Bevan Brooksbank

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.

A receiver appealed from summary judgment dismissing its claim for indemnity under a trustee's errors and omissions policy after obtaining judgment against the insured trustee for breach of trust.

The court held that the insurer was entitled to rely on the dishonest acts exclusion because the trustee deliberately breached the trusts, knowingly exposed the beneficiaries to risk, and misappropriated trust funds for its own benefit.

The court further held that a prior order assigning to the receiver the 'proceeds from insurance coverage' did not assign the insured's separate cause of action for breach of the insurer's duty of good faith.

The receiver also had no direct good faith claim against the insurer, although it could return to the motion judge to seek directions on any other remedy if the insurer had deliberately frustrated the prior order.

Following the certification of a class action on behalf of franchisees against a franchisor, a group of franchisees opposed to the action waged a campaign encouraging others to opt out.

The motion judge invalidated the opt-out notices received after the campaign began, finding the campaign coercive and misleading.

The Court of Appeal allowed the appeal, holding that the motion judge erred in drawing an inference of intimidation without direct evidence and in holding the opposing franchisees to a standard of objectivity.

The communications amounted to acceptable intra-class debate, and the opt-out notices were reinstated.

The plaintiff in a class proceeding moved to quash the appeals of the defendant and non-party franchisees, arguing the order appealed from was interlocutory.

The order in question invalidated certain opt-out coupons but granted those class members a further opportunity to opt out after a final disposition on the merits.

The Court of Appeal held the order was final because it deprived the defendant of a binding judgment against all putative class members and of a limitations defence.

The motions to quash were dismissed.

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.

Following the dismissal of the plaintiffs' oppression action after a hybrid trial, the successful defendants sought partial indemnity costs.

The plaintiffs argued that each party should bear its own costs because the defendants' unlawful conduct provoked the litigation.

The court rejected this argument, finding the defendants were entitled to costs.

The court also addressed the novel issue of whether costs for preparing affidavits and cross-examinations for pre-trial motions are recoverable when that evidence is subsequently used in a hybrid trial.

The court held that such costs are recoverable to the extent the work product was material to the trial issues, to encourage the use of hybrid trials.

The court fixed EnGlobe's costs at $200,232.47 and Busseri's costs at $116,321.99.

The plaintiffs, minority shareholders of EnGlobe Corp., brought an action alleging that EnGlobe and its CEO engaged in oppressive conduct and conspired with a third party to freeze their shares during a proxy fight.

The court dismissed the action, finding that the freezing of the shares resulted from a consent order in separate litigation, not from any oppressive conduct or conspiracy by EnGlobe.

The court also held that the claims were barred by cause of action estoppel due to a prior consent dismissal order, and that the oppression claim was statute-barred under the Limitations Act, 2002.

The plaintiffs, Tim Hortons franchisees, brought a proposed class action against the franchisor alleging breach of contract, breach of the duty of good faith and fair dealing, unjust enrichment, and breaches of the Competition Act.

The claims centered on the franchisor's requirement that franchisees purchase par-baked donuts and Lunch Menu ingredients at allegedly commercially unreasonable prices.

The franchisor moved for summary judgment.

The court granted summary judgment dismissing all claims, finding that the franchisor had the contractual right to require the purchases and set the prices, and that there was no breach of the duty of good faith or the Competition Act.

The certification motion was therefore moot, though the court indicated it would have certified certain common issues had the claims survived.