John Nicholas Birch

The appellants appealed a motion judge's decision dismissing their motion to stay or dismiss the respondent's action on the basis of forum non conveniens.

The appellants argued that the motion judge misplaced the evidentiary burden by failing to require the respondent to show why the action should be heard in Ontario, given an exclusive jurisdiction clause favouring Quebec or New York.

The Court of Appeal dismissed the appeal, finding that while the motion judge may have erred in principle regarding the burden of proof under the forum selection clause, order and fairness overwhelmingly favoured Ontario as the appropriate forum due to the existence of multiple related proceedings already before the Ontario courts.

In a CCAA proceeding, the appellant sought to enforce a Memorandum of Agreement to purchase the debtor's assets after missing a deadline.

The motion judge found the agreement had expired.

The respondents moved to quash the appeal on the basis that leave was required under s. 13 of the CCAA.

The Court of Appeal held that leave was required because the order was made under the CCAA.

The Court dismissed the appellant's cross-motion for leave to appeal, finding no basis to interfere with the motion judge's findings on expiration and estoppel, and concluding the proposed appeal lacked significance to the practice.

The appellant appealed a decision dismissing its oppression claim regarding the sale of a debtor's assets and the refusal to permit redemption of shares.

The Court of Appeal assumed jurisdiction without deciding the issue.

The Court dismissed the appeal, finding that the appellant was a participant in the prior receivership proceedings where the sale was approved and chose to take no position.

The proper time and place to protest the unfairness of the sale was during the motion to approve the sale in the receivership proceedings.

The appellant appealed a trial judge's decision characterizing a letter of agreement as an absolute and unconditional sale and transfer of shares.

The appellant argued the arrangement created a security interest subject to the Personal Property Security Act.

The Court of Appeal dismissed the appeal, finding the trial judge was entitled to conclude on the record that the transaction was an absolute sale.

The appellant appealed an order striking its Third Party Notice.

The Court of Appeal allowed the appeal, finding that while the pleading was deficient, it contained enough information to discern possible causes of action including unconscionability, breach of the Sale of Goods Act, and negligent misrepresentation.

The appellant was granted a further opportunity to properly articulate its claims.

However, due to the 'deplorable' state of the original pleading, the successful appellant was denied costs, and the respondent was awarded costs of the appeal fixed at $5,000.

The appellant appealed a summary judgment enforcing a written agreement.

The appellant argued that a contemporaneous oral agreement altered its payment obligations.

The Court of Appeal dismissed the appeal, holding that the written agreement was clear and unambiguous, and evidence of an oral agreement cannot be admitted to contradict its terms.

The Court also noted that even if the dispute was subject to an arbitration clause, summary judgment was appropriate under s. 7(2), para. 5 of the Arbitration Act, 1991.

In an addendum on costs following an appeal, the Court of Appeal determined the appropriate disposition of costs.

The court awarded costs only to the respondent Guardian, Wasserman Arsenault, denying costs to the Superintendent of Bankruptcy because its role was minor and duplicative.

The court rejected the respondents' request for full indemnity based on their low negotiated hourly rates, fixing costs on a partial indemnity scale at $30,000 all inclusive.

The costs were apportioned 75% against the appellant Rumanek & Cooper and 25% against the appellant C.I.B.C., based on the number and complexity of the issues relating to each.

The appellants, a former trustee in bankruptcy and a bank, appealed a decision determining several questions of law regarding the administration of summary bankruptcy estates.

The former trustee sought fees in excess of the prescribed tariff for extraordinary work performed, while the bank sought priority for funds advanced to keep the bankrupt estates' administration running.

The Court of Appeal dismissed the appeals, holding that the court has no jurisdiction to award trustee fees in excess of the statutory tariff for summary administration estates.

The court also affirmed that any withdrawals for overhead must be credited against the trustee's fees, that the Guardian appointed by the Superintendent has priority over the former trustee for its fees, and that any shortfall in the consolidated trust account must be borne by the fee claimants rather than the creditors.