Peter J. Cavanagh

Following a successful motion to approve a proposal to creditors under the Bankruptcy and Insolvency Act, the Proposal Trustee and the debtor sought costs against the sole opposing creditor.

The opposing creditor argued that costs should not be awarded against creditors in insolvency proceedings on policy grounds.

The court rejected this argument, finding that the creditor was not relieved from paying costs after unsuccessfully opposing the motion.

The court awarded partial indemnity costs of $20,000 to the Proposal Trustee and $20,226.44 to the debtor.

Following a successful response to a jurisdiction motion brought by the Proposal Trustee, the party seeking costs sought partial indemnity costs of $40,470.16.

The Proposal Trustee argued the amount was disproportionate and suggested $15,000.

The court found the time spent and hourly rates reasonable, and fixed costs payable by the Proposal Trustee at $40,470.16.

The plaintiffs moved for leave to issue a certificate of pending litigation against a commercial property in Barrie, alleging an agreement to jointly acquire the property with the defendants.

The court found a triable issue regarding the plaintiffs' claim to an interest in the land, including whether one defendant acted as an agent for an undisclosed principal.

However, balancing the equities, the court dismissed the motion conditional upon the corporate owner providing an undertaking not to sell the property except to a bona fide purchaser, to pay 50% of net proceeds into court if sold, and to provide 30 days' notice of any refinancing or sale.

The moving party, having successfully obtained an order declaring that no secured indebtedness was owing by the debtor to a related company, sought costs of the motion.

The moving party sought costs on a substantial indemnity scale, arguing it undertook actions that benefited all creditors.

The court declined to award substantial indemnity costs, finding no reprehensible conduct.

The court fixed costs on a partial indemnity scale at $89,339.63, payable jointly and severally by the debtor and the related company, as both had actively opposed the motion.

In a receivership and bankruptcy proceeding, a dispute arose regarding the distribution of proceeds from the sale of a property.

The 259 Group, a second mortgagee, had previously settled a motion regarding the distribution of holdback funds, resulting in a consent order.

The Trustee and a third mortgagee argued that this settlement finally determined the amount of indebtedness owed to the 259 Group, barring them from making a further secured claim in the bankruptcy.

The court applied the doctrine of issue estoppel and interpreted the consent order, concluding that the settlement only resolved the priority of the holdback funds, not the total indebtedness.

Therefore, the 259 Group was not barred from making a secured claim to the Trustee.

The moving respondents sought confirmation of an associate justice’s report on a long-running accounting reference arising from oil well joint venture litigation spanning Ontario, British Columbia, and Alberta, and also sought to vary an earlier order requiring them to bear the costs of the reference.

The court applied the appellate-style standard of review governing confirmation of a referee’s report and held that the responding applicants failed to establish any error in principle, jurisdictional error, patent misapprehension of the evidence, or reviewable legal error.

The court upheld the associate justice’s reliance on a jointly selected neutral expert, the credibility findings made against the self-represented responding party, and the conclusion that the 500% cash-call clause in the EWA joint venture agreement was an enforceable contractual term rather than an unenforceable penalty.

The report was confirmed, the motion to vary the prior costs order was dismissed, and the responding applicants were denied costs of the accounting reference and of the motion.

The moving parties (respondents in the main application) brought a motion to dismiss an application to set aside an arbitral award for lack of jurisdiction.

The responding parties (applicants in the main application) sought to set aside the award on the basis of a reasonable apprehension of bias, as the arbitrator had been retained by the moving parties' counsel in an unrelated matter.

The moving parties argued that under Articles 12 and 13 of the Model Law, the responding parties were required to submit their challenge to the arbitrator first, since the arbitration was still extant regarding costs and interest.

The court dismissed the motion, finding that the arbitrator was functus officio regarding the final award on the merits, and the responding parties were entitled to seek recourse under Article 34 of the Model Law.

The Court-appointed Receiver of Northwood Recycling & Energy Inc. moved for an order to relinquish assets subject to BNG Financial's purchase money security interest (PMSI) and to pay BNG $5,000 from the sale of a mixer.

BNG brought a cross-motion seeking compensation for the Receiver's use of the equipment during the receivership and for its diminished value.

The court granted the Receiver's motion and dismissed BNG's cross-motion, finding that BNG failed to establish a claim for unjust enrichment or breach of duty by the Receiver, as BNG could have taken steps to realize on its security at any time.

Two applications were brought to determine the fair market value of shares held by the late Silvio Marsili in 438506 Ontario Limited, pursuant to a buy-sell agreement triggered by his death.

The parties' expert business valuators disagreed on valuation methodology, EBITDA normalizations, contingent liabilities, and the minority discount.

The court resolved the specific valuation disputes, preferring the respondent's expert on methodology but the applicant's expert on several normalizations and contingent liabilities.

The court directed the experts to prepare revised valuation opinions incorporating its findings.

The court also granted the applicant's request for an order for the sale of a jointly owned property under the Partition Act.

The plaintiffs, limited partners and their newly appointed general partners, moved for an interlocutory injunction to restrain the former general partners and non-party project companies from dealing with real estate development properties pending a governance trial.

They also sought leave to issue a certificate of pending litigation and to amend their statement of claim.

The court dismissed the motion, finding that an interlocutory injunction could not be granted against the non-party project companies because the plaintiffs had not claimed a permanent injunction against them, nor had they provided an undertaking in damages.

The request for a certificate of pending litigation was also denied as the plaintiffs, being shareholders of the project companies, did not have a triable issue for a direct interest in the properties.

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.

The Proposal Trustee brought a motion for court approval of the debtor company's amended proposal to creditors under s. 58 of the Bankruptcy and Insolvency Act.

An opposing creditor argued the proposal should be rejected under s. 59(3) because the debtor failed to perform its statutory duties by initially omitting the creditor's claim and a related party's secured debt from its statement of affairs.

The court found the debtor had failed in its duties but exercised its discretion to approve the proposal, noting the debtor provided reasonable security for the payments, the proposal offered a better return than bankruptcy, and it was supported by the vast majority of creditors.

The plaintiff, Ontario, obtained a worldwide Mareva injunction against the defendants in relation to an alleged kickback scheme and fraud.

The moving defendants sought to vary the injunction to permit the sale of two properties to fund their civil and criminal legal expenses, as well as living and therapy expenses.

The court determined that the injunction was non-proprietary, as Ontario failed to establish a direct link between the misappropriated funds and the specific properties to support a constructive trust.

The court granted the motion, allowing the properties to be sold and the proceeds used for reasonable legal and living expenses, subject to accounting requirements.

The Receiver brought a motion for a contempt order against the respondent for failing to comply with a Receivership Order.

The court previously found the respondent in contempt.

At the sentencing hearing, the court considered the respondent's subsequent efforts to purge his contempt, including attending examinations and providing documents, as well as his apology.

Applying the Cavalon factors, the court declined to impose a custodial sentence but ordered the respondent to pay a $15,000 fine, declaring it a penalty under s. 178 of the Bankruptcy and Insolvency Act.

The defendants were successful in obtaining a temporary stay of the Ontario action and sought costs of the motion on a partial indemnity scale.

The plaintiff argued that costs should follow the cause and be awarded upon final disposition, or that the parties should bear their own costs because the defendants were only partially successful.

The court rejected the plaintiff's arguments, finding the defendants were the successful parties and entitled to costs payable forthwith.

Costs were fixed at $23,687.55 on a partial indemnity scale.

The plaintiff, Ontario, brought a motion for leave to amend its statement of claim to increase damages, provide further particulars of alleged kickback schemes, and add additional defendants in a civil fraud action.

The defendants and proposed added defendants opposed the motion, arguing the proposed amendments lacked particularity, used vague 'and/or' formulations, and failed to meet the minimum level of material fact disclosure.

The court agreed that several proposed paragraphs were deficient as they did not clearly identify which allegations were made against which specific defendants.

The motion was dismissed, but the plaintiff was granted leave to renew its motion with a properly drafted amended pleading.

The applicant estate trustee sought an order vacating a Notice of Objection filed by the respondent regarding the deceased's 2019 Will.

The respondent alleged lack of testamentary capacity, undue influence, and suspicious circumstances, relying on evidence of the deceased's health issues, uncharacteristic behaviour, and increased medication dosage.

The court applied the minimal evidentiary threshold test from Neuberger v. York and found that the respondent's evidence amounted to mere speculation and did not call into question the validity of the 2019 Will.

The application was granted, the Notice of Objection was vacated, and a Certificate of Appointment of Estate Trustee was ordered to be issued.

The plaintiff brought a motion under s. 137.1 of the Courts of Justice Act to dismiss the defendant's counterclaim, arguing it was a SLAPP intended to silence his allegations of a poisoned workplace.

The plaintiff also moved to strike the counterclaim under the Rules of Civil Procedure, amend his statement of claim, and for summary judgment.

The court dismissed the anti-SLAPP motion, finding the plaintiff failed to show the counterclaim arose from his expressions.

The court also denied leave to amend the statement of claim as the proposed claim for deferred bonuses was statute-barred.

The remaining motions were deferred pursuant to the mandatory stay in s. 137.1(5) of the Courts of Justice Act.

The moving party bank brought a motion for an interlocutory Mareva injunction against the responding parties, a group of corporate entities and their sole director, who had obtained over $4.5 million in COVID-19 relief loans.

The bank discovered the corporate entities were previously dissolved and revived shortly before applying for the loans, and that the loan proceeds were diverted to personal investment accounts rather than used for eligible business expenses.

The court found the bank established a strong prima facie case of a fraudulent scheme and a real risk of asset dissipation.

The motion for a Mareva injunction was granted, and costs were awarded to the bank on a partial indemnity scale.

The plaintiff appealed an Associate Judge's order dismissing its motion for a protective order over the production of its financial statements to the defendants, who are direct competitors.

The plaintiff sought to limit disclosure to 'counsel's eyes only', arguing the statements contained confidential and commercially sensitive information.

The Superior Court dismissed the appeal, finding the motion judge did not err in concluding the plaintiff failed to demonstrate a real and substantial risk of serious financial harm.

A motion to adduce fresh evidence was also dismissed as the proposed evidence would not be conclusive of the issue on appeal.