RECENT CASES

The Campaign for the Inclusion of People who are Deaf and Hard of Hearing v. Canadian Hearing Society

Successfully brought a motion to dismiss an application under the oppression remedy provision of the Not-for-Profit Corporations Act on behalf of the Canadian Hearing Society (“CHS”). The applicants, a newly-formed corporation and two former members of CHS, alleged that the CHS Board of Directors had treated them in an oppressive manner when it made a series of decisions, over time, regarding corporate governance issues that ultimately resulted in CHS becoming a closed corporation (meaning the only members of the corporation are its Board of Directors). The court found no issue with the conduct of CHS. It found that the applicant corporation, which had been founded for the sole purpose of disrupting the decisions of the CHS Board of Directors, had no standing to seek an oppression remedy. The court also stayed the applications of the former members pending arbitration, as required by CHS’ By-Laws. The court ordered costs against the applicants.

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Link Tech Inc. et al. v. Link-Pipe Holdings Ltd. et al.

Successfully defeated a motion for injunction alleging unfair competition (breach of fiduciary duty, passing off). The court found that the moving parties’ undertaking as to damages was insufficient, as there was evidence that one corporate moving party was in dire financial condition, the other corporate moving party had provided no undertaking at all, and the individual moving party adduced no evidence that he had any assets. While the respondents did not cross-examine, the jurisprudence indicates that the moving party must satisfy the court as to the sufficiency of the undertaking. In the circumstances, the court was not satisfied, and the motion was dismissed. The court ordered costs in the full amount sought by the respondents.

Dean’s Standard Inc. v. Westmont Hospitality Canada et al.

Awarded costs of $23,000 with respect to a successful motion for security for costs. The Court found that similar costs awards were made in similar cases, where the complexity of a review of the merits expanded the scope of the motion. This amount was fair and reasonable for this particular motion because it was reasonably complex and was of significant importance to the Defendants.

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Dean’s Standard Inc. v. Westmont Hospitality Canada et al.

Successfully brought a second motion for security for costs. The Plaintiff argued that the motion was an abuse of process, was res judicata (on the basis of issue estoppel) and that delay by the Defendants in moving for security meant that none should be granted. The Court held that the motion was not res judicata or an abuse of process, as there had been a significant change in the factual matrix since the first (unsuccessful) motion. The corporate plaintiff had demonstrated no prejudice caused by any delay, and the proceedings against these Defendants appeared to have little merit. The Court ordered the Plaintiff to post security in the amount of $130,000.

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Emkay Canada Leasing Corp. re: Connacher Oil and Gas Limited

Successfully argued that our client’s lease is a “true” lease, and not a “finance” lease, in the context of proceedings under the Companies’ Creditors Arrangement Act (“CCAA”). After the initial order was granted, the respondent lessee continued to use the vehicles, but took the position that it was not required to make payment for such use, as the lease was in essence a financing lease and not an operating (true) lease under the CCAA. The Court of Queen’s Bench of Alberta held that the lease is a true lease, and therefore the lessor is entitled to require payment for the use of the leased property, in accordance with section 11.01(a) of the CCAA.

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Royal Trust Corporation of Canada v. Richardson GMP Limited

Awarded costs of $8,500 with respect to a successful motion to compel the defendant to produce a particular individual as its corporate representative for examinations for discovery.

Cefai Vendor Holdings Inc. et al v 2484741 Ontario Inc. et al.

Successfully transferred a proceeding improperly commenced at the Superior Court of Justice, Oshawa to the Superior Court of Justice, Toronto. The commencement of the proceeding in Oshawa was contrary to a forum and venue selection clause that provided for the exclusive jurisdiction of the Toronto courts. The court found that the forum and venue selection clause was determinative.

Grieve v. Richardson GMP Limited

Successfully compelled the defendant to produce a particular individual as its corporate representative for examinations for discovery. The court held that the particular individual had sufficient knowledge about the matters in issue in the litigation, had direct involvement in same and, where he did not have personal knowledge, could adequately inform himself.  

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Gunggo Co. Ltd. v. Tieu et al.

Successfully brought a motion for particulars and inspection of documents as part of a claim alleging, among other things, fraud and conspiracy. The Plaintiffs were ordered to produce all particulars and documents.

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C.M.I. v. L.D. et al. (arbitration)

Successfully claimed damages for fraudulent misrepresentations by the vendors during negotiations for the purchase and sale of a Bell Canada retail store.


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SUCCESSFUL REPRESENTATION