Michael A. Penny

Harte Gold Corp. sought approval of a sale of its mining enterprise to a strategic purchaser via a reverse vesting order (RVO) under the CCAA.

The transaction involved the cancellation of existing shares, the issuance of new shares to the purchaser, and the vesting out of excluded assets and liabilities to newly formed entities.

The court found that it had jurisdiction under section 11 of the CCAA to grant an RVO and applied the section 36(3) factors to assess its appropriateness.

The court approved the transaction, finding it was the best outcome reasonably available, preserved necessary mining licenses and permits, and was overwhelmingly positive for creditors and stakeholders.

The court also granted an extension of the stay of proceedings and expanded the Monitor's powers.

In the context of CCAA proceedings, the moving party sought an order declaring that the limitation period for its action against the debtor was suspended by a prior tolling order, or alternatively, an order lifting the stay of proceedings nunc pro tunc to regularize its action.

The court held that the tolling order did not apply to third-party claims against the debtor.

Furthermore, applying the Supreme Court's decision in Green, the court held it had no authority to grant a nunc pro tunc order lifting the stay because the moving party failed to seek leave before the limitation period expired.

The motion was dismissed.

The applicant, Chair of the City of Hamilton's LGBTQ Advisory Committee, sought judicial review of an Integrity Commissioner's report finding he breached the code of conduct by disclosing confidential information, and the City Council's subsequent decision to reprimand him.

The applicant argued the Integrity Commissioner lacked jurisdiction because the advisory committee was not a 'local board' under the Municipal Act, 2001, and that the process was procedurally unfair.

The Divisional Court dismissed the application, finding it was reasonable to interpret 'local board' as including the advisory committee, and that the applicant was afforded procedural fairness throughout the investigation and council proceedings.

The applicant beneficiary objected to the passing of accounts and sought to remove the estate trustee, her brother.

She also objected to the estate trustee's compensation and property management fees paid to their sister.

The court found the accounts met the standard of ordinary care and diligence, the property management fees were reasonable, and the estate trustee's compensation of $267,859.96 was fair based on the Laing Estate factors.

The application to remove the trustee was abandoned, and the accounts were approved as submitted with costs awarded against the applicant.

The applicant, the surviving spouse of the deceased, objected to the accounts submitted by the respondent, the deceased's granddaughter and power of attorney.

The core issue was whether the deceased was incapable of managing his property during the four and a half years prior to his death, which would trigger a strict duty to account under the Substitute Decisions Act.

The court found that the deceased retained capacity and had consented to the respondent's management of their joint bank account.

The court dismissed the applicant's objections, approved the accounts as submitted, and awarded costs to the respondent.

The moving party brought a motion under Rule 59.06 to vary an interlocutory injunction that prohibited him from competing with or soliciting customers of the responding party.

The court found that the responding party had failed to pursue their case with reasonable dispatch, as pleadings were not yet closed 15 months after the injunction was granted.

Furthermore, the contractual non-competition and non-solicitation periods in the Professional Services Agreement had already expired.

The court granted the motion in part, terminating the non-competition and non-solicitation obligations against the moving party personally.

At a come-back hearing following an initial CCAA order, the applicants sought to extend the stay of proceedings, increase DIP financing, and confer investigative powers on the Monitor.

A party representing the investigatees sought an adjournment regarding the ratification of a general partner and the investigative powers.

The court denied the adjournment, finding that the restructuring depended on the DIP financing which required the investigative powers, and that the investigatees would have opportunities to be heard during the investigation.

The requested relief was granted.

The Proposal Trustee brought a motion under s. 65.13 of the Bankruptcy and Insolvency Act to approve the sale of two licensed retirement homes owned by the insolvent debtors.

The second mortgagee opposed the sale, arguing the sales process was flawed, the price was below market value, and it was denied the opportunity to properly value the properties.

The court found the sales process was reasonable given the debtors' insolvency and the imminent expiration of their operating licenses.

The court also found the sale price was fair based on independent appraisals and granted the motion to approve the sale, along with a sealing order over the appraisal exhibits.

The applicants, a group of real estate development entities facing a liquidity crisis, applied for an initial order under the Companies' Creditors Arrangement Act (CCAA).

The court found the applicants insolvent and granted the initial order, including a stay of proceedings extended to related partnership entities.

The court also approved debtor-in-possession (DIP) financing from Halmont Properties Corporation, authorized payments to critical suppliers, appointed Ernst & Young Inc. as Monitor, and appointed Kesmark as Chief Restructuring Officer to stabilize operations and facilitate restructuring.

The applicant estate trustee brought a motion for directions to interpret an ambiguous residuary clause in the deceased's will.

The clause left the residue to 'my brothers sisters late brothers sisters nephews and nieces' without punctuation.

Applying the armchair rule and the presumption in favour of per stirpes distribution in family contexts, the court concluded the deceased intended a per stirpes distribution.

The estate was ordered to be divided into ten equal shares, with one share to each surviving sibling and one share divided equally among the children of each predeceased sibling.

The respondents brought a motion for an order authorizing the named Estate Trustee to complete the sale of the deceased's property to bona fide third-party purchasers.

The applicant, who was challenging the validity of the will, opposed the motion, arguing that an estate trustee during litigation should complete the sale instead.

The court granted the motion, finding that the named Estate Trustee owed no fiduciary duties to the applicant until the will was proven invalid, and that delaying the sale would be detrimental to the estate and the purchasers.

The applicants purchased a Finnish mining company from the respondents under a share purchase agreement containing tax indemnities.

Post-closing, the Finnish tax authority reassessed the company's pre-closing tax years, disallowing deductions and effectively eliminating tax loss carry forwards that the applicants had intended to use in post-closing years.

The applicants sought indemnification for the reassessed taxes and the resulting increased tax burden in post-closing years.

The Superior Court of Justice held that the reassessment breached the respondents' unqualified warranty that there were no grounds for reassessment.

The court further held that the increased taxes in post-closing years were a reasonably foreseeable consequence of the reassessment and fell within the scope of the indemnities.

The respondents were ordered to pay the amounts already collected by the tax authority, with the remainder to be determined after the conclusion of Finnish tax appeals.

Following a successful application regarding a restructuring support agreement, the applicants sought full indemnity costs of approximately $1.18 million based on a contractual covenant.

The respondents argued for partial indemnity costs.

The court held that while the contractual provision for full indemnity was an important factor, it did not override the court's discretion to fix an amount that is fair and reasonable.

Finding the hours docketed by the applicants' counsel excessive for a one-issue case, the court awarded a global all-inclusive costs amount of $800,000.

Representative Counsel for investor claimants in a winding-up proceeding sought approval of a $40 million settlement distribution scheme and $6 million in professional fees.

Two investors objected, arguing for a flat-fee allocation of costs rather than a pro rata deduction, and one objected to the fee amount.

The court approved the pro rata allocation as fair and equitable, noting it avoids arbitrary distinctions between investors.

The court also approved the $6 million fee, finding it reasonable given the significant risks assumed, the excellent results achieved, and the 1.6 multiplier on docketed time.

The appellant tenant appealed a Small Claims Court decision dismissing his unjust enrichment claim for yard maintenance and snow removal on the basis that the Landlord and Tenant Board (LTB) had exclusive jurisdiction.

The Divisional Court found the deputy judge erred by deciding the case on a jurisdictional issue that was never pleaded or raised, denying procedural fairness.

Furthermore, the Court held that the Small Claims Court did have jurisdiction because the parties had previously reached a mediated settlement before the LTB that expressly permitted the tenant to pursue this specific claim in Small Claims Court, triggering the exception under s. 194(2) of the Residential Tenancies Act.

The matter was remitted to the deputy judge for a decision on the merits.

The parties, equal shareholders in a real estate business, underwent a court-ordered sales process overseen by a Sales Officer.

The moving party brought a motion for the distribution of $10 million from the net proceeds of the sale.

The responding party opposed, arguing the funds should be frozen until trial to secure his claims.

The court held that the prior Appointment Order did not function as a Mareva injunction and there was no basis to freeze the funds.

However, due to a lack of evidence regarding potential corporate tax liabilities, the court approved a reduced distribution of $8 million, split equally between the parties.

The applicants sought a declaration regarding the interpretation of the 'Outside Date' in a restructuring support agreement.

The respondent, a cannabis company, argued that any extension of the Outside Date required its initiation or consent.

The court found that the plain and ordinary meaning of the agreement allowed the lenders to automatically extend the Outside Date upon their written consent, acting reasonably, without the need for the respondent's consent.

The court granted the declaration sought by the applicants.

The applicant, a dissenting shareholder in a corporate amalgamation, applied to the court to fix a fair value for his shares under s. 185 of the Business Corporations Act.

The respondent argued the application was out of time, but the court exercised its discretion to extend the deadline.

The court rejected the applicant's claimed value based on an informal statement by the CEO, as well as the respondent's heavily discounted offer.

Relying on the implied share value from the amalgamation exchange ratio, the court fixed the fair value at $0.236 per share, awarding the applicant $271,400 plus partial indemnity costs.

The appellant appealed the dismissal of his dental malpractice claim.

During a tooth extraction, the appellant exhibited signs of distress, prompting the respondent dentist to administer nitroglycerin under the belief the appellant was having a heart attack.

The appellant later suffered a bradycardic event at the hospital and claimed psychological injuries.

The Divisional Court upheld the trial judge's findings that the respondent met the standard of care in an emergency situation and that there was no factual causation between the administration of nitroglycerin and the subsequent hospital event.

The appeal was dismissed.

The appellants (mortgagees) appealed a motions judge's decision that granted priority to construction lien claimants over the arrears in interest and enforcement costs of a prior registered vendor take-back (VTB) mortgage.

The Divisional Court allowed the appeal, holding that under s. 78(3) of the Construction Lien Act, a prior registered mortgage that goes into default retains priority over subsequent liens for the entire amount secured, including arrears of interest and reasonable enforcement expenses.

The Master's report confirming the mortgagees' priority to the funds paid into court was restored.