Alan B. Merskey

The Canada Revenue Agency (CRA) obtained a jeopardy order under the Income Tax Act to collect a tax debt from a corporation on the eve of its receivership.

The CRA garnished funds from the corporation's bank account.

The corporation was subsequently declared bankrupt.

The trustee in bankruptcy brought a motion seeking the return of the garnished funds, arguing the jeopardy order conflicted with the priority scheme in the Bankruptcy and Insolvency Act (BIA).

The Court of Appeal dismissed the trustee's appeal, holding that the motion was an impermissible collateral attack on the Federal Court's jeopardy order.

Furthermore, the garnishment was a completely executed process prior to bankruptcy under s. 70(1) of the BIA, and the CRA's actions did not constitute an improper Crown priority or inequitable conduct.

The moving parties sought leave to appeal an order approving a settlement in the CCAA proceedings of Nortel Networks.

The Court of Appeal denied leave, finding no procedural or substantive unfairness in the settlement.

The motion judge had carefully balanced the various interests at stake and made no demonstrable error.

The moving parties, Objecting LTD Beneficiaries, sought an order expediting their motion for leave to appeal and consolidating the leave motion with the appeal itself.

The responding parties consented to expediting the leave motion but opposed consolidation.

The court agreed with the responding parties, finding no urgency requiring consolidation as benefits continued until the end of the year.

A schedule for the expedited leave motion was approved.

The appellant sought leave to appeal a decision dismissing its motion for an interim preservation order regarding a $3.5 million cash collateral drawn from a standby letter of credit.

The motions judge had found that the appellant had no proprietary interest in the funds and that the law of guarantee did not apply.

The Divisional Court granted leave to appeal, finding good reason to doubt the correctness of the decision and noting that the application of guarantee law to a standby letter of credit in the context of an underlying agreement is an issue of broader significance.

A stay of the order directing payment of the funds was also granted pending the appeal.

Following the bankruptcy of Canada 3000, airport authorities sought to seize leased aircraft for unpaid charges.

The parties negotiated protocols allowing the release of the aircraft to the lessors in exchange for a Release Fund.

The Supreme Court of Canada later held that the authorities had a statutory right to detain the aircraft, which could be exercised against the substituted security.

The lessors appealed a motion judge's order allowing the authorities to draw on the Release Fund, arguing the preconditions of the protocols were not met.

The Court of Appeal dismissed the appeal, finding that the protocols were a voluntary commercial arrangement and the authorities' right to the fund was triggered by the judicial grant of the detention remedy.

Appeals and cross-appeals arising from the collapses of two airlines operating leased aircraft and leaving substantial unpaid airport and civil air navigation charges.

The Court held that legal titleholders were not personally liable for unpaid navigation charges under s. 55 of the Civil Air Navigation Services Commercialization Act because 'owner' was limited to persons with legal custody, control, or possession in the statutory context.

However, the seizure and detention remedies under s. 56 of that Act and s. 9 of the Airport Transfer (Miscellaneous Matters) Act operated against aircraft owned or operated by the defaulting airlines and could not be defeated by leasing arrangements or by separating attached engines.

The remedies extended to security posted in substitution for the aircraft, subject to the motions judges’ supervisory discretion to craft fair terms.

Interest continued to run until payment, posting of security, or bankruptcy.

The respondents, having been largely successful on the main appeals concerning the interpretation of seizure and detention remedies under the Airport Transfer (Miscellaneous Matters) Act and the Civil Air Navigation Services Commercialization Act, sought costs totaling over $631,000.

The court declined to award costs to any party.

The court reasoned that the proceedings raised novel issues of statutory interpretation that engaged the public interest, the respondents were not completely successful as their cross-appeals were dismissed, and the appellant airport authorities acted reasonably in bringing the appeals given the lack of established jurisprudential authority.

The Crown appealed a motions judge's decision refusing leave to amend its statement of defence and counterclaim in a breach of contract action regarding a software development project.

The Crown sought to add claims for negligent misrepresentation, professional negligence, and conspiracy against the plaintiff, and to add two related foreign corporate entities as defendants by counterclaim.

The Court of Appeal allowed the appeal, finding that the motions judge erred in concluding the tort claims were barred by the contract's entire agreement clause and in applying a 'presumptive refusal' rather than 'presumptive approval' test for amending pleadings.

The appellant, DeGasperis Muzzo Corporation, appealed a judgment declaring that the mortgage security interests of Montreal Trust and Stadco in the SkyDome ranked in priority to its leasehold interest in a SkyBox suite.

The Court of Appeal dismissed the appeal, agreeing with the trial judge that the mortgage instruments were registered prior to the leasehold interest under the Land Titles Act, and that the appellant had agreed to subordinate its interest in the lease.

The cross-appeal was also dismissed.