James Renihan

The defendants brought motions for leave to appeal a decision and a subsequent reconsideration decision of the motion judge.

The Divisional Court dismissed both motions for leave to appeal without costs.

The applicants sought judicial review to quash a municipal by-law authorizing the sale of a surplus strip of land to an adjacent property owner, and moved to review a single judge's decision denying leave to obtain a certificate of pending litigation.

The Divisional Court declined to consider the merits of the judicial review application, finding the sale was a private transaction of limited public character, the applicants had delayed in pursuing their interest, and the transaction had already closed with a bona fide purchaser for value.

The court also dismissed the motion for a certificate of pending litigation, as the applicants could not establish a triable interest in the land.

The appellant retained the respondent to provide strategic advice for a hostile takeover of a competitor.

The contract included a success fee payable upon the appellant gaining control of the target's management.

After an initial meeting requisition strategy failed, the appellant pursued a consensual purchase transaction without the respondent's involvement.

The trial judge found the contract was goal-focused and awarded the success fee and management fee to the respondent.

On appeal, the Court of Appeal found no extricable errors of law or palpable and overriding errors in the trial judge's interpretation of the contract.

The appeal was dismissed.

The Receiver of a joint venture condominium project brought a motion within the receivership proceeding seeking judgment against the developer and its principal for over $1.5 million.

The claims arose from alleged inflated labour charges under a Construction Management Agreement and unearned fees under a Development Management Agreement.

The court held that the claims were properly brought within the receivership proceeding.

However, the claim for inflated labour charges was dismissed as statute-barred, having been discovered more than two years before the motion was commenced.

The court declined to grant immediate judgment on the unearned fees claim, directing that the developer's defence of set-off be determined following documentary and oral discovery.

Following the dismissal of the plaintiff's action for breach of fiduciary duty and knowing assistance, the defendants sought costs.

The Primary Defendants sought full indemnification pursuant to the plaintiff's corporate by-laws, while the Consultant Defendants sought full indemnity costs based on the plaintiff's unfounded allegations of dishonesty and self-dealing.

The court awarded the Primary Defendants full indemnification totaling over $9.4 million, finding no reason to depart from the by-laws.

The Consultant Defendants were awarded substantial indemnity costs of approximately $2.4 million, as the plaintiff's conduct in pursuing serious, unfounded allegations justified an elevated scale of costs.

Following the dismissal of the Receiver's motion to approve a sublease, the successful responding parties (the Oxford Parties) sought costs of $707,229.66 on a substantial indemnity basis, or alternatively $558,187.26 on a partial indemnity basis.

The Receiver argued no costs should be awarded or, alternatively, $250,000.

The court held that while restructuring proceedings are often not classic adversarial litigation, this dispute between commercial competitors warranted a costs award.

The court declined to hold the Receiver personally liable, ordering costs payable from the debtor's estate.

Finding the Oxford Parties' settlement offer non-compliant with Rule 49, the court awarded partial indemnity costs fixed at $400,000.

In an insolvency receivership involving Yorkdale leasehold interests, the court considered whether to approve a receiver-negotiated sublease entered without landlord consent and whether ancillary relief should issue.

Applying the contractual framework under the Head Lease and Commercial Tenancies Act, and considering insolvency discretion under the Bankruptcy and Insolvency Act, the court held the landlord had not unreasonably withheld consent.

The court further held that s. 84.1 of the BIA did not apply directly or by analogy to the proposed sublease structure.

On a broader stakeholder-balancing analysis, the court found unfairness in the process and insufficient commercial soundness to justify discretionary approval.

The motion to approve the new sublease was dismissed, and ancillary relief was not addressed.

The applicant sought relief in a motion before the Court of Appeal for Ontario.

The court reviewed the record and applied the governing legal and procedural standards, including deference to factual and discretionary determinations where required.

The matter concluded with the following disposition: Motion granted.

The appellant purchased a condominium unit under an agreement of purchase and sale in a building that subsequently entered receivership.

The receiver sought to disclaim the purchase agreement to maximize asset recovery.

The appellant opposed the disclaimer, relying on a supplementary agreement with the developer and its president.

The motion judge found the supplementary agreement unenforceable due to an entire agreement clause in the subsequent purchase agreement and granted the disclaimer order.

The appellant appealed on three grounds: that the motion judge failed to apply the Tercon test for entire agreement clauses, failed to consider public policy, and erred in applying the disclaimer test regarding equities.

The Court of Appeal dismissed the appeal, finding the motion judge properly conducted the Tercon analysis, identified no overriding policy reason to override the contractual terms, and correctly applied the disclaimer test by considering all circumstances and concluding the equities did not support preferring the appellant's claim over other creditors.

The applicant, a property owner leasing space to food trucks, sought an interim injunction to stay the enforcement of the City of Brampton's new Mobile Licensing By-law pending a judicial review application.

The new by-law removed a previous exemption that allowed food trucks to operate in the downtown area with the local BIA's consent, instead permitting them anywhere downtown provided they are 50 metres from a fixed food premise.

The Divisional Court dismissed the motion, applying the RJR-MacDonald test.

The court found no serious issue to be tried as municipal by-laws cannot be challenged for unreasonableness and the City owed no duty of procedural fairness when acting legislatively.

The applicant also failed to demonstrate irreparable harm, and the balance of convenience favoured the public interest in enforcing the validly enacted by-law.

The applicants appealed an arbitration award that upheld the termination of their Canadian Tire dealer contract and applied to set aside the award on procedural fairness grounds.

The termination arose after the dealer processed a bulk sale of nearly $1 million in air fryers to a reseller and subsequently failed to reverse the transaction as requested, instead substituting other products.

The Ontario Superior Court of Justice found that the arbitrator applied the correct legal test for wilful blindness and did not breach procedural fairness.

Consequently, the court dismissed the appeal and upheld the arbitrator's decision.

The court fixed costs following trial in favour of Kingsdale Partners LP, the successful party, in the amount of $475,000.00 on a partial indemnity basis.

The decision reviews the factors relevant to the exercise of discretion under section 131 of the Courts of Justice Act and Rule 57.01, including the complexity of the litigation, the conduct of the parties, and the reasonableness of the costs claimed.

The court reduced the amount sought due to concerns about duplication of work and high hourly rates, but found the overall claim proportionate to the litigation and the parties' resources.

The court considered whether Kingsdale Partners LP was entitled to a success fee from Sprott Asset Management LP under an engagement agreement relating to Sprott’s acquisition of Central Fund of Canada Ltd. (CFCL).

The court found that the agreement was not limited to a single strategy and was not terminated prior to Sprott’s acquisition of CFCL’s assets.

The court held that Kingsdale was entitled to the success fee and an additional management fee, rejecting Sprott’s arguments that the fee was not triggered or should be de minimis due to the structure of the transaction.

The court granted a bankruptcy order against Thomas Dylan Suitor, finding that the applicant, The Fuller Landau Group Inc. (as Receiver of The Lion’s Share Group Inc.), established the necessary statutory requirements under the Bankruptcy and Insolvency Act.

The court found that Mr. Suitor was personally liable under promissory notes as both borrower and guarantor, that he owed debts exceeding $1,000, and that he had ceased to meet his liabilities generally as they became due.

The court also found the existence of multiple creditors and/or special circumstances justifying the order, and declined to exercise its discretion to refuse the order.

The appellant, an investment advisor, received a recruitment bonus structured as a loan to be forgiven annually if revenue targets were met.

After the employer failed to credit bonuses for two years, the parties signed an Amended Note extending the repayment period and acknowledging the unpaid bonuses.

Following his termination, the respondent sued to enforce the Amended Note.

The appellant argued the Amended Note lacked fresh consideration.

The Court of Appeal upheld the motion judge's finding that the Amended Note was supported by valid consideration, including clarification of the parties' relationship, tax deferral benefits, and an extended interest-free period.

The appeal was dismissed.

The applicants sought judicial review of a decision by the Downtown Brampton Development Corporation (BIA) to withdraw its support for a pilot Food District operating on the applicants' property.

The BIA had previously endorsed the project subject to certain conditions but later revoked its approval after receiving complaints from competing businesses, without giving the applicants notice of the motion or an opportunity to be heard.

The Divisional Court applied the Baker factors and found the BIA's process was procedurally unfair.

The application was granted and the BIA's decision was quashed.

CS Capital Limited, a secured creditor and mortgagee, brought a motion seeking a declaration that its mortgage had priority over construction lien claims on a property.

The court dismissed the motion, finding that the mortgage was not registered prior to the time the first lien arose in respect of the overall improvement project.

Furthermore, the court determined that the mortgage was a collateral mortgage securing a guarantee of a separate debt, and therefore no "advance" was made in respect of it for the purposes of priority under the Construction Act.

Aimia Inc. brought an application under s. 104 of the Securities Act alleging that Mithaq Capital SPC's acquisition of shares a year prior constituted a deemed take-over bid because Mithaq acted jointly with others to exceed the 20% threshold.

Mithaq brought a motion to dismiss the application on a preliminary basis.

The Capital Markets Tribunal found that while Aimia had standing to bring the application, the application was an abuse of process.

The Tribunal dismissed the application because Aimia's long delay in seeking relief, combined with significant intervening events, made the application a misuse of the Tribunal's procedure.

The court-appointed Receiver of The Lion's Share Group Inc. (LS), a real estate investment company in insolvency, sought an order declaring certain promissory notes as valid charges on real property, requiring their registration, and expanding the receivership to include The Windrose Group Inc. The promissory notes, issued by LS to borrowers, included provisions for registration on title upon default, but the Land Registry Office required a court order.

Objecting noteholders requested an adjournment due to short service.

The court granted the Receiver's requests, finding the notes created equitable mortgages and that the matter was urgent due to the risk of asset dissipation.

The court also approved the expansion of the receivership and the Receiver's First Report, while providing a comeback hearing for affected parties to address any prejudice.

This is a costs endorsement following motions regarding refusals on cross-examinations in a proposed class action.

The plaintiff's motion for refusals was largely dismissed, while the Solart defendants' cross-motion regarding the plaintiff's refusals was allowed.

The court considered various factors under Rule 57.01(1) of the Rules of Civil Procedure and Section 131(1) of the Courts of Justice Act, emphasizing that substantial indemnity costs are reserved for "reprehensible, scandalous, or outrageous conduct." While the plaintiff's counsel's conduct was deemed unreasonable, it did not generally meet this high threshold, except in the case of Martin Yockell, where class counsel's conduct during cross-examination was found to be reprehensible, warranting substantial indemnity costs.

The court also addressed the recoverability of costs for pro bono counsel and costs thrown away.