Andrew Duncan Gray

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.

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 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.

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.

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 proposed class action alleging a conspiracy to fix prices in the FX Market brought a motion to certify the action for settlement purposes and approve settlements with four groups of defendants (Barclays, HSBC, RBS, and Standard Chartered PLC).

The court reviewed the motion record and found that all criteria for certification under s. 5 of the Class Proceedings Act, 1992 were satisfied, even with a less rigorous application in a settlement context.

The motion was granted, certifying the action for settlement purposes and approving the settlements.

The applicants (Algoma) sought two declarations: (i) that amounts owing under a promissory note from Portco to Algoma had been set off against amounts Algoma owed to Portco under a Cargo Handling Agreement; and (ii) that Algoma's right to terminate related Port Agreements was not subject to Portco's payment of the GIP Loan, which was tied to the set-off amounts.

The court granted the first declaration, finding that equitable set-off applied given the close connection between the parties and transactions, and the manifest inequity of requiring Algoma to pay Portco while the parent company (EGFL) failed to pay the promissory note.

However, the court denied the second declaration, holding that it would contradict a prior oppression judgment and an assignment agreement which explicitly required the GIP Loan to be paid in full in cash before Algoma could terminate the Port Agreements.

Motions for leave to appeal from an order of the Superior Court of Justice dismissing a motion to require Algoma to resume payments under a Cargo Handling Agreement in the context of CCAA proceedings.

The applicants sought to invoke section 11.01(a) of the Companies' Creditors Arrangement Act to compel payment for post-filing services.

The motion judge had dismissed the motion three times on the same legal grounds.

The Court of Appeal dismissed the leave motions, finding no prima facie merit due to issue estoppel and no significance to the practice, as the issues were specific to the unique agreements underlying the Port Transaction.

Self-represented long-term disability beneficiaries sought leave to appeal a sanction order from the Superior Court of Justice in the Nortel Networks CCAA proceedings.

The applicants challenged their binding status under the 2009 Representation Order for Disabled Employees and the 2010 Employee Settlement Agreement.

The Court of Appeal dismissed the motion for leave to appeal, finding that the stringent test for leave in CCAA proceedings was not met.

The proposed appeal lacked merit, the applicants were bound by the settlement agreement, and further delays in the protracted litigation were to be avoided.

The court also rejected a late-filed notice of constitutional question challenging sections 6(1) and 11 of the CCAA.

The Receiver sought a discharge order, addressing the enforceability of an indemnity agreement and entitlement to an HST refund.

The Indemnifying Parties argued the receivership proceeding was an improper venue for contract breach claims and raised misrepresentation defenses regarding the indemnity agreement, as well as a potential claim for the Receiver's alleged mismanagement of life insurance policies.

The court found the receivership proceeding an appropriate venue, granted summary judgment on the enforceability of the indemnity agreement, and denied a stay of enforcement.

The court also deferred the HST refund issue for further clarification.

The applicant, Amarna Associates Inc., sought a declaration that it had validly exercised its right of dissent as a shareholder of Partners Value Investments Inc. (PVI) in connection with a plan of arrangement.

PVI contended that only shareholders registered as of the record date for voting were entitled to exercise dissent rights.

The court found that the Interim Order and the Plan, which incorporated section 185 of the Business Corporations Act (Ontario) with modifications, did not impose a record date requirement for dissent rights.

The court emphasized that the plain meaning of "registered holder" referred to registration at the time of exercising dissent rights, and PVI's own circular supported re-registration after the record date for this purpose.

The application was granted, confirming Amarna's valid exercise of dissent rights, and costs were awarded to Amarna on a partial indemnity basis.

The plaintiffs, having successfully appealed the dismissal of their class action as time-barred and obtained certification and leave to proceed, sought costs on a partial indemnity basis for the certification and leave motions.

The defendants argued for a significant reduction, citing an "indulgence" (nunc pro tunc order), costs for required steps, limitation period issues, expert reports, divided success, and comparable cases.

The court rejected the defendants' arguments, emphasizing the extraordinary nature of the case, the public interest in access to justice for complex class actions, and the substantial success achieved by the plaintiffs.

The court awarded the plaintiffs the full amount of costs claimed, $2,679,277.82, payable by the Canadian Imperial Bank of Commerce.

Following certification of a securities class action, the court determined the appropriate costs award arising from the leave and certification motions.

The moving parties sought more than $1.18 million in fees and disbursements on a partial indemnity basis.

The court emphasized the need for transparency, proportionality, and historical benchmarking when assessing certification-motion costs under Rule 57.01(1).

After adjusting excessive hourly rates and disbursements, and considering historical averages for comparable certification motions, the court fixed costs at $467,234 payable forthwith, with an additional $100,000 in disbursements payable in the cause.

Co-owners of a Toronto property brought an application under the Partition Act seeking an order for sale and directions regarding the method of sale.

While all parties agreed the property should be sold, they disagreed on whether the sale should proceed by public auction or by sealed bid.

The court discounted partisan affidavit evidence from the parties and professional firms with financial interests in the process.

Emphasizing the need to safeguard the integrity of the sales process and maximize value, the court concluded that a sealed-bid process was preferable in circumstances where some co-owners intended to bid on the property.

The court ordered the sale to proceed by sealed bid under the supervision of an independent sales officer, with final process terms subject to court approval.

Application for a final order approving a corporate plan of arrangement under s. 182 of the Ontario Business Corporations Act.

The proposed transaction involved the acquisition and division of assets of the corporation among related entities, with shareholders receiving a combination of cash and shares.

The court reviewed the governing framework established in BCE Inc. v. 1976 Debentureholders, requiring that the transaction constitute an arrangement, comply with statutory and court-ordered procedures, be proposed in good faith, and be fair and reasonable.

Evidence showed overwhelming shareholder approval, provision of dissent rights, and oversight by an independent special committee with fairness advice.

The court concluded the arrangement had a valid business purpose and fairly balanced the interests of affected stakeholders.

Following certification of a class proceeding concerning foreign exchange transactions in registered accounts, the plaintiffs sought substantial indemnity costs based on an unaccepted offer to settle made prior to the certification motion.

The defendants argued the outcome of the certification motion was less favourable than the offer and disputed the amount of fees and disbursements claimed.

The court held that the result of the certification motion was as favourable as the plaintiffs’ offer within the meaning of Rule 49.10 and that the defendants’ objections were overly technical.

Certain fees and disbursements were reduced, but the court concluded the remaining amounts were fair and reasonable in light of the work required for the certification motion.

Substantial indemnity costs were awarded from the date of the offer to settle.