Geoff R. Hall

The plaintiffs invested $17.8 million with a mortgage broker, who fraudulently used the funds to repay an unauthorized overdraft at TD Bank caused by a cheque kiting scheme.

The plaintiffs sued TD Bank for negligence, knowing receipt, conversion, and unjust enrichment.

The court dismissed the negligence claim, finding TD Bank lacked actual knowledge of the fraud and thus owed no duty of care.

However, the court found TD Bank liable for knowing receipt, conversion, and unjust enrichment, as the bank had constructive knowledge of the fraud due to multiple red flags requiring enhanced due diligence, and the tort of conversion was held to apply to funds on deposit.

TD Bank was ordered to pay damages of over $16.3 million.

The applicant, TD Waterhouse, brought a motion seeking to appoint an implementation monitor to oversee the repatriation of its data from the respondent, EIS, and to amend a prior mandatory injunction.

TD Waterhouse alleged that EIS breached their agreement by commingling backup data and failing to report an attempted data breach.

The court found a technical breach regarding the commingled backup CDs but no breach regarding the thwarted cyberattack.

The court declined to appoint an implementation monitor or reduce the applicant's costs for data repatriation, finding such remedies unwarranted.

However, the court amended the injunction to require the respondent to continue providing transition services until 12 months after the data repatriation is complete.

The appellant sought to compel the respondent bank to reinstate a chequing account that had been closed.

The appellant argued that section 627.17(1) of the Bank Act required the bank to maintain the account once opened.

The application judge rejected this argument, holding that section 627.17 pertains only to the opening of accounts, not their closure.

The Court of Appeal affirmed, finding no reviewable error and agreeing that the word "open" means to start something, not to continue it indefinitely.

The appeal was dismissed with costs of $15,000 payable to the respondent.

TD Waterhouse Canada Inc. sought the return of its data held by Electronic Imaging Systems Corporation following termination of their service agreement.

EIS demanded payment of $2.50 per image (totalling over $460 million) for the return of 180 million records.

The court determined that the document restore fee applied only to day-to-day requests during the agreement term, not to mass data repatriation upon termination.

The court found that the Transition provisions of the agreement governed the return of data on termination.

The court granted a mandatory injunction requiring EIS to return the data, conditioned on TD Waterhouse paying EIS commercially reasonable compensation on a quantum meruit basis for the services rendered in repatriating the data.

This endorsement grants several orders sought by the Applicants in ongoing Companies' Creditors Arrangement Act (CCAA) proceedings, including approval of the Monitor’s reports and activities, amendment of reporting obligations, addition of Block 6 Holding Inc. as an Applicant, approval of a property sale and related distributions, and the appointment of a mediator to address cost allocation issues among financiers.

The court finds all relief appropriate and supported by the record.

The applicant, Samer Bishay, sought an order under the Bank Act compelling the Bank of Montreal to reinstate his bank accounts, a trial on damages, and a Norwich Order for disclosure of information leading to the account closure.

The court found that s. 627.17 of the Bank Act only requires banks to open accounts under certain conditions, not to maintain them indefinitely, and that the common law right to terminate banking relationships on reasonable notice was not displaced.

The application was dismissed, including the request for a Norwich Order, as the applicant's claim was found to be speculative.

The applicants, Melissa Taurasi and Nelda Taurasi, sought a declaration that a global charge registered by The Toronto-Dominion Bank (TD) on their properties was void, alleging duress, undue influence, lack of consideration, and absence of independent legal advice.

The TD Charge was part of a settlement agreement following a $37 million cheque kiting fraud perpetrated by StateView Homes, a company owned by the applicants' husbands.

The court dismissed the application, finding no undue influence, noting that the applicants had legal representation and received a benefit from the settlement, and that their current position contradicted their separate negligence claims against their former counsel.

The Applicants in a CCAA proceeding sought a Funding Contribution and Turn-Over Order to compel various financiers to contribute to a $40 million wind-down cost, an extension of the stay period, and approval of a Key Employee Retention Plan (KERP).

The court declined the Funding Order and KERP, finding that CCAA section 11.01(b) prohibits compelling new money advances from stakeholders, and that securitization parties are differently situated with assets excluded from the debtor's property.

The court did grant a shorter extension of the stay of proceedings.

In the context of CCAA proceedings, the applicants sought a Funding Order to compel Securitization Parties and other secured lenders to fund a $40 million wind-down of the remaining entities.

The court dismissed the motion for the Funding Order, finding that section 11.01(b) of the CCAA expressly prohibits orders requiring the further advance of money or credit.

Consequently, the court also declined to approve a Key Employee Retention Plan, as it was dependent on the unavailable funding.

The court did, however, grant a temporary sealing order for the KERP details and extended the stay of proceedings to November 29, 2024.

The appellant, Canada Forgings Inc., appealed the dismissal of its procurement law claim against Atomic Energy of Canada Limited (AECL).

The trial judge had found the claim statute-barred by the two-year limitation period and rejected the procurement law arguments, concluding no "Contract A" was formed.

The trial judge also ruled a Deloitte Report inadmissible.

The Court of Appeal upheld the trial judge's decision, finding the reasons sufficient, the limitations analysis correct, the procurement law findings sound (no duty of fairness without Contract A), and the Deloitte Report properly excluded due to prior rulings and privilege.

The appeal was dismissed, and the costs award from the trial was upheld.

The Court of Appeal for Ontario addressed costs and a sealing order following its dismissal of the appellant's Charter challenge to a Canada Revenue Agency (CRA) audit.

The court ordered each party to bear its own costs for both the appeal and the fresh evidence motions, citing divided success on the appeal and reasonable conduct regarding the fresh evidence motions.

Regarding the sealing order for fresh evidence, the court dismissed the appellant's request for a full sealing order, instead ordering limited redactions to the CRA final audit, consistent with a prior Superior Court order, to balance the open court principle with privacy and safety concerns, particularly given allegations of government wrongdoing.

This endorsement addresses motions related to a proposed recapitalization transaction of Xplore Inc. and 16029167 Canada Inc. via a plan of arrangement under the Canada Business Corporations Act (CBCA).

The applicants sought an Interim Order to facilitate a vote on the arrangement, while certain satellite providers (unsecured creditors) brought 'comeback motions' objecting to the preliminary interim order's stay of remedies and the proposed treatment of their contracts, including non-payment of full contractual rates and the use of a reverse vesting order.

The court granted the Interim Order, finding that the applicants met the statutory requirements and acted in good faith, and that the fairness of the arrangement, including the novel reverse vesting order, warranted a full fairness hearing.

The court upheld the stay, finding the non-disclosure by applicants not material and that the court has broad discretion to impose terms on critical suppliers, drawing analogies to CCAA provisions.

The satellite providers' requests for full contractual payments and security were denied, and their motion to lift the stay for a bankruptcy application was adjourned.

This endorsement from a case conference addressed several procedural issues in a complex litigation involving Indigenous land claims.

The court provided directions regarding preparatory materials for upcoming out-of-court expert examinations, including the appointment of a hybrid commissioner and deadlines for expert report summaries and legal arguments.

The court also addressed a dispute regarding the scope of cross-examination of an expert witness, directing the parties to narrow issues concerning adversity of interest before seeking further judicial determination.

Finally, the court confirmed the appointment of a pre-trial judge and scheduled the next case conference.

The appellant, a Muslim charity, appealed the dismissal of its application challenging a Canadian Revenue Agency (CRA) audit process, alleging violations of its Charter rights due to discriminatory targeting and Islamophobic attitudes.

The application judge dismissed the challenge as premature, citing an insufficient factual record and the availability of administrative appeal processes under the Income Tax Act.

The Court of Appeal upheld the dismissal, affirming the court's discretion to refuse to decide a case based on a preliminary and incomplete factual record, even for Charter relief.

While disagreeing with the lower court's suggestion that the Tax Court's jurisdiction would necessarily bar a subsequent Superior Court Charter challenge, the appellate court found the prematurity finding to be correct given the ongoing administrative process.

This endorsement from a case conference addresses procedural issues in a complex litigation, specifically disputes regarding the admissibility of expert reports and estimates of trial length.

The court noted progress in resolving these issues and scheduled a further case conference to revisit them and receive an update on an expert witness's health.

In a Companies' Creditors Arrangement Act (CCAA) proceeding, the applicants sought court approval for the sale of a real property, the Monitor's reports, a revised governance protocol, and a sale and investor solicitation process (SISP) for their logistics business.

The court approved the property sale, finding it met the Soundair Principles despite not being a court-supervised process.

The Monitor's reports and activities were also approved.

The proposed SISP was approved with a minor amendment requiring the Monitor to consult directly affected secured creditors.

The Revised Governance Protocol, which included default commission rates for vehicle sales and collections, was approved as an interim measure, balancing the need for cost recovery with creditor concerns, noting that financiers could negotiate alternative rates or withhold consent to sales.

The Moving Parties brought a jurisdiction motion seeking to dismiss or stay Senvion's Ontario action and motion for lack of jurisdiction or on the basis of forum non conveniens, arguing that Quebec was the more appropriate forum.

Senvion's proceedings concerned an alleged breach of a Companies’ Creditors Arrangement Act (CCAA) stay order issued by the Ontario court, specifically regarding the draw down of a letter of credit.

The court dismissed the Moving Parties' motion, holding that the Ontario court, as the issuer of the CCAA recognition orders and stay, was the appropriate forum to determine whether its order had been breached, irrespective of contractual choice of law or forum clauses.

The court explicitly stated it was not making a determination on the merits of the stay violation.

Stelco Inc. sought leave to appeal an order from the CCAA supervisory judge concerning the reconveyance of land (the "DGAP Parcel") to LandCo, a precondition for DGAP Investments Ltd. to purchase the land.

Stelco had previously been ordered to specifically perform this obligation but failed to do so.

The motion judge affirmed the court's authority to impose terms for reconveyance if the parties could not agree.

The Court of Appeal dismissed the motion for leave to appeal, finding that the proposed appeal was not prima facie meritorious, given prior judicial determinations and Stelco's previous concession that the court could determine the agreements.

The court also considered the significance of the issues to practice and the action, and the undue hindrance that an appeal would cause to the progress of the CCAA proceeding.

This endorsement from a case conference addresses several procedural issues in a complex litigation.

It sets a timetable for a forthcoming motion by the Attorney General of Canada regarding the taking of evidence from certain witnesses before trial.

The court also noted Ontario's expected late delivery of expert reports, discussed the parties' differing estimates for trial length and scheduled a follow-up conference, and provided guidance on addressing concerns about trial presentation software (CaseLines).

This endorsement from a case conference addresses several procedural issues in a complex litigation, including the taking of expert evidence before trial, Canada's missed deadline for an expert report, the appointment of pre-trial and trial judges, the use of trial presentation software, and Ontario's Crown immunity defence.

The court scheduled a motion for expert evidence and provided directions for parties to prepare a trial timetable and discuss judicial assistance.