David Stuart Swift

The Trustee in bankruptcy sought to set aside alleged transfers at undervalue made by the bankrupt to his estranged spouse and two sons in the two years prior to bankruptcy.

The court found the payments made in the year immediately preceding bankruptcy to be transfers at undervalue, as the respondents failed to provide compelling corroborating evidence for an alleged oral separation agreement.

However, the court found the bankrupt was not insolvent at the time of the payments made in the second year prior to bankruptcy, thus those transfers were not set aside.

The Upper Thames River Conservation Authority (UTRCA) brought a motion for party status in an appeal under the Drainage Act regarding a petition for drainage works.

The Township of Zorra had previously declined to proceed with the drainage works because the potential outlet was subject to a court order requiring the petitioner to rehabilitate lands under the Conservation Authorities Act.

The Tribunal dismissed the UTRCA's motion, finding that while its interests might be affected if an engineer's report is eventually produced, its intervention as a party at this preliminary stage of the appeal was premature.

Libro Credit Union brought a motion to determine a priority dispute over garnished funds.

Environmental Waterproofing Inc. had garnished funds from Jokey Plastics to satisfy a judgment against Huron Tract Holdings Inc. Libro claimed priority based on a perfected security interest under the Personal Property Security Act (PPSA).

Environmental argued that Libro's claim was statute-barred and would result in unjust enrichment.

The court found that Libro's security interest was deemed continuously perfected under the PPSA and took priority over the garnishment.

The court also held that Libro's claim was not statute-barred and that there was no unjust enrichment.

The garnished funds were ordered to be paid to Libro.

The Tribunal held a Case Management Conference regarding an appeal from the respondent conservation authority's refusal to permit the construction of a pool cabana.

The parties indicated a willingness to discuss settlement but requested a hearing date in the alternative.

The Tribunal scheduled a one-day video hearing and directed the parties to file a Procedural Order and Issues List.

The plaintiff subcontractor and defendant general contractor both brought summary judgment motions in a contract dispute arising from a highway bridge construction project.

The plaintiff claimed the unpaid balance of its contract, while the defendant claimed damages for delays caused by the plaintiff's admitted negligence, which resulted in the owner assessing liquidated damages against the defendant.

The court held that the exclusion of liability clause in the plaintiff's estimate did not protect it from damages arising from its own negligence.

The court awarded judgment to both parties and applied legal set-off, resulting in a net judgment in favour of the defendant.

The Licensed Insolvency Trustee brought a motion to approve a proposal made by the bankrupt, a real estate holding company whose primary assets were 62 unserviced residential lots.

An opposing creditor argued the proposal was not properly authorized by the corporation, failed to meet statutory requirements under the Bankruptcy and Insolvency Act, and was unreasonable as it primarily benefited the other shareholders.

The court found that the proposal was authorized in substance, did not violate statutory priority or conduct rules, and was reasonable as it forecasted a significantly higher return to creditors than a liquidation in bankruptcy.

The proposal was approved and a confidential valuation supplement was ordered sealed.

Following a successful urgent motion to compel the sale of commercial real estate, the court determined the costs payable by the unsuccessful co-owner who opposed the sale.

The court considered the factors under Rule 57.01(1) and the principle of proportionality.

Costs were awarded to the moving parties in the amount of $6,000 and to the supporting respondent in the amount of $3,350, payable by the opposing respondent.

The court-appointed receiver of a non-profit housing co-operative moved for approval of an agreement of purchase and sale with a non-profit corporation.

The sale would preserve the property as affordable housing but required an increase in occupancy fees to fund necessary repairs.

A competing bidder submitted a revised offer after the bid deadline, matching the financial terms and offering a one-year freeze on occupancy fees, but without a long-term commitment to affordable housing.

Applying the Soundair test and considering the special factors for co-operative housing, the court found the receiver's process was fair and the recommended offer was not improvident.

The motion to approve the sale was granted.

The appellant appealed a summary judgment finding her personally liable to the respondent bank under section 100 of the Bankruptcy and Insolvency Act.

The motion judge found that the appellant's company and her father's bankrupt company engaged in a non-arm's length transaction for less than fair market value, and that the appellant was privy to the transaction.

The Court of Appeal dismissed the appeal, holding that the appellant, as the sole principal and controlling mind of her company, was privy to the transaction because she had knowledge of it and benefited from it.

The respondent's cross-appeal for substantial indemnity costs was also dismissed.

The appellant appealed a Small Claims Court decision that found a default clause in its standard form motor vehicle lease to be an unenforceable penalty clause.

The trial judge had awarded reduced damages to the appellant.

On appeal, the Divisional Court held that the trial judge failed to account for the appellant's expenses in retailing a motor vehicle.

The court found the default clause was a genuine pre-estimate of damages, not a penalty, and allowed the appeal, awarding the appellant the maximum Small Claims Court jurisdiction of $10,000 plus costs.

The appellant and respondent entered into a co-habitation agreement acknowledging the appellant's $61,000 net equity in their home.

After separation, the appellant obtained a consent judgment for the amount.

The respondent subsequently made an assignment in bankruptcy and was discharged.

The appellant appealed the discharge, arguing for the first time that the $61,000 was a contingent obligation for future spousal support that should survive bankruptcy under s. 178 of the Bankruptcy and Insolvency Act.

The Superior Court dismissed the appeal, finding the claim was a transparent attempt to shelter the debt from bankruptcy.

The Court of Appeal upheld the decision, confirming the agreement clearly related to the appellant's net equity in the matrimonial home.

The petitioning creditor obtained a judgment against the debtor on a promissory note and subsequently filed a petition for a receiving order based on this single debt.

The bankruptcy judge granted the petition, finding that the unpaid judgment automatically constituted special circumstances under s. 42(1)(j) of the Bankruptcy and Insolvency Act.

On appeal, the Court of Appeal held that while a judgment constitutes a continuing demand, a single judgment debt does not automatically establish an act of bankruptcy.

The court must consider all circumstances, including the size of the judgment, how long it has been outstanding, and collection efforts.

The appeal was allowed, the receiving order set aside, and the matter remitted to the bankruptcy judge.

Following a successful appeal, the appellant sought costs on a partial indemnity scale.

The respondent argued that the costs award should not exceed the $750 amount previously requested by the appellant.

The court agreed, fixing costs at $750.