James Renihan

The applicant obtained a default judgment for fraud against the respondents regarding a tax loss allocation scheme.

He subsequently obtained an ex parte order under s. 101 of the Courts of Justice Act appointing a receiver over the respondents' assets.

Through further ex parte applications, the receivership was expanded into a broad investigative receivership freezing the assets of 43 additional non-party individuals and entities to protect the interests of thousands of other investors.

The Court of Appeal set aside the orders, holding that while s. 101 permits investigative receiverships in appropriate circumstances, the orders here were unjustifiably overreaching and went beyond protecting the applicant's judgment recovery.

The plaintiff moved for directions staying a defendant accountant's pending summary judgment motion alleging the claim was statute-barred under the Limitations Act, 2002.

The court held the proposed limitations issue was distinct from the merits of the negligence claims against both the accountant and the solicitor, and was not so intertwined with the broader proceeding as to make summary judgment inappropriate.

Applying the post-Hryniak approach, the court concluded that allowing the summary judgment motion to proceed could narrow issues and potentially extract one defendant from the litigation without unfairness.

The motion to stay the summary judgment motion was dismissed, with costs reserved.

The plaintiffs sued the defendant lawyers for negligent misrepresentation, alleging they relied on the lawyers' confirmation that a financing condition had been met.

During discovery, the plaintiffs refused to answer questions about the legal advice they received from their own counsel regarding the alleged confirmation.

The motion judge ordered the plaintiffs to answer the questions, finding they had waived solicitor-client privilege by placing their state of mind and reliance in issue.

The Divisional Court dismissed the plaintiffs' appeal, holding that fairness and consistency required disclosure of the legal advice to allow the defendants to adequately defend against the reliance claim.

The appellants moved to review an order of a single judge of the Court of Appeal that dismissed their motion to set aside a Registrar's Order dismissing their appeal for delay.

The panel admitted fresh evidence showing that the delay was due to the inadvertence of former counsel, who failed to provide the full explanation for the delay or evidence of the appellants' intention to pursue the appeal.

Finding that the appeal raised serious issues regarding the scope of a receiver's authority, the court set aside the dismissal orders, extended the time to perfect the appeal, and awarded costs to the appellants.

The appellant appealed an order dismissing its action against a foreign state on sovereign immunity grounds.

The court held that the appellant failed to meet its burden under the State Immunity Act to show that the foreign state's alleged involvement in a state-owned airline's decision-making constituted commercial activity rather than sovereign oversight as shareholder and pursuit of governmental objectives.

The court rejected the submission that the motion should await discoveries, holding that sovereign immunity must be determined before the action proceeds.

The appeal was dismissed with agreed costs.

Following dismissal of a motion brought by a claimant in insolvency proceedings, the joint official liquidators sought costs on a substantial‑indemnity basis.

The court considered the principles governing costs under Rule 57 and the Court of Appeal’s guidance that costs awards should be fair and reasonable rather than reflective of full indemnity.

Although the motion had been unsuccessful and described by the liquidators as frivolous, the court found the surrounding proceedings involved confusion and unresolved issues concerning entitlement to assets in multiple jurisdictions.

The court therefore declined to award substantial‑indemnity costs and instead ordered partial‑indemnity costs.

The amount claimed was reduced due to the use of two lawyers for a straightforward motion.

The Court of Appeal for Ontario issued a costs endorsement following an appeal.

The appellants were awarded costs for the motion in the amount of $15,000 against one respondent and $10,000 against the other.

The appellants were also awarded costs for the appeal in the amount of $12,000 against each respondent, for a total costs award of $49,000 inclusive of disbursements and taxes.

The court determined costs following the disposition of a civil proceeding.

After considering the parties’ written cost submissions and the relative success of the parties, the court found that the plaintiff had been more successful than the defendants.

Applying the principle that costs should reflect the reasonable expectations of the unsuccessful party, the court awarded the plaintiff partial indemnity costs.

The defendants were ordered to pay costs of $13,000 plus HST and disbursements of $585.25.

The EMEA Debtors sought leave to appeal an order approving an Allocation Protocol that provided for a joint trial by the Ontario Superior Court of Justice and the US Bankruptcy Court for the District of Delaware to allocate over US$7 billion in proceeds from the sale of Nortel assets.

The moving parties argued the joint trial violated the Ontario court's independence and that the parties had previously agreed to binding arbitration.

The Court of Appeal dismissed the motion for leave to appeal, finding the proposed appeal lacked prima facie merit as the joint trial did not infringe judicial independence and the relevant agreement did not mandate arbitration.

Following a successful motion, the defendants sought costs on a partial indemnity basis.

The plaintiff objected to several items in the defendants’ costs outline, including recovery of costs for cross-examining the plaintiff’s affiant, the attendance of two defence lawyers at a cross-examination in London, and recovery of business class airfare.

The court held that the cross-examination was reasonable and materially relied upon in the reasons for judgment, and that it was reasonable for two lawyers to attend given the complexity and stakes of the litigation involving a foreign government.

However, applying principles of proportionality and fairness in costs awards, the court found that business class airfare should not be imposed on the opposing party and reduced the disbursement to the equivalent of economy travel.

Costs were awarded accordingly.

The plaintiff RCI entered into an agreement to manufacture and install assembly lines for TMG in Ontario.

TMG later substituted its subsidiary TMC as the purchaser, allegedly providing assurances alongside its bank, Sparkasse, that they would guarantee payment.

When TMC failed to pay, RCI sued TMG and Sparkasse in Ontario for breach of contract and negligent misrepresentation.

The motion judge stayed the action, finding no jurisdiction simpliciter and that Ontario was forum non conveniens.

The Court of Appeal allowed the appeal, holding that Ontario had jurisdiction simpliciter based on the tort and contract occurring in Ontario, the forum selection clauses did not apply to the guarantee claims, and the defendants failed to show Germany was clearly a more appropriate forum.

Following a motion in which the defendants sought to strike the plaintiff’s statement of claim, the court addressed the quantum of costs.

The plaintiff was substantially successful in resisting the primary relief sought, although the defendants succeeded in striking certain remedies and a declaration for breach of contract, and in dismissing a minor abuse of process motion.

The court considered the factors under Rule 57 of the Rules of Civil Procedure, including success, proportionality, and the reasonable expectations of the losing party.

Given the divided success, the plaintiff’s entitlement to costs would be reduced.

The court directed the parties to exchange written submissions and a bill of costs regarding the quantum.

The plaintiff, Bombardier Inc., sued the Republic of Estonia and its state-owned airline, Estonian Air, alleging tortious interference in an aircraft purchase agreement.

The Republic brought a motion to stay the action against it, claiming state immunity under the State Immunity Act.

The court found that the Republic's waiver of immunity in a shareholders' agreement did not extend to the plaintiff, a non-party.

Furthermore, the commercial activity exception did not apply, as the Republic's role as a shareholder was not inherently commercial in the context of the transaction, and there was no evidence of the state unlawfully interfering with the purchase.

The motion was granted and the action against the Republic was permanently stayed.

The defendants brought a motion under Rule 21 to strike the plaintiff's statement of claim, which alleged breach of contract and breach of fiduciary duty by a corporate director.

The court struck the claims for a declaration of breach of contract, divesting the defendant of shares, and removing the defendant as a director, with leave to amend.

However, the court refused to strike the core claims for breach of fiduciary duty, disgorgement, and general damages, finding it was not plain and obvious that these claims would fail at trial.

The Canadian Debtors brought a motion for approval of an Allocation Protocol to determine the allocation of approximately $9 billion in sale proceeds among the global Nortel entities.

The EMEA Debtors opposed the motion and brought a cross-motion to compel arbitration, arguing the parties had agreed to arbitrate under the Interim Funding and Settlement Agreement.

The court dismissed the cross-motion, finding the agreement was merely an unenforceable agreement to agree.

The court granted the Canadian Debtors' motion, holding it had discretionary authority under the CCAA to approve the Allocation Protocol and that the parties had irrevocably submitted to the jurisdiction of the Canadian and U.S. courts.

Recognition proceedings were brought under the cross‑border insolvency provisions of the Bankruptcy and Insolvency Act concerning a foreign main liquidation proceeding in the Commonwealth of the Bahamas.

Multiple parties asserted competing claims to approximately $4 million in assets held by a Canadian financial institution.

Motions were pending regarding whether a stay of proceedings should be lifted or modified to permit bankruptcy proceedings in Canada or enforcement of claimed interests.

The court held there was insufficient time to fully argue the issues and maintained the existing interim stay and related orders to preserve the status quo pending a full hearing.

The endorsement emphasized that the interim directions were not intended to interfere with the foreign main proceeding.

The moving defendants sought an order compelling the plaintiffs to answer discovery questions and produce documents concerning communications with their solicitors regarding reliance on a lawyer’s email about the completion of an equity raise in a financing transaction.

The defendants argued that because the plaintiffs pleaded reliance on representations concerning the equity financing, solicitor-client privilege over related communications had been waived.

The court held that privilege is waived only where a party makes the receipt of legal advice a substantive element of its claim or defence.

The plaintiffs relied on factual representations in correspondence rather than on legal advice received from their counsel.

As a result, no express or implied waiver of solicitor-client privilege occurred and the motion to compel further discovery was dismissed.

Following a successful motion by the plaintiffs for leave to issue a Certificate of Pending Litigation and dismissal of a defendant’s cross-motion to strike affidavit evidence, the court determined the issue of costs.

The plaintiffs sought partial-indemnity costs supported by a detailed bill of costs.

The defendant argued that costs should be reserved for the trial judge due to limited financial resources, potential indemnification rights, and the plaintiffs’ CCAA protection.

The court held that impecuniosity, potential indemnification, and speculative trial costs considerations were not valid reasons to deny or delay a costs award.

Partial-indemnity costs were awarded to the successful moving parties.

The plaintiffs, a group of affiliated corporations under Companies’ Creditors Arrangement Act proceedings, brought a motion for leave to issue a Certificate of Pending Litigation against residential property owned by one defendant.

The plaintiffs alleged that corporate funds were improperly used to pay for renovations, maintenance, and improvements to the property and sought a constructive trust and tracing remedies.

The defendants opposed the motion and brought a cross‑motion to strike portions of the affidavit evidence filed in support of the motion.

The court held that the affidavit material was relevant and properly admitted and dismissed the cross‑motion.

Finding that the evidentiary record disclosed triable issues regarding alleged misappropriation of corporate funds and potential unjust enrichment supporting a constructive trust, the court granted leave to issue the Certificate of Pending Litigation.

The defendant brought a motion to remove the plaintiffs' counsel, arguing that a settlement agreement from prior litigation prohibited the counsel from acting for certain plaintiffs in this action.

The defendant also sought to strike portions of the statement of claim, alleging a breach of the deemed undertaking rule regarding a disputed document.

The plaintiffs brought a cross-motion to set a timetable.

The court dismissed the defendant's motion, finding that the current claims did not arise directly from the restructuring covered by the settlement agreement and that the deemed undertaking rule did not apply to documents incorporated into a settlement agreement.

The court granted the plaintiffs' cross-motion and imposed a case management timetable.