Catherine Francis

The appellant condominium corporation appealed the dismissal of its claim against the respondent bank.

The appellant's property manager had improperly transferred funds from the appellant's trust account at the bank, causing a loss of over $370,000.

At trial, the appellant succeeded against the property manager but its claim against the bank was dismissed.

On appeal, the appellant sought damages in negligence against the bank.

The Court of Appeal dismissed the appeal, finding that the appellant had not advanced negligence as a distinct claim at trial, likely for tactical reasons to avoid a contributory negligence defence.

Following earlier motions seeking to set aside or vary an ex parte order and discharge certificates of pending litigation registered against properties connected to bankrupt estates, the trustee sought costs.

The moving parties argued they had achieved partial success and that costs should be in the cause or borne by each party.

The court found the trustee had been essentially successful in maintaining the certificates of pending litigation and defending the scope of the production order, notwithstanding limited clarification provided in the earlier endorsement.

After considering objections regarding time spent on cross-examinations and the factors in rule 57.01(1), the court fixed partial indemnity costs in favour of the trustee.

The spouses of two bankrupt individuals and related family trusts moved to set aside or vary an ex parte order obtained by the bankruptcy trustee that authorized production of financial records and permitted the registration of certificates of pending litigation against matrimonial homes held in the spouses’ names.

The applicants argued that the trustee improperly proceeded without notice, failed to provide full and fair disclosure, and did not follow statutory investigative steps under the Bankruptcy and Insolvency Act before seeking court relief.

The court held that the trustee had reasonable grounds to proceed ex parte due to concerns that the bankrupts might encumber the properties and that there had been no material non‑disclosure.

However, the court found that the authorization of certificates of pending litigation was procedurally irregular because no proceeding claiming an interest in land had yet been commenced.

The order was varied so that the certificates would be discharged unless the trustee commenced a proceeding asserting an interest in the properties within a specified period.

The appellant appealed an order staying and dismissing his action against the respondents as an abuse of process.

The motion judge found that the appellant's claims were barred by a broad release contained in a Plan of Compromise and Arrangement under the CCAA that restructured the Canadian market for Asset-Backed Commercial Paper (ABCP).

The Court of Appeal upheld the motion judge's decision, agreeing that the release clearly captured the appellant's claims and that it would be unjust to allow his claim to proceed in isolation after he had participated in the CCAA proceedings and voted in favour of the Plan.

The respondent filed a property claim in bankruptcy for funds it loaned to the bankrupt, alleging the loan was induced by fraud.

The trustee disallowed the claim, but the appeal judge found fraud and imposed a constructive trust over the remaining funds.

The trustee appealed, arguing the appeal judge lacked jurisdiction to determine the fraud allegations and erred in imposing a constructive trust.

The Court of Appeal dismissed the appeal, finding the process was agreed upon and the constructive trust was a just remedy to prevent the bankrupt and its tainted creditors from being unjustly enriched by the fraud.

The appellants brought an application for a stay, which was dismissed, and the appeal was stayed pending the appointment of a new trustee of the family trust.

The appointment process was subsequently resolved on consent and the appeal was abandoned.

The respondent sought costs for the stay motion.

The court awarded costs to the respondent, noting that the appellants could have achieved their desired result without bringing an unsuccessful stay application.

Costs were fixed at $15,000.

The appellant appealed a summary judgment dismissing his action for abuse of process against the bank.

The appellant alleged the bank brought bankruptcy proceedings for the improper purpose of purchasing his share in a company.

The Court of Appeal dismissed the appeal, noting the appellant had the opportunity to purchase the assets, did not object to the court-approved sale, and a previous judge had already struck similar allegations and found no improper purpose.

The appellant, a judgment creditor of the plaintiff, appealed a Master's order that maintained writs of seizure and sale registered by a competing creditor (the defendant) after a default judgment against the plaintiff was set aside.

The Master held that the appellant lacked standing under Rule 37.14(1)(a) because she was only indirectly affected by the order, and alternatively, that maintaining the writs was a just term under Rule 19.08(1).

The Divisional Court found no error of law or palpable and overriding error in the Master's decision and dismissed the appeal.

The appellants appealed a summary judgment dismissing their action against a bank and its employees for breach of contract and negligent misrepresentation.

The appellants alleged the bank made oral commitments to provide additional financing and release a guaranteed investment certificate, which induced them to enter into a loan agreement.

The Court of Appeal dismissed the appeal, finding that the appellants failed to produce documentary evidence to support their claims and that the alleged oral agreements contradicted the clear terms of the written loan documents, thus violating the parol evidence rule.

The court concluded there was no genuine issue for trial.

The appellant made an assignment in bankruptcy in 1994 and was discharged in 1996.

Years later, the trustee in bankruptcy learned the appellant may have failed to disclose an interest in real property and obtained an order reappointing the trustee.

On appeal, the Court of Appeal held that the bankruptcy judge erred by deciding the matter in a summary proceeding given the conflicting evidence and credibility issues.

The appeal was allowed and a trial of an issue was ordered to properly determine the ownership of the property.

The appellants appealed a judgment finding that their dealings with the respondent bank did not result in a final arrangement.

The Court of Appeal dismissed the appeal, holding that it was open to the trial judge to find no final arrangement was reached.

Alternatively, the court found that the guarantee and chattel mortgage were continuing obligations that were not extinguished by the December 1999 financial agreement.

The appellants appealed an order striking out their claim of economic duress and effectively dismissing their entire action against the respondent banks.

The motion judge had found that past dealings between the parties could not constitute economic duress to vitiate a restructuring agreement and release.

The Court of Appeal allowed the appeal, holding that the motion judge erred by failing to apply the 'plain and obvious' test for striking pleadings under Rule 21.

The Court found it was not plain and obvious that a claim of economic duress based on past dealings would inevitably fail, and ordered the appellants to file a new, focused statement of claim.

The appellant appealed the dismissal of its petition for a receiving order against the respondent.

The appellant argued the bankruptcy judge erred in refusing the order after finding an act of bankruptcy, or alternatively, failed to provide adequate reasons.

The Court of Appeal dismissed the appeal, finding the bankruptcy judge was entitled under s. 43(7) of the Bankruptcy and Insolvency Act to dismiss the petition because he was not satisfied with the proof of facts and found other sufficient cause, noting the dispute was better suited for a civil action and the petition appeared to be a pre-emptive strike.

The court also found the reasons were adequate.

The appellant appealed a receiving order finding he had committed an act of bankruptcy by failing to meet his liabilities.

The respondent cross-appealed the trial judge's costs order, which denied the respondent costs and ordered it to pay the appellant's costs for part of the trial.

The Court of Appeal dismissed the appeal, finding ample evidence supported the trial judge's conclusion that the appellant was unable to meet his obligations.

The Court allowed the cross-appeal on costs, holding that the trial judge unreasonably exercised his discretion by ignoring the appellant's evasive conduct and the respondent's presumptive entitlement to costs under the Bankruptcy and Insolvency Act.

The respondent was awarded 90% of its costs on a full indemnity basis.

The appellants sought to claim a federal sales tax refund belonging to a bankrupt company, relying on assignments made prior to and during the bankruptcy.

The trustee in bankruptcy held the refund and argued the assignments were invalid.

The Court of Appeal held that the tax refund was a 'Crown debt' under the Financial Administration Act, which prohibits the assignment of such debts.

The court also found that the general power of a trustee to sell assets under the Bankruptcy and Insolvency Act does not override this specific prohibition.

The appeal was dismissed.

The appellants, a bank and its assignee, appealed a trial judgment finding they improperly used the respondent developer's confidential business information during the assignment of a defaulted loan, causing a lost opportunity.

The Court of Appeal allowed the appeal, holding that the bank had an unqualified right to assign the debt.

Furthermore, the Court found that the trial judge erred in awarding damages based on a 'lost opportunity' theory that was neither pleaded nor supported by the evidence.

The cross-appeal by the respondent was dismissed, and the action against the appellants was dismissed in its entirety.

The appellant trustee appealed the dismissal of an application seeking approval of three proposed assignees of leased commercial premises under s. 38(2) of the Commercial Tenancies Act.

The proposed assignees were newly incorporated numbered companies created to hold individual leases after the trustee sold the bankrupt’s assets to a related purchaser controlled by an established gas retail operator.

The court held that, although backing and guarantees from related corporations may in principle be considered when assessing a corporate assignee’s fitness, the landlords were entitled to look to the named tenants as the primary obligors under the leases.

On the evidentiary record, the motions judge was entitled to conclude that the assignees were shell corporations designed to insulate the real operators from liability and were therefore not fit and proper persons.

The appeal was dismissed with costs.