Meg Bennett

Tacora Resources Inc. sought an interpleader order to deposit mining royalty payments into court due to competing instructions from two groups claiming control over the payee, 1128349 B.C. Ltd. The application judge dismissed the application, finding no 'adverse claims' and a lack of jurisdiction, but issued an unrequested interim order directing payment to one group's counsel.

The Court of Appeal allowed the appeal, holding that the competing instructions constituted adverse claims under Rule 43, the Ontario court had jurisdiction, and the interim order was improperly granted.

Tacora was permitted to pay the royalties into court pending resolution of the corporate control dispute.

The applicant, an Ontario company operating a mine in Newfoundland, sought an interpleader order under Rule 43 to pay quarterly royalties into court.

The applicant faced conflicting demands regarding payment due to a corporate governance dispute over the parent company of the creditor, which was being litigated in the Cayman Islands and British Columbia.

The court dismissed the application, finding that Rule 43 is unavailable when the court lacks jurisdiction to determine the underlying dispute over corporate control.

However, the court granted interim relief allowing the applicant to pay the funds to the creditor's counsel in trust for 90 days to permit the commencement of interpleader proceedings in the appropriate forum.

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.

Chicago Title Insurance Company brought a motion to disqualify the law firm Gardiner Roberts LLP from representing Anthony Maniaci in an indemnity application.

Chicago Title argued that Gardiner Roberts had a conflict of interest because the firm also represented Thomas Donnelly, a lawyer who had previously provided coverage opinions to Chicago Title and was threatened with a negligence claim by them.

Chicago Title asserted that Gardiner Roberts possessed confidential and privileged information through its representation of Donnelly that could be misused.

The court granted the motion, holding that the integrity of the judicial system required the removal of Gardiner Roberts as counsel of record due to the significant risk of conflict and the potential for lawyers involved in the coverage advice to become witnesses.

The appellant tenant appealed a summary judgment ordering it to pay over $1.1 million in alleged profits earned from a commercial sublease to the respondent landlord.

The motion judge had interpreted the lease to preclude the tenant from deducting the rent it paid for unusable open-air space on the sublet floor, and found the claim was governed by the 6-year limitation period under the Real Property Limitations Act.

The Court of Appeal allowed the appeal, holding that the motion judge's interpretation ignored the factual matrix and resulted in a commercial absurdity.

The tenant was entitled to deduct the full rent paid for the floor, meaning it incurred a $2.6 million loss, not a profit.

The Court also held that the obligation to remit profit was not 'rent', and therefore the 2-year limitation period under the Limitations Act, 2002 applied.

The moving party sought leave to appeal an order dated December 19, 2022.

The Divisional Court dismissed the motion for leave to appeal in writing and awarded costs of $10,000 inclusive to the responding party.

The plaintiff sought an interlocutory injunction restraining the defendant from reverting to an earlier commission structure under a commercial sales and service arrangement.

The court held that the plaintiff established a strong prima facie case that a 2020 amending agreement was binding despite the absence of signatures, based on objective intention, ostensible authority, and the parties' conduct in performing the amended terms for over two years.

The court further found a meaningful risk of irreparable harm because the plaintiff faced collapse of its cash flow, loss of workforce, employment contract breaches, and potential business failure if the lower commission model remained in place.

The balance of convenience favoured the plaintiff because any loss to the defendant was compensable in damages.

The injunction was granted, conditional on a sworn undertaking as to damages.

The plaintiff landlord and defendant tenant both brought motions for summary judgment regarding the interpretation of a commercial lease.

The landlord claimed the tenant owed over $2 million in profits from three subleases, while the tenant argued it incurred losses after deducting reasonable costs.

The court held that the tenant could not deduct rent paid for retained Atrium space as a reasonable cost of the subleases.

However, the court found that rent lost during rent-free fixturing periods, as well as legal fees and real estate commissions, were reasonable costs that could be deducted from the sublease profits.

The applicants sought declarations concerning insurers’ duty to defend multiple opioid class actions, the insureds’ right to select a single defending policy, allocation of defence costs, exhaustion of SIRs and deductibles, and the terms on which insurers could receive defence-side reporting.

The court held that, subject to exhaustion of the relevant SIRs or deductibles, each applicant could select any single policy under which there was a duty to defend, and the selected insurer was required to pay all reasonable defence costs associated with covered claims even if those costs also furthered uncovered claims.

Time-on-risk allocation was accepted only as an equitable mechanism among insurers with concurrent obligations, not as a basis to reduce contractual defence obligations owed to the insureds.

The court further held that pre-tender defence costs could attract relief from forfeiture, that disputed SIR exhaustion issues required a trial, and that insurers seeking privileged defence-side reporting had to maintain robust ethical screens through a defence reporting agreement because both party-based and coverage-based conflicts were present.

The joint liquidators of Stanford International Bank (SIB) and a group of investors brought actions against TD Bank, SIB's primary U.S. dollar correspondent bank, for knowing assistance in breach of fiduciary duty and negligence.

The plaintiffs alleged that TD Bank should have detected and prevented the massive Ponzi scheme orchestrated by SIB's owner, Allen Stanford.

The Superior Court of Justice dismissed the actions, finding that TD Bank had no actual knowledge of the fraud and was not reckless or wilfully blind.

The court also held that TD Bank did not owe a novel duty of care to protect its customer from insider abuse, and even if it did, it met the standard of care of a reasonable banker during the relevant period.

The plaintiff, a warehouse attendant at a dairy distribution center, was terminated for cause after being caught on video vaping inside the facility.

The employer argued this violated company policies, food safety regulations, and the Smoke Free Ontario Act, 2017.

The court found that the employer failed to establish the plaintiff knew vaping was prohibited under the general no-smoking policy, as the policy did not explicitly mention vaping and the required statutory signage had not yet been posted.

The court concluded that termination was a disproportionate response and that progressive discipline should have been applied.

The plaintiff was awarded four months' pay in lieu of notice, less mitigation earnings.

The plaintiffs, two major banks, sued to recover funds wired to the defendant money services business as a result of a fraud perpetrated by third parties.

The defendant brought a motion for summary judgment, arguing it received the funds without knowledge of the fraud and changed its position in good faith by arranging equivalent payments in Chinese yuan to a foreign account.

The court dismissed the motion, finding genuine issues for trial regarding whether the defendant actually changed its position in good faith, given conflicting expert evidence on its anti-money laundering compliance and the lack of direct evidence regarding the foreign exchange transactions.

The plaintiffs in a competition law class action regarding price-fixing of lithium ion batteries brought a motion for consent certification for settlement purposes against the Maxell defendants.

The settlement agreement provided for a payment of $300,000 USD.

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 motion for certification for settlement purposes and approval of the notice plan was granted.

The plaintiffs in a certified competition law class action regarding price-fixing of lithium-ion batteries moved for approval of settlements with the LG Chem and Toshiba defendants, as well as for approval of class counsel fees.

The court found the settlements, which provided approximately $5.1 million from LG Chem and $264,000 from Toshiba, to be fair, reasonable, and in the best interests of the class.

The court also approved class counsel's fee request of approximately $1.18 million, representing a 25% contingency fee, finding it reasonable given the risks undertaken and the results achieved.