Gordon Douglas

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, acting as trustee in bankruptcy for a company involved in a Ponzi scheme, sought to recover $121,845.37 in payments made to the defendant in the year prior to bankruptcy.

The trustee argued these were preferential payments made while the company was insolvent.

The court found that the defendant, who was the nephew of the company's founder and worked for the company, was not dealing at arm's length with the insolvent company.

The court ordered the defendant to reimburse the full amount to the trustee.

The applicants, owners of a deconsecrated church and surrounding property, brought an application to evict the respondent tenant, The United People of Canada (TUPOC).

The parties had entered into an agreement of purchase and sale that included a commercial lease.

TUPOC failed to pay the required deposits and rent on time, despite multiple extensions.

The applicants terminated the agreement and the lease.

The court found that TUPOC materially breached the agreement by failing to pay the deposits, enforcing the 'time is of the essence' clause.

The court denied TUPOC's request for relief from forfeiture because it failed to tender the owed funds and did not come to court with clean hands.

The application for eviction was granted.

The McKillips, successful defendants in a motion to strike, sought substantial indemnity costs against the plaintiff Trustee in Bankruptcy.

The court awarded costs on a substantial indemnity basis for the period when fraud allegations were pleaded and partial indemnity thereafter, totaling $42,836.

The court found the fraud allegations, even if later clarified, warranted enhanced costs due to their serious nature and the Trustee's recklessness in pleading them without sufficient particulars.

The court also ruled that the costs should be paid by the Estate, or personally by the Trustee if the Estate lacked funds, rejecting the Trustee's argument for set-off against amounts owed by Susan McKillip in a separate unjust enrichment action.

The defendants brought a second motion to strike the plaintiff's re-amended statement of claim in an action arising from a Ponzi scheme.

The court found that the plaintiff had addressed the deficiencies identified in a previous decision regarding the damages claimed against most defendants.

However, the court struck the claim against two defendants (the McKillips) without leave to amend, finding no material facts were pleaded to establish a duty of care.

The court also held that the defendants were precluded from raising new arguments about the duty of care that they could have raised on their first motion to strike, as serial attacks on a pleading constitute an abuse of process.

The defendants sought over $300,000 in substantial indemnity costs following partial success on a motion to strike the plaintiff's pleadings.

The plaintiff, acting as trustee in bankruptcy for a company involved in a Ponzi scheme, opposed the costs request and argued that costs should be reserved.

The court declined to fix costs immediately, finding it more just to reserve the costs of the initial motions pending the outcome of further motions to strike the reamended statement of claim.

The Royal Bank of Canada (RBC) sought judgment against Daniel and Colleen Bedard for fraudulent misrepresentation related to a loan for a 57-foot Carver motor boat.

RBC alleged the Bedards misrepresented their purchase of the 57 Carver to secure the loan, but used the funds to pay for a 72-foot Marquis and to lend to Crate Marine Sales Limited.

The Bedards denied the claims and counterclaimed for all monthly loan payments made.

The court found that the Bedards, with Crate's assistance, fraudulently misrepresented the purpose of the loan and their ownership of the 57 Carver.

The Bedards never took possession of the 57 Carver, and the loan proceeds were used for other undisclosed purposes, leading to the defeat of RBC's security interest.

The court granted judgment to RBC for the outstanding loan balance and partial legal costs, dismissing the Bedards' counterclaim.

The plaintiffs suffered a residential fuel oil spill when their outdoor tank, which was labelled for indoor use, corroded and leaked.

They sued their fuel oil supplier, Ultramar, and its sub-contractor, Kilpatrick Fuels, in negligence and breach of contract.

The court found that the defendants breached the standard of care under the Technical Standards and Safety Act regime by failing to properly inspect, tag, and mandate the replacement of the non-compliant tank.

However, the court also found the plaintiffs contributorily negligent for failing to maintain their heating system.

Liability was apportioned 60% to Ultramar and 40% to the plaintiffs, with Ultramar entitled to 50% contribution from Kilpatrick.

The plaintiffs were awarded agreed subrogated damages of $750,000 and general damages of $30,000.

The plaintiff sued ten fuel providers for losses arising from fraudulent fuel card transactions.

The defendants brought motions to sever the proceedings.

The parties agreed to sever the claims against the Imperial defendants and stay the remaining claims pending the outcome of the Imperial action.

Shell brought a separate motion to stay the action against it based on a forum selection clause designating Alberta as the exclusive jurisdiction.

The court dismissed Shell's motion, finding that the policy against a multiplicity of proceedings constituted 'strong cause' to override the forum selection clause.

The moving party, a mechanical subcontractor, sought compensation for storage and handling costs of mechanical equipment retained after a construction project went into receivership.

The court found that the moving party met the broad definition of a 'storer' under the Repair and Storage Liens Act, as there was an understanding it would be paid for reasonable storage costs.

The court awarded storage costs at a rate of $82.19 per day from the date of the receivership appointment, but denied claims for the cost of installing a security gate and legal costs under the Act.

The mortgagor brought an urgent motion under the Mortgages Act seeking an order permitting payment into court of the undisputed mortgage payout amount and additional security to cover disputed prepayment penalties in order to obtain a discharge of a commercial mortgage before the closing of a property sale.

The parties agreed on the principal, accrued interest, and a three‑month interest penalty, but disagreed on the calculation of the additional interest differential payable under the mortgage’s prepayment clause.

The court held that the contractual language regarding the calculation of the “prevailing rate” was unclear and would require evidence and full argument at a later determination.

For the purpose of security pending that determination, the court ordered payment of an additional amount sufficient to protect the mortgagee without imposing an unfair burden on the mortgagor.

Upon payment of the undisputed amount and the ordered security into trust, the mortgagee was required to provide a discharge of the mortgage and personal property security.