Edward J. Babin

The appellant brought a motion for summary judgment to enforce its security in convertible subordinated debentures against the respondent Brookfield, a wholly owned subsidiary of the issuer BCED.

The motion was dismissed, and the appellant appealed.

The Court of Appeal upheld the motion judge's interpretation of the trust indenture, finding that the term 'Company' in Article VII, section 7.01 referred only to BCED and its successors, not its wholly owned subsidiaries.

The appeal was dismissed.

The appellants sued the respondent for defamation, interference with economic relations, and intentional infliction of nervous shock, covering incidents before and after a June 2000 settlement agreement.

The motions judge granted summary judgment dismissing several claims, finding that a mutual release in the settlement agreement barred the pre-settlement defamation claims, even if the respondent had repudiated the agreement.

The Court of Appeal upheld the dismissal, agreeing that repudiation does not discharge matured rights like a mutual release.

The Court also upheld the dismissal of the post-settlement claims and the costs order.

The appellant corporation issued share certificates as part of a stock roll program, representing them as fully paid when they were not.

A third party pledged one of these certificates to the respondent bank as collateral for a loan.

When the borrower defaulted, the bank sought to realize on the shares, but the appellant refused to acknowledge the bank as the valid owner.

The trial judge found the bank was a good faith purchaser and granted an oppression remedy.

The Court of Appeal dismissed the appeal, holding that the bank was a good faith purchaser, the appellant was estopped from denying the validity of the certificate, and the restriction on transfer did not prevent the transfer to the bank.

The court also dismissed the third-party claim against a credit union for vicarious liability.

The court appointed an inspector to investigate the affairs of the appellant corporation and ordered the appellants to fund the inspector's work.

The appellants appealed the order and argued that the funding requirement was an 'order for the payment of money' automatically stayed under Rule 63.01(1) of the Rules of Civil Procedure.

The Divisional Court held that an order to fund a court-appointed inspector is not an order for the payment of money, as it does not give monetary relief to a party and cannot be enforced by a writ of seizure and sale.

The court declared the automatic stay inapplicable and, in the alternative, exercised its discretion to lift the stay.

The appellants' cross-motion for a stay was dismissed.

The appellants appealed an order refusing to grant a stay of proceedings in an oppression remedy case.

They argued that California courts had exclusive jurisdiction.

The Court of Appeal dismissed the appeal, finding no error in the motions judge's exercise of discretion and concluding that the oppression remedy was legitimately sought in Ontario.

Costs of $12,000 were awarded to the respondent.

In an addendum to judgment regarding costs of an appeal, the respondents sought costs totaling $132,145.72.

The appellants opposed, seeking a stay of costs for one insolvent respondent, arguing for the application of the pre-2002 party and party costs regime, and challenging the hourly rates of junior counsel.

The Court of Appeal dismissed the stay request, held that the new costs grid under O. Reg. 284/01 applies retrospectively to services rendered before January 1, 2002, and reduced the hourly rates for certain junior counsel.

Total costs of $122,998.02 were awarded to the respondents on a partial indemnity basis.

The appellants, holders of debentures issued by BCED, appealed a trial judgment finding that a series of corporate reorganizations and asset transfers did not breach a successor obligor clause in the trust indenture.

The clause prohibited BCED from transferring 'all or substantially all' of its assets unless the transferee assumed the debenture debt.

The Court of Appeal dismissed the appeal, holding that the asset transfers did not meet either the quantitative or qualitative threshold to constitute 'all or substantially all' of BCED's assets.

The Court also found that a subsequent guarantee and foreclosure did not constitute a prohibited 'transaction' under the trust indenture, as the indenture expressly permitted BCED to incur and secure senior indebtedness.