PRACTICE AREA: Corporate Commercial

2018 ONCA 696; affirming Fairfield Sentry Limited et al v. PwC et al (2017), 2017 ONSC 3447; Bankruptcy and insolvency — Proving claim — Provable debts — General principles

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Mortgagor retained contractor to build student residence on property — Mortgagee provided mortgage financing to mortgagor in amount of $11,700,000 — When four claims for lien were registered against property, mortgagee delivered notice of default under mortgage — Mortgagee appointed receiver-manager over construction project and property with power to sell property — Receiver sold property for amount of $14,390,000 — Liens were paid and mortgage discharged as part of conveyance of property — Amount of $351,000 was assessed and withheld by mortgagee as additional three-month interest charge that was supplementary to mortgage interest calculated to date of closing — Mortgagor's application for determination that mortgagee was not entitled to additional three-month interest charge was granted — Trial judge found three-month interest provision in mortgage was activated when mortgagor sought to require mortgagee to accept payment of amounts owed under mortgage in exchange for discharge of mortgage obligation — Trial judge found it was mischaracterization of role of receiver privately appointed by mortgagee to state that steps taken by receiver to realize maximum recovery of property for benefit of mortgagee were actually taken by receiver on behalf of mortgagor for purpose of requesting pay-out of mortgage — Trial judge found there was no entitlement on part of mortgagee to three-month interest charge — Mortgagee appealed on issue of interest — Appeal dismissed — Language of interest provision indicated that it was only when chargor sought to require chargee to accept payment of principal amount that chargor agreed either to pay three months' interest or give three months' notice — Trial judge did not misunderstand jurisprudence regarding agency — Sale agreement with third party purchaser required conveyance of title to purchaser free and clear of all encumbrances, including mortgage, and receiver was required to discharge mortgage to close sale.

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Taxpayer corporation was incorporated by three lawyers, father and two daughters — Almost decade later, Minister assessed taxpayer for over $2 million and assessment was premised on assumption that father had transferred property worth more than $3 million to taxpayer for little or not consideration — Taxpayer appealed — Appeal allowed — It was found that father was either employed by taxpayer for no salary or worked for taxpayer as volunteer — Father provided services to taxpayer's clients on behalf of taxpayer and fact that he chose to do so for no consideration did not change nature of his relationship with taxpayer — Nothing employee provided to firm could be described as property, because employee provides services, not property — If father and taxpayer had agreed that father would be paid and had father later waived that right, father could have been said to have transferred property, for example, salary receivable, to taxpayer — As it was found that father did not transfer property to taxpayer by working for no consideration, appeal was allowed and assessment was vacated.

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In light of today's announcement that the Cleveland Indians baseball team will remove their "Chief Wahoo" logo from their uniforms in 2019, many news stories are recalling Douglas Cardinal's 2016 application, ultimately rejected, for an interim and interlocutory injunction enjoining the Cleveland Indians Baseball Company, Major League Baseball and Rogers Communications from displaying or broadcasting the "Indians" name and "Chief Wahoo" logo within Canada.

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As of January 17th Legislative Watch will be available as a NEW add-on subscription to LawSource that will allow users to track individual bills or bills relating to specific statutes for deeper, more efficient research.

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The Cutting Unnecessary Red Tape Act, 2017 received Royal Assent on November 15, 2017.

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This digest highlights a recent Court of Appeal decision from Ontario that includes a claim for ad hoc fiduciary duties owed by corporate directors to shareholders.

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This digest highlights a Supreme Court of Canada decision out of Quebec, which may be interesting for franchisors operating in that province.

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Enhanced Text and Annotations Library

The enhanced Text and Annotations Library is coming soon in September on WestlawNext Canada.

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What’s Market: Legal Trends in Canadian M&A Transactions (2017 Report)

Learn about market practices and trends in Canadian private M&A transactions. View white paper for full survey findings.

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Digest of the Week – Rectification of Contractual Agreement

This digest highlights a Supreme Court of Canada decision which allowed the Attorney General’s appeal from a lower court decision allowing rectification of a contract, holding that rectification was limited to cases where the agreement between the parties was not correctly recorded in the instrument that became the final expression of the agreement.

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Digest of the Week – Receivership Orders Not Subject to Collateral Attack

This digest highlights an Alberta Court of Appeal decision where the Court dismissed an appeal from a summary judgment motion dismissed the action, holding that orders made under receivership proceedings could not be subject to collateral attack.

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