Eric Dwyer

The Licensed Insolvency Trustee sought court approval of a Division I consumer proposal under the Bankruptcy and Insolvency Act.

The debtor's assets were less than fifty cents on the dollar of his liabilities, engaging s. 173(1)(a) of the BIA.

The court found that the debtor's insolvency arose from his divorce and the failure of his brewing company due to the COVID-19 pandemic, circumstances for which he could not justly be held responsible.

The proposal met all requirements of s. 59(2), was unanimously approved by creditors, and provided better recovery than bankruptcy.

The court approved the proposal, finding no culpability or blameworthiness warranting a s. 173(a) finding.

The court considered an application by Place Laurier Limited for leave to appeal an arbitration award regarding the fair market value of land subject to a ground lease.

The applicant argued the arbitrator failed to apply the correct legal test for determining the highest and best use of the land and did not provide sufficient reasons for the valuation.

The court found that while some issues raised extricable questions of law, the arbitrator had not erred in law and provided sufficient reasons.

The appeal was dismissed.

The Superior Court of Justice dismissed a civil action brought by Stephen Massey, purportedly also on behalf of his two daughters (J.M. and C.M.), against 31 defendants including the Children's Aid Society, the Office of the Children's Lawyer, various lawyers, and his ex-wife.

The claim, a collateral attack on prior family law proceedings that concluded in 2016, alleged child abuse and professional misconduct.

The court dismissed the action against Mr. Massey with prejudice due to his failure to attend case conferences, non-compliance with court orders, and the action being frivolous, vexatious, and an abuse of process, largely barred by the limitation period.

The claim on behalf of J.M. and C.M. was dismissed without prejudice, acknowledging potential discoverability issues and the uncertainty of their authorization.

The court imposed a leave requirement for Mr. Massey to initiate future proceedings against these defendants and awarded costs against him.

The applicant tenant brought a motion for interim relief from forfeiture after the respondent landlord purported to terminate a commercial lease for late payment of rent and other breaches.

The tenant's business, a restaurant, had recently opened following substantial leasehold improvements.

Despite chronic late rent payments and a shareholder dispute within the tenant corporation, the court granted interim relief from forfeiture, noting the severe impact of termination and the tenant's commitment to keep the lease in good standing.

The relief was granted subject to strict conditions, including the payment of $12,000 to the landlord for expenses and costs.

On a motion to lift a stay of proceedings under the Bankruptcy and Insolvency Act, the court identified significant discrepancies between the bankrupt's Net Worth Statement and Statement of Affairs, including an undisclosed life insurance policy, retirement account, and business interest.

The court also noted a questionable rent increase involving a landlord connected to the bankrupt's father.

The court directed the Licensed Insolvency Trustee to examine the bankrupt under oath regarding these matters and report back within 60 days.

This motion was brought by creditors (Moving Parties) to lift the automatic stay of proceedings against a discharged bankrupt (Defendant) under s. 69.4 of the Bankruptcy and Insolvency Act (BIA).

The Moving Parties alleged that the bankrupt obtained loans through fraudulent misrepresentation, a debt not released by discharge under s. 178(1)(e) BIA.

The court found that the bankrupt made false representations about his company's financial health prior to receiving funds, which the creditors relied upon.

The court determined it was equitable to lift the stay, allowing the creditors to continue their civil action against the bankrupt.

The plaintiff, Digital Business Systems Inc. (DBS), sought costs on a substantial indemnity scale following the settlement of its motion for injunctive relief against the defendants, Documents XMA Inc., Jean-Francois Roberge, and Cynthia Martin.

The motion concerned alleged breaches of a mutual non-solicitation agreement and misuse of confidential information after a former DBS employee joined XMA.

The court found DBS had a strong prima facie case, the defendants' pre-litigation conduct was egregious, and DBS achieved significant success on the substantive issues.

The court awarded DBS costs on a substantial indemnity scale, fixed at $28,395, payable forthwith.

The Trustee in bankruptcy brought a motion to enforce a settlement agreement with the bankrupt's former spouse, Sonya Tessier, regarding the proceeds from the sale of a jointly owned property.

The Trustee had been discharged but had registered its interest on the property's title prior to discharge.

Ms. Tessier argued the Trustee lacked standing without reappointment and that the settlement should not be enforced due to her lawyer's alleged lack of instructions and resulting prejudice.

The court reappointed the Trustee nunc pro tunc, finding it had the inherent authority to do so to safeguard creditors' interests.

The court enforced the settlement agreement, determining it was binding and that Ms. Tessier failed to demonstrate compelling circumstances to justify setting it aside, rejecting her arguments regarding the "fresh start philosophy" and alleged prejudice.

This decision addresses a motion and cross-motion for production of documents in a personal injury case.

The plaintiff sought production of defence medical expert files from Soma Medical Assessments and further documentation related to the defendants' surveillance evidence.

The defendants sought production of documents from the plaintiff's recently settled disability claim against Great West Life.

The court refused the request for Soma files, deeming it a fishing expedition and subject to litigation privilege.

However, it ordered the production of private investigator information, waiving litigation privilege due to significant privacy intrusion and public policy considerations.

The court also ordered the production of documents from the prior disability action, waiving the deemed undertaking rule given the similarity of issues and the insurer's non-opposition.

Costs were made costs in the cause.

The plaintiff franchisor sought an interlocutory injunction to enforce restrictive covenants against the defendant franchisee, who had purported to terminate the franchise agreement and opened a competing fitness studio.

The dispute arose after the franchisor implemented a direct-to-consumer online fitness program during the COVID-19 pandemic, which the franchisee alleged constituted a fundamental breach.

The court dismissed the motion, finding that while there was a serious issue to be tried regarding fundamental breach, the franchisor failed to establish a strong prima facie case, and the balance of convenience did not favour granting the injunction given the imminent expiration of the agreement and the potential loss of livelihood for the franchisee's employees.