Vasuda Sinha

The appellants sought to amend their statement of claim in a securities class action to add further particulars of wrongful conduct underlying their misrepresentation claims against the corporate respondent.

The motion judge denied leave for most of the amendments, finding they constituted discrete misrepresentation claims requiring fresh leave under s. 138.8(1) of the Securities Act, and were statute-barred under s. 138.14(1).

The Court of Appeal upheld the motion judge's decision, with one limited exception permitting the appellants to plead a narrower omission allegation relating to previously pleaded facts.

On a motion to lift the CCAA stay, the moving parties sought to pursue post-filing software licensing and copyright-related claims against the Canadian debtors in U.S. proceedings, relying in part on a forum selection clause and asserted overlap with claims against U.S. debtors and a purchaser.

The court held that in insolvency proceedings the single proceeding model and the public policy favouring centralized control of claims outweighed the contractual forum provision.

The court found the moving parties were not strangers to the insolvency, that fragmented proceedings created risks of inefficiency and inconsistent findings, and that the U.S. process would not adequately serve the timely and economical resolution of claims within the CCAA.

The motion to lift the stay was dismissed.

The plaintiffs brought a proposed securities class action for secondary market misrepresentation under Part XXIII.1 of the Securities Act, obtained leave under s. 138.1, and had the action certified.

They later moved for leave to amend their statement of claim to add new allegations of misrepresentation.

The defendants consented to amendments that merely expanded already-pleaded allegations but opposed the balance as fresh misrepresentation claims requiring a separate, and now time-barred, leave application.

The court held that leave under s. 138.8 is assessed against each discrete allegation of misrepresentation, so that the impugned amendments — alleging new bribery and code-of-ethics violations in multiple jurisdictions — were not mere elaborations but discrete claims requiring a fresh leave application.

The motion was granted in part: the consented amendments were allowed and the impugned amendments were refused.

In the context of the global insolvency of Nortel Networks, the UK Pension Claimants (UKPC) asserted multiple claims against the Canadian debtors (NNC and NNL).

The UKPC claimed for a contingent Financial Support Direction (FSD) under UK pension law, amounts under a Funding Guarantee and a Swift Guarantee, and remedies for oppression and unjust enrichment.

The court dismissed the FSD claim as too remote and speculative to constitute a provable claim in the CCAA proceedings.

The court also dismissed the claims under the Swift Guarantee, oppression, and unjust enrichment.

However, the court allowed the UKPC's claim under the Funding Guarantee, finding NNL liable for £339.75 million.

The Ministry of the Environment appealed a CCAA judge's order declaring that environmental remediation orders issued against the insolvent respondents were financial in nature and subject to a CCAA stay of proceedings.

Applying the Supreme Court's decision in AbitibiBowater, the Court of Appeal held that ongoing environmental remediation obligations are only provable claims if it is sufficiently certain that the province will perform the work and seek reimbursement.

The Court found it was not sufficiently certain the MOE would perform the remediation for most of the sites, as the orders were also directed at subsequent owners.

The appeal was allowed, and the stay was modified to apply only to the portion of the London property still retained by the respondents.

A shareholder holding more than 5% of a corporation’s voting shares requisitioned a special meeting under the Canada Business Corporations Act seeking to replace the entire board of directors.

The board scheduled the requisitioned meeting to occur together with the corporation’s annual general meeting approximately 155 days after the requisition was delivered.

The applicant sought a court order under s. 144 of the CBCA requiring the meeting to occur sooner, arguing the delay was unreasonable and intended to frustrate shareholder rights.

The court held that the timing of the meeting fell within the board’s reasonable business judgment, noting legitimate concerns about costs, management resources, shareholder participation, and the desirability of combining the special meeting with the AGM.

Finding no improper purpose and no demonstrated prejudice to the shareholder, the court declined to interfere with the board’s decision.

The appellant appealed a decision finding that Ontario lacked jurisdiction over its claim for conversion.

The appellant argued that three presumptive connecting factors under the Van Breda framework applied: a tort committed in Ontario, transfer of information, and personal property in Ontario.

The Court of Appeal dismissed the appeal, finding that the conversion took place outside Ontario, the transfer of information was unconnected to the tort, and the mere transfer of funds out of Ontario by the appellant was too tenuous a connection to assume jurisdiction.

Mercer International Inc. applied to the Ontario Securities Commission for a simultaneous hearing with the Québec Bureau de décision et de révision to consider whether AbitibiBowater's take-over bid for Fibrek Inc. should be cease traded.

The Commission acknowledged it had jurisdiction to hear the application, as Fibrek is a reporting issuer in Ontario and the bid affected Ontario shareholders.

However, the Commission declined to exercise its jurisdiction, noting that the Bureau was already seized of the matter, the applicable securities laws were substantially similar, and a simultaneous hearing would not advance the harmonization and co-ordination of securities regulatory regimes.

The application was dismissed.