Jesse-Ross Cohen

Porter Airlines and Nieuport Aviation disputed the calculation of terminal fees at Billy Bishop Airport under a Licence Agreement.

Porter argued it could pay fees based on a variable daily slot allocation and claimed force majeure due to the COVID-19 pandemic to excuse non-payment.

Nieuport argued fees were based on a fixed, recurring number of daily slots and counterclaimed for unpaid fees.

The court held that the Licence Agreement required payment based on a fixed number of recurring daily slots.

The court also found that the COVID-19 pandemic did not trigger the force majeure clause to excuse Porter's payment obligations.

Porter was ordered to pay over $131 million in damages for unpaid terminal fees, while Nieuport's recourse under a guarantee was limited to specified aircraft.

The applicants, a syndicate of lenders and various construction trades, sought declarations that the respondent surety could not rescind performance and payment bonds issued for a hospital redevelopment project.

The surety had discovered alleged fraud and collusion in the procurement process and commenced a separate action for rescission.

The applicants argued they were innocent third parties whose rights under the bonds could not be defeated by the alleged fraud of the principals.

The court dismissed the applications, finding that the applicants' rights were derivative of the principals and that rescission remained a possible equitable remedy that must be determined on a full factual record at trial.

This is a costs endorsement following an appeal where the appellants were awarded costs.

The appellants sought $100,000 for the applications below.

The respondents did not contest this amount.

The Court of Appeal ordered the respondents to pay the appellants $100,000, inclusive of disbursements and HST, for the costs of the original applications.

This appeal addressed a dispute arising from an asset purchase agreement concerning a director's resignation under a majority voting policy and a claim for contractual set-off.

The Court of Appeal found that the application judge erred in concluding that Baylin's majority voting policy did not comply with TSX requirements and in finding oppression against the respondent director.

The court also found error in the denial of contractual set-off for indemnity claims against unreleased shares.

The appeal was allowed, upholding the majority voting policy, requiring the director's resignation, and permitting the set-off of shares.

The receiver of a film animation studio brought a motion for directions regarding the distribution of approximately $1,150,000 in tax credits.

A priority dispute arose between the studio's secured creditor, who held a registered general security agreement, and several film producers who claimed the tax credits were assigned to them or held in trust pursuant to their production services agreements.

The court held that the producers' interests in the tax credits were, in substance, security interests under the Personal Property Security Act (PPSA).

Because the producers failed to register their interests under the PPSA, the secured creditor's prior registered security interest took priority.

The court declined to impose a constructive or Quistclose trust, noting that sophisticated commercial parties should not be relieved of their obligation to register security.

The appellant, a contractor, challenged an international commercial arbitral award arising from a US$258 million pipeline construction project in Madagascar.

The appellant sought to set aside portions of the award on grounds of lack of jurisdiction over counterclaims, failure to exercise jurisdiction over prolongation costs, denial of procedural fairness regarding retention monies, hydro seeding costs, and costs awards, and violation of public policy regarding alleged double recovery from forfeiture of tranche payments and liquidated damages.

The application judge dismissed all claims.

On appeal, the court upheld the dismissal, finding that the tribunal had jurisdiction to hear the counterclaims, that the prolongation costs claim was addressed by the tribunal, that procedural fairness was afforded on all issues, and that the award did not violate public policy.

In the CCAA proceedings of U.S. Steel Canada Inc., its parent company, United States Steel Corporation, sought approval of several proofs of claim totaling over $2 billion.

Various stakeholders objected, arguing that the intercompany loans should be re-characterized as 'equity claims' under the CCAA and that the security granted for certain advances was void as a fraudulent preference or unenforceable for lack of consideration.

The court rejected the objections, finding that the parent company had a reasonable expectation of repayment when the advances were made, and that the security was validly granted for fresh consideration and did not constitute a fraudulent preference.

The claims were confirmed as debt claims.