John T. Porter

Following dismissal of a motion brought by a creditor in a Companies’ Creditors Arrangement Act proceeding, the applicants sought costs on a substantial indemnity basis.

The court rejected the request for substantial indemnity costs, finding that references to possible fraud during submissions and cross‑examination did not amount to pleaded or proven allegations warranting elevated costs.

The applicants sought partial indemnity costs based on rates derived from the Costs Subcommittee practice direction with inflation adjustments.

The court noted that the recommended rates in the practice direction were outdated and unrealistic for major Toronto litigation but nevertheless accepted the claimed partial indemnity rates as reasonable in the circumstances.

Costs were awarded to the applicants in the amount claimed.

Minatura brought a motion to remove Aburi Goldfields Ghana Ltd. from the CCAA proceedings of the applicants, arguing lack of disclosure, that Aburi was not a debtor, and that the dispute over control of Aburi should be litigated in Ghana.

The court dismissed the motion, finding that Aburi was a debtor, that there was no material non-disclosure, and that staying the CCAA proceedings would likely cause the restructuring to fail.

Applying the Van Breda framework and giving weight to a forum selection clause in the parties' shareholders' agreement, the court held that Ontario had jurisdiction and that Minatura failed to establish that Ghana was a more appropriate forum.

In CCAA proceedings involving a mining company, competing motions were brought concerning the restructuring process.

The debtor sought directions regarding the procedure for resolving noteholder claims and the alleged misuse of confidential information by certain creditors, while the noteholders sought an order convening a meeting of creditors to vote on their proposed plan of arrangement.

The court held that calling a creditors’ meeting was premature because the proposed plan conflicted with the debtor-in-possession financing facility, had been introduced without meaningful consultation, and unresolved claims and litigation issues could affect voting rights and recoveries.

The court dismissed the noteholders’ motion without prejudice and declined to order disclosure sought by the debtor.

The stay of proceedings was extended to facilitate continued negotiations and mediation.

Following dismissal of the defendants’ motion for summary judgment, the court determined the appropriate costs award.

The plaintiffs sought substantial indemnity costs on the basis that the motion was unreasonable, while the defendants argued for a reduced partial indemnity award and challenged several disbursements.

The court held that the motion was not unreasonable or brought in bad faith and declined to award substantial indemnity costs under Rule 20.06.

Costs were limited to steps taken after the plaintiffs amended their claim to include fraud-related allegations, which ultimately led to their success on the motion.

The court excluded the plaintiffs’ expert fee and certain other disbursements, and fixed partial indemnity costs at $30,000 inclusive of disbursements and taxes.

The defendants brought a motion for summary judgment on their counterclaim for the balance of the purchase price under a share purchase agreement and to dismiss the plaintiffs' action.

The plaintiffs alleged fraudulent misrepresentation regarding the financial position of the purchased company and sought rescission.

The court found that there was some evidence to support the plaintiffs' claims and that issues of credibility and fact, particularly regarding when the plaintiffs became aware of the alleged fraud and whether they affirmed the contract, required a full trial.

The motion for summary judgment was dismissed.