Alan Mark

The plaintiff in a complex family trust dispute brought motions on the eve of trial for further documentary production, further examinations for discovery, and leave to amend her Statement of Claim.

The motions sought to introduce new allegations that the defendants covered up and settled claims of sexual misconduct against the family patriarch, Frank Stronach.

The court dismissed both motions, finding no evidence that the requested documents existed, that the new allegations were irrelevant to the pleaded claims of corporate mismanagement, and that amending the pleadings three weeks before a scheduled seven-week trial would cause non-compensable prejudice and delay.

The plaintiff moved to strike numerous paragraphs of the defendants' statements of defence on the basis of res judicata or abuse of process, arguing the defendants were seeking to re-litigate findings made by the Mining and Lands Tribunal (MLT) regarding a hydroelectric dam approval.

The court dismissed the motion, finding that the impugned pleadings fairly responded to the plaintiff's allegations of delay and misfeasance.

Furthermore, the court held that the MLT decision was merely a recommendation to the Minister and not a final judicial decision capable of grounding res judicata.

The motion against the Independent Electricity System Operator was also dismissed as it was not a party to the MLT proceeding.

The plaintiffs requested a case conference to fix a trial date despite failing to complete a mandatory mediation by the court-ordered deadline.

One of the plaintiffs booked a vacation that conflicted with the scheduled mediation date, showing disregard for the court's prior order.

The court refused to dispense with the mediation requirement or hold a trial date as a placeholder, and consequently struck the action from the trial list until mediation is completed and the matter is truly ready for trial.

The applicant brought an application under s. 17(8) of the Arbitration Act, 1991 to set aside an arbitral tribunal's preliminary ruling that it had jurisdiction to decide a dispute between the parties.

The dispute arose from emergency repair work performed by the applicant at the respondent's power plant, which allegedly caused $10 million in damages.

The respondent initiated arbitration based on a 2009 'Purchase Order General Terms and Conditions' document signed by the applicant.

The court conducted a hearing de novo and found that the 2009 document was an inchoate agreement that was never incorporated into the 2018 purchase order for the repair work.

Applying the objective theory of contract formation, the court concluded there was no consensus ad idem regarding an arbitration agreement.

The arbitral tribunal's decision was set aside for lack of jurisdiction.

Cineplex and Cineworld entered into an Arrangement Agreement for Cineworld to acquire Cineplex for $2.8 billion.

Following the outbreak of the COVID-19 pandemic and mandated theatre closures, Cineplex deferred payments to landlords and suppliers to manage liquidity.

Cineworld terminated the agreement, alleging Cineplex breached the ordinary course covenant.

The court found that Cineplex's cash management measures were commercially reasonable and did not breach the agreement, noting that the pandemic risk was allocated to Cineworld under the Material Adverse Effect clause.

Cineworld's termination was a repudiation, and Cineplex was awarded $1.24 billion in damages for lost synergies and transaction costs.

The plaintiffs moved for an interlocutory injunction to prohibit the Independent Electricity System Operator (IESO) from enforcing the deemed terminations of 34 Feed-In Tariff (FIT) contracts and discontinuing payments.

The court found that the motion was an impermissible collateral attack on prior court orders that had deemed the contracts terminated.

Furthermore, the plaintiffs sought a mandatory injunction but failed to establish a strong prima facie case, as the issues of termination had been decided in prior litigation.

The court also found the plaintiffs' evidence of irreparable harm to be speculative.

The motion for an interlocutory injunction was dismissed.

The applicants, solar power project developers, sought a declaration that the Independent Electricity System Operator (IESO) did not have the right to terminate their Feed-In-Tariff (FIT) contracts for failing to achieve commercial operation by the Milestone Date for Commercial Operation (MCOD).

The IESO had previously waived this right but issued a warning letter revoking past waivers following a government directive to wind down pre-construction energy contracts.

The court applied principles of contractual interpretation and found that the FIT contracts, which included a 'time is of the essence' clause, unambiguously granted the IESO the right to terminate for failure to meet the MCOD.

The application was dismissed.

The applicants sought declaratory relief to prevent the Independent Electricity System Operator (IESO) from terminating their Feed-in Tariff (FIT) Contracts for failing to achieve commercial operation by the required milestone date.

The applicants argued that estoppel by convention applied based on a shared assumption that the IESO would grant an 18-month extension.

The court dismissed the application, finding no manifest representation by the IESO to establish a shared assumption, and noted that the entire agreement and waiver clauses in the contracts precluded reliance on past practices.

In the CCAA proceedings of U.S. Steel Canada Inc., its parent company, United States Steel Corporation, sought approval of several proofs of claim totaling over $2 billion.

Various stakeholders objected, arguing that the intercompany loans should be re-characterized as 'equity claims' under the CCAA and that the security granted for certain advances was void as a fraudulent preference or unenforceable for lack of consideration.

The court rejected the objections, finding that the parent company had a reasonable expectation of repayment when the advances were made, and that the security was validly granted for fresh consideration and did not constitute a fraudulent preference.

The claims were confirmed as debt claims.

In CCAA proceedings involving the liquidation of a national retail chain, the court considered a motion by the court-appointed monitor seeking approval of its reports and activities.

Certain landlord creditors opposed the request, arguing that broad approval could prejudice creditor rights and improperly create issue estoppel or res judicata effects in future disputes.

The court held that while approval of monitor activities serves useful procedural and policy purposes in CCAA proceedings, caution is required where approval is sought in a general sense without full fact-finding.

The court approved the monitor’s reports but limited the effect of the approval so that only the monitor, in its personal capacity and regarding its own potential liability, could rely on the approval.

This approach balanced protection for the monitor with preservation of creditor rights.

In the context of the global insolvency of Nortel Networks, the UK Pension Claimants (UKPC) asserted multiple claims against the Canadian debtors (NNC and NNL).

The UKPC claimed for a contingent Financial Support Direction (FSD) under UK pension law, amounts under a Funding Guarantee and a Swift Guarantee, and remedies for oppression and unjust enrichment.

The court dismissed the FSD claim as too remote and speculative to constitute a provable claim in the CCAA proceedings.

The court also dismissed the claims under the Swift Guarantee, oppression, and unjust enrichment.

However, the court allowed the UKPC's claim under the Funding Guarantee, finding NNL liable for £339.75 million.

In a proposed securities class action arising from the takeover of a mining company through a joint bid on the Toronto Stock Exchange, multiple defendant groups moved to transfer the proceeding from London, Ontario to Toronto under Rule 13.1.02 of the Rules of Civil Procedure.

The plaintiffs opposed the transfer, asserting that the dispute had multinational elements and that no venue factor strongly favoured Toronto.

The court held that the defendants failed to establish that a transfer was desirable in the interests of justice and dismissed the transfer motions.

The plaintiffs also moved to stay a related statutory valuation proceeding involving dissenting shareholders under the Business Corporations Act.

The court granted a temporary stay, finding substantial overlap in factual and expert valuation issues and concluding that a stay would avoid duplication of proceedings and promote access to justice.

The applicant sought a declaration that a proposed class action brought by a tobacco growers’ marketing board against a tobacco manufacturer was not barred as a released claim under a comprehensive settlement agreement resolving governmental claims relating to tobacco smuggling and unpaid taxes.

The respondents argued that the class action fell within the broad release provisions and that the marketing board was effectively a Crown entity bound by the agreement.

The court applied principles of contractual interpretation governing releases, including contextual interpretation and the rule that general release language is limited to matters within the parties’ contemplation at the time of execution.

It concluded that the settlement agreement addressed governmental tax‑related claims arising from smuggling and did not extend to private claims by growers for price differentials.

The class proceeding was therefore not a released claim by a releasing entity.