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Bankruptcy dividend held off-reserve by Trustee is not protected from seizure by Indian Act.
Multiple motions were brought in a long-running dispute over an on-reserve business partnership between a father and son.
The father sought his share of a bankruptcy dividend from his son's estate, arguing it was protected from seizure by his former lawyer's solicitor's lien and a receivership order under s. 89 of the Indian Act.
The court held that the bankruptcy dividend, held off-reserve by the Trustee, was not protected by s. 89.
The court confirmed the validity of the former lawyer's solicitor's lien, finding it attached to the father's off-reserve assets, including the dividend once transferred to the Receiver.
The court approved the Receiver's fees, which took priority over the solicitor's lien, and authorized the transfer of the dividend to the Receiver for distribution.
The court granted partial summary judgment enforcing an exoneration clause, ordering the indemnitors to advance $3,990,000 to the surety.
The court granted partial summary judgment in favour of Western Surety Company on its claim for exoneration against the defendants.
The decision reviews the legal principles underpinning exoneration clauses in surety indemnity agreements, the appropriateness of partial summary judgment, and the application of these principles to the facts.
The court found that the exoneration claim was discrete and severable from indemnification claims, that there was no genuine issue requiring a trial, and that the defendants were jointly and severally liable to exonerate Western in the amount of $3,990,000.
Full indemnity costs of $2.19 million awarded to successful defendant based on contractual provision.
Following the dismissal of the plaintiffs' action at trial, the defendant sought costs on a full indemnity scale pursuant to a contractual provision in the parties' agreement.
The plaintiffs argued that the provision did not apply to declaratory relief and did not explicitly state 'full indemnity'.
The court held that the contractual language allowing recovery of 'all reasonable costs' entitled the defendant to full indemnity costs.
However, the court declined to award costs for the defendant's U.S. counsel, finding their involvement was not reasonably required for the Ontario litigation.
The court awarded the defendant its Canadian counsel's fees and disbursements in full, totaling $2,192,609.12, finding the amount reasonable and proportionate given the high stakes of the commercial dispute.
The court dismissed an application to set aside an arbitral award, finding the process fair and the reasons adequate despite incorporating the successful party's submissions.
The applicant sought to set aside an arbitral award and a costs award, and for leave to appeal, under sections 45 and 46(1)6 of the Arbitration Act, 1991.
The application alleged procedural unfairness, exceeding jurisdiction by the arbitrator, and insufficient/non-independent reasons.
The court dismissed the application, finding that the arbitration process was fair, the parties had ample opportunity to present their cases, the arbitrator did not exceed jurisdiction by not conducting a mediation (as the parties had moved to adjudication), and the reasons for the award were adequate and independent.
