Brandon Jaffe

The moving party sought an extension of time to file a notice of appeal from an order setting aside a property transfer and granting a vesting order to the bankruptcy trustee.

The motion judge applied the interests-of-justice test, finding that while the moving party formed an intention to appeal within the appeal period and the initial delay was understandable, the four-month delay in bringing the motion was unexplained and prejudicial to the bankrupt estate.

The proposed grounds of appeal were found to be entirely lacking in merit, as the claims of unfair deprivation of a witness were unsupported and the evidence sought to be relied upon did not qualify as fresh evidence.

The extension of time was denied and costs were awarded to the responding party.

The Trustee sought to set aside a transfer of property from Kaldep Singh Gidda to Sunita Rani Saini as a transfer at undervalue under section 96(1)(b) of the Bankruptcy and Insolvency Act, or alternatively under the Fraudulent Conveyances Act.

The court found that the transfer occurred within one year of bankruptcy, between non-arm’s length parties, and for no consideration.

The court rejected Ms. Saini’s defences of resulting or constructive trust, finding no evidence of a trust, loan, or gift, and held that her payments for mortgage and expenses did not create an equitable interest.

The Trustee was successful and awarded costs.

This endorsement addresses a case conference requested by Sergio Grillone, an undischarged bankrupt, seeking directions regarding his proposed appeal from a scheduling endorsement and related matters in ongoing bankruptcy proceedings.

The court finds that Mr. Grillone has no right of appeal from the scheduling endorsement, as no order has been made from which an appeal lies, and dismisses his proposed motion as frivolous, vexatious, or an abuse of process under rule 2.1.01.

The decision details the procedural history, the positions of the parties, and the court’s reasoning for dismissing the motion.

A motion by a first-time bankrupt to determine preliminary legal issues regarding his discharge under the Bankruptcy and Insolvency Act.

The bankrupt argued that section 168.1 provides for automatic discharge after nine months, and that section 169(1) does not operate as an application for discharge for first-time bankrupts.

He contended that when his discharge was opposed, the procedure should follow a different pathway than the standard discharge application procedure in sections 169-176, with the onus on the trustee and creditors to prove their opposition rather than on him to prove entitlement to discharge.

The court rejected these arguments and held that the standard discharge procedure applies to opposed automatic discharges.

This motion concerned the approval of the Trustee in Bankruptcy's final statement of receipts and disbursements in the bankruptcy of Ametra Dave.

A creditor, Linda Zaplotinsky, objected to the Trustee's and its legal counsel's fees and disbursements, alleging mismanagement, ill-timed legal proceedings, and unnecessary costs.

The court found that while the Trustee's administration of assets was reasonable, the fees related to an unsuccessful property sale motion were not.

Consequently, the court exercised its discretion to reduce the Trustee's fees by $10,000 and its counsel's fees by $9,123.

The bankrupt applied for an absolute discharge from bankruptcy.

The discharge was opposed by the trustee and an opposing creditor (the bankrupt's brother) on the grounds that the bankrupt failed to disclose significant real property assets, acted as a straw borrower for her common-law spouse, obtained post-bankruptcy credit, and failed to fulfill her duties under the Bankruptcy and Insolvency Act.

The court found that the bankrupt was uncooperative, evasive, and untruthful, having engaged in a pattern of deceit regarding her income, assets, and liabilities.

Applying the principles from Giannotti, the court refused the discharge and imposed strict conditions before the bankrupt could re-apply in 24 months.

The Cardillo Parties sought review of a chambers judge's decision that denied them an automatic right of appeal under the Bankruptcy and Insolvency Act (BIA) and refused leave to appeal.

The chambers judge had found the underlying order to be procedural and that a single judge had the authority to determine the right of appeal and deny leave, applying the doctrine of paramountcy.

The Court of Appeal dismissed the Cardillo Parties' motion, affirming the chambers judge's findings that the decision was procedural, a single judge had the authority, and paramountcy applied, thus denying the appeal.

The Trustee in bankruptcy moved for orders that the appellants (related to the bankrupt Medcap) did not have an automatic right of appeal under BIA s. 193(a) or (c) from a lower court order, required leave to appeal, and should be denied leave.

The appellants argued that a single judge lacked authority to make such a determination, citing R. 61.16(2.2) of the Rules of Civil Procedure.

The court held that the lower court's order was purely procedural, thus no automatic right of appeal existed under BIA s. 193(a) or (c).

The court further held that a single judge has the authority to determine appeal rights under BIA s. 193 due to the doctrine of federal paramountcy, which overrides provincial rules like R. 61.16(2.2) in bankruptcy matters.

Leave to appeal was denied as the proposed appeal lacked merit, did not raise issues of general importance, and would hinder bankruptcy proceedings.

The trustee in bankruptcy brought a motion seeking to declare a property transfer by the bankrupt to his spouse as a transfer at undervalue under section 96 of the Bankruptcy and Insolvency Act.

The respondent opposed the motion and did not consent to it being heard by an Associate Judge sitting as a Registrar in Bankruptcy.

The Associate Judge traversed the motion to be heard by a Judge presiding over the Commercial List, leaving the issue of a registrar's jurisdiction to hear contested transfer at undervalue motions for another day.

This endorsement addresses costs for two related motions within a bankruptcy proceeding.

The first, a Claim Examination Motion brought by certain creditors against the Trustee, was withdrawn.

The second was a Trustee's motion to compel John Cardillo, the designated person for the bankrupt corporation, to attend an examination and produce documents, which the Trustee largely succeeded on.

The court awarded partial indemnity costs of $14,435.75 to the Trustee against the withdrawing creditors, finding their motion unnecessary and poorly founded in law.

For the second motion, the court awarded substantial indemnity costs of $7,580.04 to the Trustee against John Cardillo, citing his persistent and reprehensible failure to fulfill his statutory duties under the Bankruptcy and Insolvency Act.

The moving party, Lifeline, sought an order under section 38 of the Bankruptcy and Insolvency Act to commence an action against LawPRO to recover on a judgment against the bankrupt lawyer.

Lifeline also sought an order that any recovery belong exclusively to it.

Another creditor, Bridgepoint, supported the section 38 order but opposed the exclusivity term, arguing it should be allowed to participate and share in the proceeds.

The court granted the section 38 order but refused the exclusivity term, holding that Bridgepoint was entitled to participate in the action and share in any recovery under the responsive insurance policies, subject to proving its claim.

The trustee in bankruptcy sought an order for vacant possession and leave to issue a writ of possession for the bankrupt's property due to an increase in realizable equity since the bankruptcy date.

The bankrupt opposed, arguing misrepresentations by a debt consultant and alleged trustee negligence, and asserting his wife's beneficial interest in the property.

The court found that the increased equity vested in the trustee, dismissed the bankrupt's arguments regarding misrepresentation and trustee conduct, and rejected the wife's alleged interest as unsubstantiated.

The motion was granted, allowing the trustee to take possession after 60 days, and costs were awarded to the trustee.

Dale Ottewell, a creditor in the bankruptcy of Christine Ann Davidson, appealed the dismissal of his motions for leave to commence a proceeding under s. 38 of the Bankruptcy and Insolvency Act (BIA) and to examine individuals under s. 163(2) of the BIA.

The s. 38 motion sought to include a house, beneficially owned by the bankrupt, in the estate, despite a prior family law order where Ottewell consented that the house would not be part of the bankrupt's property.

The Court of Appeal dismissed the appeal, finding no error in the lower court's discretionary refusal to grant leave under s. 38, as Ottewell failed to demonstrate sufficient merit and was attempting to indirectly contravene a prior consent order.

Leave to appeal the s. 163(2) motion was also denied as it concerned a procedural matter without general importance.

The appellant, a creditor in a bankruptcy proceeding, appealed two decisions by Masters sitting as Registrars in Bankruptcy.

The appellant sought an order under s. 38 of the Bankruptcy and Insolvency Act (BIA) to pursue a claim that a property registered in the respondent mother's name was beneficially owned by the bankrupt former spouse.

He also sought an order under s. 163(2) of the BIA to examine witnesses regarding the property and the bankrupt's alleged undisclosed income.

Both Masters dismissed the motions, primarily relying on a prior consent family law order (the "Vallee Order") which explicitly stated the property would not form part of the bankrupt's estate for any purpose.

The court dismissed both appeals, affirming that the Masters did not err in principle or law.

It was held that the appellant failed to establish threshold merit for the s. 38 motion given the Vallee Order, and it would be inequitable to allow him to indirectly pursue what he had expressly agreed not to.

For the s. 163(2) motion, the court found the appellant did not demonstrate "something amiss" with the estate administration, concluding the proposed examinations were a fishing expedition.

Following protracted custody and access litigation involving two trials and a prior appeal, a costs award of $200,000 was made in favour of the father.

The mother subsequently filed for bankruptcy before the costs could be enforced.

The father sought to lift the automatic stay of bankruptcy under section 69.4 of the Bankruptcy and Insolvency Act to enforce the costs award against the mother's exempt assets (RRSPs).

The motion judge granted the order, finding material prejudice and equitable grounds.

The mother appealed, arguing the lift-stay remedy applies only to equalization claims, not costs awards.

The Court of Appeal dismissed the appeal, holding that the lift-stay remedy applies to costs awards in appropriate circumstances and that the motion judge properly found material prejudice and equitable grounds based on the mother's breach of representations to the court and the protracted nature of the family litigation.

The moving parties (defendants) sought a temporary stay of the Ontario action on the basis that another proceeding regarding the same subject matter was pending in Florida.

The Florida action had been dismissed on the basis of forum non conveniens, but an appeal was pending.

The court declined to grant the stay, finding that it would be unjust to the responding party (plaintiff) because it was unclear whether the moving parties intended to raise a statute of limitations defence for the period prior to May 5, 2015.

The court held that requiring the moving parties to deliver a statement of defence would clarify the limitations issue without imposing an onerous burden, and dismissed the motion without prejudice to bringing a further motion to stay after the statement of defence was delivered.

The plaintiff supplier claimed damages for unpaid goods against the individual defendants, arguing they were personally liable as the existence of their corporation was undisclosed.

The defendants argued the orders were placed on behalf of their corporation, which had been placed in receivership.

The court dismissed the action, finding that the plaintiff was aware the orders were made on behalf of the corporation, given the long history of payments from the corporate bank account and the prominent display of the corporation's registered business name.

The appellant appealed the bankruptcy Trustee's disallowance of her proof of claim for an estimated $500,000 equalization payment against her bankrupt spouse.

The court determined the appeal should proceed as a true appeal based on the record before the Trustee, rather than a hearing de novo.

The court found the appellant failed to provide sufficient evidence to support or quantify her equalization claim, noting that the family law trial judge had previously concluded no equalization payment would be owing.

The appeal was dismissed with no order as to costs.

A lender brought a motion for summary judgment against personal guarantors after the principal debtor repaid the loan but the lender later returned the funds following a bankruptcy preference claim under s. 95 of the Bankruptcy and Insolvency Act.

The guarantors argued that the debt had been extinguished by payment, that the payment had not been set aside by a bankruptcy court, and that no proper demand had been made.

The court held that preferential payments are void as against the trustee under s. 95 and that the debt and related guarantees were revived when the lender repaid the funds to another secured creditor.

The court also found the debtor was insolvent at the time of payment and that the presumption of intention to prefer applied.

Summary judgment was granted against the guarantors.

The moving party sought an order directing the Land Registrar to discharge an earlier injunction registered on title to a property that prohibited further encumbrances.

The injunction had been obtained by corporate plaintiffs alleging that the moving party, a director and shareholder, withdrew corporate funds and used them to purchase the property.

After filing a consumer proposal under the Bankruptcy and Insolvency Act, the moving party argued that the statutory stay invalidated or prohibited registration of the injunction.

The court held that the stay did not nullify the injunction but only stayed its enforcement, and that registration of the order during the stay did not justify discharging it after the proposal was rejected by creditors.

The motion was dismissed and the injunction remained registered to protect the plaintiffs’ claimed trust interest in the property pending trial.