Debra McKenna

Seven spirits suppliers brought an application challenging the enforceability of section 14 of the LCBO's standard purchase order Terms and Conditions — a "most favoured customer" no-price-discrimination clause — after the LCBO assessed approximately $35.9 million in chargebacks by way of set-off for breaches of the provision.

The applicants raised multiple grounds: ultra vires, statutory illegality, restraint of trade, unenforceable penalty/unconscionable forfeiture, waiver, estoppel by convention, bad faith, and unjust enrichment.

The court rejected all grounds, holding that section 14 falls squarely within the LCBO's statutory mandate to buy and sell liquor as a wholesaler and retailer, is not prohibited by statute, does not restrain trade, is not an unenforceable penalty, was not waived, and was not the subject of a shared assumption with suppliers that it would not be enforced.

The application was dismissed.

This costs endorsement addresses the entitlement of the Chippewas of Nawash Unceded First Nation and Saugeen First Nation (SON) to costs from Ontario following a partially successful appeal.

SON had sued Canada and Ontario for Aboriginal title to submerged lands and for breaches of fiduciary duty.

The Court of Appeal allowed SON’s title claim appeal to the extent of remitting the matter back to the trial judge for a determination on a more limited portion of the claim area, while dismissing their treaty claim appeal.

SON had settled costs with Canada and was not seeking costs for the treaty claim.

The court found that SON was the overall successful party on the title claim appeal against Ontario, as they obtained the relief sought (remittal), and Ontario's position was to dismiss the claim entirely.

The quantum of costs sought by SON was deemed reasonable given the complexity and public importance of the appeal.

The Saugeen Ojibway Nation (SON) brought two actions against the Crown and several municipalities.

In the Aboriginal Title Claim, SON sought a novel declaration of Aboriginal title to a large portion of the submerged lands in Lake Huron and Georgian Bay.

The court dismissed this claim, finding that while SON had a spiritual connection to the water and relied on fishing, they did not establish sufficient and exclusive physical occupation of the claimed submerged lands at the time of British sovereignty in 1763.

In the Treaty Claim, SON alleged that the Crown breached Treaty 45½ (1836) by failing to protect the Bruce Peninsula from settler encroachments, and breached duties during the negotiation of Treaty 72 (1854).

The court found that the Crown breached the honour of the Crown by failing to diligently fulfill its promise to protect the Peninsula from squatters, and by inappropriate conduct during the August 1854 treaty negotiations.

However, the court dismissed the claims for breach of fiduciary duty.

The court also declared that Treaty 72 did not extinguish SON's harvesting rights, which continue on unsold lands and on sold lands where the use is not incompatible with harvesting.

Property-specific remedies and defences were deferred to a second phase of the trial.

The plaintiffs, a group of affiliated wine manufacturers and retailers, brought an action against the LCBO, the AGCO, and the Crown challenging the 'Made Policy', which regulates where wineries can sell their products.

The parties brought six competing motions, including motions to strike pleadings, motions for summary judgment, and a motion regarding the late disclosure of a tolling agreement between the defendants.

The court dismissed the plaintiffs' motion to strike the defendants' pleadings over the tolling agreement, finding it did not alter the expected adversarial landscape.

The court struck significant portions of the plaintiffs' statement of claim against the LCBO and AGCO, particularly allegations relating to pre-2001 conduct that had been settled in prior litigation, and claims for intentional interference with economic relations.

The Crown's motion for summary judgment was granted, dismissing the action against it.

The AGCO's and the plaintiffs' respective motions for summary judgment were dismissed, as the complex factual matrix and allegations of bad faith required a trial.

The plaintiffs appealed an order of a Master upholding numerous refusals made during Rule 39.03 examinations of non-party witnesses.

The examinations related to interlocutory motions concerning the late disclosure of a tolling agreement between the defendants.

The plaintiffs alleged 14 errors of fact and law, primarily challenging the Master's findings on litigation privilege, common interest privilege, and the scope of permissible questions for Rule 39.03 witnesses.

The Superior Court of Justice dismissed the appeal, finding no palpable and overriding errors of fact or errors of law, and affirming that the documents and communications surrounding the tolling agreement were protected by privilege.

The plaintiffs, Magnotta Winery Corporation, sought leave to file a supplementary affidavit responding to evidence from a Rule 39.03 examination of an LCBO employee.

The LCBO opposed, arguing that the plaintiffs had already cross-examined an adverse party's deponent and that the evidence was irrelevant to its Rule 21.01(b) motion.

The court, applying Rule 1.04(2) by analogy to Rule 39.02(2) and the four-part test from First Capital Realty Inc., found the evidence relevant, responsive, and that no non-compensable prejudice would result, and that the plaintiffs had an adequate explanation.

Leave was granted, and the LCBO's cross-motion to strike portions of the plaintiffs' factum was dismissed.

The appellant, injured in 1997 while unloading goods from a truck, brought a civil action against the Workplace Safety & Insurance Board and the Workplace Safety & Insurance Appeals Tribunal seeking compensatory damages of $1,710,455 and punitive damages of $15 million.

The respondents moved to dismiss for lack of jurisdiction and to strike the pleadings as disclosing no reasonable cause of action.

The motion judge granted the motions, holding that the Superior Court lacks jurisdiction over claims against these bodies and that relief must be sought through judicial review.

The appellant appealed, arguing the motion judge erred in dismissing the claim for lack of jurisdiction and in striking the pleadings for failing to disclose a cause of action for bad faith or misfeasance in public office.

The Court of Appeal dismissed the appeal, holding that the statutory scheme under the Workplace Safety and Insurance Act vests exclusive jurisdiction in the Board and Tribunal, and that circumventing this scheme through a civil action constitutes an abuse of process.

The court also held that bad faith is not independently actionable and that the pleadings failed to disclose a reasonable cause of action for misfeasance in public office.

The applicants (Algoma) sought two declarations: (i) that amounts owing under a promissory note from Portco to Algoma had been set off against amounts Algoma owed to Portco under a Cargo Handling Agreement; and (ii) that Algoma's right to terminate related Port Agreements was not subject to Portco's payment of the GIP Loan, which was tied to the set-off amounts.

The court granted the first declaration, finding that equitable set-off applied given the close connection between the parties and transactions, and the manifest inequity of requiring Algoma to pay Portco while the parent company (EGFL) failed to pay the promissory note.

However, the court denied the second declaration, holding that it would contradict a prior oppression judgment and an assignment agreement which explicitly required the GIP Loan to be paid in full in cash before Algoma could terminate the Port Agreements.

The Applicants, a group of Essar Steel Algoma entities, brought two motions in their CCAA proceedings: (i) for approval of a DIP extension agreement with existing DIP lenders, and (ii) for the appointment of a restructuring committee.

The DIP extension was opposed by various stakeholders including the USW, retirees, and GIP Primus, LP, who argued against the short term and potential leverage of the existing DIP lenders who were also Term Lenders.

The court dismissed the DIP extension motion, finding it would not enhance the prospects of a viable restructuring outcome, citing concerns about the alignment of interests between DIP and Term Lenders and the short-term nature of the proposed extension.

The motion for a restructuring committee was also dismissed, as the court found it would create unnecessary overlap with the existing Chief Restructuring Advisor and would not effectively address the core issues preventing restructuring, primarily labour negotiations.

GIP Primus, L.P. and Brightwood Loan Services LLC ("GIP"), along with Portco, brought motions seeking orders for Essar Steel Algoma Inc. ("Algoma") to resume payments under a Cargo Handling Agreement, including arrears, and for a priority charge in the alternative.

The motions were based on section 11.01(a) of the CCAA, arguing that Portco provided critical services or licensed property.

The court dismissed the motions, reiterating previous findings that Portco did not provide services or a license, and that the arguments were previously decided.

The court also declined to grant a critical supplier charge under section 11.4 or the general discretion of section 11 of the CCAA, citing lack of application by the debtor, prior rulings, and potential breach of DIP loan terms and prejudice to other creditors.

Essar Capital Limited and USW Local 2251 brought motions within a Companies’ Creditors Arrangement Act (CCAA) proceeding.

Essar Capital sought to re-open the Sale and Investment Solicitation Process (SISP) and compel the disclosure of information to Essar Global for a potential bid.

Local 2251 sought court advice on engaging in discussions with Ontario Steel Investments Ltd. regarding potential transactions.

The court dismissed both motions, finding no basis to interfere with the established SISP, noting Essar Global's prior failure to demonstrate financial capability and the lack of a formal bid from Ontario Steel.

The court emphasized the need to maintain the integrity of the court-ordered process and avoid delays detrimental to the restructuring.

The applicants, a group of Essar Steel Algoma entities under CCAA protection, moved for court approval of a Term Sheet with Cliffs Mining Company for the supply of iron ore pellets.

The motion was opposed by USW Locals and Algoma retirees, who sought disclosure of commercial terms and objected to provisions preventing disclaimer of the agreement and allowing Cliffs to terminate if an Essar Global entity acquired Algoma.

The court approved the Term Sheet, finding it beneficial for Algoma's restructuring by ensuring a stable and technically suitable iron ore supply.

The court dismissed the objections, emphasizing the urgency of approval, the confidentiality of pricing, and that the Term Sheet's provisions did not unlawfully fetter judicial discretion under CCAA section 32 or unduly prejudice stakeholders.

In the context of a CCAA proceeding, Port of Algoma Inc. (Portco) brought a motion seeking an order compelling the debtor, Essar Steel Algoma Inc., to make post-filing payments under a Cargo Handling Agreement and for an administrative charge.

The court dismissed the motion, finding it premature as the Monitor was directed to commence an oppression proceeding regarding the underlying related party transactions.

The court also rejected Portco's renewed arguments under section 11.01(a) of the CCAA, noting they had been decided in a prior motion, and declined to lift the stay of proceedings, emphasizing that doing so would be contrary to the interests of the stakeholders and the restructuring process.

In CCAA restructuring proceedings, the applicants sought approval of a key employee retention plan (KERP) for 23 management employees and a related charge securing payment obligations.

Unions opposed the motion, arguing insufficient disclosure, excessive compensation, and lack of consultation.

The court held that s. 11 of the Companies’ Creditors Arrangement Act provides jurisdiction to approve a KERP and applied established factors including the importance of management continuity, support from the monitor and secured creditors, and the business judgment of the board.

Finding the participants critical to the restructuring and the process for establishing the KERP robust, the court approved the plan and associated charge.

The court also granted a sealing order over confidential information identifying participants and compensation amounts.