Michael A. Penny

The applicants, Dilico Anishinabek Family Care and Fort William First Nation, brought a motion for a stay of a Minister's Directive and Designation pending their applications for judicial review.

The Directive designated Tikinagan Child and Family Services to provide child and family services to certain Indigenous children in Thunder Bay.

The court applied the three-part test for a stay.

While finding a serious issue to be tried, the court concluded the applicants failed to establish irreparable harm or that the balance of convenience favoured granting the stay.

The motion was dismissed, with written reasons to follow.

The defendants, withdrawn partners of an insurance defence law firm, brought a motion under Rule 45.02 for an order directing the plaintiff partnership to pay their capital repayment amounts into court pending trial.

The plaintiffs had sued the defendants for over $7 million for breach of contract and fiduciary duty, asserting a right of set-off against the capital.

The court found that the capital account constituted a specific fund and that there was a serious issue to be tried.

However, the court dismissed the motion for payment into court because the defendants failed to establish a risk of dissipation, instead ordering the plaintiffs to provide quarterly financial disclosure and not expose the capital to differential risk.

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 applicant sought to set aside an arbitral tribunal's interim award on jurisdiction under Articles 16 and 34 of the UNCITRAL Model Law.

In support of its application, the applicant filed new expert evidence that was not before the arbitral tribunal.

A previous judge had ruled that the new evidence was admissible as of right.

The hearing judge reconsidered this interlocutory ruling and held that he had the authority to do so.

The court concluded that fresh evidence in an application to set aside an arbitral tribunal's award on jurisdiction under the Model Law may not be introduced as of right.

Instead, a party must obtain leave by satisfying the test for fresh evidence established in R. v. Palmer.

Following a trial where the defendants were ordered to repurchase the plaintiff's shares, the plaintiffs sought directions on the transaction structure to ensure tax efficiency.

The defendants argued the court lacked jurisdiction as the issue was not pleaded and the court was functus officio.

The court held it had jurisdiction under s. 241(3) of the Canada Business Corporations Act, noting the issue was raised during trial and fell within the broad remedial powers for oppression.

The court established a process for filing further evidence to resolve the transaction structure.

The plaintiffs, a group of mortgage lenders, brought a motion for summary judgment seeking full arrears at a 25% annual interest rate and default administration fees after the defendants breached a settlement agreement.

The settlement had reduced the interest rate, but the defendants' opposition to a property sale approval motion triggered a clause voiding the release.

The defendants sought relief from forfeiture or argued the rates violated the federal Interest Act.

The court granted relief from forfeiture, finding the breach caused minimal prejudice to the lenders compared to the substantial forfeiture sought, and ordered an accounting of any remaining settlement amounts.

The court also found the 25% interest rate and default fees were not unenforceable under the Interest Act due to prior Supreme Court and Court of Appeal rulings on time-triggered rate increases and consensual resolutions.

The plaintiff brought a motion for summary judgment in a defamation action regarding dozens of false and malicious statements posted by the defendant on WeChat.

The defendant, who was self-represented, failed to provide any evidence to support the defences of justification, fair comment, or qualified privilege.

The court found the statements were defamatory, published, and made with malice.

The court granted summary judgment, awarding the plaintiff $35,000 in general damages, a permanent injunction, and full indemnity costs.

The plaintiff City of Saskatoon was defrauded of over $1 million when it was tricked into depositing a payment meant for a contractor into a fraudulent bank account.

The funds were dispersed by the account operator to various individuals.

The City traced and froze the funds.

On a motion to determine entitlement to the remaining frozen funds, the respondents claimed to be innocent victims who paid valuable consideration.

The court found the respondents failed to provide evidence that they were bona fide purchasers for value without notice or that they had innocently changed their position.

The court ordered the remaining funds returned to the City.

The moving parties, a company and its CEO, commenced a private prosecution against a court-appointed receiver under the Environmental Protection Act, alleging the receiver stored excess organic waste.

The receiver brought a motion to stay the prosecution, arguing the moving parties failed to obtain leave of the court as required by the receivership order and that the prosecution was an abuse of process.

The Superior Court of Justice held that a private prosecution is a 'proceeding' requiring leave under the receivership order.

The court refused to grant leave and stayed the prosecution, finding it was an abuse of process because the moving parties were attempting to relitigate the exact same allegations that had previously been dismissed by the Superior Court and the Court of Appeal in a prior motion for leave to sue the receiver.

AIMCO and CHC MPAR LP entered into a co-ownership agreement to develop a student housing project.

After the project faced zoning rejections, AIMCO and CHC independently acquired a neighbouring property without including MPAR, a 50% shareholder in the general partner.

AIMCO subsequently triggered a shotgun clause to buy out the limited partnership's interest.

MPAR opposed the buyout and applied for relief, alleging oppression, breach of fiduciary duty, and breach of contract.

The court dismissed MPAR's application, finding no oppressive conduct, fiduciary duties, or contractual breaches, as the agreements explicitly excluded obligations regarding outside business opportunities.

AIMCO's application for specific performance of the shotgun clause was granted.

The proposal trustee moved for court approval of a bankruptcy proposal for the debtor company.

The debtor's parent company, which held the largest monetary claim, opposed the proposal, but its vote was disregarded by the chair of the creditors' meeting as a related party under s. 109(6) of the Bankruptcy and Insolvency Act.

The parent company objected to the scope of the release granted to the debtor's sole director, specifically regarding potential claims for preferences and transfers at undervalue.

The court upheld the exclusion of the related party's vote, finding it would defeat the purpose of the proposal and harm unrelated trade creditors.

Applying the Metcalfe criteria, the court found the director releases to be fair and reasonable, and approved the proposal.

The respondents brought a motion under Rule 39.02(2) for leave to file an additional affidavit following cross-examinations in an application concerning the alleged breach of market data licensing agreements.

The court applied the four-part test for leave, finding the objective factual evidence regarding corporate structure relevant and responsive to undertakings given during cross-examination.

However, the court struck out portions of the affidavit that contained impermissible subjective opinions on contract interpretation.

Leave was granted on terms, with costs awarded to the responding party on a substantial indemnity basis.

The defendants moved to set aside a Mareva injunction granted four years prior, citing delay and new expert evidence.

The plaintiff brought a cross-motion for summary judgment or to strike the defendants' statement of defence in a complex fraud action involving a factoring company.

The court dismissed the defendants' motion, finding the delay was largely attributable to their own failure to produce documents and that the balance of convenience favoured maintaining the injunction.

The court also dismissed the plaintiff's summary judgment motion, concluding that the extensive conflicting circumstantial evidence and credibility issues required a full trial, and that partial summary judgment was inappropriate.

The motion to strike the defence was dismissed as premature.

In a receivership proceeding, the Receiver conducted a court-ordered claims process to determine entitlement to surplus proceeds from the sale of a property.

The Stanbarr Claimants sought the funds based on a prior judicial finding that the respondent, Canada Investment Corporation, had improperly inflated a mortgage payout statement.

The respondent opposed the Receiver's recommendation to pay the funds to the claimants, arguing the prior judicial finding was not final.

The court upheld the Receiver's recommendation, finding the prior decision was res judicata, and ordered the funds paid to the claimants.

The applicant brought an application within an ongoing oppression remedy proceeding seeking repayment of a shareholder loan.

The applicant sought to impose enterprise liability on related companies and personal liability on the estate of his former business partner.

The court found that the former partner had engaged in oppressive conduct by diverting corporate funds for personal benefit, defeating the applicant's reasonable expectations.

The court held the estate personally liable for the immediate repayment of $2,421,300 of the shareholder loan, but declined to impose enterprise liability on the related companies or personal liability on the estate trustee.

The moving party, claiming to be a creditor, brought a motion to annul a bankruptcy proposal that had been accepted by creditors and approved by the court.

The moving party alleged injustice and fraud regarding the voting of contingent claims and the transfer of business opportunities to a related company.

The court dismissed the motion, finding it to be an abuse of process and a collateral attack on the court's approval order, as the moving party was aware of the material facts at the time of the creditors' meeting but failed to object or appeal.

The applicant, The Russia Federation, brought a motion to disqualify the respondent's expert witness on Russian law, arguing bias and lack of qualifications.

The expert had previously provided evidence for related entities in similar claims against the applicant.

The court applied the White Burgess framework and found that the expert's history did not demonstrate a lack of independence, nor did his lack of Russian legal credentials or fluency in Russian negate his demonstrated expertise.

The motion to strike the expert's evidence was dismissed, and the respondent's cross-motion to admit the reports was allowed.

Following a trial under the oppression remedy, both parties brought motions under Rule 59.06(1) to correct alleged errors in the court's reasons.

The court dismissed the defendants' request to remove references to a personal relationship and their claim of an arithmetic error in the fair value calculation.

The court granted the plaintiffs' motions to correct arithmetic errors, increasing the fair value of the corporation by $0.2 million and the equitable compensation awarded to $605,579.

The plaintiffs' request for compound interest was dismissed as it was not pleaded and lacked an evidentiary foundation.

The defendants moved for summary judgment on a limitation issue, arguing the plaintiffs' action was statute-barred due to discoverability.

The plaintiffs alleged breach of contract, fiduciary duty, misappropriation, and unjust enrichment related to a cannabis business venture.

The court found that the discoverability issues were contentious and complex, with significant factual disputes overlapping with the merits of the claim.

The record did not allow for the necessary findings of fact with the certainty required for summary judgment.

The motion was dismissed, and costs were fixed in the cause.

The defendant brought a motion to strike the plaintiff's civil action, which sought damages for breach of a separation agreement, including claims for spousal support and restitution for a matrimonial home and personal property.

The court struck the spousal support claim as an abuse of process, ruling it must be brought under the Family Law Act.

The court also struck the property claims, finding that the plaintiff's pre-bankruptcy interests vested in the trustee and were extinguished upon his discharge from bankruptcy.

The action was dismissed with costs awarded to the defendant.