Eliot N. Kolers

Motions for leave to appeal from an order of the Superior Court of Justice dismissing a motion to require Algoma to resume payments under a Cargo Handling Agreement in the context of CCAA proceedings.

The applicants sought to invoke section 11.01(a) of the Companies' Creditors Arrangement Act to compel payment for post-filing services.

The motion judge had dismissed the motion three times on the same legal grounds.

The Court of Appeal dismissed the leave motions, finding no prima facie merit due to issue estoppel and no significance to the practice, as the issues were specific to the unique agreements underlying the Port Transaction.

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.

The plaintiffs brought a class action alleging that numerous financial institutions conspired to manipulate the foreign exchange market.

The plaintiffs reached early settlements with three groups of defendants (UBS, BNP, and Bank of America) totaling $15,950,000.

The plaintiffs sought court approval of the settlements and Class Counsel's fee request.

The court approved the settlements, finding them fair, reasonable, and in the best interests of the class, particularly given the litigation risks and the value of the settling defendants' cooperation.

The court also approved Class Counsel's fee request of $3,987,500 plus disbursements.

The representative plaintiff, Fanshawe College, sought to amend the class definition in a certified class proceeding alleging price-fixing of LCD panels.

Two amendments were proposed: a broad "all purchasers' amendment" to include all direct and indirect purchasers, and an "alternative amendment" to expand the list of named OEMs and distributors.

The court denied the "all purchasers' amendment" finding it an abuse of process as it attempted to re-litigate an issue previously abandoned and decided by the certification judge.

However, the court granted the "alternative amendment" as it was specifically contemplated by the certification judge and the claims were not found to be time-barred.

The moving party corporation sought leave to appeal an order dismissing its motion to set aside or stay an interim payment order requiring it to advance legal fees to a former officer facing criminal charges in the United States.

The moving party argued that a recent jury verdict of guilty in the US constituted sufficient evidence of mala fides to overcome the indemnification obligation.

The Divisional Court dismissed the motion for leave to appeal, finding no conflicting decisions and no reason to doubt the correctness of the motion judge's decision, as the US verdict had not yet been entered as a final judgment and the risk of non-repayment did not constitute irreparable harm.

The moving parties sought directions on whether they required leave to appeal an order made by a CCAA judge dismissing their jurisdictional challenge to a contract dispute motion brought by the responding parties.

The moving parties also sought a stay of the contract dispute motion pending their appeal.

The responding parties brought a cross-motion to expedite the hearing of the leave to appeal motion.

The Court of Appeal held that the CCAA judge's order was 'made under' the CCAA, meaning leave to appeal was required under s. 13.

The Court expedited the leave to appeal motion and granted a stay of the contract dispute motion pending the determination of the leave motion, finding that the balance of convenience favoured a stay.

In a CCAA restructuring proceeding, the moving parties (Cliffs) brought a motion objecting to the jurisdiction of the Ontario Superior Court to hear a dispute over a terminated iron ore supply contract.

Cliffs argued that the contract was governed by Ohio law and that Ohio was the convenient forum.

The court dismissed the motion, finding that it had jurisdiction simpliciter because the contract was made in Ontario and Cliffs carried on business in Ontario.

Applying the single control model for insolvencies, the court held that the dispute should be resolved within the CCAA proceedings.

The court also found that Cliffs failed to establish that Ohio was clearly a more appropriate forum.

The applicants, trustees of Central GoldTrust and Silver Bullion Trust, brought an application to the Ontario Securities Commission regarding unsolicited take-over bids by Sprott.

The applicants argued the bids violated the identical consideration requirement of the Securities Act and were contrary to the public interest due to misleading statements, confusing structure, and a variation amending powers of attorney.

The Commission found it had jurisdiction to hear the application but concluded the bids did not violate the identical consideration requirement.

However, the Commission found the disclosure regarding the variation to the powers of attorney was inadequate and ordered Sprott to issue a notice of change in information providing clear disclosure to unitholders before proceeding with the bids.

The representative plaintiff in a proposed national class action alleged that multiple manufacturers conspired to fix prices of polyurethane foam and carpet underlay products.

The plaintiff brought a motion seeking court approval of several negotiated settlement agreements with numerous defendants totaling approximately $29.28 million for the benefit of the class, along with cooperation provisions to assist claims against remaining defendants.

An objector argued that the settlements should not be approved until a distribution protocol and damages analysis were finalized.

The court held that settlement approval can properly occur before approval of a distribution protocol and that the negotiated settlements were fair, reasonable, and in the best interests of the class given the complexity, litigation risk, and absence of meaningful objections.

The settlements were therefore approved.

In a proposed price-fixing class action involving lithium ion batteries, both sides brought refusals motions arising from cross-examinations conducted in advance of certification.

The court held that questions probing how class counsel came to act for the proposed representative plaintiffs, and requests for a retailer plaintiff’s business documents, were not relevant to the certification criteria.

However, questions to the plaintiffs’ expert about whether inclusion of contract phone purchasers complicated pass-through analysis were relevant to testing the expert’s methodology and had to be answered.

Questions to defence witnesses about alleged meetings and documents referenced in a related U.S. proceeding were refused as going to the merits rather than certification.

This costs endorsement followed prior motion rulings concerning advancement and indemnification related to U.S. criminal proceedings.

The court held the successful party was entitled to full indemnity costs because the motion costs fell within the defined term “Legal Fees” under an earlier order governing advancement rights.

The court rejected objections based on alleged duplication of counsel and excessive staffing, particularly where the responding party provided no evidence of its own costs.

The only reduction concerned the investigator’s account, which was cut by 50 percent for attendance at discoveries.

Full indemnity costs were then fixed in the amount stated in the endorsement, plus a separate U.S. dollar amount.

The moving parties sought interim and interlocutory injunctive relief to prevent unilateral termination of an affiliate property manager under a co-owners agreement and property management agreement governing a jointly owned commercial plaza.

The court found a strong prima facie case that the responding parties had acted unilaterally and in clear breach of the contractual unanimity requirements, and rejected the asserted conflict-based disenfranchisement of the moving parties at the co-owners committee meeting.

However, the motion failed because the alleged harm was compensable in damages and the evidence did not establish irreparable harm arising from the management dispute or ongoing tenant negotiations.

Although the balance of convenience favoured maintaining the status quo, the injunction was dismissed and no costs were awarded.

The appellant appealed an order striking his counterclaim without leave to amend.

The counterclaim alleged that the respondent made misleading statements to the US Department of Justice, resulting in his indictment.

The motion judge found the counterclaim rested entirely on malicious prosecution, which requires the prosecution to have terminated in the plaintiff's favour.

Because the prosecution was ongoing, the claim was premature.

The Court of Appeal agreed and dismissed the appeal.

The appellant, Barclays Bank PLC, appealed a trial judgment finding its Notice of Early Termination of a complex asset-backed commercial paper transaction invalid and the respondent Devonshire Trust's Notice of Early Termination valid.

The Court of Appeal upheld the trial judge's findings that Barclays' notice was invalid due to its fraudulent misrepresentation, bad faith, and the principle that a party cannot benefit from its own wrong, as Barclays' failure to make liquidity payments contributed to Devonshire's insolvency.

The Court also upheld the validity of Devonshire's notice.

However, the Court allowed the appeal in part regarding the calculation of Barclays' Settlement Amount, substituting a figure of $264 million for the trial judge's $12,000 valuation, subject to deductions for mitigation.

In a proposed national class proceeding alleging a price‑fixing conspiracy in the market for DRAM semiconductor devices, the representative plaintiffs sought approval of four additional settlement agreements with certain defendants and approval of class counsel fees.

The court assessed whether the negotiated settlements were fair, reasonable, and in the best interests of the class under the Class Proceedings Act, 1992.

Although no finalized distribution protocol for settlement funds had yet been developed, the court concluded the settlements—totaling $23.325 million and including cooperation provisions—were reasonable given litigation risk and the benefit of cooperation against non‑settling defendants.

The court also scrutinized class counsel’s request for a 30% contingency fee of approximately $7.13 million.

Finding that percentage excessive at this stage of the proceedings, the court reduced the fee award to 20% of total settlements achieved to date and approved an interim fee of $4,180,345.59.

The plaintiffs brought a motion to certify two actions as class proceedings for settlement purposes under the Class Proceedings Act, 1992 in relation to alleged price-fixing of DRAM (dynamic random access memory) devices.

The actions alleged breach of Part IV of the Competition Act, civil conspiracy, and tortious interference with economic interests against numerous international semiconductor manufacturers.

Following earlier settlement with one defendant, additional settlements were reached with several defendants totaling substantial monetary payments and cooperation commitments.

The court held that the criteria for certification under s. 5(1) of the Class Proceedings Act, 1992 were satisfied and approved certification for settlement purposes.

The court further determined that no additional opt‑out period was required because class members had already been provided a valid opportunity to opt out during the earlier settlement process.

The defendants sought an order in the nature of an appeal from a construction lien master’s report confirming liability arising from renovation work performed on the defendants’ home.

The master found that although the corporate plaintiff was not the direct contracting party, recovery was available on the basis of unjust enrichment given the services and materials supplied and the essential connection between the corporate entity and the individual who performed the work.

The defendants argued the master exceeded jurisdiction under the Construction Lien Act and erred in awarding equitable relief and in recognizing a subcontractor’s lien entitlement.

The court held that the statutory scheme provides broad authority to resolve all matters arising from the lien action and permits personal judgment even where a lien fails.

Finding no palpable or overriding error, the court confirmed the master’s report.

Following a prior decision granting partial relief to the applicants with no order as to costs, the respondents sought to vary the costs order based on a Rule 49 offer to settle.

The respondents argued they were entitled to substantial indemnity costs or, alternatively, partial indemnity costs following the offer because the judgment was no more favourable than the offer.

The court rejected the claim for substantial indemnity costs and declined to vary the earlier order.

Considering the divided success and circumstances of the litigation, the court held that the original no-costs order remained appropriate.

The applicants sought to set aside a share valuation conducted pursuant to a unanimous shareholders' agreement following the exercise of a put right requiring the purchase of their minority shareholding.

The agreement required the valuator to determine fair market value using generally accepted valuation principles and provided that the valuator's determination would be final and binding.

The court held that judicial intervention is limited to circumstances where the valuator fails to comply with the contractual mandate, not merely where alleged valuation errors occur.

Most complaints raised by the applicants related to matters of professional judgment and therefore did not justify court intervention.

However, the valuator failed to comply with generally accepted valuation standards regarding the analysis of working capital.

Rather than setting aside the entire valuation report, the court ordered a limited independent analysis to determine the appropriate working capital adjustment while leaving the remainder of the valuation intact.

Following the dismissal of motions seeking injunctions preventing a retailer from using or disposing of pharmacy and patient information from pharmacies operating in its stores, the court addressed costs.

The moving parties sought substantial indemnity costs or, alternatively, no costs due to alleged improper conduct, public interest considerations, and the asserted novelty of privacy-related issues.

The court rejected those submissions and held that the successful party was entitled to costs on a partial indemnity basis.

Although the respondent claimed over $113,000, the court reduced the amount due to excessive staffing, high hourly rates, and unwarranted disbursements.

Costs were fixed at $75,000 inclusive of disbursements and taxes, payable jointly and severally by all unsuccessful parties.