Barbara F. VanBunderen

The appellant, an unsecured creditor, appealed a motion judge's order authorizing a pooled distribution of assets under a receivership, which included both individual and corporate debtors.

The appellant objected to sharing corporate assets with creditors of only the individual debtors.

The Court of Appeal upheld the motion judge's decision, finding no error in piercing the corporate veil to pool assets, as the corporate assets were derived from fraudulent transfers by the individual debtors to defeat creditors.

The court also found no procedural unfairness in determining the issue on a motion for directions and upheld the disallowance of certain interest charges claimed by the appellant.

The appellant, a U.S. law firm, appealed an order declaring mortgages it held over six Ontario properties, granted by its clients (the Hutchens) to secure legal fees, void ab initio as fraudulent conveyances under the Fraudulent Conveyances Act.

The Court of Appeal dismissed the appeal, affirming the motion judge's findings that the judgment creditors had standing, were "creditors or others" under the Act, and that the mortgages were not granted in good faith, thus not falling under the statutory exceptions.

The court also rejected arguments of res judicata or abuse of process.

The Applicants, judgment creditors of the Respondents (Hutchens), brought a motion seeking a declaration that $2M mortgages registered by Adroit Advocates LLC against the Hutchens' Ontario properties were void ab initio.

The mortgages were registered shortly after a significant US judgment was rendered against the Hutchens for mortgage financing fraud.

The Applicants argued that the mortgages were intended to defeat creditors and were given for insufficient consideration.

Adroit, the responding non-party, challenged the Applicants' standing and asserted the mortgages were granted in good faith for good consideration.

The court found the Applicants had standing and, applying the Fraudulent Conveyances Act and the Assignments and Preferences Act, determined that the mortgages were intended to give Adroit an unjust preference over other creditors and were given for inadequate consideration, primarily consisting of future, unbilled legal fees.

The motion was granted, declaring the mortgages void and directing their discharge.

This case conference order addresses procedural and factual disputes in an ongoing insolvency proceeding involving Eureka 93 Inc. and three related companies under the BIA.

The noteholders (Dominion Capital LLC) had postponed creditor votes on proposals, seeking further investigations and information regarding asset valuations and the validity of their claims.

The debtors challenged the noteholders' status as creditors for one proposal.

The court provided directions to resolve the gridlock, ordering the Proposal Trustee to assess and value the noteholders' proofs of claim, setting deadlines for examinations of witnesses, and mandating the completion of votes on the proposals.

The court emphasized the Trustee's role in validating claims and cautioned against allowing peripheral issues to unduly complicate the summary insolvency process.

A commercial landlord sued a prospective tenant for damages arising from the tenant’s refusal to proceed with a lease after an offer to lease had been executed and a draft lease negotiated.

During design work, the parties discovered that a structural bearing wall prevented installation of the large windows contemplated by the offer, and that installing them would cost more than ten times the estimated amount.

The court held that the subsequent draft lease was unenforceable under the Statute of Frauds because it was never signed and no written memorandum satisfied the statute.

The court further found that the original offer to lease was frustrated by an unforeseeable structural condition that fundamentally altered the nature of the bargain, as the building could not reasonably provide the natural light and design features essential to the tenant’s intended use without radically increased cost.

Both the action and the tenant’s counterclaim were dismissed.

The plaintiff and defendants brought competing motions for summary judgment in a dispute over the ownership of a share in a land-holding company and the redemption of a mortgage.

The plaintiff claimed it was the beneficial owner of the share and had validly tendered funds to redeem the mortgage.

The defendants argued the share was held to secure a 50% interest in future development, not just as security for the loan.

The court found that the conflicting evidence regarding the terms on which the share was held and the adequacy of the tender could not be resolved on a summary basis.

Both motions were dismissed, and the matter was directed to trial with specific issues defined.