Thomas J. McRae

The applicant insurer sought leave to appeal an order requiring it to pay the legal fees of Nortel's executives without reference to a $10 million retention amount or a directors and officers trust fund.

The motion judge had found that the indemnification was a pre-filing claim subject to the CCAA stay, and that allowing access to the trust would improperly elevate the insurer's priority.

The Court of Appeal denied leave, finding the motion judge's conclusions were within his expertise and entitled to deference, and the issues were specific to the case rather than of broader interest.

The Court also declined to consider fresh evidence filed by the applicant because no motion for leave to admit it was brought.

The defendant brought a motion to dismiss or stay an Ontario action on the basis of res judicata, issue estoppel, and abuse of process, relying on a Minnesota default declaratory judgment obtained after the plaintiff declined to attorn to the jurisdiction of the U.S. court.

The Ontario court found that the Minnesota judgment did not determine the dispute on the merits and that the defendant failed to disclose the pending Ontario proceedings when seeking default judgment.

Applying the principles governing recognition of foreign judgments, the court held there was no real and substantial connection between the dispute and Minnesota sufficient under Canadian conflict of laws rules.

The court further concluded that the doctrines of res judicata and issue estoppel did not apply, and even if they did, discretion should be exercised to refuse their application to avoid injustice and the appearance of forum shopping.

The appellant, a Minnesota company, appealed the dismissal of its motion to stay the respondent's Ontario breach of contract action on the basis of forum non conveniens.

The appellant argued the motion judge erred in assessing the location of witnesses, documents, and geography, and that a default judgment obtained in a parallel Minnesota action should trump all other factors.

The Court of Appeal dismissed the appeal, finding the motion judge's assessment of the factors was supported by the evidence and that a foreign default judgment is merely one factor to be weighed in the forum non conveniens analysis, not a determinative one.

Following the dismissal of a motion to dismiss an action on the basis of forum non conveniens, the court determined the appropriate costs award.

The successful party sought $25,000 plus disbursements and HST on a partial indemnity basis, while the opposing party argued that amount was excessive and proposed $15,000 inclusive.

The court found the docketed time claimed exceeded what was necessary for the motion.

Accepting the lower proposal, the court fixed costs at $15,000 inclusive of disbursements and HST.

The defendant brought a motion to set aside service of the statement of claim and stay the Ontario action on the basis of forum non conveniens, arguing Minnesota was the more appropriate forum.

Parallel proceedings had been commenced earlier in Minnesota where a declaratory judgment had already been granted by default.

Applying the Muscutt factors, the court found most factors neutral, with geography slightly favouring Ontario due to the location of the business operations and the negotiation of the agreements.

Although a Minnesota judgment had been obtained, the court held that first‑to‑file and parallel proceedings were not determinative.

The defendant failed to establish that Minnesota was the clearly more appropriate forum, and the motion was dismissed.

The moving party sought leave to appeal an order sanctioning the monitor's methodology for distributing funds in Nortel's Health and Welfare Trust under the CCAA.

The Court of Appeal dismissed the motion, finding that the interpretation of the specific termination clause was not of significance to the practice, the appeal was not prima facie meritorious, and granting leave would unduly hinder the progress of the restructuring.

Costs were awarded to the Monitor.

The appellants, representing unionized and non-unionized former employees of Nortel, appealed a decision dismissing their motions for directions to compel Nortel to pay severance, termination, and retirement benefits during its CCAA restructuring.

The appellants argued that the payments were protected under s. 11.3(a) of the CCAA as compensation for ongoing services, and that the CCAA stay could not override provincial Employment Standards Act obligations.

The Court of Appeal dismissed the appeals, holding that the payments were for past services and that the doctrine of federal paramountcy allowed the CCAA stay to suspend the immediate payment obligations under the provincial legislation to facilitate the restructuring.

The appellant school board appealed a trial judgment finding that an Education Development Levy Agreement (EDLA) between the parties was of no force and effect.

The EDLA provided for the payment of a school levy if development occurred on the respondent's lands, referencing a proposed zoning bylaw that was ultimately abandoned.

The Court of Appeal upheld the trial judge's finding that the EDLA was conditional on the proposed bylaw becoming law, as the agreement relied on the bylaw having independent legal effect to create the permitted maximum residential density.

The appeal was dismissed.

The respondent's cross-appeal for damages for breach of the same contract was also dismissed.

The applicants, two high school students, sought judicial review of a principal's decision to suspend them and transfer them to another school following a violent altercation.

The applicants argued the principal lacked jurisdiction to transfer them, breached procedural fairness, and violated their rights under sections 7 and 15 of the Charter.

The Divisional Court dismissed the application, finding that the principal had the statutory authority to deny access and transfer students for safety reasons.

The court also held that there was no breach of procedural fairness and that the applicants failed to establish any Charter violations.

The respondent sought substantial indemnity costs following an appeal.

The Court of Appeal declined to award substantial indemnity costs and instead ordered the appellant to pay the respondent's costs of the appeal fixed at $15,000, inclusive of disbursements and GST.

The appellants appealed an order annulling their assignments into bankruptcy under s. 181 of the Bankruptcy and Insolvency Act.

The motion judge had found that the assignments were filed without obtaining leave as required by a prior receivership order.

The Court of Appeal upheld the decision, finding that an assignment in bankruptcy constitutes a 'proceeding' under the prior order and that the leave requirement did not offend the doctrine of federal paramountcy.

The appeal was dismissed.

The appellant appealed the dismissal of its claims for negligent misrepresentation and intentional interference with economic relations arising from a timber allocation dispute under an Overlapping Licence Agreement.

The appellant also raised a new claim for breach of fiduciary duty.

The Court of Appeal dismissed the appeal, declining to hear the new fiduciary duty claim and upholding the trial judge's factual findings that the appellant did not reasonably rely on the alleged misrepresentations and that the respondent had no intention to injure the appellant's economic relations.

Following the dismissal of the applicant's judicial review application, the respondents sought costs against the applicant's counsel, the African Legal Clinic (ACLC).

The respondents argued the ACLC was the real litigant and made extreme allegations.

The Divisional Court dismissed the request, finding no evidence of reprehensible, scandalous, or outrageous conduct by the ACLC.

The court also noted the matter raised novel issues of public importance, making a costs award inappropriate.

No costs were ordered.

The applicant sought judicial review of a school board decision upholding her son's limited expulsion for bringing a concealed knife to school and threatening another student.

The Divisional Court dismissed the application, finding that the principal's inquiry and the board's appeal hearing were procedurally fair.

The court held that the board's decision was not patently unreasonable and that the expulsion did not violate the student's or parent's section 7 Charter rights.

The respondents brought a motion to continue a sealing order over the court file in an application for judicial review of decisions to exclude and transfer students following an alleged violent incident.

The respondents argued that the sealing order was necessary under the Education Act and the Youth Criminal Justice Act.

The court applied the Dagenais/Mentuck test and found that a complete sealing order was not necessary, as a less intrusive alternative was available.

The court rescinded the sealing order but directed that the court file be edited to remove the names and identifying information of the accused, the victim, and the witnesses.

The appellant, an unregistered broker, sued for compensation under an agreement to sell the respondents' business and real estate.

The motion judge stayed the action under s. 22 of the Real Estate and Business Brokers Act, which bars actions for remuneration in connection with a trade in real estate by unregistered persons.

On appeal, the Court of Appeal held that s. 22 does not apply to the sale of a business effected by a share transaction, relying on Supreme Court precedent.

The stay was set aside regarding the claim for the sale of the business, but affirmed for claims relating to the lease extension and other services.

The appellants appealed a trial judgment awarding the respondent 6.5 months' notice for wrongful dismissal after 11 months of employment.

The appellants argued that the respondent's retention of $2,780 from a licensing fund constituted just cause for dismissal, that she had received prior notice of termination, and that the notice period was inordinately high.

The Court of Appeal dismissed the appeal, finding that the single act of retaining funds did not amount to just cause in context, that the prior events did not constitute legal notice, and that the notice period, while on the high side, was within the acceptable range given the respondent was induced to leave secure employment.

The appellant appealed an order dismissing his motion to set aside a default judgment and for leave to deliver a statement of defence.

The motions judge had dismissed the motion on the basis that it was a collateral attack on a final order and should have been appealed to the Divisional Court.

The Court of Appeal held that the motions judge erred in finding he lacked jurisdiction, as the proper remedy to set aside a default judgment is under Rule 19.08.

However, the Court of Appeal declined to set aside the default judgment, finding that the appellant failed to put forward a good defence on the merits due to an entire agreement clause in the personal indemnity he signed.

The appeal was dismissed.

The applicant school board sought a stay of a Board of Inquiry hearing regarding a human rights complaint, pending an application for judicial review.

The school board argued that the Board of Inquiry lacked jurisdiction to proceed with the remedy phase of the hearing because the Human Rights Commission had settled with the school board and withdrawn from the proceedings.

Applying recent jurisprudence, the Divisional Court found there was a serious issue to be tried regarding jurisdiction and that proceeding would cause irreparable harm.

The stay was granted.

The taxpayer claimed business losses from trading in gold futures, reporting losses when incurred and gains when realized.

The Minister reassessed, arguing for a 'marked to market' accounting method.

The Supreme Court of Canada dismissed the Crown's appeal, upholding the taxpayer's accounting method and affirming the lower courts' findings that the loss and gain legs of a spread transaction could be considered in isolation.