Karin Sachar

In WURA proceedings concerning the wind-up of a foreign bank’s Canadian business, the court considered an unopposed motion by the court-appointed liquidator for approval of reports, fees, discharge of employee representative counsel, termination of proceedings, and related releases.

The court held the remaining tasks were administrative and that the affairs in Canada had been fully wound up subject to completion of those tasks.

The court approved the reports, activities, fees, and proposed releases, finding the releases appropriately limited and consistent with analogous third-party release principles developed under federal insolvency jurisprudence.

The court accepted that CCAA release principles could be applied by analogy in WURA proceedings.

The motion was granted and a discharge and termination order issued with immediate effect.

This endorsement addresses a motion by Sandvine Corporation and related entities under the Companies’ Creditors Arrangement Act for approval of a Stalking Horse Transaction Agreement, a vesting order, and related relief.

The court denied an adjournment request by Telecom Egypt, found that all statutory and procedural requirements were met, and approved the transaction, assignments, limited releases, sealing of confidential materials, enhanced monitor powers, and an extension of the stay of proceedings.

Sandvine Corporation and its affiliates sought an initial order under the Companies’ Creditors Arrangement Act (CCAA), including an urgent 10-day stay of proceedings, extension of the stay to non-applicant entities (Procera II LP and other foreign subsidiaries), appointment of KSV Restructuring Inc. as monitor, and approval of interim financing (DIP) charge, administration charge, and directors' charge.

The court found the applicants insolvent, established jurisdiction in Ontario, and determined that the requested relief was necessary for the continued operation and restructuring of the integrated global business.

The Initial Order was granted, and a comeback hearing was scheduled.

The plaintiff sought to certify a class proceeding against the defendant bank, alleging breach of contract and unjust enrichment due to the bank's practice of charging duplicative non-sufficient funds (NSF) fees on re-presented pre-authorized debits.

The motion for certification was brought with the defendant's consent.

The court applied the five-part test under section 5(1) of the Class Proceedings Act, 1992, finding that the pleadings disclosed a cause of action, there was an identifiable class, common issues were raised, a class proceeding was the preferable procedure, and the representative plaintiff was adequate.

The court granted the certification order.

The Superior Court of Justice approved identical third-party funding agreements in four related class actions against major Canadian banks.

The actions allege that the banks charged duplicative non-sufficient funds fees on single dishonoured pre-authorized debits.

The court, applying Section 33.1 of the Class Proceedings Act, 1992, found the agreements to be fair and reasonable, noting the staged success fee was comparable to or more advantageous than the Class Proceedings Fund levy.

The court confirmed the agreements preserved plaintiff control over litigation, ensured the funder's financial capacity for adverse costs, and included appropriate confidentiality and deemed undertaking provisions.

The defendants took no position on the motions.

PricewaterhouseCoopers (PwC), as the court-appointed Liquidator for the winding-up of Silicon Valley Bank's Canadian business, brought a motion seeking approval for a Claims Procedure, the appointment of Employee Representative Counsel, and authorization for interim distributions to the United States Federal Deposit Insurance Corporation (FDIC).

The motion was unopposed and supported by the FDIC and proposed Employee Representative Counsel.

The court approved all requested relief, finding the proposed procedures fair, efficient, and appropriate for the Winding-up and Restructuring Act (WURA) proceedings.

The Liquidator of Silicon Valley Bank Canada sought court approval of an asset purchase agreement with National Bank of Canada, as well as a sealing order over the unredacted agreement and a confidential comparative analysis.

The court applied the Soundair principles and found that the Liquidator made substantial efforts to canvass the market, the transaction was in the best interests of stakeholders, and the process was fair and efficacious.

The court also granted the sealing order, applying the Sherman Estate test, to protect the maximization of recovery in the event the transaction did not close.

The plaintiff, Dr. Darryl Gebien, sought court approval for a Third-Party Funding Agreement with Omni Bridgeway Ltd. for a proposed class action against numerous pharmaceutical companies regarding the opioid crisis.

Several defendants objected to specific provisions of the agreement, including those related to amendments, assignments, attornment, costs enforcement, termination procedures, accrued costs, and confidentiality.

The court found that while the agreement generally met the requirements for approval, several of the defendants' objections, particularly concerning comprehensive attornment by Omni Bridgeway Ltd. and the broad confidentiality provisions, were "genuinely meaningful" and required resolution.

The motion for approval was adjourned to allow the parties to address these issues, with the court emphasizing that it is not its role to draft the agreement.

PricewaterhouseCoopers Inc. (PwC), as the court-appointed Liquidator of Silicon Valley Bank (SVB) Canada, sought court approval for the sale of the Clearco Credit Facilities, a sealing order for confidential transaction documents, and approval of its activities, fees, and disbursements.

The court applied the Soundair Principles to evaluate the sale, finding that the Liquidator made sufficient efforts to obtain the best price and that the process was fair and efficacious.

The Clearco Transaction, which provided the highest value for the assets, was approved.

A sealing order was granted for the confidential appendices due to their commercial sensitivity and potential negative impact on the ongoing sales process and future recoveries, with an unusual extended duration.

The Liquidator's activities, fees, and disbursements were also approved as appropriate given the complexity of the matter.

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 moving parties, representing U.S. class action claimants, sought leave to appeal a supervising judge's order in a CCAA proceeding.

The supervising judge had dismissed their motion seeking to be treated as unaffected creditors or to have an expedited adjudication of their claims prior to a creditor vote.

The Court of Appeal denied leave, finding that the proposed appeal was not prima facie meritorious and did not raise issues of significance to the insolvency practice.

The Court emphasized the high level of deference owed to a CCAA supervising judge's discretionary decisions balancing stakeholder interests.

The parties agreed upon a timetable leading up to a certification motion in a class proceeding.

The court endorsed the agreed-upon schedule, setting dates for the exchange of motion records, cross-examinations, and factums, with the motion returnable for three days in May and June 2022.

The appellant sought to bring a Canadian class action against the respondent BP p.l.c. for securities misrepresentations.

His 2019 amended statement of claim, which introduced a claim for fraudulent misrepresentation, was struck out by the motion judge as statute-barred under the Limitations Act, 2002.

This appeal addressed four key issues: the elements of a "claim" for fraudulent misrepresentation under the Limitations Act, the appropriateness of the motion judge's factual findings regarding discoverability based on U.S. litigation, whether the fraudulent misrepresentation claim was a new claim or an alternative theory, and the propriety of deciding a limitations issue on a Rule 21.01(1)(a) motion.

The Court of Appeal dismissed the appeal, finding that while the motion judge erred in his discoverability analysis and reliance on U.S. pleadings, the fraudulent misrepresentation claim was indeed a new, statute-barred claim, and the limitations issue was appropriately decided on a Rule 21.01(1)(a) motion due to undisputed facts.

The plaintiffs brought a motion for approval of a $21.5 million settlement agreement in a class action regarding transvaginal mesh medical devices manufactured by the defendants.

The court found the settlement to be fair, reasonable, and in the best interests of the class, noting it was the product of arm's length negotiations and offered good monetary compensation.

The court also approved the distribution plan, class counsel's fee request of $5.375 million plus disbursements, and honoraria of $10,000 for each representative plaintiff.

The defendant brought a motion to strike the plaintiff's claim for fraudulent misrepresentation as statute barred under the Limitations Act, 2002, and to dismiss the proposed class action.

The plaintiff had commenced a proposed class action for secondary market misrepresentations following the Deepwater Horizon oil spill.

The court found that the plaintiff discovered his claim by 2010, but did not plead fraudulent misrepresentation until 2019.

The court held it was plain and obvious the claim was statute barred and struck it.

As the plaintiff was disqualified from being a representative plaintiff for the remaining truncated statutory claims, the entire action was dismissed.

This is a costs endorsement on appeal from a Superior Court decision.

The appellant, Bondfield Construction Company Limited, appealed from orders of Justice E.M. Morgan dated March 28, 2018 and May 29, 2018.

The respondents, The Globe and Mail Inc. and associated journalists, had brought a motion.

The Court of Appeal addressed whether CCAA proceedings against Bondfield precluded the court from addressing cost issues relating to the appeal.

The court found no reason to depart from the presumption in section 137.1(8) regarding costs on the motion, resulting in no order as to costs.

However, regarding costs on the appeal, the court awarded costs to Bondfield in the amount of $8,000, inclusive of disbursements and relevant taxes, noting that the jurisprudential landscape had shifted significantly between the motion and the appeal.

Bondfield Construction Company Limited appealed the dismissal of its defamation action against The Globe and Mail Inc. under section 137.1 of the Courts of Justice Act (anti-SLAPP provision).

The motion judge had dismissed the action, finding that Bondfield failed to meet the requirement to show that the defendants had "no valid defence whatsoever." The Court of Appeal allowed the appeal, holding that the motion judge had misinterpreted the statutory threshold.

The correct test requires the plaintiff to show only that a reasonable trier could conclude that the defendant did not have a valid defence, not that the defendant has no defence whatsoever.

The court found that Bondfield met this lower threshold regarding the defences of fair comment and responsible communication.

On the public interest balancing analysis, the court found that the case had none of the hallmarks of a classic SLAPP suit and should proceed to trial on its merits.

Following the dismissal of the plaintiff's $125 million defamation action under the anti-SLAPP provisions of the Courts of Justice Act, the successful defendants sought full indemnity costs of over $650,000 pursuant to s. 137.1(7).

The plaintiff argued for no costs or modest partial indemnity costs, noting the claim had substantial merit but was dismissed because the defendants had a potentially valid defence.

Balancing the statutory presumption of full indemnity costs against the close nature of the ruling, the court awarded costs to the defendants on a substantial indemnity scale, fixed at $500,000.

The appellant sought to bring a class action against BP for secondary market misrepresentation under the Securities Act.

The motion judge found that eleven of fourteen alleged misrepresentations were statute-barred under the three-year limitation period in section 138.14 of the Act.

The appellant argued that section 138.3(6), which permits the court to treat multiple misrepresentations as a single misrepresentation, should extend the limitation period.

The Court of Appeal dismissed the appeal, holding that section 138.3(6) does not modify the event-triggered limitation period and was enacted to limit, not expand, liability.

The defendant brought a motion under Rule 21.01(1)(a) for a declaration that the plaintiff's proposed class action claims for secondary market misrepresentations under Part XXIII.1 of the Securities Act were statute-barred.

The court found that 11 of the 14 alleged misrepresentations occurred more than three years before the action was commenced and were therefore statute-barred under s. 138.14.

The court rejected the plaintiff's argument that s. 138.3(6) could save the claims by treating them as a single continuous misrepresentation.

However, the court found that the remaining three misrepresentation claims were not necessarily statute-barred, as the plaintiff had served a notice of motion for leave before the limitation period expired, allowing for potential reliance on the nunc pro tunc doctrine.