Kimmel

In a receivership proceeding, the Receiver brought a motion for declaratory relief regarding amounts owed under a loan and mortgage by the respondents.

The respondents brought a cross-motion arguing the Receiver's claim was barred by the two-year limitation period under the British Columbia Limitation Act.

The court found that while the respondents had not acknowledged liability to extend the limitation period, a prior petition commenced by the respondents in British Columbia within the limitation period preserved the claim.

The court held the Receiver's motion was not statute-barred and could proceed to be determined on its merits.

The Mizrahi Defendants brought a motion to dismiss or stay the plaintiff's action based on a standstill provision in a Priority, Subordination and Standstill Agreement.

The plaintiff, a subordinated lender for a construction project, sued for $200 million in damages and other relief.

The court found that the plaintiff's claims fell squarely within the standstill provision, which prohibited enforcement actions until senior lenders were repaid.

The court rejected the plaintiff's argument that the enforceability of the agreement was in play, as it was not pleaded.

The action was stayed for 30 days to allow the plaintiff to draft a new statement of claim for claims not covered by the standstill provision, after which the action would be dismissed.

The Proposal Trustee brought a motion to compel the Proposal Sponsor to fund the Trustee's continuing work to resolve outstanding proofs of claim, specifically the Athanasoulis Claim, via a two-phase arbitration.

The Sponsor objected to funding phase 2 of the arbitration, arguing it was an improper delegation of the Trustee's duties under s. 135 of the BIA.

The court agreed with the Sponsor, finding that while phase 1 (fact-finding) was acceptable, phase 2 (final adjudication of damages) improperly delegated the Trustee's statutory responsibility to determine and value the claim.

The Sponsor was not ordered to fund phase 2 of the arbitration but remains obligated to fund the Trustee's reasonable expenses to determine the claim through an alternative process.

The Receiver of a deceased personal injury lawyer's professional corporation brought a motion seeking to impose a 'Sliding Fee Structure' on new counsel who took over the deceased lawyer's client files.

The Receiver argued this was necessary to efficiently realize on the estate's interest in the files.

The court dismissed the request to impose the fee structure, finding it would inappropriately override the clients' statutory rights under the Solicitors Act to receive and assess a bill.

However, the court ordered new counsel to provide the Receiver with 'Determinable Information' about the files to assist the Receiver in rendering accounts, subject to a privilege protocol.

The plaintiff successfully defended summary judgment motions brought by multiple defendants across several actions.

While costs were resolved with most defendants, the plaintiff sought costs against the defendants Helden and 131 Ontario for their involvement in the dismissed motions in the s. 38 BIA Action and the Copyright Action.

The court declined to award costs for the Copyright Action due to the defendants' limited involvement.

For the s. 38 BIA Action, the court found the defendants were passive participants who 'tagged along' with the primary moving parties.

The court apportioned 25% of the plaintiff's costs for that motion to these defendants, fixing the amount at $9,500 on a partial indemnity scale.

The plaintiff commenced four separate actions arising out of the bankruptcy and subsequent death of a lawyer.

The defendants brought motions for summary judgment to dismiss the actions, primarily arguing they were barred by the applicable limitation periods.

The court granted summary judgment dismissing the Bankruptcy Trustee Action and the Client Assigned Claims Action (with one minor exception), finding they were commenced after the expiry of the two-year limitation period and there was no genuine issue for trial regarding discoverability.

However, the court denied summary judgment for the s. 38 BIA Action and the Copyright Action, finding genuine issues requiring a trial regarding when the plaintiff knew or ought to have known of the injuries and whether the copyrighted materials were used during the relevant period.

Following a decision on commercial lease applications, two telecommunications companies (the Rooftop Tenants) sought their costs as deemed intervenors.

The Rooftop Tenants had successfully argued for continued access to their rooftop equipment through the tenant's premises.

The court found that the Rooftop Tenants were entitled to partial indemnity costs because their property interests were directly impacted and they were successful on the merits.

The court fixed costs at $20,000 for Rogers and $15,000 for Freedom Mobile, apportioning liability 75% to the tenant and 25% to the landlord.

Voyager Digital Ltd. applied under Part IV of the CCAA for an Initial Recognition Order of its Chapter 11 proceedings in the United States.

The central issue was whether the US proceeding should be recognized as a 'foreign main proceeding' or a 'foreign non-main proceeding', which depended on determining the company's Centre of Main Interests (COMI).

Despite being incorporated in British Columbia and listed on the TSX, the court found that the company's COMI was in the US, where its operations, management, and principal assets were located.

The court recognized the US proceeding as a foreign main proceeding and granted the requested stay.

The applicants, parents of the deceased, brought an application against the deceased's husband seeking his removal as estate trustee and alleging he misappropriated funds raised for the deceased's cancer treatment.

The respondent moved to strike the application under Rule 21.01(1)(b) for lack of standing.

The court struck the estate-related claims because the applicants were not beneficiaries and had no financial interest in the estate.

However, the court declined to strike the trust-related claims, finding it was not plain and obvious that the applicants lacked standing to seek the return or charitable donation of the raised funds, as they had personally contributed to them.

A related motion for further financial production was dismissed.

The Receiver brought a motion for court approval of multiple settlement agreements resolving litigation arising from the receivership of Distinct Infrastructure Group Inc., and for a sealing order over the confidential settlement terms.

The court approved the settlements, finding them to be a fair and reasonable commercial resolution.

The court also granted the sealing order, applying the Sherman Estate test and finding that the public interest in promoting settlements and preserving commercially sensitive information outweighed the negative effects on the open court principle.

The plaintiffs brought a motion to determine the appropriate sanction for the Developer Defendants' continuing contempt of a Mareva and Disclosure Order, following a Court of Appeal decision remitting the matter for re-sentencing.

The court found that the defendants had still not purged their contempt, having failed to properly account for the plaintiffs' $9 million investment.

The court sentenced the individual defendants to 30 days of intermittent incarceration, struck the statement of defence, and deemed the defendants noted in default, with leave to apply to file a defence only if they fully purge their contempt.

The applicant sought a final order approving a proposed plan of arrangement under section 192 of the Canada Business Corporations Act to facilitate a going private transaction.

The arrangement was overwhelmingly approved by the shareholders at a special meeting.

The court found that all statutory and court-ordered requirements were met, the arrangement was put forward in good faith, and it was fair and reasonable.

The final approval order was granted.

The moving party sought an order requiring the non-party, who was the partner of the unsuccessful applicant in a will challenge, to pay the costs of the application.

The moving party alleged the non-party was a maintainer of the lawsuit and his involvement constituted an abuse of process.

The court dismissed the motion, finding the non-party had a genuine interest in supporting his partner, did not intermeddle improperly, and his conduct did not amount to an abuse of process.

The court also upheld the assertion of litigation privilege over communications between the non-party and the applicant's lawyers.

The applicant brought an application to interpret two promissory notes representing a $900,000 loan from the respondent for a real estate development project.

The parties disputed whether interest should be compounded, whether an interest escalation clause was triggered, and whether the second promissory note contained a mistake requiring rectification.

The court held that there was no agreement for compound interest and that the interest escalation clause was not triggered because the project was not fully constructed.

The court also rectified the second promissory note to remove the interest escalation clause while maintaining the 20% base interest rate.

The applicant was ordered to pay the remaining $99,778 owed under the notes, and was awarded $25,000 in partial indemnity costs due to divided but primarily successful outcomes.

The special committee of FAX Capital Corp. brought a motion for an interim order under section 192 of the Canada Business Corporations Act to approve the procedure for calling and holding a special meeting of shareholders.

The meeting was to consider a proposed plan of arrangement intended to take the company private.

The court found that the applicant was acting in good faith and met the statutory requirements.

The interim order was granted, establishing the mechanics for notice, voting, and dissent rights.

The plaintiffs brought two motions in a shareholder dispute.

The first motion sought to dismiss the action against certain bankrupt corporate defendants and their counterclaim, which was granted on consent with prejudice and without costs.

The second motion sought leave to amend the statement of claim against the remaining defendants to add an oppression remedy claim and further particulars.

The remaining defendants opposed the amendments, arguing the oppression claim was untenable and that some claims were derivative in nature.

The court granted leave to amend, finding that the proposed amendments were not doomed to fail and that an oppression claim could co-exist with breach of contract and derivative claims.

The plaintiffs were awarded partial indemnity costs of $10,000.

Counsel for the respondent in an estate dispute moved for a charging order and mortgage over the disputed property to secure unpaid and future legal fees.

The motion was brought mid-way through the proceeding, relying on s. 34 of the Solicitors Act and the court's inherent jurisdiction.

The court dismissed the motion, finding it premature because the property had not yet been 'recovered or preserved' through the solicitor's instrumentality, and there was insufficient evidence that the client was unable or unwilling to pay.

The court also declined to amend an existing preservation order to allow the registration of a mortgage, noting potential prejudice to the applicant's set-off claims.

Costs of $15,000 were awarded to the applicant, deferred until the final outcome of the application.

The respondent, Colin Jones, moved to consolidate an estate application commenced in Toronto with a related application commenced in Guelph, and to transfer the Toronto application to Guelph.

The applicant, Brian Jones, opposed the transfer, arguing the matter should remain in Toronto to benefit from the Toronto Estates List's mandatory mediation and case management.

The court granted the motion to consolidate and transfer the proceedings to Guelph, finding that Guelph had a much stronger connection to the parties and the estate assets.

However, the court imposed a condition requiring the parties to attend mandatory mediation.

The applicants invested funds into a business enterprise intended to operate an entertainment complex out of a leased heritage building.

The corporate structure was never formalized, and the funds were advanced directly to the tenant corporation.

The principal of the tenant subsequently locked the applicants out of the premises and refused to provide corporate or financial records.

The applicants brought an oppression remedy application.

The court found that although the applicants were not direct shareholders of the tenant, they were proper complainants as beneficial owners of the business enterprise.

The court held that the respondents' conduct defeated the applicants' reasonable expectations and ordered disclosure, an accounting, and tracing of funds, while adjourning requests for operational control and a buyout to a trial of issues.

In the context of complex estate litigation, the applicant sought to withdraw two affidavits previously filed in support of a motion for the appointment of an Estate Trustee During Litigation and for documentary production.

The applicant argued the affidavits were no longer necessary due to a subsequent consent order that streamlined the proceedings and provided for documentary discovery.

The respondent opposed the withdrawal, arguing it was a tactic to shield the affiants from cross-examination.

The court held that leave is required to withdraw an affidavit filed in support of a motion.

Applying the Gill factors, the court granted leave, finding that the affidavits had not yet been used by the court, the respondents would not be prejudiced, and the withdrawal was a legitimate response to the evolving litigation landscape rather than an improper tactic to avoid cross-examination.