Kris Borg-Olivier

The court issued a costs endorsement following the dismissal of the main action.

West Face Capital Inc. was awarded substantial indemnity costs of $1,239,965 due to the plaintiff's unfounded allegations of soliciting and misusing confidential information, which impugned West Face's integrity and honesty.

Brandon Moyse was awarded partial indemnity costs of $339,500.18, despite also facing integrity-damaging allegations, because he had destroyed evidence at the outset of the litigation, albeit without intent to destroy relevant evidence.

The court found the plaintiff's allegations against West Face and Moyse to be serious and unsubstantiated, justifying higher costs for West Face, while Moyse's conduct warranted a reduction to partial indemnity.

The plaintiff, Catalyst Capital Group Inc., brought an action against Brandon Moyse and West Face Capital Inc. for alleged misuse of confidential information regarding WIND Mobile Inc. and spoliation of documents.

Catalyst claimed Moyse, a former analyst, provided confidential information to West Face, which West Face then used to acquire an interest in WIND.

The court assessed the evidence, including witness credibility, and found no direct evidence of information transfer.

The court also examined the elements of breach of confidence and spoliation.

The action was dismissed in its entirety, with the defendants entitled to costs.

This costs endorsement follows a judgment declaring Nuspor Investments Partnership as the owner of Toronto Maple Leafs season tickets held by the Estate of Chaim Neuberger.

Nuspor sought substantial indemnity costs, citing settlement offers.

The court awarded partial indemnity costs, finding that the Estate was entitled to have the ownership issue determined and the Estate Trustee acted reasonably in not accepting the offers.

The court further ruled that costs should be paid by the Estate, not personally by one of the Estate Trustees, as the underlying issue was attributable to the testator's lack of clarity regarding asset ownership.

The applicant partnership sought a declaration that two Toronto Maple Leafs season tickets, registered in the name of a deceased partner, were held in trust for the partnership.

The court found that the tickets were originally offered to the partners and placed in the deceased's name because they could not be registered to the partnership.

The partnership paid for the tickets and claimed them as a business expense.

The court concluded that the evidence established the essential elements of both a bare trust and a purchase money resulting trust, and ordered the estate to transfer the tickets to the partnership.

The plaintiff sought an adjournment of a motion brought by non-parties to vary an interim Mareva injunction.

The adjournment was requested to allow the plaintiff to compel answers to undertakings and refusals from an affiant whose affidavit supported the motion to vary.

The court granted the adjournment, applying established principles for judicial discretion in granting adjournments, emphasizing the overall objective of a just determination on the merits and the need for the plaintiff to adequately prepare its opposition.

The applicants (Representative Counsel for non-unionized employees and retirees, USW Locals 1005 and 8782, and the City of Hamilton) sought "for counsel's eyes only" disclosure of a confidential settlement agreement between United States Steel Corporation (USS), U.S. Steel Canada Inc. (USSC), and the Government of Canada.

The motion was brought in the context of CCAA proceedings, with applicants arguing procedural fairness and a minor exemption from settlement privilege.

The court dismissed the motion, finding that the applicants failed to demonstrate how they would be prejudiced without access to the specific details of the undertakings in the agreement, or how the information was material to their claims or negotiations.

The court emphasized that there is no exemption from settlement privilege for the purpose of reviewing a document to determine if a public interest exists that would displace the privilege.

In the CCAA proceedings of U.S. Steel Canada Inc., its parent company, United States Steel Corporation, sought approval of several proofs of claim totaling over $2 billion.

Various stakeholders objected, arguing that the intercompany loans should be re-characterized as 'equity claims' under the CCAA and that the security granted for certain advances was void as a fraudulent preference or unenforceable for lack of consideration.

The court rejected the objections, finding that the parent company had a reasonable expectation of repayment when the advances were made, and that the security was validly granted for fresh consideration and did not constitute a fraudulent preference.

The claims were confirmed as debt claims.

Following a successful motion by non-parties to set aside an ex parte Anton Piller order, the court addressed the issue of costs.

The successful non-parties sought substantial indemnity costs, arguing that the order should never have been obtained and that their legal expenses were reasonable given the urgency and intrusiveness of the order.

The applicants opposed substantial indemnity costs and argued that the matter had been overworked and that no misconduct justified enhanced costs.

The court held that although the Anton Piller order had been set aside, there was no intentional or improper conduct in obtaining the ex parte order that would justify substantial indemnity costs.

Costs were therefore awarded on a partial indemnity basis.

Non‑party individuals brought a motion to set aside an Anton Piller order obtained ex parte in a dispute over an alleged breach of a referral agreement between law firms.

The court reviewed the stringent requirements for Anton Piller orders and Norwich orders.

Although there was some evidence suggesting a possible breach of contract by the respondents to the underlying agreement, the evidence did not establish the extremely strong prima facie case, serious damage, or real risk of destruction of evidence required for such extraordinary relief.

The court also found insufficient grounds for a Norwich order against the non‑party individuals.

The Anton Piller order was therefore set aside in its entirety and seized materials were ordered returned.