Mark Samuel Dunn

In an ongoing insolvency proceeding, a creditor whose $25 million profit share claim was valued at zero by the proposal trustee brought a motion seeking production of pre-report communications between the trustee and the experts hired by the trustee to appraise the claim.

The moving party argued that the communications were relevant to assess whether the trustee improperly influenced the experts or if unstated communications influenced the trustee's valuation.

The court distinguished the request from a demand for the trustee's working file under s. 26 of the BIA, applying civil procedure principles of relevance to order production of the requested communications, subject to redactions for strategy or tactics.

The plaintiffs sold a property to the defendants, taking back a VTB mortgage that was subordinated to a first mortgage via a Standstill Agreement.

When the defendants defaulted on the VTB mortgage, the plaintiffs sued and obtained default judgment.

The defendants moved to stay the action and set aside the default judgment.

The court held that the broad wording of the Standstill Agreement prohibited the plaintiffs from bringing any action to enforce the debt without the first mortgagee's consent, which was not obtained.

The court stayed the action but declined to set aside the default judgment, finding the defendants had no arguable defence on the merits.

In CCAA proceedings arising from a major construction project, the monitor sought an order authorizing release of a contractor-specific holdback notwithstanding the continued construction of the project and the resulting technical inability to satisfy the timing requirements of the construction lien regime.

The court held that s. 11 of the CCAA gave it jurisdiction to deem compliance with statutory preconditions where doing so usefully furthered the remedial objectives of the restructuring, caused no demonstrated prejudice, and preserved the substantive rights of affected stakeholders.

The court also held that it could protect the monitor and CRO from potential personal liability under specified tax statutes for implementing the court-authorized payment, but revised the proposed wording to grant a narrower and more direct liability shield.

The holdback release order was approved with modifications, including removal of an unnecessary overlapping protection.

The applicants, acting as alternative Attorneys for Property, applied for an order declaring the 86-year-old respondent incapable of managing her property and appointing a guardian of property.

The respondent opposed the appointment, arguing she retained capacity to manage her property with assistance and could execute a new power of attorney.

Relying on expert capacity assessments, the court found that while the respondent had mild cognitive impairment and required assistance, she retained the capacity to instruct counsel and to make or revoke a power of attorney.

The court dismissed the application, concluding that the respondent's ability to execute a new power of attorney constituted a less restrictive alternative to guardianship.

The court-appointed Monitor in CCAA proceedings brought a motion to approve a CSA Plan disclaiming 314 of 329 existing condominium sale agreements for an 85-storey tower at 1 Bloor Street West, Toronto, to approve a Deposit Return Protocol for refunding approximately $105 million in insured deposits, and to approve a reconfiguration reducing total residential units to 411.

The Monitor demonstrated that disclaimers would generate incremental proceeds exceeding $200 million by enabling resale at higher market prices under a luxury hotel brand.

The court applied the established three-part test for disclaiming pre-construction sale agreements under s. 32 of the CCAA, finding that the senior secured lenders held first-ranking priority, that failure to disclaim would amount to a preference for purchasers, and that the equities did not support maintaining the existing agreements.

The motion was granted, the Deposit Return Protocol and Monitor's reports were approved, and a sealing order was granted over confidential market analysis appendices.

An appeal from a Superior Court decision regarding the provability of a former employee's profit-sharing claim in the bankruptcy of a real estate development company.

The trustee disallowed the claim on the grounds that it was an equity claim and too contingent and remote.

The appeal judge allowed the appeal, finding the profit-sharing claim was a claim for unliquidated damages for breach of contract, not an equity claim, and was therefore provable.

The Court of Appeal dismissed the appeal, upholding the lower court's decision and confirming that the profit-sharing claim is a provable claim that takes priority over the limited partners' equity claims.

The Court of Appeal for Ontario considered an appeal by 100 Bloor Street West Corporation regarding the calculation of realty taxes and a substantial indemnity costs award in a commercial lease dispute with Barry’s Bootcamp Canada Inc. The court upheld the motion judge’s decision requiring the landlord to use a single, consistent method for calculating realty taxes attributable to both the leased premises and the building’s parking garage, rejecting the landlord’s attempt to “mix-and-match” calculation methods.

However, the court allowed the appeal on costs, finding the original award excessive and reducing it to $300,000 plus disbursements.

The decision clarifies the contractual interpretation of lease provisions granting discretion to landlords and the principles governing costs in complex commercial litigation.

This costs endorsement addresses the outcome of an interlocutory injunction motion brought by The Matter Corporation against Southside Construction Management Limited and others.

The court reviews the partial success of the plaintiff, the divided success of the parties, and the appropriate approach to costs in the context of interim injunctions.

The court ultimately fixes the plaintiff’s partial indemnity costs at $81,074.85, to be payable in the cause, after deducting amounts for unsuccessful relief and for work that will be used in discovery.

The moving party brought a motion for leave to appeal a decision of the Ontario Land Tribunal.

The Divisional Court dismissed the motion for leave to appeal without costs.

The moving party sought to quash the respondent's application for judicial review and motion for leave to appeal an Ontario Land Tribunal decision.

The moving party argued the proceedings were moot due to recent legislative amendments to the Planning Act under Bill 185.

The court dismissed the motion to quash, finding the moving party failed to meet the high threshold of showing the proceedings were manifestly devoid of merit, leaving the statutory interpretation and mootness issues to be decided by the panel hearing the merits.

The Matter Corporation ("Matter Corp.") sought an interlocutory injunction against Southside Construction Management Limited ("Southside"), Vito Frijia, and Wonderland Power Centre Inc. ("Trustee Corporation") regarding a joint venture.

Matter Corp., a 50% beneficial owner, alleged Southside, the managing co-owner, failed to provide disclosure, consult, and seek approval for new development, working capital commitments, and future borrowing after the death of Matter Corp.'s principal.

The court applied the "strong prima facie case" standard for mandatory injunctions.

The court granted the Production Order for existing information and records and the New Development Order requiring Southside's consultation and consent for future development of new commercial and residential space on the Joint Venture Properties.

However, the court dismissed the Production Order for documents that do not exist, the New Development Order for working capital commitments related to existing commercial space, and the Borrowing Order, finding Matter Corp. did not meet the high merits standard for these aspects.

The court found irreparable harm for new development due to irreversible commitments and that the balance of convenience favored Matter Corp. for new development, but Southside for existing space leasing and borrowing.

The applicant sought to schedule a motion for leave to appeal and an application for judicial review from a summary dismissal by the Ontario Land Tribunal.

The applicant requested that the leave motion, appeal, and judicial review be heard together by a single panel, relying on the recent Supreme Court decision in Yatar.

The court ordered that the motion for leave to appeal be heard first by a single judge, to respect the legislative deference implicit in the leave requirement, with the judicial review and potential appeal to follow if leave is granted.

This motion arose from a contentious landlord-tenant relationship, addressing the proper calculation of realty taxes and occupancy expenses, and costs, following a prior application.

The court found the Landlord improperly used inconsistent methods to calculate the Tenant's realty tax allocation.

While declining to rule on occupancy expenses in this motion, the court remained seized of the issue.

Critically, the Landlord was ordered to pay the Tenant substantial indemnity costs for both the original application and this motion, totaling $709,017.39, due to the Landlord's "reprehensible" conduct, including attempting to evict the tenant for an ulterior motive (a better offer from another party) and engaging in vexatious litigation tactics.

The Receiver sought and obtained two orders: a Construction Continuance Order to approve the engagement of a new construction manager (SKYGRiD) and extend a stay of proceedings, and a Lien Regularization Order to establish a court-supervised process for construction lien claims.

The court found jurisdiction under the Bankruptcy and Insolvency Act and the Courts of Justice Act, concluding that the orders were necessary and appropriate to ensure the ongoing construction of "The One" project and to manage lien claims efficiently without prejudicing claimants' substantive rights.

Objections from the former developer (Mizrahi Parties) regarding their own pending motion for fees were acknowledged but did not prevent the approval of the Receiver's requested orders.

In this proposed class action, the plaintiffs sought leave to proceed under the Securities Act and certification as a class action under the Class Proceedings Act, 1992, against Kew Media Group Inc. for statutory and common law misrepresentation.

The alleged misrepresentations concerned Kew's financial health and compliance.

Kew consented to the orders.

The court granted leave to proceed and certification, defining the class and common issues, and appointed plaintiffs' counsel as class counsel.

The appellants, Limited Partners of a debtor in a bankruptcy proposal, appealed an order for directions regarding the process for an appeal of a proof of claim.

The Court of Appeal dismissed the appeal as premature, finding that the motion judge had not made any final orders regarding the appellants' standing in the anticipated claim appeal, but rather had made directions "subject to the discretion of the judge hearing the appeal." The court held that the possibility of influence or an incorrect underlying conclusion on discretionary standing was not a basis for appeal.

The appellant tenant appealed an application judge's declaration that the respondent landlord reasonably exercised its discretion under a commercial lease to allocate realty taxes using a 'Proportionate Share' calculation.

The tenant argued the application judge committed an extricable error of law under the Wastech framework by misidentifying the purpose of the discretionary clause.

The Court of Appeal dismissed the appeal, finding no extricable error of law or palpable and overriding error in the application judge's interpretation of the negotiated lease, and held that the landlord's use of the proportionate share method was reasonable.

The Proposal Trustee sought directions from the court regarding the procedure for determining a complex proof of claim filed by Maria Athanasoulis, comprising a wrongful dismissal claim and a significant profit share claim, within the context of a court-approved proposal under the Bankruptcy and Insolvency Act.

The motion addressed disagreements among stakeholders (Athanasoulis, Sponsor, and Limited Partners) on how to proceed with the claim's determination and subsequent appeal, particularly concerning the scope of evidence, the nature of the appeal (true appeal vs. de novo), and the standing of the Limited Partners.

The court provided detailed directions to ensure procedural fairness and efficiency, deferring the valuation of future-oriented damages until after the provability of the profit share claim is determined on appeal, and limiting the Limited Partners' standing to specific issues.

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.