Katherine McEachern

The applicant sought recognition in Ontario of U.S. Chapter 11 proceedings involving a large casino-entertainment corporate group, including an Ontario subsidiary managing the Windsor casino.

The court held the applicant was a proper foreign representative and that the U.S. proceeding qualified as a foreign main proceeding because the debtors’ centre of main interests was in the United States.

The court granted the initial recognition order and supplemental relief to preserve the status quo and protect Canadian assets while the U.S. venue dispute remained unresolved.

The supplemental order was modified to exclude a stay of actions against directors and officers.

In a CCAA proceeding, the applicants challenged the reasonableness of legal fees charged by counsel to their secured lender after the applicants were required to pay those fees as part of the secured debt under an initial order.

The issue on this motion was whether the dispute over the reasonableness of the fees should be determined by an assessment officer through a solicitor-client assessment or by a judge of the Commercial List.

The court held that because the initial order made the fees part of the costs of the CCAA proceeding, jurisdiction properly lay with the Commercial List court absent exceptional circumstances.

The court emphasized the Commercial List’s expertise in supervising professional fees in insolvency matters and concerns about proportionality and efficiency if the matter proceeded through a lengthy assessment process.

The court ordered that the issue of the reasonableness of the fees be determined by a judge of the Commercial List following a case conference process to narrow the issues.

The appellants sought to set aside costs orders made by the Court of Appeal and the Superior Court of Justice, arguing that the respondent's lawyers' fees were being paid by the Lawyers' Professional Indemnity Corporation (LawPro).

The Court of Appeal dismissed the request, finding that LawPro's agreement to backstop the fees did not remove the respondent's liability to pay its lawyers, and the courts were entitled to order costs against the losing parties.

TCR Holding Corporation amalgamated with several subsidiaries, inadvertently including one that had guaranteed a promissory note to the appellants.

Upon discovering the mistake, TCR applied to set aside the amalgamation.

The application judge granted the order, finding the inclusion was an inadvertent mistake and the appellants would receive a windfall if the amalgamation stood.

The appellants appealed.

The Court of Appeal dismissed the appeal, upholding the application judge's exercise of equitable jurisdiction to relieve against mistake and set aside the amalgamation.

The plaintiff brought an action in Ontario against Ontario and non-Ontario defendants, alleging breach of fiduciary duty and misappropriation of mining opportunities in Peru.

The non-Ontario defendants brought a motion to stay or dismiss the action on jurisdictional and forum non conveniens grounds, and challenged the validity of service ex juris.

The motion judge dismissed the motion, finding a real and substantial connection to Ontario, that Ontario was the appropriate forum, and that service ex juris was valid.

The Court of Appeal upheld the decision, clarifying that the real and substantial connection test is the exclusive framework for determining assumed jurisdiction over out-of-province defendants, subsuming remedy-specific tests.

The appellant, holding a perfected general security agreement over the assets of a company in receivership, appealed a motion judge's decision granting priority over three injection molding machines to the unpaid supplier.

The supplier had delivered the machines but retained title pending payment and electrical safety certification, which had not yet been obtained.

The Court of Appeal dismissed the appeal, upholding the motion judge's finding that because the conditions of sale were not met, the debtor had not acquired any rights in the machines to which the appellant's security interest could attach under the Personal Property Security Act.

The appellant appealed a trial judgment ordering him to pay $3.8 million for breach of a real estate joint venture agreement.

The appellant argued the respondent was disentitled to the funds for trading in real estate without a license and sought disgorgement of a commission.

The respondent cross-appealed for punitive damages and a higher rate of prejudgment interest.

The Court of Appeal dismissed both the appeal and cross-appeal, finding the respondent was exempt from licensing requirements as it was dealing with its own interest, the commission was properly disclosed, and the appellant's conduct did not meet the exceptional threshold required for punitive damages.

The appellants appealed a summary judgment dismissing their counterclaim against a bank manager personally.

The Court of Appeal upheld the decision, finding no evidence that the manager acted outside the course and scope of his employment with the bank, a position confirmed by the bank itself.

The appeal was dismissed with costs.

The appellant appealed a Master's order denying leave to add a witness as a defendant and denying an amendment to the statement of claim.

The appellant had previously settled litigation with the respondents but later sought to set aside the settlement, alleging that the respondents had coerced witnesses into swearing false affidavits.

The appellant also sought to add a witness as a defendant for alleged conspiracy and perjury.

The Divisional Court dismissed the appeal, holding that the witness was protected by absolute witness privilege.

The court also upheld the Master's decision denying the amendment to set aside the settlement, noting that the appellant had not relied on the allegedly false evidence when deciding to settle and that litigants must take responsibility for assessing prospective untrue evidence.

The tenant held a commercial lease containing an option to purchase the shopping centre.

The tenant subsequently subleased the premises for the entirety of the term.

The landlord sought a declaration that the option to purchase was no longer exercisable by the tenant, arguing the sublease constituted an assignment in law that carried the option with it.

The application judge granted the declaration.

On appeal, the Court of Appeal reversed, holding that while a sublease for the entire term may be an assignment in law, an option to purchase is severable and does not automatically pass with the assignment if the parties intended otherwise.

The court found the parties clearly intended to preserve the option with the tenant.

The appellants appealed the assessment of a court-appointed receiver's fees and disbursements, including those of its solicitors.

They argued the motion judge exhibited bias, erred in precluding cross-examination of the receiver, and erred in finding the fees fair and reasonable.

The Court of Appeal found no reasonable apprehension of bias.

While the court noted that a receiver's accounts should ideally be verified by affidavit to allow for cross-examination, it held that the questioning permitted by the motion judge was an adequate substitute in this case.

The court upheld the receiver's fees but allowed the appeal in part, remitting the solicitors' accounts for reassessment because the motion judge failed to give them separate consideration.