Jonathan Silver

The Court of Appeal for Ontario dismissed Enbridge Gas Inc.'s appeal, upholding the Divisional Court's finding that the 1957 franchise agreement between Enbridge and the County of Essex had not expired under the rule against perpetuities.

The court found that the Ontario Energy Board (OEB) erred in law by misapplying the rule against perpetuities, focusing on the duration of the right rather than the vesting of the interest.

The court also held that the Divisional Court was not bound by its earlier decision in Dawn-Euphemia and that the OEB could not impose a new franchise agreement unless the existing one had lapsed or was about to lapse.

The appellant, Gerald Sternberg, appealed the dismissal of his action against Cresford Capital Corporation, seeking payment as a guarantor for a vendor take-back mortgage.

Sternberg had sold land to Cresford, which then assigned the agreement and mortgage to a single-purpose corporation that defaulted.

Cresford's name appeared as guarantor on the electronic mortgage registration, but Cresford argued this was an error and that no guarantee agreement existed.

The motion judge granted summary judgment to Cresford, finding no guarantee agreement.

The Court of Appeal upheld this decision, affirming that the motion judge correctly interpreted the agreements and that the electronic registration was an error inconsistent with the parties' bargain.

The Court emphasized the high standard of deference to the motion judge's contractual interpretation and found no reversible error.

The appellant sought leave to file a reply factum in an appeal, asserting that the respondent's factum introduced new issues, specifically regarding whether a secondary argument was properly raised on appeal and the applicability of the doctrine of merger.

The court found that new issues were indeed raised by the respondent and granted the appellant leave to file a reply factum, while denying the respondent the right to file a sur-reply factum.

Costs for the motion were reserved to the panel hearing the appeal.

In the receivership of the Stateview entities, Tarion Warranty Corporation brought a motion seeking declaratory relief on behalf of purchasers who had paid deposits for pre-construction homes.

Tarion argued that the deposits were subject to an express or constructive trust and sought a remedial constructive trust to elevate the purchasers' priority.

The court dismissed the motion, finding that the purchasers had contractually subordinated their interests to secured lenders.

While an express trust existed for contracts with early termination provisions, the funds were not segregated.

The court declined to impose a remedial constructive trust, as doing so would improperly upset the priority scheme under the Bankruptcy and Insolvency Act.

This motion concerned the priority of new home purchasers' deposits in the bankruptcy of residential real estate developers (Stateview entities).

Tarion Warranty Corporation sought declaratory relief, arguing that the deposits were subject to express or constructive trusts due to unjust enrichment, which would elevate purchasers' claims.

The court dismissed Tarion's motion, finding that purchasers' agreements contained subordination clauses giving priority to secured lenders.

The court also determined that while express trusts existed for some purchasers with early termination provisions, these were not statutory deemed trusts.

Furthermore, there was no unjust enrichment for purchasers without express trusts, as the operation of the Bankruptcy and Insolvency Act constituted a juristic reason.

The court declined to impose a remedial constructive trust, emphasizing the high bar for such remedies in insolvency proceedings and the lack of a close causal connection between the deposits and the real property proceeds.

This is an appeal from an order of the Commercial List judge concerning insolvency proceedings.

The appellants, Bryton, sought to exercise an option to purchase a property and obtain orders declaring the option valid and immune from challenge by other creditors under various acts (Fraudulent Conveyances Act, Assignments and Preferences Act, Canada Business Corporations Act oppression remedy, and Bankruptcy and Insolvency Act).

The application judge dismissed Bryton's request for a vesting order and declaratory relief, finding that the claims were not res judicata and that declaratory relief was not the appropriate vehicle to pre-emptively bar unadjudicated creditor claims.

The Court of Appeal upheld the application judge's decision, confirming that the validity of the option was not res judicata and that the refusal to grant declaratory relief was a proper exercise of discretion, as the application procedure was not suitable for dismissing unproven claims.

This is an appeal from a commercial arbitration award that found a metal purchase and sale agreement between Franco-Nevada and Taseko had been frustrated due to the denial of federal environmental approvals for a gold mine project.

The Superior Court of Justice, applying a reasonableness standard of review, found the arbitrator's conclusion unreasonable.

The court held that the arbitrator misapplied the test for frustration by failing to properly consider foreseeability and by misinterpreting the contract as project- and timeline-specific, despite provisions allowing for changes and a long term.

The appeal was granted, overturning the frustration finding.

A motion for a sealing order for confidential information was also granted.

The appellant infringed a patent held by the respondents for metallocene linear low-density polyethylenes (thin but strong plastics).

Following a liability finding, a reference judge awarded the respondents an accounting of profits equal to the appellant's actual revenue minus actual full costs, and also awarded springboard profits — profits earned post-patent-expiry causally attributable to infringement during the patent period.

The majority dismissed the appeal, holding that an accounting of profits requires disgorgement of all profits causally attributable to the invention using a three-step framework; the appellant's concession that no non-infringing option existed precluded reduction of the award; and springboard profits are legally permissible and factually supported.

Côté J. dissented, arguing the differential profit approach should have been available and the matter remitted to the Federal Court.

The respondent requested a correction to a costs endorsement, noting the judge had mistakenly written the fee total instead of the all-inclusive total of fees, taxes, and disbursements.

The applicants objected, arguing the endorsement was clear and the issue should be raised on cross-appeal since an appeal had already been commenced.

The court corrected the transposition error, amending the costs award to the intended all-inclusive amount of $2,288,314.57, noting the Court of Appeal would prefer the corrected outcome over a cross-appeal about a typo.

Following a successful appeal, the appellant sought its costs of the original application on a substantial indemnity basis, citing the respondent's bad faith dealing.

The Court of Appeal declined to award substantial indemnity costs, finding the respondent's conduct did not rise to the level of reprehensible, scandalous, or outrageous.

The Court awarded the appellant partial indemnity costs fixed at $100,000.

The Court of Appeal for Ontario issued a costs endorsement following an appeal hearing related to the Companies’ Creditors Arrangement Act (CCAA) proceedings of Urbancorp Cumberland 2 GP Inc. and related entities.

The panel reviewed the costs requests from the appellants and respondents and found the amounts reasonable.

Specific costs were ordered to be paid out of the Estate of the Cumberland Group to the appellants (Toro Aluminum, Speedy Electrical, Dolvin Mechanical) and two respondents (Guy Gissin, Tarion Warranty Corporation).

The Monitor and the Attorney General of Ontario did not seek costs.

This appeal concerns the effectiveness of a statutory trust under s. 9(1) of Ontario's Construction Lien Act (CLA) in Companies' Creditors Arrangement Act (CCAA) insolvency proceedings.

Unpaid contractors (appellants) claimed a trust over proceeds from the sale of condominium units by the insolvent developer (Cumberland Group).

The motion judge denied the trust, relying on Re Veltri Metal Products Co., reasoning that the CCAA Monitor's involvement prevented the trust from arising.

The Court of Appeal allowed the appeal, clarifying that a s. 9(1) CLA trust can be effective in CCAA sales processes and is only displaced by federal paramountcy if it conflicts with a specific CCAA priority.

The court distinguished Veltri, stating it did not prevent a s. 9(1) trust when proceeds exceed mortgage debt and expenses, and confirmed the "deemed receipt" rule.

The appellant, a federally-regulated Crown corporation, appealed a Federal Court of Appeal decision reinstating a Health and Safety Officer's direction that the employer had contravened s. 125(1)(z.12) of the Canada Labour Code by failing to ensure that workplace safety inspections covered letter carrier routes and points of call beyond the physical depot building.

The appeals officer had concluded that the statutory inspection obligation applied only to workplaces the employer physically controls, and the Federal Court upheld that decision.

The majority of the Supreme Court applied the Vavilov framework for reasonableness review and held that the appeals officer's interpretation — confining the inspection duty to employer-controlled premises — was reasonable, internally coherent, and defensible in light of the text, context and purpose of the provision.

The appeal was allowed and the appeals officer's order was restored.

Following a motion for directions where the court ordered that the corporate respondent not pay the personal respondents' legal fees for their appeal of a winding-up order, the court determined costs.

The applicant sought costs of $4,500 on a partial indemnity basis.

The respondents failed to provide written submissions.

The court awarded the requested $4,500 to the applicant, ordering that it be paid jointly and severally by the personal respondents, as their conduct in breaching a stay order necessitated the motion.

The appellant, an investor, sought damages from specific-project corporations on the basis of knowing assistance in a breach of fiduciary duty arising from a complex multi-million dollar real estate fraud perpetrated by a married couple.

The couple convinced investors to invest in specific-project corporations to acquire and hold commercial real estate, but instead diverted the funds for personal use.

The application judge dismissed the knowing assistance claim, finding the fraudulent wife's knowledge could not be imputed to the specific-project corporations.

The majority of the Court of Appeal allowed the claim.

The Supreme Court of Canada allowed the appeal, agreeing with the dissenting judge below that the knowing assistance claim must fail.

The Court clarified that while Livent permits courts to decline to apply corporate attribution where the public interest so requires, the minimal criteria from Canadian Dredge must always first be satisfied.

The court-appointed monitor sought directions on whether Di Battista Gambin Developments Limited (DBG) should pay the legal fees incurred by the Di Battista respondents for their appeal of a winding-up order.

The court found that the appeal was solely for the benefit of the individual Di Battista respondents, whose conduct had been found oppressive, and not for the mutual benefit or ordinary course of DBG's business.

Therefore, DBG should not fund the appeal costs, and the Di Battista respondents were ordered to repay any legal fees already paid by DBG.

The appellant sought life insurance proceeds after paying premiums under an oral separation agreement that required maintenance of her beneficiary designation.

The insured later redesignated a new spouse as irrevocable beneficiary, and the proceeds were paid accordingly.

The majority held the respondent was unjustly enriched at the appellant’s expense and found no juristic reason under the Insurance Act to defeat restitution.

A remedial constructive trust over the full proceeds was imposed because a personal remedy was inadequate in the circumstances.

The dissent would have dismissed the appeal on the basis that statutory beneficiary protections supplied a juristic reason and that corresponding deprivation was not established.

The Canadian National Railway Company (CNR) moved to stay an application brought by the Regional Municipality of Halton and its constituent municipalities (Halton) concerning the applicability of provincial and municipal laws to CNR's proposed intermodal rail hub in Milton.

Halton's application sought declarations on constitutional division of powers issues, arguing that provincial and local laws of general application should apply to the federal undertaking.

CNR contended the application was premature and interfered with an ongoing federal environmental assessment process.

The court granted CNR's motion to stay Halton's application, finding that while the constitutional issues were not hypothetical, the federal environmental review panel was mandated to consider local concerns and impacts, and allowing the application to proceed would be an unwarranted intrusion into the federal process and an inefficient use of judicial resources.

The stay is temporary, pending the completion of the federal environmental assessment and the Minister's decision.