Catherine Francis

The defendant Royal Bank of Canada moved for summary judgment to dismiss a claim by the plaintiff Foodinvest Limited.

Foodinvest sought to recover wire payments made to fraudulent Polish accounts for meat products that were never delivered.

Foodinvest alleged the Bank was negligent in not warning of the fraud or investigating the accounts.

The Bank argued its liability was limited by contract to negligence, and no negligence occurred, nor was there a duty to investigate foreign accounts or warn the customer, especially given FINTRAC obligations to not 'tip off' suspicious clients.

The court found the Master Client Agreement binding, that the Bank had no duty to warn or investigate external fraud, and that the plaintiff failed to provide expert evidence of a breach of banking standard of care.

The motion for summary judgment was granted, and the action dismissed with costs to the defendant.

The appellant appealed from a motion judge's order requiring disclosure of all documents and communications relating to a settlement agreement between the appellant and its creditor, Zodax.

The respondent sought annulment of the appellant's bankruptcy proposal, alleging that the Zodax settlement was entered into secretly and fraudulently to obtain court approval without proper disclosure to creditors.

The motion judge ordered production, finding that the integrity of the bankruptcy proposal process outweighed settlement privilege.

The Court of Appeal granted leave to appeal and dismissed the appeal, holding that while settlement privilege is a class privilege that generally applies, it may be subject to exceptions where competing public interests require disclosure, particularly where allegations of fraud in the proposal process are raised.

The appellant appealed from a motion judge's order dismissing its motion for leave to amend the statement of claim to add a lawyer as a party defendant.

The motion judge found that the claim could not succeed on the merits and was statute-barred.

The Court of Appeal upheld the dismissal on the basis that the claim was statute-barred, as the appellant had discovered or should have discovered its potential claim by 2014, more than two years before the motion to amend was brought in October 2016.

The defendant landlord brought a motion to discharge an ex parte Certificate of Pending Litigation (CPL) obtained by the plaintiff tenant regarding a hotel property.

The tenant had a right of first refusal to match a third-party offer to purchase the property.

After the third-party transaction failed, the landlord offered the property to the tenant on the same terms, but the tenant sought to amend its claim to enforce a different agreement with an abatement of the purchase price.

The court found that the tenant's only enforceable right was to match the original offer, which it failed to do.

Applying the factors for discharging a CPL, the court concluded the CPL should be vacated as the tenant no longer had a reasonable claim to the interest in the land on the terms originally pleaded.

The moving party, a creditor, brought a preliminary motion seeking production of a settlement agreement between the proposal debtor and another creditor.

The debtor opposed production, claiming the agreement was confidential and protected by settlement privilege.

The court ordered production of the settlement agreement, holding that settlement privilege does not apply to claims settlements in a BIA proposal process.

The court found that the public interest in maintaining the integrity and transparency of BIA proposal proceedings outweighs any need to encourage settlement by recognizing privilege.

The plaintiff brought a motion for leave to amend its statement of claim to add a lawyer as a defendant, alleging the lawyer acted for it in a 2007 co-ownership conversion transaction and breached his duties.

The lawyer and the mortgagee he represented opposed the motion.

The court dismissed the motion, finding the proposed claim was legally untenable because the lawyer solely represented the mortgagee and owed no duty of care to the plaintiff.

Furthermore, the claim was statute-barred under the Limitations Act, 2002, as the plaintiff had imputed knowledge of the potential claim in 2007 and actual knowledge by June 2014, well beyond the two-year limitation period.

The appellants sought leave to appeal a CCAA judge's order extending the stay period, approving the Monitor's report, declaring the litigation trustee was not in a conflict of interest, and staying litigation against the appellants.

The appellants challenged the extension of the stay, the appointment of the litigation trustee, and alleged bad faith by the respondents.

The Court of Appeal dismissed the leave to appeal application, finding the proposed appeal failed to meet the test for leave and that the CCAA judge's decision was well-reasoned and entitled to deference.

The appellant registered a claim for lien against condominium units owned by the respondent for work supplied to the developer.

The Master discharged the lien and certificate of action, finding the respondent was not an 'owner' under the Construction Lien Act and the appellant failed to properly preserve and perfect the lien by not naming the respondent.

The Divisional Court dismissed the appeal, upholding the Master's findings that the appellant had no valid lien rights against the respondent's units and affirming the Master's award of substantial indemnity costs due to the appellant's conduct.

The appellant sought leave to appeal an order approving a bankruptcy trustee's second auction process for the sale of assets of two bankrupt corporations, and refusing an adjournment.

The Court of Appeal dismissed the motion for leave to appeal, finding that the proposed appeal did not raise an issue of general importance, lacked prima facie merit, and would unduly hinder the progress of the bankruptcy proceedings, as the sale had already been completed.

The trustee in bankruptcy moved for an order requiring the responding party to obtain leave to appeal an order approving an auction process.

The responding party argued that leave was not required under s. 193(c) of the Bankruptcy and Insolvency Act because the property involved exceeded $10,000.

The Court of Appeal held that the order was procedural in nature, did not bring into play the value of the debtor's property, and did not determine entitlement to sale proceeds.

Therefore, the responding party requires leave to appeal, which may be sought from the panel scheduled to hear the appeal.

The applicant condominium corporation sought relief from an allegedly oppressive shared facilities agreement (CRA) imposed by the declarant developer, and brought several actions for construction deficiencies and property management breaches.

The court found the CRA produced an oppressive result due to the conflicted manager's conduct and amended the agreement to allow the condominium to terminate the manager without cause.

The court also ruled on multiple summary judgment motions regarding construction deficiencies, dismissing the first action as a nullity for lack of statutory notice to owners, and granting summary judgment on various specific deficiency claims based on limitation periods and warranty coverage.

Damages were awarded for specific proven deficiencies and against the former property manager for failing to maintain insurance records.

The applicant in a dismissed bankruptcy application sought costs, alleging the respondent was a fiduciary and acted improperly.

The respondent sought substantial indemnity costs, claiming the application was an abuse of process.

The court denied both parties' cost claims, finding no judicial determination of fiduciary duty or improper conduct by the respondent, and no bad faith by the applicant in commencing the bankruptcy application.

Each party was ordered to bear their own costs.

The moving parties sought a review of an order by a single judge of the Court of Appeal denying leave to appeal under s. 193(e) of the Bankruptcy and Insolvency Act and ordering security for costs.

The Court of Appeal held that it does not have jurisdiction to review a decision of a single judge granting or denying leave to appeal under the Act.

The motion for review was dismissed, and the appeal was quashed.

In a court-appointed receivership, the spouse of the debtor's principal sought leave to appeal an order extending a Mareva injunction and repatriating a misappropriated HST refund.

A third party claiming an interest in the funds also appealed the order.

The Court of Appeal dismissed the spouse's motion for leave to appeal, finding no arguable merit to her procedural complaints about the ex parte Mareva order.

The Court granted the Receiver and a secured creditor's motions for security for costs against the third party, finding his appeal appeared frivolous and he lacked assets in Ontario.

The applicants in CCAA proceedings sought an extension of the Stay Period to April 15, 2016, as they prepared an Amended and Restated Plan of Compromise.

The court found the parties were working in good faith and with due diligence, and granted the extension.

The court also approved an agreement to lift the Co-Tenancy Stay on acceptable terms and extended the Notice of Objection Bar Date.

The court-appointed Receiver brought a motion to extend an ex parte Mareva injunction against the spouse of the debtors' principal and to repatriate misappropriated HST funds.

The debtors had concealed a $986,594.96 HST refund and diverted it to an account controlled by the spouse.

An intervenor claimed the funds were repayment for a loan, but the court dismissed this as a fraudulent attempt to divert the funds.

The court found the Receiver made full and frank disclosure, was not required to commence an action against the spouse first, and did not need to provide an undertaking as to damages due to the Receivership Order.

The motion was granted, the injunction extended, and immediate repatriation of the funds ordered.

The moving party sought enforcement of a settlement agreement requiring the bankruptcy trustee to pay $300,000 toward a previously awarded costs order.

The trustee argued the bankruptcy estate lacked sufficient funds and that payment would prejudice its ability to pay its own fees and ongoing litigation costs.

The court interpreted the settlement memorandum and held that the first $300,000 of the moving party’s costs were expressly not subordinated to the trustee’s fees and expenses.

The trustee’s failure to reserve those funds could not defeat the contractual arrangement.

The court ordered payment of $300,000 in trust to counsel holding a solicitor’s lien, with no costs of the motion.

In complex construction deficiency litigation between a condominium corporation and related development entities, the court addressed whether certain claims previously identified in the plaintiff’s evidence as “resolved” could nonetheless remain alive pending cross‑examinations in a summary judgment process.

The plaintiff sought to preserve one remaining claim despite sworn evidence and expert reports indicating that the issue had been resolved.

The court held that a party cannot maintain a claim merely to explore potential evidence through cross‑examination after the evidentiary record and procedural timelines have long passed.

Emphasizing the need to avoid procedural gamesmanship and delay, the court dismissed the disputed claim along with several others previously identified as resolved.

Orders were directed dismissing specific items in the schedules to the statements of claim in two related actions.

The Receiver brought a motion to distribute funds to the secured creditor, RBC, and to approve its fees.

The Union opposed, claiming a super-priority for unpaid pension and other benefits under the BIA over all companies in the receivership, and sought to claw back the Receiver's fees.

The court held that the CRA's deemed trust for unremitted source deductions under the Income Tax Act takes priority over the Union's BIA super-priority claims.

The court also rejected the Union's attempt to extend its claims to other corporate entities in the group, finding no evidence they were related employers or participated in the pension plan.

The Union's attempt to claw back the Receiver's fees was dismissed as an impermissible collateral attack.

The appellant creditor sought a declaration that the bankrupt's judgment debt survived his discharge from bankruptcy under s. 178(1)(d) of the Bankruptcy and Insolvency Act.

The trial judge dismissed the claim, finding that the bankrupt owed no fiduciary duty to the appellant, even though he had breached a fiduciary duty to a third party.

The Court of Appeal dismissed the appeal, confirming that s. 178(1)(d) applies only if the bankrupt owed a fiduciary duty directly to the creditor seeking the declaration.