Steve Tenai

The applicant sought a declaration regarding the interpretation of a unanimous shareholders agreement for a family-owned steel distribution business.

The applicant argued the agreement required the board of directors to consist of the registered holders of voting shares, while the respondent argued the board was to be elected by a resolution of those shareholders.

Applying the principles of contractual interpretation, the court found the ordinary and grammatical meaning of the provision, read in context with the surrounding circumstances, supported the respondent's interpretation.

The application was dismissed.

This appeal concerned a dispute over indemnification and escrow provisions in an asset purchase agreement, specifically whether an amendment to a Notice of Application was statute-barred.

The Court of Appeal dismissed the appeal, affirming the application judge's decision that the amendment was not statute-barred, despite an error in the application of s. 16(1)(a) of the Limitations Act, as it did not introduce a new cause of action or remedy.

The court also upheld the interpretation of the Escrow Agreement regarding notice delivery, finding that registered mail was not a valid method of delivery.

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.

The applicants, SpaceBridge, sought declarations that an indemnity claim made by the respondents, Baylin, under an asset purchase agreement (APA) and related escrow agreement was invalidly delivered, and for the return of $1,826,512 paid out of an escrow fund.

The core dispute revolved around the interpretation of contractual notice provisions, specifically whether delivery by registered mail was a permitted method under the Escrow Agreement, which had different notice modalities than the APA.

The court found that registered mail was not a valid mode of delivery under the Escrow Agreement, meaning Baylin's claim certificate was not properly delivered, and thus SpaceBridge's 30-day objection period never commenced.

Consequently, the payment from the escrow fund was improper, and Baylin was ordered to return the funds.

The court also dismissed Baylin's arguments regarding limitation periods and estoppel, but clarified that the ruling did not invalidate Baylin's underlying indemnity claim under the APA, which could still be pursued through litigation.

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 appellant sought to register in Ontario a default judgment obtained in British Columbia to enforce a Privy Council judgment awarding compensation for expropriation of its property by the respondent.

The application judge and majority of the Court of Appeal dismissed the application on the basis that the respondent was not carrying on business in British Columbia under s. 3(b) of Ontario's Reciprocal Enforcement of Judgments Act.

The Supreme Court unanimously dismissed the appeal, finding no error of law in the interpretation of "carrying on business" and no palpable and overriding error in the factual conclusion that the respondent lacked any actual presence in British Columbia.

Côté J. concurred but wrote separately to address the open question of whether recognition (derivative) judgments fall within the REJA's definition of "judgment", concluding that they do.

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 plaintiff sought summary judgment to recognize and enforce a British Columbia default judgment in Ontario.

The B.C. judgment had recognized a Privy Council judgment against the defendant.

The defendant argued that the B.C. judgment was a 'ricochet judgment' and that B.C. lacked a real and substantial connection for the purposes of extra-provincial enforcement.

The court agreed, finding that while B.C. legislation provided a presumption of jurisdiction for local enforcement, it did not satisfy the common law real and substantial connection test required for enforcement outside of B.C. The action was dismissed.

This appeal concerned the interpretation of an exculpatory clause (clause 28) in a preconstruction condominium purchase and sale agreement.

The appellants sought to recover more than their deposit plus interest upon termination of the agreement.

The court affirmed the motion judge's finding that clause 28, which limited the respondent's liability to the deposit plus interest, was clear and not altered by the incorporated Tarion provisions, as it represented an agreed allocation of risk consistent with the Tarion framework.

The appeal was dismissed.

ESW Capital, LLC applied for exemptive relief from the minimum tender requirement under the Securities Act in connection with its proposed take-over bid for Optiva Inc. The proposed bid was opposed by two other control block shareholders, Maple Rock and EdgePoint, who announced they would not tender their shares.

ESW sought to exclude their shares from the minimum tender calculation.

The Ontario Securities Commission dismissed the application, finding no exceptional circumstances or abusive conduct by the target, bidder, or control block shareholders that would warrant altering the recalibrated bid regime and undermining minority shareholder choice.

This is a costs endorsement following an appeal where the appellants were awarded costs.

The appellants sought $100,000 for the applications below.

The respondents did not contest this amount.

The Court of Appeal ordered the respondents to pay the appellants $100,000, inclusive of disbursements and HST, for the costs of the original applications.

The defendants brought a motion for leave to appeal the order of Dietrich J. dated December 19, 2019.

The Divisional Court dismissed the motion for leave to appeal and awarded costs to the responding parties fixed at $5,000.

This appeal addressed a dispute arising from an asset purchase agreement concerning a director's resignation under a majority voting policy and a claim for contractual set-off.

The Court of Appeal found that the application judge erred in concluding that Baylin's majority voting policy did not comply with TSX requirements and in finding oppression against the respondent director.

The court also found error in the denial of contractual set-off for indemnity claims against unreleased shares.

The appeal was allowed, upholding the majority voting policy, requiring the director's resignation, and permitting the set-off of shares.

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 defendants brought a motion for summary judgment to enforce a settlement agreement that purportedly resolved the plaintiffs' oppression claims arising from a corporate restructuring.

The plaintiffs opposed the motion, arguing the agreement was unconscionable and induced by misrepresentations regarding the inclusion of a critical patent licence.

The court dismissed the motion, finding that the factual matrix was complex, credibility issues were prominent, and it was premature to grant summary judgment or partial summary judgment before examinations for discovery had been completed.