Herman J. Wilton-Siegel

The applicant, Tibbett & Britten Group Canada Inc., sought costs on a full indemnity basis after being successful in a prior application.

The court determined that the original agreement providing for full indemnity costs was spent and a new agreement, lacking such a provision, governed.

Consequently, the applicant was awarded costs on a partial indemnity basis.

The court also denied the applicant's claim for costs related to an FSCO investigation, characterizing them as potential damages rather than costs of the proceeding.

Additionally, certain disbursements for file review and irrelevant legal research were disallowed.

The respondent's request for costs for having to respond to the applicant's costs submissions was denied as there were legitimate issues to be determined.

In the CCAA proceedings of U.S. Steel Canada Inc., the applicant sought an order declaring Bedrock Industries Canada LLC as the Successful Bidder under a sales and investment solicitation process.

The applicant also sought authorization to enter into a Plan Sponsor Agreement and a support agreement with the Province of Ontario.

Several parties, including a union local, the City of Hamilton, and individual retirees, objected to the motion, raising concerns about pensions, taxes, and the fairness of the proposed transaction.

The court granted the requested relief, finding that the proposed transaction was the best available option, the agreements were necessary to facilitate the restructuring, and the rights of the objecting parties to vote on or oppose the ultimate plan of arrangement were preserved.

The applicants commenced an application seeking a compulsory purchase of their shares or winding up of the companies, along with an initial motion for an interim receiver.

After receiving financial disclosure, the applicants abandoned the initial motion and brought an amended motion for an inspector, which they later also abandoned in favour of different relief.

The respondents sought costs thrown away for the abandoned initial motion and costs for the amended motion.

The court awarded the respondents costs thrown away 'on account' and costs of the amended motion on a partial indemnity basis, noting the applicants' approach of seeking draconian relief only to abandon it caused unnecessary legal work.

The bankrupt appealed a Master's order granting a conditional discharge that required him to pay $284,346 in accumulated surplus income and an additional $5,000 per month for six years.

The bankrupt argued the Master erred by treating the additional payments as a recalculation of surplus income under section 68 of the Bankruptcy and Insolvency Act.

The Superior Court of Justice dismissed the appeal, finding that the Master properly imposed the additional payments as a condition of discharge under section 172, not as a recalculation of surplus income.

The court held the condition was reasonable given the bankrupt's substantial ongoing disability income, his failure to pay surplus income during the bankruptcy, and his lack of remorse for misappropriating $5 million from clients.

The applicants brought an application to resolve issues regarding the administration of the deceased's estate, specifically whether certain inter vivos payments made by the deceased to her children and grandchildren should be treated as advances on their inheritances.

The respondents, acting as estate trustees, argued the payments were advances based on ademption by advancement or a resulting trust.

The court held that the doctrine of ademption by advancement likely no longer applies in Ontario and was inapplicable on the facts.

Furthermore, the presumption of a resulting trust was rebutted by evidence of the deceased's intentions.

The court also found that a loan made to one of the applicants had been fully repaid and was statute-barred.

In a priority dispute under the Construction Lien Act, the court determined the relative priorities of several mortgagees and construction lien claimants.

The court held that professional fees incurred by a first mortgagee to protect its security constituted an 'advance' under section 78(6) of the Act, granting it priority.

The court also found that a $10 million advance made jointly to two borrowers under a second mortgage was an advance in respect of that mortgage, giving it priority over the lien claimants.

However, the court ruled that an advance made under a loan agreement to a third party was not an advance in respect of a collateral mortgage given by the developer as guarantor, meaning the lien claimants had priority over the collateral mortgage.

The applicant, the largest shareholder of the respondent corporation, requisitioned a shareholders meeting to remove certain directors.

The board refused to call the meeting, citing the personal grievance exception under the Business Corporations Act.

The applicant sought a declaration that the requisition was valid.

The court found that the applicant's primary purpose was to redress a personal grievance rather than to address corporate policy or operations, as his actions were motivated by personal interests and a perceived lack of respect.

The application was dismissed.

The applicants sought orders under section 61 of the CCAA to recognize and give effect in Canada to two orders made in their US Chapter 11 bankruptcy proceedings.

The US orders established a claims bar date and discharged claims not filed by that date.

The applicants sought to use these orders to bar the respondents' claims in an ongoing Ontario tort action.

The court dismissed the application, holding that the applicants should seek enforcement of the US orders within the specific Ontario action rather than seeking a general recognition order under section 61 of the CCAA.

This approach allows the court in the action to assess the equities on a party-by-party basis.

The moving parties sought an order under section 37 of the Bankruptcy and Insolvency Act to set aside the trustee's assignments of certain causes of action to the bankrupt, David Brook, and to direct a tender or auction process for their sale.

The moving parties argued they were aggrieved because the trustee did not market the causes of action to anyone else, the transaction was improvident, and the private sale process unfairly disregarded creditors' rights.

The court dismissed the motion, finding that the moving parties were not "aggrieved persons" as they were not deprived of a legal right.

Alternatively, the court found the trustee's decision to assign the causes of action to the bankrupt with a sharing arrangement was reasonable, particularly given the unwritten nature of the claims, the need for the bankrupt's active involvement, and the potential for greater upside for the estate compared to a fixed offer.

The applicant, Amarna Associates Inc., sought a declaration that it had validly exercised its right of dissent as a shareholder of Partners Value Investments Inc. (PVI) in connection with a plan of arrangement.

PVI contended that only shareholders registered as of the record date for voting were entitled to exercise dissent rights.

The court found that the Interim Order and the Plan, which incorporated section 185 of the Business Corporations Act (Ontario) with modifications, did not impose a record date requirement for dissent rights.

The court emphasized that the plain meaning of "registered holder" referred to registration at the time of exercising dissent rights, and PVI's own circular supported re-registration after the record date for this purpose.

The application was granted, confirming Amarna's valid exercise of dissent rights, and costs were awarded to Amarna on a partial indemnity basis.

This motion for supplemental reasons arose from a prior trial where neither party was entirely successful.

Pingyuan Zhao sought judgment for outstanding loans from Pingbo Zhao, repayment of improperly retained cash, and an order for compulsory transfer of Pingbo Zhao's shares in the 51.ca Corporations based on a valuation date of August 28, 2010.

The court granted judgment for the loans (net $81,093.90 plus pre-judgment interest) and repayment of cash ($21,799.54 plus pre-judgment interest), finding Pingbo Zhao liable for these amounts.

However, the court denied the request for a compulsory share transfer, concluding that the conditions for a "just and equitable" winding-up order under section 207(1)(b)(iv) of the OBCA were not met, particularly regarding the proposed valuation date and the lack of agreement between the parties on the relief sought.

No costs were awarded for the motion.

The Minister of Revenue reassessed two trusts, the Herman Grad 2000 Family Trust and the Marya Grad Spousal Trust, for provincial taxes on the basis that they were resident in Ontario, not Alberta, during the 2006 to 2009 taxation years.

The trusts appealed, arguing their trustees resided in Alberta and exercised management and control there.

The Superior Court of Justice dismissed the appeals, finding that the central management and control of both trusts was actually exercised by the settlor and his financial advisor, both resident in Ontario, who directed the trusts' investment and distribution decisions.

The applicant, Fazlollah Seyedali Lavasani, sought to set aside a default judgment obtained by the respondents, Sheldon Rakowsky and Sheldon Rakowsky Professional Corporation, related to mortgage loans.

The applicant argued lack of notice and presented several defences.

The court found that the applicant had constructive notice of the action through his attorney and failed to establish any arguable defence on the merits, including claims of knowing assistance in breach of fiduciary duty, knowing receipt, deferred indefeasibility, or Family Law Act protections.

The motion to set aside the default judgment was denied, and costs were awarded to the respondents.

The applicant, U.S. Steel Canada Inc. (USSC), sought approval for a second key employee retention plan (KERP 2), while a group of unions and representative counsel (Moving Parties) sought an order to terminate the suspension of other post-employment benefits (OPEBs).

The court granted the KERP 2 motion, finding it fair and reasonable for business stability and restructuring efforts.

The OPEB motion was denied, as the court found no fundamental improvement in USSC's profitability to warrant OPEB reinstatement, and that USSC's proposed one-time contribution of $2.7 million to a transition fund for retired employees appropriately balanced competing interests during the ongoing sales and investor solicitation process (SISP).

The applicant, Rocco Furfari, brought a motion to enforce minutes of settlement, specifically seeking an adjustment to estate distributions for legal fees totaling $102,215 previously paid on behalf of the respondent, Tony Furfari, from the deceased's assets, and an amendment to a consent order (the "Penny Order").

Rocco also sought directions for a further interim distribution of $350,000 from the estate.

The court dismissed the motion to amend the Penny Order, finding that the minutes of settlement were ambiguous and Rocco failed to prove that the order contained an accidental slip or omission regarding the legal fees.

The court also denied the request for directions regarding estate administration, finding no evidence that the estate trustee, Tony, failed in his duties or acted in bad faith, and that the requested distribution was not rationally connected to the alleged breaches of duty.

In a Companies' Creditors Arrangement Act (CCAA) proceeding, the applicant, U.S. Steel Canada Inc., sought an extension of the stay of proceedings, authorization and approval of a second amending and extension agreement for DIP financing, and approval of a second key employee retention plan (KERP).

United States Steel Corporation (USS) sought a shorter stay period.

The court granted the applicant's motion to extend the stay of proceedings to November 30, 2016, finding the applicant acted in good faith and with due diligence, and that a shorter, court-imposed deadline was not necessary or useful at that time.

The court also authorized and approved the Second Extension Agreement for DIP financing, noting its importance as a cash buffer and for maintaining business stability.

Motions regarding post-employment benefit plans and KERP were adjourned or granted separately.

The bankrupt, Emmanuel Diena, sought an absolute discharge from bankruptcy.

Two creditors, Kohl & Frisch Limited and Joddes Limited (the "Objecting Parties"), opposed the discharge, alleging misrepresentation of assets in a personal financial statement and efforts to shield assets and income.

The court found that the bankrupt intentionally misrepresented the ownership of corporate shares and a Florida condominium in his financial statement and had structured his affairs to have no assets in bankruptcy.

While the Objecting Parties' reliance on the misrepresentation was limited, the court determined that the bankrupt's actions offended commercial morality.

Balancing the interests of the bankrupt, creditors, and the public, the court granted a conditional discharge, requiring the bankrupt to pay $100,000 to the trustee, as he failed to establish an inability to satisfy such a payment.

The applicant in a dismissed bankruptcy application sought costs, alleging the respondent was a fiduciary and acted improperly.

The respondent sought substantial indemnity costs, claiming the application was an abuse of process.

The court denied both parties' cost claims, finding no judicial determination of fiduciary duty or improper conduct by the respondent, and no bad faith by the applicant in commencing the bankruptcy application.

Each party was ordered to bear their own costs.

This supplemental endorsement in CCAA proceedings addressed the secured status of a claim (#11(b)) filed by United States Steel Corporation (USS) against U.S. Steel Canada Inc. (USSC).

The claim arose from USS's payments under guarantees for USSC's third-party obligations.

The court found that USS's rights of indemnification were not "Secured Obligations" under the November Security Agreement, primarily because the agreement's intent was limited to contractual obligations related to direct advances or sale of goods, not third-party guarantees.

Furthermore, the court concluded that the grant of security for these indemnification rights constituted a fraudulent preference under section 95 of the Bankruptcy and Insolvency Act due to a lack of fresh consideration.

Consequently, Claim #11(b) was deemed an unsecured claim.

This costs endorsement followed an appeal by the defendants regarding a Master's decision on production of documentation for damage claims.

The appeal was partially successful in obtaining some documentation but failed on the principal issue of 'flow-through costs.' The plaintiffs sought costs on a substantial indemnity basis, arguing their settlement offer would have avoided costs.

The court found Rule 49.10(2) inapplicable to appeals but considered the plaintiffs' offer and the defendants' own costs submissions.

The court awarded the plaintiffs $33,000 in partial indemnity costs, finding them fair and reasonable given the case's complexity, importance, and the parties' conduct.