APPLICATIONS FOR LEAVE TO APPEAL DISMISSED

37997 St. James No.1 Inc. v. Ed Vanderwindt, Chief Building Official and City of Hamilton (Ont.)

Municipal law – Heritage properties – Demolition or removal of structure

Following are the summaries for the civil decisions released by the Court of Appeal this week.

There were two wrongful dismissal cases this week. One was brought by a physician against Sick Kids Hospital. The Court found against the Hospital and allowed the appeal, remitting the matter back to the Superior Court for a determination of the damages. The second involved the breach of fiduciary duty of a senior officer of a public company who was found to have been self-dealing. The Court confirmed that the breach of fiduciary duty constituted just cause for termination.

On March 16, 2018, a Quebec Court approved a litigation funding agreement for an insolvent company operating under court-protection in a Companies’ Creditors Arrangement Act (CCAA) proceeding. The insolvent company wanted to pursue a significant claim against its primary secured creditor and the litigation funding agreement stipulated that the third party litigation funder will pay all legal fees and disbursements in relation to the proposed claim in exchange for a portion of any proceeds of the litigation.

Over the last year, several court decisions have touched on the legislative conflict between taxation authorities and secured creditors in insolvency situations.

In 2002 the Supreme Court of Canada, in Bank of Montreal v Dynex Petroleum Ltd, 2002 SCC 7 (Dynex) affirmed that gross overriding royalty interests (GOR) could constitute interest in land provided the parties so intended and that intention was sufficiently evidenced in an agreement.

In Esfahani v. Samimi, 2018 ONCA 516 the Ontario Court of Appeal confirmed that a plaintiff pursuing a fraudulent conveyance or preference must recognize that the legal landscapes changes with a bankruptcy and that the effects of a bankruptcy filing cannot be ignored.

With international trade rarely making the news in this era of stable foreign relations and respectful international dialogue, you can be forgiven if you are unaware that Canada has entered several trade agreements that require it to protect trade secrets. But can Canada be forgiven for never actually enacting trade secret legislation? Maybe we can because of Canada’s substitute: the common law action for “breach of confidence”.

Subcontractors may find themselves in a difficult position if an owner or general contractor fails to pay for labour and materials provided to a project. This failure to pay may occur for any number of reasons, but is often a result of a dispute or insolvency. One of the most commonly used methods to mitigate the risk of non-payment by an owner or general contractor is the use of labour and material payment bonds.

​The Québec Superior Court recently rendered a judgment (Francis v. Adobe 2018 QCCS 2547) confirming that a bankrupt's debt may be declared non-releasable by a discharge order pursuant to section 178 of the Bankruptcy and Insolvency Act (the "Act"), even when said discharge order has not yet been rendered or when the bankrupt's discharge has been suspended or granted conditionally pursuant to section 173 of the Act.

The plaintiffs in the underlying action, Art and Wendy Douglas, owned property in Kingston where there was an oil leak in January of 2008. The defendants, who had supplied the oil, sent an environmental clean-up company to remediate the property after being alerted of the leak. The plaintiffs' insurer, State Farm Fire and Casualty Company (the "Insurer"), ultimately indemnified the plaintiffs in full and paid for repairs, remediation, additional living expenses of Mr. Douglas, personal property and related damages totaling more than $800,000.