Ewa Krajewska

In an administrative law appeal concerning federal telecommunications regulation, the Court interpreted the term “transmission line” in ss. 43 and 44 of the Telecommunications Act and the scope of the CRTC’s access-regime jurisdiction over public property.

The majority held that “transmission line” refers to wireline infrastructure and does not include 5G small cell antennas, so the CRTC cannot adjudicate access disputes for antenna siting under that regime.

The Court emphasized text, context, legislative history, and statutory purpose, including Parliament’s allocation of antenna site-approval powers under the Radiocommunication Act.

A two-judge dissent would have interpreted the term to include 5G small cells based on ordinary meaning, statutory coherence, and technological neutrality.

The appeal was dismissed with costs to specified respondents.

This decision addresses a motion for leave to intervene in an appeal concerning a s. 15 Charter challenge to COVID-19 benefit programs.

The Canadian Civil Liberties Association (CCLA) and the Income Security Advocacy Centre (ISAC) sought leave to intervene as friends of the court.

The appellant consented to both interventions, while the respondent opposed ISAC's motion.

The court granted both motions, finding that both interveners would provide unique and useful contributions, particularly on issues of remedy, retroactive application of invalidity declarations, and the application of substantive equality analysis in the context of disability and income security programs.

The Mizrahi Defendants sought to stay or dismiss the action brought by 2694128 Ontario Inc. under Rules 21.01(3)(d) or 25.11 of the Rules of Civil Procedure or s. 106 of the Courts of Justice Act, arguing that contractual preconditions for the action had not been met.

Specifically, they contended that 2694128 Ontario Inc. could only demand repayment if CERIECO had made a demand under a separate Supplier Credit Agreement (SCA), and that CERIECO was precluded from doing so by a Standstill Provision in a Subordination Agreement.

The court found that while 2694128 Ontario Inc. had made a demand for repayment, it was not plain and obvious that CERIECO's prior demands for repayment under the SCA were invalid or prohibited by the Standstill Provision.

The court determined that the interpretation of the interrelated agreements required a deeper analysis of the factual matrix, which is not suitable for a preliminary motion.

Consequently, the motion to stay or dismiss the action was dismissed.

This endorsement addresses a plaintiff's motion for leave to amend its statement of claim and the costs of both this motion and an earlier motion to dismiss/stay.

The court had previously stayed claims related to the recovery of subordinated indebtedness due to a standstill provision but allowed other claims, such as those for fraud and conspiracy related to unauthorized agreements, to proceed with leave.

The plaintiff sought to include claims for damages from unauthorized loan transactions, knowing assistance, breach of fiduciary duty, fraud, conspiracy, punitive damages, and oppression remedy.

The court permitted claims for damages from unauthorized transactions, knowing assistance, breach of fiduciary duty, fraud, and conspiracy, finding they fell outside the standstill provision.

However, claims for punitive damages equal to the subordinated indebtedness were disallowed as a disguised attempt to recover prohibited amounts.

The oppression remedy claim was also denied, as the plaintiff failed to establish a proper complainant status independent of its prohibited creditor capacity.

The Mizrahi Defendants, as the overall successful parties on the stay motion and more successful on the leave to amend motion, were awarded partial indemnity costs for both motions.

The applicant, PricewaterhouseCoopers Inc. (Bridging Receiver), sought an order to appoint Richter Inc. as receiver and manager over Northern Citadel Capital Inc., One8One Davenport Inc., and 181 Davenport Retail Inc. due to an outstanding and defaulted loan.

Northern Citadel and One8One did not oppose the appointment but challenged its scope. 181 Retail opposed the appointment entirely, arguing its obligations were limited to a repaid loan and its security should have been discharged.

The court found the loan was in default and the contractual documents clearly established 181 Retail's liability as a guarantor for the full loan amount, rejecting arguments based on subjective intent or unfulfilled discharge instructions.

The court granted the appointment of Richter as receiver over all respondents but denied the Bridging Receiver's requests for sweeping investigative powers and immediate authorization to assign respondents into bankruptcy, deeming them unnecessary at that stage.

This endorsement addresses a motion brought by a non-party, Khashayar Khavari, seeking leave to intervene as an added party in a receivership application.

The applicant, PricewaterhouseCoopers Inc. (as court-appointed receiver of Bridging Finance Inc.), sought to appoint a receiver over the respondents, Northern Citadel Capital Inc., One8One Davenport Inc., and 181 Davenport Retail Inc. Khashayar Khavari claimed an equity interest in the respondent companies, which was subject to ongoing litigation, and argued he had an interest in the subject matter or could be adversely affected by the receivership order.

The motion was opposed by both the Bridging Receiver and the Respondents.

The court dismissed the motion, finding that Khashayar Khavari was a stranger to the debtor-creditor relationship, had no direct economic interest in the receivership application, and would not be unduly prejudiced as he could participate as an interested person on the service list.

The plaintiffs brought a motion for a Mareva injunction and a Norwich Order against the defendants, alleging they were defrauded of $775,000 through a fake cannabis business investment scheme.

The court found a strong prima facie case of fraud and a serious risk of asset dissipation, granting the Mareva injunction to freeze the defendants' assets.

The court also granted a Norwich Order compelling third-party financial institutions to produce banking records to trace the misappropriated funds.

The Mizrahi Defendants brought a motion to dismiss or stay the plaintiff's action based on a standstill provision in a Priority, Subordination and Standstill Agreement.

The plaintiff, a subordinated lender for a construction project, sued for $200 million in damages and other relief.

The court found that the plaintiff's claims fell squarely within the standstill provision, which prohibited enforcement actions until senior lenders were repaid.

The court rejected the plaintiff's argument that the enforceability of the agreement was in play, as it was not pleaded.

The action was stayed for 30 days to allow the plaintiff to draft a new statement of claim for claims not covered by the standstill provision, after which the action would be dismissed.

The Attorney General of Ontario brought a motion to seal the entire court file in a civil action for wrongful arrest, arguing it was necessary to protect the integrity of an ongoing criminal proceeding.

The plaintiffs consented to sealing but sought additional terms, while the Toronto Star opposed the broad sealing order.

The court found that sealing the entire file was overly broad and violated the open court principle, ordering instead that only the unredacted amended statement of claim containing Stinchcombe disclosure be sealed.

The applicant hotel sought a declaration from the Superior Court of Justice that it was eligible for electricity rebates under the Ontario Rebate for Electricity Consumers Act 2016 and the Ontario Fair Hydro Plan Act.

The respondent local electricity distribution company brought a motion to stay the proceedings, arguing the matter fell within the exclusive jurisdiction of the Ontario Energy Board.

The court granted the motion and stayed the application, finding that the substance of the dispute involved enforceable provisions under the Ontario Energy Board Act, granting the Board exclusive jurisdiction.

The applicant widow brought a constitutional challenge against the eligibility criteria for liver transplants, arguing that the requirement for patients with alcohol-related liver disease to demonstrate abstinence or undergo rigorous multidisciplinary screening discriminated against them on the basis of their alcohol use disorder.

The court found that while the estate had standing to bring the claim, the challenge to the historical six-month sobriety rule was moot.

On the merits of the current criteria, the court held there was no violation of sections 15(1), 7, or 12 of the Charter, as the criteria were based on the best available medical evidence to allocate scarce organs to those most likely to have successful outcomes.

The court also found that the living donor program criteria were clinical policies not subject to Charter scrutiny.

The Bank of Nova Scotia Trust Company, as Estate Trustee, sought the court's advice and directions regarding the Will of Elizabeth Charles, specifically concerning her son Robert Charles's option to purchase the deceased's property using his residual inheritance and his obligation to pay occupation rent.

The court ruled that Robert could not use his undetermined residual share to purchase the property, as the Will required a cash purchase and his share was subject to outstanding passing of accounts and hotchpot accounting.

The court also ordered Robert to pay occupation rent from May 1, 2021, finding no juristic reason for his continued rent-free occupancy after the purchase option expired.

The applicant brought a motion to enforce Minutes of Settlement regarding her late parents' estates.

The parties disputed the valuation date for real estate joint ventures and corporate shares used to fund a $4.9 million preference payment to the applicant.

The applicant argued for 2010 valuations, which would grant her the subsequent appreciation in value, while the respondent argued for current valuations.

The court held that, based on an objective interpretation of the settlement and the general rule for estate distributions, the assets must be valued at a date proximate to their distribution.

Appeals from determinations made by an application judge regarding the will of the late Peter Trezzi.

The deceased operated a successful construction business through two corporations: Across Canada Construction Ltd. (ACC) and Trezzi Construction Ltd. (Trezzi Construction).

Peter was the sole shareholder of Trezzi Construction.

The central disputes concerned whether Peter could effectively bequeath assets held by Trezzi Construction to his son Albert; whether his wife Gina owned 50 per cent of ACC shares; and whether Gina was entitled to an extension of time to file a surviving spouse's election under the Family Law Act.

The Court of Appeal dismissed all three appeals, upholding the application judge's determinations on each issue.

Appeals from determinations made by an application judge regarding the will of the late Peter Trezzi.

The deceased operated a successful construction business through two corporations: Across Canada Construction Ltd. (ACC) and Trezzi Construction Ltd. (Trezzi Construction).

Peter was the sole shareholder of Trezzi Construction.

The central disputes concerned whether Peter could effectively bequeath assets held by Trezzi Construction to his son Albert; whether his wife Gina owned 50 per cent of ACC shares; and whether Gina was entitled to an extension of time to file a surviving spouse's election under the Family Law Act.

The Court of Appeal dismissed all three appeals, upholding the application judge's determinations on each issue.

This costs endorsement followed multiple motions concerning the administration of the Estate of Peter Trezzi.

The court applied the modern approach to costs in estate litigation, considering public policy factors and the general civil litigation costs regime.

Costs were determined for four main matters: ownership of 18 Boyle Drive, extension of the applicant's Family Law Act rights, corporate assets, and share ownership of Across Canada Construction Ltd. The court also addressed costs for an adjournment motion, production orders, and consent orders.

The decision allocated costs between parties and the Estate, often finding that the Estate should bear costs due to issues arising from the deceased's actions or ambiguities in the will.

This application concerned the legal definition of death and the withdrawal of life support for Shalom Ouanounou, a devout Orthodox Jew, who was declared brain dead but whose family believed he was alive under Jewish law.

The applicant sought an injunction to prevent the withdrawal of life support, rescission of the initial death certificate, and a declaration that the Consent and Capacity Board had jurisdiction over such disputes.

Following Ouanounou's natural death, the court considered whether the application was moot.

Citing a recent decision in *McKitty v. Hayani*, which addressed similar issues, the court found the application moot as there was no longer a live controversy and declined to exercise its discretion to hear the academic issues.

Alfrida Gina Trezzi sought a declaration that she was a 50% owner of Across Canada Construction Ltd. (ACC) shares.

Albert Trezzi opposed, arguing her claim was statute-barred and that she was not a shareholder.

The court dismissed the limitation period argument.

However, the court found no evidence that ACC ever issued shares to Gina, despite unexecuted organizational documents suggesting a 50/50 split with Peter Trezzi.

The court rejected the application of statutory presumptions under the Business Corporations Act and Securities Transfer Act, concluding Gina failed to prove her ownership claim.

Albert's cross-application for a declaration that Peter's estate owned all shares was also declined as the hearing only addressed Gina's alleged ownership.

The University of Toronto Graduate Students’ Union (UTGSU) challenged a referendum on its continued membership in the Canadian Federation of Students (CFS) and CFS-Ontario (CFS-O), arguing that the Chief Returning Officer (CRO) made unreasonable decisions regarding polling stations and mail-out ballots, which led to a failure to meet quorum.

The CFS sought a declaration that UTGSU remained a member.

The court found that the relationship between the organizations and their members was contractual, governed by bylaws.

The court declined to imply a term into the bylaws to alter quorum calculation for disenfranchised voters.

It also found that the CRO's decisions were within his discretion and not made in bad faith, applying a subjective standard to his judgment.

Consequently, the court granted the CFS's application, declaring UTGSU's continued membership, and dismissed UTGSU's counter-application.

The defendants brought a motion to remove the plaintiff's law firm due to a conflict of interest.

A partner at the firm had acted for one of the defendants in two unrelated mortgage transactions, receiving confidential financial information, while the firm was concurrently representing the plaintiff in an action against that defendant.

The court applied the bright line rule against concurrent representation of adverse interests and found that the firm failed to conduct a proper conflicts check.

The motion was granted and the law firm was disqualified from representing the plaintiff.