Matthew Ian Milne-Smith

This motion sought a stay pending leave to appeal an order authorizing the sale of a 51% interest in Downsview Homes Inc. (DHI) within ongoing CCAA proceedings.

The moving party, the Foreign Representative of Urbancorp Inc., argued the sale process should be postponed until a related arbitration regarding a disputed payment was resolved, fearing a chilling effect on potential bids.

The supervising judge had previously dismissed these concerns as speculative.

The Court of Appeal applied the three-part RJR-MacDonald test for a stay, finding the grounds for appeal weak, no irreparable harm to the moving party, and the balance of convenience favoring the respondents (the Monitor and Mattamy Homes Limited, the debtor-in-possession lender).

Consequently, the motion for a stay was dismissed.

The moving parties sought leave to appeal the February 12, 2021 decision of McEwen J. The Divisional Court dismissed the motion for leave to appeal and awarded costs of $5,000 to the respondents.

The moving parties sought leave to appeal the January 11, 2021 decision of Boswell J. The Divisional Court dismissed the motion for leave to appeal and awarded costs to the responding parties.

The defendants in a complex defamation action brought motions for the production of documents related to 'Project Maple Tree', an operation undertaken by foreign investigative agents (including Black Cube) retained by the plaintiffs.

The plaintiffs asserted solicitor-client and litigation privilege over the documents.

The court held that it had jurisdiction to hear the motions despite the stay provision in s. 137.1(5) of the Courts of Justice Act.

The court rejected the claims of solicitor-client privilege, finding the third-party investigators were not essential to the solicitor-client relationship.

The court also rejected the claims of litigation privilege for the vast majority of the documents, finding their dominant purpose was not legitimate litigation and that the 'Blank exception' applied because the agents engaged in improper conduct, including pretext stings on a former judge and opposing party employees.

The representative plaintiff brought a motion to approve a $700,000 settlement in a securities class action against the defendants.

The court approved the settlement, finding it fair and reasonable given the significant risks of litigation and the overlapping U.S. settlement that covered most class members.

The court also approved class counsel's fees and a cy-près distribution of the net settlement funds to two investor protection clinics, as direct distribution was uneconomical.

However, the court denied the representative plaintiff's request for a $15,000 honorarium, finding her contributions did not go beyond what is typically expected, and directed those funds to the cy-près recipients.

The plaintiff brought a motion on consent for leave to proceed with a secondary market misrepresentation claim under the Securities Act and for certification of the action as a class proceeding for settlement purposes.

The parties reached a settlement of $700,000 to resolve allegations that the defendant pharmaceutical company made misrepresentations regarding antitrust investigations, its generic business, and the withdrawal of a product.

The court granted leave, certified the class action for settlement purposes, approved the notices, and appointed class counsel as the notice administrator.

The appellant, a former bank executive, entered into a cash-settled forward contract with a securities dealer shortly before accessing a credit facility secured by the same shares underlying the forward contract.

The appellant characterized losses from the forward contract as income losses on the basis that the contract was speculative, while the Minister reassessed and characterized them as capital losses on the basis that the contract was a hedge of capital shares.

The majority held that the characterization of a derivative contract turns on its purpose, ascertained objectively through linkage analysis, and that the forward contract's nearly perfect neutralization of price fluctuations in the underlying shares, considered alongside the loan and pledge agreements, demonstrated the requisite linkage to constitute a hedge.

The dissent would have restored the trial judge's findings of fact, holding that intent — assessed through both subjective statements and objective manifestations — is necessary to find a hedge, and that the credit facility and securities pledge agreement entered into with a separate entity were irrelevant to the characterization of the forward contract.

Appeal dismissed, Côté J. dissenting.

The Monitor of a CCAA-protected company appealed a motion judge's decision dismissing its motion to disallow a creditor's claim secured by a guarantee.

The creditor, Speedy Electrical Contractors Ltd., had provided a personal loan and performed electrical work for Urbancorp entities.

When Speedy threatened legal proceedings and held a construction lien, the parties entered into a debt extension agreement whereby Speedy agreed to discharge its lien and extend the loan in exchange for a secured guarantee from King Residential Inc. (a related Urbancorp entity) over condominium units.

The Monitor argued the guarantee was a transfer at undervalue under section 96 of the Bankruptcy and Insolvency Act and a fraudulent conveyance under the Fraudulent Conveyances Act.

The motion judge found Speedy and KRI were dealing at arm's length and that fraudulent intent was not established.

The Court of Appeal dismissed the appeal, upholding the motion judge's findings.

Catalyst Capital Group Inc. attempted to acquire VimpelCom Ltd.'s interest in Wind Mobile Corp. but negotiations failed.

During negotiations, a junior analyst employed by Catalyst left to work for West Face Capital Inc., a member of a consortium that subsequently acquired Wind.

Catalyst sued the former employee and West Face for breach of confidence and other claims (the Moyse Action).

The trial judge dismissed the action, finding that no confidential information was communicated and that Catalyst suffered no detriment because its own refusal to agree to a break fee and its insistence on regulatory concessions made the deal impossible.

Catalyst then commenced a second action against the consortium members and others alleging breach of confidence, conspiracy, and inducing breach of contract.

The motion judge dismissed the second action as barred by issue estoppel, cause of action estoppel, and as an abuse of process.

The Court of Appeal upheld the dismissal, finding that Catalyst was attempting to relitigate factual findings from the first action and that it could have advanced all claims in the first proceeding.

Appellants brought a proposed class action alleging that respondents conspired to divide the beer market contrary to section 45(1) of the Competition Act through a Framework Agreement signed in 2000, and that a surcharge levied by Brewers Retail on licensees violated the Liquor Control Act.

The motion judge dismissed the action on the basis that the regulated conduct defence was available to the respondents.

The Liquor Control Act authorized the impugned conduct.

The Ontario legislature subsequently enacted retroactive amendments in 2015 to remove any doubt that the conduct was authorized.

The Court of Appeal upheld the dismissal, finding that the regulated conduct defence insulated the respondents from liability and that retroactive legislation could provide authorization for the defence.

The plaintiffs brought a motion for an order approving a settlement reached with the defendants Morgan Stanley and Morgan Stanley Canada Limited in a class action alleging a conspiracy to fix prices in the foreign exchange market.

The settlement requires the settling defendants to pay USD$2.3 million and provide cooperation in the ongoing prosecution against the remaining defendants.

The court found the settlement to be fair, reasonable, and in the best interests of the class, noting it was in line with previously approved settlements in the proceeding.

The settlement and the previously approved distribution protocol were approved.

The plaintiff, an air charter broker, brought an action against the defendant airline for breach of a restrictive covenant in a Charter Transportation Agreement.

The defendant argued the covenant was unenforceable, sought rectification for unilateral mistake, and relied on an exclusion clause and the unenforceability of a liquidated damages clause.

The court found the restrictive covenant valid and enforceable, denied rectification as the defendant simply failed to read the contract, and held the exclusion clause did not apply to breach of contract damages.

While the liquidated damages clause was struck as a penalty, the court awarded the plaintiff $1,064,636.32 in compensatory damages for lost profits.

The plaintiffs brought a motion to certify a class action for settlement purposes against Morgan Stanley regarding alleged price-fixing in the foreign exchange market.

The court found that the criteria for certification under section 5 of the Class Proceedings Act, 1992 were met, noting that the criteria may be less rigorously applied in a settlement context.

The court approved the settlement agreement, which included a payment of USD$2.3 million by the settling defendant.

This addendum corrects an error in a previous costs decision (2018 ONSC 4862) regarding the amount of costs requested by Brewers Retail Inc. The original decision mistakenly stated Brewers Retail requested $600,000 on a partial indemnity basis, when the correct amount, based on an amended bill of costs, was $744,396.42, all inclusive, comprising fees, HST, and disbursements.

The court confirmed the costs award subject to this correction.

Following the dismissal of the plaintiffs' proposed class action on summary judgment, the successful defendants sought costs on a partial indemnity basis totalling approximately $2.3 million.

The plaintiffs and the Class Proceedings Fund argued that the costs should be reduced to $600,000 in the aggregate, asserting that the case was not complex, was in the public interest, raised novel points of law, and that a large costs award would have a chilling effect on class actions.

The court rejected these arguments, finding that the litigation was primarily commercial, involved complex issues, and that the normal costs rules should apply.

The court awarded the defendants their requested costs, subject to a reduction of one expert witness's fee.

This is a costs decision on appeal from a trial judgment dismissing the appellant's action.

The respondents were entirely successful on appeal and sought costs on a partial indemnity basis.

West Face Capital Inc. sought $250,000 in costs while Brandon Moyse sought $149,905.18.

The appellant argued for reduced costs amounts.

The Court of Appeal awarded West Face $200,000 and Moyse $100,000, both inclusive of disbursements and HST, considering the respondents' complete success, the nature of the appeal involving a large record and detailed factual re-litigation, and costs thrown away due to an unnecessary adjournment.

The appellants, plaintiffs in a proposed class action alleging price-fixing in the foreign exchange market, obtained an ex parte subpoena in the United States under 28 U.S.C. 1782 against a non-party, Bloomberg.

The respondents successfully moved before the case management judge for an order requiring the appellants to obtain authorization under the Ontario Rules of Civil Procedure before taking any steps to enforce the subpoena.

The Divisional Court dismissed the appellants' appeal, finding that the motion judge correctly held that the appellants could not use the U.S. process to circumvent Ontario's strict rules on pre-certification discovery of non-parties, and that the appellants had failed to make full and fair disclosure to the U.S. court.

Appeal from a trial judgment dismissing the appellant's action for misuse of confidential information and spoliation.

The appellant alleged that the respondent West Face Capital Inc. improperly obtained and used confidential information about the appellant's bid to acquire WIND Mobile Inc., allegedly obtained from a former employee who moved to West Face.

The trial judge dismissed all claims, finding that the appellant failed to prove that confidential information was provided to West Face or that any such information was used in West Face's successful competing bid.

The trial judge also found that the appellant's choice to terminate negotiations due to a break fee demand, rather than West Face's competing bid, caused the failure of the appellant's acquisition.

The Court of Appeal upheld the trial judgment and dismissed the appeal, as well as the application for leave to appeal the costs orders.

An appeal from a trial judgment concerning fraudulent misrepresentation and deceit.

The respondents invested over $1 million in a company controlled by the appellant Gardiner, who misrepresented that the company owned and controlled valuable intellectual property (patents, trademarks) when in fact Gardiner personally maintained control.

The trial judge found Gardiner liable for deceit and awarded damages of $2.2 million.

On appeal, the court upheld the finding of deceit against Gardiner but reversed the finding against Armstrong (his wife), reduced the damages award to $1.25 million plus prejudgment interest, and remitted the matter for an accounting of profits earned during the respondents' operation of the business.

This class action involved two motions: approval of three settlements totaling $39.2 million in an FX market price-fixing conspiracy case, and approval of Class Counsel's fees and disbursements.

The court approved the settlements, finding them fair and reasonable given the litigation risks and the stage of the proceedings.

However, the court partially denied Class Counsel's request for $9.8 million in fees, approving only an additional $2 million, citing that the achieved recovery (5 cents on the dollar against a potential $1 billion loss) was respectable but not "very good" and that the claimed litigation risks were somewhat exaggerated given prior regulatory findings and U.S. settlements.

The court emphasized the need for diligence in approving contingency fees in settlements to ensure they are provident for class members, not just counsel.