Alexander Francis Lakin Cobb

The moving parties brought a motion for leave to appeal an order of Penny J. dated January 8, 2024.

The Divisional Court dismissed the motion for leave to appeal.

As no costs outline was filed, the court ordered no costs.

The appellants, who were refugee claimants during the relevant periods, appealed the Minister's denial of the Canada Child Benefit (CCB).

They argued that refugee claimants fall within the definition of 'temporary resident' under the Immigration and Refugee Protection Act and are thus eligible for the CCB.

Alternatively, they argued that excluding refugee claimants from the CCB violates their rights under sections 7 and 15 of the Charter.

The Tax Court of Canada dismissed the appeals, finding that refugee claimants are not temporary residents under the legislation.

The Court also held that the denial of the CCB did not violate section 7, as it did not deprive the appellants of security of the person in a manner contrary to the principles of fundamental justice, nor did it violate section 15, as refugee claimant status is not an analogous ground and the exclusion did not disproportionately impact racialized women.

Staff of the Ontario Securities Commission brought a preliminary motion to dismiss an application by four companies.

The companies had applied for disclosure-related orders under s. 17(1) of the Securities Act in anticipation of a contempt proceeding that Staff intended to bring for the companies' failure to comply with a summons.

The Tribunal granted Staff's motion and dismissed the companies' application.

The Tribunal held that a contempt proceeding under s. 13(1) is a proceeding under the Act, meaning s. 17(6) authorizes the Commission to disclose protected information without needing a s. 17(1) order.

The Tribunal also found that the companies' request for an order authorizing their own disclosure was premature, as the contempt proceeding had not yet been commenced.

The Appellant appealed reassessments denying input tax credits for HST paid to employment agencies that provided temporary workers.

The Minister argued the agencies were incapable of providing the services and the Appellant failed to meet documentary requirements.

The Tax Court of Canada allowed the appeal, finding that the agencies did provide the services and the Appellant's records satisfied the documentary requirements under the Excise Tax Act.

The appellant, CIBC, appealed assessments denying its claims for GST rebates.

CIBC argued that the supply it received from PC Bank under a Financial Services Agreement and a Loyalty Services Agreement was an exempt financial service.

The Tax Court of Canada held that the predominant element of the single compound supply was a bundle of rights allowing CIBC to solicit Loblaw's customers, which falls within the exclusion in paragraph (r.5) of the definition of 'financial service' in subsection 123(1) of the Excise Tax Act.

The appeal was dismissed.

In the context of appeals concerning the denial of the Canada Child Benefit to refugee claimants, a voir dire was held to determine the admissibility of three expert reports tendered by the appellants for their Charter challenge.

The Tax Court of Canada admitted the reports of a sociologist and a psychologist regarding precarious legal status, finding them logically relevant to the section 15 analysis and sufficiently probative.

However, the Court excluded the report of an immigration lawyer, concluding it constituted inadmissible legal opinion and legislative history that was not necessary to assist the trier of fact.

The appellant brought a motion at the outset of its GST appeal arguing that the doctrines of res judicata or abuse of process precluded the respondent from re-litigating the nature of supplies it received from a bank, which had been determined to be exempt financial services in a 2009 decision.

The Tax Court of Canada dismissed the motion, finding that retroactive amendments to the Excise Tax Act narrowed the definition of financial services and that the factual context of the amended agreements differed from the prior decision, meaning the same question was not being decided.

Sapient Canada Inc. appealed a trial judgment awarding damages to Atos (successor to Siemens) for wrongful termination of a subcontract involving data conversion and application management support services for an Enbridge software implementation project.

Sapient sought to reduce damages from $6,291,680 to $1,510,738.89, arguing the trial judge erred in: (1) failing to apply the minimum performance principle from Hamilton v. Open Window Bakery Ltd.; (2) misinterpreting the termination for convenience formula; and (3) misinterpreting a limitation of liability clause.

The Court of Appeal found the trial judge erred in failing to apply the minimum performance principle to data conversion services damages, reducing the award by $1,344,275 to $4,947,405.

The court upheld the trial judge's interpretation of the termination for convenience formula and the limitation of liability clause.

Costs were remitted to the trial judge for reconsideration.

The applicant, a major Canadian toy retailer, sought an initial order under the Companies' Creditors Arrangement Act (CCAA) due to a liquidity crisis triggered by the bankruptcy filing of its US parent company.

The court granted the initial order, including a stay of proceedings to stabilize operations ahead of the holiday season.

The court also approved a debtor-in-possession (DIP) lending facility to replace existing secured debt and fund ongoing operations, while limiting the DIP lenders' enforcement rights to require court approval.

Provisions allowing the Monitor to pay pre-filing claims of critical suppliers and establishing charges for administration and directors/officers were also approved.

GIP Primus, L.P. and Brightwood Loan Services LLC ("GIP"), along with Portco, brought motions seeking orders for Essar Steel Algoma Inc. ("Algoma") to resume payments under a Cargo Handling Agreement, including arrears, and for a priority charge in the alternative.

The motions were based on section 11.01(a) of the CCAA, arguing that Portco provided critical services or licensed property.

The court dismissed the motions, reiterating previous findings that Portco did not provide services or a license, and that the arguments were previously decided.

The court also declined to grant a critical supplier charge under section 11.4 or the general discretion of section 11 of the CCAA, citing lack of application by the debtor, prior rulings, and potential breach of DIP loan terms and prejudice to other creditors.

Commercial List trial arising from the wrongful termination of a subcontract in a large SAP IS-U implementation project.

The court held that the prime contractor wrongfully terminated the subcontract for cause, because alleged deficiencies in data conversion, reconciliation, and AMS did not amount to material incurable breaches and, in any event, earlier breaches had been affirmed.

The court further held that delay to Go-Live was multi-causal and could not be attributed solely to the subcontractor, with project management failures by the prime contractor bearing overall responsibility.

Lost profits for the AMS portion were recoverable because the limitation clause did not exclude direct expectation damages under the subcontract.

The plaintiff recovered substantial damages, while the defendant succeeded only in part on a limited counterclaim for specific breaches, unpaid invoices, and a contractual late-delivery penalty.

One hundred and fifteen former Nortel employees brought a motion seeking to impose personal liability on the former directors of Nortel Networks Limited (NNL) and Nortel Networks Corporation (NNC) for unpaid severance payments under section 119 of the Canada Business Corporations Act (CBCA).

The employees argued that the severance payments were akin to retention payments for services performed.

The directors raised defenses including that severance payments are not covered by section 119, they exercised due diligence, and some claimants were employed by a different subsidiary (NNTC).

The court dismissed the motion, finding that severance payments are not for 'services performed' under CBCA s. 119, but rather compensation for loss of employment.

The court also found that the directors had a valid due diligence defense and that the 'true employer' test would have identified NNL as the employer for all employees, despite payroll being handled by NNTC.

The court also noted that releases signed by some employees would have covered the claim.

The appellant Superintendent of Financial Services appealed a CCAA judge's order lifting a stay of proceedings and ordering the debtor companies into bankruptcy.

The appellant argued that a deemed trust arose under the Pension Benefits Act upon the wind up of two pension plans during the CCAA proceedings, and that this trust should have priority over secured creditors.

The Court of Appeal dismissed the appeal, holding that the CCAA judge reasonably exercised his discretion to transition the proceedings to bankruptcy under the BIA, where provincial deemed trusts are rendered inoperative by the doctrine of federal paramountcy.

In a large commercial dispute arising from a subcontract on an SAP implementation project, the plaintiffs sought an order imposing a discovery plan and requiring further documentary production from the defendant.

The defendant had initially produced substantially fewer documents and later disclosed that thousands of additional documents from a project repository had not been produced due to inadvertence.

The court addressed the role of proportionality in electronic discovery under the Rules of Civil Procedure and emphasized that discovery must be proportionate to the issues and costs of the litigation.

The court ordered additional electronic searches and production from selected custodians and directed restoration and review of backup data using specified search parameters.

The defendant’s cross‑motion seeking reciprocal additional production from the plaintiffs was dismissed.

The applicant transit authority sought court approval of a negotiated settlement in a class proceeding concerning entitlement to proceeds arising from the demutualization of a life insurance company that issued group life insurance policies to employees and retirees.

The settlement provided that approximately 62% of the proceeds would be distributed to eligible employees and retirees and the remainder to the employer, with deductions for distribution and legal costs.

The court applied the established test under the Class Proceedings Act, 1992 for approving class action settlements and considered factors including fairness of allocation, litigation risk, negotiation process, notice to class members, and absence of objections.

The court concluded that the settlement was fair, reasonable, and in the best interests of the class and approved the distribution scheme and related legal and administrative fees.

Ancillary orders were granted permitting sharing of contact information for distribution purposes and sealing the final list of eligible recipients to protect personal information.

In a liquidating CCAA proceeding, the court considered whether a deemed trust under the Pension Benefits Act arose in respect of pension plan wind-up deficiencies, giving priority over secured creditors.

Applying the Supreme Court's decision in Indalex, the court held that no deemed trust arose because the pension plans were not wound up prior to the CCAA Initial Order.

The court granted the second lien lenders' motion to lift the stay of proceedings to allow a bankruptcy petition to proceed, concluding that imposing a provincial deemed trust priority in the middle of an insolvency proceeding would undermine the predictability and flexibility of the CCAA regime.

The Ontario Securities Commission held a hearing to consider whether to approve a Settlement Agreement between Staff and Biovail Corporation.

Biovail admitted to inaccurate and false public disclosure that materially impacted its financial statements, including failing to disclose arrangements with a research vehicle, improperly recognizing revenue from a 'bill and hold' transaction, failing to correct a material error in exchange rates, and disseminating incorrect statements regarding a truck accident.

Biovail also provided misleading information to Staff.

The Commission approved the Settlement Agreement, finding it in the public interest, and ordered Biovail to be reprimanded, pay a $5,000,000 administrative penalty, pay $1,500,000 in costs, and retain a consultant to review its compliance training.