Andrew J. Winton

The Kriesers appealed a trial judgment that dismissed their claims for construction deficiencies and breach of fiduciary duty, and granted judgment to the respondents for outstanding invoices.

The Court of Appeal dismissed the appeal, finding no error in the trial judge's determination that the Kriesers breached the contract by withholding payments, which disentitled them to warranty claims, and that there was insufficient evidence for the remaining deficiency claims.

The court also upheld the finding that no fiduciary relationship existed between the parties, and affirmed the trial judge's cost award.

This supplementary endorsement addresses a request from JTI-Macdonald Corp. regarding the adequacy of notice elements in the Claims Procedure Order within the ongoing Companies' Creditors Arrangement Act (CCAA) proceedings.

The court confirmed its satisfaction that the notice elements in the Claims Procedure Orders are reasonable in the circumstances, addressing an oversight from previous submissions.

The Superior Court of Justice addressed multiple motions within the complex Companies’ Creditors Arrangement Act (CCAA) proceedings of JTI-Macdonald Corp., Imperial Tobacco Canada Limited, Imperial Tobacco Company Limited, and Rothmans, Benson & Hedges Inc. The court granted a stay extension until January 31, 2025, and approved Meeting Orders and Claims Procedure Orders.

These orders facilitate the advancement of comprehensive Plans of Arrangement, developed by the court-appointed Mediator and Monitors, aiming for a Pan-Canadian global settlement of tobacco claims totaling $32.5 billion.

The court found the plans were not "doomed to fail" despite outstanding issues regarding financial allocation among the Tobacco Companies and the creditor status of JTI-Macdonald TM Corp.

In a Companies’ Creditors Arrangement Act (CCAA) proceeding, the DIP Lender, Cortland Credit Lending Corporation, sought a case management order to schedule a threshold motion.

The motion aimed to determine the legal priority of Cortland's claims over those of Final Bell Corp., which had amended its claim to seek a constructive trust that could prime the DIP charge.

The CCAA Applicants supported the motion, arguing it would avoid further delays to the Stalking Horse Purchase Agreement approval.

Final Bell Corp. opposed, viewing it as an unfair mid-trial motion for partial summary judgment.

The court, exercising its broad discretion as the supervising CCAA court, granted the motion, directing that the threshold issue of legal priority be determined first to minimize costs and maximize efficiency, finding no prejudice to Final Bell Corp.

The applicants sought a determination that the arbitrator erred in finding jurisdiction over certain relief claimed by the respondents in an ongoing arbitration.

The court found that the applicants had waived their right to object to the arbitrator's jurisdiction through their conduct, including filing a counterclaim and issuing their own notice of demand for arbitration invoking the arbitrator's jurisdiction.

The court dismissed the application, emphasizing that allowing a last-minute jurisdictional challenge after significant participation would undermine the efficiency and benefits of arbitration.

The appellant appealed a decision denying him leave to amend his statement of claim in a libel action against the respondents.

The Divisional Court upheld the Associate Justice's decision, finding no error in the application of issue estoppel to prevent the addition of the appellant's professional corporation as a plaintiff, as a previous judge had already ruled the corporation had no tenable cause of action.

The court also upheld the refusal to allow scandalous and irrelevant paragraphs about a non-party, and the refusal to permit a claim for document production within the pleadings.

The appeal was dismissed with costs awarded to the respondents.

BZAM Ltd. and Cortland Credit Lending Corporation brought a motion for security for costs against Final Bell Holdings International Ltd. within an ongoing CCAA proceeding.

Final Bell had initiated a claim alleging fraudulent misrepresentation against BZAM and seeking damages and equitable relief, including a constructive trust.

The court determined that Rule 56.01 of the Rules of Civil Procedure, concerning security for costs, applies to claims within CCAA proceedings, and that Cortland, as a directly affected stakeholder, was entitled to seek such security.

Finding that Final Bell was ordinarily resident outside Ontario and had insufficient assets to satisfy a costs award, the court ordered Final Bell to post security for costs in favour of BZAM ($350,000) and Cortland ($147,000).

Additionally, Final Bell was ordered to pay the costs of the motion to BZAM ($20,000) and Cortland ($8,500).

The bankrupt, a former real estate developer, sought an absolute discharge from bankruptcy.

The discharge was opposed by the Trustee, the Canada Revenue Agency, and several creditors, who argued that the bankrupt's assets were less than 50 cents on the dollar for reasons he could be held responsible for, and that he failed to perform his duties under the Bankruptcy and Insolvency Act.

The court found that the bankrupt had engaged in an asset protection strategy, incurred significant personal liabilities without the means to pay them, and failed to disclose his true post-bankruptcy lifestyle and use of a corporate credit card.

The court declined to refuse the discharge entirely but imposed a substantial conditional order requiring the bankrupt to pay $960,000 and fulfill various outstanding duties.

The Chippewas of Saugeen First Nation, having been entirely successful in the liability phase of a bifurcated proceeding concerning the status of the "Disputed Beach" as reserve land, sought costs.

This endorsement addresses the costs awards and apportionment among the multiple defendants.

The court awarded Saugeen their costs on a partial indemnity scale, totaling $3,221,802.54, on a joint and several liability basis.

These costs were apportioned for indemnification purposes among Canada (10%), Ontario (40%), and the Town of South Bruce Peninsula (50%).

Additionally, the court granted Canada a Sanderson order, requiring the Town to pay Canada $470,000 in partial indemnity costs, recognizing Canada's success on the essential issue of the reserve boundary location.

The Town's claim for costs against Canada was dismissed.

The plaintiff sought a contempt order against the defendant May Anis and her company BNP Advisors Inc. for giving false evidence and breaching court orders.

The court found May Anis in contempt on two of four issues: failing to disclose her ownership interest in a Nova Scotia property and providing falsified tax returns.

The court deferred the decision on the appropriate penalty, including striking the statement of defence and imprisonment, to a subsequent hearing.

This endorsement concerns three tobacco companies (JTI-MacDonald Corp., Imperial Tobacco Canada Limited, Imperial Tobacco Company Limited, and Rothmans, Benson & Hedges Inc.) operating under the Companies’ Creditors Arrangement Act (CCAA).

Each applicant sought an extension of their stay period until September 30, 2024, to continue formulating plans of arrangement.

Imperial also requested authorization to terminate a retirement plan and post security for a vaping product license.

RBH sought a procedural amendment for employee grievances.

The court, finding no opposition and satisfied with the applicants' good faith, diligence, and sufficient resources, granted all requested relief, noting significant progress in ongoing mediation.

The moving parties sought leave to appeal the order of Gibson J. dated September 26, 2023.

The Divisional Court dismissed the motion for leave to appeal and awarded costs to the respondents fixed at $5,000 all inclusive.

The plaintiff in a defamation action brought a motion for leave to amend his statement of claim, including adding his professional corporation as a plaintiff, and alternatively sought to extend the time to issue a statement of claim in a placeholder action.

A non-party sought and was granted leave to intervene to oppose certain amendments.

The court denied the amendment to add the professional corporation on the basis of issue estoppel, as a previous judge had already denied the same request.

The court also denied amendments that improperly sought document production or contained scandalous information about the non-party.

The motion to extend time in the placeholder action was dismissed as an abuse of process and a collateral attack on the previous judge's order.

Success being divided, no costs were awarded.

Following a finding of civil contempt against the defendant for repeatedly forging bank records and lying under oath, the court held a penalty hearing.

Applying criminal sentencing principles, the court weighed aggravating factors, including the deliberate and repeated nature of the deceit, against mitigating factors such as the defendant's eventual remorse and lack of prior record.

The court determined that a significant costs award was the appropriate sanction to punish and deter the conduct, ordering the defendant to pay $400,000 as a penalty, plus $44,118.46 for the costs of the hearing on a substantial indemnity basis.

This decision addresses two cross-motions in complex, joined real estate development actions: the plaintiffs' motion for a further affidavit of documents and the defendants' motion to bifurcate the action and postpone document production.

The court dismissed the defendants' bifurcation motion, holding that bifurcation under Rule 6.1.01 requires party consent, which was absent.

The request for delayed production was also denied, as the defendants failed to demonstrate serious prejudice or that the documents were solely related to damages.

The plaintiffs' production motion was granted, with the court finding the requested documents relevant to both liability and defence, and the request proportionate given the $65 million in dispute.

The court emphasized that the deemed undertaking rule mitigates concerns about commercially sensitive information.

The plaintiff brought a motion seeking a Mareva injunction against May Anis and BNP Advisors Inc., a finding of contempt against May Anis, and a variation of an order to make May Anis and BNP Advisors Inc. solely responsible for the Receiver's fees.

The motion arose from a shareholder and employment dispute where May Anis repeatedly produced forged bank records, lied under oath, and provided false information to the court and an investigative receiver.

The court granted the Mareva injunction, found May Anis in contempt due to her egregious and repetitive dishonest conduct, and ordered her and BNP Advisors Inc. to bear all Receiver's fees.

The plaintiff was awarded costs of the motion.

This decision provides supplementary reasons for judgment in a land claim case.

Following an earlier declaration that a substantial portion of Sauble Beach was reserved for the sole use and benefit of the Chippewas of Saugeen First Nation and forms part of Saugeen Indian Reserve No. 29, the court considered whether to grant a life interest in certain 'Disputed Lots' to current family title owners (Landowners).

The Chippewas of Saugeen First Nation and Canada opposed this.

The court determined it lacked jurisdiction to impose a proprietary interest contrary to the Indian Act and Constitution Act, as reserve land is inalienable.

It also found that granting such an interest would not advance reconciliation.

Consequently, the temporary delay in the original declaration that no third parties have an interest in the land was terminated, making the declaration effective immediately.