Aaron L. Kreaden

The plaintiff moved for summary judgment seeking $1,075,000 in fees allegedly owed under a term sheet dated December 9, 2022.

The defendants resisted and brought a counter-motion for "boomerang" summary judgment to dismiss the action.

The court found that the express language of the term sheet did not entitle the plaintiff to the claimed payments.

The origination fee was payable only upon closing of the financing, which never occurred.

The commitment fee was payable only upon issuance of a letter of approval/commitment meeting the term sheet's indicative terms and conditions, which the plaintiff never provided.

The court dismissed the plaintiff's motion and granted the defendants' counter-motion, dismissing the action entirely.

Costs of $30,000 were awarded to the defendants on a partial indemnity scale.

This decision concerns a motion for production of documents in two companion actions involving allegations of auditor negligence and failure to detect fraud at Bondfield Construction Company Ltd. The plaintiffs sought production of the "Bowen Memo" and related documents from PricewaterhouseCoopers LLP (PwC), who claimed solicitor-client and litigation privilege.

The court found that the documents were not privileged, as they were not created for the purpose of seeking legal advice or in contemplation of litigation, and ordered their production without redaction.

The court considered whether documents prepared by PricewaterhouseCoopers LLP (PwC), including the "Bowen Memo" and related materials, were protected by solicitor-client or litigation privilege in the context of a dispute over the transition of audit responsibilities from PwC to Deloitte for Bondfield Construction Company Limited.

The court found that the documents were not privileged and ordered their production, as the dominant purpose of their creation was not for seeking legal advice or in contemplation of litigation, but rather to summarize audit procedures.

This endorsement addresses a motion in the context of a proposed arrangement involving Converge Technology Solutions Corp. and 16728421 Canada Inc. (HIG) under section 192 of the Canada Business Corporations Act.

After an unsolicited acquisition proposal and subsequent amendments to the arrangement, the parties resolved the motion on consent, resulting in the dismissal of the motion with prejudice and without costs.

The court also considered and declined a request to continue a sealing order, finding that the justification for confidentiality no longer existed.

This endorsement addresses an urgent case conference regarding the content of a press release to be issued by Converge Technology Solutions Corp. if an Acquisition Proposal is received and deemed a Superior Proposal.

The court considered whether the press release should include the name of the party submitting the Acquisition Proposal and the proposed share price.

The Ontario Securities Commission (OSC) supported disclosure of both, and the court agreed, finding this approach consistent with previous orders and directions.

This endorsement addresses urgent interim relief in a contested plan of arrangement under the Canada Business Corporations Act involving Converge Technology Solutions Corp. and 16728421 Canada Inc. (HIG).

The dispute arose after Converge received an unsolicited proposal from a third party, leading to motions regarding confidentiality, publication bans, and the process for shareholder notification.

The court continued interim sealing and publication ban orders until the facts crystallize, particularly regarding whether a "Superior Proposal" is received and determined by the board.

The decision applies the Supreme Court’s test for discretionary limits on court openness, balancing the need to protect commercially sensitive information with the principle of open courts.

This costs endorsement follows the court’s decision on an application regarding the enforcement of an agreed procedure in a Share Purchase Agreement between CLEAResult Canada Inc. and the respondents.

The court granted the application, allowing the appointed Independent Auditor to proceed with the expert adjudication of the Reverse Earn-Out Calculation.

The parties had agreed that the wholly successful party would be paid $60,000 in costs.

However, due to a lack of clarity in the applicants’ position regarding the auditor’s mandate, the court reduced the costs award to $45,000, to be paid by the respondents.

The Trustee, KSV Restructuring Inc., sought substantive consolidation of the estates of ProEx Logistics Inc., Guru Logistics Inc., and 1542300 Ontario Inc., as well as authorization to accept claims by Paul Randhawa and to approve the Trustee’s reports.

The court granted substantive consolidation and approved the Trustee’s reports, but declined to authorize the Trustee’s acceptance of Paul’s claims, holding that the Bankruptcy and Insolvency Act provides a comprehensive code for the allowance and disallowance of claims, and that equity owners such as Rana Randhawa have no standing to challenge the Trustee’s decision to accept a claim.

The decision also addresses the effect of outstanding costs awards on standing and the finality of proceedings.

The applicants sought to enforce a Share Purchase Agreement (SPA) provision requiring an Independent Auditor (BDO) to determine a "Reverse Earn-Out Calculation." The respondents argued that other disputes under the SPA needed court adjudication first, claiming BDO lacked necessary information and that the applicants breached earn-out covenants.

The court held that the expert adjudication by BDO should proceed expeditiously as agreed in the SPA, as it is a distinct process from the respondents' claims for breach of covenants, which can be pursued in a separate action for indemnity.

The court clarified BDO's mandate is limited to financial determination, not factual investigation of covenant breaches, and dismissed the respondents' attempt to have the court direct BDO on information use.

This appeal concerned a dispute over the exercise of options to purchase commercial properties.

The purchase price was to be the midpoint of two appraisals, which were widely divergent.

The Tenant (purchaser) tendered only the amount of its own appraisal, holding the disputed balance in trust with its solicitor, which the Landlord (vendor) refused to accept.

The application judge found the tender sufficient and ordered specific performance.

The Court of Appeal reversed this decision, holding that the Tenant's partial tender constituted a material breach of the purchase and sale contract.

The court found that a purchaser cannot unilaterally withhold a portion of the purchase price, even if disputed, and that the "abatement cases" relied upon by the lower court were distinguishable.

The Tenant's cross-appeal regarding the validity of the Landlord's appraisal was dismissed.

The options were declared null and void, and vacant possession was ordered for the Landlord.

This is a costs endorsement following an appeal where the Court of Appeal allowed the appeal on a preliminary jurisdictional question raised by the court itself, rather than on the substantive issues.

The court had determined that neither the application judge nor the Court of Appeal had jurisdiction to decide whether a proposed payment would constitute an offence under the Criminal Code.

Given these unique circumstances, where the disposition was based on a threshold jurisdictional question posed by the panel and did not determine the underlying substantive issues, the court ordered that each party bear their own costs below and on appeal.

The Court of Appeal for Ontario set aside a Superior Court declaration that a proposed payment by estate executors to a law firm, in satisfaction of a Dubai judgment, would violate s. 83.03(b) of the Criminal Code due to alleged connections between the judgment creditors and a terrorist group.

The appellate court held that the Superior Court lacked jurisdiction to issue such a declaration, as it improperly interfered with prosecutorial discretion and provided no binding immunity from criminal prosecution.

The court emphasized that Rule 14.05(3) of the Rules of Civil Procedure and s. 60(1) of the Trustee Act are procedural and do not create jurisdiction for declarations on criminal legality, especially when based on disputed facts.

The proposed representative plaintiff in a product liability class action sought a protective order to anonymize their identity and seal sensitive personal information due to a history of sexual violence and PTSD, which led to their cannabis use and subsequent Cannabis Hypermesis Syndrome.

The defendants did not oppose the motion.

The court granted the order, applying the Sherman Estate test, finding that court openness posed a serious risk to the plaintiff's well-being and dignity, no reasonable alternatives existed, and the benefits of protecting the plaintiff and encouraging other trauma survivors to access justice outweighed the minimal impact on court openness.

The Plaintiffs (Bondfield Construction Company Limited and Zurich Insurance Company Ltd.) brought a motion to stay summary judgment motions initiated by PricewaterhouseCoopers LLP (PwC) in complex professional negligence actions against auditors, which also involved significant fraud allegations and discoverability issues.

The court, acting as case management judge, granted the stay, determining that full documentary and oral discoveries were essential to ensure a fair and efficient process.

The decision highlighted the complexity of the case, the substantial damages sought, the allegations of long-standing fraudulent activities, and the potential for inconsistent findings if the summary judgment motions proceeded on a limited record.

The court emphasized the flexibility of judges in case-managed matters and the necessity of a comprehensive record for a just adjudication of limitation period issues.

The plaintiffs, Arlene Stevenson and Mira Melien, brought a motion for certification of a class action against Mazda Motor Corporation, Mazda Canada Inc., and Subaru Canada Inc. for settlement purposes, along with approval of the notice plan, and appointment of administrators.

The class action concerned alleged economic loss arising from Takata airbag inflators in Mazda and Subaru vehicles.

The court found that all criteria for certification under the Class Proceedings Act, 1992 were satisfied, even with a less rigorous application in the settlement context.

The motion was granted, certifying the action for settlement purposes and approving the related relief.

This appeal concerns an auditor's liability action arising from the Bernard Madoff Ponzi scheme.

The appellants, three Fairfield feeder funds incorporated in the British Virgin Islands, invested in Madoff's company and suffered losses when the fraud was revealed in December 2008.

The funds sued PricewaterhouseCoopers for breach of contract and negligence in auditing their financial statements for 2006 and 2007, claiming damages of approximately $2.5 billion.

The motion judge granted summary judgment dismissing the action on the basis that no damages were suffered, applying the Livent damages methodology.

The appellants appealed on five grounds, all involving findings of fact or mixed fact and law regarding the calculation of damages.

The Court of Appeal dismissed the appeal, finding no palpable and overriding errors in the motion judge's analysis.

In a negligence appeal arising from an auditor’s failure to detect corporate fraud, the Court applied the Anns/Cooper framework to pure economic loss claims for negligent misrepresentation and negligent performance of a service.

The Court held that liability must be confined to losses that fall within the purpose of the defendant’s undertaking and the plaintiff’s reasonable reliance.

It found no recoverable loss tied to services provided for investment solicitation, but upheld liability for losses flowing from a negligent statutory audit prepared for shareholder oversight.

The appeal was allowed in part, and damages were reduced to reflect only losses causally connected to the statutory audit.

This supplementary endorsement clarifies the scope of a previous endorsement regarding a motion for leave to commence a derivative action.

The court clarified that its prior decision assumed, without deciding, the arguable case for the causes of action and did not consider arguments regarding whether the derivative action was in the corporation's interest or brought in good faith, thereby preserving the parties' ability to advance these positions on appeal.

The defendants, an auditing firm, brought a motion for summary judgment to dismiss a $5 billion negligence claim arising from their audits of feeder funds that invested in the Bernard Madoff Ponzi scheme.

The plaintiffs alleged that the auditors failed to discover the fraud, causing the funds to remain invested and suffer massive losses.

The court granted summary judgment, finding that the plaintiffs failed to prove any damages.

Applying the plaintiffs' own damages formula, the court concluded that the funds actually benefited from the delayed discovery of the fraud due to net withdrawals and the exclusion of fictitious profits and unasserted liabilities.

The defendants brought a motion for partial summary judgment to dismiss claims of breach of contract, fraudulent misrepresentation, unjust enrichment, and fraudulent conveyance.

The court dismissed the motion, finding that the defendants failed to establish there was no genuine issue for trial.

The absence of direct evidence from a key defendant (Weber), whose credibility was central to the claims, prevented a fair determination without a full trial.

The court also noted the risk of inconsistent findings if the fraudulent conveyance claim was dismissed while the related oppression claim proceeded to trial on similar facts.