Geoff R. Hall

The moving party sought leave to appeal an initial order made under the Companies' Creditors Arrangement Act that authorized the debtor to obtain debtor-in-possession financing with superpriority over existing security.

The initial order was made without notice but included a comeback clause allowing interested parties to seek variations.

The Court of Appeal dismissed the motion for leave to appeal as premature, holding that the moving party should first utilize the comeback clause to have their concerns heard by the supervising judge on a full record.

The appellant appealed a trial judgment finding Option A of a contract unenforceable.

The Court of Appeal dismissed the appeal, agreeing that Option A lacked a mechanism to ensure the consummation of a contemplated maintenance agreement, rendering the option to purchase television sets for $1 unenforceable.

The court varied the damages award to include a fair rental charge of $4,696.50 per month for the period the appellant retained the television sets under a stay pending appeal.

The appellant sought a stay of a Superior Court judgment pending appeal.

The chambers judge held that the moving party met the three-part test applicable to a stay pending appeal and granted the stay subject to conditions requiring an expedited transcript and expedited hearing of the appeal.

Costs of the application were reserved to the panel hearing the appeal.

A receiver appointed at the instance of a secured creditor sought recovery of deferred management fees withdrawn before receivership and operating funds deposited into a new bank account shortly before the appointment.

The Court of Appeal held that both claims were subject to equitable setoff because the respondent's cross-obligations arose from the same management relationship and were closely connected to the receiver's claims.

The court rejected arguments that the new account involved conversion or that the management agreement created a trust excluding the respondent's claims.

The appeal was dismissed and costs were awarded to the respondent.

In this medical malpractice appeal, the defendants challenged findings that negligent immobilization of a hand fracture caused permanent disability and substantial damages.

The Court of Appeal held that the trial judge applied the correct specialist standard of care, properly inferred causation under the flexible approach in medical negligence cases, and was not required to apportion between tortious and non-tortious causes once the negligent treatment materially contributed to the entire injury.

The contributory negligence argument based on discontinuing physiotherapy failed because the evidence supported that the treatment was inappropriate and the patient sought alternative care.

The appeal succeeded only on quantum, with the award for past loss of income set aside for lack of evidentiary foundation.