Matthew P. Gottlieb

The appellants appealed an order striking their pleadings for failure to pay an outstanding costs award of $260,500.

They also sought to file fresh evidence and adjourn the appeal to advance an allegation that the underlying debt resulted from a fraudulent signature.

The court held that the order under appeal was a discretionary decision and found no basis to interfere, particularly given the motion judge's history with the matter.

It further held that the alleged fraud issue was not properly before the court because judgment had already been granted on that issue in an unappealed decision.

The appeal was dismissed with costs.

The applicant sought relief in a motion before the Court of Appeal for Ontario.

The court reviewed the record and applied the governing legal and procedural standards, including deference to factual and discretionary determinations where required.

The matter concluded with the following disposition: Motion dismissed.

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.

The defendants moved for default judgment on their counterclaim for two secured loans totaling approximately $45 million in principal plus interest and protective disbursements.

The plaintiffs' statement of claim and defence to counterclaim had been struck out for failure to pay a costs award.

The court granted judgment on the two loans but reduced the judgment by disallowing $6,105,693.66 in unproven protective disbursements claimed under the second loan.

The court stayed enforcement of the judgment pending the Divisional Court's decision on the plaintiffs' motions for leave to appeal.

The decision addresses motions regarding the appointment of representative counsel for current and former employees and retirees of Hudson’s Bay Company ULC and related entities in ongoing Companies’ Creditors Arrangement Act (CCAA) proceedings.

The Court declined to appoint any of the nominated law firms as representative counsel at this stage, instead appointing the Honourable Herman Wilton-Siegel as an independent third party to evaluate proposals and make a recommendation.

The Court also approved amendments to the Sale and Investment Solicitation Process (SISP) to remove the company’s art and artifact collection from the SISP and to appoint Heffel Gallery Limited to conduct a separate auction for the collection, subject to further court approval of procedures.

The reasons review the legal framework for appointing representative counsel and the importance of balancing stakeholder interests in complex insolvency proceedings.

This costs endorsement addresses the appropriate scale and quantum of costs following the dismissal of an injunction motion brought by Condoman Developments and related parties to restrain enforcement of a $46 million mortgage by Cannect and related defendants.

The court upholds the contractual right to full indemnity costs in favour of the mortgagees, finding the mortgage terms binding and the amount claimed reasonable given the scale and complexity of the litigation.

The court distinguishes prior cases and awards Cannect $268,500 in costs.

This endorsement addresses the aftermath of a dismissed injunction motion by Howard Youhanan and his companies against their mortgagees, Marcus Tzaferis and his companies.

The court clarifies that its interim injunction is no longer in force and that Cannect is free to exercise its mortgage remedies.

The court admonishes Mr. Youhanan for providing false information to the Landlord-Tenant Board regarding the status of the court’s orders, directs him to correct the record, and warns of possible contempt proceedings if such conduct continues.

The plaintiffs, Condoman Developments Inc., 1808176 Ontario Inc., and Howard Youhanan, sought an interlocutory injunction to restrain the defendants, including Cannect International Mortgage Corporation and Marcus Tzaferis, from enforcing mortgage remedies (power of sale) over several Toronto development properties.

The plaintiffs argued the loans were not true loans but equity investments, and that the mortgages were unenforceable.

The court found the evidence and documentation overwhelmingly established the transactions as enforceable loans, not equity investments, and that the plaintiffs were sophisticated parties who knowingly entered into the agreements.

The court dismissed the motion for an injunction, finding no serious issue to be tried, no irreparable harm, and that the balance of convenience favoured the defendants.

This decision sanctions the CCAA Plans of Imperial Tobacco Canada Limited, Imperial Tobacco Company Limited, JTI-Macdonald Corp., and Rothmans, Benson & Hedges Inc., effecting a global settlement of all tobacco-related claims in Canada.

The court reviews the structure, allocation, and fairness of the plans, including the creation of a $1 billion Cy-près Foundation, and addresses objections from social stakeholders.

The court finds the plans fair, reasonable, and in the public interest, and grants the requested relief, including third-party releases and the appointment of plan administrators.

The City of Ottawa appealed a remittal decision that found various provisions of a 1981 Agreement and related contracts governing golf course lands to be inoperative.

The Court of Appeal had previously struck down conveyancing provisions in the agreement for violating the rule against perpetuities.

The application judge held that without these provisions, the remaining obligations to operate a golf course in perpetuity fundamentally altered the parties' original bargain and were therefore inoperative.

The Court of Appeal dismissed the appeal, agreeing that the removal of the conveyancing provisions frustrated the balance of the agreement, rendering all provisions relating to the golf course lands void.

This endorsement addresses the scope and effect of a prior scheduling order regarding the sale of properties subject to a blanket mortgage, clarifying that the Ontario court’s direction did not extend to properties outside Ontario or interfere with a Quebec court’s order authorizing a sale in Montreal.

The court emphasizes the limits of its jurisdiction and the principles of comity and deference to other courts, particularly in the context of cross-jurisdictional property disputes.

The Court of Appeal for Ontario heard a motion to quash a motion for leave to appeal from a Superior Court decision.

The Superior Court had dismissed an application to review an arbitrator's jurisdiction decision, finding the responding parties had waived their right to object.

The Court of Appeal determined it lacked jurisdiction to hear an appeal from the application judge's order, citing s. 17(9) of the Arbitration Act, 1991, which explicitly states there is no appeal from a court's decision on a preliminary question of an arbitrator's jurisdiction.

The court found the arbitrator's jurisdiction ruling was indeed a preliminary question, despite its timing.

Consequently, the motion for leave to appeal was quashed, and costs were awarded to the moving parties.

The moving parties (respondents in the bankruptcy applications) sought to stay the bankruptcy applications brought by the responding party bank.

The bank had demanded repayment of personal lines of credit that were used to fund the moving parties' corporate entities, which were under CCAA protection.

The court granted the stay, finding that the bank was acting as a single creditor without special circumstances justifying a bankruptcy order.

Furthermore, the court held that the claims were captured by the broad stay of proceedings issued in the CCAA proceedings.

CentriLogic appealed a trial order requiring it to pay Infor Financial Inc. damages for a financing fee and trial costs.

The appeal centered on the interpretation of an engagement agreement, specifically whether Infor was entitled to the financing fee and if CentriLogic breached a confidentiality clause by sharing Infor's proprietary materials.

The Court of Appeal dismissed the appeal, upholding the trial judge's findings that CentriLogic breached the agreement and that Infor was entitled to the financing fee based on a commercially reasonable interpretation of the contract.

The court also affirmed the substantial costs award, finding no error in principle.

This supplementary endorsement addresses a request from JTI-Macdonald Corp. regarding the adequacy of notice elements in the Claims Procedure Order within the ongoing Companies' Creditors Arrangement Act (CCAA) proceedings.

The court confirmed its satisfaction that the notice elements in the Claims Procedure Orders are reasonable in the circumstances, addressing an oversight from previous submissions.

The Superior Court of Justice addressed multiple motions within the complex Companies’ Creditors Arrangement Act (CCAA) proceedings of JTI-Macdonald Corp., Imperial Tobacco Canada Limited, Imperial Tobacco Company Limited, and Rothmans, Benson & Hedges Inc. The court granted a stay extension until January 31, 2025, and approved Meeting Orders and Claims Procedure Orders.

These orders facilitate the advancement of comprehensive Plans of Arrangement, developed by the court-appointed Mediator and Monitors, aiming for a Pan-Canadian global settlement of tobacco claims totaling $32.5 billion.

The court found the plans were not "doomed to fail" despite outstanding issues regarding financial allocation among the Tobacco Companies and the creditor status of JTI-Macdonald TM Corp.

The applicants sought a determination that the arbitrator erred in finding jurisdiction over certain relief claimed by the respondents in an ongoing arbitration.

The court found that the applicants had waived their right to object to the arbitrator's jurisdiction through their conduct, including filing a counterclaim and issuing their own notice of demand for arbitration invoking the arbitrator's jurisdiction.

The court dismissed the application, emphasizing that allowing a last-minute jurisdictional challenge after significant participation would undermine the efficiency and benefits of arbitration.

This motion, brought by the Van Essen Companies and Wouter Van Essen, sought to strike evidence, grant judgment, and stay proceedings in a receivership, alleging unauthorized access to their privileged records by the court-appointed Receiver (FTI Consulting Inc.) and the appointing creditor (MBL Administrative Agent II LLC).

The court dismissed the motion, finding that the Van Essen Companies failed to establish that the records were intended to be confidential, as Wouter Van Essen knowingly used a Techlantic email account (a third-party entity he considered arm's length) for business and personal communications, including those with legal counsel, and shared emails with Techlantic's senior officer.

The court concluded that the prerequisite for privilege (confidentiality) was not met, and even if it were, privilege was waived by the knowing use of a third-party server and delayed notification to the Receiver.

The Moving Parties (First Nations and Municipalities) sought to stay the implementation of a $150 million settlement between Purdue Canada and Canadian Governments, arguing it might be unlawful, prejudicial, preferential, or an abuse of process, and sought financial disclosure from Purdue Canada.

The court dismissed the motion, finding it lacked a basis to compel disclosure or stay the settlement.

The court affirmed its jurisdiction over Purdue Canada was limited to the CCAA recognition proceedings, not general supervision, and found no evidence of bad faith or insolvency to warrant the requested orders.