Civil Procedure/Securities: Delay

Talbot v. Talbot, 2021 QCCA 162 (39610)
The Applicant, Karl Talbot, was the former president of a company that took steps to regularize its situation with the Autorité des marchés financiers (AMF). This led to a penal investigation and to the issuance by the AMF in June 2012 of statements of offence containing 107 counts for contraventions of certain provisions of the Securities Act. In December 2016, after 33 days of hearing, the Court of Québec granted Karl Talbot’s motion for non‑suit and for a stay of proceedings on the ground the charges were prescribed. However, the court found Karl Talbot had failed to establish abuse of procedure by the AMF. In October 2017, Karl Talbot brought a civil action for damages against the AMF, the Respondent, Sébastien Talbot, the intervener, Jean‑François Welch, and the AMF’s investigators and outside counsel. In July 2018, on a motion by the AMF’s investigators and outside counsel to dismiss the action for abuse of procedure, the Superior Court found the action constituted an abuse of procedure, mainly because it was based entirely on the record of evidence and arguments filed in the Court of Québec, which had failed to establish abuse of procedure by the AMF in the penal proceedings. Sébastien Talbot in turn applied to have the civil action declared an abuse of procedure and dismissed. At the hearing, he also raised orally, through his counsel, the failure to set down the application in a timely manner and argued Karl Talbot was therefore deemed under art. 177 C.C.P. to have discontinued his application. The Superior Court dismissed Karl Talbot’s oral application to be relieved from the failure to set down the application against the defendant within the time limit. It also declared the application to dismiss for abuse of procedure was well founded, and it granted that application for the purpose of awarding legal costs to Sébastien Talbot. The Qué. C.A. dismissed the motion de bene esse for leave to appeal and denied leave to appeal. “The application for leave to appeal … is dismissed with costs.”

Class Actions: Secondary Market

Barrick Gold Corporation, et al. v. Drywall Acoustic Lathing and Insulation Local 675 Pension Fund, et al.2021 ONCA 104 (39637)
In 2009, Barrick Gold Corporation began construction of the Pascua mine, a multi‑billion‑dollar gold mining project straddling the border of Chile and Argentina. The proposed mine lay at the headwaters of the Estrecho river system making it an environmentally sensitive project, particularly for the thousands of people who lived downstream. The estimated cost of the project escalated, and environmental issues arose. In October 2013, Barrick concluded the project was no longer financially viable and decided to shut it down. Barrick recorded a write‑off of around $5B. Several shareholders started a class action based on secondary market misrepresentations allegedly made by Barrick. Over the proposed class period, there were five negative disclosures of information resulting in significant declines in Barrick’s share price. A motions judge granted leave to proceed under s. 138.3 of the Ontario Securities Act with one proposed misrepresentation claim. The Ont. C.A. granted the subsequent appeal in part, returning several other issues for determination by the lower court. “The application for leave to appeal … is dismissed with costs.”

Corporations: Oppression Remedy

Gelerman, et al. v. Baylin Technologies Inc., et al.,  2021 ONCA 45 (39624)
Mr. Gelerman was the President and CEO of Spacebridge, a company in the business of hi‑tech satellite communication. Baylin Technologies Inc. (“Baylin”) was a public company listed on the Toronto Stock Exchange (“TSX”). In 2017, Baylin acquired the undertaking and assets of Spacebridge’s satellite communications business. The parties entered into an asset purchase agreement (the “APA”) in January 2018. Part of the purchase price was to be paid through a two‑year earn-out and Baylin shares. In addition, Mr. Gelerman was given a consulting contract with Baylin for a period of two years. Pursuant to the APA, Baylin was required to “honestly and in good faith” assist Mr. Gelerman to obtain enough votes to be elected to the Board at the 2018 and 2019 annual general meetings (“AGM”). Mr. Gelerman was appointed to the Board for 2018. In 2019, Baylin was required to adopt a “majority voting policy” in order to comply with the TSX Requirements. At the March 2019 Board meeting, the Board was presented with a draft majority voting policy (“Baylin Policy”) and the directors were advised it had to be passed before the 2019 AGM. The Board, including Mr. Gelerman, unanimously passed the Baylin Policy without being advised of the differences between it and the TSX Requirements. Several days later, Mr. Gelerman was advised by email the Chair of the Board and a Baylin majority shareholder would not be supporting his re‑election. At the 2019 AGM Mr. Gelerman did not receive sufficient votes to be re‑elected. Baylin requested his resignation, in accordance with the terms of the Baylin Policy. Mr. Gelerman refused to do so. He brought an application seeking, inter alia, an oppression remedy to allow him to complete his term as Director until the 2020 AGM, as contemplated by the APA. Baylin and 238 Ontario cross‑applied for an order requiring Mr. Gelerman to tender his resignation, as required under Baylin’s Policy, along with other declaratory relief.  “The application for leave to appeal … is dismissed with costs. Abella J. took no part in the judgment.”

Criminal Law: Sexual Assault

Mehari v. R.2020 SKCA 37 (39639)
Mr. Mehari admitted to having sexual intercourse with the complainant, but claimed that the entire encounter was consensual, that the complainant was awake throughout and she actively and willingly participated. The complainant testified she recalled nothing after entering Mr. Mehari’s bedroom, until she awoke to find Mr. Mehari having intercourse with her. Following a trial by a judge sitting without a jury, Mr. Mehari was convicted of sexual assault. The majority of the Sask. C.A. allowed Mr. Mehari’s appeal, set aside the conviction, and ordered a new trial. Leurer J.A., in dissent, would have dismissed Mr. Mehari’s appeal. The S.C.C. allowed the appeal, and remitted the matter to the Sask. C.A. to decide the grounds of appeal the majority did not address. The Sask. C.A. dismissed Mr. Mehari’s appeal. “The application for leave to appeal … is dismissed.”

Private International Law: Foreign Judgments

Actava TV, Inc., et al. v. Matvil Corp., 2021 ONCA 105 (39638)
The Applicants sought enforcement of a letter of request (“LoR”) from the United States District Court, Southern District of New York. The enforcement order compels the Respondent, an Ontario company and non‑party to a U.S. action, to produce its confidential and proprietary financial and valuation documents to assist the Respondents’ expert in the U.S. action to calculate their damages using comparative industry data. One party to the U.S. action is a competitor of the Respondent and the other is a potential competitor with whom it had a referral agreement.  A generic protective order had been issued in the U.S. action permitting producing parties to designate materials as “confidential”, “attorneys’ eyes only” or “experts’ eyes only”. The Ontario Superior Court of Justice granted an order enforcing the LoR and ordered the Respondent to deliver the requested information and documents and to have a representative appear for examination, subject to the U.S. Court ordering certain restrictions on access to the financial data. The Ont. C.A. allowed the appeal, overturning the lower court’s analysis of the considerations of relevance, public policy and sovereignty. “The application for leave to appeal … is dismissed with costs.”

Torts: Spoilation

Casbohm v. Winacott Spring Western Star Trucks, 2021 SKCA 21 (39627)
Mr. Casbohm was injured when he fell from a ladder at the business premises of Winacott Spring Western Star Trucks, owned by GEO Holdings Ltd. The ladder was disposed of shortly after the accident. Mr. Casbohm commenced an action in negligence and occupiers’ liability. Expert evidence was based only on pictures of the scene and the ladder, but not the ladder itself. Spoilation was raised as an issue. The motions judge dismissed the action and the Sask. C.A. dismissed an appeal.  “The application for leave to appeal … is dismissed with costs.”

Workers’ Comp.: Jurisdiction

Murray v. 9197-5748 Québec inc., et al,  2021 QCCA 153 (39631)
The Applicant, Ms. Murray, was an electrical engineer employed by Santerre Électrique inc., a company that worked on large electrical projects. In November 2009, she was one of the three occupants of a helicopter that crashed. The other passengers were Mr. Santerre, the pilot, who was the president and director of Santerre Électrique and who died in the accident, and his daughter Annick, also an electrical engineer employed by Santerre Électrique, who survived the accident. Ms. Murray brought an action for damages against, among others, the Respondents the heirs of the late Mr. Santerre, alleging pilot error. The Québec Superior Court dismissed Ms. Murray’s application against Mr. Santerre’s heirs on the basis of the immunity from civil proceedings provided for in s. 442 of the Act respecting industrial accidents and occupational diseases. The Qué. C.A. dismissed Ms. Murray’s appeal. It determined the Québec Superior Court’s findings were supported by the evidence, such that there were no grounds for intervention. “The application for leave to appeal … is dismissed.”