William Johnson Burden

The appellant appealed the motion judge's dismissal of his action for delay.

The action involved a dispute over ownership of shares in a corporation with an equity interest in a property development in Windsor, Ontario.

The appellant commenced the action in February 2004, more than seven and a half years after the relevant events in June 1996.

The action experienced significant periods of inactivity, including over five years of dormancy after the appellant filed his Affidavit of Documents.

The Court of Appeal upheld the dismissal, finding that the delay was inordinate, inexcusable, and prejudicial to the defendants, creating a substantial risk that a fair trial would not be possible.

This application and cross-application sought to determine the meaning of a clause in a lay-person drafted "Commercial House Lease Agreement" concerning a tenant's "5 years priority to rent the property." The Applicant, Merly Maria Castillo, argued this constituted an option to renew, while the Respondents, Salvatore and Anna Cancelli, contended it was merely a right of first refusal.

Applying principles of contractual interpretation, the court found the clause granted the tenant an option to renew the lease for an additional five-year period, emphasizing the need to give meaning to all terms and avoid commercial absurdity.

The appellants sought to appeal a motion judge's decision, arguing an appeal as of right under s. 193(a) and (b) of the Bankruptcy and Insolvency Act.

The respondent challenged the court's jurisdiction.

The Court of Appeal found no appeal as of right because the motion judge did not make a finding that the respondent was a creditor.

The court also refused leave to appeal, finding the case failed all three components of the applicable test.

The appeal was quashed with costs awarded to the respondent.

The appellant brought a motion to remove counsel for two respondents based on allegations of misconduct in the underlying contempt proceedings.

The respondents brought a cross-motion for security for costs of the appeal.

The Court of Appeal dismissed the removal motion, finding no basis for the allegations and awarding full indemnity costs against the appellant.

The Court also dismissed the motion for security for costs, finding that the appeal raised a non-frivolous legal issue regarding the appellant's ability to purge his contempt after the underlying action had been settled, which involved the liberty of the subject.

Following a trial judgment awarding over $16 million to the plaintiff in a commercial dispute, the court determined the appropriate costs award and prejudgment interest.

The court held that although the plaintiff’s Rule 49 offer was served slightly outside the formal timing requirements, it could still be considered under Rules 57.01 and 49.13.

Substantial indemnity costs were awarded from the date of the settlement offer and for work responding to a serious trading‑manipulation allegation later abandoned by the defendant.

However, the court found the plaintiff’s claimed hours excessive and reduced the requested fees.

The court fixed total fees at $1,400,000 inclusive of taxes, allowed disbursements of $191,813, and awarded prejudgment interest at the statutory rate from the date the cause of action arose.

Summitt Energy Management Inc. appealed an Ontario Energy Board order imposing a $234,000 administrative penalty, a compliance order, and restitution to consumers for unfair door-to-door sales practices.

Summitt argued reasonable apprehension of bias, incorrect standard of proof, lack of jurisdiction for restitution, and procedural unfairness.

The Divisional Court dismissed the appeal, finding that the Board's independent legal counsel did not create bias, the proceedings were regulatory (requiring a civil standard of proof), and the Board had broad statutory authority to order restitution.

The plaintiff, a junior oil and gas exploration company, sued the defendant underwriter for breach of a 'bought deal' engagement letter.

The defendant failed to close the transaction, arguing the letter was merely an agreement to agree and relying on 'out clauses' due to a drop in oil prices.

The court found the engagement letter was a binding contract and that the defendant could not rely on the out clauses, as it had not negotiated an underwriting agreement and the drop in oil prices did not constitute a material adverse change or disaster.

The plaintiff was awarded over $16 million in damages, representing the difference between the contract price and the replacement financing price, plus interim loan costs.

During the first week of trial, the defendant moved to amend its statement of defence and counterclaim to add new factual allegations and a mitigation defence relating to transactions undertaken by the plaintiff after the alleged breach of a share purchase agreement.

The court considered whether the proposed amendments disclosed a tenable defence, including arguments that damages should be assessed at the date of trial due to the plaintiff’s claim for specific performance and that subsequent transactions mitigated any losses.

The court held that damages for breach of contract would normally be assessed at the date of breach and that the proposed allegations concerning the plaintiff’s later transactions were irrelevant to the proper measure of damages.

The proposed amendments concerning the Red Willow transaction and complete mitigation did not raise a tenable defence and were refused.

Two related applications arose from a commercial arbitration concerning a Liquidity Payment obligation under a financing arrangement between a dairy company and a pension fund.

The moving party sought to set aside a final arbitral award under s. 46(1) of the Arbitration Act, 1991, alleging breaches of procedural fairness and arguing the arbitrator’s contractual interpretation was unreasonable.

The court held the arbitration process was fair, the parties had adequate opportunity to present their cases, and the arbitrator’s interpretation of the Liquidity Payment Agreement was consistent with its plain language.

The application to set aside the award was dismissed.

The responding party’s application to enforce the arbitral award and supplementary costs award was granted, with interest fixed at 3% in accordance with the contract and applicable statutory rates.

Several First Nations and a mining company brought motions to intervene in an appeal concerning Aboriginal harvesting rights under Treaty 3 and Ontario's jurisdiction to grant logging permits.

The court granted friend of the court status to Grand Council of Treaty 3, Lac Seul First Nation, Big Grassy First Nation, and Treaty 6 First Nations, finding their perspectives would assist the court.

The court granted party status to Goldcorp Inc. and Wabauskang First Nation, finding they had a direct interest in the subject matter and could be adversely affected by the broad declaration under appeal.

The interveners were ordered to accept the record as it is and not expand the issues.

The Ontario Energy Board brought a motion to quash two summonses issued by the appellant to a Board member and the Board's external counsel.

The appellant sought to examine them in aid of a motion to adduce fresh evidence on appeal, alleging a reasonable apprehension of bias because the external counsel's firm had represented the appellant's competitors and was a member of an industry association.

The Divisional Court quashed both summonses, finding that the proposed lines of inquiry were irrelevant to the objective test for a reasonable apprehension of bias.

The court also analyzed testimonial immunity under s. 10 of the Ontario Energy Board Act, 1998, deliberative secrecy, and solicitor-client privilege, finding multiple additional grounds to quash the Board member's summons and partial grounds to quash the external counsel's summons.

The applicants appealed an arbitration award concerning a franchise dispute under the Arthur Wishart Act (Franchise Disclosure), 2000 and alleged negligent misrepresentation in financial forecasts relating to a Canadian Tire store development.

They argued the arbitrator applied an incorrect legal test for negligent misrepresentation and erred in assessing reliance, causation, and damages.

The court held that the scope of review was limited to errors of law and concluded the arbitrator had effectively applied the correct test from Queen v. Cognos Inc. The arbitrator’s findings that the forecasts were not negligently prepared and that the applicants did not rely on them were factual determinations not subject to appeal.

The court also upheld the arbitrator’s approach to damages and the interpretation of the release provisions in the dealer contract.

The Chief Electoral Officer appealed a decision allowing the Conservative Fund Canada to amend its 2004 and 2006 election expenses returns to reflect GST rebates received under the Excise Tax Act.

The Fund argued that the Canada Elections Act required election expenses to be reported in accordance with Generally Accepted Accounting Principles (GAAP), meaning expenses should be reported net of GST rebates.

The Court of Appeal allowed the appeal, holding that the plain wording of the Canada Elections Act does not require general election expenses to be reported in accordance with GAAP.

The Court found this interpretation consistent with Parliament's intent to maintain a level political playing field through equal spending limits.

The appellant and respondent entered into a ten-year contract for the supply of ethanol.

The contract contained price-protection provisions, including a requirement for the appellant to match the price of an alternate supplier if certain conditions were met.

When the respondent received a lower offer from an alternate supplier, the appellant refused to match it, arguing that the obligation was contingent on the development of an active market for ethanol in Ontario under another section of the contract.

The trial judge found that the price-match provision operated independently.

The Court of Appeal upheld the trial judge's decision, finding that the plain wording of the contract and the factual matrix supported the conclusion that the provision was a stand-alone obligation.

The appellant appealed a decision declaring that certain disputed claims, including a claim for breach of fiduciary duty arising from a long-term supply agreement, were subject to arbitration.

The appellant argued the claims were not referable to specific provisions of the agreement and that the application judge usurped the arbitral tribunal's role.

The Court of Appeal dismissed the appeal, finding that the arbitration clause was broad enough to encompass the claims and that the application judge merely determined the claims were not clearly outside the scope of the arbitration clause.

The vendor and purchaser of certain businesses disagreed on the method of calculating working capital adjustments under an asset purchase agreement.

An accounting firm, KPMG, was directed to calculate the adjustments according to approaches advocated by both parties.

The purchaser sought leave to appeal an order requiring it to make a payment based on KPMG's calculation, arguing KPMG exceeded its jurisdiction.

The Court of Appeal denied leave to appeal, finding that KPMG stayed within its mandate and its determination was final and binding.

The appellants appealed a motion judge's decision dismissing their motion to stay or dismiss the respondent's action on the basis of forum non conveniens.

The appellants argued that the motion judge misplaced the evidentiary burden by failing to require the respondent to show why the action should be heard in Ontario, given an exclusive jurisdiction clause favouring Quebec or New York.

The Court of Appeal dismissed the appeal, finding that while the motion judge may have erred in principle regarding the burden of proof under the forum selection clause, order and fairness overwhelmingly favoured Ontario as the appropriate forum due to the existence of multiple related proceedings already before the Ontario courts.

The appellant appealed a decision dismissing his application to require Goldcorp Inc. to obtain shareholder approval for a transaction with Glamis Gold Ltd. The appellant argued the transaction was an 'arrangement' under s. 182 of the Business Corporations Act.

The Divisional Court dismissed the appeal, upholding the application judge's finding that s. 182 is facilitative, not mandatory, and that Goldcorp did not 'propose' an arrangement.

The court found the transaction was an issuance of shares and a vertical short-form amalgamation exempt from shareholder approval.

The appellant appealed a trial judge's decision characterizing a letter of agreement as an absolute and unconditional sale and transfer of shares.

The appellant argued the arrangement created a security interest subject to the Personal Property Security Act.

The Court of Appeal dismissed the appeal, finding the trial judge was entitled to conclude on the record that the transaction was an absolute sale.

The appellant, an Ontario corporation, sought to enjoin an Israeli bank from drawing upon a letter of credit issued by a Canadian bank in Ontario.

The motion judge stayed the action, finding that Israel was the more convenient forum.

The Court of Appeal dismissed the appeal, holding that while Ontario had jurisdiction, the motion judge did not err in concluding that Israel was the more convenient forum given that the majority of witnesses and evidence were located there, and the factual matters in dispute arose in Israel.