Mark Dunn

The Proposal Trustee brought a motion to compel the Proposal Sponsor to fund the Trustee's continuing work to resolve outstanding proofs of claim, specifically the Athanasoulis Claim, via a two-phase arbitration.

The Sponsor objected to funding phase 2 of the arbitration, arguing it was an improper delegation of the Trustee's duties under s. 135 of the BIA.

The court agreed with the Sponsor, finding that while phase 1 (fact-finding) was acceptable, phase 2 (final adjudication of damages) improperly delegated the Trustee's statutory responsibility to determine and value the claim.

The Sponsor was not ordered to fund phase 2 of the arbitration but remains obligated to fund the Trustee's reasonable expenses to determine the claim through an alternative process.

The landlord applied for a writ of possession and to terminate a commercial lease, while the tenant applied for a declaration that the termination was invalid.

The dispute centered on the allocation of realty taxes and occupancy costs.

The court found that while the landlord's method of allocating taxes by square footage was a reasonable exercise of its contractual discretion, it could not charge the tenant for taxes related to the parking garage.

Furthermore, the landlord was not entitled to terminate the lease because it had previously agreed to defer tax discussions and had failed to provide the required annual estimates and reconciliations for occupancy costs.

The court also held that, in the alternative, the tenant would be entitled to relief from forfeiture.

The plaintiff successfully moved for an interlocutory injunction to prevent the defendant landlord from re-entering the leased premises.

The parties could not agree on costs.

The plaintiff sought costs payable immediately, arguing the defendant's conduct forced the urgent motion.

The defendant argued costs should be in the cause.

The court held that because the merits of the case would be decided shortly at an upcoming application, and most of the evidence on the motion related to the merits, the costs of the motion should be reserved to the judge hearing the application.

The plaintiff tenant sought an interlocutory injunction to restrain the defendant landlord from exercising a right of re-entry over leased commercial premises.

A dispute had arisen regarding the share of realty taxes payable by the plaintiff, and the defendant had issued a notice of default and attempted to re-enter the premises.

Applying the RJR-MacDonald test, the court found a serious issue to be tried regarding contractual interpretation, irreparable harm to the plaintiff's business and reputation if locked out, and a balance of convenience favouring the plaintiff.

The motion for an interlocutory injunction was granted.

The applicant tenant sought a declaration that it validly renewed its commercial lease for a five-year term.

The respondent landlord argued the renewal was invalid because the tenant was in default of its obligations to pay common area maintenance and realty taxes when it gave notice.

The court found that the parties had deviated from the strict payment terms of the lease for years, and the landlord could not retroactively assert a default without providing notice.

Furthermore, the lease contained a tenant-friendly renewal clause that allowed the tenant to cure any default and renew even after the initial deadline had passed.

The court granted the declaration that the lease was validly renewed.

In a CCAA proceeding involving a condominium project, the debtor sought to disclaim pre-sale agreements with unit purchasers.

The purchasers brought a motion for the production of an unredacted appraisal report referenced in the debtor's affidavit.

The court held that while the mandatory production requirement under Rule 30.04(2) is subject to discretion in CCAA proceedings, fairness and transparency required production of the unredacted report to the purchasers, subject to a non-disclosure agreement.

Cross-motions by a contingent creditor and real estate brokers for production of the reports were dismissed due to their lesser need and potential conflicts of interest.

Following a trial where the plaintiff law firm successfully obtained a permanent injunction preventing the defendant from disseminating defamatory allegations, the court addressed the continuation of a sealing order and costs.

The court held that the sealing order over the general court record must continue to protect a third party, but lifted the sealing order over the reasons for judgment, finding no serious risk to the plaintiff given their complete vindication.

The court awarded the plaintiff substantial indemnity costs of $1,217,365.68 due to the defendant's reprehensible conduct in making unproven allegations of criminal fraud and dishonesty with malice.

The plaintiff law firm brought a motion for an order excluding the public from the trial of its action against the defendant and prohibiting disclosure of information relating to the action.

The plaintiff sought a permanent injunction preventing the defendant from publishing allegedly defamatory statements.

The court dismissed the request for an in camera trial, finding it was not necessary to prevent a serious risk to the proper administration of justice, as the allegations were already in the public domain.

Instead, the court ordered a limited publication ban directed at the defamatory statements and continued an existing sealing order.

The applicant, standing in the shoes of a bankrupt corporation, sought a declaration that four properties registered in the names of the respondents (former shareholders) were held on resulting trust for the corporation.

The respondents claimed they purchased the properties personally.

The court found the respondents' evidence regarding their intentions and the corporate accounting to be unreliable and self-serving.

The court held that the corporation paid for the properties, maintained them, and acted as the owner throughout, thereby establishing a resulting trust in favour of the applicant.

The court-appointed Manager moved for approval of its fees, its counsel's fees, and a proposed Fee Allocation Methodology to distribute the costs among various properties in a complex real estate receivership.

Several mortgagees and lien claimants opposed the fee approval and the allocation methodology, arguing that time was not docketed on a property-by-property basis and that the methodology was unfair.

The court approved the fees and the methodology, finding that strict property-by-property accounting would be cost-prohibitive and that the proposed allocation was fair and equitable.

The court also rejected arguments that the Manager's charge should be subordinated to prior liens or subject to the doctrine of marshalling.