Jason Albert Wadden

This five-judge appeal reconsidered the common law governing non-disclosure of partial settlement agreements in multi-party civil litigation.

The court held that the prior rule mandating an automatic finding of abuse of process and an automatic stay, without proof of prejudice or regard to proportionality, was wrongly decided and should be overruled.

The proper approach requires a contextual and discretionary abuse of process analysis focused on unfairness, prejudice, oppression, harm to the administration of justice, and a proportionate remedy, with r. 49.14 of the Rules of Civil Procedure reinforcing that framework.

Applying that approach, the court allowed two appeals and remitted those matters, while dismissing two others where the record was sufficient to determine the result.

In a costs endorsement following a security-for-costs motion, the court considered competing claims under Rules 49.10 and 49.13 of the Rules of Civil Procedure.

The responding parties argued their settlement offers attracted mandatory costs consequences, while the moving party sought full partial-indemnity costs as successful party.

The court held the offers were not equivalent or more favourable than the prior order and therefore did not trigger Rule 49.10, but gave them weight under Rule 49.13.

Given divided success and proportionality, the court reduced the amount claimed and fixed costs payable to the moving party.

The court considered whether the Receiver could disclaim an agreement of purchase and sale for a condominium unit, where the purchaser (Berry) claimed entitlement to specific performance and an equitable interest in the unit.

The Receiver, supported by the senior secured creditor, sought to maximize recovery for creditors.

The court found that Berry had not paid the full purchase price, that the supplementary and "as is, where is" agreements were not enforceable, and that the equities did not support a preference for Berry over other creditors.

The Receiver was authorized to disclaim the agreements.

The court-appointed receiver brought a motion seeking a declaration that the debtor had no automatic right of appeal from an Approval and Vesting Order under the Bankruptcy and Insolvency Act, and an order denying leave to appeal.

The debtor argued it had an automatic right of appeal under s. 193(a) or (c) of the BIA, or alternatively sought leave under s. 193(e).

The Court of Appeal held that the debtor had no automatic right of appeal, as the order did not affect future rights or result in a direct loss exceeding $10,000.

The Court also denied leave to appeal, finding the proposed appeal lacked merit, did not raise an issue of general importance, and would unduly hinder the insolvency proceedings.

This decision concerns the interpretation and distribution of proceeds from a Legal Expense Insurance (LEI) policy following the unsuccessful outcome of a personal injury trial.

The court considered whether the applicant (Spencer and Elite Insurance Company) or the respondent (Belton) was entitled to the policy funds, and whether the funds should be shared pro rata between costs and disbursements.

The court held that the policy funds were to be paid to the applicants to offset their costs, as the law firm (MHA) had abandoned its claim for disbursements, and that Belton was not a beneficiary entitled to direct the use of the funds.

The Debtors (corporate and individual) sought leave to appeal two orders made in a receivership proceeding: an Approval and Vesting Order (AVO) for the sale of two residential properties and a Sale Procedure Order (SPO) for vacant development lands.

The Court of Appeal considered whether leave to appeal was required under s. 193 of the Bankruptcy and Insolvency Act and, if so, whether it should be granted.

The court concluded that leave was required under s. 193(e) as the orders did not fall under categories allowing appeal as of right (ss. 193(a)-(d)), primarily because they concerned present rights and methods of asset realization rather than affecting future rights or the value of property in a way that would trigger an automatic right of appeal.

The court further determined that leave should not be granted, finding the proposed appeal was not prima facie meritorious, as the lower court's discretionary decisions were entitled to deference, and the appeal did not raise issues of general importance.

Granting leave would also unduly hinder the insolvency proceeding.

The Noble Defendants brought a motion to dismiss or stay the action, alleging abuse of process due to the plaintiffs' failure to immediately disclose a settlement agreement (the "Bowen Agreement") with co-defendant David Bowen.

The court found that the plaintiffs failed to disclose key terms of the Bowen Agreement, which changed the adversarial dynamic between the plaintiffs and Bowen, thus constituting an abuse of process.

Despite the judge's personal reservations about the Noble Defendants' conduct, the court was bound by Court of Appeal jurisprudence to stay the action.

The motion to stay was granted.

The applicant sought to recognize and enforce a Chinese arbitral award against the respondent for unpaid automotive parts.

The respondent opposed, arguing it was denied the opportunity to present its case when the arbitral tribunal refused its request to retain appraisers, and that enforcement would violate public policy.

The Superior Court of Justice granted the application, finding the tribunal's procedural decisions did not offend basic notions of justice and the public policy exception was not met.

The court also struck out portions of the respondent's affidavit evidence as inadmissible hearsay and strongly reprimanded the applicant's counsel for uncivil courtroom behaviour.

The applicants sought an order compelling Martin & Hillyer Associates to produce an unredacted adverse costs insurance policy.

Martin & Hillyer had provided a partially redacted copy, claiming privilege and confidentiality over certain portions.

The court found that the redacted portions were neither privileged nor confidential, as the policy contained generic wording common to such contracts and did not include solicitor-client communications or litigation strategy.

The court emphasized that the entire policy was relevant for proper contractual interpretation.

The application for production was granted.

The appellants appealed an approval and vesting order that authorized a receiver to sell a property in receivership.

One of the appellants, a second mortgagee, sought to redeem the first mortgage or be recognized as a successful creditor bidder, arguing an absolute right to redeem under the Mortgages Act.

The Court of Appeal dismissed the appeal, affirming the motions judge's decision that the right to redeem is qualified once a court-approved sales process has been undertaken in a receivership.

The court emphasized balancing the right to redeem against the integrity of the court-supervised sales process, finding no error in the motions judge's conclusion that the sales process was fair and the balance favoured its integrity.

The applicant brought a motion to strike the respondent's affidavits, arguing they contained inadmissible hearsay, opinion, argument, and constituted "fresh evidence" without leave.

The court emphasized the strict rules of evidence for affidavits, noting a troubling trend of non-compliance.

The court struck several paragraphs for inadmissible hearsay due to failure to specify sources and belief, and for inadmissible opinion and argument from lay witnesses.

The court rejected the "fresh evidence" argument, clarifying that the tests for fresh evidence do not apply to evidence filed before the main application hearing.

Leave to amend was granted for some struck paragraphs where deficiencies could be cured, but denied for others, particularly those containing opinion evidence from unqualified affiants.

No costs were awarded due to divided success and unreasonable positions taken by both parties.

The court-appointed receiver brought a motion for an approval and vesting order (AVO) to sell a real estate development property to a third-party purchaser.

A second mortgagee and joint venture participant brought a cross-motion to redeem the property or, alternatively, for approval of its credit bid.

The court dismissed the cross-motion, finding that allowing a redemption after a court-approved sale process had concluded would undermine the integrity of the process.

The court granted the receiver's motion, holding that the proposed sale satisfied the Soundair principles, as the receiver acted providently, considered all stakeholders' interests, and conducted a fair and commercially efficacious process.

The court heard three service and pleadings-related motions in a complex fraud action.

The defendant Mark Gross successfully moved to set aside a prior ex parte order validating service on him, arguing the claims against him were intertwined with insolvent corporate defendants and should be addressed in commercial list insolvency proceedings.

Three numbered company defendants successfully moved to set aside their noting in default, as they had not been given notice of the default proceedings while a motion to validate service on them was pending.

The plaintiffs' motion to validate service was granted for the numbered companies and one individual defendant who had actual notice, but dismissed regarding other defendants due to insufficient evidence of notice or efforts to serve.

The applicants brought a motion for leave to appeal the decision of David L. Edwards J. dated December 15, 2021.

The Divisional Court allowed the motion for leave to appeal.

Costs of the motion were fixed at $5,000, to be determined by the panel hearing the appeal.

This appeal concerned the enforcement of letters rogatory issued by a California court in a divorce action, seeking financial disclosure from Canadian corporations and an individual.

The Ontario application judge granted the request, subject to minor refinements.

The appellants, corporate entities associated with the husband, argued procedural errors (lack of service) and substantive errors (wrong test applied, fishing expedition, burden of proof).

The Court of Appeal dismissed the appeal, affirming that the disclosure was relevant to family law obligations and not a fishing expedition, and that the application judge correctly applied the criteria for enforcing letters rogatory, including principles of comity and public policy.

The court also found that the documents were not otherwise obtainable given the husband's history of non-compliance.

The plaintiffs brought a motion to compel production of documents, answers to refused questions, and re-attendance for further examinations of several defendants and a non-party witness following cross-examinations on an affidavit and examinations under Rule 39.03.

The examinations were conducted in the context of a pending motion by the defendant Purchaser Corporations to discharge certificates of pending litigation.

The court granted partial relief, ordering the production of share purchase agreements and answers to specific questions regarding corporate control and share transfers, finding them relevant to the bona fides of the property transactions.

The court dismissed the requests for voluminous due diligence documents as overbroad and declined to order re-attendance for further examinations.

The defendants were successful in obtaining a temporary stay of the Ontario action and sought costs of the motion on a partial indemnity scale.

The plaintiff argued that costs should follow the cause and be awarded upon final disposition, or that the parties should bear their own costs because the defendants were only partially successful.

The court rejected the plaintiff's arguments, finding the defendants were the successful parties and entitled to costs payable forthwith.

Costs were fixed at $23,687.55 on a partial indemnity scale.

The applicants and respondents, involved in a joint venture for a condominium development, experienced an irrevocable breakdown in their relationship.

Both sides agreed the property should be sold but disagreed on the mechanism: the applicants sought the appointment of a receiver, while the respondents sought a signing officer with limited powers.

The court found it just and convenient to appoint a receiver to conduct the sales process, concluding that a receivership would not stigmatize the property and that the receiver's powers could be appropriately tailored to consider existing offers.

In a CCAA proceeding, the court considered supplementary written submissions regarding the appropriateness of differential consideration offered to unsecured creditors in the proposed Plan.

The court accepted the applicants' submission that the fairness of the differential consideration, which involves providing shares to Term Loan Lenders and cash to General Unsecured Creditors, should be determined at the Sanction Hearing rather than at the Meetings Order stage, given the low threshold for a Meetings Order and the presence of conflicting expert reports.

The Applicants sought an Authorization Order and Meetings Order under the CCAA.

The primary issues in dispute concerned the voting rights and classification of Litigation Claimants, which included uncertified U.S. class actions, a certified Ontario class action, and Texas mass tort claims.

The court held that the Litigation Claimants are creditors entitled to vote, but restricted them to one vote per action to prevent them from overriding other stakeholders on numerosity grounds.

The court also ordered summary proceedings to value their claims rather than accepting the Applicants' proposal to value them at $1.

Finally, the court declined to place the Term Loan Lenders in a separate class from other unsecured creditors, finding sufficient commonality of legal interests.