Robert William Staley

The plaintiff, an international bank headquartered in Nevis, sued the defendants in Ontario for defamation and breach of a confidentiality agreement.

The defendants, who had been noted in default, moved to set aside the default and dismiss the action on jurisdictional grounds.

The court set aside the noting in default, finding a reasonable explanation for the delay.

The court then dismissed the action, enforcing a forum selection clause in the parties' investment agreement that designated St. Kitts and Nevis as the exclusive jurisdiction.

Alternatively, the court found that Nevis was clearly the more appropriate forum under the doctrine of forum non conveniens.

The SMA 2 Unitholders sought a declaration that substantive consolidation does not apply to Bridging SMA 2 LP and approval for a second interim distribution.

The Receiver and Unitholder Representative Counsel opposed, arguing the motion was premature as various distribution issues, including the full economic impact of consolidation, remained unresolved.

The court dismissed the motion, deferring to the Receiver's position that a determination on substantive consolidation and further distributions was premature given the incomplete factual record and outstanding distribution issues.

Miller Bernstein LLP applied for relief from the implied undertaking rule regarding voluntary evidence received by Staff of the Ontario Securities Commission.

Both parties requested that the application be kept confidential.

The Capital Markets Tribunal denied the request, finding that the criteria for a confidential hearing under Rule 22(2) were not met and that the implied undertaking rule did not necessitate a confidential hearing.

The Court of Appeal for Ontario issued supplementary reasons regarding the remedy and costs following its prior decision (2023 ONCA 139) which declared s. 37.10.1(2) of the Election Finances Act unconstitutional.

The appellants sought to invalidate additional provisions, including the definition of "political advertising" s. 37.0.1, s. 37.10.1(3)-(3.1), and s. 37.10.2.

The court declined this request, finding these provisions were not inextricably linked to the previously invalidated section and were not independently shown to infringe section 3 of the Canadian Charter of Rights and Freedoms.

The court also noted that the election period spending limits (s. 37.10.1(1)) were not challenged and remain in force.

No disposition was made as to costs, as the parties had reached an agreement.

The plaintiff, Suntower Developments Limited, brought a motion for a certificate of pending litigation (CPL) over property owned by the defendants, Studios of America Corporation and Studios of America Limited Partnership.

Suntower claimed a constructive trust based on unjust enrichment and alleged wrongful conduct, stemming from an agreement where Suntower was to receive a share of cash flow for its development work, not a proprietary interest.

The defendants opposed, arguing the contract was a juristic reason precluding unjust enrichment and that monetary damages were an adequate remedy.

The court dismissed the motion, finding no triable issue for a constructive trust claim, as the contract was a juristic reason for any enrichment, and the plaintiff had no reasonable expectation of a proprietary interest.

The court also found no triable issue for a constructive trust based on wrongful conduct, as the defendants' ownership of the property did not result from any breach of obligation.

The equities also favored dismissing the CPL.

The court-appointed Representative Counsel for the Bridging Unitholders brought a motion for a "Unitholder Advisor Claims Tolling Order" to suspend limitation periods for claims that approximately 26,000 unitholders might have against their investment professionals or financial institutions.

The motion sought to protect unitholders who might be unaware of the need to pursue individual claims or were awaiting clarity on recoveries from the Bridging funds.

The court granted the motion, affirming its statutory and inherent jurisdiction to issue such an order in complex receivership proceedings to prevent significant prejudice to unitholders and manage potential litigation.

In the receivership of the Bridging Funds, the Receiver brought a motion to determine whether unitholders with Potential Statutory Rescission Claims (based on misrepresentations in offering memoranda) or Potential Redemption Claims (based on unfulfilled redemption requests) were entitled to priority over General Unitholder Claims.

The court held that Potential Redemption Claims were not entitled to priority because the redemption requests had not been completed prior to the receivership.

However, the court held that Potential Statutory Rescission Claims were entitled to priority, finding that the statutory right of rescission under s. 130.1(1) of the Securities Act creates a de facto priority and justifies the imposition of a constructive trust over the invested funds.

This appeal concerned the constitutional validity of Ontario's third-party election spending limits, specifically the extension of the pre-writ restricted period from 6 to 12 months without increasing the spending cap.

The appellants argued this infringed the informational component of the right to vote under s. 3 of the Charter, which is not subject to the notwithstanding clause (s. 33).

The Court of Appeal found that while s. 33 was properly invoked, the extended spending restrictions were not "carefully tailored" and did not permit a "modest informational campaign" thereby infringing the s. 3 right to meaningful participation in the electoral process.

The infringement was not justified under s. 1 of the Charter.

The court declared the impugned provision invalid and suspended the declaration for 12 months.

This is a costs endorsement following a successful motion by Infinitus (defendant) to stay an action brought by Justmark (plaintiff) due to an arbitration clause.

The court also addressed costs for earlier motions dismissed by consent, where Infinitus Innovations (a related entity) was involved.

The court fixed partial indemnity costs for Infinitus Innovations for the January motions at $35,000 and for Infinitus for the stay motion at $19,500.

The court rejected Justmark's arguments to defer costs to arbitration or for substantial indemnity costs, emphasizing that substantial indemnity is reserved for rare cases of sanctionable behavior.

The Receiver brought a motion seeking approval of its proposed Net Asset Value (NAV) Methodology, the calculation and publication of the 2021 NAV, and the 2022 Permitted Transfers for the Bridging Funds.

The NAV Methodology was developed to facilitate the transfer of units from RRSP to RRIF accounts for unitholders turning 71, as required by the Income Tax Act.

The court found the requested relief appropriate, noting support from Representative Counsel and no opposition from the Ontario Securities Commission or the Canada Revenue Agency.

The motion was granted and the Receiver's Fifteenth Report was approved.

The Receiver brought an unopposed motion for a Claims and Unitholdings Identification Order and for approval of its activities as described in its 12th Report.

The court found the proposed order practical and reasonable to assist the Receiver with the distribution process.

The motion was granted and the Receiver's activities were approved.

The Receiver brought a motion for an order approving an interim cash distribution of $78 million to the two institutional unitholders in Bridging SMA 2 LP.

The court found it appropriate to make an interim distribution but reduced the amount to $46 million to account for the potential impact of substantively consolidating the various Bridging Funds, an issue that had yet to be determined.

The respondents (Purchaser) brought a motion to stay an application by the applicant (Vendor) for production of documents related to post-closing adjustments in a share purchase agreement.

The core issue was whether a clause in the SPA, which referred unresolved matters to an "Independent Accountant" for a binding determination, constituted an arbitration agreement under the Arbitration Act, 1991, or merely an expert determination clause.

Applying the indicia from Sport Maska Inc. v. Zittrer, the court found that the clause was an arbitration agreement because it involved a formulated dispute, required the Independent Accountant to exercise a judicial function based on party submissions, and resulted in a final and binding decision.

Consequently, the court granted the stay of the Production Application, holding that all issues related to the working capital adjustment, including document production, should be determined by the Independent Accountant (arbitrator) in the first instance.

This endorsement addresses the costs arising from a second Charter challenge to Ontario's election advertising spending restrictions (Bill 307), which the Attorney General successfully defended.

The Attorney General sought $580,652.54 in costs.

The Applicants argued against a costs award, citing the public importance of constitutional litigation and access to justice, and challenged the quantum of costs.

The court rejected the Applicants' access to justice argument, noting their financial capacity, and found the Attorney General's choice of external counsel and the work performed to be reasonable.

The court awarded the Attorney General $500,000 in all-inclusive costs, apportioned among the Applicant groups.

The plaintiff condominium corporation appealed an Associate Justice's order striking several paragraphs from its Fresh as Amended Statement of Claim.

The underlying action alleged that the defendants conspired to cause the plaintiff to release easements over adjacent land for little or no value.

The Associate Justice struck paragraphs referring to the financial position of non-parties as irrelevant and scandalous, and struck other paragraphs for pleading evidence rather than material facts.

The Superior Court of Justice dismissed the appeal, finding no error in principle in the Associate Justice's exercise of discretion.

Wilks Brothers, LLC applied for a review of a decision by TSX Inc. granting exemptive relief to Calfrac Well Services Ltd. The relief allowed Calfrac to retroactively correct a shareholder vote related to its recapitalization, in which votes from an ineligible shareholder (AIMCo) were inadvertently included.

The Commission found that Wilks had standing to bring the application as it was directly affected by the TSX decision.

However, the Commission dismissed the application on the merits, finding that the TSX did not consider irrelevant grounds, did not impose an illegal condition, did not overlook material evidence, and appropriately considered the public interest.

The Commission concluded that the agreement to rescind AIMCo's subscription was not an issuer bid under NI 62-104.

ESW Capital, LLC applied for exemptive relief from the minimum tender requirement under the Securities Act in connection with its proposed take-over bid for Optiva Inc. The proposed bid was opposed by two other control block shareholders, Maple Rock and EdgePoint, who announced they would not tender their shares.

ESW sought to exclude their shares from the minimum tender calculation.

The Ontario Securities Commission dismissed the application, finding no exceptional circumstances or abusive conduct by the target, bidder, or control block shareholders that would warrant altering the recalibrated bid regime and undermining minority shareholder choice.

In a class action where core negligence claims were dismissed on appeal and the remaining "knowing assistance" claim was conceded as having no prospect of success, the action was formally dismissed.

The defendant auditor sought $485,000 in costs for defending the action.

The Law Foundation of Ontario (LFO), which funded the plaintiff through the Class Proceeding Fund, resisted this amount, arguing that previous costs awards covered the merits.

The court found the defendant was entitled to costs for the "knowing assistance" claim but deemed the requested amount excessive.

Applying a 40% discount to the plaintiff's estimated actual costs for this component, the court awarded $68,000 for the action and an additional $4,000 for the costs motion, totaling $72,000, payable by the LFO/CPF to the defendant.

The plaintiff, York Region Vacant Land Condominium Corporation No. 1010, brought a motion for leave to file a Fresh as Amended Statement of Claim, including the addition of a new defendant, Patrick Greco.

The defendants opposed certain proposed amendments, arguing they were scandalous, irrelevant, or pleaded evidence.

The Master granted leave to amend the statement of claim and add the new defendant, but struck paragraphs 8, 95, and 102-105 from the proposed pleading, finding them to be scandalous references, irrelevant, or improper pleadings of evidence.

The appellant, former CEO and chairman of Sino-Forest Corporation (SFC), appealed a trial judgment awarding damages of $2.627 billion plus $5 million in punitive damages for fraud and breach of fiduciary duty.

The appellant argued that the litigation trust lacked standing to pursue claims that overlapped with class actions, that the damages award created double recovery risks, and that the transfer of assets constituted an election barring the claim.

The Court of Appeal upheld the trial judgment, finding that the litigation trust held separate and distinct corporate causes of action from those of individual shareholders and noteholders in the class actions, that the damages award was properly calculated based on SFC's losses, and that no election doctrine applied.