David M. Brown

The applicant corporation, authorized to wind up its affairs, sought directions on the distribution of its assets to shareholders.

A shareholder brought a companion motion seeking a reference to a Master to identify shareholders and for an accounting, which was dismissed as the corporation had provided sufficient evidence of its process.

The court granted a sealing order over the confidential Shareholder Lists, applying the Sierra Club test.

The court approved an initial distribution of $1 million but required further court approval for subsequent distributions, and directed the corporation to continue investing funds in an interest-bearing account.

In the context of competing applications arising from a disputed annual general meeting, the parties brought motions to compel answers to questions refused during cross-examinations.

The court held that an applicant could not withdraw a statement in his affidavit referencing legal advice and that the statement constituted a waiver of solicitor-client privilege, requiring him to answer questions about the advice.

The court also ordered an expert witness to produce draft reports and communications with counsel, finding that tendering the expert waived litigation privilege over those materials.

Other requests for production and answers were dismissed for lack of relevance.

In CCAA restructuring proceedings involving a retail apparel company, the monitor sought approval of an asset sale agreement for the debtor’s Costa Blanca business and the debtor sought an extension of the stay of proceedings.

The court considered the criteria under ss. 36(3) and (4) of the Companies’ Creditors Arrangement Act and found the sale process had been conducted fairly and transparently and that the proposed transaction provided the best available consideration to creditors, notwithstanding that the purchaser was related to the debtor.

Approval of the sale was granted subject to a condition requiring the transaction to close by a specified deadline, failing which the debtor and monitor were required to seek further court directions.

The court also granted the debtor’s request to extend the stay of proceedings, approve liquidation of certain store inventory and fixtures, continue a key employee retention plan, and authorize repayment of secured loans.

The appellant appealed his sexual assault convictions, seeking to introduce fresh evidence consisting of a death certificate for the complainant's younger brother.

The Court of Appeal admitted the fresh evidence under the Palmer test, finding it was determinative of a factual issue regarding the timing of the alleged offences.

The evidence raised a real question as to whether the appellant committed the assaults as an adult or a juvenile.

The appeal was allowed, the convictions were quashed, and a new trial was ordered.

The appellant appealed a disposition of the Ontario Review Board dated September 15, 2010.

The Court of Appeal dismissed the appeal on the basis that it was moot.

The court provided directions in an interpleader proceeding concerning funds paid into court following the cessation of payroll services operations by a corporate respondent.

Approximately $2.39 million held in a payroll account had been paid into court, and an advisor was appointed to administer claims by numerous clients asserting entitlement to the funds.

The advisor reported that a portion of the fund could be traced to specific claimants while the remainder was co‑mingled and proposed a distribution allocating traceable funds to identified clients and the balance pro rata.

The court directed further reporting, service of materials to claimants, and procedures for claimants to file notices of appearance and submissions regarding the proposed distribution.

A further hearing was scheduled to determine whether the proposed distribution or an alternative should be approved.

The court provided further directions regarding a court-ordered election for a not-for-profit corporation.

The issue was whether 18 individuals whose memberships had been suspended or terminated were eligible to vote as 'regular members' if they operated convenience stores as franchisees rather than independent owners.

The court found that the corporation's Articles did not exclude franchisee store operators from regular membership, provided they contributed to the generation of profits for the corporation.

The court ordered that the 18 individuals could vote if they submitted an affidavit confirming their contribution to the corporation's profits.

In a corporate liquidation proceeding, the inspector moved for declarations approving a second claims bar process and authorizing distribution of funds held by the liquidator.

Several foreign claimants attempted to pursue litigation in a United States court without filing a proof of claim in the liquidation or seeking leave from the Ontario court, despite notice of the claims bar process and an existing stay of proceedings.

The court held that the claimants’ failure to participate in the claims process barred their claims and constituted a breach of the stay of proceedings.

The court approved the second claims bar process, declared the foreign claims extinguished, and authorized distribution of the indemnification fund.

The liquidator was also directed to take no action in response to the foreign proceeding.

The moving party brought a motion to strike an affidavit filed by an opposing party in advance of summary judgment motions.

The affidavit was challenged on the basis that the deponent was allegedly incompetent when swearing the affidavit, refused cross‑examination, and later became unavailable.

The court held that, as a general rule, motions to strike affidavits should be heard by the judge presiding over the main motion or application because that judge must determine issues of admissibility, competency, credibility, and weight of the evidence.

Pre‑emptive motions to strike should occur only in the rarest and most extraordinary circumstances due to the inefficiency and proliferation of interlocutory motions.

The judge reserved the decision on the motion and directed that it would be determined at the commencement of the hearing of the main motions.

Multiple condominium corporations brought motions under s. 69.4 of the Bankruptcy and Insolvency Act to lift the automatic stay of proceedings following the bankruptcy of a property manager and his company.

The underlying actions alleged fraudulent mortgage loans and fraudulent overcharging in condominium management contracts.

The court held that the claims involved issues of fraud, complex contingent debts, and disputes requiring full adjudication with multiple parties, making the bankruptcy claims process inadequate.

The court lifted the statutory stays to allow four existing civil actions to continue and permitted a lender to commence two related actions, ordering that all six proceedings be case-managed together on the Commercial List.

The court also imposed terms limiting costs recovery against the bankrupt estates prior to discharge.

The plaintiffs and defendants, two brothers and their respective holding companies, engaged in a complex corporate divorce involving a transportation business, ProNorth.

The court determined that the brothers were equal 50/50 shareholders in the holding company, rejecting the defendant's claim of a 62/38 split.

The court found the defendant brother engaged in oppressive conduct by wrongfully excluding the plaintiff from a shareholders' meeting and removing him as a director.

As a remedy, the court ordered the defendant to purchase the plaintiff's shares at a fair value of $4,455,000, based on an en bloc valuation of $8.91 million.

The court also resolved disputes over several jointly owned properties, ordering the defendant to purchase the plaintiff's interests in properties used by the business, and directing the partition and sale of others.

The court awarded the plaintiff $180,000 in damages for exclusion from management, offset by $105,000 awarded to the company for the plaintiff's wrongful detention of a corporate aircraft.

Finally, the court found the company's accountant breached his fiduciary duty to the plaintiff by swearing an affidavit contrary to the corporate records, awarding nominal damages of $100.

In a receivership proceeding, the court considered a motion by the court‑appointed receiver seeking authorization to place two debtor corporations into liquidation and to approve distributions to creditors following completion of a claims process.

A former employee creditor sought an extension of time to file a late claim after a mailing error caused the claim to arrive after the claims bar date.

The court granted the extension and approved a settlement of the claim.

The court held that the receiver had authority, through the appointment order and applicable corporate statutes, to seek winding‑up orders for the corporations and to act as liquidator.

The proposed process for identifying and addressing shareholder claims to surplus proceeds was found reasonable.

Following the dismissal of the plaintiff's action, the successful defendants sought costs on a substantial indemnity basis.

The court found that the plaintiff's conduct was not reprehensible and awarded costs on a partial indemnity basis.

The court reviewed the defendants' bills of costs, making reductions for excessive trial preparation time and for the defendants' failure to properly produce relevant documents before trial, which had necessitated a two-day adjournment.

Total costs of $784,276.99 were awarded to the defendants.

A not‑for‑profit corporate governance dispute led to court‑ordered elections for officers and directors of an association.

On a motion for directions, the court clarified the powers of court‑appointed election supervisors, determined the positions to be filled, and resolved several disputes about membership eligibility, voting procedures, and governance rules.

The court held that previous confirmations of the president and vice‑presidents were procedurally invalid due to lack of quorum and improper notice.

Suspensions or terminations of certain members were set aside due to lack of procedural fairness.

The court issued detailed directions governing the conduct of the upcoming elections, including supervision authority, quorum rules, and control over the association’s website during the election process.

A creditor brought a motion for an extension of time to appeal a registrar’s conditional discharge order in a bankruptcy proceeding.

The creditor argued that he failed to file the appeal within the prescribed 10‑day period because the court office failed to send him the decision when it was released.

The court applied the principles governing extensions of time for appeals, requiring a bona fide intention to appeal, a reasonable explanation for the delay, and an arguable appeal.

The court found that the creditor had demonstrated a legitimate reason for the delay due to administrative error by the court office and had shown an intention to appeal and arguable grounds.

The extension of time to appeal was granted to the creditor and two other creditors wishing to join the appeal.

Following a trial of issues under section 81 of the Bankruptcy and Insolvency Act regarding competing claims to property, the successful claimant sought costs against the unsuccessful claimant, and the unsuccessful claimant sought costs against the Trustee.

The court awarded partial indemnity costs to the successful claimant, finding no litigation conduct warranting elevated costs.

The unsuccessful claimant's request for costs against the Trustee was denied because its own contradictory and incomplete positions necessitated the Trustee seeking the court's directions.

The applicant union sought judicial review of an Ontario Labour Relations Board decision dismissing its application for certification and a related employer declaration against SNC.

The Board had found that SNC was not the employer of two construction labourers working on an SNC job site.

The Divisional Court dismissed the application, holding that the Board's determination of the true employer using the York Condominium factors was reasonable and fell squarely within its expertise.

The Court also rejected the union's argument that the Board breached natural justice by suggesting another entity might be the employer, noting the only material issue was whether SNC was the employer.

The defendant brought a motion under s. 21(5) of the Courts of Justice Act to set aside a decision refusing leave to appeal.

The Divisional Court dismissed the motion because it was brought more than two years after the decision, well beyond the four-day limit in Rule 61.16(6), with no reasonable explanation for the delay.

Furthermore, the court noted that such a motion will only be granted if the motions judge declined jurisdiction, which did not occur in this case.

The appellant, a motor vehicle salesperson, appealed a decision of the Licence Appeal Tribunal directing the Registrar to revoke his registration.

The revocation followed the appellant's criminal conviction for counselling a customer to commit arson to destroy a leased vehicle.

The Divisional Court applied the reasonableness standard of review and found that the Tribunal's decision was fully supported by the evidence.

The court held that a single isolated mistake involving a serious industry-related criminal offence could reasonably support the belief that the appellant would not carry on business with honesty and integrity.

The appeal was dismissed.

The applicant sought judicial review of a university committee's decision to involuntarily withdraw him from a radiological technology program following a patient safety incident during a clinical practicum.

The applicant argued he was denied natural justice because the primary witness against him submitted a written statement and was not cross-examined.

The Divisional Court dismissed the application, finding the applicant's counsel never requested to cross-examine the witness, and the committee's decision was reasonable and within the core academic functions of the university.