Robert J. Morris

The Trustee in Bankruptcy sought an order under s. 164 of the Bankruptcy and Insolvency Act compelling the former Chief Restructuring Officer (CRO) and a secured creditor to produce documents.

The respondents claimed solicitor-client and litigation privilege over the documents.

The Trustee argued that the CRO could not assert privilege against the Trustee and that any common interest privilege was dissolved upon the CRO's appointment.

The court dismissed the motion, holding that the CRO could assert privilege regarding its specific duties and that the common interest privilege between the secured creditor and the CRO (acting as a consultant prior to appointment) was not dissolved.

Following a successful appeal, the appellant sought clarification on whether the $85,000 costs award included the costs of the respondents' motions for leave to appeal to the Divisional Court.

The Court of Appeal confirmed that these costs were inadvertently omitted and fixed them at $22,000 and $12,000 respectively.

The court declined to determine the scale of costs for the underlying summary judgment motions, leaving that issue to the motion judge.

The appellant bank sued several financial institutions and insurers for approximately $100 million arising from a massive equipment leasing fraud involving forged endorsements.

The respondent financial institutions successfully moved for summary judgment dismissing the appellant's claims for negligence, unjust enrichment, and money had and received.

The Court of Appeal allowed the appeal and set aside the summary judgment, finding that the motion judge committed two fundamental errors: reversing the onus by requiring the responding party to establish a genuine issue for trial, and deciding the motions on the assumed fact that the endorsements were forged.

The Court ordered the entire action to proceed to trial, noting that novel claims should be decided on a full evidentiary record.

The moving parties, several banks and a financial institution, sought leave to appeal a motions judge's refusal to grant summary judgment dismissing the plaintiff's claims in conversion and preclusion.

The underlying action involved a fraudulent scheme where a customer forged endorsements on cheques and bank drafts, deposited them with the plaintiff collecting bank, and the moving parties subsequently reverse-cleared the instruments.

The Divisional Court granted leave to appeal, finding good reason to doubt the correctness of the motions judge's decision that the conversion and preclusion claims raised genuine issues for trial, and noting the issues were of general importance to the banking industry.

The appellants appealed an order of Justice Douglas Coo.

The Court of Appeal found the appeal devoid of merit, agreed with the motion judge's reasons, and dismissed the appeal with costs awarded to the respondents.

The court appointed an inspector to investigate the affairs of the appellant corporation and ordered the appellants to fund the inspector's work.

The appellants appealed the order and argued that the funding requirement was an 'order for the payment of money' automatically stayed under Rule 63.01(1) of the Rules of Civil Procedure.

The Divisional Court held that an order to fund a court-appointed inspector is not an order for the payment of money, as it does not give monetary relief to a party and cannot be enforced by a writ of seizure and sale.

The court declared the automatic stay inapplicable and, in the alternative, exercised its discretion to lift the stay.

The appellants' cross-motion for a stay was dismissed.

The appellants appealed an order refusing to grant a stay of proceedings in an oppression remedy case.

They argued that California courts had exclusive jurisdiction.

The Court of Appeal dismissed the appeal, finding no error in the motions judge's exercise of discretion and concluding that the oppression remedy was legitimately sought in Ontario.

Costs of $12,000 were awarded to the respondent.

The appellants appealed a trial judgment finding that no enforceable agreement was reached for a fur salon licence, as essential terms were missing.

The respondent cross-appealed the finding that it negligently misrepresented its ability to terminate an existing licence, and appealed the costs award, specifically the allowance of expert witness fees as a full disbursement on a partial indemnity scale.

The Court of Appeal dismissed the appeal, cross-appeal, and costs appeal, holding that the trial judge made no palpable errors and correctly treated expert fees as disbursements not subject to partial indemnity reduction.

The Canadian Commercial Bank (CCB) faced a solvency crisis and received a $255 million advance from a support group consisting of governments and major banks.

When CCB was subsequently ordered to be wound up, the liquidator sought advice on whether the support group's claim for the advance should rank pari passu with other unsecured creditors or be postponed as a capital investment.

The Supreme Court of Canada held that the advance was in substance a loan, not a capital investment, despite having some equity features like warrants.

The Court also held that the loan did not fall within the postponement provision of the Partnerships Act because the lenders were not receiving a share of the profits, but rather repayment of a fixed debt out of profits.

Finally, the Court declined to apply the doctrine of equitable subordination, finding no inequitable conduct by the support group.