Jessica Zagar

The respondent sought costs on a partial indemnity scale after successfully defending an application to wind up the company.

The applicant argued for no costs or reduced costs, citing the respondent's failure to upload a Bill of Costs in advance and claiming the fees were excessive.

The court found the respondent's claimed costs to be fair and reasonable, noting the application's importance and moderate complexity, and that the applicant's own costs were comparable.

The court fixed costs payable by the applicant to the respondent in the amount of $142,890.01.

The applicant, a co-founder and former CTO of the respondent technology company, brought an application to wind up the company under section 207 of the Business Corporations Act.

The applicant alleged the company could not continue its business due to its liabilities and that a breakdown in the relationship between the founders made it just and equitable to wind up the company.

The court dismissed the application, finding the company had recently raised significant capital and was not insolvent.

The court also held that while there was a breakdown of trust, the company was not a two-person partnership, and winding up was not a just and equitable remedy given the presence of other investors and employees.

The individual defendants, comprising management and major label directors of Re:Sound, brought motions under Rules 21.01(1)(b) and 25.11(c) of the Rules of Civil Procedure to strike oppression claims asserted against them personally by ACTRA Performers’ Rights Society (ACTRA PRS).

ACTRA PRS alleged that the individual defendants, through their actions and inactions, caused Re:Sound to unfairly compete with ACTRA PRS, fail to adopt proper fee policies, neglect technological enhancements for equitable royalty distribution, and inadequately enforce tariffs, all for personal gain or to benefit their nominating organizations.

The court dismissed the motions, finding that the oppression claims were sufficiently pleaded, not plain and obvious to fail, and did not constitute an abuse of process.

The court applied the two-prong test for personal liability in oppression claims, concluding that the defendants were sufficiently implicated in the alleged oppressive conduct and that personal liability could be a fit remedy.

The plaintiff appealed a Case Management Judge's order striking its statement of claim regarding copyright infringement in the TRREB MLS System.

The judge struck the claim as an abuse of process on the basis that a prior Federal Court of Appeal decision found no copyright existed in the system.

On appeal, the Court held the judge committed a palpable and overriding error by failing to require evidence that the works in question were the same, relying improperly on judicial notice.

The appeal was allowed and the plaintiff was granted leave to amend its copyright claims.

The moving parties brought a motion to extend the time to bring a motion for leave to appeal from a decision of Chalmers J. dated June 28, 2021, and for leave to appeal.

The Divisional Court granted the extension of time but dismissed the motion for leave to appeal, awarding costs of $5,000 to the responding party.

The applicant broadcaster brought an application for copyright infringement against a political party for using short clips of its news broadcasts and leadership debates in political attack ads and social media posts.

The Court found that the taking constituted a substantial part of the works, but that the use was protected under the fair dealing exception for the purpose of criticism.

The application for declaratory relief was dismissed with costs.

The plaintiff brought a motion for leave to amend its statement of claim to clarify relief, plead reliance on the Copyright Act, and advance an alternative claim of equitable ownership of copyright.

The defendants opposed the amendments, arguing that the litigation timetable had already been established and that equitable ownership of copyright was not recognized in Canadian law.

The court applied Rule 26.01 of the Rules of Civil Procedure and held that amendments should be permitted absent non-compensable prejudice.

Given that discoveries had not yet occurred and the amendments arose from the same factual matrix as the original breach of contract claim, the court found no prejudice.

The court further held that the novel equitable ownership argument was not clearly incapable of success and therefore should not be struck at the pleading stage.

Two related applications arose from a commercial arbitration concerning a Liquidity Payment obligation under a financing arrangement between a dairy company and a pension fund.

The moving party sought to set aside a final arbitral award under s. 46(1) of the Arbitration Act, 1991, alleging breaches of procedural fairness and arguing the arbitrator’s contractual interpretation was unreasonable.

The court held the arbitration process was fair, the parties had adequate opportunity to present their cases, and the arbitrator’s interpretation of the Liquidity Payment Agreement was consistent with its plain language.

The application to set aside the award was dismissed.

The responding party’s application to enforce the arbitral award and supplementary costs award was granted, with interest fixed at 3% in accordance with the contract and applicable statutory rates.