Stephen Gaudreau

The appellant challenged a bankruptcy order and a related post-judgment Mareva order granted at the request of a court-appointed monitor holding a substantial judgment debt.

The court held the bankruptcy order was appealable as of right under s. 193(c) of the Bankruptcy and Insolvency Act and treated the Mareva order as a final order appealable under s. 6(1)(b) of the Courts of Justice Act in the circumstances.

On the merits, the court found no reversible legal or discretionary error in rejecting objections to the monitor’s authority, rejecting allegations of collateral purpose, and refusing dismissal or adjournment under ss. 43(7) and 43(10) of the Bankruptcy and Insolvency Act.

The court also upheld continuation of the Mareva relief as complementary to bankruptcy administration and dismissed the appeal with agreed costs.

The court granted the Monitor's application to assign John Aquino into bankruptcy and continued the Mareva order against him.

The decision addresses the requirements for a bankruptcy order under the Bankruptcy and Insolvency Act, the discretion to dismiss or stay such an application, and the standards for continuing a Mareva injunction post-judgment.

The court found that John Aquino had committed an act of bankruptcy, was unable to pay his debts, and that there was no bona fide dispute with the Monitor.

The court also rejected arguments that the application was brought for a collateral purpose and found the continuation of the Mareva order appropriate.

The applicant, a commercial real estate financing company, sought a receivership order over the debtor and beneficial owners of properties due to loan default, outstanding interest, and unpaid municipal taxes.

The court considered factors for appointing a receiver, including the contractual right to appointment and the respondents' lack of transparency and uncertain sale prospects.

The application was granted, and a receiver was appointed.

The moving parties filed a supplementary motion record and revised draft order following a previous endorsement that noted deficiencies in their materials.

The court found the new materials remained deficient, citing incomplete documents, missing schedules, duplicate email authorizations, and spelling errors.

The court declined to grant the requested relief but provided the moving parties one final opportunity to file a proper and complete consent and draft order.

The applicants brought a motion for consent orders to discharge construction liens and direct the return of security paid into court.

The court refused to grant the relief due to significant deficiencies in the motion materials and the proposed draft order.

These deficiencies included incorrect legal terminology (e.g., referring to discharge of a "Claim for Construction Lien" instead of a "lien"), failure to provide updated parcel registers to address sheltering liens, an improper preamble in the draft order, and an incorrect provision for the return of security that contravened Section 46(4) of the Construction Act.

The court emphasized the need for counsel to be meticulous in drafting and noted the waste of judicial resources caused by such carelessness.

The moving party brought a motion for leave to appeal an order dated November 25, 2021.

The Divisional Court dismissed the motion for leave to appeal and ordered the moving party to pay costs of $5,000 to the responding parties.

The defendants appealed an Associate Judge's order that required the net proceeds from the sale of two properties to be held in trust or paid into court upon the discharge of certificates of pending litigation (CPLs).

The defendants argued the plaintiff failed to make full and fair disclosure on the initial ex parte motion for the CPLs and that the Associate Judge failed to properly apply the test to vacate a CPL.

The Superior Court of Justice dismissed the appeal, finding no palpable and overriding error or error in law in the Associate Judge's assessment of material disclosure, balancing of equities, or exercise of discretion to require security.

The Globe and Mail brought a motion to set aside a sealing order granted by Conway J. that sealed a supplementary affidavit and excerpts of surreptitiously recorded transcripts in a corporate winding-up application.

The responding party opposed the motion, arguing that unsealing the materials would harm his privacy and dignity interests.

Applying the Supreme Court of Canada's decision in Sherman Estate, the court found that the responding party failed to establish that unsealing the court file posed a serious risk to an important public interest that would justify rebutting the strong presumption in favour of open courts.

The motion was granted and the sealing order was set aside.

The defendants brought an urgent motion to discharge certificates of pending litigation (CPLs) obtained ex parte by the plaintiff on four properties.

The defendants argued the CPLs should be discharged due to material non-disclosure by the plaintiff regarding the nature of the transactions and an alleged fraud.

The Master found no material non-disclosure.

However, to facilitate pending sales, the Master ordered the CPLs on two properties discharged on the condition that net proceeds be held in trust or paid into court.

The CPLs on the other two properties, which had already been sold to arm's length third parties, were discharged at the plaintiff's expense.

The Applicants (Green Growth Brands Inc. et al.) sought an Amended and Restated Initial Order and approval of a Sale and Investment Solicitation Process (SISP) and a Stalking Horse Agreement under the Companies’ Creditors Arrangement Act (CCAA).

Mr. Michael D. Horvitz, an investor, opposed the motion and brought a cross-motion seeking to set aside the Initial Order, adjourn the comeback motion for discovery, and direct the Monitor to investigate certain transactions.

The court dismissed Mr. Horvitz's cross-motion, finding his complaints largely constituted inter-creditor disputes outside the scope of CCAA proceedings.

The court approved the Applicants' requested orders, finding the SISP and Stalking Horse Agreement reasonable and compliant with CCAA criteria, despite Mr. Horvitz's objections regarding fairness, break fees, and the treatment of the GAOC Note.

Following a summary judgment in favour of the plaintiff and third party, the plaintiff sought reconsideration of the pre-judgment and post-judgment interest rates, arguing for the contractual rate rather than the Courts of Justice Act rate.

The court declined to reconsider the pre-judgment interest rate as it had been addressed, and clarified that the Courts of Justice Act rate also applied to post-judgment interest.

The court awarded costs of $20,000 to the plaintiff and $15,000 to the third party, payable by the defendant.

The plaintiff brought a motion for summary judgment against the defendant pharmacy for defaulting on an equipment lease for a telemedicine studio.

The defendant argued the lease was unenforceable due to a unilateral mistake, claiming it believed it was contracting solely with the telemedicine service provider, who allegedly perpetrated a fraud.

The third-party lease broker also moved for summary judgment to dismiss the defendant's claim against it.

The court granted both motions, finding the lease enforceable as the defendant accepted the equipment and made payments, and there was no evidence the plaintiff or the broker participated in or knew of the alleged fraud.

The defendants brought a motion for security for costs under Rule 56.01(1)(d), arguing the plaintiff, a sole-purpose corporation, had insufficient exigible assets in Ontario.

The court found the defendants met the low threshold to trigger the inquiry, shifting the onus to the plaintiff.

The plaintiff failed to demonstrate sufficient exigible assets, as its bank account funds could be disbursed, and other listed assets (debt, letters of credit, water units) were not readily exigible.

The court ordered the plaintiff to post security for costs in tranches totaling $24,000 and pay $10,064.78 in costs for the motion.

The tenant appealed a Landlord and Tenant Board decision terminating her tenancy under section 93 of the Residential Tenancies Act following the termination of her employment as a superintendent.

The tenant argued she was denied natural justice and that the Board erred in law by finding an employment relationship and failing to consider section 83(3) of the Act.

The Divisional Court dismissed the appeal, finding no denial of procedural fairness, that the Board sufficiently considered the statutory provisions, and that the finding of an employment relationship was a question of mixed fact and law not subject to appeal.

The plaintiffs in two related actions brought motions for the production of information by the corporate defendants under the Business Corporations Act.

The parties settled the motions 'except for costs' and filed written costs submissions.

The plaintiffs sought substantial indemnity costs, arguing the motions were unnecessary as the defendants ultimately consented to the relief sought.

The court declined to award costs, holding that costs generally should not be awarded when parties settle 'except for costs.' The court reasoned that determining costs in such circumstances would require a hypothetical adjudication of the merits, which is an inefficient use of judicial resources and runs counter to the principle that costs are an incident of the determination of rights, not the subject matter of the dispute itself.

A junior mining company sued Ontario for damages after its relationship with a First Nation collapsed and its exploration program stalled.

The plaintiff argued that the Crown's constitutional duty to consult and related obligations under the Mining Act extended to protect the company as a third-party mining claimant.

The court held that the honour of the Crown and any associated fiduciary or consultation duties run to Indigenous communities, not to mining proponents, and do not create an enforceable private law duty of care in favour of the plaintiff.

Applying the Anns/Cooper framework, the court further found that neither the legislative scheme nor the limited interactions between the parties established sufficient proximity.

The action was dismissed.