Matthew J. Halpin

The respondent brought a motion under the Federal Courts Rules to reconsider or vary an earlier order that had declined to rule on the admissibility of certain cross-examination questions due to a pending objection in a related proceeding.

Following a decision in the related proceeding resolving the objection, the respondent sought to compel the applicant to answer the questions.

The Federal Court held that the related decision constituted a new matter discovered subsequent to the making of the order under Rule 399(2)(a), and varied the order to require the applicant to answer the questions.

The applicant landlord sought an order declaring that the respondent tenant failed to validly exercise an option to release a portion of its leased premises.

The lease required the tenant to provide written confirmation from the federal government of a loss of expected funding by a specific date to exercise the option.

Due to the COVID-19 pandemic, the government delayed its budget and the tenant could not provide the required confirmation by the deadline.

The court held that the tenant's purported exercise of the option was invalid, as the lease allocated the risk of funding uncertainty to the tenant.

The court also rejected the tenant's arguments of frustration and relief from forfeiture, ordering the tenant to pay substantial indemnity costs.

The defendants brought a motion for an order that the same judge hear the third party proceeding as the main action, which was dismissed.

The third party sought costs of the motion.

The court found that costs should follow the event but that the $14,000 claimed was disproportionate for a procedural motion that could have been resolved at a case conference.

Costs were fixed at $5,000 on a partial indemnity scale.

The defendants brought a motion seeking an order that their third-party action against the accountants be tried by the same judge as the main action, immediately following the main trial.

A previous order had already determined that the main action and third-party action would be tried separately.

The court dismissed the motion, holding that motion judges are not responsible for judicial assignments and that the motion was a collateral attack on the previous ruling.

The defendants remain at liberty to request an immediate trial date and ask the Regional Senior Judge to assign the same judge through the normal scheduling process.

The plaintiff brought a motion seeking an order to provide discovery documents, transcripts, and answers to its competition lawyers for the limited purpose of obtaining legal advice.

This advice was to determine whether to bring a further motion to seek leave of the Court to provide some or all of this material to the Competition Bureau, which was conducting an investigation into the defendant's fee structure.

The defendant opposed, arguing that the disclosure would breach the deemed undertaking rule and a confidentiality agreement.

The Master found that the deemed undertaking rule was not engaged because the purpose was to obtain legal advice for a potential further motion within the same proceeding, not for a collateral or ulterior purpose.

Even if the rule were engaged, relief would be granted due to the plaintiff's fundamental right to counsel of choice and the defendant's failure to demonstrate prejudice.

The Master also concluded that providing the documents to counsel for this limited purpose would not breach the confidentiality agreement.

The motion was granted.

The plaintiff sought costs after successfully defending the defendants' motion to dismiss the action for delay.

The plaintiff claimed between $45,330 and $75,550, representing 161 hours of work by two senior counsel.

The defendants argued the claim was unreasonable and suggested partial indemnity costs of $19,763.40.

The court agreed the plaintiff's claimed hours were excessive and lacked detailed dockets.

Costs were awarded to the plaintiff in the amount of $23,947.10, inclusive of disbursements and HST, matching the defendants' suggested figure.

A tenant obtained summary judgment against a landlord for recovery of losses arising from a fire at leased premises under a commercial lease.

The landlord appealed, and the Court of Appeal allowed the appeal, finding that the motion judge erred in interpreting the lease by failing to apply binding appellate authority regarding contractual allocation of risk, failing to assign meaning to all contested lease terms, and ruling that the tenant's breach of its insurance covenant did not bar its subrogated claim.

The Supreme Court of Canada remanded the matter for reconsideration in light of Ledcor Construction.

On remand, the Court of Appeal affirmed its original decision, holding that the correctness standard of review applied to extricable questions of law within the motion judge's interpretation of the negotiated lease.

VIA Rail appealed the Assessment Review Board's decision regarding the property tax assessment of the Ottawa railway station for the years 2009 to 2012.

VIA argued that because its national passenger railway service operates at a loss, the station suffers from 100% economic obsolescence and should be assessed at a nominal value.

The Divisional Court upheld the Board's decision to assess the property using the replacement cost method less depreciation, finding that the Board reasonably concluded there was no empirical evidence to support 100% economic obsolescence given the station's ongoing use and value as a railway facility.

Following a successful appeal, the Court of Appeal determined the appellant's costs for the underlying action.

The court awarded the appellant costs of the underlying action, including summary judgment motions but excluding costs associated with a cross-claim, on a partial indemnity basis in the amount of $65,231.79.

The court declined to make an order regarding additional costs sought by the appellant's shareholders' counsel.

The plaintiff brought a motion for summary judgment seeking repayment of $400,000 advanced to the defendant, and to dismiss the defendant's counterclaim for $813,000.

The court granted summary judgment for the $400,000 as the defendant admitted receiving the funds and owing the debt.

However, the court refused to dismiss the counterclaim, finding that the lack of written agreements and contradictory evidence regarding the defendant's remuneration and the share purchase created a genuine issue for trial.

The court stayed the enforcement of the $400,000 judgment pending the outcome of the counterclaim trial, as the defendant may be entitled to an equitable set-off.

The tenant's business premises were destroyed by a fire caused by a contractor retained by the landlord.

The tenant's insurer paid the policy limits and brought a subrogated claim against the landlord for the remaining uninsured losses.

The commercial lease required the tenant to insure its property against fire and to name the landlord as an additional insured, but also contained a clause requiring the landlord to indemnify the tenant for damage caused by the landlord's negligence.

The Court of Appeal held that the tenant's covenant to insure constituted an assumption of the risk of fire damage, relieving the landlord of liability even for its own negligence.

The appeal was allowed and the tenant's action dismissed.

The applicant, a federal crown corporation operating a national passenger railway, sought leave to appeal a decision of the Assessment Review Board regarding the valuation of its Ottawa passenger station for municipal taxation purposes.

The applicant argued the station had only nominal value due to the lack of a competitive market for passenger rail, while the respondent argued for a hypothetical market value.

The Divisional Court granted leave to appeal, finding reason to doubt the legal correctness of the Board's decision to create a hypothetical market and noting the case involved an important question of law regarding the valuation of railway stations.

Applicants sought an initial order under the Companies’ Creditors Arrangement Act to obtain court protection while restructuring a national not‑for‑profit healthcare organization suffering significant liquidity shortfalls.

The court found the applicants insolvent and satisfied that the statutory requirements for CCAA protection were met.

The court granted a stay of proceedings, approved a modified cash management system, appointed a monitor and chief restructuring officer, and approved administration and directors’ charges and a key employee retention plan.

The court also appointed a receiver over certain intellectual property and goodwill to enable terminated employees to access benefits under the Wage Earner Protection Program Act.

A comeback hearing was scheduled to permit creditors to raise concerns.

The defendants brought motions for summary judgment to dismiss the plaintiff's action regarding a right of first refusal on a quarry property.

The plaintiff had operated the quarry under a 1991 agreement that expired in 2006, but continued to pay rent.

The court found the agreement was a lease that renewed on a year-to-year basis.

However, the court held that whether the right of first refusal also renewed, and whether a binding agreement of purchase and sale was formed, were genuine issues requiring a trial.

The defendants' motions for summary judgment were dismissed and an expedited trial was ordered.

The moving parties, officers and directors of the Gandi Group, sought leave to appeal a motion judge's order in CCAA proceedings.

The motion judge had limited their indemnity claims to specific corporate entities, subordinated one claim to a major creditor, and characterized the indemnity claims as 'equity claims' under the CCAA, thereby subordinating them to unsecured creditors.

The Court of Appeal applied the Stelco test and denied leave to appeal, finding the issues were either factual, not of significance to the practice, or lacked prima facie merit.

The moving party, an approved purchaser of the debtor's assets, sought to cancel the automatic stay pending appeal of orders appointing a receiver and approving the asset sale.

The responding party, an unsuccessful bidder and software licensee, opposed the motion and appealed the sale order.

The Court of Appeal (in chambers) granted the motion to cancel the stay under s. 195 of the Bankruptcy and Insolvency Act, finding that the responding party likely lacked standing to appeal the sale order as a disappointed bidder and would not suffer undue harm if the stay was lifted, as its contractual rights to software source codes remained intact.

The appellants appealed an order striking their third party claims against the Attorney General of Ontario for breach of fiduciary duty and malicious failure to prosecute.

The Court of Appeal allowed the appeal, finding that the motions judge erred by concluding that the Attorney General can never owe a fiduciary duty in the prosecutorial function, as the categories of fiduciary are not closed.

The Court also held that the motions judge improperly relied on affidavit evidence on a Rule 21 motion to conclude that the malicious failure to prosecute claim was incapable of proof.

The third party claims were reinstated.

TaxSave appealed a motion judge's decision treating its claim for 50% of a tax refund as an ordinary unsecured claim under Gilmore Printing's CCAA plan of arrangement.

The Court of Appeal allowed the appeal, finding that the claim was a contingent claim expressly carved out of the plan and not compromised.

TaxSave was entitled to its full 50% share of the refund, as there were no other claimants to the fund and other creditors had been satisfied.

The appellant, representing minority shareholders of Asbestos Corp., sought an order from the Ontario Securities Commission (OSC) under s. 127 of the Securities Act to remove the trading exemptions of the Quebec Government and its Crown corporation after they acquired control of Asbestos Corp. without making a follow-up offer to minority shareholders.

The OSC declined to exercise its public interest jurisdiction, finding insufficient transactional connection to Ontario and no intention to avoid Ontario law.

The Supreme Court of Canada upheld the OSC's decision, ruling that the standard of review is reasonableness and that the OSC properly exercised its preventive, non-remedial discretion based on relevant factors.

The trustee appealed the dismissal of its application concerning a bankrupt's pending unjust dismissal award under the Canada Labour Code.

The court held that the unjust dismissal claim was property within the meaning of the Bankruptcy and Insolvency Act, and damages for lost wages could be characterized as wages, but the treatment of such compensation was governed by s. 68 rather than automatic vesting under ss. 67 and 71.

The court further held that the current version of s. 68 applied, that a trustee could invoke s. 68 after the bankrupt's discharge, and that failure to complete the s. 68 procedure did not bar interim protective relief.

The trustee was not entitled to intervene in the labour arbitration to pursue costs.

The appeal was allowed and the wage-related award was ordered paid into court pending determination under s. 68.