Elliot Birnboim

The moving party, a secured creditor and former spouse of the bankrupt, brought a motion to remove the trustee in bankruptcy for cause under section 14.04 of the Bankruptcy and Insolvency Act.

The moving party alleged misconduct regarding the trustee's handling of proofs of claim and voting at the first meeting of creditors, as well as the trustee's attempts to sell a condominium owned by a corporation whose shares were solely owned by the bankrupt.

The court found that the trustee acted in accordance with the BIA at the meeting of creditors and that its actions to preserve the condominium were not unreasonable.

The motion to remove the trustee was dismissed.

The second respondent, Lisa, brought a motion for summary judgment seeking to dismiss the claims made against her by the first respondent, Rosa.

Rosa claimed that her former spouse, Phil, held a beneficial interest in two properties owned by Lisa, and alternatively claimed unjust enrichment.

The court found that Rosa lacked standing to advance a trust claim on behalf of her former spouse.

Furthermore, the court found no evidence of a sham trust or unjust enrichment.

The motion for summary judgment was granted and Rosa's claims against Lisa were dismissed.

The moving defendants sought to strike the plaintiff's Superior Court action as an abuse of process.

The defendants had previously commenced 67 separate Small Claims Court actions against the plaintiff regarding HVAC rental contracts.

The plaintiff subsequently commenced this Superior Court action against the defendants, seeking damages for breach of contract and defamation, and seeking to traverse or stay the Small Claims Court actions.

The court found that the Superior Court action was duplicative of the plaintiff's defences in the Small Claims Court actions and sought to circumvent the jurisdiction of the Small Claims Court.

The court concluded it would be an abuse of process to permit the Superior Court action to proceed while the Small Claims Court actions were pending, and ordered the action stayed.

Following a motion for interim child support where the respondent father was partially successful, both parties sought costs.

The respondent sought $8,000 in partial indemnity costs, while the applicant mother sought $1,500 or that each party bear their own costs due to divided success.

The court found the respondent was the successful party but reduced the quantum due to divided success and the fact that his offer to settle was not more favourable than the result.

The respondent was awarded $3,500 in costs.

The respondent father brought a motion for interim child support, including retroactive support for a period when he had primary care of the children after restricting the applicant mother's parenting time due to her impaired driving arrest.

The mother opposed the retroactive claim, arguing it would reward the father's unilateral self-help, and questioned his ongoing entitlement due to his fluctuating self-employment income.

The court granted retroactive support effective from the date the father gave formal notice of his claim, finding that the children should not be penalized for the father's conduct.

Ongoing offset support and proportionate sharing of section 7 expenses were also ordered based on the parties' 2021 stated incomes.

The moving party defendants brought a motion for an order requiring the plaintiff to provide particulars of its allegations of misrepresentation and intent, and to produce documents for inspection.

The plaintiff opposed, arguing the defendants already had the information and documents.

The court granted the motion in part, finding that the statement of claim did not satisfy the elevated level of particularity required under Rule 25.06(8) for pleadings of misrepresentation.

The court ordered the plaintiff to provide certain particulars and to produce the referenced documents for inspection.

The court dismissed the defendants' request to set a timetable for a potential motion to remove their counsel, finding it premature.

The court also granted the plaintiff's motion to validate service on one of the defendants.

The plaintiff's action initially appeared before a judge for a summary judgment motion in the Central West Region.

The judge noted that the action fit within the definition of a class action currently being case managed in the Southwest Region, and initiated a motion to transfer the action to avoid inconsistent verdicts and promote litigation economy.

The Regional Senior Justice considered the relevant rules and statutory provisions, and ordered the proceeding transferred to the Southwest Region to be case managed with the class action, maintaining the temporary stay previously ordered.

The defendant moved to strike the plaintiff's claim for damages for wrongful distraint under Rule 21.01(1)(b).

The plaintiff sought damages for relational economic loss, arguing it had a possessory or proprietary interest in restaurant equipment distrained by the defendant landlord from a previous tenant.

The court found that because the defendant had withheld consent to assign the lease to the plaintiff, the plaintiff could not establish a possessory or proprietary interest in the chattels.

The motion was allowed and the claim was dismissed without leave to amend.

The Proposal Trustee brought a motion for court approval of the amended joint proposal of Artiva Inc. and Livewell Foods Canada Inc. under s. 58 of the Bankruptcy and Insolvency Act, and a related plan of arrangement under the Canada Business Corporations Act.

The proposal was supported by the majority of creditors, but opposed by a dissenting creditor who sought an adjournment due to late delivery of proofs of claim.

The court denied the adjournment, finding the time to challenge claims for voting purposes had expired.

The court approved the proposal and arrangement, finding them viable, made in good faith, and likely to generate a superior recovery for creditors than bankruptcy.

The defendants brought a motion to strike the plaintiffs' common employer claim, strike certain allegations as scandalous, and sever the plaintiffs' wrongful dismissal claims.

The court found that the plaintiffs adequately pleaded facts supporting the common employer claim, including integrated operations and common control.

The court also held that allegations of the defendants diverting funds were relevant to the common employer analysis and not scandalous.

Finally, the court refused to sever the claims, finding that a joint trial on the common employer issue would be more efficient and avoid a multiplicity of proceedings.

The defendants' motions were dismissed.

The applicant wife brought a motion to find the respondent husband in breach of previous child support, spousal support, and costs orders, and to strike his pleadings.

The husband had accumulated over $52,000 in arrears and claimed impecuniosity due to the pandemic, despite maintaining his pre-separation lifestyle.

The court found the husband in breach of the orders but declined to immediately strike his pleadings, instead granting him a final opportunity to pay the outstanding arrears and costs by a specified date, failing which the wife could move to strike his pleadings on all non-parenting issues.

The noteholders appealed the Proposal Trustee's disallowance of their unsecured claims in the BIA proposals of several subsidiary corporations.

The Trustee had determined that the subsidiaries' guarantees were limited to an initial US$3 million advance and did not cover a subsequent US$12 million advance, and that the initial advance had been fully satisfied by a property transfer.

The Superior Court upheld the Trustee's interpretation of the guarantees but found an error in the debt allocation, ruling that US$828,000 of the guaranteed debt remained outstanding and should be recognized as an unsecured claim.

Following a trial where the plaintiff was granted specific performance and an abatement of the purchase price, the court addressed the issue of costs.

The court found that the defendant's conduct throughout the litigation and trial was egregious, including failing to respond to interlocutory steps, attempting to amend pleadings on the first day of trial, and calling witnesses to provide unpled and unpersuasive evidence.

As a result, the court awarded the plaintiff substantial indemnity costs in the amount of $210,000 inclusive of HST.

The plaintiff brought an action for specific performance of an Agreement of Purchase and Sale for vacant commercial land, with an abatement of the purchase price due to the defendant's failure to install municipal services.

The defendant's Statement of Defence and Counterclaim admitted the plaintiff's entitlement to specific performance, but at trial, the defendant attempted to argue the agreement was null and void.

The court held the defendant to its pleadings, found the plaintiff entitled to specific performance, and granted an abatement of the purchase price based on the estimated cost for the plaintiff to independently service the lands.

The applicant wife sought equalization of net family property and spousal support, alleging the respondent husband had substantial unreported cash income from his jewellery business.

The court rejected the applicant's expert evidence on hidden income and accepted the respondent's business valuation.

The court applied the presumption of resulting trust to the matrimonial home and a gifted property.

Income was imputed to both parties for support purposes.

The respondent was ordered to pay an equalization payment and ongoing spousal support, with adjustments made for previous advances and overpayments.

The parties were unable to resolve costs following a motion and cross-motion where the court stayed assessment orders pending the completion of a related negligence action.

The respondent sought full indemnity costs of $41,045.00.

The court determined that because the litigation is ongoing and the assessment is intertwined with the negligence action, the fairest result is for costs to be in the cause.

Costs for the motion and cross-motion were reserved for the trial judge.

The Applicant sought costs following a long motion for temporary child and spousal support, interim exclusive possession, and interim disbursements.

The Applicant was largely successful on the key issues of income determination and exclusive possession, while the Respondent's cross-motion was dismissed.

The court found the Respondent's offer to settle unreasonable as it failed to address his income, a key issue.

The court awarded the Applicant partial indemnity costs of $60,000, representing approximately two-thirds of her partial indemnity costs, with the remaining one-third related to parenting issues deferred to the trial judge.

The Applicant brought a motion for interim exclusive possession of the matrimonial home, and the Respondent brought a motion for an order compelling global mediation.

The court granted the Applicant's motion, finding that it was in the best interests of the children to remain in the only home they had known without disruption.

The court dismissed the Respondent's motion for global mediation, finding no agreement between the parties to globally mediate the matter.

The respondent husband brought a motion for summary judgment to dismiss the applicant wife's claims to set aside their 2009 and 2012 separation agreements, arguing there was no genuine issue for trial, the claims were an abuse of process, and the equalization claim was statute-barred.

The court dismissed the summary judgment motion, finding genuine issues for trial regarding unconscionability, duress, and inadequate financial disclosure.

The court also denied the husband's requests to bifurcate the trial and for security for costs, and ordered him to answer various undertakings and refusals from questioning.

The applicant brought a motion for temporary child and spousal support and interim disbursements.

The core issue was determining the respondent's income, as he claimed an income of $200,000 to $260,000 while the applicant argued it was over $1.4 million based on pre-tax corporate income and benefits.

The court found the respondent's Line 150 income was not the fairest determination and fixed his income at $707,500 for temporary support purposes, applying sections 16, 17, and 18 of the Federal Child Support Guidelines.

The court also ordered the respondent to provide a fair market valuation of his business interests, finding them relevant to spousal support despite a marriage contract.