Derek J. Bell

The defendant, Allen Tak Yuen Chan, brought a motion to permit the liquidation and transfer of funds from Hong Kong bank accounts, frozen by a worldwide Mareva injunction, to pay for his legal fees and disbursements in defending the proceedings.

The plaintiff opposed, arguing the defendant had other available funds and was engaged in fraudulent conduct.

The court applied the four-factor test from *Canadian Imperial Bank of Commerce v. Credit Valley Institute of Business and Technology*, finding that the defendant had met the test for accessing non-proprietary assets to cover reasonable legal costs.

The motion was granted, subject to the Hong Kong Court's decision regarding its own non-dissipation order over the same funds.

Trinity Western University (TWU), an evangelical Christian university, sought accreditation from the Law Society of Upper Canada for its proposed law school.

TWU requires students to sign a community covenant prohibiting sexual intimacy outside of heterosexual marriage.

The Law Society denied accreditation, finding the covenant discriminated against the LGBTQ community.

TWU appealed the Divisional Court's dismissal of its judicial review application.

The Court of Appeal dismissed the appeal, holding that the Law Society's decision was subject to a reasonableness standard of review.

The Court found that while the denial of accreditation infringed TWU's freedom of religion under s. 2(a) of the Charter, the Law Society reasonably balanced this infringement against its statutory mandate to protect the public interest and ensure equal access to the legal profession.

The defendant sought leave to appeal an order dismissing his motion to set aside a worldwide Mareva injunction.

The injunction was originally granted ex parte in an action alleging the defendant perpetrated a massive fraud while CEO of Sino-Forest Corporation.

The Divisional Court denied leave on the issues of whether there was a prima facie case of fraud and risk of asset dissipation.

However, the court granted leave to appeal on three questions: whether an Ontario court can grant a Mareva injunction when the defendant has no assets in the jurisdiction, whether the undertaking as to damages provided by a non-party was sufficient, and whether that undertaking adequately protected the defendant's costs.

In a securities class action arising from the collapse of a forestry company, the plaintiffs sought approximately $2.6 million in costs following certification and leave motions brought under the Class Proceedings Act, 1992 and the Securities Act.

Several defendants argued that costs should not be awarded because the plaintiffs had already recovered legal expenses through settlements with other defendants and because the claimed costs were excessive.

The court held that the plaintiffs were largely successful but not entirely successful due to an unresolved assignment issue affecting certain class members.

The court also ruled that disbursements could not be recovered again because they had already been indemnified through settlements.

Exercising its discretion, the court ordered a hybrid costs award: part payable immediately and part payable in the cause.

The applicants, Central GoldTrust and Silver Bullion Trust, sought declarations and injunctive relief to stop hostile takeover bids by the respondents.

The applicants argued the bids violated advance notice by-laws, proxy solicitation rules, and withdrawal rights under the Securities Act.

The respondents cross-applied to invalidate defensive amendments made by the applicants' boards to their declarations of trust.

The court dismissed the applicants' requests to enjoin the bids, finding no violation of proxy rules or advance notice by-laws, but ordered a minor amendment to the powers of attorney regarding withdrawal rights.

The court granted the respondents' cross-application, invalidating the defensive amendments as they were enacted primarily to thwart the takeover bids.

The applicant sought declaratory relief that its contractual option to acquire up to a 20 percent interest in an LNG terminal project remained valid despite the project's evolution from an import facility to an export facility.

Applying orthodox contractual interpretation principles, the court held the project had evolved but had not become a brand-new project, and the option therefore continued to attach to the existing development.

The court further implied a term requiring disclosure of sufficient financial information to permit the applicant to determine the value of the option and verify the exercise price, holding that such disclosure was necessary for business efficacy and consistent with the organizing principle of good faith in contractual performance.

The disclosure was made subject to confidentiality protections to be negotiated by the parties.

The applicant corporation sought an interim order under the Canada Business Corporations Act authorizing the calling of a shareholder meeting to consider a proposed arrangement whereby another corporation would acquire all issued and outstanding shares.

The court reviewed the limited function of interim orders in arrangement proceedings, emphasizing that the court’s role is to ensure shareholders receive proper notice and adequate information, not to approve the circular or conduct a detailed review of meeting materials.

The court also addressed concerns raised in prior jurisprudence regarding quorum requirements and the evidentiary role of fairness opinions.

It concluded that quorum size should not affect the fairness analysis if corporate by-laws are followed, and that fairness opinions serve a commercial purpose rather than functioning as litigation expert reports.

The interim order was granted with a minor procedural modification to the notice of appearance timeline.

Applicants sought protection under the Companies' Creditors Arrangement Act and an initial stay of proceedings while pursuing a restructuring and sale process.

The court found the applicants insolvent and eligible for relief, approved the appointment of a monitor, authorized DIP financing, and approved a sale and investment solicitation process.

The court also granted a stay extending to affiliated non-applicant entities due to the integrated nature of their operations.

However, the court modified the proposed initial order by preserving judicial discretion over any future termination of the CCAA proceedings, rejecting language that would have removed the court’s authority after a fixed sunset date.

The moving parties (class action plaintiffs) brought a motion to quash appeals filed by the respondent objectors.

The court found that the appellants did not have a right of appeal under s. 30(3) of the Class Proceedings Act because they were not parties to the class proceeding.

Furthermore, they did not meet the requirements of s. 30(5) as they had not obtained leave to act as a representative party for an appeal from a judgment on common issues or an aggregate assessment.

The appeals were quashed and the motion to act as representative plaintiff was dismissed.

The appellant, a former federal cabinet minister, sued the prime minister, his staff, and other officials for defamation, conspiracy, and other torts after she was removed from Cabinet and the Conservative Party caucus amid allegations of misconduct.

The motion judge struck the statement of claim, finding the claims non-justiciable due to Crown prerogative and parliamentary privilege, and that the alleged defamatory statements were either not capable of being defamatory or were protected by absolute privilege.

The Court of Appeal upheld the striking of the claims against all defendants except one Member of Parliament, finding her public statements had a possible defamatory meaning that should be determined at trial.

Invesco sought leave to appeal orders sanctioning a Plan of Compromise and Reorganization under the CCAA and approving a settlement that released Ernst & Young LLP from claims arising from its auditing of Sino-Forest Corporation.

The Court of Appeal denied leave, finding that the proposed appeals failed to meet the stringent test for leave in CCAA proceedings.

The appeal of the Sanction Order was moot, and the issues regarding the third-party release in the Settlement Order were governed by the court's prior decision in ATB Financial.

The applicants moved for an order regarding post-closing issues following a court-approved sale of properties.

The respondents sought payout on two mortgages, including compensation for future interest loss, as the mortgages were vested off title prior to maturity.

The applicants objected, arguing the mortgages were self-dealing and should not include an unbargained pre-payment penalty.

The court found that the mortgages did not contain a pre-payment privilege and that the respondents did not breach any fiduciary duty in the refinancing.

The court ruled in favour of the respondents, ordering that they be compensated for future interest loss.

The applicants moved for an order regarding post-closing issues following a court-approved sale of properties.

The respondents sought a payout on two mortgages that included a prepayment penalty for future interest loss.

The applicants argued the mortgages were self-dealing and should not include a prepayment penalty, as the original CMHC mortgages did not.

The court found that the mortgages did not contain a prepayment privilege and that the respondents were entitled to compensation for the loss resulting from the early vesting off title of the mortgages.

The court ruled in favour of the respondents.

The applicant, a unitholder in an income fund, sought an order requiring the fund's trustees to call a special meeting of unitholders to vote on a proposed transaction involving the restructuring of preference shares and secured notes.

The court found that the proposed transaction was objectively 'materially adverse' to the unitholders because it postponed payments on the secured notes.

Consequently, under the Declaration of Trust, the trustees lacked the authority to vote the fund's common shares in favour of the transaction without unitholder approval.

The court ordered the special meeting of the company to be adjourned pending a unitholder vote.

Following the striking of a statement of claim alleging conspiracy, defamation, misfeasance in public office, and related torts against numerous defendants, the court determined the quantum of costs payable on the successful pleadings motion.

Multiple defendant groups sought more than $205,000 in partial indemnity fees and over $20,000 in disbursements.

Applying Rule 57.01 of the Rules of Civil Procedure and the fairness principles articulated in Boucher, the court considered duplication of effort among separately represented defendants with similar interests.

The court concluded that substantial overlap existed between certain defendants’ legal work and therefore limited recovery to a single set of costs for those parties.

Reduced costs totalling $108,000 in fees plus $10,560 in disbursements were awarded, subject to HST.

Following a successful application under the Competition Act resulting in restitution orders and administrative monetary penalties against multiple respondents, the applicant sought partial indemnity costs of $231,768.35.

One respondent opposed the request, arguing the matter was over-lawyered, that legal research disbursements should be excluded, and that costs should be apportioned based on the relative administrative monetary penalties imposed.

The court accepted that the proceeding was complex and a matter of first impression requiring extensive investigation and research, but found some duplication of work by counsel.

The court reduced the overall fees by 15% while allowing the legal research disbursement.

Costs were ordered jointly and severally against the respondents.

The appellant appealed an order imposing a $500,000 administrative monetary penalty for misleading business practices under the Competition Act.

He argued he was deprived of a fair hearing due to ineffective counsel and sought to adduce fresh evidence.

The Court of Appeal dismissed the appeal, finding the application judge had no independent obligation to adjourn the hearing to allow the appellant to adduce evidence.

The court also upheld the quantum of the penalty and refused to admit the fresh evidence, as it would not have affected the result.

The plaintiffs brought a motion for summary judgment against the defendants for fraud, breach of trust, breach of fiduciary duty, unjust enrichment, and breach of contract arising from a fraudulent investment scheme.

The court found the defendants liable on a joint and several basis, as the uncontested evidence established that the defendants accepted funds for investment but did not invest them as promised, instead providing forged financial statements.

The court awarded damages based on the net principal invested plus compound interest, general damages for investigation costs, and punitive damages.

The applicant, Sino-Forest Corporation, sought an order sanctioning a plan of compromise and reorganization under the CCAA.

The plan was supported by the vast majority of creditors, including noteholders, auditors, and underwriters, but opposed by certain funds.

The court found that the statutory requirements were met, the creditors were properly classified, and the plan, including its third-party releases, was fair and reasonable.

The motion was granted and the plan was sanctioned.

Institutional investors sought an adjournment of a motion to sanction a restructuring plan under the Companies’ Creditors Arrangement Act, arguing that provisions in the proposed plan concerning settlements and releases for third party defendants could improperly affect their ability to pursue claims in related securities class actions.

The court reviewed the plan and concluded that approval of any specific settlement, including a proposed auditor settlement, was not before the court on the sanction motion and would require further court orders and satisfaction of multiple conditions precedent.

The court held that any potential impact on investors’ claims could be addressed in future proceedings where the specific settlements and releases would be considered.

As the objections were premature and the debtor faced time and funding constraints, the request for an adjournment was denied.