Jacqueline Horvat

Loukia Georgiou sought leave to appeal a lower court's dismissal of her application for relief from forfeiture of $9.3 million, which a U.S. court had ordered forfeited as proceeds of crime belonging to her son.

The funds were restrained in Canada under the Mutual Legal Assistance in Criminal Matters Act.

The motion judge determined that the proposed appeal required leave under s. 35 of the Act, not an appeal as of right under the Criminal Code, and found that the grounds raised by the applicant did not constitute questions of law alone justifying leave.

The motion for leave to appeal was dismissed.

This is a costs endorsement following an appeal decision.

The parties reached an agreement on costs, whereby the respondent, William O’Reilly, was ordered to pay $10,000 to the appellant, Tornado Medical Systems Inc., covering costs for both the appeal and the motion below.

No costs were payable by Dr. Jae Kim.

This appeal concerned the scope of common employer liability and director liability for unpaid wages under the Business Corporations Act.

The motion judge had found Tornado Medical Systems, Inc. liable as a common employer and Jae Kim liable as a director for unpaid wages and vacation pay.

The Court of Appeal allowed Tornado's appeal, finding that the motion judge erred in her articulation and application of the common employer doctrine by effectively finding liability based on corporate affiliation rather than an intention to create an employment relationship.

The Court dismissed Dr. Kim's appeal, but varied the judgment to make his director liability conditional on the statutory requirements of execution against the corporation being returned unsatisfied or corporate insolvency.

In a class action for secondary market misrepresentation, the court approved a $1.275 million settlement, the proposed distribution plan, class counsel's fees of $357,000 plus disbursements, and an honorarium of $15,000 for the representative plaintiff.

The settlement was deemed fair, reasonable, and in the best interests of the class, considering the high risks and complexities of the litigation and the limited recovery range due to a CCAA order.

The court emphasized the need for exceptional contribution to justify a representative plaintiff's honorarium, which was found to be present in this case.

The plaintiff, Alex M. Bodnarchuk, brought a consent motion to certify a class action for settlement purposes and to obtain leave to proceed with a secondary market misrepresentation claim under the Ontario Securities Act against Guestlogix Inc., Brett Proud, and Patrick Leung.

The action alleged misrepresentations and omissions regarding credit facilities and financial covenants.

The parties reached a settlement of $1,275,000.

The court granted leave, finding the action was brought in good faith and had a reasonable possibility of success for settlement purposes.

The court also certified the action as a class proceeding for settlement purposes, finding all criteria under the Class Proceedings Act, 1992 were met.

The order approved the settlement notices and procedures for opt-outs and objections, and set a date for the settlement approval hearing.

The appellant appealed a motion judge's stay of crossclaims against its co-defendant, ABB Inc., arising from a defective tap changer.

The motion judge stayed the crossclaims based on the 'Orgalime' standard terms and conditions, which included an arbitration clause and excluded liability for consequential loss.

The appellant argued that ABB failed to specifically bring these clauses to its attention, relying on Tilden Rent-a-Car.

The Court of Appeal dismissed the appeal, finding that the appellant was a sophisticated corporate consumer and could reasonably be expected to have reviewed the terms referenced in the contractual documents.

The applicant sought a declaration that all intellectual property used by the debtor in its business was the property of the debtor and subject to the applicant's security interest.

The debtor's directing mind claimed the trademarks had been assigned to a related company prior to the receivership.

The court found the directing mind lacked credibility, noting the assignments were not disclosed to lenders, were for nominal consideration, and the debtor continued to use and renew the trademarks.

The court declared the trademarks were the property of the debtor and, in the alternative, that the assignments were void as fraudulent conveyances.

A cross-motion by the related company for disgorgement of funds was dismissed.

In CCAA proceedings arising from the wind-down of a national retail chain, a pharmacy franchisee association moved to set aside disclaimer notices delivered in respect of franchise agreements for in-store pharmacies, and sought representative status, counsel, a financial advisor, and estate-funded professional fees.

The court held that the statutory factors under s. 32(4) of the Companies’ Creditors Arrangement Act favoured permitting the disclaimers to stand, as store closures were inevitable, the monitor had approved the notices, setting them aside would delay liquidation and divert estate value from unsecured creditors generally, and no evidence showed continued operation in dark stores would improve the franchisees’ financial circumstances.

The court nevertheless found limited collective representation would assist with transition issues including regulators, inventory return, and claims, and appointed the association as representative, with counsel and a financial advisor.

Funding of up to $100,000 inclusive of disbursements and HST was approved, but no administrative charge was granted.

The plaintiffs brought a proposed class action alleging that Air Canada improperly collected U.S. transportation taxes on tickets purchased in Canada and between Canada and the U.S., thereby giving extra-territorial effect to U.S. tax laws.

The motion judge found the Ontario court had jurisdiction but stayed the claims of passengers who paid in the U.S. on the basis of forum non conveniens.

On appeal and cross-appeal, the Court of Appeal held that while Ontario courts have jurisdiction to determine if a foreign law is being enforced extra-territorially, the entire action should be stayed on the basis of forum non conveniens.

The principle of comity requires that the interpretation of the U.S. Internal Revenue Code be undertaken by U.S. authorities first.

The plaintiffs commenced a proposed class action alleging that the defendant airline improperly charged United States transportation taxes on ticket purchases.

The defendant moved to dismiss or stay the action for lack of jurisdiction and on the basis of forum non conveniens.

The court held that Ontario had presence‑based jurisdiction because the defendant carried on business in Ontario and there was a real and substantial connection to the dispute.

The revenue rule did not bar adjudication because the action did not seek to enforce foreign tax laws but rather challenged the defendant’s collection of charges from customers.

The motion was dismissed with respect to claims relating to tickets paid for in Canada but granted in relation to tickets paid for in the United States, which were stayed as U.S. courts were the clearly more appropriate forum.