Alan Peter Gardner

This is a costs decision on appeal from a Superior Court judgment.

The appellants appealed the decision of Justice Fred Myers dated April 12, 2017.

The Court of Appeal reviewed written submissions on costs and determined that the appellants must pay the respondent's costs in the fixed amount of $30,000 inclusive of disbursements and HST.

The respondent appealed a Superior Court judgment that granted the applicant's application to enforce her rights under a Governance Agreement concerning the replacement of Board members of Spectrum Health Care.

The appellants argued the application judge erred in interpreting the contract, should have stayed the application pursuant to an arbitration clause in the shareholders' agreement, and erred in alternative findings regarding oppression remedy and interim injunction.

The Court of Appeal upheld the lower court decision, finding no palpable and overriding error in the application judge's interpretation of the Governance Agreement or his analysis of the alternate remedies.

Lori Lord sought to enforce a Governance Agreement or, alternatively, relief under the oppression remedy against Clearspring Spectrum Holdings L.P. and Clearspring Capital Partners (US) II L.P. The respondents sought to stay the application pending arbitration.

The court found Ms. Lord was not a party to any arbitration agreement and could not be compelled to arbitrate.

The court held that Clearspring was in breach of the Governance Agreement, which was enforceable and not in conflict with the shareholders' agreement.

Alternatively, Ms. Lord's reasonable expectations were unfairly prejudiced, warranting an oppression remedy.

The application was granted, enforcing the Governance Agreement.

The defendants brought a motion for a declaration that the plaintiff's statutory secondary market misrepresentation claim under Part XXIII.1 of the Securities Act was statute-barred.

The plaintiff brought a cross-motion seeking an order granting leave nunc pro tunc to save the claim.

The court found that while the plaintiff was not barred by issue estoppel or abuse of process from arguing for a nunc pro tunc order, the request failed on its merits.

Applying the Supreme Court's decision in CIBC v. Green, the court held that a nunc pro tunc order was not available because the plaintiff had not filed a motion for leave before the expiry of the limitation period, and the equitable factors did not favour granting the order.

The defendants' motion was granted and the plaintiff's cross-motion was dismissed.

The Court of Appeal issued an addendum to correct an error in paragraph 11 of its reasons for judgment released on November 17, 2005.

The court amended the reasons to replace the reference to 'Subordinated Debenture Holders' with 'Senior Debt Holders' in the first two sentences of the paragraph.

In a CCAA restructuring of Stelco Inc., the appellants, representing subordinated debenture holders, sought to be classified as a separate class of creditors for voting purposes on the proposed plan.

They argued their interests conflicted with senior debt holders due to a turnover payment provision requiring them to remit distributions to senior debt holders until the senior debt was paid in full.

The supervising judge dismissed the motion, finding no material distinction in their legal rights vis-à-vis the debtor company.

The Court of Appeal granted leave but dismissed the appeal, affirming that creditor classification under the CCAA is determined by the creditors' legal rights in relation to the debtor company, not their rights as creditors in relation to each other.

In a CCAA proceeding regarding Stelco Inc., the Informal Independent Converts' Committee appealed an order denying them a separate class of creditors.

The Court of Appeal granted leave but dismissed the appeal, finding no legal error or error in principle in the motion judge's conclusion that the appellants lacked a different legal or practical interest from other unsecured creditors vis-à-vis the debtor.