Scott McGrath

Following an earlier decision granting relief from forfeiture in a loan dispute, the court addressed competing claims for costs between the parties.

The successful applicant sought partial indemnity costs of the application and requested that the award be set off against the loan repayment amount.

The respondent claimed full indemnity costs pursuant to a contractual debenture provision for enforcement expenses.

The court held that although contractual provisions for costs are generally respected, judicial discretion remains and may be exercised where the successful party has engaged in inequitable conduct.

Finding the respondent’s conduct unreasonable and inequitable, the court awarded the applicant partial indemnity costs and refused to enforce the respondent’s contractual entitlement to costs.

Remarkable Energy Inc. pledged its feed-in tariff (FIT) contract with the Ontario Power Authority as security for a loan from Crosscurrent Energy Corp. Crosscurrent foreclosed on the security after Remarkable failed to respond to a notice of foreclosure within 15 days.

Remarkable applied for relief from forfeiture.

Crosscurrent argued Remarkable acted in bad faith by failing to negotiate a final price for the sale of the FIT contract.

The court found no bad faith, noted the demand for payment lacked proper details, and held the breach was not grave compared to the value of the FIT contract.

The court granted Remarkable relief from forfeiture.

The applicant sought to continue an interim injunction over an aircraft owned by the respondent, an agency of the Kingdom of Swaziland, claiming a non-possessory lien under the Repair and Storage Liens Act for funds advanced for refurbishment.

The court found the respondent was not immune under the State Immunity Act due to the commercial activity exception.

However, the court dismissed the motion, finding the applicant was not a 'repairer' under the Act, the limitation period had expired, and there was no irreparable harm to justify an injunction.

A motion by proposed intervenors was also dismissed.

The aircraft was ordered released to the respondent, with a seven-day stay pending appeal.

The applicant sought to enforce letters rogatory issued by a United States District Court compelling Ontario non-parties to provide testimony and documents for use in U.S. antitrust class actions alleging polyurethane foam price‑fixing.

The court applied the established criteria governing enforcement of foreign letters rogatory, including relevance, necessity, availability of evidence elsewhere, public policy concerns, specificity, and burden.

The court found the criteria satisfied for two respondents and held that enforcement would not violate Canadian sovereignty or the respondents’ Charter protections against self‑incrimination.

The application was granted with conditions requiring examinations to proceed under Ontario procedural rules and subject to Charter and Evidence Act protections, while the application against a third respondent was dismissed due to insufficient evidentiary basis.

Former directors and officers of an insolvent corporation sought an order requiring that an environmental remediation claim filed by the provincial environment ministry be adjudicated within ongoing insolvency proceedings under the Companies’ Creditors Arrangement Act.

They also sought to stay an appeal proceeding before the Environmental Review Tribunal concerning a director’s order requiring remediation of a contaminated site.

The court held that the statutory scheme under the Environmental Protection Act assigns jurisdiction over appeals of director’s environmental orders to the Environmental Review Tribunal.

Given that the insolvency restructuring had effectively concluded and no plan of arrangement would compromise claims against the directors and officers, there was no basis for the insolvency court to assume jurisdiction over the environmental order appeal.

The court rejected arguments based on federal paramountcy and interjurisdictional immunity.

The motion was dismissed and the matter left to the Environmental Review Tribunal.

Following a prior decision granting summary judgment and dismissing the plaintiff’s action as statute‑barred under the Limitations Act, the court determined the appropriate costs award.

The successful defendants sought approximately $75,000 on a substantial indemnity basis, while the plaintiff argued that $30,000 on a partial indemnity basis was reasonable.

The court held that substantial indemnity was not justified because the plaintiff had not engaged in improper, vexatious, or unnecessary conduct and the procedural steps taken were pursuant to court orders.

Applying the principles in Boucher v. Public Accountants Council of Ontario and the factors under Rule 57.01(1), the court fixed costs at $35,000 on a partial indemnity basis.

A member of a limousine drivers’ co‑operative brought an application under the Co‑operative Corporations Act seeking an order compelling the co‑operative to enforce its by‑law disqualifying members who held interests in competing airport limousine services.

Certain respondents had acquired shares in a holding company that owned a competing limousine operator.

The court held that the by‑law governing membership qualifications was validly enacted and that members were estopped from challenging its validity after years of operating under it.

However, the provision purporting to automatically terminate membership upon breach was inconsistent with the statute, which requires expulsion by board resolution after due process.

The court directed that the board may disqualify members with interests in the competing company following proper procedures but dismissed the application against a respondent who had divested his shares.

The defendants brought a motion for summary judgment to dismiss the plaintiff's action for a trading loss caused by a botched share transfer, arguing it was statute-barred.

The plaintiff argued the claim was not discovered until 2010 when new information was disclosed.

The court found the plaintiff knew enough material facts by April 2007 to commence a legal proceeding.

Even accounting for a nine-month tolling period during an Ombudsman investigation, the action commenced in November 2011 was well beyond the two-year limitation period.

The motion for summary judgment was granted and the action dismissed.

Following earlier summary judgment and Rule 21 rulings, the court determined the appropriate costs award between the parties.

The plaintiff obtained summary judgment against the corporate defendant for misappropriated funds and successfully resisted the individual defendant’s Rule 21 motion challenging the pleadings, but failed on its claim against the individual defendant under Rule 20.

The court held that costs should follow the overall result and rejected the defendants’ argument that costs should be parsed according to individual legal arguments or sub‑issues.

Taking into account the plaintiff’s partial lack of success against the individual defendant, the court reduced the claimed amount and awarded partial indemnity costs.

The two defendants were held jointly and severally liable for the costs award.

The plaintiff franchisor contracted with the corporate defendant to manage and pay utility bills for its stores.

Upon terminating the contract, the plaintiff transferred over $1.3 million to the corporate defendant to pay outstanding bills.

The corporate defendant misappropriated the funds, transferring them to its operating account instead of paying the utilities, and subsequently signed a mutual release without disclosing the misappropriation.

The plaintiff brought a motion for summary judgment for the return of the funds, and the personal defendant moved to dismiss the claims against him.

The court granted summary judgment against the corporate defendant, finding it was unjustly enriched and that the mutual release was vitiated by fraudulent misrepresentation.

However, the court dismissed the claims against the personal defendant, finding no basis to pierce the corporate veil.

In a CCAA proceeding, the Applicants (Hollinger Inc. et al.) sought approval of settlement agreements with their former auditors (KPMG) and lawyers (Torys).

The Non-Settling Defendants, including Conrad Black and David Radler, opposed the settlements, arguing the court lacked jurisdiction and that the included third-party releases and bar orders would deprive them of procedural rights to discovery.

The court held it had jurisdiction under the CCAA to manage litigation as a corporate asset.

The court approved the Pierringer-style settlements, finding that the procedural rights of the Non-Settling Defendants could be adequately protected through active case management and the application of the principle of proportionality in discovery.

The plaintiffs sought to enforce a California judgment of approximately (US)$17 million against the defendant Jay Chiang and sought a declaration that the debt survives his bankruptcy discharge under s. 178(1)(d) of the BIA.

The plaintiffs also brought a second action alleging that Jay Chiang and numerous family members engaged in fraudulent conveyances and a conspiracy to hide assets and frustrate collection efforts.

The court enforced the California judgment in the amount of (US)$9,678,832 but declined to declare that the debt survives bankruptcy, finding no fiduciary duty was owed to the plaintiffs.

The court found Jay Chiang liable for fraudulent conveyances and conspiracy, but dismissed the claims against most of the other family members, finding they were unwitting conduits used by Jay Chiang.