Herman J. Wilton-Siegel

The appellant, TELUS Communications Inc., appealed a Superior Court decision regarding the constitutional validity of the Wireless Services Agreement Act 2013 (WSAA) and a class action.

The Court of Appeal dismissed the appeal, affirming the motion judge's findings that the WSAA was within provincial legislative jurisdiction and was not rendered inoperative by paramountcy or interjurisdictional immunity.

The court also rejected the appellant's request to stay the class action for CRTC determination, confirming the Superior Court's jurisdiction.

This costs endorsement followed multiple motions concerning the administration of the Estate of Peter Trezzi.

The court applied the modern approach to costs in estate litigation, considering public policy factors and the general civil litigation costs regime.

Costs were determined for four main matters: ownership of 18 Boyle Drive, extension of the applicant's Family Law Act rights, corporate assets, and share ownership of Across Canada Construction Ltd. The court also addressed costs for an adjournment motion, production orders, and consent orders.

The decision allocated costs between parties and the Estate, often finding that the Estate should bear costs due to issues arising from the deceased's actions or ambiguities in the will.

This costs endorsement follows an application where the applicant successfully challenged the deceased's will due to lack of testamentary capacity but failed on a claim of undue influence against one of the respondents.

The court determined that success was divided, with approximately two-thirds of the litigation pertaining to testamentary capacity and one-third to undue influence.

The applicant was awarded $30,000 from the Estate for her successful claim, while the respondents were awarded $34,750 from the Estate for their successful defense of the undue influence claim.

The court also considered the respondents' conduct, noting undue delays and the introduction of extensive, low-probative medical records.

Domfoam International Inc., an applicant in CCAA proceedings, sought leave under Rule 39.02(2) of the Rules of Civil Procedure to examine the president (Terry Pomerantz) and an employee (John Howard) of Domfoam Inc. (the Purchaser) as witnesses in relation to the Purchaser's motion to set aside a distribution order.

The core dispute concerned whether proceeds from an anti-trust class action (Dow Proceeds) were conveyed to the Purchaser in a prior transaction.

The court applied a four-part test for granting leave, finding that the examination of Pomerantz was relevant and responsive to matters raised during cross-examination of the Purchaser's lawyer, and that Domfoam provided a reasonable explanation for the delay.

However, leave to examine Howard was denied as the relevant issues concerning him were known prior to the initial cross-examination, and proportionality weighed against it.

Various defendants brought motions to strike the plaintiffs' statement of claim, which alleged civil conspiracy, defamation, intentional interference with economic relations, and unjust enrichment.

The court struck the claims for defamation, intentional interference with economic relations, and unjust enrichment against all applicants.

The civil conspiracy claim against one individual defendant (Moez Kassam) was struck, but the conspiracy claims against the remaining Anson Corporate Defendants, Adam Spears, Sunny Puri, ClaritySpring Inc., Nathan Anderson, Richard Molyneux, and Darryl Levitt were allowed to proceed.

The court also clarified that 'whistleblower' complaints to the Ontario Securities Commission are subject to absolute privilege and do not constitute the commencement of legal proceedings for the tort of abuse of process.

The applicant brought a motion under Rule 21.01(1)(b) to strike portions of the statement of claim or dismiss the action against them, arguing it failed to disclose a reasonable cause of action.

The plaintiffs had invested in a syndicated mortgage and lost their investment, alleging breach of contract, negligence, negligent misrepresentation, and civil conspiracy against various defendants.

The court found the pleadings deficient for all claims against the moving party due to a lack of specific facts establishing proximity, duty of care, or particulars as required by Rule 25.06(8).

The claims against the moving party were struck, but leave was granted to the plaintiffs to amend their statement of claim within 30 days.

Costs were awarded to the moving party on a partial indemnity basis.

CVC Ardellini Investments Inc. sought a declaration that the debt of the bankrupt Templar Hotel Corporation was at least $17 million, following a refinancing arrangement.

Del Terrelonge, a guarantor, argued the debt was limited to $8.5 million, contending the refinancing constituted a new loan.

The court found that the refinancing was a forbearance agreement, not a permanent reduction of the original debt.

Upon Templar's default, the full original debt amount became enforceable, and the provisions of the Interest Act and the Courts of Justice Act regarding penalties and forfeitures did not apply.

The motion was granted in favour of CVC Ardellini Investments Inc.

The applicant sought a declaration of invalidity for the testator's 2007 will on grounds of lack of testamentary capacity and undue influence.

The court found suspicious circumstances regarding the 2007 will, shifting the burden of proof to the respondents.

It was determined that the testator lacked testamentary capacity when executing the 2007 will, leading to its invalidation.

The 2006 will was consequently restored as the true last will and testament.

The claim of undue influence was not established.

The court issued a costs endorsement following extensive litigation concerning the guardianship of an individual with Down Syndrome and the administration of their property and personal care.

The dispute involved multiple family members acting as co-guardians, with issues arising from the treatment of government program funds, tax returns, and the passing of accounts.

While the substantive matters were resolved through a settlement, the court was tasked with determining the allocation of legal costs.

The court emphasized the paramountcy of the ward's best interests and the responsibility of co-guardians to resolve disagreements efficiently.

It found that the ward's estate should not bear the costs of the guardians' inability to cooperate.

Partial costs were awarded to the initial applicant against one respondent due to the latter's unresponsiveness to a legitimate legal concern.

Another respondent was ordered to pay partial costs to a different respondent for bringing a motion to replace a co-guardian without sufficient evidentiary support.

The Bank of Montreal (BMO) opposed the confirmation of a referee's report regarding a costs award in a CCAA proceeding.

The referee had fixed BMO's costs at $50,000 on a partial indemnity basis, finding that BMO's participation in the lien claimant litigation contributed little and was largely unnecessary, limiting costs to "salvage costs." BMO argued its extensive costs were caused by the Private Mortgagees' actions in asserting priority over lien claimants, which forced BMO's full participation.

The court, applying a deferential standard of review for referee reports, found no patent misapprehension of evidence or error in principle by the referee.

The court upheld the referee's decision, concluding that BMO should have sought costs from lien claimants or put Private Mortgagees on notice of its claim.

BMO's alternative argument to tack costs onto its security via debenture provisions was also rejected as res judicata, as the referee had already determined reasonable costs.

The applicant, a minority shareholder and employee, alleged constructive dismissal due to reduced compensation (loss of personal expense reimbursement via corporate cards) and corporate oppression under s. 248 of the Business Corporations Act, seeking payment for lost benefits and an order for Metcom to purchase his shares.

The court dismissed all claims, finding that the card privileges were an informal shareholder arrangement personal to the previous majority shareholder and the applicant, not an employee compensation entitlement, and were subject to the corporation's financial capacity.

Furthermore, the applicant's expectation for share repurchase lacked a legal basis, as there was no shareholders' agreement or other binding arrangement.

The Canadian Hearing Society (CHS) brought a motion seeking to dismiss the application of the corporate applicant, The Campaign for the Inclusion of People who are Deaf and Hard of Hearing (the "Campaign"), for lack of standing, and to stay the application of the individual applicants, Ian Silver and Keith Golem, pending arbitration.

The court found that the Campaign was not a "complainant" under the Canada Not-for-Profit Corporations Act as it lacked a private right and reasonable expectation, and its representative authority was questionable.

The court also determined that the individual applicants' oppression claims were subject to arbitration clauses in the CHS by-laws.

Consequently, the Campaign's application was dismissed, and the Individual Applicants' application was stayed pending arbitration.

Costs were awarded to the CHS.

Alfrida Gina Trezzi sought a declaration that she was a 50% owner of Across Canada Construction Ltd. (ACC) shares.

Albert Trezzi opposed, arguing her claim was statute-barred and that she was not a shareholder.

The court dismissed the limitation period argument.

However, the court found no evidence that ACC ever issued shares to Gina, despite unexecuted organizational documents suggesting a 50/50 split with Peter Trezzi.

The court rejected the application of statutory presumptions under the Business Corporations Act and Securities Transfer Act, concluding Gina failed to prove her ownership claim.

Albert's cross-application for a declaration that Peter's estate owned all shares was also declined as the hearing only addressed Gina's alleged ownership.

Alectra Utilities Corporation sought to set aside an arbitration award of $12.3 million in favour of Solar Power Network Inc. (SPN), while SPN sought to enforce it.

The arbitration arose from a dispute over the termination of a Fee-In Tariff Programme agreement (PAMA) by Alectra's predecessor, PowerStream, which the arbitrator found to be in bad faith.

The court upheld the arbitrator's jurisdiction to consider bad faith in the exercise of a contractual right, finding that the PAMA's "sole discretion" and "not subject to dispute" clauses did not insulate bad faith termination.

However, the court found the arbitrator exceeded his jurisdiction by awarding damages for loss of profits, as the PAMA explicitly excluded such damages for breaches of covenant, and SPN's claim was deemed a breach of an implied covenant of good faith.

Alectra's application to set aside the award regarding damages for loss of profits was granted, and SPN's application to enforce the award was denied.

The Debtor appealed a Master's order lifting a stay of proceedings under the Bankruptcy and Insolvency Act (BIA), which had arisen upon the Debtor's filing of a proposal.

The Master found that the Respondent creditor would be materially prejudiced by the continued stay and that it was equitable to lift it, allowing the Respondent's $1 million claim to be quantified in a civil action rather than through the summary procedure under s. 135 of the BIA.

The appeal court upheld the Master's decision, finding no error in concluding that the Respondent had established some chance of success in its civil action and that the civil action was the appropriate forum for determining the complex, credibility-dependent claim against both the Debtor and a co-defendant, thereby avoiding inconsistent findings and prejudice.

The applicant, Canadian Home Publishers Inc. (general partner), and the respondents, estate trustees of David Colville-Reeves (sole limited partner), sought conflicting determinations regarding the entitlement to profits and residual assets of Canadian Home Publishers (CHP), a limited partnership.

The court determined that CHP was dissolved upon David's death because his executors did not become substituted limited partners without consent or prior authorization.

Consequently, CHP must be wound up, and its residual assets are to be distributed equally between the general partner (Lynda Reeves, owner of CHP Inc.) and David's Estate, as per the Partnerships Act.

The court dismissed the respondents' promissory estoppel argument, finding no formal representation or detrimental reliance, and doubted its applicability against mandatory statutory provisions.

The applicants sought a declaration that the respondent's proposed mandatory conversion of outstanding convertible preferred shares would contravene its Articles of Continuance.

The central issue was the interpretation of the "Liquidity Condition" within the Mandatory Conversion Provision, specifically whether the average daily trading volume should be restricted to the Toronto Stock Exchange (TSX) alone or include all trading reported in the TSX Composite index (which aggregates trading from TSX and alternative trading platforms).

The court, applying principles of statutory and contractual interpretation, found that the Liquidity Condition should include all transactions reported in the TSX Composite, thereby dismissing the applicants' request for a declaration and their related oppression claim.

The Applicants, ICP and JCP, each sought the appointment of an arbitrator under the Arbitrations Act, 1991, for disputes arising from a share offer and acceptance.

The court addressed whether the arbitrations should be consolidated, the appropriate size of the arbitration panel (single vs. three arbitrators), and the composition of the panel, including issues of res judicata regarding a prior ruling on panel size and reasonable apprehension of bias concerning a nominated arbitrator.

The court determined that separate arbitrations were required for QSA and PSA disputes, that a three-member panel was intended by the QSA, and appointed Mr. Ferrier and Mr. Scott to the QSA panel, rejecting Mr. Cunningham due to apprehension of bias.

The applicants sought specific performance of an agreement of purchase and sale for a property containing a chapel, asserting its uniqueness for their business.

The respondents did not contest the agreement's enforceability but challenged the availability of specific performance.

The court found the applicants' evidence insufficient to establish the property's uniqueness, as required by *Semelhago v. Paramadevan*, lacking details on the property, the nature of the business, or a search for similar properties.

The motion for specific performance was dismissed, and the parties were directed to address damages.

This supplementary endorsement clarifies the scope of a previous endorsement regarding a motion for leave to commence a derivative action.

The court clarified that its prior decision assumed, without deciding, the arguable case for the causes of action and did not consider arguments regarding whether the derivative action was in the corporation's interest or brought in good faith, thereby preserving the parties' ability to advance these positions on appeal.