Bevan Brooksbank

The court considered the appropriate penalty for PSP Services Inc.'s contempt of court for failing to cooperate with an audit as required by contract and court orders.

The court found repeated, prolonged, and unremedied contempt, and ordered the appointment of Ernst & Young as investigative receiver, required PSP to pay increased audit costs into court, and awarded substantial indemnity costs to Peoples Trust Company.

The plaintiff, Peoples Trust Company, brought a motion for a finding that the defendant, PSP Services Inc., was in contempt of court for failing to comply with court orders requiring cooperation with an audit and the deconversion process following the termination of their Acquiring Services and Sponsorship Agreement.

The court found that PSP intentionally frustrated and delayed the audit process, failed to comply with orders to provide documentation, and did not cooperate with the deconversion process.

The court found PSP liable for civil contempt, declined to appoint an investigative receiver at this stage, and reserved the issue of penalty and costs to a later hearing.

The applicants, Xplore Inc. and a wholly-owned subsidiary, sought a final order approving a plan of arrangement under the Canada Business Corporations Act (CBCA).

The arrangement aimed to implement a comprehensive recapitalization transaction to significantly deleverage the company's secured debt and secure new financing.

A key component of the plan was a reverse vesting order (RVO) to separate uneconomic satellite business obligations from the ongoing operations.

The court found that the arrangement met all statutory requirements, was proposed in good faith, and was fair and reasonable to all stakeholders, including the initially opposing satellite providers who reached a commercial resolution.

The court also confirmed its jurisdiction under s. 192(4) of the CBCA to grant an RVO and approved the inclusion of third-party releases.

This endorsement addresses motions related to a proposed recapitalization transaction of Xplore Inc. and 16029167 Canada Inc. via a plan of arrangement under the Canada Business Corporations Act (CBCA).

The applicants sought an Interim Order to facilitate a vote on the arrangement, while certain satellite providers (unsecured creditors) brought 'comeback motions' objecting to the preliminary interim order's stay of remedies and the proposed treatment of their contracts, including non-payment of full contractual rates and the use of a reverse vesting order.

The court granted the Interim Order, finding that the applicants met the statutory requirements and acted in good faith, and that the fairness of the arrangement, including the novel reverse vesting order, warranted a full fairness hearing.

The court upheld the stay, finding the non-disclosure by applicants not material and that the court has broad discretion to impose terms on critical suppliers, drawing analogies to CCAA provisions.

The satellite providers' requests for full contractual payments and security were denied, and their motion to lift the stay for a bankruptcy application was adjourned.

The appellants appealed the sanction imposed by a motion judge for the respondents' civil contempt of a Mareva injunction.

The respondents had violated the injunction by encumbering a property and failing to place rental income in trust.

The motion judge imposed a fine and costs, with a conditional order to strike pleadings if not paid.

The appellants sought imprisonment and immediate striking of pleadings, arguing the sanction was inadequate and the costs award was too low.

The Court of Appeal dismissed the appeal, finding the motion judge's sanction proportionate and his discretion on costs appropriate, emphasizing that incarceration for civil contempt is rare and the contempt in this case was modest.

This appeal concerned the interpretation of a "life of mine" supply contract for sodium cyanide used in gold mining.

The appellants, Kinross Gold Corporation and its subsidiaries, sought a declaration that their contract with the respondent, Cyanco Company, LLC, for liquid sodium cyanide did not prevent them from sourcing solid sodium cyanide elsewhere.

The trial judge dismissed Kinross's action, concluding that the contract obligated Kinross to purchase sodium cyanide exclusively from Cyanco if the mines were operating and required liquid sodium cyanide.

The Court of Appeal upheld the trial judge's decision, finding no extricable error of law or palpable and overriding error in the interpretation of the contract, the consideration of surrounding circumstances, the application of related contracts principles, or the assessment of commercial reasonableness.

The appeal was dismissed with costs awarded to the respondent.

The applicant sought a 10% share interest in a corporation that owned a property, alleging an oral agreement with one of the respondents in exchange for services related to financing, soil remediation, permits, and finding buyers for the property.

The respondents denied any such agreement or authority to bind the corporation.

The court found no credible or reliable evidence to support the applicant's claims, noting the absence of any documentation for a significant business transaction and the applicant's evasiveness during cross-examination.

The application was dismissed.

This is an appeal from a motion judge's dismissal of an action for lack of jurisdiction, specifically finding no real and substantial connection to Ontario.

The appellants, Ontario-incorporated companies, argued the motion judge erred in the jurisdictional analysis and improperly conducted a disguised summary judgment/issue determination motion.

The Court of Appeal affirmed the motion judge's decision, agreeing that the respondents, domiciled outside Ontario with business primarily in Singapore, lacked a sufficient connection to Ontario.

The court found the appellants failed to provide sufficient evidence to support their claims of torts or contract breaches occurring in Ontario, or to rebut the presumption against jurisdiction.

The appeal was dismissed with costs to the respondents.

The appellant, Leonid Pekker, appealed a Superior Court judgment that recognized and enforced a Russian court's judgment against him for an unpaid loan.

The Russian judgment was obtained ex parte after Pekker failed to appear, despite being duly notified.

Pekker's subsequent appeal in Russia, challenging notice, was dismissed, and he did not pursue further appeals.

The Ontario Court of Appeal upheld the application judge's decision, finding no error in recognizing the foreign judgment.

The Court affirmed that the Russian proceedings met minimum standards of fairness, as Pekker had adequate notice and opportunity to defend and appeal.

The Court also upheld the exclusion of an unsworn expert report on Russian law.

The plaintiffs sought the appointment of a receiver over the DMCC Group of companies to oversee the winding-up and termination of a Trust and the distribution of its assets.

The motion was brought after the Trust Administrator issued a wind-up notice.

The court applied the "just and convenient" test under s. 101 of the Courts of Justice Act, finding that the individual defendants' conflicts of interest and lack of meaningful progress in the wind-up process warranted an independent receiver.

The receivership was granted but limited to specific key entities (the Administrator, General Partner, and DMCC Americas (Canada)), with the possibility of expansion.

The court declined to appoint a receiver under the oppression remedy at this stage.

Following the dismissal of the moving parties' motion for a certificate of pending litigation, both parties sought costs.

The moving parties argued they were substantially successful because the dismissal was conditional on an undertaking offered by the responding parties.

The court rejected this argument, noting the moving parties chose to proceed with the motion after the undertaking was offered.

The court awarded costs to the successful responding parties on a partial indemnity scale in the amount of $86,739.59.

The plaintiffs moved for leave to issue a certificate of pending litigation against a commercial property in Barrie, alleging an agreement to jointly acquire the property with the defendants.

The court found a triable issue regarding the plaintiffs' claim to an interest in the land, including whether one defendant acted as an agent for an undisclosed principal.

However, balancing the equities, the court dismissed the motion conditional upon the corporate owner providing an undertaking not to sell the property except to a bona fide purchaser, to pay 50% of net proceeds into court if sold, and to provide 30 days' notice of any refinancing or sale.

In a CCAA proceeding, the court considered supplementary written submissions regarding the appropriateness of differential consideration offered to unsecured creditors in the proposed Plan.

The court accepted the applicants' submission that the fairness of the differential consideration, which involves providing shares to Term Loan Lenders and cash to General Unsecured Creditors, should be determined at the Sanction Hearing rather than at the Meetings Order stage, given the low threshold for a Meetings Order and the presence of conflicting expert reports.

The Applicants sought an Authorization Order and Meetings Order under the CCAA.

The primary issues in dispute concerned the voting rights and classification of Litigation Claimants, which included uncertified U.S. class actions, a certified Ontario class action, and Texas mass tort claims.

The court held that the Litigation Claimants are creditors entitled to vote, but restricted them to one vote per action to prevent them from overriding other stakeholders on numerosity grounds.

The court also ordered summary proceedings to value their claims rather than accepting the Applicants' proposal to value them at $1.

Finally, the court declined to place the Term Loan Lenders in a separate class from other unsecured creditors, finding sufficient commonality of legal interests.

The parties attended a case conference to schedule a 40-day trial for a construction dispute commenced in 2015.

The court noted that there were ongoing interlocutory motions regarding productions and pleadings, and no expert reports had been delivered.

The court declined to fix a trial date, holding that an action with ongoing interlocutory matters is not ready for trial, and directed the parties to return to trial scheduling court once the outstanding matters and expert reports are completed.

This motion concerned the winding-up of Maple Bank GmbH.

The Liquidator sought approval for a Fourth Interim Distribution, a reduction in the reserve held, and approval of the Fourteenth Report of the Liquidator and its activities.

Additionally, the Liquidator sought approval for a Data Custodian Order.

There was no opposition to the requested relief, with Canada Revenue Agency's pending claim being addressed by a maintained reserve.

The court granted the motion, approving the distribution, the reduction in reserve, the Liquidator's report and activities, and the Data Custodian Order.

The landlord, INCC Corp., sought a declaration to terminate a lease with its tenant, Oxford Medical Imaging Inc. (OMI), alleging insolvency and liquidation proceedings.

OMI sought to restrain termination and assign the lease to 2617949 Ontario Limited, arguing INCC unreasonably withheld consent.

The court found OMI was not insolvent, no liquidation proceedings were commenced, and INCC unreasonably withheld consent to the lease assignment.

Bell Canada sought an interlocutory injunction against Cogeco Cable Canada GP Inc. regarding two aspects of Cogeco's new advertising campaign: the phrase "the best Internet experience in your neighbourhood" and the rebranding of Internet packages with the prefix "Ultra" (e.g., UltraFibre 250).

Bell alleged false and misleading representations under the Competition Act and Trade-marks Act, as well as common-law claims.

The court applied the RJR-MacDonald test for interlocutory injunctions.

It found a serious question to be tried, irreparable harm, and that the balance of convenience favored granting an injunction against the use of "the best Internet experience in your neighbourhood," as Cogeco could not objectively claim to offer the best speed and performance in all areas.

However, the court denied an injunction regarding the "UltraFibre" branding, deeming it puffery when accompanied by specific speed commitments.

Investors brought negligence claims against their former financial advisor and related entities arising from failed hedge fund investments.

The defendants moved for summary judgment arguing the claims were statute‑barred under the Limitations Act, 2002.

The court held that the plaintiffs discovered or ought to have discovered their claim when they learned between 2005 and 2007 that the investment had failed and that it had been recommended by their advisor as low risk.

Knowledge of the precise cause of the fund’s collapse or later revelations about the advisor’s insurance status did not postpone discoverability.

The court also rejected allegations of fraudulent concealment.

The negligence claims relating to the investment were dismissed as statute‑barred.

Following a successful motion setting aside opt-out notices in a class proceeding, the court determined the appropriate costs award.

The moving party sought costs after establishing that the opt-out process had been corrupted by a coordinated campaign that undermined the integrity of the class action.

The respondents argued for no costs or for their own recovery, relying on allegations that certain claims had been withdrawn and that the motion raised novel issues.

The court held that the motion was critical to preserving the integrity of the opt-out process and that the moving party was substantially successful.

Costs were fixed at $60,000, payable jointly and severally by the defendant and the respondent franchisees.