Elizabeth Pillon

The appellant commenced an action against the respondents for default in payment of fees.

One of the respondents successfully moved to stay the action under s. 7 of the Arbitration Act, 1991, with the motion judge applying the competence-competence principle to defer the jurisdictional issue to the arbitrator.

The appellant appealed the stay.

The Court of Appeal dismissed the appeal, holding that the competence-competence principle applies to the Arbitration Act, 1991, and that s. 7(6) of the Act bars an appeal from a decision granting a stay on the basis that the arbitrator should determine their own jurisdiction.

The appellant insurers appealed an order requiring them to pay 90 per cent of the respondents' defence costs under a directors' and officers' liability insurance policy.

The dispute centered on whether Endorsement 3 of the policy applied to allocate defence costs for 'Hybrid Proceedings' that involved both covered and uncovered conduct, despite the claims not being made during the 2001 policy period.

The Court of Appeal dismissed the appeal, finding that the policy's definition of 'Claim' was not time-limited and that Endorsement 3 applied to allocate 90 per cent of the defence costs to the covered loss.

Following the release of reasons for decision, the respondent sought costs of the appeal on a partial indemnity basis against the appellant.

The Court of Appeal amended its previous costs order, which had awarded no costs, to award the respondent $15,000 in partial indemnity costs, taking into account the novelty of the issue and the fact that costs were only sought against the appellant.

The appellant appealed an order recognizing and implementing a U.K. court order that authorized a meeting of creditors for a scheme of arrangement.

The Court of Appeal held that the motion judge erred in relying on the Reciprocal Enforcement of Judgments (U.K.) Act, as the U.K. order was not a final judgment for the payment of money and the appellant was not served with the originating process.

However, the Court upheld the recognition order based on the common law rules of private international law, finding that the lack of finality was not a bar to recognition and that the real and substantial connection test was met.

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.

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.

The appellant insurer sought to add Livent Inc. and several of its directors as defendants by counterclaim in an action brought by outside directors to enforce a Directors and Officers Liability policy.

The insurer also sought to lift a CCAA stay of proceedings against Livent.

The Court of Appeal allowed the appeal in part, adding Livent as a party because the insurer was entitled to seek a declaration regarding the policy's validity against the policyholder.

However, the court refused to add the additional directors, finding it would unnecessarily complicate the discrete legal issue of coverage for the innocent outside directors.

The CCAA stay was lifted to the extent necessary to give effect to the order.

Parents who, for religious reasons, sent their children to private Jewish and Christian schools challenged Ontario’s refusal to fund those schools and to extend school health support services to students attending them.

The appeal raised Charter claims under ss. 2(a) and 15(1), together with the constitutional significance of s. 93 of the Constitution Act, 1867 and s. 29 of the Charter.

The majority held that the non-funding of dissentient religious schools did not violate the appellants’ Charter rights, emphasizing the constitutional structure governing denominational school rights and the absence of any positive entitlement to state support for religious education.

The majority also held that the School Health Support Services Program was properly characterized as an education service linked to the public system and therefore did not infringe the Charter.

The appeal was dismissed, with partial dissents on the equality and school health support issues.