Anu Koshal

This five-judge appeal reconsidered the common law governing non-disclosure of partial settlement agreements in multi-party civil litigation.

The court held that the prior rule mandating an automatic finding of abuse of process and an automatic stay, without proof of prejudice or regard to proportionality, was wrongly decided and should be overruled.

The proper approach requires a contextual and discretionary abuse of process analysis focused on unfairness, prejudice, oppression, harm to the administration of justice, and a proportionate remedy, with r. 49.14 of the Rules of Civil Procedure reinforcing that framework.

Applying that approach, the court allowed two appeals and remitted those matters, while dismissing two others where the record was sufficient to determine the result.

The Applicant, President’s Choice Bank, brought a motion under Rule 58 of the Tax Court of Canada Rules (General Procedure) for a stage-one determination of a question of mixed law and fact before the hearing of its appeal.

The appeal concerned the Applicant's entitlement to notional input tax credits under subsection 181(5) of the Excise Tax Act for its 2013 to 2015 reporting periods.

The Applicant argued that a prior Federal Court of Appeal decision involving the same issue for earlier reporting periods rendered a full trial unnecessary.

The Tax Court dismissed the motion, finding that a Rule 58 hearing is not intended to be a substitute for a trial, especially where material facts may be in dispute and the discovery process was not yet complete.

The Providius defendants brought a motion to stay the action against them for abuse of process, alleging that the plaintiffs (Evertz) failed to promptly disclose all non-financial terms of a Pierringer-type settlement agreement with the Lawo defendants.

The court found that while some initial terms were disclosed, critical "business terms" that fundamentally altered the litigation landscape, such as Lawo divesting shares in Providius, Evertz gaining an option to purchase those shares, and Evertz indemnifying Lawo against potential claims from Providius, were withheld for eight months.

The court ruled that these undisclosed terms significantly changed the adversarial relationship and potential claims, constituting an abuse of process.

Consequently, the motion to stay the action against the Providius defendants was granted.

The Court of Appeal for Ontario addressed costs and a sealing order following its dismissal of the appellant's Charter challenge to a Canada Revenue Agency (CRA) audit.

The court ordered each party to bear its own costs for both the appeal and the fresh evidence motions, citing divided success on the appeal and reasonable conduct regarding the fresh evidence motions.

Regarding the sealing order for fresh evidence, the court dismissed the appellant's request for a full sealing order, instead ordering limited redactions to the CRA final audit, consistent with a prior Superior Court order, to balance the open court principle with privacy and safety concerns, particularly given allegations of government wrongdoing.

The appellant, a Muslim charity, appealed the dismissal of its application challenging a Canadian Revenue Agency (CRA) audit process, alleging violations of its Charter rights due to discriminatory targeting and Islamophobic attitudes.

The application judge dismissed the challenge as premature, citing an insufficient factual record and the availability of administrative appeal processes under the Income Tax Act.

The Court of Appeal upheld the dismissal, affirming the court's discretion to refuse to decide a case based on a preliminary and incomplete factual record, even for Charter relief.

While disagreeing with the lower court's suggestion that the Tax Court's jurisdiction would necessarily bar a subsequent Superior Court Charter challenge, the appellate court found the prematurity finding to be correct given the ongoing administrative process.

The Plaintiffs, Evertz Technologies Inc. et al., brought a motion seeking to continue confidentiality provisions regarding settlement agreements (Pierringer Agreements) reached with the Lawo Defendants, who had settled out of the multi-party litigation.

The Providius Defendants, non-settling parties, opposed the continuation of confidentiality, arguing that the terms of the settlement agreements directly impacted them and were necessary for a new action they intended to bring against Evertz and Lawo.

The court dismissed the Plaintiffs' request, finding that Evertz failed to meet the high burden for a confidentiality order under the Sierra Club and Sherman Estate tests, as the commercial interest in confidentiality did not transcend the parties' specific interests and maintaining confidentiality would significantly prejudice the Providius Defendants' ability to plead and obtain a fair trial in their intended action.

The appellant claimed a substantial capital loss on the disposition of a partnership interest, which it sought to carry back to offset a prior capital gain.

The Minister denied the loss under the general anti-avoidance rule (GAAR).

The Tax Court of Canada found that the series of transactions, which involved bumping the adjusted cost base of the partnership interest using resource properties, created an artificial paper loss without any true economic impoverishment.

The Court held that the transactions abused the capital loss and bump provisions of the Income Tax Act.

The appeal was dismissed.

The moving parties brought motions for leave to appeal an order of the Superior Court of Justice.

The Divisional Court dismissed the motions for leave to appeal without costs.

The applicant, Muslim Association of Canada (MAC), challenged a Canada Revenue Agency (CRA) audit and its preliminary recommendation to suspend MAC's charitable status, alleging Charter violations based on discriminatory information and Islamophobia.

The court dismissed the application on grounds of prematurity, holding that judicial intervention was inappropriate before the completion of the administrative process, which included internal appeals and further rights of appeal to the Tax Court of Canada or Federal Court of Appeal.

The moving parties brought a motion for leave to appeal an unreported order of the motion judge dated May 8, 2023.

The Divisional Court dismissed the motion for leave to appeal in a brief endorsement.

Costs of $20,000 were awarded to the responding parties.

These are supplementary reasons to an appeal previously dismissed, addressing the calculation of losses for investors.

The Court of Appeal accepted the appellants' submissions that interest should be calculated on a simple, annual basis, consistent with the "Fixed Interest Rate" clause in the Loan Participation Agreements.

Consequently, the amounts awarded to the respondents in the original judgment were varied to reflect this simple interest calculation.

This is an appeal from a summary judgment holding appellants liable on guarantees related to a syndicated mortgage.

The Court of Appeal upheld the motion judge's finding that personal and corporate guarantees were incorporated by reference into the investment agreements, despite investor unawareness and limiting clauses, based on objective contractual interpretation and trustee disclosure duties.

However, the Court varied the damages calculation, ruling that the interest rates specified in the Loan Participation Agreements (10% or 12%) should apply, not the 18% rate from the Loan Commitment.

The appeal was dismissed on liability but allowed on the interest rate calculation.

The moving parties sought leave to appeal an order of McEwen J. dated January 5, 2023.

The Divisional Court dismissed the motion for leave to appeal.

The court declined to award costs to the successful responding parties because they failed to file a Costs Outline.

The Muslim Association of Canada (MAC) brought a motion for a sealing order concerning an Administrative Fairness Letter (AFL) and its responses, central to its application alleging systemic bias and Islamophobia in a Canada Revenue Agency (CRA) audit.

The Attorney General of Canada opposed the sealing order, proposing a more tailored redaction approach.

The court, applying the Sherman Estate test, declined the full sealing order.

While acknowledging a serious risk to the physical safety and dignity of minors and peripherally involved MAC members due to personal information, the court found that a full sealing order was not necessary.

Instead, it ordered specific redactions of names of minors and peripherally involved members, personal contact information, and financial details, emphasizing the paramount importance of open courts for public debate on government conduct, especially concerning allegations of constitutional violations.

The appellant bank appealed GST/HST reassessments relating to its credit card and loyalty points programs.

The Tax Court of Canada held that the bank was not entitled to notional input tax credits for redemption payments made to a grocery retailer, as these were made in the course of providing exempt financial services rather than a commercial activity.

The Court also found that credit card processing services provided by third parties were excluded from the definition of financial services and were therefore taxable supplies.

The appeals were allowed in part only to give effect to certain agreed adjustments.

The moving party sought the release of escrow funds following the sale of a distressed condominium project.

The dispute centered on whether the Minutes of Settlement required the property owner to pay property taxes that accrued prior to closing.

The court applied principles of commercial contractual interpretation and found that the plain language of the agreement only required the owner to continue paying operating expenses it was already paying at the time of execution.

Since property taxes had been deferred for months prior to the agreement, the owner was not obligated to pay them.

The court ordered the disputed funds released to the moving party.

ESW Capital, LLC applied for exemptive relief from the minimum tender requirement under the Securities Act in connection with its proposed take-over bid for Optiva Inc. The proposed bid was opposed by two other control block shareholders, Maple Rock and EdgePoint, who announced they would not tender their shares.

ESW sought to exclude their shares from the minimum tender calculation.

The Ontario Securities Commission dismissed the application, finding no exceptional circumstances or abusive conduct by the target, bidder, or control block shareholders that would warrant altering the recalibrated bid regime and undermining minority shareholder choice.

The appellant, CIBC World Markets Inc., appealed a trial judgment that found it liable for trading losses incurred by the respondents, Montrose Hammond & Co. and The Raillery Fund LP, due to the negligence of Belzberg Technologies Inc.'s employees.

CIBC argued the trial judge erred in interpreting exclusion clauses in their contract and in finding Belzberg to be CIBC's apparent agent.

The Court of Appeal dismissed the appeal, upholding the trial judge's interpretation that the exclusion clauses did not apply to the circumstances and that Belzberg acted as CIBC's apparent agent, leading to the respondents' detriment.

In a costs decision following a professional liability trial, the court determined that the defendants were the successful parties despite findings that they breached their fiduciary duties.

The plaintiffs had sought over $16 million in damages but were only awarded $2,000 in nominal damages.

The court found the defendants' claimed costs of $1,261,235 to be reasonable, but reduced the award by 25% to reflect the court's finding of breach of fiduciary duty.

The plaintiffs were ordered to pay $925,000 in partial indemnity costs.

This endorsement followed the twelfth case management conference, addressing the progression of the action towards trial.

The court noted the completion of pleadings and examinations for discovery.

A key issue was the non-compliance of one defendant with a previous cost order of $44,000.

The plaintiffs, prioritizing trial scheduling, reserved their right to seek remedies for non-compliance.

The court issued specific directions for trial readiness, including deadlines for expert reports, filing of the Trial Record, and a certification form for setting pre-trial and trial dates.

Parties were also directed to confer on adopting a summary trial format versus an ordinary trial.