Rory McGovern

The applicants in a CCAA proceeding brought a motion seeking approval of a distribution of remaining proceeds, targeted third-party releases, approval of the Monitor's reports and fees, and termination of the CCAA proceedings.

The court approved the distribution to the DIP Lender, noting it was unopposed and justified given the emergency financing provided.

However, the court found the proposed scope of the third-party releases impermissibly broad, as it purported to release claims unrelated to the restructuring.

The court directed that the release language be narrowed to tie specifically to activities contributing to the CCAA proceedings.

The moving party, a franchisor based in India, sought injunctive and mandatory relief against its franchisee and the franchisee's operating principal, including an order for documentary productions, payment of outstanding royalties and an exit fee, a Mareva injunction freezing all defendants' assets, and ancillary examination orders.

The court dismissed the motion in its entirety.

The request for documentary productions was premature as affidavits of documents had not yet been exchanged and discoveries had not been conducted.

For monetary relief, the court applied the higher strong prima facie case threshold, which the moving party failed to meet given serious disputed issues concerning personal liability of the individual defendant, royalty rate reductions, and the definition of "net sales." No irreparable harm was established as the franchise had ceased operations and any brand damage was compensable in damages.

The balance of convenience weighed heavily against granting relief that would amount to execution before judgment.

The Mareva injunction was denied for absence of any evidence of risk of asset dissipation.

The court characterized the motion as frivolous and vexatious, relevant to the assessment of costs.

The applicants sought to compel Voreon Inc. to comply with a 2016 Settlement Agreement requiring the transfer of shares in Eminence Living Inc. and Higher Living Development Inc. The court reviewed the complex business history, the terms of the Settlement Agreement, and the impact of ongoing related proceedings, including the PSA Action and the Kayzan Distribution Application.

The court determined that the relief sought could not be granted at this time due to the unresolved status of these related proceedings and ordered that the application be heard contemporaneously with or immediately following the PSA Action.

Costs were awarded to Voreon.

This costs endorsement follows the court’s summary judgment decision in favour of HSBC Bank Canada against Antonio Guido, enforcing a guarantee and dismissing Guido’s $11 million counterclaim.

The court reviews the parties’ submissions on the scale and quantum of costs, ultimately awarding HSBC substantial indemnity costs, but in a reduced amount, having regard to proportionality, fairness, and reasonableness under Rule 57.01 of the Rules of Civil Procedure.

The decision addresses the contractual entitlement to substantial indemnity costs, the complexity and conduct of the litigation, and the appropriate adjustment of costs claimed.

The plaintiff financial institution sought summary judgment on a guarantee provided by the defendant guarantor and dismissal of the guarantor's counterclaim.

The guarantor alleged breach of contract, negligent misrepresentation, conspiracy, unjust enrichment, and unconscionability, primarily based on the assertion that a third-party agent was also an agent of the financial institution and conspired with its executives.

The court found no genuine issue requiring a trial regarding the financial institution's claim on the guarantee or the guarantor's defenses and counterclaim.

The court determined there was no evidence to support the agency assertion or the alleged conspiracy, and that the non-reliance and non-waiver clauses in the guarantee were enforceable.

Partial summary judgment was deemed appropriate as the claims against the financial institution were discrete from the guarantor's continuing claims against other parties.

The plaintiff, a minority shareholder and director of Ecounion International Ltd., brought a motion seeking an injunction to prevent the sale of the company's gas station property and the appointment of a receiver (interim or investigative).

He alleged corporate oppression and misappropriation of funds by the majority shareholder and his son.

The court dismissed the motion, finding that the plaintiff failed to establish a serious issue to be tried for his oppression claim.

The court determined there was no basis to enjoin the mortgagee's enforcement rights, as the mortgage was valid, in default, and the plaintiff had personally benefited from the refinancing.

Furthermore, the court found no irreparable harm to the plaintiff and that the balance of convenience did not favour appointing a receiver, deeming it an unnecessary expense given the plaintiff's access to financial records and the lack of strong evidence of misappropriation by the defendants.

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 brought a motion for leave to appeal an order of the lower court.

The Divisional Court dismissed the motion for leave to appeal and awarded costs to the respondent in the amount of $5,000.

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 applicants sought an amended and restated initial order under the CCAA, including approval of a stalking horse sales process, a Key Employee Retention Plan, an increased administration charge, and an extension of the stay of proceedings.

The court granted most of the requested relief, finding it necessary for the restructuring and supported by the Monitor.

However, the court dismissed the applicants' request to stay a creditor's action against three directors on their personal guarantees, ruling that section 11.03(2) of the CCAA expressly prohibits staying actions against directors on guarantees relating to the company's obligations.

The moving party, a director and disputed shareholder of the defendant corporation, sought leave under s. 246 of the Business Corporations Act to defend an action brought by the plaintiff for unpaid project management fees.

The motion was opposed by the plaintiff and other shareholders of the defendant corporation.

The court dismissed the motion, finding that the moving party failed to establish that he was acting in good faith or that defending the action was in the best interests of the corporation, given the disproportionate costs of litigation, the risks of an increased claim, and the opposition from other stakeholders.

The applicant brought an application to interpret two promissory notes representing a $900,000 loan from the respondent for a real estate development project.

The parties disputed whether interest should be compounded, whether an interest escalation clause was triggered, and whether the second promissory note contained a mistake requiring rectification.

The court held that there was no agreement for compound interest and that the interest escalation clause was not triggered because the project was not fully constructed.

The court also rectified the second promissory note to remove the interest escalation clause while maintaining the 20% base interest rate.

The applicant was ordered to pay the remaining $99,778 owed under the notes, and was awarded $25,000 in partial indemnity costs due to divided but primarily successful outcomes.

The applicant, Green Relief Inc., sought approval of a transaction for the sale of its assets to 2650064 Ontario Inc. in the course of a CCAA proceeding.

The transaction included a condition precedent releasing claims against current directors, legal counsel, the Monitor, and its counsel.

Certain founding shareholders opposed the release, arguing the court lacked jurisdiction to grant it prior to a plan of arrangement and that they wished to pursue claims for loss of chance.

The court approved the transaction and the release, finding the sale process was reasonable and the release was rationally connected to the restructuring, benefiting creditors by preventing the depletion of the estate through indemnity claims.

The court temporarily lifted the stay of proceedings to allow claims covered by tail insurance to be filed.

The plaintiff sought leave to amend her statement of claim to add two proposed defendants, Maple-Crete Inc. and RoyalCrest Paving and Contracting Ltd., in place of a "John Doe Maintenance Company" defendant, relying on the doctrine of misnomer or, alternatively, discoverability under Rule 5.04.

The court found that the pleading lacked sufficient particularity to satisfy the misnomer doctrine, as an objective reading would not clearly point to the proposed defendants.

Furthermore, the plaintiff failed to demonstrate reasonable diligence in discovering the proposed defendants' identities within the limitation period, as simple inquiries could have revealed them much earlier.

Consequently, the motion to add the proposed defendants was dismissed, as the claim against them was statute-barred.