Catherine Francis

The appellant landlord appealed the dismissal of its application for a declaration that a long-term commercial lease had expired and for ancillary relief on the basis that the tenant was overholding.

The appellant argued that the tenant's failure to obtain timely Planning Act approval brought the lease to an end and precluded further renewals.

The Court of Appeal found no error in the application judge's analysis, holding that the tenant had continued to take appropriate steps to obtain the necessary approval and that the renewals were permitted subject to such approval.

Fresh evidence motions were dismissed as irrelevant to the appeal outcome, and leave to appeal the $225,000 costs award was denied.

A non-party jewelry business sought to enforce an alleged settlement agreement with a bank arising from a fraud claim.

The bank alleged that funds from a fraudulent transaction were deposited into the jewelry business's account.

The jewelry business claimed it had reached a binding settlement agreement to pay the outstanding balance in exchange for a comprehensive release.

The court found that while the parties were engaged in settlement negotiations, they did not reach agreement on all essential terms, particularly regarding payment security covenants and a "no claims over" provision that would have precluded the bank from pursuing its primary defendant.

The motion to enforce the settlement was dismissed, and costs were awarded to the bank.

The moving parties brought a motion for leave to appeal and a motion to stay the orders of the motion judge, which had authorized the release of funds.

The Divisional Court granted leave to appeal and ordered a stay pending appeal, noting that the underlying orders were made under the mistaken belief that the moving parties and the responding bank had been served with the motion in writing.

No further payments are to be made pending the appeal.

This endorsement addresses two motions arising from a cybertheft of approximately $9.7 million from the applicant's bank account at the respondent bank.

The applicant, FACTOR, sought additional productions from the Bank of Nova Scotia (BNS), alleging a parsimonious approach to disclosure.

BNS, supported by other respondents, sought to convert the application into an action, citing material facts in dispute and complex issues.

The court largely granted FACTOR's production requests, ordering BNS to provide more details from its internal investigation, session logs (with confidentiality), and internal alert system details (with a secure mechanism).

The court also ordered the additional respondents, James Campagna and 10426377 Canada Inc., to produce all relevant documents.

The motion to convert the application to an action was dismissed as premature, with the court noting that the necessity of conversion could be revisited once the respondents deliver their full evidence.

The applicant, Loop Financial Inc., brought an application for judgment against the respondent, Royal Bank of Canada (RBC), seeking $90,000 for pure economic loss.

Loop alleged that RBC was negligent and breached a duty of care by failing to notify Loop that funds had been fraudulently transferred from an RBC customer's account to a Loop account.

The funds were subsequently withdrawn by the fraudster before the transfer was reversed under Payments Canada Rules.

The court applied the Anns test and held that RBC did not owe a duty of care to Loop, a non-customer, as RBC had not undertaken any responsibility toward Loop and there was no reasonable reliance.

The court further found that even if a duty existed, Loop failed to prove that RBC breached the standard of care.

The application was dismissed, and RBC was awarded $20,000 in partial indemnity costs.

The applicant sought to set aside an arbitration award, arguing that the arbitrator breached procedural fairness by applying the doctrine of res judicata to prevent a limitation defence against a particularized counterclaim for negligence and breach of fiduciary duty.

The court found that the arbitrator's decision was a substantive legal one, not a procedural unfairness, and that the arbitration agreement precluded appeals on questions of law.

The application to set aside the award was dismissed.

The applicant creditor brought a bankruptcy application against the respondent debtor, alleging an unpaid debt of approximately $7.9 million USD for LED light bulbs supplied under a distribution agreement.

The debtor disputed the application and sought a stay, arguing it had a bona fide counterclaim for damages resulting from the applicant allegedly supplying patent-infringing goods.

The court found that the debt was clearly established and that the debtor had committed an act of bankruptcy by ceasing to meet its liabilities generally.

The court dismissed the debtor's motion for a stay, finding the counterclaim lacked merit and was not bona fide, and granted the bankruptcy order.

KSV Restructuring Inc., as court-appointed Monitor and Receiver for the Validus Entities (a group of power generation companies), brought motions seeking approval of a Sales and Investment Solicitation Process (SISP), authorization to implement it, approval of a Stalking Horse Bid by Macquarie Equipment Finance Ltd. and Far North Power Corp., approval of bid protections (break fee and expense reimbursement), approval of an Unknown Contract Bar Process, approval of Monitor's reports, and an extension of the stay of proceedings.

Additionally, the Receiver sought to increase its borrowing limit.

The Validus Entities opposed certain terms of the SISP and the Stalking Horse Offer, arguing the quantum owed to Macquarie was overstated, unconscionable, violated the anti-deprivation rule, and raised concerns about HST treatment.

The court granted all relief sought by the Monitor/Receiver, finding the SISP fair and transparent, the quantum owed to Macquarie correctly calculated under the sale-leaseback agreements, the anti-deprivation rule not engaged as the default was contractual, and the HST issues appropriately deferred to a transaction approval motion.

The court emphasized the need for stability and timely action to maximize recovery.

The plaintiffs brought a motion to compel answers to questions refused during the examination for discovery of the defendant Rosy Moses.

The underlying litigation involves a family dispute over the ownership and control of corporate entities, with claims based on proprietary estoppel.

The motion addressed the relevance of questions concerning Rosy Moses's testamentary intentions, the production of accountant and will drafting files, and transfers of assets to Rachel Moses.

A significant portion of the motion also dealt with the inadvertent disclosure of a privileged document.

The court ruled on the relevance of various questions, compelling some answers related to asset equalization and family dynamics, while upholding refusals for others, particularly those concerning inadvertently disclosed privileged documents.

The court found a mixed success rate for both parties and ordered no costs.

The applicant sought the appointment of a full receiver over the properties and assets of the respondent power generation companies following significant monetary and operational defaults under loan agreements.

The respondents opposed a full receivership, arguing they had secured alternative financing, but consented to continuing an interim receivership.

The court found the proposed financing commitment highly conditional and uncertain, and noted the respondents' lack of interim funding, disarray in management, and risk to employees and operations.

Concluding it was just and convenient to protect the applicant's security, the court granted the application and appointed a full receiver.

The plaintiffs moved to remove Minden Gross LLP as counsel for the defendant corporations, Metro Hardware and 218 Ontario, alleging that a partner in the firm, Rachel Moses (sister of plaintiff Reuben Moses), and other firm members would be necessary witnesses at trial, and that counsel displayed improperly partisan conduct.

The court dismissed the motion, finding no strict rule against a lawyer's partner testifying, that Rachel Moses did not intend to testify, and that the motion appeared tactical and was brought late in the proceedings.

The court emphasized the right to counsel of choice and that any potential conflict was speculative.

In a receivership and bankruptcy proceeding, a dispute arose regarding the distribution of proceeds from the sale of a property.

The 259 Group, a second mortgagee, had previously settled a motion regarding the distribution of holdback funds, resulting in a consent order.

The Trustee and a third mortgagee argued that this settlement finally determined the amount of indebtedness owed to the 259 Group, barring them from making a further secured claim in the bankruptcy.

The court applied the doctrine of issue estoppel and interpreted the consent order, concluding that the settlement only resolved the priority of the holdback funds, not the total indebtedness.

Therefore, the 259 Group was not barred from making a secured claim to the Trustee.

The Receiver sought advice and directions regarding a proof of claim by the Township of Augusta for outstanding property taxes against the former owner, 1902408 Ontario Ltd., and the current owner, 1217858 B.C. Ltd. The court determined that the Township's claim against the former owner was not proven, and that the supplemental taxes were vested out by the Approval and Vesting Order (AVO) issued during the receivership sale.

Alternatively, the Township was estopped from collecting taxes from the current owner due to prior assurances and a binding tax certificate.

The court dismissed the Township's claim against both parties.

The appellants appealed a trial judgment awarding the respondent Royal Bank of Canada (RBC) damages for breach of a conditional sales contract and ordering that the judgment not be released by a bankruptcy discharge.

The Court of Appeal dismissed the appeal regarding the breach of contract claim, finding that the loan renewal did not negate the breach given the continuing obligation to provide security.

However, the court allowed the appeal in part by striking the order that the judgment survive bankruptcy, deferring this issue to the Bankruptcy Court due to RBC's awareness of the issues at the time of renewal.

The appellant, an undischarged bankrupt, appealed a bankruptcy judge's order interpreting a trust.

The Royal Bank of Canada, as an assignee of the Trustee in Bankruptcy's rights, sought to recover proceeds from the sale of a property held in trust for the appellant.

The appellant argued his interest was suspended during bankruptcy under a specific trust provision.

The Court of Appeal upheld the bankruptcy judge's finding that a mandatory distribution provision overrode the suspension clause, concluding the property vested in the appellant at the "Time of Division" and thus formed part of his bankrupt estate, available to creditors.

The plaintiff, 5004514 Ontario Inc. (formerly Ajax Sales & Service Inc.), brought a motion for leave to correct a misnomer in its Statement of Claim to add Kaizer Husseini Poonawalla as a separate defendant.

The original claim incorrectly listed Kaizer as an alias of Husseini Poonawalla.

The court applied the "litigating finger" test for misnomer, finding that an objective reading of the original claim would indicate Kaizer was an intended defendant.

The court also addressed the defendants' argument regarding the expiry of the limitation period, concluding that limitation period defenses do not apply to motions to correct a misnomer.

Even if misnomer did not apply, the court found a triable issue of fact or credibility regarding discoverability.

The motion was granted, allowing the plaintiff to amend its claim.

The appellant appealed the granting of a charge against her property under s. 34(1) of the Solicitors Act.

The Court of Appeal affirmed the application judge's finding that the well-established three-step test for ordering a statutory charge was met, specifically that the appellant was unable or unwilling to pay the solicitor's fees.

The court found no palpable and overriding error in the application judge's discretionary decision, which was amply supported by the record.

The appeal was dismissed, and costs were awarded to the respondent.

The applicant brought a consent motion within its CCAA proceedings for approval of Sale Procedures and an extension of the Stay Period.

The court found the applicant acted in good faith and with due diligence, and granted the motion, extending the Stay Period to December 22, 2021, and setting a bid deadline of December 31, 2021.

The applicant, McEwan Enterprises Inc., sought an Amended and Restated Initial Order at a comeback hearing in its CCAA proceedings to extend the stay period and increase the administration and directors' charges.

A creditor opposed the motion, arguing the applicant should not be allowed to continue without a court-approved marketing and sale process and raising concerns about a proposed transaction.

The court granted the requested relief to allow the applicant to continue operations, finding the creditor's concerns raised arguable issues that were more properly addressed at an upcoming motion to approve the proposed transaction.

The appellant appealed the dismissal of his application to declare his late father's 2019 will invalid due to undue influence.

The application judge found the appellant lacked standing under the Rules of Civil Procedure and the Estates Act, as an earlier 1996 will (under which he was not a beneficiary) would take effect if the 2019 will was set aside.

The Court of Appeal upheld this decision, finding no error in the application judge's reasoning regarding standing and the onus on the appellant to adduce evidence challenging the 1996 will's validity.

The appeal was dismissed with costs awarded to the respondents.