Thomas J. McEwen

The defendants in a certified class action regarding COVID-19 business interruption insurance claims brought a motion seeking joint adjudication and common case management of common questions across approximately 79 overlapping proceedings.

The motion was opposed by several plaintiffs in individual actions who wished to proceed independently.

The court dismissed the motion, affording deference to a prior case management decision that declined to stay the individual actions, and finding that forcing joint adjudication would inappropriately undermine the plaintiffs' right to opt out of the class proceeding and cause undue delay.

The plaintiffs brought a motion for penalty after the defendants were found in civil contempt for breaching a Mareva Order by placing a mortgage on a property and collecting rent.

The plaintiffs sought a 120-day term of imprisonment and the striking of the defendants' pleadings.

The court declined to order imprisonment, finding it disproportionate to the discrete acts of contempt.

Instead, the court ordered the defendants to pay a $35,000 fine and outstanding costs of $15,474.32 within 60 days, failing which their statement of defence and counterclaim would be struck.

The court issued a scheduling endorsement setting a motion date for April 5, 2022.

The responding party's counsel advised that preparation was hampered because the client was incarcerated in Hong Kong.

The court formally requested the Commissioner of Correctional Services in Hong Kong to grant the solicitors enhanced access to their client to allow meaningful preparation for the motion.

The Catalyst Parties brought actions for defamation, injurious falsehood, and conspiracy against various defendants, including media organizations, journalists, short sellers, and former borrowers, arising from the publication of a Wall Street Journal article and whistleblower complaints to the Ontario Securities Commission.

The defendants brought motions to dismiss the actions under the anti-SLAPP provisions of s. 137.1 of the Courts of Justice Act.

The Catalyst Parties also brought a motion to dismiss four discrete defamation claims in a counterclaim brought by the West Face Parties.

The court granted the defendants' motions, dismissing the Defamation Action and the Wolfpack Action, finding that the expressions related to matters of public interest and that the public interest in protecting the expressions outweighed the public interest in allowing the actions to proceed, particularly given the Catalyst Parties' history of aggressive litigation and ethically dubious investigative tactics.

The court dismissed the Catalyst Parties' motion regarding the counterclaim, holding that partial anti-SLAPP motions are not permitted and that the counterclaim had substantial merit.

The four Libfeld brothers, equal owners of The Conservatory Group (a multi-billion dollar real estate development business), experienced a complete and irreparable breakdown of their personal and professional relationships.

The applicants sought various remedies including a restructuring protocol or a restricted wind-up, while the respondents sought a buy-sell process or a structured buyout.

The court found no actionable oppression by any party, attributing the disputes to extreme mutual dysfunction.

Concluding that the brothers could no longer work together and that none of their proposed remedies were workable or fair, the court ordered a court-supervised wind-up and sale of the business under the OBCA and Partnerships Act, permitting all brothers to participate as bidders.

The plaintiffs, former executives of the Durham College student association (DCSI), sued Durham College and DCSI following their termination by DCSI.

Durham College brought a motion for summary judgment to dismiss the claims against it, arguing it had no involvement in the termination and owed no duty to supervise DCSI's employment relationships.

The court granted the motion, finding that the governing legislation prohibited Durham College from interfering with DCSI's normal activities, precluding any duty of care.

The court also dismissed the plaintiffs' claims for negligent misrepresentation, intentional infliction of mental distress, specific performance, and discrimination due to lack of evidence and insufficient pleadings.

This decision encompasses the Phase II supplementary reasons and the appended Phase I trial reasons regarding a dispute over a Share Purchase Agreement (SPA) for an insurance brokerage.

In Phase I, the court found that the defendants breached the SPA and acted oppressively by constructively dismissing key employees, which negatively impacted the target EBITDA.

The court also ruled that any reduction in the purchase price for failing to meet the target EBITDA was limited to the value of the Preferred Shares.

In Phase II, the court adopted the parties' joint submissions resolving the remaining factual and legal issues regarding specific EBITDA adjustments, directing the parties to proceed to Phase III to calculate the final deferred payment.

The Trustee in bankruptcy sought court orders for access to the bankrupt's leased premises and an extension of the three-month period under s. 38(2) of the Commercial Tenancies Act to elect to retain or assign the lease.

The Landlord opposed, arguing the Trustee had no right to access or assign the lease, and no legal basis existed to extend the period.

The court found that the Trustee, distinct from the Receiver, retained its rights under the CTA, including access for marketing the lease.

The court also held it had jurisdiction to extend the s. 38(2) period, not through inherent jurisdiction, but by applying s. 2 of Ontario Regulation 73/20 (the COVID-19 Suspension Order), which suspends periods for steps in proceedings.

The court granted a 90-day extension, subject to conditions regarding occupation rent, and ordered the parties to bear their own costs due to the mixed result.

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.

The Receiver, supported by the Applicant (senior secured lender and stalking horse bidder), sought court approval for a Sale Procedure featuring a stalking horse agreement for the North Barrie Crossing Shopping Centre.

The Respondents opposed, raising concerns about the credit bid valuation, expense reimbursement, deposit requirements, minimum overbid, and the timing of the sale during the COVID-19 crisis.

The court applied the Soundair and CCM Master principles, largely approving the Receiver's plan with minor amendments, including requiring environmental and building condition reports and tenant estoppel certificates, and extending the sale timeline by two weeks to enhance the bidding process.

The Plaintiffs brought a motion for contempt against the Defendants for breaching a Mareva Order and a Continuation Order.

The Defendants had encumbered a property, which was subject to the orders, with a mortgage and dissipated rental income without informing the Plaintiffs or their own counsel.

The Defendants argued they acted innocently and that the Mareva Order was obtained with "unclean hands." The court applied the three-part test for civil contempt, finding that the orders were clear, the Defendants had actual knowledge, and their actions were intentional.

The court rejected the Defendants' explanations as incredible given their real estate experience and found them in contempt beyond a reasonable doubt.

The court ordered an accounting and tracing of funds and scheduled a hearing for remedies.

The plaintiff sold its shares in a specialized transportation insurance broker to the defendant under a Share Purchase Agreement.

The agreement included a deferred payment for preferred shares, which could be reduced if the company failed to meet an earnings target during a three-year warranty period.

The company failed to meet the target, and the plaintiff brought an action for oppression and breach of contract, alleging the defendant sabotaged the earnings by constructively dismissing key employees and misallocating commissions.

The court found that the defendant constructively dismissed two key salespeople and acted oppressively, breaching the plaintiff's reasonable expectations.

The court ruled that any reduction in the purchase price was limited to the preferred shares and awarded the plaintiff credits for certain misallocated commissions, while reserving other issues for further submissions.

Her Majesty the Queen in right of Ontario sought to lift a stay on its $330 billion health care cost recovery action against three tobacco companies (JTI-Macdonald Corp., Imperial Tobacco, Rothmans, Benson & Hedges Inc.) and eleven co-defendants, which was imposed under CCAA proceedings.

Ontario proposed to temporarily stay the effects of any judgment.

The court dismissed the motion, emphasizing the need to preserve the status quo in CCAA proceedings to facilitate a global resolution of significant claims.

Allowing Ontario's action to proceed would alter the level playing field, distract from restructuring efforts, and impose significant costs, prejudicing other stakeholders.

The applicants, JTI-Macdonald Corp., Imperial Tobacco Canada Limited, Imperial Tobacco Company Limited, and Rothmans, Benson & Hedges Inc., sought protection under the Companies' Creditors Arrangement Act (CCAA) following a $13.5 billion judgment from the Quebec Court of Appeal and other ongoing litigation.

JTI-Macdonald Corp. and Rothmans, Benson & Hedges Inc. moved for orders to file Supreme Court of Canada (SCC) leave applications but suspend further proceedings.

Imperial Tobacco Canada Limited and Imperial Tobacco Company Limited sought a blanket stay of all proceedings and limitation periods.

The Quebec class action plaintiffs opposed the motions and sought to partially lift the stay.

The court affirmed its broad jurisdiction under CCAA s. 11 to stay all actions, including appellate proceedings and limitation periods.

The court dismissed the motion by JTI-Macdonald Corp. and Rothmans, Benson & Hedges Inc., and granted Imperial Tobacco's motion, finding that a blanket stay best preserved the status quo and facilitated a global resolution for all stakeholders.

The defendants, KPMG, Canaccord Genuity Corp., and Cassels Brock & Blackwell LLP, brought motions for summary judgment to dismiss actions initiated by 1511419 Ontario Inc. (formerly The Cash Store Financial Services Inc.) on the grounds that the claims were statute-barred by the two-year limitation period.

The actions related to professional services provided concerning a January 2012 loan purchase and note offering.

The court dismissed the motions, finding that there were genuine issues requiring a trial regarding the discoverability of the claims, given the complex factual pattern, allegations of professional negligence, and the limited evidentiary record presented.

The applicants, Imperial Tobacco Canada Limited and Imperial Tobacco Company Limited, sought an Initial Order under the Companies' Creditors Arrangement Act (CCAA) following a $13.5 billion judgment against them in Quebec.

The court granted the Initial Order, including a stay of proceedings, finding the applicants insolvent and that a stay was necessary to prevent serious harm to stakeholders and maintain the status quo.

The court also extended the stay to non-applicant affiliates and approved several charges, including an Administration Charge, a Tobacco Claimant Coordinator Charge, a Directors' and Officers' Charge, and a Sales and Excise Taxes Charge.

The landlord, INCC Corp., sought a declaration to terminate a lease with its tenant, Oxford Medical Imaging Inc. (OMI), alleging insolvency and liquidation proceedings.

OMI sought to restrain termination and assign the lease to 2617949 Ontario Limited, arguing INCC unreasonably withheld consent.

The court found OMI was not insolvent, no liquidation proceedings were commenced, and INCC unreasonably withheld consent to the lease assignment.

The applicant, a secured creditor, applied to adjudge the respondent bankrupt and sought a declaration that its perfected security interest under the Personal Property Security Act took priority over class counsel's first charge under the Class Proceedings Act regarding a $3 million costs award.

The court adjudged the respondent bankrupt and found the costs award was the respondent's property.

However, the court held that the first charge under the Class Proceedings Act is essentially a solicitor's lien, which is exempt from the Personal Property Security Act.

Therefore, class counsel's charge takes priority over the applicant's secured claim.

The applicant, an automotive components manufacturer, sought protection under the Companies' Creditors Arrangement Act due to severe financial difficulties.

After extensive negotiations with secured lenders and key customers, the applicant proposed a strategic sale process with a stalking horse bidder, supported by a DIP facility.

The court granted the Initial Order, finding the applicant insolvent and the proposed stay of proceedings, DIP facility, and bidding procedures to be reasonable and necessary to preserve the business and employment.

The plaintiff brought a motion to compel the law firm DJD to disburse $338,627.56 held in trust pursuant to prior court orders.

The funds were the proceeds of property sales related to a fraud and misrepresentation action.

Following a settlement where the defendants relinquished their claim to the funds, DJD refused to release the money, asserting priority for its own legal fees and subsequently issuing notices of garnishment on behalf of new clients (the garnishment creditors) against its former clients.

The court held that the funds were held in trust for the plaintiff pending the litigation's outcome and did not constitute a debt payable to the defendants.

The plaintiff was granted priority over the garnishment creditors, and DJD was ordered to release the funds.