Newbould

Following a decision regarding the assessment of a law firm's accounts, the court received cost submissions.

The respondent law firm sought $14,800 in costs, including a $10,000 disbursement for a transcript.

The applicant opposed the transcript costs and alleged duplication.

The court found the requested costs modest, upheld the necessity of the transcript, and fixed costs at $10,800 inclusive of disbursements and HST, to be set off against the amount the law firm was ordered to repay the applicant.

The court-appointed Manager moved for approval of its fees, its counsel's fees, and a proposed Fee Allocation Methodology to distribute the costs among various properties in a complex real estate receivership.

Several mortgagees and lien claimants opposed the fee approval and the allocation methodology, arguing that time was not docketed on a property-by-property basis and that the methodology was unfair.

The court approved the fees and the methodology, finding that strict property-by-property accounting would be cost-prohibitive and that the proposed allocation was fair and equitable.

The court also rejected arguments that the Manager's charge should be subordinated to prior liens or subject to the doctrine of marshalling.

In the context of the global insolvency of Nortel Networks, the UK Pension Claimants (UKPC) asserted multiple claims against the Canadian debtors (NNC and NNL).

The UKPC claimed for a contingent Financial Support Direction (FSD) under UK pension law, amounts under a Funding Guarantee and a Swift Guarantee, and remedies for oppression and unjust enrichment.

The court dismissed the FSD claim as too remote and speculative to constitute a provable claim in the CCAA proceedings.

The court also dismissed the claims under the Swift Guarantee, oppression, and unjust enrichment.

However, the court allowed the UKPC's claim under the Funding Guarantee, finding NNL liable for £339.75 million.

The applicant, a secured creditor, applied to appoint a receiver over the assets of the respondent guarantor following a default on commercial loans.

The respondent cross-applied to lift a stay of proceedings to continue a $100 million damages action against the applicant for alleged breach of a forbearance agreement, and sought to have the proceeds from the sale of the primary debtor's assets paid into court.

The court held that the receivership order did not stay the debtor's action, but refused to order the funds paid into court as the respondent had no proprietary claim to the funds that superseded the applicant's first-ranking security.

The court appointed a receiver over the respondent, finding it just and convenient given the unconditional nature of the guarantee.

The applicants moved for declarations regarding their pension rights under a supplemental pension plan.

The respondent argued the claims were barred by the Limitations Act, 2002, asserting the limitation period began when option statements denying the benefits were issued.

The court held that the claims were not statute-barred, finding that the cause of action for pension benefits does not crystallize until the payments actually fall due and are wrongfully refused, rather than when an anticipatory breach occurs.

The applicants moved for the appointment of an Inspector as receiver/manager over 31 jointly owned commercial real estate corporations.

The court found significant evidence of oppressive conduct by the respondents, including the unauthorized placement of mortgages, misappropriation of funds for personal use, co-mingling of bank accounts, and failure to maintain proper books and records.

Concluding that the applicants' interests required protection and that the respondents had breached their contractual obligations, the court held it was just and convenient to appoint the receiver/manager.

The defendants moved to stay the plaintiff's action on the basis that the dispute was subject to an arbitration agreement contained in a Share and Asset Purchase Agreement.

The plaintiff had commenced an action claiming oppressive conduct regarding the calculation of EBITDA, which affected the purchase price of the remaining shares.

The court found that it was arguable the dispute fell within the arbitration clause, which covered disputes over any amount shown in an EBITDA report.

The action was stayed pending the arbitrator's determination of jurisdiction and the merits.

The parties brought cross-motions regarding the valuation of the applicant's shares in a family holding company.

The applicant sought to have an arbitrator appointed or the issues heard in court, alleging oppression and breach of a unanimous shareholders' agreement regarding a 2008 transaction.

The respondents sought the appointment of a valuator, arguing the valuation date was fixed in 2007.

The court held that a valuator is not qualified to deal with oppression or breach of contract claims, and because a non-party to the shareholders' agreement was involved, arbitration was unavailable.

The court ordered that the oppression and breach of contract claims be dealt with by the court before any valuator is appointed.

The applicant sought to register and enforce two Singapore judgments against the respondent Hopaco, and moved for summary judgment against the respondent DEAR for a declaration of trust over shares.

DEAR brought cross-motions to dismiss the claim as statute-barred, stay it for forum non conveniens, or obtain security for costs.

The court allowed the registration of the foreign judgments against Hopaco.

However, the court dismissed both summary judgment motions regarding DEAR, finding that whether the foreign judgment was an in rem judgment binding on DEAR required a full factual record.

The court also held the action was not statute-barred, declined to stay the action, and ordered the applicant to post security for costs.

The applicant, a limited partner, brought an application for the production of financial records and forecasts from the respondent limited partnership.

The respondents refused, relying on a confidentiality clause in the limited partnership agreement.

The Superior Court of Justice granted the application, finding that while partners can contract out of the right to information provisions in the Limited Partnerships Act, the specific confidentiality clause did not apply to the broader financial documents sought.

The court also held that a limited partner is not required to provide a reason for seeking information to which they are statutorily entitled.

Minatura brought a motion to remove Aburi Goldfields Ghana Ltd. from the CCAA proceedings of the applicants, arguing lack of disclosure, that Aburi was not a debtor, and that the dispute over control of Aburi should be litigated in Ghana.

The court dismissed the motion, finding that Aburi was a debtor, that there was no material non-disclosure, and that staying the CCAA proceedings would likely cause the restructuring to fail.

Applying the Van Breda framework and giving weight to a forum selection clause in the parties' shareholders' agreement, the court held that Ontario had jurisdiction and that Minatura failed to establish that Ghana was a more appropriate forum.

The applicants, comprising iMarketing Solutions Group Inc. and its subsidiaries, applied for protection under the Companies' Creditors Arrangement Act (CCAA) due to severe liquidity challenges.

The court granted an Initial Order, including a stay of proceedings, finding that the applicants' businesses could not survive without immediate protection.

The court also approved debtor-in-possession (DIP) financing of $1.0 million, an Administration Charge of $300,000, a Directors' Charge of $1.3 million, the appointment of a Chief Restructuring Officer, and authorization to pay critical suppliers to ensure the continuation of operations during the restructuring process.

The plaintiff, a junior oil and gas exploration company, sued the defendant underwriter for breach of a 'bought deal' engagement letter.

The defendant failed to close the transaction, arguing the letter was merely an agreement to agree and relying on 'out clauses' due to a drop in oil prices.

The court found the engagement letter was a binding contract and that the defendant could not rely on the out clauses, as it had not negotiated an underwriting agreement and the drop in oil prices did not constitute a material adverse change or disaster.

The plaintiff was awarded over $16 million in damages, representing the difference between the contract price and the replacement financing price, plus interim loan costs.

The defendants moved to remove the plaintiffs' solicitors of record, Hodder Barristers.

The defendants alleged that the plaintiffs' counsel had previously acted for a different plaintiff in related litigation against the current plaintiff, and that counsel would be required to give evidence at trial regarding alleged collusion and abuse of process.

The court found that while the administration of justice would not be brought into disrepute merely by counsel acting for the plaintiffs, there was a real likelihood that counsel would be called as a witness regarding discussions he had with the plaintiff during the related litigation.

The motion to remove the solicitors of record was granted.

The plaintiff's husband died in a construction accident, leaving her as the sole heir to his one-third interest in a successful family construction and real estate business.

While emotionally distraught and relying heavily on her sister-in-law to manage the estate and business affairs, the plaintiff signed a Transfer Agreement giving up her husband's shares and real estate interests in exchange for a condominium of significantly lesser value.

The plaintiff brought an action to set aside the Transfer Agreement.

The Superior Court of Justice found that the sister-in-law and brother-in-law had abused their relationship of trust, and set aside the agreement on the grounds of undue influence, unconscionability, misrepresentation, and breach of fiduciary duty.

The court also declared that the plaintiff was entitled to a one-third interest in various joint venture properties that had been improperly diverted to a company solely owned by the sister-in-law.

The applicant employer brought an application to rectify a 2005 amendment to its hourly employee pension plan.

A drafting error had inadvertently increased early retirement benefits for terminated employees, contrary to the employer's intention to merely close the defined benefit component to new hires.

The court exercised its equitable jurisdiction to rectify the unilateral trust document, finding clear evidence that the amendment was a mistake and did not reflect the employer's true intention.

The Administrator of a condominium corporation applied for directions regarding the voting procedure for the election of a new board of directors, following a referendum where owners voted to return to a board-managed structure.

The court provided directions on the election process, including that the owner-occupier position under s. 51(6) of the Condominium Act would be for a three-year term, that unsuccessful candidates for that position could run for the remaining positions, and that a retired judge would supervise the meeting.

The plaintiffs, representing a class of Barbados participating policyholders, brought an action against Manulife following the transfer of their policies to Life of Barbados (LOB) in 1996 and Manulife's subsequent demutualization in 1999.

The plaintiffs claimed that Manulife owed them a duty of care and a fiduciary duty to protect their rights to participate in the demutualization.

The court found that while it was reasonably foreseeable that Manulife would demutualize, no duty of care or fiduciary duty was owed to the plaintiffs because their rights as policyholders were lawfully extinguished by the transfer agreement, which was approved by regulators in Barbados and Canada.

The action was dismissed.

The applicants, comprising 27 parties adverse to the respondent in 14 different actions, brought an application to declare the respondent a vexatious litigant under section 140 of the Courts of Justice Act.

The respondent had a history of commencing multiple actions against his former lawyers and others, alleging widespread conspiracies and fraud after losing previous litigation.

The court found that the respondent persistently instituted vexatious proceedings without reasonable grounds, sought to relitigate previously decided issues, and failed to pay outstanding costs orders.

The court granted the application, prohibiting the respondent and his corporations from instituting or continuing any proceedings without prior leave of the court.

The applicant, as Note Trustee of the Maple Trust, brought a motion for an order approving a marketing and sale process for the trust's assets following an Event of Default.

The motion was contested by a party who argued that any sale must obtain prior court approval.

The court approved the sale process but ordered that it include a provision requiring prior court approval for any transaction, applying the Soundair principles, to ensure the best possible price is obtained without unnecessary delay.