Jennifer Teskey

The appellant commenced an action in Ontario for breach of a share purchase agreement.

The respondent successfully moved to stay the action in favour of an ongoing International Chamber of Commerce arbitration, relying on an arbitration clause in a subsequent agreement to which it was not a named party.

On appeal, the appellant argued the motion judge erred in finding an arbitration agreement existed between the parties.

The Court of Appeal dismissed the appeal, holding that the motion judge made no palpable and overriding error in finding an 'arguable case' that the respondent was an affiliate entitled to benefit from the arbitration clause, thereby engaging the competence-competence principle.

The court considered whether to stay Bombardier Inc.'s Ontario action against Alstom Rail Sweden AB for a tax loss purchase price adjustment, pending arbitration before the International Chamber of Commerce.

The dispute centered on whether the claim fell within the scope of an arbitration agreement in a 2020 share purchase agreement, or was carved out by a prior 2017 agreement that conferred exclusive jurisdiction on Ontario courts.

Applying the Supreme Court’s guidance in Peace River Hydro Partners v. Petrowest Corp., the court found Alstom Sweden had established an arguable case that the dispute was subject to arbitration and stayed the action.

The moving party brought a motion for leave to appeal an earlier order.

The Divisional Court dismissed the motion for leave to appeal in writing, awarding costs of $10,000 to the responding parties other than one specific respondent.

The defendant, Bombardier Inc., brought a motion seeking an order for the plaintiff, Triple-K Consult Ltd., to deliver a further and better affidavit of documents.

Bombardier argued it had a contractual right to audit the plaintiff's activities to verify compliance with their sales representative agreement and applicable laws before commissions were payable.

The plaintiff contended it had complied with the audit request and that further demands were beyond the contractual scope.

The court largely dismissed the defendant's motion, finding that the plaintiff had substantially complied and that many of the requested documents were not relevant or better pursued through discovery.

The court ordered only the production of supporting documents for $35,000 in expenses claimed by the plaintiff's principal.

The plaintiff, Dymon Storage Corporation, brought a motion for an interlocutory injunction to restrain the defendants, including its former Chief Planner and its former architects, from working for a competitor and from misusing confidential information.

The defendant Edwards brought a cross-motion to strike or stay the claim against her in favour of arbitration.

The court dismissed the non-competition injunction, finding Edwards' non-competition covenant unreasonably broad and unenforceable, and finding no evidence of an oral non-competition agreement with the architect defendants.

The court partially granted the confidentiality injunction, ordering the architect defendants to surrender documents relating to an epoxy floor system and certain architectural drawings, but otherwise found the plaintiff failed to distinguish between confidential information and general know-how.

The court stayed the claim against Edwards in favour of arbitration pursuant to her employment agreement.

The defendant by counterclaim brought a motion for the production of due diligence documents related to a corporate acquisition, arguing they were relevant and that any solicitor-client privilege had been impliedly waived.

The court dismissed the motion, finding that the broad request for acquisition due diligence was not relevant to the specific claims regarding a separate supply agreement.

Furthermore, the court held that the documents were protected by solicitor-client privilege, which had not been waived because the responding party did not put its reliance on legal advice at issue in its pleadings.

This is a costs endorsement following an appeal from orders of the Superior Court of Justice.

The appeal involved four consolidated actions concerning personal liability of corporate directors and officers in the context of real estate development and mortgage transactions.

The Court of Appeal upheld the motion judge's conclusions on the legal issue of personal liability based on pleaded allegations and legal principles.

The costs decision addresses the appropriate costs awards for the successful and unsuccessful parties across the multiple appeals.

The appellants appealed a preventative measures order issued by the Director of the Ministry of the Environment, Conservation and Parks regarding a steel mill and mining properties owned by an insolvent company.

Following the sale of the company under CCAA proceedings and the execution of agreements to fund and implement environmental action plans, the parties reached a settlement.

The Tribunal found the proposed revocation of the order to be consistent with the Environmental Protection Act and the Ontario Water Resources Act, and in the public interest.

The Tribunal ordered the Director to revoke the order and dismissed the appeals.

Four consolidated class actions brought by small investors who invested in syndicated mortgages promoted by Fortress Real Capital Inc. and Fortress Real Developments Inc. The investors alleged misrepresentation, breach of fiduciary duty, breach of contract, and negligence.

The motion judge struck claims against individual respondents Jawad Rathore and Vincenzo Petrozza, and dismissed claims to enforce syndicated mortgages against Empire Pace (1088 Progress) Ltd. and ADI Developments entities.

The appellants appealed.

The Court of Appeal upheld the dismissal of personal claims against Rathore and Petrozza but reversed the dismissal of mortgage enforcement claims against Empire Pace and ADI, finding that the motion judge erred in applying Rule 21 to matters requiring evidentiary findings regarding contract interpretation and disclosure.

The appellants appealed a preventative measures order issued by the Director under s. 18 of the Environmental Protection Act regarding a steel mill and mining operations.

The order was issued in response to risks related to the insolvency of Essar Steel Algoma Inc. The parties requested a further adjournment of the appeal proceedings to finalize a settlement agreement in the context of ongoing CCAA proceedings.

The Tribunal granted the adjournment and scheduled a status update telephone conference call.

The Ontario Securities Commission approved a settlement agreement between Staff and Questrade Wealth Management Inc. Questrade admitted to acting contrary to the public interest by failing to take appropriate steps to determine whether a conflict of interest existed before investing client money in WisdomTree ETFs.

The Commission ordered a reprimand, $100,000 in costs, and accepted a voluntary payment of $2.9 million, finding the settlement reasonable and in the public interest.

In the context of CCAA proceedings, the Board of Directors of Essar Steel Algoma Inc. brought a motion seeking to resume regular board meetings, receive confidential information, and be paid outstanding fees.

The Board had been previously disengaged due to an information sharing protocol and a prior court endorsement because the parent company was a bidder.

Although the parent company was no longer a bidder, the court dismissed the motion to reengage the Board, finding that the existing governance arrangements were functioning well and reengaging the Board could disrupt the restructuring.

However, the court granted the Board's request to have its independent counsel paid and included in discussions regarding the directors' potential liability.

In four proposed class actions concerning investments in syndicated mortgages for land development projects, the defendants brought motions to strike the plaintiffs' statements of claim.

The court struck out the claims against the individual directors and officers of the corporate defendants without leave to amend, finding that the pleadings failed to allege any independent tortious conduct or separate identity of interest from the corporations.

The statements of claim against the remaining defendants were struck out in their entirety with leave to deliver fresh as amended statements of claim.

The respondent purchased the appellant's business in exchange for securities, with the appellant becoming a minority shareholder.

The acquisition agreement contained a representation and warranty regarding tax pools.

Years later, the Canada Revenue Agency disallowed the respondent's use of the tax pools and assessed approximately $11.8 million in additional taxes, interest, and penalties.

The respondent invoked an indemnity from the appellant, who argued the respondent had breached the tax pools representation and warranty.

The motion judge granted summary judgment for the respondent, interpreting the representation and warranty as directed solely to the accurate identification of tax pools and their values at closing, not as a guarantee of future tax utilization.

The appeal was dismissed.

The Director of the Independent Health Facilities Program appealed a decision of the Health Services Appeal and Review Board.

The Board had found that the Director lacked jurisdiction under s. 20.1(2)(c) of the Independent Health Facilities Act to amend the respondent's licence to eliminate mammography and fluoroscopy services because the respondent had never commenced providing them, and thus could not have 'ceased' to provide them.

The Divisional Court allowed the appeal, holding that the Board's literal interpretation of 'ceased' was unreasonable and ignored the statutory context and purpose, which is to allow the Director to control the provision of services.

The Director's decision to amend the licence was reinstated.

The plaintiff brought a motion for summary judgment seeking indemnification from the defendants for a percentage of taxes, interest, and penalties assessed by the Canada Revenue Agency (CRA).

The parties had previously entered into a Share Put Agreement containing an indemnity clause.

The defendants argued they were protected by a prior representation and warranty regarding the future use of tax pools, and sought a set-off.

The court found that the plaintiff did not guarantee the future use of the tax pools against CRA reassessment, and that any such prior representations were superseded by an entire agreement clause.

The court granted summary judgment for the plaintiff, enforcing the indemnity, and declined to stay execution of the judgment pending the CRA appeal.

The appellants, directors of Essar Steel Algoma Inc., brought a consent motion for a stay of section 2.11 of a Director's order requiring them to undertake work and submit a final report regarding environmental conditions.

The Tribunal found that the section was not an order to monitor, record and report, and that granting the stay would not result in danger to health, safety, or the environment.

The Tribunal granted the stay until the appeals are finally disposed of.

The defendants sought leave to appeal an order dismissing their motion to strike portions of the plaintiffs' statement of claim relating to allegations of fraud and unjust enrichment.

The court applied the strict test for leave to appeal under Rule 62.02(4) and found no conflicting decisions or reason to doubt the correctness of the motion judge's finding that the fraud claims were adequately particularized against most defendants.

However, the court noted an oversight by the motion judge regarding one defendant, Loarn Metzen, and struck the pleadings against him with leave to amend.

The motion for leave to appeal was otherwise dismissed.

The appellants brought motions to stay various sections of a Director's Order requiring them to maintain environmental protection measures and assess environmental conditions at steel mill and mining operations.

The Tribunal granted the Company Directors' motion to stay section 2.9 on consent.

The Tribunal also granted the Company and Company Officers' motion to stay section 2.11, but dismissed the request to stay the remaining sections.

The defendants sought leave to appeal an order dismissing their motion to stay the plaintiffs' action.

The plaintiffs had sued for fraudulent misappropriation of funds under a joint venture agreement, and the defendants argued the dispute fell within the agreement's arbitration clause.

The motion judge found the claim was essentially in fraud and not covered by the arbitration clause.

The Divisional Court dismissed the motion for leave to appeal, finding no conflicting decisions and no reason to doubt the correctness of the motion judge's decision.