Maya Bretgoltz

The appellants, 36 former employees and shareholders of NexJ Systems Inc., appealed an application judge's order approving a plan of arrangement under the Canada Business Corporations Act.

The plan compelled them to sell their shares in NexJ Systems Inc. and NexJ Health Holdings Inc. to N. Harris Computer Corporation, and included a broad release of claims.

The appellants argued the plan was not fair or reasonable, breached prior agreements, denied procedural fairness by releasing claims without trial, and that the judge exceeded jurisdiction by including shares of a related company (NexJ Health).

The Court of Appeal dismissed the appeal, finding no procedural unfairness, upholding the application judge's interpretation of the 2011 agreements, confirming jurisdiction over the related company's shares as necessary for the financing, and affirming the valid business purpose of the plan.

The Applicants, minority shareholders, sought to enforce a "shotgun" buy/sell provision in a unanimous shareholders agreement (USA) against the Respondent, the majority shareholder.

The Respondent failed to exercise his option to buy or sell within the stipulated 15-day period, arguing the Applicants' buy/sell notice was invalid due to alleged threats of mass resignation by management, bad faith, oppression, and breach of implied terms.

The court found the buy/sell notice strictly complied with the USA and rejected the Respondent's arguments, finding no evidence of unlawful threats or breaches of duty.

The court also denied the Respondent's request to convert the application into a trial and consolidate it with a separate action, emphasizing the purpose of buy/sell provisions for expeditious resolution.

The application was granted, deeming the Respondent to have accepted the offer to sell his shares.

The plaintiffs were successful in obtaining an interlocutory injunction enforcing restrictive covenants related to the purchase of a dental practice.

In this costs decision, the plaintiffs sought partial or substantial indemnity costs.

The respondent argued costs should be deferred to the arbitrator who would hear the underlying damages claim.

The court held it was appropriate to determine costs now, as the injunction motion effectively determined the respondent's ability to practice dentistry and the court had already reviewed the voluminous materials.

The court rejected the request for substantial indemnity costs and fixed costs at $60,000 inclusive of disbursements and HST.

Following the dismissal of the plaintiff's motion for re-certification of a class action, the defendant sought costs on a substantial indemnity basis.

The plaintiff argued that no costs should be awarded as the motion passed several certification hurdles before failing on the representative plaintiff requirement.

The court rejected the plaintiff's argument, noting that partial success on hurdles does not equate to a divided result.

However, recognizing the difficult circumstances faced by plaintiff's counsel, the court exercised its discretion to award costs to the defendant on a partial indemnity basis in the fixed amount of $50,000.

The plaintiff brought a motion to re-certify a class action and appoint a new representative plaintiff, nearly two years after the court had de-certified the action and given class counsel 60 days to find a suitable replacement.

The court found that the proposed new representative plaintiff lacked an appropriate costs indemnity agreement and was implicated in spreading falsehoods among the class.

The court dismissed the motion, holding that allowing a late change of representative plaintiff under these circumstances would be fundamentally unfair to the defendant and an abuse of process.

The defendant sought costs thrown away after preparing a motion to settle the terms of a decertification order, which included a request to make the plaintiff's counsel personally liable for an unpaid costs award of $37,800.

Before the motion was heard, the plaintiff's counsel paid the outstanding costs in full, obviating the need for the motion.

The court declined to award costs thrown away to the defendant, emphasizing the judicial policy of encouraging parties to resolve disputes and reduce litigation expenses.

A case conference was held to discuss next steps in a class action that was previously certified and then decertified.

The plaintiff sought to schedule a recertification motion with a new representative plaintiff, while the defendant sought to settle the terms of the decertification order, specifically seeking to make plaintiff's counsel personally liable for a previous $37,800 costs award.

The court deferred scheduling the recertification motion until the costs issue and the terms of the decertification order are resolved at an upcoming motion.