George Corsianos

The appellant challenged a bankruptcy order and a related post-judgment Mareva order granted at the request of a court-appointed monitor holding a substantial judgment debt.

The court held the bankruptcy order was appealable as of right under s. 193(c) of the Bankruptcy and Insolvency Act and treated the Mareva order as a final order appealable under s. 6(1)(b) of the Courts of Justice Act in the circumstances.

On the merits, the court found no reversible legal or discretionary error in rejecting objections to the monitor’s authority, rejecting allegations of collateral purpose, and refusing dismissal or adjournment under ss. 43(7) and 43(10) of the Bankruptcy and Insolvency Act.

The court also upheld continuation of the Mareva relief as complementary to bankruptcy administration and dismissed the appeal with agreed costs.

The court granted the Monitor's application to assign John Aquino into bankruptcy and continued the Mareva order against him.

The decision addresses the requirements for a bankruptcy order under the Bankruptcy and Insolvency Act, the discretion to dismiss or stay such an application, and the standards for continuing a Mareva injunction post-judgment.

The court found that John Aquino had committed an act of bankruptcy, was unable to pay his debts, and that there was no bona fide dispute with the Monitor.

The court also rejected arguments that the application was brought for a collateral purpose and found the continuation of the Mareva order appropriate.

The appellants, including the directing mind of two family-owned construction companies, participated in a false invoicing scheme that drained tens of millions of dollars from the debtor companies prior to insolvency.

The trustee in bankruptcy and monitor applied under s. 96(1)(b)(ii)(B) of the Bankruptcy and Insolvency Act to recover the false invoice payments as transfers at undervalue on the basis that the debtor companies intended to defraud, defeat, or delay creditors.

The Supreme Court held that insolvency is not a prerequisite to establishing fraudulent intent under s. 96(1)(b)(ii)(B), and that the directing mind's fraudulent intent was properly attributed to the debtor corporations.

The Court confirmed that the corporate attribution doctrine must be applied purposively, contextually, and pragmatically, and that the fraud and no benefit exceptions to corporate attribution do not apply in the context of s. 96 of the BIA because applying them would undermine the creditor protection purpose of that provision.

Appeal dismissed.

The appellant tenant sought leave to appeal and to set aside an arbitration award that determined the fair market base rent for a commercial lease renewal.

The court dismissed the application, finding no basis to set aside the award under section 46 of the Arbitration Act, as the arbitrator acted within his jurisdiction and the process was fair.

Furthermore, the court denied leave to appeal under section 45(1) because the appellant's grounds raised questions of mixed fact and law, primarily concerning contractual interpretation and factual findings, rather than extricable questions of law.

The moving parties (original respondents) sought a stay of execution of judgments totalling over $33 million, pending their application for leave to appeal to the Supreme Court of Canada.

The judgments were for transfers at undervalue under the BIA and CCAA.

The court applied the three-part test for a stay (serious issue, irreparable harm, balance of convenience).

The motion was dismissed because the moving parties failed to demonstrate irreparable harm, especially given the responding parties' undertaking not to distribute seized assets, and because no security was offered for the judgment.

Following reasons for judgment in two related applications regarding a commercial lease, the successful parties, The Tire Pit Inc. and Michael Goldlist, sought costs on a substantial indemnity basis.

The court found that the conduct of the unsuccessful parties did not rise to the egregious level required for substantial indemnity costs.

The court awarded partial indemnity costs, ordering Augend and Charles Bulmer jointly and severally to pay $36,000 to The Tire Pit Inc., and Augend to pay $31,000 to Michael Goldlist.

Augend, the new owner of a commercial property, brought an application seeking a declaration that the lease with the tenant, Tire Pit, had expired and seeking vacant possession.

Tire Pit brought a companion application seeking a declaration that it had validly exercised its option to extend the lease for another five years.

The court found that Tire Pit had personally delivered written notice of its intention to extend the lease to the former landlord at his home, more than six months before the lease expired.

Although the lease prescribed notice by registered mail or courier, the court applied the principle that actual notice by a no less advantageous method is valid where the lease does not strictly exclude other methods.

The court declared the lease validly extended and dismissed Augend's application.

The plaintiff law firm brought a motion under Rule 21.01(a) to determine whether the defendant former client waived solicitor-client privilege in an action for unpaid legal fees.

The client had disputed the quantum of fees and pleaded the law firm's antecedent claims in its counterclaim for breach of fiduciary duty.

The court held that the client expressly waived privilege by pleading the antecedent claims and implicitly waived privilege by putting the quality and reasonableness of the legal services in issue.

The court ruled that privilege was waived to the extent necessary for the law firm to advance its claim and defend the counterclaim.

The applicant tenant brought an application for the return of moneys held by the respondent landlord following the end of a commercial lease.

The landlord claimed the tenant owed occupancy costs, utilities, and damages for move-out deficiencies.

The court found the landlord's accounting unreliable, as it was uncertified, inconsistent, and relied on hearsay evidence.

The court ordered the landlord to return $49,906.00 to the tenant, representing the funds held less conceded unpaid rent.

Claims by both parties for additional damages were dismissed due to insufficient evidence and the lack of a cross-application by the landlord.

The Monitor of Bondfield Construction Company Limited and the Trustee in Bankruptcy of Forma-Con Construction brought applications under s. 96 of the Bankruptcy and Insolvency Act to recover tens of millions of dollars transferred out of the debtor companies through a false invoicing scheme and an alleged fund cycling scheme.

The court found that the payments made under the false invoicing scheme were transfers at undervalue made with the intent to defraud, defeat, or delay creditors, and held the participating respondents jointly and severally liable.

The court declined to apply the strict corporate attribution doctrine from Canadian Dredge, instead imputing the directing mind's fraudulent intent to the corporate debtors to fulfill the remedial purpose of s. 96.

The Monitor's claim regarding the fund cycling scheme was dismissed for lack of evidence that the transfers lacked consideration.

Peri Formwork Systems Inc. ("Peri") moved for partial summary judgment against Future Design Canada Inc. ("Future") for $52,865.75, representing unpaid invoices for industrial construction equipment rental.

Future defended by alleging an oral "pay when paid" agreement and claiming overcharges.

The court found no genuine issue for trial, concluding that the written "entire agreement" clause governed, and Future's course of conduct contradicted the alleged oral agreement.

The court also found Future's overcharging allegations vague and unsupported by evidence.

Partial summary judgment was granted to Peri, and the balance of the action (trust claim) was dismissed with Peri's consent to avoid inconsistent decisions.

The applicant mortgagee sought to vacate three instruments, including certificates of pending litigation, registered by the respondent against the mortgaged property.

The mortgagee had entered into an agreement of purchase and sale under its power of sale, and the purchaser requisitioned the removal of the instruments.

The court held that the application was premature, as section 35 of the Mortgages Act extinguishes subsequent encumbrances upon the completion of the sale by statutory declaration, making a court order unnecessary at this stage.

The application was adjourned until after the sale closes.

The appellants sought to set aside an order of the Deputy Registrar dismissing their appeal for delay and to extend the time for perfecting the appeal.

The underlying motion had resulted in the striking of the appellants' statement of defence due to their failure to comply with a discovery plan order.

The appellants did not attend the motion before the motion judge and did not file materials.

The Court of Appeal dismissed the motion on two grounds: first, the appellants were in the wrong court as they had failed to exhaust their remedies in the court of first instance under Rules 37 and 19; and second, even if the court had jurisdiction, the appellants failed to meet the test for setting aside the Deputy Registrar's order, as the delay was long and largely unexplained, prejudice to the respondent was evident, and there was no merit to the underlying appeal.

The defendant brought a motion for summary judgment to dismiss a construction lien action and discharge the lien, arguing no contract existed with the plaintiff corporation.

Alternatively, she sought an order for the plaintiff to post security for costs due to its alleged impecuniosity.

The court dismissed the summary judgment motion, finding a genuine issue for trial regarding the existence of a contract between the plaintiff corporation and the defendant, and declined to void the contract despite the plaintiff's breach of the Business Names Act.

The motion for security for costs was also dismissed, as the plaintiff established impecuniosity and had a legitimate claim, balancing the defendant's right to costs with the plaintiff's access to justice.

The parties disputed the listing price for a jointly owned property that had been listed for sale multiple times without success.

The plaintiffs sought a drastic price reduction to ensure a sale before the first mortgage matured, while the defendant opposed this to avoid signaling desperation and risking an improvident sale.

The court ordered incremental price reductions over a five-month period to balance the parties' concerns.

This ruling addresses the determination of trial costs following an appeal where the Court of Appeal set aside a judgment against the defendants and remitted the costs issue.

The defendants sought substantial indemnity costs, citing an oral settlement offer and the plaintiff's egregious conduct.

The court rejected the claim for substantial indemnity costs, emphasizing the requirement for written offers to settle under Rules 49.02 and 49.13, and noting that while the plaintiff's conduct was egregious, the defendants also contributed to an unhealthy relationship, making it inappropriate to single out one party for enhanced costs.

Applying Rule 57.01 factors, the court awarded partial indemnity costs to the defendants, finding them substantially successful.

Due to discrepancies and unreliability in the defendants' submitted bills of costs, the court based the partial indemnity award on the plaintiff's bill of costs as a reasonable estimate, ordering the plaintiff to pay $25,956 plus HST and $3,637.58 in disbursements.

This costs endorsement addresses two motions: the plaintiffs' successful motion for leave to file an affidavit and their unsuccessful motion for interim recovery of personal property.

The court found mixed success, noting that the plaintiffs were prima facie entitled to costs for the leave motion and the defendant for the recovery motion, both on a partial indemnity basis.

However, due to the mixed outcome and overreaching costs claims by both parties, the court ultimately ordered that each party bear their own costs for both motions.

This endorsement addresses several motions in a contentious family dispute involving co-owned property and personal belongings.

The parties are sisters and their family members.

The plaintiffs brought motions for a receiver, to strike affidavits, to stay a counterclaim, for leave to file a new affidavit (Martin affidavit), and for interim recovery of personal property (a piano and sheet music).

The court granted the leave motion, finding the new affidavit responsive to a matter raised on cross-examination regarding the admissibility of bail affidavits.

For the recovery motion, the court granted the recovery of sheet music but dismissed the recovery of the piano, finding that the plaintiffs did not meet the high threshold of showing substantial grounds for ownership, as credibility issues were best left for trial.

The parties agreed to continue efforts to sell the co-owned property and the court provided directions for this process.

A trucking company sought repayment of customer payments retained by a factoring company after the parties terminated their factoring agreement.

The defendant alleged the funds were applied to a $50,000 oral consulting agreement and outstanding contractual fees.

The court rejected that evidence as inconsistent with the documentary record and drew adverse inferences from missing accounting records.

Finding no juristic reason for the defendant to retain the funds, the court held the retention constituted unjust enrichment and ordered repayment.

The applicant trucking company sought to terminate a factoring agreement with the respondent and requested a buy-out statement, a release letter, and the discharge of a PPSA registration.

The respondent refused, arguing it owned the purchased invoices absolutely and had no obligation to sell them back.

The court held that the PPSA applied to the transaction and, pursuant to section 56, the applicant was entitled to pay the outstanding obligations and have the registration discharged.

The court ordered the respondent to provide the buy-out statement and, upon payment, release the customers and discharge the PPSA registration.