John Langen Finnigan

The defendants, KPMG, Canaccord Genuity Corp., and Cassels Brock & Blackwell LLP, brought motions for summary judgment to dismiss actions initiated by 1511419 Ontario Inc. (formerly The Cash Store Financial Services Inc.) on the grounds that the claims were statute-barred by the two-year limitation period.

The actions related to professional services provided concerning a January 2012 loan purchase and note offering.

The court dismissed the motions, finding that there were genuine issues requiring a trial regarding the discoverability of the claims, given the complex factual pattern, allegations of professional negligence, and the limited evidentiary record presented.

The plaintiffs brought a cross-motion for leave to introduce a supplementary affidavit in response to the defendants' summary judgment motion.

The affidavit addressed two issues: a conversation regarding legal representation and the plaintiffs' financial losses, including an accounting opinion.

Applying Rule 39.02(2) and Rule 1.04 of the Rules of Civil Procedure, the court granted leave for both aspects of the supplementary affidavit, finding the evidence relevant and necessary for a just determination on the merits, particularly given the complexity and potential value of the case, and that the defendants were not surprised by the accounting opinion.

The plaintiff, a shell company representing substantial commercial creditors, conceded it lacked sufficient assets to cover the defendants' costs if unsuccessful in three complex commercial actions seeking over $150 million in damages.

The plaintiff also failed to demonstrate impecuniosity.

The defendants sought over $10 million in security for costs.

The court, finding the merits of the underlying claims neutral for the purpose of the motion, determined it was fair and just for the plaintiff to post security.

An initial aggregate sum of $1.6 million was ordered to be paid into court, staged across the three actions, with further amounts to be determined later.

The Nortel group of companies filed for insolvency protection across multiple jurisdictions.

Following the sale of Nortel's assets, approximately $7.3 billion was placed in escrow.

The trial judge ordered that these lockbox funds be allocated on a pro rata basis among the various debtor estates, finding that Nortel operated as a highly integrated multinational enterprise and that the master research and development agreement did not govern allocation upon insolvency.

Several parties sought leave to appeal under the Companies' Creditors Arrangement Act.

The Court of Appeal denied leave, finding that the proposed appeals were not prima facie meritorious, did not raise issues of significance to the practice, and would unduly hinder the progress of the proceedings.

The applicants sought approval of a sale of substantially all of their assets to a newly incorporated entity owned by their first lien lenders pursuant to a credit bid, effectively wiping out the second lien lenders.

RBC, a first and second lien lender, opposed certain ancillary relief.

The court approved the sale transaction, finding the pre-filing sales process reasonable under the Soundair principles and s. 36(3) of the CCAA.

However, the court declined to grant a broad third-party release by the first lien lenders, refused to bind RBC to a shareholders' agreement, and dismissed RBC's motions for pre-filing interest, fees, and a share of a consent fee.

In a joint cross-border insolvency trial concerning the allocation of approximately $7.3 billion in lockbox funds from the sale of global business lines and residual intellectual property, the court interpreted the Master R&D Agreement as an operating transfer-pricing document that granted limited licence rights but did not govern post-insolvency allocation.

The court rejected both the position that one Canadian debtor owned all sale proceeds by virtue of legal title and the position that the EMEA debtors jointly owned all intellectual property by operation of law.

Applying unjust enrichment principles and the broad remedial jurisdiction available in CCAA proceedings, the court held that a just result required a pro rata allocation among debtor estates based on allowed claims.

The court further directed that duplicate claims be counted only once for allocation purposes, that intercompany claims be included, and that interim distribution proposals be brought forward.

The applicants sought costs following a motion for the production of documents.

Both parties claimed success on the motion.

The court found that the applicants were substantially more successful, as the respondent's principal position was that no disclosure should be ordered, forcing the applicants to bring the motion.

The court awarded the applicants costs fixed at $11,500 on an all-inclusive basis, reflecting a reduction for their lack of success on an alternative argument.

In the context of the global insolvency of Nortel Networks, the UK Pension Claimants (UKPC) asserted multiple claims against the Canadian debtors (NNC and NNL).

The UKPC claimed for a contingent Financial Support Direction (FSD) under UK pension law, amounts under a Funding Guarantee and a Swift Guarantee, and remedies for oppression and unjust enrichment.

The court dismissed the FSD claim as too remote and speculative to constitute a provable claim in the CCAA proceedings.

The court also dismissed the claims under the Swift Guarantee, oppression, and unjust enrichment.

However, the court allowed the UKPC's claim under the Funding Guarantee, finding NNL liable for £339.75 million.

The moving party sought leave to appeal an order in a CCAA proceeding regarding a priority claim for reimbursement of fees and the imposition of a constructive trust.

The Court of Appeal applied the four-part test for leave to appeal in the CCAA context and denied leave.

The court found that the proposed appeal lacked sufficient merit and involved well-settled matters of law that were not of significance to the practice.

The applicants brought a motion for the production of documents subject to solicitor-client privilege relating to the negotiation of a tax indemnification provision in an agreement.

The applicants sought rectification of the agreement, arguing the parties had a common understanding that was mistakenly omitted.

The respondent relied on affidavits from its principal and its former legal counsel to assert its intention regarding the provision.

The court held that by relying on these affidavits, which implicitly put the respondent's state of mind and legal advice in issue, the respondent had waived solicitor-client privilege.

The court ordered reciprocal disclosure of all solicitor-client communications relating to the negotiation of the agreement.

The defendant moved to stay or dismiss an Ontario action seeking recognition and enforcement of a U.S. judgment, arguing that Ontario lacked jurisdiction because there was no real and substantial connection between the defendant and Ontario.

The plaintiff brought a cross‑motion to amend its statement of claim to add grounds for service ex juris.

The court held that in recognition and enforcement proceedings the applicable test is that set out in Beals v. Saldanha, requiring a real and substantial connection between the foreign court and the underlying dispute, not between the defendant and Ontario.

The court found the Beals criteria were satisfied, including a final foreign judgment for a fixed sum and no applicable defences.

The defendant’s motion was dismissed and the plaintiff’s amendment was allowed in part to clarify service outside Ontario.

The applicants, owners of designated physiotherapy clinics, sought judicial review to quash Regulation 138/13, which delisted their clinics and changed the funding model for physiotherapy services.

They argued the regulation was enacted in violation of a government policy requiring a 45-day consultation period, thereby breaching their legitimate expectations of procedural fairness.

The Divisional Court dismissed the application, finding that the policy did not create a clear, unambiguous, and unqualified representation, as it expressly allowed for exceptions.

Furthermore, the court noted that quashing the regulation would be futile, as the government could simply re-enact it after a formal consultation period, having already heard and rejected the applicants' views.

In CCAA proceedings involving the debtor corporations, a significant creditor sought a declaration imposing a constructive trust and super‑priority over litigation proceeds to recover payments it made to a strategic advisor who served as a director and litigation committee chair.

The creditor argued that the payments justified a solicitor’s lien, unjust enrichment, constructive trust, or oppression remedy.

The court held the advisor’s work was performed in the capacity of a director and business advisor rather than as a solicitor, precluding a solicitor’s lien.

The court further held that the criteria for unjust enrichment and constructive trust were not satisfied and that imposing a proprietary remedy would disrupt the established CCAA priority regime.

The motion seeking super‑priority status was dismissed.

Co-owners of a Toronto property brought an application under the Partition Act seeking an order for sale and directions regarding the method of sale.

While all parties agreed the property should be sold, they disagreed on whether the sale should proceed by public auction or by sealed bid.

The court discounted partisan affidavit evidence from the parties and professional firms with financial interests in the process.

Emphasizing the need to safeguard the integrity of the sales process and maximize value, the court concluded that a sealed-bid process was preferable in circumstances where some co-owners intended to bid on the property.

The court ordered the sale to proceed by sealed bid under the supervision of an independent sales officer, with final process terms subject to court approval.

In a receivership over a commercial condominium development, the receiver sought approval of a marketing and sale process allowing the property to be sold free and clear of unregistered unit purchase agreements and leases.

A group of purchasers argued their agreements should be honoured and that the project should proceed to condominium registration so their units could close.

The court held that the first mortgagee’s registered security had legal priority over the purchasers’ and tenants’ interests, which were unregistered and expressly subordinated by contract.

The receiver was not required to borrow funds or complete construction to facilitate specific performance of the agreements.

Finding that the equities did not favour the purchasers, the court approved the marketing process and authorized termination and vesting out of the agreements and leases if required for a sale.

The Supreme Court of Canada considered a proposed plan of arrangement for a leveraged buyout of BCE Inc. that would add substantial debt to Bell Canada, reducing the trading value of its debentures.

The debentureholders opposed the arrangement, claiming oppression under s. 241 of the CBCA and arguing the arrangement was not fair and reasonable under s. 192.

The Court held that the directors' fiduciary duty is owed to the corporation, not to specific stakeholders, though directors may consider stakeholder interests.

The debentureholders failed to establish a reasonable expectation that their investment grade rating would be maintained.

The Court affirmed the trial judge's approval of the arrangement, finding it had a valid business purpose and resolved objections in a fair and balanced way.

The appellant appealed an order of the Divisional Court.

The Court of Appeal found no error in the Divisional Court's decision and agreed with the reasons given by Blair R.S.J. The appeal was dismissed with costs awarded to the respondents.

In the context of Air Canada's CCAA restructuring, the appellant sought leave to appeal an order approving an equity investment agreement with Trinity Time Investments Limited and denying an adjournment to consider a competing proposal.

The Court of Appeal dismissed the motion for leave, finding no error in the supervising judge's decision to approve the agreement, which contained a 'fiduciary out' clause allowing the board to consider superior proposals.

The court held that the test for leave to appeal in CCAA proceedings—requiring serious and arguable grounds of real and significant interest—was not met.

The appellant investors appealed an order disqualifying their counsel and his merged law firm from continuing to represent them in a complex litigation against the respondent promoters.

The disqualification arose after the investors' law firm merged with another firm that had previously acted for the promoters in preparing the offering memorandum at the heart of the dispute.

The Divisional Court dismissed the appeal, finding that the merged firm failed to implement an ethical wall at the time the merger became effective, creating an irreconcilable conflict of interest and a risk of sharing confidential information.

The appellants, various book publishers, appealed a decision determining that they did not have priority over the Bank of Nova Scotia regarding accounts receivable collected by the distributor, General Distribution Services Inc. (GDS).

The publishers argued that because they retained title to the books, they had priority.

The Court of Appeal dismissed the appeal, finding that the arrangement between the publishers and GDS did not require the segregation of funds, allowing GDS to mingle the proceeds with its own money.

Consequently, the relationship was one of debtor and creditor, not trustee and beneficiary, and the publishers did not hold a priority interest.