Daniel Resnick

In a priority dispute following the bankruptcy of a paving company, a bond company argued that funds held by the receiver in a project account were statutory trust funds under the Construction Lien Act and therefore excluded from the bankrupt's estate under s. 67(1)(a) of the Bankruptcy and Insolvency Act.

The court dismissed the trust claim, finding that the funds lacked the certainty of subject matter required to constitute a true common law trust, as they were not identifiable or held separately prior to the receivership.

Consequently, the funds were to be distributed under the BIA scheme.

The appellant condominium corporation appealed a decision dismissing its application to force a unit owner to remove a hot tub from his exclusive use common element backyard patio.

The application judge found that the hot tub was not an 'addition, alteration or improvement' under s. 98(1) of the Condominium Act requiring board approval.

The Court of Appeal upheld this interpretation, agreeing that the hot tub did not change the structure of the property or increase its value, and was analogous to a barbecue or patio furniture.

The appeal was dismissed.