Brendan Alexander Bell Jones

Two defendants appealed a trial judgment awarding substantial damages for breach of fuel-delivery contracts and for inducing breach.

The court upheld findings that Remote breached contract and good faith duties, that Wasaya induced the breach, and that mitigation findings were available on the record.

However, it held the trial judge erred by not applying the contractual limitation clause, reducing Remote’s liability to $50,000 while leaving Wasaya liable for $856,458.

In a landmark CCAA proceeding involving Hudson's Bay Company, the court declined to approve the assignment of 25 major retail department store leases across Canada to a new tenant, Ruby Liu Commercial Investment Corp., despite the transaction representing the highest bid and generating approximately $50 million in net proceeds for creditors.

The court found that the proposed assignee failed to meet the reasonableness standard under section 11.3(3) of the CCAA, particularly regarding its ability to perform the substantial and ongoing obligations under the leases.

The decision emphasizes that section 11.3 is an extraordinary power that must be exercised sparingly, and that the court must balance the interests of all stakeholders, including the contractual counterparties (landlords) who would be compelled into a long-term relationship with an untested and undercapitalized purchaser.

The court also rejected the applicants' arguments that certain lease provisions constituted ipso facto clauses violating the anti-deprivation rule and section 34 of the CCAA.

In this CCAA proceeding, the court granted multiple orders sought by Hudson's Bay Company and related entities, including approval of lease assignment agreements with YM Inc. and Ivanhoe Cambridge, sealing of confidential bid information, extension of the stay of proceedings to October 31, 2025, and approval of the Monitor's reports and activities.

The court rejected requests for adjournment and conditional distributions, finding the lease monetization process was fair and transparent, and that the proposed transactions represent a positive development for stakeholders.

The decision addresses motions regarding the appointment of representative counsel for current and former employees and retirees of Hudson’s Bay Company ULC and related entities in ongoing Companies’ Creditors Arrangement Act (CCAA) proceedings.

The Court declined to appoint any of the nominated law firms as representative counsel at this stage, instead appointing the Honourable Herman Wilton-Siegel as an independent third party to evaluate proposals and make a recommendation.

The Court also approved amendments to the Sale and Investment Solicitation Process (SISP) to remove the company’s art and artifact collection from the SISP and to appoint Heffel Gallery Limited to conduct a separate auction for the collection, subject to further court approval of procedures.

The reasons review the legal framework for appointing representative counsel and the importance of balancing stakeholder interests in complex insolvency proceedings.

The court considered whether Parkland Corporation was entitled to a permanent injunction and other relief against 2700455 Ontario Inc. for breach of an exclusive fuel supply agreement.

The court found that 270 breached the agreement by failing to provide a security deposit and by selling non-Parkland fuel.

The court rejected arguments of frustration and fundamental breach, held the exclusive supply clause enforceable, and granted a permanent injunction prohibiting 270 from selling non-Parkland fuel.

Damages were left for trial, and costs were awarded to Parkland.

This endorsement grants a brief adjournment in the Companies’ Creditors Arrangement Act (CCAA) proceedings involving Hudson’s Bay Company ULC and related entities, following ongoing discussions between the applicants and stakeholders.

The court extends the stay of proceedings, increases the Directors’ Charge, amends the relative priorities of charges, and approves the engagement of Reflect Advisors, LLC as financial advisor.

The court finds the requested relief appropriate, unopposed, and supported by the Monitor, and orders the requested amendments to the Initial Order.

This costs endorsement follows the granting of interlocutory relief to Parkland Corporation in a lease dispute.

The court awards partial indemnity costs to Parkland, finding the respondents' conduct did not rise to the level warranting substantial indemnity.

The decision discusses the principles governing costs, including proportionality, misconduct, and the timing of costs awards.

The decision concerns Parkland Corporation’s motion for interlocutory relief to enforce negative covenants in a lease requiring Caledon Fuels Inc. to operate a gas station as an Ultramar station with fuel supplied by Parkland.

The court grants Parkland leave to register a certificate of pending litigation (CPL) and issues an injunction against Caledon and the purchaser, 16408117 Canada Inc., from breaching the lease.

The ruling addresses the legal tests for a CPL and interlocutory injunction, the effect of actual notice of a lease under the Land Titles Act, and the balance of convenience between the parties.

The applicant, Parkland Corporation, sought an interlocutory injunction to prevent the respondent Dealer from selling non-Parkland supplied motor fuel from a gas station, in breach of a long-term exclusive supply contract.

The court granted the injunction, finding that Parkland demonstrated a strong prima facie case of breach of a negative covenant, which gives rise to a presumption of irreparable harm.

The balance of convenience strongly favored Parkland, as the Dealer's actions appeared pre-meditated and in bad faith, and Parkland would suffer unquantifiable harm to its commercial control, intellectual property, and business model.

The Dealer's various defenses, including an alleged oral agreement, lack of independent legal advice, and corporate oppression, were dismissed as unlikely to succeed.

Parkland Corporation, a fuel supplier, sought a declaration that its lease and sublease agreements with Caledon Fuels Inc., a gas station operator, were in full force and effect, and a permanent injunction to prevent Caledon from breaching exclusive supply covenants.

Caledon argued an alleged oral agreement varied the renewal option and that Parkland breached its duty of good faith.

The court found the alleged oral agreement unenforceable due to lack of consideration and the parol evidence rule, and deemed it unbelievable.

The court also found no breach of good faith by Parkland.

Consequently, the court granted the declaration and permanent injunction in favour of Parkland and awarded partial indemnity costs.

This appeal concerned a dispute over commercial rent arrears, specifically whether a binding rent relief agreement was in place during the COVID-19 pandemic.

The appellant argued the motion judge erred in finding no genuine issues for trial due to alleged inconsistencies and an incomplete record.

The Court of Appeal found no reversible error in the motion judge's factual findings, including that the rent relief offer had expired before acceptance and that no waiver or promissory estoppel applied.

The appeal was dismissed.

The Landlord sought summary judgment against a former tenant for rent arrears totaling $367,668.44.

The tenant argued a binding rent relief agreement excused payment and raised defenses of waiver, promissory estoppel, and bad faith.

The court found no genuine issue requiring a trial, determining that the tenant's response to the Landlord's offer was a counter-offer that was never accepted, and the Landlord consistently maintained no rent relief agreement was in place.

All the tenant's defenses were dismissed, and summary judgment was granted in favour of the Landlord for the full amount of arrears plus interest.

This costs endorsement followed a successful application by commercial landlords (Applicants) against Cerieco Canada Corp., a second indemnifier, for payment of garnished funds and outstanding rent.

Cerieco unsuccessfully defended the application.

The Applicants sought costs on a substantial indemnity basis, as contractually provided in the lease.

The court found no "good reason" to deviate from the contractual right to costs, despite the court's inherent discretion.

The Applicants were awarded $56,000 in all-inclusive costs.

Hydro One Networks Inc. appealed a decision denying its claim for a permanent prescriptive easement over a road on the respondent's land, which provides access to its transmission lines.

The application judge had found Hydro One's use was not "as of right" or "continuous." The Court of Appeal found that the application judge misapprehended the evidence regarding the frequency and nature of Hydro One's use, which was sufficient to meet the "continuous" requirement.

The Court also determined that Hydro One's post-2008 interactions with the respondent, aimed at accommodation, did not negate the "as of right" character of its use established prior to the land's registration under the Land Titles Act in 2008.

The appeal was allowed, and the prescriptive easement was declared.

The Applicants, landlords, moved for payment under two indemnity agreements from the Respondents, Callian Capital Private Wealth Management Inc. and Cerieco Canada Corp., following the default of the tenant, Callian Capital Partners, on a commercial lease.

A prior judgment had established joint and several liability.

The Applicants sought release of garnished funds and further unpaid rent.

Cerieco argued for mitigation of damages due to a new lease.

The court found that the indemnity agreements contained "absolute and unconditional" clauses, negating any duty to mitigate for the indemnifiers, distinguishing their obligations from the tenant's.

The motion was granted, ordering payment of outstanding rent and release of garnished funds, with a future reconciliation mechanism.

The appellant, a mortgagee, appealed a motion judge's decision that granted priority to construction lien claimants over his registered third mortgage.

The Court of Appeal dismissed the appeal, affirming that the advances made by the mortgagee did not fall within the exceptions of s. 78(2) or s. 78(6) of the Construction Act.

The court held that advances must be "made in respect of" the mortgage and the intention to secure financing must operate prospectively to gain priority over liens.

The decision reinforces the general principle of priority for lien claimants and the onus on mortgagees to clearly fall within statutory exceptions.

The plaintiff, Homelife/Miracle Realty Ltd., brought a motion for summary judgment against the defendant 2503661 Ontario Ltd. for unpaid real estate commission.

The commission was allegedly due following a property sale that converted into a share purchase transaction.

Homelife argued that 250 was bound by the commission agreement, either directly, as a successor, or through a relaxation of the privity of contract rule. 250 denied liability and sought summary judgment dismissing the action.

The court found the evidentiary record insufficient to interpret the commission agreement and resolve the issues, particularly regarding the objective surrounding circumstances and the impact of subsequent conduct.

Consequently, both Homelife's motion for summary judgment and 250's request for summary judgment dismissing the action were denied, necessitating a trial for a fair and just determination.

The defendants brought motions to dismiss the plaintiff's action for delay and for breach of a prior consent order.

The court declined to enforce the consent order's limitation on opposition, finding it would cause a clear injustice to the plaintiff due to counsel's failures.

However, the court found inordinate and inexcusable delay by the plaintiff's counsel over a period of six years, which created a substantial risk that a fair trial would no longer be possible.

The plaintiff failed to rebut the presumption of prejudice arising from the lengthy delay and the age of the underlying transactions (15-20 years old).

Consequently, the action was dismissed for delay.

The defendants moved for summary judgment to dismiss the plaintiff's subrogated action, arguing it was statute-barred under the Limitations Act, 2002, having been commenced more than two years after a fire and explosion.

The plaintiff, through its insurer Intact, contended that the claim was not discovered until the Ontario Fire Marshal's report identified the cause as arson.

The court found Intact's evidence regarding its due diligence in investigating the claim to be significantly lacking, relying on hearsay.

Despite the evidentiary deficiencies, the court, applying the enhanced powers under Rule 20, ordered a mini-trial to determine the issue of Intact's reasonable diligence in discovering the claim, emphasizing the need for a fair and just adjudication and the unique circumstances of pending official investigations.