Kenneth Theodore Rosenberg

Following a judgment allowing the plaintiffs' action, the parties made written submissions on costs and prejudgment interest.

The parties settled the issue of costs for $6,680,632.45.

On the issue of prejudgment interest, the court determined the start dates for the calculation of interest for each plaintiff.

The court declined to exercise its discretion to average the interest rate or to award compound interest, finding no unusual or special circumstances to justify departing from the presumptive statutory scheme.

The court also declined to reduce the period for calculating interest based on the plaintiffs' conduct.

The appellant and respondent, former common law spouses, co-owned a cottage property.

The respondent sought an order for the sale of the property under the Partition Act.

The application judge ordered the sale, including a term requiring any purchaser to grant a right-of-way to neighbouring property owners, reflecting the original purchase agreement.

The appellant appealed the inclusion of this term and the award of full indemnity costs.

The Divisional Court dismissed the appeal regarding the sale term, finding no error in the application judge's conclusion that omitting the term would create uncertainty and reduce the sale price.

However, the court allowed the appeal on costs, varying the award from full to substantial indemnity because the application judge erroneously relied on an undertaking that did not apply to the proceeding.

The plaintiffs, shareholders and creditors in Mobilicity, a wireless telecommunications company, sued the federal government for negligence and negligent misrepresentation arising from the 2008 AWS spectrum auction.

The plaintiffs alleged that Industry Canada represented that spectrum licences acquired at auction would be transferable to incumbent carriers after a five-year moratorium, and that they relied on this representation to invest approximately $250 million in equity and $95 million in debt to capitalize Mobilicity and bid for spectrum licences.

The plaintiffs further alleged that in 2013, the government unilaterally changed the transfer framework to prohibit transfers to incumbents, and in 2014-2015 interfered with Mobilicity's sales process through threats, media manipulation, and regulatory delay.

The court found the government liable for negligence and negligent misrepresentation, holding that it owed a duty of care to the plaintiffs based on specific representations made to induce investment, and that it breached that duty through the implementation of the 2013 Transfer Framework and subsequent interference in the sales process.

The court awarded damages based on a "but for" analysis, calculating what the plaintiffs would have earned in alternative investments had they not relied on the government's representations.

The decision addresses motions regarding the appointment of representative counsel for current and former employees and retirees of Hudson’s Bay Company ULC and related entities in ongoing Companies’ Creditors Arrangement Act (CCAA) proceedings.

The Court declined to appoint any of the nominated law firms as representative counsel at this stage, instead appointing the Honourable Herman Wilton-Siegel as an independent third party to evaluate proposals and make a recommendation.

The Court also approved amendments to the Sale and Investment Solicitation Process (SISP) to remove the company’s art and artifact collection from the SISP and to appoint Heffel Gallery Limited to conduct a separate auction for the collection, subject to further court approval of procedures.

The reasons review the legal framework for appointing representative counsel and the importance of balancing stakeholder interests in complex insolvency proceedings.

This endorsement grants a brief adjournment in the Companies’ Creditors Arrangement Act (CCAA) proceedings involving Hudson’s Bay Company ULC and related entities, following ongoing discussions between the applicants and stakeholders.

The court extends the stay of proceedings, increases the Directors’ Charge, amends the relative priorities of charges, and approves the engagement of Reflect Advisors, LLC as financial advisor.

The court finds the requested relief appropriate, unopposed, and supported by the Monitor, and orders the requested amendments to the Initial Order.

The appellants, representing a class of Ontario Shoppers Drug Mart franchisees, appealed a summary judgment decision regarding their entitlement to Professional Allowances paid by generic drug manufacturers.

The Court of Appeal upheld the motion judge's findings that Shoppers breached the 2002 franchise agreement by retaining the allowances, which constituted 'revenue', but did not breach the 2010 agreement, which explicitly allowed Shoppers to retain such concessions.

The Court also upheld the application of a rolling limitation period and the refusal to award aggregate damages due to the idiosyncratic nature of the profit-sharing model.

However, the Court allowed the appeal regarding the quantification of damages, finding that Shoppers breached its duty of good faith by arbitrarily allocating $129 million as out-of-province rebates to avoid sharing the funds with Ontario franchisees, bringing the total Professional Allowances received to $1.084 billion.

Antibe Therapeutics Inc. (Antibe) commenced CCAA proceedings seeking a stay extension, while Nuance Pharma Ltd. (Nuance), Antibe's largest creditor, sought termination of the CCAA and appointment of a receiver, along with a declaration of constructive trust over funds.

The court found Antibe's CCAA application to be a defensive tactic with no realistic restructuring plan.

Given the unique circumstances, including Antibe's core business (a drug) being far from commercialization and the arbitral finding of Antibe's deliberate misrepresentation, the court terminated the CCAA proceeding and appointed a receiver over Antibe's property.

The court declined to rule on Nuance's trust claim at this stage.

In this certified class action, the plaintiff franchisees (Associates) brought a motion for summary judgment against the franchisor, Shoppers Drug Mart, alleging breaches of contract, breaches of the duty of good faith, and unjust enrichment regarding various fees and the retention of Professional Allowances paid by generic drug manufacturers.

Shoppers brought a cross-motion for summary judgment to dismiss the claims, arguing they lacked merit and were statute-barred.

The court dismissed the claims regarding the Optimum Fee and Shoppers Charges, finding no breach of contract or bad faith.

The court also dismissed the unjust enrichment claim for Professional Allowances but found that Shoppers breached the 2002 Associates Agreement (but not the 2010 Agreement) by failing to remit Professional Allowances to the Associates.

The court held that aggregate damages were not viable and directed that the surviving breach of contract and distribution centre claims proceed to individual issues trials, subject to limitation periods.

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.

In a certified class action by franchisees against Shoppers Drug Mart regarding the retention of professional allowances, the plaintiffs brought a discovery motion seeking to compel answers to refused questions, to examine three non-party former employees, and to obtain documentary production from two non-party generic drug manufacturers.

The court dismissed the motion, finding that the defendants had already provided sufficient information to allow the plaintiffs to argue their case, and that further discovery would be irrelevant and disproportionate.

The court ordered a limited search for documents related to 'over and above' amounts but otherwise denied the relief sought.

Two consortiums of proposed Class Counsel brought competing motions for carriage of a proposed competition law class action against several German automobile manufacturers.

The underlying actions alleged that the defendants engaged in an anti-competitive conspiracy relating to automotive design, development, manufacturing, and marketing.

The court evaluated the competing litigation plans and case theories, noting that both were viable but that the Quenneville action presented a superior, more creative, and more developable case theory that appropriately included claims for deceptive marketing under the Competition Act.

The court granted carriage to the Quenneville action and stayed the competing Stibbe action.

The Applicants, under CCAA protection, brought a motion seeking an order to authorize and approve the Revised Fourth DIP Amendment.

The motion was opposed by the USW and GIP.

The court granted the motion, finding that the DIP solicitation process was competitive, robust, and fair, and that the Revised Fourth DIP Amendment was the best available proposal.

The amendment addressed previous concerns by providing a maturity date past the winter build period, a sufficient commitment amount, and minimal conditions on covenants.

The moving parties sought leave to appeal a CCAA judge's decision dismissing their motion to reinstate other post-employment benefits (OPEBs) to retirees of U.S. Steel Canada Inc. The CCAA judge had dismissed the motion but ordered a one-time payment of $2.7 million towards benefits.

The Court of Appeal applied the stringent test for leave to appeal in CCAA proceedings and found no prima facie merit to the appeal.

The court emphasized the broad discretion of the CCAA judge and the fact-specific nature of the decision, which did not raise issues of significance to insolvency practice.

Leave to appeal was denied with costs fixed at $2,500.

The applicants, a group of Essar Steel Algoma entities under CCAA protection, moved for court approval of a Term Sheet with Cliffs Mining Company for the supply of iron ore pellets.

The motion was opposed by USW Locals and Algoma retirees, who sought disclosure of commercial terms and objected to provisions preventing disclaimer of the agreement and allowing Cliffs to terminate if an Essar Global entity acquired Algoma.

The court approved the Term Sheet, finding it beneficial for Algoma's restructuring by ensuring a stable and technically suitable iron ore supply.

The court dismissed the objections, emphasizing the urgency of approval, the confidentiality of pricing, and that the Term Sheet's provisions did not unlawfully fetter judicial discretion under CCAA section 32 or unduly prejudice stakeholders.

The applicant, U.S. Steel Canada Inc. (USSC), sought approval for a second key employee retention plan (KERP 2), while a group of unions and representative counsel (Moving Parties) sought an order to terminate the suspension of other post-employment benefits (OPEBs).

The court granted the KERP 2 motion, finding it fair and reasonable for business stability and restructuring efforts.

The OPEB motion was denied, as the court found no fundamental improvement in USSC's profitability to warrant OPEB reinstatement, and that USSC's proposed one-time contribution of $2.7 million to a transition fund for retired employees appropriately balanced competing interests during the ongoing sales and investor solicitation process (SISP).