John D. Leslie

The applicant, Tacora Resources Inc., sought approval for an Amended and Restated Debtor in Possession (DIP) financing agreement with Cargill and an extension of the CCAA Stay Period.

The Ad Hoc Group of Noteholders (AHG) opposed the Cargill DIP, proposing an alternative and seeking renegotiation of terms, including an exit fee, legal costs, and the "Offtake Condition" related to a pre-existing commercial agreement with Cargill.

The court approved the Cargill DIP and extended the stay, finding the Cargill agreement offered greater short-term stability and liquidity, was recommended by the Monitor, and did not materially prejudice other stakeholders beyond what already existed due to the pre-CCAA Offtake Agreement.

The court held that the DIP approval motion was not the appropriate forum to address the enforceability or commercial reasonableness of the Offtake Agreement itself.

The appellant, Callidus Capital Corporation, appealed a trial judgment finding it liable for breach of contract and trust to the respondent, George Leslie Kemeny, regarding an unpaid consulting fee.

The fee was to be paid from the first advance of a loan to Esco Marine Inc. under an Irrevocable Direction.

The appellant argued the Irrevocable Direction was not a guarantee and that funds were unavailable after secured creditors were paid, and that the respondent was estopped by subsequent negotiations.

The Court of Appeal dismissed the appeal, affirming the trial judge's interpretation that the Irrevocable Direction created a direct contractual and trust obligation on the appellant to pay the fee from the first advance, irrespective of other disbursements, and found no basis for estoppel.

The plaintiff, George Leslie Kemeny, was successful in his action against Callidus Capital Corporation and sought costs.

The court considered the plaintiff's offer to settle for US$400,000 and the defendant's offer for US$25,000, noting the plaintiff's judgment of US$679,800 (CAD$873,203.10 plus prejudgment interest).

The plaintiff sought costs on a partial indemnity basis up to his offer and substantial indemnity thereafter, totaling approximately $107,000.

The defendant challenged this amount and sought a reduction for a successful motion.

The court awarded the plaintiff $85,000 in costs, plus disbursements and taxes, after considering setoff for a previous costs award against the plaintiff and a reduction for the defendant's successful motion.

The plaintiff, an independent financial advisor, brought an action against the defendant lender to enforce an Irrevocable Direction for the payment of consulting fees.

The plaintiff had facilitated a loan agreement between a borrower and the defendant.

The Irrevocable Direction, signed by the borrower and acknowledged by the defendant, directed the defendant to pay the plaintiff 2% of the authorized loan facility from the first drawdown.

The defendant refused to pay, arguing lack of authority and insufficient availability of funds.

The court found the Irrevocable Direction binding, rejected the availability argument as commercially absurd, and held that the defendant breached its contractual and trust obligations.

Judgment was granted in favour of the plaintiff for US$679,800.

Dunn Aggregates Limited appealed a Superior Court order barring its claim for damages under an undertaking given by Coco Paving Inc. for an interlocutory injunction.

The injunction had restrained Dunn Aggregates from breaching non-competition and restrictive covenant agreements.

The trial judge found that Coco Paving was the successful party at trial, meaning the injunction was not 'wrongfully granted,' and thus Dunn Aggregates was not entitled to damages under the undertaking.

The Court of Appeal affirmed the trial judge's decision, finding no special circumstances to warrant damages based on the undertaking.

Following the dismissal of the plaintiff's $30,326.95 claim for construction materials on summary judgment, the successful defendants sought costs of over $47,000.

The plaintiff had also incurred costs exceeding the claim amount.

The court criticized the disproportionate legal fees expended by both parties for a modest liquidated claim.

Applying the principle of reasonableness and proportionality, the court awarded the defendants fixed costs of $21,766.56.

The plaintiff subcontractor, Tremblar Building Supplies Ltd., brought an action against the owner defendants (The Lighting Boutique Defendants) for breach of trust under the Construction Act and unjust enrichment, seeking payment for materials supplied to a general contractor (Keystone) that subsequently declared bankruptcy.

The owner defendants moved for summary judgment to dismiss the claims.

The court granted summary judgment, finding that no statutory trust existed between the owner and the subcontractor due to a lack of privity of contract, as established by prior Divisional Court rulings.

Furthermore, the court determined that the existing contractual arrangements and the comprehensive scheme of the Construction Act constituted juristic reasons, thereby precluding any claim for unjust enrichment.

The respondent appealed a motion judge's order dismissing his motion to compel the moving party to answer discovery questions regarding a pattern of commercially unreasonable conduct.

The respondent had pleaded that the moving party's conduct toward his company was part of a broader pattern of conduct toward multiple borrowers.

The motion judge held the questions were not relevant because the respondent failed to demonstrate sufficient similarities.

The Court of Appeal held the order was interlocutory and the appeal was brought to the wrong court, as appeals of interlocutory orders lie to the Divisional Court with leave.

The appeal was quashed and costs were awarded to the moving party.

Mr. Levitt sought an urgent stay of an order by Chiappetta J. requiring him to answer a question from cross-examination, including producing "all" correspondence, regardless of privilege claims.

He intended to seek leave to appeal this order.

The court applied the three-part interlocutory injunction test (serious issue, irreparable harm, balance of convenience).

While acknowledging irreparable harm if privilege were wrongly breached, the court found no serious issue to be tried, as Mr. Levitt had not appealed the original production order and failed to adduce evidence of privilege.

The balance of convenience also weighed against a stay due to delays and Mr. Levitt's conduct.

The motion for a stay was dismissed, and costs were awarded against Mr. Levitt.

The appellant, a personal guarantor of corporate indebtedness, appealed a summary judgment awarding the respondent lender US$3 million plus interest at 21% on his personal guarantee.

The guarantor had negotiated an amended guarantee that excluded facility and forbearance fees totaling US$2.75 million from his liability.

The lender acquired the company's assets through a receivership sale, with the purchase price calculated as total debt less US$3 million.

The Court of Appeal found that the motion judge erred by failing to consider that the amended guarantee served to reduce the company's obligations that were guaranteed.

The court held that the guarantor's liability should be calculated as the remaining debt after the credit bid (US$3 million) less the excluded fees (US$2.75 million), resulting in liability of only US$250,000.

This corrigendum amends a previous decision regarding the proposal of Innovative Coating Systems Inc. The original decision did not approve the proposal but granted leave for the debtor to file an amended proposal within ten days, specifically removing a deemed release clause.

It also adds a sentence concerning the trustee's costs.

The plaintiff, Callidus Capital Corporation, moved for summary judgment to enforce a guarantee and mortgage against the defendant, Jeffrey J. McFarlane, for obligations of Xchange Technology Group LLC (XTG).

McFarlane had guaranteed XTG's debt to Callidus, limited to US$3 million, excluding certain facility and forbearance fees.

McFarlane argued that the debt was extinguished by an asset purchase agreement (APA) via a credit bid, and that Callidus had impaired its security.

The court found that the guarantee was a commercial agreement, not subject to the *contra proferentem* rule, and that the $3 million carve-out in the APA was intended to maintain McFarlane's guarantee obligation.

The court also rejected the impairment of security argument, noting a broad release signed by McFarlane.

Summary judgment was granted to Callidus for US$3 million plus interest and costs.

A secured creditor applied for the appointment of a receiver over a group of integrated technology companies operating in Canada and the United States following defaults under a loan agreement and the expiry of a forbearance arrangement.

The creditor also sought approval of a stalking horse asset purchase agreement and sales process.

The court found the debtors insolvent and concluded that appointing a receiver under s. 243 of the Bankruptcy and Insolvency Act and s. 101 of the Courts of Justice Act was just and convenient, particularly to facilitate a cross-border restructuring and prevent fragmented enforcement actions by creditors.

Applying the principles governing receiver sales from Royal Bank of Canada v. Soundair Corporation, the court approved the stalking horse process and sealed confidential commercial appendices containing sensitive information.

Orders appointing the receiver, approving the sales process, and sealing the confidential materials were granted.

Following the granting of summary judgment in favour of a bank against a defendant borrower, the court considered submissions on costs.

The successful plaintiff sought costs of the action and the summary judgment motion on a partial indemnity basis totaling $21,991.01 inclusive of disbursements and HST.

The defendant accepted that costs were payable but argued the amount was excessive due to the absence of discoveries or cross-examinations and suggested a reduced amount.

The court held that the amount sought was reasonable, noting the need to prepare for several pleaded defences and the lack of duplication of effort in counsel’s work.

Applying the criteria under Rule 57.01, the court awarded the full amount requested.