Sarah E. Pepall

The Court of Appeal for Ontario issued a costs endorsement following an appeal hearing related to the Companies’ Creditors Arrangement Act (CCAA) proceedings of Urbancorp Cumberland 2 GP Inc. and related entities.

The panel reviewed the costs requests from the appellants and respondents and found the amounts reasonable.

Specific costs were ordered to be paid out of the Estate of the Cumberland Group to the appellants (Toro Aluminum, Speedy Electrical, Dolvin Mechanical) and two respondents (Guy Gissin, Tarion Warranty Corporation).

The Monitor and the Attorney General of Ontario did not seek costs.

The appellant, Roch St. Denis, appealed his sentence.

On consent of both parties, the Court of Appeal allowed the appeal and reduced the sentence to 324 days.

This adjustment was made to enable the appellant to immediately apply for parole under s. 127(3) of the Corrections and Conditional Release Act.

This is a costs endorsement following an appeal.

The Court of Appeal for Ontario addressed costs for both the appeal and the underlying summary judgment motion.

The parties agreed to no costs for the appeal due to divided success.

For the summary judgment motion, the court declined to award costs to the primary appellants (Bistricer) or respondents (Rubner), citing reasons such as new arguments on appeal and divided success.

However, the litigation guardian for Eda Rubner, who was aligned with the original applicants, was awarded partial recovery of costs for the summary judgment motion.

This appeal concerns the effectiveness of a statutory trust under s. 9(1) of Ontario's Construction Lien Act (CLA) in Companies' Creditors Arrangement Act (CCAA) insolvency proceedings.

Unpaid contractors (appellants) claimed a trust over proceeds from the sale of condominium units by the insolvent developer (Cumberland Group).

The motion judge denied the trust, relying on Re Veltri Metal Products Co., reasoning that the CCAA Monitor's involvement prevented the trust from arising.

The Court of Appeal allowed the appeal, clarifying that a s. 9(1) CLA trust can be effective in CCAA sales processes and is only displaced by federal paramountcy if it conflicts with a specific CCAA priority.

The court distinguished Veltri, stating it did not prevent a s. 9(1) trust when proceeds exceed mortgage debt and expenses, and confirmed the "deemed receipt" rule.

The appellants, judgment creditors of 798839 Ontario Limited (39), appealed a summary judgment decision.

The original motion judge found that 39 had not satisfied the contractual prerequisites to acquire an interest in a mining development, specifically by failing to expend the required funds on the specified property, with a portion diverted to another project.

The Court of Appeal dismissed the appeal, affirming the motion judge's interpretation of the contract and finding no error in her consideration of the factual matrix.

The court emphasized that contractual interpretation must primarily rely on the plain language of the agreement and that surrounding circumstances should not overwhelm the text or create a new agreement.

This appeal concerned a massive fraud perpetrated against a Paraguayan pension fund (Cajubi) by the appellants.

The trial judge found the appellants liable for fraudulent misrepresentation and breach of fiduciary duty, awarding over $20 million in damages and punitive damages.

On appeal, the appellants raised numerous grounds, including the corporate identification doctrine, limitation periods, unpleaded conspiracy, lack of reliance, and apprehension of bias.

The Court of Appeal dismissed all grounds, affirming the trial judge's findings, particularly regarding the inapplicability of corporate attribution where it would undermine the integrity of the legal system and allow fraudsters to benefit.

The appellants, former directors of a non-profit daycare centre, appealed the dismissal of their application for leave to commence a derivative action against a former director and administrator for alleged misappropriation of funds.

The Court of Appeal upheld the application judge's finding that the action was bound to fail, noting that the board of directors and the Public Guardian and Trustee had already investigated the allegations and taken no action.

The appeal and leave to appeal costs were dismissed.

The appellant appealed a lower court's decision, challenging the admissibility of a recording and the finding that a joint tenancy had been severed.

The Court of Appeal rejected the argument regarding the recording's inadmissibility, finding it relevant and admissible.

The court also found no basis to interfere with the application judge's decision on joint tenancy severance, as it was a fact-specific inquiry.

The appeal was dismissed, and costs were awarded against the estate, noting the litigation was necessitated by the deceased's actions.

The appellant appealed a motion judge's decision striking her statement of claim as an abuse of process and denying leave to amend.

The appellant alleged the respondents orchestrated the wrongful conviction of her father and his company by the Ontario Securities Commission, causing her financial loss as a trust beneficiary.

The Court of Appeal dismissed the appeal, finding no error in the motion judge's conclusions that the action was an abuse of process and that the appellant lacked standing, as the underlying convictions had already been upheld on appeal.

The appellant appealed the application judge's interpretation of a May 13, 2014 agreement, arguing it was tainted by illegality.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error or extricable error of law in the application judge's interpretation, noting that past litigation had already confirmed the agreement's validity and required specific performance.

The appellant, the former developer of a condominium, appealed the dismissal of its application to declare the respondent condominium corporation's notices of sale against its units null and void.

The appellant had refused to pay common expenses and a special assessment levied by the new owner-elected board after the appellant turned over control with depleted accounts.

The Court of Appeal upheld the application judge's findings that the special assessment was validly levied under an adopted budget and that the notice provided sufficient and accurate reasons.

The appeal was dismissed.

The unit owners purchased an adjoining condominium unit and obtained board approval to create an opening in the demising wall between the units.

A new board later sought to revoke the approval, restrict the owners' use of common elements, and impose an onerous, retroactive section 98 agreement unlike those given to other owners.

The application judge found the Condominium's conduct oppressive under section 135 of the Condominium Act, 1998, ordered the execution of a standard section 98 agreement, and awarded damages.

The Court of Appeal dismissed the Condominium's appeal, upholding the application judge's findings that the Condominium acted oppressively and that the original board approval was valid as the alteration was not material to the Condominium.

Consultants retained by multiple landowners to assist in obtaining government approval for urban development entered into a Cost Sharing Agreement providing for hourly fees and a bonus payment upon formal adoption of a Regional Official Plan Amendment.

One landowner purported to terminate the Agreement unilaterally in 2004.

The Regional Official Plan Amendment was adopted in 2009 with all appeals exhausted in 2015.

The consultants commenced an action for the bonus in 2015.

The respondents moved to dismiss on limitation grounds.

The motions judge dismissed the action.

On appeal, the appellants argued the termination was ineffective because only collective termination was permitted and that the limitation period had not expired.

The Court of Appeal held that while individual termination was not permitted, the appellants had accepted the anticipatory repudiation through their conduct and inaction over 11 years, thereby accepting the termination and causing the limitation period to expire.

An appeal concerning the enforceability of a termination clause in an employment contract.

The employer appealed a summary judgment decision finding the termination clause void and unenforceable.

The clause contained a "four-week benefits" provision that conflicted with the Employment Standards Act minimum notice requirements for long-term employees.

The Court of Appeal upheld the lower court's decision, finding the clause void both because it contravened the ESA at the outset and because it contained genuine ambiguity regarding the application of statutory minimums.

The appellant, a condominium corporation, sought to appeal a motion judge's decision staying its action in favour of arbitration.

The respondents moved to quash the appeal on the basis that it was barred by section 7(6) of the Arbitration Act, 1991.

The Court of Appeal allowed the motion to quash, finding that the appeal was statutorily barred.

The court rejected the appellant's arguments that it was denied natural justice and that the pith and substance of its claim was an oppression remedy under the Condominium Act that could not be precluded by arbitration clauses.

The court found that the motion judge correctly applied the test for determining whether claims fell within the scope of arbitration clauses and that the arbitrator could determine its own jurisdiction.

The appellants, a geneticist and his corporation, appealed a trial judgment dismissing their defamation action against the respondents for publishing an article in New Scientist magazine criticizing their prenatal paternity test as unreliable.

The trial judge found the respondents established the defences of justification, fair comment, responsible communication, and qualified privilege.

On appeal, the appellants abandoned their substantive grounds and raised a new allegation of reasonable apprehension of bias based on the trial judge's conduct and reasons.

The Court of Appeal dismissed the appeal, finding the bias allegation was raised tactically and lacked merit.

The appellant appealed his sentence for making an arrangement to commit a sexual offence against a child contrary to s. 172.2 of the Criminal Code and breach of probation.

The trial judge imposed 4 years' imprisonment, a DNA order, a 20-year SOIRA order, and a lifetime blanket prohibition on Internet and digital network use.

The appellant sought to reduce the custodial sentence to three years and to narrow the Internet prohibition.

The appellate court upheld the custodial sentence but found the lifetime blanket Internet prohibition to be overbroad and varied it to impose more measured restrictions tailored to the offender's circumstances.

The Crown appealed the acquittal of the respondent on two counts of sexual assault.

The trial judge acquitted the respondent based on credibility findings regarding the complainant, relying on eleven factors that the trial judge described as significant but not determinative.

The Court of Appeal found that the trial judge's credibility assessment was tainted by reliance on discredited myths and stereotypes about sexual assault victims, including assumptions about the complainant's dress, the absence of immediate reporting, and expected victim conduct.

The Court held that the trial judge's reasoning, anchored in "common sense and life experiences" impermissibly adopted stereotypical reasoning that had no place in assessing credibility.

The Court found a sufficient nexus between the legal errors and the acquittal, and allowed the appeal, setting aside the acquittal and ordering a new trial.

The appellant appealed from a partial summary judgment order in which the respondents obtained declarations that the appellant was not entitled to commissions or any increased compensation for changes in his employment.

The appellant had been employed as Business Development Manager from May 2014 until his termination in January 2016.

The appellant objected to the partial summary judgment procedure and argued he had inadequate time to advance his case.

The Court of Appeal upheld the motion judge's decision, finding no error in granting partial summary judgment and rejecting the appellant's late attempt to raise the doctrine of quantum meruit on appeal.

The appellants appealed from an interlocutory order of the Superior Court of Justice granting the respondent's motion to amend her statement of claim in a Simplified Rules action.

The Court of Appeal found it lacked jurisdiction to hear the appeal, as interlocutory orders fall within the jurisdiction of the Divisional Court with leave.

The appeal was quashed for want of jurisdiction.