David C. Moore

The moving party sought leave to appeal an order in a CCAA proceeding regarding a priority claim for reimbursement of fees and the imposition of a constructive trust.

The Court of Appeal applied the four-part test for leave to appeal in the CCAA context and denied leave.

The court found that the proposed appeal lacked sufficient merit and involved well-settled matters of law that were not of significance to the practice.

The applicant sought judicial review of a Human Rights Tribunal of Ontario decision that dismissed her discrimination complaint against her university and an arbitrator.

The applicant alleged that the arbitrator's report, which found her harassment allegations unfounded, was discriminatory and that the arbitrator lost adjudicative immunity.

The Divisional Court dismissed the application, finding it to be a duplicative and meritless attempt to relitigate previous findings, and upheld the HRTO's conclusions on reasonable prospect and adjudicative immunity.

The applicants, a wireless telecommunications group operating under the Mobilicity brand, sought protection under the Companies’ Creditors Arrangement Act due to significant debt obligations and an imminent liquidity crisis.

The court considered approval of an Initial Order including debtor‑in‑possession financing, administration charges, continuation of a chief restructuring officer, and a stay of proceedings affecting related oppression litigation.

Applying the statutory factors in s. 11.2 of the CCAA, the court held that the proposed DIP financing and related charges were reasonable and necessary to maintain stability and preserve the possibility of a going‑concern restructuring or sale.

The court rejected objections from a major secured creditor and concluded that the financing structure would not materially prejudice creditors because it ranked subordinate to existing first‑lien security.

The Initial Order was therefore granted.

In CCAA proceedings involving the debtor corporations, a significant creditor sought a declaration imposing a constructive trust and super‑priority over litigation proceeds to recover payments it made to a strategic advisor who served as a director and litigation committee chair.

The creditor argued that the payments justified a solicitor’s lien, unjust enrichment, constructive trust, or oppression remedy.

The court held the advisor’s work was performed in the capacity of a director and business advisor rather than as a solicitor, precluding a solicitor’s lien.

The court further held that the criteria for unjust enrichment and constructive trust were not satisfied and that imposing a proprietary remedy would disrupt the established CCAA priority regime.

The motion seeking super‑priority status was dismissed.

The respondents brought a motion to stay an oppression application commenced by a significant noteholder under a corporate debt indenture.

They argued that a “no action” clause in the indenture barred the proceeding unless procedural preconditions were satisfied, including notice to the trustee and trustee enforcement.

The court held that although no‑action clauses are often interpreted broadly, their scope depends on the wording of the indenture and the trustee’s contractual powers.

Because the trustee’s enforcement authority under the indenture was limited to pursuing payment defaults, it did not extend to bringing oppression proceedings.

The applicant’s oppression claim was therefore not captured by the clause and the motion to stay was dismissed.

In a CCAA proceeding, the Applicants (Hollinger Inc. et al.) sought approval of settlement agreements with their former auditors (KPMG) and lawyers (Torys).

The Non-Settling Defendants, including Conrad Black and David Radler, opposed the settlements, arguing the court lacked jurisdiction and that the included third-party releases and bar orders would deprive them of procedural rights to discovery.

The court held it had jurisdiction under the CCAA to manage litigation as a corporate asset.

The court approved the Pierringer-style settlements, finding that the procedural rights of the Non-Settling Defendants could be adequately protected through active case management and the application of the principle of proportionality in discovery.

The appellants appealed a sealing order that redacted the amounts to be paid under two proposed settlement agreements in a CCAA proceeding.

The appellants argued the sealing order unjustifiably infringed the open court principle.

The Court of Appeal dismissed the appeal, finding that litigation settlement privilege applied to the settlement agreements until approved by the court.

The court held that the sealing order was a minimal intrusion on the open court principle, the requirement to sign a confidentiality agreement did not impose an undue burden, and the respondents did not waive privilege by complying with the court order.

The applicant brought a motion to set aside a Registrar's order dismissing his application for judicial review, arguing he did not receive the required notice.

The court accepted that the notice was sent to an incorrect postal code and set aside the dismissal, without prejudice to the respondents bringing a separate motion to dismiss for delay.

The court also granted the applicant leave to amend his application to include the final decision of the Human Rights Tribunal of Ontario, and dismissed his request for relief regarding the conduct of opposing counsel.

The employer sold a division of its business, resulting in the transfer of employees to a new company.

The transferred employees were removed from the employer's defined benefit pension plan and incorporated into a new successor plan.

At the time of the transfer, the employer's pension plan had a significant projected actuarial surplus.

The employer transferred enough funds to cover the transferred employees' defined benefits but did not transfer any surplus funds.

The transferred employees argued the employer breached its fiduciary duty of even-handedness by not transferring a portion of the surplus and by improperly charging plan administration expenses to the fund.

The Supreme Court of Canada dismissed the appeal, holding that the pension plan documentation allowed the employer to charge administration expenses to the fund and that the transferred employees had no equitable interest in the actuarial surplus, meaning the employer's obligations were satisfied by assuring their defined benefits.

Appeal and cross-appeal arising from limited partnership investment litigation involving an offering memorandum for a real estate tax shelter.

The court held that, read as a whole and in light of the financing and refinancing structure, the offering memorandum contemplated repayment of accrued interest and principal on the second secured loans only upon acceptable refinancing of the first loans; because that refinancing never occurred, the investors were not contractually obliged to repay the second loans.

The court also held that the cash flow loans were not expressly made repayable by investors under the offering documents.

On the cross-appeal, the court held that the contractual deemed-reliance clause was included to satisfy securities-law requirements and did not create a broader right to sue for misrepresentation outside the clause's 90-day notice period.

Both the appeal and cross-appeal were dismissed, with no costs.

Following a successful appeal by the defendant employer regarding a pension plan surplus dispute, the parties made submissions on costs.

The Court of Appeal determined that the litigation was aimed at ensuring the proper administration of the pension trust fund and would have benefited all transferred employees had the plaintiffs been successful.

Consequently, the court ordered that the costs of both parties for the appeal and cross-appeal be paid from the pension fund on a full indemnity basis.

The court fixed the employer's costs at $140,000 and the representative plaintiffs' costs at $43,000, and referred the determination of the reasonableness of the trial costs to the trial judge.

The appellant appealed a motion judge's decision finding that a proposed purchase agreement complied with the transfer provisions of a joint venture agreement.

The joint venture agreement required a co-owner to sell 'all' of its interest if selling without consent.

The Court of Appeal allowed the appeal, finding that the motion judge erred in concluding the interest was restricted to the plaza portion of the property.

The plain wording of the agreement and commercial reality dictated that the interest also included a vendor take-back mortgage and shareholder loans.

A declaration was issued that the purchase agreement did not comply with the joint venture agreement.

The Hudson's Bay Company sold a division, transferring employees to a successor employer who established a new pension plan.

The transferred employees sought a pro rata share of the actuarial surplus from the original pension plan and challenged the employer's payment of plan expenses from the pension fund.

The Court of Appeal held that under the plan documentation, the transferred employees had no entitlement to the surplus, and thus the employer did not breach any trust by not transferring it.

Furthermore, the court found that the employer was legally entitled to pay plan administration and fund management expenses from the pension fund based on valid amendments to the trust agreements.

The court-appointed receiver of a corporation recommended that the company enter a plea agreement and plead guilty to a charge of mail fraud in the United States.

The motion judge approved the recommendation as being within the bounds of reasonableness.

The appellants appealed, arguing the receiver failed to properly assess the risk of conviction and the benefits of the plea agreement.

The Court of Appeal dismissed the appeal, finding no error in the motion judge's conclusion that the receiver's assessment of the risk of conviction, cost savings, and reduced exposure to civil liability and restitution was reasonable.

In a CCAA proceeding, the appellant sought to enforce a Memorandum of Agreement to purchase the debtor's assets after missing a deadline.

The motion judge found the agreement had expired.

The respondents moved to quash the appeal on the basis that leave was required under s. 13 of the CCAA.

The Court of Appeal held that leave was required because the order was made under the CCAA.

The Court dismissed the appellant's cross-motion for leave to appeal, finding no basis to interfere with the motion judge's findings on expiration and estoppel, and concluding the proposed appeal lacked significance to the practice.

The applicants, licensed by the Ontario Racing Commission, faced a hearing regarding licence suspensions, disqualification of horses, redistribution of purses, and significant fines.

They brought an urgent application for judicial review before a single judge of the Divisional Court, arguing that the Commission failed to provide adequate pre-hearing disclosure, specifically witness statements or summaries.

The court held that in administrative cases involving the loss of livelihood, the standard of disclosure approaches the criminal standard, requiring summaries of anticipated evidence.

The court prohibited the Commission from commencing the hearing until 20 days after the required disclosure was made.

The appellant, a director of a public holding company, appealed orders removing him from the board of directors and denying him indemnification for costs incurred in resisting his removal.

The application judge had previously found the appellant engaged in oppressive conduct regarding a related-party loan but temporarily allowed him to remain on the board at the pleasure of the independent directors.

When the corporation's circumstances changed, including the commencement of litigation against the majority shareholder, the application judge ordered the appellant's permanent removal.

The Court of Appeal dismissed the appeal, holding that the application judge had jurisdiction under s. 241 of the Canada Business Corporations Act to order the conditional service and subsequent removal of the director.

The Court also upheld the denial of indemnification, finding the appellant did not act in the best interests of the corporation in resisting his removal.

The parties appeared before the Court of Appeal to determine issues of pre-judgment and post-judgment interest following an appeal regarding a wrongful dismissal.

The appellant argued against pre-judgment interest due to the respondent's delay in issuing the claim and the fact that the appeal judgment awarded no more than the original termination offer.

The court rejected these arguments, noting the appellant had use of the funds, and awarded pre-judgment interest.

The court also declined to vary the agreed post-judgment interest rate of 4 percent, finding the delay in obtaining Employment Insurance repayment information was avoidable.

Costs of the attendance were awarded to the respondent.

The appellants, former senior officers and directors of Hollinger Inc., appealed an order compelling them to submit to questioning by an Inspector appointed under the Canada Business Corporations Act.

They argued that being compelled to answer questions in Canada would violate their Charter rights against self-incrimination, as their answers could be used against them in ongoing criminal proceedings in the United States.

The Court of Appeal dismissed the appeal, finding that the appellants were not entitled to a constitutional exemption because the Canadian inquiry was fact-finding rather than prosecutorial.

The Court also declined to stay the order, noting that the application judge had established a procedure to rule on specific questions and craft protective mechanisms on a case-by-case basis.

The defendants appealed a motions judge's answers to questions posed under Rule 21.01(1)(a) regarding a pension plan surplus following the sale of a business division.

The appeal concerned only the answers relating to administrative costs and expenses.

The Court of Appeal allowed the appeal, finding that the questions were inextricably linked to other issues that the motions judge had correctly directed to trial, such as the effect of statements in pension booklets and reliance on them.

The Court set aside the answers and directed that the issues regarding administrative costs and expenses also proceed to trial.