Fred Tayar

The applicants sought to declare invalid a meeting of Torah V’Avodah Congregation (TVA) members held on November 13, 2013, which purported to remove existing trustees and close membership, arguing a lack of proper notice.

The court found that the applicants, including the incumbent trustees and Mizrachi Organization of Canada, had a demonstrable interest and were deliberately denied effective notice.

Consequently, the meeting and its resolutions, including the removal of trustees and changes to property title and mortgage, were declared invalid.

The court declined to make a declaration of ownership of the Wilson property, deeming it premature due to unresolved factual disputes regarding membership, trusteeship, and beneficial ownership claims.

The status quo was ordered to be preserved, with applicant trustees continuing administration but restricted from major transactions without court sanction.

The bankrupt applied for discharge from bankruptcy.

On the first day of the hearing, the bankrupt raised preliminary issues regarding the standing of an opposing creditor, whether an alleged undue preference could be considered, and the admissibility of documents.

The court held that the opposing creditor had standing because its proof of claim had not been disallowed.

The court deferred the undue preference issue, noting a separate proceeding had been scheduled to determine it, and ordered that the discharge hearing be deferred until that issue was resolved.

The court declined to rule on document admissibility in advance.

The appellants brought an action to enforce promissory notes and a claim for fraudulent conveyance.

The motion judge granted summary judgment to the appellants on the promissory notes but dismissed their fraudulent conveyance claim.

On appeal, the appellants argued the motion judge erred in dismissing the fraudulent conveyance claim when the defendants had not moved for summary judgment.

The Court of Appeal dismissed the appeal, confirming that summary judgment may be granted against a moving party.

The cross-appeal was allowed in part on consent to reduce the damages awarded on the promissory notes from $710,000 to $650,000.

The appellant appealed the dismissal of its summary judgment motion, which sought to declare mortgages granted by the respondent parents to their children as fraudulent conveyances.

The motion judge found good consideration for the mortgages and no intent to defraud, dismissing the action against the children.

The Court of Appeal upheld the decision, finding the motion judge's factual findings were entitled to deference and rejecting the appellant's attempt to raise new claims on appeal.

The Attorney General appealed a decision discharging the bankrupt, arguing that the bankrupt's personal income tax debt exceeded the threshold under s. 172.1 of the Bankruptcy and Insolvency Act.

At the time of the discharge hearing, the bankrupt had unpaid income tax assessments totalling approximately $4.478 million, of which $4.424 million was subject to outstanding appeals to the Tax Court of Canada.

The Court of Appeal held that assessed amounts of personal income tax under appeal are contingent claims that the trustee can refuse to admit as proven claims.

Therefore, these amounts are not included in calculating the bankrupt's personal income tax debt under s. 172.1(1).

The appeal was dismissed.

The respondent sought to enforce a settlement agreement against the appellants, Glen Grove and Spendthrift, who were not signatories to the agreement but were related to the signatory corporation, 129.

The trial judge found the appellants liable based on a 'privity principle' and common control.

On appeal, the Court of Appeal upheld Glen Grove's liability, finding that 129 acted as its agent in negotiating the settlement and offering security.

However, the Court allowed the appeal regarding Spendthrift, finding insufficient evidence to bind it to the settlement.

Following earlier rulings on motions involving Mareva injunctions, fraudulent conveyance allegations, and summary judgment on promissory notes, the court determined the appropriate costs awards among multiple parties across two related actions.

Certain defendants who were unsuccessful targets of fraud allegations sought substantial indemnity costs after the claims against them were dismissed.

The court held that allegations of fraud justified substantial indemnity costs where the plaintiffs failed to establish the claims.

In the Klein action, the court balanced mixed success by awarding costs to both sides and setting them off.

In the Finkelstein action, substantial indemnity costs were awarded to certain defendants in the cause.

The plaintiffs brought motions arising from an ATM business dispute, unpaid unsecured promissory notes, and allegations that mortgages granted on a matrimonial home were fraudulent conveyances.

Applying the summary judgment framework, the court held there was no genuine issue requiring a trial on the promissory note claim or the fraudulent conveyance claim.

The court dissolved Mareva injunctions in both actions, finding the record did not satisfy the stringent test for pre-judgment asset-freezing relief.

The court granted summary judgment for $710,000 plus interest on the promissory notes against the business partners and their business entities, dismissed the fraudulent conveyance claims, and refused a certificate of pending litigation.

A bankrupt applied for an absolute discharge nearly nine years after being adjudged bankrupt under the Bankruptcy and Insolvency Act.

Creditors and the trustee opposed an unconditional discharge, alleging the bankrupt failed to satisfactorily account for significant pre‑bankruptcy assets and had not fully disclosed financial information.

The court found the bankrupt had not adequately explained the disappearance of substantial assets including cash, RRSPs, securities, and real property, engaging s. 173(1)(d) of the Bankruptcy and Insolvency Act.

The court also found the bankrupt had remained voluntarily unemployed while living comfortably through financial support from family.

While the court concluded the bankruptcy itself arose from circumstances for which the bankrupt was not justly responsible, the failures of disclosure and conduct during bankruptcy warranted a conditional discharge requiring payment to the estate.

The plaintiff, a court-appointed receiver, brought an action to enforce a 2004 Settlement Agreement against the defendants.

The settlement was nominally entered into by a numbered company (129) controlled by the late Sylvia Hyde's husband, Edwin, and later by Sylvia herself.

The plaintiff sought to bind Sylvia's estate and two other companies she controlled (Glen Grove and Spendthrift) to the settlement's obligations, which included providing a mortgage and guarantee.

The court found that Sylvia had used her common control over the three corporations to secure a court-approved benefit from the settlement and could not subsequently use their separate legal personalities to avoid the obligations.

The action was allowed against Glen Grove and Spendthrift, but dismissed against Sylvia's estate as there was no basis to pierce the corporate veil.

The trustee in bankruptcy for several related real estate development companies brought applications to determine the priority of claims against the proceeds of a sold property and to set aside various payments and security granted to an investor, Dr. Goldfinger, as transfers at undervalue, fraudulent conveyances, or unjust preferences.

The court allowed some of the proofs of claim while disallowing others or requiring further evidence.

The court dismissed the trustee's claim to set aside a $2.5 million settlement payment to Goldfinger, finding it was made at arm's length and without intent to defraud creditors.

However, the court set aside a $471,000 payment to Goldfinger as a fraudulent conveyance, finding it was made with the intent to defeat another secured creditor, and ordered Goldfinger to repay the amount to the bankrupt estate.

During a contested bankruptcy discharge hearing under the Bankruptcy and Insolvency Act, an issue arose regarding whether information held by the bankrupt’s former matrimonial lawyer about the bankrupt’s pre‑bankruptcy assets was protected by solicitor‑client privilege.

An opposing creditor sought production of the lawyer’s file to determine whether the bankrupt had disclosed the existence of a family trust or other assets prior to bankruptcy.

The court reviewed the scope of solicitor‑client privilege in bankruptcy proceedings and the duty of a bankrupt to disclose property under the Act.

It held that while communications seeking legal advice remain privileged, factual information regarding the existence and location of the bankrupt’s property is not protected.

The former solicitor could therefore be compelled to disclose such information and access her file to refresh her memory.

The defendants moved to set aside ex parte Anton Piller orders and Mareva injunctions obtained by the plaintiff in a fraud action involving alleged misappropriation of corporate funds and improper commissions.

The court reviewed the strict legal requirements for such extraordinary remedies and emphasized the obligation of full, fair, and frank disclosure on without‑notice motions.

It found the plaintiff failed to disclose material facts, including ongoing communications with certain defendants, repayment negotiations, employment relationships, and other contextual facts that could have influenced the original decision.

The court also found insufficient evidence that certain defendants possessed incriminating documents or posed a real risk of asset dissipation.

As a result, the Anton Piller orders and Mareva injunctions were set aside against all defendants.

A related motion by one defendant to strike portions of the statement of claim was dismissed.

In a bankruptcy proceeding involving the estate of a bankrupt developer, the moving parties sought determination of priorities among claims.

During the hearing, counsel requested that transcripts of viva voce evidence be provided in a fully searchable electronic format for use in the continuation of the hearing.

The court found the request reasonable in modern litigation practice, noting the increasing reliance on electronic transcripts by both counsel and judges.

Given the lack of standardized electronic transcript formats prescribed by the Ministry of the Attorney General, the court ordered that the transcripts be produced in a fully word-searchable electronic format.

The plaintiff receiver moved for summary judgment against several corporate defendants and the estate of Sylvia Hyde for breach of a settlement agreement related to a bankruptcy proof of claim.

The estate trustees brought a cross-motion for summary judgment dismissing the action.

The court found that the documentary record and conflicting affidavit evidence did not allow for a full appreciation of the issues, particularly regarding Sylvia Hyde's knowledge and participation in the settlement.

Applying the full appreciation test, the court dismissed both motions for summary judgment and directed that the matter proceed to an expedited trial.

The applicants sought an order directing that funds collected by a court‑appointed receiver from proceeds payable to the respondent be paid to them.

The evidence established that one of the applicants was a creditor of the respondent for more than $1.2 million arising from a loan guarantee and secured by a general security agreement.

The respondent withdrew its opposition at the hearing, while a third-party creditor requested that the successful applicant’s payment be held in court pending potential litigation.

The court held that the applicant’s creditor claim clearly ranked ahead of any shareholder interest and rejected the request to hold the funds as premature security for an uncommenced action.

The motion was granted directing payment of most of the fund to the creditor applicant.

The moving party brought a motion to strike an affidavit filed by an opposing party in advance of summary judgment motions.

The affidavit was challenged on the basis that the deponent was allegedly incompetent when swearing the affidavit, refused cross‑examination, and later became unavailable.

The court held that, as a general rule, motions to strike affidavits should be heard by the judge presiding over the main motion or application because that judge must determine issues of admissibility, competency, credibility, and weight of the evidence.

Pre‑emptive motions to strike should occur only in the rarest and most extraordinary circumstances due to the inefficiency and proliferation of interlocutory motions.

The judge reserved the decision on the motion and directed that it would be determined at the commencement of the hearing of the main motions.

A secured lender applied for the appointment of a receiver over companies engaged in sub‑prime vehicle financing, while the debtor companies brought a cross‑application seeking protection under the Companies’ Creditors Arrangement Act.

The court considered the statutory tests under the Bankruptcy and Insolvency Act and the Courts of Justice Act for appointing a receiver and assessed the parties’ conduct, the deterioration of the secured creditor’s collateral, and the lack of available operating financing.

The debtor companies had made material misrepresentations regarding their financial position and had repeatedly failed to meet repayment deadlines despite forbearance arrangements.

The court found that appointing a receiver was just and convenient to preserve and realize on the secured creditor’s collateral.

The court also refused CCAA relief because the debtors had no restructuring plan or “germ of a plan,” and the major secured creditors opposed any arrangement.

The appellants appealed an order dismissing their claim.

The Court of Appeal upheld the motion judge's finding that the limitation period had expired in September 2006, two years after the trustee had knowledge of the underlying facts.

The subsequent acquisition of corporate control by a new individual did not restart or affect the running of the limitation period against the corporation.

The appeal was dismissed with costs.

The appellant appealed an order suspending his bankruptcy discharge and making it conditional upon the payment of $250,000.

The trustee and major creditors opposed an absolute discharge, citing the appellant's failure to disclose financial affairs, control of offshore accounts, and failure to assist the trustee.

The Court of Appeal upheld the motions judge's findings under section 173 of the Bankruptcy and Insolvency Act, confirming the appellant was not entitled to an absolute discharge.

The court found the $250,000 condition was not oppressive given the appellant's dishonesty and unwillingness to make full disclosure.

The appeal was dismissed, and the conditional payment was increased to $262,000 to cover the successful creditor's costs.