Geoff Moysa

Aurora Cannabis Inc. launched a hostile take-over bid for CanniMed Therapeutics Inc., conditional on CanniMed abandoning its proposed acquisition of Newstrike Resources Ltd. Aurora applied to the Ontario Securities Commission and the Financial and Consumer Affairs Authority of Saskatchewan for exemptive relief to shorten the 105-day minimum deposit period for its bid and to cease-trade CanniMed's newly adopted shareholder rights plan.

CanniMed and its Special Committee brought cross-applications seeking to prohibit Aurora from using the 5% exemption for market purchases and to declare Aurora and certain locked-up shareholders as joint actors.

The panels held a joint hearing and determined that the 105-day minimum deposit period should not be shortened, as the Newstrike transaction was not an alternative transaction that extinguished shareholder interests.

The panels declined to prohibit Aurora from using the 5% exemption and found insufficient evidence that Aurora and the locked-up shareholders were acting jointly or in concert.

However, the panels found that Aurora had received material non-public information about CanniMed's acquisition plans, giving it a tactical advantage, and ordered Aurora to amend its take-over bid circular and news releases to disclose these circumstances.

Finally, the panels cease-traded CanniMed's shareholder rights plan, finding it to be an impermissible defensive tactic that interfered with the established take-over bid regime.

The applicant sought to challenge an arbitral award, arguing the arbitrator exceeded his jurisdiction by misapplying French law to read a diligent management requirement into an Earn-Out Clause, despite an Entire Agreement Clause.

The applicant also alleged a denial of natural justice due to the arbitrator's refusal to allow a sur-sur-reply.

The Superior Court of Justice dismissed the challenge, finding the arbitrator's interpretation was an unreviewable issue of mixed fact and law, not a true jurisdictional error.

The court also held the arbitrator's procedural ruling was a reasonable exercise of discretion that did not deny the applicant a fair hearing.

The respondent's parallel application to recognize the award was granted.

The moving party sought partial indemnity costs of $88,608.95 plus disbursements following a successful motion to convert the responding party's application into a counterclaim in a separate action.

The court found the costs claimed to be clearly excessive and noted the moving party failed to separate the costs of the motion from the costs of the application.

Agreeing with the responding party, the court ordered that the costs of the motion be awarded in the cause, as the merits had yet to be adjudicated and the work product would be used at trial.

Fountain Asset Corp. brought an application to enforce contractual rights to share options and warrants issued by First Global Data Limited.

First Global Data defended on the basis that the options and warrants were granted as part of a financing transaction bearing a criminal rate of interest.

First Global Data brought a motion to convert the application to an action and consolidate it with a recently commenced 2017 Action.

The court granted the motion, finding that material facts were in dispute, expert evidence was required, and there was a significant risk of inconsistent verdicts if the application proceeded separately.

The claims in the application were directed to be advanced as a counterclaim in the 2017 Action.

The applicant sought an order compelling the respondent to comply with a Divisional Court order to call a shareholders' meeting with a specific record date (October 24, 2016).

The respondent faced difficulties with its transfer agent, Computershare, in generating an omnibus proxy for the specified record date, citing standard securities communication requirements (National Instrument 54-101) and the need for a new record date.

The court clarified its jurisdiction, emphasizing that the Divisional Court had already set the record date as a fundamental element of its order.

The court found that technical compliance mechanisms like NI 54-101 and s. 95(4) of the Business Corporations Act could be overridden by court orders under s. 106 of the OBCA to achieve justice.

The court ordered a customized approach, authorizing the use of a specific report for shareholder identification and directing intermediaries to transmit meeting materials and voting preferences based on the original record date, regardless of subsequent share transfers.

The applicant, the largest shareholder of the respondent corporation, requisitioned a shareholders meeting to remove certain directors.

The board refused to call the meeting, citing the personal grievance exception under the Business Corporations Act.

The applicant sought a declaration that the requisition was valid.

The court found that the applicant's primary purpose was to redress a personal grievance rather than to address corporate policy or operations, as his actions were motivated by personal interests and a perceived lack of respect.

The application was dismissed.

The parties disputed the interpretation of a rent-reset clause in two 100-year ground leases.

The landlord appealed a Superior Court decision that set aside an arbitral award valuing the lands based on a hypothetical freehold condominium development.

The tenants cross-appealed, arguing the leasehold interest should be valued and seeking a new arbitral panel.

The Court of Appeal dismissed the appeal and cross-appeals, holding that issue estoppel applied from a 1993 decision between the parties, meaning the lands must be valued as a freehold interest but excluding the potential for freehold condominium development because the lands are subject to a lease.

The court also affirmed remitting the matter to the original arbitral panel.

The applicant sought declaratory relief that certain software licensing agreements were not part of any contract governing its use of software used in manufacturing systems and that it owed no further licensing fees.

The dispute arose after the respondents conducted an audit and claimed additional fees based on a per‑core licensing model introduced after a software upgrade.

The court held that the application procedure under Rule 14.05(3) was inappropriate where key facts regarding delivery and acceptance of licensing terms were disputed.

Because the applicant bore the onus of proving entitlement to declaratory relief and the evidentiary record was incomplete and conflicting, the court declined to determine the contractual issues on the application record.

The application was dismissed and costs were awarded to the respondents.

The tenants under two long-term ground leases appealed a majority arbitration award determining the fair market value of the lands for rent re-set purposes.

The court upheld the arbitrators' finding that the freehold interest, not the leasehold interest, was to be valued.

However, the court found the arbitrators erred in law by including the potential value of a freehold residential condominium project in the valuation, as a prior Divisional Court decision between the parties established that development potential unavailable to the tenants due to legal restrictions must be excluded.

Finding that issue estoppel applied to this prior determination, the court set aside the arbitration award and ordered a new hearing.

Following a wrongful dismissal summary judgment decision, the court determined the remaining issues of pre‑judgment interest and costs.

The defendant argued that pre‑judgment interest was unavailable because it was not awarded in the earlier endorsement, while alternatively seeking calculation on an instalment basis.

The court held that the issue could properly be determined post‑judgment and awarded pre‑judgment interest under the Courts of Justice Act using the lump sum approach because the employee received only a lump sum statutory payment on termination and would have received a lump sum payment in lieu of notice if proper notice had been given.

On costs, although the successful plaintiff sought $17,500 plus disbursements and HST and relied on an offer to settle, the court found the request excessive given the limited procedural steps and brief summary judgment motion.

Costs were fixed at $10,500 all‑inclusive on a partial indemnity basis.

The respondent automobile carrier brought an application seeking a declaration that the applicant automobile manufacturer breached a contract governing delivery routes for vehicle shipments.

The applicant brought a counter‑motion seeking to convert the application into an action on the basis that the dispute raised significant factual controversies, including issues of economic duress, contractual interpretation, and the doctrine of good faith in requirements contracts.

The court held that the dispute involved contested facts and credibility issues that could not properly be resolved on an application record.

The court further noted that the law relating to good faith and requirements contracts was developing and that a fuller evidentiary record was necessary.

The application was therefore converted into an action.

A defendant brought a motion under Rule 21.01(3)(d) of the Rules of Civil Procedure seeking dismissal of a claim as frivolous, vexatious, or an abuse of process arising from allegations of a fraudulent conveyance.

The motion was brought nearly seven years after the defendant was added to the action and after other parties had settled.

The court held that such relief should only be granted in the clearest of cases and that a Rule 21 motion is not a substitute for summary judgment.

Given the existence of significant factual and legal disputes regarding the alleged fraudulent transfer and consideration for the property, the court found the claim was not plainly without merit.

The motion was dismissed.

Following summary judgment in an employment dispute, the parties disagreed on the proper calculation of mitigation income to deduct from the damages award.

The moving party sought clarification that mitigation should be calculated using net income rather than gross revenue from subsequent earnings.

The responding party argued that the issue had not been raised during the summary judgment motion and could not be altered through a clarification request.

The court held that the question involved new factual and legal determinations and could not be resolved as a simple clarification of the judgment.

The issue was reopened and directed to proceed by motion with supporting evidence and cross-examination.

The plaintiff brought a summary judgment motion in a wrongful dismissal action following the closure of the defendant’s manufacturing operations.

The court considered the appropriate reasonable notice period, whether overtime should be included in calculating damages, the compensability of lost employment benefits, and whether mitigation income earned during the statutory notice period under the Employment Standards Act should reduce common law damages.

Applying the Bardal factors, the court determined that a 20‑month notice period was appropriate.

The court held that overtime formed an integral component of the employee’s compensation and must be included in damages, and that the employee was entitled to compensation for lost benefits.

Mitigation income earned during the statutory ESA notice period was not deductible from damages beyond ESA minimum entitlements.

The appellant, a user of the drug Paxil, brought a proposed class action against the respondent pharmaceutical companies alleging abuse of process, conspiracy, and waiver of tort.

The appellant claimed the respondents misused the Notice of Compliance proceedings under the Patent Act to delay the entry of a cheaper generic equivalent into the market, forcing consumers to pay supra-competitive prices.

The motion judge struck the statement of claim, finding it disclosed no viable cause of action.

The Court of Appeal upheld the decision, concluding that the appellant was not a party to the legal process initiated by the respondents, the respondents' predominant purpose was to advance their own economic interests rather than injure the appellant, and there was no predicate wrongdoing to support a waiver of tort claim.

The moving party brought a motion to quash an appeal from a Superior Court decision that allowed an appeal from two arbitral awards.

The moving party argued the appellant failed to obtain leave to appeal as required by section 49 of the Arbitrations Act.

The Court of Appeal agreed, finding that the parties could not contract out of the statutory leave requirement.

The appeal was quashed for want of jurisdiction, but the court extended the time for the appellant to move for leave to appeal in writing.

The appellants appealed a decision dismissing their claim to wind up two family-owned companies under s. 207 of the OBCA.

The appellants argued that irreconcilable differences and a mutual loss of confidence required the court to intervene.

The Divisional Court dismissed the appeal, finding no palpable and overriding error in the motions judge's conclusion that the appellant had no reasonable expectation that the business would be wound up or that he would continue to exercise de facto control.