Elliot Seth Birnboim

This case conference order addresses procedural and factual disputes in an ongoing insolvency proceeding involving Eureka 93 Inc. and three related companies under the BIA.

The noteholders (Dominion Capital LLC) had postponed creditor votes on proposals, seeking further investigations and information regarding asset valuations and the validity of their claims.

The debtors challenged the noteholders' status as creditors for one proposal.

The court provided directions to resolve the gridlock, ordering the Proposal Trustee to assess and value the noteholders' proofs of claim, setting deadlines for examinations of witnesses, and mandating the completion of votes on the proposals.

The court emphasized the Trustee's role in validating claims and cautioned against allowing peripheral issues to unduly complicate the summary insolvency process.

The debtors, Eureka 93 Inc. and related companies, filed a notice of intention to make a proposal under the BIA.

Two motions were heard: an unopposed motion by the debtors for an interim arrangement order under the Canada Business Corporations Act, which was granted; and an opposed motion by the noteholders (Dominion Capital LLC) seeking an order for document production relevant to an appraisal, cross-examination of Seann Poli, and examination of a representative of the first mortgagee, all in advance of the creditors' meeting to vote on the proposal.

The court dismissed the noteholders' request for examinations as premature, noting that the BIA provides mechanisms for investigation after the trustee's report or by adjourning the creditors' meeting.

However, the court ordered the debtor's appraiser to disclose and produce source documents used for the land appraisals, but declined to order disclosure for a business valuation under the BIA.

The vendor of commercial condominium units sought a declaration that the purchaser had anticipatorily breached an agreement of purchase and sale and that the vendor was entitled to retain the deposit.

The application judge found that the agreement came to an end when both parties were unable to close on the appointed date and ordered the deposit returned.

On appeal, the vendor argued that the purchaser had anticipatorily repudiated the agreement and sought to hold the purchaser's signatory personally liable as a guarantor.

The Court of Appeal dismissed the appeal, finding that although the purchaser had anticipatorily repudiated the agreement, the vendor's insistence on strict performance on the scheduled date, combined with its own failure to be ready, willing and able to close on that date, resulted in the agreement terminating.

The court also rejected the personal guarantee claim against the signatory.

The defendant, 2088556 Ontario Inc., brought a motion on the second day of trial to amend its statement of defence, seeking to withdraw key admissions and eliminate its counterclaim.

The proposed amendment introduced a new defence asserting the agreement of purchase and sale had terminated.

The court dismissed the motion, finding that the defendant failed to meet the three-part test for withdrawing admissions under Rule 51.05, particularly regarding inadvertence and the significant, non-compensable prejudice it would cause the plaintiff, M & M Homes Inc., who had relied on the original pleadings.

The defendant, 2088556 Ontario Inc., brought a second oral application for an adjournment of the trial, following the dismissal of a previous adjournment application.

The basis for the second request was a pending motion for leave to appeal the initial dismissal, which the defendant argued created uncertainty.

The court dismissed the application, affirming that the right to appeal interlocutory orders does not interrupt the course of litigation during trial.

The court emphasized that mid-trial rulings do not become final for appeal purposes until judgment is entered, and that allowing such appeals to halt proceedings would lead to scheduling chaos.

The defendant, 2088556 Ontario Inc., brought a motion for an adjournment of a scheduled trial.

The court dismissed the application, citing the defendant's history of delay, non-compliance with court orders, and lack of diligence in preparing for trial, including failing to retain counsel or an expert.

The court found that granting an adjournment would cause significant prejudice to the plaintiff, M & M Homes Inc., whose ability to recover costs was already in doubt due to the defendant's questionable property transfers.

The applicant wife sought leave to amend her pleadings for a second time to include a constructive trust claim on the matrimonial home.

This motion was brought late in the litigation process, after the respondent husband had already agreed not to rely on separation agreements for trial.

The court dismissed the applicant's motion, finding that allowing the amendment would cause significant, non-compensable prejudice to the respondent due to the late stage of litigation, the need for additional facts and disclosure, and the inevitable delay of the trial.

The court emphasized the importance of fair notice and diligent pursuit of claims under the Family Law Rules.

This is a costs endorsement following a motion and cross-motion where the court stayed assessment orders pending a negligence action.

The applicant argued the granted relief was not sought, but the court clarified that a stay was requested by the respondent and affirmed its inherent power to stay proceedings under s. 106 of the Courts of Justice Act.

The court determined that costs for the interlocutory motions should be "in the cause" and reserved for the trial judge, citing the intertwined nature of the issues with the negligence action and the many possible outcomes.

The plaintiffs sued Queens Walk Inc. and several individual defendants for breach of contract, inducing breach of contract, deceit, misrepresentation, and negligence related to a commercial condominium purchase agreement.

The individual defendants moved to strike all claims against them, and Queens Walk Inc. moved to strike the punitive damages claim.

The court granted the individual defendants' motion to strike all claims without leave to amend, finding no reasonable cause of action for personal liability.

The court also granted Queens Walk Inc.'s motion to strike the punitive damages claim, but with leave to amend, as the plaintiffs failed to plead sufficient material facts to support it.

The Applicant law firm sought assessment of outstanding accounts.

The Respondent client brought a cross-motion to stay the assessment proceedings pending the outcome of a negligence action against the law firm.

The court granted the stay, finding that the negligence action raised serious allegations, involved significantly higher damages, and its outcome would likely determine the assessment, thus avoiding multiplicity of proceedings and conflicting findings.

Loan Away Inc. sought an interlocutory injunction against Western Life Assurance Company to compel payments and prevent termination of insurance policies, and also sought to amend its statement of claim to add IWS Creditor Group Inc. and consolidate arbitrations.

Western Life Assurance Company brought a cross-motion to stay the action based on an arbitration clause.

The court dismissed Loan Away's request for an interlocutory injunction due to lack of an undertaking as to damages and failure to meet the strong prima facie case and irreparable harm tests for a mandatory injunction.

The court granted Western's motion to stay the action and refer the issues to arbitration, including the arbitrator's jurisdiction over a permanent injunction.

Loan Away's request to consolidate arbitrations was denied due to lack of consent from all parties, and its motion to add IWS as a party was also denied as no tenable cause of action was pleaded against IWS.

The respondents were successful on all issues in the underlying application, which included findings that a party did not anticipatorily repudiate an agreement of purchase and sale, the agreement ended due to both parties' inability to close, and a deposit was to be returned, with no personal liability found for an individual respondent.

The respondents sought costs on a partial indemnity basis.

The applicant conceded entitlement to costs in the usual course but argued against it due to both parties' inability to close and the respondents' conduct.

The court rejected the applicant's arguments, finding no misconduct warranting withholding costs from the successful parties.

Considering the moderate complexity, importance of issues, and reasonableness of counsel's rates, the court fixed the respondents' costs at $35,000.00, inclusive of disbursements and HST, to be paid by the applicant within 30 days.

The appellant, an accounting firm's client, appealed a judgment in favour of Collins Barrow Toronto LLP for unpaid audit services invoices.

The appellant argued the application should have been converted to an action based on allegations of negligence in service provision and that certain invoices were barred by the two-year limitation period under the Limitations Act, 2002.

The Court of Appeal upheld the application judge's decision, finding no error in determining the matter under the Rules of Civil Procedure based on contract interpretation, rejecting the conversion argument due to insufficient evidence of negligence and damages, and finding the limitation period analysis sound based on the express terms of the engagement letters.

The court heard two motions: the defendants' motion to discharge a Certificate of Pending Litigation (CPL) and the plaintiff's cross-motion to compel answers on cross-examination.

The plaintiff's motion was dismissed as overly broad.

The defendants' motion to discharge the CPL was granted.

The court found that the plaintiff failed to make full and frank disclosure on its ex parte CPL application and that there was no triable issue regarding the plaintiff's claim to an interest in the land.

The Letter of Intent and subsequent amending agreements were deemed unenforceable as they lacked essential terms, constituting "agreements to agree."

The court determined ongoing and retroactive child and spousal support following an earlier judgment on property and income issues.

Key issues included the appropriate income for retroactive calculations, the duration and quantum of ongoing spousal support, and whether retroactive spousal support should be adjusted for tax consequences due to non-deductibility.

The court fixed ongoing spousal support at the lower end of the mid-range, ordered it indefinitely subject to review, and applied a 30% reduction to retroactive spousal support for non-deductibility.

The applicant, an auditing firm, sought judgment against the respondents for unpaid invoices via an application.

The respondents disputed the fees, alleging a promised discount and challenging the contractual interest rate.

The court considered whether the matter could be resolved by application or required conversion to an action.

Finding material facts in dispute regarding the alleged discount and the need for pleadings to clarify legal positions, the court concluded that the application was not a "clearest of cases" suitable for resolution on a paper record.

The application was therefore converted into an action, and a trial was directed, with a timetable for the exchange of pleadings.

The applicant, Tom, sought an order for the parties' 14-year-old child, Scarlet, to live with him in the United Kingdom and attend school there.

The respondent, Marie, opposed this motion and brought a cross-motion for interim child and spousal support, and s. 7 expenses.

The court dismissed Tom's motion, finding it was not in Scarlet's best interests to be uprooted from her established home and school in Toronto.

The court granted Marie's request for interim child and spousal support, and s. 7 expenses, based on the parties' 2016 incomes.

Marie was granted interim custody with final decision-making authority.

The father sought leave to appeal a decision that dismissed his motion to change an access schedule and granted temporary sole custody to the mother.

The original decision required a "material change in circumstances" to vary a "temporary, without prejudice" consent order.

The court granted leave to appeal on the access issue, finding good reason to doubt the correctness of applying the material change test to such orders, and that this issue was of public importance due to conflicting judicial opinions.

Leave to appeal on the custody issue was denied as it was fact-specific and did not raise questions of public importance.

No costs were awarded due to divided success.

Following a trial regarding variation of child and spousal support, both parties sought substantial costs awards.

Each argued they were the more successful party after the court ordered a modest reduction in support based on imputed income.

The court found neither party was clearly more successful and criticized both sides for conducting the litigation in a grossly disproportionate manner relative to the financial issues in dispute.

The court also considered the potential impact of a significant costs award on the custodial parent’s ability to support the child.

In the circumstances, the court concluded that fairness and proportionality required that each party bear their own costs.

A dispute arose between owners of adjacent apartment buildings concerning access to a shared outdoor swimming pool and a garbage disposal facility located on the defendants’ property.

The plaintiff asserted that it held easement rights permitting continued use of the facilities based on the original design and joint development of the properties in the late 1960s.

The defendants argued the plaintiff had only a revocable licence and counterclaimed for trespass arising from construction activities on their land.

The court held that the evidence established an implied easement arising from the common intention of the original developers when the lands were severed and developed as a single complex.

The plaintiff therefore retained enforceable easement rights over the defendants’ land for both facilities, and the defendants’ trespass claim failed because the impugned acts were committed by independent contractors without the plaintiff’s control.