Ian Jacob Breneman

The defendants moved to dismiss or stay the plaintiff's action as an abuse of process, arguing the plaintiff should have amended a stayed counterclaim in a prior construction lien action instead of commencing a new proceeding.

The plaintiff cross-moved for leave under s. 38 of the Bankruptcy and Insolvency Act (BIA) to continue the action on behalf of the bankrupt corporation's creditors.

The court dismissed the defendants' motion, finding no abuse of process as the counterclaim was stayed due to bankruptcy and there was no multiplicity of proceedings.

The court also held that the plaintiff did not require s. 38 authorization because the claims sought to pierce the corporate veil against the bankrupt's alter egos, which were personal claims not belonging to the bankrupt's estate.

The moving party brought a motion for leave to appeal an order dated January 18, 2024.

The Divisional Court dismissed the motion for leave to appeal.

As the responding parties did not provide a cost outline, the court made no order as to costs.

The respondents brought a motion to quash the appellant's appeal, arguing that the order appealed from was interlocutory and therefore the proper appeal route was to the Divisional Court with leave.

The Court of Appeal agreed, finding that the order dismissing the appellant's motion to compel witness attendance for examination on jurisdictional grounds was interlocutory and did not finally dispose of any party rights.

As such, the Court of Appeal lacked jurisdiction, and the appeal was quashed.

The Court allowed the appeal and quashed the National Energy Board authorization for offshore seismic testing in Baffin Bay and Davis Strait.

It held that the Board’s approval process triggered the Crown’s duty to consult, and that the Crown may rely on a regulatory process to fulfill consultation obligations where that process is adequate.

On these facts, consultation was inadequate given the significance of Inuit treaty harvesting rights, the potential impacts of testing, limited participation opportunities, and insufficient accommodation.