Matthew Ian Milne-Smith

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.

A reference to the Court of Appeal for Ontario concerning whether legal online gaming and sports betting would remain lawful under the Criminal Code if users were permitted to participate in games and betting involving individuals outside of Canada.

The majority (Tulloch C.J.O., Gillese, Hourigan and Dawe JJ.A.) answered affirmatively, finding that section 207(1)(a) of the Criminal Code permits Ontario to conduct and manage a lottery scheme with international pooled liquidity, provided Ontario continues to conduct and manage the Ontario-based aspects of the scheme in accordance with provincial law.

The majority rejected the application of the real and substantial connection test and distinguished the Earth Future decisions.

Van Rensburg J.A. dissented, arguing that the Proposed Model would contravene the Criminal Code because it would require Ontario to conduct and manage aspects of the lottery scheme outside Ontario's territorial boundaries, contrary to the plain meaning of "in that province" in section 207(1)(a).

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 plaintiff sought certification of a class action against four major airlines, alleging a conspiracy to fix prices and suppress the supply of transborder air travel between Canada and the United States.

The court dismissed the certification motion, finding that the pleadings failed to disclose a reasonable cause of action as they contained only bald, unsupported allegations of a conspiracy without material facts.

The court also found no basis in fact for the proposed common issues, noting that the plaintiff's reliance on parallel U.S. litigation regarding domestic travel was insufficient to support a conspiracy in the transborder market.

Furthermore, the plaintiff's expert methodology for calculating class-wide loss was deemed purely hypothetical, and the representative plaintiff was found inadequate as she purchased her ticket using loyalty points rather than directly from the defendants.

This costs endorsement addresses the appropriate scale and quantum of costs following a trial between Heywood Innovative Solutions Inc. and The State Group Inc. regarding unpaid invoices and a counterclaim for damages.

The court found divided success, with Heywood more successful overall, and awarded partial indemnity costs and disbursements, but at a significantly reduced amount due to concerns about proportionality and litigation conduct.

The plaintiff, Heywood Innovative Solutions Inc., brought an action against the defendant, The State Group Inc., seeking payment of outstanding invoices for pipeline coating inspection services.

The defendant counterclaimed, arguing that the plaintiff's failure to provide daily inspection reports constituted a fundamental breach of contract that deprived them of the contract's benefit.

The court found that while the contract did require the daily reports and the plaintiff breached this term, it did not amount to a fundamental breach.

Consequently, the court ordered the defendant to pay the outstanding invoices, subject to a set-off for damages caused by the plaintiff's breach, resulting in a net award of $164,577.54 to the plaintiff.

The Court of Appeal for Ontario heard motions for leave to adduce evidence and for a confidentiality order in the context of a reference regarding the legality of an online provincial lottery scheme permitting international play.

The court granted leave to the Attorney General of British Columbia and the Canadian Lottery Coalition Members to file their proposed evidence, finding it potentially helpful for the reference panel.

The court dismissed the Canadian Gaming Association's motion for a confidentiality order, ruling that alleged reputational harm was a private interest insufficient to override court openness, especially as the information was largely public.

This appeal arose from two actions tried together concerning breaches of a license agreement and fiduciary duties related to powder-coating business ventures.

The trial judge found that Robert Langlois breached a License Agreement and fiduciary duties to the "ACS plaintiffs" (7868073 Canada Ltd. et al.), with Jeffrey Sugar and Gary Sugar knowingly assisting.

Profits were disgorged to the ACS plaintiffs, and a separate action by Gary Sugar was dismissed as moot.

The appellants (Gary Sugar and the "Langlois appellants") challenged the trial judge's findings on the License Agreement's validity and termination, the existence and continuation of fiduciary duties, and the misappropriation of corporate opportunities.

The ACS plaintiffs cross-appealed the costs award.

The Court of Appeal dismissed all appeals and denied leave to cross-appeal costs, affirming the trial judge's conclusions that the License Agreement was valid and not terminated, that fiduciary duties continued, and that corporate opportunities were misappropriated.

The defendants by counterclaim (West Face Capital Inc., Gregory Boland, and Bruce Langstaff) moved for a Mareva injunction to prevent the plaintiffs by counterclaim (The Catalyst Capital Group Inc., Callidus Capital Corporation, and Newton Glassman) from removing assets from Ontario.

The moving parties alleged that Mr. Glassman was relocating to the Bahamas and dissipating assets to avoid potential judgments arising from a massive corporate espionage and defamation campaign.

The court found that while the moving parties established a strong prima facie case of deceitful and tortious conduct by Mr. Glassman, they failed to prove a real risk that assets were being removed with the specific intent to defeat creditors.

The court also found the moving parties delayed in bringing the motion and failed to establish irreparable harm.

The motions for a Mareva injunction were dismissed.

This is an appeal from a motion judge's decision dismissing the plaintiffs' motion to amend their pleadings in a class action alleging a multi-bank conspiracy to fix gold and silver prices and engage in 'spoofing'.

The motion judge had found the proposed amendments time-barred or improper for joinder.

The Court of Appeal allowed the appeal, finding that the motion judge erred in law by treating amendments as new causes of action when they were alternative theories based on existing facts, and by misapplying the 'actual knowledge' standard for limitation periods.

The Court also found a palpable and overriding error in the motion judge's assessment of JP Morgan's joinder, concluding that the CFTC order did not preclude conspiratorial spoofing allegations.

The amendments were allowed, with the possibility for some respondents to plead a limitations defence at trial.

Rogers Communications Canada Inc. sought an interlocutory injunction and a sealing order against TELUS Communications Inc. The core dispute revolved around whether Rogers' customers, when roaming on the TELUS network, should display "Rogers-EXT" or "TELUS" as the network identifier (NID).

Rogers argued for maintaining the "Rogers-EXT" status quo pending arbitration, while TELUS contended that an expired agreement required "TELUS" display.

The court characterized the injunction sought as mandatory, requiring Rogers to demonstrate a strong prima facie case.

The court found that the NID issue was subject to issue estoppel due to a prior arbitration decision and that Rogers failed to establish a strong prima facie case or irreparable harm.

Consequently, the motion for injunctive relief was dismissed.

The motion for a sealing order for confidential materials, which was unopposed, was granted.

This endorsement addresses the costs of appeals and a cross-appeal that were previously dismissed.

The appellants proposed an aggregate payment of $300,000 as partial indemnity costs.

The respondents sought higher amounts, with one group seeking full indemnity.

The court found the amounts sought by the respondents to be reasonable and proportionate, noting cooperation among counsel and no duplication of effort.

The court awarded specific partial indemnity costs to each respondent group, totaling $549,082.93.

The Limited Partners of YG Limited Partnership appealed a motion judge's order denying them standing to oppose a creditor's (CBRE Limited) appeal of a disallowed proof of claim under s. 135(4) of the Bankruptcy and Insolvency Act (BIA).

The Court of Appeal for Ontario dismissed the appeal, holding that limited partners do not possess a direct economic interest in the claim sufficient for common law standing, nor are they granted standing under s. 135(4) or s. 37 of the BIA.

The court emphasized that the BIA is a complete code designed for expeditious resolution of bankruptcy matters, and equity owners are generally excluded from direct participation in creditor claim appeals.

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.

This is a complex set of appeals concerning anti-SLAPP motions.

The appellants (Catalyst parties) appealed the dismissal of two of their actions (Defamation and Wolfpack actions) and the dismissal of their partial anti-SLAPP motion against a counterclaim.

The court dismissed all appeals, upholding the motion judge's findings that the Catalyst parties' actions were strategic attempts to silence critics, lacked substantial merit against some respondents, and that the public interest in protecting expression outweighed the public interest in continuing the proceedings.

The court also upheld the costs awards against the Catalyst parties, emphasizing the deterrent purpose of anti-SLAPP legislation against abusive litigation.

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 Catalyst Parties brought actions for defamation, injurious falsehood, and conspiracy against various defendants, including media organizations, journalists, short sellers, and former borrowers, arising from the publication of a Wall Street Journal article and whistleblower complaints to the Ontario Securities Commission.

The defendants brought motions to dismiss the actions under the anti-SLAPP provisions of s. 137.1 of the Courts of Justice Act.

The Catalyst Parties also brought a motion to dismiss four discrete defamation claims in a counterclaim brought by the West Face Parties.

The court granted the defendants' motions, dismissing the Defamation Action and the Wolfpack Action, finding that the expressions related to matters of public interest and that the public interest in protecting the expressions outweighed the public interest in allowing the actions to proceed, particularly given the Catalyst Parties' history of aggressive litigation and ethically dubious investigative tactics.

The court dismissed the Catalyst Parties' motion regarding the counterclaim, holding that partial anti-SLAPP motions are not permitted and that the counterclaim had substantial merit.

Following a successful application regarding a restructuring support agreement, the applicants sought full indemnity costs of approximately $1.18 million based on a contractual covenant.

The respondents argued for partial indemnity costs.

The court held that while the contractual provision for full indemnity was an important factor, it did not override the court's discretion to fix an amount that is fair and reasonable.

Finding the hours docketed by the applicants' counsel excessive for a one-issue case, the court awarded a global all-inclusive costs amount of $800,000.

The applicants sought a declaration regarding the interpretation of the 'Outside Date' in a restructuring support agreement.

The respondent, a cannabis company, argued that any extension of the Outside Date required its initiation or consent.

The court found that the plain and ordinary meaning of the agreement allowed the lenders to automatically extend the Outside Date upon their written consent, acting reasonably, without the need for the respondent's consent.

The court granted the declaration sought by the applicants.

The proposed intervener, a shareholder of the respondent corporation and leader of an investor group, brought a motion for leave to intervene as an added party in an application concerning the extension of an outside date for a recapitalization transaction.

The court dismissed the motion, finding that the proposed intervener's financial interest in the outcome did not constitute a direct interest in the subject matter of the private commercial dispute.

Furthermore, the court held that the proposed intervener's intended evidence regarding foreign regulatory law would not make a useful contribution to the resolution of the proceeding.