Geoff R. Hall

The Attorney General of Canada appealed a rectification order granted by the Superior Court of Justice that allowed Slate Management Corporation to restructure a single-step amalgamation of three subsidiaries into a two-step amalgamation to obtain a tax bump under the Income Tax Act.

The Court of Appeal found the appeal moot based on the principle established in Norcan Oils Ltd. v. Fogler, as the plan of arrangement had been implemented and third parties had relied on the financial consequences of the rectification order.

The court declined to exercise its discretion to hear the moot appeal and quashed it, awarding costs to Slate.

The applicant Fund sought the return of $1,461,220 that its Former Manager unilaterally paid itself upon resigning.

The Former Manager claimed the funds were owed as Incentive Participation Amounts (IPA) compensation under the Management Agreement.

The court found that the IPA compensation was contractually required to be paid as dividends.

Because the Fund no longer qualified as an open-end mutual fund, it was subject to the solvency test under s. 42 of the Canada Business Corporations Act, which it could not meet.

Therefore, the Fund was prohibited from declaring dividends, making the Former Manager's self-payment unauthorized.

The court ordered the Former Manager to repay the funds but declined to award punitive damages, noting the Former Manager did not conceal its actions.

Following a successful summary judgment motion for breach of contract, the plaintiff sought costs of $96,013.32.

The defendant argued the amount was excessive based on a quantitative comparison of hours docketed by counsel.

The court rejected the purely quantitative approach, noting it undervalued the qualitative aspects of the case, including the fact that the plaintiff had to defend against a substantial setoff claim alleging breach of fiduciary duty.

The court awarded the plaintiff costs as requested.

This endorsement addresses the costs of motions argued on February 27, 2017.

The plaintiffs were largely successful in a motion to strike a defamation action but unsuccessful in a motion for the return of personal property.

Considering the written submissions and Rule 59 of the Rules of Civil Procedure, the court awarded the plaintiffs modest costs on a partial indemnity scale against Mr. Chan and Ms. Tourian.

The plaintiffs' claim for approximately $30,000.00 was reduced to $7,000.00 due to the motions' lack of complexity and divided success.

The plaintiff, a former senior executive, moved for summary judgment to enforce payment of outstanding installments for the sale of his shares to the defendant company.

The defendant resisted, asserting an equitable setoff for alleged breaches of fiduciary duty and misappropriation of confidential information by the plaintiff after his departure.

The court found no genuine issue for trial regarding the alleged breaches of fiduciary duty or misappropriation of confidential information, dismissing the defendant's setoff claim.

The court granted summary judgment to the plaintiff for the present value of the outstanding share payments, determining an appropriate discount rate based on expert evidence.

The appellants, two insurance companies, appealed the summary dismissal of their action against respondents for breach of an alleged oral agreement and inducement of breach of contract.

The motion judge dismissed the action on the basis that the parties had agreed that no binding contractual relationship would exist without a signed written agreement (the "Precondition").

The Court of Appeal found this conclusion was a palpable and overriding error.

The evidence only supported that the parties intended to eventually document their agreement in writing, not that execution of a written contract was a precondition to legal obligations.

The court allowed the appeal against the Vancity respondents and directed the matter to trial, but dismissed the appeal against the Co-operators respondents on alternative grounds.

Aird & Berlis LLP, a law firm, moved for summary judgment for unpaid legal fees and disbursements totaling $182,569.63 from its former clients, Oravital Inc. and Alliance H. Inc. Oravital counterclaimed for professional negligence, alleging deficiencies in legal services and claiming over $600,000 in damages.

The court found that Oravital's principals were sophisticated businesspeople who understood the litigation risks and value of their claim.

The court determined there was no causal link between the alleged failure of Aird & Berlis to obtain an earlier formal damages assessment and Oravital's decision to continue the litigation.

Consequently, the motion for summary judgment was granted in favour of Aird & Berlis, and Oravital's counterclaim was dismissed.

The court heard two motions in consolidated actions: one by ORBCOMM for the return of corporate data from former senior managers (Chan and Tourian) and the representative shareholder (Randy Taylor Professional Corporation), and another by ORBCOMM, Skywave, and Marc Eisenberg to strike a defamation claim brought by Chan and Tourian.

The court ordered Chan and Tourian to provide copies of the data but allowed them to retain their own copies, finding no contractual obligation to destroy them.

The defamation claim was struck for lack of particularity but with leave to amend, as the former managers were not parties to the main action and thus had no direct means to dispute allegations affecting their reputation.

The defendants sought costs following the dismissal of the plaintiffs' action.

Vancity claimed substantial indemnity costs based on a Rule 49.10 offer to settle.

The court held that Rule 49.10 does not apply where an action is dismissed, and awarded partial indemnity costs.

The court rejected the plaintiffs' arguments that the defendants' claimed hours were excessive, noting the plaintiffs failed to produce their own bill of costs for comparison.

The court fixed Vancity's fees at $200,000 and Co-operators' fees at $130,000, plus HST and allowable disbursements.

The applicant sought to stay a Renewable Energy Approval amendment and an Ontario Energy Board (OEB) decision regarding a transmission line route modification near her property, pending judicial review and appeal.

The applicant argued she was denied procedural fairness as she was not properly notified of her right to a hearing before the Environmental Review Tribunal.

The Divisional Court found that while the denial of procedural fairness raised a serious issue, the applicant failed to demonstrate irreparable harm with corroborating medical or environmental evidence.

The court also found the OEB reasonably concluded it lacked jurisdiction to consider the applicant's health and environmental concerns and that she was not an 'owner of land affected' under the Ontario Energy Board Act.

Both motions for a stay were dismissed without costs.

The defendants brought motions for summary judgment to dismiss claims of breach of contract and inducing breach of contract.

The plaintiffs alleged an oral agreement for an exclusive insurance supplier arrangement with Vancity Insurance, which was later sold to Co-operators.

The court found that no binding oral agreement existed because the parties intended their legal obligations to be deferred until a formal written contract was approved and executed.

Consequently, the claim for inducing breach of contract against Co-operators also failed, as there was no valid contract to breach, and Co-operators had no knowledge of a binding agreement, nor did it "turn a blind eye." The action was dismissed against all defendants.

This application sought a rectification order for a corporate amalgamation intended to achieve specific tax outcomes under the Income Tax Act's "tax bump rules." Due to an error, the amalgamation was performed in a single step instead of the required two steps, defeating the intended tax benefit.

The court applied the test for rectification, requiring proof of a continuing specific intention to undertake the transaction on a particular tax basis.

The court found, on a balance of probabilities, that the applicant had a continuing specific intention to utilize the tax bump rules, supported by various documents and witness testimony.

The application for rectification was granted, and costs were awarded to the applicant.

In CCAA proceedings involving a payday lending enterprise, class members in Ontario consumer class actions moved for approval of three settlement agreements forming part of a broader global resolution of litigation involving the debtor companies, their directors and officers, and related parties.

The settlements resolved certain class claims and partially resolved a third‑party lender claim, providing more than $10 million in recovery with potential participation in future litigation proceeds.

The court applied established settlement approval factors including likelihood of success, litigation risks, counsel recommendations, absence of objections, and arm’s‑length negotiations.

The court concluded that the settlements were fair, reasonable, and in the best interests of the class and the restructuring process.

Following dismissal of the defendant bank’s summary judgment motion asserting a limitations defence, the plaintiffs sought partial indemnity costs of $635,000.

The action arises from a massive Ponzi scheme involving certificates of deposit issued by an offshore bank, with the plaintiffs acting as joint liquidators pursuing damages of USD $5.5 billion against the defendant bank as correspondent banker.

The court held that although the plaintiffs were successful in resisting the motion, their claimed costs were excessive and far outside the reasonable expectations of the unsuccessful party for a two‑day summary judgment motion.

Considering the factors under Rule 57.01(1), the court fixed a fair and reasonable costs award of $120,000 all‑inclusive on a partial indemnity basis.

The award was made without prejudice to the plaintiffs’ ability to seek additional costs related to the motion at trial where the limitations issue remains live.

Following the settlement and abandonment of an application for judicial review regarding the Crown's duty to consult, the interveners and the respondent Ontario Power Authority sought costs against the applicants.

The Divisional Court dismissed the requests for costs.

The court held that interveners typically do not receive costs and that imposing costs on First Nations in disputes concerning constitutional rights and reconciliation would inappropriately deter such claims.

The court also denied costs to the Ontario Power Authority, noting it played a secondary role and the Crown itself did not seek costs.

The Bank appealed a trial judgment finding it liable for knowing assistance in a breach of trust after it allowed a payroll processing company continued access to electronic banking facilities despite knowing of a deficit in a trust account.

The plaintiffs cross-appealed the dismissal of their claim for knowing receipt of trust funds regarding a transfer that reduced an overdraft.

The Court of Appeal dismissed both the appeal and cross-appeal, finding the trial judge correctly applied the knowledge requirement for knowing assistance and made no palpable and overriding error in concluding the Bank had no obligation to inquire into the overdrafts.

In CCAA liquidation proceedings, the secured creditor and investment advisor sought a declaration that it was entitled to a contractual additional fee arising from the sale of one of the debtor’s portfolio investments.

The creditor argued that the debtor breached a settlement agreement by failing to repay outstanding advisor debt before the asset sale closed, which would have triggered the fee.

The court held that the agreement required payment only when reasonably practicable based on the debtor’s commercially reasonable estimate of liquidity and expenditures.

Given the uncertainty of the closing and the debtor’s limited cash resources during CCAA proceedings, the decision to wait until proceeds were actually received was commercially reasonable.

The motion for a declaration and payment of the additional fee was dismissed.

The defendant bank brought a summary judgment motion seeking dismissal of a $5.5 billion negligence and knowing assistance claim arising from an international Ponzi scheme, arguing the action was barred by the two‑year limitation period under the Limitations Act, 2002.

The claim was brought by joint liquidators of an offshore bank alleging the defendant bank failed to exercise appropriate due diligence and facilitated the scheme by continuing correspondent banking services.

The court held that the discoverability of the claim before the critical limitation date involved complex factual inquiries regarding what the liquidators’ predecessors knew or ought to have known about the bank’s role in the fraud.

Given the extensive evidence, overlapping merits issues, and disputed factual questions about knowledge and investigation during the liquidation process, the court found a genuine issue requiring a trial.

Summary judgment was therefore inappropriate.

The appellant appealed a decision granting the equitable remedy of rectification to correct mistaken share redemptions that triggered unintended tax consequences.

The application judge found that the respondents had a continuing intention to carry out loan arrangements on a tax-neutral basis and that the share redemptions were a mistake.

The Court of Appeal dismissed the appeal, holding that under the binding authority of Juliar, the critical requirement for rectification is proof of a continuing specific intention to undertake a transaction on a particular tax basis, which the respondents had established.

The defendant, the Ontario Power Authority, brought a motion to strike the plaintiff's statement of claim for misfeasance in public office on the ground that it disclosed no reasonable cause of action.

The plaintiff alleged that the defendant unlawfully and retroactively reduced the price it would pay under the microFIT program, causing the plaintiff to lose customers and suffer financial harm.

The court applied the test for a motion to strike and the elements of misfeasance in public office, concluding that it was not plain and obvious that the claim must fail.

The motion to strike was dismissed.