Sheila Ruth Block

The EMEA Debtors sought leave to appeal an order approving an Allocation Protocol that provided for a joint trial by the Ontario Superior Court of Justice and the US Bankruptcy Court for the District of Delaware to allocate over US$7 billion in proceeds from the sale of Nortel assets.

The moving parties argued the joint trial violated the Ontario court's independence and that the parties had previously agreed to binding arbitration.

The Court of Appeal dismissed the motion for leave to appeal, finding the proposed appeal lacked prima facie merit as the joint trial did not infringe judicial independence and the relevant agreement did not mandate arbitration.

The appellants, auditors and underwriters of Sino-Forest Corporation, appealed an order declaring that their claims for contribution and indemnity against Sino-Forest were 'equity claims' under the Companies' Creditors Arrangement Act (CCAA).

The claims arose from proposed shareholder class actions alleging misrepresentation.

The Court of Appeal dismissed the appeal, holding that the definition of 'equity claim' in s. 2(1) of the CCAA focuses on the nature of the claim rather than the identity of the claimant.

The court found that the appellants' claims for contribution and indemnity were clearly connected to the shareholders' equity claims and thus fell within the expansive statutory definition.

The plaintiffs, representing a class of Barbados participating policyholders, brought an action against Manulife following the transfer of their policies to Life of Barbados (LOB) in 1996 and Manulife's subsequent demutualization in 1999.

The plaintiffs claimed that Manulife owed them a duty of care and a fiduciary duty to protect their rights to participate in the demutualization.

The court found that while it was reasonably foreseeable that Manulife would demutualize, no duty of care or fiduciary duty was owed to the plaintiffs because their rights as policyholders were lawfully extinguished by the transfer agreement, which was approved by regulators in Barbados and Canada.

The action was dismissed.

The plaintiffs sought leave under s. 138.3 of the Securities Act and certification under the Class Proceedings Act to pursue a class action against CIBC and its senior officers for alleged secondary market misrepresentations concerning CIBC's exposure to the U.S. residential mortgage market.

The court found that the plaintiffs met the test for leave and certification for the statutory claim.

However, applying the Court of Appeal's recent decision in Sharma v. Timminco Limited, the court held that the statutory claim was time-barred because leave was not obtained within the three-year limitation period under s. 138.14 of the Securities Act.

Consequently, both motions were dismissed.

Following an appeal where the appellants achieved substantial but not total success, the Court of Appeal for Ontario issued a costs endorsement.

The appellants did not seek costs, and the court determined the respondents were not entitled to costs.

Consequently, the court made no order as to costs.

The appellants, life insurance companies, appealed a trial judgment finding that transactions involving their participating accounts to finance a corporate acquisition breached the Insurance Companies Act.

The Court of Appeal upheld the trial judge's findings that the transactions breached the Act by failing to comply with generally accepted accounting principles, improperly allocating expenses, and constituting prohibited transfers.

However, the Court allowed the appeal in part regarding the remedy, finding that the trial judge's order to return $390 million to the participating accounts via litigation trusts was overly broad and akin to an oppression remedy not available under the Act.

Instead, the Court ordered the transactions unwound as of the present, with adjustments for expense savings already received.

The appellant appealed a costs order of $345,733.53 awarded against it following a partially abandoned summary judgment motion in a wrongful dismissal action.

The Divisional Court found that the motions judge erred in principle by failing to step back and assess whether the costs claimed were fair and reasonable, effectively rubber-stamping the respondent's costs outlines.

The Court allowed the appeal, finding the hours claimed excessive and duplicative, and reduced the costs award for the summary judgment motion to $145,000.

Appeal and cross-appeal arising from limited partnership investment litigation involving an offering memorandum for a real estate tax shelter.

The court held that, read as a whole and in light of the financing and refinancing structure, the offering memorandum contemplated repayment of accrued interest and principal on the second secured loans only upon acceptable refinancing of the first loans; because that refinancing never occurred, the investors were not contractually obliged to repay the second loans.

The court also held that the cash flow loans were not expressly made repayable by investors under the offering documents.

On the cross-appeal, the court held that the contractual deemed-reliance clause was included to satisfy securities-law requirements and did not create a broader right to sue for misrepresentation outside the clause's 90-day notice period.

Both the appeal and cross-appeal were dismissed, with no costs.

Following the dismissal of the appellant's appeal regarding a claim to Casino Rama profits, the successful respondents sought costs on a full or substantial indemnity scale, citing the appellant's conduct and shifting theories.

The Court of Appeal declined to award elevated costs, finding the appellant's conduct was not reprehensible, scandalous, or outrageous.

Costs were awarded on a partial indemnity scale, fixed at $250,000 for the Chiefs of Ontario and OFNLP, and $75,000 for Ontario.

The defendant sought leave to appeal a $345,733 costs award made following a partial summary judgment motion in a wrongful dismissal action.

The plaintiff brought a cross-motion for leave to appeal the scale of costs.

The court granted the defendant's motion, finding that the magnitude of the costs award and the motion judge's lack of particulars in her reasons provided good reason to doubt the correctness of the order and raised issues of public importance regarding access to justice.

The plaintiff's cross-motion was dismissed as it did not raise matters of continued importance.

The Chippewas of Mnjikaning First Nation (MFN) appealed the dismissal of its action claiming a 35% share of net profits from Casino Rama.

MFN argued that its selection as the host site for the casino created a binding contract with Ontario based on its submitted proposal.

The Court of Appeal upheld the trial judge's findings that the site selection process did not constitute a binding tender or RFP process for revenue sharing, and that revenue sharing was intended to be negotiated separately among all First Nations.

The Court also rejected MFN's arguments regarding breach of fiduciary duty, misapprehension of the Aboriginal context, and reasonable apprehension of bias arising from the trial judge's interventions.

The Attorney General of Canada appealed an order regarding the compellability of two witnesses and the disclosure of certain memoranda, asserting public interest immunity and deliberative secrecy under s. 37 of the Canada Evidence Act.

The Court of Appeal allowed the appeal in part, finding that while certain paragraphs of one memorandum contained statements of fact not covered by deliberative secrecy, the trial judge erred in finding the public interest in disclosure outweighed deliberative secrecy for the remaining information.

The court restricted the scope of questioning and excluded another memorandum from evidence entirely.

The appellants appealed a decision certifying two actions as class proceedings on behalf of participating life insurance policyholders.

The appellants argued the motions judge erred in finding a class proceeding was the preferable procedure under s. 5(1)(d) of the Class Proceedings Act, asserting that the Insurance Companies Act provided adequate alternative remedies for stakeholders.

The Divisional Court dismissed the appeal, holding that the motions judge made no error in principle and reasonably concluded that a class proceeding offered juridical advantages, including case management, access to justice through contingency fees, and judicial supervision of remedies.

The appellant appealed a decision declaring that certain disputed claims, including a claim for breach of fiduciary duty arising from a long-term supply agreement, were subject to arbitration.

The appellant argued the claims were not referable to specific provisions of the agreement and that the application judge usurped the arbitral tribunal's role.

The Court of Appeal dismissed the appeal, finding that the arbitration clause was broad enough to encompass the claims and that the application judge merely determined the claims were not clearly outside the scope of the arbitration clause.

The appellant appealed the dismissal of her motion to enforce a settlement agreement reached during mediation of a defamation action.

The motion judge had found the agreement was conditional on further elaboration of the words 'disparage' and 'scientific' based on the respondents' subjective intent.

The Court of Appeal allowed the appeal, holding that the motion judge erred in relying on subjective intent rather than an objective reading of the written offer.

Viewed objectively, the written offer contained all essential terms and was not conditional.

The court declared the settlement agreement enforceable.

The appellant appealed a trial judgment dismissing its application for specific performance of an alleged agreement to purchase shares.

The trial judge found no binding contract had been formed.

The Court of Appeal allowed the appeal, finding the trial judge erred by focusing entirely on the subjective intent of the respondent's negotiator rather than applying the objective test for contract formation.

However, the Court declined to grant specific performance, noting that applying the objective test could still lead to a finding of no contract, and remitted the matter for a new trial.

A freelance author brought a class proceeding alleging copyright infringement arising from newspaper publishers' republication of articles in electronic databases and CD-ROM archives.

The Court held that databases presenting articles as decontextualized individual works did not reproduce the publishers' collective newspaper work and therefore infringed freelance authors' copyrights absent consent, but that the CD-ROM product sufficiently preserved the linkage to daily editions and was a valid reproduction of the newspaper.

The Court further held that only exclusive licences require writing under the Copyright Act, and that staff writers should not have been included in the class because they had no cause of action unless they had exercised their statutory right to restrain publication.

The appeal was dismissed and the cross-appeal allowed only with respect to the CD-ROMs.

The appellant husband appealed a divorce judgment ordering him to pay an equalization payment of over $7 million and $35,000 monthly in spousal support.

He challenged the trial judge's findings regarding the ownership of the matrimonial home, the quantum of spousal support, unconscionability under the Family Law Act, and the disbursement of funds held in court.

He also brought a motion to admit fresh evidence.

The Court of Appeal dismissed the appeal and the motion, finding no error in the trial judge's factual findings or legal conclusions, and noting the fresh evidence could have been discovered with due diligence.

The appellant appealed a trial judgment awarding it $1.7 million in damages for the respondent's breach of an amalgamation agreement involving a reverse take-over.

The appellant argued damages should have been assessed at a later date using a share value approach or by applying a multiplier to the respondent's asset value, which would have yielded over $8 million.

The respondent cross-appealed the 10% contingency discount and the 10% pre-judgment interest rate.

The Court of Appeal dismissed both the appeal and cross-appeal, finding the trial judge correctly assessed damages at the date of breach using the best available evidence (an asset valuation) because no market existed for the shares at that time, and properly exercised his discretion regarding contingencies and interest.

The appellant, a freelance author, wrote articles published in The Globe and Mail.

The newspaper subsequently placed these articles in electronic databases (Info Globe Online, CPI.Q, and CD-ROM).

The appellant sued for copyright infringement.

The Court of Appeal held that the databases did not constitute a 'newspaper or similar periodical' and did not reproduce a substantial part of the newspaper's collective work.

The court also found that the oral licence granted by the appellant did not convey a proprietary interest and thus did not need to be in writing.

The appeal and cross-appeal were dismissed.