Geoff R. Hall

The appellant appealed an order determining an application in the face of conflicting evidence.

The Court of Appeal dismissed the appeal, noting that both parties were content to have the application judge determine the matters on the evidential record without requiring the trial of an issue.

The court found a clear evidential pathway to the application judge's findings and saw no basis to interfere.

The appellant appealed a judgment granting an oppression remedy to the respondent, a former tenant whose lease was wrongfully terminated.

Before the respondent's damages were quantified, the appellant sold the corporation's sole asset and paid the net proceeds to herself, leaving the corporation judgment-proof.

The Divisional Court dismissed the appeal, holding that a party with a judgment for unquantified damages is a 'creditor' under the OBCA and that the appellant's asset-stripping conduct was oppressive.

The appellant, a secured creditor, appealed a decision upholding a proposal trustee's disallowance of its secured claim for voting purposes under a bankruptcy proposal.

The trustee had relied on the general power in section 135 of the Bankruptcy and Insolvency Act to value and disallow the claim.

The Court of Appeal allowed the appeal, holding that the trustee was required to follow the specific procedure set out in section 50.1 of the Act, which governs the valuation of secured creditors' claims in the context of a proposal.

The appellant tenant appealed a trial judgment finding it liable for breaching a commercial lease agreement.

The trial judge had concluded that the parties reached a binding agreement on a final form of lease that differed significantly from their initial Offer to Lease.

The Court of Appeal allowed the appeal, finding a palpable and overriding error because the documentary record showed ongoing disagreement over significant substantive terms.

Since the landlord insisted on a lease form containing terms the tenant had not agreed to, the tenant did not breach the agreement by refusing to sign it.

The vendor and purchaser of certain businesses disagreed on the method of calculating working capital adjustments under an asset purchase agreement.

An accounting firm, KPMG, was directed to calculate the adjustments according to approaches advocated by both parties.

The purchaser sought leave to appeal an order requiring it to make a payment based on KPMG's calculation, arguing KPMG exceeded its jurisdiction.

The Court of Appeal denied leave to appeal, finding that KPMG stayed within its mandate and its determination was final and binding.

The Superintendent of Financial Services appealed an order lifting a CCAA stay and permitting bankruptcy petitions to proceed against the insolvent Ivaco companies.

The Superintendent argued that unpaid pension contributions subject to a deemed trust under the Pension Benefits Act should have been paid or segregated before bankruptcy.

The Court of Appeal dismissed the appeal, holding that the CCAA and BIA create a comprehensive federal insolvency scheme that leaves no gap for provincial deemed trusts to operate outside of bankruptcy.

The court also upheld the motions judge's discretionary decision to lift the stay and his order transferring the companies' head offices to Toronto under the Canada Business Corporations Act.

The Court of Appeal issued an addendum to correct an error in paragraph 11 of its reasons for judgment released on November 17, 2005.

The court amended the reasons to replace the reference to 'Subordinated Debenture Holders' with 'Senior Debt Holders' in the first two sentences of the paragraph.

The appellants appealed an order excising references to a Memorandum of Understanding (MOU) from their statement of claim.

The parties had entered into the MOU for a wind energy project, which the respondent later purported to terminate while under CCAA protection.

The Court of Appeal allowed the appeal, finding that the motion judge erred in determining the validity of the termination notice on a Rule 21 motion and in concluding that the appellants were precluded from pleading a good faith obligation arising from the MOU.

In a CCAA restructuring of Stelco Inc., the appellants, representing subordinated debenture holders, sought to be classified as a separate class of creditors for voting purposes on the proposed plan.

They argued their interests conflicted with senior debt holders due to a turnover payment provision requiring them to remit distributions to senior debt holders until the senior debt was paid in full.

The supervising judge dismissed the motion, finding no material distinction in their legal rights vis-à-vis the debtor company.

The Court of Appeal granted leave but dismissed the appeal, affirming that creditor classification under the CCAA is determined by the creditors' legal rights in relation to the debtor company, not their rights as creditors in relation to each other.

In a CCAA proceeding regarding Stelco Inc., the Informal Independent Converts' Committee appealed an order denying them a separate class of creditors.

The Court of Appeal granted leave but dismissed the appeal, finding no legal error or error in principle in the motion judge's conclusion that the appellants lacked a different legal or practical interest from other unsecured creditors vis-à-vis the debtor.

The appellant, an informal committee of senior debenture holders, sought leave to appeal orders made by the supervising judge in a CCAA restructuring.

The orders authorized the debtor company to enter into agreements with stakeholders and a finance provider to facilitate a proposed plan of arrangement.

The appellant argued the judge lacked jurisdiction to make orders that entrenched elements of a plan before creditor approval and that the plan was doomed to fail.

The Court of Appeal dismissed the appeal, holding that the supervising judge had broad jurisdiction under s. 11 of the CCAA to move the restructuring process forward, provided the creditors retained their final right to vote on the plan under s. 6.

The appellant financed insurance premiums for the respondent, taking an assignment of the right to receive any unearned premiums as security.

After the respondent defaulted and obtained CCAA protection, the appellant sought to enforce its security.

The motion judge held that the appellant's security interest was not perfected because it was not registered under the PPSA.

The Court of Appeal allowed the appeal, holding that the assignment of unearned premiums is a transfer of an interest in or under a policy of insurance, which is exempt from PPSA registration under s. 4(1)(c) of the PPSA and s. 138 of the Insurance Act.

The appellants, Ontario defendants, sought to stay proceedings in Ontario on the basis of forum non conveniens, arguing there were parallel proceedings in the United States.

The Court of Appeal dismissed the motion to quash and the appeal, noting the remarkable feature that the Ontario defendants sought to stay proceedings in their home jurisdiction while their U.S. counterpart denied the proceedings were parallel.

The court found a clear juridical advantage for the respondent to proceed in Ontario, where the contracts were offered and the defendants' assets were located.

The appellant appealed the dismissal of its petition for a receiving order against the respondent.

The appellant argued the bankruptcy judge erred in refusing the order after finding an act of bankruptcy, or alternatively, failed to provide adequate reasons.

The Court of Appeal dismissed the appeal, finding the bankruptcy judge was entitled under s. 43(7) of the Bankruptcy and Insolvency Act to dismiss the petition because he was not satisfied with the proof of facts and found other sufficient cause, noting the dispute was better suited for a civil action and the petition appeared to be a pre-emptive strike.

The court also found the reasons were adequate.

Following the release of the appeal decision, the parties disagreed on the settlement of the formal order regarding whether it should specify the date of termination of the commercial lease.

The Court of Appeal held that the omission of the termination date could be rectified under Rule 59.06 and determined by the remaining justices under s. 123(3) of the Courts of Justice Act.

The Court declared the lease was effectively terminated on November 19, 2001, noting this does not inhibit the trial judge's discretion on relief from forfeiture.

The landlord appealed the dismissal of its application for a declaration that a commercial lease was terminated because the tenant sublet the premises without consent.

The Court of Appeal allowed the appeal, finding that the landlord's prior consents to subleases did not authorize the new sublease.

The Court held that section 20(7) of the Commercial Tenancies Act does not preclude resort to the court's equitable jurisdiction to grant relief from forfeiture under section 98 of the Courts of Justice Act.

The issue of whether the tenant was entitled to relief from forfeiture was referred for trial.

The respondent borrower sued for the return of a $138,000 commitment fee after a commercial mortgage transaction failed to close.

The transaction failed because the borrower did not meet the required rental achievement figure due to deteriorating economic conditions.

The trial judge ordered the return of the fee, finding the borrower was not in 'default' because the failure was not its fault.

The Court of Appeal allowed the appeal and dismissed the action, holding that in a commercial contract, 'default' simply means failure to fulfill an obligation, regardless of fault.

The lender was entitled to retain the commitment fee.

Following an appeal where the appellant was partially successful, the parties sought a determination on costs.

The respondent had made a pre-trial offer to settle for $275,000, and the appeal reduced her damages to $394,884.52, which still exceeded the offer.

The trial costs order of party and party costs to the offer date and solicitor and client costs thereafter was maintained.

For the appeal, the appellant succeeded on two of six issues.

The court awarded the appellant one-third of its party and party costs of the appeal, noting the respondent's pre-appeal offer did not address all issues on which the appellant succeeded.

The appellant appealed a summary judgment requiring it to pay $135.5 million in cash to fulfill its obligations under a letter agreement.

The appellant argued the motion judge erred by restricting payment to cash rather than allowing payment in shares of certain corporations as provided in the agreement.

The Court of Appeal dismissed the appeal, agreeing with the motion judge that the respondent was entitled to reject the offered shares as not being of equivalent value, and finding that allowing payment in shares years after the deadline would inappropriately rewrite the agreement.

The plaintiff, a senior communications consultant, was wrongfully dismissed after one year of employment.

A jury awarded her 12 months' notice (including a three-month Wallace extension for bad faith) and $75,000 in punitive damages.

The employer appealed.

The Court of Appeal upheld the 12-month notice period, finding the employer's conduct in maintaining cause allegations and withholding commissions justified the Wallace extension.

However, the court set aside the punitive damages award, finding no independent actionable wrong and that the generous compensatory award was sufficient to deter the employer's conduct.

The court also ordered a new trial on the limited issue of whether the plaintiff's compensation included revenues from the Montreal office, as the trial judge had unfairly precluded the employer from leading evidence on this point.