Steve Tenai

The case involves a dispute between two brothers, Nickolas and George Georghiades, co-founders of a real estate business (LP).

Nickolas brought a motion seeking the appointment of an auditor, inspector, and monitor, and direct access to business information, alleging oppression and misappropriation of funds by George.

The court found a prima facie case of oppression due to George's control over information and the brothers' dysfunctional relationship.

The court ordered the appointment of an independent Monitor with a prescribed mandate to observe and report on the business's financial activities, in addition to an agreed-upon audit.

The request for a separate inspector/investigator and direct access was declined at this stage, with the possibility of revisiting if the Monitor's reports indicate ongoing difficulties.

No costs were awarded.

This is a supplementary endorsement on costs following a fair value application.

The applicant, 1843208 Ontario Inc., was largely successful in the underlying application, with the court determining the fair value of shares at $1.50, significantly lower than the $8.91 sought by the dissenting shareholders.

The dissenting shareholders argued against paying costs, citing that the determined value exceeded the company's initial formal offer and their success on the interest issue.

The court found the dissenting shareholders' valuation position unreasonable and unrealistic, and their success on interest minor.

Applying the principles of costs, particularly that dissenting shareholders do not get a "free ride" in valuation proceedings, the court awarded the applicant $1,075,000 in costs, inclusive of fees, disbursements, and taxes, payable by the dissenting shareholders.

The applicant, 1843208 Ontario Inc., sought to fix the fair value of shares of dissenting shareholders of Baffinland Iron Mines Corporation at $1.50 per share following a plan of arrangement.

The Dissent Group argued for a fair value of $8.91 per share.

The court found that the market price of $1.50, established through a contested takeover bid process, was the best objective evidence of fair value, rejecting the Dissent Group's higher valuation which relied on a discounted cash flow analysis based on unproven mineral resources and overly optimistic projections.

The court also awarded interest to the Dissent Group for the entire period, including a significant delay caused by a stay of proceedings related to a class action.

This appeal concerned a dispute over loan repayments within a complex tax shelter scheme.

The appellants, two corporations (Fincos), sought repayment of loans advanced to an investor.

The investor argued that earlier loans were statute-barred and later loans were satisfied by preferred shares held in trust.

The Court of Appeal upheld the trial judge's findings: the claims for earlier loans were statute-barred due to an agency relationship establishing the commencement of the limitation period, and the later loans were indeed repayable and satisfied by the transfer and cancellation of preferred shares, interpreting the various agreements holistically.

The court dismissed the appeal and the cross-appeal, finding the cross-appeal moot given the main findings.

This appeal addresses whether an Ontario court should recognize and enforce a "ricochet judgment" – a British Columbia judgment that itself recognized and enforced a foreign judgment from the Judicial Committee of the Privy Council.

The appellant, H.M.B. Holdings Limited, sought to enforce a Privy Council judgment (compensation for expropriated property in Antigua and Barbuda) in British Columbia, obtaining a default judgment.

After an unsuccessful attempt to register this BC judgment in Ontario under the Reciprocal Enforcement of Judgments Act, H.M.B. commenced a common law action in Ontario to recognize and enforce the BC judgment.

The motion judge dismissed the action, finding no real and substantial connection between British Columbia and the underlying Antiguan dispute.

The Court of Appeal upheld the dismissal, but on the principled basis that the common-law test for recognition and enforcement of foreign judgments does not extend to ricochet judgments, as such judgments are local in scope and enforcing them in another jurisdiction would improperly circumvent local laws, such as limitation periods.

The court-appointed Liquidators of Days Hong Kong sought a Norwich Order against two Ontario corporations (Days Canada Limited and Days Holdings Limited) and their director, Scott McPhail (Third Parties), to obtain information for tracing assets and investigating potential fraudulent conveyances by Mahesh Dayaram, a convicted fraudster.

The Third Parties argued the Liquidators had sufficient information and the request was a fishing expedition.

The court granted the Norwich Order in part, finding the test for such an order was met due to the suspicious timing of share redemptions and property transfers, the need for asset tracing in a large-scale fraud, and the Liquidators' broad investigative powers under a Recognition Order.

The court also addressed the scope of indemnity for the Third Parties' costs of compliance.

The plaintiffs, two numbered companies acting as financing vehicles for tax shelter schemes, sued the defendant investor for repayment of $6.29 million in loans.

The defendant argued that the loans were satisfied by preferred shares held in trust and that claims for earlier loans were statute-barred.

The court found that the claims for the earlier loans were out of time as the limitation period commenced when the loans matured or were demanded by the tax shelter's operating company acting as the plaintiffs' agent.

Furthermore, the court held that the preferred shares were intended to repay the loans.

The action and the defendant's counterclaim were dismissed.

The plaintiffs, purchasers of condominium units, sued the defendant developer for breach of contract after the project was terminated and deposits returned.

The plaintiffs alleged the developer failed to take commercially reasonable steps to satisfy financing conditions and obtain municipal approvals.

The defendant brought a cross-motion for summary judgment, relying on an exculpatory clause (Clause 28) in the agreements that limited liability to the return of deposits.

The court granted the plaintiffs leave to amend their statement of claim but ultimately granted the defendant's summary judgment motion, dismissing the plaintiffs' action.

The court found Clause 28 enforceable, applying the three-step Tercon Contractors analysis, concluding it applied to the circumstances and was not contrary to public policy, even if a fundamental breach occurred.

The applicants, Spacebridge Inc. and David Gelerman, sought an order allowing Gelerman to complete his term as a director of Baylin Technologies Inc. and for the release of share certificates held in trust.

Baylin and 2385796 Ontario Inc. brought a cross-application seeking a declaration that Gelerman breached Baylin’s Majority Voting Policy and an order for his resignation.

The court found Baylin’s Majority Voting Policy to be oppressive, unfairly prejudicial, and in unfair disregard of the applicants' reasonable expectations, as it deviated materially from TSX requirements and was designed to remove Gelerman.

The court also found that Baylin was not entitled to set-off the share certificates against indemnity claims, as the shares had already been "paid" by delivery to the trustee.

The application was allowed, setting aside Baylin's policy and ordering the release of shares, and the cross-application was dismissed.

The plaintiffs brought a motion to certify a proposed shareholder class action arising from the successful joint take-over bid for Baffinland Iron Mines Corporation.

The plaintiffs asserted claims for circular misrepresentation, insider trading, oppression, and unjust enrichment.

The court found that the plaintiffs met the requirements for certification under s. 5 of the Class Proceedings Act.

The court excluded compulsory acquisition security holders from the class definition but included secondary market sellers.

The court also held that the oppression claims raised common issues and that a class action was the preferable procedure.

Following an omnibus motion in a secondary market securities class action, the defendants sought costs payable forthwith.

The plaintiffs and one co-defendant argued for costs in the cause.

The court ordered costs in the cause, noting that the omnibus motion involved novel legal issues and was part of the fabric of the whole litigation, making it fairest that the ultimate victor in the action receive the costs.

This decision addresses eight motions in a billion-dollar secondary market securities class action.

The court granted motions by SNC-Lavalin and its Outside Directors to strike paragraphs from the Plaintiffs' Amended Reply and dismissed the Plaintiffs' motion to deliver a Fresh as Amended Reply, finding that the Plaintiffs were attempting to plead a new, uncapped liability claim without leave and reintroduce previously rejected allegations of bribery in Libya.

The court also granted motions by the Outside Directors and Michael Novak to strike paragraphs from Riadh Ben Aïssa's Statement of Defence, which similarly attempted to introduce allegations of bribery in Libya and knowledge against co-defendants beyond the scope of the granted leave.

Additionally, the court granted protective orders for the examinations for discovery of Messrs.

Ben Aïssa, Duhaime, and Roy, who faced criminal charges, to protect their Charter rights and the integrity of criminal proceedings, but denied requests to stay or postpone discoveries.

The defendant, Apotex, brought a motion to strike portions of the plaintiffs' statement of claim and response to a demand for particulars.

The underlying action alleged that Apotex breached a settlement agreement and a duty of good faith by selling an extraordinary volume of a generic drug during a six-month market withdrawal period.

Apotex argued that one of the plaintiffs was an improper party and that the claim for breach of good faith had no reasonable prospect of success.

The court dismissed the motion, finding it was not plain and obvious that the claims would fail, noting that the law on the duty of good faith in contract performance is still developing.

Following the dismissal of a $200 million class action on summary judgment, the successful defendant sought costs of $154,000 on a partial indemnity basis.

The plaintiff and the Law Foundation of Ontario argued for a maximum of $60,000, citing the brevity of the hearing and the novelty and public interest of the issues under section 31(1) of the Class Proceedings Act.

The court rejected the public interest argument but acknowledged some novelty in the interpretation of the Gift Card Regulation.

Costs were fixed at $110,000 all-inclusive, payable by the plaintiff.

In a proposed class proceeding, the plaintiffs sought court approval of a third party litigation funding agreement that would bind the plaintiffs and class members.

Notice of the agreement was provided to the defendants and large shareholder members of the class, and no party opposed the motion.

The court considered prior jurisprudence regarding litigation funding agreements and noted that the proposed agreement contained a scaled and capped commission structure addressing concerns previously raised about third party funding arrangements.

The court found the agreement consistent with the principles articulated in earlier cases and noted it represented a cost saving compared with the Class Proceedings Fund.

The agreement was approved.

Following a certification decision in a proposed consumer class action concerning prepaid phone cards, the court determined the appropriate costs award.

The moving party sought over $204,000 in partial indemnity costs after succeeding on certification of most proposed common issues.

The court reviewed the costs outline, reduced counsel hourly rates to align with the Rules Committee’s Information to the Profession, and removed an excessive research disbursement.

Considering Rule 57.01 factors, historical certification-motion cost averages, and proportionality principles tied to access to justice under the Class Proceedings Act, the court fixed costs at $150,000 all-inclusive payable forthwith by the defendants.

The plaintiff brought a motion to certify a class action against Bell Mobility regarding the expiry dates on pre-paid phone cards.

The plaintiff alleged breach of contract, breach of the Gift Card Regulation under the Consumer Protection Act, unjust enrichment, and unfair practices.

The court found that the pleadings disclosed causes of action for breach of contract and unjust enrichment, but not for unfair practices.

The court certified the action as a class proceeding, appointed the plaintiff as the representative, created a sub-class for consumer-users, and certified five common issues.

The plaintiffs sought leave under Part XXIII.1 of the Securities Act and certification of a proposed class proceeding alleging secondary market misrepresentation by a public issuer and its directors and officers in continuous disclosure documents.

They also requested approval to discontinue common law negligent misrepresentation and oppression remedy claims in favour of the statutory cause of action.

The court held that the plaintiffs met the statutory leave test by demonstrating good faith and a reasonable possibility of success at trial.

It further concluded that discontinuance of the common law and oppression claims would not prejudice class members because the statutory claim avoided reliance issues and certification difficulties.

The action was certified as a class proceeding, with identifiable class members, common issues, and a preferable procedure established.