Ellen Snow

The applicants, minority directors of a religious not-for-profit corporation, sought to oust the majority directors, alleging they breached their fiduciary duties by failing to address allegations of abuse against the organization's spiritual leader.

The respondents counter-applied to remove the applicants.

The court held that the CNCA oppression remedy did not apply retroactively.

However, under the ONCA, the court found the respondent directors breached their duty of care by conducting an inadequate investigation.

The court ordered the directors to complete the investigation using an independent investigator, but declined to remove any directors, citing reluctance to interfere in internal religious disputes.

The applicants challenged the respondent Humane Society's Board of Directors' decision to move to a closed membership model and their refusal to recognize over 100 new members who joined via an online portal.

The court found that the Board acted in bad faith by arbitrarily refusing to approve the new memberships to prevent them from voting against the new by-law.

Furthermore, the court interpreted the Not-for-Profit Corporations Act, 2010, concluding that the by-law amendments affecting membership transfers, notice, and proxy voting required a two-thirds special majority, not a simple majority.

The by-law was declared void and a new members' meeting was ordered.

SIR Corp. appealed the dismissal of its application for insurance coverage for business losses and food spoilage incurred during the COVID-19 pandemic due to government-imposed in-person dining restrictions.

The appellant sought coverage under "Civil or Military Authority" and "Ingress/Egress" clauses of its "all-risk" property insurance policy with Aviva.

The Court of Appeal dismissed the appeal, finding that the policy required direct physical loss or damage for coverage, which the government orders did not cause.

It also held that "catastrophe" in the policy was limited to events similar to "conflagration" (large-scale physical destruction) and did not include the pandemic.

The court also denied leave to appeal the costs award, upholding the application judge's decision.

Following the dismissal of the applicants' insurance coverage application, the parties made written submissions on costs.

The respondent sought $100,000 based on a pre-hearing costs agreement, or alternatively $254,566.28 on a partial indemnity basis.

The applicants argued the agreement should not be enforced because the respondent's evolving position caused them to incur significant additional costs.

The court enforced the costs agreement, finding no breach or vitiating factors, and awarded the respondent $100,000 for the application plus $8,136 for the costs submissions.

The appellants sought to overturn a summary judgment granting the respondent recovery on a $460,000 loan secured by a promissory note.

They argued the motion judge erred in applying the summary judgment test from Hryniak v. Mauldin, failing to apply the Statute of Frauds, and enforcing an oppressive interest rate.

The Court of Appeal dismissed the appeal, finding no palpable and overriding errors in the motion judge's conclusion that there was no genuine issue requiring a trial.

The court affirmed that the promissory note was valid and enforceable, the Statute of Frauds did not apply due to existing written documentation and the parties' conduct, and the agreed-upon interest rate was valid.

This endorsement concerns the costs of an injunction motion where the plaintiffs' request to prohibit the defendant Dongab Co. Inc. from exercising its power of sale on two mortgages was denied.

Dongab and Network Sewer and Watermain Ltd., the successful defendants, sought costs on a full indemnity basis, or alternatively substantial or partial indemnity.

Despite mortgage documentation calling for full indemnity, the court exercised its discretion under section 131 of the Courts of Justice Act to award costs on a partial indemnity scale, finding the requested amounts extraordinarily high and exceeding the plaintiffs' reasonable expectations.

The plaintiffs were ordered to pay $163,000.00 in all-inclusive costs.

The Plaintiffs sought an interlocutory injunction to prevent the Defendant Dongab Co. Inc. from exercising its power of sale on two mortgages secured on the Plaintiffs' property.

The Plaintiffs argued that preconditions to repayment were not met and that the Notice of Sale had deficiencies, including improper service and incorrect interest calculation.

The court found no serious issue to be tried regarding the mortgages being due and payable, the amounts owing, or the validity of the Notice of Sale.

The court determined that the Plaintiffs' arguments were tactical attempts to delay payment.

The motion for injunctive relief was dismissed.

The applicant restaurant chain sought a declaration of coverage under its commercial 'all risks' insurance policy for business interruption losses caused by government-mandated closures during the COVID-19 pandemic.

The applicant argued that coverage was triggered under the policy's civil authority and ingress/egress extensions.

The court dismissed the application, finding that the policy required 'direct physical loss or damage' to trigger coverage.

The court held that the COVID-19 virus and the resulting government orders did not cause direct physical loss or damage to the insured's property, and therefore the losses did not fall within the policy's coverage.

Following the settlement of an estate litigation dispute regarding the validity of a will, the parties sought a determination on costs.

The respondent sought partial indemnity costs from the applicant personally, claiming success in the settlement.

The applicant, as estate trustee, sought reimbursement from the estate for her legal expenses.

The court found that neither party was successful and ordered no costs as between the parties.

However, the court held that the applicant acted reasonably in defending the will and was entitled to be fully indemnified by the estate for her legal expenses in the amount of $38,676.13.

The appellants appealed decisions of the Ontario Securities Commission finding that they engaged in insider trading after receiving material non-public information from an administrative assistant at an investment bank.

The Commission relied on circumstantial evidence, including the proximity of telephone calls to highly profitable trades.

The Divisional Court dismissed the appeals, holding that the Commission's inferences were reasonable and that the use of compelled examination transcripts was procedurally fair.

The Court also upheld the sanctions, which included trading bans, administrative penalties, and disgorgement orders.

The plaintiff sued his former employer and a disability insurer for long-term disability benefits after suffering a stroke shortly after his termination.

In his reply to the employer's statement of defence, the plaintiff claimed wrongful dismissal.

The employer moved for summary judgment, arguing the reply raised a new, statute-barred cause of action.

The motion judge dismissed the motion, finding the statement of claim's factual matrix provided sufficient notice of the wrongful dismissal claim.

The Court of Appeal dismissed the employer's appeal, agreeing that the wrongful dismissal claim was not a new cause of action and came as no surprise to the employer.

Following a merits decision finding multiple respondents liable for insider trading, tipping, and misleading Staff, the Ontario Securities Commission held a hearing to determine appropriate sanctions and costs.

The Commission ordered permanent market prohibitions against the tipper and the most egregious trader, along with substantial administrative penalties and costs.

Other respondents received 15-year market prohibitions with limited carve-outs, administrative penalties, and disgorgement orders.

The Commission emphasized the importance of general and specific deterrence, particularly given the respondents' roles as registrants and their efforts to conceal their misconduct.

The appellants appealed an order validating substituted service of a statement of claim on defendants residing in Guatemala.

Guatemala is not a signatory to the Hague Convention, and service was attempted by notaries in a manner that did not comply with Guatemalan law.

The Divisional Court dismissed the appeal, upholding the motion judge's finding that Rule 17.05(2) unambiguously allows a plaintiff to choose to serve a foreign party in accordance with Ontario rules when the foreign jurisdiction is a non-contracting state.

The Court held that this express rule overrides the international principle of comity.

In a contested shareholder proxy fight arising from a requisitioned special meeting, the applicants sought court supervision over meeting procedures under the Business Corporations Act, including appointment of an independent chair and invalidation of the management proxy form.

The court held that an independent chair would not be imposed absent evidence of demonstrated impropriety or a likelihood the proposed chair would act unfairly, and speculation about associations with incumbent management was insufficient.

The court also declined to invalidate the current proxy, finding it reflected the requisitioned resolutions, did not conflict with the governing statute or securities requirements, and better avoided voter confusion.

Issues relating to compliance of the dissident slate with the corporation's by-laws and proxy inspection logistics were left to be addressed in context if necessary after the meeting.

The moving parties brought a motion to quash an appeal from an order that declared and validated service of a fresh statement of claim.

The Court of Appeal held that the order was interlocutory because it did not determine the real matters in dispute or deprive the responding parties of any substantive defence.

The motion was allowed, the appeal was quashed, and the matter was transferred to the Divisional Court where the responding parties could seek leave to appeal.

The applicant corporation sought court approval of a plan of arrangement under s. 182 of the Ontario Business Corporations Act involving the acquisition of its shares by another corporation.

Applying the framework in BCE Inc. v. 1976 Debentureholders, the court considered whether statutory procedures were followed, whether the application was brought in good faith, and whether the arrangement was fair and reasonable.

The court concluded that the arrangement had a valid business purpose, had been approved overwhelmingly by shareholders, and provided a significant premium to shareholders.

The court declined to rely on a fairness opinion contained in the management proxy circular because it constituted opinion evidence that failed to meet the admissibility requirements under the Rules of Civil Procedure, as it did not disclose the analytical basis for the opinion.

The arrangement was nevertheless approved on the basis of other admissible evidence.

Enforcement Staff of the Ontario Securities Commission brought a motion to admit into evidence selected excerpts from transcripts of compelled examinations of the respondents conducted pursuant to section 13 of the Securities Act.

The respondents opposed the motion, arguing that the admission of compelled testimony violated the Securities Act, the Evidence Act, the Charter, and principles of procedural fairness.

One respondent also brought a cross-motion seeking a confidentiality order for the motion materials.

The Commission held that compelled testimony is admissible in regulatory proceedings and is not precluded by the Charter or the Evidence Act.

However, to ensure fairness and obtain the best evidence, the Commission directed that Staff may only tender the transcripts at the conclusion of its case for those respondents who do not undertake to testify, with a limited exception for proving allegations of misleading statements.

The Commission also granted the cross-motion, ordering the motion materials to remain confidential while releasing the decision publicly.

The applicant insurer sought leave to appeal an order requiring it to pay the legal fees of Nortel's executives without reference to a $10 million retention amount or a directors and officers trust fund.

The motion judge had found that the indemnification was a pre-filing claim subject to the CCAA stay, and that allowing access to the trust would improperly elevate the insurer's priority.

The Court of Appeal denied leave, finding the motion judge's conclusions were within his expertise and entitled to deference, and the issues were specific to the case rather than of broader interest.

The Court also declined to consider fresh evidence filed by the applicant because no motion for leave to admit it was brought.

The applicant corporation sought an order under s. 133(3) of the Canada Business Corporations Act to extend the time for calling its annual shareholders’ meeting.

The application was brought on an ex parte basis because the meeting was scheduled for the following day and the corporation intended to postpone it while issuing an amended management information circular after regulatory comments.

The court declined to proceed ex parte, finding that shareholders and the Director under the CBCA were persons affected by the requested order and should receive notice.

The court also held that the applicant had failed to disclose a material fact, namely the existence of ongoing plan of arrangement proceedings that would be considered at the same shareholder meeting.

Directions were issued requiring notice to shareholders and the Director and adjourning the application.

The Court of Appeal for Ontario issued a costs endorsement following an appeal and cross-appeal.

The appellant was awarded costs of the appeal on a partial indemnity scale fixed at $45,000.

The appellant and other responding insurers were awarded additional costs fixed at $20,000.