Sean F. Dunphy

In an insolvency appeal, the Court addressed when environmental remediation orders issued by a provincial regulator constitute provable monetary claims under the Companies’ Creditors Arrangement Act.

The majority held that orders not framed in monetary terms may still be compromised where the statutory and factual context shows sufficient certainty that compliance will ripen into a financial liability to the regulator.

Applying that framework, the majority found the remediation orders fell within the claims process and dismissed the appeal.

The dissenting judges would have required evidence approaching certainty that the province would itself perform remediation before treating most orders as contingent monetary claims.

Following dismissal of a commercial action, the successful defendant sought substantial indemnity costs after making a Rule 49 offer to settle.

The court held that where a defendant’s settlement offer involves payment and the action is dismissed entirely, Rule 49 does not automatically permit substantial indemnity costs.

Relying on appellate authority limiting earlier jurisprudence, the court concluded substantial indemnity costs are only appropriate where egregious conduct is demonstrated.

While the defendant’s legal rates were reasonable, the court found some time spent excessive.

Applying the factors in Rule 57.01, the court fixed a reduced partial indemnity costs award including disbursements.

The applicants, minority shareholders of MI Developments Inc. (MID), brought applications under sections 104 and 127 of the Securities Act alleging that MID failed to comply with Multilateral Instrument 61-101 (MI 61-101) by not obtaining minority shareholder approval for a series of related party transactions with Magna Entertainment Corp. (MEC).

The transactions included loans, loan extensions, and debtor-in-possession financing.

The Ontario Securities Commission dismissed the applications, finding that section 104 does not apply to related party transactions.

While the Commission permitted the applications under section 127, it concluded that MID was entitled to rely on the downstream transaction exception and the market capitalization exemption under MI 61-101.

The Commission also found no prima facie case of insider trading in connection with a related trust transaction.

The appellant appealed an order of the Superior Court of Justice.

The Court of Appeal agreed with the reasons of the lower court judge and dismissed the appeal.

Costs were awarded to the respondents in the fixed amount of $5,000.

Following a decision affirming the Superintendent's Notice of Proposal regarding a partial wind-up report, the interested party sought an award of costs against the company.

The interested party argued that the company was wholly unsuccessful and caused unreasonable delays by advancing frivolous positions.

The Tribunal dismissed the request for costs, finding that the company's arguments were reasonable and necessary for the hearing, and that its conduct was consistent with its fiduciary duty as plan administrator.

The appellant appealed the dismissal of his claims regarding the distribution of proceeds from two estate-freeze trusts.

The appellant was a potential beneficiary, but the trustees exercised their broad discretion to deny him any benefit.

The appellant argued there was a triable issue of breach of trust and fraud on a power.

The Court of Appeal dismissed the appeal, finding no triable issue of breach of trust given the trustees' broad discretion.

The Court further held that even if the distribution were set aside for fraud on a power, the trustee would retain discretion and had made it clear he would not exercise it in favour of the appellant.

The appellant appealed the dismissal of its negligent misrepresentation action arising from purchases of Confederation Life commercial paper through the respondent bank.

The court held that, in the context of dealings between sophisticated commercial parties, the bank's duty of care was limited to accurately supplying the specific information requested in the quoting exercise, not broader investment-related information.

The court further held that stating the D.B.R.S. rating as R1 low was not inaccurate or misleading merely because the rating had been placed under review with negative implications.

The appeal was dismissed with costs.