Richard B. Swan

The appellant appealed an order finding him estopped from objecting to legal accounts paid by the Estate Trustee.

The appellant argued the motions judge erred by determining the substantive issue of estoppel during a first appearance for a motion for directions, depriving him of the opportunity to present evidence.

The Divisional Court agreed, finding the motions judge should have resolved the conflict respecting the draft orders giving directions rather than deciding the substantive issue.

The appeal was allowed, the order was set aside, and the matter was referred back to the Estates List.

In Companies’ Creditors Arrangement Act proceedings, the debtor sought approval of short‑term bridge financing pending a larger DIP financing facility.

Competing bridge financing proposals were advanced by an existing lender and by noteholders.

The court approved the debtor’s preferred proposal despite it being more expensive, holding that the board’s decision was protected by the business judgment rule and was supported by the debtor’s financial advisor and the monitor.

A cross‑motion by noteholders seeking revisions to the DIP auction procedures and exemption from signing a non‑disclosure agreement was largely dismissed, though the deadline for qualification as a bidder was briefly extended.

The appellants appealed a decision dismissing their Rule 59 motion as an abuse of process in a bankruptcy proceeding.

The Court of Appeal dismissed the appeal, agreeing with the motion judge's thorough reasons and finding the fresh evidence tendered by the appellant to be of no assistance.

Costs of $17,500 were awarded to the respondent.

The appellants, having been successful in their appeal which struck the respondent's counterclaim and third-party claim, sought their costs on a partial indemnity basis.

The court fixed the costs for both appellants but declined to include any fees or disbursements related to a voluntary mediation.

The court held that voluntary mediation is not a step authorized by the Rules of Civil Procedure, and as a matter of policy, the costs of voluntary mediation should be borne equally by the parties to encourage settlement efforts without fear of increased costs if unsuccessful.

The applicant sought an extension of time and leave to appeal two case management orders made in a guardianship application that had been ongoing for 2.5 years.

The applicant argued the case management judge lacked inherent jurisdiction to case manage an estate matter.

The Divisional Court granted the extension of time but dismissed the motion for leave to appeal, finding that the court has inherent jurisdiction to control its own process and that the tests for leave to appeal under Rule 62.02(4) were not met.

The moving parties sought leave to appeal an order approving a settlement in the CCAA proceedings of Nortel Networks.

The Court of Appeal denied leave, finding no procedural or substantive unfairness in the settlement.

The motion judge had carefully balanced the various interests at stake and made no demonstrable error.

The respondent entered into a Tax Refund Agreement with Grant Forest Products Inc. (GFPI) to purchase income tax refunds.

GFPI failed to deliver the required transfer document before seeking CCAA protection.

The motion judge applied the equitable maxim that equity considers done what ought to be done, declaring the transfer had taken place.

The appellant, representing secured lenders, appealed.

The Court of Appeal dismissed the appeal, holding that the motion judge correctly applied the maxim to cure GFPI's breach and that doing so did not inequitably rewrite the contract or create an unlawful preference.

The moving parties, Objecting LTD Beneficiaries, sought an order expediting their motion for leave to appeal and consolidating the leave motion with the appeal itself.

The responding parties consented to expediting the leave motion but opposed consolidation.

The court agreed with the responding parties, finding no urgency requiring consolidation as benefits continued until the end of the year.

A schedule for the expedited leave motion was approved.

The appellants appealed an order dismissing their motions under Rules 20 and 21 to strike the respondent's claims for constructive dismissal and related torts as statute-barred.

The motion judge had found that the claims could have been discovered before the respondent resigned, potentially triggering the six-year limitation period under the transitional provisions of the Limitations Act, 2002.

The Divisional Court allowed the appeal, holding that a cause of action for constructive dismissal arises only when the employee resigns.

As the resignation occurred in May 2004, the two-year limitation period applied and the claims were statute-barred.

The court also held that the motion judge erred in linking the Rule 20 and Rule 21 motions, and found no triable issue regarding promissory estoppel or acknowledgment of liability.

The appellants appealed a motion judge's decision declining to exercise discretion under Rule 2.01 to cure an irregularity in the proceeding.

The appellants sought to convert an improper cross-claim into a third-party claim for solicitor's negligence against the respondents, who were lawyers for the opposing parties in a previous mechanic's lien action.

The Court of Appeal dismissed the appeal, finding that despite potential legal errors in the motion judge's reasons, the decision to strike the cross-claim as an abuse of process was justified due to the convoluted history of the litigation, the contrived nature of the claim, the appellants' five-year delay in seeking to cure the defect, and the inevitable prejudice to the respondents.

The appellants appealed an order confirming a Master's report that awarded compound interest on the respondent's lost profits from misappropriated trust property.

The Court of Appeal dismissed the appeal, finding no error in principle in the Master's discretionary decision to award compound interest.

The Court noted that in cases of wrongfully misappropriated trust property, it is open to the court to presume the injured party is entitled to compound interest, and the appellants failed to adduce evidence to rebut this presumption.

The appellant life insurance company appealed a trial judgment awarding its former agent damages for breach of fiduciary duty, punitive damages, and vested renewal commissions following his termination.

The trial judge found the appellant breached its fiduciary duty by freezing the agent's vested commission account and acted in bad faith in its post-termination conduct.

The Court of Appeal upheld the trial judge's findings on the vested commissions, the breach of fiduciary duty, the punitive damages award, and the dismissal of the appellant's counterclaim.

However, the Court of Appeal allowed the appeal regarding the trial judge's award of a risk premium on costs, holding that the amended Rule 57.01 of the Rules of Civil Procedure does not permit a risk premium to be awarded against an unsuccessful party.

The interim receiver of a bankrupt company sought to distribute funds from operating assets to a secured creditor.

The pension plan administrator opposed, claiming priority under a statutory lien for unpaid pension contributions pursuant to s. 57(5) of the Pension Benefits Act.

The Ministry of the Environment also opposed, arguing funds should be retained for environmental remediation.

The Court of Appeal dismissed both appeals, holding that the pension administrator is not a secured creditor under the Bankruptcy and Insolvency Act because the unpaid contributions are not a debt due to the administrator.

The Court also held that the MOE was an unsecured creditor regarding the operating assets and that the BIA's specific provisions for environmental claims governed.

The appellant appealed an order allowing the respondent to access $370,000 from frozen accounts to fund legal fees for an ongoing reference.

The Court of Appeal held that while the motion judge had jurisdiction to hear the motion, she erred in granting the relief.

The respondent failed to meet the burden of establishing that he had no other assets available to pay his legal fees, particularly given his son's refusal to answer questions about family resources during cross-examination.

The appeal was allowed and the underlying motion dismissed.

The appellants appealed an order refusing to fully vacate notices of garnishment issued against their bank accounts.

The appellants argued the garnishments conflicted with prior freezing orders that permitted them to use funds for legal fees.

The Court of Appeal (majority) dismissed the appeal, holding that the motion judge properly exercised his broad discretion under Rule 60.08(16) of the Rules of Civil Procedure to uphold the garnishments while allowing limited access to funds for legal fees, preventing the frustration of the respondent's judgment.

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.

The appellant employer appealed a trial judgment finding that the respondent employee had a fixed-term employment contract.

The Court of Appeal allowed the appeal, holding that the trial judge erred by failing to apply the threshold requirement that language establishing a fixed term must be unequivocal and explicit.

The court found the evidence of a fixed term ambiguous and held that an adverse inference against the employer for not testifying was inappropriate without a prima facie case.

The court substituted a finding of an indefinite contract and awarded the respondent 8 months' reasonable notice.

The appellant distributor sued the respondent manufacturer for wrongful termination of an exclusive distributorship agreement.

The trial judge dismissed the action, finding the distributor breached an implied duty of good faith by failing to disclose a change in its ownership, which gave the manufacturer 'just cause' to terminate without notice.

The Court of Appeal allowed the appeal, holding that employment law concepts like 'just cause' should not be imported into commercial distributorship agreements.

Instead, ordinary contract principles apply, and a contract can only be terminated without notice if the breach amounts to a fundamental breach.

The Court found the distributor's failure to disclose the sale did not substantially deprive the manufacturer of the whole benefit of the contract, and thus did not constitute a fundamental breach.

The applicants sought a stay of the Court of Appeal's order, which had reversed a supervising judge's decision to remove two directors from the board of a company undergoing CCAA restructuring, pending their application for leave to appeal to the Supreme Court of Canada.

The Court of Appeal first determined it had jurisdiction under s. 65.1(1) of the Supreme Court Act to consider the stay application.

Applying the RJR-MacDonald test, the court found that while there was a serious issue to be tried, the balance of convenience and the interests of justice favoured denying the stay, as granting it would effectively implement the supervising judge's order that the court had already found was made without jurisdiction.

During a CCAA restructuring of Stelco Inc., the board of directors appointed two new directors who were associated with major shareholders.

Employee stakeholders, fearing the new directors would favour shareholder interests over employee interests in the restructuring, successfully applied to the supervising judge to have the directors removed based on a reasonable apprehension of bias.

The Court of Appeal granted leave to appeal and allowed the appeal, holding that the supervising judge lacked inherent jurisdiction or statutory authority under section 11 of the CCAA to remove duly appointed directors.

The Court further held that the administrative law concept of reasonable apprehension of bias does not apply to corporate directors, whose conduct is governed by fiduciary duties and the business judgment rule.