Thomas G. Conway

The applicant bank brought a motion to appoint an interim receiver over the respondent companies' assets pursuant to section 47(1) of the Bankruptcy and Insolvency Act and section 101 of the Courts of Justice Act.

The companies had defaulted on their obligations under a master purchase and servicing agreement, failed to secure refinancing, and admitted to transferring funds from a blocked trust account following a fraudulent cheque incident.

The court found that the appointment of an interim receiver was necessary to protect the debtor's estate and the interests of the bank, and granted the motion with limited scope to preserve assets pending further resolution.

The Court-Appointed Receiver of Ashcroft Homes – Capital Hall Inc. sought approval of a settlement agreement with Northbridge Financial Corporation concerning an action for approximately $60 million in damages related to a fire that interrupted construction of a 353-unit residential condominium building in Ottawa.

The Receiver also sought a sealing order to protect the confidential terms of the settlement.

The court approved the settlement as reasonable and granted the sealing order, finding that the public interest in maximizing recovery for stakeholders and promoting settlement outweighed the principle of court openness under the three-part test established in Sherman Estate v. Donovan.

The Court of Appeal for Ontario dismissed an appeal by S.D.M.O. Industries (Kohler-SDMO) and Kohler Co., who sought to stay proceedings on the basis of lack of jurisdiction or a forum selection clause favoring a French court.

The court held that Ontario had jurisdiction, the forum selection clause was not proven to be valid or applicable, and the motion judge made no reviewable error.

The appeal was dismissed with costs.

The plaintiffs brought an action for damages arising from catastrophic failures of emergency generators at a hospital.

Defendants SDMO and Kohler moved to stay proceedings, arguing lack of jurisdiction or that Ontario was not an appropriate forum.

The court found Ontario had jurisdiction simpliciter as the torts (property damage, failure to warn, negligent misrepresentation) occurred in the province.

The court also found the forum selection clause in the contract between SDMO and GAL Power was not properly before the court and would not apply to third parties or be enforceable against GAL Power.

Finally, the court determined Ontario was the most appropriate forum, considering the location of parties, witnesses, and evidence, and the existence of related proceedings.

The motion for a stay was dismissed.

The plaintiffs, representing Ottawa taxi plate holders and brokers, brought a class action against the City of Ottawa for its response to Uber's entry into the local market in 2014.

The court found that the City owed a duty of care to the taxi industry based on a long-standing, collaborative relationship and was negligent in failing to enforce its 2012 taxi by-law against Uber.

However, the court dismissed the plaintiffs' claims that the City's actions violated section 15 of the Charter or the Human Rights Code, finding no disproportionate discriminatory impact based on race or immigrant status.

The court also dismissed the claim that the City's taxi licensing fees constituted an unlawful tax, finding a reasonable nexus between the fees and the cost of services provided.

This appeal concerned the assessment of damages in a failed commercial real estate transaction.

The trial judge awarded the respondent (purchaser) damages for the increase in property value and 90% of all development expenses incurred since 2010.

The Court of Appeal allowed the appeal in part, affirming the award for increased property value and wasted expenses, but erred by including expenses incurred under a prior joint venture agreement that had been released.

The Court held that only expenses incurred after the 2013 Agreement of Purchase and Sale were recoverable.

The calculation of rental costs as development expenses was upheld, but the amount was to be limited to the period of the 2013 APS.

The 10% discount applied by the trial judge was upheld.

The appellant, Salvatore Falsetto (father), appealed a trial decision that found substantial transfers of money and properties to his son, Salvatore Fillipo Falsetto (Sam), were gifts, not held in trust.

The trial judge also found no breach of fiduciary duty, undue influence, or unjust enrichment by the son.

The Court of Appeal dismissed the appeal, upholding the trial judge's factual findings that the transfers were gifts.

While the Court of Appeal found that the son was indeed a fiduciary, it concluded that he did not breach his fiduciary obligations because the transfers were made with the father's full knowledge and consent, and at his instruction.

This endorsement addresses costs following the dismissal of an urgent injunction application.

The court considered three hearings: the initial injunction application, a hearing regarding the respondent's breach of undertaking, and a hearing requested by the respondent to vary an interim order.

The injunction was dismissed due to the applicant's failure to provide an undertaking as to damages.

The court awarded costs to the respondent for the initial injunction hearing and for responding to the applicant's post-decision attempt to provide the undertaking, but denied costs for the hearings related to the undertaking breach and the failed attempt to vary the interim order, finding them unnecessary.

The court also assessed the reasonableness of the respondent's claimed legal hours and hourly rates.

The applicant, Cash Cloud Inc., sought an urgent interlocutory injunction to restrain the respondent, BitAccess Inc., from terminating a Master Purchase Agreement, deactivating cloud-based software used for cryptocurrency kiosks, and deleting customer data.

The court found it had jurisdiction to grant interim relief despite a mandatory arbitration clause.

The court granted a 60-day order preserving the customer data to allow the applicant to download it.

However, the court dismissed the injunction to restrain the software deactivation because the applicant failed to provide the mandatory undertaking as to damages required by Rule 40.03 of the Rules of Civil Procedure.

The moving party sought leave to appeal an order regarding the production of documents.

The Divisional Court granted leave to appeal on a single issue: whether the motion judge erred in ordering the production of documents after May 2016, having found an implied joint retainer among the parties and their counsel.

Costs of the motion were reserved to the panel hearing the appeal.

This was a costs decision following a six-week civil trial in which the plaintiff's claims for damages, resulting trust, constructive trust, breach of trust, and breach of fiduciary duty were dismissed.

The court held that the plaintiff had advanced serious, fraud-like allegations of theft, conspiracy, elder abuse, and dishonesty without proving them, warranting costs on a substantial indemnity basis.

The court also relied on the defendants' unaccepted Rule 49 offer of $1.5 million, which the plaintiff failed to beat after recovering nothing at trial.

Although impecuniosity was argued, the court found no exceptional sympathetic circumstances justifying a major reduction and ordered costs of $750,000 plus HST and disbursements of $43,959.26 inclusive of HST.

The Court of Appeal for Ontario heard two appeals concerning a priority dispute over accelerated interest in closed mortgages and a costs order in a receivership.

The primary issue was whether the first mortgagee, First National Financial GP Corporation (FN), was entitled to future, unearned, accelerated interest upon the early discharge of its closed mortgages due to the mortgagors' default and court-ordered sale.

The court found that the trial judge erred by failing to conduct a full contractual analysis of the mortgage provisions and by relying on a standalone common law entitlement to accelerated interest.

The Court of Appeal held that the mortgage terms explicitly provided for FN's entitlements upon default, which did not include accelerated interest.

The appeal regarding accelerated interest was allowed.

The appeal concerning the receiver's costs was dismissed, as the trial judge's discretion was properly exercised.

The Appellants sought an order to vacate Certificates of Pending Litigation (CPLs) and a writ of seizure and sale registered against their properties, pending the determination of their appeals from a judgment and a CPL order.

They proposed paying the judgment amount into court as security to facilitate the sale of the properties to a third party.

The Respondent opposed, arguing that prior agreements required the full sale proceeds to be paid into court and that the Appellants had failed to disclose the sale agreement earlier.

The court found that the prior agreements contemplated a sale before the final determination of damages and that the Appellants' liability was now fixed by the judgment.

The motion was granted, allowing the CPLs and writ to be vacated upon the Appellants paying $1,750,000 into court as reasonable security, balancing the parties' interests.

Following the dismissal of Hockey Canada's motion to withdraw an affidavit and the vacating of its summary judgment motion, the plaintiff sought costs.

The plaintiff claimed partial indemnity costs for the motion and full indemnity for costs thrown away, totaling over $70,000.

The court found the plaintiff's claimed hours excessive due to duplication of work by multiple timekeepers and determined that some work done for the summary judgment motion could be repurposed for trial.

The court fixed the costs payable by Hockey Canada to the plaintiff at $25,000 all-inclusive.

The plaintiff father sued his defendant son and several of the son's companies, seeking the return of over $12 million in funds and properties transferred to the son between 2010 and 2015.

The father alleged that the properties were to be held in trust for him and his other children, and claimed breach of fiduciary duty, undue influence, and unjust enrichment.

The court dismissed the action, finding that the son successfully rebutted the presumption of resulting trust.

The court accepted the son's evidence, corroborated by independent witnesses and bank personnel, that the father had a clear donative intent and gifted the funds and properties to the son.

This decision addresses two motions: one by AIG Insurance Company of Canada for summary judgment against the plaintiff, Neil Doef, regarding a paralysis benefit claim, and another by Hockey Canada seeking leave to withdraw an affidavit and replace it.

The court dismissed AIG's summary judgment motion due to an unjustifiable 42-month delay in bringing it, finding it contrary to the principles of timely access to justice.

Hockey Canada's motion for leave to withdraw the affidavit was also dismissed, as granting it would have prejudiced the plaintiff by denying him the opportunity to cross-examine the affiants before the summary judgment motion, which was subsequently vacated.

The plaintiff sued for damages arising from the defendants' refusal to close a real estate transaction for commercial property intended for condominium development.

Liability for breach of contract was previously determined by summary judgment.

At trial to quantify damages, the plaintiff sought disgorgement of profits or, alternatively, expectation damages including reimbursement of development expenses.

The court declined to award gain-based restitution but awarded expectation damages to make the plaintiff whole, comprising the $323,000 difference between the purchase price and the land's value on the closing date, plus 90% of the plaintiff's out-of-pocket development expenses ($1,062,901).

The defendants' counterclaim was allowed in part for admitted debts and rent up to the date of breach.

The plaintiff brought a motion for leave to amend his statement of claim in an action alleging his son misappropriated funds using a power of attorney.

The defendants consented to some amendments, including removing a bank as a defendant, but opposed adding numerous new particulars of properties and transactions.

The court granted the unopposed amendments but denied the opposed ones, finding that adding unproven transactions to the pleading before entitlement to a tracing remedy was established would unnecessarily complicate and delay the trial, constituting an abuse of process.

The applicant, a Major-General in the Canadian Armed Forces, sought judicial review regarding his removal from a secondment at the Public Health Agency of Canada, alleging political interference.

The Attorney General of Canada brought a motion to strike the application on the basis that it was premature.

The Federal Court granted the motion to strike, holding that the applicant must first exhaust the internal military grievance process provided by section 29 of the National Defence Act, and that the allegations of political interference did not constitute exceptional circumstances that would justify bypassing the administrative process.

The insurer brought an application to regularize a dysfunctional insurance appraisal process following a fire at a condominium construction project.

The insured brought a cross-application to terminate the appraisal process.

The court found that the appraisal process had become a 'procedural shipwreck' due to the joint and several fault of the umpire, the appraisers, and the lawyers for both parties.

The court dismissed the insurer's application and granted the insured's cross-application, permanently terminating the appraisal process and leaving the valuation of the loss to be determined in the concurrent court action.