R. Seumas M. Woods

The Court of Appeal for Ontario dismissed motions to reconsider its earlier refusal to grant leave to appeal two decisions related to an arbitral award and its enforcement.

Dr. Bokhari argued that the panel may have been unaware that a key precedent (Aroma) was under reserve at the time of the refusal.

The court held that the relevant rules did not permit reconsideration based on subsequent jurisprudence, only on new facts, and that the interests of justice did not favour reconsideration.

The motions were dismissed.

The Court of Appeal for Ontario dismissed motions to reconsider its earlier refusal to grant leave to appeal two decisions related to an arbitral award and its enforcement.

Dr. Bokhari argued that the panel may have been unaware that a key precedent (Aroma) was under reserve at the time of the refusal.

The court held that the relevant rules did not permit reconsideration based on subsequent jurisprudence, only on new facts, and that the interests of justice did not favour reconsideration.

The motions were dismissed.

This decision concerns the interpretation of a “Material Adverse Change” (MAC) clause in a governance agreement between Simpson Oil Limited (SOL) and Parkland Corporation.

The court found that the departures of Parkland’s CFO and a majority of its senior management constituted a MAC under the agreement, thereby lifting restrictions on SOL’s voting and acquisition rights.

The decision turns on whether certain events listed in the MAC definition are mandatory triggers or merely illustrative, and the court concludes they are mandatory.

This decision concerns a motion by Ausenco Engineering Canada Inc. to discharge or reduce a construction lien registered by Scott Steel Erectors Inc. in relation to the Magino Gold Mine project.

The court addresses whether Scott Steel could register a lien for work performed under multiple subcontracts, including work by a related entity, Scott Concrete Services Inc., and whether the lien was willfully exaggerated by the inclusion of delay damages.

The court finds that there is a triable issue regarding the application of promissory estoppel and the treatment of the subcontracts "as one," but holds that there is no triable issue as to delay damages under certain subcontracts.

The lien is reduced to $23,670,377.46 plus HST.

The appellants sought leave to appeal a motion judge's decision on costs, which had awarded partial indemnity costs of $450,000 to Pembina Pipeline Corp. and $500,000 to BluEarth Renewables Inc. The Court of Appeal for Ontario denied leave to appeal, finding that the motion judge's costs award was a discretionary decision entitled to deference.

The court concluded that there was no error in principle and the award was not plainly wrong, as the motion judge had properly considered factors such as the respondents' success, the complexity of the proceeding, the amounts at stake, and the conduct of the litigation.

The applicant tenant applied for an order referring disputes over operating costs under three commercial leases to an independent professional consultant for expert determination, as provided in the leases.

The respondent landlord argued the disputes involved legal interpretation and should be resolved by the court.

The court granted the application, finding that the expert determination clause was broad enough to encompass the disputes, which involved practical questions of lease interpretation and allocation of expenses.

The appellants, Greta Energy Inc. and Great Grand Valley 2 Limited Partnership, appealed a summary judgment dismissing their action against Pembina Pipeline Corporation and BluEarth Renewables Inc. The case involved the sale of bundled assets, some subject to Rights of First Refusal (ROFRs).

The appellants alleged that the respondents manipulated asset prices in bad faith to prevent the exercise of ROFRs, breaching duties of good faith and honest performance, inducing breach of contract, and conspiracy.

The Court of Appeal upheld the motion judge's findings that the respondents did not breach their duty of good faith, did not owe a fiduciary duty, did not conspire, and did not induce breach of contract, as their actions were commercially reasonable and not intended to "eviscerate" the ROFRs.

The appeal was dismissed.

The applicant tenant sought the court's appointment of a single arbitrator to determine the fair market rent for a lease renewal term.

The respondent landlord opposed, challenging the sufficiency of the applicant's evidence regarding the proposed arbitrator's availability and consent, and arguing the arbitration clause was invalid due to its optional wording ("may be referred"), lack of specified rules, and absence of a "seat" for the arbitration.

The court, applying the competence-competence principle, deferred the jurisdictional challenges to the arbitrator, finding the issues were not clearly invalidating.

The court interpreted the arbitration clause as mandatory once initiated by notice, and dismissed arguments that the lack of specific rules or a seat rendered the agreement invalid.

The motion was granted, conditional on the applicant providing the arbitrator's consent and confirmation of availability.

Costs were awarded to the applicant.

FSD Pharma Inc. applied to validate the cancellation of Class B shares issued to its former CEO, Raza Bokhari, arguing they were issued for future consideration contrary to s. 23 of the Ontario Business Corporations Act.

Bokhari contended the shares were valid or that the issue should be pursued under s. 130 OBCA, and that FSD was estopped from raising the issue.

The court found that shares issued for future consideration are not a nullity but their status depends on circumstances.

Applying a flexible approach, the court allowed Bokhari to retain shares proportionate to his actual employment days in 2021 (208/365ths) and permitted FSD to cancel the remainder.

The court also rejected the cause of action estoppel argument, noting the prior hearing was limited in scope.

Costs were not awarded to either party due to divided success and tactical efforts by the respondent.

This is a costs endorsement following successful summary judgment motions by the defendants.

The court determined the scale and amount of costs payable by the plaintiffs to the defendants.

The defendants sought substantial indemnity costs based on their offers to settle, which proposed dismissal of the action without costs.

The court found that such offers, while relevant, do not automatically attract substantial indemnity costs, and awarded partial indemnity costs, considering factors like success, complexity, amounts at stake, and litigation conduct.

The plaintiff commenced an action regarding a stream of royalty payments from a mine in Guatemala.

The defendants brought motions to strike the claim.

In response, the plaintiff delivered an amended statement of claim.

The defendants moved to declare the amended claim a nullity, arguing it could not be amended without leave in the face of a motion to strike.

The plaintiff brought a cross-motion for leave to amend.

The court held that while leave is required to amend a claim in the face of a motion to strike, the motion for leave should be heard first.

The court granted the plaintiff leave to amend, finding that the proposed amendments were not time-barred, did not withdraw admissions, and were sufficiently particularized.

In the context of a shareholder proxy fight, the applicants sought an order declaring the dissident shareholders' proxy circulars materially misleading and invalidating their proxies.

The dissident shareholders brought a motion seeking to hold the upcoming shareholders meeting virtually and to appoint an independent chair.

The court dismissed the application, finding the circulars were not materially misleading.

The court allowed the motion in part, refusing to mandate a purely virtual meeting but appointing the dissidents' proposed independent chair after finding the applicants deliberately breached a prior court order by unilaterally appointing their own chair.

This is an appeal from a certification judge's order refusing to certify an investor class action and dismissing the action on the basis that the pleadings did not disclose a reasonable cause of action.

The proposed class action arose from the dramatic collapse of a derivatives-based exchange-traded fund (ETF) managed by the respondent, Horizons ETFS Management (Canada) Inc., which lost almost 90% of its value overnight.

The appellant, Graham Wright, alleged negligence and misrepresentations in the prospectus under s. 130 of the Securities Act.

The certification judge dismissed both claims.

The Court of Appeal allowed the appeal in part, finding that the negligence claim did disclose a reasonable cause of action.

For the s. 130 Securities Act claim, the Court found it did not disclose a reasonable cause of action as pleaded but granted leave to amend the statement of claim to assert the purchase of 'Creation Units', remitting the matter to the certification judge for further determination of certification criteria.

The defendants brought a motion to transfer the plaintiff's action from Brampton to Windsor.

The plaintiff, a self-described problem gambler, sued the defendants for losses sustained at Caesars Windsor.

The court applied a holistic analysis of the factors under Rule 13.1.02(2)(b) of the Rules of Civil Procedure.

Finding that the events occurred in Windsor, the damages were sustained there, the community had an interest, and a trial could be heard much sooner in Windsor, the court concluded that Windsor was a significantly better venue.

The motion to transfer was granted.

The Applicant sought to enforce a settlement agreement for the sale of a property, which the Respondent refused to close due to an alleged increase in property value and a change of heart.

The court found the settlement agreement valid and enforceable, rejecting the Respondent's arguments of defective tendering, lack of readiness, and contractual frustration.

The court ordered the Respondent to close the sale within 30 days and encouraged parties to settle outstanding rent and costs.

The plaintiffs sought summary judgment to enforce a personal guarantee executed by the defendants in connection with a share purchase agreement (SPA) for solar energy companies.

The defendants' holding company, Lavender Glen, failed to make required payments, and despite subsequent amending agreements and acknowledgments of debt, the outstanding amount remained unpaid.

The defendants alleged pre-contractual misrepresentations as a defense.

The court granted summary judgment to the plaintiffs, finding no genuine issue requiring a trial.

The defendants' misrepresentation claims were deemed vague, self-serving, and contradicted by the SPA's entire agreement clause and a later acknowledgment of debt.

Arguments of unconscionability and unpleaded fraudulent misrepresentation were also rejected.

The applicant franchisor sought to enforce a restrictive covenant against a former franchisee who continued to operate a similar home medical equipment business at the same location after the franchise agreement expired.

The respondents argued the covenant was unenforceable due to a failure to provide a disclosure document under the Arthur Wishart Act and that the covenant was an unreasonable restraint of trade.

The court found that disclosure was not required because the franchisor was not sufficiently involved in the sale of the franchise.

The court also held that the restrictive covenant was unambiguous, reasonable in its 18-month and 30-mile scope, and protected the franchisor's legitimate business interests.

The application was granted and the respondents were ordered to cease operating the competing business.