David Sischy

The decision concerns an application under section 192 of the Canada Business Corporations Act (CBCA) for approval of a plan of arrangement by The Cannabist Company Holdings (Canada) Inc. and 16834434 Canada Inc., opposed by Murchinson Ltd. (on behalf of certain noteholders).

The court granted the final order approving the arrangement, which restructures the company’s senior notes, and dismissed Murchinson’s related oppression application.

The reasons address the fairness and reasonableness of the arrangement, the appropriateness of third-party releases, and the standing of Murchinson to bring an oppression claim.

This decision addresses cross-applications between two groups of real estate investors, led by David Civiero and Grant Alexander Hood, regarding the winding up or buy-sell/shotgun disposition of their jointly held corporations.

The court grants leave to add parties, converts the applications to actions, and orders transfer and consolidation with a related Toronto action, finding that the complexity and credibility issues require a full trial.

This case involved a shareholder dispute where OneMove Capital Corporation sought to affirm the validity of its proposal under s. 99 of the Ontario Business Corporations Act (OBCA) to remove and replace a director, and to compel Dye & Durham Limited to include this proposal in its information circular.

Dye & Durham brought a counter-application to omit the proposal and sought a declaration that OneMove and Tyler Proud breached a 2020 Investor Rights Agreement (IRA).

The court ruled that a shareholder cannot use the s. 99 proposal mechanism to remove a director, as director removal requires a special meeting requisitioned under s. 105 of the OBCA.

However, the court also found that OneMove's proposal, if permissible, would not fall under the "personal grievance" exception of s. 99(5)(b) or (b.1), as it related significantly to the company's business affairs.

Furthermore, the court determined that the IRA did not prohibit OneMove from seeking to remove its nominee director through proper OBCA channels, and dismissed Dye & Durham's other alleged breaches of the IRA as theoretical.

This decision addresses cross-motions by the plaintiffs (Hood) and defendants (Civiero) to compel answers to refused questions during examinations for discovery in a dispute over joint venture real estate projects.

The court ruled on the relevance and proportionality of various categories of questions, including those related to income, financial documents, potential witnesses, and the nature of agreements.

Key issues included the disclosure of personal expenses run through a joint company, the production of deleted text messages, and the privilege associated with the payment of legal fees.

The court also addressed requests for further discovery time, granting limited additional time to both parties with specific conditions.

This case addresses a corporate deadlock within AnalytixInsight Inc. (ALY) between two factions of its board of directors, stemming from serious allegations of misconduct, including insider tipping, self-dealing, and material non-disclosure, against the former CEO and his allies.

The Applicant Faction sought an investigation under the Business Corporations Act (OBCA) and oppression remedy relief.

The court found a prima facie case of oppressive and dishonest conduct by the Respondent Faction, warranting immediate interim intervention.

An inspector was ordered to investigate the allegations, and the alleged wrongdoers were temporarily precluded from board participation, with an interim board appointed to ensure company functionality.

The moving parties sought a stay of the Ontario Court of Appeal's order pending their application for leave to appeal to the Supreme Court of Canada.

The court applied the three-part test for a stay, emphasizing the stringent 'serious issue' threshold for leave to the Supreme Court.

The motion was denied because the factual situation was unclear, evidence of canon law was thin, and key parties (Diocese and Synod) were not involved, making it unlikely the Supreme Court would grant leave to appeal.

The defendants moved to amend their statement of defence to plead issue estoppel and abuse of process based on a prior US arbitration award, and to dismiss the plaintiff's action on those grounds.

The plaintiff cross-moved to add the defendants' parent company as a party.

The court granted the defendants' motion to amend and dismissed the plaintiff's breach of contract and negligence claims, finding they were barred by issue estoppel as the arbitrator had already decided the core factual issues against the plaintiff.

However, the court refused to dismiss the plaintiff's breach of fiduciary duty claims, finding those issues were not determined in the arbitration.

The plaintiff's motion to add the parent company was dismissed as premature and legally untenable.

This appeal concerned a dispute within the Medhanie Alem Eritrean Orthodox Tewahdo Church regarding internal governance, specifically the holding of an overdue Annual General Meeting (AGM) and the application of canon law versus corporate bylaws.

The appellants, volunteer board members, challenged the application judge's order that mandated an AGM under the 2014 Bylaws with a court-appointed neutral chair, arguing these issues were non-justiciable matters of canon law or that the order conflicted with canon law.

The Court of Appeal affirmed that the local Church, as an incorporated entity, is subject to civil law obligations like holding AGMs.

However, it found that the application judge's order unnecessarily conflicted with canon law by preventing the Church from amending its bylaws to conform with the 2016 Canon Law Promulgation before the AGM.

The Court allowed the appeal in part, striking the conditions regarding the 2014 Bylaws and the court-appointed neutral chair for the AGM, and ordered a special or emergency meeting with a court-appointed neutral chair to allow the Church to vote on bylaw amendments before the AGM.

The Superior Court of Justice approved a pre-certification settlement in a proposed class action, which resulted in the dismissal of the case without costs.

The court found it prudent to approve the settlement given the unusual timing during a mid-certification motion adjournment.

The decision highlighted that the settlement was in the best interests of the putative class, as the plaintiffs' chances of success were slim, and it did not prejudice class members, who retained the ability to pursue individual actions.

The plaintiffs, Grant A. Hood Holdings Inc. and Grant A. Hood, brought a motion seeking unfettered access to the books and records of Hodero Holdings Ltd. and Cade Management Ltd., including real-time online access to QuickBooks, source documents, and the Hodero email server, as well as further affidavits of documents from the defendants.

The court granted real-time QuickBooks access with shared costs, allowed on-site inspection of hard copy source documents with shared conversion costs, but denied broad access to the Hodero email server, finding no legitimate business need and that the request was disproportionate.

The court also denied immediate orders for further affidavits of documents and cross-examination on them, emphasizing ongoing disclosure obligations.

Portions of an affidavit related to arbitration confidentiality were struck.

The plaintiffs in a proposed class action sought a mid-certification motion adjournment to introduce new expert evidence, arguing a gap in their existing evidence regarding the class members' stake in the litigation.

The defendants opposed, characterizing the request as a fundamental re-conceptualization of the claim.

The court granted the adjournment, finding that the proposed new evidence would indeed necessitate a significant re-do of the case, including potential amendments to pleadings and common issues, and possibly a redefinition of the class.

Due to the substantial prejudice caused to the defendants by this shift, the court ordered the plaintiffs to pay costs thrown away.

Following a successful application ordering the respondents to hold an annual general meeting for the election of directors, the applicants sought costs on a full or substantial indemnity basis.

The court rejected the request for elevated costs, finding the respondents' conduct did not rise to the level of reprehensible or outrageous behaviour.

The court awarded costs to the applicants on a partial indemnity basis in the all-inclusive amount of $58,000, payable by all respondents except one who did not oppose the application.

The applicants, members of an incorporated church and registered charity, sought an order compelling the church's board of directors to hold an annual general meeting (AGM) and elections, which had not occurred since 2016.

The respondents argued the court lacked jurisdiction, claiming the church was a voluntary religious association and the dispute was ecclesiastical.

The Superior Court of Justice rejected this argument, finding the church was a corporation governed by the Not-for-Profit Corporations Act, 2010, and the applicants had established legal rights under the statute.

The court ordered the holding of an AGM under the supervision of a neutral chair for the purpose of electing a new board of directors.

The moving parties brought a motion for leave to appeal an order dated March 9, 2022.

The Divisional Court dismissed the motion for leave to appeal and awarded costs of $6,000 to the responding party.

The appellant, Detour Gold Corporation, appealed a summary judgment declaring that the respondent, Prism Resources Inc., held a valid and enforceable royalty interest in Detour's mining claims as an interest in land.

The appeal concerned the interpretation of a 2004 letter agreement between Prism and Conquest Resources Inc., Detour's predecessor, and the application of principles from Bank of Montreal v. Dynex Petroleum Ltd. and Sattva Capital Corp. v. Creston Moly Corp. The Court of Appeal dismissed the appeal, affirming that the motion judge correctly found Prism's royalty to be an interest in land, based on the parties' intention inferred from the agreement, surrounding circumstances, and admissible subsequent conduct.

The applicant, a former Senior Manager, Compliance, sought court advice and direction regarding claims for solicitor-client privilege asserted by the Toronto-Dominion Bank and its subsidiaries over documents and information in her possession.

The applicant had previously initiated a wrongful dismissal claim and sent whistleblower reports to regulators using internal Bank documents.

The Bank asserted privilege over certain materials and applied redactions.

The court found that the documents and information in the applicant's possession were subject to solicitor-client privilege and should be returned or redacted.

The court also denied the applicant's request for her litigation counsel to review the privileged materials, finding no "absolute necessity" and rejected arguments that the privilege belonged to trust beneficiaries or was negated by a future crimes/fraud exception.

The application was dismissed in its entirety, and costs were awarded to the Bank.

The plaintiff brought a motion to compel documentary production and address refusals and undertakings from the defendants, including the corporate defendant AF Global Asset Management Inc. The litigation concerned a significant investment in a Brazilian real estate development, with allegations of misrepresentation, misappropriation of funds, and inadequate record-keeping.

The court considered the scope of relevance, proportionality, and practicality of discovery, particularly regarding electronic financial records.

The motion was largely granted, with specific orders for the production of financial documents, fulfillment of undertakings, and the corporate defendant to produce a representative for discovery.

The appellant, Detour Gold Corporation, brought an unopposed motion for leave to file a five-page reply factum.

The Court of Appeal granted the motion, using the opportunity to critique the current appellate rules that necessitate such motions.

The judge advocated for an automatic right to file brief reply factums to enhance written advocacy, improve judicial preparation, and reduce unnecessary litigation costs, highlighting a procedural gap in both civil and criminal appellate rules.

The applicant law firm sought costs on a substantial indemnity basis after successfully enforcing an arbitration award against the respondents.

The respondents argued that the applicant, as a self-represented law firm, was only entitled to nominal costs because it failed to provide evidence of lost opportunity costs or distinguish between client time and counsel time.

The court agreed with the respondents, finding no egregious conduct to warrant substantial indemnity costs and applying appellate principles to award only nominal costs of $5,525.47.

The applicant law firm sought to enforce an arbitral costs award of $130,485 against its former clients following an arbitration assessing legal accounts.

The respondent clients brought a cross-application to set aside the award under s. 46(1)3 of the Arbitration Act, 1991, or alternatively for leave to appeal under s. 45(1).

The court dismissed the cross-application, finding the arbitrator had jurisdiction to determine costs and that the alleged errors regarding the departure from the normal costs paradigm were questions of mixed fact and law, not extricable questions of law.

The court granted the application to enforce the costs award.