David M. Brown

Following execution of an ex parte Anton Piller order authorizing the seizure of computer hardware and smartphones, the parties disputed the method for returning the seized computers to the respondent.

The applicants alleged the devices contained confidential customer lists and email addresses that had been misappropriated.

They proposed removing the existing hard drives and installing new drives containing only non-confidential information copied by a forensic expert.

The respondent objected to replacing the hard drive on one computer containing business records and applications.

The court approved the applicants’ proposed deletion and hard-drive replacement process, subject to safeguards requiring forensic expert involvement, a report to the court, and restoration of operating systems and applications, and ordered return of the devices by a specified date.

Growthworks Canadian Fund Ltd. obtained protection under the CCAA.

Allen-Vanguard Corporation (AVC), a contingent creditor claiming $650 million for fraudulent misrepresentation related to a share purchase agreement, moved to lift the CCAA stay of proceedings to continue its civil action against Growthworks in Ottawa.

Growthworks brought a competing motion for a mini-trial within the CCAA proceeding to determine two threshold issues regarding AVC's claim.

The court deferred the disposition of both motions to the forthcoming motion to extend the stay period, directing the parties to file additional evidence regarding the necessity and proportionality of the proposed CCAA claims process versus lifting the stay.

At a Commercial List case conference, the court addressed procedural issues relating to documentary production, privilege waiver, and the scheduling of discoveries.

The plaintiffs had expressed a desire to bring a motion to strike certain counterclaims, while certain defendants contemplated a motion for a further and better affidavit of documents.

The court declined to schedule those motions, directing instead that the matters be addressed through examinations for discovery and cooperative document production.

Counsel were directed to resolve production issues, exchange documents, and establish a protocol for property inspections to facilitate an expert valuation report.

The plaintiff brought a motion arising from refusals during examinations for discovery in a commercial dispute alleging that the defendants appropriated the plaintiff’s property and profits.

The court addressed several undertakings and refusals from the examinations of individual defendants and ordered that certain refused questions be answered.

It further ordered the corporate defendant to produce financial statements from 2010 onward, finding them relevant to the plaintiff’s disgorgement claim.

The defendants had agreed to answer most refusals but maintained opposition to the production request.

The court ordered production and awarded fixed costs for the refusal.

The plaintiffs brought a motion arising from refusals on discovery concerning requests for handwriting specimens.

The action alleged that a life insurance policy conversion application contained a forged signature and that the forgery was prepared by or on behalf of a corporate principal.

The court held that obtaining original signature specimens from the alleged individual involved was relevant to the pleaded forgery allegation and ordered the corporate defendant to produce up to 30 original signature samples for examination by the plaintiffs’ expert.

However, the request for signature specimens from another employee was refused because no pleaded allegation connected that individual to the alleged forgery.

Given the mixed success on the refusals, costs were ordered in the cause.

Majority shareholders sought a stay of an oppression application brought by minority shareholders and related parties, relying on a broad arbitration clause in a shareholders’ agreement.

The court applied the competence‑competence principle under the Arbitration Act, 1991 and held that where it is arguable a dispute falls within the arbitration clause, the matter should be referred to arbitration for determination of jurisdiction.

Most claims, including oppression allegations, employment termination disputes, and share purchase issues, were closely connected to the shareholders’ agreement and therefore subject to arbitration.

Claims against non‑signatories and ancillary allegations were also stayed under the Courts of Justice Act as they depended on the core disputes.

The only exception permitted to proceed in court was a wrongful dismissal action by an employee who was not a party to the shareholders’ agreement.

A secured creditor sought disclosure of financial information under a general security agreement and s. 18 of the Personal Property Security Act after the debtor and another secured party failed to provide requested information.

The proceeding ultimately resolved after undertakings were given during cross‑examination and the disclosure was substantially provided.

On a subsequent costs motion, the court held the respondents had unreasonably resisted disclosure and filed extensive irrelevant evidence to delay the proceeding.

The court found this conduct constituted reprehensible litigation behaviour warranting elevated costs.

Substantial indemnity costs were awarded to the applicant.

The applicant commenced an action and an application following the termination of a services agreement, arguing the arbitration clause did not survive termination.

The respondent moved to stay the proceedings in favour of arbitration.

The court applied the competence-competence principle, finding it was arguable that the dispute fell within the arbitration clause and that the clause survived termination.

The court granted the motion to stay the action against the corporate respondent under the International Commercial Arbitration Act, and stayed the action against the individual defendants under the Courts of Justice Act, leaving the jurisdictional challenges to be determined by the arbitral tribunal.

Victims of terrorism sought enforcement in Ontario of U.S. judgments against a foreign state and its agencies following recognition of those judgments under the Justice for Victims of Terrorism Act.

The court considered the interaction between the JVTA, the State Immunity Act, and Ontario enforcement procedures.

It held that non‑diplomatic bank accounts and real property beneficially owned by the foreign state in Canada were exigible assets available to satisfy the recognized judgment.

The court ordered financial institutions to pay funds to the sheriff for distribution under provincial execution legislation and directed enforcement against two properties found to be beneficially owned by the foreign state.

A corporation applied under s. 182 of the Business Corporations Act for approval of a plan of arrangement reorganizing its structure into a publicly traded real estate investment trust (REIT).

The arrangement involved shareholders exchanging their shares for securities of a limited partnership and REIT rather than securities of another body corporate.

The court considered whether such an exchange fell within the statutory definition of an "arrangement" and applied the fairness and reasonableness framework from BCE Inc. v. 1976 Debentureholders.

The court held that the arrangement provisions should be interpreted broadly and that the exchange of securities as part of the broader corporate reorganization satisfied s. 182.

The plan of arrangement was approved as fair and reasonable.

The Receiver of Atlas Block Co. Limited moved for approval of the distribution of net sales proceeds from certain assets between two secured creditors, RBC and BDC, and for approval of its allocation of fees and costs.

BDC objected to the distribution, arguing the purchase price allocation in the approved Asset Purchase Agreements undervalued the real property compared to historic appraisals.

The court rejected BDC's objection, noting BDC had not opposed the sale approval motion and the appraisals were dated and less reliable than the market-tested sale price.

The court also approved the Receiver's pro rata allocation of shared costs, finding it prima facie reasonable and noting BDC's delayed objection.

During a Commercial List proceeding involving cross-applications between a technology services provider and a provincial agency, the court conducted a case conference addressing litigation management issues.

The court reviewed the parties’ progress under an agreed Litigation Plan, including pleadings exchange and initial documentary production consisting of thousands of documents.

The parties were directed to exchange annotated production requests identifying disputed categories and to meet to resolve disagreements.

A further case conference was scheduled to address remaining production disputes.

The court also encouraged the parties to organize disputed issues chronologically to clarify the technically interrelated events underlying the dispute.

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.

Two related estate applications appeared on the Toronto Region Estates List seeking scheduling directions, including an application involving interim support from an estate.

The court declined to hear the application because the parties failed to file mandatory facta required by Rule 38.09(1) of the Rules of Civil Procedure and the matter was not properly prepared for hearing.

The judge emphasized that counsel must adhere to the “3 Cs” — cooperation, communication, and common sense — when scheduling matters, particularly in light of the integration of Commercial List procedural expectations into the Estates List.

The court criticized the parties for wasting judicial time by booking hearings without proper preparation or agreement on procedural steps.

The application was adjourned sine die until counsel properly prepared the matter and demonstrated readiness for a hearing date.

Following the dismissal of a defendant’s summary judgment motion in a civil action arising from an alleged incident involving public transit, the court issued procedural directions to prepare the matter for trial.

The motion failed because the moving party lacked admissible evidence and could not rely on admissions from the plaintiffs’ discoveries to establish the claim.

The court directed the plaintiffs to file a trial record, exchange specified documentation relating to accident benefits claims and damages, and undergo defence medical examinations.

Further directions were provided regarding mediation, cost submissions, and scheduling the matter on the Toronto Region Civil Jury Trial List.

The court also rejected the defendant’s request to cross‑examine the plaintiffs’ experts before trial, confirming that no general right exists for such out‑of‑court examinations.

The court-appointed receiver moved for approval of the sale of the debtor's real property, approval of its fees, and authorization to make distributions.

The debtor opposed the motion, seeking disclosure of the unredacted purchase agreement and confidential appendices without signing the receiver's proposed confidentiality agreement.

The court held that the confidentiality agreement was reasonable and necessary to protect the integrity of the sales process.

Applying the Soundair criteria, the court found the receiver's marketing process and the proposed sale were commercially reasonable.

The court approved the sale, the receiver's fees, and the interim distribution, and granted a sealing order for the confidential appendices.

Shareholder applicants brought a contempt motion alleging that a respondent failed to comply with a prior court order requiring disclosure of financial documents and restrictions on dealing with corporate trading account funds.

The motion had previously been adjourned due to inadequate notice and dismissed without prejudice due to lack of evidence of service.

The applicants attempted to re‑bring the motion supported by an affidavit of service sworn by their own counsel.

The court held that Rule 4.02(1) of the Law Society of Upper Canada Rules of Professional Conduct prohibits counsel appearing as advocate from submitting their own affidavit except in unusual circumstances, which were not present.

The court adjourned the contempt motion sine die until proper evidence of service and compliance with procedural and professional conduct rules were provided.

A court-appointed receiver sought approval of an agreement of purchase and sale for the debtor’s real property following a court-approved sales and marketing process.

The debtor moved for a temporary stay of the receivership sale process to pursue refinancing that would redeem the first mortgage.

The court held that granting the stay would undermine the integrity of the court-sanctioned sales process, particularly where multiple bidders complied with the process and the debtor attempted to introduce a late proposal after the bid deadline.

The debtor’s refinancing proposal was neither firm nor sufficient to discharge the first mortgage and receivership costs.

Applying the principles from Royal Bank of Canada v. Soundair, the court approved the receiver’s sale and dismissed the debtor’s stay motion.

A shareholder and creditor of a bankrupt corporation sought an order restraining the trustee in bankruptcy from selling the estate’s interest in a lawsuit and requested authorization under s. 38 of the Bankruptcy and Insolvency Act to continue the action on behalf of the estate.

The trustee had received an offer from a secured creditor to purchase the estate’s interest in the litigation and conducted a process inviting competing bids from creditors.

The moving creditor declined to submit a competing bid but sought a s. 38 assignment to pursue the claim himself.

The court held that the trustee acted reasonably in exposing the asset to the market to maximize recovery for creditors and that no basis existed to interfere with the trustee’s decision.

The motion was dismissed and the trustee was authorized to complete the sale of the cause of action.

The plaintiffs brought a motion shortly before trial alleging spoliation of video evidence by the defendant relating to a bus incident in which the plaintiff claimed injury due to driver negligence.

They sought to strike the defendant’s statement of defence, alternatively an adverse inference regarding the missing video, and exclusion of testimony from certain witnesses.

The court reviewed the governing principles of spoliation and emphasized that determinations regarding whether spoliation occurred and the appropriate remedy are generally best addressed by the trial judge.

Given the proximity of the trial and the intertwined nature of any potential remedy with the trial process, the motion was referred to the trial judge for determination.

Costs of the motion were reserved to the trial judge.