Brendan Patrick Feeney Monahan

This decision addresses three motions in the receivership of the Bridging Funds: (1) the Receiver’s motion for an interim distribution to unitholders, (2) approval of a settlement with the BlackRock Parties, and (3) the unitholders’ motion for a constructive trust.

The court approved the interim distribution but required a sufficient reserve for the disputed Cerieco claim until its final determination.

The BlackRock settlement was approved.

The constructive trust motion was deferred pending resolution of the Cerieco claim.

The decision provides detailed guidance on the treatment of creditor and unitholder claims in a complex receivership under the Securities Act.

The appellant appealed a partial summary judgment order that dismissed some of his claims (spoliation, intentional infliction of mental suffering) but directed a mini-trial for others (defamation, breach of contract).

The Court of Appeal dismissed the appeal, finding it lacked jurisdiction over the interlocutory aspects without leave from the Divisional Court, that the appeal was improperly framed, and that it was premature as the summary judgment motion was not yet complete.

The court emphasized judicial economy and the need to avoid fragmented proceedings.

This is an appeal from a motion judge's order dismissing the appellants' motion for summary judgment and declaring that the respondents' action was commenced within the limitation period.

The appellants argued the claim was discovered earlier, based on a 2015 telephone conversation and a 2005 memorandum concerning tax consequences of a trust.

The Court of Appeal upheld the motion judge's decision, finding no palpable and overriding error in her application of the relevant statutory provisions and caselaw, particularly Grant Thornton LLP v. New Brunswick.

The court agreed that the information known to the respondents' lawyer was insufficient to ground a plausible inference of liability without expert advice, thus the limitation period began later, making the action not time-barred.

The appeal was dismissed with costs.

The Receiver brought an unopposed motion for an order approving a Claims Adjudication Process, appointing a Claims Officer, and approving its Twentieth Report.

The court granted the motion but modified the proposed order to remove limitations on appeal rights and standard of review, noting that such issues remain to be determined by the court hearing any appeal, not by the Claims Officer.

The applicants, senior secured lenders, sought the appointment of a receiver over the assets of "The One" mixed-use construction project due to financial and covenant defaults by the borrower.

The project, significantly delayed and over budget, had outstanding debt of approximately $1.235 billion.

The appointment of Alvarez & Marsal Canada Inc. as receiver was unopposed by any key stakeholder.

The court granted the application, appointed the receiver, approved a super-priority receivership funding credit agreement of up to $315 million, and issued a stay of proceedings, finding it just and convenient to stabilize the situation and maximize recovery for all stakeholders.

The defendant, Rogers Communications Canada Inc., brought a motion for summary judgment to dismiss the plaintiff, Andrew Athanassiades's, claim for damages arising from alleged failure to provide internet service, intentional infliction of mental suffering, defamation, and breach of contract.

The court dismissed the claim for intentional infliction of mental suffering, finding no evidence of flagrant or outrageous conduct calculated to cause harm.

However, the court found a genuine issue requiring a trial regarding the defamation claim, necessitating oral evidence from both parties.

Further submissions were also required for the breach of contract claim to determine if a genuine issue for trial existed given the apparent mutual agreement to rescind the contract.

Hospira Healthcare India Private Limited and Hospira Inc. (Applicants) brought an application to enforce Letters Rogatory issued by the Supreme Court of the State of New York.

The Letters Rogatory sought documentary and oral evidence from Jack Rotsztain and 1827216 Ontario Inc. (Respondents), who were non-parties to the underlying U.S. action.

The U.S. action involved allegations that Apotex Corp. breached an exclusivity agreement by secretly contracting with a different supplier, Qilu, through 182 Ontario, with Mr. Rotsztain acting as its nominal president and counsel.

The Respondents opposed the application, arguing the requests were overly broad, not relevant or necessary, otherwise obtainable, unduly burdensome, and contrary to Canadian public policy, particularly regarding solicitor-client privilege.

The court, applying the six discretionary criteria for enforcing letters rogatory, found that the Applicants failed to establish relevance, necessity, or that the evidence was not otherwise obtainable.

Crucially, the court determined that enforcing the broad requests would be unduly burdensome and infringe upon recognized Canadian legal principles, especially the sanctity of solicitor-client privilege, amounting to a "fishing expedition" not permitted under Ontario's rules for non-party discovery.

The application was dismissed.

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.

The defendants moved for summary judgment to dismiss the plaintiffs' action as statute-barred under the Limitations Act, 2002, arguing that the plaintiffs' former lawyer had sufficient knowledge of the potential claim more than two years before the action was commenced.

The plaintiffs contended that the information available to their lawyer was insufficient to trigger the limitation period, requiring further expert investigation.

The court dismissed the defendants' motion, finding that the information known to the plaintiffs' lawyer was merely a suspicion and not enough to establish a plausible inference of liability, especially given the complex technical nature of the tax issue and conflicting professional opinions.

The limitation period was held to have commenced either when further due diligence was decided upon (February 22, 2016) or when a comprehensive expert opinion was provided (February 24, 2017), both dates being within the two-year period.

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.

This endorsement addresses a plaintiff's motion for leave to amend its statement of claim and the costs of both this motion and an earlier motion to dismiss/stay.

The court had previously stayed claims related to the recovery of subordinated indebtedness due to a standstill provision but allowed other claims, such as those for fraud and conspiracy related to unauthorized agreements, to proceed with leave.

The plaintiff sought to include claims for damages from unauthorized loan transactions, knowing assistance, breach of fiduciary duty, fraud, conspiracy, punitive damages, and oppression remedy.

The court permitted claims for damages from unauthorized transactions, knowing assistance, breach of fiduciary duty, fraud, and conspiracy, finding they fell outside the standstill provision.

However, claims for punitive damages equal to the subordinated indebtedness were disallowed as a disguised attempt to recover prohibited amounts.

The oppression remedy claim was also denied, as the plaintiff failed to establish a proper complainant status independent of its prohibited creditor capacity.

The Mizrahi Defendants, as the overall successful parties on the stay motion and more successful on the leave to amend motion, were awarded partial indemnity costs for both motions.

The Mizrahi Defendants brought a motion to dismiss or stay the plaintiff's action based on a standstill provision in a Priority, Subordination and Standstill Agreement.

The plaintiff, a subordinated lender for a construction project, sued for $200 million in damages and other relief.

The court found that the plaintiff's claims fell squarely within the standstill provision, which prohibited enforcement actions until senior lenders were repaid.

The court rejected the plaintiff's argument that the enforceability of the agreement was in play, as it was not pleaded.

The action was stayed for 30 days to allow the plaintiff to draft a new statement of claim for claims not covered by the standstill provision, after which the action would be dismissed.

The appellant grandmother appealed a trial judgment ordering the partition and sale of a property she co-owned with the respondent grandson.

The trial judge found the respondent held a 10.17% interest based on his contributions to the purchase and carrying costs, rejecting the appellant's claim of a resulting or constructive trust.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error in the trial judge's factual findings or his decision to order a sale under the Partition Act.

Following a successful motion for summary judgment, the plaintiff sought substantial indemnity costs of $32,657.80 on the basis that the defendant made an unproven fraud allegation.

The defendant argued that it had offered to withdraw the allegation and that the legal issue was novel, militating against a costs award.

The court found that the fraud allegation was not formally withdrawn as the defendant's offer was conditional, but noted the plaintiff's claimed amount was effectively based on a partial indemnity rate.

The court awarded the plaintiff costs fixed at $29,000 all-inclusive.

The defendants/plaintiffs by counterclaim, Canopy Growth Corporation and Canopy Hemp Corporation ("Canopy"), brought a motion seeking preliminary relief in relation to pending summary judgment motions.

Canopy sought an order adjourning the summary judgment motions, establishing a discovery plan, ordering specific document production, and examinations of non-parties.

The plaintiff and defendants by counterclaim opposed the motion.

The court, applying the principles from Hryniak v. Mauldin, found that the summary judgment motions were not simple questions of law and contractual interpretation and that Canopy required some evidence to respond fairly.

The court ordered specific document production from the defendants by counterclaim and examinations of non-parties Vic Neufeld and John Cervini under Rule 39.03, but declined to order a full discovery plan or affidavits of documents.

The court also clarified its lack of jurisdiction to adjourn a judge's summary judgment motion or vary a judge's timetable.

Following a motion where the plaintiff was unsuccessful in obtaining a Mareva injunction but successful in obtaining an order for interim possession of a jewellery set, both parties sought costs.

The court found that success was substantially divided and the costs sought by the plaintiff were excessive.

Applying the factors in Rule 57.01, the court ordered that the parties bear their own costs.

The plaintiff sought a worldwide Mareva injunction to freeze assets and, alternatively, an order for interim possession of a jewellery set of identified diamonds.

The court denied the Mareva injunction, finding the plaintiff did not establish a strong prima facie case of fraud against all respondents or a real risk of asset dissipation.

However, the court granted the interim possession order, finding the criteria under Rule 44.01 were met, as the plaintiff demonstrated lawful entitlement to the property and unlawful detention by the respondents.

The jewellery set was ordered to be held by the Toronto Police Service pending criminal matters.

A minority shareholder of the respondent company brought an application under s. 127 of the Securities Act seeking to block a going-private transaction structured as a plan of arrangement.

The applicant alleged the controlling shareholders improperly relied on the 90 percent exemption from minority approval requirements by engaging in a multi-step strategy to dilute minority interests.

The Commission dismissed the application for standing, finding that the applicant delayed in bringing the application, failed to establish a prima facie case of abusive conduct, and had adequate alternative remedies under the CBCA to address concerns regarding price and fairness.

The applicants sought a review of a decision by a Director of the Ontario Securities Commission refusing to amend the individual applicant's registration to designate her as the ultimate designated person (UDP) for the applicant firms.

The Director had found the proposed amendment 'otherwise objectionable' under s. 27(1) of the Securities Act.

The Commission found that the individual applicant's father, who had been permanently suspended as UDP and prohibited from acting as an officer or director of any registrant due to prior non-compliance, continued to act as an officer of the firms by directing sales and recruiting.

The Commission held that the individual applicant, as chair of the boards, failed to take meaningful steps to ensure compliance with the prior order restricting her father's involvement.

Given the firms' history of non-compliance and the critical role of a UDP in promoting a culture of compliance, the Commission concluded that the proposed registration was objectionable and dismissed the application.