Lou Brzezinski

This supplementary costs endorsement addresses the quantum of costs for earlier supplementary submissions.

The court clarified its previous position, acknowledging the defendants' submissions, though ultimately disagreeing with their objection.

The plaintiff was awarded modest costs of $1,000, less than sought but more than proposed by the defendants, reflecting the effort expended and the plaintiff's successful position on the issue.

The applicant, U.S. Steel Canada Inc. (USSC), sought approval for a second key employee retention plan (KERP 2), while a group of unions and representative counsel (Moving Parties) sought an order to terminate the suspension of other post-employment benefits (OPEBs).

The court granted the KERP 2 motion, finding it fair and reasonable for business stability and restructuring efforts.

The OPEB motion was denied, as the court found no fundamental improvement in USSC's profitability to warrant OPEB reinstatement, and that USSC's proposed one-time contribution of $2.7 million to a transition fund for retired employees appropriately balanced competing interests during the ongoing sales and investor solicitation process (SISP).

The court issued a second supplementary endorsement addressing the defendants' objections to paragraph 11 of a draft order.

The defendants, primarily Robert Symons, objected to the requirement to provide detailed financial statements and transaction records for Gerald Gordon Symons dating back to 2000, citing lack of records, formal authority as executor, and relevance.

The court dismissed these objections, affirming that the order reflected its original endorsement and that Robert Symons was expected to use best efforts to acquire the information.

This supplementary endorsement addresses the defendants' objections to the draft order following a previous motion that vacated a stay, appointed an investigative receiver, and awarded costs to the plaintiff.

The defendants' counsel raised concerns about access to records and the quantum and allocation of costs, framing these as issues with the form of the order.

The court found these objections related to the substance of the prior ruling, not its form, and that the draft order accurately reflected the endorsement.

The court signed the plaintiff's draft order and awarded the plaintiff further costs for the necessity of this supplementary exercise, inviting submissions on quantum.

The plaintiff, a judgment creditor, moved to lift a stay of execution on an Ontario judgment recognizing a USD $44 million U.S. judgment, and to appoint an investigative receiver.

The U.S. court had found the defendants engaged in fraudulent transfers and held a defendant in contempt for non-compliance with disclosure orders.

The court lifted the stay, finding the defendants' history of asset disposal and non-compliance constituted special circumstances warranting an investigative receiver, despite the defendants' argument that ordinary remedies had not been exhausted due to the stay.

The United Steelworkers Local Union 2251, supported by USW Local 2724 and Essar Algoma retirees, brought a motion to qualify a "Subject Bidder" as a Phase II Bidder in a Companies' Creditors Arrangement Act (CCAA) proceeding.

The Subject Bidder had been disqualified by Essar Algoma, its Chief Restructuring Advisor, Financial Advisor, and the Monitor for failing to provide satisfactory evidence of financial capability to consummate a transaction.

The union argued it was not properly consulted in the disqualification decision and that it should have been allowed to meet with the Subject Bidder.

The court dismissed the motion, finding that the union's consultation rights under the Sale and Solicitation Process (SISP) did not extend to decisions on a bidder's financial capability, and that the court should not second-guess the business judgment of the CCAA applicants and their professionals.

In the context of CCAA restructuring proceedings, the applicants sought approval of a grievance claims procedure to resolve approximately 3,000 outstanding grievances.

USW Local 2251 opposed the motion, arguing that the CCAA stay did not apply to grievances, that imposing a new procedure impermissibly amended the collective agreement, and that staying the grievance process violated section 2(d) of the Charter.

The court granted the motion, holding that the CCAA permits staying grievance procedures and imposing a claims process, which does not constitute an amendment to the collective agreement.

The court also found no Charter violation and held that under the doctrine of paramountcy, the CCAA stay provisions prevail over the grievance arbitration requirements in the provincial Labour Relations Act.

The bankrupt appealed a decision by the Registrar in Bankruptcy refusing to schedule his discharge application for a hearing before a Commercial List judge.

The Registrar had adjourned the hearing sine die pending the outcome of a separate action by the Trustee against the bankrupt's family for alleged preferential and fraudulent conveyances.

The Superior Court dismissed the appeal, finding that the Registrar properly exercised her discretion by balancing the relevant factors, including prejudice, interests of the parties, and the summary nature of discharge hearings where fraud allegations should be established beforehand.

The moving defendants sought summary judgment dismissing claims arising from alleged transfers of corporate funds intended to defeat enforcement of a foreign judgment against a related company.

The plaintiff alleged that the defendants participated in a scheme to transfer and dissipate assets through affiliated corporations to hinder creditors.

The court found that the evidentiary record raised serious credibility concerns and that the moving defendants’ evidence was internally inconsistent regarding their knowledge of the transactions.

The court concluded that the record suggested the defendants may have benefited from the transfers and that key factual issues, including knowledge and participation in the alleged scheme, required assessment at trial.

Summary judgment was therefore inappropriate and the claims were allowed to proceed to trial.

In CCAA restructuring proceedings, the applicants sought approval of a key employee retention plan (KERP) for 23 management employees and a related charge securing payment obligations.

Unions opposed the motion, arguing insufficient disclosure, excessive compensation, and lack of consultation.

The court held that s. 11 of the Companies’ Creditors Arrangement Act provides jurisdiction to approve a KERP and applied established factors including the importance of management continuity, support from the monitor and secured creditors, and the business judgment of the board.

Finding the participants critical to the restructuring and the process for establishing the KERP robust, the court approved the plan and associated charge.

The court also granted a sealing order over confidential information identifying participants and compensation amounts.

Following dismissal of a motion seeking production of documents in insolvency proceedings under the Companies’ Creditors Arrangement Act, the court determined the quantum of costs payable to the successful parties.

Applying the reasonableness principle and the factors in Rule 57.01 of the Rules of Civil Procedure, the court assessed costs claimed by the monitor, the creditors’ committee, and the applicants.

The court rejected arguments that certain participants should receive reduced or no costs and instead fixed reasonable amounts reflecting their participation in the motion.

Costs were awarded to each successful party and ordered payable within 30 days.

The moving party sought summary judgment recognizing and enforcing a United States District Court judgment from Indiana exceeding US$46 million.

The responding parties argued the judgment was not final because an appeal was pending and alleged a denial of natural justice based on the alleged mental incompetence of one defendant during the foreign trial.

The court held that a foreign judgment is final for enforcement purposes when the foreign court has no power to vary or rescind it, even if an appeal is pending and no stay of enforcement exists.

The court further held that the enforcing court’s role is limited to assessing procedural fairness rather than re‑litigating substantive issues such as competence at trial.

The Indiana judgment was recognized and enforced in Ontario, subject to an interim stay of enforcement pending developments in the foreign appeal.

In the context of CCAA proceedings, the moving party sought an order requiring the Monitor to disclose all information and documents it considered when reviewing proofs of claim submitted by another creditor group.

The moving party intended to use this information at a claims hearing to argue that the claims officer should apply the same standard of proof used by the Monitor.

The court dismissed the motion, finding that the roles of the Monitor and the claims officer under the claims procedure order were fundamentally different, and the request constituted an impermissible collateral attack on that order.

Furthermore, the court noted that comparing claims would result in an unnecessary trial within a trial and risk disclosing confidential lending practices.

Following two trials in a commercial dispute, the successful party sought costs on a substantial indemnity basis.

The court held that allegations by the opposing party that a shareholders’ agreement was a fraudulent forgery were unsupported and justified elevated costs to the end of the first trial.

Costs thereafter were awarded on a partial indemnity basis because the second trial concerned only the quantum payable.

The court reviewed objections to time entries and disbursements and rejected most reductions, finding the work and rates generally reasonable.

A global adjustment was made to account for limited overlap between successive counsel.

Following earlier reasons ordering a buy‑out of a shareholder’s interests in two corporations for $640,000, the court addressed the appropriate start date for pre‑judgment interest.

The court reviewed the procedural history and determined that the buy‑out claim had not been pursued at the first trial and only crystallized when the court permitted the claim to proceed on April 11, 2013.

Accordingly, the cause of action for the buy‑out arose on that date.

Pre‑judgment interest was ordered to run from April 11, 2013 at the applicable quarterly rate.

Post‑judgment interest was set at 2% per annum.

The applicant sought court sanction of a plan of compromise and arrangement under the Companies’ Creditors Arrangement Act to resolve extensive litigation arising from the audit of Castor Holdings Ltd. The plan involved contributions from partners, insurers, and related entities totaling approximately $220 million and included third‑party releases.

A creditor group opposed the sanction, arguing that the releases violated Quebec civil law and that the claims process was unfair.

The court rejected these objections, finding the expert evidence unreliable, confirming that federal insolvency law permits third‑party releases notwithstanding provincial law, and concluding the plan was fair and reasonable given overwhelming creditor approval.

The plan was sanctioned.

The plaintiffs sought a Mareva injunction freezing assets of an individual defendant alleged to have received fraudulent transfers from a corporate defendant.

The court accepted that the plaintiffs had established a strong prima facie case that certain transfers constituted fraudulent conveyances and that judgment in related U.S. proceedings was likely.

However, the evidence failed to demonstrate the existence of assets in Ontario or a current risk of dissipation within the jurisdiction.

The court concluded that a Mareva injunction cannot be used as a tool to investigate whether assets exist.

Because the applicants could not satisfy the jurisdictional asset and dissipation requirements, the motion was dismissed.

The plaintiffs sought a Mareva injunction against the assets of the defendants, specifically a biodiesel plant owned by Great Lakes Biodiesel Inc., alleging that funds were fraudulently conveyed by Verdeo Inc. to the defendants to fund the plant's construction.

In the alternative, the plaintiffs sought interim relief under the oppression provisions of the Business Corporations Act or a certificate of pending litigation.

The court dismissed the motions, finding that the plaintiffs failed to establish a strong prima facie case of a fraudulent conveyance from the intermediary corporations to Great Lakes Biodiesel Inc., and that the balance of convenience did not favour a certificate of pending litigation.

The moving defendants sought to lift restrictions imposed by an earlier order preventing them from disposing of or encumbering property and related equipment pending a motion for a Mareva injunction.

The court characterized the prior order as a consent order reflecting an agreement between the parties, with undertakings that had expired but were subject to extension pending further order.

Applying the RJR‑MacDonald test for injunctive relief, the court found that the plaintiffs had established a serious issue to be tried regarding alleged fraudulent conveyances under the Fraudulent Conveyances Act.

The court also found a real possibility of irreparable harm if the property were encumbered to secure existing liabilities.

The balance of convenience favoured maintaining the restrictions, subject to a limited exception permitting encumbrances for bona fide new financing used in the ordinary course of business.

The defendant bank moved to dismiss an action alleging fraudulent and negligent misrepresentation on the basis that the plaintiff breached the deemed undertaking rule under Rule 30.1 of the Rules of Civil Procedure by using documentary productions obtained in related litigation to commence a separate claim.

The court held that the plaintiff had indeed used documents obtained through discovery in the earlier proceeding to inform and support its decision to initiate the new action, thereby breaching the deemed undertaking rule.

However, considering the substantial overlap in parties, issues, and factual matrix between the two proceedings, and the minimal prejudice to the producing party, the court granted retroactive relief from the rule.

The court dismissed the bank’s motion to dismiss or stay the action but allowed the plaintiff limited permission to use the discovery materials in the new action.

Costs were awarded against the plaintiff due to its failure to seek leave before using the materials and its lack of candour in case management proceedings.