Nadine Tawdy

The appellant commenced an action in Ontario for breach of a share purchase agreement.

The respondent successfully moved to stay the action in favour of an ongoing International Chamber of Commerce arbitration, relying on an arbitration clause in a subsequent agreement to which it was not a named party.

On appeal, the appellant argued the motion judge erred in finding an arbitration agreement existed between the parties.

The Court of Appeal dismissed the appeal, holding that the motion judge made no palpable and overriding error in finding an 'arguable case' that the respondent was an affiliate entitled to benefit from the arbitration clause, thereby engaging the competence-competence principle.

Following the dismissal of the Receiver's motion to approve a sublease, the successful responding parties (the Oxford Parties) sought costs of $707,229.66 on a substantial indemnity basis, or alternatively $558,187.26 on a partial indemnity basis.

The Receiver argued no costs should be awarded or, alternatively, $250,000.

The court held that while restructuring proceedings are often not classic adversarial litigation, this dispute between commercial competitors warranted a costs award.

The court declined to hold the Receiver personally liable, ordering costs payable from the debtor's estate.

Finding the Oxford Parties' settlement offer non-compliant with Rule 49, the court awarded partial indemnity costs fixed at $400,000.

In an insolvency receivership involving Yorkdale leasehold interests, the court considered whether to approve a receiver-negotiated sublease entered without landlord consent and whether ancillary relief should issue.

Applying the contractual framework under the Head Lease and Commercial Tenancies Act, and considering insolvency discretion under the Bankruptcy and Insolvency Act, the court held the landlord had not unreasonably withheld consent.

The court further held that s. 84.1 of the BIA did not apply directly or by analogy to the proposed sublease structure.

On a broader stakeholder-balancing analysis, the court found unfairness in the process and insufficient commercial soundness to justify discretionary approval.

The motion to approve the new sublease was dismissed, and ancillary relief was not addressed.

The respondent moved to quash an appeal of a stay order granted under section 9 of the International Commercial Arbitration Act, 2017, arguing that the stay order was temporary and therefore interlocutory, requiring leave to appeal to the Divisional Court.

The Court of Appeal dismissed the motion to quash, holding that a stay order under section 9 of the ICAA is generally final in nature for purposes of determining the proper appeal route, as it effectively ends the action before the court.

The court rejected arguments that the stay was temporary merely because the arbitral tribunal might decline jurisdiction, and clarified that statements in cost submissions and the motion judge's characterization of the order do not alter its legal nature for appeal purposes.

The court considered whether to stay Bombardier Inc.'s Ontario action against Alstom Rail Sweden AB for a tax loss purchase price adjustment, pending arbitration before the International Chamber of Commerce.

The dispute centered on whether the claim fell within the scope of an arbitration agreement in a 2020 share purchase agreement, or was carved out by a prior 2017 agreement that conferred exclusive jurisdiction on Ontario courts.

Applying the Supreme Court’s guidance in Peace River Hydro Partners v. Petrowest Corp., the court found Alstom Sweden had established an arguable case that the dispute was subject to arbitration and stayed the action.

This endorsement addresses the issue of costs following the successful summary judgment motions by the defendants, Ontario Shores Centre for Mental Health Sciences and Dr. Omar Ghaffar, which dismissed the plaintiff's action.

The self-represented plaintiff failed to submit costs submissions.

The court awarded discounted costs to the defendants, finding their claims reasonable given the serious allegations, voluminous medical records, and the necessity of expert reports, despite the plaintiff's self-represented status and limited means.

The defendants, Ontario Shores Centre for Mental Health Sciences and Dr. Omar Ghaffar, brought motions for summary judgment to dismiss a medical malpractice action.

The plaintiff, Donald Jameson Whitehead, failed to file any expert evidence or affidavit evidence in response, despite being self-represented and advised of the requirements.

The court found that the defendants had discharged their evidentiary burden by providing expert opinions that their care met the standard of care and that consent was properly obtained.

Given the plaintiff's failure to adduce expert evidence, which is generally fatal in medical malpractice cases except in the clearest of circumstances, the court concluded there was no genuine issue requiring a trial.

The motions for summary judgment were granted, and the action was dismissed.

This is an appeal from a motion judge's dismissal of an action for lack of jurisdiction, specifically finding no real and substantial connection to Ontario.

The appellants, Ontario-incorporated companies, argued the motion judge erred in the jurisdictional analysis and improperly conducted a disguised summary judgment/issue determination motion.

The Court of Appeal affirmed the motion judge's decision, agreeing that the respondents, domiciled outside Ontario with business primarily in Singapore, lacked a sufficient connection to Ontario.

The court found the appellants failed to provide sufficient evidence to support their claims of torts or contract breaches occurring in Ontario, or to rebut the presumption against jurisdiction.

The appeal was dismissed with costs to the respondents.

This endorsement addresses the sequencing of motions in a series of related class actions.

The 2018 plaintiffs sought a temporary stay of the 2022 actions.

The defendants proposed hearing the stay motion concurrently with their summary judgment motions, citing limitation period defenses.

The 2022 plaintiffs argued for their certification motion to proceed if the stay was delayed.

The court, acting as case management judge, directed that the motion to stay be heard first, finding no significant efficiencies in combining it with the summary judgment motions and stating that certification motions should only proceed after summary judgment motions are determined.