James William Earl Doris

The applicant sought an order rectifying a series of corporate transactions carried out in December 2007 to allow it to realize a tax loss of approximately $168 million to offset foreign exchange gains.

The Canada Revenue Agency had reassessed the applicant, disallowing the loss on the basis that the dissolution of a partnership was effected on a tax-deferred rollover basis under s. 98(5) of the Income Tax Act.

The court granted the application, finding that the parties had a continuing specific intention to carry out the transactions to create a tax loss, and that the failure to avoid the application of s. 98(5) was a mistake.

A motion by the applicant to amend its notice of application was dismissed as unnecessary.

Following dismissal of a motion seeking production of documents in insolvency proceedings under the Companies’ Creditors Arrangement Act, the court determined the quantum of costs payable to the successful parties.

Applying the reasonableness principle and the factors in Rule 57.01 of the Rules of Civil Procedure, the court assessed costs claimed by the monitor, the creditors’ committee, and the applicants.

The court rejected arguments that certain participants should receive reduced or no costs and instead fixed reasonable amounts reflecting their participation in the motion.

Costs were awarded to each successful party and ordered payable within 30 days.

In the context of CCAA proceedings, the moving party sought an order requiring the Monitor to disclose all information and documents it considered when reviewing proofs of claim submitted by another creditor group.

The moving party intended to use this information at a claims hearing to argue that the claims officer should apply the same standard of proof used by the Monitor.

The court dismissed the motion, finding that the roles of the Monitor and the claims officer under the claims procedure order were fundamentally different, and the request constituted an impermissible collateral attack on that order.

Furthermore, the court noted that comparing claims would result in an unnecessary trial within a trial and risk disclosing confidential lending practices.

In a joint cross-border insolvency trial concerning the allocation of approximately $7.3 billion in lockbox funds from the sale of global business lines and residual intellectual property, the court interpreted the Master R&D Agreement as an operating transfer-pricing document that granted limited licence rights but did not govern post-insolvency allocation.

The court rejected both the position that one Canadian debtor owned all sale proceeds by virtue of legal title and the position that the EMEA debtors jointly owned all intellectual property by operation of law.

Applying unjust enrichment principles and the broad remedial jurisdiction available in CCAA proceedings, the court held that a just result required a pro rata allocation among debtor estates based on allowed claims.

The court further directed that duplicate claims be counted only once for allocation purposes, that intercompany claims be included, and that interim distribution proposals be brought forward.

The appellants sought to certify a class action against the Ontario Lottery and Gaming Corporation on behalf of problem gamblers who had signed self-exclusion forms but were subsequently permitted to enter gambling venues and suffered losses.

The action alleged breach of contract, negligence, and occupiers' liability.

The Court of Appeal upheld the lower courts' decisions denying certification, finding that the claims required highly individualized inquiries into each class member's vulnerability, gambling history, and personal autonomy.

The court concluded that a class proceeding was not the preferable procedure as the common issues would not significantly advance the litigation.

The plaintiffs sought consent certification of a proposed securities class action alleging that the defendant mining company and certain officers misrepresented the scope and impact of water inflow problems at a Quebec gold mine, causing losses to purchasers of the company’s shares.

The court considered the certification requirements under s. 5(1) of the Class Proceedings Act, 1992 and, given the parties’ consent and the evidentiary record, found that the statutory criteria were satisfied.

The plaintiffs also sought leave under Part XXIII.1 of the Securities Act to pursue statutory secondary market misrepresentation claims.

The court held that the action was brought in good faith and that there was a reasonable possibility of success at trial.

Certification and leave were granted.

The appellants sought to commence proceedings against the Russian respondents in Ontario and attempted to serve them in Russia under the Hague Convention.

The Russian government refused service citing sovereignty and national security.

The appellants brought a motion in Ontario to dispense with or validate service under rules 16.04 and 16.08.

The Court of Appeal held that rule 17.05(3), which incorporates the Convention, is a complete code for service on foreign defendants in contracting states, and Ontario courts have no discretion to substitute, dispense with, or validate service where the Convention applies.

The appeal addressed whether a federal regulator had statutory authority to implement a market-based regime requiring negotiations over compensation for retransmission of local television signals.

The majority held the proposed regime exceeded statutory authority and conflicted with the copyright scheme governing retransmission rights and exceptions.

The dissent would have found a sufficient statutory basis and no operational conflict between the two statutes.

The appeal was allowed, with costs throughout.

The respondent in a proposed class action moved to strike the appellants' reply factum filed on a motion for leave to appeal.

The Court of Appeal granted the motion, finding that the respondent's factum did not raise any new issues but was entirely responsive to the appellants' factum.

Under Rule 61.03.1(11), a reply factum is only permitted if the responding party raises an issue on which the moving party has not taken a position.

The plaintiffs commenced an action in Ontario against Russian defendants and attempted to serve them in Russia pursuant to the Hague Service Convention.

The Russian Ministry of Justice refused to facilitate service, citing sovereignty or security concerns under Article 13 of the Convention.

The plaintiffs obtained an order from a Master validating service under Rule 16.08 of the Rules of Civil Procedure.

The defendants appealed.

The Superior Court of Justice allowed the appeal, holding that Rule 17.05(3) implements the Convention's exclusive methods for service in a contracting state, precluding the application of Rules 16.04 and 16.08 to substitute or validate service.

The Supreme Court of Canada considered a proposed plan of arrangement for a leveraged buyout of BCE Inc. that would add substantial debt to Bell Canada, reducing the trading value of its debentures.

The debentureholders opposed the arrangement, claiming oppression under s. 241 of the CBCA and arguing the arrangement was not fair and reasonable under s. 192.

The Court held that the directors' fiduciary duty is owed to the corporation, not to specific stakeholders, though directors may consider stakeholder interests.

The debentureholders failed to establish a reasonable expectation that their investment grade rating would be maintained.

The Court affirmed the trial judge's approval of the arrangement, finding it had a valid business purpose and resolved objections in a fair and balanced way.

The appellants, an investment management firm and minority shareholder, appealed the dismissal of their oppression application against the respondent corporation and its directors.

The application judge had found that the challenged related-party transactions were within the reasonable expectations of shareholders and protected by the business judgment rule.

The Divisional Court dismissed the appeal on the merits, finding no palpable and overriding error in the application judge's factual findings or application of the law.

The court upheld the award of substantial indemnity costs due to the appellants' unfounded allegations of misconduct and misuse of the court process, but allowed the costs appeal in part to deduct pre-application costs.

The appellant appealed the judgment of Justice Swinton.

The Court of Appeal dismissed the appeal, finding it unnecessary to comment on the standard of review and agreeing with the reasons of the motion judge which adequately dealt with the grounds of appeal.

Costs were awarded to the respondents.