William A. Bortolin

The applicants jointly sought interim orders under s. 182(5) of the Business Corporations Act (Ontario) in connection with a proposed plan of arrangement involving a quantum computing company (an OBCA corporation) and a special purpose acquisition company currently incorporated under the laws of the Cayman Islands.

A threshold issue arose as to whether a non-OBCA entity could avail itself of s. 182 of the OBCA.

The court found that the arrangement provision is to be interpreted broadly and flexibly, and that the timing of the SPAC's continuance to the OBCA was an immaterial quirk given that it would be an OBCA corporation before the final order was sought.

The court was satisfied that reasonable grounds existed to regard the proposed transaction as an arrangement and granted the interim orders authorizing the calling and holding of shareholder meetings.

The appellant, former CEO and chairman of Sino-Forest Corporation (SFC), appealed a trial judgment awarding damages of $2.627 billion plus $5 million in punitive damages for fraud and breach of fiduciary duty.

The appellant argued that the litigation trust lacked standing to pursue claims that overlapped with class actions, that the damages award created double recovery risks, and that the transfer of assets constituted an election barring the claim.

The Court of Appeal upheld the trial judgment, finding that the litigation trust held separate and distinct corporate causes of action from those of individual shareholders and noteholders in the class actions, that the damages award was properly calculated based on SFC's losses, and that no election doctrine applied.

The respondent appealed a Superior Court judgment that granted the applicant's application to enforce her rights under a Governance Agreement concerning the replacement of Board members of Spectrum Health Care.

The appellants argued the application judge erred in interpreting the contract, should have stayed the application pursuant to an arbitration clause in the shareholders' agreement, and erred in alternative findings regarding oppression remedy and interim injunction.

The Court of Appeal upheld the lower court decision, finding no palpable and overriding error in the application judge's interpretation of the Governance Agreement or his analysis of the alternate remedies.

The court issued a supplementary endorsement reconsidering its prior decision to grant leave to appeal.

The initial decision granted leave to appeal an injunction order concerning a restrictive covenant in a commercial lease.

The reconsideration was prompted by an oversight where responding and reply materials were not initially put before the judge.

After reviewing the full record, the court affirmed its decision to grant leave to appeal, finding reasons to doubt the correctness of the motions judge's interpretation of the restrictive covenant and its exception, and the application of the RJR Macdonald test regarding irreparable harm and delay.

The court also noted the importance of the issues due to the common use of restrictive covenants in commercial leases.

Costs were reserved to the Divisional Court or to be fixed by the judge upon written submissions.

Easyfinancial Services Incorporated (Easyfinancial) sought leave to appeal an injunction granted by Andre, J., which required 7724934 Canada Inc. to comply with a restrictive covenant in its lease with EZMoney Tario Inc., preventing Easyfinancial from operating its business in Kingspoint Plaza.

Easyfinancial argued the motions judge erred in interpreting the restrictive covenant, assessing irreparable harm, applying assumption of risk over balance of convenience, and failing to consider EZMoney's delay.

The court found reason to doubt the correctness of the original order on these grounds and granted leave to appeal, noting the importance of restrictive covenants in commercial leases beyond the immediate parties.

Lori Lord sought to enforce a Governance Agreement or, alternatively, relief under the oppression remedy against Clearspring Spectrum Holdings L.P. and Clearspring Capital Partners (US) II L.P. The respondents sought to stay the application pending arbitration.

The court found Ms. Lord was not a party to any arbitration agreement and could not be compelled to arbitrate.

The court held that Clearspring was in breach of the Governance Agreement, which was enforceable and not in conflict with the shareholders' agreement.

Alternatively, Ms. Lord's reasonable expectations were unfairly prejudiced, warranting an oppression remedy.

The application was granted, enforcing the Governance Agreement.

The moving parties sought leave to appeal a CCAA judge's decision dismissing their motion to reinstate other post-employment benefits (OPEBs) to retirees of U.S. Steel Canada Inc. The CCAA judge had dismissed the motion but ordered a one-time payment of $2.7 million towards benefits.

The Court of Appeal applied the stringent test for leave to appeal in CCAA proceedings and found no prima facie merit to the appeal.

The court emphasized the broad discretion of the CCAA judge and the fact-specific nature of the decision, which did not raise issues of significance to insolvency practice.

Leave to appeal was denied with costs fixed at $2,500.

The plaintiff sought leave to amend its statement of claim and related pleadings in a commercial dispute arising from a failed partnership and subsequent transfer of business assets.

The proposed amendments included clarifications to existing claims, a limitations defence to counterclaims, and new allegations relating to purchase options under lease agreements for real estate, equipment, and rolling stock.

The defendants opposed certain amendments, arguing prejudice due to a pending application in another court seeking specific performance of the purchase options.

The court held that most amendments were legally tenable and permitted them, subject to the plaintiff providing further particulars.

However, amendments concerning the option-to-purchase issues were deferred until after the resolution of the related application in London, Ontario to avoid duplicative litigation and procedural complexity.