Matthew P. Gottlieb

Rogers appealed a partial arbitral award regarding its distribution agreement with Glentel, which it co-owns with Bell.

The arbitrator had ruled that Rogers could not require Glentel to offer a Rogers Bank credit card bundled with telecommunications services, nor pay incremental commissions for it, as it was not an 'ancillary service' under the agreement.

The Superior Court determined that the appellate standard of review applies to statutory appeals under the Arbitration Act, 1991, following Vavilov.

Applying this standard, the court found no extricable errors of law or palpable and overriding errors in the arbitrator's contractual interpretation or jurisdictional scope.

The appeal was dismissed.

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 Opposing Landlords sought costs after successfully opposing the debtor Applicants' motion to assign 25 commercial leases to a third party in a CCAA proceeding.

The court found that the dispute was a classic adversarial proceeding, entitling the successful landlords to costs.

The court awarded partial indemnity costs to the landlords, including additional costs to Ivanhoe Cambridge for opposing ipso facto relief.

However, the court deferred payment of the costs until the end of the CCAA proceeding to avoid unfairly prejudicing the secured creditors' collateral before priorities are finally determined.

The plaintiff insurance brokerage sought an interlocutory injunction to prohibit a former employee from accepting business from its clients.

The defendant admitted to forwarding confidential client information to her personal email before resigning to join a competitor.

While the court found a serious issue to be tried regarding the breach of employment obligations, it concluded the plaintiff failed to establish irreparable harm, as existing court orders already restrained the misuse of confidential information and any potential loss of revenue could be quantified in damages.

The balance of convenience also favoured the defendant.

The motion for further injunctive relief was dismissed.

Rogers Communications Inc. brought an unopposed motion for a sealing order and to file a redacted record in its appeal of a confidential arbitration award involving BCE Inc. and Glentel Inc. The court dismissed the motion, finding that Rogers failed to meet the strict test for limiting the open court principle set out in Sherman Estate.

The court held that merely treating agreements as confidential in a private arbitration does not establish a serious risk to an important public interest justifying a sealing order in a public court proceeding.

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 moving parties brought a motion for leave to appeal three decisions of the lower court judge.

The Divisional Court dismissed the motion for leave to appeal.

As the responding parties failed to upload costs submissions as required under the Consolidated Practice Direction, the court made no order as to costs.

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 applicant, Huck Glove Company Inc., sought payment of a Bonus Density Fee under an Agreement of Purchase and Sale for a property sold to the respondents.

The respondents argued that the claim was statute-barred under the Limitations Act, 2002, as the site plan approval that triggered the payment occurred in February 2019, but the application was not filed until April 2023.

The applicant contended that it only discovered the claim in December 2021 when the respondents explicitly denied that the fee was owing.

The court dismissed the application, holding that a reasonable person in the applicant's circumstances would have discovered the claim at the time of site plan approval or when construction commenced in 2019.

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.