Peter David Ruby

In Companies’ Creditors Arrangement Act (CCAA) proceedings, LoyaltyOne, Co. and its Monitor sought a declaration that a Tax Matters Agreement (TMA) was not binding or was void as a transfer at undervalue (TUV), and sought to disclaim the TMA to secure a $96 million tax refund.

Bread Financial Holdings, Inc. (formerly ADS) cross-moved to set aside the disclaimer, asserting its entitlement to the refund under the TMA.

The court ruled that LoyaltyOne was bound by the TMA, the TMA was not void as a TUV, and the disclaimer was not approved.

The court found it premature to determine the specific nature of Bread's rights to the refund.

Crystallex International Corporation and Tenor Special Situation I, LP sought leave to appeal a motion judge's order that partially dismissed Crystallex's request to seal certain financial information in the Monitor's Thirty-Third Report.

The motion judge had applied the Sierra Club test and found the evidence for sealing speculative.

The Court of Appeal refused leave, finding the proposed appeal was not prima facie meritorious and the case was not of significance to the practice, upholding the motion judge's discretionary order.

Crystallex International Corporation brought a motion for a sealing order to keep confidential certain financial information and strategic details contained in the Monitor's 33rd Report, including cash balance, litigation expenses, sanctions impact, and confidential mediation disputes.

The Ad Hoc Committee of senior noteholders and the Trustee opposed the sealing of financial information, arguing for the importance of disclosure in CCAA proceedings.

The court applied the Sierra Club test, which requires demonstrating a real and substantial risk to an important commercial interest, no reasonable alternative to sealing, and the salutary effects outweighing the deleterious effects on the open-court principle.

The court found Crystallex's evidence, consisting of bald and speculative statements, insufficient to meet this high evidentiary burden, and therefore dismissed the motion for a sealing order.

The applicant, Trader Corporation, operating digital marketplaces for vehicles, alleged copyright infringement by the respondent, CarGurus, Inc., a competitor, for posting photos taken by Trader's photographers on its own website.

Trader sought a declaration of infringement, a permanent injunction, and statutory damages.

The court found that Trader owned copyright in 152,532 photos and that CarGurus infringed them.

The fair dealing defence was rejected, and CarGurus was not considered an "information location tool" exempt from statutory damages.

However, the court found that the minimum statutory damages of $500 per photo would be grossly disproportionate and reduced the award to $2 per photo, totaling $305,064.

Requests for punitive damages and a permanent injunction were dismissed.

The appeal addressed whether a federal regulator had statutory authority to implement a market-based regime requiring negotiations over compensation for retransmission of local television signals.

The majority held the proposed regime exceeded statutory authority and conflicted with the copyright scheme governing retransmission rights and exceptions.

The dissent would have found a sufficient statutory basis and no operational conflict between the two statutes.

The appeal was allowed, with costs throughout.