Derek D. Ricci

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.

The plaintiff, 2770095 Ontario Inc., brought a motion to set aside a prior decision dismissing its action as an abuse of process due to a champertous agreement, and to substitute Affinitas Medios de Pago S.A.P.I de C.V. as the plaintiff.

The court dismissed the motion, holding that its discretion to alter a judgment before entry is limited to technical corrections or preventing a miscarriage of justice.

The requested change was not technical, and no miscarriage of justice would occur, especially since the plaintiff had ample opportunity to amend its pleadings earlier and could still commence a new action.

Granting the relief would bring the administration of justice into disrepute given the plaintiff's prior abuse of process.

Following the approval of a Plan of Arrangement under the Canada Business Corporations Act, the successful applicant sought costs against the objecting creditors.

The objectors argued the applicant was disentitled to costs for failing to request them initially and that the quantum sought was excessive.

The court rejected the disentitlement argument, finding the objectors had notice that costs would be addressed in writing.

The court awarded $100,000 in costs, reducing the requested amount for proportionality, and ordered the costs payable jointly and severally by the objectors as they had pursued a common strategy.

The applicant mining company sought a final order approving a Plan of Arrangement under the Canada Business Corporations Act to sever ties with the Kyrgyz Republic following the state's seizure of its flagship mine.

Two unsecured judgment creditors of the Republic objected, seeking to enforce their arbitral awards against the Republic's shares in the applicant or garnish payments under the Arrangement.

The court approved the Arrangement, finding it met the statutory requirements, had a valid business purpose, and was fair and reasonable.

The court held the creditors lacked standing to oppose the Arrangement and that garnishment was inappropriate as it would result in double jeopardy.

The plaintiff commenced an action regarding a stream of royalty payments from a mine in Guatemala.

The defendants brought motions to strike the claim.

In response, the plaintiff delivered an amended statement of claim.

The defendants moved to declare the amended claim a nullity, arguing it could not be amended without leave in the face of a motion to strike.

The plaintiff brought a cross-motion for leave to amend.

The court held that while leave is required to amend a claim in the face of a motion to strike, the motion for leave should be heard first.

The court granted the plaintiff leave to amend, finding that the proposed amendments were not time-barred, did not withdraw admissions, and were sufficiently particularized.

The defendants brought a cross-motion to stay the plaintiff's Toronto action in favour of their own Windsor action, which involved the same parties and overlapping issues arising from a share purchase agreement.

The court applied the four-factor test under Rule 21.01(3)(c) of the Rules of Civil Procedure.

Although the plaintiff bore the chief burden of proof and its claim was more comprehensive, the court found that the balance of convenience overwhelmingly favoured the defendants, as the parties, the dispute, and the alleged torts were all located in Essex County.

The cross-motion was granted, and the Toronto action was stayed with leave to convert it into a counterclaim in the Windsor action.

The court issued a protective order on consent of the parties in a case involving allegations of appropriation and misuse of confidential technical and business information.

The order governs the handling and protection of confidential documents and information exchanged during discovery, requiring advance notice before filing such materials in court, but explicitly stating it does not constitute a sealing order or publication ban.

The court also provided specific case management directions for the litigation.

This is the first case management endorsement for an action accepted into the Civil Case Management Pilot Project.

The court outlined the purpose of case management, emphasizing efficiency and proportionality.

The parties had agreed on a Discovery Plan.

A joint request for a "Confidentiality Order," which constituted a sealing order, was declined without substantive determination because it required a formal motion satisfying the Supreme Court's test for restricting access to the court.

The endorsement provided specific directions for documentary production, examinations for discovery, and the scheduling of future motions, including for a sealing order or security for costs.

It also set the date for the next case management conference and general directions for cooperation and efficiency.

The plaintiffs, trustees of a pension fund, commenced a class action in Ontario and a similar one in Federal Court.

Settlements were reached with some defendants in the Federal Court action.

The plaintiffs sought court approval to discontinue the Ontario action, with prejudice and without costs, in favour of the Federal Court proceedings.

The court granted the motion, finding no prejudice to putative class members as their claims would continue in the Federal Court, and that discontinuing the Ontario action would avoid a multiplicity of proceedings.

The defendants in a class action sought a pause in proceedings, including the adjournment of a certification motion, pending a Supreme Court of Canada judgment in *Toshiba Corporation v Godfrey*.

The SCC decision was expected to clarify key issues relevant to class certification in price-fixing cases, specifically regarding "umbrella purchasers" and the economic methodology for proving common impact for indirect purchasers.

The court granted the motion, finding that a temporary pause would prevent the need for redoing expert reports and ensure the certification motion was based on the most current state of the law, thereby promoting the expeditious and efficient conduct of the litigation.

The appellant sought an order declaring that it had properly commenced an arbitration by written demand dated October 6, 2017.

The arbitration clause in the insurance contract allowed the insured to select the venue and procedural laws of Bermuda or one of London, Toronto, or Vancouver under the English Arbitration Act of 1996.

The appellant argued that while the Act was incorporated by reference, its procedural provisions were excluded for arbitrations outside the UK, and that the UNCITRAL Rules would apply instead.

The Court of Appeal disagreed, finding that the plain wording of the contract required that where Toronto was the seat chosen, the arbitration be conducted in accordance with the procedural laws set out in the Act.

The Court also declined to determine whether the arbitration had been properly commenced, reserving that question to the arbitrators.