Jennifer Teskey

The court considered whether to stay Bombardier Inc.'s Ontario action against Alstom Rail Sweden AB for a tax loss purchase price adjustment, pending arbitration before the International Chamber of Commerce.

The dispute centered on whether the claim fell within the scope of an arbitration agreement in a 2020 share purchase agreement, or was carved out by a prior 2017 agreement that conferred exclusive jurisdiction on Ontario courts.

Applying the Supreme Court’s guidance in Peace River Hydro Partners v. Petrowest Corp., the court found Alstom Sweden had established an arguable case that the dispute was subject to arbitration and stayed the action.

The defendant, Bombardier Inc., brought a motion seeking an order for the plaintiff, Triple-K Consult Ltd., to deliver a further and better affidavit of documents.

Bombardier argued it had a contractual right to audit the plaintiff's activities to verify compliance with their sales representative agreement and applicable laws before commissions were payable.

The plaintiff contended it had complied with the audit request and that further demands were beyond the contractual scope.

The court largely dismissed the defendant's motion, finding that the plaintiff had substantially complied and that many of the requested documents were not relevant or better pursued through discovery.

The court ordered only the production of supporting documents for $35,000 in expenses claimed by the plaintiff's principal.

The plaintiff, Dymon Storage Corporation, brought a motion for an interlocutory injunction to restrain the defendants, including its former Chief Planner and its former architects, from working for a competitor and from misusing confidential information.

The defendant Edwards brought a cross-motion to strike or stay the claim against her in favour of arbitration.

The court dismissed the non-competition injunction, finding Edwards' non-competition covenant unreasonably broad and unenforceable, and finding no evidence of an oral non-competition agreement with the architect defendants.

The court partially granted the confidentiality injunction, ordering the architect defendants to surrender documents relating to an epoxy floor system and certain architectural drawings, but otherwise found the plaintiff failed to distinguish between confidential information and general know-how.

The court stayed the claim against Edwards in favour of arbitration pursuant to her employment agreement.

The defendant by counterclaim brought a motion for the production of due diligence documents related to a corporate acquisition, arguing they were relevant and that any solicitor-client privilege had been impliedly waived.

The court dismissed the motion, finding that the broad request for acquisition due diligence was not relevant to the specific claims regarding a separate supply agreement.

Furthermore, the court held that the documents were protected by solicitor-client privilege, which had not been waived because the responding party did not put its reliance on legal advice at issue in its pleadings.

This is a costs endorsement following an appeal from orders of the Superior Court of Justice.

The appeal involved four consolidated actions concerning personal liability of corporate directors and officers in the context of real estate development and mortgage transactions.

The Court of Appeal upheld the motion judge's conclusions on the legal issue of personal liability based on pleaded allegations and legal principles.

The costs decision addresses the appropriate costs awards for the successful and unsuccessful parties across the multiple appeals.

Four consolidated class actions brought by small investors who invested in syndicated mortgages promoted by Fortress Real Capital Inc. and Fortress Real Developments Inc. The investors alleged misrepresentation, breach of fiduciary duty, breach of contract, and negligence.

The motion judge struck claims against individual respondents Jawad Rathore and Vincenzo Petrozza, and dismissed claims to enforce syndicated mortgages against Empire Pace (1088 Progress) Ltd. and ADI Developments entities.

The appellants appealed.

The Court of Appeal upheld the dismissal of personal claims against Rathore and Petrozza but reversed the dismissal of mortgage enforcement claims against Empire Pace and ADI, finding that the motion judge erred in applying Rule 21 to matters requiring evidentiary findings regarding contract interpretation and disclosure.

In the context of CCAA proceedings, the Board of Directors of Essar Steel Algoma Inc. brought a motion seeking to resume regular board meetings, receive confidential information, and be paid outstanding fees.

The Board had been previously disengaged due to an information sharing protocol and a prior court endorsement because the parent company was a bidder.

Although the parent company was no longer a bidder, the court dismissed the motion to reengage the Board, finding that the existing governance arrangements were functioning well and reengaging the Board could disrupt the restructuring.

However, the court granted the Board's request to have its independent counsel paid and included in discussions regarding the directors' potential liability.

In four proposed class actions concerning investments in syndicated mortgages for land development projects, the defendants brought motions to strike the plaintiffs' statements of claim.

The court struck out the claims against the individual directors and officers of the corporate defendants without leave to amend, finding that the pleadings failed to allege any independent tortious conduct or separate identity of interest from the corporations.

The statements of claim against the remaining defendants were struck out in their entirety with leave to deliver fresh as amended statements of claim.

The respondent purchased the appellant's business in exchange for securities, with the appellant becoming a minority shareholder.

The acquisition agreement contained a representation and warranty regarding tax pools.

Years later, the Canada Revenue Agency disallowed the respondent's use of the tax pools and assessed approximately $11.8 million in additional taxes, interest, and penalties.

The respondent invoked an indemnity from the appellant, who argued the respondent had breached the tax pools representation and warranty.

The motion judge granted summary judgment for the respondent, interpreting the representation and warranty as directed solely to the accurate identification of tax pools and their values at closing, not as a guarantee of future tax utilization.

The appeal was dismissed.

The plaintiff brought a motion for summary judgment seeking indemnification from the defendants for a percentage of taxes, interest, and penalties assessed by the Canada Revenue Agency (CRA).

The parties had previously entered into a Share Put Agreement containing an indemnity clause.

The defendants argued they were protected by a prior representation and warranty regarding the future use of tax pools, and sought a set-off.

The court found that the plaintiff did not guarantee the future use of the tax pools against CRA reassessment, and that any such prior representations were superseded by an entire agreement clause.

The court granted summary judgment for the plaintiff, enforcing the indemnity, and declined to stay execution of the judgment pending the CRA appeal.

The appellant, acting as receiver for Wesbell Networks Inc., appealed a trial decision allowing Bell Canada to set-off approximately $2 million against amounts owed to Wesbell under a Master Supply Agreement.

Following Wesbell's bankruptcy, Bell terminated the agreement, assumed an equipment lease, and paid the remaining lease balance.

The Court of Appeal upheld the trial judge's interpretation of the agreement, confirming Bell's right to set-off the full amount.

However, the Court allowed the appeal regarding trial costs, finding the trial judge erred in denying costs to the appellant despite its overall success in obtaining a judgment exceeding $1 million.

The appellant was awarded $94,000 in trial costs, while the respondent was awarded $20,000 for the appeal.

A dissident unitholder sought declarations allowing it to nominate trustees at a real estate investment trust’s annual meeting despite the trust’s advance notice policy.

The dispute turned on the interpretation of a proviso stating that adjournment or postponement of a meeting would not commence a new nomination period.

The court held that the nomination window is triggered by the actual date of the meeting, not the originally scheduled date, and that the proviso merely prevents previously valid nominations from becoming stale after postponement.

Interpreting the declaration of trust according to contractual principles and favouring unitholder electoral rights where ambiguity exists, the court concluded that the applicant’s nomination notice was timely.

The applicant was therefore entitled to nominate trustees at the meeting.

The applicant shareholder brought an application under s. 247 of the Canada Business Corporations Act seeking an order that the respondent corporation comply with and refrain from breaching s. 150 regarding proxy solicitation.

The dispute arose from a corporate press release issued during a proxy contest, which the applicant alleged constituted an unlawful solicitation of proxies prior to delivery of a management proxy circular.

The court considered whether the communication was “calculated to result in the procurement or withholding of a proxy” within the meaning of the Act.

Interpreting solicitation broadly but contextually, the court found the press release primarily responded to criticisms and explained corporate actions rather than encouraging shareholders to submit proxies.

The press release therefore did not constitute a solicitation and no breach of s. 150 occurred.

Following a trial decision permitting the defendant to set off amounts paid to assume a lease, the parties could not agree on the calculation of the judgment.

The plaintiff argued the set-off should be calculated on a declining balance basis and exclude tax input credits.

The court held the defendant was entitled to set off the entire lease obligation immediately, as it relieved the plaintiff of the full liability.

The court also rejected the tax argument, finding it was an improper attempt to introduce fresh evidence after trial.

Motion seeking court approval of a proposed settlement and class counsel fees in a securities class proceeding.

The action alleged that a forestry company and its officers issued materially misleading financial statements and prospectus disclosures, contrary to Canadian generally accepted accounting principles, which artificially inflated share prices.

The claims included negligence, negligent misrepresentation, and statutory causes of action under the Securities Act and the Canada Business Corporations Act.

After arm’s‑length negotiations and mediation, the parties reached a $1.9 million settlement funded by the defendants’ insurer.

The court held the settlement was fair, reasonable, and in the best interests of the class, and approved both the settlement and reduced contingency fees.

Following a certification decision in a proposed consumer class action concerning prepaid phone cards, the court determined the appropriate costs award.

The moving party sought over $204,000 in partial indemnity costs after succeeding on certification of most proposed common issues.

The court reviewed the costs outline, reduced counsel hourly rates to align with the Rules Committee’s Information to the Profession, and removed an excessive research disbursement.

Considering Rule 57.01 factors, historical certification-motion cost averages, and proportionality principles tied to access to justice under the Class Proceedings Act, the court fixed costs at $150,000 all-inclusive payable forthwith by the defendants.

The plaintiff brought a motion to certify a class action against Bell Mobility regarding the expiry dates on pre-paid phone cards.

The plaintiff alleged breach of contract, breach of the Gift Card Regulation under the Consumer Protection Act, unjust enrichment, and unfair practices.

The court found that the pleadings disclosed causes of action for breach of contract and unjust enrichment, but not for unfair practices.

The court certified the action as a class proceeding, appointed the plaintiff as the representative, created a sub-class for consumer-users, and certified five common issues.

Following a contract interpretation decision in which each party succeeded on different issues, the court considered submissions on costs.

The plaintiff succeeded on the issue of entitlement to the contractual interest rate, while the defendant succeeded on the issue of contractual setoff.

The plaintiff sought partial indemnity costs of approximately $94,000.

Applying principles governing divided success and referencing commentary from the Law of Costs, the court concluded that the parties were either equally successful or equally unsuccessful.

In the circumstances, the court declined to award costs to either party.