Jason Squire

On a CCAA motion, the moving parties sought approval of a reverse vesting transaction and ancillary relief following a court-approved SISP with a stalking horse credit bid.

The court applied the s. 36(3) criteria and found the process was transparent, adequately marketed, monitor-supervised, and fair and reasonable in the circumstances.

The court accepted the monitor’s evidence that a going-concern outcome would produce materially better stakeholder outcomes than liquidation and would preserve enterprise value while reducing restructuring costs.

Applying the Harte Gold framework, the court held the reverse vesting structure was necessary, economically superior to viable alternatives, non-prejudicial to stakeholders relative to alternatives, and reflective of fair value for preserved intangibles.

The motion was granted and both the Reverse Vesting Order and Ancillary Order were approved.

The plaintiffs, representing a class of small to medium-sized businesses, sought coverage under their business interruption insurance policies for losses sustained due to the COVID-19 pandemic and related civil authority orders.

The court held a common issues trial to determine whether the presence of the SARS-CoV-2 virus or government lockdown orders could cause 'physical loss or damage to property' within the meaning of the policies.

The court concluded that the virus does not physically alter or damage inanimate surfaces, and that the loss of use of the premises due to government orders does not constitute physical loss or damage.

Consequently, the court answered the certified common issues in the negative, finding no coverage under the business interruption provisions.

The defendants in a certified class action regarding COVID-19 business interruption insurance claims brought a motion seeking joint adjudication and common case management of common questions across approximately 79 overlapping proceedings.

The motion was opposed by several plaintiffs in individual actions who wished to proceed independently.

The court dismissed the motion, affording deference to a prior case management decision that declined to stay the individual actions, and finding that forcing joint adjudication would inappropriately undermine the plaintiffs' right to opt out of the class proceeding and cause undue delay.

The Bank of Montreal applied for a receiver over a group of fitness clubs (the Crunch Group) following defaults on credit facilities.

The parties reached an agreement where the debtors' nominee would purchase the debt and security.

The Bank accepted the offer but subsequently refused to provide a fully executed copy of the agreement, causing the purchaser to lose financing and fail to close on the scheduled date.

The court found the Bank's actions, including abruptly closing the debtors' bank accounts and unreasonably refusing to deliver the executed agreement, breached the duty of good faith.

The court ordered the Bank to close the transaction.

The applicant brought a motion to enforce personal guarantees executed by the respondents, a husband and wife who were directors of the debtor corporation.

The husband did not oppose the motion.

The wife argued she was released from her guarantee due to an undisclosed material change in the principal amount of the indebtedness, lack of independent legal advice, and that the applicant had released her through its conduct during restructuring negotiations.

The court found that the guarantee explicitly allowed for changes in the amount of obligations, the wife was a sophisticated business owner who did not require independent legal advice, and the applicant had not provided an express written waiver as required by the guarantee.

The motion was granted and both respondents were found liable.

The defendants brought a motion for a mandatory interim injunction to enforce indemnity agreements and require the plaintiffs to advance funding for their legal expenses.

The court found that the Cytrynbaum jurisprudence did not apply because the motion sought a mandatory injunction against an individual and a corporation, rather than a final determination under the CBCA.

The court dismissed the motion, holding that the defendants failed to establish a strong prima facie case due to concerns about conflicts of interest and lack of independent legal advice in the drafting of the indemnity agreements.

The court also found no irreparable harm, as any harm could be quantified in monetary terms.

The defendants brought a motion for summary judgment to enforce a settlement agreement that purportedly resolved the plaintiffs' oppression claims arising from a corporate restructuring.

The plaintiffs opposed the motion, arguing the agreement was unconscionable and induced by misrepresentations regarding the inclusion of a critical patent licence.

The court dismissed the motion, finding that the factual matrix was complex, credibility issues were prominent, and it was premature to grant summary judgment or partial summary judgment before examinations for discovery had been completed.

The plaintiff mortgage broker arranged financing for the defendants' convention centre project.

The plaintiff alleged it was entitled to a 5% ownership interest in the defendant corporation pursuant to an equity agreement, but share certificates were never issued.

Over eight years later, the plaintiff sued.

The defendants moved for summary judgment, arguing the claim was statute-barred under the Limitations Act, 2002.

The plaintiff brought a cross-motion to amend its claim to seek only declaratory relief, arguing that under s. 16(1)(a) of the Act, claims for declaratory relief alone are not subject to a limitation period.

The court granted the plaintiff leave to amend its claim and dismissed the defendants' motion for summary judgment, finding a genuine issue for trial as to whether the plaintiff acquired a beneficial interest that could be subject to declaratory relief without consequential relief.

The plaintiff, a unit-holder in a real estate investment trust (REIT), brought a proposed class action alleging that the REIT's former CEO and trustees breached their fiduciary duties and duties of trust by entering into an undisclosed related-party transaction.

On a bifurcated certification motion to determine if the pleadings disclosed a reasonable cause of action under s. 5(1)(a) of the Class Proceedings Act, the court struck the breach of fiduciary duty claims, finding that the defendants owed duties to the REIT but not to the unit-holders.

However, the court allowed the breach of trust claims against the trustees and the knowing assistance claim against the former CEO to proceed, while striking the knowing assistance claims against the vendor and the vendor's solicitors.

The applicant sought recognition and enforcement in Ontario of an international arbitral award issued in New York requiring the respondent to pay over USD $3.5 million.

The respondent argued the application was premature because it was commenced within the three‑month period for setting aside an award under the UNCITRAL Model Law and that enforcement would be contrary to public policy due to ongoing regulatory proceedings before the U.S. Securities and Exchange Commission.

The court held that the relevant inquiry is whether the award is binding at the time of the enforcement hearing, not when the application was commenced.

As no application to set aside or suspend the award was pending and the regulatory proceeding did not undermine the arbitral decision, there was no basis under Article 36 of the Model Law to refuse recognition or enforcement.

The award was recognized and enforced in Ontario.

The defendants brought a motion to strike portions of an amended statement of claim in a wrongful dismissal and defamation action brought by a former deputy fire chief against a municipality and its fire chief.

The impugned pleadings relied upon statements allegedly contained in a confidential report prepared for an in camera municipal council meeting concerning the plaintiff’s termination.

The court had previously ruled that the report was protected by solicitor-client and communications privilege under the Wigmore framework and was not producible.

Applying Rule 25.11 of the Rules of Civil Procedure and authority holding that references to privileged communications are scandalous, frivolous, or vexatious, the court found the pleading constituted an abuse of process.

The motion was granted and the offending paragraphs were struck, though the plaintiff was granted leave to bring a further motion to amend without relying on the privileged communication.

The court determined the proper interpretation of a consulting retainer agreement governing contingent transaction fees for the sale of a business.

The respondents argued the fee provision should be interpreted as a staged structure applying 3.5% up to $6 million and 5% thereafter, while the applicant maintained the contract required 3.5% of the entire purchase price plus an additional 5% of the amount above $6 million.

The respondents sought to introduce extrinsic evidence including prior negotiations and industry standards to support their interpretation.

The court held the contractual language was clear and unambiguous despite producing a surprising result and declined to consider extrinsic evidence.

The applicant’s literal interpretation of the fee provision was upheld.

The plaintiff trustee appealed an order of a Master granting a defendant leave to amend his statement of defence and assert a crossclaim against a co‑defendant following amendments to the statement of claim.

The appellant also sought leave to appeal out of time due to counsel’s inadvertence in missing the filing deadline.

The court granted the extension of time but dismissed the appeal on the merits.

Applying Rule 26.01 of the Rules of Civil Procedure, the court held that amendments to pleadings should be permitted unless non‑compensable prejudice arises, and that alleged prejudice based on the potential success of a defence does not qualify.

The court further held that any limitation issue concerning the crossclaim was a matter for the co‑defendant and not the plaintiff.

In a CCAA proceeding, the Applicants (Hollinger Inc. et al.) sought approval of settlement agreements with their former auditors (KPMG) and lawyers (Torys).

The Non-Settling Defendants, including Conrad Black and David Radler, opposed the settlements, arguing the court lacked jurisdiction and that the included third-party releases and bar orders would deprive them of procedural rights to discovery.

The court held it had jurisdiction under the CCAA to manage litigation as a corporate asset.

The court approved the Pierringer-style settlements, finding that the procedural rights of the Non-Settling Defendants could be adequately protected through active case management and the application of the principle of proportionality in discovery.

Following the dismissal of an action and related summary judgment proceedings, the successful defendants sought substantial partial indemnity costs against the plaintiffs.

The court considered the factors under Rule 57.01(1) of the Rules of Civil Procedure and assessed the reasonableness of the claimed fees, hourly rates, and the nature of work performed.

The court emphasized that costs awards should relate to steps authorized by the rules and excluded various client communications and strategic consultations that were not directly tied to procedural steps in the litigation.

Significant reductions were applied to certain categories of claimed work, including general preparation and work associated with abandoned or unnecessary motions.

The court ultimately fixed global cost awards payable by the plaintiffs to each set of defendants.

The plaintiffs sued the defendant law firm for professional negligence arising from advice given during a share purchase transaction.

The plaintiffs alleged the law firm failed to properly advise them on the risks associated with a pending wrongful dismissal lawsuit against the target company, resulting in a liability that exceeded the negotiated indemnity.

The defendant law firm moved for summary judgment to dismiss the action.

The court granted the motion, finding that the plaintiffs failed to establish a breach of the standard of care without expert evidence, and failed to prove that the alleged negligent advice caused their damages.