Philip Underwood

The appellants challenged orders striking a defence and dismissing a related claim for disclosure non-compliance.

The court found the motion judge gave thorough reasons, exercised discretion within a case-managed context under rule 37.15, and committed no error warranting intervention.

The appeal was dismissed with substantial costs.

The plaintiffs, shareholders and creditors in Mobilicity, a wireless telecommunications company, sued the federal government for negligence and negligent misrepresentation arising from the 2008 AWS spectrum auction.

The plaintiffs alleged that Industry Canada represented that spectrum licences acquired at auction would be transferable to incumbent carriers after a five-year moratorium, and that they relied on this representation to invest approximately $250 million in equity and $95 million in debt to capitalize Mobilicity and bid for spectrum licences.

The plaintiffs further alleged that in 2013, the government unilaterally changed the transfer framework to prohibit transfers to incumbents, and in 2014-2015 interfered with Mobilicity's sales process through threats, media manipulation, and regulatory delay.

The court found the government liable for negligence and negligent misrepresentation, holding that it owed a duty of care to the plaintiffs based on specific representations made to induce investment, and that it breached that duty through the implementation of the 2013 Transfer Framework and subsequent interference in the sales process.

The court awarded damages based on a "but for" analysis, calculating what the plaintiffs would have earned in alternative investments had they not relied on the government's representations.

The defendants moved for default judgment on their counterclaim for two secured loans totaling approximately $45 million in principal plus interest and protective disbursements.

The plaintiffs' statement of claim and defence to counterclaim had been struck out for failure to pay a costs award.

The court granted judgment on the two loans but reduced the judgment by disallowing $6,105,693.66 in unproven protective disbursements claimed under the second loan.

The court stayed enforcement of the judgment pending the Divisional Court's decision on the plaintiffs' motions for leave to appeal.

The court considered an application by Cannect International Mortgage Corporation and related parties to enforce a costs order against Condoman Developments Inc. and related parties, following failed attempts by Condoman to challenge a mortgage and avoid payment.

The court reviewed the history of the dispute, Condoman’s arguments of impecuniosity, and the legal principles governing enforcement of costs orders, ultimately dismissing Condoman’s action and striking its defence to counterclaim for non-payment of costs.

The decision addresses motions regarding the appointment of representative counsel for current and former employees and retirees of Hudson’s Bay Company ULC and related entities in ongoing Companies’ Creditors Arrangement Act (CCAA) proceedings.

The Court declined to appoint any of the nominated law firms as representative counsel at this stage, instead appointing the Honourable Herman Wilton-Siegel as an independent third party to evaluate proposals and make a recommendation.

The Court also approved amendments to the Sale and Investment Solicitation Process (SISP) to remove the company’s art and artifact collection from the SISP and to appoint Heffel Gallery Limited to conduct a separate auction for the collection, subject to further court approval of procedures.

The reasons review the legal framework for appointing representative counsel and the importance of balancing stakeholder interests in complex insolvency proceedings.

This costs endorsement addresses the appropriate scale and quantum of costs following the dismissal of an injunction motion brought by Condoman Developments and related parties to restrain enforcement of a $46 million mortgage by Cannect and related defendants.

The court upholds the contractual right to full indemnity costs in favour of the mortgagees, finding the mortgage terms binding and the amount claimed reasonable given the scale and complexity of the litigation.

The court distinguishes prior cases and awards Cannect $268,500 in costs.

This endorsement addresses the aftermath of a dismissed injunction motion by Howard Youhanan and his companies against their mortgagees, Marcus Tzaferis and his companies.

The court clarifies that its interim injunction is no longer in force and that Cannect is free to exercise its mortgage remedies.

The court admonishes Mr. Youhanan for providing false information to the Landlord-Tenant Board regarding the status of the court’s orders, directs him to correct the record, and warns of possible contempt proceedings if such conduct continues.

The plaintiffs, Condoman Developments Inc., 1808176 Ontario Inc., and Howard Youhanan, sought an interlocutory injunction to restrain the defendants, including Cannect International Mortgage Corporation and Marcus Tzaferis, from enforcing mortgage remedies (power of sale) over several Toronto development properties.

The plaintiffs argued the loans were not true loans but equity investments, and that the mortgages were unenforceable.

The court found the evidence and documentation overwhelmingly established the transactions as enforceable loans, not equity investments, and that the plaintiffs were sophisticated parties who knowingly entered into the agreements.

The court dismissed the motion for an injunction, finding no serious issue to be tried, no irreparable harm, and that the balance of convenience favoured the defendants.

The court considered whether to dismiss the Schembri Action and strike Schembri’s defence in the Way Action due to Schembri’s repeated, prolonged, and intentional failure to comply with documentary disclosure obligations, including undertakings and multiple court orders.

The court found Schembri’s conduct deliberate and unjustified, resulting in significant delay and prejudice.

Applying the principles from Falcon Lumber and related appellate authorities, the court held that the exceptional remedy of dismissal and striking pleadings was proportionate and necessary to uphold the integrity of the justice system.

This decision resolves two related oppression applications concerning the ownership and management of a closely held family trucking and logistics business, the World Wide Group of Companies.

The court finds that, despite the corporate records, there was an oral agreement among the four principal family members (two brothers and two brothers-in-law) that they would be equal beneficial owners of the main operating company and related entities.

The court orders rectification of the share register and grants a buy-out remedy to effect a final separation of interests, given the irreparable breakdown in relationships and mutual trust.

This decision resolves two related oppression applications concerning the ownership and management of a closely held family trucking and logistics business, the World Wide Group of Companies.

The court finds that, despite the corporate records, there was an oral agreement among the four principal family members (two brothers and two brothers-in-law) that they would be equal beneficial owners of the main operating company and related entities.

The court orders rectification of the share register and grants a buy-out remedy to effect a final separation of interests, given the irreparable breakdown in relationships and mutual trust.

This endorsement addresses the scope and effect of a prior scheduling order regarding the sale of properties subject to a blanket mortgage, clarifying that the Ontario court’s direction did not extend to properties outside Ontario or interfere with a Quebec court’s order authorizing a sale in Montreal.

The court emphasizes the limits of its jurisdiction and the principles of comity and deference to other courts, particularly in the context of cross-jurisdictional property disputes.

This endorsement addresses motions by the defendant insurers to compel Vale Canada Limited to answer refusals arising from oral and written discovery in complex insurance litigation concerning environmental claims at 26 mining sites.

The court reviews the status of discovery, the parties' agreements, and the proportionality of further discovery requests, including the use of exemplar and bridge charts to manage voluminous refusals.

The decision provides detailed directions on categories of refusals, privilege claims, and the process for resolving outstanding discovery issues, emphasizing proportionality, cooperation, and case management to keep the matter on track for trial.

The Plaintiffs brought a motion to transfer a pending application from the Waterloo Region to the Commercial List in Toronto and consolidate it with an existing action.

The court granted the motion, finding that both proceedings involved an overlapping factual matrix, common transactions, and a significant risk of inconsistent findings if determined separately.

The decision emphasized the principles of avoiding multiplicity of proceedings, preventing inconsistent judicial decisions, preserving scarce judicial resources, and saving costs for the parties.

The court also awarded partial indemnity costs to the Plaintiffs.

The appellant, a school board trustee, appealed the dismissal of his judicial review application challenging sanctions imposed by the Toronto Catholic District School Board for breaching its code of conduct.

The trustee had made inflammatory remarks equating LGBTQ+ individuals with criminals during a public meeting.

The appeal court upheld the Divisional Court's decision, finding that the Board had the authority to reconsider its initial decision (which had not found a breach), that re-litigation doctrines did not apply to the administrative process, and that the Board's decisions reasonably balanced the trustee's Charter rights with its statutory mandate to promote an inclusive school climate.

The proposed plaintiff, Frank Losak, sought leave to commence a class proceeding against the Financial Services Regulatory Authority (FSRA) and its CEO, Mark White, alleging misrepresentations related to the sale of Pace Savings & Credit Union securities while Pace was under FSRA's administration.

The court determined that leave was required under the Liquidation Order.

It granted leave for the claim against FSRA, finding a viable cause of action not barred by the Crown Liability and Proceedings Act or the Limitations Act, and that it would not undermine the liquidation.

However, leave was denied for the claim against Mark White due to statutory immunity under the FSRA Act, as no particulars of bad faith were provided.

The statement of claim against FSRA was allowed to be issued nunc pro tunc to February 28, 2024.

This motion arose from a family business dispute concerning the management of World Wide Carriers Ltd. (WWC) and related companies.

The applicants sought a declaration that the respondent, Sukhdev Dhaliwal, breached a prior court order (the "October Order") by not operating WWC in the ordinary course of business, and requested extensive access to WWC's documents, premises, and electronic systems.

The court found Sukhdev breached the October Order by terminating WWC's long-standing relationship with World Wide India (WWI), a key service provider primarily owned by the applicants, and transferring that business to a new company controlled by Sukhdev.

This action was deemed outside the ordinary course of business and prejudicial to the applicants' interests.

However, the court denied the applicants' requests for physical and electronic access to WWC and most broad documentary requests, concluding that granting such relief would give them undue control contrary to previous judicial determinations.

The applicants were granted access to documents and information they would have received as directors under the Business Corporations Act (Ontario).

Due to divided success, each party was ordered to bear their own costs.

The applicants brought a motion for an interim and/or interlocutory order to restrain the respondents from exercising powers prejudicial to their interests in a family trucking business and to nullify recent corporate governance actions.

The court granted a partial injunction, restraining the respondents from acting prejudicially or outside the corporation's best interests, finding a serious question to be tried, irreparable harm, and the balance of convenience favoring this restraint.

However, the court denied the request to nullify the corporate governance actions (which removed the applicants as directors and officers), as this constituted a mandatory injunction requiring a strong prima facie case, which the applicants failed to meet regarding their shareholder status.

Sukhdev Dhaliwal remained the sole shareholder, director, and officer, subject to the imposed restraints.

The Financial Services Regulatory Authority of Ontario (FSRA) appealed a Superior Court decision that dismissed its motion to stay a class proceeding initiated by Brewers Retail Inc. and a committee of pension plan members.

The class proceeding sought court approval of a comprehensive settlement regarding pension indexing issues, including amendments to the pension plan and trust, and compensation for known and unknown plan members.

FSRA argued that the Financial Services Tribunal (FST) had exclusive jurisdiction over these matters under the Pension Benefits Act (PBA) and the Financial Services Tribunal Act, 2017 (FSTA).

The Court of Appeal upheld the motion judge's finding that the Superior Court had concurrent jurisdiction, noting that neither the FSTA nor the PBA contained clear and unequivocal language ousting the court's inherent equitable jurisdiction to approve settlements and vary trusts.

The court affirmed that the class proceeding was the preferable procedure, as the FST lacked the power to approve the settlement or vary the pension trust, and the class action provided the necessary finality for all affected plan members.

The plaintiffs sought to enforce an "Outline of Terms of Settlement" reached during mediation, arguing it constituted a binding agreement.

The defendants contended that the Outline was not intended to be enforceable and lacked essential terms.

The court found that the Outline did not objectively reflect a mutual intention to create a binding agreement and that numerous material issues, including debt reallocation, minority shareholder rights, and tax implications of asset transfers, remained unresolved.

The court dismissed the motion, emphasizing that it cannot create a contract for parties where essential terms are missing.