David R. Byers

This decision sanctions the CCAA Plans of Imperial Tobacco Canada Limited, Imperial Tobacco Company Limited, JTI-Macdonald Corp., and Rothmans, Benson & Hedges Inc., effecting a global settlement of all tobacco-related claims in Canada.

The court reviews the structure, allocation, and fairness of the plans, including the creation of a $1 billion Cy-près Foundation, and addresses objections from social stakeholders.

The court finds the plans fair, reasonable, and in the public interest, and grants the requested relief, including third-party releases and the appointment of plan administrators.

Following the dismissal of their motion for leave to proceed under the Securities Act and for class certification, the plaintiffs brought a consent motion to discontinue the action without costs.

The court granted the motion, finding that discontinuance was appropriate and would not prejudice putative class members, as notice of the class proceeding had never been circulated.

The court also approved the proposed Notice of Discontinuance and Notice Plan.

The defendants in a proposed opioid class action moved to dismiss the proceeding for delay under s. 29.1 of the Class Proceedings Act, 1992.

In response, the plaintiff brought a cross-motion for a nunc pro tunc timetable order and commenced parallel proceedings in Manitoba.

The parties reached a settlement wherein the competing motions were dismissed without costs, the Manitoba proceedings would be discontinued, and the Ontario action would be deemed commenced on October 2, 2020, making it subject to the amended certification test under the Smarter and Stronger Justice Act, 2020.

The court approved the settlement and issued the consent orders.

The proposed representative plaintiffs sought leave under s. 138.8 of the Securities Act to commence a secondary market misrepresentation claim against Maxar Technologies Inc. and its directors/officers, alleging failures to properly impair assets and recognize revenue under IFRS.

The court excluded the plaintiffs' expert evidence on IFRS due to lack of qualifications and impartiality, and struck portions of their reply evidence as impermissible case-splitting.

Relying on the defendants' admitted expert evidence, the court found no credible evidence that Maxar's financial statements contained material misrepresentations.

The motion for leave was dismissed as there was no reasonable possibility of success at trial, and the related certification motion was consequently dismissed.

The defendant brought a motion under Rule 31.11(6) to read in the discovery transcripts of its deceased corporate representative.

In response, the plaintiff brought a cross-motion seeking production of communications between the deceased representative, the defendant, and its lawyers, as well as documents relating to a consulting agreement between the representative and the defendant.

The court dismissed the request for general communications, finding it was too late to seek discovery documents and that the communications were privileged.

However, the court ordered the production of documents relating to the formation of the consulting agreement, as they were relevant to the credibility of the deceased witness's evidence for the pending Rule 31.11(6) motion.

Crystallex International Corporation brought a motion for a sealing order to keep confidential certain financial information and strategic details contained in the Monitor's 33rd Report, including cash balance, litigation expenses, sanctions impact, and confidential mediation disputes.

The Ad Hoc Committee of senior noteholders and the Trustee opposed the sealing of financial information, arguing for the importance of disclosure in CCAA proceedings.

The court applied the Sierra Club test, which requires demonstrating a real and substantial risk to an important commercial interest, no reasonable alternative to sealing, and the salutary effects outweighing the deleterious effects on the open-court principle.

The court found Crystallex's evidence, consisting of bald and speculative statements, insufficient to meet this high evidentiary burden, and therefore dismissed the motion for a sealing order.

The Foreign Representative of Purdue Pharma L.P. and 23 other Chapter 11 Debtors sought recognition and enforcement of a U.S. Preliminary Injunction Order in Canada, and a stay of proceedings against certain related parties in Canada.

The motion aimed to pause extensive opioid-related litigation to facilitate a global settlement.

The Quebec Class Action Plaintiff, Riccardo Camarda, opposed the stay for a proposed class action against Canadian Purdue entities, arguing it was outside the U.S. proceedings' parameters.

The court granted the stay, emphasizing principles of comity and cooperation with foreign courts under the CCAA, finding the stay necessary for a global resolution and to prevent an uneven playing field among stakeholders.

Her Majesty the Queen in right of Ontario sought to lift a stay on its $330 billion health care cost recovery action against three tobacco companies (JTI-Macdonald Corp., Imperial Tobacco, Rothmans, Benson & Hedges Inc.) and eleven co-defendants, which was imposed under CCAA proceedings.

Ontario proposed to temporarily stay the effects of any judgment.

The court dismissed the motion, emphasizing the need to preserve the status quo in CCAA proceedings to facilitate a global resolution of significant claims.

Allowing Ontario's action to proceed would alter the level playing field, distract from restructuring efforts, and impose significant costs, prejudicing other stakeholders.

The defendants, KPMG, Canaccord Genuity Corp., and Cassels Brock & Blackwell LLP, brought motions for summary judgment to dismiss actions initiated by 1511419 Ontario Inc. (formerly The Cash Store Financial Services Inc.) on the grounds that the claims were statute-barred by the two-year limitation period.

The actions related to professional services provided concerning a January 2012 loan purchase and note offering.

The court dismissed the motions, finding that there were genuine issues requiring a trial regarding the discoverability of the claims, given the complex factual pattern, allegations of professional negligence, and the limited evidentiary record presented.

The appellants (tenant and its successor) repudiated a commercial lease for an industrial property owned by the respondent.

The respondent was forced to sell the property and sued for damages.

The trial judge awarded $1,277,000 in damages, including lost rental profits and lost capital appreciation.

The appellants appealed, arguing the sale at fair market value fully mitigated damages and that lost capital appreciation was too remote.

The Court of Appeal allowed the appeal, finding that damages for lost capital appreciation were too remote under the Hadley v. Baxendale test, that the property was sold at fair market value, and that damages should be calculated using a discounted cash flow analysis based on the 2013 sale price with appropriate deductions for mitigation.

The appellant appealed the dismissal of his motion seeking leave to bring a derivative action in the name of the respondent corporation pursuant to s. 246 of the Business Corporations Act.

The appellant argued the motion judge applied the wrong legal test and considered irrelevant factors when determining whether the action appeared to be in the interests of the corporation.

The Divisional Court dismissed the appeal, finding the motion judge correctly applied the legal test and appropriately considered multiple relevant factors, including the appellant's negligible shareholdings, the lack of support from other shareholders, and the potential diversion of management resources.

This supplementary endorsement clarifies the scope of a previous endorsement regarding a motion for leave to commence a derivative action.

The court clarified that its prior decision assumed, without deciding, the arguable case for the causes of action and did not consider arguments regarding whether the derivative action was in the corporation's interest or brought in good faith, thereby preserving the parties' ability to advance these positions on appeal.

The representative plaintiff brought a motion for approval of a settlement and class counsel fees in a class action regarding a data breach on the defendants' online photocentre website.

The settlement provided for credit monitoring and reimbursement of out-of-pocket expenses up to a maximum exposure of $1.25 million.

The court found the settlement to be fair, reasonable, and in the best interests of the class, and approved the settlement along with class counsel fees of $250,000.

This endorsement addresses the costs of an action brought by CIT Financial Ltd. against several defendants, which was dismissed on summary judgment as statute-barred.

The defendants sought costs on a partial indemnity scale, including legal and expert fees.

The court considered the complexity, importance, and reasonable expectations of the parties.

While the court found the defendants were diligent in bringing their summary judgment motion after discoveries, it significantly reduced the claimed expert fees for Zeifmans (to one-third) and Duff & Phelps (to 50%).

This reduction was due to the defendants' experts' unreasonable refusal to cooperate with the plaintiff's expert, leading to unnecessary duplication of work in calculations.

Ultimately, CIT Financial Ltd. was ordered to pay the defendants legal fees totaling $1,706,147.92 and reduced disbursements (including expert fees) totaling $550,182.34.

The Liquidator of Maple Bank GmbH's Canadian business sought an interim distribution of surplus funds to the German Insolvency Administrator (GIA) during winding-up proceedings.

The motion was unopposed.

The court approved the interim distribution, finding it appropriate given that adequate reserves were established to cover all proven and potential claims, ensuring no prejudice to Canadian creditors.

The court emphasized a broad, flexible interpretation of insolvency legislation and the policy of assisting foreign insolvency proceedings.

The applicant, a former majority shareholder who now holds a negligible amount of shares, sought leave nunc pro tunc to commence a derivative action on behalf of the respondent pharmaceutical corporation against its directors.

The applicant alleged mismanagement and breach of fiduciary duties, seeking damages for trading losses he suffered when selling his shares.

The court dismissed the motion, finding that the applicant could not use a derivative action to recover personal trading losses.

Furthermore, the court held that the action was not in the best interests of the corporation, as it would divert limited financial resources and management time, and lacked support from any current shareholders.

The defendants brought a motion for summary judgment seeking to dismiss the plaintiff's action for indemnity under a share purchase agreement.

The action was based on alleged breaches of a tax representation and warranty.

The defendants argued the action was statute-barred and that the plaintiff's claim for "loss of use of funds" was limited by contract.

The court granted summary judgment, finding the action was statute-barred because the six-year limitation period began when the plaintiff knew the material facts of the breach and the resulting "claim" (Revenue Canada's reassessment), not upon a demand for indemnity or its refusal.

The court also dismissed the claim for loss of use of funds beyond the contractually agreed prime rate.