Danny Urquhart

This decision concerns competing applications for declaratory relief between the Islamic Food and Nutrition Council of Canada and the Islamic Food and Nutrition Council of America regarding membership and voting rights in the Canadian corporation.

The Court of Appeal upheld the application judge’s finding that a 2015 bylaw creating two classes of members (one voting, one non-voting) remained in force, and that a subsequent attempt to restore voting rights to personal members via federal continuance was ultra vires without a special resolution.

Both the appeal and cross-appeal were dismissed.

This decision resolves a dispute between the Canadian and American branches of the Islamic Food and Nutrition Council regarding the voting membership structure of the Canadian not-for-profit corporation.

The court found that the 2015 by-law, which created two classes of members with the U.S. entity as the sole voting member, remains in force.

The 2021 attempt to change the membership structure via federal articles of continuance was invalid, as it was not authorized by a special resolution of members.

The application by the Canadian company was dismissed, and a declaration was issued confirming the U.S. entity as the sole voting member.

The court awarded full indemnity costs against the plaintiffs after dismissing their claims, which were found to be statute-barred, subject to res judicata and issue estoppel, abuses of process, and collateral attacks.

The claims were deemed devoid of merit and repetitive of earlier unsuccessful actions.

The court emphasized that the claims should never have been brought, especially for a third time, and that the plaintiffs' conduct, including unsubstantiated allegations, delaying tactics, and unrealistic settlement offers, warranted the highest scale of costs.

A case conference was held to address the scheduling of several outstanding motions after the plaintiffs dismissed their counsel.

The court rescheduled the motions to the week of November 7, 2022, to be heard virtually.

The hearing of the motions was marked peremptory against the plaintiffs and their corporate entities, giving them time to retain new counsel without further delaying the proceedings.

A case conference was held to address multiple related actions.

On consent, the claims against Shahzad Siddiqui and Borden Ladner Gervais LLP were dismissed with prejudice and without costs.

The court directed counsel to confer regarding the potential release of individual defendants and established a timetable for scheduling upcoming dispositive motions.

A case conference was held to manage multiple related proceedings.

Counsel for the plaintiffs indicated a recommendation for the plaintiffs to agree to dismissals without costs in most cases, except potentially the claim against Grant Thornton LLP Canada, which requires leave to proceed.

The court directed that a new class action issued by one of the plaintiffs be case managed together with the existing matters.

Counsel were directed to advise on dismissals or agree on a timetable for dispositive motions by a specified date.

Catalyst Capital Group Inc. attempted to acquire VimpelCom Ltd.'s interest in Wind Mobile Corp. but negotiations failed.

During negotiations, a junior analyst employed by Catalyst left to work for West Face Capital Inc., a member of a consortium that subsequently acquired Wind.

Catalyst sued the former employee and West Face for breach of confidence and other claims (the Moyse Action).

The trial judge dismissed the action, finding that no confidential information was communicated and that Catalyst suffered no detriment because its own refusal to agree to a break fee and its insistence on regulatory concessions made the deal impossible.

Catalyst then commenced a second action against the consortium members and others alleging breach of confidence, conspiracy, and inducing breach of contract.

The motion judge dismissed the second action as barred by issue estoppel, cause of action estoppel, and as an abuse of process.

The Court of Appeal upheld the dismissal, finding that Catalyst was attempting to relitigate factual findings from the first action and that it could have advanced all claims in the first proceeding.

The defendants in a class action sought a pause in proceedings, including the adjournment of a certification motion, pending a Supreme Court of Canada judgment in *Toshiba Corporation v Godfrey*.

The SCC decision was expected to clarify key issues relevant to class certification in price-fixing cases, specifically regarding "umbrella purchasers" and the economic methodology for proving common impact for indirect purchasers.

The court granted the motion, finding that a temporary pause would prevent the need for redoing expert reports and ensure the certification motion was based on the most current state of the law, thereby promoting the expeditious and efficient conduct of the litigation.

The plaintiffs in a proposed class action alleging a price-fixing conspiracy regarding packaged bread sought court approval of a third-party litigation funding agreement with Bentham.

The defendants largely did not object, except regarding a clause allowing Bentham to satisfy any security for costs order via an undertaking rather than paying into court.

The court found the funding agreement necessary for access to justice, fair and reasonable to the class, and approved the agreement, including the provision allowing an undertaking for security for costs.

The appellant, a 52-year-old investment advisor, was petitioned into bankruptcy in 2011 by RBC Dominion Securities Inc. after misappropriating $5 million from clients.

While in bankruptcy, he had a net monthly income of $14,600 with surplus monthly income of $12,500 but failed to make any surplus income payments.

The registrar in bankruptcy ordered that as a condition of discharge, the appellant pay $284,346 in surplus income at $5,000 per month, plus an additional $5,000 per month for six years ($360,000 total), with discharge suspended for two years.

The appellant appealed, arguing the treatment of surplus and other income was in error and that the lower court judge improperly rewrote the registrar's decision.

The Court of Appeal dismissed the appeal, finding the registrar's order was discretionary, well-supported by evidence, and reasonable given the appellant's substantial income and ability to pay.

The applicant sought to set aside an arbitral award under the International Commercial Arbitration Act.

The court found that the arbitrator committed a reviewable error by deciding the issue on a theory not argued by the parties, which amounted to the applicant being unable to present its case.

However, the court declined to exercise its discretion to set aside the award.

The court found that the arbitrator's ultimate decision on the merits was reasonable, the contract interpretation involved mixed fact and law subject to deference, and remitting the matter for a rehearing would serve no practical purpose.