Julie Rosenthal

This endorsement addresses a motion in the context of a proposed arrangement involving Converge Technology Solutions Corp. and 16728421 Canada Inc. (HIG) under section 192 of the Canada Business Corporations Act.

After an unsolicited acquisition proposal and subsequent amendments to the arrangement, the parties resolved the motion on consent, resulting in the dismissal of the motion with prejudice and without costs.

The court also considered and declined a request to continue a sealing order, finding that the justification for confidentiality no longer existed.

This endorsement addresses an urgent case conference regarding the content of a press release to be issued by Converge Technology Solutions Corp. if an Acquisition Proposal is received and deemed a Superior Proposal.

The court considered whether the press release should include the name of the party submitting the Acquisition Proposal and the proposed share price.

The Ontario Securities Commission (OSC) supported disclosure of both, and the court agreed, finding this approach consistent with previous orders and directions.

This endorsement addresses urgent interim relief in a contested plan of arrangement under the Canada Business Corporations Act involving Converge Technology Solutions Corp. and 16728421 Canada Inc. (HIG).

The dispute arose after Converge received an unsolicited proposal from a third party, leading to motions regarding confidentiality, publication bans, and the process for shareholder notification.

The court continued interim sealing and publication ban orders until the facts crystallize, particularly regarding whether a "Superior Proposal" is received and determined by the board.

The decision applies the Supreme Court’s test for discretionary limits on court openness, balancing the need to protect commercially sensitive information with the principle of open courts.

The defendants, Unity Health, brought a motion under Rule 21.01(1)(a) to strike paragraphs of the plaintiff Noram's Amended Statement of Claim, arguing that new claims for conspiracy and breach of fiduciary duty were statute-barred by the Limitations Act.

Noram had added these claims as alternative grounds for relief to an existing unjust enrichment claim.

The court dismissed Unity Health's motion, finding it was not "plain and obvious" that the Limitations Act applied to amendments made as of right to an existing proceeding, particularly given the unsettled nature of the law on this specific point of statutory interpretation.

The court preserved Unity Health's right to raise the limitations defence at a later stage.

The appellant, Black & McDonald Limited, appealed two orders staying their proceedings in Ontario in favour of British Columbia as the more convenient forum.

The first action was against Eiffage Innovative Canada Inc. and individuals for breach of contract and breach of trust related to a construction subcontract.

The second was against Liberty Mutual Insurance Company under a payment bond.

The Court of Appeal found that the motion judge erred in interpreting an "exclusive jurisdiction" clause in the prime contract as applicable to the subcontract, and that the forum non conveniens factors did not clearly favour British Columbia, thus the high standard to displace the plaintiff's chosen jurisdiction was not met for the Eiffage action.

For the Liberty Mutual action, the Court found the forum selection clause in the payment bond ambiguous and resolved it against Liberty Mutual, also noting the public policy against multiple proceedings risking inconsistent findings.

The appeals were allowed, and the actions were permitted to proceed in Ontario.

The appellant, Bluemoon Capital Ltd., appealed the dismissal of its application for a Norwich order and the quashing of a Rule 39.03 notice of examination.

The appellant, a shareholder of Ceridian HCM Holding Inc., sought pre-action discovery regarding the alleged undervaluation of LifeWorks Corporation Ltd. shares during Ceridian's 2018 distribution and subsequent sale to Morneau Shepell.

The application judge dismissed the Norwich order, finding it unnecessary and not in the interests of justice, and quashed the notice of examination as moot.

The Court of Appeal found no reversible error, affirming the application judge's discretionary decision that the appellant had sufficient information to commence its class action and that the Norwich order was not sought for a legitimate purpose.

The appeal was dismissed with costs awarded to the respondents.

The appellants, a group of subcontractors and a bank, appealed an application judge's decision that rescission of surety bonds might be possible even if it affects innocent third parties.

The bonds were issued by Zurich Insurance Company Ltd. for a large construction project, but Zurich later discovered alleged fraudulent misrepresentations and collusion that induced it to issue the bonds.

The appellants sought a declaration that rescission was unavailable as a matter of law due to the involvement of innocent third parties.

The Court of Appeal dismissed the appeal, affirming that prejudice to third parties is not an absolute bar to rescission, especially in cases of fraudulent misrepresentation, and that such a determination requires a full factual record at trial.

The defendants brought a motion to stay two actions commenced in Ontario, arguing that British Columbia was the more appropriate forum based on contractual choice of law and jurisdiction clauses related to a construction project.

The plaintiff opposed the motion and brought a cross-motion to compel arbitration.

The court granted the defendants' motion to stay, finding that despite Ontario having jurisdiction simpliciter, British Columbia was the forum conveniens due to the clear contractual terms and the location where the factual matters arose.

The plaintiff's cross-motion to compel arbitration was dismissed, with the court noting that the arbitrator should determine their own jurisdiction in the first instance.

Costs were awarded to the successful defendants.

The applicant sought a Norwich order for pre-action discovery against the respondents to obtain documents relating to a corporate distribution and subsequent acquisition.

The respondents brought motions to quash a notice of examination and for a sealing order over confidential tax information.

The court dismissed the application for a Norwich order, finding the applicant had sufficient information to commence its claims and lacked a legitimate objective.

The court granted the sealing order to protect highly sensitive tax information and quashed the notice of examination as an abuse of process.

Cineplex and Cineworld entered into an Arrangement Agreement for Cineworld to acquire Cineplex for $2.8 billion.

Following the outbreak of the COVID-19 pandemic and mandated theatre closures, Cineplex deferred payments to landlords and suppliers to manage liquidity.

Cineworld terminated the agreement, alleging Cineplex breached the ordinary course covenant.

The court found that Cineplex's cash management measures were commercially reasonable and did not breach the agreement, noting that the pandemic risk was allocated to Cineworld under the Material Adverse Effect clause.

Cineworld's termination was a repudiation, and Cineplex was awarded $1.24 billion in damages for lost synergies and transaction costs.

The appellants built a retaining wall on a neighbour's property without a permit from the Credit Valley Conservation Authority.

The neighbour (Lorne Park Estates Association) pleaded guilty to provincial offences related to the wall.

The appellants sought to intervene in the Association's sentencing to argue against the wall's removal, but their application was dismissed by the justice of the peace.

The Superior Court dismissed their certiorari application to quash this decision.

The Court of Appeal dismissed the appeal, finding no substantial wrong or miscarriage of justice in denying intervener status, as intervention in quasi-criminal sentencing is rare and it would be unfair to allow third parties to interpose themselves against a joint submission by the Crown and accused.

The appellants, including a provincially constituted lottery authority, sought to strike a class action claim brought by respondents who alleged that video lottery terminals were inherently dangerous and deceptive, and sought a gain‑based award quantified by the authority's profits.

The majority held that none of the three pleaded causes of action — waiver of tort as an independent cause of action, breach of contract, and unjust enrichment — disclosed a reasonable cause of action.

The majority definitively rejected "waiver of tort" as an independent cause of action for disgorgement in Canadian law, holding that disgorgement is a remedy for established wrongful conduct and not a freestanding cause of action.

The majority further found that the breach of contract claim could not support disgorgement or punitive damages on the pleadings as framed, and that a valid contract between the parties constituted a juristic reason defeating the unjust enrichment claim.

In partial dissent, four justices would have allowed the breach of contract claim to proceed to certification on the common issues of breach of contract, punitive damages, and the appropriateness of disgorgement as a remedy.

This case conference in a proposed class action by consumers against Uber for anti-competitive conduct established a timetable for a certification motion.

The court noted a parallel class action (Heller Action) by drivers against the same defendants, where drivers sought employee status, contrasting with the current action's pleading of drivers as self-employed.

The defendants are considering a motion to stay proceedings pending the resolution of the Heller Action regarding driver status.

Despite this, a timetable for the certification motion was set, with flexibility for future revisions.

The defendants, Pfizer, brought a motion under Rule 21.01(1)(b) to strike various claims in the plaintiff Apotex Inc.'s Amended Statement of Claim.

Apotex sought relief for being kept out of the market by Pfizer's invalid patent for Viagra, asserting statutory claims under the Patented Medicines (Notice of Compliance) Regulations, Statutes of Monopolies, and Trade-marks Act, and common law claims for unjust enrichment, nuisance, Ashby v. White, and conspiracy.

The court struck the claims under s. 8 of the PMNOC Regulations and the independent cause of action based on Ashby v. White, finding that the statutory conditions for PMNOC damages were not met and Ashby v. White is a principle, not a cause of action.

However, the court dismissed Pfizer's motion to strike the claims under the Trade-marks Act, unjust enrichment, nuisance, and conspiracy, rejecting the 'complete code theory' as insufficiently settled for a preliminary stage motion and finding the pleadings for these claims to disclose a reasonable cause of action.

The defendant moved for a declaration that service of a statement of claim was invalid where the plaintiff served the defendant's Canadian patent agent rather than serving the foreign defendant abroad under the Hague Convention.

The action sought damages following invalidation of a patent and included a claim under the Patent Regulations enacted pursuant to the Patent Act.

The court interpreted s. 29(2) of the Patent Act broadly, holding that non-resident patent owners who appoint Canadian representatives for service may be served through those representatives for proceedings arising under the Act or its regulatory regime.

The presence of additional common law or statutory claims did not remove the action from the scope of the provision.

The court concluded that domestic law permitted service in Canada and therefore the Hague Convention was not engaged.

The municipality sought an injunction requiring the respondents to obtain a licence as either a taxicab broker or a limousine service company under Chapter 545 of the City of Toronto Municipal Code.

The application alleged that the respondents, through their smartphone platform, accepted requests for transportation services and therefore carried on a regulated business.

The court interpreted the by‑law definitions of “taxicab”, “limousine service company”, and the requirement to “accept calls”, concluding that the automated software platform merely relayed digital requests between passengers and drivers.

Because acceptance occurred only when an individual driver chose to accept a trip request, the respondents themselves did not accept calls or requests within the meaning of the by‑law.

Accordingly, the respondents were not operating as a taxicab broker or limousine service company requiring a municipal licence.

The moving defendants sought to lift restrictions imposed by an earlier order preventing them from disposing of or encumbering property and related equipment pending a motion for a Mareva injunction.

The court characterized the prior order as a consent order reflecting an agreement between the parties, with undertakings that had expired but were subject to extension pending further order.

Applying the RJR‑MacDonald test for injunctive relief, the court found that the plaintiffs had established a serious issue to be tried regarding alleged fraudulent conveyances under the Fraudulent Conveyances Act.

The court also found a real possibility of irreparable harm if the property were encumbered to secure existing liabilities.

The balance of convenience favoured maintaining the restrictions, subject to a limited exception permitting encumbrances for bona fide new financing used in the ordinary course of business.

The defendants moved to strike the plaintiff’s statement of claim or alternatively to stay the action pending the outcome of related Federal Court litigation concerning damages arising from delayed market entry of a generic pharmaceutical product.

Although the defendants ultimately focused their submissions on striking the claim, the court considered whether a temporary stay should be imposed under s. 106 of the Courts of Justice Act.

The court found substantial overlap between the Ontario action and the Federal Court proceedings, including factual background and issues related to calculation of damages arising from the delayed entry of the generic drug.

A stay would prevent duplication of judicial resources and reduce the risk of inconsistent findings, while causing no significant prejudice to the plaintiff beyond delay.

The court therefore exercised its discretion to stay the action pending the outcome of the appeal in the Federal Court proceedings and any further appeals.

The appeal addressed whether a federal regulator had statutory authority to implement a market-based regime requiring negotiations over compensation for retransmission of local television signals.

The majority held the proposed regime exceeded statutory authority and conflicted with the copyright scheme governing retransmission rights and exceptions.

The dissent would have found a sufficient statutory basis and no operational conflict between the two statutes.

The appeal was allowed, with costs throughout.