Barry Howard Bresner

This appeal concerns the interpretation and application of section 4 of the Interest Act to complex commercial loan agreements between ClearFlow Energy Finance Corp. and Solar Power Network Inc. The central dispute involves whether a "discount fee" of 0.003% per day and "administration fees" constitute interest within the meaning of the Interest Act, and whether the loan agreements comply with the statutory requirement to express interest as an annual rate or percentage.

The application judge found that the discount fee was interest, that the loan agreements failed to comply with section 4, and that all interest payable should be capped at 5% per annum.

The Court of Appeal allowed the appeal, finding that the discount fee was properly annualized through a formula in the Loan Agreement, that the Loan Agreement complied with section 4, and that the appropriate remedy for non-compliance in the Promissory Notes was to limit only the non-compliant discount fee to 5%, not all interest payable.

The applicant, Canadian Home Publishers Inc. (general partner), and the respondents, estate trustees of David Colville-Reeves (sole limited partner), sought conflicting determinations regarding the entitlement to profits and residual assets of Canadian Home Publishers (CHP), a limited partnership.

The court determined that CHP was dissolved upon David's death because his executors did not become substituted limited partners without consent or prior authorization.

Consequently, CHP must be wound up, and its residual assets are to be distributed equally between the general partner (Lynda Reeves, owner of CHP Inc.) and David's Estate, as per the Partnerships Act.

The court dismissed the respondents' promissory estoppel argument, finding no formal representation or detrimental reliance, and doubted its applicability against mandatory statutory provisions.

The appellants, two insurance companies, appealed the summary dismissal of their action against respondents for breach of an alleged oral agreement and inducement of breach of contract.

The motion judge dismissed the action on the basis that the parties had agreed that no binding contractual relationship would exist without a signed written agreement (the "Precondition").

The Court of Appeal found this conclusion was a palpable and overriding error.

The evidence only supported that the parties intended to eventually document their agreement in writing, not that execution of a written contract was a precondition to legal obligations.

The court allowed the appeal against the Vancity respondents and directed the matter to trial, but dismissed the appeal against the Co-operators respondents on alternative grounds.

The defendants brought motions for summary judgment to dismiss claims of breach of contract and inducing breach of contract.

The plaintiffs alleged an oral agreement for an exclusive insurance supplier arrangement with Vancity Insurance, which was later sold to Co-operators.

The court found that no binding oral agreement existed because the parties intended their legal obligations to be deferred until a formal written contract was approved and executed.

Consequently, the claim for inducing breach of contract against Co-operators also failed, as there was no valid contract to breach, and Co-operators had no knowledge of a binding agreement, nor did it "turn a blind eye." The action was dismissed against all defendants.

This endorsement addresses the costs arising from a prior motion where Fishman Flanz Meland Paquin LLP (FFMP) was successful against FCA Canada Inc. (Chrysler).

FFMP claimed costs of $138,923.68, while Chrysler argued for no more than $50,000.

The court considered the complexity of the motion, the importance of the matter to FFMP, and Chrysler's unreasonable position.

The court assessed FFMP's fees at $85,000 and disbursements at $2,698.47, plus applicable taxes, to be paid by Chrysler within thirty days.

Fishman Flanz Meland Paquin LLP (FFMP), counsel to the Creditors' Committee in a CCAA proceeding, brought a motion to compel FCA Canada Inc. (Chrysler) to sign an indemnity against potential tax liabilities arising from the distribution of Cost Award Funds from prior Quebec litigation.

FFMP also sought payment of Chrysler's share of tax advice costs and FFMP's motion expenses.

Chrysler opposed, arguing FFMP breached an undertaking to pay without conditions and had no right to deduct costs.

The court found FFMP's requests for indemnity and cost deductions reasonable and consistent with the Plan's intent and the court's broad discretion under section 11 of the CCAA.

The court allowed FFMP's motion and dismissed Chrysler's cross-motion, ordering Chrysler to comply with FFMP's demands before receiving its pro rata share of the Cost Award Funds.

Following a successful motion by the moving party in a proceeding under the Business Corporations Act (Ontario), the court addressed the appropriate quantum and scale of costs.

The successful party sought substantial indemnity costs.

The court held that substantial indemnity costs are exceptional and reserved for rare cases involving outrageous litigation conduct, which was not established.

Applying Rule 57 of the Rules of Civil Procedure and the fairness principles articulated by the Court of Appeal, the court reduced the requested amount due to duplication of effort and counsel learning time following a change of lawyers.

A respondent brought a motion to stay or consolidate an application seeking enforcement of a “clawback” provision in a unanimous shareholders’ agreement pending determination of several related proceedings, including a wrongful dismissal action and oppression claims.

The court considered the principles under the Courts of Justice Act and Rule 6.01 of the Rules of Civil Procedure governing consolidation and avoidance of multiplicity of proceedings.

The court found that the issues raised in the clawback application were inextricably intertwined with the issues in the related proceedings, including allegations of oppression, breach of the shareholders’ agreement, and the consequences of changes in employment status.

Separate adjudication would risk duplication of evidence, inconsistent findings, and inefficient use of judicial resources.

The motion was granted and the application was ordered to be heard together with the related proceedings.