Mark Sheeley

The decision concerns the approval of a reverse vesting order (RVO) in the context of insolvency proceedings under the Companies' Creditors Arrangement Act (CCAA).

The Court-appointed Monitor sought approval for a transaction involving the sale of all shares of the Purchased Companies to North Mill Equipment Finance LLC, the granting of related releases, a sealing order, and an extension of the stay of proceedings.

The court reviewed the necessity and fairness of the RVO structure, the process leading to the transaction, and the impact on stakeholders, ultimately granting the relief sought.

The Monitor, FTI Consulting Canada Inc., brought a motion for an approval and vesting order in respect of the Purchased Assets and the sale thereof to Vault or an affiliate pursuant to the Rifco Asset Purchase Agreement, and for a stay extension order.

The Court approved the Rifco APA and the AVO, finding the process reasonable, the requirements of the Companies' Creditors Arrangement Act satisfied, and the transaction in the best interests of stakeholders.

The stay extension was also granted.

The appellants, small and mid-size businesses, appealed a class action decision regarding business interruption insurance claims stemming from the COVID-19 pandemic.

They sought coverage for revenue losses, arguing that the presence of SARS-CoV-2 or civil authority orders constituted "physical loss or damage" to their property under their insurance policies.

The Court of Appeal upheld the trial judge's finding that neither the virus's presence nor the civil authority orders met the "physical loss or damage" criteria for business interruption coverage.

The appeal was dismissed, and costs were awarded to the respondents.

The appellant bank appealed reassessments denying GST/HST rebates for amounts paid to a loyalty program operator.

The bank argued that the reward points it purchased were 'gift certificates' under section 181.2 of the Excise Tax Act, meaning no GST should have been charged.

The Tax Court of Canada found that the predominant element of the supply was the reward points, not marketing services.

However, the Court concluded that the reward points were not gift certificates because they lacked a stated monetary value, were not freely transferable, and required the accumulation of more points to be used.

The appeals were dismissed.

The Appellant appealed reassessments denying input tax credits for HST paid to employment agencies that provided temporary workers.

The Minister argued the agencies were incapable of providing the services and the Appellant failed to meet documentary requirements.

The Tax Court of Canada allowed the appeal, finding that the agencies did provide the services and the Appellant's records satisfied the documentary requirements under the Excise Tax Act.

The plaintiff sought damages from the defendant, Economical Mutual Insurance Company, alleging a breach of contractual duty of honest performance in the denial of a mutual homeowners insurance policy.

The plaintiff claimed entitlement to a payment received by mutual policyholders during the company's demutualization process.

The court found that the plaintiff's application material did not meet the defendant's underwriting standards for a mutual policy, specifically regarding a two-family dwelling with a rented basement suite.

The court dismissed the plaintiff's claim, finding no breach of the contractual duty of honest dealings.

The plaintiffs, representing a class of small to medium-sized businesses, sought coverage under their business interruption insurance policies for losses sustained due to the COVID-19 pandemic and related civil authority orders.

The court held a common issues trial to determine whether the presence of the SARS-CoV-2 virus or government lockdown orders could cause 'physical loss or damage to property' within the meaning of the policies.

The court concluded that the virus does not physically alter or damage inanimate surfaces, and that the loss of use of the premises due to government orders does not constitute physical loss or damage.

Consequently, the court answered the certified common issues in the negative, finding no coverage under the business interruption provisions.

The applicant sought to overturn an arbitrator's decision assuming jurisdiction over a business dispute between co-tenants of a real estate development project.

The parties were deadlocked on whether the project should include a hotel component.

The arbitrator found he had jurisdiction under a broad arbitration clause.

The Superior Court of Justice held that the dispute was a non-legal business decision that did not arise under the agreement, as the agreement required unanimous decision-making and did not provide a standard of review for this type of dispute.

The court set aside the arbitrator's decision, finding he lacked jurisdiction.

The defendant, First Data Canada Ltd. ("FD"), brought a motion for leave to amend its Third Party Claim against Vantiv Integrated Payments entities ("Vantiv").

The proposed amendments included new allegations regarding Vantiv's use of an incorrect merchant ID number and an alleged agency relationship between the plaintiff and Vantiv.

Vantiv opposed, arguing the amendments introduced new, statute-barred causes of action.

The court applied the principles for amending pleadings, emphasizing a generous, factually-oriented approach.

It found that the proposed amendments were additional facts supporting the original negligence claim and part of the same factual matrix, rather than new causes of action, even if some allegations were inconsistent with the original claim.

Leave was granted in part, allowing the amendments related to the merchant ID and agency, but requiring FD to address inconsistent allegations.

Winterland Airfield Holdings Ltd. appealed a Superior Court judgment that granted Collingwood Aviation Partners Ltd. (CAPL) declarations of unimpeded access to airport lands and exemption from user fees.

The Court of Appeal dismissed the appeal, affirming the application judge's interpretation of an Operating Agreement and finding of an implied easement for unimpeded access.

The court also upheld the finding that Winterland could not charge user fees for this access and that Winterland failed to prove CAPL was underinsured.

The defendants in a certified class action regarding COVID-19 business interruption insurance claims brought a motion seeking joint adjudication and common case management of common questions across approximately 79 overlapping proceedings.

The motion was opposed by several plaintiffs in individual actions who wished to proceed independently.

The court dismissed the motion, affording deference to a prior case management decision that declined to stay the individual actions, and finding that forcing joint adjudication would inappropriately undermine the plaintiffs' right to opt out of the class proceeding and cause undue delay.

The appellant, Microsoft Canada Inc., appealed a trial decision that awarded the respondent, a former employee, unvested stock awards after his termination without cause.

The trial judge had found the termination provisions in the Stock Award Agreement unenforceable because they were "harsh and oppressive" and not brought to the respondent's attention.

The Court of Appeal allowed the appeal, finding that the trial judge erred in concluding the respondent received no notice, as the respondent had expressly agreed to the terms for 16 years by clicking an acceptance box, despite consciously choosing not to read the agreement.

Following the dismissal of the defendant insurers' motion to temporarily stay 17 individual actions pending the determination of certification in a class proceeding, the successful plaintiffs sought costs on a partial indemnity scale.

The plaintiffs requested $86,589, which the court found excessive for a relatively simple stay motion.

Applying the factors in Rule 57.01(1) and considering proportionality, the court fixed costs at $35,000 all-inclusive, payable by the defendant insurers.

The defendant insurers brought a motion to temporarily stay 17 individual actions for COVID-19 business interruption losses pending the certification of a related class action.

The court dismissed the motion, finding that while there was overlap in issues and facts, staying the individual actions would cause significant injustice and prejudice to the plaintiffs, who had legitimate reasons for pursuing their claims individually and expeditiously.

The applicants sought to extend an interim Mareva injunction restraining the United Republic of Tanzania from removing a newly purchased aircraft from Ontario, pending an application to recognize and enforce an international arbitral award.

Tanzania opposed the extension, arguing sovereign immunity, lack of full disclosure, and failure to meet the Mareva test.

The court rejected Tanzania's arguments, finding that by signing a Bilateral Investment Treaty and agreeing to UNCITRAL rules, Tanzania consented to interim measures.

The court extended the injunction, holding that the applicants had a strong prima facie case and the balance of convenience favoured them.

The Ontario Securities Commission approved a settlement agreement between Staff and Royal Bank of Canada (RBC) regarding allegations of supervisory inadequacies in RBC's foreign exchange (FX) trading business from 2011 to 2013.

Staff alleged that RBC failed to promote a culture of compliance, allowing FX traders to inappropriately share confidential customer information with competitors in electronic chat rooms.

RBC acknowledged the conduct was contrary to the public interest, engaged in significant remediation efforts, and agreed to make a voluntary payment of $13,552,000 and pay $800,000 in costs.

The Commission found the settlement to be in the public interest.

The applicant employer brought a motion before a single judge of the Divisional Court for an order in the nature of certiorari to quash an interlocutory decision of the Ontario Labour Relations Board.

The respondent union consented to the order, but the Board opposed it.

The single judge determined she lacked jurisdiction to grant a final order quashing the decision, as such relief must be granted by a three-judge panel of the Divisional Court under the Judicial Review Procedure Act and the Courts of Justice Act.

The court also noted that quashing an administrative decision requires a review of the merits, even on consent.

The motion was adjourned to a full panel.

The Corporation of the City of Sarnia brought a motion seeking to set aside or vary a previous decision, declare an equitable right to indemnity, and obtain an interim mandatory order against Bluewater Health regarding the maintenance of the Mitton site.

The core issue was whether the court had jurisdiction to hear the motion under Rule 59.06, given that the City was attempting to introduce new causes of action (tort claims) that were not pleaded in the original application, which was premised on a trust relationship.

The court found that it lacked jurisdiction, emphasizing the principle of finality in litigation and that re-opening a case for new arguments would foster litigation in stages, thus dismissing the motion.

The City of Sarnia applied for a declaration that it held legal title to the "Mitton site" properties in trust for Bluewater Health, either as a bare trust or a constructive trust, and sought an equitable right to indemnity for ongoing maintenance costs.

The court dismissed the application, finding no certainty of intention to establish a bare trust from the relevant statutes (1920 Act and 1989 Act) or the parties' conduct.

Furthermore, the court found no basis for a constructive trust, as the City was seeking to impose a burden (decommissioning costs) rather than remedy an unjust enrichment or condemn a wrongful act by Bluewater.

The court emphasized that constructive trusts are typically used to provide a proprietary remedy for a party's loss or to prevent wrongful gain, not to transfer liabilities.

HSBC Bank Canada moved to dismiss Panther Film Services Inc.'s action for delay, which had been outstanding for 12 years.

Panther brought a cross-motion to restore the action to the trial list.

The court applied the three-part test for dismissal for delay: inordinate, inexcusable, and substantial risk to a fair trial.

While the delay was inordinate and inexcusable (Panther's arguments regarding shared delay and third-party settlement negotiations were rejected), the court found that Panther successfully rebutted the presumption of prejudice by demonstrating that documentary evidence was preserved and key witnesses were available, making it primarily a documents case.

The motion to dismiss was dismissed, and the cross-motion to restore was granted, with an order for further security for costs against Panther.