Stephen Taylor

The moving party brought a motion for leave to bring an application for judicial review from an adjudicator's determination under the Construction Act.

The Divisional Court dismissed the motion.

Although the responding party was successful, the court declined to award costs because the responding party failed to deliver a costs outline or bill of costs prior to the hearing, contrary to the Consolidated Practice Direction for Divisional Court Proceedings.

The appellants, including the directing mind of two family-owned construction companies, participated in a false invoicing scheme that drained tens of millions of dollars from the debtor companies prior to insolvency.

The trustee in bankruptcy and monitor applied under s. 96(1)(b)(ii)(B) of the Bankruptcy and Insolvency Act to recover the false invoice payments as transfers at undervalue on the basis that the debtor companies intended to defraud, defeat, or delay creditors.

The Supreme Court held that insolvency is not a prerequisite to establishing fraudulent intent under s. 96(1)(b)(ii)(B), and that the directing mind's fraudulent intent was properly attributed to the debtor corporations.

The Court confirmed that the corporate attribution doctrine must be applied purposively, contextually, and pragmatically, and that the fraud and no benefit exceptions to corporate attribution do not apply in the context of s. 96 of the BIA because applying them would undermine the creditor protection purpose of that provision.

Appeal dismissed.

Rogers Communications Canada Inc. sought an interlocutory injunction and a sealing order against TELUS Communications Inc. The core dispute revolved around whether Rogers' customers, when roaming on the TELUS network, should display "Rogers-EXT" or "TELUS" as the network identifier (NID).

Rogers argued for maintaining the "Rogers-EXT" status quo pending arbitration, while TELUS contended that an expired agreement required "TELUS" display.

The court characterized the injunction sought as mandatory, requiring Rogers to demonstrate a strong prima facie case.

The court found that the NID issue was subject to issue estoppel due to a prior arbitration decision and that Rogers failed to establish a strong prima facie case or irreparable harm.

Consequently, the motion for injunctive relief was dismissed.

The motion for a sealing order for confidential materials, which was unopposed, was granted.

The defendant (plaintiff by counterclaim) brought a motion under Rule 30.06 of the Rules of Civil Procedure to compel the plaintiffs to produce documents related to the top five contracts by bid price for each year between 2006 and 2016.

These documents were sought to compare the bidding, accounting, and results of the "Porsche Agreement" with the "ordinary course of business" and "past practice" of the acquired company, which was central to the plaintiffs' fraud allegations concerning a share purchase agreement.

The court granted the motion for the production of the remaining categories of documents, finding them relevant and proportionate to the issues of "ordinary course" and "past practice."

The applicants, holding approximately nine percent of the units of First Capital Real Estate Investment Trust, requisitioned a special meeting to replace four trustees.

The board scheduled the meeting for May 16, 2023, five months after the requisition.

The applicants sought an order compelling the meeting to be held earlier.

The court found that the board's decision to delay the meeting was not deserving of deference, as the justifications provided—cost savings, allowing a business plan to unfold, and providing more time for unitholder consideration—were not compelling and prejudiced the requisitioning unitholders.

The application was granted, and the trust was ordered to hold the meeting as soon as practicable after March 1, 2023.

Porter Airlines and Nieuport Aviation disputed the calculation of terminal fees at Billy Bishop Airport under a Licence Agreement.

Porter argued it could pay fees based on a variable daily slot allocation and claimed force majeure due to the COVID-19 pandemic to excuse non-payment.

Nieuport argued fees were based on a fixed, recurring number of daily slots and counterclaimed for unpaid fees.

The court held that the Licence Agreement required payment based on a fixed number of recurring daily slots.

The court also found that the COVID-19 pandemic did not trigger the force majeure clause to excuse Porter's payment obligations.

Porter was ordered to pay over $131 million in damages for unpaid terminal fees, while Nieuport's recourse under a guarantee was limited to specified aircraft.

The moving parties (original respondents) sought a stay of execution of judgments totalling over $33 million, pending their application for leave to appeal to the Supreme Court of Canada.

The judgments were for transfers at undervalue under the BIA and CCAA.

The court applied the three-part test for a stay (serious issue, irreparable harm, balance of convenience).

The motion was dismissed because the moving parties failed to demonstrate irreparable harm, especially given the responding parties' undertaking not to distribute seized assets, and because no security was offered for the judgment.

The appellants, directing minds and associates of two insolvent construction companies, orchestrated a false invoicing scheme to siphon tens of millions of dollars from the debtors.

The monitor and trustee sought to recover the funds as transfers at undervalue under s. 96 of the Bankruptcy and Insolvency Act.

The appellants argued that the companies were financially healthy at the time of the transfers, and that the directing mind's fraudulent intent could not be attributed to the companies under the common law corporate attribution doctrine.

The Court of Appeal dismissed the appeals, holding that the corporate attribution doctrine should be applied flexibly in the bankruptcy context to impute the directing mind's fraudulent intent to the debtor corporations.

This purposive approach prevents fraudsters from benefiting at the expense of legitimate creditors and fulfills the remedial objectives of the bankruptcy legislation.

The appellant appealed a motion judge's decision striking out paragraphs from its statement of defence that pleaded the respondents' ulterior motive in bringing the action.

The respondents alleged breaches of representations and warranties and fraudulent conduct arising from a share purchase agreement for the acquisition of a European auto parts manufacturing business valued at $410 million.

The defendant claimed the respondents' true motive was to obtain an after-the-fact reduction in the purchase price due to their own financial difficulties, rather than to recover genuine damages for genuine wrongs.

The motion judge struck these allegations as irrelevant and frivolous and vexatious under rule 25.11(b) of the Rules of Civil Procedure, and refused leave to amend.

In the context of CCAA proceedings for Sears Canada, the Monitor brought a motion to enforce a settlement agreement with several former landlords regarding the valuation of their claims.

The landlords disputed the Monitor's calculation of their claims under the agreed Landlord Claim Formula and sought disclosure of the underlying calculations.

The court held that the landlords were entitled to the disclosure and could dispute the calculations, but only using the sources permitted by the formula.

Additionally, the court ordered one landlord, Primaris, to repay $10,000 it had unilaterally withheld for legal fees when returning a mistaken payment.

The plaintiffs and a defendant by counterclaim, Mr. Sauro, brought motions to strike portions of the statement of defence and counterclaim.

The plaintiffs sought to strike paragraphs alleging ulterior motive and financial mismanagement.

The court struck the paragraphs pleading motive as frivolous and vexatious, but retained those pleading causation.

Mr. Sauro sought to strike the counterclaim against him, arguing it was improperly constituted as a counterclaim rather than a third-party claim.

The court agreed, finding Mr. Sauro was not a necessary and proper party to the counterclaim against the plaintiffs, and struck the counterclaim against him.

The moving parties (defendants) brought a motion for costs after the responding parties (plaintiffs) discontinued their action.

The responding parties had commenced the action after being informed by the moving parties' agent that the moving parties intended to breach an agreement to return properties following a condominium development.

The responding parties discontinued the action once the moving parties finally provided written confirmation that they would comply with their contractual obligations.

The court dismissed the motion for costs, finding that the responding parties had a bona fide cause of action and were justified in commencing the claim.

The moving parties were ordered to pay costs of the motion.

The plaintiff appealed a motion judge's refusal to grant default judgment against two defendants who failed to defend a claim for unpaid private copying levies.

The motion judge had declined default judgment, citing an unpleaded allegation of fraud and requiring oral evidence of the quantity and nature of the blank media.

The Divisional Court allowed the appeal, holding that the statement of claim did not plead fraud and that the defendants were deemed to admit the pleaded facts regarding the quantity and nature of the media under Rule 19.02.

Default judgment was granted.

The plaintiff sought leave to appeal an order dismissing its motion for default judgment against two defendants noted in default.

The motions judge had dismissed the motion, concluding a trial was necessary to address allegations of fraud for piercing the corporate veil and to prove the compact disks were blank.

The Divisional Court granted leave to appeal, finding good reason to doubt the correctness of the decision as the motions judge failed to apply the deemed admissions under Rule 19.02(1) and the appeal raised important issues regarding the requirement to prove liability in default proceedings.

The defendants, Pfizer, brought a motion under Rule 21.01(1)(b) to strike various claims in the plaintiff Apotex Inc.'s Amended Statement of Claim.

Apotex sought relief for being kept out of the market by Pfizer's invalid patent for Viagra, asserting statutory claims under the Patented Medicines (Notice of Compliance) Regulations, Statutes of Monopolies, and Trade-marks Act, and common law claims for unjust enrichment, nuisance, Ashby v. White, and conspiracy.

The court struck the claims under s. 8 of the PMNOC Regulations and the independent cause of action based on Ashby v. White, finding that the statutory conditions for PMNOC damages were not met and Ashby v. White is a principle, not a cause of action.

However, the court dismissed Pfizer's motion to strike the claims under the Trade-marks Act, unjust enrichment, nuisance, and conspiracy, rejecting the 'complete code theory' as insufficiently settled for a preliminary stage motion and finding the pleadings for these claims to disclose a reasonable cause of action.

The defendant moved for a declaration that service of a statement of claim was invalid where the plaintiff served the defendant's Canadian patent agent rather than serving the foreign defendant abroad under the Hague Convention.

The action sought damages following invalidation of a patent and included a claim under the Patent Regulations enacted pursuant to the Patent Act.

The court interpreted s. 29(2) of the Patent Act broadly, holding that non-resident patent owners who appoint Canadian representatives for service may be served through those representatives for proceedings arising under the Act or its regulatory regime.

The presence of additional common law or statutory claims did not remove the action from the scope of the provision.

The court concluded that domestic law permitted service in Canada and therefore the Hague Convention was not engaged.

The applicant sought court sanction of a plan of compromise and arrangement under the Companies’ Creditors Arrangement Act to resolve extensive litigation arising from the audit of Castor Holdings Ltd. The plan involved contributions from partners, insurers, and related entities totaling approximately $220 million and included third‑party releases.

A creditor group opposed the sanction, arguing that the releases violated Quebec civil law and that the claims process was unfair.

The court rejected these objections, finding the expert evidence unreliable, confirming that federal insolvency law permits third‑party releases notwithstanding provincial law, and concluding the plan was fair and reasonable given overwhelming creditor approval.

The plan was sanctioned.

The appellant appealed a decision implying a contractual obligation to disclose financial information to the respondent, enabling the respondent to determine whether to exercise an option to acquire up to a 20% interest in a limited partnership.

The Court of Appeal dismissed the appeal, finding that the application judge correctly applied the business efficacy test.

The Court held that the option right would be illusory without the implied right to disclosure, and that implying such a term was necessary to give business efficacy to the parties' agreement.