William V. Sasso

This decision sanctions the CCAA Plans of Imperial Tobacco Canada Limited, Imperial Tobacco Company Limited, JTI-Macdonald Corp., and Rothmans, Benson & Hedges Inc., effecting a global settlement of all tobacco-related claims in Canada.

The court reviews the structure, allocation, and fairness of the plans, including the creation of a $1 billion Cy-près Foundation, and addresses objections from social stakeholders.

The court finds the plans fair, reasonable, and in the public interest, and grants the requested relief, including third-party releases and the appointment of plan administrators.

The court considered costs submissions following the successful summary judgment motion of the defendants, Nancy Flagler-Wilburn and F.R. Jordan & Associates Appraisal and Management Services (1977) Inc. The plaintiff, Dennis Paul Rivest, accepted that costs were owed but argued for a significant reduction due to curative steps required by the defendants' failure to plead witness immunity.

The court found some merit in the plaintiff’s argument but rejected the 40% reduction estimate as unfounded.

Ultimately, the court fixed costs at $40,945.80, inclusive of fees, disbursements, and H.S.T., to be paid by the plaintiff within 30 days.

This endorsement concerns three tobacco companies (JTI-MacDonald Corp., Imperial Tobacco Canada Limited, Imperial Tobacco Company Limited, and Rothmans, Benson & Hedges Inc.) operating under the Companies’ Creditors Arrangement Act (CCAA).

Each applicant sought an extension of their stay period until September 30, 2024, to continue formulating plans of arrangement.

Imperial also requested authorization to terminate a retirement plan and post security for a vaping product license.

RBH sought a procedural amendment for employee grievances.

The court, finding no opposition and satisfied with the applicants' good faith, diligence, and sufficient resources, granted all requested relief, noting significant progress in ongoing mediation.

The appellant sought to enforce an alleged agreement, contained in an email exchange, for the acquisition of shares in a family corporation and a declaration that the respondent had consented to the sale of shares owned by one of her brothers.

The motion judge found no binding agreement, determining that essential terms regarding the transaction's structure, method of payment, and dividend payments were not settled.

The Court of Appeal upheld this decision, affirming that the structure and method of payment, which directly impacted the net-of-tax amount, and the precise terms of dividend payments were essential terms that had not been agreed upon.

This endorsement concerns the Companies' Creditors Arrangement Act (CCAA) proceedings for JTI-MacDonald Corp., Imperial Tobacco Canada Limited, Imperial Tobacco Company Limited, and Rothmans, Benson & Hedges Inc. The court granted an unopposed motion to extend the stay period until March 29, 2024.

Recognizing the complexity and the four-and-a-half-year duration of negotiations, the court directed the three court-appointed Monitors, in conjunction with the court-appointed Mediator, to collaborate and develop comprehensive Plans of Compromise or Arrangement.

The objective is to finalize plans that are fair and reasonable to all applicants and creditors, moving from observable activity to meaningful action.

Loukia Georgiou sought leave to appeal a lower court's dismissal of her application for relief from forfeiture of $9.3 million, which a U.S. court had ordered forfeited as proceeds of crime belonging to her son.

The funds were restrained in Canada under the Mutual Legal Assistance in Criminal Matters Act.

The motion judge determined that the proposed appeal required leave under s. 35 of the Act, not an appeal as of right under the Criminal Code, and found that the grounds raised by the applicant did not constitute questions of law alone justifying leave.

The motion for leave to appeal was dismissed.

The plaintiff moved for summary judgment seeking lost rental revenue from the defendants for breaching a commercial lease by failing to pay rent and timely reinstate a demising wall.

The defendants counterclaimed for overpayment of rent and argued the plaintiff breached an oral agreement for lease assignment and failed to mitigate damages.

The court found no binding oral agreement for lease assignment and that the defendants breached their obligation to reinstate the wall.

However, the plaintiff also failed to adequately mitigate damages.

The court granted partial summary judgment to the plaintiff for five months' lost rent and allowed the defendants' counterclaim for overpaid rent.

The appellant, widow of a deceased party to a right of first refusal agreement, sought to exercise the right to purchase property on the same terms as an offer made to a third party.

The motion judge found that the right of first refusal was limited to the original parties to the agreement and did not extend to family members.

The appellant failed to establish her authority to act on behalf of the deceased's estate and based her claim on her status as a family member.

The Court of Appeal upheld the motion judge's decision, finding no ambiguity in the agreement and no legal error in the interpretation.

Minority shareholders in a family-owned company appealed a trial judgment dismissing their oppression and conspiracy claims.

The appellants alleged that the director diverted property interests to his benefit through a series of transactions and that respondents conspired to allow the company to default on a mortgage so that a controlled company could acquire the property.

The trial judge rejected all claims, finding that the appellants' conduct was unclean and that the director's actions were justified to protect the company's interests.

The appellants failed to establish reasonable expectations or damages.

The appeal was dismissed with costs awarded to the respondents.

In the context of CCAA proceedings, representative counsel for pharmacist franchisees brought a motion for approval of their fees and disbursements totaling approximately $1.95 million.

The Pharmacy Franchisee Association of Canada and several individual pharmacists objected to the fees on various grounds, including the allocation of fees and the overall amount.

The court dismissed the objections, finding that the fees were properly allocated based on when claims were resolved and that the total amount was fair and reasonable given the complexity of the matter, the time expended, and the results achieved.

The fee request was approved in full.

Centoco Holdings Limited and KS Centoco Ltd. ("Centoco") brought two motions.

The first sought to compel Magna International Inc. ("Magna") to produce its CEO, Donald Walker, for examination for discovery in a winding-up action, arguing he was instrumental in a key business decision.

The second motion sought to compel Magna to answer refused questions and produce documents related to its airbag business and "Directed Source Mark-Ups" in the main action, and questions regarding additional documents produced post-discovery.

The court granted both motions, finding Centoco had a prima facie right to examine Walker and that the requested information on the airbag business and additional documents was relevant.

The court directed counsel to narrow the scope of document production to avoid trial adjournment and adjourned the request for a further affidavit of documents.

The defendant, owner of the Ambassador Bridge, brought a motion to strike the jury notice in a nuisance action commenced by property owners in Old Sandwich Town.

The plaintiffs claimed the defendant unlawfully allowed properties it purchased to deteriorate, reducing property values.

The defendant argued that widespread negative, defamatory, and accusatory pre-trial publicity in Windsor regarding its conduct and motives made it impossible to find an impartial jury.

The court agreed, finding a real danger that the cumulative effect of over a decade of negative commentary could predispose jurors against the defendant.

The motion was granted and the jury notice was struck.

This protracted litigation involved a family dispute over a commercial property, with plaintiffs (minority shareholders and creditors) alleging oppression and conspiracy against defendants (majority shareholders, directors, and related entities).

The plaintiffs claimed the defendants engaged in self-dealing and unlawful acts to deprive them of their beneficial ownership and profits.

The court dismissed both the oppression and conspiracy claims, finding that the plaintiffs failed to establish their reasonable expectations were violated or that an unlawful conspiracy occurred.

The court noted the plaintiffs' own conduct demonstrated a lack of regard for the corporation's welfare and a failure to protect their interests.

A counterclaim by one of the defendants was also dismissed.

The defendant, TK Holdings Inc., moved to strike paragraphs from the statements of claim in five proposed products liability class actions.

The impugned paragraphs contained apologies made by Takata executives in Japan and the District of Columbia, which the defendant argued were inadmissible under Ontario's Apology Act, 2009.

The plaintiffs contended that the Act did not apply extraterritorially and that a contextual analysis was required to distinguish apologies from admissible admissions.

The court granted the motion, holding that pleading evidence, such as apologies or admissions, rather than material facts, was improper under the Rules of Civil Procedure.

Additionally, the court determined that the Apology Act, being a statute about the law of evidence (procedural law), applied as the law of the forum, rendering evidence of apologies inadmissible for determining fault or liability.

The Court addressed three securities class action appeals on whether limitation periods for statutory secondary-market misrepresentation claims are suspended before leave is granted, and on related nunc pro tunc, special circumstances, leave-threshold, and certification issues.

The CIBC and IMAX appeals were dismissed, while the Celestica appeal was allowed.

The defendant, APP Capital Inc., brought a motion for summary judgment to dismiss the plaintiff's claims for breach of an employment contract and unjust enrichment.

The plaintiff, the former CFO of the co-defendant corporation, claimed entitlement to compensation under a 2008 employment agreement following the sale of the corporation.

The court applied the framework from Hryniak v. Mauldin and found that a genuine issue requiring a trial existed regarding whether the moving party was bound by the 2008 agreement.

The court declined to use its fact-finding powers due to incomplete documentary discovery and the potential for inconsistent verdicts, dismissing the motion.

Minority shareholders sought relief under the oppression remedy and dissent and appraisal provisions of the Business Corporations Act after a majority shareholder attempted to restructure the corporation by reducing common shares and issuing scrip certificates that would effectively eliminate the minority’s interests.

The court determined the fair value of the dissenting shareholders’ shares as of the valuation date and rejected a proposed defence of laches, holding that the Limitations Act, 2002 applies to oppression claims and that laches does not apply where the claim is brought within the statutory limitation period.

While some alleged acts of misconduct, including removal of a director and management fees, were not oppressive, the proposed share restructuring scheme was found to be oppressive because its real purpose was to squeeze out the minority shareholders without fair compensation.

The court fixed the fair value of the shares based on a hotel valuation and awarded limited damages for oppression given that the dissent remedy already compensated the shareholders.

Following the dismissal of a civil action alleging negligence and wrongdoing by police and the Crown arising from a historic murder conviction later quashed, certain police defendants sought substantial indemnity costs against the plaintiff.

The court considered the extraordinary circumstances of the case, including the miscarriage of justice that resulted in the plaintiff serving decades in prison and the role of state actors in the events leading to that outcome.

Although the action had been dismissed as an abuse of process due to the inability to re-litigate factual findings already determined by the Court of Appeal and the prejudice caused by the passage of time, the court held that ordering costs would be unfair and contrary to the interests of justice.

Exercising its discretion, the court declined to award costs to the successful defendants.

The applicant sought a declaration that a proposed class action brought by a tobacco growers’ marketing board against a tobacco manufacturer was not barred as a released claim under a comprehensive settlement agreement resolving governmental claims relating to tobacco smuggling and unpaid taxes.

The respondents argued that the class action fell within the broad release provisions and that the marketing board was effectively a Crown entity bound by the agreement.

The court applied principles of contractual interpretation governing releases, including contextual interpretation and the rule that general release language is limited to matters within the parties’ contemplation at the time of execution.

It concluded that the settlement agreement addressed governmental tax‑related claims arising from smuggling and did not extend to private claims by growers for price differentials.

The class proceeding was therefore not a released claim by a releasing entity.

The plaintiffs sought damages arising from the termination of a memorandum of understanding and a subsequent agreement relating to the proposed development of an 80 MW wind energy project on the defendant's industrial lands.

The court held that both documents were largely agreements to agree and therefore unenforceable with respect to the broader development and lease arrangements.

However, the documents imposed limited binding obligations, including a requirement to provide 60 days’ notice before termination of the memorandum and an obligation to allow access for wind measurement under the second agreement.

The defendant breached those obligations by terminating immediately and preventing continued wind testing.

Claims for fiduciary duty, breach of confidence, unjust enrichment, partnership, and loss of chance damages were rejected.