Julie Rosenthal

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 Court of Appeal for Ontario issued a costs endorsement following an appeal.

Costs were awarded to the respondent in the amount of $23,000, inclusive of relevant disbursements and taxes.

The respondent obtained a New York judgment requiring the appellant to deliver a painting pursuant to a contract of sale.

The respondent successfully moved in Ontario to enforce the New York judgment, and was awarded substantial indemnity costs based on the appellant's conduct in the New York litigation.

On appeal, the Court of Appeal upheld the enforcement order, finding that the appellant had attorned to the New York court's jurisdiction by advancing substantive defences on the merits in that forum.

However, the Court allowed the appeal regarding costs, holding that the scale of costs should be determined by the appellant's conduct in the Ontario proceeding, not the foreign litigation, and substituted an award of partial indemnity costs.

The defendant was charged with care and control of a motor vehicle while impaired and with blood alcohol concentration above the legal limit.

He brought a Charter s. 11(b) application alleging unreasonable delay between his arrest on February 2, 2012, and his scheduled trial date of April 15, 2013—a period of approximately 14.5 months.

The court found that the delay violated the defendant's constitutional right to be tried within a reasonable time and granted a stay of proceedings pursuant to s. 24(1) of the Charter.

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.

The appellants, auditors and underwriters of Sino-Forest Corporation, appealed an order declaring that their claims for contribution and indemnity against Sino-Forest were 'equity claims' under the Companies' Creditors Arrangement Act (CCAA).

The claims arose from proposed shareholder class actions alleging misrepresentation.

The Court of Appeal dismissed the appeal, holding that the definition of 'equity claim' in s. 2(1) of the CCAA focuses on the nature of the claim rather than the identity of the claimant.

The court found that the appellants' claims for contribution and indemnity were clearly connected to the shareholders' equity claims and thus fell within the expansive statutory definition.

The respondent loaned a killer whale to the appellant under a Breeding Loan Agreement.

The respondent later gave notice to terminate the agreement, but the appellant refused to return the whale, arguing the termination right was qualified by a prior Interchange Agreement and extrinsic evidence.

The application judge found the Breeding Loan Agreement was a clear, unambiguous, stand-alone contract permitting termination without cause.

The Court of Appeal upheld this decision, finding no ambiguity that would allow the admission of extrinsic evidence and concluding the termination provision was not commercially unreasonable.

The appellants, residents of Ecuador, brought negligence actions against Copper Mesa Mining Corporation, its directors, and the TSX defendants for alleged human rights abuses committed by security forces in connection with a mining project in Ecuador.

The appellants claimed the TSX defendants owed a duty of care not to list Copper Mesa's shares, and the directors owed a duty to avoid acts contributing to the abuses.

The Court of Appeal upheld the motions judge's decision to strike the claims under Rule 21.01(1)(b), finding that the pleadings failed to establish the requisite foreseeability and proximity under the Cooper-Anns test to ground a novel duty of care.

The corporation sought an order approving a proposed arrangement to collapse its dual-class share structure by purchasing for cancellation all outstanding Class B shares for consideration comprising 9 million newly issued Class A shares and US$300 million in cash.

The application judge approved the arrangement.

The opposing shareholders appealed, arguing the application judge erred in finding the arrangement fair and reasonable.

The Divisional Court dismissed the appeal, holding that the application judge correctly applied the BCE test.

The corporation was not required to demonstrate with certainty that the benefits of the arrangement would offset the costs, but only a reasonable prospect of clearly identified benefits.

The affirmative vote of the Class A shareholders was important evidence supporting the fairness of the arrangement.

The appellant appealed an order striking portions of its statement of claim and restricting leave to amend.

On consent, the order was amended to preserve a misrepresentation claim against two defendants.

The Court of Appeal also narrowed a restriction on amending the claim, holding that the appellant was only precluded from pleading facts that would amount to a collateral attack on a prior approval decision, rather than all facts known prior to that decision.

The appeal was otherwise dismissed, upholding the motion judge's decisions to strike references to settlement discussions and to refuse leave to amend an oppression claim.

The parties entered into a joint venture agreement to purchase and develop property.

When a creditor demanded repayment of a note, only one partner was willing to pay.

That partner's company purchased the note and eventually foreclosed on the property when the other partners failed to pay their shares.

The appellants sued for breach of the joint venture agreement and return of their investment.

The Supreme Court of Canada held that the agreement was not terminated and had not been breached.

The Court also dismissed the unjust enrichment claim, finding that the contract and the foreclosure proceedings provided a juristic reason for the deprivation.

Apotex appealed a trial judge's decision allowing Bayer to elect an accounting for profits as a remedy for patent infringement and directing a referee to count all infringing capsules sold by Apotex.

Apotex argued that the trial judge reversed the burden of proof, misconstrued the patent, and erred in finding a causal link between the infringement and all profits.

The Court of Appeal dismissed the appeal, finding no error in the trial judge's exercise of discretion to award an accounting for profits or in the direction to the referee, as Apotex's product infringed the patent in its entirety.

The appellant mortgagee sought to recover on a mortgage covenant from beneficial owners alleged to be undisclosed principals of a corporate titleholder that executed the mortgage under seal.

The Court held that the sealed contract rule remains part of Canadian common law and bars suit by or against undisclosed principals on contracts executed under seal.

It rejected the argument that the rule does not apply to corporate agents and held that Harmer v. Armstrong did not create a direct right of action against beneficiaries or principals.

Applying s. 13(1) of the Land Registration Reform Act, the Court held the mortgage was deemed under seal for all purposes, making the beneficial owners not liable on the covenant.

The request to abolish the sealed contract rule was refused because the proposed reform was not shown to be necessary and risked far-reaching commercial uncertainty.