Chloe A. Snider

Kari Holdings Inc., a secured creditor, brought a summary judgment motion against HSBC Bank Canada, alleging that HSBC improperly granted overdraft protection to their mutual debtor, C.I.F. Furniture Limited (CIF), and repaid itself using collateral subject to Kari's prior security interest.

Kari sought a declaration of priority and payment of $467,455 for the alleged overdrafts and $57,260 for credit card debt.

HSBC brought a cross-motion for summary judgment dismissing Kari's action.

The court dismissed Kari's motion and granted HSBC's cross-motion, finding that HSBC did not extend credit by way of overdraft and, alternatively, that CIF's repayments were made in the ordinary course of business, which was permitted under Kari's general security agreement.

The appellants, holding foreign arbitral awards against the Kyrgyz Republic, sought declarations that the Republic owned shares in Centerra Gold Inc. registered to Kyrgyzaltyn JSC, a state-owned corporation.

The applications judge dismissed the applications, finding no evidence of a transfer of rights, express trust, or resulting trust.

The Court of Appeal upheld the decision, confirming that the governing agreement unambiguously established Kyrgyzaltyn as the beneficial owner of the shares and that the presumption of resulting trust was rebutted by the evidence of intention.

This costs endorsement follows the dismissal of applications by Belokon, Entes, Sistem, and Stans (the "Applicants") to recognize and enforce arbitral awards against the Kyrgyz Republic (the "Republic"), and to declare an exigible ownership interest of the Republic in Centerra Gold Inc. shares held by Kyrgyzaltyn JSC.

The Republic and Kyrgyzaltyn (the "Respondents") sought costs.

The court awarded costs on a partial indemnity basis, rejecting claims for full or substantial indemnity.

It also determined that costs should be payable on a several, not joint and several, basis due to the unrelated nature of the Applicants and the court-directed common issue hearing.

The court limited the costs award to the common issue hearing, excluding prior jurisdiction motions or general recognition application costs, and considered previous compensation for materials.

The applicants sought a declaration that the Kyrgyz Republic held an exigible ownership interest in shares of Centerra Gold Inc. registered in the name of its wholly-owned subsidiary, Kyrgyzaltyn JSC, to enforce arbitral awards.

The court dismissed the applications, finding that the Agreement on New Terms (ANT) unambiguously established Kyrgyzaltyn JSC as the beneficial owner of the shares, not the Republic.

The court rejected arguments based on contract interpretation under New York law and trust principles under Canadian law, emphasizing the separate legal personality of the subsidiary and the lack of evidence for an ownership interest or trust.

The plaintiffs sued the Town of Orangeville for breach of contract related to a biosolids disposal tender and an agreement of purchase and sale for a storage facility.

The court found the Town breached "Contract A" by accepting a non-compliant tender bid from a third party (Entec) but dismissed the plaintiffs' claim for lost profits (Contract B) because they failed to prove they would have been awarded the contract.

The court also found the Town validly exercised a termination clause in the Agreement of Purchase and Sale, dismissing the plaintiffs' claim for damages related to the property sale.

The Town's counterclaim for the return of the deposit was granted.

The plaintiffs appealed a Master's order compelling them to answer questions during an examination in aid of execution.

The questions related to the plaintiffs' financial affairs, including the Marhaban Trust and proceeds from a quota sale, and the business affairs of non-parties.

The appeal argued that there was insufficient evidence to link the plaintiffs to the non-parties' property and that the Master's reasons were inadequate.

The court upheld the Master's decision, finding sufficient evidence of a connection between the plaintiffs and the Marhaban Trust and other associated companies, and that the Master's reasons were adequate.

A minor amendment was made to the scope of one question.

The plaintiff, Husky, brought an action against its founder, Robert Schad, his new company Athena, and others, alleging misuse of confidential information relating to injection molding machines.

Husky claimed that Athena accessed confidential information from Husky machines placed at a third-party facility (Niigon) and used it to develop competing machines.

The defendants argued the claims were statute-barred, that most issues were settled during prior negotiations, and that no confidential information was misused.

The court dismissed Husky's claims, finding they were statute-barred as Husky knew of the material facts more than two years before commencing the action.

The court also found that the commercially available machines were not confidential, and that Athena did not make material use of any confidential information from the prototype machines.

Athena's counterclaim for abuse of process and injurious falsehood was also dismissed for lack of evidence.

The moving party sought leave to appeal an order that set aside a Mareva injunction but declined to do so on the basis of material non-disclosure, and which did not preclude the responding party from bringing a fresh motion for injunctive relief.

The moving party also sought leave to appeal the costs disposition.

The Divisional Court dismissed the motion, finding that the moving party failed to meet the strict test for leave to appeal under Rule 62.02(4) of the Rules of Civil Procedure, as there was no conflicting decision and the proposed appeal did not involve matters of general or public importance.

The moving parties sought leave to appeal an interlocutory order striking out an affidavit filed in opposition to an application to recognize and enforce a foreign arbitral award.

The motion judge had struck the affidavit on the basis that it was clearly irrelevant and scandalous.

The court dismissed the motion for leave to appeal, finding no conflicting decisions on matters of principle and no good reason to doubt the correctness of the motion judge's order.

The applicant brought a motion to strike an affidavit filed by a respondent in an application to recognize and enforce a foreign arbitral award under the International Commercial Arbitration Act.

The affidavit alleged that the applicant had engaged in money laundering and other criminal activity relating to the investment that was the subject of the arbitration.

The court held that the affidavit attempted to relitigate issues already determined by the arbitral tribunal and would improperly create a “trial within a trial” on the merits of the award.

Because recognition and enforcement proceedings under the UNCITRAL Model Law permit only narrow defences, the affidavit was clearly irrelevant and scandalous.

The affidavit was struck, though it could remain in the record solely as part of the Paris annulment proceedings.

Following the execution of an Anton Piller order in a commercial dispute, certain seized documents were identified as relating to “controlled goods” under the Defence Production Act.

The moving party sought an order declaring that the independent supervising solicitor appointed under the Anton Piller order was not required to register under Part 2 of the Defence Production Act in order to possess or examine such documents.

The Attorney General of Canada intervened and argued that the registration requirements applied.

The court held that an independent supervising solicitor appointed under the Model Anton Piller Order functions as a person employed for the execution of civil process and qualifies as a “peace officer” within the meaning of the Criminal Code for the limited purpose of the statutory exemption.

Accordingly, the solicitor was exempt from the registration requirement under s. 36 of the Defence Production Act.

The Burnbrae defendants brought a motion for summary judgment to dismiss the plaintiffs' claims against them.

The plaintiffs, who were competitors in the egg industry, alleged that Burnbrae conspired with others to drive them out of business by supplying deficient eggs, misusing confidential information, and interfering with contractual relations.

Applying the new summary judgment framework from Hryniak v. Mauldin, the court found no evidence to support the plaintiffs' sweeping allegations against Burnbrae.

The court concluded that Burnbrae's actions were legitimate competitive behavior and dismissed the action against the Burnbrae defendants.

The plaintiff employer sought ex parte relief against an employee alleged to have breached contractual and fiduciary duties by participating in a competing business and misusing confidential information.

The court applied the four-part test for Anton Piller orders set out in Celanese Canada Inc. v. Murray Demolition Corp. and found a strong prima facie case of breach of loyalty and confidentiality obligations, a risk of serious harm to the employer’s customer relationships, convincing evidence that relevant documents likely existed in the defendant’s possession, and a real risk of destruction of evidence.

The court granted an Anton Piller order with a shortened duration and appointed independent supervising solicitors.

An interim injunction restraining disclosure of confidential information and solicitation of customers or employees was also granted applying the RJR‑MacDonald test.

The court further ordered that the motion materials be sealed under the Sierra Club test pending execution of the order.