Jeffrey Andrew Levine

The plaintiff in a putative class action for secondary market misrepresentation brought a motion for the production of documents referenced in the defendants' affidavits prior to serving his reply record.

Alternatively, the plaintiff sought to strike the portions of the affidavits referencing those documents.

The court dismissed the motion, holding that the plaintiff has no right to documentary discovery at the leave stage under section 138.8 of the Securities Act, and that the proper mechanism for production is through cross-examination after the reply is served.

The court also declined to strike the affidavits, noting that hearsay is permitted on motions.

The plaintiff security company brought a Simplified Procedure action against the defendants for unpaid standby security services provided during a potential labour strike at the Sheraton hotel.

The court found that a contract was formed based on email exchanges between the parties and that the plaintiff performed the standby services.

The court awarded the plaintiff $32,950.80 in damages for the unpaid invoice.

However, the court dismissed the plaintiff's claims for punitive damages, personal liability against the individual defendant, and the tort of deceit, finding insufficient evidence of dishonesty or an independent actionable wrong.

Following a successful application regarding a restructuring support agreement, the applicants sought full indemnity costs of approximately $1.18 million based on a contractual covenant.

The respondents argued for partial indemnity costs.

The court held that while the contractual provision for full indemnity was an important factor, it did not override the court's discretion to fix an amount that is fair and reasonable.

Finding the hours docketed by the applicants' counsel excessive for a one-issue case, the court awarded a global all-inclusive costs amount of $800,000.

The applicants sought a declaration regarding the interpretation of the 'Outside Date' in a restructuring support agreement.

The respondent, a cannabis company, argued that any extension of the Outside Date required its initiation or consent.

The court found that the plain and ordinary meaning of the agreement allowed the lenders to automatically extend the Outside Date upon their written consent, acting reasonably, without the need for the respondent's consent.

The court granted the declaration sought by the applicants.

BSMW Financial Inc. moved to convert an application brought by Triumph Capital Limited into an action, and sought alternate relief to strike certain paragraphs of Triumph's affidavit.

The court considered factors for converting an application to an action, including material facts in dispute, complex issues, need for discovery, and impact of relief.

Finding significant material facts in dispute, issues beyond document interpretation, and credibility concerns requiring viva voce evidence, the court granted the motion to convert Triumph's application into an action.

BSMW's cross-application was also converted to an action to be heard concurrently due to intermingled and interdependent issues.

The applicant, a shareholder, sought reimbursement from the corporation for expenses incurred in requisitioning, calling, and holding a shareholders meeting under the Ontario Business Corporations Act.

The corporation resisted, arguing the applicant did not act in good faith and did not technically "hold" the meeting.

The court found the applicant acted in good faith and was entitled to reimbursement, rejecting the corporation's technical argument regarding holding the meeting.

The court then determined the reasonable quantum of expenses, distinguishing between legal fees and disbursements and setting time limits for recoverable expenses, ultimately awarding the applicant USD$117,047.38.

The appellant, Nissa Corporation, inherited a solar power generation lease when it purchased two properties in Napanee from the Business Development Bank of Canada.

The respondent tenant sought declarations that the lease was valid and binding, and that it had the right to connect to the electrical utility system via a transformer located on an adjacent property (60A) and to install inverters in the electrical room of the leased building (61A).

The application judge granted both declarations.

On appeal, the court considered two issues: (1) whether the tenant had the right to connect to the transformer at the adjacent property, and (2) whether the tenant could install inverters inside the building rather than on the roof.

The court allowed the appeal in part, finding that the lease did not extend to the adjacent property but that the tenant could install inverters inside the building.

The applicant sought an interlocutory injunction to enforce a restrictive covenant preventing the respondent from operating a retirement home.

The court applied the RJR-MacDonald test, finding that while a serious question existed, the applicant failed to demonstrate irreparable harm.

The balance of convenience also weighed against granting the injunction due to the potential harm to vulnerable third-party residents.

The application for an interlocutory injunction was dismissed, and the balance of the application was adjourned.

Costs were fixed at $35,000.00 for the respondent.

The applicants, Aralez Pharmaceuticals Inc. and Aralez Pharmaceuticals Canada Inc., sought court approval for Key Employee Retention Plans (KERPs) and Key Employee Incentive Plans (KEIPs) within their Companies' Creditors Arrangement Act (CCAA) proceedings.

The court approved both programs, finding that the design process involved significant arm's length oversight, the programs were necessary to retain and incentivize key employees during the restructuring and sales process, and the design was reasonable.

The Official Committee of Unsecured Creditors opposed the KEIP, arguing the bonuses were too high and easily earned, but the court dismissed these objections, emphasizing the circumstances prevailing when the plans were initially offered and the employees' good faith efforts.

The applicant sought a ruling on the interpretation of a commercial lease concerning a solar energy project.

Specifically, the applicant requested declarations that the lease permitted the installation of inverters in the building's electrical room (not just on the roof) and allowed connection to the local utility system via a transformer located on a neighbouring property also owned by the respondent.

The respondent argued the lease restricted inverter placement to the roof and did not grant rights over the adjacent property.

The court, applying principles of contractual interpretation, found in favour of the applicant on both substantive issues, holding that the lease's terms, read holistically and in context of surrounding circumstances, permitted the current setup.

Following a merits decision finding that the respondents perpetrated a massive corporate fraud involving standing timber assets and related party transactions, the Ontario Securities Commission held a sanctions and costs hearing.

The Commission imposed permanent market participation bans on the individual respondents.

It also ordered administrative penalties totaling over $11.6 million and disgorgement of over $64.6 million, representing salaries, bonuses, and proceeds obtained through the fraudulent conduct.

The respondents were also ordered to pay over $5 million in costs.

In a CCAA proceeding, the Monitor appealed a Claims Officer's decision allowing a landlord's claim for liquidated damages under a lease guarantee.

The Monitor argued the Claims Officer failed to consider a lease provision regarding the sale of the property.

The landlord cross-appealed the Claims Officer's finding that it breached a duty to be forthright by failing to disclose the property's foreclosure.

The Superior Court granted the Monitor's appeal, remitting the quantification issue back to the Claims Officer due to an error of law in contractual interpretation.

The court dismissed the landlord's cross-appeal, affirming that creditors owe a duty of forthrightness in a CCAA claims process.

The applicant sought an order compelling the respondent to comply with a Divisional Court order to call a shareholders' meeting with a specific record date (October 24, 2016).

The respondent faced difficulties with its transfer agent, Computershare, in generating an omnibus proxy for the specified record date, citing standard securities communication requirements (National Instrument 54-101) and the need for a new record date.

The court clarified its jurisdiction, emphasizing that the Divisional Court had already set the record date as a fundamental element of its order.

The court found that technical compliance mechanisms like NI 54-101 and s. 95(4) of the Business Corporations Act could be overridden by court orders under s. 106 of the OBCA to achieve justice.

The court ordered a customized approach, authorizing the use of a specific report for shareholder identification and directing intermediaries to transmit meeting materials and voting preferences based on the original record date, regardless of subsequent share transfers.

The moving parties sought directions on whether they required leave to appeal an order made by a CCAA judge dismissing their jurisdictional challenge to a contract dispute motion brought by the responding parties.

The moving parties also sought a stay of the contract dispute motion pending their appeal.

The responding parties brought a cross-motion to expedite the hearing of the leave to appeal motion.

The Court of Appeal held that the CCAA judge's order was 'made under' the CCAA, meaning leave to appeal was required under s. 13.

The Court expedited the leave to appeal motion and granted a stay of the contract dispute motion pending the determination of the leave motion, finding that the balance of convenience favoured a stay.

The plaintiffs moved to strike the defendant’s statement of defence for failure to pay a prior $12,500 costs award arising from a motion to lift the bankruptcy stay under the Bankruptcy and Insolvency Act.

The defendant had declared bankruptcy before the costs order was made and argued the costs constituted a provable claim in bankruptcy rather than a personal post‑bankruptcy liability.

The court considered Rule 57.03 of the Rules of Civil Procedure and the distinction in bankruptcy law between plaintiff’s and defendant’s costs.

Applying the jurisprudence flowing from Re British Gold Fields of West Africa Ltd., the court held the costs were provable in bankruptcy and did not create a personal post‑bankruptcy obligation absent a later fraud finding under s. 178 of the BIA.

The motion to strike the defence was dismissed.

A corporation sought court approval of a statutory plan of arrangement under s. 182 of the Business Corporations Act involving the acquisition of its shares by another mining corporation through an exchange of securities.

The court applied the framework established in BCE Inc. v. 1976 Debentureholders, requiring satisfaction of statutory procedures, good faith, and that the arrangement be fair and reasonable.

The court found the statutory requirements met, the transaction negotiated at arm’s length and recommended by the board, and the arrangement supported by an overwhelming shareholder vote with no dissent.

The court also addressed the evidentiary role of fairness opinions in M&A transactions, holding that such opinions may support good faith and fairness even if not tendered as expert evidence.

Approval of the arrangement was granted.

The moving party sought to set aside a Master's report and withdraw an admission regarding the date of a mortgage advance relevant to lien priority under the Construction Lien Act.

The admission established that funds were advanced on November 19, 2009, giving the lien claimant priority over the mortgage advance.

The court held the moving party failed to satisfy the leave test required to bring the interlocutory motion and withdraw the admission.

The evidence showed the admission resulted from litigation strategy and failure to obtain available documents rather than inadvertence or mistaken instructions.

The motion was dismissed and the Master's report left undisturbed.

In CCAA proceedings involving a mining company, competing motions were brought concerning the restructuring process.

The debtor sought directions regarding the procedure for resolving noteholder claims and the alleged misuse of confidential information by certain creditors, while the noteholders sought an order convening a meeting of creditors to vote on their proposed plan of arrangement.

The court held that calling a creditors’ meeting was premature because the proposed plan conflicted with the debtor-in-possession financing facility, had been introduced without meaningful consultation, and unresolved claims and litigation issues could affect voting rights and recoveries.

The court dismissed the noteholders’ motion without prejudice and declined to order disclosure sought by the debtor.

The stay of proceedings was extended to facilitate continued negotiations and mediation.

The plaintiff brought a motion seeking leave to issue certificates of pending litigation (CPLs) against two Toronto properties, asserting a constructive trust based on alleged unjust enrichment after paying mortgages and expenses on behalf of the defendants.

The defendants argued that rents collected by the plaintiff exceeded the payments made and that no unjust enrichment occurred.

The court held that there was a triable issue regarding whether the plaintiff had been fully reimbursed and whether a constructive trust could be imposed.

However, the court declined to grant a CPL on one property because it had been sold and the proceeds would not satisfy the mortgage.

Leave to issue a CPL was granted only with respect to the Carlaw Avenue property.

The Court of Appeal issued a costs endorsement following an appeal in CCAA proceedings.

The appellant, Computershare Trust Company of Canada, was ordered to pay costs of the appeal to the respondent Crystallex International Corporation in the amount of $110,688.00, and to the respondent Tenor Capital Management Company, L.P. and Affiliates in the amount of $80,000.

Both amounts are inclusive of disbursements and HST.