Elliot Seth Birnboim

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.

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 purchaser obtained an order for specific performance, a vesting order, and substantial indemnity costs after a failed real estate transaction.

The vendor appealed and obtained a certificate of stay for the costs order.

The purchaser moved to set aside the certificate of stay, arguing the costs were to be collected via an abatement, not a direct payment.

The vendor moved to stay the vesting order pending appeal.

The Court of Appeal dismissed the purchaser's motion, finding the costs order was automatically stayed under r. 63.01 as an order for the payment of money.

The Court granted the vendor's motion to stay the vesting order, finding a risk of irreparable harm if the property was transferred pending appeal, and ordered the appeal expedited.

The plaintiff brought motions to discontinue the action against an individual defendant, to certify the action as a class proceeding, and for partial summary judgment.

The court approved the discontinuance as it did not prejudice the class and secured the corporate defendant's consent to certification.

The court certified the class action against the remaining defendants, finding that the pleadings disclosed causes of action under the Consumer Protection Act and Competition Act, and that a class proceeding was the preferable procedure.

However, the court dismissed the plaintiff's motion for partial summary judgment, concluding that the nature of the relationship between the defendants and the interpretation of the statutory provisions raised genuine issues requiring a full trial.

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 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 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 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.

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 defendant, Mary Fatima DeMelo, brought a motion seeking disbursement of $488,348.75 from the proceeds of her former matrimonial home's sale and a seven-day suspension of a writ of possession held by CIBC Mortgages Inc. She argued that CIBC acted in bad faith by holding proceeds from one property (Binns) while also having security on another (Greenvalley), and by not paying funds into court as per a freezing order.

CIBC contended it was entitled to execute its writ against any of the defendant's assets and was not obligated to withdraw its writ or take a chance on future repayment from the Greenvalley property sale, which had deficiencies.

The court dismissed the defendant's motion, finding that CIBC was entitled to file and execute its writ and that holding the sale proceeds did not constitute bad faith, as CIBC was a secured creditor not required to take a chance on future repayment.

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 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.