Gavin Hamish Finlayson

The court considered whether the plaintiffs could post security for costs by way of a third-ranking charge against real property, rather than in cash or by letter of credit.

The court found that the plaintiffs had not provided sufficient sworn evidence regarding the value and equity of the property, nor had they demonstrated that the proposed security would be a reliable and accessible source of funds for the defendants.

The court declined to approve the third-ranking mortgage as security and ordered that security be posted in an acceptable form, such as cash or a letter of credit, extending the deadline for posting security by one week.

The plaintiffs sought an interlocutory injunction against the defendants for passing off their sports hydration products (Cwench) as the plaintiffs' (BioSteel).

The plaintiffs alleged that Cwench's products, flavors, and packaging ("get-ups") were confusingly similar to BioSteel's.

The court dismissed the injunction request, finding that the plaintiffs failed to establish a strong prima facie case or a serious issue to be tried regarding goodwill in their product's get-ups, misrepresentation causing confusion, or actual/potential damages.

The court determined the injunction was mandatory, requiring a higher "strong prima facie case" standard, and found that similarities were common industry features or functional choices, and evidence of consumer confusion was insufficient.

LTL Management LLC, an indirect subsidiary of Johnson & Johnson, sought recognition of its second US Chapter 11 bankruptcy proceeding as a foreign main proceeding under the Companies’ Creditors Arrangement Act (CCAA) in Canada.

This application followed the dismissal of its initial Chapter 11 filing due to insufficient immediate financial distress.

The new Chapter 11 was based on a negotiated Plan Support Agreement establishing an $8.9 billion trust for talc-related claims.

The Ontario Superior Court of Justice granted the recognition order, along with ancillary relief including a stay of proceedings against LTL and related Canadian co-defendants, and the appointment of Ernst & Young Inc. as Information Officer.

The court found the US proceeding to be a foreign main proceeding, with LTL's Centre of Main Interests (COMI) in the United States, and that the relief was appropriate to coordinate proceedings and ensure equal treatment of talc-related claims.

The application was unopposed.

This was a summary judgment motion brought by Andrew Cole and Andrew Cole Corporation, defendants to a counterclaim, seeking to dismiss the counterclaim advanced by Demilec Inc. Demilec alleged that Mr. Cole, as Executive Director of the Canadian Urethane Foam Contractors Association Inc. (CUFCA), acted out of self-interest by developing a competitive product, improperly certifying a competitor's product, and sending misleading emails.

The court found that Demilec failed to provide sufficient evidence to establish a genuine issue requiring a trial.

The allegations against Mr. Cole involved conduct undertaken in his capacity as a CUFCA employee, and no personal liability was established.

The motion was granted, and the counterclaim against Andrew Cole and Andrew Cole Corporation was dismissed.

The court dismissed two motions seeking to consolidate other proceedings with a main action scheduled for trial.

The first motion, brought by the defendants, sought to consolidate the main action with a separate claim against former employees for breach of fiduciary duty (the "Brampton action").

The second motion, brought by 320 Bronte Road Inc., sought to consolidate its newly commenced action (alleging misconduct by the plaintiffs) and the Brampton action with the main proceeding.

The court found that the issues in the various proceedings were distinct, and consolidation would cause significant delays to the fixed trial date.

It concluded that any theoretical benefits of judicial economy or avoiding inconsistent findings were outweighed by the practical concerns of delay and managing unwieldy, disparate claims.

The court also criticized 320 Bronte Road Inc. for failing to follow proper Commercial List scheduling protocols.

A class action was brought against an auditor for negligently auditing Form 9 reports filed with the Ontario Securities Commission that falsely confirmed a securities dealer's compliance with segregation and minimum capital requirements.

The dealer subsequently failed and investors lost millions.

The motion judge granted summary judgment for the class, finding the auditor owed a duty of care.

The Court of Appeal reversed, holding that no duty of care existed because there was insufficient proximity between the auditor and the class members.

The class members never saw or knew of the Form 9 reports, made no representations to them, and the interposition of the OSC and the dealer between the auditor and the class rendered the relationship too remote.

The plaintiff, Barry Lavender, representing a class of investors, moved for summary judgment on five common issues in a class action against Miller Bernstein LLP, the auditor of a defunct securities dealer, Buckingham Securities.

The class members suffered $10.6 million in losses due to Buckingham's failure to segregate client assets and maintain minimum capital, which the defendant auditor negligently failed to report in Form 9s filed with the Ontario Securities Commission (OSC).

The court applied the Anns-Cooper analysis to establish a duty of care owed by the auditor to the class members, finding sufficient proximity and foreseeability, and no concerns of indeterminate liability.

The court found that Buckingham was required to segregate assets and failed to do so, and that the defendant breached its duty of care, causing damages.

However, the court could not determine the quantum of damages on a class-wide basis from the evidence presented.

Self-represented long-term disability beneficiaries sought leave to appeal a sanction order from the Superior Court of Justice in the Nortel Networks CCAA proceedings.

The applicants challenged their binding status under the 2009 Representation Order for Disabled Employees and the 2010 Employee Settlement Agreement.

The Court of Appeal dismissed the motion for leave to appeal, finding that the stringent test for leave in CCAA proceedings was not met.

The proposed appeal lacked merit, the applicants were bound by the settlement agreement, and further delays in the protracted litigation were to be avoided.

The court also rejected a late-filed notice of constitutional question challenging sections 6(1) and 11 of the CCAA.

The applicants sought approval under the Companies’ Creditors Arrangement Act for a sale of substantially all of their assets following a court‑approved sales and investor solicitation process.

The court considered the statutory factors in s. 36 of the CCAA, including the fairness and reasonableness of the process, the role of the monitor, consultation with creditors, and the adequacy of the consideration.

A late competing bid was rejected to preserve the integrity of the court‑approved sales process.

The court also addressed priority issues involving a DIP lender, secured creditors, and potential claims to HST refunds under the Financial Administration Act.

The proposed transaction and distribution scheme were approved as fair and reasonable in the circumstances.