Robert William Staley

The defendants Pöyry brought a motion seeking orders to prohibit "Releasors" from assisting the Litigation Trustee in a Singapore action and declaring that the Litigation Trustee breached a court-approved settlement agreement by pursuing claims against Pöyry in Singapore.

Pöyry argued that the Litigation Trust's claims were covered by release and bar order provisions of a prior settlement agreement in the class action.

The Litigation Trust opposed, arguing the motion breached a Standstill Agreement, was barred by res judicata, and that the Ontario court should defer to the Singapore courts on grounds of comity and forum non conveniens.

The court dismissed Pöyry's motion, accepting the forum non conveniens arguments.

It declined to provide an opinion or interpret its own settlement orders for the Singapore court, emphasizing that the Singapore court was the appropriate forum to determine the effect of the Pöyry Settlement Agreement and the Ontario court's orders on the Singapore action.

The appellant appealed a motion judge's decision to stay an Ontario action on the basis of forum non conveniens.

The action concerned a dispute over payment obligations under a Term Sheet governing an upstream oil and gas rights transaction in Iran.

The Term Sheet contained a clause providing that it would be governed by English law and that the parties agreed to attorn to the courts of England.

The motion judge had applied the strong cause test and stayed the action in favour of England.

The Court of Appeal found that the forum selection clause was not an exclusive jurisdiction clause and therefore the strong cause test did not apply.

Conducting a fresh forum non conveniens analysis, the court found that the respondents had not demonstrated that England was clearly the more appropriate forum.

The appeal was allowed and the stay was set aside.

Following the dismissal of the defendants' motion for summary judgment, the plaintiff sought substantial indemnity costs under Rule 20.06 or, alternatively, partial indemnity costs.

The court found that the defendants' conduct in bringing the summary judgment motion, though unsuccessful, did not meet the threshold of "unreasonable" or "bad faith" required for substantial indemnity costs under Rule 20.06.

The court emphasized that Rule 20.06 applies in "exceptional circumstances" involving improper conduct, not merely an arguable but unsuccessful motion.

Consequently, substantial indemnity costs were denied.

The plaintiff was awarded partial indemnity costs, fixed at $85,000, inclusive of fees, disbursements, and HST, after considering the complexity and importance of the motion, and the limited benefit of the work product for the remainder of the action.

The appellant successfully appealed a summary judgment in a class proceeding.

The motion judge had found that the auditor owed a duty of care to the investor clients of Buckingham Securities regarding the audit of Form 9 reports filed with the Ontario Securities Commission.

The Court of Appeal reversed this decision, finding no duty of care was owed despite the auditor's negligence.

The appeal addressed the application of the Anns/Cooper test for establishing duty of care.

The court awarded the successful appellant costs on a partial indemnity basis.

A minority shareholder of the respondent company brought an application under s. 127 of the Securities Act seeking to block a going-private transaction structured as a plan of arrangement.

The applicant alleged the controlling shareholders improperly relied on the 90 percent exemption from minority approval requirements by engaging in a multi-step strategy to dilute minority interests.

The Commission dismissed the application for standing, finding that the applicant delayed in bringing the application, failed to establish a prima facie case of abusive conduct, and had adequate alternative remedies under the CBCA to address concerns regarding price and fairness.

A class action was brought against an auditor for negligently auditing Form 9 reports filed with the Ontario Securities Commission that falsely confirmed a securities dealer's compliance with segregation and minimum capital requirements.

The dealer subsequently failed and investors lost millions.

The motion judge granted summary judgment for the class, finding the auditor owed a duty of care.

The Court of Appeal reversed, holding that no duty of care existed because there was insufficient proximity between the auditor and the class members.

The class members never saw or knew of the Form 9 reports, made no representations to them, and the interposition of the OSC and the dealer between the auditor and the class rendered the relationship too remote.

The defendants brought a motion to stay the proceeding, arguing that Ontario courts lacked jurisdiction or, alternatively, that Ontario was forum non conveniens due to a forum selection clause designating England.

The court found jurisdiction simpliciter in Ontario based on contract formation principles but ultimately granted a stay on the basis of forum non conveniens, giving effect to the forum selection clause.

This is a costs decision on appeal from a Superior Court judgment.

The appellants appealed the decision of Justice Fred Myers dated April 12, 2017.

The Court of Appeal reviewed written submissions on costs and determined that the appellants must pay the respondent's costs in the fixed amount of $30,000 inclusive of disbursements and HST.

The respondent appealed a Superior Court judgment that granted the applicant's application to enforce her rights under a Governance Agreement concerning the replacement of Board members of Spectrum Health Care.

The appellants argued the application judge erred in interpreting the contract, should have stayed the application pursuant to an arbitration clause in the shareholders' agreement, and erred in alternative findings regarding oppression remedy and interim injunction.

The Court of Appeal upheld the lower court decision, finding no palpable and overriding error in the application judge's interpretation of the Governance Agreement or his analysis of the alternate remedies.

Following a summary judgment motion in a class proceeding where the plaintiff succeeded on four of five common issues, the plaintiff sought an elevated partial indemnity costs award of $1,287,296.

The defendant argued for partial indemnity costs capped at $500,000 due to divided success.

The court rejected the elevated scale, applied the recommended Grid rates for hourly fees, and reduced the fees by one-quarter to reflect the divided success.

Costs were fixed at $775,000 all-inclusive, payable within 30 days.

The plaintiff, Barry Lavender, representing a class of investors, moved for summary judgment on five common issues in a class action against Miller Bernstein LLP, the auditor of a defunct securities dealer, Buckingham Securities.

The class members suffered $10.6 million in losses due to Buckingham's failure to segregate client assets and maintain minimum capital, which the defendant auditor negligently failed to report in Form 9s filed with the Ontario Securities Commission (OSC).

The court applied the Anns-Cooper analysis to establish a duty of care owed by the auditor to the class members, finding sufficient proximity and foreseeability, and no concerns of indeterminate liability.

The court found that Buckingham was required to segregate assets and failed to do so, and that the defendant breached its duty of care, causing damages.

However, the court could not determine the quantum of damages on a class-wide basis from the evidence presented.

Lori Lord sought to enforce a Governance Agreement or, alternatively, relief under the oppression remedy against Clearspring Spectrum Holdings L.P. and Clearspring Capital Partners (US) II L.P. The respondents sought to stay the application pending arbitration.

The court found Ms. Lord was not a party to any arbitration agreement and could not be compelled to arbitrate.

The court held that Clearspring was in breach of the Governance Agreement, which was enforceable and not in conflict with the shareholders' agreement.

Alternatively, Ms. Lord's reasonable expectations were unfairly prejudiced, warranting an oppression remedy.

The application was granted, enforcing the Governance Agreement.

The appellant appealed an order confirming a worldwide Mareva injunction against him, arguing that an Ontario court cannot grant such an injunction when the defendant has no assets in the jurisdiction.

The Divisional Court dismissed the appeal, holding that the court's in personam jurisdiction allows it to grant a Mareva injunction even if the defendant has no assets in Ontario, provided it is just and convenient.

The court also upheld the motion judge's discretionary decision to accept an undertaking as to damages from a foreign corporate non-party.

The moving parties sought leave to appeal a CCAA judge's decision dismissing their motion to reinstate other post-employment benefits (OPEBs) to retirees of U.S. Steel Canada Inc. The CCAA judge had dismissed the motion but ordered a one-time payment of $2.7 million towards benefits.

The Court of Appeal applied the stringent test for leave to appeal in CCAA proceedings and found no prima facie merit to the appeal.

The court emphasized the broad discretion of the CCAA judge and the fact-specific nature of the decision, which did not raise issues of significance to insolvency practice.

Leave to appeal was denied with costs fixed at $2,500.

The plaintiff moved to add its founder back into the action as a plaintiff nunc pro tunc, arguing misnomer.

The founder had originally commenced the action in his own name but subsequently obtained an ex parte order substituting the corporate plaintiff for himself.

The court dismissed the motion, finding that the deliberate decision to substitute the parties meant the founder was not always the intended plaintiff, and thus the test for misnomer was not met.

However, the court granted leave to amend the statement of claim to add the founder as a plaintiff without prejudice to any limitation period defence, as agreed by the defendants.

The defendant, Allen Tak Yuen Chan, brought a motion to permit the liquidation and transfer of funds from Hong Kong bank accounts, frozen by a worldwide Mareva injunction, to pay for his legal fees and disbursements in defending the proceedings.

The plaintiff opposed, arguing the defendant had other available funds and was engaged in fraudulent conduct.

The court applied the four-factor test from *Canadian Imperial Bank of Commerce v. Credit Valley Institute of Business and Technology*, finding that the defendant had met the test for accessing non-proprietary assets to cover reasonable legal costs.

The motion was granted, subject to the Hong Kong Court's decision regarding its own non-dissipation order over the same funds.

The applicant, The Scoular Company, sought to enforce Letters Rogatory from a U.S. District Court against the respondents, who were former employees and associated entities of a third party in the U.S. litigation.

The primary issues were whether the respondents' costs for complying with the discovery requests should be capped at $20,000 and whether they should receive costs for responding to the enforcement application.

The court found that the respondents were not "strangers to the litigation" due to their indemnification agreements with a party in the foreign action and their cooperation.

Consequently, the court imposed a $20,000 cap on the costs for complying with the Letters Rogatory and denied the respondents their costs for the enforcement application, as the applicant was wholly successful.

The defendant sought leave to appeal an order dismissing his motion to set aside a worldwide Mareva injunction.

The injunction was originally granted ex parte in an action alleging the defendant perpetrated a massive fraud while CEO of Sino-Forest Corporation.

The Divisional Court denied leave on the issues of whether there was a prima facie case of fraud and risk of asset dissipation.

However, the court granted leave to appeal on three questions: whether an Ontario court can grant a Mareva injunction when the defendant has no assets in the jurisdiction, whether the undertaking as to damages provided by a non-party was sufficient, and whether that undertaking adequately protected the defendant's costs.

The applicant, a minority shareholder, sought standing to bring an application under section 127 of the Securities Act to delay a special meeting and require corrective disclosure in a management information circular regarding a related party transaction.

The respondent brought a motion to deny standing.

The Commission granted the motion and denied standing, finding that the application raised no novel issues, the alleged disclosure deficiencies had already been widely debated in the market, and intervening at a late stage would unduly interfere with the justified expectations of market participants.

This is a costs ruling following a motion where the moving parties sought to remove Miller Thomson as counsel for the applicants and prohibit them from acting in other disputes.

The court granted the removal but denied the broader prohibition, resulting in mixed success.

The moving parties sought costs of $12,365.80 on a partial indemnity basis.

The court considered the mixed success on the motion and factors under Rule 57.01 of the Rules of Civil Procedure and section 131 of the Courts of Justice Act.

Given the partial success, the court awarded fixed costs of $6,000.00 all inclusive.