Stephen Brown-Okruhlik

The appellants, holding foreign arbitral awards against the Kyrgyz Republic, sought declarations that the Republic owned shares in Centerra Gold Inc. registered to Kyrgyzaltyn JSC, a state-owned corporation.

The applications judge dismissed the applications, finding no evidence of a transfer of rights, express trust, or resulting trust.

The Court of Appeal upheld the decision, confirming that the governing agreement unambiguously established Kyrgyzaltyn as the beneficial owner of the shares and that the presumption of resulting trust was rebutted by the evidence of intention.

The applicant sought recognition of a $22 million arbitral award against the respondent.

The respondent opposed recognition, arguing it would be contrary to Ontario public policy because its counsel in the arbitration had a conflict of interest by providing expert evidence in a separate case that the applicant could indirectly benefit from.

The court rejected this defence, finding that the alleged conflict did not fundamentally offend basic principles of justice and fairness, and granted the order recognizing the award.

This costs endorsement follows the dismissal of applications by Belokon, Entes, Sistem, and Stans (the "Applicants") to recognize and enforce arbitral awards against the Kyrgyz Republic (the "Republic"), and to declare an exigible ownership interest of the Republic in Centerra Gold Inc. shares held by Kyrgyzaltyn JSC.

The Republic and Kyrgyzaltyn (the "Respondents") sought costs.

The court awarded costs on a partial indemnity basis, rejecting claims for full or substantial indemnity.

It also determined that costs should be payable on a several, not joint and several, basis due to the unrelated nature of the Applicants and the court-directed common issue hearing.

The court limited the costs award to the common issue hearing, excluding prior jurisdiction motions or general recognition application costs, and considered previous compensation for materials.

The applicants sought a declaration that the Kyrgyz Republic held an exigible ownership interest in shares of Centerra Gold Inc. registered in the name of its wholly-owned subsidiary, Kyrgyzaltyn JSC, to enforce arbitral awards.

The court dismissed the applications, finding that the Agreement on New Terms (ANT) unambiguously established Kyrgyzaltyn JSC as the beneficial owner of the shares, not the Republic.

The court rejected arguments based on contract interpretation under New York law and trust principles under Canadian law, emphasizing the separate legal personality of the subsidiary and the lack of evidence for an ownership interest or trust.

Octagon Capital Corporation, an investment dealer, brought an application against Niko Resources Inc., an oil and natural gas company, seeking a declaration that it was entitled to a $211,500 fee.

Octagon claimed that Niko's December 2013 debt restructuring, which involved JGB Management Inc., constituted "further financing" under their May 2013 Engagement Agreement's "Tail Provision." The court dismissed the application, finding that "further financing" meant the supply of additional funds, and the debt conversion by JGB did not involve new money but rather a restructuring of existing debt.

In an addendum to a previous decision, the Court of Appeal for Ontario modified its endorsement on consent of the parties to remit the quantification of damages to a different judge of the Superior Court of Justice, rather than the original motion judge.

The landlord appealed a summary judgment decision regarding its termination of a commercial lease.

The parties had orally agreed to extend the commencement date of the lease for at least one year.

The landlord later attempted to terminate the lease under a clause allowing termination if it could not deliver possession within six months of the commencement date.

The Court of Appeal held that the termination notice provided in December 2011 was out of time, as the commencement date remained April 1, 2011, and the landlord failed to exercise its termination right within the six-month window.

Judgment was granted in favour of the tenant for breach of contract.

A court-appointed receiver sought an order compelling several service providers to remit commissions allegedly owed under license agreements following the receivership of a home services business formerly operating under a national retailer’s brand.

The respondents argued the receiver had repudiated the license agreements by shutting down the system that generated service leads and announcing it would not continue operations, thereby relieving them of contractual obligations.

The court held that the receiver’s conduct constituted repudiation of the agreements, which the respondents accepted.

As a result, the receiver could not enforce contractual payment obligations.

Claims based on unjust enrichment and quantum meruit were also rejected, particularly given the inequitable circumstances created by the receiver’s actions and the continued enforcement of stay provisions against the respondents.

Following the dismissal of an urgent anti-suit injunction application, the court determined the appropriate costs award.

The court found that the moving parties had manufactured urgency despite having months of advance notice of the foreign proceeding they sought to enjoin, and had delivered voluminous materials on extremely short notice, impairing the responding parties’ ability to respond.

The court concluded the litigation strategy was tactical and inconsistent with the Rules of Civil Procedure and principles of fairness.

As a result, the court awarded substantial indemnity costs to the successful responding parties.

The court fixed the costs award at $27,500 as fair and reasonable in the circumstances.

The plaintiffs, an Ontario-based equity research company and its founder, published a negative research report about the defendants, Indian corporations.

The defendants commenced a defamation action in India and obtained an anti-suit injunction against the plaintiffs.

The plaintiffs subsequently brought an action in Ontario and sought an urgent interlocutory anti-suit injunction to restrain the defendants from proceeding with their Indian action and from pursuing contempt proceedings against a witness in India.

The court dismissed the motion, finding that while there might be a serious issue to be tried regarding the appropriate forum, the plaintiffs failed to establish irreparable harm and the balance of convenience favoured the status quo due to the plaintiffs' delay in seeking relief.

The appellants appealed a summary judgment granted to the respondent tenant for breach of a commercial lease.

The motion judge had found that the parties made an oral agreement to extend the lease commencement date and that the appellants terminated the lease in bad faith.

The Court of Appeal set aside the summary judgment, finding that the motion judge's factual conclusions regarding the oral agreement were not supported by the evidence, and that he erred by relying on the unpleaded doctrine of part performance.

The Court deferred deciding whether to remit the matter or determine the issues itself, requesting further written submissions from the parties.