summary judgment be granted where defendants argue there is no triable issue regarding restructuring transactions? — Test from Hryniak v. Mauldin applied to creditor claims in insolvency | Property — Insolvency — Financial status of Oldco — Did Oldco have sufficient realizable assets or potential goodwill to meet its liabilities? — Analysis of balance sheet solvency, cash flow insolvency, and disputed asset valuations during restructuring | Sale — Professional goodwill — Value of transferred business assets — Did Oldco’s restructuring improperly transfer goodwill for no consideration? — Judicial evaluation of client relationships, firm reputation, and recoverability of intangible assets in insolvency
CanLII | Apr 26, 2023
- keywords: Bankruptcy and insolvency — Recognition of foreign proceedings — Chapter 11 bankruptcy — Debtor sought recognition of 2023 Chapter 11 Proceedings as a “foreign main proceeding” under the CCAA — Whether the requirements of sections 46 and 47 of the CCAA were met — COMI analysis — Governing rule under section 47(1) of the CCAA for recognizing foreign main proceedings | Civil procedure — Stay of proceedings — Talc-related claims — Debtor sought a stay of proceedings in Canada for claims against itself and Canadian co-defendants — Whether a stay was necessary to ensure equal treatment of talc-related claims — Governing rule under section 48(1) of the CCAA for granting a stay of proceedings | International law — Comity — Recognition of foreign orders — Debtor sought recognition of the 2023 TRO and 2023 Foreign Representative Order issued by the New Jersey Bankruptcy Court — Whether recognition was necessary to coordinate Canadian and U.S. proceedings — Principles of comity and section 49 of the CCAA | Bankruptcy and insolvency — Appointment of Information Officer — Ernst & Young Inc. proposed as Information Officer — Whether appointment was appropriate to assist the Court and stakeholders in monitoring foreign proceedings — Discretionary appointment under the CCAA | Statutory interpretation — Notice requirements — Section 53(b) of the CCAA — Debtor sought to dispense with notice requirements due to an existing service list and lack of other Canadian stakeholders — Whether notice requirements could be waived — Governing rule under section 53(b) of the CCAA
CanLII | Apr 25, 2023
- keywords: Professional responsibility — Fiduciary duty — Conflict of interest — Joint retainer — Insurer and insured — Alleged conflict between insured’s non-monetary settlement terms and insurer’s monetary focus — Did the defendants breach their fiduciary duty by acting in a conflict of interest? — Lawyers’ duty of loyalty and avoidance of conflicts under R. v. Neil and Reeb v. The Guarantee Company of North America | Professional responsibility — Withdrawal of representation — Solicitor-client relationship — Breakdown of trust — Timeliness of withdrawal — Did the defendants withdraw from their representation of the plaintiffs in a timely and appropriate manner? — Lawyers’ obligations to withdraw when a conflict or breakdown in the relationship arises | Obligations — Damages — Disgorgement of fees — Additional legal costs — Causation — Were the plaintiffs entitled to disgorgement of fees or reimbursement of additional legal costs due to the alleged breach of duty? — No causal connection between alleged breach and claimed damages | Civil procedure — Abuse of process — Allegations of vexatious litigation — Plaintiffs’ claims dismissed — Were the plaintiffs’ claims an abuse of process? — Abuse of process doctrine not applicable where claims pursued to enforce rights, even if unsuccessful | Professional responsibility — Bad faith — Allegations of improper billing and mishandling of litigation — Did the defendants act in bad faith in their representation of the plaintiffs? — No evidence of bad faith; advice provided was consistent with professional obligations
CanLII | Apr 21, 2023
- keywords: Bankruptcy and insolvency — Receivership — Appointment of receiver — Winding-up of trust — Plaintiffs sought appointment of a receiver under section 101 of the Courts of Justice Act to oversee the winding-up of the Trust and distribution of assets — Is the appointment of a receiver just and convenient? — Test for appointing a receiver under section 101 of the Courts of Justice Act, balancing stakeholder interests and ensuring transparency | Civil procedure — Standing — Plaintiffs as creditors and investors — Plaintiffs sought appointment of a receiver to oversee the winding-up of the Trust — Do plaintiffs have standing to seek the appointment of a receiver? — Plaintiffs have standing as creditors of certain entities and as investors in the Trust, based on their financial interests and claims | Estates and trusts — Trust administration — Winding-up of trust — Plaintiffs sought court-supervised winding-up of the Trust due to concerns about conflicts of interest and inadequate financial disclosure — Should the Trust’s winding-up be overseen by a court-appointed receiver? — Court found it just and convenient to appoint a receiver to ensure fairness and transparency in the winding-up process | Business associations — Oppression remedy — Section 248 of the Business Corporations Act — Plaintiffs sought appointment of a receiver under the oppression remedy, alleging failure to meet reasonable expectations — Can the oppression remedy justify the appointment of a receiver? — Court declined to appoint a receiver under the oppression remedy, finding insufficient evidence of oppression at this stage
CanLII | Apr 19, 2023
- keywords: Commercial law — Corporations — Fraud or oppression — Contract law — Interpretation
CanLII | Apr 17, 2023
- keywords: Contracts — Doctrine of frustration — Foreseeability — Arbitrator’s conclusion that the agreement was frustrated — Whether the arbitrator’s decision was unreasonable for failing to follow binding Ontario precedent on foreseeability — Test for frustration under Ontario law — Supreme Court of Canada and Ontario Court of Appeal decisions governing frustration — Agreement not frustrated where supervening event was foreseen or provided for in the contract | Obligations — Contract interpretation — Foreseeability — Whether the arbitrator failed to apply binding precedent regarding foreseeability in frustration doctrine — Arbitrator’s rejection of foreseeability as a factor in frustration analysis — Ontario law requires consideration of whether the supervening event was foreseen or contemplated by the parties — Arbitrator’s decision unreasonable for failing to follow binding precedent | Natural resources — Mining agreements — Specific project and timeline — Whether the arbitrator erred in interpreting the agreement as tied to a specific project and timeline — Agreement provided for flexibility in mine plans and timelines — Arbitrator’s interpretation inconsistent with the agreement’s terms and commercial purpose — Agreement tied to gold production over 40 years, not a specific mine plan | Civil procedure — Confidentiality orders — Sealing of records — Whether portions of the appeal record should be sealed to protect confidential and commercially sensitive information — Ongoing discussions with First Nations and proprietary technical data — Test from Sherman Estate v. Donovan applied — Confidentiality order granted to protect sensitive information while preserving open court principles
CanLII | Apr 17, 2023
- keywords: Bankruptcy and insolvency — Companies’ Creditors Arrangement Act — Sale of assets — Approval of agreements — Applicant sought court approval of the DKB Capital Agreement under section 36(3) of the CCAA — Whether the agreement satisfied the criteria for approval, including fairness, reasonableness, and benefit to stakeholders — Monitor supported the agreement — Court approved the agreement, finding the marketing process comprehensive and the consideration fair — Section 36(3) of the CCAA applied | Lease — Assignment of leases — Section 11.3 of the Companies’ Creditors Arrangement Act — Applicant sought assignment of certain Leases to DKB Capital on an unopposed basis — Whether the assignment met the statutory test under section 11.3 of the CCAA — Court found the assignments critical to the transaction and beneficial to stakeholders — Assignments approved on an unopposed basis | Bankruptcy and insolvency — Sealing orders — Confidentiality of agreements — Applicant sought a sealing order for the unredacted DKB Capital Agreement — Whether the test for a sealing order under Sherman Estate was met — Court found the order necessary to protect confidentiality and proportional in scope and time — Sealing order granted
CanLII | Apr 14, 2023
- keywords: Bankruptcy and insolvency — Stay of proceedings — Extension of stay — Applicants sought to extend the stay of proceedings under the Companies’ Creditors Arrangement Act (CCAA) to June 2, 2023 — Monitor supported the extension — No material prejudice to creditors — Did the Applicants meet the requirements for an extension? — Section 11.02(2) of the CCAA governs the extension of a stay of proceedings | Bankruptcy and insolvency — Debtor-in-possession (DIP) financing — Increase in authorized borrowings — Applicants sought to increase DIP borrowings from $1,200,000 to $3,100,000 to meet financing needs during the extended stay period — Monitor recommended approval — Did the Applicants satisfy the criteria under section 11.2(4) of the CCAA? — Section 11.2(4) of the CCAA governs the approval of DIP financing | Bankruptcy and insolvency — Charges — Administration Charge and Directors’ Charge — Applicants sought to increase the Administration Charge from $200,000 to $400,000 and the Directors’ Charge from $450,000 to $550,000 — Monitor supported the increases — Were the increases reasonable and necessary under sections 11.51 and 11.52 of the CCAA? — Sections 11.51 and 11.52 of the CCAA govern the approval of charges | Bankruptcy and insolvency — Sale of assets — Approval of sale transaction — Applicants sought approval of the Pinnrz Transaction under section 36 of the CCAA — Monitor supported the sale — Sale deemed beneficial to creditors and fair in the circumstances — Did the sale meet the criteria under section 36(3) of the CCAA? — Section 36(3) of the CCAA governs the approval of asset sales outside the ordinary course of business
CanLII | Apr 14, 2023
- keywords: Commercial law — Corporations — Arrangements and compromises — Securities — Contract law
CanLII | Apr 14, 2023
- keywords: Bankruptcy and insolvency — Receivership — Distribution of proceeds — Bridging Funds placed under receivership pursuant to Ontario Securities Act — Whether Potential Statutory Rescission Claims and Potential Redemption Claims are entitled to priority over General Unitholder Claims — Application of pari passu principle — Framework for distribution in securities-related receiverships under Ontario law | Securities — Statutory rescission rights — Misrepresentation in offering memoranda — Whether statutory rescission rights under Ontario Securities Act create priority over General Unitholder Claims — Distinction between rescission and damages claims — Statutory rescission as a proprietary remedy — Constructive trust imposed to address rescission claims | Statutory interpretation — Ontario Securities Act — Section 130.1(1) — Interpretation of statutory rescission rights — Whether statutory rescission rights confer priority in receivership proceedings — Interaction between securities legislation and insolvency principles — No express statutory priority for rescission claims | Obligations — Pari passu principle — Equal treatment of creditors — Whether pari passu principle applies to distribution among General Unitholder Claims and Potential Priority Claims — Bridging Funds deemed insolvent — No contractual or statutory basis for priority of redemption or rescission claims | Estates and trusts — Constructive trust — Misrepresentation Claimants — Imposition of constructive trust to address statutory rescission rights — Conditions for constructive trust satisfied — Remedy to prevent unjust enrichment — Misrepresentation Claimants cease to be Unitholders upon exercising rescission rights | Contracts — Redemption requests — Unfulfilled redemption requests at time of receivership — Whether unfulfilled redemption requests constitute enforceable liabilities — Discretion of fund manager to accept or reject redemption requests — No priority for incomplete redemption requests
CanLII | Apr 12, 2023
- keywords: Civil procedure — Documents — Production — Relevance — Discovery — Documents subject to production — Rule 30.02, Rules of Civil Procedure
CanLII | Apr 9, 2023
- keywords: Business associations — Corporate governance — Plans of arrangement — Interim orders — Applicant sought an interim order under section 182 of the OBCA to hold a special meeting of shareholders to vote on a proposed plan of arrangement — Should the court grant the interim order? — Court satisfied that the applicant acted in good faith and met statutory requirements — Interim order granted to facilitate shareholder vote and dissent rights | Securities — Shareholder rights — Plans of arrangement — Statutory requirements — Proposed plan of arrangement involved acquisition of all shares of the applicant by another corporation — Does the arrangement satisfy statutory requirements under section 182 of the OBCA? — Arrangement deemed fair and reasonable at this stage — Sufficient indication of fairness to proceed to shareholder vote | Civil procedure — Interim orders — Notice and voting mechanics — Applicant proposed notice and voting mechanics for a special meeting of shareholders to approve a plan of arrangement — Are the proposed mechanics sufficient and appropriate? — Court found mechanics consistent with model orders and sufficient to ensure shareholder participation and dissent rights
CanLII | Apr 6, 2023
- keywords: Injunctions — Interlocutory injunctions — Mareva injunction
CanLII | Apr 5, 2023
- keywords: Commercial law — Practice — Stay of proceedings
CanLII | Apr 4, 2023
- keywords: Insurance — Reciprocal insurance exchanges — Guarantee Fund — Departing members — Ownership rights — Boards claimed entitlement to a share of the Guarantee Fund upon termination of membership — Arbitrator concluded that departing members forfeit equity rights under the Reciprocal Insurance Exchange Agreement — Does the Reciprocal Agreement allow departing members to claim a share of the Guarantee Fund? — Interpretation of the Reciprocal Agreement and its interaction with the Insurance Act | Contracts — Standard form contracts — Interpretation — Reciprocal Insurance Exchange Agreement — Whether interpretation of a standard form contract constitutes a question of law — Supreme Court of Canada guidance in Ledcor and Sattva — Does the interpretation of the Reciprocal Agreement involve a question of law subject to correctness review? — Precedential value of standard form contract interpretation | Civil procedure — Arbitration — Leave to appeal — Arbitration Act, 1991 — Criteria for granting leave to appeal — Importance of matters at stake and significant effect on rights of parties — Boards sought leave to appeal Arbitrator’s decision dismissing their claims to the Guarantee Fund — Do the matters at stake justify granting leave to appeal? — Subsections 45(1) and (2) of the Arbitration Act, 1991
CanLII | Apr 4, 2023
- keywords: Practice — Costs — Motions — Rules of Civil Procedure — Rule 57.03
CanLII | Apr 3, 2023
- keywords: Costs — Substantial indemnity costs
CanLII | Mar 28, 2023
- keywords: Corporations — Arrangements — Business Corporations Act, s. 182
CanLII | Mar 27, 2023
- keywords: Civil procedure — Striking pleadings — Non-compliance with disclosure obligations — Defendants failed to comply with multiple court orders to produce documents and answer undertakings — Should the statement of defence and counterclaim be struck for failure to comply with disclosure and production obligations? — Principles from Falcon Lumber Limited v. 2480375 Ontario Inc. applied — Proportionality and impact of non-compliance on litigation costs and delay considered — Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rr. 30.08(2), 60.12 | Civil procedure — Proportional remedies — Striking pleadings as a remedy — Factors guiding the court’s discretion — Deliberate or inadvertent non-compliance — Materiality of default — Impact on justice and proportionality of remedy — Defendants repeatedly failed to comply with court orders over two years — Should striking pleadings be considered a proportionate remedy? — Principles from Hryniak v. Mauldin and Falcon Lumber Limited applied | Evidence — Costs — Costs awarded to plaintiffs — Defendants’ repeated non-compliance with court orders increased litigation costs — Plaintiffs sought costs of $20,000 to $25,000; defendants proposed $5,000 to $7,000 — Costs fixed at $11,000 inclusive of fees, disbursements, and taxes — Section 131 of the Courts of Justice Act and Rule 57.01 applied
CanLII | Mar 23, 2023
- keywords: Civil procedure — Document production — Affidavit of documents — Proportionality — Relevance — Plaintiffs sought further and better affidavits of documents and production of sensitive information — Defendants sought reciprocal production and protective measures — Should the court order further production and impose confidentiality protocols? — Court ordered mutual production with strict confidentiality measures to protect sensitive information | Torts — Misappropriation of confidential information — Bifurcation — Defendants sought bifurcation of the issue of misappropriation as a standalone matter — Plaintiffs opposed bifurcation — Should the issue of misappropriation be bifurcated? — Court denied bifurcation due to lack of consent under Rule 6.1.01 | Evidence — Authenticity of documents — Electronic records — Defendants challenged the authenticity of two key documents produced in hard copy only — Plaintiffs failed to provide electronic originals or adequate explanation — Should the plaintiffs produce electronic originals or explain their absence? — Court ordered forensic examination by an independent IT expert to locate electronic originals | Intellectual property — Confidential information — Protective orders — Plaintiffs and defendants alleged misuse of proprietary business information — Should protective orders be issued to safeguard sensitive information during litigation? — Court issued protective orders to balance disclosure and confidentiality, citing risk of competitive harm | Torts — Amendments to pleadings — Addition of parties — Plaintiffs sought to amend their claim to add parties and new allegations, including piercing the corporate veil — Should the motion to amend be granted? — Court allowed most amendments, denied piercing the corporate veil as unnecessary at this stage
CanLII | Mar 22, 2023
- keywords: Bankruptcy and insolvency — CCAA protection — Court-appointed Monitor — Alleged misuse of funds by former executives — Mareva injunction sought to preserve assets — Yacht purchased using funds allegedly misappropriated from insolvent company — Monitor’s investigatory powers — Relief sought to benefit creditors — Test for granting Mareva injunction in insolvency context — Courts of Justice Act, s. 101 | Civil procedure — Mareva injunction — Extraordinary relief — Test for granting Mareva injunction — Strong prima facie case — Risk of dissipation or removal of assets — Balance of convenience — Undertaking as to damages — Yacht allegedly purchased with misappropriated funds — Injunction limited to specific asset — Rule 40.01 of the Rules of Civil Procedure | Evidence — Fraud — Prima facie case — Allegations of unjust enrichment, fraud, and breach of fiduciary duty — Misappropriation of funds to purchase Yacht — Lack of evidence supporting Respondents’ claim of legitimate profit distributions — Monitor’s findings supporting misuse of funds — Test for prima facie case in Mareva injunction applications — Bruno Appliance and Furniture, Inc. v. Hryniak, 2014 SCC 8 | Civil procedure — Risk of dissipation — Yacht delisted from Canadian registries — Renamed and relocated — Evidence of sale listings in multiple jurisdictions — GPS locator disabled — Risk of asset removal inferred from Respondents’ conduct — Urgency of injunctive relief to preserve asset — Ontario Professional Fire Fighters Association v. Atkinson, 2019 ONSC 3877 | Civil procedure — Undertaking as to damages — Insolvent moving party under CCAA protection — Strong case justifying dispensation of undertaking — Monitor’s support for relief sought — Sabourin & Sun Group of Cos. v. Laiken, [2006] OJ No. 3847
CanLII | Mar 21, 2023
- keywords: Pleadings — Amendments — Statement of claim — Striking out | Oppression
CanLII | Mar 21, 2023
- keywords: International law — Arbitration — Setting aside arbitral awards — Reasonable apprehension of bias — Arbitrator retained on a concurrent matter by counsel for one party during arbitration — Failure to disclose concurrent engagement — Whether failure to disclose undermines fairness and impartiality of arbitration process — UNCITRAL Model Law, Article 34(2)(a)(iv) — Awards set aside due to reasonable apprehension of bias | Professional responsibility — Arbitrators — Disclosure obligations — Arbitrator’s duty to disclose concurrent engagements — Whether failure to disclose concurrent engagement with counsel for one party creates a reasonable apprehension of bias — IBA Guidelines on Conflicts of Interest in International Arbitration — Arbitrator’s impartiality and independence undermined by non-disclosure | Contracts — Arbitration clauses — Jurisdiction of arbitrator — Whether arbitrator exceeded jurisdiction by making findings not addressed by the parties — Proper party determination made without submissions from parties — Breach of procedural fairness — UNCITRAL Model Law, Article 34(2)(a)(ii) | Civil procedure — Arbitration awards — Reasoned awards — Whether arbitrator failed to provide adequate reasons for decisions — Requirement to address issues raised by parties — Arbitrator’s interpretation of contract provisions — UNCITRAL Model Law, Article 31 — Arbitrator’s reasons found sufficient despite disagreement with interpretation
CanLII | Mar 20, 2023
- keywords: International law — Recognition and enforcement of foreign arbitral awards — Proper notice — Respondents argued they did not receive proper notice of arbitration proceedings under the Model Law and Loan Agreements — Whether notice was reasonably calculated to inform respondents of the arbitration — Proper notice requires compliance with contractual provisions and reasonable efforts to inform parties — Model Law, Article 36(1)(a)(ii) | International law — Ability to present a case — Respondents claimed they were unable to present their case in arbitration due to lack of notice and unauthorized representation by counsel — Tribunal relied on deemed service and ostensible authority of counsel — Whether respondents had a meaningful opportunity to defend — Model Law, Article 36(1)(a)(ii) | International law — Issue estoppel — Whether findings of the Shenzhen Intermediate People’s Court in set-aside proceedings preclude respondents from challenging recognition and enforcement in Ontario — Issue estoppel requires the same question to have been decided in prior proceedings — Deemed service under Chinese law distinguished from proper notice under the Model Law | International law — Enforcement of arbitral awards — Application to enforce a $120 million arbitral award under the International Commercial Arbitration Act, 2017 — Respondents opposed enforcement on grounds of lack of notice and inability to present their case — Court dismissed application for enforcement — Model Law, Article 36(1) | Civil procedure — Fresh evidence — Respondents sought to admit evidence from U.S. enforcement proceedings, including a judgment dismissing enforcement of the award in Hawaii — Whether fresh evidence would have changed the result — Fresh evidence must be relevant, material, and unavailable at the time of the original hearing — Test for admission of fresh evidence not met
CanLII | Mar 20, 2023
- keywords: Commercial law — Banking — Winding-up orders
CanLII | Mar 15, 2023
- keywords: Bankruptcy and insolvency — Stay of proceedings — Extension of Stay Period — Parent Stay — Applicants sought extension of Stay Period and Parent Stay under the Companies’ Creditors Arrangement Act (CCAA) to March 20, 2023 — Whether the Applicants acted in good faith and with due diligence — Section 11.02(2) of the CCAA governs the extension of stay orders | Labour and employment — Key Employee Retention Plan (KERP) — Approval of KERP and KERP Charge — Applicants sought approval of KERP to retain key employees during restructuring — Whether the KERP was reasonable in scope and necessary for restructuring — Test for approving KERP from Walter Energy Canada Holdings Inc. (Re), 2016 BCSC 107, applied | Bankruptcy and insolvency — Administration Charge — Directors’ Charge — Increase in quantum — Applicants sought to increase Administration Charge to $1.5 million and Directors’ Charge to $13.25 million — Whether the increases were reasonable and supported by evidence — Increases reflect potential obligations during realization process | Bankruptcy and insolvency — Amended and Restated Initial Order (AIRO) — Ancillary relief — Applicants sought approval of AIRO, including priority of charges and payments to third-party providers — Whether the AIRO was fair and reasonable — Court satisfied with liquidity during Stay Period and Parent Stay Period
CanLII | Mar 10, 2023
- keywords: Civil procedure — Abuse of process — Motions
CanLII | Mar 8, 2023
- keywords: Commercialle — Contracts — Privity — Corporations — Arrangements — Business Corporations Act — R.S.O. 1990, c. B. 16, s. 182
CanLII | Mar 3, 2023
- keywords: Bankruptcy and insolvency — Companies’ Creditors Arrangement Act (CCAA) — Initial relief — Stay of proceedings — Wind-down of operations — Insolvency of Nordstrom Canada Entities — Should the Applicants be granted relief under the CCAA to facilitate an orderly wind-down? — Relief granted under section 11 of the CCAA to preserve business and stakeholder value during the Initial Stay Period | Bankruptcy and insolvency — Extension of stay — Related entities — Canada Leasing LP — Nordstrom US — Should the stay of proceedings be extended to related entities to ensure an orderly wind-down? — Court extended stay to related entities under section 11.02(1) of the CCAA to prevent disruption and ensure coordinated proceedings | Labour and employment — Employee Trust — Termination and severance pay — Financial security for employees — Should the Court approve the establishment of an Employee Trust to support employees during the wind-down? — Employee Trust approved to ensure compliance with employment standards legislation and provide timely payments | Bankruptcy and insolvency — Administration Charge — Directors’ Charge — Professional fees — Indemnification of directors and officers — Should the Court grant the requested charges to secure payment for professionals and indemnify directors? — Charges approved as necessary and reasonable under section 11.52 and section 11.51 of the CCAA | Lease — Co-tenancy Stay — Third-party tenant claims — Landlord remedies — Should the Co-tenancy Stay be granted to prevent third-party tenant claims against landlords during the wind-down? — Co-tenancy Stay granted to avoid multiplicity of proceedings and protect the orderly liquidation process
CanLII | Mar 3, 2023
- keywords: Civil procedure — Contempt of court — Setting aside noting in default — Leave to file defences — Developer Defendants found in contempt of Mareva and Disclosure Order — Have the Developer Defendants sufficiently purged their contempt to justify setting aside their noting in default? — Standard for purging contempt requires reasonable efforts to comply to the extent possible — Rule 60.11(8) of the Rules of Civil Procedure applied | Civil procedure — Default judgment — Plaintiffs sought default judgment against Developer Defendants for failure to comply with court orders — Should default judgment be granted when contempt is purged? — Default judgment denied as Developer Defendants demonstrated sufficient efforts to purge contempt — Court prioritizes resolution of disputes on the merits | Evidence — Standard for purging contempt — Mareva and Disclosure Order — Developer Defendants required to account for funds and provide supporting documents — What is the standard for purging contempt in the context of incomplete disclosure? — Perfect compliance not required; reasonable efforts and inability to comply due to external factors considered — Lymer v. Jonsson standard applied | Civil procedure — Costs — Motions for default judgment and leave to file defences — Should costs be awarded to either party? — No costs awarded as both parties acted reasonably in bringing and defending motions — Costs discretion exercised under s. 131 of the Courts of Justice Act and Rule 57 of the Rules of Civil Procedure
CanLII | Feb 28, 2023
- keywords: Debtor and creditor — Arrangements — Sale of assets
CanLII | Feb 27, 2023
- keywords: Bankruptcy and insolvency — Companies’ Creditors Arrangement Act — Reverse vesting order — Approval of amended Share Purchase Agreement (SPA) — Court jurisdiction under section 11 of the CCAA — Soundair Principles and section 36 factors — Does the transaction preserve enterprise value and employment? — Relief granted as the best outcome for stakeholders — RVO justified in challenging cannabis sector circumstances | Commerce and industry — Cannabis sector — Share Purchase Agreement (SPA) — Continuity of business operations — Preservation of cannabis licenses and economic activity — Does the SPA ensure the business continues as a going concern? — SPA approved as critical to maintaining licenses, jobs, and enterprise value | Sale — Third-party releases — Stalking horse bidder — Interim financing and waiver of fees — Are third-party releases justified and necessary for restructuring? — Releases approved as rationally connected to restructuring and supported by stakeholders | Labour and employment — Employee retention — SPA providing for assumption of liabilities and retention of 95% of employees — Does the transaction preserve employment and economic stability? — Preservation of jobs deemed critical to the restructuring process
CanLII | Feb 10, 2023
- keywords: Bankruptcy and insolvency — Receivership — Approval and Vesting Order (AVO) — Receiver’s motion for approval of sale of property and ancillary relief — Termination of Unit Purchaser Agreements — Whether the Receiver’s actions complied with the court-approved Sale Process — Balancing stakeholder interests — Principles from Royal Bank of Canada v. Soundair Corp. applied | Construction — Real estate development — Pre-sale condominium agreements — Termination of Unit Purchaser Agreements as part of receivership sale — Whether Unit Purchasers’ interests were adequately considered — Receiver’s reliance on Appointment Order and inherent jurisdiction to terminate agreements — Stakeholder notice and prejudice considerations | Property — Right of redemption — Secured creditor’s right to redeem property in receivership — Timing of redemption request — Impact on integrity of court-approved Sale Process — Balancing creditor’s rights against the efficacy of the Sale Process — Court’s discretion to deny redemption after Sale Process completion | Sale — Court-approved Sale Process — Receiver’s conduct in marketing and selling property — Evaluation of bids under Soundair principles — Whether Receiver acted providently and considered all stakeholders — Commercial efficacy and integrity of Sale Process — Approval of Agreement of Purchase and Sale (APS) with Ora Acquisitions Inc | Civil procedure — Ancillary relief — Approval of Receiver’s actions and statement of receipts and disbursements — Partial sealing order for confidential exhibits — Balancing open court principle with commercial confidentiality — Sierra Club and Sherman Estate tests applied — Sealing order limited in scope and duration
CanLII | Feb 2, 2023
- keywords: Business associations — Corporate governance — Board of trustees — Requisitioned special meeting — Unitholder rights — Board’s business judgment — Did the Board act with prudence and diligence in setting the meeting date? — Court’s role in reviewing Board decisions — Principles governing deference to business judgment — Declaration of Trust provisions and corporate law principles applied to unitholder meetings | Securities — Requisitioned meetings — Timing of special meetings — Unitholder rights — Board discretion — Was the Board’s decision to delay the special meeting until May 16, 2023 reasonable and justified? — Factors considered by the Board, including costs, financial reporting, and unitholder engagement — Court’s analysis of reasonableness and prejudice to unitholders | Securities — Corporate governance — Unitholder requisitions — Expeditious and reasonable timing — What is the appropriate timeframe for holding a requisitioned special meeting under the Declaration of Trust? — Fundamental unitholder rights to requisition meetings — Governing principles from corporate and trust law — Court’s determination of an expeditious meeting date | Estates and trusts — Declaration of Trust — Unitholder rights — Requisitioned meetings — Interpretation of trust provisions — Does the Declaration of Trust require a requisitioned meeting to be held within a specific timeframe? — Article 13.2 of the Declaration of Trust — Court’s supervisory role in ensuring compliance with trust provisions | Civil procedure — Supplementary evidence — Admission of post-cross-examination evidence — Board meeting minutes — Should the court grant leave to admit supplementary evidence after cross-examinations? — Rule 39.02(2) of the Rules of Civil Procedure — Prejudice to parties and procedural fairness — Court’s discretion to admit supplementary evidence
CanLII | Feb 1, 2023
- keywords: Business associations — Corporate reorganization — Share pledge agreements — Ownership disputes — 2015 corporate reorganization transferring ownership of solar entities without consent of pledgee — Whether February 2022 Order set aside and unwound the reorganization in its entirety — Interpretation of court orders in commercial disputes — Broad and liberal interpretation to achieve court’s intent — Reorganization set aside in full due to breach of pledge agreement and oppression | Contracts — Share pledge agreements — Breach of terms — Corporate reorganization transferring pledged collateral without consent — Whether reorganization violated terms of share pledge agreement — Reorganization found oppressive and unfairly prejudicial to pledgee — Court declared reorganization invalid and unwound it entirely | Obligations — Ownership of corporate entities — Legal and beneficial ownership — Whether Chandler Respondents are rightful owners of Hay Bay Solar LP following reorganization’s invalidation — Court declared Chandler Respondents as legal and beneficial owners through parent company — Ownership restored as part of unwinding reorganization | Civil procedure — Issue estoppel — Finality of judicial decisions — Whether issue estoppel prevents relitigation of ownership of Hay Bay Solar LP — Court applied issue estoppel to bar further disputes over ownership — Same parties, same issue, and final decision in prior proceeding | Civil procedure — Costs — Successful motion — Whether Chandler Respondents entitled to costs for successful motion to clarify February 2022 Order — Court awarded $7,500 in costs to Chandler Respondents, finding amount reasonable under s. 131 of the Courts of Justice Act
CanLII | Jan 31, 2023
- keywords: Commercial law — Corporations — Dissolution
CanLII | Jan 31, 2023
- keywords: Bankruptcy and insolvency — Companies’ Creditors Arrangement Act — Jurisdiction — Insolvency — Applicants seeking protection under the CCAA to restructure operations and stabilize finances — Does the Court have jurisdiction to grant relief, including a stay of proceedings and protection for partnerships? — Test for insolvency under the CCAA and Bankruptcy and Insolvency Act applied | Bankruptcy and insolvency — Charges — Administration charge — Directors’ and officers’ charge — Applicants seeking charges to secure professional fees and protect directors and officers during restructuring — Should the Court grant the requested charges? — Criteria for granting charges under the CCAA, including fairness, necessity, and creditor support | Bankruptcy and insolvency — Monitor — Appointment of KPMG — Investigatory powers — Applicants requesting KPMG as Monitor with powers to recover missing financial records and investigate alleged misconduct — Should the Monitor be granted additional investigatory powers? — Court’s discretion to grant investigatory powers to Monitors in cases of deficient records | Bankruptcy and insolvency — Pre-filing payments — Critical suppliers — Regulatory authorities — Applicants seeking authorization to pay pre-filing amounts to ensure continued operations and maintain fuel licenses — Should the Court authorize pre-filing payments? — Necessity of payments to critical suppliers and regulators for restructuring efforts | Civil procedure — Sealing orders — Confidential Affidavit — Applicants seeking to seal affidavit to comply with a foreign court’s sealing order — Should the Confidential Affidavit be sealed? — Test for sealing orders under Sherman Estate v. Donovan, balancing public interest and confidentiality
CanLII | Jan 30, 2023
- keywords: Jurisdiction — Conveyancing and Law of Property Act — R.S.C. 1985, c. C-36 — Canadian Distribution and Support Act
CanLII | Jan 25, 2023
- keywords: Business associations — Corporate governance — Appointment of inspector — Shareholder disputes — Application for investigation into management and affairs of holding companies under section 161 of the OBCA — Allegations of oppressive and unfairly prejudicial conduct by directors — Whether the appointment of an inspector is justified — Test for appointing an inspector under section 161 of the OBCA — Extraordinary nature of the remedy and discretion of the court | Evidence — Prima facie case — Oppressive conduct — Shareholder rights — Allegations of improper financial management, unauthorized loans, and failure to provide financial information — Whether the evidence establishes a prima facie case of oppressive or unfairly prejudicial conduct under section 161(2) of the OBCA — Evidentiary threshold for appointing an inspector | Estates and trusts — Shareholder disputes — Competing wills — Estate trustee’s entitlement to corporate information — Whether the estate trustee under a disputed will has standing to seek relief under the OBCA — Impact of will challenges on shareholder rights — Intersection of estate law and corporate governance | Securities — Corporate investigations — Costs and proportionality — Scope of proposed investigation into corporate affairs — Whether the proposed investigation is appropriate, reasonable, and proportionate — Consideration of costs, benefits, and alternative remedies — Discretionary nature of relief under section 161 of the OBCA | Civil procedure — Discretionary remedies — Extraordinary relief — Availability of alternative remedies — Whether the court should deny the appointment of an inspector due to the availability of ordinary discovery processes in oppression proceedings — Balancing procedural fairness and efficiency in corporate disputes
CanLII | Jan 20, 2023
- keywords: Bankruptcy and insolvency — Companies’ Creditors Arrangement Act (CCAA) — Disclaimer of agreements — Loss of commercial value claims — Thorneloe University appealed the Claims Officer’s decision to value its loss of commercial value claim at $0.00 — Did the Claims Officer err in applying the expectation measure of damages? — Standard of review for decisions of Claims Officers in insolvency proceedings — Expectation damages as the customary remedy for breach of contract under s. 32(7) of the CCAA | Contracts — Breach of contract — Expectation damages — Loss of commercial value — Thorneloe University argued that loss of commercial value should be assessed instead of lost profits — Claims Officer rejected the Farber Report and concluded Thorneloe was not entitled to damages — Can an unprofitable business claim damages for loss of commercial value? — Non-breaching party cannot be put in a better position than if the contract had been performed | Evidence — Expert evidence — Rejection of expert report — Claims Officer rejected the Farber Report as unreliable and flawed — Thorneloe University argued that the Claims Officer erred in rejecting the report without a responding report or cross-examination — Did the Claims Officer err in rejecting the Farber Report? — Burden of proof on claimant to establish damages in CCAA claims process — Broad discretion of Claims Officers in assessing evidence
CanLII | Jan 19, 2023
- keywords: Civil procedure — Summary judgment — Partial summary judgment — Defendants sought partial summary judgment to dismiss claims based on limitation periods and the alleged non-existence of an oral trust agreement — Should partial summary judgment be granted to resolve discrete issues? — Summary judgment framework under Rule 20 of the Rules of Civil Procedure and Hryniak v. Mauldin principles | Property — Limitation periods — Discoverability — Defendants argued claims were statute-barred under the Limitations Act, 2002 and the Real Property Limitations Act — Plaintiff alleged fraudulent concealment and a rolling limitation period — Should claims older than two years or 15 years be dismissed? — Discoverability and fraudulent concealment principles under the Limitations Act, 2002 | Estates and trusts — Oral trust agreements — Certainty of terms — Plaintiff alleged an oral trust agreement regarding shares and assets — Defendants denied the existence of the trust and argued vagueness and public policy concerns — Should the alleged oral trust agreement be enforceable? — Certainty of terms and public policy considerations in trust law | Evidence — Fraudulent concealment — Limitation periods — Plaintiff alleged fraudulent concealment of claims by the defendants, tolling the limitation periods — Defendants denied concealment and argued plaintiff had constructive knowledge of claims — Does fraudulent concealment toll the limitation periods? — Test for fraudulent concealment under Colin v. Tan and M. (K.) v. M. (H.) | Estates and trusts — Resulting and constructive trusts — Misappropriation of funds — Plaintiff alleged resulting or constructive trust over assets acquired with misappropriated funds — Defendants denied misappropriation and refused to disclose financial records — Are claims of resulting or constructive trust sufficiently supported to proceed to trial? — Principles governing resulting and constructive trusts
CanLII | Jan 19, 2023
- keywords: Corporations — Winding-up — Valuation
CanLII | Jan 19, 2023
- keywords: Bankruptcy and insolvency — Receivers — Powers
CanLII | Jan 19, 2023
- keywords: Bankruptcy and insolvency — Receivers — Application to appoint receiver
CanLII | Jan 19, 2023
- keywords: Ccaa — Civil procedure — Documents — Affidavit of documents — Striking out
CanLII | Jan 18, 2023
- keywords: Contracts — Settlement agreements — Enforceability — Binding nature of settlement agreements — Whether the parties entered into a binding and enforceable settlement agreement — Settlement agreement signed by all parties and supported by part performance — Court found the agreement binding and enforceable — General policy favouring enforcement of settlements | Contracts — Certainty of terms — Validity of settlement agreements — Whether the terms of the settlement agreement were sufficiently certain to constitute a valid contract — Agreement included essential terms for asset division and financial equalization — Court held that non-legalistic language did not undermine enforceability — Framework for assessing certainty of terms | Contracts — Discretion to enforce — Inequities and procedural delays — Whether the court should exercise discretion not to enforce the settlement agreement — Alleged inequities due to passage of time and property value changes — Court declined to unwind the agreement, emphasizing policy favouring settlements — No evidence of unconscionability or bad faith | Contracts — Implementation logistics — Role of associate judge — Logistical steps for implementing the settlement agreement — Court ordered financial statements to be finalized and an associate judge to oversee implementation — Directions provided for accounting, reconciliation, and finalization of asset transfers | Civil procedure — Procedural impediments — Res judicata and election to litigate — Whether procedural doctrines barred enforcement of the settlement agreement — Court rejected res judicata and election arguments — Prior applications addressed discrete aspects of the settlement, not its entirety — Litigation continued to enforce the settlement
CanLII | Jan 18, 2023
- keywords: Civil procedure — Interim preservation orders — Rule 45.01 — Plaintiff sought an interim preservation order to prevent dissipation of assets before judgment — Whether Rule 45.01 is appropriate for restraining asset dissipation or whether a Mareva injunction under Rule 40 is required — Court held Rule 45.01 is not appropriate for pre-judgment execution — Rules of Civil Procedure, R.R.O. 1990, Reg. 194, Rules 40, 42, 45.01 | Civil procedure — Security for costs — Rule 56.01 — Defendant sought security for costs on the basis that the plaintiff is a foreign corporation with insufficient assets in Ontario — Whether security for costs should be granted — Court held security for costs was just and appropriate given the circumstances — Rules of Civil Procedure, R.R.O. 1990, Reg. 194, Rule 56.01 | Civil procedure — Quantum of security for costs — Determination of reasonable quantum for security for costs — Defendant sought $371,502, while plaintiff argued for $115,000 — Court fixed security for costs at $225,000 on a partial indemnity basis, considering litigation complexity and prior cost awards — Rules of Civil Procedure, R.R.O. 1990, Reg. 194, Rule 56.01
CanLII | Jan 17, 2023
- keywords: Bankruptcy and insolvency — Appointment of monitor — Stay of proceedings — Landlord seeking to lift stay to enforce remedies under Lease — Tenant’s failure to pay minimum Base Rent — Does the Tenant’s failure to pay Rent constitute a breach of the Appointment Order? — Court declined to lift stay, ordered mediation — Governing principles for lifting stays in insolvency proceedings | Lease — Rent obligations — Minimum Base Rent — Tenant’s failure to pay Rent under Lease due to COVID-19 restrictions — Landlord seeking to terminate Lease and evict Tenant — Does the Tenant’s failure to pay Rent justify lifting the stay? — Court found ambiguity in “normal rent” under Appointment Order — Stay maintained pending mediation | Contracts — Interpretation — Article 18.07 of Lease — Regulatory changes — Landlord’s duty to consult with Tenant regarding adverse effects of COVID-19 restrictions — Does Article 18.07 impose a duty to renegotiate Rent? — Court found duty to consult but no obligation to amend Lease terms — Interpretation of consultation clauses in commercial leases | Civil procedure — Mediation — Court-ordered mediation to resolve Rent dispute — Landlord and Tenant directed to engage mediator — Should the court order mediation to facilitate a business resolution? — Mediation ordered to address Rent arrears and ongoing obligations — Role of mediation in commercial lease disputes | Lease — Purpose of stay — Appointment Order — Landlord arguing stay’s purpose has been exhausted — Should the stay be lifted to allow Landlord to exercise remedies? — Court found stay’s purpose not yet exhausted — Stay maintained to allow for mediation and further negotiations
CanLII | Jan 16, 2023
- keywords: Civil procedure — Services
CanLII | Jan 12, 2023
- keywords: Injunctions — Mareva injunction — Undertaking as to damages
CanLII | Jan 11, 2023
- keywords: Corporations — Oppression — Business Corporations Act — R.S.O. 1990, c. B.16, s. 248
CanLII | Jan 3, 2023
- keywords: Bankruptcy and insolvency — Motions — Costs
CanLII | Jan 2, 2023
- keywords: Business associations — Oppression remedy — Shareholder disputes — Allegations of oppressive, unfairly prejudicial, or unfairly disregarding conduct under section 248 of the OBCA — Claims of breach of fiduciary duties, including misuse of confidential information and solicitation of employees — Did the conduct of directors and shareholders violate reasonable expectations? — Principles from BCE Inc. v. 1976 Debentureholders applied — Oppression remedy denied where no unfair conduct or prejudicial consequences were established | Business associations — Winding up — Deadlock among shareholders — Application under section 207(1)(b)(iv) of the OBCA to wind up PPG and TBG — Irreparable breakdown of trust and inability to cooperate among shareholders — Just and equitable grounds for winding up closely held corporations resembling partnerships — Order granted for winding up and sale of businesses | Business associations — Winding up — Investment holding companies — Application to wind up Thornbridge under section 207(1)(b)(iv) of the OBCA — Distinction between operating businesses and investment holding companies — Evidence of successful operations and ongoing litigation — Just and equitable grounds not established — Application to wind up Thornbridge dismissed | Business associations — Fiduciary duties — Alleged breaches by directors — Misuse of confidential information, solicitation of employees, and competition with the corporation — Whether breaches constituted oppressive conduct under section 248 of the OBCA — Evidence of reasonable expectations and contractual obligations considered — No oppressive conduct found where actions aligned with contractual terms and did not harm the corporation
CanLII | Dec 30, 2022
- keywords: Lease — Termination of lease — Non-payment of rent — Landlord seeking to terminate SPV Lease for Tenant’s default in paying rent arrears and ongoing rent — Tenant argued for rent abatement due to lack of exclusive possession and incomplete work — Whether Landlord entitled to terminate lease and exercise remedies — Commercial Tenancies Act, R.S.O. 1990, c. L.7 — Landlord entitled to terminate lease for non-payment of rent | Lease — Stay of enforcement remedies — Companion Oppression Application — Applicants in related oppression application sought stay of Landlord’s enforcement remedies pending determination of their motion — Whether stay should be granted and on what terms — Stay granted conditional on payment of monthly rent into trust pending motion | Civil procedure — Fresh evidence — Admissibility — Respondents sought to introduce pre-contractual emails and draft lease provisions as fresh evidence under Rule 59.06(2) — Whether evidence admissible and material to prior decisions — Evidence inadmissible as it did not meet requirements for fresh evidence and was not material | Contracts — Fraudulent misrepresentation — Pre-contractual negotiations — Respondents alleged Landlord fraudulently misrepresented terms of SPV Lease by omitting pre-contractual communications — Whether omission constituted fraudulent misrepresentation — No misrepresentation found as omitted evidence was inadmissible and did not contradict Landlord’s evidence | Contracts — Variation of prior decisions — Respondents sought to vary Lease Decision and Lease Termination Decision based on alleged fresh evidence and new facts — Whether decisions should be varied — No variation granted as fresh evidence was inadmissible and alleged new facts were not material
CanLII | Dec 29, 2022
- keywords: Bankruptcy and insolvency — Receivership — Priority of security interests — Receiver appointed under the Bankruptcy and Insolvency Act (BIA) and the Courts of Justice Act (CJA) — Receiver sought court direction on priority dispute between senior lender and lessor — Does the perfected security interest of the senior lender prevail over the unperfected interest of the lessor? — Governing priority rules under the PPSA and their application in receivership proceedings | Property — Security interests — Perfection and priority — Senior lender held a perfected General Security Agreement (GSA) over debtor’s property — Lessor failed to perfect its security interest in leased trucks — Does the PPSA prioritize perfected security interests over unperfected ones? — Section 20(1)(a)(i) of the PPSA governs priority of perfected security interests over unperfected ones | Sale — Receiver’s authority to sell property — Receiver sought to sell leased trucks subject to unperfected security interest — Lessor argued trucks were excluded from debtor’s property under the Receivership Order — Can the Receiver sell leased property under the BIA and CJA? — Receiver authorized to sell property subject to perfected security interests | Lease — True leases — Exclusion from Part V of the PPSA — Lessor argued that exclusion of “true leases” from Part V preserved its ownership rights — Does the exclusion of “true leases” prevent enforcement of perfected security interests? — Part V exclusion does not nullify priority rules under the PPSA
CanLII | Dec 23, 2022
- keywords: Contracts — Validity of agreements — Enforceability of unsigned agreements — Whether the 2020 Agreement between the parties was valid and enforceable despite not being signed — Parties’ conduct and mutual understanding as evidence of intent to contract — Objective test for contract formation — Governing principles for unsigned agreements — Court’s analysis of the facts and legal principles | Civil procedure — Interlocutory injunctions — Appropriate test — Whether the test for granting an interlocutory injunction should be based on a “serious issue to be tried” or a “strong prima facie case” — Distinction between prohibitory and mandatory injunctions — Practical effects of injunctions — Governing framework for interlocutory relief | Contracts — Irreparable harm — Balance of convenience — Whether the plaintiff would suffer irreparable harm if the interlocutory injunction was not granted — Financial viability and employee retention as factors — Balance of convenience favouring the plaintiff — Adequacy of damages as a remedy — Governing principles for irreparable harm and balance of convenience
CanLII | Dec 19, 2022
- keywords: Bankruptcy and insolvency — Companies’ Creditors Arrangement Act (CCAA) — Post-restructuring disputes — Whether the CCAA continues to apply after a company emerges from protection — Court retains jurisdiction until CCAA proceedings are terminated and the monitor is discharged — CCAA, R.S.C. 1985, c. C-36 | Statutory interpretation — Companies’ Creditors Arrangement Act (CCAA) — Jurisdiction — Whether the CCAA applies to disputes arising after restructuring — Interpretation of ongoing obligations under the CCAA framework — CCAA jurisdiction ends only upon clear termination order and monitor discharge | Contracts — Breach of agreement — Reconveyance Agreement — Whether Stelco breached its obligations to sever and reconvey land — Failure to meet contractual obligations cannot be excused by self-created delays — Party cannot rely on its own breach to avoid performance — Principles of good faith in contract law | Contracts — Waiver of conditions — MOECC consent — Whether LandCo can waive the requirement for MOECC consent under the Reconveyance Agreement — Waiver permitted for conditions solely benefiting one party — MOECC consent deemed unnecessary for reconveyance | Civil procedure — Standing — Participation in motion — Whether DGAP, as a purchaser under a related agreement, has standing to participate — Rule 37.07(1) of the Rules of Civil Procedure — DGAP deemed an affected person due to proprietary and economic interests in the outcome
CanLII | Dec 19, 2022
- keywords: Endorsement — Commercial law — Receivers — Powers
CanLII | Dec 19, 2022
- keywords: Insurance — Declaratory relief — Stay of proceedings — Substantive disputes — Application for declaratory relief regarding insurance coverage under a trade credit and accounts receivable insurance policy — Whether the application should be stayed pending resolution of substantive disputes in foreign jurisdictions — Governing rule: Substantive disputes must be resolved in the appropriate foreign jurisdictions before coverage issues are determined | Civil procedure — Intervention — Consolidation of proceedings — Motions by Rutmet and the UD Group to intervene in an insurance coverage application and consolidate related proceedings — Whether intervention and consolidation are justified to avoid multiplicity of proceedings — Governing rule: Intervention denied where substantive disputes are to be resolved in foreign jurisdictions | Civil procedure — Vexatious litigants — Abuse of process — Cross-motion by TAP to declare Rutmet and the UD Group vexatious litigants and stay their third-party claims — Whether the motions and claims constitute abuse of process — Governing rule: Cross-motion dismissed; third-party claims stayed pending resolution of substantive disputes | Evidence — Affidavits — Striking portions of affidavits — Motion to strike portions of the Sullivan Affidavit as scandalous, frivolous, or vexatious — Whether the impugned paragraphs should be struck — Governing rule: Motion not decided; affidavit not considered in the context of the stay of proceedings
CanLII | Dec 16, 2022
- keywords: Real property — Mortgages — Contract law
CanLII | Dec 8, 2022
- keywords: Discovery — Documents — Production of documents in action
CanLII | Dec 6, 2022
- keywords: Practice — Stay of proceedings — Application for extension of stay
CanLII | Dec 5, 2022
- keywords: Practice and procedure — Stay of proceedings — Extension of time — Judgments and orders
CanLII | Dec 5, 2022
- keywords: Civil — Costs — Outcome of litigation
CanLII | Dec 2, 2022
- keywords: Civil procedure — Costs — Substantial indemnity costs
CanLII | Dec 1, 2022
- keywords: Bankruptcy and insolvency — Foreign law — Supplemental orders — Conflict of laws
CanLII | Nov 29, 2022
- keywords: Bankruptcy and insolvency — Receivership — Contempt motion — Breach of court order — Receiver appointed to enforce judgment — Respondent found in civil contempt for breaching Appointment Order — Costs awarded on a full indemnity basis — Whether costs should reflect the financial burden caused by the respondent’s contempt — Principles governing costs in receivership and contempt proceedings | Civil procedure — Costs — Indemnity basis — Contempt motion — Receiver sought full indemnity costs for contempt motion — Respondent argued for substantial indemnity costs — Whether full indemnity costs are appropriate in contempt proceedings — Costs awarded to ensure the moving party does not bear the financial burden of contempt — Rules of Civil Procedure, r. 57.01(1) | Civil procedure — Costs — Quantum of costs — Reasonableness and proportionality — Receiver’s costs for contempt motion reduced by $65,000 for irrelevant submissions — Whether the quantum of costs claimed was justified given the complexity and seriousness of the proceedings — Factors considered under r. 57.01(1) of the Rules of Civil Procedure | Civil procedure — Costs — Double recovery — Receiver’s time spent on contempt motion included in costs award — Respondent argued this constituted double recovery — Court rejected argument, noting receivership’s lack of liquidity and fairness to stakeholders — Costs awarded under s. 131(1) of the Courts of Justice Act
CanLII | Nov 29, 2022
- keywords: Motions — Interlocutory injunctive relief — Costs
CanLII | Nov 29, 2022
- keywords: Bankruptcy — Receivers — Fees — Disbursements — Experts’ fees
CanLII | Nov 28, 2022
- keywords: Civil procedure — Anti-SLAPP motions — Dismissal of action — Defendants moved to dismiss the plaintiff’s action under s. 137.1 of the Courts of Justice Act, alleging the action arose from expressions on matters of public interest — Motion dismissed as the plaintiff’s claim was not grounded in expressions made by the defendants — Costs awarded on a partial indemnity scale — Courts of Justice Act, R.S.O. 1990, c. C.43, s. 137.1 | Evidence — Public interest expression — Defendants alleged that the plaintiff’s action arose from their expressions regarding alleged privacy violations and defective products — Court held that the plaintiff’s claim was not causally related to the defendants’ expressions — Test for “arises from” under s. 137.1(3) of the Courts of Justice Act applied | Statutory interpretation — Anti-SLAPP provisions — Section 137.1 of the Courts of Justice Act — Interpretation of “arises from” and “public interest” — Court applied the framework from 1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22, and Subway Franchise Systems of Canada, Inc. v. CBC, 2021 ONCA 25 — Defendants failed to meet the threshold burden under s. 137.1(3)
CanLII | Nov 28, 2022
- keywords: Insurance — Commercial law — Practice — Orders
CanLII | Nov 28, 2022
- keywords: Debtor and creditor — Receivers — Duties of receiver and administrator
CanLII | Nov 24, 2022
- keywords: Commercialle — Companies’ Creditors Arrangement Act
CanLII | Nov 24, 2022
- keywords: Real property — Practice — Interpleader — Mortgages — Foreclosure
CanLII | Nov 21, 2022
- keywords: Civil procedure — Motion for summary judgment — Rules 1.04, 39.01
CanLII | Nov 18, 2022
- keywords: Bankruptcy and insolvency — Sales process — Stalking horse agreement — Break fee — Bidding procedures — Approval of stalking horse sales process to maximize value for stakeholders — Whether the sales process is reasonable and the only viable option — Governing factors for approving sales processes under the Companies’ Creditors Arrangement Act (CCAA) | Bankruptcy and insolvency — Critical suppliers — Pre-filing liabilities — Payment approval — Whether payment to critical suppliers is necessary to maintain operations during restructuring — Court’s jurisdiction to facilitate continued business operations under the CCAA | Bankruptcy and insolvency — Key employee retention plan (KERP) — Retention of essential employees — Approval of KERP to ensure stability and success of restructuring — Whether the KERP is justified to retain employees with specialized knowledge — Court’s authority under section 11 of the CCAA | Bankruptcy and insolvency — Administration Charge — Professional fees — Increase in Administration Charge to $500,000 — Whether the increase is reasonable and necessary to cover professional fees during the extended stay period — Section 11.52 of the CCAA governing administration charges | Business associations — Directors’ liability — Personal guarantees — Stay of proceedings — Whether the court has jurisdiction to stay actions against directors for personal guarantees under section 11.03(2) of the CCAA — Interpretation of statutory limits on stay powers | Bankruptcy and insolvency — Stay of proceedings — Temporal extension — Extension of stay to February 3, 2023, to complete sales process — Whether the extension is justified based on good faith efforts and sufficient liquidity — Court’s discretion under the CCAA
CanLII | Nov 14, 2022
- keywords: Bankruptcy and insolvency — Companies’ Creditors Arrangement Act — Reverse vesting orders — Going-concern sale transaction — Approval of transaction preserving licenses, permits, and regulatory authorizations — Stakeholder consultation and creditor recovery — Does the reverse vesting order structure comply with the CCAA? — Jurisdiction under sections 11 and 36 of the CCAA — Framework for approving reverse vesting orders in insolvency proceedings | Sale — Insolvency — Sale of assets — Stalking-horse bid — Approval of sale process under the CCAA — Whether the sale process was reasonable, fair, and beneficial to creditors — Consideration of market canvassing, creditor consultation, and Monitor’s approval — Test for fairness and reasonableness of sale under section 36(3) of the CCAA | Civil procedure — Monitor’s powers — Stay extension — Approval of Monitor’s reports and fees — Sealing orders — Whether the Monitor should be granted enhanced powers to implement the reverse vesting order — Test for sealing orders under Sierra Club of Canada v. Canada (Minister of Finance) — Necessity of stay extension to complete the transaction | Labour and employment — Employee claims — Wrongful dismissal — Former employee pursuing claim in foreign jurisdiction — Whether employee’s claim affects the approval of the reverse vesting order — Treatment of unsecured claims in insolvency proceedings — No recovery for unsecured creditors under the transaction | Statutory interpretation — Companies’ Creditors Arrangement Act — Reverse vesting orders — Interpretation of sections 11 and 36 of the CCAA — Whether reverse vesting orders are permissible under the CCAA — Preservation of licenses, permits, and regulatory authorizations — Application of statutory factors for approving sales under section 36(3)
CanLII | Nov 14, 2022
- keywords: Real property — Certificate of pending litigation — Entitlement — partnership
CanLII | Nov 7, 2022
- keywords: Company law — Oppression — Arbitration clauses — Enforceability — Business Corporations Act — S.O. 2020, c. 4, s. 248
CanLII | Nov 7, 2022
- keywords: Civil procedure — Stay of proceedings — Extension
CanLII | Nov 4, 2022
- keywords: Practice — Stay of proceedings — Extension of time
CanLII | Nov 4, 2022
- keywords: Real property — Commercial law — Mortgages — Foreclosure — Receivers
CanLII | Nov 3, 2022
- keywords: Conflict of laws — Foreign judgments — Recognition and enforcement
CanLII | Nov 2, 2022
- keywords: Contracts — Standstill provisions — Enforcement of debt and security — Plaintiff sought to enforce loan agreements and security despite a standstill provision in the KEB Agreement — Does the standstill provision bar the plaintiff’s claims? — Standstill provisions interpreted broadly to prohibit enforcement actions during the prescribed period | Obligations — Subordination agreements — Priority of creditors — Plaintiff alleged breaches of loan agreements and guarantees — Whether the plaintiff’s claims for recovery of subordinated indebtedness are barred by the standstill provision — Subordination agreements enforceable unless validity is directly challenged | Statutory interpretation — Standing to enforce contractual provisions — Mizrahi Defendants sought to enforce the standstill provision in the KEB Agreement — Do the Mizrahi Defendants have standing to enforce the provision despite general prohibitions in the agreement? — Specific provisions granting enforcement rights prevail over general prohibitions | Civil procedure — Equitable considerations — Stay or dismissal of action — Plaintiff argued that equitable considerations justified allowing the action to proceed despite the standstill provision — Are there equitable grounds to deny the motion to dismiss or stay? — Equities do not override clear contractual obligations under commercial agreements | Evidence — Fraud and forgery — Claims of unauthorized execution of agreements — Plaintiff alleged fraud and forgery in the execution of certain agreements, including the purported release and SCA Amendment — Should claims of fraud and forgery be excluded from the scope of the standstill provision? — Fraud claims may proceed if distinct from enforcement actions barred by the standstill provision
CanLII | Nov 2, 2022
- keywords: Corporate law — Shareholders — Arrangements — Approval of plan — Fairness — Business Corporations Act — R.S.O. 1990, c. B.16, s. 182
CanLII | Nov 2, 2022
- keywords: International law — Arbitration — Reasonable apprehension of bias — Jurisdiction of the court — Application to set aside arbitral award under Article 34 of the Model Law — Whether the court has jurisdiction to decide the application when arbitration is extant — Arbitrator functus officio with respect to the award — Model Law on International Commercial Arbitration, Articles 12, 13, 34 — Ontario International Commercial Arbitration Act, 2017 | Statutory interpretation — Arbitration — Challenge procedure — Model Law on International Commercial Arbitration — Whether applicants were required to follow Article 13(2) challenge procedure before seeking recourse to the court — Applicability of Articles 12 and 13 to extant arbitration — Interpretation of Model Law provisions governing challenges to arbitrators | Civil procedure — Costs — Motion to dismiss or stay application — Costs awarded on a partial indemnity scale — Determination of fair and reasonable costs — Factors under Rule 57.01 of the Rules of Civil Procedure — Costs fixed at $40,000
CanLII | Nov 1, 2022
- keywords: Bankruptcy and insolvency — Receivers — Duties — Unjust enrichment
CanLII | Oct 31, 2022
- keywords: Estates — Real property — Partition and sale — Practice — Documents
CanLII | Oct 31, 2022
- keywords: Bankruptcy and insolvency — Receivership — Appointment of receiver — Just and convenient standard — Applicant sought appointment of a receiver over assets of two related entities under section 101 of the Courts of Justice Act — Whether appointment of a receiver was just and convenient — Test for appointing a receiver under the Bankruptcy and Insolvency Act and Courts of Justice Act — Preservation and realization of debtor’s assets for benefit of creditors | Civil procedure — Receivership — Discretionary appointment — Court’s discretion to appoint a receiver under section 101 of the Courts of Justice Act — Related entities operating a cannabis production facility — Dispute over process for selling assets — Whether court should intervene to resolve impasse — Court-appointed receiver to ensure fair and transparent process | Contracts — Loan and security agreements — Rights of secured creditors — Applicant sought appointment of a receiver over assets of a related entity not party to the loan agreement — Whether applicant had legal or contractual rights to enforce against non-debtor entity — Court found no contractual right to appoint receiver over non-debtor’s assets | Sale — Competing proposals for receiver — Applicant proposed Albert Gelman Inc. as receiver; mortgagees proposed MSI Spergel Inc. — Court considered competing interests and practical implications — Receiver proposed by mortgagees appointed due to balance of convenience and relative debts owed | Property — Fixtures — HVAC equipment affixed to real property — Dispute over whether HVAC equipment constituted a fixture — Court-appointed receiver tasked with resolving disputes over competing priorities and entitlement to sale proceeds — Determination of relative rights and priorities reserved for future proceedings
CanLII | Oct 28, 2022
- keywords: Property — Limited partnerships — Governance disputes — Real estate development — Plaintiffs sought interlocutory injunction to restrain dealings with properties owned by project companies pending trial — Whether plaintiffs entitled to interlocutory relief — Court held no permanent injunction was sought, and no lis existed between parties for such relief — Jurisdictional and jurisprudential limits on granting interlocutory injunctions against non-parties — Courts of Justice Act, s. 101 — Rules of Civil Procedure, r. 40.01 | Civil procedure — Interlocutory injunctions — Undertaking in damages — Plaintiffs sought interlocutory injunction without providing undertaking in damages — Whether court should dispense with undertaking requirement — Court held discretion to dispense with undertaking is narrow — Plaintiffs failed to justify dispensing with undertaking — Rules of Civil Procedure, r. 40.03 | Civil procedure — Certificates of pending litigation — Plaintiffs sought leave to issue certificate of pending litigation against properties owned by project companies — Whether plaintiffs raised triable issue of interest in land — Court held plaintiffs’ interest was in shares of project companies, not in properties themselves — No triable issue established — Courts of Justice Act, s. 103(1) | Estates and trusts — Constructive trust — Plaintiffs sought leave to amend statement of claim to plead equitable interest in properties based on constructive trust — Whether proposed amendments disclosed tenable cause of action — Court held plaintiffs failed to plead tenable claim for equitable interest in properties — Proposed amendments denied
CanLII | Oct 28, 2022
- keywords: Bankruptcy and insolvency — Receivership — Sliding Fee Structure — Court declined to impose Sliding Fee Structure on New Counsel and Clients who did not agree to it — Does the court have jurisdiction to override statutory rights under the Solicitors Act? — Court held that inherent jurisdiction cannot negate statutory rights — Solicitors Act, R.S.O. 1990, c. S.15 | Access to information — Receivership — Determinable Information — Receiver sought access to client file details from New Counsel — Can the court order disclosure of privileged information to the Receiver? — Court ordered disclosure under a Protocol protecting privilege — Common interest privilege and relevance of information to Receiver’s duties upheld | Professional responsibility — Solicitor-client relationship — Fees and disbursements — Receiver required to render accounts to Clients for fees and disbursements — Can the Receiver bypass statutory assessment rights? — Court held that statutory rights under the Solicitors Act must be respected — Quantum meruit principles apply to fee determination | Bankruptcy and insolvency — Receiver’s activities and fees — Approval of Receiver’s First and Supplemental Reports — Should the Receiver’s activities and professional fees be approved? — Court approved Receiver’s activities and fees as reasonable and consistent with its mandate — No objections raised | Bankruptcy and insolvency — Costs of motion — Sliding Fee Structure motion partially successful — Should costs be awarded to any party? — Court declined to award costs to any party — Success divided on primary issues — Costs would exacerbate disputes over legal fees
CanLII | Oct 28, 2022
- keywords: Bankruptcy and insolvency — Receivers — Appointments — Interest — R.S.C. 1985, c. I-15, s.eit
CanLII | Oct 27, 2022
- keywords: Taxation — Rectification — Share exchange transaction — Drafting errors — Tax consequences — Applicants sought rectification of written instruments to reflect the true agreement regarding a share exchange transaction — Should the court grant rectification to correct errors that caused adverse tax effects? — Test for rectification from Canada (Attorney General) v. Fairmont Hotels Inc. applied — Rectification granted as the agreement was clear, and the instruments failed to accurately record it | Taxation — Supreme Court of Canada jurisprudence — Collins Family Trust — Retroactive tax planning — Applicants argued that Collins Family Trust does not preclude rectification in this case — Does Collins Family Trust bar rectification where the parties seek to correct errors rather than amend their bargain? — Collins distinguished as it involved rescission, not rectification — Rectification allowed to reflect the true agreement | Taxation — Equitable remedies — Miscellaneous errors — Additional errors in the Share Exchange Agreement and related documents — Are minor errors eligible for rectification under equitable principles? — Court found that the errors, though immaterial, met the test for rectification — Equitable remedy granted to correct all errors
CanLII | Oct 25, 2022
- keywords: Contracts — Interpretation of Licence Agreement — Terminal Fees — Whether Porter Airlines is entitled to pay Terminal Fees based on a variable allocation of slots calculated as a daily average — Interpretation of “Carrier’s Allocation” and “daily slots” under the Licence Agreement — Governing principles of contractual interpretation — Held: Terminal Fees must be paid based on a fixed number of daily slots recurring throughout the allocation period | Obligations — Force Majeure — COVID-19 pandemic — Whether the Force Majeure clause in the Licence Agreement relieves Porter Airlines from its obligation to pay Terminal Fees or provide notice of slot reductions — Interpretation of “restricted” in fulfilling obligations — Held: Force Majeure clause not engaged; financial hardship or commercial impracticability insufficient to invoke clause | Obligations — Reasonableness in exercising contractual rights — Whether Nieuport Aviation breached its obligation to act reasonably under the Licence Agreement by demanding full Terminal Fees during the pandemic and increasing fees — Obligation to act in good faith and equitably — Held: Nieuport acted within its contractual rights; no breach of reasonableness obligation | Obligations — Notice period for slot reductions — March 2019 Agreement — Whether the notice period for slot reductions under the Licence Agreement was permanently amended from 12 months to 9 months — Interpretation of amendments to contractual terms — Held: March 2019 Agreement permanently amended notice period to 9 months | Lease — Advertising Agreement — Payment of advertising fees — Whether Porter Airlines is required to pay advertising fees during the period when shuttle buses were not operating due to the pandemic — Implied terms and entire agreement clause — Held: No implied term excusing payment; Porter required to pay advertising fees | Transportation — Damages — Unpaid Terminal Fees and advertising fees — Whether Nieuport Aviation is entitled to damages for unpaid fees and whether Porter Airlines is entitled to damages for alleged breaches of the Licence Agreement — Calculation of damages for Undisputed and Disputed Slots — Held: Nieuport entitled to damages; Porter’s claims for damages dismissed
CanLII | Oct 19, 2022
- keywords: Bankruptcy and insolvency — Receivers — Fees and disbursements
CanLII | Oct 17, 2022
- keywords: Bankruptcy and insolvency — Recognition of foreign orders — Chapter 11 proceedings — Canadian recognition of Second Day Orders issued by the United States Bankruptcy Court — Foreign Representative seeking recognition under the Companies’ Creditors Arrangement Act — Should the Second Day Orders be recognized and enforced in Canada? — Section 49 of the Companies’ Creditors Arrangement Act permits recognition of foreign orders to protect debtor property and creditor interests | Civil procedure — Cross-border insolvency — Recognition of foreign proceedings — Canadian court granting recognition of Second Day Orders issued in U.S. Chapter 11 proceedings — Does recognition of the orders preserve the value of the Canadian Debtors and enable continued business operations? — Recognition ensures judicial cooperation and comity in global restructuring efforts | International law — Comity — Cross-border insolvency — Canadian recognition of U.S. Bankruptcy Court orders in Chapter 11 proceedings — Judicial cooperation between Canadian and U.S. courts in global restructuring — Does recognition of foreign orders promote comity and facilitate global restructuring? — Comity principle supports recognition of foreign insolvency orders to ensure coordinated proceedings
CanLII | Oct 17, 2022
- keywords: Bankruptcy and insolvency — Civil contempt — Interference with court-appointed receiver — Contemnor swore a declaration supporting a criminal complaint in Panama against the receiver’s representatives — Did the contemnor’s actions warrant a custodial sentence? — Principles of sentencing for civil contempt, including proportionality, deterrence, and denunciation — Sentence of 30 days’ imprisonment imposed to address the seriousness of the conduct and uphold the authority of the court | International law — Cross-border implications of civil contempt — Criminal complaint filed in Panama based on a declaration by the contemnor — Did the contemnor purge his contempt by attempting to withdraw the declaration and criminal complaint? — Contemnor’s actions deemed insufficient to purge contempt — Contemptuous conduct initiated in one jurisdiction with effects in another | Civil procedure — Sentencing for civil contempt — Proportionality, deterrence, and denunciation as guiding principles — Contemnor’s conduct found to be deliberate, wilful, and unrepentant — Imprisonment as a last resort in civil contempt cases — Sentence of 30 days’ imprisonment imposed to deter future breaches of court orders and uphold respect for the judicial process
CanLII | Oct 17, 2022
- keywords: Costs — Motion for summary judgment — Rules of Civil Procedure, r. 194, Rule 20.06
CanLII | Oct 14, 2022
- keywords: Practice and procedure — Appeal from Court-appointed mediator
CanLII | Oct 14, 2022
- keywords: Civil procedure — Closed record — Procedural fairness — Damages trial — Exclusion of evidence not in the application record — Should evidence not contained in the application record be excluded from the damages trial under the principle of a closed record? — Bright-line test applied to ensure procedural fairness and avoid trial by ambush | Evidence — Admissibility — Amplification and latency — Introduction of new evidence at trial — Can new evidence be introduced at trial under the guise of amplification or latency of existing evidence? — Amplification must not take the opposing party by surprise; new evidence excluded unless latent in the record | Evidence — Procedural fairness — Trial by ambush — Introduction of new evidence — Does the introduction of new evidence at trial violate procedural fairness and the principle of avoiding trial by ambush? — New evidence prejudicial to the opposing party excluded to maintain fairness | Evidence — Inconsistencies — Cross-examination versus exclusion — Should evidence inconsistent with the application record be excluded, or should it be addressed through cross-examination? — Inconsistent evidence excluded to uphold the principle of a closed record and avoid unfair surprise | Evidence — Expert testimony — Responding to new theories — Introduction of evidence to address damages theories — Can new evidence be introduced to respond to a theory of damages raised during cross-examination or in expert testimony? — New evidence excluded unless it was foreseeable and part of the application record
CanLII | Oct 14, 2022
- keywords: Corporations — Oppression — Companies’ assets — Winding up — Directors and officers
CanLII | Oct 11, 2022
- keywords: Real property — Easements — Interpretation — Contract law
CanLII | Oct 3, 2022
- keywords: Costs — Outcome of litigation
CanLII | Sep 27, 2022
- keywords: Bankruptcy and insolvency — Appointment of receiver — Just and convenient standard — Application under section 243 of the Bankruptcy and Insolvency Act and section 101 of the Courts of Justice Act — Whether appointment of a receiver is just and convenient in the circumstances — Factors considered include creditor rights, security quality, and maximizing returns — Court satisfied that appointment of receiver is appropriate — Governing principles from Bank of Nova Scotia v. Freure Village and other precedents | Bankruptcy and insolvency — Stays of proceedings — Lifting of stays — Interim Receivership Order and section 69(1) of the Bankruptcy and Insolvency Act — Whether stays should be lifted to allow appointment of receiver — Court satisfied that creditors would be materially prejudiced if stays were not lifted — Discretionary relief under section 69.4 of the Bankruptcy and Insolvency Act applied | Bankruptcy and insolvency — Extension of time to file proposal — Section 50.4(9) of the Bankruptcy and Insolvency Act — Whether 2806401 Ontario Inc. acted in good faith and with due diligence — Court satisfied that extension would allow restructuring efforts and avoid automatic bankruptcy — No creditor opposition to extension — Extension granted for 45 days to November 8, 2022 | Bankruptcy and insolvency — Approval of Interim Receiver’s activities — Activities outlined in First Report of Interim Receiver — Whether activities undertaken were appropriate — Court approved activities for the period from September 6 to September 16, 2022 — Approval limited to Interim Receiver’s personal liability
CanLII | Sep 23, 2022
- keywords: Civil procedure — Contempt of court — Receivership order — Penalty for civil contempt — Receiver sought custodial sentence or fine for non-compliance with court order — Whether imprisonment or fine is appropriate penalty for civil contempt — Factors considered include proportionality, mitigating factors, and deterrence — Fine of $15,000 imposed to ensure compliance and respect for court orders — Rule 60.11 of the Rules of Civil Procedure applied | Bankruptcy and insolvency — Civil contempt — Penalty deemed a “penalty” under Bankruptcy and Insolvency Act — Receiver sought declaration that fine imposed for contempt qualifies as a penalty under section 178(1)(a) of the BIA — Fine survives discharge from bankruptcy — Purpose of penalty includes compliance and respect for court orders — Section 178(1)(a) of the Bankruptcy and Insolvency Act applied | Civil procedure — Costs — Contempt motion — Receiver sought costs of $5,000 for contempt motion — Costs awarded to Receiver to reflect additional expenses incurred due to non-compliance with court order — Costs fixed at $5,000 payable by contemnor — Rule 60.11 of the Rules of Civil Procedure applied
CanLII | Sep 20, 2022
- keywords: Civil procedure — Costs — Partial indemnity costs
CanLII | Sep 15, 2022
- keywords: Bankruptcy and insolvency — Receivers — Powers
CanLII | Sep 14, 2022
- keywords: Commercial law — Contract law — Interpretation
CanLII | Sep 14, 2022
- keywords: Pleadings — Amendments — Grounds for amendment
CanLII | Sep 7, 2022
- keywords: Bankruptcy and insolvency — CCAA proceedings — Stay of proceedings — Set-off rights — HSBC unilaterally exercised set-off rights during the Stay Period without court leave or consent from the Monitor — Did HSBC breach the stay provision in the Initial Order? — Supervising judge’s discretion to stay creditor rights under ss. 11 and 11.02 of the CCAA — Breach of stay provision found, but no prejudice to other creditors — Montréal (City) v. Deloitte Restructuring Inc., 2021 SCC 53 applied | Bankruptcy and insolvency — Priority charges — Allocation of funds — Whether funds in CCI’s Operating Account were allocated to specific operating expenses or impressed with court-ordered priority charges — HSBC argued funds were not segregated or impressed with trust characteristics — Court found funds available for set-off purposes — Court-ordered charges act as a backstop, not as segregated accounts — No prejudice to beneficiaries of priority charges | Bankruptcy and insolvency — Set-off rights — Pre-pre versus pre-post set-off — Section 21 of the CCAA — Whether HSBC’s set-off rights were preserved under s. 21 of the CCAA — Court found HSBC’s set-off rights were pre-pre obligations arising from indemnity agreements executed years before the CCAA filing — Pre-pre set-off rights preserved under s. 21 — AbitibiBowater Inc., 2012 SCC 67 applied — Valid exercise of set-off rights upheld
CanLII | Sep 2, 2022
- keywords: Civil procedure — Costs — Motions to stay — bursements
CanLII | Aug 31, 2022
- keywords: Intellectual property — Licence agreements — Know-how — Perpetual obligations — Validity and enforceability of Licence Agreement granting intellectual property and know-how — Whether the Licence Agreement was valid and enforceable despite claims of duress, unconscionability, and lack of consideration — Governing principles for licensing know-how and intellectual property in commercial ventures | Contracts — Breach of contract — Licence Agreement — Fiduciary duties — Whether Mr. Langlois breached the Licence Agreement by competing with ACS and sharing licensed know-how with PCS — Fiduciary obligations arising from contractual relationships — Remedies for breach of contract and fiduciary duties | Obligations — Fiduciary duties — Corporate governance — Misappropriation of corporate opportunities — Whether Mr. Langlois breached fiduciary duties by diverting the RM2 Contract and powder-coating machine sales to PCS and VML — Standards of loyalty, good faith, and avoidance of conflicts of interest in joint ventures | Torts — Knowing assistance — Breach of fiduciary duty — Corporate opportunities — Whether Gary Sugar and Jeffrey Sugar knowingly assisted Mr. Langlois in breaching fiduciary duties and misappropriating corporate opportunities — Joint and several liability for knowing assistance in breaches of fiduciary duty | Civil procedure — Counterclaims — Dismissal of counterclaims — Whether counterclaims in the ACS Action and PCS Action should be dismissed — Mootness of PCS Action following findings in ACS Action — Principles governing dismissal of counterclaims in commercial disputes
CanLII | Aug 29, 2022
- keywords: Bankruptcy and insolvency — Trustee negligence — Limitation periods — Discoverability — Bankruptcy Trustee Action dismissed as statute-barred — Whether the plaintiff knew or ought to have known of the injury, loss, or damage caused by the trustee’s alleged negligence before the limitation period expired — Limitations Act, 2002, s. 4, s. 5 — Framework for discoverability and application of presumptions under s. 5(2) | Civil procedure — Summary judgment — Limitation periods — Discoverability — Whether the s. 38 BIA Action was commenced within the limitation period — Allegations of fraudulent conveyances and improper benefits — Genuine issue requiring a trial regarding the timing of disclosures and discoverability — Limitations Act, 2002, s. 4, s. 5 — Rule 20 of the Rules of Civil Procedure | Intellectual property — Copyright — Breach of copyright — Limitation periods — Whether the Copyright Action was commenced within the three-year limitation period under the Copyright Act — Alleged unlicensed use of Medical Reports after revocation of implied licence — Copyright Act, s. 43.1 — Insufficient evidence to dismiss claims summarily | Civil procedure — Assigned claims — Limitation periods — Fraudulent concealment — Whether the Client Assigned Claims Action was barred by the limitation period applicable to assigned claims — Allegations of improper billing practices under the Solicitors Act — Discoverability and fraudulent concealment — Limitations Act, 2002, s. 12 — Summary judgment granted for claims outside the limitation period
CanLII | Aug 19, 2022
- keywords: Costs — Substantial Indemnity — Opportunity costs — Rooftop Access Issue
CanLII | Aug 18, 2022
- keywords: Business associations — Corporate arrangements — Plan of Arrangement — Approval under section 192 of the CBCA — Mining company seeking to sever ties with foreign state and its entities — Does the Plan of Arrangement meet statutory requirements, including fairness and reasonableness? — Arrangement approved as meeting statutory tests, serving a valid business purpose, and being in the best interests of the corporation and its shareholders | Securities — Shareholder approval — Corporate restructuring — Mining company’s shareholders overwhelmingly approve Plan of Arrangement — Does the Plan of Arrangement qualify as an “arrangement” under section 192 of the CBCA? — Arrangement involves exchange of securities and satisfies statutory requirements under the CBCA | Civil procedure — Standing — Unsecured creditors opposing corporate arrangement — Do unsecured creditors have standing to oppose a Plan of Arrangement under the CBCA? — Creditors lack standing as they are not security holders or contractual counterparties of the corporation | International law — Enforcement of arbitral awards — Garnishment of payments under corporate arrangement — Can creditors enforce arbitral awards against a foreign state by garnishing payments under a corporate arrangement? — Garnishment denied as creditors can only execute against the foreign state, not the corporation or its subsidiaries | Business associations — Garnishment — Double jeopardy — Payments under Plan of Arrangement — Does garnishment of payments under the Plan of Arrangement create double jeopardy for the corporation? — Garnishment would result in double payment and is inequitable; garnishment denied
CanLII | Aug 17, 2022
- keywords: Lease — Termination of lease — Non-payment of rent — Landlord purported to terminate lease for non-payment of May 1, 2022 rent — Tenant argued sufficient credits and set-offs were available to cover rent — Was the termination valid? — Landlord’s termination of lease found invalid due to sufficient credits covering rent due | Lease — Rent arrears — Credits and set-offs — Rooftop Lease Credits — Tenant claimed credits exceeded rent due on May 1, 2022 — Landlord argued credits were improperly calculated — Did the Tenant fail to pay rent due? — Tenant did not fail to pay rent due after applying credits and set-offs | Lease — Relief from forfeiture — Invalid lease termination — Tenant sought relief from forfeiture if termination was valid — Is relief from forfeiture necessary? — Relief from forfeiture not required as termination was invalid | Lease — Rent arrears and ancillary relief — Calculation of arrears — Tenant locked out of premises — What arrears are owed, and what relief should be granted? — Tenant ordered to pay arrears up to May 1, 2022; no rent payable for lockout period; exclusive possession restored | Civil procedure — Issue estoppel — Abuse of process — Tenant sought rent abatements for restricted access to premises — Landlord argued issue was previously adjudicated — Can the Tenant raise rent abatement claims? — Tenant precluded from raising rent abatement claims due to issue estoppel and abuse of process
CanLII | Aug 12, 2022
- keywords: Corporations — Arrangements — S. 182 of Business Corporations Act
CanLII | Aug 11, 2022
- keywords: Practice — Judgments and orders — Setting aside — Grounds
CanLII | Aug 10, 2022
- keywords: Business associations — Oppression remedy — Shareholder disputes — Liquidation of corporation — Whether shareholder loans should include advances made to a subsidiary — Whether oppressive conduct by a majority shareholder affects entitlement to repayment — Ontario Business Corporations Act, ss. 132, 207, 248 — Court held that advances to subsidiary should be included in shareholder loans to prevent unjust enrichment of other shareholders | Contracts — Development fees — Hotel management fees — Quantum meruit — Whether respondents were entitled to fees for services rendered without written agreements — Self-interested contracts not approved by shareholders or independent directors — Ontario Business Corporations Act, s. 132 — Court held no entitlement to fees due to lack of compliance with statutory requirements and absence of enforceable agreements | Obligations — Reimbursement of expenses — Shareholder loans — Whether contested expenses should be treated as business reimbursements or repayments of shareholder loans — Expenses included travel, entertainment, and related-party transactions — Court held that unsupported or conflicted expenses were repayments of shareholder loans | Civil procedure — Res judicata — Issue estoppel — Whether prior findings in oppression proceedings barred claims for development and management fees — Principles of res judicata require distinct issues to have been determined in prior proceedings — Court held that issues were not barred as they arose incidentally in earlier proceedings | Bankruptcy and insolvency — Claims bar date — Liquidation process — Whether claims raised after the claims bar date could be adjudicated — Claims Procedure Order required timely submission of proofs of claim — Court held that additional issues were integral to resolving timely claims and could be addressed in the trial
CanLII | Aug 9, 2022
- keywords: Practice and procedure — Amending and Restated orders — Stay of execution
CanLII | Aug 5, 2022
- keywords: Civil procedure — Security for costs — Rule 56.01 — Plaintiffs are corporations alleged to have insufficient assets in Ontario to pay costs — Defendants moved for security for costs based on financial difficulties of related corporations — Should the court order security for costs? — Initial burden on defendants to show insufficient assets — Discretionary factors include timing and justice of the order — Motion dismissed due to insufficient evidence and delay | Evidence — Financial difficulties — Defendants relied on evidence from unrelated oppression proceedings to argue plaintiffs’ inability to pay costs — Plaintiffs’ response criticized as vague — Does evidence of financial difficulties of parent corporations suffice to meet the threshold for security for costs? — Evidence must directly relate to the plaintiffs’ ability to pay costs — Insufficient evidence provided by defendants | Contracts — Counterclaim — Defendants’ counterclaim for reimbursement of franchise fees and damages for misrepresentation — Counterclaim closely connected to plaintiffs’ claim for breach of contract and misuse of confidential information — Does the overlap between claims preclude an order for security for costs? — Substantial coincidence of facts militates against security for costs — No party should give security as a condition of defending itself | Civil procedure — Timing of motion — Security for costs motion brought after trial dates set — Delay in bringing motion considered tactical — Should timing of the motion affect the court’s discretion? — Delay in bringing motion is a significant factor — Motion dismissed as untimely and unjust | Civil procedure — Costs — Costs awarded to plaintiffs for responding to motion for security for costs — Plaintiffs sought $16,000 in partial indemnity costs — Defendants sought $26,000 — What is the appropriate award of costs? — Plaintiffs’ costs deemed reasonable and proportionate — Costs awarded to plaintiffs in the amount of $16,000
CanLII | Aug 5, 2022
- keywords: Bankruptcy and insolvency — Recognition of foreign proceedings — Centre of main interests (COMI) — Voyager Digital Ltd. sought recognition of U.S. Chapter 11 bankruptcy as a “foreign main proceeding” under the Companies’ Creditors Arrangement Act (CCAA) — Whether COMI is in the U.S. or Canada — COMI determined based on location of management, operations, and stakeholder expectations — COMI found to be in the U.S. — CCAA, R.S.C. 1985, c. C-36, ss. 45, 46, 47 | International law — Cross-border insolvency — Recognition of foreign main proceedings — Voyager Digital Ltd. filed for Chapter 11 bankruptcy in the U.S. — Canadian court recognized U.S. proceeding as a “foreign main proceeding” under Part IV of the CCAA — Principles of comity and modified universalism applied — Avoidance of inconsistent judgments and multiple proceedings — CCAA, R.S.C. 1985, c. C-36, ss. 45, 46, 47 | Civil procedure — Public policy concerns — Recognition of foreign main proceedings — Opposing counsel raised concerns about Canadian stakeholders’ participation and regulatory investigations — Court found no public policy concerns under s. 61(2) of the CCAA — Stay of proceedings did not preclude Canadian regulatory or police investigations — Public policy concerns to be addressed in future recognition orders if they arise — CCAA, R.S.C. 1985, c. C-36, s. 61(2)
CanLII | Aug 4, 2022
- keywords: Corporations — Oppression — Reasonable expectations — Remedies — Securities
CanLII | Aug 3, 2022
- keywords: Bankruptcy and insolvency — Receivership — Interim distributions — Receiver sought approval for an interim cash distribution to institutional unitholders of Bridging SMA 2 LP — Whether the court should approve the SMA 2 Interim Distribution Order — Receiver’s obligations to balance efficient distribution with stakeholder protection — Interim distributions permissible in insolvency proceedings — Governing principles for interim distributions in insolvency cases | Securities — Investment funds — Substantive consolidation — Bridging Funds under receivership — Receiver proposed an interim distribution to SMA 2 Unitholders — Whether the unresolved issue of substantive consolidation warranted a reduction in the proposed distribution — Court reduced the distribution to $46 million to account for potential consolidation outcomes — Balancing interim distributions with final distribution certainty | Civil procedure — Stakeholder interests — Interim orders — Receiver proposed an interim distribution subject to reimbursement agreements — Whether the proposed distribution struck an appropriate balance between efficient distribution and stakeholder protection — Court satisfied that no stakeholders would be prejudiced by the reduced distribution — Framework for balancing competing interests in interim orders
CanLII | Aug 3, 2022
- keywords: Bankruptcy and insolvency — Companies’ Creditors Arrangement Act (CCAA) — Stay of Proceedings — Applicants in liquidity crisis — Relief sought to maintain operations and prevent enforcement actions — Should the Applicants be granted relief under the CCAA, including the Stay of Proceedings? — CCAA applies to debtor companies with liabilities exceeding $5 million — Relief granted under s. 11 and s. 11.02(1) of the CCAA | Bankruptcy and insolvency — Non-Applicant Stay Parties — Extension of Stay of Proceedings — Integration with Applicants’ business — Guarantors of Applicants’ secured loans — Should the Stay of Proceedings be extended to Non-Applicant Stay Parties? — Extension prevents uncoordinated enforcement actions and preserves value for stakeholders — Stay extended under s. 11 of the CCAA | Securities — DIP Loan — Interim financing — Super-priority charge — Urgent liquidity crisis — Should the Court approve the proposed DIP Loan and grant the DIP Lenders’ Charge? — DIP Loan necessary to fund payroll and operations — Charge limited to amounts accrued during the Stay of Proceedings — Approved under s. 11.2(5) of the CCAA | Bankruptcy and insolvency — Administration Charge — Professional fees — Monitor and counsel — Should the Court grant the Administration Charge to secure professional fees? — Charge necessary to ensure continued professional assistance during restructuring — Approved under s. 11.52 of the CCAA | Bankruptcy and insolvency — Directors’ Charge — Indemnity for directors and officers — Liabilities during CCAA proceedings — Should the Court grant the Directors’ Charge? — Charge limited to post-filing liabilities and excludes wilful misconduct — Approved under s. 11.51 of the CCAA | Business associations — Annual general meeting (AGM) — Postponement during insolvency proceedings — Should the Applicants be relieved of the obligation to hold their AGM? — Holding AGM unnecessary and costly given insolvency — Postponement allowed under corporate and securities law
CanLII | Aug 3, 2022
- keywords: Bankruptcy and insolvency — Receivership — Settlement agreements — Approval motion — Legal proceedings resolved through complex mediation — Reasonable commercial resolution of claims in insolvency context — Receiver’s Third Special Report on the settlements — Should the Court approve Settlement Agreements and the Receiver’s activities? — Standard for approval of settlements in receivership cases involving complex litigation | Contracts — Settlement agreements — Receivership proceedings — Confidentiality clauses in multi-party settlements — Mediation process resulting in settlements involving remaining legal claims — Are settlement agreements commercially reasonable and fair within receivership context? — Principles governing judicial approval of negotiated settlements in corporate insolvencies | Civil procedure — Sealing orders — Confidentiality — Settlement terms involving sensitive financial and private information — Sherman Estate test for sealing orders — Serious risk to public interest in settlements and commercial information — Are confidentiality provisions in settlements sufficient to warrant a sealing order? — Principles for applying the open court doctrine to receivership cases | Obligations — Preservation and production obligations — Non-settling defendants in receivership cases — Amendments to proposed approval order regarding preservation of discovery rights — Should the Court address ongoing obligations of parties involved in related claims? — Balancing ongoing litigation rights with settlement enforcement
CanLII | Jul 21, 2022
- keywords: Corporations — Oppression — Presumption of fair comment — Reasonable expectations — Business Corporations Act
CanLII | Jul 20, 2022
- keywords: Contract law — Real property — Agreements for sale — Bankruptcy and insolvency — Fraudulent conveyances — Bankruptcy and Insolvency Act — R.S.C. 1985, c. B-3, s. 96 — Fraudulent Conveyances Act — R.S.O. 1990, c. F.9.
CanLII | Jul 15, 2022
- keywords: Civil procedure — Forum non conveniens — Parallel proceedings — Ontario action stayed pending resolution of New York action — Overlap of factual and legal issues between Ontario and New York actions — Risk of conflicting decisions — Whether New York is a clearly more appropriate forum — Avoidance of multiplicity of proceedings and inconsistent judgments — Temporary stay granted — Courts of Justice Act, R.S.O. 1990, c. C.43, s. 106 | International law — Jurisdiction — Real and substantial connection — Ontario court jurisdiction over Florida-based defendants — Claims assessed as a whole for jurisdictional analysis — Avoidance of fragmented litigation and inconsistent verdicts — Jurisdiction simpliciter established over all defendants, including foreign entities — Principles of fairness and efficiency applied | Contracts — Choice of forum clauses — Credit Agreement governed by New York law — Security Agreement governed by Ontario law — Collateral Management Agreement with exclusive Ontario jurisdiction clause — Whether forum selection clauses bind non-signatories — Plaintiff’s ability to elect jurisdiction under certain agreements — Forum selection clauses not determinative in forum non conveniens analysis
CanLII | Jul 15, 2022
- keywords: Business associations — Oppression remedy — Joint venture — Breakdown of relationships — Appointment of receiver — Competing applications for court-appointed officer — Whether appointment of a receiver is just and convenient — Broad discretion under section 248(3) of the Ontario Business Corporations Act — Model Receivership Order applied to determine scope of powers and responsibilities of receiver | Civil procedure — Interim orders — Competing motions — Adjournment to allow reasonable opportunity to respond — Case management of related applications — Whether procedural fairness was observed in the appointment of a receiver — Courts of Justice Act, R.S.O. 1990, c. C.43, s. 101 | Property — Condominium development project — Sale of property — Allegations of interference and sabotage — Whether appointment of a receiver stigmatizes the property and impacts sale price — Court’s finding that sophisticated purchasers unlikely to be deterred by receiver involvement — Role of court-appointed officer in maximizing sale proceeds | Bankruptcy and insolvency — Stay of proceedings — Stability during sales process — Whether stay is necessary in absence of third-party litigation — Court’s discretion to impose stay to maintain status quo — Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3, s. 243(1) | Contracts — Joint venture agreement — Management committee — Voting rights and control — Major decisions requiring 50% or more votes — Whether terms of joint venture agreement support appointment of receiver — Court’s consideration of contractual framework in determining equitable relief
CanLII | Jul 14, 2022
- keywords: Civil procedure — Contempt of court — Sanctions — Developer Defendants found in contempt of Mareva and Disclosure Order and follow-on orders — Appropriate sanction determined to be 30 days of incarceration for each individual defendant — Have the Developer Defendants purged their contempt? — Court’s discretion under Rule 60.11(5) of the Rules of Civil Procedure to impose sanctions for civil contempt | Evidence — Accounting and disclosure — Developer Defendants failed to provide full accounting of funds and other required disclosures under Mareva and Disclosure Order — Have the Developer Defendants purged their contempt by complying with court orders? — Court found continued deficiencies in compliance, including missing bank statements and metadata | Civil procedure — Striking defences — Noting in default — Developer Defendants’ continued non-compliance with court orders — Should the Developer Defendants’ defences be struck, and should they be noted in default? — Court struck Anastasio’s defence and deemed all Developer Defendants in default unless contempt purged | Civil procedure — Incarceration for contempt — Length of incarceration — Developer Defendants sentenced to 30 days of incarceration for civil contempt — Is incarceration an appropriate sanction for civil contempt? — Court found incarceration necessary to achieve compliance and deterrence objectives | Civil procedure — Costs — Substantial indemnity costs — Plaintiffs awarded substantial indemnity costs of $50,000 for re-sentencing hearing — Are plaintiffs entitled to substantial indemnity costs? — Presumption of substantial indemnity costs in contempt cases upheld due to Developer Defendants’ flagrant and wilful non-compliance
CanLII | Jul 12, 2022
- keywords: Securities law — Offences — Freeze — Investigations — Securities Act — R.S.O. 1990, s. 126(5), as amended
CanLII | Jul 4, 2022
- keywords: Business associations — Corporate arrangements — Approval of plan of arrangement — Application under section 192 of the Canada Business Corporations Act — Final order sought to approve a going private transaction — Does the arrangement meet statutory and court-ordered requirements, and is it fair and reasonable? — Framework for court approval of corporate arrangements under section 192 of the CBCA | Statutory interpretation — Canada Business Corporations Act — Section 192 — Definition of “arrangement” — Solvency test — Impracticability of effecting changes under other CBCA provisions — Notice to Director under section 260 — Were the statutory requirements under section 192 satisfied? — Interpretation of section 192 requirements for corporate arrangements | Civil procedure — Corporate arrangements — Interim and final orders — Compliance with court-ordered requirements — Dissemination of meeting materials — Shareholder meeting and voting process — Was the arrangement approved in accordance with court-ordered procedures? — Procedural compliance for corporate arrangement approvals | Securities — Shareholder rights — Fairness of arrangement — Shareholder vote as indicator of fairness — Dissent rights and objections — Was the arrangement fair and reasonable to shareholders? — Test for fairness and reasonableness of corporate arrangements under securities law principles
CanLII | Jun 29, 2022
- keywords: Bankruptcy and insolvency — Receivership — Appointment Order — Exclusive authority of receiver — Breach of court orders — Ontario Superior Court of Justice appointing receiver over assets of Ontario corporation — Receiver seeking contempt finding for interference with its authority — Whether respondent’s actions in Panama violated the Appointment Order — Enforcement of court orders in multi-jurisdictional insolvency proceedings | Civil procedure — Jurisdiction — Contempt of court — Real and substantial connection — Ontario court asserting jurisdiction over respondent’s conduct in foreign jurisdictions — Whether Ontario court has jurisdiction to enforce compliance with its orders in multi-jurisdictional context — Real and substantial link test applied to contempt proceedings | Evidence — Clarity of court orders — Intentional breach — Appointment Order provisions — Whether provisions of Appointment Order were clear and unequivocal — Whether respondent intentionally breached the order by swearing a declaration and supporting a criminal complaint — Standard of proof for civil contempt — Beyond a reasonable doubt | International law — Multi-jurisdictional litigation — Enforcement of Canadian court orders abroad — Receiver’s authority in foreign jurisdictions — Whether respondent’s actions in Panama interfered with receiver’s authority under Canadian court orders — International comity and recognition of foreign legal processes | Criminal procedure — Criminal contempt — Public defiance of court orders — Mens rea and actus reus — Whether respondent’s actions constituted criminal contempt — Adequacy of notice for criminal contempt finding — Distinction between civil and criminal contempt — Procedural fairness in contempt proceedings
CanLII | Jun 29, 2022
- keywords: Civil procedure — Anti-SLAPP motions — Procedural stay — Section 137.1(5) of the Courts of Justice Act prohibits further steps in a proceeding once an anti-SLAPP motion is made — Whether plaintiff’s motions to strike or dismiss the Counterclaim under the Rules of Civil Procedure are precluded until the anti-SLAPP motion is finally disposed of — Statutory prohibition is non-discretionary — Courts of Justice Act, R.S.O. 1990, c. C.43, s. 137.1(5) | Labour and employment — Constructive dismissal — Poisoned workplace — Anti-SLAPP motion — Whether the Counterclaim arises from expressions made by the plaintiff in the Statement of Claim regarding workplace abuse and management practices — Plaintiff failed to demonstrate a causal relationship between the expressions and the Counterclaim — Courts of Justice Act, R.S.O. 1990, c. C.43, s. 137.1(3) | Contracts — Employment agreements — Deferred bonus payments — Limitation periods — Plaintiff sought leave to amend the Statement of Claim to add a claim for deferred bonus payments — Claim discovered more than two years before the motion was brought — Claim statute-barred under the Limitations Act — Prejudice to the defendant — Limitations Act, 2002, S.O. 2002, c. 24, s. 4 | Civil procedure — Summary judgment — Deferral of decision — Plaintiff sought summary judgment in the main action — Counterclaim includes a set-off claim — Whether summary judgment should be decided before motions to dismiss or strike out the Counterclaim are resolved — Decision deferred to ensure procedural fairness
CanLII | Jun 23, 2022
- keywords: Bankruptcy and insolvency — Companies’ Creditors Arrangement Act — Plan of compromise — Differential consideration — Appropriateness of terms of proposed Plan — Whether fairness of differential consideration should be determined at Sanction Hearing — Threshold for granting Meetings Order — Plan structure requiring cessation of reporting issuer status under U.S. Exchange Act — Companies’ Creditors Arrangement Act, R.S.C. 1985, c. C-36 | Contracts — Plan of compromise — Differential treatment of creditors — New Common Shares for Term Loan Lenders — Cash for General Unsecured Creditors — Whether Plan structure meets requirements to cease reporting issuer status under U.S. Exchange Act — Insufficient cash availability for alternative compensation — Companies’ Creditors Arrangement Act, R.S.C. 1985, c. C-36 | Evidence — Expert reports — Conflicting expert opinions on fairness of proposed differential consideration — No cross-examinations conducted on expert reports — Whether conflicting evidence should be resolved before Sanction Hearing — Companies’ Creditors Arrangement Act, R.S.C. 1985, c. C-36 | Civil procedure — Meetings Order — Threshold for granting — Low threshold for granting Meetings Order — Objections by Litigation Claimants — Whether objections render Plan unsanctionable — Preference to address fairness at Sanction Hearing — Companies’ Creditors Arrangement Act, R.S.C. 1985, c. C-36
CanLII | Jun 23, 2022
- keywords: Commercial law — Corporations — Arrangements and compromises
CanLII | Jun 21, 2022
- keywords: Property — Mareva Order — Mortgage encumbrances — Post-Mareva Order advances — Sole shareholder and director control — Did the applicant breach the Mareva Order by encumbering assets indirectly controlled by the defendant? — Mareva Order extended definition of assets — Prohibition on encumbrances — Breach established where control over corporate assets exercised by sole shareholder and director | Evidence — Mareva Order — Interpretation and application — Extended definition of assets — Did the applicant have notice of the Mareva Order and knowledge of the defendant’s control over corporate assets? — Evidence of control over corporate assets by sole shareholder and director — Mareva Order language interpreted to include indirectly controlled assets | Civil procedure — Remedies — Breach of Mareva Order — Appropriate remedy for breach — Should the proceeds of sale be distributed to the applicant as a secured creditor or held as security for the Mareva Order? — Mareva injunction does not create proprietary interest — Proceeds to be distributed to the Sheriff for judgment creditors | Civil procedure — Judgment enforcement — Applicant as judgment creditor — Can the applicant enforce its judgment against proceeds of sale held by the Sheriff? — Mareva Order does not elevate unsecured creditors’ rights — Applicant entitled to enforce judgment as a simple judgment creditor | Property — Enforcement costs — Mortgage enforcement — Are the applicant’s enforcement costs recoverable from the net proceeds of sale? — Costs related to pre-Mareva Order amounts recoverable — Post-Mareva Order enforcement costs not recoverable due to breach of Mareva Order
CanLII | Jun 17, 2022
- keywords: Injunctions — Interlocutory Mareva injunction
CanLII | Jun 13, 2022
- keywords: Bankruptcy and insolvency — Approval of agreements — Support Agreement, Backstop Commitment Letter, and related fees and charges — Uncontested portions approved subject to draft orders — Should the uncontested portions of the agreements and fees be approved? — Approval granted under the Companies’ Creditors Arrangement Act, R.S.C. 1985, c. C-36 | Bankruptcy and insolvency — Creditor classification — Secured and Unsecured Creditor Classes — Classification upheld for voting on the Plan — Should the classification of creditors into Secured and Unsecured Creditor Classes be upheld? — Classification approved for voting purposes under the Companies’ Creditors Arrangement Act | Civil procedure — Class actions — Voting rights — U.S. and Canadian class actions and other claimants — Entitlement to specific voting rights and expedited claim determinations — Should the plaintiff classes and other claimants be granted specific voting rights and expedited claim determinations? — Voting rights and expedited proceedings ordered | Statutory interpretation — Differential consideration — Unsecured creditors — Proposed differential treatment of Term Loan Lenders and General Unsecured Creditors — Should the proposed differential consideration for unsecured creditors in the plan be approved? — Submissions required to address appropriateness of differential treatment
CanLII | Jun 10, 2022
- keywords: Civil procedure — Pleadings — Amendments — Withdrawal of admission — Rules of Civil Procedure — Rule 51.05
CanLII | Jun 8, 2022
- keywords: Civil procedure — Sealing orders — Motion for sealing order — protective orders — Fresh evidence
CanLII | Jun 8, 2022
- keywords: Contract law — Purchase and sale of a condominium unit — Agreements — closing adjustments
CanLII | Jun 7, 2022
- keywords: Estates and trusts — Bare trustee — Agency relationship — Stonebrook Properties Inc. held legal title to property as a bare trustee for beneficial owners — Whether Stonebrook Inc. also acted as an agent for the beneficial owners — Agency relationship predominates over trust relationship when trustee acts under control of beneficiaries — Trident Holdings Ltd. v. Danand Investments Ltd. applied | Contracts — Agency — Beneficial owners’ liability — Whether agency relationship between Stonebrook Inc. and beneficial owners imposes liability on the latter for judgment debt owed to Ms. Welton — Beneficial owners may be liable for contracts entered into by their agent — Napev Construction Ltd. v. Lebedinsky applied | Civil procedure — Doctrine of merger — Rule of alternative liability — Limitation periods — Ms. Welton precluded from pursuing claims against beneficial owners due to judgment obtained against agent — Limitation period under Limitations Act, 2002 expired — No new parties may be added after expiry of limitation period | Property — Trust funds — Release of funds held in trust — Whether funds held in trust pursuant to prior court order should be released to applicants — Funds released as beneficial owners not liable for judgment debt — Justice Hainey’s order enforced
CanLII | Jun 6, 2022
- keywords: Debtor and creditor — Receivers — Discharge
CanLII | Jun 3, 2022
- keywords: Bankruptcy and insolvency — Companies’ Creditors Arrangement Act (CCAA) — Initial Order — Restructuring — Creditor-initiated application for CCAA protection — Respondents in default of secured loans exceeding $178 million — Should the court grant an Initial Order to facilitate restructuring? — CCAA framework for operational restructuring to maximize value for stakeholders | Bankruptcy and insolvency — Appointment of Monitor — KSV Restructuring Inc. — Receivership Order — Should KSV Restructuring Inc. be appointed as Monitor under the CCAA? — Monitor’s role in overseeing restructuring efforts — Court’s discretion to appoint Monitor under CCAA | Bankruptcy and insolvency — Super-priority charges — Administration Charge — DIP Lender’s Charge — Directors’ Charge — Should the court approve super-priority charges to facilitate restructuring? — Charges necessary to ensure liquidity, indemnify directors, and support restructuring efforts — CCAA, ss. 11.51, 11.52 | Statutory interpretation — Companies’ Creditors Arrangement Act (CCAA) — Definition of “debtor company” — Insolvency — Do the Respondents qualify as “debtor companies” under the CCAA? — Respondents’ liabilities exceeding $5 million — Interpretation of CCAA eligibility criteria
CanLII | Jun 3, 2022
- keywords: Business associations — Corporate governance — Derivative actions — Leave to defend — Director seeking leave under section 246 of the Business Corporations Act to defend an action on behalf of the corporation and advance a counterclaim — Whether the director’s motion satisfies statutory requirements — Business Corporations Act, R.S.O. 1990, c. B.16, s. 246 | Civil procedure — Derivative actions — Leave to defend — Whether the moving party demonstrated good faith in seeking leave to defend the action on behalf of the corporation — Good faith requirement assessed based on evidence of primary purpose and absence of ulterior motives — Test from Richardson Greenshields and Hevey applied | Evidence — Good faith — Assessment of director’s motivations — Evidence of shareholder disputes and prior conduct — Whether the director’s silence during critical periods undermines claims of good faith — Court considers competing evidence from shareholders and opposing parties | Statutory interpretation — Business Corporations Act — Section 246 requirements — Good faith and corporate interests — Whether defending the action aligns with the corporation’s best interests — Balancing costs, risks, and shareholder positions — Liberal interpretation of remedial legislation in derivative actions
CanLII | Jun 3, 2022
- keywords: Commercial law — Costs — Discretion of Court
CanLII | May 31, 2022
- keywords: Debtor and creditor — Arrangements — compromise — Approval of Monitor
CanLII | May 31, 2022
- keywords: Bankruptcy and insolvency — Stay order
CanLII | May 31, 2022
- keywords: Class action — Certification — Civil procedure — Leave to appeal
CanLII | May 27, 2022
- keywords: Bankruptcy and insolvency — Companies’ Creditors Arrangement Act (CCAA) — Claims Process — Stay of proceedings — Sexual assault claims — Whether sexual assault claims can proceed outside the CCAA Claims Process — Application of section 19(2)(b)(i) of the CCAA — Framework for determining claims under the CCAA — Single proceeding model — Supreme Court of Canada guidance in Montréal (City) v. Deloitte Restructuring Inc. — Claims must be proven within the CCAA process before exceptions apply | Statutory interpretation — Companies’ Creditors Arrangement Act (CCAA) — Section 19(2)(b)(i) — Exception for claims related to sexual assault — Whether section 19(2)(b)(i) exempts unproven claims from the CCAA Claims Process — Interpretation of “debts or liabilities” and “award of damages” — Narrow interpretation of exceptions under section 19(2) — Burden of proof on claimant to establish applicability of exceptions | Civil procedure — Stay of proceedings — Lifting of stay under the CCAA — Whether stay can be lifted to allow litigation in civil court — Request to access insurance proceeds — No insurance proceeds located — Stay not lifted to allow litigation or access to insurance — Purpose of stay to preserve debtor’s resources during restructuring | Civil procedure — Crossclaims and third-party claims — Request to lift stay for crossclaim or third-party claim by co-defendant — Whether co-defendant can amend proof of claim in CCAA process to include contribution and indemnity claims — Stay not lifted for crossclaims — Claims to be addressed within the CCAA Claims Process | Evidence — Adjudication of sexual assault claims — Fairness of CCAA Claims Process — Whether CCAA process allows for proper adjudication of liability and vicarious liability — Concerns regarding documentary production and discovery — Claims Officer’s authority to order necessary procedures — Further submissions required to ensure fair adjudication within the CCAA process
CanLII | May 27, 2022
- keywords: Contracts — Interpretation of promissory notes — Compound interest — Whether compound interest was agreed upon at the outset or validly amended into the promissory notes — No contemporaneous evidence of agreement for compound interest — Ontario law requires consideration for amendments to contracts — No valid amendment established — Simple interest applied — McDiarmid Lumber Ltd. v. Shoal Lake Band #40 applied | Contracts — Interest Escalation Clause — Triggering conditions — Whether the Interest Escalation Clause in the first promissory note was triggered by the construction of townhouses and single-family homes — Clause required physical construction of all units — Project incomplete as of maturity date — Clause not triggered — Plain meaning of “constructed” applied | Contracts — Rectification of second promissory note — Internal inconsistency — Whether the second promissory note should be rectified to reflect the agreed-upon interest rate and remove the Interest Escalation Clause — Evidence supported 20% base interest rate as agreed — Interest Escalation Clause left in by mistake — Rectification ordered to remove clause — Canada (Attorney General) v. Fairmont Hotels Inc. applied | Contracts — Amounts owing under promissory notes — Trust Funds — Calculation of amounts owing based on court’s determinations — Simple interest applied at 12% for the first note and 20% for the second note — Approximately $99,778 owing to the lender — Remaining Trust Funds to be returned to the borrower | Civil procedure — Costs — Divided success — Applicant successful on two of three issues, with greater economic benefit — Partial indemnity costs awarded to applicant — Costs fixed at $25,000 payable by respondent — Principles of proportionality and indemnity applied
CanLII | May 19, 2022
- keywords: Company law — Canada Business Corporations Act
CanLII | May 18, 2022
- keywords: Indemnity — Income Tax Act
CanLII | May 17, 2022
- keywords: Bankruptcy and insolvency — Motion to strike statement of claim
CanLII | May 16, 2022
- keywords: Estates and trusts — Fiduciary relationships — Renunciation of trust interest — Division of family business assets — Whether fiduciary relationship existed between siblings impacting enforceability of agreement — Whether trustee resignation was permanent or temporary — Trustee Act, R.S.O. 1990, c. T.23 — Court found fiduciary relationship existed and resignation was permanent. | Contracts — Oral agreements — Division of ownership — Whether parties reached a binding agreement to divide ownership of companies — Whether essential terms of agreement were sufficiently certain — Parties’ conduct consistent with binding agreement — Court held agreement was enforceable despite lack of formal share transfer documents. | Evidence — Fiduciary duties — Reliance on representations — Whether fiduciary relationship influenced plaintiff’s understanding of agreement — Plaintiff’s reliance on defendant’s assurances regarding ownership of assets — Court found defendant’s conduct inconsistent with temporary arrangement and upheld plaintiff’s interpretation of agreement. | Obligations — Proprietary estoppel — Unjust enrichment — Detrimental reliance — Whether defendant’s promise to transfer shares created an equitable obligation — Plaintiff’s reliance on promise to improve properties — Court applied proprietary estoppel and unjust enrichment principles to enforce agreement. | Civil procedure — Limitations — Amendments to pleadings — Whether equitable claims were statute-barred due to late amendments — Plaintiff’s claims related to new evidence discovered during litigation — Court held claims were not statute-barred as they arose from ongoing conduct and prior pleadings. | Property — Remedies — Equalization payments — Transfer of shares — Whether plaintiff entitled to specific performance of share transfer and equalization payment — Court ordered expedited resolution of related loans action to finalize equalization payment and transfer of shares.
CanLII | May 13, 2022
- keywords: Bankruptcy and insolvency — Appointment of receiver — Enforcement of security — Second mortgagee seeking appointment of receiver for real property due to default on loan — Whether appointment of receiver is just or convenient — Court considers contractual terms, rights of parties, and circumstances — Governing principles from s. 243(1) of the Bankruptcy and Insolvency Act and s. 101 of the Courts of Justice Act | Civil procedure — Adjournments — Respondent sought adjournment to complete refinancing and pay out second mortgage — Court denied adjournment due to lack of binding refinancing commitment and Respondent’s failure to act diligently — Whether adjournment would be just to Applicant — Court’s discretion to manage proceedings and enforce compliance with timetables | Property — Mortgage default — Enforcement of second mortgage — Applicant sought appointment of receiver to manage and realize on mortgaged property — Respondent argued alternative remedies were available — Court held Applicant entitled to enforce contractual rights through receiver appointment — Factors considered include loss of confidence in management and contractual consent to receiver appointment | Evidence — Bad faith allegations — Respondent alleged Applicant acted in bad faith in seeking receiver appointment — Evidence of bad faith based on hearsay and vague statements — Court found insufficient evidence to support bad faith claim — Rule 39.01(5) of the Rules of Civil Procedure applied to assess admissibility and sufficiency of evidence
CanLII | May 9, 2022
- keywords: Bankruptcy and insolvency — Section 36.1 Claims Jurisdiction
CanLII | May 5, 2022
- keywords: Contract law — Share purchase agreements — Interpretation — Arbitration clauses — Standard of review — Arbitration Act, 1991 — S.O. 1991, c. 17, s. 7(1), “arbitration”
CanLII | May 3, 2022
- keywords: Patents — Pleadings — Amendments — Clarification of defence
CanLII | May 2, 2022
- keywords: Contracts — Dispute resolution — Independent accountant — Interpretation of section 2.8(3) of Share Purchase Agreement (SPA) — Whether the interpretation of the scope of “written submissions” under section 2.8(3) is a question for the independent accountant or the court — Court held that interpretation of SPA provisions is a question for the court, not the independent accountant, as the accountant acts as an expert, not an arbitrator | Contracts — Dispute resolution — Written submissions — Share Purchase Agreement (SPA) — Whether section 2.8(3) of the SPA permits the purchaser to provide additional narrative written submissions to the independent accountant in response to the vendor’s dispute notice — Court held that narrative submissions are permitted to address disputes raised in the vendor’s notice, provided they do not amend or revise the purchaser’s calculations
CanLII | May 2, 2022
- keywords: Construction — Lien claimants — Priority of liens — Interpretation of s. 78(2) of the Construction Act — Dispute over distribution of sale proceeds from a condominium development in receivership — Do lien claimants have priority over each building mortgage separately or collectively? — Lien claimants’ priority limited to the deficiency in the owner’s holdback over all building mortgages combined — Construction Act, R.S.O. 1990, c. C.30, s. 78(2) | Bankruptcy and insolvency — Receivership — Distribution of proceeds — Condominium development in receivership — Sale of property for $300 million — Dispute over lien claimants’ priority in distribution of proceeds — Receiver’s methodology for distribution approved — Lien claimants’ motion dismissed | Contracts — Holdback obligations — Construction Act — Owner’s holdback deficiency — Lien claimants argued for 20% priority payment due to two building mortgages — Court held that lien claimants’ priority is limited to one 10% deficiency in the owner’s holdback — Statutory scheme balances interests of lien claimants and mortgagees | Statutory interpretation — Construction Act — Interpretation of s. 78(2) — Modern approach to statutory interpretation — Words read in context, harmoniously with the scheme and purpose of the Act — Court rejected lien claimants’ argument for multiple priority claims based on the number of building mortgages — Decision in GM Sernas & Associates Ltd. followed | Property — Mortgages — Priority of liens over building mortgages — Lien claimants sought priority over two building mortgages — Court held that lien claimants’ priority applies collectively to all building mortgages — No entitlement to 20% priority payment — Owner’s holdback deficiency satisfied by first building mortgage
CanLII | Apr 29, 2022
- keywords: Civil procedure — Contempt of court — Sentencing — Repeated breaches of non-dissipation orders — Failure to disclose assets — Contemnor sentenced to 16 months in jail without parole — Does repeated defiance of court orders justify a custodial sentence? — Proportionality, deterrence, and denunciation emphasized in sentencing for civil contempt — Court retains jurisdiction to impose further penalties if contempt is not purged | Property — Asset dissipation — Non-dissipation orders — Contemnor transferred assets to foreign accounts and concealed ownership of high-value items, including a Ferrari and bitcoin — Does the contemnor’s failure to comply with asset disclosure orders justify incarceration? — Court emphasizes the importance of compliance to protect victims of fraud | Evidence — Mitigating factors — Alleged remorse, cooperation, and family impact — Contemnor’s claims of remorse and cooperation found not credible — Does lack of genuine remorse or transparency affect sentencing? — Court rejects mitigating factors as insufficient to reduce sentence for repeated contempt
CanLII | Apr 28, 2022
- keywords: Constitutional law — Charter of Rights — Enforcement — Injunctions — Availability
CanLII | Apr 26, 2022
- keywords: Business associations — Oppression remedy — Shareholder disputes — Appointment of auditor — Paramount Group shareholders in deadlock over financial disclosures and operational losses — Should an auditor be appointed to prepare audited financial statements for the Paramount Group? — Obligation to provide audited financial statements under the Ontario Business Corporations Act (OBCA), s. 148 — Court ordered audit for 2016–2021 to resolve competing claims and counterclaims | Civil procedure — Pleadings — Fraudulent misrepresentation — Motion to strike — Plaintiffs sought to strike paragraphs of the counterclaim alleging fraudulent misrepresentation and deceit — Should the allegations be struck for lack of full particulars under Rule 25.06(8) of the Rules of Civil Procedure? — Pleadings must include full particulars of fraud, including falsity, inducement, and resulting loss — Certain paragraphs struck with leave to amend | Civil procedure — Security for costs — Plaintiffs sought security for costs against defendants residing outside Ontario — Should the court order security for costs under Rule 56.01(1) of the Rules of Civil Procedure? — Counterclaim closely connected to oppression claim — Section 249(3) of the OBCA exempts complainants from security for costs in oppression remedy claims — Motion dismissed | Access to information — Corporate records — Financial disclosure — Defendants sought access to financial information and audited financial statements under the OBCA — Are the defendants entitled to access financial information and audited financial statements? — Right of directors and shareholders to access corporate records under OBCA, ss. 140, 141, 144, 145 — Weekly financial reports ordered to be provided to defendants
CanLII | Apr 26, 2022
- keywords: Bankruptcy and insolvency — Single proceeding model — Claims by debtor against third party — Receiver’s authority under s. 243 of the BIA — Does the single proceeding model apply to debtor claims, centralizing them in insolvency proceedings? — Single proceeding model ensures efficiency and fairness to creditors — Court held that claims by debtor against third parties may be resolved in insolvency proceedings if sufficiently connected to the bankruptcy | Contracts — Arbitration clauses — Receiver disclaiming arbitration agreements — Doctrine of separability — Can a receiver disclaim an arbitration clause while pursuing claims under the same contract? — Receiver may disclaim arbitration clauses under the doctrine of separability — Court declined to follow British Columbia Court of Appeal’s reasoning in Petrowest | Civil procedure — Stay of proceedings — UNCITRAL Model Law — International Commercial Arbitration Act — Does the Model Law require a stay of proceedings in favour of arbitration when a valid arbitration agreement exists? — Stay must be granted unless arbitration agreement is null, void, or inoperative — Court found arbitration clause inoperative due to insolvency proceedings | International law — Arbitration agreements — Inoperability due to insolvency — UNCITRAL Model Law — Are arbitration agreements rendered inoperative by the appointment of a receiver under the BIA? — Arbitration agreements may be rendered inoperative under Article 8(1) of the Model Law when inconsistent with the single proceeding model — Court prioritized insolvency objectives over arbitration
CanLII | Apr 26, 2022
- keywords: Insurance — Credit risk insurance — Discretionary Credit Limits — Interpretation of Article 23300 — Whether the $100,000 limit applies collectively to all DCL Buyers or individually to each DCL Buyer — Clear and unambiguous language of Article 23300 — Governing rule: Maximum liability for DCL Buyers applies collectively per insurance year | Insurance — Ambiguity in insurance policies — Contra proferentem principle — Whether Article 23300 is ambiguous and should be interpreted in favour of the insured — No ambiguity found in Article 23300 — Governing rule: Clear language of the policy prevails over contra proferentem | Bankruptcy and insolvency — Receivership — Claims under insurance policy — Distinction between DCL Buyers and Buyers with Credit Limit Decisions — Whether the structure and purpose of the policy support different liability limits for the two categories — Governing rule: Policy structure supports lower liability for DCL Buyers due to insurer’s lack of credit risk assessment
CanLII | Apr 25, 2022
- keywords: Business associations — Oppression remedy — Corporate structure — Beneficial ownership — Investors in a business enterprise sought recognition of their investments and rights under section 248 of the OBCA — Are the applicants proper complainants under the oppression remedy despite the lack of formal shareholdings? — Equitable principles applied to recognize investors’ reasonable expectations and protect their interests under section 248 of the OBCA | Securities — Shareholder rights — Beneficial ownership — Applicants claimed to be beneficial shareholders of a corporation despite the absence of formal share issuance — Can investors qualify as complainants under section 248 of the OBCA without direct or beneficial shareholdings? — Court found applicants to be proper complainants based on their investments and reasonable expectations | Statutory interpretation — Ontario Business Corporations Act — Section 248 oppression remedy — Reasonable expectations — Applicants alleged that respondents’ conduct defeated their reasonable expectations as investors — Did the respondents’ actions amount to oppression, unfair prejudice, or unfair disregard of the applicants’ interests? — Court held that respondents’ conduct violated applicants’ reasonable expectations under section 248 of the OBCA | Access to information — Corporate records — Financial disclosure — Applicants sought access to corporate and financial records to account for their investments — Are investors entitled to disclosure of corporate records under section 248 of the OBCA? — Court ordered disclosure and accounting to reconcile investments and determine equity interests | Civil procedure — Trial of issues — Premature relief — Applicants sought operational control and buyout of respondents’ shares — Should relief be granted at this stage or deferred to a trial of issues? — Court deferred certain relief pending disclosure, accounting, and further determinations
CanLII | Apr 25, 2022
- keywords: Lease — Termination — Relief from forfeiture — Landlord’s purported termination of SPV Lease for non-payment of rent in November 2021 — Tenant’s entitlement to relief from forfeiture for breaches, including late rent payments and access issues — Was the termination valid, and should relief from forfeiture be granted? — Relief granted if necessary, termination deemed premature | Lease — Rooftop access — Easements of necessity — Rooftop Tenants’ rights to access leased premises through SPV Premises — Tenant’s obligations under SPV Lease to provide access — Do Rooftop Tenants have easements of necessity? — Easements of necessity found; access through SPV Premises ordered | Lease — Rooftop equipment — Landlord’s obligations — Removal of Rooftop Tenants’ equipment during roof replacement — Tenant’s claim for damages due to delays caused by equipment movement — Was the Landlord in breach of its obligations, and is the Tenant entitled to damages? — Technical breach found; no damages awarded | Construction — Construction Allowance — Tenant’s obligation to account for use of Construction Allowance — Landlord’s entitlement to reimbursement for unused amounts — Proper interpretation of SPV Lease provisions regarding accounting and reconciliation — Tenant ordered to provide accounting and reimburse overpayments | Contracts — Rooftop Credits — Timing and application of amounts received by Landlord from Rooftop Tenants — Proper interpretation of SPV Lease provisions regarding Rooftop Credits — Were Rooftop Credits applicable from the start of the lease term? — Rooftop Credits applied retroactively; set-off against rent ordered
CanLII | Apr 25, 2022
- keywords: Personal property — Commercial arbitration — Awards — Practice — Appeals
CanLII | Apr 22, 2022
- keywords: Bankruptcy and insolvency — Priorities — Companies' Creditors Arrangement Act
CanLII | Apr 22, 2022
- keywords: Procedure — Discovery — Examination for discovery — Persons subject to examination — Undertaking
CanLII | Apr 22, 2022
- keywords: Reasonable apprehension of bias — Test for reasonable apprehension of bias
CanLII | Apr 21, 2022
- keywords: Lease — Arbitration — Leave to appeal — Section 45 of the Arbitration Act, 1991 — Landlord sought leave to appeal the Majority Award determining the fair market value of leased premises — Whether the arbitration agreement permitted an appeal and whether leave should be granted — Statutory right of appeal on questions of law under Arbitration Act, 1991 — Leave to appeal granted, but appeal dismissed | Lease — Contractual interpretation — Fair market value — Landlord challenged the Majority’s interpretation of the Lease terms, including “unencumbered” and “free of any leases” — Whether the Majority erred in applying principles of contractual interpretation and failed to consider binding authority — Majority’s interpretation upheld as consistent with the Lease and governing principles | Lease — Jurisdiction — Arbitration mandate — Landlord alleged the Majority exceeded its jurisdiction by misinterpreting its mandate under the arbitration agreement — Whether the Majority acted outside the scope of the arbitration agreement — Application to set aside the award under section 46(1) of the Arbitration Act, 1991 dismissed
CanLII | Apr 19, 2022
- keywords: Civil procedure — Consolidation of actions — Governance action and Brampton action — Defendants sought consolidation of governance action with Brampton action for judicial economy and avoidance of inconsistent findings — Whether consolidation would delay trial and result in unwieldy proceedings — Court held issues in actions were distinct, and consolidation would cause undue delay — Rule 6.01 of the Rules of Civil Procedure — Section 107(1) of the Courts of Justice Act | Civil procedure — Consolidation of actions — 320 Bronte motion — 320 Bronte sought consolidation of its action with governance action and Brampton action — Whether consolidation would promote judicial economy or cause delay — Court found issues in actions were distinct, and consolidation would delay trial — Motion dismissed — Rule 6.01 of the Rules of Civil Procedure | Civil procedure — Document requests — Defendants sought further rulings on document requests despite prior directions from Justice Conway — Whether further rulings were warranted — Court declined to provide further rulings, directing parties to follow prior directions — Rules of Civil Procedure | Civil procedure — Costs — Partial indemnity costs — Plaintiffs awarded $20,000 in partial indemnity costs payable by defendants — No costs awarded for 320 Bronte motion as no costs were sought — Rules of Civil Procedure
CanLII | Apr 6, 2022
- keywords: Municipal law — Real property — Commercial law — Taxation — Real Property Assessment
CanLII | Apr 1, 2022
- keywords: Bankruptcy and insolvency — Receivership — Sale and investment solicitation process (SISP) — Termination of SISP — Status Quo Option — Receiver’s business judgment — Court approval of Receiver’s recommendation to terminate SISP and proceed with Status Quo Option — Whether the Receiver’s decision was fair, reasonable, and in the best interests of stakeholders — Deference to Receiver’s expertise — Royal Bank v. Soundair Corp. principles applied | Securities — Investment funds — Unitholder consultation — Receiver’s engagement with stakeholders — Whether further consultation or a formal vote by Unitholders was required before terminating SISP — Feedback from Representative Counsel and stakeholders — Majority support for Status Quo Option — No evidence of impropriety in SISP process — Court approval of Receiver’s recommendation | Civil procedure — Sealing orders — Confidential commercial information — Confidential Appendices containing sensitive financial data — Test for sealing orders under Sierra Club of Canada v. Canada (Minister of Finance) — Serious risk to public interest — Necessity and proportionality of sealing order — No opposition to sealing request — Court granted sealing order to protect sensitive information and maximize value for stakeholders | Evidence — Deference to Receiver’s recommendations — Lack of evidence challenging Receiver’s conduct or process — No exceptional circumstances warranting court intervention — Business judgment rule — Court reliance on Receiver’s expertise and fairness of process — Royal Bank v. Keller and Sons and Marchant Realty Partners Inc. v. 2407533 Ontario Inc. principles applied
CanLII | Mar 30, 2022
- keywords: International law — Arbitration — International Commercial Arbitration Act, 2017 — Stay of proceedings — Referral to arbitration — Plaintiff commenced action for breach of contract and related claims — Defendant sought stay and referral to arbitration in New Zealand — Does the Model Law require referral to arbitration? — Article 8(1) of the Model Law mandates referral unless the arbitration agreement is null, void, inoperative, or incapable of being performed | Statutory interpretation — Arbitration — International Commercial Arbitration Act, 2017 — Interpretation of Article 8(1) of the Model Law — Mandatory language requiring referral to arbitration — Whether the court must stay proceedings when an arbitration agreement arguably exists — Framework for determining validity and scope of arbitration agreements under the Model Law | Contracts — Arbitration clauses — Validity of arbitration agreements — Alleged distribution agreement — Whether arbitration clause in Schedule “G” constitutes a valid arbitration agreement — Evidence of parties’ engagement with terms — Low threshold for determining existence of arbitration agreement — Model Law, Article 7 | Contracts — Interpretation — Inconsistencies in contract terms — Arbitration clause versus jurisdiction clause — Whether arbitration clause is rendered inoperative by other provisions in the alleged distribution agreement — Interpretation of contract as a question of mixed fact and law — Sattva Capital principles applied | Civil procedure — Multiplicity of proceedings — Stay of action — Arbitration in New Zealand versus litigation in Ontario — Whether concerns about multiplicity of proceedings override mandatory referral to arbitration — Article 8(1) of the Model Law — Supreme Court of Canada jurisprudence on mandatory arbitration stays
CanLII | Mar 29, 2022
- keywords: Contracts — Arbitration clauses — Scope of arbitration — Broadly worded arbitration clause in Co-Tenancy Agreement — Dispute over inclusion of hotel component in real estate project — Does the arbitration clause permit resolution of business-related deadlocks? — Arbitration clause limited to disputes arising under the Agreement — No express authorization for arbitrator to resolve business configuration disputes | Obligations — Deadlock resolution — Co-Tenancy Agreement — Management Committee deadlock over project configuration — Parties agreed to unanimous decision-making — Does the Agreement allow arbitration of non-legal business disputes? — Non-legal disputes not arbitrable unless expressly authorized — Deadlock consistent with “divorce proof” structure of Agreement | Civil procedure — Arbitration Act, 1991 — Jurisdiction of courts — Remitting jurisdictional issues to arbitrator — Can the court remit a jurisdictional issue to the arbitrator for determination alongside the merits? — Arbitration Act does not permit remitting jurisdictional issues after arbitrator’s preliminary decision — Jurisdictional questions reviewed on correctness standard
CanLII | Mar 25, 2022
- keywords: Contracts — Revenue Milestone Payment — Earn-Out Periods — Share Purchase Agreement (SPA) — Interpretation of contractual provisions — Duty of good faith and honest performance — Did the purchaser’s actions impede the vendors’ ability to achieve revenue thresholds? — Formula for Unearned Milestone Payment Commitment — No entitlement to 2019 Revenue Milestone Payment under SPA terms — Contractual certainty and interpretation principles applied | Contracts — License Milestone Payment — Standard Processing License — Share Purchase Agreement (SPA) — Duty of good faith and honest performance — Did the purchaser’s failure to support the license application breach its obligations? — License Milestone extinguished by Indirect Sale Milestone Payment Buyout — No entitlement to License Milestone Payment under SPA terms | Contracts — Estoppel — Estoppel by convention — Estoppel by representation — Vendors’ reliance on assurances regarding closing date of Arrangement Transaction — Did the vendors detrimentally rely on assurances about the closing date? — No detrimental reliance established — Estoppel arguments rejected | Contracts — SR&ED tax credits — Working capital adjustment — Share Purchase Agreement (SPA) — Deduction of consultant’s fees — Are consultancy fees deductible from SR&ED tax credits payable to vendors? — No deduction allowed for consultancy fees — Full amount of $142,775.50 payable to vendors | Civil procedure — Summary resolution — Application under Rules of Civil Procedure — Material facts in dispute — Are the issues raised suitable for determination without a trial? — No material facts requiring trial — Application resolved summarily based on written record
CanLII | Mar 21, 2022
- keywords: Intellectual property — Copyright and trademark infringement — Contempt of court — Defendants found in contempt for streaming plaintiffs’ copyrighted content via Shava TV — Plaintiffs sought jail sentences; defendants proposed conditional sentences with probation — What is the appropriate penalty for contempt of court in intellectual property cases? — Contempt penalties aim to ensure compliance rather than punishment — Conditional discharge with probation imposed to incentivize compliance | Intellectual property — Compliance with court orders — Mitigating factors — Defendants ceased streaming content, transferred intellectual property rights to plaintiffs, and made efforts to shut down servers — Plaintiffs argued for stricter penalties due to technical breaches and untruthfulness — Should mitigating factors reduce penalties for contempt? — Substantial compliance and mitigating efforts considered sufficient to avoid incarceration | Civil procedure — Costs — Substantial indemnity costs — Plaintiffs sought over $750,000 in costs; defendants argued for a reduced amount — Should the costs award reflect the complexity of the case and the defendants’ eventual cooperation? — Costs reduced to $484,305 to account for defendants’ cooperation and proportionality of the award
CanLII | Mar 18, 2022
- keywords: Representation order — Cpa, s. 7(1); Civil Procedure — Class Proceedings Act
CanLII | Mar 17, 2022
- keywords: Transportation — Fiduciary duties — Self-dealing — Conflict of interest — Railway supervisor caused employer to contract with companies he controlled — Did the defendant breach fiduciary duties owed to the plaintiff? — Fiduciary obligations require disclosure of conflicts and prohibit self-dealing without consent | Torts — Conspiracy — Deceit — Corporate governance — Defendant’s spouse used pseudonym and signed false documents to conceal involvement in scheme — Should the defendants be held liable for conspiracy and deceit? — Liability for conspiracy requires actionable conduct and knowledge of wrongdoing | Estates and trusts — Constructive trust — Disgorgement — Breach of fiduciary duty — Plaintiff sought constructive trust over assets acquired through breach — Is the plaintiff entitled to disgorgement and a constructive trust? — Constructive trust imposed where assets result from breach of fiduciary duty | Civil procedure — Pleadings — Disclosure — Phantom billing — Conversion — Plaintiff’s claims dismissed due to inadequate pleading and late disclosure — Should claims for phantom billing and conversion be dismissed? — Claims must be adequately pleaded and disclosed to ensure trial fairness | Torts — Punitive damages — Litigation conduct — Breach of fiduciary duty — Defendants obstructed receivership and engaged in deceitful litigation tactics — Are punitive damages warranted? — Punitive damages awarded to deter egregious misconduct and uphold integrity of fiduciary relationships
CanLII | Mar 17, 2022
- keywords: Contracts — Interpretation of agreements — Data sharing agreements — Mellon Trust agreement — Whether custodial entities of Mellon Financial Corporation were entitled to access data under the agreement — Commercial reasonableness and contractual interpretation principles applied — Did the court err in interpreting the agreement to include custodial entities? — Contracts must be interpreted to give effect to the parties’ intentions and avoid commercial absurdities | Civil procedure — Varying reasons for judgment — Judge’s discretion to amend reasons before the order is entered — Whether the requested changes were technical or necessary to avoid a miscarriage of justice — Did the refusal to amend reasons result in a miscarriage of justice? — Jurisdiction to vary reasons must be exercised cautiously and only for technical errors or to prevent injustice | Contracts — Breach of contract — Knowing receipt — Whether the court should replace its finding of breach of contract against CIBC Mellon with a finding of knowing receipt — Applicant did not request a finding of knowing receipt during the initial application — Can a court impose liability on a basis not argued by the parties? — Relief must align with claims advanced during the hearing | Evidence — Damages trial — Admissibility of evidence — Whether the applicant can introduce evidence of damages caused by data sharing with custodial entities of Mellon Financial Corporation — Court allowed evidence to prevent remittal in the event of a successful appeal — Evidence admissible if it relates to damages despite findings on liability
CanLII | Mar 15, 2022
- keywords: Construction — Arbitration — Jurisdiction — Facility Co-ordination Agreement (FCA) — Dispute resolution procedure — Arbitrators’ jurisdiction to determine construction defects and related monetary relief — Whether arbitrators’ jurisdiction extends beyond determining construction defects to awarding damages — Interpretation of FCA provisions governing arbitration and remedies — Arbitrators’ decisions upheld as correct under the FCA and Arbitration Act, 1991 | Civil procedure — Standard of review — Arbitration — Jurisdictional decisions — Correctness standard applied to arbitrators’ jurisdictional rulings — Whether arbitrators correctly interpreted the Facility Co-ordination Agreement (FCA) to determine their jurisdiction — Correctness standard affirmed for true jurisdictional issues | Contracts — Arbitration prerequisites — Facility Co-ordination Agreement (FCA) — Whether failure to comply with pre-arbitration steps nullifies arbitration — Arbitrators held that FCA steps are not mandatory conditions precedent to arbitration — Pre-arbitration steps interpreted as procedural road map, not jurisdictional barriers — Arbitrators’ decisions upheld | Contracts — Arbitrators’ jurisdiction — Facility Co-ordination Agreement (FCA) — Whether arbitrators’ jurisdiction is limited to determining construction defects — Arbitrators found to have jurisdiction to award monetary relief for direct losses under warranties — Broad arbitration powers under FCA and Arbitration Act, 1991 affirmed | Contracts — Reconsideration rights — Facility Co-ordination Agreement (FCA) — Nature of reconsideration right under FCA — Whether reconsideration right is a de novo hearing or an appeal under Arbitration Act, 1991 — Court declined to determine issue before arbitration decision rendered — Reconsideration right to be addressed contextually by court hearing the application
CanLII | Mar 15, 2022
- keywords: Civil procedure — Summary judgment motions — Stay of proceedings — Case management — Plaintiffs sought to stay summary judgment motions until after full discovery — Defendants argued motions could proceed on a limited record — Should summary judgment motions be stayed to ensure a complete record and avoid inconsistent findings? — Framework from Ghaffari and Domtar applied to determine appropriateness of stay in complex commercial litigation | Insurance — Limitation periods — Professional negligence — Auditors’ liability — Plaintiffs alleged negligence by auditors in failing to detect fraud — Defendants argued claims were statute-barred under Limitations Act, 2002 — Should summary judgment motions on limitation periods proceed before full discovery? — Limitation period issues intertwined with allegations of fraud and discoverability | Bankruptcy and insolvency — Liquidating CCAA — Fraud allegations — Insolvency of construction company led to multiple claims, including against auditors — Complexity of claims involving fraud and negligence — Should discovery be completed before summary judgment motions in related insolvency litigation? — Case management considerations in large-scale insolvency disputes | Evidence — Discovery process — Necessity of full record — Plaintiffs argued limited discovery would prejudice their ability to respond to summary judgment motions — Defendants contended issues could be resolved on a paper record — Should discovery be completed to ensure access to key evidence and avoid inconsistent findings? — Full appreciation test applied to determine adequacy of record for summary judgment
CanLII | Mar 10, 2022
- keywords: Civil procedure — Striking pleadings — Rule 21 motion — Allegations of contributory negligence, improper litigation conduct, and collateral attacks on court orders — Whether pleadings are frivolous, vexatious, or untenable — Test for striking pleadings under Rule 21 — Pleadings must disclose a reasonable cause of action or defence — Improper pleadings related to litigation conduct struck — Leave to amend denied | Torts — Contributory negligence — Fraud and unjust enrichment — Defendants alleged Crown’s negligence in failing to prevent fraud — Whether contributory negligence is a valid defence to fraud or unjust enrichment — Defence of contributory negligence unavailable in cases of fraud or unjust enrichment — United Service Funds v. Richardson Greenshields applied | Torts — Duty of care — Crown liability — Counterclaims alleging Crown’s failure to prevent fraud and identity theft — Whether Crown owed a private law duty of care to defendants — No proximity between Crown and defendants established — Crown Liability and Proceedings Act, 2019 applied — Counterclaims struck as untenable | Torts — Intrusion upon seclusion — Vicarious liability — Crown employee allegedly committed identity theft against family members — Whether Crown can be held vicariously liable for employee’s actions — No significant connection between employee’s wrongful acts and Crown’s enterprise — Bazley v. Curry applied — Claim struck as untenable
CanLII | Mar 10, 2022
- keywords: Bankruptcy and insolvency — Receivership — Creditor disputes — Priority disputes — Applicants sought to void mortgages registered by a law firm on properties under Receivership — Receiver deferred to Applicants to bring motion for cost efficiency — Whether the mortgages should be voided to allow equitable distribution of proceeds — Remedial nature of Receivership proceedings — Broad interpretation of fraudulent conveyance and preference legislation | Property — Fraudulent conveyances — Intent to defeat creditors — Mortgages registered by law firm on properties subject to Receivership — Applicants alleged intent to defeat creditors under the Fraudulent Conveyances Act — Badges of fraud, including inadequate consideration and timing of registration — Whether mortgages were void ab initio — Fraudulent Conveyances Act, R.S.O. 1990, c. F.29 | Property — Assignments and preferences — Unjust preference to creditor — Mortgages registered by law firm to secure future legal fees — Applicants alleged intent to give law firm an unjust preference over other creditors — Insolvency of debtors at time of registration — Whether mortgages were void under the Assignments and Preferences Act — Assignments and Preferences Act, R.S.O. 1990, c. A.33 | Civil procedure — Standing — Receivership proceedings — Applicants sought declaratory relief to void mortgages registered by a non-party law firm — Whether Applicants had standing to bring motion in context of Receivership — Broad interpretation of standing in Receivership matters — Procedural efficiency and avoidance of duplicative proceedings
CanLII | Mar 9, 2022
- keywords: Corporate law — Ontario Business Corporations Act
CanLII | Mar 8, 2022
- keywords: Practice and procedure — Case management — Scheduling
CanLII | Mar 7, 2022
- keywords: Civil procedure — Costs — Advance costs
CanLII | Mar 3, 2022
- keywords: Estates and trusts — Bare trustee — Beneficial ownership — Joint ventures — Stonebrook Inc. held title to the Remaining Property as a bare trustee for beneficial owners — Whether Stonebrook Inc. had independent powers or acted solely on the direction of beneficial owners — Requirements to establish a trust — Trustee’s role limited to holding title and executing instructions — Ontario Execution Act, s. 9(1) | Evidence — Trust creation — Intention to create a trust — Identification of trust property and beneficiaries — Absence of signed declaration of trust — Whether sufficient evidence existed to establish a bare trust — CRA recognition of bare trust arrangement — Financial statements and tax filings consistent with bare trust structure — Test from White v. Gicas applied | Property — Writ of execution — Attachment of property held in trust — Whether Writ binds Remaining Property held by Stonebrook Inc. as bare trustee — Execution Act, s. 9(1) — Registered owner’s lack of beneficial interest — Execution creditor limited to debtor’s interest in property — Michaud v. Coreslab Structures (Ont.) Inc. and 1842752 Ontario Inc. v. Fortress Wismer 3-2011 Ltd. applied | Civil procedure — Declaratory relief — Enforcement of Writ against beneficial owners — Applicants sought declaration that Writ cannot be enforced against them — Whether beneficial owners liable for obligations of bare trustee — Agency relationship argument left open for further submissions — Declaration contingent on absence of agency argument
CanLII | Feb 28, 2022
- keywords: Barristers and solicitors — Conflict of interest — Application for removal
CanLII | Feb 28, 2022
- keywords: Bankruptcy and insolvency — Vesting orders — Condominium receivership — Competing claims between purchaser and secured creditor during insolvency proceedings — Whether purchaser’s entitlement to clear title prevails over financial claims of secured creditor under the mortgage — Balancing proprietary interests with financial claims — Framework for granting a vesting order in insolvency cases — Third Eye Capital Corp. v. Ressources Dianor Inc. factors governing vesting orders | Contracts — Real estate contracts — Interpretation of agreement of purchase and sale (APS) — Prepayment structured as loan — Whether final prepayment satisfies contractual purchase obligations under APS terms — Purchaser’s rights under APS not contingent on vendor’s breach of obligations — Maxwell dictum applied: “Equity looks on what ought to have been done.” | Construction — Condominium development — Disruption of trust arrangements — Prepayment of purchase price by purchaser — Allegations of breach of Condominium Act obligations by developer/vendor — Whether payment outside trust account violates APS — Purchaser’s lack of contractual obligations regarding vendor’s financing or secured creditor’s claims | Property — Mortgage priority disputes — Rights of bona fide purchaser for value — Competing claims on condominium title between secured mortgagee and purchaser — Receiver’s role in facilitating title transfer — Application of equity favoring purchaser against developer and creditor breaches — Contractual discharge obligations overriding mortgage priority claims | Civil procedure — Receivership — Directions to resolve disputes over complex financial entitlements — Application for directions by receiver — Assessment of competing claims in equity and law — Process for resolving outstanding adjustments post-judgment — Receiver to facilitate further proceedings if necessary
CanLII | Feb 25, 2022
- keywords: Bankruptcy and insolvency — Remedies — Companies’ Creditors Arrangement Act
CanLII | Feb 24, 2022
- keywords: Discovery — Medical examination — Consent — Disability — Courts of Justice Act
CanLII | Feb 18, 2022
- keywords: International law — Arbitration — NAFTA Chapter 11 — Application to set aside arbitral award under Article 34(2)(a)(ii) of the Model Law — Allegations of procedural unfairness and denial of natural justice — Tribunal’s jurisdiction and discretion to decide issues under international arbitration framework — Standard of review for setting aside arbitral awards — Model Law on International Commercial Arbitration, Article 34(2)(a)(ii) | Civil procedure — Arbitration — Procedural fairness — Whether tribunal decided case on a theory not pleaded or argued by the parties — Tribunal’s reliance on the July 7, 2014 letter in determining whether an interconnection agreement existed — Tribunal’s questions to parties and post-hearing submissions addressing the issue — No failure of fairness or natural justice | Evidence — Arbitration — Expert evidence — Whether tribunal failed to consider applicant’s expert evidence on Mexican law and regulatory framework — Tribunal’s detailed analysis of parties’ pleadings and evidence — Tribunal’s reasons referencing applicant’s expert evidence indirectly through pleadings — No failure to evaluate relevant evidence
CanLII | Feb 16, 2022
- keywords: Business associations — Fiduciary duties — Duty of confidentiality — Former director — Breach of fiduciary duties and confidentiality by a former director of a corporation — Whether fiduciary duties extend post-resignation — Jurisdiction of the Ontario Superior Court of Justice to issue a permanent injunction under the CBCA and equitable principles — Canada Business Corporations Act, R.S.C., 1985, c. C-44, s. 247 — Fiduciary duties extend post-resignation where breaches are ongoing or linked to prior role | Obligations — Fiduciary duties — Breach of loyalty — Former director’s actions contrary to corporate interests — Usurpation of corporate opportunity — Whether the respondent’s conduct, including entering into contracts and supporting legislation adverse to the corporation, breached fiduciary duties — Can. Aero v. O’Malley principles applied — Fiduciary duties breached where actions harm the corporation and benefit a third party | Evidence — Confidential information — Use of confidential corporate information — Whether the respondent misused confidential information obtained as a director — Evidence of public statements, contracts, and communications supporting breach of confidentiality — Confidentiality obligations under Directors’ Code of Ethics — Breach of confidentiality inferred from conduct and statements | Torts — Injunctions — Permanent injunctions — Whether damages are an adequate remedy for breaches of fiduciary duties and confidentiality — Difficulty in quantifying harm caused by breaches — Permanent injunction granted to prevent ongoing harm and misuse of confidential information — Labourer’s International Union of North America, Local 183 v. Castellano framework applied | International law — Conflict of laws — Enforcement of injunctions — Whether a permanent injunction issued in Ontario conflicts with Kyrgyz law — Respondent’s claim of potential criminal or civil liability under Kyrgyz law — Presumption that foreign law aligns with Ontario law absent evidence to the contrary — Injunction enforceable where no proven conflict with foreign law
CanLII | Feb 15, 2022
- keywords: Property — Mortgage enforcement — Appointment of receiver — Property subject to third mortgage — Lenders sought appointment of receiver under Bankruptcy and Insolvency Act and Courts of Justice Act — Respondents opposed appointment, citing sufficient equity in property — Is it just or convenient to appoint a receiver? — Governing principles for appointing a receiver under s. 243 of the Bankruptcy and Insolvency Act and s. 101 of the Courts of Justice Act | Contracts — Mortgage validity — Material alterations — Independent legal advice — Unconscionability — Respondents alleged mortgage commitment altered without consent, lacked independent legal advice, and was unconscionable — Were the mortgage terms void or unenforceable? — Alterations must be material and prejudicial; independent legal advice provisions may benefit lenders; unconscionability requires excessive cost or harsh terms | Obligations — Mortgage indebtedness — Brokerage fees — Interest reserves — Legal and administrative fees — Dispute over amounts secured by mortgage, including brokerage fees, interest reserves, and legal fees — What amounts are properly secured by the mortgage? — Mortgage secures agreed advances, but unsupported legal and administrative fees disallowed | Bankruptcy and insolvency — Appointment of receiver — Equity in property — Lenders sought receiver appointment due to default on third mortgage — Respondents argued sufficient equity existed to satisfy debt — Should a receiver be appointed? — Receiver appointment denied; sufficient equity and ongoing servicing of prior mortgages considered
CanLII | Feb 4, 2022
- keywords: Bankruptcy and insolvency — Companies’ Creditors Arrangement Act — Reverse vesting order — Approval of transaction — Whether the proposed RVO structure is appropriate under s. 11 and s. 36 of the CCAA — Consideration of fairness, creditor consultation, and preservation of licenses and permits — Governing principles from Nemaska Lithium and Quest University — Approval granted as the best outcome for stakeholders | Sale — Asset sales — Reverse vesting order — Whether the proposed transaction structure maximizes value for creditors and stakeholders — Comparison with traditional asset sales and bankruptcy scenarios — Monitor’s opinion on fairness and reasonableness of the process — Approval granted under s. 36(3) of the CCAA | Civil procedure — Stay of proceedings — Extension of stay under s. 11.02 of the CCAA — Whether the extension is necessary to facilitate the transaction and maintain the status quo — Good faith and due diligence of the debtor — No material prejudice to creditors — Stay extended to March 29, 2022 | Bankruptcy and insolvency — Monitor’s powers — Expansion of Monitor’s mandate to administer new entities and wind down CCAA proceedings — Whether the expansion is necessary to complete the transaction and protect stakeholder interests — Broad discretion under s. 23(1)(k) and s. 11 of the CCAA — Powers granted to facilitate restructuring | Bankruptcy and insolvency — Releases — Scope of release for directors, officers, Monitor, and purchaser — Whether the release is fair, reasonable, and connected to the restructuring — Exclusion of claims for fraud or willful misconduct — Benefits to creditors by reducing indemnification claims — Release approved as essential to the transaction
CanLII | Feb 4, 2022
- keywords: Partnership agreements — Limited Partnerships — Authority to bind
CanLII | Feb 2, 2022
- keywords: Civil procedure — Motions — Types of motions — Interlocutory orders — Leave to appeal
CanLII | Feb 1, 2022
- keywords: Civil procedure — Motion to strike — Leave to amend — Individual liability of employees — Claim against individual defendant struck for failure to plead material facts supporting personal liability — Plaintiffs granted leave to amend to address deficiencies in pleadings against individual defendants — Should the claim against Michael Kogan be struck, and should leave to amend be granted? — Rule 21.01(1)(b) of the Ontario Rules of Civil Procedure governs motions to strike for failure to disclose a reasonable cause of action | Torts — Negligent misrepresentation — Negligence — Conspiracy — Personal liability of employees — Requirements for pleading personal liability in tort claims — Plaintiffs failed to plead material facts establishing a duty of care or specific overt acts by individual defendants — What are the requirements for pleading personal liability of employees in tort claims? — Governing principles from R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42, and related case law
CanLII | Jan 28, 2022
- keywords: Civil procedure — Abuse of process — Motion to stay claims — Sprott Parties sought to permanently stay litigation brought by the Penfound Parties — Did the Penfound Parties' access to privileged and confidential materials render the proceeding unfair and amount to an abuse of process? — Remedy governing motions to stay proceedings for abuse of process where privileged materials are obtained | Evidence — Privileged communications — Solicitor-client privilege — Document review — Whether Penfound Parties improperly accessed emails and files containing privileged communications between Sprott Parties and their counsel — Sprott Parties requested privileged content to be presumed prejudicial — Standard of proof where privilege and prejudice are claimed in litigation misconduct cases | Contracts — Confidentiality in business transactions — Share purchase agreements — Failed transaction between parties involved in creating a licensed bank — Whether privileged communications were shielded amid breakdown of commercial negotiation and onset of litigation — Application of privilege and confidentiality during failed contractual negotiations | Professional responsibility — Counsel disqualification — Ethical considerations — Sprott Parties sought disqualification of Penfound Parties’ lawyers for accessing privileged documents — Whether disqualifying counsel or imposing alternative remedies preserves fairness in process — Governing principles from MacDonald Estate and Celanese for lawyer disqualification in privilege breach cases | Evidence — Rebutting presumption of prejudice — Penfound Parties obtained Sprott Parties' confidential and privileged emails and documents during litigation — Whether the presumption of prejudice arising from access to such material was rebutted — Standard from Celanese regarding evidentiary burden to rebut prejudice presumption
CanLII | Jan 28, 2022
- keywords: Civil procedure — Mareva injunctions — Prima facie case — Plaintiffs sought Mareva injunction against defendants alleging improper intercompany transfers and asset dissipation — Did the plaintiffs establish a strong prima facie case to justify the extraordinary remedy? — High threshold for Mareva injunctions requires plaintiffs to demonstrate they are almost certain to succeed at trial — Chitel v. Rothbart and Borelli v. Chan applied | Civil procedure — Mareva injunctions — Risk of dissipation — Plaintiffs alleged defendants intended to dissipate assets to defeat judgment — Evidence of asset transfers within jurisdiction insufficient to establish dissipation — Does the evidence support an intention to place assets beyond the reach of the court? — Aetna Financial Services Ltd. v. Feigelman applied | Evidence — Intercompany transfers — Financial records — Plaintiffs alleged improper intercompany transfers as part of a “shell game” — Insufficient forensic analysis of financial transactions presented — What is the evidentiary threshold for Mareva injunctions in cases involving complex financial transactions? — Suspicion of impropriety insufficient to meet high threshold | Evidence — Relevance of prior proceedings — Findings in receivership and bankruptcy proceedings relied upon by plaintiffs — Findings in other cases involved different legal tests and facts — Are findings from other proceedings relevant to the determination of Mareva injunctions? — Context and evidentiary limitations of prior decisions considered | Evidence — Document production — Financial records — Court emphasized importance of full and immediate disclosure of financial records in cases involving complex financial transactions — Defendants alleged to have withheld relevant documents — What is the role of document production in Mareva injunction motions? — Comprehensive disclosure critical to forensic analysis and trial preparation
CanLII | Jan 28, 2022
- keywords: Stay of proceedings — Interlocutory orders
CanLII | Jan 28, 2022
- keywords: Bankruptcy and insolvency — Receivership — Sale of property — Receiver appointed to sell a multi-million-dollar property — Dispute over failed closing of Agreement of Purchase and Sale — Receiver sought damages for breach of agreement — Whether the Receiver acted within its duties and mitigated damages — Governing principles for receivership sales and obligations under court-approved agreements | Contracts — Substantial damage — Termination of agreement — Purchaser alleged substantial damage to property, including mould, after execution of Agreement of Purchase and Sale — Whether purchaser was entitled to terminate the agreement and recover deposits — “Substantial damage” interpreted to include quality, character, and consequences of damage — Purchaser failed to prove substantial damage or exercise inspection rights — Agreement upheld | Contracts — Anticipatory breach — Refusal to extend closing date — Receiver refused to extend closing date without additional deposit — Purchaser alleged anticipatory breach and repudiation by Receiver — Whether Receiver’s refusal or communications constituted repudiation — Court held Receiver did not repudiate agreement; purchaser failed to affirm alleged repudiation | Sale — Mitigation of damages — Post-failure conduct — Purchaser offered price abatement or remediation undertaking after failed closing — Receiver refused and sought alternative sale — Whether Receiver failed to mitigate damages — Court held Receiver acted reasonably in rejecting proposals and seeking new buyer — Mitigation principles in property sales | Property — Damages — Measure of damages — Receiver claimed deficiency in sale price, auction fees, and holding costs after failed transaction — Purchaser disputed damages, alleging failure to mitigate and unrepaired damage — Court awarded damages for price deficiency, auction fees, and holding costs — Governing principles for calculating damages in failed property transactions
CanLII | Jan 27, 2022
- keywords: Constitutional law — Parliamentary privilege — S. 2(1) of the Charter — Charter of Rights and Freedoms — S. 11 of the CCAA — Rjr-Macdonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311
CanLII | Jan 26, 2022
- keywords: Business associations — Derivative actions — Leave to commence — Minority shareholders seeking leave to bring derivative action under section 246 of the Ontario Business Corporations Act — Allegations of unauthorized distribution of sale proceeds by majority shareholder and solicitor — Whether leave should be granted — Test for leave under section 246 of the OBCA — Extraordinary remedy requiring conjunctive satisfaction of statutory criteria | Statutory interpretation — Ontario Business Corporations Act — Section 246 — Derivative actions — Interpretation of statutory requirements for leave to commence derivative action — Definition of “complainant” under section 245 of the OBCA — Whether plaintiffs met statutory criteria for leave — Conjunctive test requiring good faith and action in the corporation’s best interests | Business associations — Good faith — Minority shareholders alleging bad faith by majority shareholder and solicitor — Whether plaintiffs acted in good faith in seeking leave to commence derivative action — Evidence of plaintiffs’ conduct and timing of motion — Court finding plaintiffs acted in good faith despite procedural delays and lack of corporate engagement prior to litigation | Access to information — Disclosure of documents — Solicitor’s sale file — Plaintiffs seeking production of sale file, trust ledger, and cheques related to marina sales — Court ordering solicitor to produce sale file redacted for privilege — Disclosure necessary to resolve questions regarding distribution of sale proceeds | Civil procedure — Costs — Motion for leave to commence derivative action dismissed — Costs awarded to defendants on a partial indemnity basis — Plaintiffs ordered to pay $11,000 in costs, payable in the cause — Costs allocation reflecting early stage of litigation and procedural delays
CanLII | Jan 24, 2022
- keywords: Civil procedure — Parties — Joinder
CanLII | Jan 20, 2022
- keywords: Securities — Pre-action discovery — Norwich order — Applicant sought pre-trial discovery of documents related to a corporate transaction involving the distribution and subsequent acquisition of shares — Whether the applicant met the test for a Norwich order — Court dismissed the application, finding the order unnecessary and not in the interests of justice — Test for granting Norwich orders outlined in GEA Group AG v. Ventra Group Co | Access to information — Pre-action discovery — Norwich order — Applicant sought disclosure of confidential documents from respondents to investigate potential claims — Whether the applicant’s objective was legitimate and whether disclosure was necessary — Court found the application was motivated by improper purposes and dismissed it — Factors for granting Norwich orders include necessity and legitimate purpose | Taxation — Confidentiality — Sealing order — Respondent sought to redact portions of an affidavit containing sensitive tax information — Whether the sealing order was justified under the open court principle — Court granted the sealing order, finding the information highly confidential and the benefits of sealing outweighed the negative effects — Test for sealing orders affirmed in Sherman Estate v. Donovan | Civil procedure — Notice of Examination — Pre-action discovery — Applicant served a Notice of Examination on the respondent’s CEO seeking information related to the application — Whether the Notice of Examination was appropriate in the context of a Norwich order application — Court quashed the Notice, finding it improper and an abuse of process — Examination of a respondent’s officer in pre-action discovery deemed intrusive and unnecessary
CanLII | Jan 19, 2022
- keywords: Costs — Substantial Indemnity
CanLII | Jan 14, 2022
- keywords: Contract law — Interpretation — Arbitration
CanLII | Jan 14, 2022
- keywords: Civil procedure — Civil contempt — Penalties — Proportionality — Mitigating and aggravating factors — Defendants found in contempt of Mareva and Continuation Orders by placing a mortgage, collecting rent, and retaining funds — Plaintiffs sought imprisonment, striking of pleadings, and costs — Whether a fine or incarceration is appropriate — Governing factors for civil contempt penalties include proportionality, deterrence, and financial circumstances — Business Development Bank of Canada v. Cavalon Inc., 2017 ONCA 663 applied | Civil procedure — Striking pleadings — Contempt of court — Defendants failed to purge contempt or pay costs — Plaintiffs sought to strike Amended Statement of Defence and Counterclaim if fine and costs remain unpaid — Whether striking pleadings is justified for non-compliance with court orders — Rules 60.11 and 60.12 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 applied | Civil procedure — Incarceration for contempt — Rare use — Defendants argued incarceration disproportionate to acts of contempt — Court considered financial strain, remorse, and discrete nature of breaches — Whether incarceration is appropriate for civil contempt — Business Development Bank of Canada v. Cavalon Inc., 2017 ONCA 663 applied
CanLII | Jan 13, 2022
- keywords: Access to information — Auditor General — Privileged information — Grant recipients — Whether section 10 of the Auditor General Act requires grant recipients to disclose information and records subject to solicitor-client privilege, litigation privilege, or settlement privilege — Statutory interpretation of disclosure obligations — No clear and unambiguous legislative intent to abrogate privilege found — Auditor General Act, R.S.O. 1990, c. A.35, s. 10 | Evidence — Privilege — Solicitor-client privilege — Litigation privilege — Settlement privilege — Whether section 10(2) of the Auditor General Act grants the Auditor General the right to free and unfettered access to privileged information and records — General disclosure provisions do not compel disclosure of privileged information — Privilege cannot be abrogated by inference — Auditor General Act, R.S.O. 1990, c. A.35, s. 10(2) | Statutory interpretation — Legislative history — Privilege — Whether the legislative history and statutory interpretation of the Auditor General Act demonstrate a clear and unambiguous intent to abrogate solicitor-client privilege, litigation privilege, or settlement privilege — Absence of express language in the Act — Comparison with other statutes that explicitly abrogate privilege — Auditor General Act, R.S.O. 1990, c. A.35
CanLII | Jan 12, 2022
- keywords: Bankruptcy and insolvency — Companies’ Creditors Arrangement Act (CCAA) — Stay of proceedings — Claims process — Tolling orders — Whether the tolling order suspended limitation periods for third-party claims — Purpose of tolling orders in CCAA proceedings — Claims bar dates and creditor certainty — CCAA court jurisdiction to toll limitation periods — Interpretation of tolling orders in insolvency contexts | Statutory interpretation — Tolling orders — Interpretation of court orders — Plain language, context, and purpose — Whether tolling order extended limitation periods for third-party claims — Ambiguity in language of tolling orders — Fundamental purposes of CCAA proceedings — Single claims process for creditors — Canadian National Railway v. Holmes principles applied | Civil procedure — Nunc pro tunc orders — Limitation periods — Whether court can grant nunc pro tunc relief after limitation period expiry — Red-line rule from Canadian Imperial Bank of Commerce v. Green — Factors for nunc pro tunc orders — Application of Green in insolvency contexts — Certainty and due diligence in limitation periods | Insurance — Third-party liability insurance — Claims against debtor potentially engaging insurance coverage — Whether lifting stay of proceedings should be conditional on limiting recovery to insurance proceeds — Monitor’s position on lifting stay — Conditions for lifting stay in insolvency proceedings
CanLII | Jan 10, 2022
- keywords: Motions — Costs — Substantial indemnity costs
CanLII | Jan 10, 2022
- keywords: Civil procedure — Costs — Injunction motion — Summary judgment motion — Appropriate scale and quantum of costs — Parties sought costs on substantial indemnity and partial indemnity bases — Whether substantial indemnity costs were justified — Court awarded partial indemnity costs to successful parties — Governing principles for awarding costs under the Courts of Justice Act, R.S.O. 1990, c. C.43, s. 131 | Civil procedure — Costs — Substantial indemnity costs — Elevated costs — Whether conduct of parties warranted substantial indemnity costs — Court found no “reprehensible, scandalous or outrageous conduct” — Substantial indemnity costs not awarded — Test from Davies v. Clarington (Municipality), 2009 ONCA 722 applied | Civil procedure — Costs allocation — Overlapping motions — Injunction motion and summary judgment motion heard together — Allocation of costs between motions — Court determined net costs payable by DCR to XTM — Costs fixed at $25,000 on a net basis — Reasonable expectations of parties considered | Civil procedure — Costs — Amicus curiae — Gomez defendants — Costs for work performed by amicus curiae and self-represented litigants — Partial indemnity costs awarded to amicus curiae — Disbursements awarded to Gomez defendants — Tasks performed by litigants not compensable unless beyond typical litigant duties — Principles from Fong v. Chan (1999), 181 D.L.R. (4th) 614 applied
CanLII | Dec 21, 2021
- keywords: Civil procedure — Motions — Notice
CanLII | Dec 17, 2021
- keywords: Bankruptcy and insolvency — Recognition of foreign proceedings — Chapter 11 bankruptcy — Application for recognition of U.S. Chapter 11 proceedings as a “foreign main proceeding” under the Companies’ Creditors Arrangement Act (CCAA) — Whether the debtor’s centre of main interests is in the United States — Governing rule under s. 46(1) of the CCAA for recognition of foreign insolvency proceedings | Bankruptcy and insolvency — Stay of proceedings — Cross-border insolvency — Whether a stay of proceedings in Canada should be granted in respect of claims against the debtor — Application of s. 48(1) of the CCAA to protect the debtor’s property and creditors’ interests | International law — Recognition and enforcement of foreign orders — U.S. Preliminary Injunction — Whether the U.S. Preliminary Injunction staying talc-related claims, including Canadian actions, should be recognized and enforced in Canada — Principles of comity and fairness in cross-border insolvency matters — Application of s. 49 of the CCAA | Civil procedure — Notice requirements — Exemption from publication — Whether the debtor should be exempted from the requirement to publish notice of the recognition proceedings in Canadian newspapers — Application of s. 53(b) of the CCAA — Court’s discretion to require notice in major Canadian cities | Bankruptcy and insolvency — Appointment of Information Officer — Cross-border insolvency communication — Whether Ernst & Young Inc. should be appointed as Information Officer — Adoption of Judicial Insolvency Network (JIN) Guidelines for communication and cooperation in cross-border insolvency matters
CanLII | Dec 17, 2021
- keywords: Bankruptcy and insolvency — Companies’ Creditors Arrangement Act (CCAA) — Initial Order — Stay of proceedings — DIP Financing Agreement — Monitor’s role — Applicant sought extension of stay and increased borrowing authorization under DIP Financing Agreement — Should the court extend the stay and increase borrowing authorization? — Governing principles for granting relief under the CCAA, including maintaining business operations and protecting stakeholders’ interests | Sale — Sale and investment solicitation process (SISP) — Stalking Horse Bid — Applicant sought approval of SISP and Stalking Horse Bid as part of restructuring under the CCAA — Should the court approve the Amended and Restated Initial Order, including the SISP and Stalking Horse Bid? — Framework for approving SISP and Stalking Horse Bids in insolvency proceedings | Civil procedure — Commercial List — Late filings — Chronic issue of late filings in Commercial List matters — Court emphasized unfairness to stakeholders and potential for adjournments — Should the court impose consequences for late filings? — Court’s discretion to manage procedural fairness and efficiency in Commercial List cases
CanLII | Dec 16, 2021
- keywords: Commercial law — Contract law — Interpretation — Breach — Remedies
CanLII | Dec 14, 2021
- keywords: Contracts — Interlocutory injunctions — Non-competition and non-solicitation clauses — Defendant sought to vary or terminate an injunction prohibiting competition and solicitation — Should the injunction be varied due to the expiration of contractual obligations and delays in litigation? — Rule 59.06 permits variation of orders based on new facts — Injunction partially dissolved as contractual obligations had expired and damages were deemed an adequate remedy | Civil procedure — Interlocutory injunctions — Delay in advancing litigation — Plaintiffs by counterclaim failed to advance their case with reasonable dispatch — Does delay justify dissolution of the injunction? — Obligation to pursue litigation expeditiously — Injunction dissolved in part due to unreasonable delay and its impact on the defendant’s livelihood | Business associations — Oppression remedy — Fiduciary duty — Relevance of contractual provisions — Plaintiffs by counterclaim argued claims were based on oppression and breach of fiduciary duty, not contract — Are contractual provisions relevant to oppression claims? — Professional Services Agreement central to determining reasonable expectations under the oppression remedy — Contractual provisions deemed relevant
CanLII | Dec 13, 2021
- keywords: Sale of goods — Passing of property — Conditions precedent — Contract law
CanLII | Dec 8, 2021
- keywords: Bankruptcy and insolvency — Receivers — Powers — Investigative powers — Stay of proceedings
CanLII | Dec 6, 2021
- keywords: Civil procedure — Anti-SLAPP motions — Dismissal of actions — Defamation Action and Wolfpack Action — Should the actions be dismissed under section 137.1 of the Courts of Justice Act? — Framework for dismissing actions under anti-SLAPP provisions — Balancing public interest in protecting expression against harm to plaintiffs — Courts of Justice Act, R.S.O. 1990, c. C.43, s. 137.1 | Civil procedure — Public interest — Anti-SLAPP motions — Expressions relating to public interest — Do the expressions in the Defamation Action and Wolfpack Action relate to matters of public interest? — Broad and liberal interpretation of public interest — Expressions concerning allegations of fraud and regulatory inquiries — Courts of Justice Act, R.S.O. 1990, c. C.43, s. 137.1(3) | Civil procedure — Substantial merit and valid defences — Anti-SLAPP motions — Are there grounds to believe the actions have substantial merit and that defendants have no valid defences? — Limited weighing of evidence — Defences of justification, fair comment, and responsible communication — Courts of Justice Act, R.S.O. 1990, c. C.43, s. 137.1(4)(a) | Civil procedure — Public interest weighing — Anti-SLAPP motions — Harm versus public interest in expression — Does the harm suffered by plaintiffs outweigh the public interest in protecting defendants’ expressions? — Consideration of chilling effects on future expressions — Courts of Justice Act, R.S.O. 1990, c. C.43, s. 137.1(4)(b) | Civil procedure — Partial anti-SLAPP motions — Dismissal of specific statements in counterclaims — Can a partial anti-SLAPP motion be brought under section 137.1? — Interpretation of “proceeding” under the Courts of Justice Act — Potential for increased expense and delay — Courts of Justice Act, R.S.O. 1990, c. C.43, s. 137.1
CanLII | Dec 2, 2021
- keywords: Bankruptcy and insolvency — Liquidation — Removal of liquidator — Fiduciary duties — Heavy onus on party seeking removal of court-appointed liquidator — Allegations of conflict of interest and collaboration with one party — Whether the Liquidator acted in good faith and fulfilled its duties — Ontario Business Corporations Act, R.S.O. 1990, c. B.16, s. 211 — Court dismissed motion to remove Liquidator, finding no evidence of bad faith or conflict of interest | Business associations — Corporate governance — Oppression remedy — Winding-up of corporation — Appointment of liquidator — Whether the court should replace the Liquidator with a Monitor or another liquidator — Court found no justification for replacing the Liquidator, emphasizing the importance of continuity in the winding-up process | Property — Real estate — Listing agreements — Extension of listing agreement with real estate agent — Whether the court should authorize the renewal of the listing agreement for the remaining property — Court approved extension, finding the agent’s marketing efforts effective despite challenges posed by the pandemic | Civil procedure — Costs — Full indemnity costs — Costs awarded against moving party for meritless motion — Whether the moving party should pay the Liquidator’s full indemnity costs — Court ordered moving party to pay full indemnity costs to avoid burdening other stakeholders in the liquidation
CanLII | Nov 30, 2021
- keywords: Bankruptcy and insolvency — Companies’ Creditors Arrangement Act — Insolvency criteria — Applicants’ liabilities exceeding assets — Operational deficit — Financial risk from unsecured creditors — Do the applicants meet the criteria for relief under the CCAA? — Test under the BIA and expanded Stelco test applied | Bankruptcy and insolvency — Stay of proceedings — Partnerships — Jurisdiction to extend stay to partnerships integral to applicants’ operations — Should the court grant a stay of proceedings and extend it to partnerships? — Section 11.02(1) of the CCAA applied | Bankruptcy and insolvency — Critical suppliers — Pre-filing payments — Services integral to operations — Monitor’s discretion to determine critical suppliers — Should the court authorize pre-filing payments to critical suppliers? — Section 11 of the CCAA applied | Bankruptcy and insolvency — Interim financing — Debtor-in-possession financing — Urgent liquidity needs — DIP lender’s charge — Should the court approve the proposed DIP financing? — Section 11.2 of the CCAA applied | Bankruptcy and insolvency — Monitor appointment — Ernst & Young Inc. — Consent to act as monitor — Compliance with statutory requirements — Should the court appoint Ernst & Young Inc. as monitor? — Section 11.7(2) of the CCAA applied | Bankruptcy and insolvency — Administration charge — Priority charge for advisors’ fees — Reasonableness of quantum — Should the court approve the administration charge? — Section 11.52 of the CCAA applied | Bankruptcy and insolvency — Chief restructuring officer — Kesmark Estates Ltd. — Expertise and protections — Should the court appoint Kesmark as CRO and grant requested protections? — Section 11 of the CCAA applied
CanLII | Nov 29, 2021
- keywords: Company law — Oppression — Civil procedure — Sealing orders — Documents held by non-parties — Business Corporations Act — R.S.O. 1990, c. B.16, s. 96 — Winding-up Act — R.S.C. 1985, c. W-11, s. 191.
CanLII | Nov 25, 2021
- keywords: Civil procedure — Contempt of court — Disclosure obligations — Defendants sought to stay their obligation to answer undertakings and produce documents pending the outcome of a contempt motion — Should disclosure obligations under a Mareva order be suspended during contempt proceedings? — Balancing enforcement of Mareva orders with Charter protections — Defendants required to answer undertakings but with safeguards against use in contempt motion | Constitution — Charter of Rights — Self-incrimination — Sections 7, 11(c), and 13 of the Charter invoked to exclude compelled evidence in contempt motion — Whether contempt motion constitutes “other proceedings” under section 13 — Residual protection under section 7 — Evidence compelled under Mareva order admissible in same proceeding — Charter protections do not extend to exclude evidence in this context | Evidence — Admissibility of prior rulings — Plaintiffs sought to rely on prior judicial findings in contempt motion — Whether findings made on civil standard of proof are admissible in quasi-criminal contempt proceedings — Prior rulings inadmissible as proof of facts in issue in contempt motion — Higher criminal standard of proof required in contempt proceedings | Civil procedure — Disclosure obligations — Defendants sought additional disclosure from plaintiffs regarding fraud allegations and other issues — Whether requested disclosure was relevant to contempt motion — Disclosure limited to issues directly related to alleged breaches of Mareva order — Broad discovery into underlying fraud allegations denied | Civil procedure — Stay of proceedings — Defendant sought to stay contempt motion pending jurisdictional appeal — Whether stay would prevent irreparable harm or serve interests of justice — Balance of convenience favoured proceeding with contempt motion — Plaintiffs’ undertaking not to enforce sanctions pending appeal mitigated prejudice to defendant
CanLII | Nov 19, 2021
- keywords: Bankruptcy and insolvency — Key Employee Retention Plan (KERP) — Approval of second KERP — Factors considered include Monitor’s approval, risk of employee departures, criticality of employees to restructuring, and business judgment of the board — Does the Second KERP improve creditor recovery and support restructuring? — KERP approved as an investment to retain key employees and advance restructuring under the CCAA | Bankruptcy and insolvency — Sealing order — Confidentiality of KERP recipients — Public disclosure of employee compensation risks privacy and retention — Should a sealing order be granted to protect employee privacy and prevent prejudice to restructuring? — Sealing order granted as proportional and necessary to protect privacy interests under the open courts principle | Bankruptcy and insolvency — Stay of proceedings — Extension of stay under the CCAA — Applicants acting in good faith and with due diligence — Sufficient funds available to continue operations — Should the stay be extended to facilitate restructuring? — Stay extended to February 17, 2022, to support ongoing restructuring efforts | Bankruptcy and insolvency — Debtor-in-Possession (DIP) financing — Amendment to extend DIP loan term — Payment of extension fee — Does the DIP extension enhance prospects of a viable restructuring plan? — DIP extension approved as necessary to maintain operations and support restructuring under the CCAA | Business associations — Corporate dissolution — Solvency requirements under the Canada Business Corporations Act (CBCA) — Wind-up of Just Energy Finance to realize tax benefits — Should the court override CBCA solvency requirements to approve the transaction? — Transaction approved under CCAA jurisdiction to maximize estate value and protect creditors | Sale — Asset sale — Sale of ecobee shares — Approval of sale and related transactions under the CCAA — Factors include Monitor’s approval, creditor consultation, and market value of consideration — Should the sale and wind-up of Just Management Corp. proceed despite solvency issues? — Sale and related transactions approved as beneficial to creditors and consistent with CCAA objectives
CanLII | Nov 18, 2021
- keywords: Contracts — Right of First Refusal (ROFR) — Duty of good faith — Honest performance — Allegations of bad faith in price allocation during asset sale — Did Veresen breach its contractual duty of good faith in administering the ROFR process? — Duty of good faith requires fair and honest performance but does not mandate specific price allocations — Supreme Court of Canada principles in Callow and Hryniak applied | Civil procedure — Summary judgment — Appropriateness of summary judgment in complex commercial disputes — No material facts in dispute — Does the record allow for a fair and proportionate resolution? — Summary judgment appropriate where no credibility issues exist and the record is complete — Hryniak v. Mauldin test applied | Obligations — Fiduciary duty — Ad hoc fiduciary relationships — Alleged fiduciary duty in commercial sale process — Did Veresen owe a fiduciary duty to the plaintiffs in the ROFR process? — No evidence of an undertaking to act solely in the plaintiffs’ best interests — Alberta v. Elder Advocates of Alberta Society framework applied | Torts — Conspiracy — Predominant purpose and unlawful means — Allegations of conspiracy to manipulate purchase price allocation to harm plaintiffs — Did the defendants conspire to harm the plaintiffs? — No evidence of intent to harm or unlawful conduct — Canada Cement LaFarge Ltd. principles applied | Torts — Inducing breach of contract — Knowledge of contract — Allegations of inducing breach of ROFR obligations — Did Bluearth induce Veresen to breach its contract with the plaintiffs? — No evidence of deliberate wrongdoing or intent to cause breach — Correia v. Canac Kitchens elements applied | Statutory interpretation — Limitations Act, 2002 — Discoverability of claims — Time-barred claims for fiduciary duty and conspiracy — Were the claims discoverable within the two-year limitation period? — Claims arise from the same factual matrix but fail on substantive grounds — Limitations Act, 2002, s. 4 applied
CanLII | Nov 17, 2021
- keywords: Civil procedure — Amendments to pleadings — Rule 26.02(a) — Plaintiff amended statement of claim in response to motion to strike under Rule 21.01 — Whether leave to amend is required when pleadings are not closed — Court held that leave is required to amend in the face of a motion to strike — Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rr. 21.01, 26.02(a) | Civil procedure — Procedural order of motions — Motion for leave to amend versus motion to strike — Whether motion for leave to amend should be heard before motion to strike — Court held that motion to amend should be heard first to ensure judicial economy and avoid procedural inefficiencies — Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rr. 21.01, 26 | Civil procedure — Leave to amend — Rule 26.01 — Whether proposed amendments are justified — Court allowed amendments, finding no non-compensable prejudice and rejecting objections based on limitations periods and lack of particulars — Amendments must be read generously and assessed on their merits — Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rr. 26.01, 25.06 | Civil procedure — Admissions — Withdrawal of admissions — Rule 51.05 — Whether amendments improperly withdraw admissions from original claim — Court held that no deliberate or unambiguous admissions were withdrawn — Amendments allowed as they did not constitute intentional concessions — Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rr. 51.05, 26 | Civil procedure — Particularity and abuse of process — Rule 25.06 and Rule 25.11 — Whether amended claim sufficiently particularized and whether it constitutes abuse of process — Court found allegations of conspiracy, fraudulent concealment, and breach of contract sufficiently particularized — Amendments not abusive as they responded to defendants’ limitations arguments — Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rr. 25.06, 25.11
CanLII | Nov 16, 2021
- keywords: Contract law — Interpretation — Real property — Agreements of purchase and sale of land — Bad faith — Personal Property Security Act — R.S.O. 1990, c. P.10
CanLII | Nov 12, 2021
- keywords: Wills and estates — Gifts — Setting aside — Resulting trusts
CanLII | Nov 5, 2021
- keywords: Contracts — Mortgages — Closed mortgages — Prepayment privileges — Applicant sought declaration that mortgage was closed with no prepayment privilege and that lost interest to maturity was recoverable if prepaid — Respondent argued prepayment with interest to maturity was a windfall — Whether mortgage terms allowed prepayment without penalty — Governing rule: Closed mortgages require payment of principal, accrued interest, and future interest to maturity unless otherwise stipulated | Obligations — Mortgages — Prepayment rights — Due on Sale clause — Respondent argued amounts in Due on Sale clause were unenforceable and documents registered on title differed from those signed — No evidence provided to support claim — Whether Respondent had right to prepay mortgage without penalty — Governing rule: Corporate borrowers under closed mortgages cannot redeem early without fulfilling all contractual obligations | Insurance — Forced insurance coverage — Applicant placed insurance on property after Respondent ceased payments — Applicant sought recovery of insurance costs as a proper expense under mortgage terms — Respondent provided no explanation for ceasing insurance — Whether forced insurance costs were recoverable — Governing rule: Mortgage terms permit recovery of protective insurance costs, including interest, when mortgagor fails to insure property | Civil procedure — Adjournments — Peremptory orders — Respondent sought further adjournment after prior peremptory orders — Court denied request, citing minimal prejudice to Respondent and dilution of peremptory order meaning — Whether further adjournment should be granted — Governing rule: Peremptory orders must be respected unless significant prejudice is demonstrated
CanLII | Nov 3, 2021
- keywords: Bankruptcy and insolvency — Companies’ Creditors Arrangement Act — R.S.C 1985, c. C-36, s. 36
CanLII | Nov 1, 2021
- keywords: Contracts — Share Purchase Agreement — Representations and warranties — Indemnification obligations — Breach of representation regarding tax reassessment — Did the reassessment by the Finnish Tax Administration constitute a breach of the SPA? — Clear and unqualified representations in the SPA placed the risk of reassessment on the seller — Governing principles of contractual interpretation and commercial reasonableness | Taxation — Indemnification — Scope of indemnity — Reassessed taxes for pre-closing tax periods — Post-closing tax liabilities arising from pre-closing reassessments — Are taxes payable in 2017 and 2018 indemnifiable under the SPA? — Taxes causally linked to pre-closing periods are indemnifiable — Timing of payment does not alter the indemnity obligation | International law — Tax reassessment — Finnish Tax Administration — Cross-border transactions — Tax losses and carry-forwards — Was the loss of tax benefits in 2017 and 2018 reasonably foreseeable? — Reasonable foreseeability includes cascading effects of reassessment — Sophisticated commercial parties expected tax losses to have value post-closing | Taxation — Exclusion clauses — Accounting methods — SPA exclusion for changes in accounting methods — Does the exclusion clause preclude indemnification for 2017 and 2018 losses? — No evidence of a change in accounting method — Tax losses treated consistently pre- and post-closing — Exclusion clause inapplicable | Civil procedure — Quantum determination — Outstanding appeals — Reassessed tax liabilities — How should quantum be determined given pending appeals? — Judgment granted for amounts already paid — Final quantum to be determined after resolution of appeals — Parties to return to court if disagreements persist
CanLII | Nov 1, 2021
- keywords: Contract law — Real property — Commercial leases — Costs — Partial indemnity
CanLII | Oct 28, 2021
- keywords: Civil procedure — Class actions — Settlements — Approval — Costs — The Nortel Networks Corp., Re, 2015 onsc 2987 (Commercial List), leave to appeal denied 2016 Onca 332 — Mancinelli v. Royal Bank of Canada, 2018 onsc 4192 — Mancinelli v. Royal Bank of Canada, 2018 onsc 69sleep — Raciense v. Royal Bank of Canada, 2018 onsc 4192
CanLII | Oct 19, 2021
- keywords: Bankruptcy and insolvency — Fraudulent conveyance — Setting aside prior orders — Trustee sought to set aside prior court orders and a Notice of Discontinuance to continue an action under s. 91 of the BIA — Whether the Trustee met the requirements to set aside orders made without notice — Rule 37.14 of the Rules of Civil Procedure and the doctrine of delay applied — Motion dismissed | Bankruptcy and insolvency — Res judicata — Fraudulent conveyance claims — Trustee sought to continue an action for fraudulent conveyance despite prior findings in family law proceedings — Whether the doctrine of res judicata barred the action — Trustee’s active participation in prior proceedings established privity — Claims found to be res judicata | Bankruptcy and insolvency — Fresh evidence — Trustee relied on new evidence to reopen fraudulent conveyance claims — Evidence obtained after prior judgment but before appeal — Whether evidence could be admitted to challenge findings — Evidence could have been obtained earlier with reasonable diligence — Motion dismissed | Bankruptcy and insolvency — Authorization to prosecute offences — Trustee sought authorization to initiate proceedings under the BIA and Criminal Code for alleged offences by the Bankrupt and others — Court declined authorization due to elapsed time and lack of sufficient evidence — Motion dismissed | Civil procedure — Costs — Trustee’s motion dismissed — Bankrupt and other parties sought costs against the Trustee personally — Trustee acted without statutory duty, in an adversarial manner, and with knowledge of insufficient estate assets — Costs awarded on a partial indemnity basis against the Trustee personally and the estate
CanLII | Oct 15, 2021
- keywords: Civil procedure — Disclosure obligations — Pierringer settlement agreements — Non-settling defendants alleged failure to disclose terms of settlement agreement immediately — Whether the plaintiff’s action should be stayed or dismissed for abuse of process — Immediate disclosure of settlement terms altering litigation landscape required — Disclosure deemed sufficient and timely under the circumstances — Rules of Civil Procedure, R.R.O. 1990, Reg. 194, r. 21.01(3) | Contracts — Settlement agreements — Pierringer agreements — Approval of settlement agreement between plaintiff and settling defendants — Whether the court should approve the settlement agreement — Agreement limits liability of non-settling defendants to their several share of damages — Public interest in promoting settlements — Approval granted | Torts — Conspiracy — Amendments to pleadings — Plaintiff sought leave to amend pleadings to include conspiracy claim against non-settling defendants — Whether leave to amend should be granted — No prejudice to non-settling defendants demonstrated — Amendments allowed under Rule 26.01 of the Rules of Civil Procedure | Civil procedure — Discovery rights — Non-settling defendants sought expanded discovery rights against settling defendants — Whether discovery rights should be expanded — Settling defendants obligated to provide relevant documents and witness statements — No open-ended discovery rights granted at this stage — Procedural fairness maintained
CanLII | Oct 13, 2021
- keywords: Business associations — Shareholder rights — Dissent and appraisal remedy — Amalgamation — Applicant dissenting from amalgamation under s. 185 of the OBCA — Court determining fair value of shares — Whether applicant entitled to costs despite partial success — Costs awarded on partial indemnity basis — Ontario Business Corporations Act, R.S.O. 1990, c. B.16, ss. 185(4), 185(19), 185(27) | Civil procedure — Timeliness of application — Discretion to extend deadlines — Applicant failed to apply within 70-day statutory deadline under s. 185(19) of the OBCA — Court considered factors such as explanation for delay, prejudice, and continuing intention to seek relief — Application allowed despite delay — Ontario Business Corporations Act, R.S.O. 1990, c. B.16, s. 185(19) | Securities — Valuation of shares — Fair value versus fair market value — Applicant sought valuation based on statement by corporate officer — Respondent’s valuation lacked supporting evidence — Court relied on objective information from management circulars — Fair value determined at $0.236 per share — Ontario Business Corporations Act, R.S.O. 1990, c. B.16, s. 185(4) | Statutory interpretation — Interest on share valuation — Court’s discretion to award interest under s. 185(27) of the OBCA — No evidence of long-term rate of return or lost opportunity cost — Pre- and post-judgment interest awarded under the Courts of Justice Act — Ontario Business Corporations Act, R.S.O. 1990, c. B.16, s. 185(27)
CanLII | Oct 12, 2021
- keywords: Commercial law — Injunctions — Mareva injunctions
CanLII | Oct 12, 2021
- keywords: Bankruptcy and insolvency — Restructuring — Cannabis industry — Financial distress — Restructuring Support Agreement (RSA) — Lenders' forbearance — Debt restructuring — Regulatory approval delays — Unilateral extension of deadlines — Whether the RSA's terms allowed the Lenders to extend the "Outside Date" for regulatory approvals — Interpretation of agreements in insolvency contexts — Principles of commercial reasonableness and good business sense | Contracts — Interpretation — Restructuring Support Agreement (RSA) — Definition of "Outside Date" — Whether the Lenders could unilaterally extend the deadline for regulatory approvals — Plain and ordinary meaning of "automatically" and "consent" — Absence of iAnthus' role in the extension process — Commercial principles and avoidance of absurdity — Governing principles of contractual interpretation | Evidence — Post-contractual conduct — Ambiguity in contract terms — Use of subsequent conduct to clarify intentions — Management Information Circular — Whether post-contractual evidence clarified the definition of "Outside Date" — Risks of relying on subsequent conduct — Governing rule: post-contractual conduct admissible only if ambiguity exists
CanLII | Oct 12, 2021
- keywords: Debtor and creditor — Companies’ Creditors Arrangement Act
CanLII | Oct 7, 2021
- keywords: Civil procedure — Motions — Preservation orders — Rules of Civil Procedure — Rule 45
CanLII | Oct 5, 2021
- keywords: Oppression remedy — Business Corporations Act
CanLII | Oct 1, 2021
- keywords: Bankruptcy and insolvency — Definition of debtor company — Insolvency — Applicant seeking protection under the Companies’ Creditors Arrangement Act (CCAA) — Does the applicant meet the definition of a “debtor company” under the CCAA? — Court satisfied that the applicant meets both the traditional and expanded tests for insolvency — Companies’ Creditors Arrangement Act, R.S.C. 1985, c. C-36, s. 2 | Bankruptcy and insolvency — Stay of proceedings — Non-filing parties — Applicant seeking to extend the stay of proceedings to non-filing parties, including personal guarantees and subsidiaries — Should the stay of proceedings be extended to non-filing parties? — Court satisfied that extension is appropriate to preserve value and stability during restructuring — Companies’ Creditors Arrangement Act, R.S.C. 1985, c. C-36, ss. 11, 11.02 | Bankruptcy and insolvency — Charges — Administration Charge and Directors’ Charge — Applicant seeking approval of charges to secure professional fees and indemnify directors and officers — Should the Court approve the Administration Charge and Directors’ Charge? — Court satisfied that the charges are necessary and appropriate to facilitate restructuring — Companies’ Creditors Arrangement Act, R.S.C. 1985, c. C-36, ss. 11.51, 11.52 | Civil procedure — Notice provisions — Public notice — Applicant seeking to deviate from the notice provisions prescribed by the CCAA — Should the Court deviate from the notice provisions? — Court declined to deviate, emphasizing the open court principle and the importance of public notice in CCAA proceedings — Companies’ Creditors Arrangement Act, R.S.C. 1985, c. C-36, s. 23(1)(a)
CanLII | Oct 1, 2021
- keywords: Debtor-Creditor — Receivership — Costs
CanLII | Sep 22, 2021
- keywords: Practice — Parties — Interveners
CanLII | Sep 20, 2021
- keywords: Bankruptcy and insolvency — Distribution of proceeds — Monitor’s recommendations — Insolvency proceedings involving Urbancorp Group — Allocation of proceeds from the sale of Geothermal Assets — Should the Monitor’s recommended distribution be accepted? — Court directed $2,049,000 to KTNI under the Berm Lease — Governing principles of insolvency distribution and fairness | Lease — Transfer provisions — Berm Lease — Allocation of transfer value to landlord — Non-arm’s length lease terms — Should KTNI receive proceeds under s. 13.4(e) of the Berm Lease? — Court upheld KTNI’s entitlement to $2,049,000 — Lease provisions interpreted in accordance with contractual principles and factual matrix | Contracts — Pari passu rule — Anti-deprivation rule — Insolvency law — Does the Berm Lease’s transfer provision violate insolvency distribution rules? — Court found no violation of pari passu or anti-deprivation rules — Provision applied to all transfers, not triggered by insolvency — Chandos Construction Limited v. Deloitte applied | Evidence — Reliability of witness testimony — Affidavits of Mr. Mandel — Agreement with Foreign Representative — Should Mr. Mandel’s evidence be considered reliable? — Court disregarded Mr. Mandel’s evidence due to unreliability and conflicting interests — Evidence must be credible and free from bias | Civil procedure — Stay of distribution — Bankruptcy of UMI — Should distribution to Doreen Saskin be withheld pending resolution of her claim in UMI’s bankruptcy? — Court directed no distribution to Doreen Saskin until her claim is fully resolved — Trustee’s review of secured claims required
CanLII | Sep 16, 2021
- keywords: Lease — Change of control — Landlord consent — Berm Lease — Tenant required landlord’s consent for a change of control under s. 13.4(b) of the lease — Landlord demanded $5.8 million for consent — Whether landlord can unreasonably withhold consent — Landlord’s discretion limited by good faith obligations — Landlord ordered to provide consent upon payment of $75,000 processing fee | Contracts — Compensation under lease — Additional rent — Landlord demanded $5.8 million under s. 13.4(e) of the Berm Lease — Whether landlord entitled to additional compensation beyond processing fee — Landlord already compensated under prior decision — Double recovery not permitted — Landlord entitled only to $75,000 processing fee | Contracts — Good faith in contractual discretion — Landlord’s demand for $5.8 million deemed excessive and unsupported — Threats to increase or decrease payment by $100,000 per day characterized as bad faith — Landlord’s discretion under lease must align with contractual purpose — Landlord’s actions found to be in bad faith | Environment — Environmental Compliance Materials — Tenant requested delivery of materials related to environmental compliance — Landlord ordered to deliver any Environmental Compliance Materials in its possession or control — Obligation to provide materials upheld
CanLII | Sep 16, 2021
- keywords: Commercial law — Receivers — Duties and liabilities — valuation of assets
CanLII | Sep 16, 2021
- keywords: Contract law — Partnerships — Limited Partnerships — Dissolution — Specific performance — Courts of Justice Act — R.S.O. 1990, c. C.43
CanLII | Sep 1, 2021
- keywords: Civil procedure — Pleadings — Striking out pleadings — Settlement privilege — Plaintiffs sought to strike portions of Defendants’ pleadings alleging communications and documents from mediation — Whether settlement privilege applied to mediation communications — Whether exceptions to settlement privilege justified — Rule 25.11 of the Rules of Civil Procedure governs striking pleadings that are scandalous, frivolous, vexatious, or an abuse of process | Estates and trusts — Settlement privilege — Mediation — Plaintiffs alleged Defendants’ pleadings disclosed privileged communications from mediation involving family trusts — Whether mediation communications were prima facie protected by settlement privilege — Whether settlement privilege was waived or exceptions applied — Settlement privilege protects communications made in furtherance of settlement unless waived or overridden by justice of the case | Evidence — Scandalous pleadings — Relevance — Plaintiffs sought to strike portions of Defendants’ pleadings alleging personal misconduct — Whether allegations were relevant to issues raised in the litigation — Allegations of personal conduct unrelated to trust management deemed irrelevant and scandalous — Rule 25.11 applied to strike irrelevant and scandalous pleadings | Civil procedure — Admissions — Withdrawal of admissions — Plaintiffs sought reinstatement of language removed from Defendants’ amended pleadings — Whether removed language constituted an admission under Rule 51.05 — Court held prior statements were not unambiguous, deliberate concessions and did not qualify as admissions — Defendants permitted to amend pleadings
CanLII | Aug 26, 2021
- keywords: Securities — The Securities Act
CanLII | Aug 26, 2021
- keywords: Personal injuries — Practice — Third party proceedings
CanLII | Aug 18, 2021
- keywords: Bankruptcy and insolvency — Companies’ Creditors Arrangement Act (CCAA) — Reverse vesting order (RVO) — Jurisdiction — Restructuring mechanism — Applicants sought approval of an RVO to avoid bankruptcy and address environmental obligations — Does the Court have jurisdiction under the CCAA to approve the RVO? — Jurisdiction established under sections 11 and 36 of the CCAA | Environment — Oil and gas wells — Environmental obligations — Abandonment and reclamation costs — Municipal opposition to RVO — Does the RVO balance environmental stewardship with creditor interests? — RVO ensures ongoing compliance with environmental obligations, avoiding potential harm to landowners and the Ministry of Natural Resources and Forestry (MNRF) | Municipalities — Municipal tax arrears — Excluded Liabilities — Impact on municipal services — Municipalities opposed the RVO due to extinguishment of tax arrears — Should municipal tax arrears be included as Excluded Liabilities? — Court held that the RVO mitigates greater harm by ensuring future tax payments and environmental compliance | Statutory interpretation — Companies’ Creditors Arrangement Act (CCAA) — Section 36(3) factors — Soundair principles — Fairness and reasonableness of RVO — Does the RVO meet statutory and common law criteria? — Court found the RVO satisfied section 36(3) factors and Soundair principles, ensuring a commercially reasonable outcome
CanLII | Aug 16, 2021
- keywords: Bankruptcy and insolvency — Receivership — Court-appointed receiver — Asset Purchase Agreement (APA) — Share Purchase Agreement (SPA) — Receiver’s obligations under court order — Excluded assets — Cannabis license — Did the Receiver breach its obligations under the APA or SPA? — Receiver’s authority limited by court order — Purchaser’s due diligence responsibility — No breach of obligations found | Contracts — Good faith — Best efforts — Asset Purchase Agreement (APA) — Obligation to negotiate in good faith and use best efforts to complete share purchase transaction — Purchaser alleged breach of section 8.1 of APA — Receiver negotiated SPA diligently and in good faith — No breach of section 8.1 found — Best efforts obligation confined to SPA terms | Health — Cannabis license — Regulatory compliance — Share Purchase Agreement (SPA) — Obligation to assist Purchaser with Health Canada approval for change of control — Purchaser alleged breach of section 5.6 of SPA — License expired before SPA obligations arose — Receiver lacked authority over license renewal — No breach of section 5.6 found | Sale — Damages — Abatement of purchase price — Purchaser sought damages for alleged breaches of APA and SPA — Purchaser failed to perform due diligence regarding cannabis license expiry — Agreements explicitly “as is, where is” — No entitlement to damages or abatement found
CanLII | Aug 16, 2021
- keywords: Civil procedure — Interlocutory injunctions — Confidential information — Plaintiff sought an interlocutory injunction requiring defendants to identify, return, or destroy confidential information — Whether the plaintiff satisfied the test for granting an interlocutory injunction, including irreparable harm and balance of convenience — Test for mandatory injunctions requiring a strong prima facie case — Motion dismissed due to lack of irreparable harm and balance of convenience favoring defendants | Civil procedure — Summary judgment — Dismissal of action — Defendant XTM, Inc. sought summary judgment dismissing the plaintiff’s action, arguing no genuine issue requiring a trial — Whether the plaintiff demonstrated triable issues, including causation and damages — Court found material facts in dispute, including the defendant’s knowledge and involvement — Motion for summary judgment dismissed | Evidence — Legal principles — Interlocutory injunctions — Test for granting interlocutory injunctions, including mandatory orders — Strong prima facie case required for mandatory injunctions — Application of RJR-MacDonald test for irreparable harm and balance of convenience — Court found insufficient evidence of ongoing harm to plaintiff to justify relief | Civil procedure — Partial summary judgment — Risk of inconsistent findings — Defendant XTM, Inc. sought partial summary judgment while claims against other defendants remained — Court considered risks of duplicative or inconsistent findings — Motion dismissed as issues were intertwined with those of other defendants
CanLII | Aug 12, 2021
- keywords: Bankruptcy and insolvency — Receivership — Sale and investment solicitation process (SISP) — Receiver sought court approval of a proposed SISP to maximize value for stakeholders — Process included two phases to identify and select Qualified Bidders — Should the court approve the SISP? — Test for approval of a SISP in receivership proceedings established in CCM Master Qualified Fund v. bluetip Power Technologies, 2012 ONSC 1750 — SISP approved as fair, transparent, and commercially effective | Evidence — Confidentiality — Disclosure of Borrower Information — Receiver sought authorization to disclose Borrower Information to Qualified Bidders during the SISP — Borrower confidentiality obligations considered under common law and Tournier Exceptions — Does the third Tournier Exception (lender’s interests) apply? — Disclosure permitted where necessary to recover amounts owed — Court approved disclosure subject to confidentiality obligations of Qualified Bidders | Sale — Receivership — Approval of Receiver’s activities — Receiver’s Fifth Report described activities undertaken to implement the SISP — Should the court approve the Receiver’s activities? — No opposition to the relief sought — Activities approved as consistent with the Receiver’s mandate and in the best interests of stakeholders | Securities — Investor representation — Appointment of representative counsel — Receiver indicated potential recommendation for representative counsel for certain investors — Should the court provide guidance on the appointment of representative counsel? — Court encouraged proactive identification of scope and interested counsel for future appointment
CanLII | Aug 12, 2021
- keywords: Bankruptcy and insolvency — Costs in bankruptcy proceedings — Restructuring under the Bankruptcy and Insolvency Act (BIA) — Limited partner applicant groups sought costs in bankruptcy proceedings — Whether the practice of not awarding costs in restructuring matters should be departed from — Court held that no costs should be awarded in the bankruptcy proceedings — Practice of each party bearing its own costs upheld — Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3 | Civil procedure — Costs in civil proceedings — Costs of two civil proceedings related to bankruptcy process — Whether costs should be addressed as part of the bankruptcy or separately — Court ruled that costs of civil proceedings should be addressed as an internal matter among equity claimants after funds flow back to the partnership — Costs not considered part of the bankruptcy process
CanLII | Aug 11, 2021
- keywords: Commercial law — Interest — Prejudgment interest — Rate of interest
CanLII | Aug 10, 2021
- keywords: Property — Mortgage priority — Dispute over priority between Centurion Mortgage and GCNA Mortgage — Whether Centurion Mortgage has priority except for purchasers’ deposits — Agreement between counsel for Centurion and GCNA in May 2016 — Application of proprietary estoppel to enforce agreement — Whether GCNA bound by terms of priority agreement — Governing principles of mortgage priority and estoppel | Contracts — Mortgage agreements — Priority agreements — Whether an agreement was made between counsel for Centurion and GCNA regarding mortgage priority — Authority of counsel to bind clients in agreements — Application of Scherer v. Paletta principle — Enforcement of agreements between parties regarding security interests | Civil procedure — Limitations Act, 2002 — Statute-barred claims — Whether Centurion’s claim to priority was discovered before September 2019 — Application of limitation periods to mortgage priority disputes — Standstill agreement under Escrow Agreement — Governing principles for determining discovery of claims under the Limitations Act
CanLII | Jul 23, 2021
- keywords: Bankruptcy and insolvency — Approval of proposal — Reasonableness and good faith — Court approval of version 2 of Amended Proposal #3 under the Bankruptcy and Insolvency Act — Proposal addressing creditor claims, equity claims, and related party claims — Does the proposal meet the requirements of reasonableness, benefit to creditors, and good faith? — Section 59(2) of the Bankruptcy and Insolvency Act applied | Bankruptcy and insolvency — Amendments to proposal — Addressing prior concerns — Amended Proposal #3 addressing issues raised in rejection of Amended Proposal #2 — Treatment of lien claimants, related party claims, and unsecured creditors — Does the amended proposal adequately resolve prior deficiencies? — Proposal found to constructively address prior concerns | Civil procedure — Provisional execution — Bankruptcy proposal approval — Provisional execution of approval order granted under section 195 of the Bankruptcy and Insolvency Act — Avoiding delays caused by appeals — Should provisional execution be granted to prevent further prejudice to creditors? — Provisional execution justified to ensure timely resolution | Business associations — Limited partnerships — Equity claims and liquidation — Limited partners opposing approval of proposal to pursue liquidation process — Balancing creditor rights and equity recovery — Do limited partners have the right to require a liquidation process despite risks to creditors? — Court held creditors’ rights to timely payment outweigh speculative equity recovery | Civil procedure — Costs — Bankruptcy proposal proceedings and related applications — Costs of proposal proceedings and related civil applications reserved — Should the court address costs at this stage? — Submissions on costs invited, with directions for written submissions and consolidation by the Trustee
CanLII | Jul 16, 2021
- keywords: Lease — Costs — Relief from forfeiture — Divided success — Landlord awarded arrears and ongoing rent, while tenant obtained relief from forfeiture and rent deferral — Should costs be awarded to the Landlord or should each party bear their own costs? — Court held that each party should bear their own costs due to divided success and the unique financial consequences of the COVID-19 pandemic | Civil procedure — Costs — Offer to Settle — Landlord served an Offer to Settle but withdrew it prior to the hearing — Should the withdrawn Offer to Settle be given weight in determining costs? — Court held that the withdrawn Offer to Settle was not relevant in the circumstances and gave it no weight | Lease — Costs — COVID-19 pandemic — Financial consequences — Should the unique and unforeseen circumstances of the COVID-19 pandemic influence the allocation of costs? — Court held that the pandemic’s unprecedented impact justified each party bearing their own costs
CanLII | Jul 16, 2021
- keywords: Civil procedure — Temporary stay — Multiplicity of proceedings — Prejudice — Respondent sought a temporary stay of the application pending resolution of a related action — Whether the stay would avoid inconsistent judicial findings and reduce duplication of resources — Whether the delay and prejudice caused by the respondent’s conduct justified denying the stay — Test for granting a temporary stay under section 106 of the Courts of Justice Act and related case law | Insurance — Power of Attorney — Validity — Standing — Applicant relied on a Power of Attorney (POA) to bring a claim under an insurance policy — Respondent challenged the validity of the POA, arguing it affected the applicant’s standing — Whether the POA was valid and enforceable — Governing principles for determining the validity of a POA with an interest | Evidence — Overlap of issues — Related proceedings — Whether the factual and legal overlap between the application and the related action justified a stay — Respondent argued that evidence from the related action was necessary to resolve the application — Court considered whether the evidence could be obtained in the normal course of the application | International law — Jurisdiction — Anti-suit injunctions — Related proceedings in Singapore and Dubai — Whether the issues related to receivables and guarantees should be litigated in foreign jurisdictions — Court previously ruled that disputes regarding receivables were to be litigated in Singapore and Dubai — Impact of international proceedings on the Ontario application
CanLII | Jul 13, 2021
- keywords: Civil procedure — Adjournment of trial — Stay of proceedings — Motion to adjourn damages trial pending appeal of liability decision — Whether adjournment would prejudice the administration of justice or the opposing party — Balancing interests of parties and justice system efficiency — Rule 52.02 of the Rules of Civil Procedure — Test for adjournment from Ariston Realty Corp. v. Elcarim Inc. — Motion dismissed | Contracts — Breach of contract — Damages — Whether damages trial should proceed before liability appeal is resolved — Breach of contract involving data-sharing agreement — Parties’ positions on damages calculation — Whether bifurcation of liability and damages is permissible without consent — Rule 6.1.01 of the Rules of Civil Procedure — Adjournment denied | Evidence — Additional evidence — Introduction of new evidence at damages trial — Whether new evidence should be permitted to address court-raised methodology — Fairness and natural justice considerations — Limitation to viva voce evidence already in the record unless both parties agree — Court withdrew methodology question to avoid unfairness — Motion to admit new evidence denied | Civil procedure — Finalizing judgment — Whether form of judgment on liability should be finalized before damages trial — Concerns about bootstrapping appeal rights — Appeals generally taken from orders or judgments, not reasons — Court declined to finalize judgment until damages trial is completed | Civil procedure — Stay of proceedings — Test for stay pending appeal — Serious issue to be tried, irreparable harm, and balance of convenience — Whether cost of damages trial constitutes irreparable harm — Balancing judicial efficiency and parties’ rights — Stay denied
CanLII | Jun 30, 2021
- keywords: Business associations — Partnership disputes — Winding-up and sale — Irreparable dysfunction — Family business — Breakdown of trust and confidence among partners — Physical altercations, lack of agreements, and inability to cooperate — Should the Court order the winding-up and sale of the family business? — Court has broad discretion under the Partnerships Act and OBCA to dissolve partnerships and corporations when just and equitable | Property — Winding-up — Division of assets — Family business — Equal treatment of partners — Should the Court order the division of assets through a supervised sale process? — Court supervised Wind-Up and Sale ensures equal treatment and fair market exposure of assets | Business associations — Buy-Sell remedy — Fairness — Information asymmetry — Execution risks — Should the Buy-Sell remedy be implemented to resolve the dispute? — Remedy rejected due to unfairness, information imbalance, and execution risks | Business associations — Structured Buy-Out (SBO) — Minority discount — Tax consequences — Fairness — Should the Structured Buy-Out remedy be implemented? — Remedy rejected as it unfairly excludes certain partners and imposes inequitable tax burdens | Taxation — Modified Restructuring Protocol (MRP) — Tax efficiency — Division of assets — Feasibility — Should the MRP be implemented to divide the family business? — Remedy rejected due to impracticality and inability of partners to cooperate in ongoing projects | Sale — Bidding process — Participation of partners — Fairness — Should partners be allowed to participate in the bidding process during the sale of the business? — Court permits participation under supervised process to ensure fairness and market exposure
CanLII | Jun 30, 2021
- keywords: Bankruptcy and insolvency — Approval of proposal — Fairness and good faith — Section 59(2) of the Bankruptcy and Insolvency Act — Court declined to approve the proposal due to unfairness, improper treatment of creditors, and lack of good faith — Related party claims treated as equity — Proposal Sponsor Agreement and valuation issues — Governing principles for approval of bankruptcy proposals under the BIA | Business associations — General partner authority — Limited Partnership Agreement — Filing of Notice of Intention (NOI) — General partner’s authority to file NOI upheld despite breaches of the Limited Partnership Agreement — Fiduciary duties — Breach of fiduciary duty by general partner in advancing proposal favoring related parties — Fiduciary obligations in insolvency contexts | Construction — Construction lien claims — Affected creditors — Improper inclusion of construction lien claims as affected creditors under the proposal — Lien claimants retained security and were unaffected creditors — Impact on fairness of creditor vote — Governing principles for classification of creditors in bankruptcy proposals | Evidence — Admissibility — McCracken affidavit and 2021 CBRE appraisal — Affidavit excluded due to late filing and procedural unfairness — 2021 CBRE appraisal given no weight due to flawed assumptions and lack of cross-examination — Governing rules for admissibility and weight of evidence in bankruptcy proceedings
CanLII | Jun 29, 2021
- keywords: Conflict of laws — Choice of law — Civil procedure — Summary judgment — Limitation periods — Real Property Limitations Act — R.S.O. 1990, c. L-15 — Fraudulent Conveyances Act — R.S.O. 1990, c. F.29 — Limitations Act, 2002 — S.O. 2002, c. 24 — B, s. 5, Limitations Act — Limitations Act
CanLII | Jun 28, 2021
- keywords: Lease — Breach of lease — Non-payment of rent — Tenant withheld rent during COVID-19 pandemic, citing landlord’s failure to provide a first-class shopping centre — Landlord argued compliance with provincial health restrictions did not constitute a breach — Is the tenant in breach of the lease for non-payment of rent? — Tenants cannot withhold rent unless explicitly permitted by the lease — Commercial Tenancies Act, s. 20 | Lease — Breach of lease — First-class shopping centre standards — Tenant alleged landlord breached lease by failing to maintain first-class shopping centre due to pandemic-related restrictions — Landlord argued compliance with public health laws precluded breach — Is the landlord in breach of the lease for failing to provide a first-class shopping centre? — Compliance with provincial laws does not constitute a breach of lease terms | Lease — Rent abatement — COVID-19 pandemic — Tenant sought rent reduction or abatement under section 20 of the Commercial Tenancies Act — Landlord argued lease terms precluded abatement and pandemic effects were not grounds for overriding private contracts — Is the tenant entitled to rent abatement or reduction? — Courts cannot override lease terms absent legislative policy — Commercial Tenancies Act, s. 20 | Lease — Relief from forfeiture — Equitable remedy — Tenant sought relief from forfeiture despite withholding rent — Court considered tenant’s conduct, gravity of breach, and disparity between forfeiture and harm caused — Should the tenant be granted relief from forfeiture? — Relief granted with repayment terms reflecting phased reopening — Commercial Tenancies Act, s. 20
CanLII | Jun 24, 2021
- keywords: Contract law — Real property — Application for directions — Receivership — Sale of assets
CanLII | Jun 24, 2021
- keywords: Bankruptcy and insolvency — Companies’ Creditors Arrangement Act (CCAA) — Plan of compromise and arrangement — Applicants sought court approval of a second amended and restated plan of compromise, arrangement, and reorganization — Should the plan be sanctioned under the CCAA? — Requirements for court approval of a CCAA plan include statutory compliance, procedural authorization, and fairness — Plan not sanctioned due to unfair provisions in Bar Order and Judgment Reduction Provision | Securities — Allocation and Distribution Scheme (A&DS) — Artificial share inflation — Securities Claimants Trust — Zola Plaintiffs objected to the date used to calculate artificial share inflation in the A&DS — Was the A&DS fair and reasonable? — Court held the A&DS was developed on a rational basis and rejected the objection — Framework for determining fairness of compensation schemes in securities claims | Civil procedure — Creditors’ meetings — Classification of creditors — KPMG LLP objected to its exclusion from voting at creditors’ meetings — Was the classification of creditors appropriate? — Rule against double proof applied, barring KPMG from voting due to the derivative nature of its claim — Proper classification of creditors under the CCAA | Securities — Assignment of claims — Auditor’s negligence — Applicants assigned claims against KPMG LLP to the Securities Claimants Trust — Was the assignment fair and reasonable? — Assignment upheld as integral to the settlement but specific reference to KPMG in the Plan deemed unnecessary — Principles governing assignment of claims in insolvency proceedings | Securities — Bar Order — Judgment Reduction Provision — Non-settling defendants — KPMG LLP objected to the fairness of the Bar Order and Judgment Reduction Provision — Should the Bar Order and Judgment Reduction Provision be approved? — Court found provisions unfair as they failed to limit liability to several liability and improperly shifted risk to non-settling defendants — Requirements for fairness in Bar Orders and Pierringer arrangements
CanLII | Jun 24, 2021
- keywords: Civil procedure — Jurisdiction — Real and substantial connection — Defendants sought to dismiss or stay the action for lack of jurisdiction — Plaintiffs argued Ontario was the appropriate forum due to connecting factors, including contracts and property in Ontario — Whether Ontario Superior Court of Justice has jurisdiction to hear the claims — Framework from Club Resorts Ltd. v. Van Breda applied to determine jurisdiction | International law — Jurisdiction over foreign defendants — Defendants argued lack of presence or attornment in Ontario — Plaintiffs alleged Defendants participated in a fraudulent scheme with substantial ties to Ontario — Whether foreign defendants can be subject to Ontario jurisdiction — Principles of international jurisdiction and fairness considered | Evidence — Real and substantial connection — Plaintiffs relied on evidence of contracts, property, and alleged fraudulent activities in Ontario to establish jurisdiction — Defendants challenged the sufficiency of evidence connecting the claims to Ontario — Whether Plaintiffs met the burden of demonstrating a “good arguable case” for jurisdiction — Test from Ontario v. Rothmans Inc. applied | Contracts — Gift Deed and related agreements — Gift Deed created in Ontario and alleged to be central to the fraudulent scheme — Plaintiffs argued contracts formed in Ontario constituted a presumptive connecting factor — Defendants disputed the relevance of Ontario contracts to the claims — Whether contracts formed in Ontario can ground jurisdiction — Van Breda test applied to contractual connections
CanLII | Jun 22, 2021
- keywords: Administrative law — Judicial review — Standard of review — Arbitration — Jurisdiction — Arbitration Act, 1991 — S.O. 1991, c. 17, s. 46(1), vexatious | Partnership — Dissolution — Appeals — Partnerships Act, R.S.O. 1990, c. P.5, s. 22.2 — Aeronautics Corporation v. Solar Power Network INC., 2019 Onca 254 — Chadeesingh v. Flores, 2020 onsc 5534
CanLII | Jun 22, 2021
- keywords: Bankruptcy and insolvency — Receivership — Approval of Receiver’s actions — Receiver sought approval for KERP, Tolling Order, repayment under credit facility, and formation of advisory committees — Should the court approve the Receiver’s proposed actions? — Court exercised discretion to approve Receiver’s recommendations, balancing stakeholder interests and statutory jurisdiction | Labour and employment — Key Employee Retention Plan (KERP) — Receivership proceedings — Receiver proposed KERP to retain key employees during restructuring — Should the court approve the KERP and related charge? — KERP and KERP Charge approved as necessary to incentivize employee retention, consistent with prior case law | Securities — Tolling Order — Limitation periods — Receiver sought to toll limitation periods for Misrepresentation Rights during stay of proceedings — Should the court grant the Tolling Order? — Tolling Order granted to preserve claims during receivership, ensuring fairness to stakeholders | Civil procedure — Sealing Order — Confidential information — Receiver sought to seal confidential appendices containing sensitive employee and commercial information — Should the court grant the Sealing Order? — Sealing Order granted, meeting the test for limiting court openness under Sherman Estate v. Donovan | Indigenous peoples — Limited Partner Advisory Committees (LPACs) — Bridging Indigenous Impact Fund — Receiver proposed LPACs to provide input on behalf of unitholders, including Indigenous-focused fund — Should the court approve the LPACs? — LPACs approved with a 60-day time limit, subject to extension by court order | Securities — Representative Counsel — Retail investors — Ad Hoc Group of Retail Investors sought appointment of Representative Counsel to protect retail investors’ interests — Should the court appoint Representative Counsel at this stage? — Appointment deferred for 60 days pending Receiver’s report on portfolio review and inter-fund reconciliation
CanLII | Jun 22, 2021
- keywords: Bankruptcy and insolvency — Receivership — Good faith obligations — Bank of Montreal applied for a receiver under the Bankruptcy and Insolvency Act — Did the Bank act in good faith in executing the agreement with the purchaser? — Court found the Bank failed to meet its good faith obligations under s. 4.2(1) of the Bankruptcy and Insolvency Act and common law principles | Contracts — Good faith in execution — Bank of Montreal accepted an agreement with the purchaser but failed to deliver an executed copy, causing financing issues — Did the Bank’s actions breach its duty of good faith? — Court held the Bank’s conduct fell outside the boundaries of good faith, hindering the transaction’s completion | Contracts — Remedies — Specific performance — Purchaser sought to enforce the agreement despite the failure to close on the original date — Should the court order the Bank to close the transaction? — Court ordered the Bank to close the transaction by a specified date, finding the purchaser ready, willing, and able to close | Civil procedure — Court-ordered remedies — Timely resolution — Court considered the commercial necessity of resolving the matter promptly to avoid further harm to the businesses involved — Should the court impose a strict timeline for closing? — Court imposed a firm deadline for closing and reserved jurisdiction to address alternative motions if the transaction failed to close
CanLII | Jun 18, 2021
- keywords: Contracts — Restrictive covenants — Non-competition and non-solicitation clauses — Enforceability — Whether non-competition clause was unreasonably broad and void — Whether non-solicitation clause was reasonable and enforceable — Sale of goodwill and client list — Application of severability clause to strike unreasonable provisions — Framework for assessing reasonableness of restrictive covenants in sale of business context — Test for enforceability of restrictive covenants in contracts | Obligations — Breach of contract — Restrictive covenants — Defendant alleged to have breached non-solicitation clause by contacting former clients — Use of business records belonging to plaintiffs — Whether defendant’s actions constituted material breaches of NCNSA and Agency Agreement — Evidence of solicitation and unauthorized use of client records — Test for determining breach of contractual obligations | Sale — Goodwill — Purchase of client list — Restrictive covenants tied to sale of business — Defendant sold book of business and goodwill to plaintiffs — Whether restrictive covenants were necessary to protect goodwill sold — Consideration paid for goodwill and client list — Reasonableness of restrictions in light of sale of business framework | Civil procedure — Interlocutory injunctions — Test for granting injunctions — Serious issue to be tried — Irreparable harm — Balance of convenience — Whether plaintiffs established irreparable harm from defendant’s solicitation of clients — Whether balance of convenience favoured granting injunction — Application of RJR-MacDonald test to enforce restrictive covenants
CanLII | Jun 18, 2021
- keywords: Practice — Costs — Calculation of costs — Disbursements
CanLII | Jun 17, 2021
- keywords: Contracts — Settlement agreements — Superseding prior agreements — Financial entitlements — Shareholders agreements and promissory notes — Whether the Settlement Agreement governs payouts and obligations — Settlement Agreement found to supersede prior agreements — Courts uphold settlements unless clear grounds for invalidation exist | Obligations — Contractual interpretation — Meeting of the minds — Agreement to agree — Breach or repudiation — Whether the Settlement Agreement is invalid due to lack of consensus or breach — Settlement Agreement deemed binding and enforceable — Subjective intentions irrelevant to contract formation | Obligations — Interest claims — Zoning expenses — Settlement payments — Whether interest is payable on zoning expenses and settlement amounts — Interest limited to zoning expenses advanced on behalf of other parties — No interest on $6.5 million settlement amount under the Settlement Agreement | Property — Mortgages — Validity of registered mortgage — Acknowledgment of debt — Whether a mortgage on 114 Maurice Dr. is valid despite challenges — Mortgage upheld based on prior settlement and acknowledgment of debt — Settlement supersedes obligation to prove mortgage advances | Property — Condominium units — Transfer of parking and storage units — Shareholders agreement — Condominium declaration — Whether transfer of units should be set aside — Relief denied due to procedural deficiencies — Applicants may pursue claims in a properly constituted proceeding
CanLII | Jun 16, 2021
- keywords: Civil procedure — Certificate of Pending Litigation (CPL) — Motion for CPL dismissed — Plaintiffs sought CPL over Scarborough property based on alleged constructive trust — Did the plaintiffs meet the test for issuing a CPL? — Test requires triable issue regarding interest in land, irreparable harm, and balance of convenience — Motion dismissed as plaintiffs failed to meet all three criteria | Property — Interest in land — Constructive trust — Plaintiffs claimed interest in Scarborough property based on funds advanced for another project — No evidence funds were used for Scarborough property — Did the plaintiffs establish a triable issue regarding an interest in land? — Evidence insufficient to establish a triable issue for constructive trust claim | Evidence — Constructive trust — Triable issue — Plaintiffs alleged funds advanced were diverted to Scarborough property — Evidence showed no connection between funds and property — Did the evidence support a triable issue for constructive trust? — Court found evidence speculative and insufficient to meet the threshold | Torts — Remedies — Adequacy of damages — Plaintiffs argued damages were inadequate and sought CPL to protect interests — Advances made on unsecured basis with no evidence of inability to satisfy future judgment — Are damages an adequate remedy? — Court held damages were adequate and CPL unnecessary | Torts — Balance of convenience — Plaintiffs sought CPL to prevent harm to their interests — CPL would disrupt defendants’ redevelopment efforts — Does the balance of convenience favour issuing a CPL? — Court found balance of convenience favoured maintaining the status quo
CanLII | Jun 9, 2021
- keywords: Torts — Knowing assistance — Breach of fiduciary duty — Ponzi scheme — Offshore banking — Correspondent banking — Did the defendant bank knowingly assist in the perpetrator’s breach of fiduciary duty? — Actual knowledge, recklessness, or wilful blindness required for liability — No evidence of actual knowledge or wilful blindness — Claim dismissed | Obligations — Duty of care — Insider abuse — Correspondent banking — Offshore bank — Did the defendant bank owe a duty of care to its customer to prevent insider abuse? — No proximity or reasonable reliance established — No breach of standard of care — Claim dismissed | Civil procedure — Limitations — Discoverability — Liquidators’ knowledge — Was the claim against the defendant bank barred by the limitation period? — Claim not discoverable before August 22, 2009 — Action commenced within limitation period — Defence dismissed | Torts — Ex turpi causa — Corporate attribution — Fraudulent scheme — Should the claim be barred by the doctrine of ex turpi causa? — Fraud not attributable to the corporation — Doctrine not applied to bar recovery for creditors — Defence dismissed | Torts — Damages — Ponzi scheme — Liquidation deficit — Deepening insolvency — If liability had been established, what damages would be appropriate? — Damages calculated based on liquidation deficit — Expert evidence preferred — Restitution damages rejected
CanLII | Jun 8, 2021
- keywords: Real property — Lis pendens — Discharge of CPL — Damages
CanLII | Jun 3, 2021
- keywords: Insurance — Mutual Insurance Company — Contract law — Interpretation — Duty of care
CanLII | Jun 3, 2021
- keywords: Receivership — Civil procedure — Documents — Disclosure — Real property
CanLII | Jun 2, 2021
- keywords: Civil procedure — Orders — Mareva injunction — Setting aside — Costs
CanLII | May 31, 2021
- keywords: Bankruptcy and insolvency — Claims process — Companies’ Creditors Arrangement Act — R.S.C. 1985, c. C-36 — Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3, s. 30(1)(i)
CanLII | May 31, 2021
- keywords: Civil procedure — Mareva injunction — Cross-examination on asset declarations — Scope of permissible examination — Plaintiffs sought directions on disputed areas of cross-examination — Defendant argued questions extended beyond permissible scope — Whether cross-examination should be limited to current assets or include former assets and transfers — Framework for determining permissible scope of cross-examination under Mareva orders | Evidence — Asset disclosure — Completeness and accuracy of sworn declarations — Plaintiffs examined defendant on former assets, transfers, and gifts — Whether questions on former assets and transactions are relevant to testing compliance with Mareva injunction — Principles governing cross-examination on asset declarations to ensure disclosure of all assets subject to freezing orders | Evidence — Gifted assets — Defendant disclosed gifting of worldwide assets to his son — Plaintiffs sought to examine whether defendant retained control or interest in gifted assets — Whether plaintiffs can request documentation and question defendant on the validity of non-arm’s length transfers — Relevance of testing control and beneficial interest in gifted assets under Mareva orders | Evidence — Document production — Plaintiffs requested production of documents related to former assets and transfers — Defendant argued requests were overly broad and unduly onerous — Whether production of documents is necessary to substantiate asset declarations and test compliance with Mareva injunction — Balancing proportionality and the purpose of asset disclosure | International law — Temporal scope of asset examination — Plaintiffs sought to examine assets dating back to January 1, 2013 — Defendant argued earlier transactions were irrelevant to current asset disclosure — Whether temporal scope of examination should extend to pre-2017 transactions — Relevance of earlier transactions to testing completeness of asset declarations under Mareva orders
CanLII | May 28, 2021
- keywords: Business associations — Oppression remedy — Shareholder rights — Plaintiff alleged breach of duty of good faith and oppressive conduct by corporate officers and directors — Plaintiff claimed it was entitled to publicly traded shares but received private shares — Whether the plaintiff’s claim disclosed a reasonable cause of action — Oppression remedy designed to address corporate technicalities defeating shareholder expectations — Ontario Business Corporations Act, s. 248 | Civil procedure — Motion to strike — Statement of claim — Defendants sought to strike the claim for failing to disclose a reasonable cause of action — Court applied the “plain and obvious” test — Whether the claim contained sufficient material facts to support the allegations — Motion to strike dismissed as the claim was not frivolous or vexatious — Rules of Civil Procedure, R.R.O. 1990, Reg. 194, Rule 21.01(1)(b) | Securities — Oppression remedy — Pre-shareholder conduct — Plaintiff alleged oppression based on conduct occurring before it became a shareholder — Court held plaintiff was a beneficial shareholder with standing to bring the claim — Reasonable expectations tied to legal or equitable rights as a security holder — Oppression remedy not limited by corporate technicalities — Ontario Business Corporations Act, s. 248 | Securities — Personal liability of directors and officers — Oppression remedy — Plaintiff alleged directors and officers personally benefited from oppressive conduct — Court considered whether personal liability was “fit in all the circumstances” — Allegations of personal benefit and breach of duty of good faith sufficient to proceed to trial — Personal liability not limited to common law principles — Wilson v. Alharayeri, 2017 SCC 39 | Civil procedure — Consolidation of actions — Plaintiff sought to consolidate this action with a related action against corporate defendants — Court found common questions of fact and law between the actions — Consolidation would avoid multiplicity of proceedings and inconsistent findings — Motion to consolidate granted — Rules of Civil Procedure, R.R.O. 1990, Reg. 194, Rule 6.01
CanLII | May 28, 2021
- keywords: Bankruptcy and insolvency — Distribution or dividend — Distribution
CanLII | May 27, 2021
- keywords: Practice — Stay of proceedings — Real property — Condominiums
CanLII | May 27, 2021
- keywords: Torts — Negligence — Duty of care — Employment relationships — Plaintiffs alleged Durham College owed a duty to supervise their employment with DCSI — Whether sufficient proximity existed between Durham College and Plaintiffs to establish a duty of care — Statutory obligations under the Ontario Colleges of Applied Arts and Technology Act, 2002 precluded such a duty — No genuine issue requiring a trial — Test for duty of care under Odhavji Estate v. Woodhouse applied | Obligations — Negligent misrepresentation — Relationship between Durham College and DCSI — Plaintiffs alleged Durham College misrepresented its role in supervising DCSI — No evidence of untrue, inaccurate, or misleading statements by Durham College — Plaintiffs failed to establish reasonable reliance or damages caused by alleged misrepresentation — Test for negligent misrepresentation under Soboczynski v. Beauchamp applied | Torts — Intentional infliction of mental distress — Flagrant or outrageous conduct — Plaintiffs alleged Durham College caused psychological harm — No evidence of flagrant or outrageous conduct by Durham College — Plaintiffs failed to establish visible and provable illness — Test for intentional infliction of mental distress under Prinzo v. Baycrest Centre for Geriatric Care applied | Rights and freedoms — Discrimination — Claims against Durham College — Plaintiffs alleged discrimination in their termination by DCSI — No allegations of discrimination pleaded against Durham College — No independent tort of discrimination at common law — Bhadauria v. Seneca College of Applied Arts & Technology applied
CanLII | May 26, 2021
- keywords: Civil procedure — Pleadings — Leave to amend — Rule 26.01 — Plaintiffs sought leave to amend pleadings in two related actions concerning family trusts and business management — Defendants opposed amendments on grounds of prejudice, settlement privilege, and improper content — Should leave to amend be granted under Rule 26.01? — Court shall grant leave unless prejudice cannot be compensated by costs or adjournment — Rules of Civil Procedure, R.R.O. 1990, Reg. 194, r. 26.01 | Estates and trusts — Settlement privilege — Family trusts — May 2020 Agreement — Plaintiffs sought to reference the May 2020 Agreement in amended pleadings — Defendants claimed settlement privilege — Did the May 2020 Agreement meet the criteria for settlement privilege, and if so, was privilege waived or should an exception apply? — Settlement privilege requires intent for confidentiality — Exceptions apply when justice outweighs privilege | Civil procedure — Admissions — Withdrawal of admissions — Plaintiffs proposed amendments that allegedly withdrew admissions regarding family trust beneficiaries and trustee roles — Defendants argued leave was required under Rule 51.05 — Do the proposed amendments withdraw admissions, and should leave be granted? — Admissions must be deliberate and unambiguous concessions — Rule 51.05 does not apply to non-admissions | Civil procedure — Scandalous or vexatious pleadings — Abuse of process — Defendants objected to certain proposed amendments as inflammatory and improper — Allegations included personal attacks and irrelevant details — Should the amendments be disallowed as scandalous or vexatious? — Pleadings must not offend the Rules but are given latitude unless clearly improper — High threshold for striking pleadings | Civil procedure — Interlocutory relief — Case management directions — Selena’s proposed amendments included requests for interlocutory relief despite prior directions against such motions — Should these amendments be disallowed? — Requests for interlocutory relief may proceed subject to case management judge’s directions
CanLII | May 26, 2021
- keywords: Contracts — Personal guarantees — Material changes — Enforcement of personal guarantees executed by directors of a debtor company — Respondent argued liability should be limited due to material changes in indebtedness and lack of independent legal advice — Whether the guarantee terms allowed for changes in obligations without releasing the guarantor — Guarantee upheld as continuing and unconditional — Governing rule: Clear contractual language prevails over claims of material change or unconscionability | Bankruptcy and insolvency — Receivership — Fraudulent activities — Indebtedness of debtor company under receivership — Applicant sought enforcement of guarantees against directors of the debtor company — Whether the respondent’s liability was affected by the company’s insolvency or fraudulent activities — Guarantee enforceable despite insolvency proceedings — Governing rule: Guarantees remain enforceable unless explicitly waived or discharged | Obligations — Waiver and estoppel — Release of guarantees — Respondent claimed release from guarantee based on applicant’s conduct during credit restructuring negotiations — Whether applicant’s words or actions constituted a waiver or estoppel — No express written waiver or binding agreement to release the guarantee — Governing rule: Waiver of obligations under a guarantee must be expressly made in writing | Contracts — Unopposed liability — Respondent did not oppose motion to enforce personal guarantee — Whether judgment should issue on an unopposed basis — Guarantee enforceable as respondent did not deny liability or file responding materials — Governing rule: Unopposed motions for enforcement of guarantees are granted where liability is not contested
CanLII | May 26, 2021
- keywords: Bankruptcy and insolvency — Receivers — Courts of Justice Act, s. 10 — Bankruptcy and Insolvency Act, s. 243(1)
CanLII | May 25, 2021
- keywords: Contracts — Indemnity clauses — Legal defence costs — Underwriting agreements — Shareholder actions — Does the indemnity clause in the underwriting agreement require the issuer to pay the underwriters’ legal defence costs for claims alleging intentional wrongdoing, such as market manipulation? — Indemnity applies unless and until a final judgment excludes coverage under the agreement | Obligations — Interpretation of indemnity agreements — Exclusion clauses — Final judgment requirement — Does the exclusion clause in the indemnity agreement apply to defence costs before a final, non-appealable judgment is rendered? — Exclusion applies only after a final, non-appealable judgment determines sole negligence, willful misconduct, or fraud | Securities — Shareholder actions — Misrepresentation in prospectus — Market manipulation allegations — Underwriters’ liability under s. 130 of the Securities Act — Should indemnity agreements cover defence costs for claims arising from alleged misrepresentation in a prospectus? — Indemnity applies to all claims arising from professional services unless explicitly excluded | Insurance — Public policy — Fortuity principle — Intentional misconduct — Can public policy considerations, such as the fortuity principle, exclude indemnity for intentional misconduct claims? — No overriding public policy precludes indemnity for defence costs of unproven claims, even if intentional misconduct is alleged
CanLII | May 21, 2021
- keywords: Bankruptcy and insolvency — Bankruptcy order — Insolvency — Urbancorp Management Inc. (UMI) found insolvent with no revenue or ability to satisfy obligations — Application for Bankruptcy Order (ABO) issued under the Bankruptcy and Insolvency Act (BIA) — Should a bankruptcy order be issued against UMI? — Bankruptcy order granted — KSV Restructuring Inc. appointed as trustee — BIA, ss. 43(2), 135(2)(c), 135(4), 96, 163 | Bankruptcy and insolvency — Receivership — Competing applications — Application for appointment of receiver under BIA and Courts of Justice Act (CJA) — Should a receiver be appointed to manage UMI’s assets? — Receivership application stayed pending review of secured claim in bankruptcy proceedings — CJA, s. 101; BIA, s. 243 | Bankruptcy and insolvency — Secured claims — Validity and enforceability — Secured creditor holding General Security Agreement (GSA) — Dispute over quantum and enforceability of secured claim — What is the appropriate mechanism to assess the secured claim? — Trustee in bankruptcy to assess claim under BIA provisions — BIA, ss. 135(2)(c), 96, 163
CanLII | May 20, 2021
- keywords: Business associations — Arbitration — Jurisdiction of arbitrator — Appointment of inspector — Dispute between brothers over trucking businesses — Arbitrator appointed under Minutes of Settlement — Did the arbitrator have jurisdiction to appoint an inspector under the OBCA? — Arbitrator’s jurisdiction limited to signatories of arbitration agreement — OBCA remedies can be pursued through arbitration unless statute or public policy precludes it | Statutory interpretation — Ontario Business Corporations Act — Appointment of inspector — Arbitrator’s powers under OBCA — Whether statutory remedies can be granted by arbitrators — OBCA s. 162(1) interpreted to allow court-appointed inspectors — Arbitrator’s jurisdiction limited to parties to arbitration agreement — Court assistance required for non-signatories | Transportation — Receivership — Investigatory powers — Sale of trucking business — Whether receiver should conduct investigation into alleged misconduct — Arbitrator’s findings of lack of transparency and potential fraud — Receiver empowered to investigate transactions involving non-parties — Investigation necessary to ensure fair sale process | Civil procedure — Appointment of receiver — Conflict of interest — Selection of receiver for trucking business — Competing proposals for receiver appointment — Court-appointed KSV as receiver due to potential conflict with respondent’s proposed receiver — Receiver’s role includes sale and investigation of business operations
CanLII | May 19, 2021
- keywords: Contract law — Interpretation — Real property — Commercial mortgages — Settlements
CanLII | May 18, 2021
- keywords: Insurance — Duty to defend — Contractual Interpretation — Coverage — Exclusions — Credit Unions and Populaire Act
CanLII | May 18, 2021
- keywords: Construction — COVID-19 pandemic — Emergency under Project Agreement — Substantial Completion Date — Variation Procedure — Whether the pandemic constitutes an "Emergency" under the Project Agreement — Broad definition of Emergency includes health and safety hazards — Contractual mechanism for extending Substantial Completion Date triggered by Emergency | Contracts — Additional or overriding procedures — COVID-19 pandemic — Respondents' obligations — Whether respondents required compliance with additional or overriding procedures under the Project Agreement — Respondents' reliance on applicants' proactive measures — Interpretation of section 62.1(c) of the Project Agreement | Contracts — Breach of contractual obligations — Variation Enquiry — Respondents' refusal to engage in Variation Procedure — Whether respondents frustrated the contractual dispute resolution process — Applicants' entitlement to invoke Variation Procedure for pandemic-related delays | Civil procedure — Stay of proceedings — Substantial Completion Date — Interim protection — Whether litigation should be stayed until after Substantial Completion — Exceptions to stay provisions in the Project Agreement — Irreparable harm to applicants if stay granted
CanLII | May 17, 2021
- keywords: Bankruptcy and insolvency — Stay of proceedings — Extension of Stay Period — Applicant sought extension of Stay Period under the Companies’ Creditors Arrangement Act (CCAA) to August 31, 2021 — Whether the Applicant acted in good faith and with due diligence — Whether extension was necessary to preserve status quo and facilitate restructuring — Section 11.02(2) of the CCAA — Court granted extension based on progress in restructuring and Monitor’s support | Bankruptcy and insolvency — Debtor-in-Possession (DIP) financing — Amendment to DIP Facility — Applicant sought approval of DIP Amendment to increase financing from $25 million to $35 million — Whether additional funding was necessary to maintain operations and fund restructuring — Section 11.2 of the CCAA — Court approved DIP Amendment, finding terms reasonable and necessary for continued operations | Bankruptcy and insolvency — Settlement agreements — Approval of LUFA Term Sheet, LUSA Term Sheet, and Huntington Transition Agreement — Applicant negotiated agreements to achieve cost reductions and financial sustainability — Whether court had jurisdiction to approve settlements under section 11.02 of the CCAA — Court approved agreements as reasonable and integral to restructuring efforts
CanLII | May 14, 2021
- keywords: Civil procedure — Adjournment requests — Certificate of Pending Litigation (CPL) motion — Defendants sought adjournment citing prejudice and procedural delays — Plaintiff opposed adjournment, citing defendants’ inaction and lack of evidence — Should the defendants’ adjournment request be granted? — Adjournment denied due to lack of merit and defendants’ failure to act diligently | Evidence — Procedural fairness — Defendants failed to file evidence supporting their motion to remove plaintiff’s counsel or opposing the CPL motion — Plaintiff’s affidavit supported allegations of partnership and interest in land — Did the defendants’ lack of evidence undermine their position? — Evidentiary burden not met by defendants | Business associations — Partnerships — Alleged breach of partnership agreement — Plaintiff claimed 50% interest in business assets and real estate acquired through partnership profits — Defendants denied allegations without substantive defense — Has the plaintiff raised a triable issue regarding partnership interests? — Triable issue found based on sworn evidence and allegations | Property — Certificates of Pending Litigation — Interest in land — Plaintiff sought CPL over properties allegedly acquired through partnership profits — Defendants argued plaintiff lacked standing to claim interest in land — Is it in the interests of justice to issue a CPL? — CPL issued to protect plaintiff’s equitable claims and prevent prejudice
CanLII | May 13, 2021
- keywords: Civil procedure — Motions — Judgments and orders
CanLII | May 10, 2021
- keywords: Bankruptcy and insolvency — Companies’ Creditors Arrangement Act — Disclaimer of agreements — Financial restructuring — University restructuring under CCAA — Termination of Federation Agreements with Federated Universities — Monitor approval of Disclaimer — DIP financing contingent on Disclaimer — Does the Disclaimer meet the requirements of s. 32 of the CCAA, including good faith and necessity for a viable restructuring? — Statutory framework governing Disclaimer of agreements under the CCAA | Statutory interpretation — Companies’ Creditors Arrangement Act — Duty of good faith — Significant financial hardship — Section 32(4) factors for Disclaimer of agreements — Monitor’s role in approving Disclaimer — Whether the Disclaimer causes significant financial hardship to the University of Sudbury — Balancing financial consequences with restructuring objectives — Interpretation of s. 32(4) of the CCAA | Constitution — French language rights — French Language Services Act — Charter of Rights and Freedoms, s. 23 — Impact of Disclaimer on French language programming and services — University of Sudbury’s transition to a francophone institution — Does the Disclaimer violate French language rights or obligations under the French Language Services Act or the Charter? — Framework for assessing language rights in restructuring proceedings
CanLII | May 7, 2021
- keywords: Bankruptcy and insolvency — Disclaimer of agreements — Companies’ Creditors Arrangement Act (CCAA) — Federation Agreement and Financial Distribution Notice — Whether the court should prohibit the disclaimer of agreements under section 32(2) of the CCAA — Balancing interests of debtor and counterparty — Factors under section 32(4) of the CCAA — Monitor’s approval and financial viability of restructuring — Governing rule: Disclaimer must be fair, reasonable, and enhance prospects of a viable compromise or arrangement | Bankruptcy and insolvency — Financial hardship — Impact of disclaimer on Thorneloe University — Whether disclaimer would cause significant financial hardship under section 32(4)(c) of the CCAA — Evidence of financial consequences — Thorneloe’s insolvency risk — Balancing financial hardship against Laurentian’s restructuring needs — Governing rule: Significant financial hardship must be proven with specific evidence | Bankruptcy and insolvency — Viability of restructuring — Laurentian University’s financial challenges — Whether disclaimer enhances prospects of a viable compromise or arrangement — Monitor’s findings on financial savings from disclaimer — Impact on Laurentian’s ability to generate positive cash flow — Governing rule: Disclaimer need not be essential but must be advantageous and beneficial to restructuring | Statutory interpretation — Good faith — Section 18.6 of the CCAA — Allegations of bad faith by Laurentian University in issuing Notice of Disclaimer — Whether Laurentian acted in bad faith by terminating agreements with Thorneloe — Monitor’s findings on good faith — Governing rule: Restructuring actions must be fair and reasonable but do not necessarily constitute bad faith | Contracts — Scope of disclaimer provisions — Federation Agreement and Financial Distribution Notice — Whether agreements fall within the scope of section 32 of the CCAA — Commercial nature of agreements — Applicability of disclaimer provisions to non-commercial relationships — Governing rule: Agreements subject to disclaimer provisions unless explicitly excluded under section 32(9) of the CCAA
CanLII | May 7, 2021
- keywords: Debtor-Creditor — Receivership — Discontinuance of execution — Powers of receiver
CanLII | May 3, 2021
- keywords: Civil procedure — Motions
CanLII | May 2, 2021
- keywords: Debtor and creditor — Companies’ Creditors Arrangement Act
CanLII | May 2, 2021
- keywords: Civil procedure — Striking pleadings — Abuse of process — Vexatious litigants — Rule 21.01(3)(d), Courts of Justice Act — R.S.O. 1990, c. C.43, s. 107 — Rule 21.01(1)(b), Rules of Civil Procedure — R.R.O. 1990, Reg. 194, Rule 21.01(3)(d)
CanLII | Apr 30, 2021
- keywords: Estates and trusts — Dependant’s support — Jurisdiction of the court — Former spouse of deceased seeking support from the Estate under the Succession Law Reform Act (SLRA) — Divorce Judgment and Minutes of Settlement releasing support claims — Whether the court’s jurisdiction under the SLRA is ousted by prior agreements — SLRA, s. 58(1), s. 63(4) — Court retains jurisdiction to ensure adequate support for dependants despite agreements to the contrary | Family — Dependant’s support — Adequacy of provision — Former spouse of deceased claiming support from the Estate — Applicant’s modest income and depleted savings — Deceased’s significant estate assets — Whether the deceased made adequate provision for the Applicant — Factors under SLRA, s. 62(1) — Court orders $3,400 monthly support to meet Applicant’s needs and uphold deceased’s moral and legal obligations | Civil procedure — Costs — Full indemnity costs — Applicant seeking full indemnity costs from the Estate — Respondent disputing excessive legal fees — Whether full indemnity costs are appropriate — Court awards $30,000 in costs to Applicant, balancing fairness and reasonableness
CanLII | Apr 27, 2021
- keywords: Business associations — Fraudulent misrepresentation — Settlement agreements — Shareholder disputes — Landscaping business co-owned by plaintiff and defendant — Allegations of fraudulent inflation of business revenue by defendant — Does fraudulent misrepresentation vitiate a prior settlement agreement? — Fraudulent conduct by a fiduciary can vitiate a settlement agreement if it induced the agreement | Civil procedure — Abuse of process — Motion to strike — Defendants sought to strike the statement of claim as frivolous, vexatious, and an abuse of process — Whether the claim was barred by a prior settlement agreement — Should the motion to strike be granted? — Competing case law on the scope of releases in settlement agreements | Contracts — Settlement agreements — Fraudulent inducement — Plaintiffs alleged that the settlement agreement was induced by fraud — Whether the release in the settlement agreement covered claims unknown to the parties at the time — General words in a release are limited to matters contemplated by the parties at the time of execution | Business associations — Interlocutory injunctions — Shareholder disputes — Plaintiffs sought an injunction to restrain enforcement of a settlement agreement — Test for interlocutory injunctions — Serious issue to be tried, irreparable harm, and balance of convenience — Injunction granted to prevent irreparable harm to the business and maintain the status quo
CanLII | Apr 26, 2021
- keywords: Contract law — Interpretation — Jurisdiction — Federal — Judicial review — Courts of Justice Act — R.S.O. 1990, c. C.43
CanLII | Apr 23, 2021
- keywords: Bankruptcy and insolvency — Companies’ Creditors Arrangement Act (CCAA) — Timetable for motions — Federated Universities — Impact of CCAA proceedings on Federated Universities — DIP Loan maturity and stay of proceedings — Should the court adopt Laurentian University’s proposed timetable for motions opposing disclaimers? — Timetable reducing risks and uncertainty preferred — Companies’ Creditors Arrangement Act, R.S.C. 1985, c. C-36 | Civil procedure — Case management — Scheduling of motions — Timetable proposed by Laurentian University versus Thorneloe University and University of Sudbury — Should the court adopt a timetable that aligns with the stay of proceedings and DIP Loan maturity? — Timetable ensuring cross-examinations and facta delivery before hearing date preferred | Statutory interpretation — Companies’ Creditors Arrangement Act (CCAA) — Interpretation of provisions regarding restructuring timelines — Should the court prioritize timeliness to reduce risks and uncertainty in CCAA proceedings? — Interpretation emphasizing the importance of adhering to restructuring deadlines under the CCAA
CanLII | Apr 21, 2021
- keywords: Commercial law — Practice — Class actions
CanLII | Apr 20, 2021
- keywords: Business associations — Derivative actions — Leave to bring action — Applicants sought leave under section 246 of the Business Corporations Act to bring a derivative action on behalf of Blue Health Services against its landlord for wrongful lease termination — Whether statutory requirements for leave were met, including good faith and best interests of the corporation — Liberal interpretation of remedial provisions — Business Corporations Act, R.S.O. 1990, c. B.16, s. 246 | Statutory interpretation — Business Corporations Act — Derivative actions — Interpretation of section 246(1) and (3) regarding notice to directors and interim orders — Whether notice to directors was unnecessary due to the circumstances and shareholder agreement requiring unanimous board decisions — Court’s discretion to waive notice under section 246(3) — Business Corporations Act, R.S.O. 1990, c. B.16 | Lease — Commercial tenancy — Moratorium on evictions — Termination of lease and lockout during non-enforcement period under the Commercial Tenancies Act and Ontario Regulation 763/20 — Whether landlord breached moratorium provisions by terminating lease despite tenant’s receipt of Canada Emergency Rent Subsidy (CERS) — Commercial Tenancies Act, R.S.O. 1990, c. L.7, ss. 79–87 | Evidence — Good faith — Allegations of misconduct — Respondents alleged misconduct by the applicant director to challenge good faith in seeking leave for derivative action — Court found allegations unrelated to the application and insufficient to establish lack of good faith — Liberal interpretation of good faith requirement under section 246 of the Business Corporations Act | Civil procedure — Interim orders — Waiver of notice — Applicants sought interim relief under section 246(4) of the Business Corporations Act to restore access to leased premises — Court applied interlocutory injunction test, requiring strong prima facie case, irreparable harm, and balance of convenience — Mandatory injunction granted to restore status quo — Business Corporations Act, R.S.O. 1990, c. B.16, s. 246(4)
CanLII | Apr 16, 2021
- keywords: Commerce and industry — Breach of contract — Data sharing — Proprietary data — Financial technology services — Respondents’ unauthorized data sharing within corporate group — Application for damages — Did the respondents breach agreements limiting data usage to specific named entities? — Determination of breach based on language, factual matrix, and parties’ conduct — Contracts that limit usage of proprietary data promote a commercially sensible result | Contracts — Interpretation — Language and factual matrix — Vendor and client agreements — Line of business agreements vs. enterprise agreements — Use restricted to specific contracting parties — Whether agreements permitted broader sharing across corporate family — Were the Data Services Agreements ambiguous? — Principles of contract interpretation based on Sattva Capital Corp | Civil procedure — Waiver — Estoppel — Limitation periods — Delay in pursuing claims — Whether SS&C waived or was estopped from asserting breach of contract — Limitations Act requiring plaintiff’s timely knowledge of breaches — Restrictions on knowledge imputation to lower-level representatives — Principles for establishing waiver or estoppel | Evidence — Document preservation — Spoliation — Adverse inferences — Respondents’ failure to retain records on data use and distribution — Extent of usage by corporate affiliates disputed — Whether adverse inferences should be drawn due to document spoliation — Spoliation’s impact on damages quantification and burden shift | Commerce and industry — Damages calculation — Data license fees — Industry practices — Effect of contractual breach on damages assessment — Difficulties with record evidence for complex damages issues — Adjudication of damages deferred to trial of an issue — Methods for damages calculation, including percentage of assets under administration
CanLII | Apr 14, 2021
- keywords: Commercial law — Corporations — Arrangements and compromises — Approval — Consent
CanLII | Apr 13, 2021
- keywords: Construction — Surety bonds — Fraud and collusion — Rescission of Performance Bond and Payment Bond — Zurich Insurance Company Ltd. alleged fraud in procurement process involving St. Michael’s Hospital project — Whether rescission is available as a remedy — Equitable remedies and fraud in public-private partnership projects — Rescission as a remedy must be determined on a full factual record | Contracts — Fraudulent misrepresentation — Rescission of surety bonds — Zurich Insurance Company Ltd. alleged fraudulent misrepresentations by Bondfield Construction Company Limited and others — Whether fraudulent misrepresentation entitles Zurich to rescind the Bonds ab initio — Fraud as a basis for rescission of contracts — Equitable principles governing rescission | Insurance — Innocent third parties — Rights of Bank of Montreal and Trades under surety bonds — Whether rights of innocent third parties preclude rescission of Bonds — Derivative rights of beneficiaries under express trust created by Payment Bond — Balancing equitable remedies with third-party rights | Statutory interpretation — Construction Act — Section 85(1) — Statutory rights of Trades under Labour and Material Payment Bond — Whether rescission of Payment Bond renders statutory rights unavailable — Interpretation of “in effect” under the Construction Act — Interaction between statutory rights and equitable remedies | Civil procedure — Abuse of process — Applications to determine availability of rescission — Zurich Insurance Company Ltd. argued Applications circumvented proper trial process — Whether Applications were procedurally improper — Case management judge’s endorsement of Applications as efficient procedure — Rule 14 of the Rules of Civil Procedure
CanLII | Apr 8, 2021
- keywords: Fraud — Directors — Duties — Standard of care
CanLII | Apr 8, 2021
- keywords: Property — Mortgage enforcement — Power of sale — Possession of property — Mortgagee seeking possession of mortgaged property after default — Mortgagor opposing possession, alleging oppressive conduct and financial hardship — Should the mortgagee be granted possession of the property? — Test for granting possession under power of sale — No evidence of extreme or unusual circumstances to interfere with mortgagee’s rights | Sale — Injunctive relief — Restraining enforcement of mortgage — Mortgagor seeking injunction to prevent mortgagee from enforcing power of sale — Allegations of oppression and bad faith by mortgagee — Did the mortgagor meet the test for injunctive relief? — Application of RJR-MacDonald test and higher prima facie standard — Injunction denied due to lack of evidence of irreparable harm or balance of convenience | Business associations — Oppression remedy — Interim funding — Minority shareholder alleging oppressive conduct by corporate defendants — Request for interim funding to pursue oppression claim under Ontario Business Corporations Act, s. 249(4) — Did the plaintiffs meet the test for interim funding? — Financial difficulty pre-dating alleged oppression — No strong prima facie case established — Motion for interim funding dismissed | Civil procedure — Costs — Costs of motions — Successful party entitled to costs on partial indemnity basis — Determination of reasonable costs under Rule 57.01 of the Rules of Civil Procedure — Costs fixed at $35,000 for both motions, payable by the unsuccessful parties
CanLII | Mar 29, 2021
- keywords: Costs — Offers to settle — Rule 49.10
CanLII | Mar 26, 2021
- keywords: Civil procedure — Stay of proceedings — Abuse of process — Failure to disclose settlement agreements — Plaintiffs entered into settlement agreements with co-defendants but failed to disclose them to Elko Industrial Trading Corp. for over four years — Should the action against Elko be permanently stayed? — Obligation to disclose agreements altering adversarial relationships immediately — Handley Estate v. DTE Industries Limited principles applied | Civil procedure — Costs — Partial indemnity versus substantial indemnity — Elko sought substantial indemnity costs for the stay motion, summary judgment motion, and the action — Plaintiffs argued for partial indemnity costs — What is the appropriate scale and quantum of costs? — Costs awarded on a partial indemnity scale, with reductions for proportionality and fairness | Evidence — Summary judgment — Knowing receipt and knowing assistance — Plaintiffs alleged Elko participated in a scheme to divert business from IWS to WIS — Insufficient evidence of Elko’s actual or inferred knowledge of the scheme — Should summary judgment be granted in favour of Elko? — Test for summary judgment under Rule 20 of the Rules of Civil Procedure applied | Evidence — Summary judgment — Plaintiffs’ motion for summary judgment — Knowing receipt and knowing assistance — Plaintiffs alleged Elko knowingly participated in a scheme to undermine a judgment — Evidence failed to establish Elko’s requisite knowledge or participation — Should the plaintiffs’ motion for summary judgment be granted? — Test for knowing receipt and knowing assistance applied
CanLII | Mar 23, 2021
- keywords: Torts — Misfeasance in public office — Elements of the tort — Plaintiff alleged Crown representatives acted unlawfully and in bad faith to exclude it from a public project — Does the Second Amended Claim disclose a reasonable cause of action for misfeasance in public office? — Public officials must act only for the public good and not for improper purposes — Claim struck as it disclosed no reasonable cause of action | Civil procedure — Striking pleadings — Leave to amend — Plaintiff’s Second Amended Claim against the Crown struck without leave to amend — Whether the plaintiff had sufficient opportunity to plead material facts supporting the claim — Court held that further amendments would be futile | Statutory interpretation — Crown Liability and Proceedings Act, 2019 — Leave to proceed — Whether the plaintiff required leave to proceed with a misfeasance claim under the CLPA — Interpretation of “brought” versus “commenced” in the CLPA — Court held leave was required for claims added after the CLPA came into force | Civil procedure — Res judicata — Abuse of process — Whether the Second Amended Claim was barred as res judicata or an abuse of process — Court declined to decide the issue given the claim was struck for disclosing no reasonable cause of action
CanLII | Mar 22, 2021
- keywords: Bankruptcy and insolvency — Transfers at undervalue — False invoicing schemes — Fund cycling scheme — Joint and several liability — Were the transfers made by BCCL and Forma-Con during the statutory review periods transfers at undervalue under section 96 of the BIA? — Section 96 of the BIA governs transfers at undervalue made with intent to defraud, defeat, or delay creditors | Construction — False invoicing schemes — Payments to non-arm’s length suppliers — Were the payments made by BCCL and Forma-Con to suppliers under false invoicing schemes transfers at undervalue? — Payments made without consideration to non-arm’s length suppliers constitute transfers at undervalue under section 96 of the BIA | Statutory interpretation — Intent to defraud creditors — Badges of fraud — Can fraudulent intent be inferred from circumstantial evidence such as badges of fraud? — Fraudulent intent under section 96 of the BIA can be inferred from badges of fraud, including secretive transactions and inadequate consideration | Evidence — Corporate attribution — Directing mind — Can the intent of a directing mind be attributed to a corporation under section 96 of the BIA? — The intent of a directing mind, such as John Aquino, can be attributed to a corporation for the purposes of section 96 of the BIA | Evidence — Transactions outside review period — Relevance to damages — Can transactions outside the statutory review period be considered to assess damages for transfers within the review period? — Transactions outside the statutory review period cannot be used to establish damages for transfers within the review period under section 96 of the BIA
CanLII | Mar 19, 2021
- keywords: Business associations — Partnerships — Disqualification of partner — Plaintiffs alleged improper disqualification of a partner and sought injunctive relief to prevent further actions by defendants — Whether the plaintiffs demonstrated a strong prima facie case of oppression or breach of partnership rights — Test for interlocutory injunctions requiring a strong prima facie case for mandatory orders — RJR-MacDonald test applied | Civil procedure — Injunctions — Interim and interlocutory relief — Plaintiffs sought to prevent defendants from transferring or encumbering partnership property without consent or court order — Whether the relief sought was prohibitive or mandatory in substance — Test for mandatory interlocutory injunctions requiring a strong prima facie case — RJR-MacDonald and CBC principles applied | Contracts — Oral agreements — Validity and enforceability — Plaintiffs alleged existence of a "Car Wash Agreement" contradicting written lease terms — Whether oral agreement was enforceable despite entire agreement clauses and parol evidence rule — Allegations of illegality in misrepresenting lease terms to lenders — Test for enforceability of oral agreements conflicting with written contracts | Contracts — Cash calls — Validity and enforceability — Plaintiffs challenged cash call used to repay related party loans — Allegations of lack of disclosure and improper approval by interested directors — Application of Ontario Business Corporations Act, s. 132 — Whether plaintiffs demonstrated a strong prima facie case of invalidity | Property — Oppression — Disqualification of partner — Plaintiffs alleged oppressive conduct in disqualifying a partner and transferring partnership property — Whether actions breached partnership agreement or fiduciary duties — Connection between validity of cash call and disqualification — Test for oppression claims in partnership disputes
CanLII | Mar 17, 2021
- keywords: Pensions and benefits — Transfer of pension plan — Compulmate transfers — Creditors and debtors — Ontario Pension Benefits Act
CanLII | Mar 17, 2021
- keywords: Civil procedure — Anti-suit injunctions — Forum non conveniens — Plaintiffs sought to enjoin proceedings in Singapore and Dubai, arguing Ontario was the natural forum — Defendants argued foreign jurisdictions were more appropriate — Should the anti-suit injunction be granted? — Test from Amchem Products Inc. v. British Columbia (Workers’ Compensation Board) applied — Anti-suit injunction denied; Ontario action stayed | International law — Forum non conveniens — Jurisdiction — Plaintiffs argued Ontario was the natural forum for resolving disputes under guarantees — Defendants argued foreign jurisdictions were more appropriate based on residency, location of witnesses, and governing laws — Should the Ontario action be stayed? — Principles of forum non conveniens applied — Ontario action permanently stayed | Contracts — Forum selection clauses — Enforceability — Guarantees and collateral agreements contained forum selection clauses allowing litigation in multiple jurisdictions — Are the forum selection clauses valid and enforceable? — Sophisticated parties deemed to have accepted risks of foreign legal systems — Forum selection clauses upheld | International law — Anti-suit injunctions — Failure to pursue stays in foreign jurisdictions — Plaintiffs did not pursue stays in Singapore or Dubai, arguing such motions would fail — Does failure to pursue stays affect the anti-suit injunction application? — Court found pursuing stays essential to meet the Amchem test — Anti-suit injunction denied
CanLII | Mar 17, 2021
- keywords: Insurance — Optional Extension Period (OEP) — Contractual interpretation — Excess insurance policy — Whether the applicant/insured had a contractual right to exercise the OEP option under the Excess Policy — Incorporation of terms from the Primary Policy into the Excess Policy — Governing rule: Terms of the Primary Policy incorporated into the Excess Policy unless explicitly excluded | Insurance — Optional Extension Period (OEP) — Exercise of option — Notice and payment requirements — Whether the applicant/insured successfully exercised the OEP option — Calculation of premium based on Primary Policy terms — Governing rule: Compliance with notice and payment requirements deemed commercially reasonable | Insurance — Duty of good faith — Insurer’s refusal to engage — Whether the respondent/insurer breached its duty of good faith by refusing to negotiate or provide clarity on the OEP option — Governing rule: Insurers must act in good faith and consider the insured’s legitimate contractual interests
CanLII | Mar 16, 2021
- keywords: Remedies — Oppression remedy — Business Corporations Act
CanLII | Mar 15, 2021
- keywords: Civil procedure — Mareva injunctions — Norwich Orders — Ex parte motions — Duty of full and frank disclosure — Defendants alleged non-disclosure of material facts, including political context and alternative explanations for actions — Should the Mareva and Norwich Orders be set aside? — Test for materiality of non-disclosure and balancing of competing interests in ex parte relief | Evidence — Material non-disclosure — Ex parte motions — Plaintiffs alleged to have failed to disclose political motivations and alternative explanations for Defendant’s actions — Whether non-disclosure of Interpol decision, U.S. litigation, and political context was material — Governing principles for full and frank disclosure in ex parte proceedings | Business associations — Receivership Orders — Corporate shares — Transfer of shares — Whether Receivership Order over CGI shares should be set aside due to alleged sham transfer to a numbered company — Analysis of share transactions and tracing of misappropriated funds | International law — Deemed undertaking rule — Norwich Orders — Enforcement in foreign jurisdictions — Whether deemed undertaking rule should apply to documents obtained through Norwich Orders for use in foreign jurisdictions — Exception granted for tracing and enforcement purposes | Property — Certificates of Pending Litigation (CPL) — Fraud allegations — Whether CPL registered against Bridle Path property should remain in place — Analysis of evidence linking property acquisition to alleged misappropriated funds
CanLII | Mar 11, 2021
- keywords: Bankruptcy and insolvency — CCAA protection — Initial order — Liquidity crisis — Applicant sought 10-day stay of proceedings under the CCAA due to financial distress caused by unprecedented regulatory fees — Should the applicant be granted CCAA protection for 10 days? — CCAA protection granted to avoid liquidation and provide breathing space for restructuring — Companies’ Creditors Arrangement Act, R.S.C. 1985, c. C-36 | Bankruptcy and insolvency — DIP financing — Approval of $125 million DIP loan — Applicant required substantial financing to meet immediate obligations and avoid regulatory penalties — Should the court approve the DIP financing for the initial 10-day period? — DIP financing approved as necessary to maintain operations and preserve value for stakeholders — Companies’ Creditors Arrangement Act, s. 11.2 | International law — Regulatory stays — Foreign regulators — Applicant sought stay of regulatory actions by Canadian and U.S. regulators to prevent license suspensions — Should regulatory actions by foreign regulators be stayed? — Stay granted for Canadian regulators; U.S. regulators subject to Chapter 15 proceedings — Companies’ Creditors Arrangement Act, s. 11.1 | Bankruptcy and insolvency — Supplier charges — Pre-filing payments — Applicant sought authorization for supplier charges and pre-filing payments to ensure continued operations — Should supplier charges and pre-filing payments be authorized? — Charges and payments authorized to maintain critical supply and services — Companies’ Creditors Arrangement Act, s. 11 | Civil procedure — Sealing order — Confidential documents — Applicant sought sealing order for sensitive financial and personal information — Should a sealing order be granted? — Sealing order granted to protect commercially sensitive and personal information — Sierra Club of Canada v. Canada (Minister of Finance), 2002 SCC 41
CanLII | Mar 9, 2021
- keywords: Intellectual property — Copyright infringement — Contempt of court — Defendants found in contempt for continuing to operate ShavaTV service and sell infringing set-top boxes after court order — Did the defendants act in contempt of the Ontario court order? — Test for civil contempt requires clear order, knowledge of the order, and intentional prohibited acts — Defendants’ conduct found to intentionally violate the court order | Intellectual property — Piracy — Enforcement of foreign judgments — Defendants continued to pirate plaintiffs’ television channels and sell subscriptions despite U.S. and Canadian court orders — Did the defendants intentionally continue infringing activities? — Evidence demonstrated ongoing sales and operations under different names — Defendants’ actions constituted intentional breaches of court orders | Evidence — Credibility of alleged business transfer — Defendants claimed to have transferred ShavaTV business to a third party, Rizwan Ahmed Shams — No documentary evidence provided to support the transfer — Was the alleged transfer credible? — Court found the transfer unsubstantiated and inconsistent with the facts — Self-serving affidavits without supporting evidence do not create reasonable doubt | Civil procedure — Jurisdiction — Extraterritorial enforcement — Defendant Naeem Butt resided in Germany but continued to operate ShavaTV and sell infringing products to Ontario customers — Does the Ontario court have jurisdiction over Naeem Butt for contempt? — Court held there was a real and substantial connection to Ontario — Internet-based copyright violations require flexible territorial jurisdiction principles
CanLII | Mar 3, 2021
- keywords: Contracts — Payment rights under financial advisory contracts — Independence Fee payable for successful defence of a hostile takeover bid — Scotia Capital sought payment of $1.5M under Engagement Letter — Was Scotia Capital entitled to the fee despite Aphria’s accusations of lack of causality and contract repudiation? — Clauses requiring payment based on defined conditions upheld as commercially reasonable | Torts — Defamation — Publication of a Director’s Comment — Aphria Inc. alleged defamation through publication announcing suspension of research coverage along with another entity involved in regulatory issues — Did the publication lower Aphria Inc.’s reputation in the investment community? — Evidence of economic loss or legal innuendo absent, claim dismissed | Securities — Analyst research practices — Ethical concerns in analyst coverage — Scotia Capital suspended research coverage citing “reallocation of resources” — Allegations that suspension was linked to a fee dispute and negatively impacted share price reputation — Is analyst coverage suspension justified under securities compliance policies? — Independent decision-making by Research Department upheld
CanLII | Mar 3, 2021
- keywords: Contract law — Commercial injunctions — Interim injunctions — Balance of convenience
CanLII | Feb 26, 2021
- keywords: Civil procedure — Documentary discovery — Sealing orders — Discretion — Rules of Civil Procedure, R.R.O. 1990, Reg. 194, Rule LU
CanLII | Feb 26, 2021
- keywords: Lease — Arbitration — Jurisdiction — Ground lease — Rental re-set — Legal encumbrances — Rental Replacement Unit (RRU) policy — Did the arbitrator exceed his jurisdiction by failing to consider legal encumbrances, including the RRU policy, in determining the fair market value of the property? — Arbitrator acted within jurisdiction by considering legal encumbrances but finding they did not preclude condominium redevelopment | Property — Valuation — Legal encumbrances — Fair market value — Ground lease interpretation — Whether legal encumbrances, such as the RRU policy, must be considered in determining land value — Arbitrator applied interpretive principles from prior decisions and found no legal encumbrance precluding redevelopment — Legal encumbrances must be considered unless expressly excluded by contract | Civil procedure — Standard of review — Arbitration — Jurisdictional review — Correctness versus reasonableness — What is the appropriate standard of review for a court reviewing an arbitrator’s decision on jurisdiction under the Arbitration Act, 1991? — Correctness standard applied to jurisdictional review, but arbitrator’s decision upheld as correct | Lease — Costs — Arbitration — Cost award — Jurisdiction — Was the arbitrator’s cost award unreasonable or beyond jurisdiction? — Arbitrator had jurisdiction to make the cost award, and the award was based on the facts of the case — Dissatisfaction with the result does not establish jurisdictional error
CanLII | Feb 18, 2021
- keywords: Debtor-Creditor — Receivership — Exigible assets — Limitation periods — Real Property Limitations Act, ss. 1(1), 4(1), 23(1), 34(1),(3), Personal Property Security Act — R.S.O. 1990, c. P.10
CanLII | Feb 17, 2021
- keywords: Bankruptcy and insolvency — Stay of proceedings — Restructuring under the Companies’ Creditors Arrangement Act (CCAA) — Applicant sought extension of stay to April 30, 2021 — Monitor supported extension to facilitate mediation and restructuring — Should the stay of proceedings be extended? — Section 11.02(2) of the CCAA governs extensions of stay periods where the applicant acts in good faith and with due diligence | Bankruptcy and insolvency — Debtor-in-possession financing — DIP Lender’s Charge — Applicant sought approval of $25 million DIP Facility and associated charge — Monitor supported DIP financing as necessary to maintain operations — Should the DIP financing and charge be approved? — Section 11.2 of the CCAA governs approval of DIP financing and priority charges | Bankruptcy and insolvency — Super priority charges — Administration Charge and Directors’ Charge — Applicant sought increases to Administration Charge ($1.25 million) and Directors’ Charge ($5 million) — Monitor supported increases as reasonable and necessary — Are the proposed increases to the charges appropriate? — Sections 11.5 and 11.51 of the CCAA govern the granting of super priority charges | Bankruptcy and insolvency — Pension plans — Liquidity crisis — Applicant sought stay of special payments to defined benefit pension plan — Monitor supported stay to address liquidity constraints — Should the stay of special payments to the pension plan be granted? — Section 11 of the CCAA allows for stays to address financial exigencies during restructuring | Access to information — Freedom of Information and Protection of Privacy Act (FIPPA) — Applicant sought stay of FIPPA requests during restructuring — Monitor supported stay to avoid resource diversion — Should the stay of FIPPA requests be granted? — Section 11 of the CCAA permits stays to facilitate restructuring efforts, subject to periodic review | Bankruptcy and insolvency — Sealing Order — Confidential exhibits — Sealing Order granted at initial hearing — Concerns raised by parties at comeback hearing — Should the Sealing Order remain in effect? — Sealing Orders under the CCAA require balancing confidentiality with transparency, pending further review
CanLII | Feb 12, 2021
- keywords: Bankruptcy and insolvency — Civil procedure — Appeals — Contempt — Bankruptcy and Insolvency Act — R.S.C. 1985, c. B-3, s. 195, Rules of Civil Procedure — R.R.O. 1990, Reg. 194, Rule 60.11(5)
CanLII | Feb 8, 2021
- keywords: Business associations — Oppression remedy — Sole director’s conduct — Misuse of corporate funds — Failure to provide audited financial statements — Breach of court orders — Does the conduct of the sole director amount to oppression, unfair prejudice, or unfair disregard under the OBCA? — Test for oppression from BCE v. 1976 Debentureholders applied — Ontario Business Corporations Act, RSO 1990, c B.16, s. 248 | Business associations — Remedies — Appointment of receiver — Oppression remedy — Mismanagement of corporate assets — Should a receiver be appointed to manage the corporation’s affairs and protect the applicant’s interests? — Court’s discretion to appoint a receiver under OBCA, s. 248(3), and Courts of Justice Act, s. 101 — Receiver appointed due to respondent’s misconduct | Business associations — Share valuation — Oppression remedy — Buyout of minority shareholder — Valuation of shares in light of oppressive conduct — How should the applicant’s shares be valued and bought out? — Court applied rough valuation based on real estate value, improper shareholder advances, and financial misfeasance — Adverse inferences drawn against respondent for lack of evidence | Statutory interpretation — Oppression remedy — Reasonable expectations — Breach of statutory obligations — Does the failure to produce audited financial statements and comply with court orders breach reasonable expectations under the OBCA? — Test for reasonable expectations and oppression from BCE v. 1976 Debentureholders applied | Civil procedure — Costs — Substantial indemnity basis — Litigation conduct — Are costs on a substantial indemnity basis warranted due to the respondent’s conduct? — Elevated costs awarded due to respondent’s failure to comply with court orders and obstruction of case management process — Selvadurai v. Antony applied
CanLII | Feb 8, 2021
- keywords: Insurance — Non-dissipation orders — Disclosure obligations — Defendant failed to disclose ownership of insurance policies and proceeds — Defendant transferred policy proceeds to third parties and failed to disclose the location of a Ferrari Testarossa — Did the defendant violate the non-dissipation and disclosure order? — Breach of court orders established beyond a reasonable doubt | Civil procedure — Contempt of court — Legal test for civil contempt — Three-part test: clarity of order, knowledge of order, and intentional breach — Plaintiff satisfied the burden of proof beyond a reasonable doubt — Defendant’s prior contempt conviction irrelevant to current allegations — Standard of proof for civil contempt proceedings | Evidence — Admissibility — Hearsay — Bank statements and affidavits — Defendant objected to admissibility of bank statements and prior affidavits on grounds of hearsay and self-incrimination — Court admitted evidence based on reliability and necessity — Section 13 of the Charter not engaged as prior affidavit was not compelled — Test for admissibility of hearsay evidence applied | Civil procedure — Reopening case — Plaintiff allowed to call new witness after closing its case — Defendant objected, alleging prejudice — Court allowed reopening due to early stage of proceedings and lack of demonstrated prejudice — Test for reopening cases based on diligence, discoverability, and prevention of miscarriage of justice
CanLII | Feb 5, 2021
- keywords: Construction — Subcontracts — Indemnity agreements — Sewer line work — Claims for property damage due to sewage backup during Crosstown LRT project — Was subcontractor obligated to indemnify contractor for claims, costs, and damages under subcontract despite the Wrap-Up insurance policy? — Specific indemnity provisions in subcontracts override general provisions relating to insurance | Contracts — Indemnity clauses — Insurance obligations — Priority of contractual terms — Subcontractor argued Wrap-Up insurance policy precluded indemnity claims by contractor — Do indemnity provisions create a duty to defend contractor in underlying legal claims? — Indemnity obligation prevails unless liability arises solely from contractor’s negligence | Contracts — Costs — Full indemnity basis — Hold harmless provisions — Contractor sought reimbursement for legal costs under indemnity terms in subcontract — Does “hold harmless” imply full indemnity for legal costs and expenses? — Duty to fully indemnify includes legal costs as per hold harmless clause | Contracts — Construction project agreements — Priority clauses — Conflicting provisions between subcontract and Wrap-Up insurance — Should Wrap-Up insurance policy provisions supersede subcontract terms? — Priority ranking clauses clarify that negotiated subcontract provisions take precedence, ensuring contractual obligations are upheld
CanLII | Feb 2, 2021
- keywords: Bankruptcy and insolvency — Application of CCAA — Not-for-profit corporations — Laurentian University seeking relief under the CCAA — Does the CCAA apply to a not-for-profit, non-share capital corporation? — CCAA applies to entities incorporated under provincial legislation, including not-for-profits — Companies’ Creditors Arrangement Act, R.S.C. 1985, c. C-36, s. 2(1) | Bankruptcy and insolvency — Insolvency — Definition of insolvency — Laurentian University experiencing liquidity crisis and operational deficits — Is Laurentian University insolvent under the BIA and CCAA? — Insolvency determined by inability to meet obligations as they become due or insufficient assets to cover liabilities — Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3, s. 2 | Bankruptcy and insolvency — Stay of proceedings — Scope of stay — Laurentian University seeking stay of proceedings for itself and related parties — Should a stay of proceedings be granted? — Stay granted to provide breathing room for restructuring and to prevent disruption to students — Companies’ Creditors Arrangement Act, R.S.C. 1985, c. C-36, s. 11.02(1) | Bankruptcy and insolvency — Charges — Administration and Directors’ Charges — Laurentian University requesting super-priority charges — Are the Administration Charge and Directors’ Charge reasonable? — Charges granted to ensure professional and director involvement in restructuring — Companies’ Creditors Arrangement Act, R.S.C. 1985, c. C-36, ss. 11.51, 11.52 | Civil procedure — Sealing orders — Confidential exhibits — Laurentian University seeking to seal correspondence with the Ministry of Colleges and Universities — Should a sealing order be granted? — Sealing order granted to prevent serious risk to restructuring efforts — Courts of Justice Act, R.S.O. 1990, c. C.43, s. 137(2) | Labour and employment — Court-Appointed Mediator — Collective bargaining — Laurentian University requesting mediator to oversee negotiations with unions — Should a Court-Appointed Mediator be appointed? — Appointment deferred to allow submissions from union stakeholders — Companies’ Creditors Arrangement Act, R.S.C. 1985, c. C-36
CanLII | Feb 1, 2021
- keywords: International injunction — Mareva injunction — Costs
CanLII | Jan 25, 2021
- keywords: Civil procedure — Contempt of court — Penalties — Repeated and deliberate breaches of court orders — Defendants failed to comply with orders requiring accounting, disclosure, and provision of contact information — Plaintiffs sought incarceration or judgment as sanctions — What is the appropriate penalty for contempt of court? — Contempt undermines the rule of law — Judgment granted against defendants as a tailored remedy for contempt | Evidence — Fraud allegations — $9,000,000 fraud — Defendants failed to provide adequate accounting or supporting documentation — Plaintiffs sought judgment as a sanction for contempt — Can judgment be granted against defendants as a sanction for contempt? — Judgment appropriate where defendants persistently refuse to comply with court orders | Civil procedure — Costs — Substantial indemnity costs — Defendants engaged in flagrant and intentional breaches of court orders — Plaintiffs incurred significant costs due to defendants’ duplicity and obstruction — Are substantial indemnity costs appropriate in cases of flagrant breaches? — Substantial indemnity costs awarded to plaintiffs to reflect defendants’ conduct and complexity of proceedings
CanLII | Jan 21, 2021
- keywords: Civil procedure — Virtual cross-examinations — Misconduct — Allegations of improper assistance during virtual cross-examination — Whether virtual examination process was abused by the Respondent and third parties — Whether the Respondent’s affidavit and evidence should be struck for abuse of process — Rule 34.15 and Rule 38.12 of the Rules of Civil Procedure — Court’s inherent jurisdiction to prevent abuse of process | Evidence — Misconduct during cross-examination — Allegations of improper assistance — Interpreter’s evidence regarding hand gestures and verbal cues during virtual cross-examination — Whether Respondent’s evidence was tainted by third-party interference — Court’s reliance on independent witness testimony — Striking of Respondent’s affidavit as a remedy for abuse of process | Professional responsibility — Counsel’s role in misconduct — Allegations against Respondent’s counsel for confirming false information on the record — Whether counsel’s conduct undermined the integrity of the fact-finding process — Court’s discretion to address counsel’s involvement in abuse of process — No order made for disqualification of counsel
CanLII | Jan 21, 2021
- keywords: Commercial law — Receivers — Duties and liabilities
CanLII | Jan 21, 2021
- keywords: Bankruptcy and insolvency — Transfers at undervalue — Trustee in bankruptcy — Residential property and shares transferred by Bankrupt to family members — Transfers set aside as void under Bankruptcy and Insolvency Act — Trustee entitled to vesting order for property and shares — Whether vesting order is corollary to relief granted — Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3, ss. 71, 95, 96 | Civil procedure — Costs — Substantial indemnity versus partial indemnity — Trustee sought substantial indemnity costs, including pre-litigation costs — Defendants argued costs were excessive and pre-litigation costs not recoverable — Court awarded partial indemnity costs, excluding pre-litigation costs — Rules of Civil Procedure, R.R.O. 1990, Reg. 194, r. 57.01 | Property — Vesting orders — Trustee’s draft Judgment included vesting order for residential property and shares — Defendants objected, arguing relief not specifically sought in pleadings — Court held vesting order was corollary to relief granted and necessary to implement judgment — Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3, s. 71 | Civil procedure — Quantum of costs — Trustee’s Bill of Costs challenged by defendants — Court reduced costs for duplication, excessive time billed, and unrelated matters — Costs fixed at $170,000 on partial indemnity basis — Rules of Civil Procedure, R.R.O. 1990, Reg. 194, r. 57.01
CanLII | Jan 20, 2021
- keywords: Business associations — Plans of arrangement — Interim applications — Ex parte hearings — Section 182 of the Business Corporations Act — Applicant seeking interim order to set terms of service and meeting for shareholder approval — Does the court require detailed information about the fairness of the proposed plan at the interim stage? — Interim orders aim to facilitate the arrangement process without assessing fairness — Business Corporations Act, R.S.O. 1990, c. B.16 | Civil procedure — Ex parte applications — Interim orders — Information required — Applicant seeking waiver of ordinary service rules and expedited timetable for shareholder meeting — What information should be included in the factum to assist the court in determining terms of service and meeting? — Factum must provide clear, concise details about fairness and transaction terms to avoid delays or rejection | Securities — Shareholder meetings — Fairness of plans of arrangement — Interim applications — Court assessing adequacy of time for security holders to respond to proposed plans — Should the court consider the fairness of the plan when setting terms for service and meetings? — Fairness of terms, not the plan itself, is assessed at the interim stage — Factors include security holder composition and transaction complexity | Evidence — Adequacy of information — Factums in interim applications — Fairness opinions — What factors should the court consider in assessing the adequacy of fairness information in factums? — Factums must include qualitative and quantitative explanations of fairness, not mere assertions or references to fairness opinions — Judges require concrete reasons to assess fairness of terms
CanLII | Jan 18, 2021
- keywords: Contract law — Breach of contract — Torts — Fraud — Corporations
CanLII | Jan 15, 2021
- keywords: Contract law — Interpretation
CanLII | Jan 13, 2021
- keywords: Wills and estates — Real property — Family law — Gifts — Intention of donor
CanLII | Jan 11, 2021
- keywords: Civil procedure — Privilege motions — Anti-SLAPP motions — Section 137.1(5) of the Courts of Justice Act — Whether privilege motions constitute further steps in the proceeding or permissible interlocutory steps within anti-SLAPP motions — Jurisdiction to hear privilege motions — Proportionality and efficiency in anti-SLAPP litigation — Framework for determining permissible interlocutory steps under section 137.1(5) | Evidence — Solicitor-client privilege — Communications with third-party investigators — Whether solicitor-client privilege extends to communications with Tamara Global, Black Cube, and Psy Group — Limited extension of privilege to third parties essential to the solicitor-client relationship — Application of the Solosky and Chrusz principles — Privilege denied for non-essential third-party communications | Evidence — Litigation privilege — Dominant purpose test — Expiration of privilege — Whether litigation privilege applies to documents created for Project Maple Tree — Expiration of privilege upon conclusion of Moyse and VimpelCom actions — Closely related litigation exception under Blank — Privilege denied for documents unrelated to extant litigation | Evidence — Improper conduct — Blank exception — Vitiation of litigation privilege — Pretext investigations and stings conducted by Black Cube — Improper conduct undermining the integrity of the litigation process — Application of the Blank and Moore principles — Litigation privilege denied for documents created in furtherance of improper conduct | Torts — Privacy and anonymity — Redaction of identifying information — Request to redact Black Cube agent identities in disclosed documents — Balancing privacy interests against transparency and justice — Denial of redaction request due to lack of evidence of harm and improper conduct by Black Cube agents
CanLII | Jan 11, 2021
- keywords: Property — Mortgages — Validity — Authority of corporate officer — Whether John Kavanagh had actual or ostensible authority to register mortgages on behalf of Midas Investment Corporation — Corporate by-laws and shareholder approval — Indoor management rule under Ontario Business Corporations Act — Mortgages upheld as valid — Land Titles Act, R.S.O. 1990, c. L.5, s. 78(4) | Business associations — Corporate governance — Authority of officers — Whether corporate by-laws and shareholder resolutions authorized John Kavanagh to bind Midas Investment Corporation — By-laws granting signing authority to the Secretary or Treasurer — Shareholder approval of borrowing by-laws — Ontario Business Corporations Act, R.S.O. 1990, c. B.16, ss. 15, 17(1), 23(3) | Torts — Fraud — Knowledge of fraud by mortgagees — Whether mortgagees had actual knowledge of alleged fraud in mortgage registration — Standard for actual knowledge under Land Titles Act and case law — Constructive knowledge insufficient — Mortgagees entitled to rely on registration and corporate authority — Stanbarr Services Ltd. v. Metropolis Properties Inc., 2018 ONCA 244 | Professional responsibility — Solicitor negligence — Standard of care — Whether lawyer for Midas Investment Corporation breached standard of care in mortgage transactions — Alleged irregularities in corporate by-laws and documentation — No causation between alleged negligence and registration of mortgages — Lawyer entitled to rely on corporate documents and client instructions — BSA Investors Ltd. v. Mosly, 2007 BCCA 94 | Property — Fraudulent conveyance — Self-registered mortgage — Whether $9,000,000 mortgage registered by Thomas Farrell in his own favour was valid — No advances made under the mortgage — Mortgage declared subordinate to valid mortgages registered by mortgagees
CanLII | Dec 31, 2020
- keywords: Business associations — Partnership disputes — Financial contributions — Breakdown of business relationship between partners — Dispute over promissory notes and financial obligations — Whether the defendants’ contributions to the business offset the amounts claimed by the plaintiff — Reconciliation of contributions and liabilities — Governing principles for resolving disputes in business partnerships | Contracts — Promissory notes — Validity and enforceability — Whether promissory notes were signed by the defendants — Consideration for promissory notes — Antecedent debt as sufficient consideration — Application of the Bills of Exchange Act — Promissory notes as enforceable instruments under Canadian law | Contracts — Interest rates — Promissory notes with no stipulated interest rate — Application of statutory interest rates under the Interest Act — Whether customary interest rates in private loans are enforceable — Pre-judgment interest under the Courts of Justice Act — Determination of appropriate interest rates for promissory notes | Torts — Punitive damages — Oppressive conduct — Whether punitive damages are warranted for defendants’ conduct during the business relationship and litigation — Highhanded and evasive conduct — Costs as an alternative remedy for litigation misconduct | Evidence — Handwriting analysis — Expert evidence — Disguised handwriting — Credibility of expert witnesses — Procedural deficiencies in expert reports — Assessment of handwriting samples and signatures on promissory notes — Weight given to expert evidence in light of credibility findings
CanLII | Dec 30, 2020
- keywords: Civil procedure — Costs — Substantial indemnity costs — Motion to strike statement of claim
CanLII | Dec 29, 2020
- keywords: Civil procedure — Dismissal for delay — Rules of Civil Procedure — Rule 24.01
CanLII | Dec 29, 2020
- keywords: Civil procedure — Mareva injunction — Variation of injunction — Defendants sought access to frozen funds for legal and living expenses — Whether the Mareva injunction should be varied to allow access to non-proprietary funds — Test for varying Mareva injunctions includes demonstrating no other assets are available — Defendants failed to meet evidentiary burden — Motion to vary dismissed | Evidence — Onus of proof — Disclosure of assets — Defendants required to demonstrate no other assets available to pay expenses — Defendants failed to disclose worldwide assets, including cash sent offshore and rental income — Adverse inference drawn from lack of disclosure — Onus not discharged | Evidence — Full disclosure — Mareva injunction — Defendants failed to provide full disclosure of assets and liabilities, including offshore accounts and corporate relationships — Court emphasized importance of candour in seeking access to frozen funds — Failure to disclose precluded access to funds
CanLII | Dec 24, 2020
- keywords: Bankruptcy and insolvency — Receivership — Assignment of lease — Jurisdiction — Receiver sought assignment of Berm Lease under the Bankruptcy and Insolvency Act (BIA) and Companies’ Creditors Arrangement Act (CCAA) — Does the court have jurisdiction to grant an assignment order in a receivership context? — Section 243(1)(c) of the BIA and inherent jurisdiction of the court provide authority for assignment orders in receivership proceedings | Lease — Assignment of lease — Landlord consent — Berm Lease contained clause requiring landlord’s consent for assignment — Landlord withheld consent — Is it appropriate to assign the lease without landlord consent? — Assignment upheld as necessary to preserve transaction value and avoid harm to creditors — Landlord’s rights under the lease remain unaffected | Contracts — Assignment of contractual rights — Receivership — Purchaser allocated value to Berm Lease — Landlord objected to assignment without renegotiation of rent — Should the rights and obligations under the Berm Lease be assigned to the purchaser? — Assignment deemed appropriate to maximize estate value and ensure fair treatment of parties | Property — Sale of geothermal assets — Receivership — Approval of transaction — Receiver sought approval of $24 million sale of geothermal assets, including assignment of Berm Lease — Should the court approve the sale and related transaction? — Sale process deemed commercially reasonable — Transaction approved to preserve value for creditors | Sale — Confidential information — Sealing order — Receiver requested sealing of confidential appendix to protect sensitive commercial information — Should the court issue a sealing order? — Sealing order granted to prevent harm to future sale processes if transaction fails — Sierra Club of Canada test applied
CanLII | Dec 23, 2020
- keywords: Civil procedure — Mareva injunction — Dissipation of assets — Plaintiff sought Mareva injunction to prevent defendants from dissipating funds paid for NIOSH-certified N95 respirators — Defendants failed to provide financial documentation and engaged in suspicious transfers — Should a Mareva injunction be granted? — Test for Mareva injunction includes strong prima facie case, irreparable harm, and balance of convenience | Civil procedure — Investigative receiver — Appointment of receiver — Plaintiff sought appointment of investigative receiver to trace funds paid to defendants — Defendants refused to disclose financial records and intermingled corporate and personal funds — Should an investigative receiver be appointed? — Receiver justified where plaintiff’s recovery is in serious jeopardy | Contracts — Fraudulent misrepresentation — Supply of medical-grade masks — Defendants represented they could supply NIOSH-certified N95 respirators but delivered non-medical KN95 masks — Did the defendants engage in fraudulent misrepresentation? — Fraudulent misrepresentation established where defendants knowingly made false representations to induce payment | Business associations — Corporate liability — Joint and several liability — Overlap between Canadian and U.S. corporate defendants — Individual defendant acted on behalf of both corporations — Are the corporate and individual defendants jointly and severally liable? — Corporations and individuals liable for tortious conduct performed on their behalf | Civil procedure — Scope of Mareva injunction — Application to all defendants — Evidence insufficient to justify Mareva injunction against Fabio Gesufatto and Blu Stella Consulting Group Inc. — Should the injunction apply to all defendants? — Relief limited to defendants with evidence of fraudulent conduct or dissipation of assets
CanLII | Dec 20, 2020
- keywords: Procedure — Stay of proceedings — Companies’ Creditors Arrangement Act
CanLII | Dec 18, 2020
- keywords: Receivership — Application to appoint receiver — Conflict of interest — Bankruptcy and insolvency
CanLII | Dec 17, 2020
- keywords: Contract law — Interpretation
CanLII | Dec 11, 2020
- keywords: Securities — Compelled testimony — Confidentiality clause — Employment agreement — Individual served with summons under Securities Act refused to answer questions citing confidentiality clause — Whether refusal was proper without asserting privilege — Held: Improper to refuse without asserting privilege — Ontario Securities Commission's authority under section 13 of the Securities Act to compel testimony prevails over confidentiality obligations in employment agreements | Evidence — Case-by-case privilege — Securities investigation — Applicant claimed information protected by confidentiality clause was privileged — Whether information met Wigmore criteria for case-by-case privilege — Held: Information not protected as confidentiality was not essential to employer-employee relationship — Balancing public interest in securities regulation against confidentiality obligations — Securities Act, R.S.O. 1990, c. S.5, s. 13
CanLII | Dec 10, 2020
- keywords: Corporations — Oppression — Reasonable expectations — Remedies
CanLII | Dec 4, 2020
- keywords: Contracts — Material Adverse Effect (MAE) — COVID-19 pandemic — Share Purchase Agreement (SPA) — Carveouts for emergencies, market changes, and financial projections — Did the pandemic constitute a MAE allowing the purchaser to avoid closing? — MAE clauses allocate systemic risks to the purchaser unless disproportionate adverse impact is proven — No MAE found under the SPA | Contracts — Ordinary Course Covenant — Business operations — COVID-19 pandemic — Changes to branch operations, collections, and expenditures — Were the seller’s actions consistent with past practices and industry standards? — Ordinary course includes responses to systemic economic changes — No breach of covenant found | Contracts — Amortization Event — Financing documents — Loan loss reserves — Projections of defaults and refinancing risks — Was an Amortization Event reasonably expected to occur? — Management adjustments and portfolio quality considered — No reasonable expectation of an Amortization Event found | Access to information — Share Purchase Agreement (SPA) — Information requests — Reasonably necessary data for transaction closing — Did the seller fail to provide sufficient information? — Thousands of requests addressed; minor gaps alleged — No material breach of the Access to Information Covenant found | Contracts — Specific performance — Refusal to close transaction — Share Purchase Agreement (SPA) — Is specific performance the appropriate remedy? — Purchaser ordered to specifically perform the SPA and close the transaction
CanLII | Dec 2, 2020
- keywords: Conflict of laws — Contract law — Jurisdiction — Real and substantial connection — Arbitration
CanLII | Nov 26, 2020
- keywords: Contracts — Procurement — Supplier selection — Breach of good faith — Allegations of unfairness in awarding the 2020 Contract to a supplier unable to meet the start date — Whether HealthPRO and PHSA breached their duty of good faith in the supplier selection process — Duty of fairness extinguished upon contract award — Double N Earthmovers Ltd. v. Edmonton (City) applied | Obligations — Good faith — Procurement process — Whether HealthPRO and PHSA acted in bad faith by assisting a supplier with regulatory approvals and allowing a delayed implementation date — No obligation to investigate supplier readiness beyond representations in the bid — Transition periods for new suppliers deemed reasonable | Contracts — Bid repair — Post-award communications — Whether communications between PHSA and Daniels constituted impermissible bid repair — Communications operational in nature and permissible under the RFP terms — No substantial alteration of contract terms post-award | Health — Biomedical waste management — Election of supplier — Continued use of incumbent supplier’s services under a prior contract’s transition clause — Whether PHSA’s conduct constituted an irrevocable election of Stericycle as Primary Supplier — Six-month transition provision upheld — Incumbent advantage not determinative
CanLII | Nov 25, 2020
- keywords: Contract law — Real property — Commercial leases — Arbitration — Enforcement — Arbitration Act, 1991 — S.O. 1991, c. 17, s. 50
CanLII | Nov 20, 2020
- keywords: Breach of contract — Conversion — Fraudulent misrepresentation — Unjust enrichment — Quantum meruit — Rule 21.01(1)(b), Motion to strike
CanLII | Nov 10, 2020
- keywords: Civil procedure — Mareva injunctions — Interim relief — Enforcement of arbitral awards — Applicant sought to extend an interim Mareva injunction restraining the removal of an aircraft from Ontario pending recognition and enforcement of an arbitral award — Should the injunction be extended? — Balancing of equities and irreparable harm — Mareva injunction extended until the recognition and enforcement application is decided | International law — Recognition and enforcement of arbitral awards — Bilateral Investment Treaties — Applicant obtained an arbitral award under a Bilateral Investment Treaty and sought enforcement in Ontario — Does Tanzania’s failure to implement the New York Convention into its domestic law affect enforcement in Ontario? — Ontario law governs recognition and enforcement of arbitral awards under the International Commercial Arbitration Act | Constitution — Sovereign immunity — State Immunity Act — Whether sovereign immunity precludes the granting of a Mareva injunction against a foreign state — Bilateral Investment Treaties limit sovereign immunity in cases of arbitration — Sovereign immunity does not bar the injunction where the state has consented to arbitration under UNCITRAL rules | Evidence — Full and fair disclosure — Mareva injunctions — Whether the applicant failed to make full and fair disclosure when obtaining the initial Mareva injunction — Disclosure of the State Immunity Act and jurisdictional issues — Court found no failure in disclosure — Proper balancing of factors for Mareva injunction upheld | Civil procedure — Mareva injunctions — Legal test — Dissipation of assets — Whether the applicant met the legal test for a Mareva injunction — Court considered dissipation of assets and balance of convenience — Mareva injunction granted to enforce an existing arbitral award, not to encumber assets pre-judgment
CanLII | Nov 10, 2020
- keywords: Bankruptcy and insolvency — Companies' Creditors Arrangement Act — Sale transaction — Approval of sale transaction under CCAA — Whether the court should approve a sale transaction involving the transfer of assets and liabilities to a new entity — Whether the release of claims against directors, legal counsel, and the Monitor is appropriate — Governing principles from section 36(3) of the CCAA and Royal Bank v. Soundair Corp | Statutory interpretation — Companies' Creditors Arrangement Act — Jurisdiction to approve releases — Whether the court has jurisdiction to approve a release of claims in the absence of a formal plan of compromise or arrangement — Interpretation of section 5.1(1) and section 11 of the CCAA — Relevance of prior case law, including Re Nemaska Lithium Inc | Bankruptcy and insolvency — Releases — Test for approval — Whether the proposed release meets the legal test for approval — Factors from Lydian International Limited (Re), including fairness, reasonableness, and scope — Consideration of the quality of claims being released — Balancing creditor recovery against speculative claims | Civil procedure — Stay of proceedings — Temporary lifting of stay — Whether the court should temporarily lift the stay of proceedings to allow claims to be filed to preserve potential insurance coverage — Scope of carveouts in the release for claims covered by insurance — Reimposition of stay after specified period | Bankruptcy and insolvency — Shareholder claims — Extension of release — Whether the court should extend the benefit of the release to a shareholder who claims to have contributed to the success of the transaction — Court's limited role in rewriting negotiated releases — Consideration of fairness and relevance of defamation claims
CanLII | Nov 9, 2020
- keywords: Debtor-Creditor — Contract law — Interpretation — Corporations — Arrangements and compromises
CanLII | Nov 9, 2020
- keywords: Commercial law — Creditors’ remedies — Set-off
CanLII | Oct 26, 2020
- keywords: Contract law — Indemnity agreements — Remedies — Mandatory interim injunctions
CanLII | Oct 16, 2020
- keywords: Bankruptcy and insolvency — Receivership — Discharge of receiver — Approval of fees and disbursements — Sealing orders — Receiver sought discharge after determining further administration was not beneficial to stakeholders — Should the court approve the discharge and associated relief? — Court approved discharge, fees, and sealing orders, balancing stakeholder interests and applying Sierra Club principles | Bankruptcy and insolvency — Receivership — Re-appointment of receiver — Secured creditor sought unlimited time to revive receivership proceedings — Province and First Nation opposed unlimited timeline, citing environmental and third-party concerns — Should a time limit and conditions be imposed on re-appointment? — Court imposed two-year limit for re-appointment motion, balancing interests of stakeholders and third parties | Civil procedure — Jurisdiction — Discharge orders — Court’s discretion to include provisions for re-appointment of receiver — Does the court have jurisdiction to allow re-appointment of a receiver in certain circumstances? — Court held it has jurisdiction to allow re-appointment in appropriate cases, referencing Re Grand River Railway Co. and absence of statutory prohibition | Environment — Indigenous peoples — Environmental remediation — Interests of third parties — Province and First Nation raised concerns about environmental risks and impacts on Indigenous lands — Should the court consider third-party interests in discharge terms? — Court considered environmental and Indigenous concerns, limiting uncertainty by imposing a two-year timeline for re-appointment motions
CanLII | Oct 8, 2020
- keywords: Bankruptcy and insolvency — Contempt of court — Breach of court order — Trustees in bankruptcy sought a contempt order against the responding party for failing to attend an examination and produce documents as required by a prior order — Did the responding party intentionally fail to comply with the January 15, 2019 Order? — Test for civil contempt from Carey v. Laiken applied | Evidence — Judicial impartiality — Reasonable apprehension of bias — Responding party sought recusal of the presiding judge, alleging bias due to submissions made by the Trustees regarding the Bankrupt’s character — Should the judge recuse themselves? — Test for reasonable apprehension of bias from Yukon Francophone School Board v. Yukon Territory applied | Civil procedure — Service of motion — Contempt proceedings — Responding party argued improper service of the Notice of Motion for contempt under Rule 60.11 of the Rules of Civil Procedure — Was personal service required, and was the responding party prejudiced by service on their counsel? — Rule 1.04 of the Rules of Civil Procedure applied to interpret service requirements
CanLII | Oct 5, 2020
- keywords: Bankruptcy and insolvency — Recognition of foreign main proceeding — Trustees in bankruptcy — Application for stay of bankruptcy proceedings pending annulment application in foreign court — Whether stay should be granted — Trustees’ fiduciary duty to maximize estate value — Test for stay of interlocutory orders applied — Stay denied as no serious issue to be tried, no irreparable harm, and balance of convenience favoured Trustees | Civil procedure — Interlocutory orders — Final orders — Determination of whether January 15, 2019 Order was interlocutory or final — Procedural orders versus substantive rights — Order requiring document production and examination deemed interlocutory — Test for interlocutory orders applied | International law — Cross-border insolvency — Recognition of foreign bankruptcy proceedings — Application for stay of domestic proceedings pending annulment of foreign bankruptcy order — Trustees’ authority as foreign representatives under Bankruptcy and Insolvency Act — No evidence of merit in foreign annulment application — Stay denied
CanLII | Oct 5, 2020
- keywords: Bankruptcy and insolvency — Corporate restructuring — Plan of arrangement — Section 192 of the Canada Business Corporations Act (CBCA) — Final approval of a plan of arrangement opposed by creditors — Whether the plan is fair and reasonable — Whether the plan facilitates the restructuring of a corporation facing financial challenges — Broad and liberal interpretation of section 192 of the CBCA — Governing principles for creditor arrangements under the CBCA | Business associations — Corporate restructuring — Definition of "security" under the CBCA — Term loans and their classification as "securities" — Whether a term loan qualifies as a "debt obligation" or "evidence of indebtedness" under section 2 of the CBCA — Broad interpretation of "debt obligation" to include term loans — Governing principles for determining the scope of interests capable of arrangement under the CBCA | Business associations — Creditor voting categories — Classification of creditors for voting purposes — CFA lenders and unsecured noteholders placed in the same voting category — Commonality of legal interests as a basis for classification — Whether differences in security interests warrant separate voting classes — Principles from Canadian Airlines and BCE governing creditor classification — Avoidance of fragmentation in voting categories | Business associations — Substantive fairness of arrangements — Proportionality of compromises among creditors — Release of guarantees without consideration — Comparison of compromises made by CFA lenders and noteholders — Valid business purpose of the arrangement — Governing principles for assessing fairness and reasonableness under the CBCA | Civil procedure — Fairness opinions — Role of fairness opinions in corporate arrangements — Reliability and independence of fairness opinions — Limitations and qualifications in fairness opinions — Whether fairness opinions provide meaningful assistance to courts — Governing principles for assessing the utility of fairness opinions under section 192 of the CBCA
CanLII | Sep 28, 2020
- keywords: Bankruptcy and insolvency — Transfers at undervalue — Fraudulent conveyances — Preferences — Trustee in bankruptcy seeking to void transactions involving the bankrupt’s property — Were the transfers of the Residence and Shares void under the Bankruptcy and Insolvency Act and Fraudulent Conveyances Act? — Governing principles for transfers at undervalue, fraudulent conveyances, and preferences under the BIA and FCA | Property — Fraudulent conveyances — Transfer of real property to spouse for nominal consideration — Trustee alleging intent to defraud creditors — Was the transfer of the bankrupt’s interest in the Residence a fraudulent conveyance or a transfer at undervalue? — Badges of fraud and intent to defeat creditors under the FCA and BIA | Business associations — Corporate shares — Transfer of shares in family-owned corporation to related entity — Trustee alleging transfer at undervalue and preference — Was the transfer of the Shares to a related corporation void under the BIA? — Non-arm’s length transactions and secured creditor status under the BIA | Civil procedure — Limitation periods — Trustee’s claims to void transactions — Defendants asserting claims were statute-barred under the Limitations Act, 2002 — Did the limitation period begin to run before the Trustee’s appointment? — Discoverability principles and limitation periods for trustees in bankruptcy
CanLII | Sep 28, 2020
- keywords: Business associations — Oppression remedy — Share valuation — Costs — Plaintiff awarded partial success in oppression claim involving Class A shares of a corporation — Court determined fair value of shares and awarded equitable damages for termination — Does the plaintiff’s partial success justify a full recovery of costs? — Rule 57 factors applied to determine fair and reasonable costs in complex corporate litigation | Civil procedure — Costs — Partial success — Plaintiff sought costs on a partial indemnity basis — Defendants argued for reductions due to unsuccessful claims and post-trial motions — Should costs be reduced for claims where the plaintiff was unsuccessful? — Rule 57 factors applied to assess proportionality and reasonableness of costs | Civil procedure — Costs — Distributive costs — Post-trial motions — Plaintiff unsuccessful on transaction structure motion — Defendants awarded costs for discrete post-trial issue — Should the presumption against distributive costs apply to post-trial motions? — Court awarded defendants $50,000 for transaction structure motion costs | Evidence — Expert disbursements — Recoverability — Plaintiff sought recovery of costs for expert who did not testify or file a report — Court allowed partial recovery where expert contributed to foundational work used by another expert — Are disbursements for non-testifying experts recoverable? — Exceptional circumstances required for partial recovery of expert fees
CanLII | Sep 25, 2020
- keywords: Commercial law — Personal property security — Security interests — Priorities — Registration
CanLII | Sep 25, 2020
- keywords: Business associations — Interlocutory injunction — Non-competition — Use of brand and proprietary information — Defendants to counterclaim alleged to have breached agreements and continued to use Xthetica Canada’s brand — Injunction sought to prevent competition and protect goodwill — Whether a strong prima facie case exists to justify injunctive relief — Test from RJR MacDonald Inc. v. Canada applied | Business associations — Frozen bank accounts — Corporate operations — TD Bank account frozen by defendants to counterclaim — Xthetica Canada unable to operate without access to funds — Whether account should be unfrozen to allow business continuity — Balance of convenience and irreparable harm considered | Contracts — Non-competition and non-solicitation clauses — Enforceability — Allegations of breach and wrongful termination — Whether restrictive covenants in agreements are enforceable — Impact of alleged breaches on enforceability of negative covenants — Test for irreparable harm and balance of convenience applied | Business associations — Accounting — Corporate records and assets — Defendants to counterclaim ordered to provide full accounting of Xthetica Canada’s books, records, and assets — Whether accounting is necessary to resolve disputes over corporate control and misappropriation | Civil procedure — Costs — Partial success on motion — Defendants to counterclaim awarded partial costs of $70,000 — Reduction in costs due to failure to obtain injunction against certain parties — Principles governing cost awards in interlocutory motions
CanLII | Sep 24, 2020
- keywords: Contract law — Interpretation — Real property — Commercial law — Agreements of purchase and sale of land
CanLII | Sep 17, 2020
- keywords: Bankruptcy and insolvency — Receivership — Property of bankrupt — Production of documents
CanLII | Sep 14, 2020
- keywords: Contracts — Termination of agreements — License Agreement — Licensor terminated License Agreement citing an Event of Default — Licensee argued termination was invalid and based on misinformation — Did the licensor validly terminate the License Agreement? — Termination found invalid as no Event of Default occurred, and licensor acted disingenuously | Contracts — Branding Fee — Payment obligations — Branding Fee of $2,000,000 payable upon issuance of Retail Store Authorization (RSA) — Licensor withheld payment citing termination of agreements — Is the Branding Fee payable despite termination? — Branding Fee found to be due and payable as conditions for payment were met | Obligations — Duty of good faith — Contractual performance — Licensor allegedly breached duty of good faith by withholding payments and terminating agreements based on a single statement of frustration — Did the licensor breach its duty of good faith? — Licensor found to have acted in bad faith by seeking to end the relationship without valid grounds | Lease — Sublease termination — Rent obligations — Licensee failed to pay rent due to licensor’s alleged breaches — Licensor terminated Sublease citing non-payment — What are the consequences of the alleged breaches of the Sublease? — Sublease termination upheld, but licensor’s actions contributed to licensee’s inability to pay rent | Civil procedure — Costs — Partial indemnity costs — Licensee sought $62,000 in costs; licensor argued for reduction due to narrowing of issues — What costs are payable by the licensor? — Costs of $50,000 awarded to licensee, reduced for narrowing of arguments
CanLII | Sep 11, 2020
- keywords: Civil procedure — Orders — Consent orders — Receivership — Priority of claims
CanLII | Sep 9, 2020
- keywords: Taxation — Jurisdiction — Tax Court of Canada — Applicants sought declaration that shares in Child Corporations were invalidly issued to avoid tax reassessment — Superior Court declined jurisdiction, finding the Tax Court better suited to address tax-related issues, including interpretation of section 23(3) of the Ontario Business Corporations Act — Specialized expertise of the Tax Court emphasized — Tax Court of Canada Act, R.S.C. 1985, c. T-2, s. 12(1) | Civil procedure — Jurisdiction — Superior Court jurisdiction declined in favour of Tax Court — Application dismissed as an attempt to resolve a tax dispute outside the statutory framework — Superior Court found no lis between applicants and other parties except the Canada Revenue Agency — Courts of Justice Act, R.S.O. 1990, c. C.43, s. 97 | Business associations — Share issuance — Validity of shares — Applicants claimed shares in Child Corporations were invalidly issued due to non-payment under section 23(3) of the Ontario Business Corporations Act — Court found conflicting evidence regarding payment and declined to grant declaratory relief — No dispute within corporations regarding shareholdings — Ontario Business Corporations Act, R.S.O. 1990, c. B.16, s. 23(3) | Business associations — Rectification — Corporate records — Applicants sought rectification of corporate records to reflect that shares were never validly issued — Court declined rectification, finding corporate records accurately reflected parties’ intentions in 2014 and 2015 — Rectification not available to retroactively alter transactions for tax purposes — Ontario Business Corporations Act, R.S.O. 1990, c. B.16, s. 250(1)
CanLII | Sep 8, 2020
- keywords: Business associations — Limited partnerships — Removal of general partner — Breach of fiduciary duties — General partner entered into related party agreements without approval, co-mingled partnership funds, and used funds for personal expenses — Limited partners passed resolutions to remove general partner — Whether breaches justified removal — Fiduciary duties require strict adherence to contractual and common law obligations to protect limited partners’ interests | Obligations — Fiduciary duties — Breach of fiduciary duties by general partner — Related party transactions without approval — Co-mingling of partnership funds — Use of partnership funds for personal expenses — Whether breaches caused harm or increased risk to limited partners — Fiduciary duties require strict separation of interests and adherence to partnership agreements | Contracts — Limited Partnership Agreement — Removal of general partner — Breach of agreement terms — General partner failed to remedy defaults within 30-day notice period — Limited partners passed special resolutions to remove general partner — Whether removal complied with agreement terms — Courts respect validly passed resolutions and uphold contractual remedies for breaches | Obligations — Relief from forfeiture — General partner sought relief from forfeiture after removal — Breaches of fiduciary duties and contractual obligations were serious and fundamental — Relief from forfeiture denied — Equitable discretion not exercised to allow fiduciary to retain benefits of self-interested transactions entered into in breach of duties | Civil procedure — Legal expenses — Use of partnership funds — General partner used partnership funds to pay for personal legal expenses in defending against application — Whether such use was permissible — Court barred general partner from using partnership funds for legal costs unrelated to partnership interests
CanLII | Sep 1, 2020
- keywords: Bankruptcy and insolvency — Receivership — Authority to disclaim contracts — Receiver disclaimed agreement of purchase and sale (APS) for a condominium property — Purchaser sought to compel completion of APS — Does the Receiver have authority to disclaim the APS under the Receivership Order? — Receiver empowered to disclaim contracts under Receivership Order — No breach of fiduciary duty found — Land Titles Act, R.S.O. 1990, c. L.5, s. 93(3) | Contracts — Agreements of purchase and sale — Subordination clauses — Purchaser entered into APS for condominium property — APS included clauses subordinating purchaser’s interest to secured creditor’s mortgage — Does the APS create an equitable or proprietary interest in the property? — APS explicitly negated purchaser’s interest in land — Purchaser’s interest subordinate to secured creditor’s priority | Construction — Deposits for residential properties — Misuse of purchaser’s deposit by vendor — Purchaser paid $400,000 directly to vendor for construction — Vendor used deposit for ongoing construction costs — Does the purchaser’s deposit create an equitable interest in the property? — Deposit treated as unsecured loan to vendor — No equitable interest overriding secured creditor’s priority | Property — Secured creditors — Priority of mortgagee over purchaser’s interest — Purchaser sought to subordinate secured creditor’s priority to equitable interest in deposit — Should the court subordinate the secured creditor’s legal priority to the purchaser’s equitable interest? — Secured creditor’s priority upheld — Equities did not justify subordination — Receiver’s decision to disclaim APS supported by Receivership Order | Civil procedure — Costs — Motion to compel Receiver to complete APS dismissed — Applicant sought costs on partial indemnity basis — Purchaser argued for nominal costs due to financial hardship — What is the appropriate cost award? — Costs fixed at $20,000 inclusive of HST and disbursements — Complexity of proceeding and importance of issues considered
CanLII | Aug 27, 2020
- keywords: Contracts — Specific performance — Shotgun buy/sell provision — Applicant seeking specific performance to enforce respondent’s obligation to purchase under a limited partnership agreement — Respondent failed to close, citing COVID-19 pandemic — Whether specific performance is appropriate — Specific performance granted as damages were inadequate, and no equitable considerations precluded relief | Obligations — Doctrine of frustration — COVID-19 pandemic — Respondent argued that the pandemic frustrated its ability to obtain financing to close the purchase — Whether the doctrine of frustration applied — Doctrine of frustration rejected as the pandemic did not radically alter the nature of the contractual obligations | Property — Specific performance — Adequacy of damages — Balance of risks — Applicant argued damages were inadequate due to practical complications in selling its interest to a third party — Respondent argued specific performance imposed disproportionate risks — Whether equitable considerations precluded specific performance — Court held that specific performance was equitable and appropriate | Sale — Clean hands doctrine — Alleged default — Respondent argued applicant failed to pay development management fees, breaching the joint venture agreement — Whether the applicant’s alleged default precluded specific performance — Court held that the respondent could not rely on the alleged default, as it was aware of it but failed to raise it earlier
CanLII | Aug 21, 2020
- keywords: Civil procedure — Contempt of court — Compliance with court orders — Developer Defendants failed to comply with orders requiring affidavits of assets, accounting, and disclosure — Did the defendants’ conduct constitute contempt of court? — Contempt requires proof beyond a reasonable doubt of breach and intent to breach orders — Rule 60.11 of the Rules of Civil Procedure applied | Evidence — Credibility — Affidavits of assets — Developer Defendants’ affidavits of assets contradicted by contemporaneous documents — Discrepancies in financial disclosures undermined credibility — Did the affidavits of assets support a finding of contempt? — Affidavits of assets relevant to assessing compliance but not independently sufficient for contempt finding | Property — Real estate transactions — Failure to close purchase — Developer Defendants failed to close Richmond Hill property purchase as required by court order — Did the failure to close constitute contempt? — Contempt available for failure to comply with mandatory orders, including those requiring specific performance of transactions | Civil procedure — Disclosure obligations — Failure to provide contact information and automobile details — Developer Defendants failed to disclose required information, including vehicle VINs and recipient contact details — Did the failure to disclose constitute contempt? — Non-compliance with mandatory disclosure orders constitutes contempt absent credible explanation or effort to comply | Civil procedure — Promissory estoppel — Settlement discussions — Developer Defendants argued that settlement discussions precluded contempt proceedings — Can promissory estoppel bar contempt motions? — Promissory estoppel requires evidence of intent to alter legal obligations; no such evidence found
CanLII | Aug 21, 2020
- keywords: Corporate law — Commercial law — Corporations — Debentures
CanLII | Aug 13, 2020
- keywords: Practice — Judgments and orders — Res judicata — Issue estoppel — Courts of Justice Act — Rso 1990, c C43, s. 98 — Interest Act — Rsc 1985, c I-15, ss. 8(1), 17(1), 20(3), jurisdiction
CanLII | Aug 3, 2020
- keywords: Ccaa proceeding — Procedure — Documents — Disclosure — Real property
CanLII | Jul 27, 2020
- keywords: Business associations — Corporate arrangements — Court approval — Plan of arrangement under section 182 of the Business Corporations Act — Media company seeking court approval for sale of shares to private buyer — Competing bids and shareholder objections considered — Arrangement found to have valid business purpose and to be fair and reasonable — Application allowed — Business Corporations Act, R.S.O. 1990, c. B.16, s. 182 | Sale — Corporate transactions — Shareholder approval — Arrangement involving sale of all shares of a media company to private buyer — Competing bid offering higher price rejected due to hard lock-up agreements and undue delay — Shareholders overwhelmingly approved the arrangement — Whether the arrangement met statutory requirements and was fair and reasonable — Business Corporations Act, R.S.O. 1990, c. B.16, s. 182 | Commerce and industry — Media industry — Strategic alternatives — Media company seeking private ownership to maintain business principles and respond to industry changes — Competing bidder alleging premature closure of bidding process and inadequate consideration of higher offers — Court found arrangement to be fair and reasonable — Business Corporations Act, R.S.O. 1990, c. B.16, s. 182 | Securities — Corporate governance — Board of directors — Good faith and procedural fairness — Board established special committee, obtained fairness opinions, and followed robust process — Competing bidder alleged board failed to consider superior offers — Court found board acted in good faith and in best interests of shareholders — Business Corporations Act, R.S.O. 1990, c. B.16, s. 182 | Evidence — Disclosure to shareholders — Adequacy of information — Minority shareholder and competing bidder alleged insufficient disclosure of competing bids and contingent value rights — Court found disclosure adequate and consistent with fairness opinions — Shareholders had sufficient information to make informed decision — Business Corporations Act, R.S.O. 1990, c. B.16, s. 182
CanLII | Jul 27, 2020
- keywords: Receivership — Interlocutory motions — Stay of proceedings — Approval of settlement
CanLII | Jul 24, 2020
- keywords: Bankruptcy — Creditors — Secured creditors — Third party claims
CanLII | Jul 24, 2020
- keywords: Oppression — Interim injunctions — Non-party disclosure — Remedies — Le Maitre Limited v. Froese, 2007 Canlii 18735 (Ca)
CanLII | Jul 20, 2020
- keywords: International law — Jurisdiction of arbitral tribunals — NAFTA Chapter 11 — Additional Claimants — Non-compliance with Article 1119 — Whether failure to provide notice of intent under Article 1119 deprived the Tribunal of jurisdiction — Tribunal’s interpretation of procedural requirements under NAFTA — Vienna Convention on the Law of Treaties — Tribunal’s decision upheld — Procedural defects considered admissibility issues, not jurisdictional | International law — Consent to arbitration — NAFTA Chapter 11 — Article 1121 — Whether Respondents provided valid consent to arbitration — Powers of attorney and written consents — Tribunal’s finding of effective consent — Distinction between jurisdictional and admissibility requirements — Tribunal’s decision upheld | International law — Submissions by non-disputing NAFTA parties — Article 1128 — Subsequent practice under Vienna Convention — Whether Tribunal erred in its treatment of submissions by the United States and Canada — Submissions did not constitute binding subsequent practice or agreement — Tribunal’s decision upheld
CanLII | Jul 20, 2020
- keywords: Property — Ownership interests — Disputes over jointly owned properties — Plaintiff sought mandatory injunction for interim payments based on alleged oral agreement — Defendants denied existence of agreement and claimed Plaintiff had already been overpaid — Should the Plaintiff receive interim payments from the business? — Plaintiff failed to establish entitlement to payments or irreparable harm — Motion dismissed | Contracts — Oral agreements — Enforceability — Plaintiff alleged oral compensation agreement for $60,000 per year plus expenses — Defendants denied agreement and argued no written partnership or compensation agreement existed — Does the lack of a written agreement preclude the Plaintiff’s claim? — Court held oral agreement insufficient to ground claim for mandatory injunction | Business associations — Partnerships — Distributions — Plaintiff claimed entitlement to partnership distributions despite lack of written agreement — Defendants argued no right to distributions under the Partnership Act absent a formal agreement — Does the Plaintiff have a right to partnership distributions? — Court found no inherent right to distributions without a written agreement | Evidence — Injunctions — Irreparable harm — Plaintiff claimed financial hardship and risk of bankruptcy absent interim payments — Defendants argued harm was monetary and compensable in damages — Did the Plaintiff establish irreparable harm? — Court held evidence of harm was speculative and insufficient to meet the test for irreparable harm | Civil procedure — Costs — Unsuccessful motions — Plaintiff’s motion for mandatory injunction dismissed — Defendants sought costs on a partial indemnity scale — Should costs be awarded to the Defendants? — Court awarded Defendants $30,000 in partial indemnity costs, citing no extraordinary circumstances to justify otherwise
CanLII | Jul 16, 2020
- keywords: Bankruptcy and insolvency — Plan of Arrangement — Fairness and reasonableness — Applicants sought court approval of a Plan of Arrangement under the CCAA — Plan approved by requisite majority of creditors — Does the Plan meet statutory requirements and balance stakeholder interests? — Test for sanctioning a Plan under the CCAA — Plan found fair and reasonable, satisfying statutory prerequisites | Bankruptcy and insolvency — Releases — Scope and appropriateness — Plan included releases for directors, officers, and other stakeholders — Are the releases rationally connected to the restructuring and necessary for the Plan’s success? — Releases upheld as integral to the Plan and consistent with CCAA objectives | Bankruptcy and insolvency — DIP financing — Increase to DIP Charge — Applicants sought approval for additional DIP financing to implement the Plan — Is the increase to the DIP Charge appropriate under the CCAA? — Court approved the increase as necessary and reasonable in the circumstances | Bankruptcy and insolvency — Stay of proceedings — Extension of Stay Period — Applicants requested an extension of the Stay Period to implement the Plan and terminate CCAA proceedings — Should the Stay Period be extended? — Stay extension granted as Applicants acted in good faith and with due diligence | Civil procedure — Sealing order — Commercially sensitive information — Applicants sought to seal portions of the Sellers Sanction Affidavit containing sensitive commercial information — Should the sealing order be granted? — Sealing order granted to protect confidential information, consistent with Sierra Club principles
CanLII | Jul 10, 2020
- keywords: Civil procedure — Mareva injunction — Continuation of injunction — Allegations of fraud and dissipation of assets — Plaintiffs sought continuation of Mareva injunction to prevent Defendants from dissipating assets — Defendants argued lack of assets in Ontario and insufficient evidence of fraud — Court found prima facie case of fraud and risk of dissipation — Mareva injunction continued — Test for Mareva injunction includes strong prima facie case, irreparable harm, and balance of convenience | Contracts — Jurisdiction — Account Agreement — Lack of signed agreement — Defendants argued absence of signed Account Agreement precluded Ontario jurisdiction — Plaintiffs relied on conduct of parties to establish agreement — Court held that parties acted in accordance with terms of Account Agreement, including jurisdiction clause attorning to Ontario — Mediation clause did not oust court’s jurisdiction for urgent interlocutory relief | Evidence — Prima facie case of fraud — Burden of proof — Plaintiffs alleged fraudulent transactions and dissipation of funds by Defendants — Evidence included financial statements, email communications, and cross-examinations — Court found Defendants acted recklessly and inferred knowledge of account freezes — Prima facie case of fraud established — Sansregret v. The Queen test for recklessness applied | Evidence — Hearsay — Affidavits of Global General Counsel — Defendants sought to strike affidavits as hearsay — Court held affidavits provided best available evidence and were necessary for full disclosure on ex parte motion — Evidence of standard business practices and conduct of parties deemed admissible — Affidavits not struck | Civil procedure — Irreparable harm — Dissipation of assets — Plaintiffs argued Defendants dissipated assets to prioritize other creditors — Defendants failed to provide evidence of repayment of funds to Plaintiffs or payment into court — Court found real risk of irreparable harm if Mareva injunction not continued — Dissipation of assets justified continuation of injunction
CanLII | Jul 8, 2020
- keywords: Costs — Substantial indemnity costs
CanLII | Jul 6, 2020
- keywords: Commercial law — Corporations — Arrangements and compromises
CanLII | Jun 25, 2020
- keywords: Bankruptcy and insolvency — Receivership — Claims process — Approval of Receiver’s activities and disbursements — Receiver sought court approval for its Fourth Report, Supplementary Fourth Report, and payment of unsecured creditors — Should the Receiver’s activities, fees, and claims process be approved? — Framework governing court oversight of receivership proceedings | Obligations — Limitation periods — Unsecured creditors — Whether claims of unsecured creditors, other than Tarion, are statute-barred under the Limitations Act, 2002 — Does the expiry of a limitation period extinguish the debtor’s obligation to pay? — Limitations Act, 2002, S.O. 2002, c. 24 — Ontario case law confirms limitation periods bar remedies but not underlying debts | Contracts — Indemnity — Vendor agreement — Tarion Warranty Corporation’s claim for legal fees incurred during receivership — Whether Tarion is entitled to indemnification under the Vendor Agreement — Should the cash collateral arrangement with Tarion be approved? — Vendor Agreement under Ontario New Home Warranties Plan Act, R.S.O. 1990, c. O.31 — Court-approved cash collateral arrangements in real estate insolvency cases | Civil procedure — Court orders — Receivership orders — Stay of proceedings — Whether unsecured creditors must commence proceedings to preserve claims during receivership — Does a court-authorized claims process constitute a new remedy unaffected by limitation periods? — Rules of Civil Procedure, R.R.O. 1990, Reg. 194 — Court’s role in balancing fairness and efficiency in receivership claims processes
CanLII | Jun 19, 2020
- keywords: Sports law — Jurisdiction of Sports Dispute Resolution Centre of Canada — Arbitration Act, 1991 — Canadian Sport Dispute Resolution Code — Challenge to arbitrator’s jurisdiction — Whether the SDRCC has jurisdiction to resolve disputes between a national sports organization and a provincial organization — Standard of review on jurisdictional questions is correctness — Arbitration Act, 1991, S.O. 1991, c. 17, s. 17(8) | Sports law — Membership disputes — Definition of "Sports-Related Dispute" — Whether disputes over membership in a national sports organization fall within the scope of the Canadian Sport Dispute Resolution Code — Membership as participation in a sports organization — Code provisions on jurisdiction and dispute resolution — Canadian Sport Dispute Resolution Code, ss. 1.1(mm), 2.1(a), 2.1(b) | Statutory interpretation — Physical Activity and Sport Act — Jurisdiction of SDRCC — Whether the Act confers jurisdiction on the SDRCC to resolve disputes between sports organizations — Interpretation of "sports dispute" under s. 10(2) — Disputes among sports organizations and disputes involving members or affiliates — Physical Activity and Sport Act, S.C. 2003, c. 2, ss. 4(1), 10(1), 10(2)
CanLII | Jun 18, 2020
- keywords: Bankruptcy and insolvency — Trustees — Duties — Standard of review
CanLII | Jun 18, 2020
- keywords: Bankruptcy and insolvency — Receivership — Sale and Investor Solicitation Process (SISP) — Approval of SISP for Yorkville, Clover, and Halo projects — Whether SISP should proceed for each project — Court approved SISP for Yorkville and Halo but declined for Clover — Governing principles for SISP approval in receivership proceedings | Construction — Condominium development — Receivership — Approval of SISP for large condominium projects — Yorkville, Clover, and Halo projects in various stages of construction — Whether SISP is appropriate for each project — Court considered project-specific factors, including secured debts, unit purchasers, and stakeholder interests | Property — Equity of redemption — Debtor’s right to redeem property in receivership — Whether debtor can pay out secured debts and regain control of Clover project — Court balanced debtor’s equitable rights against potential prejudice to stakeholders — Debtor allowed to redeem Clover project by paying all secured debts and costs | Bankruptcy and insolvency — Adjournment of SISP motion — Halo project — Debtor sought four-week adjournment to finalize financing — Whether adjournment should be granted — Court declined adjournment, finding no sufficient justification — SISP for Halo project approved without stalking horse bid | Civil procedure — Receivership — Communications between bidders and stakeholders — Whether restrictions on communications should be imposed in Halo SISP — Court declined to impose restrictions, emphasizing the importance of stakeholder collaboration — Court left open possibility of addressing fairness or privacy concerns in future case conferences
CanLII | Jun 15, 2020
- keywords: Corporations — Shareholders — Loans — Business Corporations Act — R.S.O. 1990, c. B.6, ss. 253(1), 248 — Rules of Civil Procedure, Rule 14.05
CanLII | Jun 12, 2020
- keywords: Contract law — Real property — Commercial leases — Corporations — Arrangements and compromises — Sale of assets
CanLII | Jun 10, 2020
- keywords: Companies’ Creditors Arrangement Act — R.S.C. 1985, c. C-36 as amended, s. 10(3)
CanLII | Jun 8, 2020
- keywords: Civil procedure — Sealing orders — Defamatory Comments — Litigation privilege — S. 19(1) of the Courts of Justice Act — R.S.O. 1990, c. C.43, s. 135(2), (3)
CanLII | Jun 4, 2020
- keywords: Corporations — Oppression — Reasonable expectations — Contract law — Interpretation — Limitations Act — Real Property Limitations Act
CanLII | Jun 3, 2020
- keywords: Civil procedure — Recognition and enforcement of foreign judgments — Application versus action — Applicant sought recognition and enforcement of a New York judgment in Ontario — Respondents argued the proceeding should have been brought as an action rather than an application — Are applications appropriate for recognizing and enforcing foreign judgments? — Applications are permissible where no material facts are in dispute, even for foreign judgments from non-reciprocating jurisdictions | International law — Recognition and enforcement of foreign judgments — Real and substantial connection — Public policy and natural justice — Ontario court recognized and enforced a New York judgment — Did the New York court have jurisdiction, and was the judgment final and conclusive? — Ontario courts recognize foreign judgments where jurisdiction, finality, and fairness requirements are met | Evidence — Conflict of interest — Public policy and natural justice — Respondents alleged conflict of interest involving applicant’s legal counsel in New York proceedings — Did the alleged conflict preclude recognition and enforcement of the judgment? — Defences not raised in the foreign court cannot be raised in Ontario enforcement proceedings absent unusual circumstances
CanLII | May 21, 2020
- keywords: Bankruptcy and insolvency — Transfers at undervalue — Personal liability — Payments made by a bankrupt company to non-arm’s length parties, including family members and a related company, during the 12 months preceding bankruptcy — Whether payments are void under s. 96(1)(b) of the Bankruptcy and Insolvency Act — Whether the principal of the bankrupt company is personally liable for the payments — Governing rule under s. 96(1)(b) of the BIA | Bankruptcy and insolvency — Preferences — Payments to third-party supplier — Payments made by a bankrupt company to a third-party supplier within three months preceding bankruptcy — Whether payments are void as preferences under s. 95(1)(a) of the Bankruptcy and Insolvency Act — Presumption of intent to prefer under s. 95(2) — Payments found to be made in the ordinary course of business — Governing rule under s. 95 of the BIA | Civil procedure — Limitation periods — Bankruptcy proceedings — Whether the initiation of a motion in a bankruptcy proceeding constitutes the commencement of a proceeding for the purposes of the Limitations Act, 2002 (Ontario) — Application of s. 4 of the Limitations Act to bankruptcy motions — Governing rule under the Limitations Act and Bankruptcy and Insolvency Act
CanLII | May 14, 2020
- keywords: Civil procedure — Contempt of court — Breach of Mareva Order — Continuation Order — Defendants encumbered property and dissipated rental income in violation of court orders — Did the Defendants act deliberately and willfully in breach of the orders? — Test for civil contempt from Carey v. Laiken applied — Orders must be clear, knowledge of orders must exist, and breach must be intentional — Contempt established beyond a reasonable doubt | Evidence — Affidavits — Credibility — Defendants’ affidavits and submissions found not credible — Defendants claimed ignorance of breach due to bad advice and online research — Court rejected explanations as implausible given Defendants’ real estate expertise — Evidence assessed under R. v. W.(D.) framework — Court found no reasonable doubt regarding Defendants’ contempt | Criminal procedure — Standard of proof — Civil contempt as quasi-criminal — Plaintiffs required to prove contempt beyond a reasonable doubt — Presumption of innocence and burden of proof applied — Court assessed evidence under criminal standard — Defendants’ evidence failed to raise reasonable doubt | Property — Mareva injunction — Encumbrance of property — Dissipation of rental income — Defendants placed mortgage on property and failed to preserve rental income in trust — Plaintiffs entitled to accounting and tracing of funds — Court ordered hearing on remedies and sanctions for contempt — Mareva Order and Continuation Order upheld
CanLII | Apr 23, 2020
- keywords: Civil procedure — Mareva injunction — Risk of dissipation of assets — Applicant sought Mareva injunction to prevent Respondents from transferring or dissipating assets — Whether Applicant established a strong prima facie case, risk of dissipation, and irreparable harm — Balance of convenience and adequacy of undertaking as to damages considered — Test for Mareva injunction from Chitel v. Rothbart applied — Motion for Mareva injunction dismissed | Contracts — Breach of co-ownership agreement — Financial reporting obligations — Applicant alleged Respondents failed to provide financial statements and cash surplus statements as required under the co-ownership agreement — Whether Respondents’ failure constituted a breach — Court found all parties bore responsibility for non-compliance with agreement terms — No strong prima facie case established | Business associations — Breach of Distribution Order — Related-party transactions — Applicant alleged Respondents breached court order by making unauthorized payments to related parties — Inspector’s reports highlighted deficiencies in financial documentation and related-party payments — Respondents argued payments were approved by cost consultant and guarantor — Court found insufficient evidence of breach by Respondents | Construction — Release of funds held in trust — Respondents sought release of $140,704.38 held by Brattys LLP to reimburse costs for obtaining Clearance Certificate — Applicant opposed release of funds — Court found no response from Applicant to Respondents’ motion — Motion for release of funds allowed | Evidence — Undertaking as to damages — Adequacy of undertaking — Applicant provided undertaking backed by non-party with limited assets — Respondents argued undertaking lacked substance and was disproportionate to allegations — Court found undertaking insufficient to support Mareva injunction — Undertaking as to damages critical in injunction motions
CanLII | Apr 16, 2020
- keywords: Business associations — Oppression remedy — Share purchase — Court-ordered repurchase of minority shareholder's shares to rectify oppression — Plaintiff's shares held through a holding company — Appropriate transaction structure determined based on fair value, reasonable expectations, and financial risks — Canada Business Corporations Act, R.S.C. 1985, c. C-44, s. 241(3) | Securities — Share repurchase — Transaction structure — Plaintiff sought tax-efficient structure for share purchase — Court rejected plaintiff's proposal as inconsistent with reasonable expectations — Prior transactions and holding company structure considered in determining reasonable expectations — Canada Business Corporations Act, R.S.C. 1985, c. C-44, s. 241(3) | Statutory interpretation — Oppression remedy — Reasonable expectations — Scope of reasonable expectations under section 241(3) of the Canada Business Corporations Act — Plaintiff's tax minimization strategy not determinative of reasonable expectations — Court emphasized fairness and financial risks in structuring the remedy | Taxation — Share purchase — Tax liability — Plaintiff sought to minimize tax liability through specific transaction structure — Court considered tax implications but prioritized fairness and financial risks to defendants — Tax neutrality insufficient to override other considerations
CanLII | Apr 8, 2020
- keywords: Business associations — Oppression remedy — Shareholder disputes — Allegations of oppressive conduct under section 248 of the Business Corporations Act — Whether the respondent’s management of the corporation violated reasonable shareholder expectations — Test for oppression from BCE Inc. v. 1976 Debentureholders applied — No oppressive conduct found — Business Corporations Act, R.S.O. 1990, c. B16, s. 248 | Business associations — Shareholder rights — Shareholdings and loans — Determination of shareholders and their respective shareholdings — Shareholder loans and equity contributions — Shareholder structure confirmed based on agreements and financial records — Respondent owns 57.5% of shares — Shareholder loans as of August 31, 2017 determined | Evidence — Misappropriation of funds — Allegations of cash misappropriation by respondent — Analysis of cash transactions and financial records — Expert forensic accounting evidence accepted — No evidence of significant cash misappropriation — Burden of proof not met | Civil procedure — Shareholder agreements — Enforcement of buy-sell provisions — Respondent’s buy-sell offer under shareholders’ agreement not enforced due to discrepancies in shareholder loan valuation — Parties directed to resolve separation of interests — Business Corporations Act, R.S.O. 1990, c. B16, s. 253
CanLII | Apr 3, 2020
- keywords: Breach of contract — Non-payment — Default administration fees — Self-represented litigant
CanLII | Mar 31, 2020
- keywords: Contracts — Interpretation — Gaming Revenue Sharing and Financial Agreement (GRSFA) — Revenue sharing — Modernization of gaming operations — Whether the majority’s interpretation of the GRSFA was unreasonable — Majority concluded that Ontario and OLG breached the GRSFA by ceasing to share non-gaming revenue and complimentary services revenue — Reasonableness standard applied — Interpretation consistent with the purpose and language of the GRSFA | Constitution — Honour of the Crown — Government-to-government agreements — Reconciliation — Whether the honour of the Crown doctrine applies to the GRSFA — Majority held that the GRSFA, while not a treaty, engaged the honour of the Crown due to its role in reconciliation and advancing First Nations’ growth — Doctrine provided moral support but did not determine the contractual interpretation | Obligations — Breach of contract — Damages — Remedy — Whether the majority’s order for damages was unreasonable — Majority awarded damages equivalent to 1.7% of gross revenues, including non-gaming and complimentary services revenue, as per the GRSFA — Damages aimed to place First Nations in the position they would have been in had the contract been performed — Reasonable and consistent with contractual principles
CanLII | Mar 31, 2020
- keywords: Class action — Securities Commission v. Gestion de Placements Norshield
CanLII | Mar 31, 2020
- keywords: Bankruptcy and insolvency — Receivership versus CCAA — Competing applications for receivership under the Bankruptcy and Insolvency Act and protection under the Companies’ Creditors Arrangement Act — Secured creditors opposed CCAA protection and sought receivership — Should a receivership or CCAA proceeding be preferred? — Balancing stakeholder interests, including creditors, employees, and equity holders — Governing principles for determining the appropriateness of a receivership versus CCAA protection | Contracts — Security agreements — Secured creditors’ rights — Receivership sought under contractual rights in lending agreements — Secured creditors held first-ranking security interests and blocking positions — Did the secured creditors have a prima facie right to a receivership? — Contractual rights to receivership upheld where security is at risk and confidence in management is lost | Evidence — Financial irregularities — Loss of confidence in management — Allegations of financial misconduct, including dual accounting records and misuse of funds — Debtors failed to refute allegations of financial wrongdoing — Were the allegations sufficient to justify the loss of confidence in management? — Evidentiary burden met through affidavits and pre-filing reports | Property — Stakeholder interests — Condominium purchasers and equity holders — Impact of receivership on unit purchasers and equity holders — Should the court consider the interests of stakeholders in determining the appropriate remedy? — Receivership preferred where equity holders’ interests conflict with secured creditors’ rights | Construction — Single-purpose land development — Nature of business and financing arrangements — Applicability of CCAA to single-purpose land development companies — Does the nature of the business affect the appropriateness of a CCAA proceeding? — Courts weigh secured creditors’ priorities and the economic viability of projects
CanLII | Mar 30, 2020
- keywords: Contract law — Interpretation — Stay — Judgments and orders — Civil procedure — Bankruptcy and Insolvency Act — R.S.C. 1985, c. B-3, s. 193 — Personal Property Security Act — R.S.O. 1990, c. P.10 — Repair and Storage Liens Act
CanLII | Mar 18, 2020
- keywords: Civil procedure — Costs — Determination of successful party — Plaintiffs sought over $16 million in damages but were awarded only $2,000 in nominal damages — Defendants argued they were the successful parties as they resisted the plaintiffs’ claims — Who were the successful parties in the litigation for the purposes of awarding costs? — Defendants deemed successful as plaintiffs failed to establish causation for claimed damages | Professional responsibility — Breach of fiduciary duty — Costs reduction — Defendants, a law firm and lawyer, found to have breached fiduciary duties but caused no damages — Should the costs awarded to the successful parties be reduced due to findings of breach of fiduciary duty? — Costs reduced by 25% to reflect breaches of fiduciary duty | Civil procedure — Costs — Quantum of costs — Rule 57.01(1) factors — Lengthy and complex litigation involving professional liability and fiduciary duty issues — What is the appropriate quantum of costs to be awarded? — Costs fixed at $925,000 on a partial indemnity basis, reduced from $1,261,235 to account for fiduciary breaches
CanLII | Mar 10, 2020
- keywords: Construction — Lien priorities — Registered mortgages — Competing claims — Lien claimants prioritized under section 78(1) over a third-ranking mortgage registered after the first lien arose — Section 78(1) interpreted as the overarching principle granting construction lien claimants primary priority against subsequent mortgages — Claims that lien priority can only be displaced by exceptions under section 78 — Burden of proof on the mortgagee to establish one of the specified exceptions | Construction — Building mortgages — Interpretation of section 78(2) — Third-ranking mortgage registered after project commencement — Mortgage securing funds advanced before registration cannot be classified as a "building mortgage" under section 78(2) — Advances not made contemporaneously with mortgage registration failed to prioritize — Advances contrasted between secured funds and amounts specifically advanced for financing improvement — Interpretation consistent with protecting lien claimants under the Construction Act | Construction — Mortgage priority — Retrospective securing of funds — Advances made before mortgage registration, subsequently secured, do not displace lien claimants' priority under sections 78(5) and 78(6) — Distinction between "amounts secured" and "amounts advanced" under a mortgage emphasized in previous case law — Legislative intent favors lien claimants' priority over mortgages registered after liens arise | Civil procedure — Costs — Award of costs in lien priority disputes — Costs awarded to successful parties in lien priority motions — $25,000 awarded to lien claimants as agreed by parties — Costs based on settled judicial criteria
CanLII | Mar 10, 2020
- keywords: Business associations — Oppression remedy — Prima facie case — Termination of employment — Memoranda of Understanding (MOUs) — Alleged partnership interests — Plaintiffs alleged oppression under section 248(3) of the OBCA — Did the Plaintiffs establish a prima facie case of oppression? — Conduct inconsistent with partnership agreements and financial entitlements — BCE Inc. v. 1976 Debentureholders test applied | Civil procedure — Certificate of Pending Litigation (CPL) — Equitable relief — Triable issue regarding interest in land — Plaintiffs sought CPL over properties owned by Defendants — Defendants argued disproportionate harm to business reputation and lending agreements — Should a CPL be granted? — CPL denied due to lack of direct interest in land and potential harm to Defendants | Statutory interpretation — Ontario Business Corporations Act (OBCA) — Standing to seek appointment of inspector — Broad definition of “complainant” under section 248 — Plaintiffs alleged beneficial ownership of shares in Defendant corporations — Do the Plaintiffs have standing under the OBCA? — Court found Plaintiffs had standing as “proper persons” under section 248 | Access to information — Appointment of inspector — Financial records — Plaintiffs sought inspector to investigate alleged partnership interests and financial entitlements — Defendants denied access to records, citing discovery process — Should an inspector be appointed? — Inspector appointed to access records and determine Plaintiffs’ interests — Trackcom Systems International Inc. v. Trackcom Systems Inc. factors applied
CanLII | Mar 3, 2020
- keywords: Professional responsibility — Conflict of interest — Joint representation — Law firm retained by corporation — Allegation of joint retainer with officers and directors — Retainer letters explicitly stated representation limited to corporation — No evidence of personal retainer or independent legal advice failure — Should the law firm be removed as counsel of record due to conflicting duties? — Court held no disqualifying conflict of interest existed | Evidence — Lawyers as witnesses — Oppression application — Applicant alleged high probability of calling law firm lawyers as witnesses — No determination made to call witnesses or convert application to action — Should the law firm be removed as counsel of record because its lawyers may testify? — Court held removal unwarranted at this stage due to speculative nature of evidence | Civil procedure — Costs — Motion to remove counsel of record dismissed — Respondents entitled to costs — Costs fixed at $30,000 on a partial indemnity basis — Factors under Rule 57.01 of the Rules of Civil Procedure considered — What is the appropriate cost award for the motion? — Court awarded costs reflecting fairness and reasonableness
CanLII | Feb 28, 2020
- keywords: Contract law — Sale of shares — Right of first refusal — Renegotiation
CanLII | Feb 21, 2020
- keywords: Bankruptcy and insolvency — Equalization claims — Trustee's authority — Bankruptcy trustee sought to commence an equalization claim under the Family Law Act after neither spouse initiated such a claim — Does the Bankruptcy and Insolvency Act empower a trustee to initiate an equalization claim? — Equalization claims are inchoate until exercised by a spouse and cannot be initiated by a trustee — Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3, s. 71; Family Law Act, R.S.O. 1990, c. F.3, s. 7 | Family — Equalization of net family property — Personal nature of claims — Equalization claims under the Family Law Act are personal as between spouses and do not constitute "property" under the Bankruptcy and Insolvency Act until exercised — Can a trustee in bankruptcy claim equalization rights on behalf of a bankrupt spouse? — Equalization rights remain inchoate and non-assignable until exercised — Family Law Act, R.S.O. 1990, c. F.3, s. 5; Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3, s. 67 | Constitution — Federal paramountcy — Conflict between federal and provincial statutes — Bankruptcy trustee argued that section 7 of the Family Law Act is constitutionally inoperative under the doctrine of federal paramountcy — Does the doctrine of federal paramountcy apply when equalization rights are not exercised? — No conflict arises as unexercised equalization rights are not "property" under either statute — Family Law Act, R.S.O. 1990, c. F.3, s. 7; Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3, s. 72
CanLII | Feb 19, 2020
- keywords: Commercial law — Contract law — Interpretation — Practice — Trials
CanLII | Feb 18, 2020
- keywords: Bankruptcy and insolvency — Receivership — Distribution of funds — Court-appointed receiver seeking advice and directions regarding distribution of proceeds from the sale of property — Whether the second mortgage registered by the debtor is valid and enforceable — Whether equitable remedies are available if the mortgage is invalid — Governing principles for receivership proceedings and distribution of funds under court supervision | Property — Mortgages — Validity and enforceability — Second mortgage registered by Money Gate Mortgage Investment Corporation on Dovercourt property — Whether the mortgage was validly authorized under corporate resolutions — Whether email communications constituted consent to the mortgage — Governing principles for determining the validity of registered mortgages | Business associations — Corporate governance — Shareholder resolutions — Whether a unanimous shareholder resolution restricting borrowing and encumbering property invalidates a mortgage registered without formal written consent — Application of the Ontario Business Corporations Act to internal procedural failures — Indoor Management Rule and its applicability to third-party transactions | Civil procedure — Leave to proceed — Fraud Action — Non-party seeking to lift stay of proceedings to pursue Fraud Action against the receiver — Whether leave of the court is required under the Receivership Order — Consequences of failing to obtain leave before commencing proceedings — Governing principles for leave in receivership contexts | Civil procedure — Summary judgment — Motion for advice and directions — Whether the evidence presented by the receiver meets the threshold for summary judgment — Application of the "full appreciation test" to determine whether a trial is necessary — Governing principles for summary judgment in the context of receivership disputes
CanLII | Feb 5, 2020
- keywords: Civil procedure — Costs — Substantial indemnity costs — Plaintiffs sought substantial indemnity costs based on defendants’ alleged dishonest conduct during litigation and pre-litigation — Whether substantial indemnity costs were warranted — Court held substantial indemnity costs are rarely granted and not justified in this case — Rule 57.01(1) factors and principles governing costs awards applied | Civil procedure — Costs — Quantum of costs — Plaintiffs sought $4.36 million on a partial indemnity basis — Defendants argued this was excessive — Court reviewed detailed bill of costs and reduced award to $2.2 million — Overriding principle of fairness and reasonableness applied — Rule 57.01(1) and comparable case law considered | Civil procedure — Costs — Apportionment of costs — Annex Fund Claim, Xtreme Labs Claim, and Counterclaim — Court allocated costs based on complexity and time spent on each claim — Costs apportioned among defendants, with joint and several liability for Xtreme Labs Claim — Rule 57.01(1) and equitable allocation principles applied | Evidence — Costs of expert evidence — Plaintiffs claimed costs for expert preparation and reports — Court discounted expert fees due to limited value of evidence at trial — Costs for experts assessed based on their contribution to the case — Rule 57.01(1) and proportionality principles applied
CanLII | Feb 4, 2020
- keywords: Contract law — Partnership agreements — Interpretation — Civil procedure — Payment into Court
CanLII | Jan 30, 2020
- keywords: Civil procedure — Costs — Jurisdictional disputes — Applications and cross-applications dismissed — No costs awarded to either party despite submissions — Should costs be awarded to either party in light of the outcomes of the application, motion, and cross-application? — Governing principle that costs are discretionary and depend on the circumstances of the case | Torts — Misconduct — Exceptional circumstances — Allegations of significant misconduct by one party, including unlawful use of equipment and regulatory defenses — Does the conduct of the parties, including alleged misconduct and regulatory defenses, constitute exceptional circumstances justifying a departure from the usual costs principles? — Exceptional circumstances may justify deviation from standard costs principles | Contracts — Divided success — Jurisdictional and contractual disputes — Cross-application and motion dismissed, but jurisdictional issue resolved in favor of one party — Should the court consider divided success or exceptional circumstances in determining costs in proceedings involving jurisdictional and contractual disputes? — Costs principles consider success, divided success, and exceptional circumstances
CanLII | Jan 29, 2020
- keywords: Bankruptcy and insolvency — Receivership — Security interests — Intellectual property — Applicant sought declaration that trademarks used by the Debtor were subject to its security interest under a General Security Agreement — Whether intellectual property, including trademarks, was part of the Debtor’s assets in the receivership — Court held trademarks were property of the Debtor and subject to the Applicant’s security — Governing principles of receivership and secured creditor rights | Evidence — Credibility of witnesses — Burden of proof — Applicant challenged the credibility of the Debtor’s principal regarding the ownership and transfer of trademarks — Whether the evidence supported the Applicant’s claim that the trademarks were part of the Debtor’s assets — Court found the Debtor’s evidence lacked credibility and accepted the Applicant’s evidence — Framework for assessing credibility and burden of proof in commercial disputes | Intellectual property — Trademarks — Fraudulent conveyance — Applicant alleged that the Debtor fraudulently conveyed trademarks to a related entity for nominal consideration to defeat creditors — Whether the transfer of trademarks was void under the Fraudulent Conveyances Act — Court found badges of fraud, including nominal consideration and continued use of trademarks by the Debtor — Trademarks declared fraudulently conveyed and transfer void — Application of the Fraudulent Conveyances Act to intellectual property
CanLII | Jan 28, 2020
- keywords: Contract law — Solvation Contracts — Contracts Interpretation — Standard of review — Ontario’s Electricity Act, 1998 — S.O. 1998, c. 15 — A, s. 2.4(6)(a)(iv)(D)
CanLII | Jan 24, 2020
- keywords: Business associations — Oppression remedy — Directors — Corporate governance — Majority Voting Policy — Whether Baylin’s Majority Voting Policy violated the reasonable expectations of the complainants under section 248 of the OBCA — Policy found to be oppressive, unfairly prejudicial, and in breach of reasonable expectations — Remedy under section 248(3) of the OBCA — Policy set aside, and director entitled to complete term | Securities — Corporate governance — Majority Voting Policy — TSX Majority Voting Requirement — Whether Baylin’s Majority Voting Policy complied with TSX requirements — Policy found to deviate materially from TSX Majority Voting Requirement — Policy’s implementation and purpose inconsistent with TSX objectives — Policy invalidated | Contracts — Asset Purchase Agreement — Consulting Agreement — Right of set-off — Whether Baylin entitled to exercise set-off under APA to prevent release of shares under Consulting Agreement — Share certificates deemed “paid” and not subject to set-off — Shares ordered to be released in accordance with Consulting Agreement terms
CanLII | Jan 23, 2020
- keywords: Contract law — Real property — Commercial leases — Injunctions
CanLII | Jan 23, 2020
- keywords: Civil procedure — Summary judgment — Recovery of funds — Fraudulent transactions — Banks sought recovery of funds paid under a mistake of fact — Defendant moved for summary judgment, arguing no genuine issue requiring a trial — Should summary judgment be granted in this case? — Test for summary judgment under Rule 20 of the Rules of Civil Procedure and Hryniak v. Mauldin, 2014 SCC 7 | Obligations — Money paid under a mistake of fact — Recovery of funds — Banks transferred funds to defendant’s account under a mistake of fact caused by fraud — Defendant argued it changed its position in good faith — Did the defendant change its position in good faith, barring recovery? — Test for recovery of money paid under a mistake of fact from B.M.P. Global Distribution Inc. v. Bank of Nova Scotia, 2009 SCC 15 | Evidence — Good faith and due diligence — Anti-money laundering compliance — Defendant’s evidence of compliance with Canadian anti-money laundering laws challenged by expert reports — Competing expert opinions on whether defendant’s practices met legal standards — Did the defendant act in good faith and comply with anti-money laundering obligations? — Assessment of evidence under the best evidence rule and FINTRAC guidelines | Torts — Fraud — Two innocent parties to a fraud — Banks argued defendant was not entitled to rely on the “two innocent parties” principle — Defendant claimed banks were better positioned to prevent the fraud — Does the principle of two innocent victims of a fraud apply in this case? — Analysis of relative fault and carelessness under Rogers v. Priyance Hospitality Inc., 2016 ONSC 7851
CanLII | Jan 8, 2020
- keywords: Professional responsibility — Fiduciary duty — Conflict of interest — Lawyer acted for adverse party in mediation and negotiation of New Supply Agreement — Did the lawyer breach fiduciary duty by acting in a conflict of interest? — Test from MacDonald Estate v. Martin applied — Lawyer found to have breached fiduciary duty but no causal link to plaintiffs’ losses | Professional responsibility — Standard of care — Duty to warn — Law firm failed to warn client about lawyer’s conflict of interest — Did the law firm breach the standard of care? — Duty to advise clients of risks associated with conflicts of interest — Breach of standard of care found but no causation established | Contracts — Supply agreements — Positive sales obligations — Law firm failed to include positive sales obligations in New Supply Agreement — Did the law firm breach the standard of care in drafting the agreement? — Context of commercial objectives and settlement terms considered — No breach of standard of care found | Professional responsibility — Fiduciary duty — Informed consent — Law firm acted for two adverse clients without obtaining informed consent — Was the waiver of conflict effective? — Waiver found ineffective due to lack of full disclosure — Breach of fiduciary duty established but no damages claimed | Civil procedure — Limitations — Discoverability — Plaintiffs alleged professional negligence and breach of fiduciary duty — Were the claims barred by the limitation period? — Limitation period did not begin until plaintiffs ceased being clients of the law firm — Claim found to be within the limitation period
CanLII | Jan 6, 2020
- keywords: Civil procedure — Contempt of court — Mareva injunction — Breach of court orders — Plaintiff alleged that defendants sold properties in violation of Mareva injunction orders — Whether defendants intentionally breached the orders — Test for contempt requires clear and unequivocal order, knowledge of the order, and intentional breach — No contempt found due to plaintiff’s failure to fulfill its obligations under the orders — Carey v. Laiken test applied | Evidence — Fraudulent conveyance — Real property — Plaintiff alleged that properties were purchased with illicit funds — No evidence adduced to show that properties were acquired with fraudulently obtained funds — Whether evidence supported claims of fraudulent conveyance — Plaintiff admitted no evidence existed to support claims — Burden of proof not met | Obligations — Doctrine of merger — Delay in prosecution — Plaintiff’s claims against Mrs. Plate dismissed — Whether claims merged with prior judgment or should be dismissed for delay — Doctrine of merger precluded further claims after judgment on annuities — Delay of over ten years found inordinate and inexcusable — Prejudice to defendant presumed due to fading memories and health issues | Property — Set-off — Restitution order — Costs award — Plaintiff sought to set off costs award payable to Mr. Plate against restitution amount owed by him — Whether set-off was permissible — Claims interwoven and mutual credit established — Set-off allowed as restitution amount accrued to plaintiff’s benefit — Burman v. Rosin principles applied | Civil procedure — Stay of proceedings — Costs award — Defendant sought stay of plaintiff’s action for failure to pay costs award — Whether plaintiff’s failure to pay costs justified stay — Plaintiff entitled to set off costs against restitution owed by defendant — No evidence of bad faith or malice by plaintiff — Stay denied
CanLII | Jan 2, 2020
- keywords: Bankruptcy and insolvency — CCAA — Initial stay period — Relief limited to ordinary course operations — Applicants sought creditor protection under the CCAA — Section 11.001 restricts relief during the initial 10-day stay period to measures necessary for debtor operations in the ordinary course of business — Did s. 11.001 prohibit early extension of the stay on December 23, 2019? — The stay extension aligns with s. 11.001’s intent to maintain the status quo absent exceptional circumstances | Bankruptcy and insolvency — CCAA — Motion to extend initial stay — Additional time requested for discussions with lenders and stakeholders — Unopposed extension motion supported by Monitor and stakeholders — Should the stay period extend to January 23, 2020? — Circumstances justify granting stay extension to allow financing discussions and maintain operational stability
CanLII | Jan 2, 2020
- keywords: Bankruptcy and insolvency — Cross-border insolvency — Recognition of foreign proceedings — U.S. Bankruptcy Court issued a Preliminary Injunction Order pausing opioid-related litigation — Canadian court asked to recognize and enforce the order under the Companies’ Creditors Arrangement Act (CCAA) — Should the court recognize the U.S. Preliminary Injunction Order to support a global resolution of claims? — Principles of comity and cooperation under section 52(1) of the CCAA applied | Health — Opioid crisis — Pharmaceutical companies — Global settlement — Purdue Pharma and related entities facing extensive opioid-related litigation in Canada and the U.S. — Should the court grant a stay of proceedings in Canada to facilitate a global resolution of opioid-related claims? — Stay necessary to prevent financial drain and ensure equitable treatment of stakeholders | Civil procedure — Class actions — Stay of proceedings — Quebec Opioid Class Action opposed inclusion in the Related Party Stay Order — Should the Quebec Opioid Class Action be excluded from the stay? — Court held that excluding the Quebec action would frustrate the collective process and global resolution efforts | International law — Comity — Cross-border insolvency — Canadian court asked to cooperate with U.S. Bankruptcy Court in Chapter 11 Proceedings — Does the Quebec Opioid Class Action fall outside the scope of the Chapter 11 Proceedings? — Court found Quebec Purdue Defendants to be associated entities of the Chapter 11 Debtors, justifying inclusion in the stay
CanLII | Dec 30, 2019
- keywords: Bankruptcy and insolvency — CCAA protection — Insolvency criteria — Applicants sought creditor protection under the Companies’ Creditors Arrangement Act (CCAA) due to liquidity issues and defaults on obligations — Do the Applicants meet the criteria for CCAA protection? — Applicants deemed insolvent with liabilities exceeding $5 million — CCAA, s. 11.02(1) | Bankruptcy and insolvency — Stay of proceedings — Extension to Non-Applicant Parties — Applicants requested extension of the CCAA stay to affiliated entities to stabilize operations — Should the stay be extended to Non-Applicant Parties? — Stay extended to Non-Applicant Parties due to business integration and shared obligations — CCAA jurisprudence applied | Bankruptcy and insolvency — Monitor appointment — Alvarez & Marsal Canada Inc. proposed as monitor — Is it appropriate to appoint Alvarez & Marsal Canada Inc. as monitor? — Monitor appointment approved under s. 11.7 of the CCAA — Monitor supported by Applicants and stakeholders | Civil procedure — Jurisdiction — Appropriate venue — Applicants argued Ontario was the proper venue due to business operations and assets in Ontario — Is Ontario the appropriate venue for this proceeding? — Ontario deemed appropriate jurisdiction based on nexus to Applicants’ operations and assets | Bankruptcy and insolvency — Charges — Administration and D & O Charges — Applicants sought Administration Charge of US $350,000 and D & O Charge of $200,000 — Should the court grant the requested charges? — Charges granted as reasonably necessary for continued operations during the Initial Stay Period — CCAA, ss. 11.51, 11.52 | Bankruptcy and insolvency — Stay extension — Timing of stay extension — Applicants requested immediate extension of stay beyond the statutory 10-day period due to holiday schedules — Should the stay extension be granted immediately? — Stay extension denied; court emphasized statutory 10-day limit absent exceptional circumstances — CCAA, s. 11.02(1)
CanLII | Dec 24, 2019
- keywords: Civil procedure — Dismissal for delay — Inordinate and inexcusable delay — Plaintiff failed to advance litigation for over nine years — Defendants moved to dismiss the action for delay — Should the plaintiff’s action be dismissed for inordinate and inexcusable delay? — Rule 24.01 of the Rules of Civil Procedure and inherent jurisdiction to dismiss actions for delay | Evidence — Prejudice from delay — Fading memories and unavailability of witnesses — Allegations of fraud requiring viva voce evidence — Does the delay create a substantial risk that a fair trial is no longer possible? — Presumption of prejudice arising from inordinate delay — Plaintiff failed to rebut presumption of prejudice | Civil procedure — Costs — Full indemnity costs — Defendants sought costs following dismissal of plaintiff’s action — Are the defendants entitled to costs on a full indemnity basis? — Rule 57.01(1) of the Rules of Civil Procedure governing costs awards
CanLII | Dec 20, 2019
- keywords: Civil procedure — Summary judgment — Genuine issue requiring trial — Defendants sought summary judgment to enforce a Settlement Agreement and dismiss the plaintiffs’ claims — Plaintiffs alleged misrepresentation, unconscionability, duress, and undue influence — Complex factual matrix and credibility issues identified — Court held that discovery was necessary to resolve disputed facts and assess credibility — Summary judgment motion dismissed as premature — Hryniak v. Mauldin framework applied | Contracts — Settlement Agreement — Enforceability — Plaintiffs alleged Settlement Agreement was unconscionable, entered into under duress, and influenced by undue influence — Defendants argued plaintiffs had independent legal advice and voluntarily entered the agreement — Dispute over misrepresentation regarding intellectual property rights and patent ownership — Court found genuine issues requiring trial on enforceability of the agreement — Principles of contract law and unconscionability analyzed | Evidence — Discovery — Necessity of discovery — Plaintiffs argued discovery was required to address complex factual and legal issues, including misrepresentation and oppression claims — Defendants opposed further discovery, asserting no genuine issue requiring trial — Court held that discovery was necessary to develop a complete evidentiary record and assess credibility — Combined Air Mechanical Services Inc. v. Flesch and George Weston Ltd. v. Domtar Inc. considered
CanLII | Dec 19, 2019
- keywords: Contracts — Settlement agreements — Breach of settlement terms — Lender voided settlement agreement after defendants opposed sale approval motion — Defendants argued breach caused no material prejudice and sought relief from forfeiture — Should the lender be entitled to void the settlement and demand full loan repayment? — Relief from forfeiture granted under section 98 of the Courts of Justice Act to prevent disproportionate consequences | Obligations — Relief from forfeiture — Equitable remedy — Defendants breached settlement agreement by opposing sale approval motion — Court considered conduct of defendants, gravity of breach, and disparity between forfeiture and harm caused — Should relief from forfeiture be granted? — Relief granted as breach caused minimal prejudice and lender received full or near-full settlement amount | Statutory interpretation — Interest Act — Section 8 — Increased interest rate of 25% and default administration fees challenged as penalties on arrears — Borrowers argued charges contravened section 8 of the Interest Act — Were the charges enforceable under the Interest Act? — Court held charges enforceable as they were agreed upon in settlement and did not violate section 8
CanLII | Dec 13, 2019
- keywords: Business associations — Oppression remedy — Share repurchase — Jurisdiction — Plaintiffs sought a court order requiring the defendants to repurchase shares in a manner that is tax efficient — Does the court have jurisdiction under section 241(3) of the Canada Business Corporations Act to determine the structure of the share repurchase? — Court held it has jurisdiction to address the transaction structure as part of the oppression remedy | Securities — Share repurchase — Transaction structure — Plaintiffs argued that the defendants should purchase shares of the holding company instead of Pier 21 shares directly — Defendants opposed, citing potential liabilities — Should the defendants be required to purchase the holding company’s shares? — Court deferred decision on the merits but established a process for resolving the issue | Civil procedure — Functus officio — Post-trial issues — Plaintiffs raised the issue of transaction structure after trial — Defendants argued the court lacked jurisdiction as the issue was not pleaded — Can the court address the issue post-trial? — Court held it was not functus officio as the issue was reserved in prior reasons and judgment had not been finalized | Taxation — Tax efficiency — Share repurchase — Plaintiffs proposed a transaction structure to minimize tax implications for the plaintiff and maintain neutrality for the defendants — Defendants opposed, citing potential tax and regulatory risks — Should tax efficiency influence the structure of the share repurchase? — Court found it appropriate to consider tax implications as part of the transaction structure
CanLII | Dec 13, 2019
- keywords: Civil procedure — Judicial authority — Scope of authority of a judge — Judge assigned to hear a case reconsidered an interlocutory evidentiary ruling made by a different judge no longer presiding over the application — Does the assigned judge have authority to revisit a previous evidentiary ruling? — Authority affirmed, provided that robust procedural fairness is maintained | Evidence — Admissibility of fresh evidence — Judicial review of arbitral tribunal’s jurisdiction — New evidence introduced to challenge tribunal’s decision on jurisdiction under Articles 16 and 34 of the Model Law — Is fresh evidence admissible as of right? — Fresh evidence not admissible as of right; admissibility requires satisfaction of established legal test | International law — Arbitration — Review of arbitral tribunal decisions — UNCITRAL Model Law Articles 16 and 34 — Procedure for judicial review of arbitral jurisdiction by seat court — Does the review process allow for unrestricted filing of fresh evidence? — Review of arbitral jurisdiction is not a trial de novo; evidence limited by procedural fairness and diligence requirements | Evidence — Test for fresh evidence — Application of R. v. Palmer — Russian Federation sought to introduce additional expert evidence in judicial review, arguing the tribunal's legal reasoning was flawed — What standard governs admissibility of fresh evidence? — Palmer test applied: evidence must meet relevancy, credibility, and due diligence criteria for admission
CanLII | Dec 13, 2019
- keywords: Bankruptcy and insolvency — Companies’ Creditors Arrangement Act (CCAA) — Amendments — Relief sought — Applicants sought relief under the CCAA consistent with amendments effective November 1, 2019 — Whether the relief sought was reasonably necessary for continued operations — Section 11.001 of the CCAA limits initial orders to measures necessary to avoid liquidation — Relief granted as consistent with the amendments and necessary for business stability | Bankruptcy and insolvency — Stay of proceedings — Extension — Applicants sought to extend the stay of proceedings to December 31, 2019 — Whether the extension was appropriate to maintain business stability and protect value — Stay granted as applicants acted in good faith, and the Monitor supported the extension | Bankruptcy and insolvency — DIP financing — DIP charge — Applicants sought approval of DIP financing and DIP charge — Whether the financing was reasonably necessary to maintain liquidity and preserve enterprise value — DIP financing approved as necessary for continued operations and supported by the Monitor | Bankruptcy and insolvency — Administration charge — Directors’ charge — Applicants sought administration and directors’ charges to secure professional fees and indemnify directors — Whether the charges were appropriate and necessary — Charges granted as reasonable and supported by the Monitor and secured creditors | Bankruptcy and insolvency — Key Employee Incentive Plan (KEIP) — Sealing order — Applicants sought approval of KEIP and sealing order to protect confidential employee information — Whether the KEIP was necessary to retain key employees — KEIP and sealing order granted as reasonable and necessary for restructuring | Bankruptcy and insolvency — Pre-filing obligations — Intercompany charge — Applicants sought authorization to pay pre-filing debts and grant intercompany charge — Whether payments and charge were necessary to preserve business operations and creditor interests — Relief granted as necessary to maintain stability and supported by the Monitor
CanLII | Dec 4, 2019
- keywords: Obligations — Fraudulent funds — Bona fide purchaser for value — Change of position — Claimants failed to establish bona fide receipt of fraudulently obtained funds or valuable consideration — Whether claimants could retain funds fraudulently obtained from the City of Saskatoon — Governing principles of constructive trust and mistake of fact applied — Funds ordered to be returned to the City | Evidence — Fraudulent transactions — Claimants’ burden of proof — Claimants failed to provide evidence of valuable consideration or innocent reliance on receipt of funds — Whether claimants raised a triable issue regarding their entitlement to funds — Test for bona fide purchaser for value without notice applied | Property — Recovery of fraudulently obtained funds — City of Saskatoon defrauded of $1,038,744.74 — Whether the City is entitled to recover funds from claimants — Claimants’ failure to establish entitlement to funds — Funds ordered to be returned to the City | Civil procedure — Summary disposition — Triable issues — Whether pleadings, discovery, and trial were required to determine contributory negligence by the City — Claimants failed to raise a triable issue — Summary disposition granted in favour of the City
CanLII | Nov 22, 2019
- keywords: Contracts — Termination rights — Feed-In Tariff (FIT) Contracts — Milestone Date for Commercial Operation (MCOD) — Time is of the essence — Does failure to achieve commercial operation by the MCOD constitute a Supplier Event of Default? — Interpretation of contractual provisions regarding termination rights — Governing principles of contractual interpretation, including commercial reasonableness and factual matrix | Public utilities — Electricity system — Independent Electricity System Operator (IESO) — Renewable energy procurement — Termination of FIT Contracts — Does the IESO have the right to terminate contracts for failure to meet MCOD? — Application of the Electricity Act, 1998 and related policies — IESO’s compliance with legislative and contractual mandates | Obligations — Contra proferentem — Interpretation of ambiguous contracts — Applicability of contra proferentem to FIT Contracts — Does the principle apply where ambiguity exists in termination rights? — Express exclusion of contra proferentem in FIT Contracts — Governing rule requiring ambiguity for application of contra proferentem | Environment — Renewable energy — Feed-In Tariff (FIT) Program — Commercial reasonableness of termination rights — Does the IESO’s interpretation of its termination rights align with sound commercial principles? — Impact of government policy changes on renewable energy contracts — Commercial viability of renewable energy projects under FIT Contracts | Evidence — Factual matrix — Prior practices and communications — IESO’s historical waiver of termination rights — Does the factual matrix support the applicants’ interpretation of the FIT Contracts? — Role of objective facts known to the parties at the time of contract formation — Relevance of prior communications, including the 2013 Bulletin
CanLII | Nov 15, 2019
- keywords: Contracts — Termination rights — FIT Contracts — Milestone Date for Commercial Operation (MCOD) — Interpretation of contractual provisions — Does the IESO have the right to terminate the FIT Contracts for failure to achieve commercial operation by the MCOD? — Contractual terms upheld — Entire agreement and waiver clauses enforceable — FIT Contracts remain in full force and effect | Public utilities — Renewable energy — Solar power projects — Termination of FIT Contracts — Does the IESO have the right to terminate the FIT Contracts for failure to achieve commercial operation by the MCOD? — IESO’s termination rights confirmed — Reasonable notice of termination provided | Evidence — Estoppel by convention — Shared assumption — Detrimental reliance — Unfairness — Was there a shared assumption between the parties that the IESO would not terminate the FIT Contracts for failure to achieve commercial operation by the MCOD? — No shared assumption established — Applicants failed to meet the strict requirements for estoppel by convention | Obligations — Entire agreement clause — Waiver clause — Reliance on past practices — Do the entire agreement and waiver clauses in the FIT Contracts prevent reliance on estoppel by convention? — Entire agreement clause excludes reliance on historical representations — Waiver clause prevents reliance on past practices — Contractual terms strictly enforced
CanLII | Nov 15, 2019
- keywords: Environmental law — Commercial fishing licenses — Receivership proceedings — Application to stay — Environmental Protection Act | Bankruptcy and Insolvency — Receivers — Application to stay — Abuse of process
CanLII | Nov 13, 2019
- keywords: Public utilities — Telecommunications and broadcasting — Jurisdiction — Dispute between telecommunications service providers regarding access to in-building wiring and equipment — Whether the Ontario Superior Court of Justice or the CRTC has jurisdiction to resolve the dispute — CRTC found to have exclusive jurisdiction over regulatory issues — Telecommunications Act, S.C. 1993, c. 38 — Broadcasting Act, S.C. 1991, c. 11 — Court declined jurisdiction over regulatory matters | Administrative law — Jurisdiction of regulatory bodies — Telecommunications and broadcasting — Whether the CRTC has exclusive jurisdiction over disputes involving telecommunications and broadcasting regulations — Court held that the CRTC has exclusive jurisdiction to determine disputes between regulated entities under the Telecommunications Act and Broadcasting Act — Framework from Weber v. Ontario Hydro applied | Contracts — Settlement agreements — Breach of settlement terms — Whether Cloudwifi’s unauthorized use of Bell’s equipment constituted a breach of the Minutes of Settlement — Court interpreted “services” in the settlement agreement as referring to internet services, not equipment — No breach of settlement terms found | Property — Telecommunications equipment — Unauthorized use — Whether Cloudwifi’s use of Bell’s in-building wiring and equipment without consent was unlawful — Court declined to issue declarations on property rights due to CRTC’s exclusive jurisdiction over regulatory issues — Telecommunications Act and Broadcasting Act applied | Torts — Economic interference — Cross-application for damages — Cloudwifi alleged Bell unlawfully interfered with its economic relations and customers — Court dismissed cross-application as inappropriate for an application and better suited for an action — CRTC decision addressed similar issues, denying Cloudwifi’s claims
CanLII | Nov 12, 2019
- keywords: Civil procedure — Costs — Substantial Indemnity
CanLII | Nov 6, 2019
- keywords: Bankruptcy and insolvency — Receivership — Purchase agreements — Receiver charged purchasers for "parks levy" as a condition of closing condominium sales — Whether Receiver entitled to recover costs associated with parkland dedication under the Planning Act — Interpretation of agreements of purchase and sale in the context of receivership — Planning Act, R.S.O. 1990, c. P.13, s. 42 — Receiver not entitled to recover "parks levy" where compliance achieved through land conveyance | Contracts — Interpretation — Ambiguity — Agreements of purchase and sale required purchasers to pay "parks levy" — Whether "parks levy" includes costs of parkland dedication or only cash-in-lieu payments — Ambiguity resolved using contra proferentem rule — Consumer protection principles under Tarion Addendum — Ambiguity interpreted against Receiver as drafter of agreements | Sale — Purchase price adjustments — Condominium sales — Receiver charged purchasers for "parks levy" adjustment — Whether Receiver obligated to repay amounts collected for "parks levy" — Court ordered repayment of "parks levy" amounts with interest under the Courts of Justice Act — Consumer protection considerations in determining repayment obligations
CanLII | Oct 10, 2019
- keywords: Corporations — Directors and officers — Legal officers — Derivative immunity — Solicitor and client privilege — Business Corporations Act — R.S.O. 1990, c. B.16, ss. 96, 161, 163, 245, 248, 253,certiorari
CanLII | Oct 7, 2019
- keywords: Bankruptcy and insolvency — Recognition of foreign proceedings — Appointment of Information Officer — Applicant sought recognition of English scheme of arrangement proceedings under Part IV of the CCAA — Whether PricewaterhouseCoopers Inc. should be appointed as Information Officer — Court satisfied that the appointment would assist in disseminating information and providing independent views — CCAA, ss. 45, 49 | Statutory interpretation — Definition of “foreign representative” — Applicant appointed as foreign representative by the Scheme Companies under English law — Whether the applicant met the definition of “foreign representative” under s. 45 of the CCAA — Court found the applicant validly appointed and satisfied statutory requirements — CCAA, s. 45 | International law — Recognition of foreign non-main proceedings — English scheme of arrangement proceedings under Part 26 of the UK Companies Act — Whether the proceedings constituted “foreign non-main proceedings” under the CCAA — Court found the Scheme Companies’ COMI was not in the UK and recognized the proceedings as foreign non-main — CCAA, ss. 45, 47 | International law — Recognition of foreign court orders — Convening Order issued by the English Court — Whether the Convening Order should be recognized and given effect in Canada — Court recognized the order as consistent with the purpose of Part IV of the CCAA to promote cross-border cooperation — CCAA, s. 49 | Civil procedure — Dispensing with notice requirements — Applicant sought to dispense with publication of notice under s. 53(b) of the CCAA — Court satisfied that stakeholders had sufficient notice and compliance would result in unnecessary costs — Publication requirement dispensed with — CCAA, s. 53(b)
CanLII | Oct 7, 2019
- keywords: Civil procedure — Mareva injunction — Setting aside injunction — Delay in prosecution — Harm to defendants — Defendants alleged inordinate delay and harm caused by injunction — Plaintiff argued delay caused by defendants’ conduct — Whether Mareva injunction should be set aside — Test for vacating Mareva injunction includes delay, harm, changed facts, and balance of convenience — Motion to set aside Mareva injunction dismissed | Evidence — Summary judgment — Genuine issue requiring trial — Conflicting evidence — Complex fraud allegations — Over 35 defendants — Circumstantial evidence — Expert reports contested — Whether summary judgment appropriate — Summary judgment denied due to need for credibility assessments, weighing of evidence, and oral testimony — Hryniak v. Mauldin framework applied | Civil procedure — Striking out defence — Breach of Mareva order — Failure to produce documents — Severe remedy — Defendants alleged to have breached Mareva order and failed to produce records — Court declined to strike defence without further interlocutory orders — Remedy of striking defence requires high threshold — Motion to strike defence dismissed
CanLII | Sep 24, 2019
- keywords: Civil procedure — Affidavits — Application for leave to file — Cross-examination
CanLII | Sep 24, 2019
- keywords: Bankruptcy and insolvency — Receivership — Claims Process — Distribution of funds — Receiver’s recommendation to distribute $784,843 from the sale of the Caldwell property to the Stanbarr Claimants — Whether the Receiver’s recommendation should be accepted — Onus on disputing party to show sufficient reason to reject Receiver’s recommendation — Principles of judicial review of receivership determinations — Court accepted Receiver’s recommendation | Property — Mortgage proceeds — Competing claims — Whether funds from the sale of the Caldwell property should remain with the Accountant for the Superior Court of Justice or be distributed to the Stanbarr Claimants — Claims Process established by court orders — Court ordered funds to be distributed to the Stanbarr Claimants | Evidence — Res judicata — Pre-assignment expenses — Whether the decision of Matheson J. in the Scollard Action resolved the issue of pre-assignment expenses claimed by CIC — Findings of Matheson J. on pre-assignment expenses deemed final and binding — Receiver relied on Matheson J.’s decision to calculate improper pre-assignment expenses — Court upheld Receiver’s reliance on prior judgment | Civil procedure — Claims Process — Procedural fairness — Adequacy of notice — Whether the Claims Process was conducted in accordance with court orders — Parties received the Receiver’s Tenth Report and had the opportunity to file submissions — No procedural unfairness found — Court upheld the Claims Process and Receiver’s recommendations
CanLII | Sep 13, 2019
- keywords: Business associations — Corporate governance — Indemnification of directors and officers — Advance funding for legal fees — Applications under section 124 of the Canada Business Corporations Act (CBCA) — Whether applicants entitled to advance funding for legal fees and disbursements in defending claims of fraud and breach of fiduciary duty — Section 124 of the CBCA governs indemnification and advance funding for corporate directors and officers | Statutory interpretation — Canada Business Corporations Act — Section 124 — Advance funding for legal costs — Interpretation of statutory provisions governing indemnification and advance funding — Whether applicants acted honestly and in good faith with a view to the best interests of the corporation — Section 124(3) and (4) of the CBCA require good faith for indemnification and repayment if conditions are not met | Civil procedure — Standard for denying advance funding — Strong prima facie case of bad faith required to deny advance funding under section 124 of the CBCA — Application of the test from Cytrynbaum v. Look Communications Inc. — Whether evidence of fraud or bad faith sufficient to deny advance funding — Court found no strong prima facie case of bad faith against one applicant | Contracts — Corporate agreements — Indemnification clauses — Interpretation of "indemnify and save harmless" — Whether contractual language includes the right to advance payment of legal costs — Court held that "save harmless" extends beyond indemnity to include advance funding — Agreements must be interpreted in light of statutory provisions and corporate governance principles
CanLII | Sep 10, 2019
- keywords: Corporations — Shareholders meetings — Imputing Influence — Costs — Substantial Income
CanLII | Sep 4, 2019
- keywords: Real property — Commercial litigation — Receivers — Sale process
CanLII | Sep 4, 2019
- keywords: Contracts — Arbitration agreements — Right to appeal — Interpretation of arbitration clause in Net Profits Interest Agreement — Whether the arbitration clause excludes the right to appeal under section 45 of the Arbitration Act, 1991 — Governing principles for determining parties’ intent to exclude appeal rights — Arbitration Act, 1991, S.O. 1991, c. 17, s. 45 | Statutory interpretation — Arbitration Act, 1991 — Right to appeal arbitration awards — Whether section 45 of the Arbitration Act, 1991 permits appeals on questions of law where the arbitration agreement is silent — Interpretation of statutory provisions in light of contractual language and context | Natural resources — Net profits interest — Legal nature of net profit interest in mining operations — Whether the arbitrator misapprehended the legal nature of the net profit interest under the Net Profits Interest Agreement — Interpretation of net profit interest as an interest in land versus an interest in corporate profits | Obligations — Contractual interpretation — Generally accepted accounting principles (GAAP) — Whether the arbitrator erred in law by failing to consider GAAP in interpreting the Net Profits Interest Agreement — Role of GAAP in determining net profits under the agreement — Principles of contractual interpretation applied to accounting standards | Evidence — Contractual interpretation — Failure to consider evidence — Whether the arbitrator ignored or misapplied evidence relevant to the interpretation of the Net Profits Interest Agreement — Application of principles of contractual interpretation to expert evidence on GAAP and mining practices
CanLII | Aug 29, 2019
- keywords: Business associations — Oppression remedy — Shareholder loans — Corporate governance — Applicant sought repayment of shareholder loan under s. 248 of the Ontario Business Corporations Act — Whether the Estate of Vincent Wong and the GLAD companies should be held liable for oppressive conduct — Court held that the Estate was personally liable for repayment due to oppressive self-dealing by Mr. Wong — Ontario Business Corporations Act, R.S.O. 1990, c. B.16, s. 248 | Estates and trusts — Personal liability of estate trustee — Oppression remedy — Estate of Vincent Wong held personally liable for repayment of shareholder loan — Whether estate trustee acted oppressively or unfairly prejudicially — Court found no personal misconduct by estate trustee but held the Estate liable for Mr. Wong’s oppressive conduct — Estate trustee’s obligations to manage corporate assets prudently emphasized | Securities — Enterprise liability — Shareholder loans — Applicant sought to impose enterprise liability on GLAD companies for repayment of shareholder loan — Whether corporate structure and intertwined operations justified enterprise liability — Court declined to impose liability on GLAD companies, finding no independent oppressive conduct by GLAD entities | Civil procedure — Evidence — Shareholder disputes — Applicant sought order requiring Chinese shareholders to provide evidence of share acquisition and payment — Whether court should compel production of evidence — Court declined to order production but warned shareholders of adverse consequences for failing to provide evidence supporting their claims
CanLII | Aug 16, 2019
- keywords: Municipal law — Real property — Writ of possession — Relief from forfeiture — Courts of Justice Act — R.S.O. 1990, c. C.43, s. 98 — Rules of Civil Procedure — Rules 60.03, 60.10
CanLII | Aug 14, 2019
- keywords: Judgments and orders — Interpretation
CanLII | Aug 8, 2019
- keywords: Contract law — Interpretation — Contracts of Interpretation — Privity — Third party offer
CanLII | Aug 2, 2019
- keywords: Civil procedure — Mareva injunction — Extraordinary remedy — Plaintiffs sought an asset freezing order against defendants for alleged fraudulent activities in real estate development projects — Did the plaintiffs meet the test for a Mareva injunction, including a strong prima facie case, risk of dissipation, irreparable harm, and balance of convenience? — Framework for granting Mareva injunctions under Canadian law | Contracts — Breach of fiduciary duty — Fraud — Plaintiffs alleged defendants misappropriated funds through acquisition fees, inflated property prices, and kickbacks — Were the defendants entitled to acquisition fees under the consulting agreements? — Interpretation of consulting agreements and fiduciary obligations in commercial relationships | Evidence — Risk of dissipation — Plaintiffs alleged defendants concealed acquisition fees and engaged in fraudulent activities — Was there sufficient evidence to infer a real risk of dissipation of assets? — Standard of proof for establishing risk of dissipation in Mareva injunctions | Torts — Fraud — Conspiracy — Plaintiffs alleged defendants conspired to defraud them in multiple real estate projects — Did the plaintiffs establish a strong prima facie case of fraud and conspiracy? — Legal principles governing fraud and conspiracy in commercial disputes | Torts — Irreparable harm — Plaintiffs argued they would suffer irreparable harm without a Mareva injunction — Was there evidence that the defendants’ assets would be insufficient to satisfy a judgment? — Application of irreparable harm analysis in asset freezing orders
CanLII | Aug 2, 2019
- keywords: Business associations — Derivative actions — Corporate governance — Breach of fiduciary duty — Misappropriation of corporate opportunities — Applicants alleged respondents diverted business from Sunbex Corporation to a competing company — Whether applicants satisfied statutory requirements for leave to bring a derivative action — Ontario Business Corporations Act, R.S.O. 1990, c. B.16, s. 245 — Liberal interpretation of statutory requirements for derivative actions | Civil procedure — Derivative actions — Leave to commence — Applicants alleged respondents misappropriated corporate opportunities and breached fiduciary duties — Respondents alleged applicants misappropriated corporate funds and exposed corporation to warranty claims — Whether applicants or respondents satisfied the test for leave to bring a derivative action — Test from Jennings v. Bernstein applied | Contracts — Shareholders agreement — Interpretation — Dispute over profit-sharing provisions in shareholders agreement — Respondents alleged applicants withdrew funds exceeding agreed-upon share of profits — Whether dispute over profit-sharing terms is more appropriately addressed as a contractual claim or through a derivative action — Khela v. Phoenix Homes Ltd. considered
CanLII | Jul 31, 2019
- keywords: Injunctions — Interlocutory Mareva Injunctions
CanLII | Jul 30, 2019
- keywords: Civil procedure — Summary judgment — Limitation periods — Discoverability — Canada Business Corporations Act — S. 241, limitation periods
CanLII | Jul 29, 2019
- keywords: Business associations — Oppression remedy — Share valuation — Equitable compensation — Plaintiff sought relief under s. 241(2) of the Canada Business Corporations Act — Court awarded equitable compensation and determined fair value of shares — Supplementary motions addressed arithmetic errors, equitable damages, and interest — Governing principles for oppression remedy and share valuation under the Canada Business Corporations Act, R.S.C. 1985, c. C-44 | Civil procedure — Amendments to Reasons — References to personal matters — Defendants sought removal of references to personal relationship between parties — Court held references were based on trial evidence and did not require amendment — Rule 59.06(1) of the Rules of Civil Procedure governs corrections to Reasons | Civil procedure — Arithmetic errors — Fair value calculation — Both parties alleged errors in share valuation — Court corrected double-counting error, increasing fair value by $0.2 million — No error found in defendants’ claim regarding market return adjustment — Principles for correcting valuation errors in oppression remedy cases | Civil procedure — Equitable compensation — Recalculation of damages — Plaintiff sought adjustment of equitable compensation based on higher annual salary — Court recalculated award using $325,000 annual salary, increasing compensation to $605,579 — Governing principles for equitable compensation in shareholder disputes | Civil procedure — Time value of money — Compound interest — Plaintiff sought compound interest or additional equitable damages to reflect time value of money — Court dismissed claim due to lack of pleading and evidentiary foundation — Statutory pre- and post-judgment interest under ss. 128 and 129 of the Courts of Justice Act applied
CanLII | Jul 29, 2019
- keywords: Evidence — Expert evidence — Bias — Motion to exclude expert evidence of Prof. Stephan on grounds of bias due to prior involvement with Yukos-related entities — Whether history of providing expert evidence for similarly situated parties demonstrates lack of independence — Test for impartiality and independence of expert witnesses under White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23 — No evidence of actual bias or lack of independence found — Motion to strike dismissed | Evidence — Expert evidence — Qualifications — Motion to exclude expert evidence of Prof. Stephan on grounds of lack of qualifications to opine on Russian law — Whether foreign law expert must be qualified to practice law in the foreign jurisdiction or fluent in its language — Expert’s qualifications assessed based on demonstrated knowledge and experience — Threshold for admissibility met — Motion to strike dismissed | Civil procedure — Arbitration — Admissibility of new evidence — Whether new evidence not before the arbitral tribunal and not meeting Ontario’s test for new evidence is admissible in a court review of arbitral tribunal’s jurisdiction under Article 16(3) of the UNCITRAL Model Law — Preliminary ruling by Dunphy J. allowing new evidence questioned but not binding — Parties directed to reargue admissibility of new evidence on main application
CanLII | Jul 29, 2019
- keywords: Civil procedure — Exchange rate — Prejudgment interest — Plaintiffs awarded damages and disgorgement of profits in U.S. dollars — Court applied default exchange rate under s. 121(1) of the Courts of Justice Act — Plaintiffs entitled to prejudgment interest despite judgment not explicitly addressing it — Trial judge retained jurisdiction to address prejudgment interest — Courts of Justice Act, R.S.O. 1990, c. C.43, ss. 121(1), 128(1) | Obligations — Foreign currency obligations — Exchange rate — Defendants argued for exchange rate on transaction dates under s. 121(3) of the Courts of Justice Act — Court rejected argument, applying default rule under s. 121(1) — Change in exchange rate alone insufficient to establish inequity — Policy ensures creditors are properly compensated — Courts of Justice Act, R.S.O. 1990, c. C.43, ss. 121(1), 121(3) | Statutory interpretation — Prejudgment interest — Plaintiffs pleaded prejudgment interest but judgment omitted reference — Court retained jurisdiction to address prejudgment interest — Prejudgment interest awarded under s. 128(1) of the Courts of Justice Act — Punitive damages excluded from prejudgment interest under s. 128(4)(a) — Courts of Justice Act, R.S.O. 1990, c. C.43, ss. 128(1), 128(4)(a) | Torts — Breach of fiduciary duty — Conspiracy — Defendants breached fiduciary duties and conspired to conceal and acquire undervalued assets — Plaintiffs awarded damages and disgorgement of profits — Prejudgment interest calculated from date of cause of action — Remedy of disgorgement tied to breach of fiduciary duty — Courts of Justice Act, R.S.O. 1990, c. C.43, s. 128(1)
CanLII | Jul 24, 2019
- keywords: Business associations — Oppression remedy — Costs — Applicant brought a second oppression application under the Ontario Business Corporations Act based on similar facts as the first — Application dismissed — Respondents sought substantial indemnity costs — Should substantial indemnity costs be awarded? — Ontario Business Corporations Act, R.S.O. 1990, c. B.16, s. 248 — Courts of Justice Act, R.S.O. 1990, c. C.43, s. 101 | Civil procedure — Costs — Substantial indemnity costs — Settlement offers — Respondents made a detailed settlement offer on April 25, 2019, during judicial mediation — Offer rejected by the applicant without a counter-offer — Should substantial indemnity costs be awarded from the date of the settlement offer? — Rules of Civil Procedure, R.R.O. 1990, Reg. 194, Rule 57.01 | Civil procedure — Costs — Reasonableness of bill of costs — Respondents submitted a bill of costs detailing hours and rates charged — Court found the hours and rates reasonable given the complexity, urgency, and importance of the case — Were the respondents’ costs reasonable? — Rules of Civil Procedure, R.R.O. 1990, Reg. 194, Rule 57.01
CanLII | Jul 17, 2019
- keywords: Contract law — Debtor-Creditor — Settlement agreements — Dispute over ownership of assets
CanLII | Jul 16, 2019
- keywords: Contracts — Settlement agreements — Binding agreements — Whether the parties reached a binding settlement agreement on August 1, 2018, resolving the litigation — Mutual intention to create a legally binding contract and agreement on all essential terms required — No mutual intention or agreement found — Olivieri v. Sherman, 2007 ONCA 491 applied | Obligations — Authority of counsel — Settlement negotiations — Whether applicant’s counsel had authority to agree to material terms of settlement — Counsel’s authority limited to negotiating minutes of settlement, not agreeing to deal points — Solicitor’s ostensible authority considered — Dick v. McKinnon, 2014 ONCA 784 applied | Civil procedure — Arbitration — Stay of proceedings — Whether respondent’s motion for a stay of the applicant’s application under the Arbitration Act, 1991, should be granted — No binding settlement agreement found, thus no basis for arbitration — Motion dismissed — Arbitration Act, 1991, S.O. 1991, c. 17, s. 7 | Civil procedure — Arbitration — Notice to Arbitrate — Whether applicant entitled to an order setting aside respondent’s Notice to Arbitrate — Notice based on alleged settlement agreement — No settlement agreement found, thus no arbitration agreement exists — Notice set aside — Arbitration Act, 1991, S.O. 1991, c. 17, s. 48.1(b)
CanLII | Jul 11, 2019
- keywords: Corporations — Oppression — Business Corporations Act, R.S.O. 1990, c. B.16, s. 248.
CanLII | Jul 5, 2019
- keywords: Business associations — Shareholder disputes — Corporate governance — Director’s authority to instruct counsel — Majority shareholder’s remedies — Can a director, as the sole officer of a corporation, instruct counsel in a shareholder dispute? — Director entitled to instruct counsel unless removed by shareholders — Business Corporations Act, R.S.O. 1990, c. B.16, s. 115(1) | Evidence — Conflict of interest — Solicitor-client relationship — Confidential information — Did the lawyer of record receive confidential information attributable to a prior solicitor-client relationship relevant to the current matter? — Plaintiffs failed to establish prior solicitor-client relationship or transmission of confidential information — Test from Martin v. MacDonald Estate (Gray), [1990] 3 S.C.R. 1235 applied | Professional responsibility — Duty of loyalty — Public confidence in the administration of justice — Broader duty of loyalty to former clients — Should a lawyer be disqualified to maintain public confidence in the legal profession? — Plaintiffs failed to establish former client relationship — No breach of duty of loyalty — Consulate Ventures Inc. v. Amico Contracting & Engineering (1992) Inc., 2010 ONCA 788 considered | Civil procedure — Disqualification of counsel — Shareholder disputes — Joint representation of corporation and director — Does joint representation create an actual conflict of interest? — Plaintiffs’ allegations of conflict unsupported by evidence — No disqualification ordered — Depriving a party of preferred counsel requires evidence of serious injustice — MacDonald Estate (Gray), [1990] 3 S.C.R. 1235 applied
CanLII | Jun 28, 2019
- keywords: Corporations — Oppression — Costs — Payment of legal fees
CanLII | Jun 26, 2019
- keywords: Contracts — Non-competition agreements — Validity and enforceability — Applicant entered into a non-competition agreement prohibiting competition in North America — Was the agreement invalid due to overbreadth in geographic scope? — Agreement upheld as valid given its limited term, connection to a share sale, and the infancy of the medical marijuana industry — Principles governing enforceability of non-competition clauses | Lease — Breach of non-competition agreement — Applicant leased land to a medical marijuana producer during the term of a non-competition agreement — Did the lease constitute a breach of the agreement? — Lease found to breach the agreement as it involved indirect participation in a competing business — Broad interpretation of “any capacity whatsoever” in non-competition clauses | Obligations — Stock options — Expiry of options — Applicant’s stock options expired under the terms of the agreements — Did the refusal to honour the exercise of the options constitute a breach of contract? — Agreements interpreted to incorporate the terms of the stock option plan, which imposed a six-month expiry period after termination — No breach of contract found | Obligations — Relief from forfeiture — Expired stock options — Applicant sought relief from forfeiture under section 98 of the Courts of Justice Act — Was the applicant entitled to equitable relief despite breaching the non-competition agreement? — Relief denied due to applicant’s lack of clean hands and breach of the non-competition agreement — Equitable principles governing relief from forfeiture | Obligations — Damages — Breach of contract — Applicant claimed damages for refusal to honour stock options — Was the applicant entitled to damages? — No damages awarded as no breach of contract was found — Rule 14.05 of the Rules of Civil Procedure does not allow for damages to be awarded on an application
CanLII | Jun 21, 2019
- keywords: Contract law — Real property — Mortgages — Assignment — Easements — Land Titles Act — R.S.O. 1990, c. L.5, s 101(3), Rules of Civil Procedure — Rule 38.11.
CanLII | Jun 19, 2019
- keywords: Bankruptcy and insolvency — Vesting orders — Jurisdiction — Superior Court judge’s authority to extinguish third-party interests in land under section 243 of the Bankruptcy and Insolvency Act (BIA) and section 100 of the Courts of Justice Act (CJA) — Whether vesting orders are necessary to facilitate asset realization in insolvency proceedings — Broad, liberal, and purposive interpretation of BIA provisions — Jurisdiction to grant vesting orders incidental to sale approval | Natural resources — Gross Overriding Royalties (GORs) — Interests in land — Whether GORs constitute interests in land or fixed monetary claims — Nature of GORs as ownership interests in the product of mining claims — Court’s error in extinguishing GORs through a vesting order — Framework for analyzing third-party interests in land in insolvency proceedings | Civil procedure — Appeal periods — Receivership proceedings — Whether the appeal period for a sale approval and vesting order is governed by the Bankruptcy and Insolvency Act (BIA) or the Courts of Justice Act (CJA) — Federal paramountcy over provincial rules — Appeal period under BIA Rules set at 10 days from the date of decision — Appellant’s failure to file within the prescribed period | Property — Remedies — Rectification of title — Appellant’s failure to preserve rights by timely appeal or stay application — Discretionary remedy under Land Titles Act — Justice of the case and prejudice to other parties — No extension of time to appeal granted — Appellant entitled only to compensation already received
CanLII | Jun 19, 2019
- keywords: Company law — Contract law — Insurance — Interpretation — Pension fund — Companies’ Creditors Arrangement Act
CanLII | Jun 13, 2019
- keywords: Business associations — Oppression remedy — Shareholder disputes — Disagreement over sale of corporation’s sole asset — Applicant sought court-ordered sale or share purchase under section 248 of the OBCA — Whether disagreement among shareholders constitutes oppression — Court found no oppressive or unfair conduct — Disagreement did not paralyze corporate operations — Ontario Business Corporations Act, R.S.O. 1990, c. B.16, s. 248 | Sale — Corporate assets — Shareholder disputes — Applicant sought sale of corporation’s sole asset or purchase of shares based on proposed sale price — Majority shareholders opposed sale — Whether court should compel sale or share purchase — Court declined to intervene, finding no basis for relief — Ontario Business Corporations Act, R.S.O. 1990, c. B.16, ss. 182, 185 | Business associations — Winding-up orders — Closely held corporations — Applicant sought winding-up order under section 207 of the OBCA — Disagreement among shareholders did not prevent corporation from continuing operations — No evidence of intent to dissolve corporation in event of dispute — Ontario Business Corporations Act, R.S.O. 1990, c. B.16, s. 207 | Property — Fiduciary duty — Business judgment rule — Directors’ refusal to sell corporation’s sole asset — Whether directors breached fiduciary duty or failed to exercise proper business judgment — Court found decisions were within range of reasonable choices — Business judgment rule applied — Ontario Business Corporations Act, R.S.O. 1990, c. B.16
CanLII | Jun 7, 2019
- keywords: Torts — Battery — Assault — Negligence — Breach of fiduciary duty — Intentional infliction of mental distress — Wrongful imprisonment — Defendant physically and emotionally abused plaintiffs over several years — Did the defendant’s actions constitute tortious conduct? — Defendant found liable for battery, assault, negligence, and breach of fiduciary duty but not for intentional infliction of mental distress or wrongful imprisonment | Obligations — Parental duties — Reasonable discipline — Fiduciary duty — Defendant’s physical and emotional abuse of plaintiffs exceeded reasonable parental discipline — Did the defendant breach his fiduciary duty to the plaintiffs? — Parents owe a fiduciary duty to act in their children’s best interests and not inflict harm beyond reasonable discipline | Evidence — Causation of psychological harm — PTSD — Depression — Plaintiffs alleged psychological conditions caused by defendant’s abuse — Did the plaintiffs prove causation of their psychological conditions? — Plaintiffs failed to prove that the defendant’s actions caused their PTSD or depression on a balance of probabilities | Torts — Damages — General damages — Punitive damages — Economic loss — Plaintiffs sought damages for physical and emotional harm, punitive damages, and economic loss — What damages are appropriate? — General damages of $50,000 and $35,000 awarded to plaintiffs, punitive damages of $10,000 each, no damages for economic loss or loss of competitive advantage
CanLII | Jun 7, 2019
- keywords: Civil procedure — Costs — Substantial indemnity costs — Rules of Civil Procedure — Rule 20.06(a): where available — Rules 1.04 and 20.06(a)
CanLII | Jun 3, 2019
- keywords: Bankruptcy and insolvency — Cross-border insolvency — Recognition of foreign proceedings — Chapter 11 Cases filed in the U.S. Bankruptcy Court — Application for recognition under Part IV of the Companies’ Creditors Arrangement Act (CCAA) — Are the Chapter 11 Cases "foreign main proceedings"? — Centre of main interests (COMI) analysis — COMI of Hollander Canada determined to be in the United States — CCAA, ss. 44, 45, 46, 47 | International law — Comity — Recognition of foreign insolvency orders — Coordination of cross-border insolvency proceedings — Should the U.S. First Day Orders be recognized in Canada? — Principles of comity and cooperation between jurisdictions — Avoidance of inconsistent judgments and uncertainty — CCAA, ss. 44, 49, 52 | Civil procedure — Stay of proceedings — Initial Recognition Order and Supplemental Order — Mandatory relief under s. 48 of the CCAA — Discretionary relief under s. 49 of the CCAA — Should a stay of proceedings be granted to facilitate restructuring? — Necessity of stay to protect debtor’s property and creditors’ interests — CCAA, ss. 48, 49 | Bankruptcy and insolvency — Debtor-in-possession (DIP) financing — DIP ABL Charge — Joint and several liability of Hollander Canada — Should the DIP ABL Charge be approved? — Necessity of DIP financing to maintain operations and pursue restructuring — Quasi-marshalling construct to protect Canadian creditors — Distinction from Payless Holdings Inc. (Re) — CCAA, s. 11.2 | Bankruptcy and insolvency — Appointment of Information Officer — Administrative charges — Should KSV Kofman Inc. be appointed as Information Officer? — Should an Administration Charge of $200,000 be approved? — Facilitation of cooperation between Canadian and U.S. courts — Reasonableness of administrative charges — CCAA, ss. 49, 52
CanLII | May 30, 2019
- keywords: Business associations — Fiduciary duties — Venture capital funds — Managing directors’ obligations — Establishment of competing fund — Did the defendants breach fiduciary duties by establishing and operating the Annex Fund without disclosure? — Fiduciary duties require honesty, loyalty, and avoidance of conflicts of interest — Breach found for self-dealing and concealment of material information | Obligations — Fiduciary duties — Sale of corporate assets — Concealment of material information — Did the defendants breach fiduciary duties in the sale of Xtreme Labs by concealing financial projections and equity interests? — Fiduciary duties breached through misrepresentation, self-interest, and failure to disclose material facts | Contracts — Breach of shareholders’ agreements — Non-competition and confidentiality clauses — Did the defendants breach contractual obligations under the EVP GP and Xtreme Labs shareholders’ agreements? — Breach found for operating a competing fund and disclosing confidential information to third parties | Commerce and industry — Damages — Compensatory, punitive, and disgorgement remedies — Are the plaintiffs entitled to damages for breaches of fiduciary duty and contractual obligations? — Compensatory damages awarded for undervalued sale of Xtreme Labs — Punitive damages awarded for egregious fiduciary breaches — Disgorgement of profits ordered for concealed equity interest in Hatch Labs | Torts — Conspiracy — Knowing assistance in breach of fiduciary duty — Inducing breach of contract — Did the defendants conspire to undervalue Xtreme Labs and conceal material assets? — Conspiracy established through coordinated actions to mislead shareholders and secure personal benefits — Liability imposed for knowing assistance and inducing breaches
CanLII | May 14, 2019
- keywords: Contracts — Breach of contract — Systems Interconnect Agreement (SIA) — Direct market access (DMA) platform — Apparent or ostensible agency — Did CIBC breach its contractual obligations by failing to provide and support the DMA platform? — CIBC held liable for system malfunction caused by actions of its apparent agent — Contractual obligations to provide and support trading systems | Obligations — Negligence — Contributory negligence — Automated trading risks — Did the plaintiff fail to mitigate damages or act negligently in connection with the March 18, 2009 error trades? — Plaintiff not contributorily negligent; no failure to mitigate damages — Standard of care in automated trading systems | Evidence — Contractual interpretation — Exclusion clauses — Parol evidence rule — Entire agreement clause — Did CIBC exclude liability for system malfunctions under the SIA? — Exclusion clause did not apply to CIBC’s liability for the March 18, 2009 trading losses — Interpretation of exclusion clauses under Tercon framework | Evidence — Exclusion of lost profits — Consequential damages — Did the SIA exclude liability for lost profits? — SIA excluded liability for lost profits under article 6.2 — Clear exclusion of indirect and consequential damages, including lost profits | Securities — Damages — Trading losses — Quantification of damages — What damages are recoverable for trading losses caused by the system malfunction? — Plaintiffs awarded $924,851 for trading losses after deducting recovery from Belzberg estate — No punitive damages awarded
CanLII | May 10, 2019
- keywords: Contracts — Relational contracts — Share Purchase Agreement (SPA) — Plaintiff argued SPA created a relational contract requiring highest duties of cooperation and good faith — SPA lacked hallmarks of relational contracts such as long-term undefined obligations — Was the SPA a relational contract? — SPA was not a relational contract as it was a defined, short-term agreement with specific terms | Contracts — Breach of contract — Constructive dismissal — Defendant unilaterally altered remuneration structure of key employees contrary to employment agreements — Constructive dismissal of key employees undermined plaintiff’s ability to meet earnings target under SPA — Did the defendant breach the SPA by constructively dismissing employees? — Constructive dismissal constituted a breach of the SPA | Business associations — Oppression remedy — Shareholder expectations — Defendant’s treatment of key employees and allocation of commissions undermined plaintiff’s ability to meet earnings target — Did the defendant act oppressively towards the plaintiff? — Defendant’s conduct was oppressive as it unfairly disregarded the plaintiff’s reasonable expectations under the SPA | Contracts — Damages — Constructive dismissal — Oppression — SPA provided specific remedies for constructive dismissal of key employees — Should damages be calculated in accordance with the SPA? — Damages for constructive dismissal and oppression were to be calculated as per SPA provisions | Labour and employment — Constructive dismissal — Key employees — Defendant altered employment terms of key employees, leading to resignations — Constructive dismissal claims supported by evidence of unilateral changes and poisoned work environment — Were the claims of constructive dismissal substantiated? — Constructive dismissal claims were upheld based on evidence of significant changes to employment terms
CanLII | May 7, 2019
- keywords: Civil procedure — Issue estoppel — Relitigation of disputes — Plaintiff unsuccessfully litigated claims related to failed acquisition of telecommunications company — Trial court denied subsequent claims based on earlier findings — Were findings in previous litigation final and binding under the principles of issue estoppel? — Estoppel bars relitigation of questions fundamental to earlier proceedings — Danyluk v. Ainsworth Technologies Inc | Civil procedure — Cause of action estoppel — Subsequent actions arising from identical facts — Plaintiff sued defendants again for breach of confidence and inducement — Claims barred as they arose from the same facts and could reasonably have been argued in earlier litigation — Was applying cause of action estoppel proper? — All claims properly belonging to an earlier case must be pursued together — Grandview (Town) v. Doering | Civil procedure — Abuse of process — Relitigation — Plaintiff’s second action intended to overturn factual findings from prior proceedings — Courts dismissed as abusive due to overlap in issues and findings — Could sufficient grounds justify reconsideration? — Relitigation undermines judicial finality and is an abuse of process unless fairness considerations compel otherwise — Toronto (City) v. C.U.P.E., Local 79 | Contracts — Breach — Privity of contract — Claim struck for failing to plead necessary elements of breach — Plaintiff alleged confidentiality and exclusivity agreements breached by non-signatories — Did the pleadings sufficiently establish privity? — Non-parties to a contract cannot be liable for breach; pleadings must show party connection — Greenwood Shopping Plaza Ltd. v. Beattie
CanLII | May 2, 2019
- keywords: Class action — Companies’ Creditors Arrangement Act
CanLII | May 1, 2019
- keywords: Fraudulent conveyances — Fraudulent intent — Bankruptcy and Insolvency Act, s. 96(1), Fraudulent Conveyances Act — R.S.O. 1990, c. F.29, s. 2.
CanLII | Apr 30, 2019
- keywords: Contracts — Early termination conditions — Interpretation of contractual discretion — Vendors’ inclusion of "sole, absolute and unfettered discretion" in early termination condition — Whether such discretion conflicts with the Tarion Addendum’s requirement to take all commercially reasonable steps — Court held that the Proviso did not form part of the condition and that the Vendors’ discretion was limited by the Addendum — Consumer protection principles applied to favour purchasers | Sale — Pre-construction condominium agreements — Tarion Addendum — Vendors’ right to terminate agreements for unsatisfactory financing — Whether the inclusion of an unfettered discretion clause rendered the termination condition null and void — Court found the condition valid when interpreted in accordance with the Addendum’s requirements — Ontario New Home Warranties Plan Act, O. Reg. 165/08 | Obligations — Commercially reasonable steps — Vendors’ duty to satisfy early termination conditions — Whether the Vendors’ discretion to terminate agreements was limited by their obligation to take all commercially reasonable steps — Court held that the Addendum’s protections prevailed over any inconsistent contractual provisions — Vendors’ discretion interpreted narrowly to align with consumer protection objectives | Statutory interpretation — Consumer protection legislation — Ontario New Home Warranties Plan Act — Interpretation of Tarion Addendum provisions — Whether the Addendum’s requirements should be construed strictly in favour of purchasers — Court applied a broad and liberal interpretation of the Addendum to balance the rights of purchasers and vendors — Contra proferentem doctrine applied to resolve ambiguities in favour of purchasers
CanLII | Apr 29, 2019
- keywords: Bankruptcy and insolvency — Companies' Creditors Arrangement Act — Jurisdiction — Stay of proceedings — Applicants sought protection under the CCAA to address significant litigation claims, including a $13.5 billion judgment — Does section 11 of the CCAA grant jurisdiction to stay proceedings, including appellate and Supreme Court actions? — Broad jurisdiction under section 11 to preserve the status quo and facilitate restructuring or resolution of claims | Civil procedure — Stays of proceedings — Limitation periods — Applicants sought a stay of all proceedings and an extension of limitation periods under the CCAA — Does the court have authority to stay proceedings and extend limitation periods? — Court held that section 11 of the CCAA provides jurisdiction to stay actions and extend limitation periods to ensure fairness among stakeholders | Statutory interpretation — Companies' Creditors Arrangement Act — Purpose and scope — Applicants argued for a blanket stay to preserve the status quo and facilitate a global resolution — Does the CCAA allow for such broad relief? — Court interpreted the CCAA as remedial legislation aimed at enabling compromises and arrangements, supporting a stay to maximize chances of resolution | Torts — Class actions — Prejudice to stakeholders — Quebec plaintiffs argued that the stay unfairly prejudiced their position and undermined the CCAA process — Does the stay create an imbalance among stakeholders? — Court found that a blanket stay was necessary to maintain a level playing field and avoid parallel proceedings that could disrupt the resolution process
CanLII | Apr 23, 2019
- keywords: Civil procedure — Costs — Elevated costs — Substantial indemnity — Applicant’s conduct — Respondent sought elevated costs due to Applicant’s litigation strategy — Whether Applicant’s conduct warranted sanction through elevated costs — Substantial indemnity costs awarded where conduct deemed worthy of sanction — Governing principles from Rule 57.01 and Rule 1.04(1.1) of the Rules of Civil Procedure applied | Civil procedure — Costs — Reasonable amount — Fixing of costs — Respondent claimed $43,588.92 on a full indemnity basis or $35,564.14 on a substantial indemnity basis — Applicant argued for partial indemnity costs of $9,229.42 — Court ordered $30,000.00 as fair and reasonable — Factors considered under Rule 57.01 and proportionality principle under Rule 1.04(1.1) | Statutory interpretation — Rule 49.10 — Applicability to applications — Rule 49.10 references plaintiffs and defendants, not applicants and respondents — Court held that failure to accept a reasonable offer to settle may still justify elevated costs — Interpretation of Rule 49.10 in the context of applications
CanLII | Apr 16, 2019
- keywords: Judgments and orders — Default judgments — Application to set aside default judgment
CanLII | Apr 16, 2019
- keywords: Commercialle — Companies’ Creditors Arrangement Act — R.S.C. 1985, c. C-36, s. 11.2
CanLII | Apr 12, 2019
- keywords: Bankruptcy — Receivers — Lien agreements — Construction law
CanLII | Apr 12, 2019
- keywords: Civil procedure — Summary judgment — Limitation periods — Motions for summary judgment to dismiss actions as statute-barred under the Limitations Act, 2002 — Whether the summary judgment process is appropriate for determining limitation period issues in professional negligence claims — Court held that the complexity of the factual matrix and limited record precluded a fair and just determination — Rule 20.04(2)(a) of the Rules of Civil Procedure and Hryniak v. Mauldin framework applied | Professional responsibility — Professional negligence — Limitation periods — Claims against auditors, financial advisors, and legal counsel for alleged negligence in professional services provided during a financial transaction — Whether the defendants’ conduct fell within the limitation period — Court found genuine issues requiring a trial regarding the defendants’ roles and advice — Limitations Act, 2002, ss. 4, 5 | Bankruptcy and insolvency — CCAA proceedings — Discoverability of claims — Plaintiff corporation under CCAA protection alleged professional negligence against its former advisors — Whether claims were discovered before the appointment of the Chief Restructuring Officer and Litigation Trustee — Court held that the discoverability issue required a full trial due to the complex factual matrix — Companies’ Creditors Arrangement Act, R.S.C. 1985, c. C-36 | Evidence — Discoverability — Limitation periods — Whether the plaintiff’s board of directors had actual or constructive knowledge of claims against professional advisors — Board minutes, correspondence, and financial statements reviewed — Court found insufficient evidence to determine discoverability on a summary judgment motion — Nasr Hospitality Services Inc. v. Intact Insurance framework applied
CanLII | Apr 5, 2019
- keywords: Business associations — Oppression remedy — Winding-up order — Shareholder disputes — Legal fees — Whether legal fees incurred by appellants in appealing a winding-up order should be paid by the corporation or individual respondents — Court held that legal fees for the appeal were not incurred in the ordinary course of business and must be borne by the individual respondents — Principles governing allocation of legal costs in shareholder disputes | Estates and trusts — Fiduciary duty — Oppression — Breach of fiduciary duty by directors — Estate of deceased shareholder alleging oppressive conduct by surviving shareholders — Whether the estate should indirectly bear the costs of litigation through corporate funds — Court held that the estate should not subsidize the legal costs of the individual respondents — Remedies for breach of fiduciary duty in estate-related corporate disputes | Statutory interpretation — Stay orders — Ordinary course of business — Whether a stay order permitting a corporation to carry on business in the ordinary course allows for payment of legal fees for an appeal — Court interpreted the stay order as prohibiting the use of corporate funds for legal fees benefiting individual respondents — Principles of statutory interpretation applied to stay orders in corporate litigation | Civil procedure — Costs — Reconciliation of orders — Reconciling costs and stay orders to ensure fairness between shareholders — Whether costs orders and stay orders can be harmonized to prevent one shareholder from subsidizing the other’s litigation — Court held that costs orders must ensure a level playing field and prevent indirect subsidization of litigation costs — Framework for reconciling procedural orders in corporate disputes
CanLII | Mar 29, 2019
- keywords: Civil procedure — Vexatious litigants — Motions — Evidence — Cross-examination
CanLII | Mar 26, 2019
- keywords: Bankruptcy and insolvency — Civil procedure — Costs — Orders — Enforcement
CanLII | Mar 25, 2019
- keywords: Property — Condominium disputes — Oppression remedy — False or misleading information — TSCC 1628 alleged that the Reciprocal Agreement imposed disproportionate costs and was oppressive under s. 135 of the Condominium Act — Does the court have jurisdiction to hear claims of oppression and false or misleading information? — Oppression claims under s. 135 and false information claims under s. 133 must be brought before the Superior Court of Justice | Contracts — Arbitration clauses — Condominium agreements — TSCC 1636 sought to stay TSCC 1628’s application in favour of arbitration under the Reciprocal Agreement and s. 132 of the Condominium Act — Should the application be stayed in favour of arbitration? — Arbitration clauses apply to disputes under agreements, but oppression claims fall outside their scope | Statutory interpretation — Condominium Act — Jurisdiction of courts versus arbitration — TSCC 1628 argued that s. 135 of the Condominium Act provides exclusive jurisdiction to the court for oppression claims — Does s. 132 of the Condominium Act mandate arbitration for all disputes under condominium agreements? — Oppression claims under s. 135 are distinct from arbitration-mandated disputes under s. 132 | Civil procedure — Avoidance of bifurcation — Multiplicity of proceedings — TSCC 1628 sought to avoid bifurcation of claims between arbitration and court proceedings — Should the court exercise its discretion to hear all claims together? — Courts should avoid bifurcation where claims are interrelated and efficiency is promoted under s. 138 of the Courts of Justice Act and r. 1.04 of the Rules of Civil Procedure
CanLII | Mar 22, 2019
- keywords: Contract law — Interpretation — Sattva Capital Corp. v. Creston Moly CORP., 2014 Scc 53 — Companies’ Creditors Arrangement Act
CanLII | Mar 21, 2019
- keywords: Civil procedure — Security for costs — Rule 56.01(1)(d) — Defendants sought additional security for costs for the period from discoveries to trial — Plaintiffs argued they had sufficient assets to satisfy costs — Should the plaintiffs be required to post additional security for costs? — Test requires showing good reason to believe plaintiffs lack sufficient assets — Rule 56.01(1)(d) of the Rules of Civil Procedure applied | Civil procedure — Security for costs — Rule 56.07 — Defendants sought increased security for costs for the discovery stage — Plaintiffs opposed the motion — Should the plaintiffs be required to post increased security for costs for discoveries? — Court considered whether the defendants’ request was reasonable and proportionate — Rule 56.07 of the Rules of Civil Procedure applied | Civil procedure — Evidence of assets — Corporate plaintiffs — Plaintiffs submitted evidence of 1636833 Ontario Inc.’s financial condition, including bank balances and business operations — Did the plaintiffs provide sufficient evidence to demonstrate that 1636833 Ontario Inc. has sufficient assets to satisfy a costs award? — Court found plaintiffs’ evidence sufficient to establish that 1636833 Ontario Inc. had adequate liquid assets — Rule 56.01(1)(d) of the Rules of Civil Procedure applied
CanLII | Mar 19, 2019
- keywords: Bankruptcy and insolvency — Receivership — Recovery of damages — Receiver appointed to sell property after owner defaulted on obligations — Defendant failed to close purchase of property and breached multiple court orders — Receiver sought damages and obtained default judgment — Defendant moved to set aside default judgment and striking of defence — Whether defendant’s conduct justified relief from default judgment — Rules of Civil Procedure, R.R.O. 1990, Reg. 194, Rule 19.08(1) | Civil procedure — Default judgment — Setting aside — Defendant failed to comply with court orders and deadlines, resulting in striking of defence and default judgment — Defendant argued health issues, family obligations, and procedural fairness — Whether defendant moved promptly and provided plausible excuse for breaches — Factors from Mountain View Farms Ltd. v. McQueen applied — Rules of Civil Procedure, R.R.O. 1990, Reg. 194, Rule 19.08(1) | Civil procedure — Arguable defence — Defendant claimed receiver failed to maintain property and denied access for inspection — Agreement of Purchase and Sale provided “as-is, where-is” clause — Court found no air of reality to defence — Defendant failed to justify failure to close purchase — Whether defendant established arguable defence on merits — Rules of Civil Procedure, R.R.O. 1990, Reg. 194, Rule 19.08(1) | Civil procedure — Prejudice and administration of justice — Prejudice to defendant from $7 million judgment weighed against prejudice to receiver and creditors from delays and costs — Defendant’s repeated breaches of court orders undermined integrity of justice system — Whether setting aside default judgment would harm administration of justice — Rules of Civil Procedure, R.R.O. 1990, Reg. 194, Rule 19.08(1)
CanLII | Mar 15, 2019
- keywords: Business associations — Share valuation — Corporate transactions — Oppression remedy — Applicant sought production of documents related to a corporate transaction occurring after the Valuation Date — Whether the transaction was relevant to the valuation of shares under the Business Corporations Act — Court held that the Valuator had authority to determine relevance under the Agreement — Business Corporations Act, R.S.O. 1990, c. B.16 | Contracts — Share valuation — Relevance of subsequent corporate transactions — Applicant argued that a later corporate transaction materially affected the valuation of shares — Whether the Agreement required production of documents related to the transaction — Court held that the Valuator had discretion to determine relevance under the Agreement — Terms of the Agreement govern the Valuator’s authority | Civil procedure — Striking applications — Abuse of process — Respondents sought to strike the Notice of Application against certain parties for lack of contractual relationship and improper purpose — Court struck the Application against Datawatch and Peterson Partners but allowed it to proceed against Angoss — Rule 21.01 of the Rules of Civil Procedure applied | Civil procedure — Stay of proceedings — Pending determination by Valuator — Respondents sought to stay the Application until the Valuator determined the relevance of the Datawatch transaction — Court declined to stay the Application, finding the requirements for a stay were not met — Rules of Civil Procedure, Rule 14.09
CanLII | Mar 15, 2019
- keywords: Bankruptcy and insolvency — Companies’ Creditors Arrangement Act (CCAA) — Initial Order — Stay of proceedings — Applicants sought a stay of all existing and prospective proceedings to facilitate restructuring and resolve claims — Should the court grant the Initial Order under the CCAA? — Purpose of the CCAA to maintain the status quo and allow debtor companies to consult with creditors — Stay granted to prevent harm to stakeholders and ensure equitable treatment of claimants | Civil procedure — Stay of proceedings — Extension to non-Applicants — Applicants requested the stay of proceedings under the CCAA to be extended to affiliates and subsidiaries — Should the stay be extended to non-Applicant related entities? — Court found the entities highly integrated with Applicants and indispensable to restructuring — Stay extended to ensure consistency and prevent prejudice to claimants | Statutory interpretation — Charges under the CCAA — Administration Charge, Tobacco Claimant Coordinator Charge, Directors’ and Officers’ Charge, and Sales and Excise Taxes Charge — Are the charges reasonable and necessary under the CCAA? — Charges approved as reasonable given the complexity of the restructuring and the need to protect stakeholders and ensure stability | Bankruptcy and insolvency — Appointment of Monitor — FTI Consulting Canada Inc. proposed as Monitor under the CCAA — Is the appointment of FTI Consulting Canada Inc. appropriate? — Court found FTI qualified and experienced, with no conflicts under s. 11.7(2) of the CCAA — Appointment approved
CanLII | Mar 15, 2019
- keywords: Lease — Commercial lease — Termination — Assignment of lease — Landlord withholding consent — Tenant sought to assign lease to third party under an asset purchase agreement — Landlord refused consent, citing tenant’s alleged insolvency and lack of suitability of the assignee — Did the landlord unreasonably withhold consent to the assignment? — Landlord’s refusal deemed unreasonable — Commercial Tenancies Act, R.S.O. 1990, c. L.7, s. 23(2) | Bankruptcy and insolvency — Insolvency under lease terms — Tenant alleged to be insolvent due to financial difficulties and appointment of sales officer — Tenant argued it remained solvent and current with financial obligations — Does financial difficulty alone constitute insolvency under the lease? — Tenant found not to be insolvent — Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3 | Lease — Default provisions — Liquidation of assets — Landlord alleged that sales process constituted liquidation under lease default clause — Tenant argued sale was of business as a going concern, not liquidation — Does a sales process for a going concern constitute liquidation under the lease? — Court held no liquidation occurred — Commercial Tenancies Act, R.S.O. 1990, c. L.7
CanLII | Mar 14, 2019
- keywords: Bankruptcy and insolvency — Companies’ Creditors Arrangement Act (CCAA) — Insolvency — Protection under CCAA — Applicant facing $13.5 billion judgment and $500 billion in claims — Does the applicant qualify for protection under the CCAA? — CCAA applies to insolvent companies with liabilities exceeding $5 million — Applicant deemed insolvent and eligible for CCAA protection | Civil procedure — Stay of proceedings — Non-applicant third parties — Applicant sought stay of proceedings for itself and other defendants in related litigation — Should the stay of proceedings be granted, including for non-applicant third parties? — Court has discretion under s. 11 of the CCAA to extend stay to third parties if necessary for restructuring — Stay granted to prevent economic harm to stakeholders | Bankruptcy and insolvency — Monitor appointment — Proposed Monitor — Applicant sought appointment of Deloitte Restructuring Inc. as Monitor — Should the Proposed Monitor be appointed? — Court satisfied that Deloitte met statutory requirements under s. 11.7 of the CCAA — Monitor appointment approved | Taxation — Priority charges — Administrative, directors’, and tax charges — Applicant sought approval of charges to ensure stability during restructuring — Should the requested charges be granted? — Court approved charges as reasonable and necessary under s. 11.52 of the CCAA — Charges granted to protect stakeholders and ensure compliance with tax obligations | Bankruptcy and insolvency — Pre-filing and post-filing payments — Applicant sought authorization to pay certain pre-filing and post-filing obligations — Should the Court allow these payments? — Payments deemed necessary to maintain operations and minimize disruption — Monitor supported payments — Authorization granted | Bankruptcy and insolvency — Chief Restructuring Officer (CRO) — Sealing order — Applicant sought appointment of CRO and sealing of CRO Engagement Letter — Should the CRO be appointed, and the Engagement Letter sealed? — CRO appointment approved as necessary for restructuring — Sealing order granted to protect commercially sensitive information | Bankruptcy and insolvency — Appeal to Supreme Court of Canada — Applicant sought authorization to continue appeal of Quebec judgment — Should the applicant be authorized to continue its appeal? — Court found appeal reasonable and in the interest of stakeholders — Authorization granted
CanLII | Mar 12, 2019
- keywords: Civil procedure — Discovery — Representative for discovery — Conflict of interest — Plaintiffs sought to disqualify the defendant’s representative for discovery due to a consulting contract with one of the Incumbents — Whether the representative’s conflict of interest rendered him demonstrably unsatisfactory — Balancing Crown’s discretion to select a representative with the plaintiffs’ right to fair discovery — Crown Liability and Proceedings (Provincial Court) Regulations, s. 7 | Contracts — Conflict of interest — Consulting contract — Defendant’s representative for discovery had a consulting contract with one of the Incumbents — Contract required the representative to act in the Incumbent’s best interests and avoid prejudicial conduct — Whether the consulting contract created an irreconcilable conflict of interest — Contractual obligations versus duties as a discovery witness | Statutory interpretation — Crown Liability and Proceedings Act — Crown Liability and Proceedings (Provincial Court) Regulations — Interpretation of “officer or servant” under s. 7 of the Regulations — Whether a retired government official with a consulting contract qualifies as a “servant” for the purpose of discovery — Crown’s discretion to designate a representative for discovery | Evidence — Discovery — Witness credibility — Plaintiffs alleged that the defendant’s representative tailored his evidence to protect the Incumbent’s interests — Representative’s refusal to answer relevant questions and reluctance to provide straightforward answers — Whether the representative’s conduct undermined the fairness of the discovery process — Standard for determining a “demonstrably unsatisfactory” witness
CanLII | Mar 11, 2019
- keywords: Bankruptcy and insolvency — Jurisdiction — Bankruptcy application — Debtor residing in Hamilton — Application issued in Toronto — Whether Toronto court has jurisdiction to hear the application under the BIA — Administrative structure of bankruptcy courts in Ontario — Section 43(5) of the BIA interpreted to designate Toronto as the proper court for Hamilton debtors — Appeal allowed — Registrar’s decision set aside | Statutory interpretation — Bankruptcy and Insolvency Act — Jurisdiction of bankruptcy courts — Interpretation of section 43(5) of the BIA — Whether the judicial district of the debtor’s locality determines the proper court — Toronto court designated as the proper court for Hamilton debtors under Ontario’s bankruptcy administrative structure | Civil procedure — Transfer of proceedings — Registrar in Bankruptcy transferring application to Hamilton court — Section 187(10) of the BIA — Whether the Registrar erred in transferring the application to Hamilton — No Registrar in Bankruptcy in Hamilton — Toronto court deemed the proper court — Appeal allowed | Evidence — Administrative evidence — Evidence submitted by the Attorney General of Ontario — Uncontradicted evidence regarding the administrative structure of bankruptcy courts in Ontario — Evidence supported Toronto court’s jurisdiction over Hamilton debtors — Registrar’s decision found to be in error
CanLII | Mar 8, 2019
- keywords: International law — Recognition and enforcement of foreign arbitral awards — Application under the International Commercial Arbitration Act, 2017 — Arbitral award issued by CIETAC — Applicants sought recognition and enforcement of RMB 51,398,996 award in Ontario — Does the award meet the requirements for recognition under the Model Law and the New York Convention? — Framework for enforcing international arbitral awards under Ontario law | Civil procedure — Proper notice — Service of arbitration documents — Respondent argued lack of notice of arbitral proceedings and appointment of arbitrators — CIETAC Rules on service — Multiple attempts to serve respondent in China and Canada — Was the respondent given proper notice under the Model Law and CIETAC Rules? — Proper notice standard satisfied by reasonable efforts to inform the party | Statutory interpretation — International commercial arbitration — Definition under the Model Law — Respondent argued arbitration was not “international” due to lack of foreign elements — Habitual residence of respondent in Canada at the time of the arbitration agreement — Does the arbitration qualify as “international” under Article 1(3) of the Model Law? — Interpretation of “habitual residence” and “place of business” in determining internationality
CanLII | Mar 8, 2019
- keywords: Civil procedure — Motions — Types of motions — Ex parte — Mandatory mediation — Rules of Civil Procedure Rules 74.12, 74.18.
CanLII | Mar 4, 2019
- keywords: Commercial law — Corporations — Arrangements and compromises
CanLII | Feb 25, 2019
- keywords: Civil procedure — Stay of proceedings — Urgent motion for stay — Defendant sought stay of February 12, 2019 order to appeal production requirements — Whether urgency and irreparable harm justified granting a stay — Test for interim stay includes serious issue to be tried, irreparable harm, and balance of convenience — Stay denied due to lack of serious issue and balance of convenience favouring plaintiff — Rules of Civil Procedure, RRO 1990, Reg. 194, Rule 63.02(1)(a), (b) | Evidence — Privilege — Interpretation of consent order — Defendant argued February 12, 2019 order misinterpreted January 7, 2019 consent order regarding privilege — Whether privilege was waived or not asserted in time — Court found privilege not preserved due to defendant’s failure to assert or prove privilege during earlier proceedings — Privilege claims dismissed as unsupported | Evidence — Burden of proof — Privilege and confidentiality — Defendant failed to provide evidence supporting claims of privilege or confidentiality over documents ordered for production — No affidavit of documents or schedule of privileged materials provided — Court emphasized burden of proof lies on party asserting privilege — Privilege claims rejected | Professional responsibility — Costs — Self-represented lawyer — Costs awarded against defendant for bringing stay motion — Defendant’s conduct, including delay and lack of preparation, considered — Partial indemnity costs of $2,000 awarded, with potential for further costs to be assessed at summary judgment motion
CanLII | Feb 22, 2019
- keywords: Civil procedure — Dismissal for delay — Setting aside
CanLII | Feb 21, 2019
- keywords: Civil procedure — Costs — Motion for interlocutory injunction
CanLII | Feb 20, 2019
- keywords: Bankruptcy and insolvency — Application of CCAA — Insolvency — Aggregate claims exceeding $5 million — Applicants unable to meet liabilities as they become due — Does the CCAA apply to the Applicants? — Court satisfied that Applicants qualify as “debtor companies” under section 2(1) of the CCAA | Bankruptcy and insolvency — Stay of proceedings — Extension to partnership — Prevention of enforcement actions by creditors — Should the stay of proceedings extend to Payless Canada LP? — Stay extended to partnership as it is integral to Applicants’ operations — Re Lehndorff General Partner Ltd. and related precedents applied | Bankruptcy and insolvency — Appointment of Monitor and CRO — Administration Charge — Necessity of CRO due to senior management departures — Should the Monitor and CRO be appointed, and their charges approved? — FTI Consulting Canada Inc. appointed as Monitor; Ankura appointed as CRO; Administration Charge of USD $2 million approved | Bankruptcy and insolvency — Directors’ Charge — Protection of directors and officers — Should the Directors’ Charge be approved? — Directors’ Charge approved in the amount of USD $4 million, reducing to USD $2 million after March 21, 2019, for amounts not covered by liability insurance | Bankruptcy and insolvency — Cross-border protocol — Coordination with U.S. bankruptcy proceedings — Approval of protocol consistent with JIN Guidelines — Should the cross-border protocol be approved? — Protocol approved to facilitate international cooperation and preserve enterprise value
CanLII | Feb 20, 2019
- keywords: Business associations — Indemnification — Legal expenses — Directors and officers — Shareholder claims — Whether individual defendants are entitled to advances for legal expenses under corporate by-laws, SPA, and OBCA — Interpretation of indemnification provisions in corporate governance documents — Blair v Consolidated Enfield Corp. test for indemnification — Advancement of legal costs upheld absent bad faith or procedural barriers | Contracts — Share Purchase Agreement (SPA) — Representations and warranties — Financial misstatements — Breach of contract — Whether financial misrepresentations in SPA entitle plaintiff to damages — Indemnification obligations under SPA for inaccuracies in financial statements — Section 7.1(b) of SPA governing seller liability for misstatements | Evidence — Bad faith — Fiduciary duties — CFO liability — Whether plaintiff established a strong prima facie case of bad faith against Clinton — Allegations of recklessness and self-serving conduct — Insufficient evidence to infer dishonesty or mala fides — High evidentiary threshold for denying indemnification under Blair v Consolidated Enfield Corp | Obligations — Indemnity rights — Legal fee funding agreements — Third-party funding — Whether third-party funding agreements preclude recovery of legal expenses under indemnity rights — Funding agreements irrelevant to corporate indemnity obligations — Med-Chem Health Care Ltd. v Misir applied | Civil procedure — Procedural fairness — Cross-examination — Allegations of bad faith — Whether plaintiff’s procedural approach denied Clinton a fair opportunity to respond — Adequacy of disclosure and cross-examination process — No procedural unfairness found — Rules of Civil Procedure, R.R.O. 1990, Reg. 194, applied | Sale — Share Purchase Agreement (SPA) — Fiduciary duties — Breach of duty — Whether plaintiff improperly merged claims for breach of fiduciary duty owed to Old Noranco with claims for damages under SPA — Distinction between corporate and purchaser claims — Issue deferred to trial
CanLII | Feb 19, 2019
- keywords: Transactions — Anti-trust class actions — Companies’ Creditors Arrangement Act — R.S.C. 1985, c. C-36 — Rules of Civil Procedure, r. 39.02(2)
CanLII | Feb 13, 2019
- keywords: Business associations — Corporate records — Rectification — Shareholder payments — Applicant sought rectification of corporate records to reclassify shareholder payments as non-taxable dividends — Whether rectification is an appropriate remedy to correct corporate records in the absence of specific antecedent agreements — Rectification is not a substitute for due diligence or failure to maintain proper records — Canada Business Corporations Act, RSC 1985, c. C-44 | Taxation — Income Tax Act — Tax-free dividends — Shareholder loans — Applicant sought to retroactively declare a tax-free dividend to offset shareholder payments recorded as loans — Whether rectification can be used to achieve retroactive tax planning — Rectification requires proof of a specific mechanism in an antecedent agreement — Income Tax Act, RSC 1985, c. 1 (5th Supp) | Statutory interpretation — Equitable remedies — Rectification — Supreme Court of Canada precedent — Whether the Fairmont Hotels decision restricts the use of rectification to correct corporate records for tax purposes — Rectification aligns records with specific terms of an antecedent agreement, not general intentions to minimize tax liability — Canada (Attorney General) v. Fairmont Hotels Inc., 2016 SCC 56 | Administrative law — Adjournment — Ministerial decision — Applicant requested adjournment to await the Minister’s decision on amending a tax election form (T2057) — Whether the court should refuse adjournment to avoid procedural gridlock — Adjournment denied as the issue before the court was limited to rectification of corporate records
CanLII | Feb 7, 2019
- keywords: Business associations — Oppression remedy — Revocation of continuing professional development program approvals — Applicant alleged oppression by the Immigration Consultants of Canada Regulatory Council — Did the revocation of approvals constitute oppressive conduct under section 253 of the Canada Not-for-Profit Corporations Act? — Oppression remedy requires proof of reasonable expectations and conduct that is oppressive, unfairly prejudicial, or unfairly disregards interests — No evidence of bad faith or oppression found | Statutory interpretation — Appointment of inspector — Applicant sought appointment of an inspector to investigate alleged fraud, financial mismanagement, and human rights violations by the Immigration Consultants of Canada Regulatory Council — Does section 242 of the Canada Not-for-Profit Corporations Act permit the appointment of an inspector in these circumstances? — Court found no prima facie case of oppression, fraud, or unfair prejudice — Appointment of inspector denied | Civil procedure — Costs — Substantial indemnity costs awarded to the respondent — Applicant’s conduct, including filing excessive materials and issuing numerous subpoenas, deemed vexatious — What is the appropriate basis for awarding costs in this case? — Costs of $75,000 awarded, with joint and several liability for $55,000 and individual liability for $20,000
CanLII | Feb 6, 2019
- keywords: Criminal procedure — Abuse of process — Summary dismissal — Application to summarily dismiss abuse of process claim without a full evidentiary hearing — Whether the application had a reasonable prospect of success — Test for abuse of process under R. v. Babos — Trial judge’s discretion to summarily dismiss frivolous applications — Application dismissed as having no reasonable prospect of success | Criminal procedure — Abuse of process — Coordination of civil and criminal proceedings — Allegations of improper coordination between civil litigation and criminal prosecution — Whether criminal process was used to collect a civil debt — Independent investigation by police and Crown charge screening — No evidence of improper coordination or state misconduct — Application dismissed | Professional responsibility — Crown counsel — Pre-charge involvement — Allegations of improper Crown involvement in police investigation — Whether Crown counsel compromised police independence — Crown’s role limited to providing legal advice and assistance — No evidence of improper influence or breach of independence — Application dismissed | Evidence — Disclosure — Police notes and KGB statement — Alleged delay in disclosure of police notes and timing of complainant’s KGB statement — Whether delays were tactical and prejudicial — Disclosure provided in accordance with Stinchcombe principles — KGB statement timing appropriate given investigative priorities — No prejudice or abuse of process found | Criminal procedure — Direct indictment — Allegations of impropriety — Delay in preferring direct indictment — Refusal to disclose materials submitted to Deputy Attorney General — Whether direct indictment was improperly motivated — Independent review by Crown and Deputy Attorney General — No evidence of improper motive or abuse of process — Application dismissed
CanLII | Feb 6, 2019
- keywords: Bankruptcy and insolvency — Proposal proceedings — Disallowance of claims — Appellants sought recognition of trust and unsecured claims in bankruptcy proposal proceedings — Whether appellants had valid trust claims or unsecured claims for damages — Governing principles under the Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3 — Appeal dismissed as claims were not valid or enforceable | Estates and trusts — Express trust — Certainty of intention — Appellants claimed a 20% beneficial interest in property sale proceeds under an amended trust declaration — Whether the amended trust created an express trust with sufficient certainty of intention — Court found no certainty of intention to create a trust — Principles from Antle v. Canada applied | Estates and trusts — Constructive trust — Unjust enrichment — Appellants sought constructive trust over property sale proceeds or funds paid to respondent — Whether unjust enrichment or wrongful conduct justified imposing a constructive trust — Court found no unjust enrichment or equitable obligation breached — Test from Soulos v. Korkontzilas applied | Estates and trusts — Trust claims — Priority in distribution — Appellants argued for priority in sale proceeds if trust claims were valid — Whether trust liabilities should be deducted before distribution to beneficiaries — Court held trust liabilities must be satisfied before any residual benefit — Principles of trust law and trustee indemnity applied | Business associations — Oppression remedy — Shareholder rights — Appellants alleged oppressive conduct by respondent under Business Corporations Act (Ontario) — Whether appellants’ reasonable expectations as shareholders were breached — Court found no evidence of oppressive conduct or breach of reasonable expectations — BCE Inc. v. 1976 Debentureholders framework applied
CanLII | Jan 24, 2019
- keywords: Bankruptcy and insolvency — Priorities | Civil procedure — Class proceedings — Costs | Personal property security — Priorities
CanLII | Jan 22, 2019
- keywords: Practice — Stay of motions | Construction of statutes — Courts of Justice Act, s. 11(2)
CanLII | Jan 14, 2019
- keywords: Commercial law — Corporations — Arrangements and compromises
CanLII | Jan 11, 2019
- keywords: Civil procedure — Motions — Evidence — Burden of proof
CanLII | Jan 10, 2019
- keywords: Civil procedure — Motions to strike — Pleadings — Defamation, intentional interference with economic relations, and unjust enrichment claims — Whether claims should be struck for failing to disclose a reasonable cause of action — Application of Rule 21.01(1)(b) and Rule 25.06(1) of the Rules of Civil Procedure — High threshold for striking pleadings — Hunt v. Carey Canada Inc. test applied | Torts — Defamation — Conspiracy — Intentional interference with economic relations — Plaintiffs alleged conspiracy to harm through defamatory publications and short selling — Whether pleadings sufficiently particularized to establish claims — Requirements for defamation and conspiracy claims — Material facts and overt acts must be pleaded — Rule 25.06(1) of the Rules of Civil Procedure | Torts — Abuse of process — Whistleblower complaints — Absolute privilege — Whether the tort of abuse of process can apply to whistleblower complaints made to the Ontario Securities Commission — Absolute privilege for regulatory complaints — No reasonable cause of action for abuse of process — Policy considerations for whistleblower immunity | Securities — Whistleblower complaints — Ontario Securities Commission — Absolute privilege — Complaints made under the OSC whistleblower program — Whether complaints constitute legal proceedings for the purposes of the tort of abuse of process — Distinction between confidential regulatory complaints and legal proceedings — Securities Act, R.S.O. 1990, c. S.5 | Civil procedure — Costs — Allocation of costs — Partial success on motions to strike — Costs awarded to defendants on a partial indemnity basis — Allocation based on proportion of claims struck versus claims allowed to proceed — Costs fixed for each defendant group
CanLII | Jan 9, 2019
- keywords: Bankruptcy and insolvency — Refinancing agreements — Forbearance arrangements — Templar Hotel Corporation declared bankrupt after failing to meet refinancing terms — Applicant sought declaration of debt owed by the bankrupt — Does the Forbearance Agreement preserve the full debt amount or reduce it to $8.5 million? — Principles of contractual interpretation applied to determine the enforceability of the agreement | Contracts — Refinancing terms — Forbearance Agreement — Dispute over whether refinancing constituted a loan of $8.5 million or a forbearance arrangement — Did the parties agree to a permanent reduction of the Romspen Loan principal? — Court held that the agreement preserved the full debt amount unless specific conditions were met | Statutory interpretation — Interest Act, s. 8 — Applicability to forbearance agreements — Whether the Forbearance Agreement violated s. 8 of the Interest Act by increasing the charge on arrears — Court held that s. 8 did not apply as the agreement constituted a forbearance, not a penalty or interest rate increase | Property — Mortgage enforcement — Sale of secured property — Applicant claimed deficiency after sale of mortgaged property — Whether proceeds of sale satisfied the debt under the Forbearance Agreement — Court declared that the debt remained at least $7 million after the sale
CanLII | Jan 8, 2019
- keywords: Torts — Negligence — Duty of care — proximity — Pleadings — Rules of Civil Procedure, r. 21.01(1)(b), Motion to strike — Hunt v. Carey Canada INC., [1990] 2 S.C.R. 959
CanLII | Jan 8, 2019
- keywords: Business associations — Share valuation — Dissenting shareholders — Costs — Mixed results in share valuation application — Should each party bear their own costs, including expert fees? — Court held that each party should bear their own costs, following the principle in Brant Investments Ltd. v. KeepRite Inc | Civil procedure — Costs — Mixed results in litigation — Expert fees — Parties failed to settle costs despite judicial encouragement — Should costs be awarded to any party? — Court determined that no costs should be awarded, with each party bearing their own expenses | Securities — Share valuation — Pre-judgment and post-judgment interest — Dissenting shareholders — Should interest be awarded on the value of shares, and if so, at what rate and from what date? — Court awarded interest at the prescribed rate under the Courts of Justice Act from the statutory offer date to the judgment date | Statutory interpretation — Ontario Business Corporations Act — Corporate insolvency — Discretion to award interest — Does the OBCA restrict the court’s discretion to award interest to dissenting shareholders in cases of alleged insolvency? — Court held that s. 185(30) of the OBCA does not curtail judicial discretion under s. 185(27) to award interest
CanLII | Jan 7, 2019
- keywords: Business associations — Share valuation — Oppression remedy — Minority shareholder ousted from company — Determination of fair market value of shares — Dispute over valuation methodologies, including going-concern and liquidation approaches — Adjustments for legal fees and project profits — Should the fair market value of the applicant’s shares be determined using an adjusted book value approach? — Adjusted book value approach preferred due to business continuity and financial stability | Civil procedure — Costs — Oppression application and counter-application — Applicant and counter-application respondents successful — Respondents’ conduct during litigation increased costs — Should costs be awarded on a substantial indemnity scale? — Substantial indemnity costs awarded due to respondents’ excessive posturing, incivility, and failure to cooperate | Civil procedure — Litigation conduct — Incivility and excessive correspondence — Respondents accused of escalating conflict and driving up costs — Should the respondents’ conduct warrant sanctions in the form of increased costs? — Respondents’ conduct warranted substantial indemnity costs as a sanction for their litigation behaviour
CanLII | Jan 4, 2019
- keywords: Estates and trusts — Charitable trusts — Statutory trust — MPGC incorporated in 1871 to administer a statutory trust created in 1826 for public cemeteries — Does MPGC hold its assets as a statutory trust for charitable purposes? — Trust objects limited to cemetery use — MPGC is a trustee under the Charities Accounting Act — Statutory trust for charitable purposes confirmed | Civil procedure — Standing — Public interest standing — Applicants sought declarations regarding governance of MPGC and compliance with statutory trust obligations — Do the applicants have public interest standing? — Public interest standing not limited to constitutional cases — Applicants demonstrated a serious justiciable issue and a stake in governance — Standing granted | Statutory interpretation — Governance of statutory trust — Appointment of trustees — MPGC directors not validly appointed under the 1849 Act — Does the 1849 Act continue to govern trustee appointments? — 1849 Act not repealed by 1871 incorporation — Trustees must be appointed in compliance with statutory framework | Property — Use of trust lands — Visitation centres and funeral homes — MPGC operated visitation centres and funeral homes on cemetery lands — Do these activities exceed the objects of the statutory trust? — Trust objects limited to burial of the dead — Use of funds for visitation centres and funeral homes declared beyond trust objects | Statutory interpretation — Investigation under Charities Accounting Act — Applicants sought an investigation into MPGC governance under section 10 of the Charities Accounting Act — Should an investigation be ordered? — No evidence of financial impropriety or breach of trust — Public interest did not warrant an investigation
CanLII | Dec 31, 2018
- keywords: Civil procedure — Contempt of court — Breach of court orders — Defendant found guilty of contempt for failing to disclose assets and dissipating them in violation of May 14 and May 23, 2018 orders — Did the defendant intentionally breach the orders? — Test for civil contempt from Carey v. Laiken applied — Orders must be clear, known to the party, and intentionally breached — Contempt proven beyond a reasonable doubt | Bankruptcy and insolvency — Undischarged bankrupt — Fraudulent dissipation of assets — Defendant, an undischarged bankrupt, engaged in fraudulent transactions to shield assets from creditors — Whether the defendant’s actions violated bankruptcy obligations and court orders — Defendant’s conduct found to be deliberate and calculated — Court emphasized the importance of compliance with bankruptcy and insolvency laws | Evidence — Knowledge of court orders — Defendant claimed lack of understanding of court orders — Evidence demonstrated defendant’s actual knowledge of orders and deliberate non-compliance — Whether the orders were clear and unequivocal — Court found orders were sufficiently clear and defendant had actual knowledge — Test for knowledge of court orders from Carey v. Laiken applied
CanLII | Dec 31, 2018
- keywords: Civil procedure — Mareva injunction — Fraud allegations — Plaintiff sought Mareva injunction to prevent dissipation of assets by defendants — Should the court grant a Mareva injunction in light of the evidence of fraud and risk of dissipation? — Requirements for Mareva injunction include full and frank disclosure, strong prima facie case, and risk of irreparable harm — Court granted injunction, finding risk of dissipation and irreparable harm to plaintiff | Evidence — Fraud — Prima facie case — Plaintiff alleged fraudulent claims under pharmaceutical reimbursement programs — Evidence included duplicate claims, statistical anomalies, and lack of cooperation in audits — Did the plaintiff establish a strong prima facie case of fraud? — Court found evidence sufficient to meet the threshold for a Mareva injunction | International law — Worldwide injunction — Scope of Mareva injunction — Plaintiff requested worldwide injunction to preserve assets of defendants — Should the court grant a worldwide Mareva injunction? — Court granted worldwide injunction for individual defendants, excluding one corporate defendant due to insufficient evidence
CanLII | Dec 28, 2018
- keywords: Business associations — Membership rights — Not-for-profit corporations — Dissident members — Corporation with over 2,000 members withholding electronic addresses from membership list — Should declarations be issued regarding past failures to call meetings on time? — Court declined to issue declarations but directed the corporation to provide electronic and postal addresses to members upon request — Members’ rights to requisition meetings and access membership lists upheld | Access to information — Membership lists — Not-for-profit corporations — Corporation withholding electronic addresses from membership list to frustrate dissident members — Is the corporation obligated to provide electronic and postal addresses upon request? — Corporation directed to provide electronic and postal addresses in the format in which records are kept — Obligation to facilitate communication among members | Civil procedure — Costs — Not-for-profit corporations — Dispute between corporation and dissident members — What costs should be awarded in disputes involving not-for-profit corporations? — Court awarded $20,000 in costs to the applicant — Costs awarded on a partial indemnity basis to reflect the reasonable expectations of the losing side and the nature of the organization
CanLII | Dec 14, 2018
- keywords: Civil procedure — Motions to strike — Statement of defence — Plaintiffs sought to strike portions of the statement of defence alleging motive and financial issues — Whether pleadings of motive are irrelevant, frivolous, or vexatious under Rule 25.11 — Court struck portions of the pleadings alleging motive but upheld others addressing causation of damages — Rule 25.11 of the Rules of Civil Procedure applied | Contracts — Share purchase agreement — Breach of representations — Plaintiffs alleged breaches of representations in a share purchase agreement caused financial losses — Defendants argued plaintiffs’ mismanagement and financial issues caused the losses — Whether allegations of motive in the statement of defence are relevant to the causes of action — Pleadings of motive struck as irrelevant | Statutory interpretation — Counterclaims — Contribution and indemnity — Defendants counterclaimed against Mr. Sauro for contribution and indemnity — Whether Rule 27.01 permits a counterclaim against a party not necessary or proper to the main counterclaim — Court held counterclaim improper as Mr. Sauro was not a necessary or proper party — Rule 27.01 of the Rules of Civil Procedure applied | Civil procedure — Costs — Divided success on plaintiffs’ motion to strike — Costs awarded to Mr. Sauro as the successful party on his motion — Costs fixed at $15,000 payable forthwith
CanLII | Dec 10, 2018
- keywords: Costs — Reasons for judgment — full indemnity costs
CanLII | Dec 7, 2018
- keywords: Statutory interpretation — Canada Post Corporation Act — Section 50 — Protestors blockading mail facilities — Does the protestors’ conduct constitute a criminal offense under the Act? — Interpretation of statutory provisions prohibiting interference with mail delivery — Court concluded that protestors’ actions were unlawful under Section 50 of the Canada Post Corporation Act | Constitution — Police discretion — Enforcement of civil injunctions — Can the court direct police services on how to enforce a civil order? — Jurisprudence confirms courts cannot interfere with police operational discretion — Odgen Entertainment Services v. Retail Wholesale Canada, Canadian Service Sector, U.S.W.A. Local 440 applied | Criminal infractions — Unlawful interference with mail delivery — Protestors blockading Canada Post facilities — Does the protestors’ conduct amount to a criminal offense? — Protestors’ actions delayed mail delivery, violating Section 50 of the Canada Post Corporation Act — Court found the conduct unlawful and not protected as a labour dispute | Civil procedure — Enforcement of injunctions — Remedies for non-compliance — What remedies are available when police discretion limits enforcement of a court order? — Contempt proceedings identified as the only available remedy — Court dismissed motion to direct police on enforcement methods
CanLII | Dec 5, 2018
- keywords: Bankruptcy and insolvency — Secured creditors — Insolvency — Real estate brokerage — Commissions payable to agents — Whether commissions are part of the debtor’s assets subject to secured creditors’ claims — Determination of whether commissions are held in trust or form part of the estate — Governing principles of insolvency law and secured creditor rights | Contracts — Certainty of intention — Trusts — Real estate commissions — Whether the evidence establishes the certainty of intention required to create a trust over commissions payable to agents — Application of the “three certainties” test — Certainty of subject matter, object, and intention — Governing principles of contract interpretation and trust creation | Estates and trusts — Trusts — Certainty of intention — Real estate commissions — Whether commissions are held in trust for the benefit of agents — Analysis of transaction documents, financial statements, and conduct of the parties — Governing principles of trust law and the “three certainties” test | Civil procedure — Costs — Unsuccessful motion — Agents’ responsible participation in proceedings — Whether costs should be awarded to agents despite their unsuccessful motion — Costs awarded to agents from the debtor’s estate — Governing principles of cost allocation in insolvency proceedings
CanLII | Nov 30, 2018
- keywords: Commercial law — Arbitration — Awards — Corporations — Fraud or oppression
CanLII | Nov 29, 2018
- keywords: Practice — Costs — Security for costs
CanLII | Nov 27, 2018
- keywords: Bankruptcy and insolvency — Receivership — Distribution of sale proceeds — Competing claims to proceeds of sale of property — Whether first mortgage was fully paid and assignment valid — Whether second mortgagee entitled to priority — Governing principles for distribution of proceeds under Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3, s. 243(1) — Courts of Justice Act, R.S.O. 1990, c. C.43, s. 101 | Evidence — Mortgage discharge — Validity of assignment — Whether first mortgage was discharged in full upon payment — Whether subsequent assignment of mortgage was valid — Lack of evidence of agreement to assign mortgage at time of payment — Governing principles for determining validity of mortgage assignments under Ontario law | Evidence — Mortgage claims — Disputed amounts — Whether claims for taxes, property management fees, and legal fees were valid and supported by evidence — Lack of proof of payment or contractual entitlement — Governing principles for assessing claims under mortgage agreements | Property — Mortgage priority — Promissory estoppel — Whether second mortgagee could subordinate first mortgagee’s claim through promissory estoppel — Governing principles for determining priority of claims under Ontario property law | Civil procedure — Admissibility of evidence — Late responses to undertakings — Whether late-filed documents and responses to undertakings were admissible — Credibility of respondent’s evidence challenged — Governing principles for admissibility of late evidence in Commercial List proceedings
CanLII | Nov 27, 2018
- keywords: Contract law — Breach — Repudiation — receiver | Creditors and debtors — receiver
CanLII | Nov 26, 2018
- keywords: Bankruptcy and insolvency — Key Employee Retention Plan (KERP) — Key Employee Incentive Plan (KEIP) — Approval of employee incentive and retention programs under the Companies' Creditors Arrangement Act (CCAA) — Should the court approve the proposed KERP and KEIP programs? — Court approval requires balancing stakeholder interests, necessity, and reasonableness of the programs — Companies' Creditors Arrangement Act, R.S.C. 1985, c. C-36 | Statutory interpretation — Companies' Creditors Arrangement Act (CCAA) — Criteria for approving KERP and KEIP programs — What principles guide the court in determining the necessity and reasonableness of employee incentive and retention programs? — Framework includes necessity, arm’s length safeguards, and reasonableness of design — Cinram International Inc. (Re), 2012 ONSC 3767; Grant Forest Products Inc. (Re), 2009 CanLII 42046 | Evidence — Role of the Monitor — Arm’s length safeguards — Does the involvement of the Monitor and secured creditors ensure objectivity in the design and implementation of KERP and KEIP programs? — Monitor’s recommendations and creditor input provide significant weight in assessing the programs — Court relies on independent oversight to ensure fairness and alignment with stakeholder interests | Labour and employment — Employee retention and incentives — Scope and design of KERP and KEIP programs — Are the proposed programs reasonable in scope, payment structure, and alignment with stakeholder interests? — Programs designed to retain key employees and incentivize senior management during insolvency — Payments tied to performance metrics and sales process outcomes — Reasonableness assessed relative to employee roles and market conditions
CanLII | Nov 21, 2018
- keywords: Contracts — Formation of contract — Essential terms — Exclusive insurance agreement — Whether discussions and dealings between the parties resulted in a legally binding contract — Agreement on exclusivity, term, termination, compensation, and customized product development — Parties’ conduct confirming agreement — Governing principles for determining enforceable contracts — Agreement found binding despite absence of signed formal contract | Evidence — Reliability of evidence — Witness testimony versus documentary evidence — Commercial agreements — Whether witness recollections or contemporaneous written records should be preferred in determining the existence of a binding contract — Court’s reliance on both documentary evidence and credible witness testimony — Principles from Blue v. Ashley and Bawitko Investments Ltd. applied | Insurance — Breach of contract — Damages — Termination without proper notice — Calculation of damages for breach of exclusive insurance agreement — Loss period and loss ratio determination — Expert evidence on financial loss quantification — Loss ratio set at 52% for damages calculation — Governing principles for assessing damages in breach of contract cases
CanLII | Nov 13, 2018
- keywords: Civil procedure — Interpleader — Competing claims — Bank holding funds related to cryptocurrency transactions sought interpleader relief to pay funds into court — Respondents opposed, claiming no competing claims existed — Is the applicant entitled to an interpleader order? — Applicant must demonstrate a real foundation for the expectation of competing claims — Rules of Civil Procedure, R.R.O. 1990, Reg. 194, Rule 43 | Evidence — Competing claims — Cryptocurrency exchange — Affidavit evidence from parties regarding entitlement to funds — Adverse inference drawn from refusal to answer relevant questions — Are there competing claims to the funds sufficient to justify interpleader relief? — Evidence must establish a real possibility of competing claims, not frivolous or speculative | Civil procedure — Liability — Bank sought to extinguish liability for freezing accounts — Court declined to extinguish liability absent evidentiary record — Should the court extinguish the applicant’s liability for freezing the accounts? — Interpleader relief cannot be used to relieve liability arising from the applicant’s own actions
CanLII | Nov 9, 2018
- keywords: Receivership — Application to reopen — Damages
CanLII | Nov 8, 2018
- keywords: Contracts — Fraudulent misrepresentation — Severance agreement — Release — Rescission — Appellant misrepresented innocence of financial dishonesty to induce York University to enter into severance agreement — Did the trial judge err in finding that the severance agreement and release were induced by fraudulent misrepresentation? — Rescission available where material misrepresentation induces a contract | Obligations — Fiduciary duties — Fraudulent conduct — Appellant, as a fiduciary, failed to disclose fraudulent activities before negotiating severance agreement — Should the severance agreement and release be rescinded due to the appellant’s fiduciary obligations? — Fiduciaries must act in good faith and disclose material facts during negotiations | Statutory interpretation — Limitations Act, 2002 — Discovery of claim — York University issued claim within two years of discovering appellant’s fraudulent conduct — Was York’s claim barred by the Limitations Act, 2002? — A claim is discovered when the claimant knows or ought to know of the loss and its cause | Labour and employment — Termination without cause — Severance agreement — Fiduciary obligations — Appellant’s dishonesty rendered continued employment untenable — Did the appellant’s fiduciary obligations impact the validity of the severance agreement? — Fiduciaries must prioritize employer’s interests during severance negotiations | Civil procedure — Costs — Full indemnity — Appellant’s dishonesty justified full indemnity costs award to York University — Did the trial judge err in awarding costs on a full indemnity basis? — Full indemnity costs appropriate where dishonesty or misconduct is established
CanLII | Nov 8, 2018
- keywords: Contract law — Quantum meruit — Security for Investors’ fees
CanLII | Nov 7, 2018
- keywords: Business associations — Dissenting shareholders — Valuation of shares — Application under s. 185(18) of the Ontario Business Corporations Act to determine fair market value of dissenting shareholders' shares — Whether company should be valued as a going concern or under liquidation approach — Court held company to be valued as a going concern despite financial difficulties — Ontario Business Corporations Act, R.S.O. 1990, c. B.16, s. 185(18) | Securities — Valuation methods — Discounted cash flow (DCF) — Whether DCF method was appropriately applied — Court held DCF method appropriate but required a three-month time delay in projected cash flows due to company’s financial instability — Principles of DCF analysis and adjustments for time delay discussed | Securities — Synergy Rule — Exclusion of transaction benefits — Whether dissenting shareholders could benefit from synergies of transaction — Court held Synergy Rule precluded inclusion of transaction benefits in valuation — Evidence of transaction used only as a reality check for valuation | Evidence — Expert testimony — Discount factor and company-specific risk premium (CSRP) — Dispute between experts on appropriate discount factor and CSRP — Court averaged experts’ WACC and adjusted CSRP to reflect company’s financial risks — Expert evidence clarified through viva voce testimony
CanLII | Nov 2, 2018
- keywords: Civil procedure — Contempt of court — Non-compliance with court orders — Plaintiff sought contempt motion against Duscio Defendants for evading service and failing to disclose assets — Bench warrant issued for Mr. Duscio — Should the court find the Duscio Defendants in contempt? — Contempt requires clear evidence of non-compliance with court orders and intent to disobey | Civil procedure — Access to frozen assets — Garcia Defendants sought $150,000 from frozen funds to fund appeal — Court allowed limited access of $5,000 for filing appeal and stay motion — Should frozen funds be released for legal expenses? — Balancing creditors’ rights and defendants’ access to justice under non-dissipation orders | Evidence — Compliance with court orders — Plaintiff alleged Duscio Defendants failed to disclose assets and misled the court — Evidence included undisclosed bank accounts and asset transfers — Should the court accept evidence of non-compliance to support contempt motion? — Evidence must demonstrate willful disobedience of court orders | Statutory interpretation — Non-dissipation orders — Test for varying post-judgment orders — Court applied four-part test from Credit Valley case to assess access to frozen funds — Should the court vary a non-dissipation order post-judgment? — Post-judgment non-dissipation orders differ from pre-judgment Mareva injunctions; balance of convenience favors creditors | Property — Sale of real property — Garcia Defendants sought authorization to sell Kitchener home and deposit proceeds into court — Court authorized sale with conditions to ensure arm’s length transaction — Should the court permit sale of property subject to non-dissipation order? — Sale allowed if proceeds are secured for creditors and process ensures fair market value
CanLII | Nov 1, 2018
- keywords: Civil procedure — Costs — Substantial indemnity costs — Rules of Civil Procedure — Rule 57.07(2)
CanLII | Oct 31, 2018
- keywords: Business associations — Oppression remedy — Breach of fiduciary duty — Costs — Substantial indemnity costs awarded due to serious misconduct, including self-dealing, abdication of director duties, and oppressive conduct — Whether oppression findings justify costs on a higher scale — Discretionary principles under Ontario Business Corporations Act, s. 248, and Rules of Civil Procedure, r. 57.01 — Substantial indemnity costs awarded as an exception, not a rule | Civil procedure — Costs — Scale of costs — Substantial indemnity versus partial indemnity — Applicant sought substantial indemnity costs due to oppressive conduct and litigation misconduct — Respondents argued for partial indemnity — Whether substantial indemnity costs were warranted — Serious breaches of fiduciary and statutory duties justified substantial indemnity costs | Estates and trusts — Winding-up process — Allocation of costs — Applicant requested that litigation costs be borne solely by individual respondents and not charged to corporate respondents — Whether indemnity rights of directors should be interfered with — Costs allocated to individual respondents to prevent indirect burden on applicant’s 50% economic interest in the corporation | Civil procedure — Motion to strike — Costs of motion — Respondents’ motion to strike portions of affidavits dismissed — Whether costs of motion should align with overall application costs — Costs of motion awarded to applicant on a substantial indemnity basis due to respondents’ overreaching and misguided motion | Civil procedure — Costs assessment — Reasonableness of time charges — Respondents objected to time charges for junior lawyers, law clerk, and student — Whether time charges were reasonable — Reduction of $10,000 from substantial indemnity costs to account for overestimated hearing fees and staffing changes — Substantial indemnity costs of $184,368.01 awarded
CanLII | Oct 25, 2018
- keywords: Company law — Companies’ Creditors Arrangement Act — R.S.C. 1985, c. C-36 as amended
CanLII | Oct 24, 2018
- keywords: Bankruptcy and insolvency — Companies’ Creditors Arrangement Act — Approval of settlements — Environmental claims — MECP Belleville Settlement and Brockville Settlement — Should the court approve the settlements under the CCAA? — Settlements must be fair, reasonable, and beneficial to the debtor and stakeholders — Framework for approving settlements under the CCAA | Bankruptcy and insolvency — Third-party releases — Environmental liabilities — Are the proposed third-party releases in the settlements fair, reasonable, and consistent with the CCAA? — Releases must be necessary, connected to the resolution of claims, and not overly broad or offensive to public policy | Environment — Environmental claims — Rule against double proofs — Compliance with rule against double proofs in settlements — Do the settlements comply with the rule against double proofs in the context of environmental claims? — Settlements structured to avoid double recovery for environmental liabilities | Bankruptcy and insolvency — Stakeholder benefits — Wind-down of estates — Distributions to creditors — Are the settlements beneficial to the Canadian Debtors and their stakeholders? — Settlements crystallize liabilities, reduce reserves, and facilitate distributions to creditors
CanLII | Oct 23, 2018
- keywords: Interim relief — Business Corporations Act
CanLII | Oct 15, 2018
- keywords: Contracts — Settlement agreements — Scope of release — Dispute over terms of release in settlement agreement — Plaintiffs argued for a “standard” release without indemnity or claims bar — Defendant argued no agreement on essential terms — Was there a binding settlement agreement? — A settlement is a contract requiring mutual intention and agreement on all essential terms — No settlement found due to lack of agreement on release terms | Torts — Negligence — Duty of care — Valuation report — Plaintiffs alleged Seven Hills owed a duty of care in preparing valuation for Xtreme Labs — Engagement letter limited Seven Hills’ liability and disclaimed duties to third parties — Did Seven Hills owe a duty of care to the plaintiffs? — No duty of care found due to lack of proximity and foreseeability under Livent principles | Civil procedure — Summary judgment — Negligence claim — Plaintiffs failed to provide evidence of reliance on valuation or breach of standard of care — Defendant relied on engagement letter disclaiming liability — Should summary judgment be granted? — Summary judgment granted as no genuine issue requiring trial existed | Civil procedure — Costs — Partial indemnity costs — Costs awarded for settlement motion, summary judgment motion, and overall action — Assessment of reasonable costs based on submissions and evidence — What costs should be awarded? — Costs awarded to Seven Hills: $29,000 for settlement motion, $30,000 for summary judgment motion, and $90,000 for the action
CanLII | Oct 15, 2018
- keywords: Securities — Fraudulent investment schemes — Misrepresentation — Defendants induced plaintiff to invest in fraudulent securities schemes, including Genesis, First Canadian, and Columbus Notes — Whether defendants knowingly misrepresented the nature of investments and concealed kickbacks — Liability for fraudulent misrepresentation and breach of fiduciary duties — Constructive trust imposed on misappropriated funds — Remedies include tracing and recovery of funds | Contracts — Fraudulent misrepresentation — Inducement to contract — Defendants misrepresented investment opportunities as legitimate and secure — Whether contracts were induced by fraudulent misrepresentation — Agreements included false guarantees of returns and concealed commissions — Contracts voidable due to fraud — Remedies include damages and restitution | Obligations — Fiduciary duties — Breach of trust — Defendants acted as agents and fiduciaries for the plaintiff — Misuse of trust funds and payment of secret commissions — Whether defendants breached fiduciary duties by diverting funds for personal gain — Constructive trust imposed on funds and benefits received — Remedies include accounting and restitution | Estates and trusts — Constructive trust — Tracing remedies — Funds misappropriated through fraudulent schemes — Whether funds received by defendants are impressed with a constructive trust — Tracing of funds to third parties, including offshore accounts — Remedies include recovery of trust property and tracing orders | Torts — Punitive damages — Fraudulent and malicious conduct — Defendants orchestrated long-running fraud causing significant financial harm — Vicious retaliatory actions against witnesses and professionals — Whether punitive damages are warranted to punish and deter defendants’ conduct — Punitive damages awarded against individual defendants for egregious fraud and malicious actions
CanLII | Oct 12, 2018
- keywords: Contract law — Arbitration agreements — Jurisdiction — Breach of fiduciary duty — Breach of contract — Arbitration Act, 1991 — S.O. 1991, c. 17, s. 16(1), Rules of Civil Procedure — Rules 15 and 21
CanLII | Oct 12, 2018
- keywords: Torts — Duty of fairness — RFP process — Reconsideration of disqualification — Plaintiff alleged defendants owed a duty of fairness in the RFP process, including reconsideration of disqualification — Whether a free-standing duty of fairness exists outside of contractual obligations — No duty of fairness owed absent a compliant bid or explicit contractual terms — Coco Paving (1990) Inc. v. Ontario (Transportation) applied | Torts — Duty of care — Negligence — RFP process — Plaintiff alleged defendants owed a duty of care in tort during the RFP process and reconsideration of disqualification — Whether proximity and foreseeability justified imposing a duty of care — No sufficiently close relationship or policy considerations supported a duty of care — Anns/Cooper test applied | Torts — Negligence — Performance of service — Reconsideration process — Plaintiff alleged defendants negligently performed fairness monitoring and investigation services — Whether defendants breached a duty in reconsidering disqualification — Defendants acted reasonably and without negligence in reviewing plaintiff’s submissions and consulting legal counsel — No breach of duty found | Contracts — Limitation of liability — RFP terms — Plaintiff challenged the applicability of the limitation of liability clause in the RFP — Whether the clause excluded liability for negligence — Broad wording of the clause excluded liability for tort claims — Clause applied to both sponsors and subcontractors, including fairness monitors | Civil procedure — Summary judgment — Suitability for summary judgment — Whether the case required a trial to resolve material facts or credibility issues — No genuine issue requiring a trial as all material facts were undisputed — Hryniak v. Mauldin principles applied to grant summary judgment
CanLII | Oct 11, 2018
- keywords: Endorsement — Arbitration — Companies’ Creditors Arrangement Act
CanLII | Oct 4, 2018
- keywords: Conflict of laws — Jurisdiction — Forum non conveniens — Factors
CanLII | Sep 21, 2018
- keywords: Bankruptcy and insolvency — Receivership — Disputed claims — Court-appointed receiver disallowed claims against mortgage investment funds — Claimants alleged failure to advance funds under loan agreements and reimbursement for development costs — Receiver sought court order disallowing claims — Should the claims be disallowed? — Onus on claimants to prove error of law or palpable and overriding error of fact — Claims disallowed due to lack of evidence of assignment or agreement | Civil procedure — Claims process — Summary procedure — Receiver disallowed claims under court-approved claims process — Claimants argued for full application with trial of an issue — Should the claims be determined on this motion or through a full application? — Court upheld summary nature of claims process — Expeditious resolution prioritized over extensive discovery or trial | Contracts — Loan agreements — Mortgage investment funds — Claimants alleged failure to advance funds under loan agreements — Mortgage investment funds not parties to loan agreements — No evidence of assignment of loans or obligation to advance funds — Should the claims be disallowed? — Claims disallowed due to lack of contractual obligation or supporting evidence | Evidence — Standard of review — Disallowance of claims by receiver — Court reviewed disallowance for error of law or palpable and overriding error of fact — Claimants failed to provide evidence of agreements, assignments, or invoices supporting claims — Should the court interfere with the receiver’s determination? — Court upheld receiver’s disallowance of claims
CanLII | Sep 18, 2018
- keywords: Mortgages — Priorities — Construction lien — Debentures — Construction Lien Act — R.S.O. 1990, c. C.30, s. 86 — Rule 54.09
CanLII | Sep 18, 2018
- keywords: Debtor-Creditor — Companies' Creditors Arrangement Act
CanLII | Sep 17, 2018
- keywords: Commercial law — Corporations — Oppression
CanLII | Sep 17, 2018
- keywords: Business associations — Membership disputes — Standing — Oppression remedy — Campaign for the Inclusion of People who are Deaf and Hard of Hearing sought standing as a “complainant” under section 250(e) of the Canada Not-for-Profit Corporations Act — Whether the Campaign had reasonable expectations or authority to represent former members of the CHS — Court declined to exercise discretion to grant standing — Canada Not-for-Profit Corporations Act, S.C. 2009, c. 23, ss. 250(e), 253 | Statutory interpretation — Canada Not-for-Profit Corporations Act — Oppression remedy — Interpretation of “complainant” under section 250(e) — Whether a non-member organization can qualify as a “proper person” to bring an oppression claim — Court applied principles of statutory interpretation and found no reasonable expectations or private rights for the Campaign to assert | Business associations — Arbitration clauses — Membership disputes — CHS By-Laws contained arbitration provisions requiring disputes to be resolved through arbitration — Whether the Individual Applicants’ oppression claims were subject to arbitration — Court held that arbitration provisions applied to disputes arising from membership and governance issues — Arbitration Act, 1991, S.O. 1991, c. 17 | Civil procedure — Costs — Allocation of costs in motions — CHS sought costs on a partial indemnity basis — Court awarded costs to CHS, allocating them between the Campaign and the Individual Applicants — Costs apportioned based on the relative complexity and time spent on each motion — Campaign held jointly and severally liable for a portion of the Individual Applicants’ costs
CanLII | Sep 17, 2018
- keywords: Civil procedure — Discovery — Production of non-party files — Plaintiff sought production of files from three non-party lawyers to pursue an accounting order — Whether the files should be produced and under what conditions — Court ordered files to be sealed, reviewed by the judge, and partially disclosed to the plaintiff — Governing principles for discovery of non-party documents under Rule 31.10 of the Rules of Civil Procedure | Evidence — Privilege — Retainer and authority — Lawyer acting for corporations struck from the corporate register — No evidence of proper retainer or authority to act — Whether privilege can be claimed over the lawyer’s files — Court held no privilege could be asserted due to lack of bona fides and authority — Evidentiary burden to establish privilege in cases of dubious corporate status | Evidence — Negative inferences — Bona fides of corporations — Corporations revived under Bahamian law after being struck from the register — Evidence of sham operations and lack of arm’s-length dealings with a key individual — Whether negative inferences should be drawn regarding the corporations’ bona fides — Court drew negative inferences and disallowed privilege claims | Business associations — Revival of corporations — Effect of foreign corporate revival — Bahamian corporations struck from the register and later revived — Whether revival under Bahamian law affects legal status in Ontario — Court deferred ruling on the recognition of nunc pro tunc effect of Bahamian revival in Ontario — Legal uncertainty regarding cross-jurisdictional corporate revival effects
CanLII | Sep 13, 2018
- keywords: Civil procedure — Dismissal for failure to comply with costs order — Plaintiff failed to pay costs awarded in prior order — Defendant moved to dismiss claim under Rules 57.03(2) and 60.12 — Should the plaintiff’s claim be dismissed for non-compliance with a prior costs order? — Rules of Civil Procedure, R.R.O. 1990, Reg. 194, ss. 57.03(2), 60.12 | Civil procedure — Dismissal for delay — Plaintiff failed to set action down for trial within six months after close of pleadings — Defendant moved to dismiss claim under Rule 24.01(1)(c) — Should the plaintiff’s claim be dismissed for inordinate and inexcusable delay? — Rules of Civil Procedure, R.R.O. 1990, Reg. 194, s. 24.01(1)(c) | Civil procedure — Impecuniosity as defense to costs order — Plaintiff argued inability to pay costs due to pending Small Claims Court action — Court found no evidentiary foundation for impecuniosity claim — Can impecuniosity shield a party from compliance with costs orders? — Baksh v. Sun Media (Toronto) Corp., [2003] O.J. No. 68 | Civil procedure — Remedies for non-compliance and delay — Court ordered stay of action until costs paid — Dismissal permitted if costs not paid within two months — What is the appropriate remedy for failure to comply with costs order and delay in prosecution? — Rules of Civil Procedure, R.R.O. 1990, Reg. 194, ss. 57.03(2), 60.12, 24.01(1)(c)
CanLII | Aug 24, 2018
- keywords: Bankruptcy and insolvency — Court-appointed receiverships — Distribution of proceeds — Mortgagees sought three months' interest under section 17 of the Mortgages Act or under mortgage terms — Does section 17 apply to payments made by court-appointed receivers? — Court-appointed receivers are not "persons entitled to make such payment" under section 17 — Mortgages Act, R.S.O. 1990, c. M.40, s. 17 | Property — Mortgages — Interest claims — Mortgagees claimed three months' interest under section 17 of the Mortgages Act following court-ordered sale of mortgaged properties — Does section 17 apply to payments made by court-appointed receivers? — Section 17 does not apply to proceeds distributed by court-appointed receivers — Mortgages Act, R.S.O. 1990, c. M.40, s. 17 | Contracts — Mortgage terms — Interpretation — Mortgage agreements contained provisions mirroring section 17 of the Mortgages Act — Can contractual terms provide a basis for claiming three months' interest in a court-appointed receivership? — Contractual terms duplicating section 17 do not alter the inapplicability of section 17 to court-appointed receiverships
CanLII | Aug 24, 2018
- keywords: Business associations — Oppression remedy — Shareholder rights — Removal of shareholder as director and officer — Demotion to subordinate role — Reasonable expectations of equal treatment among co-founders — Did the removal and demotion constitute oppression under s. 248 of the OBCA? — Conduct found oppressive, unfairly prejudicial, and unfairly disregarding shareholder interests — Ontario Business Corporations Act, R.S.O. 1990, c. B.16, s. 248 | Obligations — Fiduciary duties — Client relationships — Whether client relationship with Spin Master was an "asset" of the corporation — Personal relationships brought to the corporation by a co-founder — Did the applicant breach fiduciary duties by competing for Spin Master’s business post-departure? — No breach found; fiduciary free to compete absent unfair solicitation or non-compete agreement | Business associations — Fiduciary duties of contractors — Independent contractors and corporate obligations — Allegations of solicitation of business from Spin Master — Did independent contractors breach fiduciary duties owed to the corporation? — No evidence of solicitation or breach of duty; claim dismissed | Business associations — Corporate losses — LA Fall 2017 project — Alleged under-billing and improper invoicing — Was the corporation deprived of $394,398.59 due to counter-application respondents’ actions? — No evidence of improper conduct; claim dismissed | Business associations — Oppression remedy — Share valuation — Appropriate remedy for oppression — Fair market value of shares as of the date of removal — Valuation to exclude litigation costs and account for Spin Master’s departure — Guidelines for valuation provided
CanLII | Aug 23, 2018
- keywords: Bankruptcy — Agency — Powers of attorney — Courts of Justice Act — R.S.O. 1990, c. C.43
CanLII | Aug 22, 2018
- keywords: Contracts — Arbitration jurisdiction — Bad faith application of discretionary powers — Dispute regarding PowerStream's exercise of discretion under section 2.3(3) of the PAMA — Could the arbitrator consider bad faith despite section 2.3(8) precluding disputes over Defunct Project Notices? — Arbitrator’s jurisdiction confirmed where a duty of good faith is implied | Contracts — Contractual damages — Exclusion of damages for loss of profits — Section 5.3(3) of the PAMA limiting arbitrator’s jurisdiction to award certain damages — Did SPN’s claim for damages fall outside the contractual exclusion clause? — Award of damages for loss of profits deemed beyond arbitrator’s jurisdiction | Statutory interpretation — Arbitration agreements — Interpretation of section 2.3(8) of the PAMA and its impact on disputes — Defunct Project Notices and preclusion of challenges — Whether section 2.3(8) bars challenges based on bad faith — Proper interpretation excludes unqualified discretion | Obligations — Implied covenants — Exclusion of damages for breach of implied contractual good faith — Section 5.2(b) claims subject to monetary limitations of section 5.3(3) — Does the implied duty of good faith constitute a breach of covenant under the PAMA? — Claims for bad faith framed as breaches of covenant fall within damages limitations | Civil procedure — Arbitration — Standard of review — Reasonableness standard in contractual interpretation disputes — Jurisdictional questions — Did the arbitrator exceed jurisdiction by interpreting the PAMA’s provisions? — Reasonableness applied to jurisdictional questions involving contractual interpretation
CanLII | Aug 17, 2018
- keywords: Business associations — Corporate governance — Fiduciary duties — Breach of fiduciary duty by directors and officers — Self-dealing and conflict of interest in corporate transactions — Directors’ abdication of responsibilities — Did the respondents breach their fiduciary duties in relation to the Greystar/Markham property transaction? — Fiduciary duties under the Ontario Business Corporations Act, R.S.O. 1990, c. B.16, ss. 132, 134 | Obligations — Fiduciary duties — Corporate opportunities — Appropriation of corporate opportunities by directors — Conflict of interest in corporate financing — Did the respondents’ actions in the Greystar transaction violate fiduciary obligations owed to the corporation? — Corporate opportunity doctrine and conflict of interest rules under the Ontario Business Corporations Act | Securities — Oppression remedy — Oppressive conduct — Unfair prejudice and disregard of shareholder interests — Breach of reasonable expectations under shareholder agreements — Did the respondents’ actions constitute oppression or unfair prejudice to the applicant’s interests? — Oppression remedy principles under s. 248 of the Ontario Business Corporations Act | Estates and trusts — Estate administration — Corporate governance and estate interests — Breach of trust in corporate management — Appropriate remedy for breaches of fiduciary duty and oppression — Should the corporation be wound up or the applicant’s interests purchased? — Remedies under the Ontario Business Corporations Act and equitable principles
CanLII | Aug 16, 2018
- keywords: Civil procedure — Enforcement of foreign judgments — Summary judgment — Plaintiffs sought recognition and enforcement of a U.S. Judgment Order in Ontario — Defendants argued against enforcement on grounds of jurisdiction, fraud, and natural justice — Should the U.S. Judgment Order be enforced in Ontario? — Summary judgment is appropriate where no genuine issue requiring a trial exists, and the foreign judgment satisfies the established legal principles | International law — Enforcement of foreign judgments — Jurisdiction — Real and substantial connection — U.S. Court exercised jurisdiction over defendants based on their business activities in Virginia — Did the U.S. Court properly assume jurisdiction over the defendants? — A real and substantial connection between the defendants and the foreign jurisdiction was established under Canadian law | Evidence — Fraud — Service of process — Defendants alleged fraud in the U.S. proceedings and improper service of documents — Plaintiffs demonstrated proper service under The Hague Service Convention and Canadian rules — Were the defendants denied natural justice or misled by fraud? — Fraud defence dismissed; service deemed valid under applicable rules | Intellectual property — Injunctions — Enforcement of non-monetary foreign judgments — U.S. Judgment Order included a permanent injunction against copyright and trademark infringement — Should the injunction be enforced in Ontario? — Injunction terms were clear, specific, and enforceable under the Pro Swing framework for non-monetary judgments
CanLII | Aug 1, 2018
- keywords: Corporations — Oppression remedy — Business Corporations Act
CanLII | Jul 31, 2018
- keywords: Civil procedure — Summary judgment — Risk of conflicting findings — Inefficiencies — Motion for summary judgment brought by two defendants in a conspiracy claim — Whether the motion should be dismissed due to the absence of all necessary parties and the proximity of trial — Summary judgment dismissed to avoid conflicting decisions and inefficiencies — Governing principles from Butera v. Chown, Cairns LLP, 2017 ONCA 783 and Larizza v. Royal Bank of Canada, 2018 ONCA 632 applied | Torts — Conspiracy — Severance of claims — Plaintiffs alleged conspiracy involving multiple defendants — Moving parties argued conspiracy claim could be severed as they were the only defendants against whom damages for conspiracy were claimed — Whether conspiracy claim could be severed from claims against other defendants — Severance denied due to overlapping factual matrix and necessity of findings involving all defendants | Evidence — Conspiracy — Pleading deficiencies — Plaintiffs alleged conspiracy among multiple defendants but lacked separate damages claims against some co-conspirators — Moving parties argued inept wording of pleadings undermined the conspiracy claim — Whether the conspiracy claim was sufficiently pleaded to proceed to trial — Court found pleadings sufficient to require trial for factual and legal determinations
CanLII | Jul 31, 2018
- keywords: Construction — Settlement agreements — Insurance deductibles — Dispute over whether the release in the Settlement Agreement precludes claims for insurance deductibles under the OCIP — Does the release extend to all claims under the Contract or only to the five disputes settled? — Interpretation of release language in construction contracts | Contracts — Interpretation — Releases — Insurance provisions — Proper interpretation of the Insurance Provision in the Settlement Agreement — Whether the Insurance Provision limits the release to insurance-related obligations or extends to broader contractual obligations — Principles of contractual interpretation from Sattva Capital Corp. v. Creston Moly Corp. and Biancaniello v. DMCT LLP applied | Contracts — Obligations — Insurance deductibles — Liability for deductibles under Section SC3 of the Contract — Whether Crosstown remains liable for insurance deductibles despite the Settlement Agreement — Commercial context and continuation of contractual obligations considered
CanLII | Jul 31, 2018
- keywords: Contracts — Final Approval — Repayment obligations — Agreements for renewable energy project in Barbados — Whether respondent obtained Final Approval as required under agreements — Whether respondent is obligated to repay $2,000,000 advanced by applicant — Interpretation of LOI and Amendment — Repudiation of agreements by respondent — Governing principles for contract repudiation and damages — Sattva Corp. framework applied to interpret agreements | Bankruptcy and insolvency — Jurisdiction — Appointment of receiver — Whether court has jurisdiction to appoint a receiver under section 101 of the Courts of Justice Act or section 243 of the Bankruptcy and Insolvency Act — Distinction between insolvency and contractual default — Freure Village and Textron Financial principles applied | Obligations — Equitable set-off — Whether respondent entitled to equitable set-off against applicant’s claims — Connection between Barbados Project and Dominican Republic projects — Algoma Steel principles for equitable set-off — No sufficient connection between claims to justify set-off | Bankruptcy and insolvency — Receivership — Appointment of receiver over respondent’s assets — Terms for appointment of interim receiver — Whether respondent should be given opportunity to repay debt before receivership — Principles from Freure Village and Business Development Bank of Canada applied
CanLII | Jul 27, 2018
- keywords: Bankruptcy and insolvency — Receivers — Appointments — Bankruptcy and Insolvency Act — R.S.C. 1985, c. B-3, s. 243
CanLII | Jul 23, 2018
- keywords: Taxation — Equitable jurisdiction — Retroactive tax planning — Applicant sought to retroactively alter a transaction to achieve a tax objective — Whether the court can exercise its equitable jurisdiction to correct mistakes to achieve intended tax outcomes — Supreme Court precedent in Fairmont Hotels and Jean Coutu precludes retroactive tax planning — Tax consequences flow from what was done, not what was intended | Taxation — Rescission — Partial rescission — Applicant sought equitable rescission to set aside part of a transaction to achieve a tax outcome — Whether rescission is available for partial unwinding of transactions — Rescission is an "all or nothing" remedy and not available for partial adjustments — Governing principles from Miller Paving Ltd. v. B. Gottardo Construction Ltd | Taxation — Equitable relief — Alternative remedies — Applicant argued for equitable relief to avoid unintended tax consequences — Whether equitable jurisdiction should be exercised when alternative remedies exist — Applicant had alternative remedies, including tax assessment appeal and professional negligence claims — Equitable relief denied where unjust enrichment or inequity not established
CanLII | Jun 21, 2018
- keywords: Bankruptcy and insolvency — Proposal process — Settlement privilege — Applicability of settlement privilege to agreements in Bankruptcy and Insolvency Act (BIA) proposal processes — Whether settlement privilege applies to claims settlements in BIA proposals — Competing public interest in transparency of proposal process — Integrity of bankruptcy proceedings — Section 63(1) of the BIA — Public interest exception to settlement privilege — Sable Offshore Energy Inc. v. Ameron International Corp. test applied | Evidence — Settlement privilege — Bankruptcy and Insolvency Act (BIA) — Whether settlement privilege applies to settlement agreements in BIA proposal processes — Motion judge’s determination that privilege was outweighed by public interest in transparency — Contextual, fact-specific analysis required — Test for exceptions to settlement privilege from Sable Offshore Energy Inc. v. Ameron International Corp. applied | Civil procedure — Production motion — Annulment motion — Order of proceedings — Whether motion judge erred in determining production motion before annulment motion — Direction order from Conway J. requiring production motion to proceed first — Section 63(1) of the Bankruptcy and Insolvency Act — Allegations of fraud and impropriety in proposal process — No error in motion judge’s approach | Statutory interpretation — Leave to appeal — Section 193 of the Bankruptcy and Insolvency Act — Whether leave to appeal is required for production order — Leave granted under section 193(e) — Significant issue of public importance regarding settlement privilege in BIA proposals — Prima facie meritorious appeal — Business Development Bank of Canada v. Pine Tree Resorts Inc. test applied
CanLII | May 25, 2018
- keywords: Civil procedure — Costs — Public interest litigation — Plaintiffs sought enforcement of a foreign judgment in Ontario against a subsidiary corporation — Motion judge awarded costs to defendants — Did the motion judge err in finding the litigation was not public interest litigation and in awarding excessive costs? — Costs reduced due to the public interest nature of the litigation | Property — Execution — Exigibility of assets — Plaintiffs sought to enforce a foreign judgment against the shares and assets of a subsidiary corporation under the Execution Act — Are the subsidiary's shares and assets exigible to satisfy the parent corporation's judgment debt? — Execution Act, R.S.O. 1990, c. E.24, s. 18(1) — Statute does not create substantive rights; corporate separateness upheld | Business associations — Piercing the corporate veil — Enforcement of judgment — Plaintiffs sought to pierce the corporate veil to enforce a judgment against a subsidiary corporation's assets — Should the corporate veil be pierced in the absence of fraud or improper conduct? — Transamerica test applied; corporate separateness upheld absent fraudulent or improper use | Civil procedure — Adding parties — Plaintiffs sought to add a related corporation as a defendant to enforce a judgment — Motion judge dismissed the motion — Did the motion judge err in refusing to add the related corporation as a party? — Claim against the related corporation failed for the same reasons as against the subsidiary; motion properly dismissed
CanLII | May 23, 2018
- keywords: Bankruptcy and insolvency — Vesting orders — Jurisdiction — Insolvent mining company subject to receivership under Bankruptcy and Insolvency Act — Receiver sought approval of sale of mining claims free of gross overriding royalties (GORs) — Did the motion judge have jurisdiction to extinguish third-party interests in land through a vesting order? — Scope of court authority under section 243 of the Bankruptcy and Insolvency Act and section 100 of the Courts of Justice Act | Natural resources — Mining law — Royalties — Gross overriding royalties (GORs) — Whether GORs constitute an interest in land — Test from Bank of Montreal v. Dynex Petroleum Ltd. — Parties’ intention to create an interest in land — GORs carved out of profits à prendre recognized as interests in land — Motion judge erred in finding GORs did not run with the land | Civil procedure — Appeals — Mootness — Vesting order registered on title extinguishing GORs — Whether appeal is moot due to registration of vesting order — Potential remedies under Land Titles Act if motion judge lacked jurisdiction — Appeal not moot where rectification of title may be available | Property — Remedies — Rectification of title — Appellant sought rectification of register to reflect GORs as interests in land — Land Titles Act, sections 159 and 160 — Whether innocent third parties acquired interests post-registration of vesting order — Additional submissions required on appropriate remedy
CanLII | Mar 15, 2018
- keywords: Bankruptcy and insolvency — Civil procedure — Class actions — Deferential standard — Sattva Capital Corp. v. Creston Moly CORP., 2014 Scc 53
CanLII | Mar 9, 2018
- keywords: Business associations — Governance agreements — Board of directors — Commercial dispute concerning operations of a co-founded company — Governance Agreement granting rights to replace board members — Breach of obligations under Governance Agreement — Whether the Governance Agreement conflicted with the shareholders’ agreement — Application judge’s findings upheld — No palpable and overriding error in interpretation of Governance Agreement — Governance Agreement deemed independent of shareholders’ agreement — Arbitration clause inapplicable | Contracts — Interpretation — Factual matrix — Governance Agreement and shareholders’ agreement — Application judge considered factual matrix and inter-relationship of agreements — Whether the application judge erred in interpreting the Governance Agreement — No error found in interpretation — Governance Agreement deemed a stand-alone document — Arbitration clause in shareholders’ agreement did not apply | Civil procedure — Arbitration clauses — Stay of proceedings — Shareholders’ agreement containing arbitration clause — Whether application should have been stayed in favour of arbitration — Application judge found no conflict between Governance Agreement and shareholders’ agreement — Arbitration clause deemed inapplicable — Appeal dismissed | Torts — Oppression remedy — Interim injunctions — Reasonable expectations — Whether the application judge erred in alternative findings — Oppression remedy applied due to prejudice caused by failure to honour commitments — Interim injunction appropriate as damages were impossible to calculate — Findings upheld on appeal
CanLII | Dec 22, 2017
- keywords: Bankruptcy and insolvency — Companies' Creditors Arrangement Act (CCAA) — Role of monitor — Monitor authorized to bring oppression action under section 241 of the CBCA — Exceptional circumstances justifying monitor's standing — Monitor acting to facilitate restructuring and address related-party transactions — Broad discretion of CCAA supervising judge to authorize monitor's actions — Companies' Creditors Arrangement Act, R.S.C. 1985, c. C-36, s. 23(1)(k); Canada Business Corporations Act, R.S.C. 1985, c. C-44, s. 241 | Business associations — Oppression remedy — Standing of monitor — Whether monitor can be a complainant under section 241 of the CBCA — Monitor acting on behalf of stakeholders, including trade creditors, employees, pensioners, and retirees — Prima facie case of oppression established — Discretionary determination of complainant status under section 238(d) of the CBCA — Canada Business Corporations Act, R.S.C. 1985, c. C-44, ss. 238(d), 241 | Business associations — Oppression remedy versus derivative action — Overlapping claims — Whether harm to stakeholders must be pursued as a derivative action under section 239 of the CBCA — Oppression remedy available where harm affects stakeholders in their individual capacities — Reasonable expectations of stakeholders violated by related-party transactions — Canada Business Corporations Act, R.S.C. 1985, c. C-44, ss. 239, 241 | Business associations — Corporate governance — Business judgment rule — Application of business judgment rule to board decisions — Board's lack of independence and failure to consider alternatives — Self-dealing and disregard for stakeholders' interests — Business judgment rule inapplicable where decisions lack prudence and good faith — Canada Business Corporations Act, R.S.C. 1985, c. C-44, s. 241 | Civil procedure — Procedural fairness — Remedy granted in oppression action — Whether trial judge erred in granting unpleaded remedy — Remedy tailored to address oppressive conduct — No prejudice to parties where issues were fully canvassed — Broad discretion of trial judge in fashioning equitable relief — Canada Business Corporations Act, R.S.C. 1985, c. C-44, s. 241
CanLII | Dec 21, 2017
- keywords: Business associations — Corporate amalgamations — Rectification orders — Plan of arrangement under the Business Corporations Act — Whether the principle in Norcan Oils Ltd. v. Fogler precludes revocation of a certificate of arrangement issued pursuant to a rectification order — Court declined to unwind a court-approved corporate fundamental change due to third-party reliance and lack of special circumstances — Importance of commercial certainty in corporate transactions | Taxation — Rectification in tax planning — Amalgamation and tax bump under the Income Tax Act — Whether the rectification order achieved the intended tax outcome — Single-step amalgamation versus two-step amalgamation — Application of section 87(11) of the Income Tax Act — Court found the appeal moot due to the implementation of the rectification order and third-party reliance | Civil procedure — Mootness — Discretion to hear moot appeals — Factors from Borowski v. Canada (Attorney General) — Adversarial context, judicial economy, and law-making function — Court declined to hear the appeal as it lacked practical effect, jurisprudential importance, or public interest significance | Statutory interpretation — Rectification orders in tax law — Application of the revised test for rectification established in Fairmont Hotels Inc. v. Canada (Attorney General) — Whether the rectification order satisfied the clarified test for rectification in a tax context — Court declined to address the issue due to mootness of the appeal
CanLII | Oct 4, 2017
- keywords: Contracts — Guarantees — Interpretation — Amended guarantee excluding facility and forbearance fees from obligations guaranteed — Did the motion judge err in interpreting the amended guarantee by failing to consider the exclusion of certain fees? — Principles of contractual interpretation applied to guarantees — Sattva Capital v. Creston Moly, 2014 SCC 53 | Obligations — Guarantees — Calculation of liability — Guarantor’s liability limited to lesser of US$3 million or deficiency amount excluding facility and forbearance fees — Did the motion judge err in calculating the amount owing under the guarantee? — Palpable and overriding factual and mathematical errors in determining liability | Obligations — Continuing guarantees — Nature of continuing guarantees — Whether the continuing nature of the guarantee preserved liability for the full amount of US$3 million — Guarantee subject to exclusions for specific fees — Application of contractual terms to limit liability
CanLII | Jul 28, 2017
- keywords: Contracts — Interpretation — Acquisition agreement — Tax pools — Section 5.1(l) of the acquisition agreement interpreted as a representation and warranty limited to the accurate identification of tax pools in existence and their values up to the date of closing — Did the motion judge err in interpreting section 5.1(l) as not guaranteeing future tax utilization? — Principles of contractual interpretation applied to commercial agreements | Contracts — Contextual interpretation — Entire agreement — Whether the motion judge failed to consider the agreement as a whole, including the Tuckamore indemnity, when interpreting section 5.1(l) — Commercial context and factual matrix considered — No palpable or overriding error found in the interpretation | Contracts — Errors of law — Standard of review — Whether the motion judge’s interpretation of section 5.1(l) was tainted by palpable and overriding errors or extricable errors of law — Deference owed to the motion judge’s findings under Sattva principles — No evidence of misinterpretation of the commercial realities or the agreement’s language
CanLII | Jul 10, 2017
- keywords: Business associations — Shareholders — Rule in Foss v. Harbottle — Plaintiffs suing as investors rather than as shareholders — Whether the rule in Foss v. Harbottle precludes claims for harm done directly to investors — Rule does not bar personal claims for fraudulent misrepresentation and conspiracy causing direct harm to investors | Civil procedure — Settlement agreements — Preclusion of claims — Settlement agreement between parties rescinding prior corporate arrangement — Whether settlement agreement precludes claims for pre-June 2006 conduct — Settlement agreement did not release defendants from claims unknown to plaintiffs at the time of agreement | Torts — Fraudulent misrepresentation — Conspiracy — Plaintiffs induced to invest in fraudulent venture through deceit and misrepresentation — Defendants liable for fraudulent misrepresentation and conspiracy — Misrepresentations included false statements about corporate legitimacy and investment commitments — Liability established for pre-June 2006 conduct | Securities — Directors’ fiduciary duties — Breach of fiduciary duty — Whether shareholders can recover for breach of fiduciary duty owed to the corporation — Directors owe fiduciary duties to the corporation, not shareholders — Shareholders cannot recover for such breaches absent derivative action | Torts — Post-settlement conduct — Misrepresentations about asset value and IPO prospects — Whether defendants liable for post-June 2006 misrepresentations — Trial judge erred in finding liability for unpleaded misrepresentations — Damages for post-settlement conduct set aside except for wrongful garnishment of funds
CanLII | Apr 20, 2017
- keywords: Business associations — Oppression remedy — Shareholder disputes — Minority shareholder — Dilution of shares — Cash calls — Valuation of shares — Did the trial judge err in determining the appellants’ shareholding and its value following oppressive conduct? — Ontario Business Corporations Act, s. 248 — Framework for determining shareholder remedies in cases of oppression | Contracts — Shareholders’ Agreement — Interpretation — Cash calls — Issuance of shares — Necessary funds — Did the trial judge err in interpreting section 6.01(b) of the Shareholders’ Agreement regarding the issuance of shares? — Standard of appellate review for contractual interpretation — Sattva Capital Corp. v. Creston Molly Corp | Securities — Share valuation — En-bloc adjusted book value — Calculation of additional shares — Use of hindsight in valuation — Did the trial judge err in calculating the number of additional shares issued and the valuation of the appellants’ shares? — Principles governing share valuation in closely-held corporations | Civil procedure — Costs — Partial indemnity vs. substantial indemnity — Pre-trial motions — Expert fees — Did the trial judge err in awarding costs on a partial indemnity basis and in his treatment of pre-trial motions and expert fees? — Rule 57.01(1) of the Rules of Civil Procedure — Discretion in awarding costs | Torts — Punitive damages — Lack of specific pleading — Procedural fairness — Was the trial judge correct in awarding punitive damages against one respondent despite the lack of a specific pleading? — Principles governing the award of punitive damages and procedural fairness
CanLII | Mar 31, 2017
- keywords: Contracts — Interpretation — Agreement on New Terms (ANT) — Ownership of shares — Whether the ANT and related evidence establish that the Kyrgyz Republic owns shares in Centerra Gold Inc. registered in Kyrgyzaltyn JSC’s name — Standard of review for contractual interpretation — Governing principles of New York law applied — ANT unambiguously provides that Kyrgyzaltyn is the beneficial owner of the shares | International law — Foreign arbitral awards — Enforcement — Ownership of shares — Appellants sought to enforce foreign arbitral awards against shares in Centerra Gold Inc. — Whether the Kyrgyz Republic owns the shares under Kyrgyz law or international principles — Article 222(3) of the Kyrgyz Civil Code considered — No evidence of transfer of rights from Kyrgyzaltyn to the Kyrgyz Republic | Estates and trusts — Express trust — Certainty of intention — Whether Kyrgyzaltyn JSC holds shares in Centerra Gold Inc. on an express trust for the Kyrgyz Republic — Absence of explicit trust language in the ANT — Operative provisions of the ANT establish Kyrgyzaltyn as the beneficial owner — No certainty of intention to create an express trust | Estates and trusts — Resulting trust — Purchase money resulting trust — Whether Kyrgyzaltyn JSC holds shares in Centerra Gold Inc. on a resulting trust for the Kyrgyz Republic — Presumption of resulting trust in related-party transactions — ANT and related evidence rebut presumption — Kyrgyzaltyn established as beneficial owner of the shares | Civil procedure — Standard of review — Contractual interpretation — Whether the applications judge’s interpretation of the ANT is reviewable on a standard of correctness or palpable and overriding error — Ledcor exception for standard form contracts not applicable — ANT is a complex, negotiated agreement — Standard of palpable and overriding error applied
CanLII | Dec 29, 2016
- keywords: Contracts — Engagement agreements — Interpretation — Lender disclosure — Whether the motion judge erred in interpreting the phrase “lender disclosed by [Warburg]” to include the appellants’ longtime lender, RBC — Motion judge found that Warburg disclosed RBC’s willingness to provide financing — Governing rule: Interpretation of contractual terms must consider the factual matrix and the parties’ intentions | Obligations — Commissions — Quantum of commissions — Double-counting — Whether the motion judge erred in calculating commissions owed to Warburg, including alleged double-counting of “Free Cash” — Court reduced commissions by $20,000 due to double-counting — Governing rule: Commissions must be calculated based on the terms of the engagement agreements and evidence of financing commitments | Obligations — Joint and several liability — Whether the motion judge erred in imposing joint and several liability on the appellants for amounts owing under the engagement agreements — Court found no basis for joint and several liability as liability should be restricted to contracting parties — Governing rule: Joint and several liability must be expressly provided for or arise from the nature of the obligations | Civil procedure — Costs — Partial indemnity costs — Whether the motion judge erred in awarding costs exceeding the amount claimed by Warburg — Court reduced costs to the amount claimed for partial indemnity costs — Governing rule: Costs awards must align with the amounts claimed and the principles of fairness and proportionality | Contracts — Personal defendants — Dismissal of claims — Whether the motion judge erred in dismissing Warburg’s action against the personal defendants — Court set aside the dismissal as the claims against personal defendants were not addressed in the summary judgment motion — Governing rule: Claims not addressed in a motion cannot be dismissed without proper consideration
CanLII | Feb 26, 2016
- keywords: Civil procedure — Costs — Offer to settle — Timing requirements — "No near miss" policy applying to Rule 49.03 of the Rules of Civil Procedure — Offer served fewer than seven days before trial invalid under Rule 49.10 — Does the "no near miss" policy apply to timing requirements under Rule 49.03? — Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rules 49.03, 49.10 | Civil procedure — Costs — Judicial discretion — Rule 49.13 — Trial judge considering an offer to settle that did not meet Rule 49.03 timing requirements — Can a trial judge exercise discretion under Rule 49.13 to consider such offers when awarding costs? — Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rules 49.03, 49.13 | Civil procedure — Costs — Substantial indemnity and partial indemnity costs — Trial judge awarding substantial indemnity costs to appellant up to the date of the offer and partial indemnity costs to respondents thereafter — Did the trial judge err in exercising discretion to award costs in this manner? — Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rules 49.03, 49.10, 49.13, 57.01(1)
CanLII | Dec 15, 2015
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