Herman J. Wilton-Siegel

In the context of CCAA proceedings for U.S. Steel Canada Inc. (USSC), the applicant sought approval for Transition Arrangements with its parent company, a Business Preservation Plan involving significant cash conservation measures (including suspension of pension, OPEB, and municipal tax payments), and Amended DIP Financing.

The court approved the motions, finding that the Transition Arrangements were fair and reasonable, and that the Business Preservation Plan and DIP financing were necessary to allow USSC to continue operations and pursue a restructuring solution, despite objections from the union and municipalities regarding the suspension of benefits and taxes.

The appellants appealed an interlocutory order regarding the waiver of solicitor-client privilege and document production.

By the time the appeal was heard, the trial had already commenced.

The Divisional Court dismissed the appeal as moot, holding that the trial judge is best positioned to determine issues of privilege, fairness, and production mid-trial.

The tenant appealed a review order of the Landlord and Tenant Board that denied her request for an extension of time to set aside an ex parte eviction order.

The Divisional Court allowed the appeal, finding that the Board erred in law by failing to consider all the mandatory factors under Rule 15.6 of its Rules of Practice, specifically the length of the delay and the prejudice to the parties.

The Court noted the delay was only two days and the tenant, who is on permanent disability and resides in subsidized housing, would suffer severe prejudice if evicted, whereas the landlord would suffer minimal prejudice.

The Court set aside the Board's decision, granted the extension of time, and stayed the eviction order pending a hearing on the merits.

In the context of CCAA proceedings for U.S. Steel Canada Inc., three former employees brought a motion seeking payment of lump sum retention bonuses under their severance agreements.

The respondent argued the payments were pre-filing obligations subject to the CCAA stay.

The court found the bonuses were compensation for post-filing services, as they were contingent on the employees remaining available to work during the notice period.

The court exercised its discretion to order payment, finding it fair and equitable as it would not create an unfair priority over other employees and the amounts were de minimus.

The appellant nurse appealed a penalty order from the Discipline Committee of the College of Nurses of Ontario.

She argued the Panel was functus officio when it issued its reasons after the order, that it lacked jurisdiction to order her participation in a quality assurance program, and that the penalty was disproportionately harsh.

The Divisional Court dismissed the appeal, finding the Panel had a statutory duty to issue written reasons, possessed broad remedial discretion under the Health Professions Procedural Code, and imposed a reasonable penalty aimed at protecting the public interest.

The applicants, Central GoldTrust and Silver Bullion Trust, sought declarations and injunctive relief to stop hostile takeover bids by the respondents.

The applicants argued the bids violated advance notice by-laws, proxy solicitation rules, and withdrawal rights under the Securities Act.

The respondents cross-applied to invalidate defensive amendments made by the applicants' boards to their declarations of trust.

The court dismissed the applicants' requests to enjoin the bids, finding no violation of proxy rules or advance notice by-laws, but ordered a minor amendment to the powers of attorney regarding withdrawal rights.

The court granted the respondents' cross-application, invalidating the defensive amendments as they were enacted primarily to thwart the takeover bids.

The applicant and the deceased separated, and the deceased subsequently changed the beneficiary designation on his life insurance policy to his new partner, the respondent.

The applicant, unaware of the change, continued paying the premiums pursuant to an oral agreement with the deceased.

Upon the deceased's death, the applicant claimed entitlement to the $250,000 policy proceeds based on unjust enrichment and equitable assignment.

The court found that the oral agreement constituted an equitable assignment and that the beneficiary designation was not a juristic reason for the respondent's enrichment.

The court imposed a constructive trust over the proceeds in favour of the applicant.

The employer sought judicial review of an arbitrator's interim decision finding that the employer breached the collective agreement by denying an employee union representation during investigative meetings.

The union brought a motion to quash the application as premature, arguing the grievance on the merits had not yet been decided.

The Divisional Court agreed, finding no exceptional circumstances to justify fragmenting the ongoing administrative proceedings.

The application for judicial review was quashed as premature.

The appellants appealed a Registrar's order requiring a family farming corporation to disclose documents and its directors to submit to examinations under the Bankruptcy and Insolvency Act.

The trustee sought the information to value the bankrupt's shares in the corporation.

The appellants argued the trustee's access should be limited to shareholder rights under the OBCA.

The court dismissed the appeal, finding the trustee is entitled to information relevant to valuing the shares and that there is no conflict between the BIA and directors' duties under the OBCA.

The court granted the trustee's cross-appeal, holding the Registrar lacked authority to order written interrogatories in lieu of an oral examination under s. 163 of the BIA, and awarded costs to the trustee.

The respondents in the main application brought motions to disqualify the applicants' solicitor and for security for costs, but withdrew them shortly before the return date.

The parties appeared to argue costs.

The court found no basis for the disqualification motion and awarded partial indemnity costs to the applicants.

For the security for costs motion, the court awarded costs incurred after the date a related Michigan action was dismissed, as the respondents delayed in withdrawing the motion.

The court fixed the applicants' total costs for both motions at $12,500 on an all-inclusive basis.

The applicants sought costs following a motion for the production of documents.

Both parties claimed success on the motion.

The court found that the applicants were substantially more successful, as the respondent's principal position was that no disclosure should be ordered, forcing the applicants to bring the motion.

The court awarded the applicants costs fixed at $11,500 on an all-inclusive basis, reflecting a reduction for their lack of success on an alternative argument.

A bankruptcy trustee sought relief under s. 96 of the Bankruptcy and Insolvency Act in relation to a transfer by an insolvent debtor of her 50% interest in a Toronto property to her business associate.

The court held, on the record before it, that the transferor and transferee were not dealing at arm's length and that one of the transferor's intentions was to defeat her principal creditors, given the surrounding circumstances, the impending bankruptcy, and the treatment of the asset.

However, the court found the valuation evidence insufficient to determine the fair market value of the property at the transfer date and therefore could not decide whether the transaction was a transfer at undervalue.

A summary trial was ordered limited to valuation.

Applicants under multiple long-term power purchase agreements sought declarations that the respondent miscalculated Total Market Cost after the 2011 global adjustment reallocation regime came into force.

The court held that the contractual definition of TMC implicitly required aggregated electricity costs to be allocated pro rata based on electricity consumption, and that the respondent's new formula improperly reflected a regulatory reallocation between customer classes rather than the underlying costs of generation and supply.

Although the court found the respondent breached the PPAs, it also held that neither the change of law clauses nor the material change provisions were triggered by the reallocation regulation.

Declaratory and consequential relief was granted requiring recalculation from January 1, 2011 and compensation with interest.

The appellant sought leave to appeal an arbitration award arising from a railway crossing warning agreement with a municipality.

The arbitrator had found that the appellant's silence about Transport Canada's refusal to fund certain overhead charges supported a contractual misrepresentation entitling the respondent to rescission of the payment obligation.

The court held that this determination involved mixed fact and law, not a pure question of law appealable under s. 45(1) of the Arbitration Act, 1991, and further held that the amount and broader significance of the dispute did not justify leave.

Leave to appeal was denied and the respondent received partial indemnity costs.

In bankruptcy proceedings arising from non-payment under a promissory note tied to the sale of a New York condominium, the court interpreted the note's limited recourse clause as capping recovery at one-third of sale proceeds rather than restricting recourse solely to identifiable sale proceeds in specie.

On that interpretation, the creditor remained an unsecured creditor after the debtor received the sale proceeds and therefore had standing to pursue a bankruptcy order.

The creditor's motion for a Rule 39.03 examination was dismissed because no further factual inquiry was necessary to answer the debtor's legal motion.

The debtor's motion to dismiss or strike the bankruptcy application was also dismissed, and the application was adjourned by agreement pending further materials and cross-examinations.

This was a costs endorsement following a Rule 21 motion in which the defendants successfully struck three of four defamation allegations.

The plaintiff argued she had greater success overall or, alternatively, that there should be no costs or costs in the cause.

The court rejected those submissions, finding the defendants had achieved partial but meaningful success and that the reduced amount sought already reflected divided success and some duplication of effort by defence counsel.

Costs of the motion were fixed at $7,000 all-inclusive.

This was a costs endorsement following dismissal of an application seeking appointment of a sole arbitrator under a 2009 agreement.

The successful party sought $32,896.93, including partial indemnity fees to December 7, 2012 and substantial indemnity thereafter based on an offer to settle.

The court rejected substantial indemnity costs, found some of the successful party's arguments and cross-examination unhelpful or irrelevant, and reduced the requested amount.

Fair and reasonable costs were fixed at $22,000 all-inclusive, payable forthwith.

The applicant sought judicial review of a FSCO Delegate's decision upholding an arbitrator's finding that his entitlement to WSIB benefits precluded him from receiving statutory accident benefits (SABS).

The applicant argued the insurer was estopped from relying on his suspended licence to deny benefits and that the arbitrator erred in interpreting the onus under s. 59(2) of the SABS Schedule.

The Divisional Court dismissed the application, finding the Delegate's decision reasonable.

The insurer did not mislead the applicant, and the applicant failed to discharge his onus to prove his civil action was not commenced primarily for the purpose of claiming SABS.

In a contested shareholder proxy fight arising from a requisitioned special meeting, the applicants sought court supervision over meeting procedures under the Business Corporations Act, including appointment of an independent chair and invalidation of the management proxy form.

The court held that an independent chair would not be imposed absent evidence of demonstrated impropriety or a likelihood the proposed chair would act unfairly, and speculation about associations with incumbent management was insufficient.

The court also declined to invalidate the current proxy, finding it reflected the requisitioned resolutions, did not conflict with the governing statute or securities requirements, and better avoided voter confusion.

Issues relating to compliance of the dissident slate with the corporation's by-laws and proxy inspection logistics were left to be addressed in context if necessary after the meeting.

The tenants under two long-term ground leases appealed a majority arbitration award determining the fair market value of the lands for rent re-set purposes.

The court upheld the arbitrators' finding that the freehold interest, not the leasehold interest, was to be valued.

However, the court found the arbitrators erred in law by including the potential value of a freehold residential condominium project in the valuation, as a prior Divisional Court decision between the parties established that development potential unavailable to the tenants due to legal restrictions must be excluded.

Finding that issue estoppel applied to this prior determination, the court set aside the arbitration award and ordered a new hearing.