Alexander C. Payne

This decision concerns a dispute between two brothers, David Ang and Mark Ang, over the ownership and management of Bolt Technologies Incorporated (formerly Second Closet Incorporated).

David Ang claimed an equal share in the company based on an alleged oral agreement and representations by Mark Ang, as well as claims of wrongful dismissal and oppression under the Canada Business Corporations Act.

The court found no enforceable oral agreement or representation, held that the executed Unanimous Shareholders Agreement (USA) governed the parties' rights, and dismissed David's claims.

The court also found that David had engaged in misconduct, including fabricating evidence and breaching fiduciary duties, and allowed Bolt's counterclaim for damages and punitive damages.

This endorsement concerns two motions for court approval of settlements and a trust variation under Rule 7.08 of the Rules of Civil Procedure and Section 1(1) of the Variation of Trusts Act.

The primary applicant, an elderly individual under disability, sought approval of two settlements: one with his former executive assistant, Jenny Bassett, and another with his nephew, Sotheby Ketchen.

These settlements aimed to resolve disputes regarding the validity of trust amendments, the appointment of trustees, and the individual's capacity.

The court also addressed the nunc pro tunc appointment of a litigation guardian for the individual, including the issue of an out-of-province litigation guardian.

The court approved both settlements and the proposed variation of the trust, finding them to be in the best interests of the party under disability and consistent with the settlor's original intentions.

Tacora Resources Inc. sought an amended and restated initial order (ARIO) and a solicitation order under the Companies’ Creditors Arrangement Act (CCAA) to facilitate its restructuring, including approval for a $75 million debtor-in-possession (DIP) financing facility from Cargill.

An ad hoc group of senior noteholders (AHG) opposed the Cargill DIP facility, alleging a flawed process and material prejudice, and brought a cross-motion for approval of their own competing DIP proposal.

The court found that Tacora's Board exercised reasonable business judgment in selecting the Cargill DIP facility, which was financially superior and less prejudicial to creditors overall than the AHG's proposal.

The court dismissed the AHG's cross-motion, finding no evidence of improper conduct by Cargill or the Board, and granted Tacora's requested ARIO and Solicitation Order, including approval of the Cargill DIP facility, an extended stay period, a Key Employee Retention Plan (KERP), and a sealing order for KERP details.

The Joint Liquidators of Stanford International Bank Limited (SIB) appealed the dismissal of their negligence claim against The Toronto-Dominion Bank (TD Bank).

SIB was a vehicle for a massive Ponzi scheme.

The Liquidators claimed TD Bank was negligent in providing correspondent banking services by failing to detect and protect SIB from insider abuse.

The Court of Appeal upheld the trial judge's finding that TD Bank did not owe a novel duty of care to monitor SIB for internal fraud, as this fell outside the scope of TD Bank's undertaking as a correspondent bank.

The court also affirmed the trial judge's alternative finding that even if a duty existed, there was no breach of the standard of care, and that the trial judge's procedural rulings regarding witness recall were fair.

The appeal was dismissed.

The joint liquidators of Stanford International Bank (SIB) and a group of investors brought actions against TD Bank, SIB's primary U.S. dollar correspondent bank, for knowing assistance in breach of fiduciary duty and negligence.

The plaintiffs alleged that TD Bank should have detected and prevented the massive Ponzi scheme orchestrated by SIB's owner, Allen Stanford.

The Superior Court of Justice dismissed the actions, finding that TD Bank had no actual knowledge of the fraud and was not reckless or wilfully blind.

The court also held that TD Bank did not owe a novel duty of care to protect its customer from insider abuse, and even if it did, it met the standard of care of a reasonable banker during the relevant period.

The plaintiff sought to certify a class proceeding against the City of Ottawa arising from a deadly bus accident at Westboro Station.

The proposed action was structured to plead systemic negligence in transit design and operation while avoiding claims against the city as the owner of the vehicle and employer of the driver.

The court dismissed the certification motion, finding that the proposed class proceeding was not the preferable procedure, as it ignored readily available compensation under the motor vehicle insurance regime and numerous individual actions had already been commenced.

The applicant, a former officer and shareholder of the respondent corporation, brought an oppression application after his termination.

In the context of that proceeding, he moved to remove the law firm representing the respondents as counsel of record, alleging a disqualifying conflict of interest based on prior joint representation and the likelihood that the firm's lawyers would be called as witnesses.

The court dismissed the motion, finding that the firm's retainer clearly stated it represented only the corporation, not its officers or shareholders.

Furthermore, the court held that it was premature and speculative to remove counsel on the basis that its lawyers might be called as witnesses, as the applicant had not yet determined whether he would call them or convert his application into an action.