Peter Frederick Cowan Howard

Following the dismissal of an appeal regarding a receiver's decision to permit a corporation in receivership to plead guilty in an American criminal trial, the respondents sought costs.

The appellants argued no costs should be awarded as the issues were novel and complex.

The Court of Appeal rejected this argument, finding the appeal involved a standard review of a Commercial List judge's discretion.

The Court awarded costs to the respondents on a partial indemnity basis, fixing the amounts at a fair and reasonable level rather than actual costs incurred, payable by Lord Black and Conrad Black Capital Corporation.

Sunrise REIT initiated an auction process to sell its assets, requiring interested parties, including Ventas and HCPI, to sign confidentiality and standstill agreements.

Ventas submitted the winning bid, and Sunrise signed a purchase agreement containing a 'fiduciary out' clause allowing it to consider superior unsolicited proposals, but also requiring it to enforce existing standstill agreements.

HCPI subsequently submitted a higher bid.

The Court of Appeal upheld the application judge's ruling that the purchase agreement obliged Sunrise to enforce HCPI's standstill agreement, thereby precluding Sunrise from considering HCPI's bid, as it was not a 'bona fide' proposal due to the breach of the standstill agreement.

The court-appointed receiver of a corporation recommended that the company enter a plea agreement and plead guilty to a charge of mail fraud in the United States.

The motion judge approved the recommendation as being within the bounds of reasonableness.

The appellants appealed, arguing the receiver failed to properly assess the risk of conviction and the benefits of the plea agreement.

The Court of Appeal dismissed the appeal, finding no error in the motion judge's conclusion that the receiver's assessment of the risk of conviction, cost savings, and reduced exposure to civil liability and restitution was reasonable.

The Superintendent of Financial Services appealed an order lifting a CCAA stay and permitting bankruptcy petitions to proceed against the insolvent Ivaco companies.

The Superintendent argued that unpaid pension contributions subject to a deemed trust under the Pension Benefits Act should have been paid or segregated before bankruptcy.

The Court of Appeal dismissed the appeal, holding that the CCAA and BIA create a comprehensive federal insolvency scheme that leaves no gap for provincial deemed trusts to operate outside of bankruptcy.

The court also upheld the motions judge's discretionary decision to lift the stay and his order transferring the companies' head offices to Toronto under the Canada Business Corporations Act.

Sears Holdings Corporation appealed a decision of the Ontario Securities Commission regarding its insider bid for Sears Canada Inc. The OSC had found that Holdings failed to comply with disclosure obligations, entered into agreements that contravened the Securities Act, and engaged in abusive and coercive conduct.

The Divisional Court dismissed the appeal, holding that the standard of review for OSC decisions interpreting its constituting statute is reasonableness simpliciter, and that the OSC's findings and remedies were reasonable.

The appellants appealed a decision interpreting a shareholders' agreement and related documents concerning rights of first refusal and first offer for shares in a publicly traded company.

The respondents had delivered selling notices offering to sell shares to the appellants on terms substantially in accordance with a draft acquisition agreement with a third party, which included a 'superior proposal' condition.

The appellants accepted the offer but argued the superior proposal condition did not apply to them.

The Court of Appeal dismissed the appeal, finding that the selling notices incorporated the superior proposal conditions and that interpreting the agreement to allow the appellants to preempt the superior proposal process would be contrary to commercial reality and the goal of maximizing share value.

The plaintiff sought to examine the Honourable John Manley, a Member of Parliament, for discovery in a civil action.

The motion judge ordered the Member to attend no sooner than 15 days after the commencement of Parliament's summer recess, finding that parliamentary privilege against testifying only applied while Parliament was actually sitting and for 14 days after adjournment.

The Court of Appeal allowed the appeal, holding that the privilege of testimonial immunity extends throughout a parliamentary session, as well as 40 days before a session begins and 40 days after it ends.

The court concluded that any changes to this privilege must be enacted by Parliament, not the courts.

In the context of Air Canada's CCAA restructuring, the appellant sought leave to appeal an order approving an equity investment agreement with Trinity Time Investments Limited and denying an adjournment to consider a competing proposal.

The Court of Appeal dismissed the motion for leave, finding no error in the supervising judge's decision to approve the agreement, which contained a 'fiduciary out' clause allowing the board to consider superior proposals.

The court held that the test for leave to appeal in CCAA proceedings—requiring serious and arguable grounds of real and significant interest—was not met.

The appellants appealed a trial judgment finding that a transaction between the bankrupt company and its subsidiaries was a reviewable transaction under s. 100 of the Bankruptcy and Insolvency Act and constituted oppression under s. 248 of the Business Corporations Act.

The trial judge found a conspicuous difference between the fair market value of the promissory note given up by the bankrupt and the shares it received.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error in the trial judge's factual findings regarding fair market value, and holding that the trial judge properly exercised his discretion in allowing the trustee in bankruptcy to act as a complainant for the oppression remedy.

The Court of Appeal for Ontario issued a costs endorsement following an appeal.

Costs were awarded to the respondent, Air Canada, against the appellant, Global Payments Canada Inc., on a partial indemnity basis fixed at $46,000 inclusive of disbursements and GST.

The Court of Appeal for Ontario issued an endorsement regarding the costs of an appeal in the context of Companies' Creditors Arrangement Act proceedings involving Air Canada.

The court awarded costs to the respondent, Air Canada, against the appellant, Global Payments Canada Inc., on a partial indemnity basis fixed at $46,000 inclusive of disbursements and GST.

Air Canada applied for relief under the Companies' Creditors Arrangement Act.

The initial stay order required the appellant to continue providing credit card processing services to the respondent.

The appellant appealed, arguing the order violated s. 11.3(b) of the CCAA by requiring a further advance of money or credit due to its exposure to chargebacks.

The Court of Appeal dismissed the appeal, finding that the risk of chargeback exposure was a contingent liability, not an extension of credit, and that receiving immediate payment for future services did not constitute a further advance of money or credit.

The moving parties, Global Payments Direct Inc. and Global Payments Canada Inc., sought to expedite and consolidate the hearing of their motion for leave to appeal and the appeal itself from an order in Air Canada's CCAA proceedings.

The moving parties sought security for their exposure to credit card chargebacks.

The Court of Appeal held that while it had jurisdiction to consolidate the proceedings under Rule 2.03, such an order is exceptional.

The court expedited the leave motion and potential appeal but declined to consolidate them, finding the moving parties would not suffer substantial prejudice if the usual practice of separate hearings was followed.

The plaintiff brought a proposed class action against the manufacturers and the independent tester (ULC) of an allegedly defective smoke alarm, seeking damages for pure economic loss.

The defendants moved to strike the statement of claim as disclosing no reasonable cause of action.

The Court of Appeal held that the plaintiff could not maintain an action against the manufacturers whose products he did not purchase.

However, the court allowed the negligence claim against the manufacturer of his specific smoke alarm to proceed, finding it was not plain and obvious that a claim for pure economic loss based on a defective safety device would fail.

The negligence claim against the independent tester was struck out as it owed no prima facie duty of care to the purchaser.

Ardagh PLC, an unsuccessful bidder in a court-approved sale process under the CCAA, sought leave to appeal the order approving the sale of Consumers Packaging Inc.'s assets to Owens-Illinois, Inc. The Court of Appeal refused leave, noting that leave to appeal in CCAA proceedings should be granted sparingly and not where it would prejudice the restructuring.

The court also noted that an unsuccessful bidder generally lacks standing to challenge a sale approval order.