David T. Woodfield

This is an appeal from a Superior Court decision enforcing an international arbitral award.

The appellant (LinkGlobal Food Inc.) sought an adjournment in the lower court to obtain evidence regarding alleged failures of natural justice in the arbitration, which was denied.

The application judge enforced the award.

On appeal, LinkGlobal argued the denial of the adjournment was contrary to the interests of justice.

The Court of Appeal dismissed the appeal, finding no error in the application judge's discretionary decision, noting the appellant's lack of diligence in obtaining evidence and the narrow scope for refusing foreign arbitral awards.

The applicant sought recognition and enforcement of a Chinese arbitral award under the UNCITRAL Model Law on International Commercial Arbitration.

The respondent requested an adjournment to gather evidence to oppose enforcement, alleging procedural irregularities and denial of natural justice during the arbitration.

The court denied the adjournment, citing the respondent's lack of diligence, the insufficient evidentiary basis for the alleged grounds, and the apparent lack of merit in the proposed arguments, which often sought to re-argue the arbitration's merits.

The court then granted the application, recognizing and enforcing the award, and ordered the respondent to pay costs to the applicant.

Costs decision following the dismissal of the plaintiff's motion for an interlocutory injunction and the dismissal of the defendant XTM's cross-motion for summary judgment.

The court declined to award substantial indemnity costs to either party.

The court awarded net partial indemnity costs of $25,000 to XTM.

The court also awarded partial indemnity costs of $15,000 to amicus curiae representing the self-represented defendants, and $3,982.69 for disbursements incurred directly by the self-represented defendants.

The plaintiff brought a motion for a mandatory interlocutory injunction against its former Chief Technology Officer and a competitor, seeking the return or destruction of alleged confidential information.

The competitor brought a cross-motion for summary judgment to dismiss the action against it.

The court dismissed the injunction motion, finding the plaintiff failed to establish irreparable harm or that the balance of convenience favoured granting the order, largely due to a 22-month delay in pursuing the motion.

The court also dismissed the summary judgment motion, finding genuine issues requiring a trial regarding the competitor's knowing involvement and the causation of the plaintiff's loss of a major client.

An appeal from a summary judgment decision concerning the interpretation of a commercial loan contained in two letter agreements.

The appellants argued that the summary judgment judge erred in law by failing to give full effect to all terms of the agreements and to read them harmoniously.

The Court of Appeal found the judge's interpretation, particularly as set out in paragraphs 67-72 of his reasons, to be reasonable, informed by the factual matrix, and commercially sound.

The appeal was dismissed with costs awarded to the respondent.

The defendants, Forever 21, Inc. and Forever XXI, ULC, brought a motion seeking a stay of action or to strike the Statement of Claim on the basis of a duplicative proceeding commenced in California.

The dispute arose from a contract between the plaintiff, Ryan ULC, and Forever 21, Inc., concerning HST and GST rebates.

The court applied the convenient forum test from Club Resorts Ltd. v. Van Breda, considering factors such as convenience and expense for the parties, the law to be applied, the desirability of avoiding multiple legal proceedings and conflicting decisions, and the enforceability of judgment.

The court found that the factors, on balance, favored the defendants, and granted the stay.

The appellant hotel owner appealed a summary judgment decision awarding the respondent hotel manager an early termination fee of $1,026,652.44 plus costs.

The owner had terminated a 10-year hotel management agreement after approximately 10 months, claiming cause based on alleged breaches by the manager.

The Court of Appeal upheld the summary judgment, finding no genuine issue requiring trial.

The court rejected the owner's arguments regarding alleged breaches concerning an interim manager's work visa status, the appointment of an unqualified general manager, the manager's failure to timely terminate the general manager, and alleged budget preparation violations.

The court found that the owner had approved the general manager's hiring, that the manager had cured the termination issue within the required 30-day period, and that the owner could not rely on its own refusal to approve the annual plan as grounds for termination for cause.

The defendant brought a motion seeking answers to undertakings and questions refused during the continued examination for discovery of the plaintiff's representative.

The dispute centered on the plaintiff's claim of lawyer-client and litigation privilege over a draft internal report (the ASD Report) prepared in December 2002.

The court found that the plaintiff failed to provide sufficient evidence to establish, on a balance of probabilities, that the report was prepared for the dominant purpose of litigation or for seeking legal advice.

The court ordered the plaintiff to answer the refused questions and produce the report.

Atomic Energy of Canada Ltd. (AECL) sought to amend its statement of claim in a long-running insurance indemnity action against Allianz Global Risks US Insurance Company (Allianz).

Allianz opposed the amendments, arguing they introduced new causes of action, were time-barred, lacked particulars, and caused prejudice due to inordinate delay and loss of evidence.

The court found that amendments related to causation theories advanced by Allianz's experts were not new causes of action, but the claim based on assignment of rights from MDS Nordion and Comstock was a new cause of action and time-barred.

The court granted leave to amend certain paragraphs, denied others, and required AECL to provide better particulars for the causation amendments to limit their scope to the theories advanced by Allianz's experts.

The plaintiff, Hakim Optical Co. Limited, sought costs on a substantial indemnity basis after being wholly successful in a prior motion.

The court reviewed the submitted bill of costs, found it reasonable and proportionate, and awarded partial indemnity costs of $10,821.31 to Hakim Optical Co. Limited, payable forthwith by the defendant, Helen Phillips, after considering Rule 57.01 of the Rules of Civil Procedure.

The plaintiff moved for an order for payment out of court of monies paid by the deceased defendant, including costs and interest, and for a finding that the default judgment stands due to the defendant's dilatory conduct.

The defendant's representatives sought an adjournment to contest the original service from 2005 and to regularize the action.

The court denied the adjournment, finding the defendant had ample opportunity to challenge the default judgment and service over 12 years.

The court exercised its discretion under Rule 9.03(6) to permit payment out despite the lack of a formal Order to Continue for the deceased defendant's estate.

The default judgment was affirmed, and the plaintiff was granted payment of all outstanding costs and the monies held in court.

The plaintiffs sought to enforce a California judgment of approximately (US)$17 million against the defendant Jay Chiang and sought a declaration that the debt survives his bankruptcy discharge under s. 178(1)(d) of the BIA.

The plaintiffs also brought a second action alleging that Jay Chiang and numerous family members engaged in fraudulent conveyances and a conspiracy to hide assets and frustrate collection efforts.

The court enforced the California judgment in the amount of (US)$9,678,832 but declined to declare that the debt survives bankruptcy, finding no fiduciary duty was owed to the plaintiffs.

The court found Jay Chiang liable for fraudulent conveyances and conspiracy, but dismissed the claims against most of the other family members, finding they were unwitting conduits used by Jay Chiang.