Geoff R. Hall

The respondents brought a motion to quash the appellant bank's appeal from an order granting leave to amend a statement of claim.

The respondents argued the order was interlocutory, meaning the appeal should lie to the Divisional Court.

The Court of Appeal agreed, finding that the order permitting the amendment did not deprive the appellant of a substantive defence but simply allowed the matter to proceed to trial.

The appeal was quashed.

Following a successful motion by the interveners for a Kelly v. Canada order in an Aboriginal rights judicial review application, the parties could not agree on costs.

The interveners sought costs in the cause fixed at $13,500, arguing the applicants used hardball tactics by threatening substantial indemnity costs.

The court declined to fix costs, noting that threats of substantial indemnity costs are often empty and did not deter the interveners' counsel.

The court ordered costs in the cause, as the appropriate procedure for Aboriginal rights claims remains a work in progress.

The interveners in a judicial review application concerning the Crown's duty to consult brought a motion for a Kelly v. Canada Order to add 28 Indian Bands as parties.

The applicants opposed the motion, arguing it was offensive to Aboriginal custom and unnecessary as they were the true rights holders.

The court granted the motion, finding that adding the bands as party respondents was necessary to ensure all potential rights holders were before the court and to avoid the risk of multiple proceedings and inconsistent results.

The Wabauskang First Nation applied for judicial review of a decision by the Director of Mine Rehabilitation acknowledging a Production Closure Plan submitted by Rubicon Minerals Corporation for a gold mining project.

The First Nation argued that Ontario failed to fulfill its duty to consult and accommodate and improperly delegated this duty to the mining company.

The Divisional Court dismissed the application, finding that Ontario's assessment of the potential claims was reasonable, that it fulfilled its duty to consult and accommodate, and that it only delegated procedural aspects of the consultation to the proponent while retaining ultimate legal responsibility.

Investors who lost $17 million in a fraudulent certificate of deposit scheme brought a motion for leave to amend their statement of claim against a bank that had acted as a correspondent bank for the fraudster.

Earlier pleadings alleging a general duty on banks to monitor customers for fraud had been struck for failing to disclose a reasonable cause of action.

The proposed amendments added detailed allegations based on documents obtained by liquidators showing internal concerns within the bank about suspicious activities and regulatory issues surrounding the customer.

The court held that the amended pleading alleged a more specific duty arising from particular knowledge and circumstances rather than a broad duty to investigate customers generally.

Because the new allegations relied on information not reasonably available earlier and could potentially support a tenable claim, leave to amend was granted.

The appellant appealed an order determining the distribution of net proceeds from the sale of a joint venture winemaking business.

The appellant argued that all shareholder loans, whether secured or unsecured, should be repaid pro rata based on a shareholders agreement, which would effectively ignore the respondents' collateral mortgage and give the appellant almost all the proceeds.

The Divisional Court dismissed the appeal, holding that absent a clear provision to the contrary in the shareholders agreement, secured debts are properly payable in priority to unsecured debt.

The moving party sought leave to appeal a decision dismissing its motion for summary judgment.

The motion judge had dismissed the summary judgment motion due to the voluminous record, contradictory evidence, and the need for viva voce evidence, though he made obiter comments regarding a duty of fairness.

The Divisional Court refused leave to appeal, finding that the motion judge's obiter comments did not constitute a conflicting decision under Rule 62.02(4)(a) and that there was no reason to doubt the correctness of the decision that the case was unsuitable for summary judgment under Rule 62.02(4)(b).

The defendant, Atomic Energy of Canada Limited, brought a motion for summary judgment to dismiss the plaintiff's claims for breach of duty of fairness, defamation, negligence, and fraudulent concealment arising from a tendering process.

The court dismissed the motion for summary judgment regarding the duty of fairness and limitation period issues, finding that the voluminous and conflicting evidence required a full trial with viva voce evidence.

However, the court granted summary judgment dismissing the defamation claim, as the plaintiff failed to provide direct evidence of the alleged defamatory statements.

The applicant First Nation sought an extension of time to perfect its judicial review application challenging the provincial approval of a mine closure plan.

The applicant requested the extension to await the Supreme Court of Canada's decision on leave to appeal in a related case concerning provincial authority under Treaty 3, or the completion of scheduled mediation.

The respondent mining company opposed further delay.

The court granted the extension to the earlier of 45 days after the release of the leave decision or 45 days after the completion of the mediation, balancing the need for clarity on the legal issues with the need to avoid indefinite delay.

The applicants brought a motion for directions regarding the distribution of net proceeds from the sale of a jointly owned winery business.

The parties disputed the interpretation of shareholder agreements governing repayment of shareholder loans where sale proceeds were insufficient to satisfy all advances.

The court held the agreements did not directly resolve the allocation issue and interpreted the parties’ commercial relationship as a joint venture intended to operate on an equal footing.

The court ordered that unpaid wages be paid first, followed by repayment of advances secured by mortgage, with the remaining proceeds distributed proportionally among the excess shareholder loans.

No order for costs was made.

The applicant, a creditor of the debtor company under CCAA protection, sought an order authorizing it to file a plan of compromise or arrangement and directing meetings of affected creditors to vote on the plan.

The proposed plan did not include a shareholder vote.

The debtor opposed the application, arguing the plan was not in the best interests of stakeholders and improperly excluded shareholders.

The court found that because the debtor's shares had potential equity value depending on the outcome of pending litigation, and the proposed plan would radically alter the economic prospects of the shares, a shareholder vote was required.

The application to order a meeting of creditors without a shareholder vote was denied.

The defendants appealed a master's order dismissing their motions for security for costs against corporate plaintiffs who had ceased operations and lacked assets in Ontario.

The defendants argued that the plaintiffs were not impecunious because the principals had personal assets, including an unencumbered home and retirement savings.

The court held that the master did not err in concluding the plaintiffs were genuinely impecunious and that requiring security would force abandonment of the claim.

The court accepted that the principals' assets were effectively constrained by debts, potential tax liabilities, and the need to fund the litigation.

Because the claim was not plainly devoid of merit, the master properly exercised discretion to refuse security for costs.

The moving parties sought orders staying two Ontario proceedings pending a determination by the Quebec Superior Court regarding jurisdiction and forum in a parallel creditors’ action.

The actions arose from the collapse of an offshore bank alleged to have operated a multibillion-dollar Ponzi scheme, with claims that the defendant bank was liable for wrongful acts or omissions in providing correspondent banking services.

The court granted an interim stay of the Ontario “placeholder” action commenced by joint liquidators to preserve limitation periods, finding that parallel proceedings justified holding the Ontario action in abeyance pending the Quebec court’s determination.

The court also temporarily stayed a separate Ontario action brought by a small group of creditors to avoid duplicative litigation until the jurisdictional dispute in Quebec was resolved.

Costs were awarded to the joint liquidators as moving parties.

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 earlier judgments concerning the sale of a winery business, the respondent sought costs related to proceedings leading to the order directing that the winery be listed for sale.

The moving party requested partial indemnity costs after the court found that the opposing parties’ proposed sale arrangements were inconsistent with the court’s earlier judgment and appeared designed to delay the sale.

The court considered the financial circumstances of the parties and the context of the dispute involving a failed winery venture funded by an investor and operated by the applicants.

Despite the moving party’s general success, the court declined to award costs.

The court cautioned that failure to cooperate with the ordered sale could result in significant future cost consequences.

An insurance company applied for a winding-up order under the Winding-Up and Restructuring Act.

The central issue was the interpretation of insolvency in the context of a life insurance company whose liabilities consist primarily of long‑term policy obligations.

The court adopted a purposive interpretation and applied the definition of insolvency from the Bankruptcy and Insolvency Act, recognizing that contingent and future policy liabilities form part of the solvency analysis.

The court also accepted regulatory measures such as the Minimum Continuing Capital and Surplus Ratio as relevant indicators of financial distress.

Finding the company’s liabilities exceeded its assets and accepting the regulator’s assessment of insolvency, the court granted the winding‑up order.

The appellant, an undischarged bankrupt, appealed an order refusing to set aside a previous order that permitted the respondent to enforce several German judgments in Ontario.

The appellant argued that a mutual release signed in a separate action precluded the enforcement.

The Court of Appeal upheld the motion judge's finding that the release did not apply to the respondent, who was not a party to that action.

The Court also refused to admit a settlement agreement as fresh evidence, noting the appellant had previously refused to include it and it failed to meet the Palmer criteria.

The appeal was dismissed.

The appellants appealed an order striking out portions of their statement of claim.

The struck portions alleged that the respondent bank owed a duty of care to the appellants, who were not its customers, to inquire into its customer's activities to ensure the accounts were not used for fraudulent purposes.

The Court of Appeal dismissed the appeal, agreeing with the motion judge that the facts pleaded did not give rise to a recognized duty of care, nor did they warrant recognizing a new duty of care under the Anns/Kamloops principles.

The respondent entered into a Tax Refund Agreement with Grant Forest Products Inc. (GFPI) to purchase income tax refunds.

GFPI failed to deliver the required transfer document before seeking CCAA protection.

The motion judge applied the equitable maxim that equity considers done what ought to be done, declaring the transfer had taken place.

The appellant, representing secured lenders, appealed.

The Court of Appeal dismissed the appeal, holding that the motion judge correctly applied the maxim to cure GFPI's breach and that doing so did not inequitably rewrite the contract or create an unlawful preference.

The appellant appealed a trial judgment awarding damages for breach of a commercial real estate agreement based on a 50 per cent lost chance of closing.

The Court of Appeal upheld the trial judge's findings on causation, the date of assessment, and the use of a discounted cash flow methodology.

However, the Court found the trial judge misapprehended evidence regarding the amortization of capital expenditures and directed a new trial solely on the issue of recovering certain management expenses.