Orestes Pasparakis

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.

This decision concerns the interpretation of a “Material Adverse Change” (MAC) clause in a governance agreement between Simpson Oil Limited (SOL) and Parkland Corporation.

The court found that the departures of Parkland’s CFO and a majority of its senior management constituted a MAC under the agreement, thereby lifting restrictions on SOL’s voting and acquisition rights.

The decision turns on whether certain events listed in the MAC definition are mandatory triggers or merely illustrative, and the court concludes they are mandatory.

Aimia Inc. brought an application under s. 104 of the Securities Act alleging that Mithaq Capital SPC's acquisition of shares a year prior constituted a deemed take-over bid because Mithaq acted jointly with others to exceed the 20% threshold.

Mithaq brought a motion to dismiss the application on a preliminary basis.

The Capital Markets Tribunal found that while Aimia had standing to bring the application, the application was an abuse of process.

The Tribunal dismissed the application because Aimia's long delay in seeking relief, combined with significant intervening events, made the application a misuse of the Tribunal's procedure.

Mithaq Canada Inc. applied to the Capital Markets Tribunal to cease trade a private placement by Aimia Inc., arguing it was an abusive defensive tactic designed to thwart Mithaq's take-over bid.

Mithaq also sought to set aside a decision of the Toronto Stock Exchange (TSX) that conditionally approved the private placement without requiring shareholder approval.

Aimia brought a cross-application to deny Mithaq the use of the 5% exemption for share purchases.

The Tribunal dismissed both applications.

It found that Aimia had a serious and immediate need for financing, and the private placement was negotiated largely before Mithaq's bid became imminent.

Although the private placement altered the bid dynamics, it was not clearly abusive.

The Tribunal also found no grounds to interfere with the TSX's decision, as the TSX did not err in principle and there was no compelling new evidence.

Finally, the Tribunal declined to alter the minimum tender condition or deny Mithaq the 5% exemption, finding no exceptional circumstances or lack of good faith.

Mithaq Canada Inc. applied to the Capital Markets Tribunal to cease trade a shareholder rights plan and a private placement adopted by Aimia Inc., alleging they were improper defensive tactics against Mithaq's unsolicited take-over bid.

Mithaq sought interim relief pending the full hearing.

The Tribunal ordered that the private placement be cease traded unless Aimia undertook that any securities issued under it would not be tendered to any alternative take-over bid or issuer bid.

The Tribunal dismissed Mithaq's requests for additional undertakings, including requiring Aimia to segregate the private placement proceeds or assume responsibility for investor breaches.

Rogers Communications Canada Inc. sought an interlocutory injunction and a sealing order against TELUS Communications Inc. The core dispute revolved around whether Rogers' customers, when roaming on the TELUS network, should display "Rogers-EXT" or "TELUS" as the network identifier (NID).

Rogers argued for maintaining the "Rogers-EXT" status quo pending arbitration, while TELUS contended that an expired agreement required "TELUS" display.

The court characterized the injunction sought as mandatory, requiring Rogers to demonstrate a strong prima facie case.

The court found that the NID issue was subject to issue estoppel due to a prior arbitration decision and that Rogers failed to establish a strong prima facie case or irreparable harm.

Consequently, the motion for injunctive relief was dismissed.

The motion for a sealing order for confidential materials, which was unopposed, was granted.

The applicants, holding approximately nine percent of the units of First Capital Real Estate Investment Trust, requisitioned a special meeting to replace four trustees.

The board scheduled the meeting for May 16, 2023, five months after the requisition.

The applicants sought an order compelling the meeting to be held earlier.

The court found that the board's decision to delay the meeting was not deserving of deference, as the justifications provided—cost savings, allowing a business plan to unfold, and providing more time for unitholder consideration—were not compelling and prejudiced the requisitioning unitholders.

The application was granted, and the trust was ordered to hold the meeting as soon as practicable after March 1, 2023.

Porter Airlines and Nieuport Aviation disputed the calculation of terminal fees at Billy Bishop Airport under a Licence Agreement.

Porter argued it could pay fees based on a variable daily slot allocation and claimed force majeure due to the COVID-19 pandemic to excuse non-payment.

Nieuport argued fees were based on a fixed, recurring number of daily slots and counterclaimed for unpaid fees.

The court held that the Licence Agreement required payment based on a fixed number of recurring daily slots.

The court also found that the COVID-19 pandemic did not trigger the force majeure clause to excuse Porter's payment obligations.

Porter was ordered to pay over $131 million in damages for unpaid terminal fees, while Nieuport's recourse under a guarantee was limited to specified aircraft.

Following the dismissal of the plaintiff's action on a motion for summary judgment, the defendants sought costs on a substantial indemnity basis.

The court found that the plaintiff's unfounded allegations of intentional misconduct, fraud, and conspiracy warranted an elevated scale of costs.

The court distinguished a previous decision involving the same plaintiff and awarded the defendants substantial indemnity costs fixed at $900,000.

The defendants brought a motion for summary judgment to dismiss the plaintiff's action for treble damages and double costs under the Statute of Monopolies and common law torts, following the invalidation of the defendants' patent for Viagra.

Relying on a recent coordinate decision, the court found that the Patent Act and the Patented Medicines (Notice of Compliance) Regulations operate as a complete code, precluding the plaintiff's claims.

The court also dismissed the plaintiff's additional claims for unjust enrichment and nuisance on their merits.

The motion for summary judgment was granted, and both the claim and counterclaim were dismissed.

Merck sought to impeach Wyeth's composition and formulation patents relating to the Prevnar 13 pneumococcal conjugate vaccine.

The Court found that the composition patent claims were valid but limited to 13 serotypes, as the invention was neither anticipated nor obvious given the complexities of conjugation and immune interference.

However, the Court invalidated the formulation patents, finding that the use of surfactants, buffers, and aluminum salts to stabilize formulations in siliconized containers was obvious in light of prior art, and the specific 13-valent claims were invalid for obviousness-type double patenting.

The defendants sought to adjourn a scheduled 20-day trial to bring a summary judgment motion, or alternatively, to await a decision in a similar case.

The plaintiff opposed, arguing procedural requirements for such an adjournment.

Following a relevant summary judgment decision by another judge in a related action, the court vacated the trial date and ordered a schedule for the defendants' summary judgment motion.

The court found that a summary judgment could resolve the case more quickly and cheaply, emphasizing judicial economy and the principle of stare decisis, and that prior decisions refusing summary judgment in similar cases did not preclude reconsideration given new circumstances.

The appellants, an unsuccessful bidder and a dissenting shareholder, sought a stay of an order approving a plan of arrangement by which NordStar Capital LP would acquire Torstar Corporation, pending their appeal.

The Divisional Court dismissed the motion for a stay, finding that the appellants failed to establish a serious issue for appeal, irreparable harm, or that the balance of convenience favoured a stay.

The court noted that the appellants lacked standing, the hearing process was fair, and the board acted reasonably in rejecting the unsolicited offer in light of hard lock-up agreements.

Torstar Corporation sought court approval for a plan of arrangement to sell all its shares to NordStar Capital LP for $0.74 per share.

The arrangement was overwhelmingly approved by shareholders.

Competing bidder CMMH and dissenting shareholder Patrick Collins objected, alleging inadequate disclosure and a flawed bidding process due to hard lock-up agreements.

The court found the arrangement had a valid business purpose, the process was conducted in good faith with professional advice, and the objections were resolved fairly.

The court emphasized the weight given to the shareholder vote and the Board's business judgment, particularly in uncertain times, and approved the arrangement.

Catalyst Capital Group Inc. attempted to acquire VimpelCom Ltd.'s interest in Wind Mobile Corp. but negotiations failed.

During negotiations, a junior analyst employed by Catalyst left to work for West Face Capital Inc., a member of a consortium that subsequently acquired Wind.

Catalyst sued the former employee and West Face for breach of confidence and other claims (the Moyse Action).

The trial judge dismissed the action, finding that no confidential information was communicated and that Catalyst suffered no detriment because its own refusal to agree to a break fee and its insistence on regulatory concessions made the deal impossible.

Catalyst then commenced a second action against the consortium members and others alleging breach of confidence, conspiracy, and inducing breach of contract.

The motion judge dismissed the second action as barred by issue estoppel, cause of action estoppel, and as an abuse of process.

The Court of Appeal upheld the dismissal, finding that Catalyst was attempting to relitigate factual findings from the first action and that it could have advanced all claims in the first proceeding.

This motion concerned the approval of fees and conduct of Ernst & Young Inc. (EY), a court-appointed expert, and its counsel, Norton Rose Fulbright Canada LLP, after the underlying dispute between the plaintiffs and defendants settled.

The defendants challenged the substantial fees, alleging EY's mandate was impossible, it made false statements, was careless, and biased.

The court applied the test for reviewing receiver's fees, finding that the defendants' persistent lack of cooperation significantly increased the complexity and cost of EY's investigative work.

The court dismissed all defendant complaints, approved EY's conduct and fees, and awarded EY full indemnity costs for the motion due to the defendants' unsubstantiated allegations of misconduct.

The applicants, dissident shareholders engaged in a proxy contest, sought a hearing and review of a Toronto Stock Exchange (TSX) decision that conditionally approved the issuance of shares by Eco Oro Minerals Corp. to certain shareholders without requiring a shareholder vote.

The TSX permitted an accelerated closing of the share issuance just days before the record date for a requisitioned shareholder meeting.

The Ontario Securities Commission conducted a de novo review, finding that the TSX overlooked material evidence regarding the proxy contest and erred in its interpretation of 'materially affect control.' The Commission set aside the TSX decision, concluding that the share issuance materially affected control and required shareholder approval.

To remedy the improper issuance, the Commission ordered Eco Oro to hold a shareholder vote to either ratify or reverse the share issuance, cease-traded the new shares pending the vote, and prohibited the new shares from being voted at the upcoming meeting.

The appellants appealed the motion judge's order striking their statement of claim without leave to amend on grounds of being time-barred and constituting an abuse of process.

The Court of Appeal found that while most of the claims were properly struck as statute-barred under the Limitations Act, 2002, the motion judge erred by not separately considering paragraph 39 of the statement of claim, which alleged a new claim arising from the dissolution of a corporate defendant in 2013.

The court allowed the appeal in part, setting aside the order with respect to paragraph 39 and remitting the matter for further consideration.