Cynthia L. Spry

Following earlier reasons dismissing most applicants’ requests for interim advancement of legal expenses from a corporation, the court addressed the costs of the applications.

The respondent corporation sought substantial indemnity costs exceeding $559,000 or alternatively partial indemnity costs, while the applicants argued that costs should remain in the cause of the underlying indemnity issue.

The court held that although the respondent was largely successful, payment of costs should be contingent on the outcome of the trial determining entitlement to indemnity.

The court fixed partial indemnity costs of $25,000 for a related motion and $165,000 for the applications, subject to specific allocations among applicants and exceptions for one successful applicant and another who withdrew participation.

The defendant moved to vacate Certificates of Pending Litigation obtained by the plaintiff on an ex parte basis over two properties.

The court held that a party seeking ex parte relief must make full and frank disclosure of all material facts.

The plaintiff failed to disclose a prior divorce settlement in which he had disclaimed any trust interest in the properties and misrepresented the contents of a lawyer’s letter regarding potential sale of the land.

These omissions and misrepresentations were material and could have influenced the original ex parte decision.

The court therefore set aside the order permitting the certificates, but required that 50% of the gross sale proceeds of the properties be paid into court as security pending resolution of the ownership dispute.

The appellant former directors and officers of Look Communications Inc. sought advance funding for their legal costs to defend an action brought against them by the corporation for breach of fiduciary duty.

The corporation resisted the claims under s. 124(4) of the Canada Business Corporations Act, arguing the appellants had not acted in good faith.

The application judge refused advance funding, finding the corporation had established a strong prima facie case of bad faith regarding equity cancellation payments and legal retainers.

The Court of Appeal dismissed the appeal, confirming that s. 124(4) applies to actions brought by the corporation and that the strong prima facie case standard is the appropriate test for denying advance funding.

A private prosecution brought by an environmental advocacy group against the owners and managers of a commercial office complex for regulatory offences related to bird deaths caused by collisions with the building's reflective glass.

The prosecution charged the defendants under three statutes: the Ontario Society for the Prevention of Cruelty to Animals Act, the Environmental Protection Act, and the federal Species at Risk Act.

The court found that the defendants committed the actus reus of two offences (EPA and SARA) but acquitted them on all charges after finding they exercised due diligence in addressing the bird strike problem.

On a summary judgment motion brought by solicitor defendants in a professional negligence and fiduciary duty action arising from an individual pension plan transaction, the court held the record could not satisfy the full appreciation test under rule 20.

The court found multiple triable issues, including the scope of an unwritten retainer, whether there was a duty to inform and warn the client about IPP compliance requirements, and whether a conflict of interest arose from repeated referral arrangements.

The court also found factual disputes regarding reliance on third-party experts and the solicitor's role in structuring and signing foundational corporate documentation.

Summary judgment was refused and the action, including cross-claims, was directed to proceed to trial.

The appellant corporation granted a guarantee and collateral mortgage to the respondent law firm to secure over $800,000 in unpaid legal fees owed by the appellant and related companies.

The appellant sought to rescind the guarantee, arguing its owner lacked authority and the law firm failed to recommend independent legal advice.

The Court of Appeal upheld the application judge's dismissal, finding that while the law firm breached the Rules of Professional Conduct by not recommending independent legal advice, the security remained enforceable because the transaction was fair, the client was sophisticated, and no advantage was taken.

Sunrise REIT initiated an auction process to sell its assets, requiring interested parties, including Ventas and HCPI, to sign confidentiality and standstill agreements.

Ventas submitted the winning bid, and Sunrise signed a purchase agreement containing a 'fiduciary out' clause allowing it to consider superior unsolicited proposals, but also requiring it to enforce existing standstill agreements.

HCPI subsequently submitted a higher bid.

The Court of Appeal upheld the application judge's ruling that the purchase agreement obliged Sunrise to enforce HCPI's standstill agreement, thereby precluding Sunrise from considering HCPI's bid, as it was not a 'bona fide' proposal due to the breach of the standstill agreement.