Gordon Kugler

This decision sanctions the CCAA Plans of Imperial Tobacco Canada Limited, Imperial Tobacco Company Limited, JTI-Macdonald Corp., and Rothmans, Benson & Hedges Inc., effecting a global settlement of all tobacco-related claims in Canada.

The court reviews the structure, allocation, and fairness of the plans, including the creation of a $1 billion Cy-près Foundation, and addresses objections from social stakeholders.

The court finds the plans fair, reasonable, and in the public interest, and grants the requested relief, including third-party releases and the appointment of plan administrators.

This supplementary endorsement addresses a request from JTI-Macdonald Corp. regarding the adequacy of notice elements in the Claims Procedure Order within the ongoing Companies' Creditors Arrangement Act (CCAA) proceedings.

The court confirmed its satisfaction that the notice elements in the Claims Procedure Orders are reasonable in the circumstances, addressing an oversight from previous submissions.

The Superior Court of Justice addressed multiple motions within the complex Companies’ Creditors Arrangement Act (CCAA) proceedings of JTI-Macdonald Corp., Imperial Tobacco Canada Limited, Imperial Tobacco Company Limited, and Rothmans, Benson & Hedges Inc. The court granted a stay extension until January 31, 2025, and approved Meeting Orders and Claims Procedure Orders.

These orders facilitate the advancement of comprehensive Plans of Arrangement, developed by the court-appointed Mediator and Monitors, aiming for a Pan-Canadian global settlement of tobacco claims totaling $32.5 billion.

The court found the plans were not "doomed to fail" despite outstanding issues regarding financial allocation among the Tobacco Companies and the creditor status of JTI-Macdonald TM Corp.

In a medical negligence appeal, the central issue was whether a trier of fact must draw an adverse inference of causation when physicians’ fault made proof of causation more difficult and the plaintiff adduced some affirmative causation evidence.

The majority held that under Quebec civil law, any such inference is a permissive presumption of fact under art. 2849 C.C.Q., not a mandatory rule, and the burden of proving causation on a balance of probabilities remains with the plaintiff.

The Court further held appellate intervention required deference to factual findings absent palpable and overriding error, and restored the trial judgment that causation was not proven.

The appeal was allowed, with a dissent that would have upheld appellate intervention on factual-error grounds.

Domtar purchased a recovery boiler from C.E. (now ABB and Alstom).

The boiler's superheater developed leaks and cracks due to the use of H-style tie welds.

Domtar replaced the superheater and sued C.E. for latent defects and breach of the duty to inform.

The Supreme Court of Canada held that the excessive cracking constituted a latent defect.

As a manufacturer, C.E. was presumed to know of the defect and failed to rebut this presumption, rendering its limitation of liability clause inapplicable.

C.E. was held liable for the replacement costs.

The Court also dismissed the appeals regarding the insurers, finding Chubb liable on its performance bond and Arkwright not liable due to a latent defect exclusion clause.

The trustee in bankruptcy of a wholly-owned subsidiary sued the directors of the subsidiary, alleging they breached their fiduciary duty and duty of care under the Canada Business Corporations Act by implementing a joint inventory procurement policy that favoured the parent company to the detriment of the subsidiary's creditors.

The Supreme Court of Canada held that directors owe a fiduciary duty to the corporation, not to its creditors, even when the corporation is in the vicinity of insolvency.

The Court also held that while directors owe a duty of care to creditors, the directors' actions in this case were reasonable business decisions protected by the business judgment rule.

The trustee's claim under the Bankruptcy and Insolvency Act for reviewable transactions was also dismissed.

The appellant underwent surgery to relieve facial neuralgia, which was unsuccessful and caused serious sequelae.

She sued the respondent physicians, alleging the surgery served no purpose and that she did not give informed consent because she was not told the specific surgeon who would perform the nerve sectioning, nor was she provided with a consulting neurologist's negative report.

The Supreme Court of Canada dismissed the appeal, upholding the trial judge's findings that the surgery was medically justified, the appellant was informed of the surgical team's roles, and she was sufficiently aware of the consulting neurologist's negative opinion before consenting to the risks.