Nicholas Kluge

The United Steelworkers Local Union 2251, supported by USW Local 2724 and Essar Algoma retirees, brought a motion to qualify a "Subject Bidder" as a Phase II Bidder in a Companies' Creditors Arrangement Act (CCAA) proceeding.

The Subject Bidder had been disqualified by Essar Algoma, its Chief Restructuring Advisor, Financial Advisor, and the Monitor for failing to provide satisfactory evidence of financial capability to consummate a transaction.

The union argued it was not properly consulted in the disqualification decision and that it should have been allowed to meet with the Subject Bidder.

The court dismissed the motion, finding that the union's consultation rights under the Sale and Solicitation Process (SISP) did not extend to decisions on a bidder's financial capability, and that the court should not second-guess the business judgment of the CCAA applicants and their professionals.

In the context of CCAA restructuring proceedings, the applicants sought approval of a grievance claims procedure to resolve approximately 3,000 outstanding grievances.

USW Local 2251 opposed the motion, arguing that the CCAA stay did not apply to grievances, that imposing a new procedure impermissibly amended the collective agreement, and that staying the grievance process violated section 2(d) of the Charter.

The court granted the motion, holding that the CCAA permits staying grievance procedures and imposing a claims process, which does not constitute an amendment to the collective agreement.

The court also found no Charter violation and held that under the doctrine of paramountcy, the CCAA stay provisions prevail over the grievance arbitration requirements in the provincial Labour Relations Act.

The plaintiffs sued a discount broker, Interactive Brokers Canada Inc., in negligence after a trader they authorized to manage their corporate account lost over $1.8 million.

The plaintiffs alleged the broker breached its 'know your client' and 'gatekeeper' obligations by failing to investigate 'red flags' regarding the trader's status as an unregistered investment advisor.

The court dismissed the action, finding the broker complied with all regulatory requirements for opening a corporate account and was entitled to rely on the corporate resolution granting the trader authority.

The court also noted that even if liability were found, the plaintiffs failed to mitigate their damages after discovering the initial losses.

The defendant employer appealed a master's order requiring production of an external investigation report prepared by a lawyer following a fatal incident at a long‑term care facility.

The employer argued the report and related documents were protected by solicitor‑client privilege and that the master erred in ordering disclosure.

The court held the investigation was undertaken for the purpose of providing legal advice and was therefore privileged, rejecting the master’s finding that the lawyer had not been retained in that capacity and rejecting application of the common interest exception.

However, the court concluded that privilege had been waived through fairness considerations and public disclosure of portions of the report’s findings by the employer’s representatives.

The master’s order requiring production was upheld.

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 appellants appealed the dismissal of their claim for damages arising from the expropriation of their lands by the respondent municipalities and the subsequent transfer of those lands to Toyota for an auto plant development.

The appellants argued the transfer to Toyota at the expropriation price constituted an illegal bonus under s. 106 of the Municipal Act, which should invalidate the expropriation and entitle them to damages reflecting the lands' increased value.

The Court of Appeal dismissed the appeal, holding that the expropriation and sale were separate transactions, and even if s. 106 was breached, it would not invalidate the expropriation or confer a right to damages beyond the fair value provided under the Expropriations Act.

Following earlier motions seeking dismissal of two civil actions for delay, the court had dismissed the motions to dismiss but granted alternative relief compelling compliance with prior court orders, including outstanding undertakings.

The defendants and third party sought costs.

The court found that the plaintiffs had violated multiple court orders and allowed the actions to stagnate for several years, making the motion justified.

Applying Rule 57 and the fairness principles from Boucher, the court held that although the moving parties achieved only partial success, the plaintiffs’ conduct warranted a costs award.

Reduced costs were therefore ordered against the plaintiffs jointly and severally.

Following certification of a pension-related class proceeding, the plaintiff sought partial indemnity costs of over $210,000 for the certification motion.

The defendants conceded entitlement to costs but argued the claimed amount was excessive and opposed joint and several liability.

Applying the principles governing certification motion costs, including those articulated in Pearson v. Inco Ltd., the court determined that the plaintiff’s claimed costs were somewhat excessive and unsupported in part.

The court fixed fair and reasonable partial indemnity costs at $175,000 inclusive of disbursements and taxes.

The defendants were not held jointly and severally liable; instead, four groups of defendants were ordered to each pay an equal share.

The plaintiff sought to certify a class action on behalf of members of the Eastern Canada Car Carriers Pension Plan against the plan's trustees, administrative agent, and actuaries.

The plaintiff alleged that the defendants negligently or in breach of trust granted early retirement benefits when the plan had ongoing solvency issues, leading to a reduction in benefits for plan members.

The court found that the pleadings disclosed causes of action in negligence and breach of trust, the class was identifiable, there were common issues, a class proceeding was the preferable procedure, and the representative plaintiff was suitable.

The motion for certification was granted.

In a Commercial List proceeding involving allegations of fraudulent client statements and failure to supervise a securities representative, the court addressed repeated failures by the parties to comply with procedural timetables and case management orders.

The action had been scheduled twice for summary judgment but the parties failed to complete materials and examinations.

The court previously directed the matter to proceed as a hybrid trial with affidavit evidence-in-chief and cross‑examination at trial, but a self‑represented defendant failed to comply with orders to deliver evidence and served a deficient statement of defence consisting of a blanket denial.

At a further case management attendance, the court declined to make additional procedural orders and instead required the parties to choose between continuing under the hybrid trial timetable on the Commercial List or pursuing conventional discovery under the Rules of Civil Procedure, in which case the matter would be transferred to the Civil List.

The applicant sought an anti-suit injunction restraining the respondents from continuing a patent and contract dispute before a United States federal court in Illinois.

The respondents alleged that the applicant, as successor to a corporation that had entered a settlement agreement containing an Illinois forum selection clause, was bound by the agreement and had engaged in conduct infringing U.S. patents.

Applying the test in Amchem Products Inc. v. British Columbia (Workers’ Compensation Board), the court held the applicant failed to show that the foreign court assumed jurisdiction inconsistently with forum non conveniens principles or that substantial injustice would result if the foreign proceeding continued.

The Illinois court had jurisdictional connections including U.S. patents, Illinois governing law, and attornment by other defendants.

The application for an anti-suit injunction was dismissed.

Following certification of a proposed class proceeding concerning a medical product, the court determined the appropriate costs award for the certification motion and a related motion to strike an affidavit.

The court considered the factors in Rule 57.01 of the Rules of Civil Procedure and s. 31 of the Class Proceedings Act, 1992.

Although the plaintiffs were successful in obtaining certification, the evidentiary record and legal issues were relatively modest and the defendants made timely concessions that narrowed the scope of the dispute.

The court concluded that a conservative costs award was appropriate and reduced the plaintiffs’ claimed fees to a reasonable partial indemnity level.

The defendants were awarded costs for their successful motion to strike, which were offset against the certification costs.

Following the dismissal of the moving party's motions for leave to appeal and for a stay, the successful responding parties sought their costs on a partial indemnity basis.

The moving party failed to provide any costs submissions.

The court considered the principle of proportionality and the moving party's conduct which thwarted the bankruptcy trustee's mandate.

Costs were fixed at $20,000 for the trustee and $7,323.41 for the applicants, payable by the moving party.

The moving party sought leave to appeal an order appointing an investigative receiver over it.

The moving party argued the motion judge erred by not first finding evidence of fraud or dissipation of assets.

The Divisional Court dismissed the motion, finding the motion judge applied the correct test under s. 101 of the Courts of Justice Act and that the appointment was just and convenient given the interconnectedness of the moving party with bankrupt companies and the flow of funds between them.

The test for leave to appeal was not met.

The appellant appealed a trial judgment finding him liable for libel arising from statements published on a personal website and posted on third-party websites about an interior designer.

The appellant argued the trial judge erred by applying a 'completely true' test instead of a 'substantially true' test, and erred in applying the doctrine of fair comment.

The Court of Appeal dismissed the appeal, finding the trial judge explicitly stated and properly applied the 'substantially true' test, and correctly concluded the defence of fair comment failed because the underlying facts were not true.

The plaintiffs in a proposed class proceeding against the manufacturer of the drug Vioxx sought to have a former federal Minister of Health represent them on a certification motion.

The defendant successfully moved to disqualify the lawyer under rule 6.05(5) of the Rules of Professional Conduct, which prohibits a lawyer who has left public office from acting in a matter for which they had substantial responsibility.

The plaintiffs appealed.

The Divisional Court dismissed the appeal, finding the motion judge reasonably concluded that the lawyer's former responsibility for Health Canada during the drug's approval created potential private and public conflicts of interest.

The appellants appealed a summary judgment granted in favour of the respondent Bank.

The Court of Appeal found that the motion judge correctly determined that a key paragraph in the Bank's supporting affidavit should be ignored because the affiant failed to disclose the sources of her knowledge.

However, having made that determination, the motion judge erred in granting summary judgment, as there remained a genuine issue for trial regarding how much, if anything, the corporate appellant owed the Bank.

The appeal was allowed and the Bank's motion for summary judgment was dismissed.