D. M. Brown

Judgment creditors brought an application seeking approval of a proposed agreement of purchase and sale for a commercial property or, alternatively, the appointment of a receiver in aid of execution to facilitate enforcement of a monetary judgment.

The court reviewed the governing principles for appointing an equitable receiver, including the requirement for special circumstances where traditional execution mechanisms would be ineffective or impractical.

The evidence demonstrated that the judgment debtors failed to comply with settlement timelines requiring sale or refinancing of the property and did not adequately cooperate with the sales process.

Given delays, conflicting interests among stakeholders, and concerns that the existing listing process did not satisfy the Soundair principles for court-supervised asset sales, the court concluded that a receiver-controlled sales process was necessary.

A receiver was therefore appointed with authority to market and sell the property, and partial indemnity costs were awarded to the applicants.

The applicant sought directions regarding a creditor claims and distribution process under the Bulk Sales Act for residual net sales proceeds of $5,458.91.

The motion was unopposed.

The court approved the order but expressed significant discomfort with the applicant's use of the Bulk Sales Act, noting that the statute is designed to protect creditors 'in full', whereas in this case, trade creditors would receive virtually nothing after professional fees and priority claims were paid.

The court suggested that the Bulk Sales Act should be limited to situations where creditors will be paid in full, with insolvency legislation used otherwise.

In an action brought under s. 38 of the Bankruptcy and Insolvency Act seeking to recover alleged debts and set aside transactions under ss. 95 and 96, the plaintiff brought a refusals motion following the examination for discovery of a former chairman of the bankrupt corporation.

The court considered several refusals relating to questions about payments received from the bankrupt and communications with other directors and related parties.

The court held the questions were relevant to pleaded issues, including the defendant’s receipt of payments and whether certain parties were dealing at arm’s length with the debtor.

The defendant was ordered to re-attend for examination to answer the specified questions and any arising from those answers.

Costs of the motion were fixed in favour of the plaintiff.

During a Commercial List case management conference in a complex multi‑party securities and investment dispute, the court issued procedural directions governing ongoing litigation steps.

The court addressed the potential settlement motion involving certain defendants, confirmed the status of examinations for discovery, and ordered timelines for answering undertakings.

The judge provided structured options for handling refusals motions and warned that costs may be assessed per refusal to discourage unnecessary motions.

Additional directions were given regarding the timing of expert reports, a possible future summary judgment motion, and scheduling of the next case management conference.

In a Commercial List action approaching trial, the court addressed procedural steps necessary to complete trial preparation, including refusals arising from examinations for discovery.

The judge dispensed with a formal pre‑trial conference due to credibility issues and low settlement prospects.

Directions were provided regarding amendment of the statement of claim, timelines for expert reports, and procedures for resolving discovery refusals.

The court offered structured options for handling refusals motions, including a cost framework calculated per refusal to discourage unnecessary motions and confine disputes to material issues.

The appellant appealed a Registrar's order that suspended the bankrupt's discharge for one day without imposing any financial conditions, despite her significant income tax debt.

The Superior Court of Justice found that the Registrar erred in law by questioning the validity of the Crown's proven tax claim, which had not been disallowed by the Trustee.

The appeal was allowed, and the bankrupt was ordered to pay $8,000 as a condition of her discharge, balancing the policy objectives of the Bankruptcy and Insolvency Act with her current financial and family circumstances.

Investors sought the appointment of an investigative receiver over the defendant’s assets after transferring $3 million for foreign currency trading and alleging misappropriation and fraud when funds were not returned.

The defendant opposed the request and moved to set aside a default judgment previously granted against him.

The court held that although the defendant had not fully explained what happened to all funds during examinations and productions, the extraordinary remedy of appointing an investigative receiver before trial was not justified.

Existing discovery mechanisms and potential procedural sanctions were sufficient to address any non‑compliance.

The default judgment was set aside on consent, and the court directed the action to proceed to an expedited hybrid trial to determine liability and the disposition of the invested funds.

A bankrupt applied for an absolute discharge nearly nine years after being adjudged bankrupt under the Bankruptcy and Insolvency Act.

Creditors and the trustee opposed an unconditional discharge, alleging the bankrupt failed to satisfactorily account for significant pre‑bankruptcy assets and had not fully disclosed financial information.

The court found the bankrupt had not adequately explained the disappearance of substantial assets including cash, RRSPs, securities, and real property, engaging s. 173(1)(d) of the Bankruptcy and Insolvency Act.

The court also found the bankrupt had remained voluntarily unemployed while living comfortably through financial support from family.

While the court concluded the bankruptcy itself arose from circumstances for which the bankrupt was not justly responsible, the failures of disclosure and conduct during bankruptcy warranted a conditional discharge requiring payment to the estate.

Following extensive trial reasons in complex bankruptcy and fraud proceedings, the court issued a second case conference memorandum addressing outstanding procedural and remedial issues.

The court directed that issues concerning damages recoverable by a creditor, tracing relief, and costs orders against certain defendants be scheduled before the associate chief justice who presided over related contempt proceedings.

The memorandum also clarified that a previously ordered constructive trust over the bankrupt’s property should be incorporated into the final order without further submissions.

The court established a timetable for written submissions on post‑judgment interest relating to an earlier judgment and on the terms of a Mareva injunction in aid of execution.

The decision functioned primarily as case management to finalize remaining issues in the litigation.

The case management judge issued directions regarding the scheduling and sequencing of outstanding issues in a complex bankruptcy proceeding.

The court ordered written submissions for issues concerning the disclosure of the Trustee's report and the release of funds, while deferring other matters, including examinations and discharge hearings, until the trial judge releases supplementary reasons and determines contempt sentencing.

The plaintiff, a court-appointed receiver, brought an action to enforce a 2004 Settlement Agreement against the defendants.

The settlement was nominally entered into by a numbered company (129) controlled by the late Sylvia Hyde's husband, Edwin, and later by Sylvia herself.

The plaintiff sought to bind Sylvia's estate and two other companies she controlled (Glen Grove and Spendthrift) to the settlement's obligations, which included providing a mortgage and guarantee.

The court found that Sylvia had used her common control over the three corporations to secure a court-approved benefit from the settlement and could not subsequently use their separate legal personalities to avoid the obligations.

The action was allowed against Glen Grove and Spendthrift, but dismissed against Sylvia's estate as there was no basis to pierce the corporate veil.

A creditor brought a motion under s. 38 of the Bankruptcy and Insolvency Act seeking authorization to continue foreign enforcement proceedings after the trustee refused to proceed.

The proceedings in Taiwan sought recognition and enforcement of Ontario contempt costs orders against property owned by a defendant abroad.

The trustee opposed the motion, arguing the claims lacked merit, raised potential set‑off issues, and conflicted with settlements and releases.

The court held the creditor met the threshold under s. 38 because the costs orders remained outstanding and the proposed claim was not spurious.

Leave was granted permitting the creditor to continue the Taiwan proceeding at its own expense with assignment of the trustee’s interest for that limited purpose.

In a complex fraud action under case management, the parties sought different variations to a previously ordered litigation timetable.

The defendants proposed proceeding with limited examinations for discovery while postponing key examinations until resolution of an appeal concerning access to funds for legal defence.

The plaintiff argued that all discoveries should be delayed to avoid duplicative preparation and increased costs.

The court held that further discovery scheduling was impractical while a pending Divisional Court appeal would determine whether certain defendants could fund their defence.

The judge declined to impose additional discovery deadlines and directed the parties to return for a further case conference within three weeks after the appeal decision, at which point a peremptory trial date might be set.

In a commercial dispute concerning an inventory liquidation contract, the court issued case management directions after the plaintiff failed to file its pre-trial conference memorandum in time to permit a productive conference.

The court scheduled a further pre-trial conference and expressed concern that the parties’ estimate of an eight to ten day trial was disproportionate given that less than $500,000 was at stake.

The judge suggested that the parties consider a hybrid trial format and ordered the plaintiff to deliver answers to outstanding undertakings within 30 days.

With respect to refusals arising from examinations for discovery, the court offered the defendants two options: either refrain from bringing a refusals motion with the understanding that issues could be addressed at trial, or bring a motion in writing subject to potential per‑refusal cost consequences.

The directions were intended to streamline the proceeding and encourage proportional litigation conduct.

At a Commercial List case conference involving two related corporate disputes, the court addressed extensive procedural delays, voluminous filings, and lack of cooperation between counsel.

The proceedings involved claims relating to loan agreements, alleged rights to corporate shares, fiduciary duty breaches, and conspiracy allegations arising from financing arrangements and subsequent litigation.

The court declined to permit consolidation or bifurcation but ordered that both actions be heard together or sequentially.

Emphasizing proportionality under Rule 1.04 of the Rules of Civil Procedure, the court directed the parties to disclose damages calculations, draft opening statements, and detailed historical and projected litigation costs.

The directions aimed to enable meaningful case management and ensure efficient use of judicial resources.

The court-appointed receiver brought a motion to approve a private agreement of purchase and sale for a residential property and to halt a previously court-approved auction scheduled to take place in four days.

The second mortgagee opposed the motion, arguing the auction should proceed.

The court dismissed the motion, applying the Soundair principles and finding that accepting a pre-emptive offer and halting the auction at this late stage would damage the integrity of the sales process.

The applicant, a secured creditor owed approximately $36 million, applied for the appointment of a receiver over the debtors' four retirement residences and for the approval of a pre-packaged credit bid sale.

After a prolonged but unsuccessful marketing process, the applicant proposed to acquire the assets for an amount equivalent to the indebtedness.

The court found the appointment of a receiver necessary to maintain the residences as going concerns and approved the sale, finding the credit bid reasonable based on independent appraisals.

The Attorney General of Canada moved to vary a Mareva injunction obtained by victims of terrorism seeking to enforce a U.S. judgment against Iran.

The motion concerned whether Iranian diplomatic property in Canada could remain subject to the injunction.

The court held that the plaintiffs had failed to make full and frank disclosure when obtaining the original ex parte orders, including failing to disclose unsuccessful attempts to attach similar Iranian diplomatic property in the United States and mischaracterizing relevant Canadian authority concerning the Vienna Convention and Crown prerogative.

Given the material nondisclosure and the principles of diplomatic immunity under the State Immunity Act and Foreign Missions and International Organizations Act, the court varied the Mareva order to exclude assets certified by the Minister of Foreign Affairs as diplomatic property.

The defendant bank moved to dismiss an action alleging fraudulent and negligent misrepresentation on the basis that the plaintiff breached the deemed undertaking rule under Rule 30.1 of the Rules of Civil Procedure by using documentary productions obtained in related litigation to commence a separate claim.

The court held that the plaintiff had indeed used documents obtained through discovery in the earlier proceeding to inform and support its decision to initiate the new action, thereby breaching the deemed undertaking rule.

However, considering the substantial overlap in parties, issues, and factual matrix between the two proceedings, and the minimal prejudice to the producing party, the court granted retroactive relief from the rule.

The court dismissed the bank’s motion to dismiss or stay the action but allowed the plaintiff limited permission to use the discovery materials in the new action.

Costs were awarded against the plaintiff due to its failure to seek leave before using the materials and its lack of candour in case management proceedings.

Following a motion to strike the corporate defendants’ statement of defence for failure to retain counsel, the defendants retained counsel shortly before the hearing and the motion was not argued.

The plaintiff sought costs thrown away for preparation of the motion.

The court held that bringing the motion was reasonable in complex fraud litigation where corporate defendants had delayed appointing counsel despite ample time.

Applying Rule 57 factors and the principles governing reasonable costs, the court awarded partial indemnity costs for fees and reduced disbursements.

Payment of the costs award was staggered due to the circumstances of the corporate defendants.