Peter J. Osborne

The applicant, Manitou Gold Inc., sought an interim order under section 182(5) of the Ontario Business Corporations Act for advice and directions to hold a special meeting of shareholders to approve a plan of arrangement with Alamos Gold Inc. The court assessed whether the applicant was acting in good faith and satisfied statutory requirements, noting that a detailed examination of the information circular or a full fairness analysis was not required at this interim stage.

The relief sought was unopposed.

The court granted the interim order, finding the proposed steps appropriate for shareholder notice and voting.

The plaintiff, Wayne Safety Inc., brought an urgent ex parte motion seeking Mareva, Anton Piller, and Norwich injunctions, along with certificates of pending litigation (CPLs) and an order to amend the Notice of Action, against its former bookkeeper, Diana Gendelman, her husband Natan Gendelman, and associated numbered companies.

The plaintiff alleged a significant and ongoing fraud, estimated at over $5.2 million, involving the diversion of company funds to accounts controlled by the defendants and the purchase of properties.

The court found a strong prima facie case of fraud and conspiracy, a risk of asset dissipation, and a need to preserve evidence.

All requested relief was granted.

The plaintiffs brought a motion to strike the defendants' statement of defence and counterclaim due to their persistent failure to answer undertakings, produce relevant documents, and comply with multiple court orders regarding disclosure of banking transactions.

The defendants had received several adjournments and "last chances" from previous judges but continued to be materially deficient in their disclosure, particularly concerning the use of over $1.1 million advanced by the plaintiffs for a real estate development.

Applying the principles from Falcon Lumber Limited v. 2480375 Ontario Inc., the court found the defendants' non-compliance deliberate, unequivocal, and without reasonable explanation, significantly impacting the litigation's cost and delay.

The court concluded that striking the pleadings was a proportionate remedy to uphold the integrity of the civil justice system and the Commercial List's efficiency.

The Plaintiffs sought to strike the Defendants' Statement of Defence and Counterclaim due to persistent failure to comply with undertakings and multiple court orders for document production, specifically banking records related to over $1.1 million in advanced funds for a real estate development.

Despite repeated adjournments and "last chances" from previous judges, the Defendants provided materially deficient responses without credible explanation.

Applying the principles from Falcon Lumber Limited v. 2480375 Ontario Inc., the court found the non-compliance deliberate, material, and impactful on the administration of justice.

The court emphasized the importance of timely disclosure in commercial litigation and the proportionality of striking pleadings in such circumstances.

The motion was granted, and the Defendants' pleadings were struck.

The applicant, Original Traders Energy Ltd. (OTE Group), brought a motion for a Mareva injunction against former executives, Glenn Page and Mandy Cox, and their corporate entity, 2658658 Ontario Inc., to freeze a yacht allegedly purchased with OTE funds through fraudulent means.

The court granted the injunction, finding a strong prima facie case of fraud, a serious risk of asset dissipation given the yacht's movement after notice, and that the balance of convenience favored the applicant.

The requirement for an undertaking as to damages was dispensed with due to the applicant's insolvency and the strength of their case.

The order included directing the respondents to facilitate the yacht's return to Florida.

The Applicants in a CCAA proceeding sought approval of an amended Share Purchase Agreement (SPA) and a reverse vesting order (RVO) to facilitate the sale of their business as a going concern.

The transaction aimed to preserve cannabis licenses, maintain business operations, and retain approximately 95% of employees.

The motion was unopposed, receiving strong support from the two senior secured creditors (2125028 Ontario Inc. and Marzilli) and the Monitor.

The court found the RVO appropriate, satisfying the factors under CCAA section 36, the Soundair Principles, and the Harte Gold framework.

Ancillary relief, including third-party releases for parties crucial to the restructuring, such as the stalking horse bidder (Cardinal) who provided interim financing and waived fees, was also granted.

The stay period was extended to allow for post-closing matters.

The Applicants in a CCAA proceeding moved for a reverse vesting order to approve a transaction with a purchaser related to a secured creditor, Marzilli.

The transaction would vest out the first-ranking security interest of another creditor, 212, and transfer its debt to a residual entity with no assets. 212 opposed the motion, arguing its debt assumption was part of the stalking horse bid that set the floor for the sales process.

The court applied the Third Eye and Harte Gold factors, finding that 212 had not consented to the vesting out of its interest and that the equities favoured 212.

The court dismissed the motion for the reverse vesting order, concluding it was not equitable to extinguish 212's first-ranking security interest under the circumstances.

The moving parties sought advice and directions regarding a previous order that set aside a corporate reorganization for breaching a share pledge agreement.

The responding parties argued the previous order did not apply to a specific entity, Hay Bay Solar LP, because it was not explicitly named.

The court interpreted the previous order broadly, finding that the reorganization was a single integrated transaction and the order set it aside in its entirety, including Hay Bay.

The court also found that issue estoppel would prevent relitigating the ownership of Hay Bay.

The applicants, comprising a wholesale fuel supplier servicing First Nations communities, sought initial protection under the CCAA due to a looming liquidity crisis precipitated by alleged executive misconduct and missing financial records.

The court granted the initial order, including a stay of proceedings extending to regulatory authorities to prevent the revocation of essential fuel licenses.

The court also appointed KPMG as Monitor with enhanced investigatory powers, approved administration and D&O charges, authorized payment of critical pre-filing expenses, and granted a sealing order over a confidential affidavit to respect comity with a foreign court order.

The applicants sought the appointment of an Inspector to investigate the management and affairs of two companies, Morris Kerbel Holdings Limited and Paladium Construction Limited, alleging oppressive and unfairly prejudicial conduct by the respondents under the Ontario Business Corporations Act.

The court dismissed the applications, finding that the applicants had not met the second and third parts of the three-part test for appointing an inspector, specifically regarding the necessity and appropriateness of such an extraordinary remedy given that information could be obtained through ordinary litigation tools like an oppression proceeding.

The court also noted concerns about the broad scope, unknown costs, and lack of company resources to fund the investigation.

The defendants moved for partial summary judgment to dismiss claims based on the expiry of limitation periods and the alleged non-existence of an oral trust agreement.

The plaintiff opposed, asserting fraudulent concealment and the existence of an oral, resulting, or constructive trust.

The court dismissed the motion, finding that genuine issues requiring a trial existed, particularly concerning the credibility of the parties, the nature of the alleged trust, and the application of limitation periods.

The court emphasized that partial summary judgment would not achieve a faster or cheaper resolution and risked inconsistent findings due to the intertwined factual and credibility disputes.

The Plaintiffs moved to strike the Defendant GuestLogix Inc.'s defence or compel a further and better Affidavit of Documents, arguing deficiencies including the deponent's lack of direct knowledge.

GuestLogix cross-moved for a further affidavit from the Plaintiffs and to dispense with the requirement for a signed affidavit.

The court dismissed the Plaintiffs' motion, finding GuestLogix's affidavit, sworn by an insurer's representative, to be appropriate given the company's prior CCAA sale and lack of original personnel.

The court also found GuestLogix had complied with its production obligations.

The Defendant's cross-motion was satisfied as the Plaintiffs had delivered the requested documents.

Costs were awarded to the Defendant.

The Plaintiffs, a consortium of telecommunications and media companies, brought a motion to validate service of their Statement of Claim on the Defendant, Tomasz Kaczmarek, who is alleged to be involved in operating illegal pirated IPTV services.

Despite multiple attempts at personal service and registered mail, Kaczmarek appeared to evade service, including transferring property ownership.

The court granted the order validating service as of October 21, 2022, finding that Kaczmarek had notice of the claim and was evading service, and ordered costs payable by Kaczmarek on a substantial indemnity basis.

The plaintiff, Thomas McNamara, as Receiver of Zippy Cash LLC and Z Cash LLP, brought an ex parte motion for a Mareva injunction and a Norwich order against the defendants, Duane Tough and Karen Ann English.

The plaintiff alleged that Duane Tough breached a Nevada Receivership Order by transferring over USD $4.2 million from receivership entities' accounts into his personal accounts, including approximately USD $570,000 into CIBC accounts held by the defendants in Ontario.

The court granted the Mareva injunction to freeze the defendants' CIBC accounts and ordered disclosure of banking information via a Norwich order, finding a strong prima facie case, risk of asset dissipation, irreparable harm, and that the balance of convenience favored the plaintiff.

The court also ordered the defendants to provide sworn statements and attend cross-examination.

The Court-appointed Receiver sought approval of a lien claim settlement, administrative expenses, its fees, and directions regarding the mortgagee's claim for three months' bonus interest upon default.

The Court approved the settlement, expenses, and fees.

However, the Court directed the Receiver to reject the mortgagee's claim for bonus interest, finding that the mortgage provision violated section 8 of the Interest Act by imposing a higher charge on arrears.

The Court also held that section 17 of the Mortgages Act does not apply to distributions by a court-appointed receiver.

The plaintiffs brought a motion to compel the production of financial records relating to mortgages held by the defendants in trust for the plaintiffs, alleging a fraudulent scheme to misappropriate funds.

The defendants argued that the documents should be produced in the ordinary course of litigation.

The court held that beneficiaries of a trust have a proprietary right to records relevant to an accounting for the trust property, separate from the ordinary rules of discovery, and ordered the defendants to produce the requested documents or confirm their non-existence.

The applicant brought a motion for an interim order under section 192(4) of the Canada Business Corporations Act to call a special meeting of shareholders.

The meeting was to consider a plan of arrangement whereby the respondent would acquire all common shares of the applicant.

The court found the applicant was acting in good faith and met the statutory requirements.

The interim order was granted, authorizing the meeting and establishing notice and voting mechanics.

The moving party, an insolvent cannabis producer, brought an unopposed motion for approval of a Proposal under the Bankruptcy and Insolvency Act, approval of Articles of Reorganization, and an order relieving it from the requirement to hold an annual general meeting before dissolving.

The Proposal contemplated paying remaining unsecured creditors, distributing its 10% equity interest in a successor entity to eligible shareholders, and transferring residual assets to satisfy remaining liabilities.

The court found the Proposal reasonable, calculated to benefit the general body of creditors, and made in good faith.

The court also granted relief from holding an annual general meeting, noting the company's lack of funds and the absence of prejudice to shareholders.

The moving party, Lifeline, sought an order under section 38 of the Bankruptcy and Insolvency Act to commence an action against LawPRO to recover on a judgment against the bankrupt lawyer.

Lifeline also sought an order that any recovery belong exclusively to it.

Another creditor, Bridgepoint, supported the section 38 order but opposed the exclusivity term, arguing it should be allowed to participate and share in the proceeds.

The court granted the section 38 order but refused the exclusivity term, holding that Bridgepoint was entitled to participate in the action and share in any recovery under the responsive insurance policies, subject to proving its claim.

CBRE Limited appealed the Proposal Trustee's disallowance of its claim for a real estate commission against the debtors, YG Limited Partnership and YSL Residences Inc. The limited partners of the debtor opposed the appeal.

The court held that the limited partners lacked standing under the Bankruptcy and Insolvency Act to challenge the claim.

The court also determined that the appeal should proceed as a hearing de novo to prevent injustice, as new evidence supported the claim.

The court allowed the appeal, finding clear evidence of the commission agreement and its performance, and awarded costs to CBRE and the Proposal Trustee.