William Johnson Burden

The appellants appealed a decision interpreting a shareholders' agreement and related documents concerning rights of first refusal and first offer for shares in a publicly traded company.

The respondents had delivered selling notices offering to sell shares to the appellants on terms substantially in accordance with a draft acquisition agreement with a third party, which included a 'superior proposal' condition.

The appellants accepted the offer but argued the superior proposal condition did not apply to them.

The Court of Appeal dismissed the appeal, finding that the selling notices incorporated the superior proposal conditions and that interpreting the agreement to allow the appellants to preempt the superior proposal process would be contrary to commercial reality and the goal of maximizing share value.

The Special Committee of Financial Models Company Inc. applied for orders under sections 104(1) and 127(1) of the Securities Act to cease-trade a take-over bid by a significant shareholder, Katotakis.

The Special Committee alleged the bid did not comply with Part XX of the Act and was contrary to the public interest because it relied on locked-up shares to meet minority approval thresholds for a follow-on transaction and improperly relied on a valuation exemption.

The Ontario Securities Commission dismissed the application, finding no technical breach of Rule 61-501 and no abuse of the capital markets, as the transaction was not artificial and did not defeat the reasonable expectations of shareholders given the prior disclosure of the shareholder agreement.

The appellant, a major shareholder of Financial Models Company, moved for a stay of a Commercial List decision and an injunction preventing other shareholders from tendering their shares to a competing take-over bid by Linedata Services S.A., pending an expedited appeal.

The motion judge had ruled that the appellant's acceptance of a sell offer was invalid under the Securities Act and that the other shareholders could include a 'superior proposal' condition.

The Court of Appeal granted the stay and injunction, finding that the balance of convenience favoured the appellant, who provided an undertaking as to damages, and ordered an expedited appeal.

The appellant appealed the dismissal of her action for breach of fiduciary duty and professional negligence against her former solicitor.

The solicitor had acted for the appellant on a mortgage transaction while also acting for the borrowers on a related commercial loan.

The trial judge found that the solicitor's retainer was limited to the mortgage transaction, that he had warned the appellant about the risks of the wider loan, and that the appellant had rebuffed his concerns.

The Court of Appeal found no overriding and palpable error in the trial judge's findings and dismissed the appeal.

The original mortgagors sold their property and the purchaser assumed the mortgage.

The mortgagee and the purchaser later agreed to renew the mortgage without notifying the original mortgagors.

When the mortgage went into default, the mortgagee sold the property under power of sale and sued the original mortgagors for the deficiency.

The Court of Appeal held that the original mortgagors were entitled to notice of the renewal agreement.

Because they did not receive notice and did not consent to the renewal, they were released from their obligations under the mortgage.

The defendant's motion for leave to appeal an order permitting the plaintiff to use the pseudonym Jane Doe was dismissed.

The court subsequently received written submissions on costs.

The plaintiff sought $10,998 plus disbursements on a partial indemnity scale, while the defendant argued costs should be fixed at no more than $2,500.

The court adjusted the hourly rates claimed by the plaintiff's counsel, noting that maximum rates were not appropriate for this type of case.

The court fixed the plaintiff's partial indemnity costs at $6,000 plus disbursements and GST.

The appellant, Business Development Bank of Canada, appealed an order equally allocating a receiver's costs between itself and the respondent, Bank of Nova Scotia.

The appellant had originally supported the appointment of a receiver but later opposed it after entering into a side deal to sell its security.

The Court of Appeal dismissed the appeal, finding that the receiver was appointed for the benefit of all interested parties and that the motion judge appropriately exercised his discretion to equally allocate the costs given that the indebtedness of both secured lenders was approximately equal.

The applicant, JPMorgan Chase Bank, sought leave to appeal.

The Court of Appeal for Ontario refused leave to appeal for oral reasons and awarded costs on a partial indemnity basis to the respondents, totaling $22,500.

The appellant, representing unsecured noteholders, sought leave to appeal orders approving a CCAA reorganization plan for the GT Group of Companies.

The appellant argued the plan was unfair because it excluded the parent company, required the parent to transfer assets to subsidiaries, and deprived noteholders of rights to sue.

The Court of Appeal dismissed the application for leave, finding the asset transfer complaint illusory as the assets would be lost to secured creditors anyway, and the loss of rights to sue unsubstantiated.

The Court also noted the appellant's delay and failure to propose an alternative plan.

In an addendum on costs following an appeal, the Court of Appeal determined the appropriate disposition of costs.

The court awarded costs only to the respondent Guardian, Wasserman Arsenault, denying costs to the Superintendent of Bankruptcy because its role was minor and duplicative.

The court rejected the respondents' request for full indemnity based on their low negotiated hourly rates, fixing costs on a partial indemnity scale at $30,000 all inclusive.

The costs were apportioned 75% against the appellant Rumanek & Cooper and 25% against the appellant C.I.B.C., based on the number and complexity of the issues relating to each.

The plaintiffs brought a motion for leave to appeal a discretionary costs judgment awarded after the case was removed from the trial list due to the plaintiffs' failure to produce relevant documents.

The court found that the costs order was amply supported by uncontradicted evidence and reflected a careful analysis of costs thrown away.

The motion for leave to appeal was dismissed with costs fixed at $4,500.

The Toronto-Dominion Bank appealed a trial judgment declaring that all debts under a line of credit extended to the respondents were discharged and ordering the discharge of a collateral mortgage.

The respondents had obtained a line of credit secured by a second mortgage on their home, along with life insurance that would repay the loan if either died.

The bank improperly calculated monthly interest payments, leading to an apparent default, and subsequently demanded repayment.

This demand automatically terminated the life insurance policy.

When one of the respondents later died, the insurance company denied coverage.

The Court of Appeal dismissed the bank's appeal, finding that the bank's breach of the loan agreement by taking more than the minimum monthly payment led directly to the default and the subsequent demand, which in turn caused the termination of the life insurance policy.

The respondents originally brought an oppression application, and the appellants brought a cross-application.

The motion judge struck the cross-application on the basis that it sought relief that was or could have been sought in an earlier action commenced by the appellants, which had been dismissed on consent.

On appeal, the appellants sought to resurrect claims for an accounting and compensation for oppression.

The Court of Appeal dismissed the appeal, agreeing with the motion judge that the claims were barred by res judicata.

The appellants, a former trustee in bankruptcy and a bank, appealed a decision determining several questions of law regarding the administration of summary bankruptcy estates.

The former trustee sought fees in excess of the prescribed tariff for extraordinary work performed, while the bank sought priority for funds advanced to keep the bankrupt estates' administration running.

The Court of Appeal dismissed the appeals, holding that the court has no jurisdiction to award trustee fees in excess of the statutory tariff for summary administration estates.

The court also affirmed that any withdrawals for overhead must be credited against the trustee's fees, that the Guardian appointed by the Superintendent has priority over the former trustee for its fees, and that any shortfall in the consolidated trust account must be borne by the fee claimants rather than the creditors.

The appellants appealed a motions judge's decision finding them liable for computer-generated cheques.

The Court of Appeal dismissed the appeal, agreeing with the motions judge that the conclusion was dictated by the Supreme Court of Canada's decision in Boma Manufacturing Ltd. v. C.I.B.C. The Court rejected the argument that a distinction should be drawn because the cheques were entirely produced by computer.

The minority shareholder applicant brought an oppression application under the Business Corporations Act after being dismissed from the respondent corporation.

The shareholders' agreement contained a mandatory arbitration clause and a specific mechanism for valuing and redeeming the shares of a departing employee.

The motions judge allowed the applicant's motion to have the dispute heard in court rather than by arbitration, relying on the Weber principle to avoid a potential deprivation of ultimate remedy.

On appeal, the Divisional Court reversed the decision, holding that the Weber principle does not generally apply to voluntary private arbitration agreements and that the parties must be held to their freely chosen dispute resolution mechanism.