Orestes Pasparakis

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.

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.

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.

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 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.

The applicants sought an order sanctioning their Plan of Compromise and Arrangement under the Companies’ Creditors Arrangement Act (CCAA) and extending the stay period.

The Plan aimed to restructure the Pacific Group's indebtedness by approximately US $5.1 billion and maintain it as a going concern.

A Shareholder Consortium proposed an alternative recapitalization and refinancing proposal and requested an adjournment, which was opposed by the applicants and other stakeholders.

The court denied the adjournment, finding the alternative proposal a "last minute effort to de-rail" the restructuring.

The court sanctioned the Plan, finding strict compliance with CCAA requirements, good faith, and that the Plan was fair and reasonable, representing the best alternative available.

The court also approved third-party releases and granted a stay of proceedings for non-applicant parties, as well as extending the stay period.

The applicant, GuestLogix Inc., sought an initial order under the Companies' Creditors Arrangement Act (CCAA) for a stay of proceedings, the appointment of a Monitor, and authorization for super-priority charges.

The court found the applicant to be an insolvent debtor company with over $5 million in unsecured liabilities, making it eligible for CCAA protection.

The court granted the stay and the requested Administration and Directors' Charges.

However, due to a potential conflict of interest raised by a secured creditor, the court declined to appoint the proposed Monitor, Deloitte Restructuring Inc., and instead appointed PricewaterhouseCoopers Inc.

A supplier sought specific performance of a master services agreement during proceedings under the Companies’ Creditors Arrangement Act, arguing that deferred implementation fees constituted payment for post‑filing licensed software use and therefore fell within the supplier payment exception in s. 11.01(a).

The court examined the contractual structure separating implementation services from ongoing outsourcing services and held that the implementation fee related to historical system development completed before the CCAA initial order.

Because the services associated with the implementation fee were performed pre‑filing, the claim constituted a pre‑filing debt subject to the stay of proceedings.

The exception in s. 11.01(a) applies narrowly and only to goods or services provided after the initial order.

The motion seeking payment of deferred implementation fees and related amounts was dismissed.

The defendant tobacco companies brought motions for summary judgment to dismiss the plaintiffs' proposed class actions as statute-barred.

The plaintiffs alleged the defendants breached their contracts by participating in smuggling duty-free tobacco back into Canada, avoiding higher domestic prices.

The defendants argued the plaintiffs knew or ought to have known of the alleged smuggling long before commencing the actions in 2009 and 2010.

The court dismissed the motions, finding a genuine issue requiring a trial regarding when the plaintiffs discovered the constituent elements of their claims, particularly given the defendants' consistent denials of involvement in smuggling.

A dissident unitholder sought declarations allowing it to nominate trustees at a real estate investment trust’s annual meeting despite the trust’s advance notice policy.

The dispute turned on the interpretation of a proviso stating that adjournment or postponement of a meeting would not commence a new nomination period.

The court held that the nomination window is triggered by the actual date of the meeting, not the originally scheduled date, and that the proviso merely prevents previously valid nominations from becoming stale after postponement.

Interpreting the declaration of trust according to contractual principles and favouring unitholder electoral rights where ambiguity exists, the court concluded that the applicant’s nomination notice was timely.

The applicant was therefore entitled to nominate trustees at the meeting.

The Applicants, operating a network of alternative financial services branches across Canada, sought initial protection under the Companies' Creditors Arrangement Act (CCAA) due to a severe liquidity crisis and regulatory challenges.

The court found the Applicants to be insolvent and granted a stay of proceedings to provide breathing space for restructuring.

The court confirmed its jurisdiction to hear the matter in Ontario, as the Applicants' chief place of business is located there.

However, the court deferred the request for a DIP financing charge to allow other stakeholders time to respond.

The applicant shareholder brought an application under s. 247 of the Canada Business Corporations Act seeking an order that the respondent corporation comply with and refrain from breaching s. 150 regarding proxy solicitation.

The dispute arose from a corporate press release issued during a proxy contest, which the applicant alleged constituted an unlawful solicitation of proxies prior to delivery of a management proxy circular.

The court considered whether the communication was “calculated to result in the procurement or withholding of a proxy” within the meaning of the Act.

Interpreting solicitation broadly but contextually, the court found the press release primarily responded to criticisms and explained corporate actions rather than encouraging shareholders to submit proxies.

The press release therefore did not constitute a solicitation and no breach of s. 150 occurred.