Sean F. Dunphy

Following a settlement on the first day of trial, the plaintiff and the Kinofilm defendants abandoned their respective claim and counterclaim against each other.

The Kinofilm defendants sought $500,000 in substantial indemnity costs, arguing the plaintiff's actions amounted to a de facto discontinuance under Rule 23.

The court rejected this argument, finding that Rule 23 did not apply as no Notice of Discontinuance was delivered.

Because both parties made substantial claims against each other and both elected not to pursue them, the court found the costs claims to be broadly equivalent and offsetting, making no order as to costs.

The applicant sought an interim order under section 192 of the Canada Business Corporations Act in relation to a proposed plan of arrangement for a going private transaction.

The court found the materials thoroughly prepared and the proposed procedures appropriate.

The interim order was granted in the form proposed, with a final approval hearing scheduled following the shareholder vote.

The court-appointed Receiver and an equipment lessor brought motions seeking declarations that the respondent, Hub Truck Centre, did not have valid repair and storage liens over certain trucks formerly operated by the debtor.

Hub had refused to surrender the vehicles, claiming over $2 million in liens.

The court found that Hub failed to prove it was a 'repairer' or 'storer' under the Repair and Storage Liens Act, as there was no evidence of an understanding that it would be paid.

Furthermore, Hub lost any potential possessory liens because the vehicles constantly moved in and out of its yard, and it failed to obtain signed acknowledgments of indebtedness to perfect non-possessory liens.

The motions were granted, the liens were declared invalid, and substantial indemnity costs were awarded against Hub.

The applicant sought final declarations of remaining indebtedness against the respondents following the liquidation of real estate project securities by a court-appointed receiver.

The respondents raised several defences, including the expiry of limitation periods, alleged obstruction of a retail unit sale, bad faith, and failure to exhaust recourse.

The court dismissed all defences, finding the claims were brought within the limitation period due to acknowledgments and waivers, and that the respondents failed to raise any genuine issue requiring a trial.

The application was granted, and judgment was ordered against the respondents for the shortfall amounts totaling approximately $36 million.

The applicants sought a Final Order approving a Plan of Arrangement under the Canada Business Corporations Act to restructure approximately $1 billion in defaulted debt.

A dissenting debentureholder objected, seeking a carve-out from the arrangement's general release to preserve a potential civil claim for failure to disclose a material change regarding the restructuring negotiations.

The court dismissed the objection, finding the arrangement fair and reasonable, negotiated in good faith, and overwhelmingly approved by securityholders.

The Final Order was granted.

The Crown applied to have the offender designated as a dangerous offender following his conviction on 20 offences, including sexual assault with a weapon, human trafficking, and firearms offences.

The court reviewed the offender's extensive criminal record, which demonstrated a persistent pattern of violent and aggressive behaviour, and considered expert psychiatric evidence diagnosing him with Antisocial Personality Disorder.

Finding that the offender poses a high risk of future violence and that his behaviour is intractable, the court designated him a dangerous offender.

Concluding that no lesser measure would adequately protect the public, the court imposed an indeterminate sentence.

The applicant bank brought an application for a court-supervised receivership over the respondent debtors' trucking and logistics business following uncured defaults on approximately $11 million in credit facilities.

At the hearing, the respondents sought an adjournment, relying on an improperly filed affidavit from a lawyer at their own counsel's firm disclosing privileged settlement communications.

The court struck the affidavit, denied the adjournment, and granted the receivership order, finding that the bank had given all required notices, negotiated for nearly a year, and was entitled to enforce its security.

The plaintiffs sought a Mareva injunction against the defendants.

Before the hearing, two defendants were placed into bankruptcy by a separate creditor.

The bankrupt defendants appealed the bankruptcy orders, arguing the appeal automatically stayed the bankruptcy.

The court held that appeals from an Associate Justice's bankruptcy order lie to a Superior Court judge under s. 192(4) of the BIA, which does not trigger an automatic stay under s. 195.

Consequently, the action and Mareva injunction application were stayed against the bankrupt defendants, and a new timetable was set for the remaining defendants.

The applicants sought to appeal or set aside a Partial Final Award of an arbitrator that granted the respondents a 50% constructive trust interest in a commercial property adjacent to a jointly owned shopping centre.

The arbitrator had found an ad hoc fiduciary duty despite the Co-Tenancy Agreement explicitly excluding partnership and fiduciary obligations.

The Superior Court of Justice granted leave to appeal, finding that the arbitration agreement did not preclude appeals on questions of law.

The court set aside the relevant portions of the award, holding that the arbitrator committed extricable errors of law by ignoring the unambiguous exclusionary language of the agreement and exceeded his jurisdiction by deciding an unpleaded claim for an ad hoc fiduciary duty.

The applicant sought a bankruptcy order against the respondent holding company, whose operating subsidiaries managed green energy projects for hospitals.

The respondent's directors had all resigned, leaving the companies rudderless and jeopardizing critical power supplies.

The court found the bankruptcy application technically defective but provided directions on alternative, simpler methods to place the companies into bankruptcy, such as through a unanimous shareholder declaration or by a deemed director under s. 109(4) of the CBCA.

The offender was convicted by a jury of human trafficking, possession of cocaine for the purpose of trafficking, trafficking heroin, and related offences.

The offender exploited a vulnerable young woman struggling with heroin addiction by supplying her with drugs and forcing her into sex work.

The court weighed significant aggravating factors, including the use of heroin and threats to control the victim, against mitigating factors such as the offender's youth, lack of prior record, and harsh pre-trial custody conditions.

A global sentence of 7 years was imposed, resulting in a net sentence of 4 years and 240 days after pre-sentence custody credits.

The moving parties sought recovery of amounts paid under protest to discharge mortgages after a failed maturity repayment and threatened receivership enforcement.

The court held that the lender's purported unilateral automatic renewal was ineffective because essential implied terms required timely decision and communication before renewal obligations fell due, failing which the renewal mechanism operated as an impermissible penalty under s. 8(1) of the Interest Act.

Renewal-related fees and associated interest exacted as a discharge condition were therefore recoverable.

The lender's alternative claim for three months' interest under s. 17 of the Mortgages Act was rejected because the payments arose in the context of enforcement and no surviving stand-alone claim existed after discharge.

Costs entitlement for the second segment was awarded to the moving parties, with scale and quantum left for later determination.

Following a jury trial, the sentencing court addressed convictions for human trafficking and procuring a complainant under 18, with acquittals on sexual interference and assault-with-a-weapon counts.

The court held that denunciation and deterrence required substantial penitentiary terms given the complainant's youth, vulnerability, coercive exploitation, and enduring harm, while also weighing mitigation including limited or absent records and subordinate roles in a joint enterprise.

The court rejected a 12-year Crown position and a conditional-sentence defence position, finding both inconsistent with proportionality and parity.

The court imposed six-year custodial sentences on each offender, less pre-sentence custody credit, and granted ancillary non-communication, DNA, weapons prohibition, and 20-year SOIRA orders, while declining requested s. 161 orders.

On a CCAA motion, the moving parties sought approval of a reverse vesting transaction and ancillary relief following a court-approved SISP with a stalking horse credit bid.

The court applied the s. 36(3) criteria and found the process was transparent, adequately marketed, monitor-supervised, and fair and reasonable in the circumstances.

The court accepted the monitor’s evidence that a going-concern outcome would produce materially better stakeholder outcomes than liquidation and would preserve enterprise value while reducing restructuring costs.

Applying the Harte Gold framework, the court held the reverse vesting structure was necessary, economically superior to viable alternatives, non-prejudicial to stakeholders relative to alternatives, and reflective of fair value for preserved intangibles.

The motion was granted and both the Reverse Vesting Order and Ancillary Order were approved.

The Crown appealed the sentences imposed on two offenders after the sentencing judge departed from joint submissions on sentence.

The sentencing judge reduced the agreed-upon sentences without notifying counsel or applying the public interest test from Anthony-Cook.

The Superior Court of Justice allowed the appeals, finding that the sentencing judge committed material reversible error by failing to apply the correct legal test and denying procedural fairness.

The joint submissions were substituted for the sentences imposed below.

The appellant appealed a Family Court order reducing the respondent's obligation to pay interest on child support arrears.

The principal arrears had been satisfied, but over $10,000 in interest remained.

The motion judge reduced the interest owed to $2,229, payable at $75 per month, citing the respondent's limited income and the decrease in market interest rates over the past 20 years.

The Divisional Court dismissed the appeal, finding that varying post-judgment interest was within the judge's discretion under the Family Law Act and Courts of Justice Act, and the decision reflected no error of law or palpable and overriding error of fact.

This is an appeal from a conviction for impaired operation of a motor vehicle and operation of a motor vehicle with a blood alcohol concentration exceeding 80 mg per 100 mL.

The appellant raised multiple grounds of appeal alleging breaches of Charter rights, including failures to provide adequate notice of the right to counsel, failure to facilitate contact with counsel of choice, and failure to preserve evidence.

The trial judge found certain breaches but declined to exclude the breath sample evidence or stay proceedings.

The appellate court dismissed all grounds of appeal, finding the trial judge's factual findings were open to him and his legal analysis was sound.

This is a summary conviction appeal from Jason Robertson’s conviction for refusal to provide a breath sample under s. 320.15 of the Criminal Code.

The appellant argued that the demand for a breath sample was not made “immediately” as required, and that unusual circumstances did not excuse any delay.

The court found that the demand was made promptly after ensuring the appellant’s health and safety following a serious accident, and that any delay was justified by the circumstances.

The appeal was dismissed.

The Crown appealed a stay of proceedings granted by the Ontario Court of Justice on the basis of delay under section 11(b) of the Charter.

The Superior Court found that the total delay was well within the Jordan ceiling and that the defence had not taken meaningful steps to expedite the proceedings.

The trial judge below erred in focusing on police delay in video disclosure and in treating the absence of a fully unredacted video as a bar to progress.

The appeal was allowed, the stay was set aside, and the matter was remanded for trial scheduling.

The plaintiff bank moved for summary judgment against an individual defendant to recover approximately $58,000 outstanding on a corporate line of credit and credit card.

The individual defendant, who was the sole shareholder of the corporate defendant, raised the defence of non est factum, asserting that he was not fluent in English and did not understand he was signing personal guarantees.

The court found that the loan and guarantee documents were ambiguous and that the defendant's unchallenged affidavit evidence raised a genuine issue requiring a trial.

Accordingly, the court dismissed the plaintiff's motion for summary judgment.