Neil Rabinovitch

This decision concerns the continuation of refusals motions in complex insurance litigation involving environmental claims at 26 mining sites operated by Vale Canada Limited.

The court addresses the proportionality and sufficiency of discovery efforts, the organization and resolution of thousands of discovery refusals, and sets out directions for further production and inquiry.

The ruling emphasizes the need for balance and proportionality in discovery, especially in large-scale litigation, and provides a framework for resolving outstanding discovery disputes ahead of trial.

The applicant, Guy Gissin, as Foreign Representative of Urbancorp Inc., sought recognition and enforcement in Ontario of Israeli court judgments against the respondents for over 71 million NIS.

The respondents opposed, arguing recognition would be contrary to public policy and an abuse of process, including claims of double recovery and prior Canadian decisions on related facts.

The court found the Israeli judgments final, for a definite sum, and from a court of competent jurisdiction, and held that none of the narrow defences to enforcement (fraud, denial of natural justice, or public policy) applied.

The court rejected the double recovery argument, finding no evidence of over-recovery, and held that prior Canadian proceedings did not address or preclude the Israeli claims.

The application for recognition and enforcement was granted.

This costs endorsement addresses the aftermath of a motion to strike the defendants’ statement of defence for failure to attend examinations for discovery.

The court had previously dismissed the motion to strike but awarded the plaintiffs partial costs thrown away.

The parties could not agree on costs, and both made written submissions.

The court ultimately found that, given the divided result and the defendants’ prior waiver of costs, each party should bear its own costs of the motion.

The court denied the respondents' motion for leave under Rule 39 to deliver an expert report on Israeli law in a recognition and enforcement application.

The decision reviews the procedural history, the applicable test for leave under Rule 39.02(2), and finds that the respondents failed to satisfy any of the criteria for leave.

The court held that the expert report was not relevant, did not respond to a matter raised on cross-examination, would cause non-compensable prejudice, and was not adequately explained as to its late delivery.

The application was adjourned to March 27, 2025, and directions were given for the delivery of amended factums.

The plaintiff, Mohammad Reza Kamrani-Ghadjar, sought to discontinue his class action against Cidel Trust Company and Neo International Investments Ltd. in a securities misrepresentation case involving Anaergia Inc. The court approved the discontinuance with prejudice, finding no prejudice to the class or defendants, and ordered that notice be given to class members.

The court also granted procedural orders regarding factum length and amended the litigation timetable.

This endorsement addresses motions by the defendant insurers to compel Vale Canada Limited to answer refusals arising from oral and written discovery in complex insurance litigation concerning environmental claims at 26 mining sites.

The court reviews the status of discovery, the parties' agreements, and the proportionality of further discovery requests, including the use of exemplar and bridge charts to manage voluminous refusals.

The decision provides detailed directions on categories of refusals, privilege claims, and the process for resolving outstanding discovery issues, emphasizing proportionality, cooperation, and case management to keep the matter on track for trial.

The plaintiffs brought a motion to strike the defendants' statement of defence and for costs thrown away after the defendants failed to attend scheduled examinations for discovery.

The court found that the defendants' non-attendance was due to their former counsel's inadvertent misunderstanding of the schedule, rather than a deliberate flouting of a court order.

The motion to strike was dismissed, as the draconian remedy was not warranted and the defendants offered to cure the default.

However, the court awarded the plaintiffs $15,823.77 in costs thrown away for the wasted preparation time and disbursements related to the missed examinations.

The bankrupt, a former real estate developer, sought an absolute discharge from bankruptcy.

The discharge was opposed by the Trustee, the Canada Revenue Agency, and several creditors, who argued that the bankrupt's assets were less than 50 cents on the dollar for reasons he could be held responsible for, and that he failed to perform his duties under the Bankruptcy and Insolvency Act.

The court found that the bankrupt had engaged in an asset protection strategy, incurred significant personal liabilities without the means to pay them, and failed to disclose his true post-bankruptcy lifestyle and use of a corporate credit card.

The court declined to refuse the discharge entirely but imposed a substantial conditional order requiring the bankrupt to pay $960,000 and fulfill various outstanding duties.

The Monitor in a CCAA proceeding sought an order to reject an amended claim filed by Wellesley Residences (2014) Corp., KJ Equity Inc., and Yonge-Abell Partnership.

The court applied the Blue Range test for accepting late or amended claims, which considers inadvertence, good faith, and prejudice.

The court found that the claimants failed to demonstrate inadvertence or good faith, noting that the amended claim was a new claim, not a particularization of the original placeholder, and that the claimants' principals were involved in the transactions triggering the claim but failed to disclose them for years.

The court also found relevant prejudice due to the delay impacting negotiated interim distributions.

The motion was granted, and the amended claim was rejected.

The plaintiff brought a motion seeking court approval of a retainer agreement and an order for the defendants to pay Class Counsel's legal fees and disbursements.

This motion was brought after the plaintiff withdrew a certification motion in a class action alleging an electrical defect in Class Vehicles.

The plaintiff argued that the defendants' subsequent voluntary offer of an enhanced warranty to Canadian customers, mirroring a U.S. settlement, constituted "success" attributable to the litigation, thereby entitling Class Counsel to fees.

The defendants contended that the Canadian warranty enhancement was independent of the Canadian litigation, consistent with their corporate practice of coordinating benefits with U.S. settlements regardless of parallel Canadian actions.

The court found no evidence that the benefits stemmed from the Canadian action and concluded that the class proceeding had not been "successful" as defined by the Class Proceedings Act, which primarily links success to judgments or settlements.

Consequently, the court dismissed the plaintiff's motion for fees and disbursements.

Mattamy (Downsview) Limited sought to set aside an arbitration award under s. 46 of the Arbitration Act, 1991, arguing the arbitrator exceeded jurisdiction and committed procedural unfairness by refusing to admit relevant evidence.

The court found the arbitrator did not exceed jurisdiction as the "New Issue" fell within the broad scope of the arbitration.

However, the court found procedural unfairness and a failure of natural justice due to the arbitrator's refusal to admit the "REALPAC Handbook" evidence, which was relevant to the "New Issue" he himself raised, especially given the respondents did not object and no formal motion was allowed.

The court emphasized that procedural fairness is an independent right, and its denial invalidates the decision regardless of the likely outcome.

The Monitor in CCAA proceedings brought an unopposed motion to extend the stay of proceedings, approve a settlement agreement with a condominium corporation and another party, and approve its activities and fees.

The court found the settlement agreement reasonable and necessary, providing immediate benefits to stakeholders and a path to reducing a bond.

The court extended the stay to March 3, 2023, and approved the Monitor's activities and fees.

The moving party, Foreign Representative of Urbancorp Inc., sought leave to appeal a distribution order from the Supervising Judge in Companies’ Creditors Arrangement Act (CCAA) proceedings.

The order authorized a distribution to King Towns North Inc. (KTNI) related to the sale of "Bridge Geothermal Assets" and the interpretation of a "Transfer Provision" in a lease.

The core issue was whether the Transfer Provision violated the pari passu or anti-deprivation rules, particularly in light of Chandos Construction Ltd. v. Deloitte Restructuring Inc. The Supervising Judge found the provision valid, as it was triggered by a lease transfer, not insolvency, and did not violate the rules.

The Court of Appeal dismissed the motion for leave to appeal, finding no prima facie meritorious issue or error in the Supervising Judge's application of the anti-deprivation rule as clarified in Chandos, and that the appeal would unduly hinder the proceedings.

The Monitor sought an order authorizing distributions from the sale of Geothermal Assets.

KTNI disputed the Monitor's recommended disallowance of its claim to a portion of the proceeds based on a transfer provision in the Berm Lease.

The court found that the plain language of the lease reserved the transfer value to KTNI and that the provision was not invalidated by the pari passu or anti-deprivation rules.

The Monitor was directed to distribute $2,049,000 to KTNI, but no funds were to be distributed to Doreen Saskin until her claim in the bankruptcy of KTNI's parent company was accepted.

This motion sought a stay pending leave to appeal an order authorizing the sale of a 51% interest in Downsview Homes Inc. (DHI) within ongoing CCAA proceedings.

The moving party, the Foreign Representative of Urbancorp Inc., argued the sale process should be postponed until a related arbitration regarding a disputed payment was resolved, fearing a chilling effect on potential bids.

The supervising judge had previously dismissed these concerns as speculative.

The Court of Appeal applied the three-part RJR-MacDonald test for a stay, finding the grounds for appeal weak, no irreparable harm to the moving party, and the balance of convenience favoring the respondents (the Monitor and Mattamy Homes Limited, the debtor-in-possession lender).

Consequently, the motion for a stay was dismissed.

The Applicants brought an unopposed motion in their CCAA proceedings to extend the Stay Period to August 31, 2021, assign certain letters of credit to the Israeli Functionary, and approve the Monitor's Forty-Sixth Report along with professional fees.

The court found the Applicants were acting in good faith and with due diligence, and that they had sufficient resources to continue functioning during the proposed stay period.

The motion was granted in its entirety.

The Applicants brought an unopposed motion in their CCAA proceedings seeking an extension of the Stay Period to August 31, 2021, and authorization for the Monitor to effect the return of trust property to Lien Claimants and Trust Claimants.

The court found the Applicants were acting in good faith and with due diligence, and that the return of trust property did not constitute a distribution or dividend under the Bankruptcy and Insolvency Act.

The court granted the stay extension, authorized the distributions, and approved the Monitor's activities and fees.

In the context of CCAA proceedings for the Urbancorp entities, the Monitor brought a motion for an order approving and directing distributions from the sale of geothermal assets.

The court approved two unopposed distributions recommended by the Monitor in its Forty-Fifth Report, specifically regarding VII - Curve and UNKI.

The balance of the requested relief was adjourned to a date to be set.

The plaintiffs brought motions to compel the examination of a defendant on behalf of a corporate defendant and for further and better affidavits of documents from several defendants.

The parties agreed to dismiss the examination motion and portions of the production motion without prejudice.

The court ordered one defendant to produce certain financial documents relevant to personal enrichment and an itemized Schedule B list, but dismissed the remaining requests for further documents and better email descriptors, finding insufficient evidence of missing documents and that the current descriptors were proportionate.

This case involved two applications heard together, stemming from a share purchase transaction.

Sudhir Thomas, as Seller Representative, sought the release of an indemnity escrow account.

Accenture Inc. brought a cross-application seeking a declaration that Thomas was responsible to indemnify Accenture for potential damages from a wrongful dismissal claim by Tania Prsa, to be paid from the escrow.

A mini-trial was conducted to determine the characterization of "bonus" payments made to Prsa (as employment income or shareholder profit distributions) and her entitlement to unreimbursed business expenses.

The court found that the "bonus" payments were shareholder profit distributions, not employment compensation, and that Prsa's expense claims were barred by a comprehensive release clause in the Share Purchase Agreement.

Consequently, the Indemnity Escrow Account was ordered released to the Seller Representative.