Successfully appealed a pleadings decision

Successfully appealed a decision granting the plaintiff leave to amend its statement of claim to add a claim for alleged misrepresentations made in the sale of a business, to existing claims for damages of $5 million dollars. The appellate court found that the amendments constituted a new cause of action that may have been made after expiry of the limitation period.

Successfully brought a motion for summary judgment

Successfully brought a motion for summary judgment on behalf of a small business owner for breach of contract. The judge hearing the motion agreed with our submissions that there was no genuine issue requiring a trial as the defendant failed to raise an issue requiring response, and awarded judgment and costs to the Plaintiff on a full indemnity scale.

Defeated an appeal of a trial decision finding oppression and awarding fair value of $3.6 million

Successfully defeated an appeal of a trial decision declaring conduct by the majority shareholder of an asset management company was oppressive to the minority shareholder, and ordering the purchase of her shares for fair value of approximately $3.6 million, and the payment of damages, interest, and significant costs.

Defeated motions to stay in favour of arbitration and strike claims against an officer

Successfully defeated the defendants’ motion to: (1) stay claims for various breaches of contract in favour of arbitration; (2) strike claims against an officer (in his personal capacity) and a parent company of a corporation allegedly involved in a significant fraud perpetrated during a mediation; and (2) strike pleadings related to that mediation as being protected by settlement privilege.

Defeated an application for an oppression remedy

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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Defeated a motion for injunction alleging unfair competition

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.

Successful motion for costs

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.

Successful second motion for security for costs

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.

Successfully argued a lease is a “true” lease

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.

Awarded costs on discovery motion

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.