Matthew Benjamin Lerner

In a landmark CCAA proceeding involving Hudson's Bay Company, the court declined to approve the assignment of 25 major retail department store leases across Canada to a new tenant, Ruby Liu Commercial Investment Corp., despite the transaction representing the highest bid and generating approximately $50 million in net proceeds for creditors.

The court found that the proposed assignee failed to meet the reasonableness standard under section 11.3(3) of the CCAA, particularly regarding its ability to perform the substantial and ongoing obligations under the leases.

The decision emphasizes that section 11.3 is an extraordinary power that must be exercised sparingly, and that the court must balance the interests of all stakeholders, including the contractual counterparties (landlords) who would be compelled into a long-term relationship with an untested and undercapitalized purchaser.

The court also rejected the applicants' arguments that certain lease provisions constituted ipso facto clauses violating the anti-deprivation rule and section 34 of the CCAA.

Self-represented plaintiffs brought a medical malpractice action arising from the care and treatment of their son at Thunder Bay Regional Health Sciences Centre in November 2009.

The defendants brought motions for summary judgment to dismiss the claims against Dr. Jagger, Dr. Nigro, and the Hospital on the basis that the plaintiffs had no expert evidence to support allegations of negligence.

The court granted the motions, finding that the plaintiffs failed to provide expert evidence establishing the standard of care, breach of that standard, and causation.

The court awarded costs to the successful defendants.

In this CCAA proceeding, the court granted multiple orders sought by Hudson's Bay Company and related entities, including approval of lease assignment agreements with YM Inc. and Ivanhoe Cambridge, sealing of confidential bid information, extension of the stay of proceedings to October 31, 2025, and approval of the Monitor's reports and activities.

The court rejected requests for adjournment and conditional distributions, finding the lease monetization process was fair and transparent, and that the proposed transactions represent a positive development for stakeholders.

The court considered whether a 2024 capital call made by the general partner of a real estate development limited partnership was valid under the partnership agreements and the Limited Partnerships Act.

The applicant, Dream Impact, argued the call was invalid and that it had not defaulted, or, alternatively, that any default was cured by other partners' contributions.

The court found the capital call was valid, Dream Impact defaulted by not contributing, but that after the other partners funded Dream Impact’s share and its interest was diluted, there was no continuing default.

The applicant’s put notice was found invalid.

The applicant, HomeLife/Cimerman Real Estate Ltd., sought a declaration that the respondent, Liberty Market Tower Inc., was obliged to pay it a commission in relation to the sale of a condominium unit.

The dispute centered on confusion over which real estate agent represented the purchaser, Mehdi Ajorlou.

The court found that Liberty had a binding agreement with Ajorlou to change the agent of record from Nejad to Ahmadipour, and a binding agreement with HomeLife to register Ahmadipour as the agent of record.

The court ordered Liberty to pay the commission to HomeLife and awarded costs.

The plaintiff, One York Street Inc., brought a motion seeking production of the former counsel's file for the defendants, 2360083 Ontario Limited and LCIL Ltd., and other discovery-related orders.

The defendants had initially pleaded lack of legal advice regarding a lease and its extension, but later withdrew this pleading.

The plaintiff argued that the defendants had waived solicitor-client privilege by asserting affirmative defenses of misrepresentation and placing their state of mind in issue.

The court applied a two-step test for deemed waiver of privilege, finding that the legal advice was relevant to the defendants' reliance on alleged misrepresentations and that the defendants had made the receipt of advice an issue through their pleadings.

The court granted the motion for production of the Fogler's file, deeming privilege waived due to fairness considerations.

The landlords brought a motion for default judgment against their former commercial tenant for breach of a lease agreement.

The court found the tenant liable based on deemed admissions from the statement of claim.

Damages were awarded for arrears of rent, lost future rent (mitigated by re-leasing), re-leasing commission costs, amounts paid to discharge a lien, and amounts paid to a secured creditor.

The court declined to award commission costs from the original lease or the leasehold improvement allowance, deeming them not caused by the breach or a potential windfall.

The appellant, Oslyn Lewis, appealed the dismissal of his action for a real estate commission, which was granted by a motion judge on summary judgment due to the expiry of the limitation period.

The appellant argued that the motion judge erred in finding no tolling agreement, in not allowing him to adduce evidence of psychological incapacity, and in applying the discovery rule.

The Court of Appeal dismissed the appeal, finding no error in the motion judge's decision.

The court affirmed the strict test for tolling agreements, found the fresh evidence regarding incapacity insufficient and inconsistent with the appellant's prior actions, and distinguished the case from situations involving running accounts for limitation purposes.

The appellant's motion to adduce fresh evidence was also dismissed.

The plaintiff, Bay-Yorkville Developments Ltd. (BYDL), brought a motion to consolidate its action against Ferguson-Neudorf Glass Inc. (FNG) with a pre-existing main action involving Toronto Standard Condominium Corporation No. 2282.

FNG opposed the consolidation and sought to schedule a summary judgment motion on limitations grounds.

The court granted the consolidation, finding that the actions shared common questions of law and fact, arose from the same transactions, and that consolidation would avoid multiplicity of proceedings and promote efficiency.

The court further ruled that FNG's summary judgment motion should be heard only after discoveries were completed, emphasizing the need for a comprehensive record in complex construction litigation.

The appellants, a group of subcontractors and a bank, appealed an application judge's decision that rescission of surety bonds might be possible even if it affects innocent third parties.

The bonds were issued by Zurich Insurance Company Ltd. for a large construction project, but Zurich later discovered alleged fraudulent misrepresentations and collusion that induced it to issue the bonds.

The appellants sought a declaration that rescission was unavailable as a matter of law due to the involvement of innocent third parties.

The Court of Appeal dismissed the appeal, affirming that prejudice to third parties is not an absolute bar to rescission, especially in cases of fraudulent misrepresentation, and that such a determination requires a full factual record at trial.

The appellants restructured family trusts, incorporating "Child Corporations" and subscribing for shares without actual payment, leading to a significant tax reassessment by the Canada Revenue Agency (CRA) for taxable benefits.

They sought a declaration from the Superior Court that the shares were invalidly issued under the Ontario Business Corporations Act (OBCA) and an order for rectification of share registers, aiming to negate the tax assessment.

The Superior Court declined jurisdiction, deferring to the Tax Court of Canada, and also indicated it would not have granted the requested relief.

The Court of Appeal upheld the Superior Court's discretionary decision to decline jurisdiction, finding no reviewable error.

The Court emphasized that the primary dispute was between the appellants and the CRA, falling within the Tax Court's specialized expertise, and that the corporate parties did not require a binding order from the Superior Court to resolve internal corporate issues.

This decision concerns the award of costs following a successful application for specific performance of a real estate transaction.

The applicant sought substantial indemnity costs, totaling over $108,000.

The respondents argued the costs were excessive and that they lacked the means to pay.

The court awarded substantial indemnity costs, finding the respondents' conduct throughout the litigation warranted such a sanction.

The judge cited the respondents' actions in raising baseless issues, causing delay and friction, the asymmetrical importance of the issues to the parties, and the advancement of unproved allegations of dishonesty as key factors justifying the award.

The appellants brought a motion to stay a judgment granting specific performance of an agreement of purchase and sale for their commercial property.

The court applied the three-part test for a stay: serious question, irreparable harm, and balance of convenience.

The court found the serious question threshold was met, acknowledged the irreparable harm to the appellants' business, and determined the balance of convenience favoured the appellants if the appeal was expedited.

The motion for a stay was granted, contingent on an expedited appeal schedule, and costs were awarded to the appellants.

The defendant physician brought a Rule 21 motion to strike the claims of the infant plaintiffs (triplets) for "wrongful life." The claims arose from the physician's alleged negligence in prescribing a fertility drug to the mother, leading to multiple births and premature delivery, resulting in the triplets' serious disabilities.

The court, applying established Ontario jurisprudence, found no duty of care owed by the physician to unconceived children, as the alleged negligence occurred prior to conception.

The motion was granted, and the infant plaintiffs' claims were dismissed without leave to amend.

The defendant, Pacific Mortgage Group Inc., brought a motion seeking leave to introduce a late-served expert report from Duff & Phelps in a claim on a promissory note and counterclaim alleging undisclosed liabilities.

The court had previously issued an order precluding the service of expert reports due to the defendant's "cavalier and unacceptable" approach to compliance with the Rules of Civil Procedure.

The motion was opposed by the plaintiff and other parties, who argued that admitting the report would cause prejudice and further delay.

The court applied the three-part test from Gardner v Hann, considering the reason for non-compliance, its effects, and fairness in the circumstances.

Finding no adequate explanation for the delay, significant prejudice to the opposing parties, and a disregard for court orders, the court denied leave to introduce the expert report.

In a medical negligence action concerning the birth of triplets with severe disabilities, the defendant Dr. Benzaquen brought a Rule 21 motion to dismiss the infant plaintiffs' "wrongful life" claims.

The plaintiffs argued the motion required a full evidentiary record and should be heard at trial.

The court determined that Rule 21 motions, which address questions of law on the pleadings, should generally be heard at the earliest date, prior to trial, to potentially dispose of claims or substantially shorten the trial.

The judge directed counsel to schedule the motion for October 2019 and confirmed a new trial date for March 2021, allowing for potential appeals of the motion decision before the lengthy trial.

The applicant, GolfNorth Properties Inc., sought declarations that its June 14 Offer to purchase shares/LPUs was not a "Permitted Offer" under the relevant agreements, thereby invalidating Mill-Gate Holdings Inc.'s exercise of a right of first refusal.

The respondents argued GolfNorth Properties lacked standing and that the June 14 Offer was a Permitted Offer.

The court found that GolfNorth Properties, as a non-party to the agreements, lacked standing due to privity of contract.

Alternatively, the court determined that the definition of "Permitted Offer" was ambiguous and, considering the parties' subsequent conduct, concluded that the June 14 Offer was indeed a Permitted Offer, which validly triggered Mill-Gate's right of first refusal.

The application was dismissed.

The court determined costs for contempt proceedings initiated by Atif Kamran against Dan Andersson and LEO Canada Inc. While Kamran succeeded in having Andersson found in contempt for some breaches, Andersson successfully purged his contempt and resisted many of Kamran's requested penalties.

The court found success was divided, and Kamran's approach to the penalty phase was overly aggressive.

No costs were awarded to LEO Canada Inc. or Geraldine Aquino.

The court awarded Atif Kamran $40,000 in all-inclusive costs from Dan Andersson, on a partial indemnity basis, and dismissed Andersson's cross-motion for costs.

A priority dispute arose between Royal Bank of Canada (RBC), a secured creditor of bankrupt contractor A-1 Asphalt Maintenance Ltd., Guarantee Company of North America (GCNA), a bond company and secured creditor, and certain employees represented by unions.

The central issue was whether funds paid to the receiver by owners, which constituted "trust funds" under section 8 of the Construction Lien Act (CLA), were excluded from the bankrupt's estate available to creditors pursuant to section 67(1)(a) of the Bankruptcy and Insolvency Act (BIA).

The motion judge found the funds were not excluded and were available for distribution.

The Court of Appeal allowed the appeal, holding that provincially created statutory trusts satisfying general principles of trust law are preserved from distribution to ordinary creditors under the BIA.

The Plaintiff and other parties sought costs for an aborted continued pretrial, which was rendered unproductive due to the non-attendance of a principal of the Defendants/Plaintiff by Counterclaim and their counsel, without timely notification.

The court found the non-attendance and lack of notice discourteous and a waste of time for counsel and the court.

Citing Rule 50.12 and 57.01 of the Rules of Civil Procedure and Section 131(1) of the Courts of Justice Act, the court ordered the Defendants/Plaintiff by Counterclaim to pay $12,000 in costs on a substantial indemnity basis.