Fred Tayar

Appeal and cross-appeal arising from a bankruptcy trustee's proof of claim, the chair's rulings at the first meeting of creditors, and subsequent voting at a reconvened second meeting.

The court held that the chair erred in law by entirely preventing a creditor with an objected and allegedly non-arm's length claim from voting, because ss. 108(3) and 109(6) of the Bankruptcy and Insolvency Act require the vote to be taken subject to later invalidation or redetermination.

The court further held that filing the appeal did not automatically stay the effect of the vote or prohibit a second meeting under s. 115.1, but found that the second meeting nevertheless should not have been convened while the first appeal was pending.

The appeal was not moot, the second meeting resolutions were not nullities, and the court confirmed the uncontested resolutions nunc pro tunc while redetermining the contested vote to appoint the appellant trustee's representative as an inspector.

The Interim Receiver, TDB Restructuring Limited, sought court approval to commence a marketing and sales process for the real properties of Thomas Dylan Suitor, who had been adjudged bankrupt.

The court dismissed the motion, holding that the powers of an interim receiver under section 46 of the Bankruptcy and Insolvency Act are limited to preservation and protection of assets, and do not extend to a full marketing and sale process unless the property is perishable or likely to depreciate rapidly in value.

The court found insufficient evidence that the properties met this threshold and noted that a full receivership under section 243 of the BIA would be required for such powers.

The applicant, a first mortgagee, sought the appointment of a receiver over a property due to mortgage default and unpaid realty taxes.

The registered owner consented, but a respondent claiming fraudulent transfer of title opposed the application and sought an adjournment to investigate.

The court dismissed the adjournment request, finding that the applicant's mortgage was valid under the Land Titles Act, as the mortgagor was the registered owner at the time, and the applicant was an innocent party entitled to rely on the register.

The court granted the application, finding it just and convenient to appoint a receiver given the ongoing default, the Mareva injunction on the mortgagor's assets, and the potential insufficiency of property value to cover debts.

The plaintiff, Theodore Jiujias, brought an urgent, ex parte motion for leave to issue a Certificate of Pending Litigation (CPL) against a property owned by defendants Michael Chun Ho Lau and Aaron Storr.

Jiujias, a creditor of Lau, alleged that Lau fraudulently conveyed his interest in the property to his spouse, Storr, and a company controlled by Storr (ASML Holdings Inc.), for nominal consideration, shortly after being served with a statement of claim in a prior mortgage action where Lau was in default of over $1.1 million.

The property was subsequently mortgaged for its market value and listed for sale.

The court applied the three-part Grefford test, finding a high probability of success in the underlying action, sufficient evidence of intent to defeat or delay creditors (noting numerous badges of fraud), and that the balance of convenience favored granting the CPL to prevent dissipation of equity.

The motion was granted.

The bankrupt, a former real estate developer, sought an absolute discharge from bankruptcy.

The discharge was opposed by the Trustee, the Canada Revenue Agency, and several creditors, who argued that the bankrupt's assets were less than 50 cents on the dollar for reasons he could be held responsible for, and that he failed to perform his duties under the Bankruptcy and Insolvency Act.

The court found that the bankrupt had engaged in an asset protection strategy, incurred significant personal liabilities without the means to pay them, and failed to disclose his true post-bankruptcy lifestyle and use of a corporate credit card.

The court declined to refuse the discharge entirely but imposed a substantial conditional order requiring the bankrupt to pay $960,000 and fulfill various outstanding duties.

This motion addressed three issues: the addition of parties to a trust dispute, the appropriate method of service for parties residing in Israel under the Hague Service Convention, and costs.

The court ordered the addition of the issue of Gershon Kaplan and Adina Gordon as party defendants, including the Children's Lawyer for minor/unascertained beneficiaries, finding their presence necessary for effective adjudication.

Regarding service abroad, the court held that Article 10(a) of the Hague Service Convention authorizes service of an originating process by postal channels, rejecting the argument that "send" does not include "serve" and clarifying that prior case law suggesting otherwise (e.g., Wilson v. Servier Canada Inc.) is no longer good law.

The court directed service on the added parties in Israel by a method authorized by Article 10, including registered mail.

No costs were awarded due to the plaintiff's non-opposition on the first issue and the novelty of the second issue.

The Bankrupt sought to expunge or reduce a creditor's claim, and the motion was entirely successful.

This endorsement addresses the costs of that expungement motion.

The court found the creditor's conduct in opposing the motion to be reprehensible, scandalous, or outrageous, having taken inconsistent legal and factual positions across various proceedings.

Substantial indemnity costs were awarded to the bankrupt due to the creditor's conduct and the complexity and importance of the issues.

The bankrupt brought a motion to expunge or reduce a proof of claim filed by a creditor in the amount of $5,994,500, which the bankruptcy trustee had compromised and accepted at $2,580,000.

The claim was based on a promissory note related to a share purchase agreement.

The bankrupt argued that a subsequent oral governing agreement superseded the note, making it unenforceable until the bankrupt was repaid his investments, which never occurred.

The court found the creditor's evidence lacked credibility, noting his prior criminal convictions for fraud and his reliance on the governing agreement to obtain a lighter sentence in US criminal proceedings.

The court concluded the claim was not legitimate and reduced it to an $85,000 costs award.

The moving parties sought to enforce a settlement agreement entered into by three brothers to separate their financial interests in a family excavation and construction business.

One brother opposed the motion, arguing the agreement was merely an 'agreement to agree' and lacked essential terms.

The court found that the parties had reached a binding settlement on all essential terms, evidenced by the clear language of the agreement, their subsequent conduct, and partial performance.

The court declined to exercise its discretion to refuse enforcement, noting the strong public policy favouring settlements and the lack of any unconscionability or prejudice.

The motion was granted, and the settlement was ordered to be implemented with the assistance of an associate judge if necessary.

The bankrupt brought a motion to compel a lawyer representing certain creditors to answer questions refused during a cross-examination on his affidavit.

The bankrupt alleged that the lawyer and his client obtained confidential information about the bankrupt's assets through unauthorized access to his email.

The lawyer refused to disclose the identity of his client or the client's source, claiming solicitor-client privilege.

The court dismissed the motion, finding that the identity of the client and the communications were presumptively privileged, the privilege had not been waived, and compelling the answers would violate the fairness and proportionality principles, especially given the bankrupt's failure to disclose an exculpatory expert report.

The applicants sought to appoint a receiver over a commercial property due to an alleged default on a third mortgage.

The respondents brought a counter-application arguing the mortgage was void or unenforceable due to material alterations, lack of independent legal advice, and unconscionability.

The court found the mortgage valid and enforceable, rejecting the respondents' arguments.

However, the court disallowed several fees claimed by the applicants, determining the actual amount secured by the mortgage.

Finding sufficient equity in the property to satisfy the debt, the court dismissed the application to appoint a receiver, without prejudice to future applications if the debt remains unpaid.

Following a successful summary judgment motion where the plaintiffs were awarded $358,900, the court determined the scale and quantum of costs.

The plaintiffs sought costs on a partial and substantial indemnity scale based on an unrevoked Rule 49 settlement offer.

The court found the offer triggered Rule 49 consequences and awarded the plaintiffs $90,000 in fees plus disbursements and taxes, applying principles of indemnity and proportionality.

The plaintiffs moved for summary judgment on their claim arising from the defendants' breach of an agreement to purchase their waterfront property.

The property was re-sold at a lower price, and the plaintiffs sought damages for the price differential and increased commission costs.

The defendants disputed the damages and argued the plaintiffs failed to mitigate their losses.

The court determined the proper assessment date for damages was the date of the new agreement of purchase and sale (APS), and found the re-sale price to be prima facie evidence of market value.

The court concluded that the defendants failed to meet their onus to prove the plaintiffs did not take reasonable steps to mitigate their damages.

Summary judgment was granted in favour of the plaintiffs for $358,900.00, and the defendants' counterclaim was dismissed.

The defendants sought leave to file further expert evidence on the issue of mitigation after a summary judgment motion had been heard and was under reserve.

The court denied the request, finding that the defendants failed to demonstrate due diligence in obtaining the evidence earlier and that the proposed evidence lacked cogency.

The court emphasized the importance of finality in proceedings and that a miscarriage of justice did not arise merely because the defendants feared they might not have met their onus on mitigation through their previous attempts.

The respondents moved to dismiss an oppression application commenced in 2009 for delay, lack of corporate authority, and alternatively sought security for costs.

The court found that the applicants were not principally responsible for the delay, as the respondents had brought a motion in 2009 that they never set down for a hearing.

The court dismissed the assigned claims from a corporate applicant that lacked authority to sue, but allowed the personal claims of the individual applicants to proceed.

The motion for security for costs was dismissed.

The Trustee in bankruptcy sought court orders for access to the bankrupt's leased premises and an extension of the three-month period under s. 38(2) of the Commercial Tenancies Act to elect to retain or assign the lease.

The Landlord opposed, arguing the Trustee had no right to access or assign the lease, and no legal basis existed to extend the period.

The court found that the Trustee, distinct from the Receiver, retained its rights under the CTA, including access for marketing the lease.

The court also held it had jurisdiction to extend the s. 38(2) period, not through inherent jurisdiction, but by applying s. 2 of Ontario Regulation 73/20 (the COVID-19 Suspension Order), which suspends periods for steps in proceedings.

The court granted a 90-day extension, subject to conditions regarding occupation rent, and ordered the parties to bear their own costs due to the mixed result.

The plaintiffs sought summary judgment for damages arising from the defendants' anticipatory repudiation of an agreement to purchase a waterfront property.

The plaintiffs resold the property for $325,000 less than the original contract price and claimed the difference plus additional commission costs as damages.

The court determined the proper assessment date for damages was the intended closing date of the original agreement.

However, the court found that the resale price alone was insufficient to prove market value in these circumstances and that there was a genuine issue regarding mitigation.

The court directed the parties to file further expert evidence on market value and mitigation to allow the damages to be determined under the court's enhanced fact-finding powers on summary judgment.

Domfoam International Inc., an applicant in CCAA proceedings, sought leave under Rule 39.02(2) of the Rules of Civil Procedure to examine the president (Terry Pomerantz) and an employee (John Howard) of Domfoam Inc. (the Purchaser) as witnesses in relation to the Purchaser's motion to set aside a distribution order.

The core dispute concerned whether proceeds from an anti-trust class action (Dow Proceeds) were conveyed to the Purchaser in a prior transaction.

The court applied a four-part test for granting leave, finding that the examination of Pomerantz was relevant and responsive to matters raised during cross-examination of the Purchaser's lawyer, and that Domfoam provided a reasonable explanation for the delay.

However, leave to examine Howard was denied as the relevant issues concerning him were known prior to the initial cross-examination, and proportionality weighed against it.

During a case management conference in a complex multi-party family and corporate dispute, a party objected to an opposing party's recent retainer of new counsel on the eve of scheduled examinations, alleging a historical conflict of interest.

To avoid derailing the long-established litigation schedule with a formal motion to remove counsel, the case management judge invoked Rule 50.13(6) of the Rules of Civil Procedure.

Citing the culture shift mandated by Hryniak v. Mauldin, the judge summarily ordered that the opposing party could not be represented by the newly retained counsel at this time, finding the retainer to be an act of tactical mischief designed to delay proceedings.

A Teva employee fraudulently requisitioned and deposited 63 cheques into accounts under names matching or resembling real customers.

The majority held the collecting banks were liable in conversion because the payees were neither fictitious nor non-existing under s. 20(5) of the Bills of Exchange Act.

The Court restored the motions judge’s decision and rejected the banks’ false-payee defence.