Paul Douglas Guy

The Ministry of the Environment appealed a CCAA judge's decision that environmental remediation orders issued against an insolvent company were subject to a stay of proceedings.

The insolvent company had abandoned a contaminated site after selling its other assets.

Applying the Supreme Court's decision in AbitibiBowater, the Court of Appeal found it was sufficiently certain that the Ministry would perform the remediation work itself, making the regulatory orders in substance a provable monetary claim in the insolvency.

The appeal was dismissed.

The appellant appealed the dismissal of his claim, which was found to be commenced outside the two-year limitation period under the Limitations Act, 2002.

He argued the motions judge erred by not finding the limitation period was tolled due to fraudulent concealment by the respondents.

The Court of Appeal dismissed the appeal, agreeing with the motions judge that there was no basis in the evidence for the fraudulent concealment claim, as the lack of disclosure was immaterial and the appellant was a party to the telephone call he alleged was concealed.

Former directors and officers of an insolvent corporation sought an order requiring that an environmental remediation claim filed by the provincial environment ministry be adjudicated within ongoing insolvency proceedings under the Companies’ Creditors Arrangement Act.

They also sought to stay an appeal proceeding before the Environmental Review Tribunal concerning a director’s order requiring remediation of a contaminated site.

The court held that the statutory scheme under the Environmental Protection Act assigns jurisdiction over appeals of director’s environmental orders to the Environmental Review Tribunal.

Given that the insolvency restructuring had effectively concluded and no plan of arrangement would compromise claims against the directors and officers, there was no basis for the insolvency court to assume jurisdiction over the environmental order appeal.

The court rejected arguments based on federal paramountcy and interjurisdictional immunity.

The motion was dismissed and the matter left to the Environmental Review Tribunal.

In CCAA proceedings involving several related aerospace entities, the court considered a motion by the court-appointed monitor seeking approval of an adjudication process and determinations regarding claims asserted against a directors’ and officers’ charge.

The Ministry of the Environment filed claims for environmental remediation costs arising from pre‑filing contamination and anticipated a future director’s order against former directors and officers.

A law firm representing certain directors and officers also filed contingent contribution and indemnity claims.

The court held that the environmental claims and related indemnity claims did not constitute liabilities incurred by directors and officers after the commencement of the CCAA proceedings within the meaning of s. 11.51 of the Companies’ Creditors Arrangement Act.

Allowing such claims to access the directors’ charge would improperly alter creditor priorities and indirectly elevate unsecured environmental claims over a secured lender.

Following a receivership motion concerning access to business records, the court addressed costs.

The moving party had substantially succeeded in enforcing provisions of an Appointment Order requiring delivery and access to records, including a valuation model and database used in the debtor’s business.

The court held that disputes regarding ownership of those materials were irrelevant to whether they constituted “Records” under the Appointment Order.

The responding corporate entity and an individual who hindered the receiver’s access were held jointly and severally liable for partial indemnity costs.

Costs of $10,682.81 were awarded to the party funding the receivership.

Following a prior decision granting summary judgment and dismissing the plaintiff’s action as statute‑barred under the Limitations Act, the court determined the appropriate costs award.

The successful defendants sought approximately $75,000 on a substantial indemnity basis, while the plaintiff argued that $30,000 on a partial indemnity basis was reasonable.

The court held that substantial indemnity was not justified because the plaintiff had not engaged in improper, vexatious, or unnecessary conduct and the procedural steps taken were pursuant to court orders.

Applying the principles in Boucher v. Public Accountants Council of Ontario and the factors under Rule 57.01(1), the court fixed costs at $35,000 on a partial indemnity basis.

The defendants brought a motion for summary judgment to dismiss the plaintiff's action for a trading loss caused by a botched share transfer, arguing it was statute-barred.

The plaintiff argued the claim was not discovered until 2010 when new information was disclosed.

The court found the plaintiff knew enough material facts by April 2007 to commence a legal proceeding.

Even accounting for a nine-month tolling period during an Ombudsman investigation, the action commenced in November 2011 was well beyond the two-year limitation period.

The motion for summary judgment was granted and the action dismissed.

In an insolvency appeal, the Court addressed when environmental remediation orders issued by a provincial regulator constitute provable monetary claims under the Companies’ Creditors Arrangement Act.

The majority held that orders not framed in monetary terms may still be compromised where the statutory and factual context shows sufficient certainty that compliance will ripen into a financial liability to the regulator.

Applying that framework, the majority found the remediation orders fell within the claims process and dismissed the appeal.

The dissenting judges would have required evidence approaching certainty that the province would itself perform remediation before treating most orders as contingent monetary claims.

The applicant sought the appointment of a receiver over the respondent’s assets pursuant to a general security agreement securing obligations under a master purchase agreement and grid promissory note relating to solar photovoltaic projects.

The respondent argued the security covered only certain up-front fees and that payment obligations had not yet matured due to alleged contractual cure periods and funding obligations.

The court rejected these interpretations, finding that both engineering, procurement, and construction fees and up-front fees were secured obligations and that the amounts owing were past due.

Given the outstanding debt and the contractual security rights, the court held that the appointment of a receiver was appropriate to manage and sell the underlying solar projects in an orderly process protecting stakeholder interests.

During CCAA proceedings involving an aerospace manufacturer, former directors and officers sought an interlocutory injunction restraining the provincial environmental regulator from issuing a Director’s Order under the Environmental Protection Act pending determination of a related motion concerning adjudicative procedures for claims in the CCAA process.

The moving party argued that a “status quo” exception permitted injunctive relief against the Crown to preserve the court’s process.

The court held that the Proceedings Against the Crown Act generally bars injunctions against the Crown and that the asserted status quo exception did not apply because there was no government wrongdoing and the Environmental Protection Act provides a complete statutory scheme for issuing and appealing environmental orders.

The court further held that the moving party failed to meet the RJR‑Macdonald test, including establishing a serious issue to be tried or irreparable harm.

The motion was dismissed.

In a CCAA proceeding, the Applicants (Hollinger Inc. et al.) sought approval of settlement agreements with their former auditors (KPMG) and lawyers (Torys).

The Non-Settling Defendants, including Conrad Black and David Radler, opposed the settlements, arguing the court lacked jurisdiction and that the included third-party releases and bar orders would deprive them of procedural rights to discovery.

The court held it had jurisdiction under the CCAA to manage litigation as a corporate asset.

The court approved the Pierringer-style settlements, finding that the procedural rights of the Non-Settling Defendants could be adequately protected through active case management and the application of the principle of proportionality in discovery.

The appellant appealed an order dismissing its motion to remove the respondents' lawyers of record due to an alleged conflict of interest.

The appellant argued that a 'near client' relationship was established through a telephone call and an email sharing information among franchisees defending against claims by a third-party franchisor.

The Divisional Court dismissed the appeal, finding no error in the motion judge's conclusion that the shared information was used for its intended purpose and did not establish a near client relationship.

The plaintiff sued the corporate defendant and its principal for wrongful dismissal.

The defendants filed a joint statement of defence alleging cause, and the corporation counterclaimed.

The corporation later became insolvent, and its counterclaim was assigned to the principal.

After the corporation's statement of defence was struck for failure to attend discovery, resulting in deemed admissions of the plaintiff's allegations, the principal sought to amend his pleadings to continue the counterclaim.

The Court of Appeal upheld the decision denying the amendments, finding that because the principal stood in the shoes of the corporation, the deemed admissions made the counterclaim legally impossible to succeed, rendering the proposed amendments an abuse of process.

The appellant purchased eight condominium units from the respondent developer, four of which were custom-designed for use as a head office.

A dispute arose over the adequacy of the common elements, specifically the exterior doors, windows, and HVAC system, to meet the custom design requirements.

The appellant sued for specific performance or damages.

The respondent successfully moved at the Divisional Court to strike the claim on the basis that section 23(1) of the Condominium Act, 1998 grants exclusive standing to the condominium corporation to sue regarding common elements.

The Court of Appeal allowed the appeal, holding that the word 'may' in section 23(1) is permissive.

It grants the corporation standing to sue on behalf of owners for common issues but does not deprive an individual unit owner of the right to pursue contractual or unit-specific claims relating to common elements immediately pertaining to their unit.

The appellants appealed a sealing order that redacted the amounts to be paid under two proposed settlement agreements in a CCAA proceeding.

The appellants argued the sealing order unjustifiably infringed the open court principle.

The Court of Appeal dismissed the appeal, finding that litigation settlement privilege applied to the settlement agreements until approved by the court.

The court held that the sealing order was a minimal intrusion on the open court principle, the requirement to sign a confidentiality agreement did not impose an undue burden, and the respondents did not waive privilege by complying with the court order.

The applicant sought leave to appeal an order dismissing its motion to remove and replace the administrator of a condominium corporation.

The applicant argued the motion judge erred in principle in applying the test for replacing an administrator under the Condominium Act.

The Divisional Court found no good reason to doubt the correctness of the motion judge's order, noting she had properly assessed the evidence and applied the correct test.

The court also found the matter did not transcend the interests of the parties.

The motion for leave to appeal was dismissed with costs.

The defendant developer moved for leave to appeal a motions judge's decision refusing to strike or stay an action brought by an individual condominium unit owner.

The unit owner sought damages for construction deficiencies, including to common elements.

The condominium corporation had already commenced a separate action on behalf of all owners for common element deficiencies.

The Divisional Court granted leave to appeal, finding conflicting decisions on whether an individual owner can maintain a separate action for common element deficiencies without opting out of the corporation's action, and good reason to doubt the correctness of the motions judge's decision.

The bankrupt company's creditors appealed an order dismissing their motion under s. 135(5) of the Bankruptcy and Insolvency Act to challenge a proof of claim filed by a judgment creditor.

The proof of claim was based on a Singapore judgment.

The creditors argued that the judgment creditor received payments from a third party that should be set off against the judgment debt to prevent double recovery.

The Court of Appeal dismissed the appeal, holding that the creditors did not have an unqualified right to challenge a valid judgment debt under s. 135(5).

The court further held that the creditors were privies of the bankrupt company and were barred by the doctrine of res judicata from re-litigating the mitigation and set-off issues, which had already been determined in the Singapore proceedings.

The applicants sought costs following a successful judicial review application.

The court reviewed the lengthy submissions and deducted amounts claimed for an initial, unsuccessful application brought before the Commercial Court.

The court also disallowed partial indemnity rate increases that exceeded the actual rates charged to the client.

Costs were fixed at $151,065.82, inclusive of fees, GST, and disbursements.

The appellants, commercial fishers, challenged a communal fishing licence issued under a pilot sales program that granted members of three aboriginal bands the exclusive right to fish for salmon for 24 hours.

They argued the licence discriminated against them on the basis of race, violating their equality rights under s. 15(1) of the Charter.

The Supreme Court of Canada dismissed the appeal, holding that the program was protected by s. 15(2) of the Charter because it had an ameliorative purpose and targeted a disadvantaged group.

The Court established that if a program meets the criteria of s. 15(2), it does not violate the s. 15 equality guarantee.