Andrew Duncan Gray

A pharmaceutical distributor sued after a retailer terminated a long-term supply agreement based on a dispute over whether contractual negative financial impact compensation and earned term extensions continued beyond the initial term.

The court held that the compensation mechanism applied throughout the defined Term, including extensions, and that the retailer wrongfully terminated the agreement on March 31, 2021.

Applying the minimum performance doctrine, the court held that extensions earned before breach could not be unwound, but post-breach damages had to be assessed on the least burdensome mode of future contractual performance, limiting the term to December 31, 2022.

The plaintiff recovered NFI compensation, lost-profit damages to be calculated, and severance-based reliance damages, while claims for reclassified product margins, warehouse losses, transportation costs, vendor settlements, and enhanced prejudgment interest were denied.

On the counterclaim, the defendants recovered withheld OTC rebates and unused prepayment funds, but their transition-period lost-sales claim failed.

The applicants sought to appeal or set aside a Partial Final Award of an arbitrator that granted the respondents a 50% constructive trust interest in a commercial property adjacent to a jointly owned shopping centre.

The arbitrator had found an ad hoc fiduciary duty despite the Co-Tenancy Agreement explicitly excluding partnership and fiduciary obligations.

The Superior Court of Justice granted leave to appeal, finding that the arbitration agreement did not preclude appeals on questions of law.

The court set aside the relevant portions of the award, holding that the arbitrator committed extricable errors of law by ignoring the unambiguous exclusionary language of the agreement and exceeded his jurisdiction by deciding an unpleaded claim for an ad hoc fiduciary duty.

The court considered motions by the plaintiff to amend its statement of claim and by the defendants to strike the statement of claim.

The court found that, except for the claim of unlawful interference with contractual relations, the plaintiff’s amended claim disclosed the material elements of the causes of action pleaded, including breach of confidence, fraudulent misrepresentation, conspiracy, inducing breach of contract, and piercing the corporate veil.

The court dismissed the defendants’ motion to strike, allowed the plaintiff’s motion to amend (except for the unlawful interference claim), and awarded costs to the plaintiff.

Aimia Inc. brought an application under s. 104 of the Securities Act alleging that Mithaq Capital SPC's acquisition of shares a year prior constituted a deemed take-over bid because Mithaq acted jointly with others to exceed the 20% threshold.

Mithaq brought a motion to dismiss the application on a preliminary basis.

The Capital Markets Tribunal found that while Aimia had standing to bring the application, the application was an abuse of process.

The Tribunal dismissed the application because Aimia's long delay in seeking relief, combined with significant intervening events, made the application a misuse of the Tribunal's procedure.

Mithaq Canada Inc. applied to the Capital Markets Tribunal to cease trade a private placement by Aimia Inc., arguing it was an abusive defensive tactic designed to thwart Mithaq's take-over bid.

Mithaq also sought to set aside a decision of the Toronto Stock Exchange (TSX) that conditionally approved the private placement without requiring shareholder approval.

Aimia brought a cross-application to deny Mithaq the use of the 5% exemption for share purchases.

The Tribunal dismissed both applications.

It found that Aimia had a serious and immediate need for financing, and the private placement was negotiated largely before Mithaq's bid became imminent.

Although the private placement altered the bid dynamics, it was not clearly abusive.

The Tribunal also found no grounds to interfere with the TSX's decision, as the TSX did not err in principle and there was no compelling new evidence.

Finally, the Tribunal declined to alter the minimum tender condition or deny Mithaq the 5% exemption, finding no exceptional circumstances or lack of good faith.

Mithaq Canada Inc. applied to the Capital Markets Tribunal to cease trade a shareholder rights plan and a private placement adopted by Aimia Inc., alleging they were improper defensive tactics against Mithaq's unsolicited take-over bid.

Mithaq sought interim relief pending the full hearing.

The Tribunal ordered that the private placement be cease traded unless Aimia undertook that any securities issued under it would not be tendered to any alternative take-over bid or issuer bid.

The Tribunal dismissed Mithaq's requests for additional undertakings, including requiring Aimia to segregate the private placement proceeds or assume responsibility for investor breaches.

The applicant, Lithium Royalty Corporation (LRC), brought an application to enforce an alleged contract for the purchase of an 85% interest in a lithium mining royalty from Orion Resource Partners (Orion).

The court addressed three main issues: whether LRC should be granted leave to add specific Orion entities as respondents (misnomer/amendment), whether the court had jurisdiction over these proposed respondents, and whether an enforceable contract was formed.

The court granted leave to add the Orion entities, finding they had voluntarily attorned to the court's jurisdiction.

It further found that a binding and enforceable contract for the royalty purchase was formed between LRC and Orion, and that this contract was not void under Nevada's Statute of Frauds.

This application concerned Thomson Reuters Corporation's proposed plan of arrangement under section 182 of the Business Corporations Act (Ontario).

The arrangement involved a return of capital of approximately USD $2.2 billion to shareholders and a proportional share consolidation, with an opt-out right for certain non-Canadian resident shareholders for tax purposes.

The Board of Directors approved the transaction, deeming it in the Company's best interests for efficient capital distribution.

Shareholders overwhelmingly approved the arrangement resolution at a meeting with high participation.

The court applied the three-part test for approving arrangements, confirming that statutory procedures were met, the application was in good faith, and the arrangement was fair and reasonable, largely evidenced by the strong shareholder approval and unanimous director support.

The final approval order was granted.

This is an appeal from a commercial arbitration award that found a metal purchase and sale agreement between Franco-Nevada and Taseko had been frustrated due to the denial of federal environmental approvals for a gold mine project.

The Superior Court of Justice, applying a reasonableness standard of review, found the arbitrator's conclusion unreasonable.

The court held that the arbitrator misapplied the test for frustration by failing to properly consider foreseeability and by misinterpreting the contract as project- and timeline-specific, despite provisions allowing for changes and a long term.

The appeal was granted, overturning the frustration finding.

A motion for a sealing order for confidential information was also granted.

This application sought court approval for a plan of arrangement under the Business Corporations Act (Ontario) and the Trustee Act, involving Noranda Income Fund, 1884699 Ontario Inc., and Glencore Canada Corporation.

The arrangement facilitated Glencore's acquisition of all issued and outstanding priority units of the Fund for $1.98 per unit.

The court addressed the jurisdictional question regarding arrangements involving trusts, concluding it had jurisdiction under section 60 of the Trustee Act, applying an analogous test to corporate arrangements.

The court found the arrangement met the three requirements for approval: compliance with statutory and court-ordered requirements, good faith, and fairness and reasonableness, supported by independent advice, strong unitholder approval, and no dissent.

The application was granted.

The applicant brought a motion for an interim order under section 192(4) of the Canada Business Corporations Act to call a special meeting of shareholders.

The meeting was to consider a plan of arrangement whereby the respondent would acquire all common shares of the applicant.

The court found the applicant was acting in good faith and met the statutory requirements.

The interim order was granted, authorizing the meeting and establishing notice and voting mechanics.

The plaintiffs brought a motion to approve a $125 million settlement in a class action against a major bank for secondary market misrepresentation related to subprime mortgage investments.

The plaintiffs also sought approval of class counsel fees of $37.5 million, representing a 30% contingency fee.

The court found the settlement to be fair and reasonable, noting the significant litigation risks the plaintiffs faced, including a due diligence defence and challenges to damages calculations.

The court also approved the requested counsel fees, emphasizing the substantial risk undertaken by class counsel over 14 years of litigation and the excellent result achieved for the class.

Following a successful trial where the plaintiff recovered a $1.5M fee and defeated a counterclaim, the plaintiff sought costs of $680,152.55.

The defendant argued the plaintiff's offer to settle was served 1.5 hours late and thus did not trigger the mandatory cost consequences of Rule 49.10.

The court applied a holistic approach under Rule 49.13, finding the offer provided adequate time to assess risk in an all-or-nothing case.

The court exercised its residual discretion and awarded the plaintiff its requested costs.

The case involved a claim by Scotia Capital Inc. against Aphria Inc. for an "Independence Fee" under an engagement letter for financial advisory services in defending a hostile takeover bid, and a counterclaim by Aphria for defamation related to Scotia's discontinuation of analyst coverage.

The court found that Scotia successfully defended Aphria against the takeover bid, entitling it to the Independence Fee.

The court dismissed Aphria's defense arguments of lack of causality and repudiation.

The court also dismissed Aphria's counterclaim for defamation, finding no evidence that the discontinuation of coverage lowered Aphria's reputation or caused economic loss.

The applicant target company sought specific performance of a share purchase agreement after the respondent purchaser refused to close, citing the COVID-19 pandemic.

The purchaser alleged breaches of the Material Adverse Effect (MAE), ordinary course, amortization event, and access to information covenants.

The court found that while the pandemic threatened earnings, it fell within the MAE's emergency carveout and did not disproportionately affect the target.

The target's pandemic responses, including branch access changes and accounting adjustments, were within the ordinary course of business for an economic downturn.

The court ordered specific performance of the agreement.

Torstar Corporation sought court approval for a plan of arrangement to sell all its shares to NordStar Capital LP for $0.74 per share.

The arrangement was overwhelmingly approved by shareholders.

Competing bidder CMMH and dissenting shareholder Patrick Collins objected, alleging inadequate disclosure and a flawed bidding process due to hard lock-up agreements.

The court found the arrangement had a valid business purpose, the process was conducted in good faith with professional advice, and the objections were resolved fairly.

The court emphasized the weight given to the shareholder vote and the Board's business judgment, particularly in uncertain times, and approved the arrangement.

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

The unsuccessful appellants (Essar entities and GIP entities) were ordered to pay costs to the successful respondents (the Monitor and Algoma Steel).

The parties agreed on the quantum of costs but disagreed on whether liability should be several or joint and several.

The court awarded costs on a several basis, allocating 25% to GIP and 75% to Essar, finding that GIP had a more limited role with different issues and less oral argument time than Essar.

The applicants, engaged in combating government corruption in Malaysia, sought a Norwich Pharmacal order to compel financial institutions to produce confidential information about a Canadian real estate group.

The applicants suspected the group was funded by proceeds of foreign corruption and contemplated a private criminal prosecution for money laundering and receipt of proceeds of crime.

The court dismissed the application, holding that the applicants lacked reasonable grounds to believe an indictable offence had been committed, and that it would be inappropriate to use the court's inherent civil jurisdiction to bypass the careful balance struck by Parliament in the Criminal Code for criminal investigations and private prosecutions.

A CCAA monitor brought an oppression action under the Canada Business Corporations Act against the parent company (Essar Global) and related entities, alleging that a port transaction transferring critical assets to an Essar-controlled entity was oppressive to Algoma's stakeholders (trade creditors, employees, pensioners, and retirees).

The trial judge found the monitor had standing as a complainant, the action was properly brought as an oppression remedy rather than a derivative action, and the port transaction and its change of control provision were oppressive.

The court granted a remedy modifying the transaction to remove the change of control veto and provide Algoma with termination rights after GIP's loan was repaid.

The appellants appealed on multiple grounds, including standing, characterization of the claim, reasonable expectations analysis, and the appropriateness of the remedy.

The Court of Appeal upheld the trial judgment in all respects.

The plaintiffs in a class action alleging a price-fixing conspiracy in the foreign exchange market moved for approval of six settlements totaling $51.5 million.

The court reviewed the settlements in light of the estimated range of total damages, the litigation risks, and the value of the settling defendants' cooperation.

Finding the settlements to be fair, reasonable, and in the best interests of the class, the court approved the settlements.