James Renihan

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 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.

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.

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.

The plaintiff, Brant Securities Limited, moved for summary judgment to enforce a promissory note against the defendant, Donald Goss.

Mr. Goss resisted enforcement and sought summary judgment on his counterclaim, which included claims for unpaid bonuses, losses from share sales, and wrongful dismissal damages.

The court found the original and amended promissory notes valid and enforceable, rejecting Mr. Goss's arguments regarding failure of consideration, authenticity of signature, and lack of consideration for the amended note.

The court dismissed Mr. Goss's claims for unpaid bonuses (due to resolution by amended note and limitation period) and share sale losses (due to lack of reliance, failure to exercise put right, and limitation period).

However, the court granted Mr. Goss's claim for $33,616.60 in unpaid Employment Standards Act benefits, setting off this amount against the sum owed on the promissory note.

Premier Implementation Solutions Canada Inc. sought an urgent interim injunction against Unifor, Local 222, to prevent obstruction of ingress and egress at Del Monte Fresh Produce (Canada) Corp. premises during a lawful strike.

Premier argued that Unifor's actions constituted unlawful picketing and nuisance, causing irreparable harm due to spoilage of fresh produce and potential loss of clients.

Unifor challenged the motion on grounds of union suability, failure to name individuals, and Premier's standing.

The court granted the injunction, finding a serious issue to be tried, irreparable harm to Premier and Del Monte, and that the balance of convenience favored Premier, as the injunction only prevented unlawful obstruction, not lawful picketing.

The appellant landlord appealed a judgment finding it in breach of a commercial lease, granting specific performance, and awarding damages to the respondent tenant.

The Court of Appeal found no error in the trial judge's findings, interpretation of the lease, grant of specific performance, or assessment of damages, noting the appellant failed to present expert evidence to challenge the damages methodology at trial.

The appeal was dismissed.

The plaintiff in a proposed class action brought a motion to compel answers to questions refused by various defendants during cross-examinations on affidavits filed for a certification motion.

The Solart defendants brought a cross-motion to compel the plaintiff to answer questions he refused during his cross-examination.

The court dismissed the plaintiff's motion, finding the questions posed to the defendants were irrelevant, unanswerable, or sought legal opinions.

The court granted the defendants' cross-motion, ordering the plaintiff to re-attend and answer questions related to the common issues, as they were relevant to testing the certification requirements.

The plaintiff and several defendants brought cross-motions to compel answers to undertakings, questions taken under advisement, and refusals from examinations for discovery.

The underlying action involves allegations by the plaintiff that the defendants engaged in a plan to cause financial harm and confer unlawful benefits upon their departure from the organization.

The court applied principles of relevance and proportionality, ordering the parties to answer certain questions and fulfill specific undertakings while upholding refusals for questions that were irrelevant, disproportionate, or improper.

This case involved a dispute over a 20-year commercial lease agreement between Bellwoods Brewery Inc. (Tenant) and 1896841 Ontario Limited (Landlord) for a second brewery and event space location.

Bellwoods alleged the Landlord breached the lease by failing to vacate the premises as required, delaying their operations.

The Landlord counterclaimed for unpaid rent.

A separate action by Lennard Commercial Realty for unpaid commission was also heard.

The court found the Landlord in breach of the lease for failing to vacate the premises and ordered specific performance of the lease, along with significant damages to Bellwoods for lost profits due to the delay.

The Landlord's counterclaim was dismissed.

Lennard's action for commission was also dismissed, as the contract stipulated payment upon occupancy, which had not yet occurred.

This appeal concerned whether a "Royalty Purchase Agreement" constituted an advance of credit subject to the criminal interest rate provisions of section 347 of the Criminal Code.

The appellant, Hybrid Financial Ltd., argued that a buyout option payment under the agreement resulted in a criminal rate of interest.

The application judge had dismissed Hybrid's claim, characterizing the agreement as an equity investment and finding the payments not to be 'interest' or triggered by a voluntary act.

The Court of Appeal overturned this, holding that the substance of the transaction was an advance of credit, the buyout payment constituted 'interest' under the broad definition in section 347, and a contractual 'Maximum Permitted Rate' clause prevented the application of the 'voluntary act' exception, ensuring a lawful rate.

The matter was remitted to the Superior Court for determination of the buyout amount under the adjusted rate.

Porter Airlines and Nieuport Aviation disputed the calculation of terminal fees at Billy Bishop Airport under a Licence Agreement.

Porter argued it could pay fees based on a variable daily slot allocation and claimed force majeure due to the COVID-19 pandemic to excuse non-payment.

Nieuport argued fees were based on a fixed, recurring number of daily slots and counterclaimed for unpaid fees.

The court held that the Licence Agreement required payment based on a fixed number of recurring daily slots.

The court also found that the COVID-19 pandemic did not trigger the force majeure clause to excuse Porter's payment obligations.

Porter was ordered to pay over $131 million in damages for unpaid terminal fees, while Nieuport's recourse under a guarantee was limited to specified aircraft.

The plaintiff moved for summary judgment seeking payment of a liquidated debt of $795,852.80 plus post-judgment interest, arising from the defendants' breach of a 2014 agreement regarding unpaid royalties and an indemnity.

The defendants did not oppose the motion.

The court found the plaintiff's materials amply supported the claim and granted judgment in the requested amount, along with agreed partial indemnity costs of $20,369.42.